HomeMy WebLinkAboutWellhead Protection Report 8-9-12
110 South Downey Avenue, Indianapolis, Indiana 46219-6406
Telephone 317-630-9060, Facsimile 317-630-9065
www.MundellAssociates.com
General Underground Storage Tank System Description and Requirements
Attachment 1
Attachment 2
Stormwater Control and Spill Containment
Station Operational Planning and Controls
Behavior of Petroleum Hydrocarbons in Groundwater
Summary
MAI
UNDELL & SSOCIATES, NC.
A BRIEF SUMMARY OF MUNDELL WELLHEAD PROTECTION EXPERIENCE
Technically
Qualified Person(TQP)
Attachment 1: 329 IAC 9
ARTICLE 9.UNDERGROUND STORAGE TANKS
NOTE: IC 13-7 was repealed by P.L.1-1996, SECTION 99, effective
Rule 1.Applicability; Definitions
329 IAC 9-1-1Applicability
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-12-3-2; IC 13-23
Sec. 1. (a) This article applies to all owners and operators of an UST system as defined in section 49 of
otherwise provided in subsections (b) through (d). Any UST syste listed in subsection (c) shall meet the requirements of section
1.1 of this rule. Nothing in this article shall be construed to conflict with, circumvent, rescind, or repeal any authority, power, or duty
possessed by the office of the state fire marshal under Indiana
(b) The following UST systems are excluded from the requirements
(1) Any UST system holding:
(A) hazardous wastes regulated under Subtitle C (42 U.S.C. 6921
Act, as amended by the Resource Conservation and Recovery Act, as amended, 42 U.S.C. 6901, et seq., in effect on
September 30, 1996; or
(B) a mixture of such hazardous waste and other regulated substa
(2) Any wastewater treatment tank system that is part of a waste
1342) or 307(b) (33 U.S.C. 1317(b)) of the Clean Water Act, as amended, 33 U.S.C. 1251 et seq., in effect on October 31,
1994.
(3) Equipment or machinery that contains regulated substances for operational purposes and that may include any of the
following:
(A) Hydraulic lift tanks.
(B) Electrical equipment tanks.
(4) Any UST system whose capacity is one hundred ten (110) gallons or less, except an owner and operator with two (2) or
more UST systems on-site whose individual capacities are one huned ten (110) gallons or less are not excluded if the total
capacity of all tanks on-site containing the same product exceeds one hundred ten (110) gallons.
(5) Any UST system that contains a de minimis concentration of regulated substances.
(6) Any emergency spill or overflow containment UST system that
(c) 329 IAC 9-2 through 329 IAC 9-4, 329 IAC 9-6, and 329 IAC 9-
systems:
(1) Wastewater treatment tank systems.
(2) Any UST system containing radioactive material that is regulated under the Atomic Energy Act of 1954, 42 U.S.C. 2011,
et seq., as amended, in effect on April 26, 1996.
(3) Any UST system that is part of an emergency generator system at a nuclear power generation facility regulated by the
Nuclear Regulatory Commission under 10 CFR 50, Appendix A.
(4) Airport hydrant fuel distribution systems.
(5) UST systems with field-constructed tanks.
(d) 329 IAC 9-7 does not apply to any UST system that stores fuel solely for use by emergency power generators, except for
those installed or replaced after the effective date of the 2009
(e) Unless specified in the documents incorporated by reference in this article, the version of documents referenced in the
incorporated by reference documents is the latest version that i in effect on the date of final adoption of the incorporated by reference
documents into a section of this article.
(f) Owners or operators:
(1) performing a task or measure before the effective date of the 2004 amendments to this article; or
(2) taking an action, such as submitting reports, plans, or notiications received by the agency on a date before the effective
date of the 2004 amendments to this article;
will be governed by this article before it was amended in 2004.
(g) Owners or operators completing any requirement of this artic
(1) performing a task or measure on or after the effective date of the 2004 amendments to this article; or
(2) taking an action, such as submitting reports, plans, or notiications received by the agency on a date on or after the effective
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UNDERGROUND STORAGE TANKS
date of the 2004 amendments to this article;
(Solid Waste Management Board; 329 IAC 9-1-1; filed Dec 1, 1992,
will be governed by this article as amended in 2004.
16 IR 1062; filed Jul 19, 1999, 12:00 p.m.: 22 IR 3683; readopted filed Jan 10, 2001, 3:25 p.m.: 24 IR 1535; filed Aug 30, 2004,
9:35 a.m.: 28 IR 145; filed Aug 3, 2009, 1:48 p.m.: 20090902-IR-329080055FRA)
329 IAC 9-1-1.1Interim prohibition for deferred UST systems
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23
Sec. 1.1. (a) No person shall install a UST system listed in section 1(c) of this rule for the purpose of storing regulated
substances unless the UST system, whether of single-wall or double-wall construction, meets the following requirements:
(1) The UST system prevents releases due to corrosion or structural failure for the operational life of the UST system.
(2) The UST system is:
(A) cathodically protected against corrosion;
(B) constructed of noncorrodible material;
(C) steel clad with a noncorrodible material; or
(D) designed in a manner to prevent the release or threatened release of any stored substance.
(3) The UST system is constructed or lined with a material that is compatible with the stored substance.
(b) Notwithstanding subsection (a), a UST system without corrosi
by a corrosion expert not to be corrosive enough to cause the UST system to have a release due to corrosion during its operating life.
The owner and operator shall maintain records that demonstrate compliance with this subsection for the remaining life of the tank.
(Solid Waste Management Board; 329 IAC 9-1-1.1; filed Jul 19, 1999, 12:00 p.m.: 22 IR 3684; readopted filed Jan 10, 2001, 3:25
p.m.: 24 IR 1535)
329 IAC 9-1-2Applicability of definitions
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-11-2; IC 13-23
Sec. 2. In addition to the definitions in:
(1) IC 13-11-2-17(e);
(2) IC 13-11-2-73;
(3) IC 13-11-2-75;
(4) IC 13-11-2-84;
(5) IC 13-11-2-142;
(6) IC 13-11-2-160;
(7) IC 13-11-2-163;
(8) IC 13-11-2-172(d);
(9) IC 13-11-2-240; and
(10) IC 13-11-2-268;
(Solid Waste Management Board; 329
the definitions in this rule apply throughout this article unless otherwise indicated by the text.
IAC 9-1-2; filed Dec 1, 1992, 5:00 p.m.: 16 IR 1063; filed Jul 19, 1999, 12:00 p.m.: 22 IR 3684; readopted filed Jan 10, 2001, 3:25
p.m.: 24 IR 1535)
329 IAC 9-1-3"Aboveground release" defined
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23
Sec. 3. "Aboveground release" means any release to the surface of the land, surface water, or ground water. An aboveground
release may include any of the following:
(1) Releases from the aboveground portion of a UST system.
(2) Aboveground releases associated with overfills and transfer operations as the regulated substance moves to or from a UST
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UNDERGROUND STORAGE TANKS
system.
(Solid Waste Management Board; 329 IAC 9-1-3; filed Dec 1, 1992,d Jul 19, 1999, 12:00 p.m.: 22 IR
3684; readopted filed Jan 10, 2001, 3:25 p.m.: 24 IR 1535)
329 IAC 9-1-4"Agency" defined
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23
Sec. 4. "Agency" means the department of environmental management. This definition is not applicable under 329 IAC 9-8.
(Solid Waste Management Board; 329 IAC 9-1-4; filed Dec 1, 1992, 5:00 p.m.: 16 IR 1063; filed Jul 19, 1
3685; readopted filed Jan 10, 2001, 3:25 p.m.: 24 IR 1535; filed Aug 30, 2004, 9:35 a.m.: 28 IR 145)
329 IAC 9-1-5"Ancillary equipment" defined
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23
Sec. 5. "Ancillary equipment" means any device that may include
(1) piping;
(2) fittings;
(3) flanges;
(4) valves; or
(5) pumps;
(Solid Waste
used to distribute, meter or control the flow of regulated substances to and from an underground storage tank.
Management Board; 329 IAC 9-1-5; filed Dec 1, 1992, 5:00 p.m.: 16 IR 1063; filed Jul 19, 1999, 12:00 p.m.: 22 IR 3685; readopd
filed Jan 10, 2001, 3:25 p.m.: 24 IR 1535)
329 IAC 9-1-6"Belowground release" defined
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23
Sec. 6. "Belowground release" means any release to the subsurface of the land, ground water, or surface water. A belowground
release may include any of the following:
(1) Releases from the belowground portions of a UST system.
(2) Belowground releases associated with overfills and transfer operations as the regulated substance moves to or from an
underground storage tank.
(Solid Waste Management Board; 329 IAC 9-1-6; filed Dec 1, 1992, 5:00 p.m.: 16 IR 1063; filed Jul 19, 1999, 12:00 p.m.: 22 IR
3685; readopted filed Jan 10, 2001, 3:25 p.m.: 24 IR 1535)
329 IAC 9-1-7"Beneath the surface of the ground" defined
Authority:IC 13-7
Affected:IC 13-7-20-12; IC 13-7-20-13
Sec. 7. "Beneath the surface of the ground" means beneath the ground surface or otherwise covered with earthen materials.
(Solid Waste Management Board; 329 IAC 9-1-7; filed Dec 1, 1992, 5:00 p.m.: 16 IR 1063; readopted filed Jan 10, 2001, 3:25 p.m.:
24 IR 1535)
329 IAC 9-1-8"Cathodic protection" defined
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23
Sec. 8. "Cathodic protection" means a technique to prevent corrosion of a metal surface by making that surface the cathod
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UNDERGROUND STORAGE TANKS
of an electrochemical cell. A tank system can be cathodically protected through the application of either galvanic anodes or impressed
(Solid Waste Management Board; 329 IAC 9-1-8; filed Dec 1, 1992,filed Jul 19, 1999, 12:00 p.m.:
current.
22 IR 3685; readopted filed Jan 10, 2001, 3:25 p.m.: 24 IR 1535)
329 IAC 9-1-9"Cathodic protection tester" defined
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23
Sec. 9. "Cathodic protection tester" means a person who can demonstrate an understanding of the principles and measurements
of all common types of cathodic protection systems as applied toburied or submerged metal piping and tank systems. At a minimum,
such person shall have education and experience in the following
(1) Soil resistivity.
(2) Stray current.
(3) Structure-to-soil potential.
(4) Component electrical isolation measurements of buried metal
(Solid Waste Management Board; 329 IAC 9-1-9; filed Dec 1, 1992, 5:00 p.m.: 16 IR 1064; filed Jul 19, 1999, 12:00 p.m.: 22 IR
3685; readopted filed Jan 10, 2001, 3:25 p.m.: 24 IR 1535)
329 IAC 9-1-10"CERCLA" defined
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23
Sec. 10. "CERCLA" means the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as
amended by the Superfund Amendments and Reauthorization Act of 1 as amended, 42 U.S.C. 9601, et seq., in effect on October
(Solid Waste Management Board; 329 IAC 9-1-10; filed Dec 1, 1992filed Jul 19, 1999, 12:00 p.m.:
12, 1996.
22 IR 3685; readopted filed Jan 10, 2001, 3:25 p.m.: 24 IR 1535)
329 IAC 9-1-10.1"Chemical of concern" or "COC" defined (Repealed)
(Repealed by Solid Waste Management Board; filed Aug 30, 2004, 9
Sec. 10.1.
329 IAC 9-1-10.2"Clean closure" defined (Repealed)
(Repealed by Solid Waste Management Board; filed Aug 30, 2004, 9
Sec. 10.2.
329 IAC 9-1-10.4"Change-in-service" defined
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23
(Solid
Sec. 10.4. "Change-in-service" means continued use of the UST or UST system to store a nonregulated substance.
Waste Management Board; 329 IAC 9-1-10.4; filed Aug 30, 2004, 9:35 a.m.: 28 IR 146)
329 IAC 9-1-10.6"Chemical of concern" or "COC" defined
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23
(Solid Waste
Sec. 10.6. "Chemical of concern" or "COC" means the parameter to be analyzed as a possible contaminant.
Management Board; 329 IAC 9-1-10.6; filed Aug 30, 2004, 9:35 a.m.: 28 IR 146)
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329 IAC 9-1-10.7"Chronic failure to comply" defined
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2; 42 U.S.C. 6991
Affected:IC 13-13-1-1; IC 13-23
Sec. 10.7. "Chronic failure to comply" means a person that has not complied with 329 IAC 9-2-1, 329 IAC 9-2.1 or either of
the following occur:
(1) A liquid release of a regulated substance from an underground storage tank system, which may include the failure of any
required overfill protection system, where the failure is causinrelease to the environment, or the failure of a required spill
containment structure, where the failure is causing a release to
(2) The inability of an underground storage tank system to detect a liquid leak or contain a liquid release of a regulated
substance in the manner required by 329 IAC 9-7, which may inclu
equipment is no longer capable of detecting a leak at the earliest possible opportunity.
(Solid Waste Management Board; 329 IAC 9-1-10.7; filed May 7, 2010, 10:02 a.m.: 20100602-IR-329070468FRA)
329 IAC 9-1-10.8"Closure" defined
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-13-1-1; IC 13-23
Sec. 10.8. "Closure" means the owner or operator has met all the
(Solid Waste
imply that the site is completely free of contaminants. Some acceptable level of contaminants may still be on-site.
Management Board; 329 IAC 9-1-10.8; filed Aug 30, 2004, 9:35 a.m.: 28 IR 146)
329 IAC 9-1-11"Commissioner" defined
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-13-1-1; IC 13-23
Sec. 11. "Commissioner" means the commissioner of the department of environmental management as created under IC 13-13-
(Solid Waste Management Board; 329 IAC 9-1-11; filed Dec 1, 1992, 5:00 p.m.: 16 IR 1064; filed Jul 19, 1999, 12:00 p.m.:
1-1.
22 IR 3688; readopted filed Jan 10, 2001, 3:25 p.m.: 24 IR 1535)
329 IAC 9-1-12"Compatible" defined
Authority:IC 13-7
Affected:IC 13-7-20-12; IC 13-7-20-13
Sec. 12. "Compatible" means the ability of two (2) or more substances to maintain their respective physical and chemical
properties upon contact with one another for the design life of the tank system under condite
(Solid Waste Management Board; 329 IAC 9-1-12; filed Dec 1, 1992, 5:00 p.m.: 16 IR 1064; readopted
underground storage tank.
filed Jan 10, 2001, 3:25 p.m.: 24 IR 1535)
329 IAC 9-1-13"Connected piping" defined
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23
Sec. 13. "Connected piping" means all underground piping, includ
(1) valves;
(2) elbows;
(3) joints;
(4) flanges; and
(5) flexible connectors;
attached to a tank system through which regulated substances flow. For the purpose of determining how much piping is connected
(Solid Waste
to any individual UST system, the piping that joins two (2) UST systems should be allocated equally between them.
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UNDERGROUND STORAGE TANKS
Management Board; 329 IAC 9-1-13; filed Dec 1, 1992, 5:00 p.m.: 16 IR 1064; filed Jul 19, 1999, 12:00 p.m.: 22 IR 3688; readed
filed Jan 10, 2001, 3:25 p.m.: 24 IR 1535)
329 IAC 9-1-14"Consumptive use" defined
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-11-2-241; IC 13-13-1-1; IC 13-23
Sec. 14. "Consumptive use", with respect to heating oil, means c
heating oil exclusion under IC 13-11-2-241(b)(2) does not apply e storage of heating oil for resale, marketing, or distribution.
(Solid Waste Management Board; 329 IAC 9-1-14; filed Dec 1, 1992, 5:00 p.m.: 16 IR 1064; readopted filed Jan 10, 2001, 3:25
p.m.: 24 IR 1535; filed Aug 30, 2004, 9:35 a.m.: 28 IR 146)
329 IAC 9-1-14.1"Corrective action" defined (Repealed)
(Repealed by Solid Waste Management Board; filed Aug 30, 2004, 9
Sec. 14.1.
329 IAC 9-1-14.3"Contaminant" defined
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-11-2-42; IC 13-13-1-1; IC 13-23
Sec. 14.3. "Contaminant" has the meaning set forth at IC 13-11-2
(Solid Waste Management Board; 329 IAC 9-1-14.3; filed Aug 30, 2004,
include hazardous waste regulated under 329 IAC 3.1.
9:35 a.m.: 28 IR 146)
329 IAC 9-1-14.5"Corrective action" defined
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23
Sec. 14.5. "Corrective action" means action taken to minimize, c
(Solid Waste Management
including emergency measures taken as part of an initial response to the release under 329 IAC 9-5-2.
Board; 329 IAC 9-1-14.5; filed Aug 30, 2004, 9:35 a.m.: 28 IR 14
329 IAC 9-1-14.7"Corrective action plan" or "CAP" defined
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23
Sec. 14.7. "Corrective action plan" or "CAP" means the correctiv
(Solid Waste Management Board; 329 IAC 9-1-14.7; filed Aug 30, 2004, 9:35 a.m.: 28 IR 146)
IAC 9-5-7(b).
329 IAC 9-1-15"Corrosion expert" defined
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23; IC 25-31-1
Sec. 15. "Corrosion expert" means a person who, by reason of thorough knowledge of the physical sciences and the principles
of engineering and mathematics acquired by a professional educaton and related practical experience, is qualified to engage in the
practice of corrosion control on buried or submerged metal pipinsystems and metal tanks. Such a person shall meet one (1) of the
following requirements:
(1) Be accredited or certified as being qualified by NACE International (formerly the National Association of Corrosion
Engineers).
(2) Be a registered professional engineer under IC 25-31-1 who has education and experience in corrosion control of buried
or submerged metal piping systems and metal tanks.
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(Solid Waste Management Board; 329 IAC 9-1-15; filed Dec 1, 1992, 5:00 p.m.: 16 IR 1064; filed Jul 19, 1999, 12:00 p.m.: 22 IR
3689; readopted filed Jan 10, 2001, 3:25 p.m.: 24 IR 1535)
329 IAC 9-1-15.5"Deposit" defined
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2; 42 U.S.C. 6991
Affected:IC 13-13-1-1; IC 13-23
(Solid
Sec. 15.5. "Deposit" means the act of placing in or filling of an underground storage tank with a regulated substance.
Waste Management Board; 329 IAC 9-1-15.5; filed May 7, 2010, 10:02 a.m.: 20100602-IR-329070468FRA)
329 IAC 9-1-16"Dielectric material" defined
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23
Sec. 16. "Dielectric material" means a material that does not conduct direct electrical current and includes the following
(1) Dielectric coatings are used to electrically isolate UST systems from the surrounding soils.
(2) Dielectric bushings are used to electrically isolate portions of the UST system. A dielectric bushing may be used to
electrically isolate a tank from piping.
(Solid Waste Management Board; 329 IAC 9-1-16; filed Dec 1, 1992, 5:00 p.m.: 16 IR 1064; filed Jul 19, 1999, 12:00 p.m.: 22 IR
3689; readopted filed Jan 10, 2001, 3:25 p.m.: 24 IR 1535)
329 IAC 9-1-17"Electrical equipment" defined
Authority:IC 13-7
Affected:IC 13-7-20-12; IC 13-7-20-13
Sec. 17. "Electrical equipment" means underground equipment thatcontains dielectric fluid that is necessary for the operation
(Solid Waste Management Board; 329 IAC 9-1-17; filed Dec 1, 1992
of equipment such as transformers and buried electrical cable.
5:00 p.m.: 16 IR 1064; readopted filed Jan 10, 2001, 3:25 p.m.: 24 IR 1535)
329 IAC 9-1-18"Excavation zone" defined
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23
Sec. 18. "Excavation zone" means the volume containing the tank system and backfill material bounded by the:
(1) ground surface;
(2) walls; and
(3) floor of the pit and trenches;
(Solid Waste Management Board; 329 IAC 9-1-18; filed Dec 1, 1992
into which the UST system is placed at the time of installation.
5:00 p.m.: 16 IR 1065; filed Jul 19, 1999, 12:00 p.m.: 22 IR 3689; readopted filed Jan 10, 2001, 3:25 p.m.: 24 IR 1535)
329 IAC 9-1-18.5"Existing" defined
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-18-17-6; IC 13-23-3
Sec. 18.5. "Existing" means that a:
(1) tank;
(2) piping;
(3) motor fuel dispensing system;
(4) facility;
(5) community public water supply system (CPWSS); or
(6) potable drinking water well;
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UNDERGROUND STORAGE TANKS
is in place prior to beginning the installation or replacement oa tank, piping, or motor fuel dispensing system. The term includes
a potable drinking water well that the UST owner has or will install at a new underground storage tank facility regardless of whether
(Solid Waste Management Board; 329 IAC
the well is installed before or after the tanks, piping, and motor fuel dispenser systems.
9-1-18.5; filed Aug 3, 2009, 1:48 p.m.: 20090902-IR-329080055FRA
329 IAC 9-1-19"Existing tank system" defined
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23
Sec. 19. "Existing tank system" means a tank system used to contain an accumulation of regulated substances or for which
installation has commenced on or before December 22, 1988. Installation is considered to have commenced if the following have
been completed:
(1) The owner or operator has obtained all federal, state, and local approvals or permits necessary to b
construction of the site or installation of the tank system.
(2) Either:
(A) a continuous on-site physical construction or installation program has begun; or
(B) the owner or operator has entered into contractual obligations that cannot be canceled or modified without
substantial loss for physical construction at the site or installation of the tank system to be completed within a reasonable
time.
(Solid Waste Management Board; 329 IAC 9-1-19; filed Dec 1, 1992, 5:00 p.m.: 16 IR 1065; filed Jul 19, 1999, 12:00 p.m.: 22 IR
3689; readopted filed Jan 10, 2001, 3:25 p.m.: 24 IR 1535)
329 IAC 9-1-19.5"Failure to comply" defined
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2; 42 U.S.C. 6991
Affected:IC 13-13-1-1; IC 13-23
Sec. 19.5. "Failure to comply" means the failure of an owner or operator to manage or operate an underground storage tank
(Solid Waste Management Board; 329 IAC 9-1-19.5; filed May 7, 20
system in accordance with 329 IAC 9-3.1 and 329 IAC 9-7.
10:02 a.m.: 20100602-IR-329070468FRA)
329 IAC 9-1-20"Farm tank" defined
Authority:IC 13-7
Affected:IC 13-7-20-12; IC 13-7-20-13
Sec. 20. "Farm tank" means a tank located on a tract of land devoted to the production of crops or raising animals, including
fish, and associated residences and improvements. A farm tank must be located on the farm property. "Farm" includes fish hatcheries,
(Solid Waste Management Board; 329 IAC 9-1-20; filed Dec 1, 1992
rangeland, and nurseries with growing operations.
16 IR 1065; readopted filed Jan 10, 2001, 3:25 p.m.: 24 IR 1535)
329 IAC 9-1-21"Fire marshal" defined
Authority:IC 13-7
Affected:IC 13-7-20-12; IC 13-7-20-13
(Solid Waste
Sec. 21. "Fire marshal" means the office of the state fire marshal, Indiana department of fire and building services.
Management Board; 329 IAC 9-1-21; filed Dec 1, 1992, 5:00 p.m.: 16 IR 1065; readopted filed Jan 10, 2001, 3:25 p.m.: 24 IR 153)
329 IAC 9-1-22"Flow-through process tank" defined
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23
Sec. 22. "Flow-through process tank" means a tank that forms an integral part of a production process through which there
Indiana Administrative CodePage 8
UNDERGROUND STORAGE TANKS
is a steady, variable, recurring, or intermittent flow of materials during the operation of the process. Flow-through process anks do
not include tanks used for any of the following:
(1) The storage of materials prior to their introduction into th
(2) The storage of finished products or byproducts from the production process.
(Solid Waste Management Board; 329 IAC 9-1-22; filed Dec 1, 1992, 5:00 p.m.: 16 IR 1065; filed Jul 19, 1999, 12:00 p.m.: 22 IR
3690; readopted filed Jan 10, 2001, 3:25 p.m.: 24 IR 1535)
329 IAC 9-1-23"Free product" defined
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23
Sec. 23. "Free product" means a regulated substance that is present as a nonaqueous phase liquid. Free product usually refers
(Solid Waste Management Board; 329 IAC 9-1-23; filed Dec 1, 1992, 5:00 p.m.: 16 IR 1065; filed
to a liquid not dissolved in water.
Jul 19, 1999, 12:00 p.m.: 22 IR 3690; readopted filed Jan 10, 2001, 3:25 p.m.: 24 IR 1535)
329 IAC 9-1-23.1"Galvanic cathodic protection" defined
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23
Sec. 23.1. "Galvanic cathodic protection" means a technique to prevent the corrosion of a metal surface by sacrificial protection
(Solid Waste Management Board; 329 IAC 9-1-23.1;
to another metal that is more noble when electrically coupled in
filed Jul 19, 1999, 12:00 p.m.: 22 IR 3690; readopted filed Jan
329 IAC 9-1-23.2"Galvanic cathodic protection system" defined
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23
Sec. 23.2. "Galvanic cathodic protection system" means a process to prevent the corrosion of a metal surface by sacrificial
(Solid Waste Management Board; 329 IAC
protection to another metal that is more noble when electrically
9-1-23.2; filed Jul 19, 1999, 12:00 p.m.: 22 IR 3690; readopted filed Jan 10, 2001, 3:25 p.m.: 24 IR 1535)
329 IAC 9-1-24"Gathering lines" defined
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23
Sec. 24. "Gathering lines" means any pipeline, equipment, facili, or building used in the transportation of oil or gas during
any of the following:
(1) Oil or gas production operations.
(2) Oil or gas gathering operations.
(Solid Waste Management Board; 329 IAC 9-1-24; filed Dec 1, 1992, 5:00 p.m.: 16 IR 1065; filed Jul 19, 1999, 12:00 p.m.: 22 IR
3690; readopted filed Jan 10, 2001, 3:25 p.m.: 24 IR 1535)
329 IAC 9-1-24.1"Geologically susceptible area" defined
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23
(Solid
Sec. 24.1. "Geologically susceptible area" means an area that includes karst terrains or other fractured rock geology.
Waste Management Board; 329 IAC 9-1-24.1; filed Jul 19, 1999, 12:00 p.m.: 22 IR 3690; readopted filed Jan 10, 2001, 3:25 p.m.:
24 IR 1535)
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UNDERGROUND STORAGE TANKS
329 IAC 9-1-24.2"Ground water" defined
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23
Sec. 24.2. "Ground water" has the meaning set forth in 327 IAC 2-1-9 under rules adopted by the water pollution control board
(Solid Waste Management Board; 329 IAC 9-1-24.2; filed Jul 19, 1999, 12:00 p.m.: 22 IR 3690; readopted filed Jan 10, 2001, 3:25
p.m.: 24 IR 1535)
329 IAC 9-1-25"Hazardous substance UST system" defined
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23
Sec. 25. "Hazardous substance UST system" means an UST system that contains any of the following:
(1) A hazardous substance that is:
(A) defined in Section 101(14) of CERCLA (42 U.S.C. 9601(14)); a
(B) not regulated as a hazardous waste under 329 IAC 3.1.
(2) Any mixture of substances specified in subdivision (1)(A) or
(Solid Waste Management Board; 329 IAC 9-1-25; filed Dec 1, 1992, 5:00 p.m.: 16 IR 1065; filed Jul 19,
3690; readopted filed Jan 10, 2001, 3:25 p.m.: 24 IR 1535; filed Aug 30, 2004, 9:35 a.m.: 28 IR 146)
329 IAC 9-1-26"Heating oil" defined
Authority:IC 13-7
Affected:IC 13-7-20-12; IC 13-7-20-13
Sec. 26. "Heating oil" means:
(1) petroleum that is No. 1, No. 2, No. 4-light, No. 4-heavy, No. 5-light, No. 5-heavy, and No. 6 technical grades of fuel oil;
(2) other residual fuel oils (including Navy Special Fuel Oil an
(3) other fuels when used as substitutes for one (1) of the fuel oils listed in this section.
(Solid Waste Management Board; 329 IAC
Heating oil is typically used in the operation of heating equipment, boilers, or furnaces.
9-1-26; filed Dec 1, 1992, 5:00 p.m.: 16 IR 1065; readopted file
329 IAC 9-1-27"Hydraulic lift tank" defined
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23
Sec. 27. "Hydraulic lift tank" means a tank that holds hydraulic
compressed air or hydraulic fluid to operate any of the followin
(1) Lifts.
(2) Elevators.
(3) Devices similar to those in subdivision (1) or (2).
(Solid Waste Management Board; 329 IAC 9-1-27; filed Dec 1, 1992, 5:00 p.m.: 16 IR 1066; filed Jul 19,
3691; readopted filed Jan 10, 2001, 3:25 p.m.: 24 IR 1535; filed Aug 30, 2004, 9:35 a.m.: 28 IR 147)
329 IAC 9-1-27.1"Impressed current cathodic protection" defined
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23
Sec. 27.1. "Impressed current cathodic protection" means a technique to prevent corrosion of a metal surface by using an
(Solid Waste Management
electric current supplied by a device employing a power source that is external to the electrode system.
Board; 329 IAC 9-1-27.1; filed Jul 19, 1999, 12:00 p.m.: 22 IR 3691; readopted filed Jan 10, 2001, 3:25 p.m.: 24 IR 1535)
Indiana Administrative CodePage 10
UNDERGROUND STORAGE TANKS
329 IAC 9-1-27.2"Impressed current cathodic protection system" defined
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23
Sec. 27.2. "Impressed current cathodic protection system" means a process to prevent corrosion of a metal surface by using
(Solid Waste Management
an electric current supplied by a device employing a power source that is external to the electrode system.
Board; 329 IAC 9-1-27.2; filed Jul 19, 1999, 12:00 p.m.: 22 IR 3691; readopted filed Jan 10, 2001, 3:25 p.m.: 24 IR 1535)
329 IAC 9-1-27.3"In-place closure" defined
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23
(Solid Waste
Sec. 27.3. "In-place closure" means a closure where the underground storage tank is not removed from
Management Board; 329 IAC 9-1-27.3; filed Jul 19, 1999, 12:00 p.m.: 22 IR 3691; readopted filed Jan 10, 2001, 3:25 p.m.: 24 IR
1535)
329 IAC 9-1-27.4"Karst terrains" defined (Repealed)
(Repealed by Solid Waste Management Board; filed Aug 3, 2009, 1:48 p.m.: 20090902-IR-329080055FRA)
Sec. 27.4.
329 IAC 9-1-27.5"Interstitial monitoring" defined
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-18-17-6; IC 13-23-3
Sec. 27.5. "Interstitial monitoring" means a release detection m
underground storage tank and piping. The term includes only thoslease detection systems that are capable of detecting a breach
in the primary containment of the underground storage tank and pping component being monitored before the regulated substance
(Solid Waste Management Board; 329 IAC 9-1-27.5; filed Aug 3, 2009, 1:48 p.m.:
or petroleum stored is released to the environment.
20090902-IR-329080055FRA)
329 IAC 9-1-27.6"Interstitial space" defined
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-18-17-6; IC 13-23-3
(Solid Waste
Sec. 27.6. "Interstitial space" means the space between the primary and secondary containment systems.
Management Board; 329 IAC 9-1-27.6; filed Aug 3, 2009, 1:48 p.m.: 20090902-IR-329080055FRA)
329 IAC 9-1-27.8"Karst terrains" defined
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-18-17-6; IC 13-23-3
Sec. 27.8. "Karst terrains" means an area where karst topography, with its characteristic surface and subterranean features,
is developed as the result of dissolution of limestone, dolomite, or other soluble rock. Characteristic physiographic features present
to karst terrains include any of the following:
(1) Sinkholes.
(2) Sinking streams.
(3) Caves.
(4) Large springs.
(5) Blind valleys.
(6) Grikes.
Indiana Administrative CodePage 11
UNDERGROUND STORAGE TANKS
(7) Karren.
(8) Solution widened joints or bedding planes.
(9) Loss of drilling fluid during core drilling.
[sic]
(10) Anasotmosis , and conduits of less than one (1) meter, but more than two and
(11) Karst aquifer.
(Solid Waste Management Board; 329 IAC 9-1-27.8; filed Aug 3, 2009, 1:48 p.m.: 20090902-IR-329080055FRA)
329 IAC 9-1-28"Liquid trap" defined
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23
Sec. 28. "Liquid trap" means sumps, well cellars, and other traps used in association with oil and gas production, gathering,
and extraction operations (including gas production plants) for e purpose of collecting oil, water, and other liquids. These liquid
traps may complete any of the following:
(1) Temporarily collect liquids for subsequent disposition or reinjection into a production or pipeline stream.
(2) Collect and separate liquids from a gas stream.
(Solid Waste Management Board; 329 IAC 9-1-28; filed Dec 1, 1992, 5:00 p.m.: 16 IR 1066; filed Jul 19, 1999, 12:00 p.m.: 22 IR
3691; readopted filed Jan 10, 2001, 3:25 p.m.: 24 IR 1535)
329 IAC 9-1-29"Maintenance" defined
Authority:IC 13-7
Affected:IC 13-7-20-12; IC 13-7-20-13
(Solid Waste
Sec. 29. "Maintenance" means the normal operational upkeep to prevent a UST system from releasing product.
Management Board; 329 IAC 9-1-29; filed Dec 1, 1992, 5:00 p.m.: 16 IR 1066; readopted filed Jan 10, 2001, 3:25 p.m.: 24 IR 153)
329 IAC 9-1-29.1"Modified closure" defined (Repealed)
(Repealed by Solid Waste Management Board; filed Aug 30, 2004, 9
Sec. 29.1.
329 IAC 9-1-30"Motor fuel" defined
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23
Sec. 30. "Motor fuel" means petroleum or a petroleum-based substance that is:
(1) motor gasoline;
(2) aviation gasoline;
(3) No. 1 diesel fuel;
(4) No. 2 diesel fuel; or
(5) any grade of gasohol;
(Solid Waste Management Board; 329 IAC 9-1-30; filed Dec 1, 1992
and is typically used in the operation of a motor engine.
p.m.: 16 IR 1066; filed Jul 19, 1999, 12:00 p.m.: 22 IR 3692; readopted filed Jan 10, 2001, 3:25 p.m.: 24 IR 1535)
329 IAC 9-1-31"New tank system" defined
Authority:IC 13-7
Affected:IC 13-7-20-12; IC 13-7-20-13
Sec. 31. "New tank system" means a tank system that will be used to contain an accumulation of regulated substances and for
(Solid Waste Management Board; 329 IAC 9-1-31; filed Dec 1, 1992
which installation has commenced after December 22, 1988.
5:00 p.m.: 16 IR 1066; readopted filed Jan 10, 2001, 3:25 p.m.: 24 IR 1535)
Indiana Administrative CodePage 12
UNDERGROUND STORAGE TANKS
329 IAC 9-1-32"Noncommercial purposes" defined
Authority:IC 13-7
Affected:IC 13-7-20-12; IC 13-7-20-13
(Solid Waste Management Board; 329
Sec. 32. "Noncommercial purposes", with respect to motor fuel, means not for resale.
IAC 9-1-32; filed Dec 1, 1992, 5:00 p.m.: 16 IR 1066; readopted filed Jan 10, 2001, 3:25 p.m.: 24 IR 1535)
329 IAC 9-1-33"On the premises where stored" defined
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23
Sec. 33. "On the premises where stored", with respect to heating oil, means a UST system located on the same property where
(Solid Waste Management Board; 329 IAC 9-1-33; filed Dec 1, 1992, 5:00 p.m.: 16 IR 1066; filed Jul
the stored heating oil is used.
19, 1999, 12:00 p.m.: 22 IR 3692; readopted filed Jan 10, 2001, 3:25 p.m.: 24 IR 1535)
329 IAC 9-1-34"Operational life" defined
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23
Sec. 34. "Operational life" means the period beginning when installation of the tank system has commenced until the time the
(Solid Waste Management Board; 329 IAC 9-1-34; filed Dec 1, 1992
tank system is properly closed under 329 IAC 9-6.
16 IR 1066; filed Jul 19, 1999, 12:00 p.m.: 22 IR 3692; readopted filed Jan 10, 2001, 3:25 p.m.: 24 IR 1535)
329 IAC 9-1-34.1"Operator" defined
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-11-2-148; IC 13-23
(Solid Waste Management Board; 329 IAC 9-1-34.1;
Sec. 34.1. "Operator" has the meaning as set forth in IC 13-11-2
filed Jul 19, 1999, 12:00 p.m.: 22 IR 3692; readopted filed Jan
329 IAC 9-1-35"Overfill release" defined
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23
Sec. 35. "Overfill release" means a release that occurs when a tank is filled beyond its capacity, resulting in a discharge the
(Solid Waste Management Board; 329 IAC 9-1-35; filed Dec 1, 1992
regulated substance to the environment.
filed Jul 19, 1999, 12:00 p.m.: 22 IR 3692; readopted filed Jan
329 IAC 9-1-35.1"Owner" defined
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-11-2-150; IC 13-23
(Solid Waste Management Board; 329 IAC 9-1-35.1; filed
Sec. 35.1. "Owner" has the meaning as set forth in IC 13-11-2-15
Jul 19, 1999, 12:00 p.m.: 22 IR 3692; readopted filed Jan 10, 2001, 3:25 p.m.: 24 IR 1535)
329 IAC 9-1-35.2"Person" defined
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-11-2-158; IC 13-23
(Solid Waste Management Board; 329 IAC 9-1-35.2;
Sec. 35.2. "Person" has the meaning as set forth in IC 13-11-2-158(d).
filed Jul 19, 1999, 12:00 p.m.: 22 IR 3692; readopted filed Jan
Indiana Administrative CodePage 13
UNDERGROUND STORAGE TANKS
329 IAC 9-1-36"Petroleum UST system" defined
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23
Sec. 36. "Petroleum UST system" means an UST system that contain
quantities of other regulated substances. Such systems include t
(1) Motor fuels.
(2) Jet fuels.
(3) Distillate fuel oils.
(4) Residual fuel oils.
(5) Lubricants.
(6) Petroleum solvents.
(7) Used oils.
(Solid Waste Management Board; 329 IAC 9-1-36; filed Dec 1, 1992, 5:00 p.m.: 16 IR 1066; filed Jul 19,
3692; readopted filed Jan 10, 2001, 3:25 p.m.: 24 IR 1535; filed Aug 30, 2004, 9:35 a.m.: 28 IR 147)
329 IAC 9-1-36.5"Piezometer" defined
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23
Sec. 36.5. "Piezometer" means a type of monitoring well or other device that is constructed for the purpose of measuring
(Solid Waste Management Board; 329 IAC 9-1-36.5; filed Aug 30, 2004, 9:35 a.m.: 28 IR 147)
hydraulic head in the ground water.
329 IAC 9-1-37"Pipe" or "piping" defined
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-18-17-6; IC 13-23-3
Sec. 37. (a) "Pipe" or "piping" means a hollow cylinder or tubular conduit that is constructed of nonearthen materials that
routinely contains and conveys regulated substances from the tanm
includes a suction system for product delivery under 329 IAC 9-7
(Solid Waste
(b) The term does not include vent, vapor recovery, or fill lines that do not routinely contain regulated substances.
Management Board; 329 IAC 9-1-37; filed Dec 1, 1992, 5:00 p.m.: 16 IR 1067; readopted filed Jan 10, 2001, 3:25 p.m.: 24 IR 153;
filed Aug 3, 2009, 1:48 p.m.: 20090902-IR-329080055FRA)
329 IAC 9-1-38"Pipeline facilities" defined
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23
Sec. 38. "Pipeline facilities", including gathering lines, means the following:
(1) New and existing pipe rights-of-way.
(2) Any associated equipment, facilities, or buildings.
(Solid Waste Management Board; 329 IAC 9-1-38; filed Dec 1, 1992, 5:00 p.m.: 16 IR 1067; filed Jul 19, 1999, 12:00 p.m.: 22 IR
3693; readopted filed Jan 10, 2001, 3:25 p.m.: 24 IR 1535)
329 IAC 9-1-38.1"Product" defined
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-11-2-183; IC 13-23
(Solid Waste Management Board; 329 IAC 9-1-38.1; filed Jul 19, 1
Sec. 38.1. "Product" means regulated substance.
p.m.: 22 IR 3693; readopted filed Jan 10, 2001, 3:25 p.m.: 24 IR
Indiana Administrative CodePage 14
UNDERGROUND STORAGE TANKS
329 IAC 9-1-38.2"Regulated substance" defined (Repealed)
(Repealed by Solid Waste Management Board; filed May 7, 2010, 10:02 a.m.: 20100602-IR-329070468FRA)
Sec. 38.2.
329 IAC 9-1-38.3"Release" defined (Repealed)
(Repealed by Solid Waste Management Board; filed May 7, 2010, 10:02 a.m.: 20100602-IR-329070468FRA)
Sec. 38.3.
329 IAC 9-1-38.5"Red tag" defined
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2; 42 U.S.C. 6991
Affected:IC 13-13-1-1; IC 13-23
Sec. 38.5. "Red tag" means the device, such as a tamper-resistant strap, fill pipe bag, or any combination thereof, that identifies
(Solid Waste
an underground storage tank system as ineligible to receive a regulated substance or the act of applying such device.
Management Board; 329 IAC 9-1-38.5; filed May 7, 2010, 10:02 a.m.: 20100602-IR-329070468FRA)
329 IAC 9-1-38.7"Regulated substance" defined
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2; 42 U.S.C. 6991
Affected:IC 13-11-2-183; IC 13-23
(Solid Waste Management Board; 329 IAC 9-1-
Sec. 38.7. "Regulated substance" has the meaning set forth in IC 13-11-2-183.
38.7; filed May 7, 2010, 10:02 a.m.: 20100602-IR-329070468FRA)
329 IAC 9-1-38.9"Release" defined
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2; 42 U.S.C. 6991
Affected:IC 13-11-2-184; IC 13-23
(Solid Waste Management Board; 329 IAC 9-1-38.9; filed
Sec. 38.9. "Release" has the meaning set forth in IC 13-11-2-184(a).
May 7, 2010, 10:02 a.m.: 20100602-IR-329070468FRA)
329 IAC 9-1-39"Release detection" defined
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23
Sec. 39. "Release detection" means determining whether a release of a regulated substance has occurred from the UST system
into any of the following:
(1) The environment.
(2) The interstitial space between the UST system and its secondary barrier or secondary containment around it.
(Solid Waste Management Board; 329 IAC 9-1-39; filed Dec 1, 1992, 5:00 p.m.: 16 IR 1067; filed Jul 19, 1999, 12:00 p.m.: 22 IR
3693; readopted filed Jan 10, 2001, 3:25 p.m.: 24 IR 1535)
329 IAC 9-1-39.5"Removal closure" defined
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23
(Solid Waste Management
Sec. 39.5. "Removal closure" means a closure where an UST system is completely extracted.
Board; 329 IAC 9-1-39.5; filed Aug 30, 2004, 9:35 a.m.: 28 IR 14
329 IAC 9-1-40"Repair" defined
Authority:IC 13-7
Affected:IC 13-7-20-12; IC 13-7-20-13
Indiana Administrative CodePage 15
UNDERGROUND STORAGE TANKS
Sec. 40. "Repair" means to restore a tank or UST system component that has caused a release of product from the UST system.
(Solid Waste Management Board; 329 IAC 9-1-40; filed Dec 1, 1992ed filed Jan 10, 2001, 3:25 p.m.:
24 IR 1535)
329 IAC 9-1-40.5"Replaced" defined
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-18-17-6; IC 13-23-3
Sec. 40.5. "Replaced" means the permanent removal from service and the new installation of any of the following:
(1) An underground storage tank.
(2) More than fifty percent (50%) of the length of any underground piping between the tank and the dispenser or other end-use
equipment at any one (1) time.
(3) A motor fuel dispenser system and the equipment necessary to
system. For purposes of this definition, this equipment includes
that are beneath the dispenser and connect the dispenser to the
(Solid Waste Management Board; 329 IAC 9-1-40.5; filed Aug 3, 2009, 1:48 p.m.: 20090902-IR-329080055FRA)
329 IAC 9-1-41"Residential tank" defined (Repealed)
(Repealed by Solid Waste Management Board; filed Aug 30, 2004, 9
Sec. 41.
329 IAC 9-1-41.1"SARA" defined (Repealed)
(Repealed by Solid Waste Management Board; filed Aug 30, 2004, 9
Sec. 41.1.
329 IAC 9-1-41.5"SARA" defined
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23
Sec. 41.5. "SARA" means the Superfund Amendments and Reauthorization Act of 1986, as amended, 42 U.S.C. 9601, et seq.,
in effect on September 30, 1996, that amends the Comprehensive Environmental Response, Compensation, and Liability Act of
(Solid Waste Management Board; 329 IAC 9-1-41.5; filed Aug 30, 2004, 9:35 a.m.: 28 IR 147)
1980.
329 IAC 9-1-41.8"Secondary containment" defined
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-18-17-6; IC 13-23-3
Sec. 41.8. "Secondary containment" means a release detection system that meets the requirements of 329 IAC 9-7-4(7), but
(Solid Waste Management Board; 329 IAC 9-1-41.8; filed Aug 3, 20
does not include an under-dispenser spill containment system.
1:48 p.m.: 20090902-IR-329080055FRA)
329 IAC 9-1-42"Septic tank" defined
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23
Sec. 42. "Septic tank" means a water tight covered receptacle designed to receive or process, through liquid separation or
biological digestion, the sewage discharged from a building sewe The effluent from such receptacle is distributed for disposal
(Solid Waste
through the soil. Settled solids and scum from the tank are pumped out periodically and hauled to a treatment facility.
Management Board; 329 IAC 9-1-42; filed Dec 1, 1992, 5:00 p.m.: 16 IR 1067; filed Jul 19, 1999, 12:00 p.m.: 22 IR 3693; readed
filed Jan 10, 2001, 3:25 p.m.: 24 IR 1535)
Indiana Administrative CodePage 16
UNDERGROUND STORAGE TANKS
329 IAC 9-1-42.1"Source area" defined (Repealed)
(Repealed by Solid Waste Management Board; filed Aug 30, 2004, 9
Sec. 42.1.
329 IAC 9-1-43"Stormwater or wastewater collection system" defined
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23
Sec. 43. "Stormwater or wastewater collection system" means piping, pumps, conduits, and any other equipment necessary
to collect and transport the flow of:
(1) surface water run-off resulting from precipitation; or
(2) domestic, commercial, or industrial wastewater;
to and from retention areas or any areas where treatment is desies
(Solid Waste Management Board; 329 IAC 9-1-43; filed Dec 1, 1992
not include treatment except where incidental to conveyance.
5:00 p.m.: 16 IR 1067; filed Jul 19, 1999, 12:00 p.m.: 22 IR 3694; readopted filed Jan 10, 2001, 3:25 p.m.: 24 IR 1535)
329 IAC 9-1-44"Surface impoundment" defined
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23
Sec. 44. "Surface impoundment" means a:
(1) natural topographic depression;
(2) manmade excavation; or
(3) diked area formed primarily of earthen materials that may be lined with manmade materials;
(Solid Waste Management Board; 329 IAC 9-1-44; filed Dec 1, 1992, 5:00 p.m.: 16 IR 1067; filed Jul
that is not an injection well.
19, 1999, 12:00 p.m.: 22 IR 3694; readopted filed Jan 10, 2001, 3:25 p.m.: 24 IR 1535)
329 IAC 9-1-45"Tank" defined
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23
Sec. 45. "Tank" means a stationary device designed to contain an accumulation of regulated substances and constructed of
nonearthen materials that may include any:
(1) concrete;
(2) steel; or
(3) plastic;
(Solid Waste Management Board; 329 IAC 9-1-45; filed Dec 1, 1992, 5:00 p.m.: 16 IR 1067; filed
that provides structural support.
Jul 19, 1999, 12:00 p.m.: 22 IR 3694; readopted filed Jan 10, 2001, 3:25 p.m.: 24 IR 1535)
329 IAC 9-1-45.5"Under-dispenser spill containment" defined
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-18-17-6; IC 13-23-3
Sec. 45.5. (a) "Under-dispenser spill containment" means a device that is capable of preventing an unauthorized release from
under the dispenser from entering the soil or ground water, or b
(b) Under-dispenser spill containment must:
(1) not allow liquid to penetrate on any side or bottom;
(2) be compatible with the substance conveyed by the piping; and
(3) allow for visual inspection and access to the components in
(Solid Waste Management Board; 329 IAC 9-1-45.5; filed Aug 3, 2009, 1:48 p.m.: 20090902-IR-329080055FRA)
Indiana Administrative CodePage 17
UNDERGROUND STORAGE TANKS
329 IAC 9-1-46"Underground area" defined
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23
Sec. 46. "Underground area" means an underground room that may i
(1) basement;
(2) cellar;
(3) shaft; or
(4) vault;
(Solid
that provides enough space for physical inspection of the exteri of the tank situated on or above the surface of the floor.
Waste Management Board; 329 IAC 9-1-46; filed Dec 1, 1992, 5:00 p.m.: 16 IR 1067; filed Jul 19, 1999, 12:00 p.m.: 22 IR 369
readopted filed Jan 10, 2001, 3:25 p.m.: 24 IR 1535)
329 IAC 9-1-47"Underground release" defined
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23
(Solid Waste Management Board; 329 IAC
Sec. 47. "Underground release" means any release beneath the ground surface.
9-1-47; filed Dec 1, 1992, 5:00 p.m.: 16 IR 1068; readopted filed Jan 10, 2001, 3:25 p.m.: 24 IR 1535; filed Aug 30, 2004, 9:35
a.m.: 28 IR 147)
329 IAC 9-1-47.1"Underground storage tank" or "UST" defined
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-11-2-241
(Solid Waste Management
Sec. 47.1. "Underground storage tank" or "UST" has the meaning s
Board; 329 IAC 9-1-47.1; filed Jul 19, 1999, 12:00 p.m.: 22 IR 3694; readopted filed Jan 10, 2001, 3:25 p.m.: 24 IR 1535; file
Aug 30, 2004, 9:35 a.m.: 28 IR 147)
329 IAC 9-1-48"Upgrade" defined
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23
Sec. 48. "Upgrade" means the addition or retrofit of a system that may include any:
(1) cathodic protection;
(2) lining; or
(3) spill and overfill controls;
(Solid Waste Management Board; 329 IAC 9-1-48; filed
to improve the ability of a UST system to prevent the release of product.
Dec 1, 1992, 5:00 p.m.: 16 IR 1068; errata, 16 IR 1955; filed Jul 19, 1999, 12:00 p.m.: 22 IR 3694; readopted filed Jan 10, 201,
3:25 p.m.: 24 IR 1535)
329 IAC 9-1-49"UST system" or "tank system" defined
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23
Sec. 49. "UST system" or "tank system" means the following:
(1) Underground storage tank.
(2) Connected underground piping.
(3) Underground ancillary equipment.
(4) Containment system, if any.
(Solid Waste Management Board; 329 IAC 9-1-49; filed Dec 1, 1992, 5:00 p.m.: 16 IR 1068; filed Jul 19, 1999, 12:00 p.m.: 22 IR
Indiana Administrative CodePage 18
UNDERGROUND STORAGE TANKS
3695; readopted filed Jan 10, 2001, 3:25 p.m.: 24 IR 1535)
329 IAC 9-1-50"Wastewater treatment tank" defined
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23
Sec. 50. "Wastewater treatment tank" means a tank that is designed to receive and treat an influent wastewater through:
(1) physical;
(2) chemical; or
(3) biological methods.
(Solid Waste Management Board; 329 IAC 9-1-50; filed Dec 1, 1992, 5:00 p.m.: 16 IR 1068; filed Jul 19, 1999, 12:00 p.m.: 22 IR
3695; readopted filed Jan 10, 2001, 3:25 p.m.: 24 IR 1535)
329 IAC 9-1-51References to federal laws (Repealed)
(Repealed by Solid Waste Management Board; filed Jul 19, 1999, 1
Sec. 51.
329 IAC 9-1-52"Wellhead protection area" or "WHPA" defined
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23
Sec. 52. "Wellhead protection area" or "WHPA" has the meaning set forth in 327 IAC 8-4.1-1(27) under rules adopted by the
(Solid Waste Management Board; 329 IAC 9-1-52; filed Jul 19, 199
water pollution control board.
readopted filed Jan 10, 2001, 3:25 p.m.: 24 IR 1535)
Rule 2.Performance Standards
329 IAC 9-2-1New UST systems
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-11-2-184; IC 13-23; IC 25-31-1
Sec. 1. In order to prevent releases due to structural failure, m is
used to store regulated substances, all owners and operators of new UST systems shall meet the following requirements:
(1) Each tank must be properly designed and constructed, and any portion underground that routinely contains product must
be protected from corrosion as specified under one (1) of the fo
(A) The tank is constructed of fiberglass-reinforced plastic and meets one (1) of the following:
(i) Underwriters Laboratories Standard 1316, "Glass-Fiber-Reinforced Plastic Underground Storage Tanks for
Petroleum Products, Alcohol, and Alcohol-Gasoline Mixtures", revised 1996, Underwriters Laboratories Inc., 333
Pfingsten Road, Northbrook, Illinois 60062.
(ii) Underwriters Laboratories of Canada CAN/ULC-S615-1998, "Standard for Reinforced Plastic Underground
Tanks for Flammable and Combustible Liquids", 1998, Underwriters Laboratories of Canada, 7 Crouse Road,
Scarborough, Ontario, M1R 3A9 Canada.
(iii) ASTM D4021-86, "Standard Specification for Glass-Fiber-Reinforced Polyester Underground Petroleum
Storage Tanks", revised 1992, American Society for Testing and Materials, 100 Barr Harbor Drive, West
Conshohocken, Pennsylvania 19428-2959.
(B) The tank is constructed of steel and cathodically protected
(i) The tank is:
(AA) coated with a suitable dielectric material; and
(BB) cathodically protected.
(ii) Field-installed impressed current systems are designed by a corrosion expert to allow determination of current
operating status under 329 IAC 9-3.1-2(3).
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UNDERGROUND STORAGE TANKS
(iii) Cathodic protection systems are operated and maintained un
(iv) The tank complies with one (1) or more of the following:
(AA) Steel Tank Institute "sti-P® Specification and Manual for External Corrosion Protection of
3
Underground Steel Storage Tanks", STI-P3-98, revised 1998, Steel Tank Association, 570 Oakwood Road,
Lake Zurich, Illinois 60047.
(BB) Underwriter Laboratories Standard 1746, "External Corrosion
Underground Storage Tanks", 2000, Underwriters Laboratories Inc., 333 Pfingsten Road, Northbrook,
Illinois 60062.
(CC) Underwriters Laboratories of Canada CAN/ULC-S603-92, "Standards for Steel Underground Tanks
for Flammable and Combustible Liquids", 1992, Underwriters Laboratories of Canada, 7 Crouse Road,
Scarborough, Ontario, M1R 3A9 Canada.
(DD) Underwriter Laboratories of Canada CAN/ULC-S603.1-92, "Stan
Protection Systems for Steel Underground Tanks for Flammable and Combustible Liquids", 1992,
Underwriters Laboratories of Canada, 7 Crouse Road, Scarborough, Ontario, M1R 3A9 Canada.
(EE) Underwriters Laboratories of Canada CAN4-S631-M84, "Isolating Bushings for Steel Underground
Tanks Protected with Coatings and Galvanic Systems", 1992, Underwriters Laboratories of Canada, 7
Crouse Road, Scarborough, Ontario, M1R 3A9 Canada.
(FF) NACE International (formerly the National Association of Corrosion Engineers) Standard RP0285-95,
"Corrosion Control of Underground Storage Tank Systems by Cathod
International, P.O. Box 218340, Houston, Texas 77218-8340.
(GG) Underwriters Laboratories Standard 58, "Steel Underground Tanks for Flammable and Combustible
Liquids", 1998, Underwriters Laboratories Inc., 333 Pfingsten Ro
(C) The tank is constructed of a steel-fiberglass-reinforced-pla
following:
(i) Underwriters Laboratories Standard 1746, "External Corrosion Protection Systems for Steel Underground
Storage Tanks", 2000, Underwriters Laboratories Inc., 333 Pfingsten Road, Northbrook, Illinois 60062.
(ii) Association for Composite Tanks ACT-100®, "Specification for External Corrosion Protection of FRP
Composite Steel USTs, F894-98", revised 1998, Steel Tank Association, 570 Oakwood Road, Lake Zurich,
Illinois 60047.
(D) The tank is constructed of metal without additional corrosion protection measures provided that the following
requirements are completed:
(i) The tank is installed at a site that is determined by a corrosion expert not to be corrosive enough to cause it
to have a release due to corrosion during its operating life.
(ii) The owner and operator shall demonstrate that soil resistivity in an installation location is twelve thousand
(12,000) ohms per centimeter or greater by using one (1) of the
(AA) ASTM Standard G57-95a, "Standard Test Method for Field Measurement of Soil Resistivity Using
the Wenner Four-Electrode Method", revised 1995, reapproved 2001. American Society for Testing and
Materials, 100 Barr Harbor Drive, West Conshohocken, Pennsylvani
(BB) A standard approved by the commissioner that exhibits the s
accuracy as ASTM Standard G57-95a cited in subitem (AA).
(iii) The owner and operator shall maintain records that demonstrate compliance with items (i) and (ii) for the
remaining life of the tank.
(E) The tank construction and corrosion protection are determined by the commissioner to be designed to prevent the
release or threatened release of any stored regulated substance in a manner that is no less protective
and the environment than clauses (A) through (D).
(2) The piping that routinely contains regulated substances and is in contact with the ground must be properly designed,
constructed, and protected from corrosion. The piping that routiy contains regulated substances and is in contact with the
ground must be properly designed, constructed, and protected from corrosion as specified under one (1) of the following:
(A) The piping is constructed of fiberglass-reinforced plastic and complies with one (1) or more of the following:
(i) Underwriters Laboratories Standard 971, "Nonmetallic Underground Piping for Flammable Liquids", 1995,
Underwriters Laboratories Inc., 333 Pfingsten Road, Northbrook,
Indiana Administrative CodePage 20
UNDERGROUND STORAGE TANKS
(ii) Underwriters Laboratories Standard 567, revised 2001, "Pipe Connectors for Petroleum Products and LP Gas",
Underwriters Laboratories Inc., 333 Pfingsten Road, Northbrook,
(iii) Underwriters Laboratories of Canada Subject CAN/ORD-C 107.7-1993 "Glass Fibre Reinforced Plastic Pipe
and Fittings for Flammable and Combustible Liquids", 1993 First Edition, Underwriters Laboratories of Canada,
7 Crouse Road, Scarborough, Ontario, M1R 3A9 Canada.
(iv) Underwriters Laboratories of Canada Standard CAN/ULC-S633-99, "Flexible Underground Hose Connectors
for Flammable and Combustible Liquids", 1999, Underwriters Laboratories of Canada, 7 Crouse Road,
Scarborough, Ontario, M1R 3A9 Canada.
(B) The piping is constructed of steel and cathodically protecte
(i) The piping is:
(AA) coated with a suitable dielectric material; and
(BB) cathodically protected.
(ii) Field-installed impressed current systems are designed by a corrosion expert to allow determination of current
operating status under 329 IAC 9-3.1-2(3).
(iii) Cathodic protection systems are operated and maintained un
(iv) The piping system meets one (1) or more of the following:
(AA) "Flammable and Combustible Liquids", of the Indiana Fire Code under rules of the fire prevention
and building safety commission at 675 IAC 22.
(BB) American Petroleum Institute Recommended Practice 1615, "In
Storage Systems", Fifth Edition, March 1996, American Petroleum
Washington, D.C. 20005-4070.
(CC) American Petroleum Institute Recommended Practice 1632, "Cathodic Protection of Underground
Petroleum Storage Tanks and Piping Systems", Third Edition, May 1996, American Petroleum Institute,
1220 L Street NW, Washington, D.C. 20005-4070.
(DD) Nace International (formerly the National Association of Corrosion Engineers) Standard RP0169-96,
"Control of External Corrosion on Underground or Submerged Metal
NACE International, P.O. Box 218340, Houston, Texas 77218-8340.
(C) The piping is constructed of metal without additional corrosion protection measures provided that the following
requirements are completed:
(i) The piping is installed at a site that is determined by a corrosion expert not to be corrosive enough to cause
it to have a release due to corrosion during its operating life.
(ii) The owner and operator shall demonstrate that soil resistivity in an installation location is twelve thousand
(12,000) ohms per centimeter or greater by using one (1) of the
(AA) ASTM Standard G57-95a, "Standard Test Method for Field Measurement of Soil Resistivity Using
the Wenner Four-Electrode Method", revised 1995, reapproved 2001
Materials, 100 Barr Harbor Drive, West Conshohocken, Pennsylvani
(BB) A standard approved by the commissioner that exhibits the s
accuracy as ASTM Standard G57-95a cited in subitem (AA).
(iii) The piping complies with one (1) or more of the following:
(AA) "Flammable and Combustible Liquids", of the Indiana Fire Code under rules of the fire prevention
and building safety commission at 675 IAC 22.
(BB) Nace International (formerly the National Association of Corrosion Engineers) Standard RP0169-96,
"Control of External Corrosion on Underground or Submerged Metal
NACE International, P.O. Box 218340, Houston, Texas 77218-8340.
(iv) The owner and operator shall maintain records that demonstrate compliance with items (i) and (ii) for the
remaining life of the piping.
(D) Notwithstanding the requirements in section 1.1 of this rule, all connected piping, installed or replaced after the
effective date of the 2009 amendments to this rule, must be equipped with secondary containment, and the connected
piping and secondary containment must meet the following standar
(i) Contain regulated substances released from the piping until the regulated substance can be detected and
removed.
Indiana Administrative CodePage 21
UNDERGROUND STORAGE TANKS
(ii) Prevent the release of regulated substances to the environment at any time during the operational life of the
piping.
(iii) Be checked for evidence of a release by:
(AA) being monitored for releases at least every thirty (30) day
(BB) pressure testing upon installation, again six (6) months af
months thereafter.
(iv) Be interstitially monitored and the interstitial monitoring device must be located in the interstitial space
between the walls and meet the following as appropriate:
(AA) The interstitial space is under a vacuum or pressure.
(BB) The interstitial space is liquid-filled.
(CC) The interstitial space is monitored continually.
(v) Was or will be installed, calibrated, operated, and maintained in accordance with the manufactu
instructions, including routine maintenance and service checks f
(vi) Monitoring devices between the inner and outer barriers of the piping can detect a leak or release of product
from the primary barrier.
(vii) Meets the standard Underwriters Laboratory Standard 971, "
Liquids", 1995, Underwriters Laboratories, Inc., 333 Pfingsten R
(viii) Is either of the following:
(AA) Connected piping is one hundred percent (100%) secondarily contained.
(BB) Secondarily contained piping with single-walled piping ends that terminate in tank and dispenser
sumps.
(ix) Include one (1) of the following:
(AA) Double-walled piping that consists of an outer wall constructed of a dielectric material.
(BB) Vaulted piping.
(x) After the effective date of the 2009 amendments to this rule, any construction design releases:
(AA) that were issued by the department of homeland security, division of fire and building safety under
rules of the fire prevention and building safety commission at 6
(BB) where construction has not commenced;
must be amended to include secondary containment of connected piping that meets all the standards of this
subdivision and resubmitted for release by the department of hom
safety. For purposes of this item, "release" does not have the meaning as specified in IC 13-11-2-184.
(E) The piping construction and corrosion protection are determined by the commissioner to be designed to prevent the
release or threatened release of any stored regulated substance in a manner that is no less protective
and the environment than the requirements of clauses (A) through
(3) The following spill and overfill requirements must be comple
(A) Except as provided in clause (B), the owner and operator shall use the following spill and overfill prevention
equipment to prevent spilling and overfilling associated with product transfer to the UST system:
(i) Spill prevention equipment that prevents the release of product to the environment when the transfer hose is
detached from the fill pipe as one (1) of the following:
(AA) Minimum five (5) gallon spill catchment basin with drain to
(BB) Minimum twenty-five (25) gallon spill catchment basin witho
(ii) Overfill prevention equipment that completes one (1) of the
(AA) Automatically shuts off flow into the tank when the tank is
full.
(BB) Alerts the transfer operator when the tank is not more than ninety percent (90%) full by restricting
the flow into the tank or triggering a high level alarm.
(CC) Restricts flow thirty (30) minutes prior to overfilling, alerts the transfer operator with a high level
alarm one (1) minute before overfilling, or automatically shuts
fittings located on top of the tank are exposed to product due t
(B) The owner and operator are not required to use the spill and overfill prevention equipment specified in clause (A)
if one (1) of the following is completed:
Indiana Administrative CodePage 22
UNDERGROUND STORAGE TANKS
(i) Alternative equipment is used that is determined by the commissioner to be not less protective of human health
and the environment than the equipment specified in clause (A).
(ii) The UST system is filled by transfers of not more than twenty-five (25) gallons at one (1) time.
(C) A drop tube for deliveries must extend to within one (1) foo
(4) Under-dispenser containment, as defined in 329 IAC 9-1-45.5, is required for the following:
(A) Any new motor fuel dispenser installed at a new underground
(B) Any new motor fuel dispenser installed at a new location at
(C) Any replaced motor fuel dispenser installed at an existing u
piping or equipment is added to the underground storage tank system to connect the replaced dispenser to the existing
system.
(5) All tanks and piping must be installed properly in accordanc
(A) American Petroleum Institute Recommended Practice 1615, "Ins
Systems", Fifth Edition, March 1996, American Petroleum Institute, 1220 L Street NW, Washington, D.C. 20005-4070.
(B) Petroleum Equipment Institute Publication PEI/RP100-2000, "Recommended Practices for Installation of
Underground Liquid Storage Systems", 2000, Petroleum Equipment Institute, P.O. Box 2380, Tulsa, Oklahoma 74101-
2380.
(C) American National Standards Institute Standard ANSI/ASME B31.3-1999, "Process Piping", 1999, American
National Standards Institute, 11 West 42nd Street, New York, New
(D) American National Standards Institute Standard ANSI/ASME B31.4-1998 Edition, "Pipeline Transportation Systems
for Liquid Hydrocarbons and Other Liquids", 1998, American National Standards Institute, 11 West 42nd Street, New
York, New York 10036.
(6) The owner and operator shall ensure the following:
(A) The installer has been certified by the department of homeland security, division of fire and building safety under
rules of the fire prevention and building safety commission at 6
(B) One (1) or more of the following methods of certification, testing, or inspection is used to demonstrate compliance
with subdivision (4):
(i) The installer has been certified by the tank and piping manu
(ii) The installation has been inspected and certified by a registered professional engineer under IC 25-31-1 with
education and experience in UST system installation.
(iii) The installation has been inspected and approved by one (1
(AA) The agency.
(BB) The department of homeland security, division of fire and building safety.
(iv) The owner and operator have complied with another method for ensuring compliance with subdivision (4)
that is determined by the commissioner to be not less protective
(C) The owner and operator shall provide a certification of compliance on the notification form under section 2 of this
rule.
(Solid Waste Management Board; 329 IAC 9-2-1; filed Dec 1, 1992,d Jul 19, 1999, 12:00 p.m.: 22 IR
3695; errata filed Sep 10, 1999, 9:08 a.m.: 23 IR 26; readopted 24 IR 1535; filed Aug 30, 2004, 9:35
a.m.: 28 IR 148; filed Aug 3, 2009, 1:48 p.m.: 20090902-IR-32908
329 IAC 9-2-1.1New UST systems within a one (1) year time of tra a community public water supply well
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-18-17-6; IC 13-23-3
Sec. 1.1. (a) This section applies to a new UST system that is installed within a one (1) year time of travel (TOT) to a
community public water supply system (CPWSS) well as defined in )
and where the appropriate person has been provided notice of theestablishment of the WPHA as provided in IC 13-18-17-6(d). The
one (1) year TOT as defined in rules of the water pollution control board at 327 IAC 8-4.1-1(25) is one (1) of the following:
(1) The one (1) year TOT established as part of a wellhead prote
accordance with rules of the water pollution control board at 32
(2) A fixed radius of one thousand five hundred (1,500) feet from the CPWSS well if, at the time of installation of the UST
Indiana Administrative CodePage 23
UNDERGROUND STORAGE TANKS
system, there has not been a one (1) year TOT established for that CPWSS as part of a WHPA that is delineated and approved
in accordance with rules of the water pollution control board at
(b) A new UST system that is installed in a one (1) year TOT under subsection (a) must meet the following requirements:
(1) An underground storage tank that is installed in a one (1) year TOT must be constructed with one (1) of the following
secondary containment systems:
(A) A double-walled tank with a monitoring device that:
(i) must be located in the interstitial space between the walls;
(ii) is installed, calibrated, operated, and maintained in accordance with the manufacturer's instruct
routine maintenance and service checks for operability or runnin
(B) A secondary barrier system that meets the following requirem
(i) The secondary barrier around the underground storage tank consists of artificially constructed material that
centimeters per second for water) to direct a release
is sufficiently thick and impermeable (no more than 1 x 10-6
to an observation well and allow its detection.
(ii) The barrier is compatible with the regulated substance stored so that a release from the UST system will not
cause a deterioration of the barrier allowing a release to pass
(iii) For cathodically protected tanks, the secondary barrier must be installed so that the secondary barrier does
not interfere with the proper operation of the cathodic protecti
(iv) The site is assessed to ensure that the secondary barrier is always above the ground water and not in a twenty-
five (25) year flood plain unless the barrier and observation we
(v) For a single-walled tank, an observation well that meets the
excavation zone of the tank:
(AA) The observation well must be clearly marked and secured to prevent damage and unauthorized access
and tampering.
(BB) The slotted portion of the observation well casing must be designed to prevent migration of natural
soils or filter pack into the well and to allow entry of regulated substance on the accumulated water into
the well under both high and low water conditions.
(CC) The observation well must be sealed from the ground surface to the top of the filter pack.
(DD) The continuous monitoring devices or manual methods used can detect the presence of at least one-
eighth () of an inch of free product on top of the accumulated water in
c
(EE) At least one (1) observation well must be placed downgradient of the underground storage tank or at
the lowest point of the underground storage tank excavation zone
(vi) The observation well must be monitored at least one (1) tim
(vii) The secondary barrier system is installed, calibrated, operated, and maintained in accordance with the
manufacturer's instructions, including routine maintenance and service checks for operability or running
condition.
(C) Other methods approved by the commissioner for secondary containment that provide substantially equal
environmental protection.
(2) Piping installation in a one (1) year TOT must be constructed with one (1) of the following secondary containment systems:
(A) Double-walled piping with a monitoring device that:
(i) must be located in the interstitial space between the walls;
(ii) is installed, calibrated, operated, and maintained in accordance with the manufacturer's instruct
routine maintenance and service checks for operability or runnin
(B) A secondary barrier system that meets the following requirem
(i) The secondary barrier around the piping consists of artificially constructed material that is sufficiently thick
and impermeable (no more than 1 x 10-6 centimeters per second for water) to direct a release to an obs
well and allow its detection.
(ii) The barrier is compatible with the regulated substance stored so that a release from the UST system will not
cause a deterioration of the barrier allowing a release to pass
(iii) For cathodically protected piping, the secondary barrier must be installed so that the secondary barrier does
not interfere with the proper operation of the cathodic protecti
(iv) The site is assessed to ensure that the secondary barrier is always above the ground water and not in a twenty-
Indiana Administrative CodePage 24
UNDERGROUND STORAGE TANKS
five (25) year flood plain unless the barrier and observation we
(v) For single-walled piping, an observation well that meets the
excavation zone of the piping:
(AA) The observation well must be clearly marked and secured to prevent damage and unauthorized access
and tampering.
(BB) The slotted portion of the observation well casing must be
soils or filter pack into the well and to allow entry of regulat
the well under both high and low water conditions.
(CC) The observation well must be sealed from the ground surface to the top of the filter pack.
(DD) The continuous monitoring devices or manual methods used can detect the presence of at least one-
eighth () of an inch of free product on top of the accumulated water in
c
(EE) At least one (1) observation well must be placed downgradient of the piping or at the lowest point of
the piping excavation zone.
(vi) The observation well must be monitored at least one (1) tim
(vii) The secondary barrier system is installed, calibrated, operated, and maintained in accordance with the
manufacturer's instructions, including routine maintenance and service checks for operability or running
condition.
(C) Other methods approved by the commissioner for secondary containment that provide substantially equal
environmental protection.
(Solid Waste Management Board; 329 IAC 9-2-1.1; filed Jul 19, 1999, 12:00 p.m.: 22 IR 3698; readopted filed Jan 10, 2001, 3:25
p.m.: 24 IR 1535)
329 IAC 9-2-2Notification requirements
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23-3
Sec. 2. (a) All notifications required to be submitted under this section must be submitted on a form and in a format prescribed
by the commissioner.
(b) Any person who owns an UST system or tank shall, within thirty (30) days of owning such an UST system or tank or
bringing such tank or UST system into use, submit notice to the ST
system "into use" means the tank or UST system contains or has:
(1) contained a regulated substance; and
(2) not been closed under 329 IAC 9-6.
(c) An owner required to submit notice under this section shall provide notice for each tank the owner owns. The owner may
provide notice for several tanks at one (1) location using one (form. An owner with tanks located in more than one (1) place of
operation shall submit a separate notification form for each separate place of operation.
(d) An owner required to submit notice under this section shall provide all the information required by the form provided by
the agency for each tank for which notice is submitted.
(e) All owners and operators of new or replaced UST systems shall certify, on each notification form submitted, with origina
signature in ink, compliance with the following requirements:
(1) Installation of all tanks and piping under section 1(5) of this rule.
(2) Cathodic protection of steel tanks and piping under section 1(1) and 1(2) of this rule.
(3) Release detection under 329 IAC 9-7-2 and 329 IAC 9-7-3.
(4) Financial responsibility under 329 IAC 9-8.
(f) All owners and operators of UST systems shall ensure that wh
(1) installations;
(2) testing;
(3) upgrades;
(4) closures;
(5) removals; and
(6) change-in-service;
Indiana Administrative CodePage 25
UNDERGROUND STORAGE TANKS
is certified by the department of homeland security, division of fire and building safety. The certified person who performs the work
shall certify, by original signature in ink on the notification rm provided by the agency, that the work performed complies with
methods specified by section 1(4) of this rule.
(g) All owners and operators of UST systems who upgrade the tank system to meet upgrade requirements under 329 IAC 9-2.1
shall, within thirty (30) days of completing the upgrade, submit notice of the upgrade to the agency.
(h) All owners and operators of UST systems who:
(1) temporarily close a tank system under 329 IAC 9-6-5; or
(2) close a tank system under 329 IAC 9-6-1;
shall, within thirty (30) days of completing such action, submit notice of this action to the agency.
(i) All owners and operators of UST systems who install a method of release detection under 329 IAC 9-7-2 and 329 IAC 9-7-
shall, within thirty (30) days of completing such action, submit notice of this action to the agency.
(j) Any person who sells a facility with a regulated underground
(1) is being used as an UST system; or
(2) will be used as an UST system;
shall notify the purchaser of such tank of the owner's obligatio
(k) An owner and operator of an UST system that is:
(1) in the ground on or after May 8, 1986; and
(2) not taken out of operational life on or before January 1, 19
shall notify the agency of the service status of the UST system under 42 U.S.C. 6991a of the Solid Waste Disposal Act, as amended
by the Resource Conservation and Recovery Act, as amended, 42 U.S.C. 6901, et seq., in effect on September 30, 1996, on a form
(Solid Waste Management Board; 329 IAC 9-2-2; filed Dec 1, 1992,
provided by the agency for this notification.
1068; filed Jul 19, 1999, 12:00 p.m.: 22 IR 3699; readopted fileJan 10, 2001, 3:25 p.m.: 24 IR 1535; filed Aug 30, 2004, 9:35 a.m.:
28 IR 150; errata filed Oct 7, 2004, 11:55 a.m.: 28 IR 608; filed Aug 3, 2009, 1:48 p.m.: 20090902-IR-329080055FRA)
Rule 2.1.Upgrading of Existing UST Systems
329 IAC 9-2.1-1Upgrading of existing UST systems
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23-3
Sec. 1. (a) All existing UST systems shall comply with one (1) of the following requirements no later than December 22, 1998:
(1) New UST system performance standards under 329 IAC 9-2-1.
(2) The upgrading requirements under subsections (b) through (d)
(3) Closure requirements under 329 IAC 9-6, including applicable requirements for corrective action under 329 IAC 9-5.
(b) A steel tank must be upgraded to meet one (1) of the followi
(1) A tank is upgraded by cathodic protection and the cathodic p
1(1)(B)(ii) and 329 IAC 9-2-1(1)(B)(iii), and the integrity of the tank is ensured using one (1) of the following methods:
(A) The tank is internally inspected and assessed to ensure that
prior to installing the cathodic protection system.
(B) The tank has been installed for less than ten (10) years and
4(4) through 329 IAC 9-7-4(8).
(C) The tank has been installed for less than ten (10) years and
tightness tests under 329 IAC 9-7-4(3) as follows:
(i) The first tightness test must be conducted prior to installing the cathodic protection system.
(ii) The second tightness test must be conducted between three (3) months and six (6) months following the first
operation of the cathodic protection system.
(D) The tank is assessed for corrosion holes by a method that is
in a manner that is no less protective of human health and the e
(2) A tank is upgraded by internal lining and the following requ
(A) The lining is installed under 329 IAC 9-3.1-4.
(B) Within one (1) year after lining and every five (5) years thereafter, the lining and tank are internally inspected and
Indiana Administrative CodePage 26
UNDERGROUND STORAGE TANKS
found to be structurally sound with the lining and tank still performing in accordance with requirements under 329 IAC
9-3.1-4.
(C) The tank may be lined one (1) time during the service life t
(D) If the lined tank cannot meet the performance standards under clause (B), closure of the tank according to 329 IAC
9-6 is required.
(3) A tank is upgraded by both internal lining and cathodic prot
(A) The lining is installed under 329 IAC 9-3.1-4.
(B) The cathodic protection system meets the requirements of 329 IAC 9-2-1(1)(B)(ii) and 329 IAC 9-2-1(
(4) A tank is upgraded by a method that is determined by the com
environment than the methods specified in subdivisions (1) throu
(5) The tank must comply with one (1) or more of the following:
(A) American Petroleum Institute Recommended Practice 1631, "Interior Lining and Periodic Inspections of
Underground Storage Tanks", Fifth Edition, June 2001, American Petroleum Institute, 1220 L Street NW, Washington,
D.C. 20005-4070.
(B) Nace International (formerly the National Association of Corrosion Engineers) Standard RP0285-95, "Corrosion
Control of Underground Storage Tank Systems by Cathodic Protecti
218340, Houston, Texas 77218-8340.
(C) American Petroleum Institute Recommended Practice 1632, "Cathodic Protection of Underground Petroleum
Storage Tanks and Piping Systems", Third Edition, May 1996, American Petroleum Institute, 1220 L Street NW,
Washington, D.C. 20005-4070.
(D) National Leak Prevention Association Standard 631, "Spill Prevention, Minimum 10 Year Life of Exis
Underground Storage Tanks by Lining Without the Addition of Cathodic Protection", revised 1992, National Leak
Prevention Association, Route 2, Box 106A, Falmouth, Kentucky 41
(c) Metal piping that routinely contains regulated substances an
(1) Be cathodically protected in accordance with one (1) or more of the following:
(A) "Flammable and Combustible Liquids", of the Indiana Fire Cod
(B) American Petroleum Institute Recommended Practice 1615, "Installation of Underground Petroleum Storage
Systems", Fifth Edition, March 1996, American Petroleum InstitutStreet NW, Washington, D.C. 20005-4070.
(C) American Petroleum Institute Recommended Practice 1632, "Cathodic Protection of Underground Petroleum
Storage Tanks and Piping Systems", Third Edition, May 1996, American Petroleum Institute, 1220 L Street NW,
Washington, D.C. 20005-4070.
(D) Nace International (formerly the National Association of Corrosion Engineers) Standard RP0169-96, "Control of
External Corrosion on Underground or Submerged Metallic Piping Systems", 1996 Edition, NACE International, P.O.
Box 218340, Houston, Texas 77218-8340.
(2) Meet the requirements of 329 IAC 9-2-1(2)(B)(ii) and 329 IAC 9-2-1(2)(B)(iii).
(d) All existing UST systems shall comply with the new UST syste
under 329 IAC 9-2-1(3) and 329 IAC 9-3.1-1 to prevent spilling aoverfilling associated with product transfer to the UST system.
(e) The owner and operator shall demonstrate compliance with this section by providing a certification of compliance on the
notification form under 329 IAC 9-2-2. The certification must defied
(Solid Waste Management Board; 329 IAC 9-2.1-1; filed Jul 19, 19
by the office of the state fire marshal.
3700; filed Aug 30, 2004, 9:35 a.m.: 28 IR 151)
Rule 3.Reporting and Record Keeping
329 IAC 9-3-1Reporting and record keeping
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23
Sec. 1. (a) The owner and operator of an UST system shall cooperate fully with inspections, monitoring, and testing conduct
by the agency, as well as requests for document submission, testing, and monitoring by the owner or operator under Section 900
(42 U.S.C. 6991d) of the Solid Waste Disposal Act, as amended by
Indiana Administrative CodePage 27
UNDERGROUND STORAGE TANKS
U.S.C. 6901, et seq., in effect on September 30, 1996.
(b) The owner and operator shall submit the following informatio
(1) Notification for all UST systems under 329 IAC 9-2-2 that in
(A) Certification of installation for new UST systems under 329
(B) Locational information within an accuracy of 1:24,000, plus or minus forty (40) feet, or plus or minus twelve and
two-tenths (12.2) meters in any of the following formats, if kno
(i) Universal transverse mercator (UTM) coordinates.
(ii) Latitude and longitude coordinates.
(iii) UTM coordinates and latitude and longitude coordinates.
(2) Reports of all releases, including the following:
(A) Suspected releases under 329 IAC 9-4-1.
(B) Spills and overfills under 329 IAC 9-4-4.
(C) Confirmed releases under 329 IAC 9-5-2.
(3) Corrective actions planned or taken, including the following
(A) Free product removal under 329 IAC 9-5-4.2.
(B) Initial abatement measures under 329 IAC 9-5-3.2.
(C) Initial site characterization under 329 IAC 9-5-5.1.
(D) Investigation of soil and ground water cleanup under 329 IAC
(E) Corrective action plan under 329 IAC 9-5-7.
(4) A notification upon completion of all upgrade activities under 329 IAC 9-2.1.
(5) A notification before closure or change-in-service under 329
(6) A notification upon completion of:
(A) temporary closure under 329 IAC 9-6-5; or
(B) closure or change-in-service under 329 IAC 9-6-1 and 329 IAC
(7) A notification upon completion of the installation of a method of release detection under 329 IAC 9-7-2 and 329 IAC 9-7-
3.
(8) Results of the site investigation conducted at closure or change-in-service under 329 IAC 9-6-4.
(9) Documentation supporting the suitability of the underground storage tank to be upgraded with cathodic protection. The
documentation must be submitted within thirty (30) days after the determination is completed under 329 IAC 9-2.1-1(b)(1).
The documentation must include a signed affidavit from the corrosion expert who designed the field-installed cathodic
protection system.
(10) Documentation supporting the suitability of the underground storage tank to be upgraded with an internal lining. The
documentation must be submitted within thirty (30) days after the determination is completed under 329 IAC 9-2.1-1(b)(2).
(11) Documentation supporting the suitability of the underground storage tank to be upgraded with an internal lining
combined with cathodic protection. The documentation must be submitted within thirty (30) days after the determination is
completed under 329 IAC 9-2.1-1(b)(3). The documentation also mu
(A) A report of the condition of the underground storage tank pr
(i) A diagram showing the location and size of any repair necessary to the interior of the underground storage
tank prior to lining.
(ii) A diagram showing the location and size of any repair neces
tank prior to cathodic protection.
(iii) Documentation showing the tank has met both thickness and
publications for upgrades under clause (B).
(B) The suitability of the tank for lining must meet the followi
(i) American Petroleum Institute Recommended Practice 1631, "Interior Lining and Periodic Inspections of
Underground Storage Tanks", Fifth Edition, June 2001, American Petroleum Institute, 1220 L Street NW,
Washington, D.C. 20005-4070.
(ii) Nace International (formerly the National Association of Corrosion Engineers) Standard RP0285-95,
"Corrosion Control of Underground Storage Tank Systems by Cathod
International, P.O. Box 218340, Houston, Texas 77218-8340.
(iii) American Petroleum Institute Recommended Practice 1632, "Cathodic Protection of Underground Petroleum
Indiana Administrative CodePage 28
UNDERGROUND STORAGE TANKS
Storage Tanks and Piping Systems", Third Edition, May 1996, American Petroleum Institute, 1220 L Street NW,
Washington, D.C. 20005-4070.
(12) Documentation of operation and maintenance of corrosion protection equipment under 329 IAC 9-3.1-2. The results of
the postinstallation cathodic protection:
(A) test for a galvanic cathodic protection system; and
(B) inspection for an impressed current cathodic protection syst
must be submitted within thirty (30) days after the test or inspection is completed for a new UST system and an upgraded UST
system.
(13) Documentation supporting the suitability of the excavation zone for the proper function of:
(A) vapor observation wells under 329 IAC 9-7-4(5); and
(B) ground water observation wells under 329 IAC 9-7-4(6);
as a method of release detection. The documentation must be submitted within thirty (30) days after the observation wells
installation is completed for a new UST system and an upgraded U
(14) Documentation supporting the suitability of the excavation zone to support a secondary barrier in the excavation zone
as a method of release detection under 329 IAC 9-7-4(7)(B). The documentation must be submitted within thirty (30) days
after the installation of the secondary barrier is completed for
(15) Documentation supporting the suitability of the secondary barrier as a method of release detection under 329 IAC 9-7-
4(7)(B). The documentation must be submitted within thirty (30) days after the installation of the secondary barrier is
completed for a new UST system and an upgraded UST system.
(c) The owner and operator shall maintain the following informat
(1) Documentation of operation and maintenance of corrosion protection equipment under 329 IAC 9-3.1-2. The results of
the postinstallation cathodic protection:
(A) test for a galvanic cathodic protection system; and
(B) inspection for an impressed current cathodic protection syst
must be maintained under subsections (d) and (e) within thirty (30) days after the test or inspection is completed for a new
UST system and an upgraded UST system.
(2) Documentation of UST system repairs under 329 IAC 9-3.1-4(b)
(3) Documentation of compliance with release detection requireme
(4) Results of the site investigation conducted at closure under
(5) Documentation supporting the suitability of the underground storage tank to be upgraded with cathodic protection. The
documentation must be maintained under subsections (d) and (e) within thirty (30) days after the determinatio
under 329 IAC 9-2.1-1(b)(1). The documentation must include a signed affidavit from the corrosion expert who designed the
field-installed cathodic protection system.
(6) Documentation supporting the suitability of the underground storage tank to be upgraded with an internal lining. The
documentation must be maintained under subsections (d) and (e) within thirty (30) days after the determinatio
under 329 IAC 9-2.1-1(b)(2).
(7) Documentation supporting the suitability of the underground storage tank to be upgraded with an internal lining combined
with cathodic protection. The documentation must be maintained under subsections (d) and (e) within thirty (30) days after
the determination is completed under 329 IAC 9-2.1-1(b)(3). The
(A) A report of the condition of the underground storage tank pr
(i) A diagram showing the location and size of any repair necessary to the interior of the underground storage
tank prior to lining.
(ii) A diagram showing the location and size of any repair neces
tank prior to cathodic protection.
(iii) Documentation showing the tank has met both thickness and
publications for upgrades under clause (B).
(B) A signed certification by a corrosion expert indicating the suitability of the tank for lining under the following:
(i) American Petroleum Institute Recommended Practice 1631, "Interior Lining and Periodic Inspections of
Underground Storage Tanks", Fifth Edition, June 2001, American Petroleum Institute, 1220 L Street NW,
Washington, D.C. 20005-4070.
(ii) Nace International (formerly the National Association of Corrosion Engineers) Standard RP0285-95,
Indiana Administrative CodePage 29
UNDERGROUND STORAGE TANKS
"Corrosion Control of Underground Storage Tank Systems by Cathod
International, P.O. Box 218340, Houston, Texas 77218-8340.
(iii) American Petroleum Institute Recommended Practice 1632, "Cathodic Protection of Underground Petroleum
Storage Tanks and Piping Systems", Third Edition, May 1996, American Petroleum Institute, 1220 L Street NW,
Washington, D.C. 20005-4070.
(8) Documentation supporting the suitability of the excavation zone for the proper function of:
(A) vapor observation wells under 329 IAC 9-7-4(5); and
(B) ground water observation wells under 329 IAC 9-7-4(6);
as a method of release detection. The documentation must be maintained under subsections (d) and (e) within thirty (30) days
after the observation wells installation is completed for a new
(9) Documentation supporting the suitability of the excavation zone to support a secondary barrier in the exc
a method of release detection under 329 IAC 9-7-4(7)(B). The doc
(e) within thirty (30) days after the installation of the second
UST system.
(10) Documentation supporting the suitability of the secondary barrier as a method of release detection under 329 IAC 9-7-
4(7)(B). The documentation must be maintained under subsections (d) and (e) within thirty (30) days after the installation of
the secondary barrier is completed for a new UST system and an u
(11) A corrosion expert's analysis of site corrosion potential i
1(1)(D) or 329 IAC 9-2-1(2)(C). The documentation must be maintained under subsections (d) and (e) within thirty (30) days
after the analysis is completed.
(12) All written performance claims that pertain to any release
been justified or tested by the equipment manufacturer or instal
following time periods:
(A) Five (5) years.
(B) The time period the release detection system is used.
(C) The time period of any unresolved litigation between the com
system.
(13) The results of any sampling, testing, or monitoring relatin
one (1) year except that the results of tank tightness testing conducted under 329 IAC 9-7-4(3) must be maintained until the
next test is conducted.
(14) Documentation of all calibration, maintenance, and repair of release detection equipment permanently located on-site
must be maintained for at least one (1) year after the servicing
(15) Any schedules of required calibration and maintenance provided by the release detection equipment m
be maintained for the longest of the following time periods:
(A) Five (5) years from the date of installation.
(B) The time period the release detection system is used.
(d) The owner and operator shall maintain the records required at:
(1) the underground storage tank site and immediately available
(2) a readily available alternative site and be provided for inspection to the agency upon request.
(e) In the case of closure records required under 329 IAC 9-6-4,the owner and operator are also provided with the additional
alternative of mailing closure records to the agency if they canbe kept at the site or an alternative site as allowed in subsection
(Solid Waste Management Board; 329 IAC 9-3-1; filed Dec 1, 1992, 5:00 p.m.: 16 IR 1069; file
(d)(2).
22 IR 3701; readopted filed Jan 10, 2001, 3:25 p.m.: 24 IR 1535; filed Aug 30, 2004, 9:35 a.m.: 28 IR 152)
329 IAC 9-3-1.2Secondary containment
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23
Sec. 1.2. The owner and operator of an UST system shall have all
piping secondarily contained as required under section 329 IAC 9-2-1(1), 329 IAC 9-2-1.1(b)(1), 329 IAC 9
(Solid Waste Management Board; 329 IAC 9-3-1.2; filed Aug 3, 200
329 IAC 9-2-1(2)(D) and 329 IAC 9-2-1.1(b)(2) for piping.
Indiana Administrative CodePage 30
UNDERGROUND STORAGE TANKS
1:48 p.m.: 20090902-IR-329080055FRA)
329 IAC 9-3-1.3Interstitial monitoring
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23
Sec. 1.3. The owner and operator of an UST system shall have all
piping interstitially monitored through a method that meets the requirements under 329 IAC 9-2-1.1(b)(1)(A) and 329 IAC 9-7-4(7)
(Solid Waste Management Board; 329 IAC 9-3-1.3; filed Aug
for tanks and 329 IAC 9-2-1.1(b)(2)(A) and 329 IAC 9-7-5 for pip
3, 2009, 1:48 p.m.: 20090902-IR-329080055FRA)
329 IAC 9-3-2Electronic reporting and submittal
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23
Sec. 2. Documentation required to be submitted to the agency by this article, with the exception of reports required under 3
IAC 9-4-4, may be submitted in an electronic format as prescribe
format must also be submitted as a paper copy unless the commissoner makes a determination that only an electronic copy is needed.
(Solid Waste Management Board; 329 IAC 9-3-2; filed Aug 30, 2004, 9:35 a.m.: 28 IR 155)
Rule 3.1.General Operating Requirements
329 IAC 9-3.1-1Spill and overfill control
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23
Sec. 1. (a) The owner and operator shall ensure the following:
(1) Releases due to spilling or overfilling do not occur.
(2) The volume available in the tank is greater than the volume
made.
(3) The transfer operation is monitored constantly to prevent ov
(4) The transfer operation complies with the "Flammable and Comb
the fire prevention and building safety commission at 675 IAC 22
(b) The owner and operator shall report, investigate, and clean up any spills and overfills under 329 IAC 9-4-4.
(Solid Waste
(c) Deliveries must be made through a drop tube that extends to
Management Board; 329 IAC 9-3.1-1; filed Jul 19, 1999, 12:00 p.m.: 22 IR 3704; filed Aug 30, 2004, 9:35 a.m.: 28 IR 155)
329 IAC 9-3.1-2Operation and maintenance of corrosion protection
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23
Sec. 2. The owner and operator of a steel UST system with corros
to ensure that releases due to corrosion are prevented for as long as the UST system is used to store regulated substances:
(1) All corrosion protection systems must be operated and maintained to continuously provide corrosion protection to the
metal components of that portion of the tank and piping that:
(A) routinely contain regulated substances; and
(B) are in contact with the ground.
(2) All UST systems equipped with galvanic cathodic protection s
cathodic protection tester under the following requirements:
(A) All galvanic cathodic protection systems must be tested with
(3) years thereafter.
Indiana Administrative CodePage 31
UNDERGROUND STORAGE TANKS
(B) Nace International (formerly the National Association of Corrosion Engineers) Standard RP0285-95, "Corrosion
Control of Underground Storage Tank Systems by Cathodic Protecti
218340, Houston, Texas 77218-8340.
(3) All UST systems with impressed current cathodic protection s
(A) inspected every sixty (60) days to ensure the equipment is running according to manufacturer's specifications; and
(B) tested within six (6) months of installation and at least every three (3) years thereafter.
(4) Records of the operation of the cathodic protection must be
with the performance standards in this section. These records mu
(A) The most recent three (3) inspections required in subdivision (3).
(B) Testing from the last two (2) inspections required in subdiv
(5) The owner and operator shall demonstrate compliance with this section by providing a certification of compliance on the
notification form under 329 IAC 9-2-2. The certification must de
certified by the office of the state fire marshal.
(Solid Waste Management Board; 329 IAC 9-3.1-2; filed Jul 19, 1999, 12:00 p.m.: 22 IR 3704; filed Aug 3
IR 155)
329 IAC 9-3.1-3Compatibility
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23
Sec. 3. (a) The owner and operator shall use an UST system made of or lined with materials that are compatible with the
regulated substance stored in the UST system.
(b) For tanks that store alcohol blends, one (1) or more of the following codes must be used to comply with subsection (a):
(1) American Petroleum Institute Recommended Practice 1626, "Storing and Handling Ethanol and Gasoline-Ethanol Blends
at Distribution Terminals and Service Stations", First Edition, April 1985, American Petroleum Institute, 1220 L Street NW,
Washington, D.C. 20005-4070.
(2) American Petroleum Institute Recommended Practice 1627, "Storage and Handling of Gasoline-Methanol/Cosolvent
Blends at Distribution Terminals and Service Stations", First Edugust 1986, American Petroleum Institute, 1220 L
Street NW, Washington, D.C. 20005-4070.
(Solid Waste Management Board; 329 IAC 9-3.1-3; filed Jul 19, 1999, 12:00 p.m.: 22 IR 3704; filed Aug 3
IR 156)
329 IAC 9-3.1-4Repairs and maintenance allowed
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23
Sec. 4. (a) The owner and operator of an UST system shall ensure that repairs and maintenance prevent releases due to:
(1) structural failure; or
(2) corrosion;
as long as the UST system is used to store regulated substances.
(b) The repairs and maintenance must meet the following requirem
(1) Repairs and maintenance to a steel UST system must be conducted in accordance with one (1) or more of the following:
(A) "Flammable and Combustible Liquids", of the Indiana Fire Cod
(B) American Petroleum Institute Recommended Practice 2200, "Repairing Crude Oil, Liquified Petroleum Gas, and
Product Pipelines", Third Edition, May 1994, American Petroleum Institute, 1220 L Street NW, Washington, D.C.
20005-4070.
(C) American Petroleum Institute Recommended Practice 1631, "Interior Lining and Periodic Inspect
Underground Storage Tanks", Fifth Edition, June 2001, American Petroleum Institute, 1220 L Street NW, Washington,
D.C. 20005-4070.
(D) National Leak Prevention Association Standard 631, "Spill Prevention, Minimum 10 Year Life of Exis
Underground Storage Tanks by Lining Without the Addition of Cathodic Protection", revised 1992, National Leak
Indiana Administrative CodePage 32
UNDERGROUND STORAGE TANKS
Prevention Association, Route 2, Box 106A, Falmouth, Kentucky 41
(2) Maintenance to a steel tank lined under section 2 of this rual
lined surface of the steel tank has had maintenance performed under subdivision (1). The tank must be closed according to
329 IAC 9-6.
(3) Repairs and maintenance to a fiberglass-reinforced plastic t
(A) manufacturer's authorized representative using the manufacturer's specifications; or
(B) owner or operator in accordance with one (1) or more of the following:
(i) Underwriters Laboratories Standard 1316, "Glass-Fiber-Reinfo
Petroleum Products, Alcohol, and Alcohol-Gasoline Mixtures", revised 1996, Underwriters Laboratories Inc.,
333 Pfingsten Road, Northbrook, Illinois 60062.
(ii) Codes listed in Class 6 of American Petroleum Institute Recommended Practice 1631, "Interior Lining and
Periodic Inspections of Underground Storage Tanks", Fifth Edition, June 2001, American Petroleum Insti
1220 L Street NW, Washington, D. C. 20005-4070.
(iii) National Leak Prevention Association Standard 631, "Spill Prevention, Minimum 10 Year Life of Existing
Steel Underground Storage Tanks by Lining Without the Addition of Cathodic Protection", revised 1992,
National Leak Prevention Association, Route 2, Box 106A, Falmout
(4) The requirements for repair and maintenance to pipes and fit
(A) Metal pipe sections and fittings that have released product as a result of corrosion or other damage must be
replaced.
(B) Fiberglass pipes and fittings may be repaired or have maintenance performed in accordance with the manufacturer's
specifications.
(5) The repaired tank and piping must be tightness tested under 329 IAC 9-7-4(3) and 329 IAC 9-7-5(2) within thirty (30)
days following the date of the completion of the repair except a
(A) The repaired tank is internally inspected in accordance with one (1) or more of the standards listed in subdivision
(1) or (3).
(B) The repaired portion of the UST system is monitored monthly
9-7-4(4) through 329 IAC 9-7-4(8).
(C) Another test method is used that is determined by the commis
the environment than those listed in clauses (A) and (B).
(6) Following the repair of any cathodically protected UST syste
(A) section 2(2) of this rule within six (6) months following th
(B) section 2(3) of this rule within sixty (60) days following the repair for an impressed current cathodic protection
system;
to ensure that it is operating properly.
(7) The UST system owner and operator shall maintain records of each repair for the remaining operating life of the UST
system that demonstrate compliance with this section. Maintenance must be documented but is not required to be reported
to the agency.
(8) The owner and operator shall demonstrate compliance with this section by providing a certification of compliance on the
notification form under 329 IAC 9-2-2. The certification must de
certified by the office of the state fire marshal.
(Solid Waste Management Board; 329 IAC 9-3.1-4; filed Jul 19, 1999, 12:00 p.m.: 22 IR 3705; filed Aug 3
IR 156)
Rule 4.Releases
329 IAC 9-4-1Reporting of suspected releases
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23
Sec. 1. The owner and operator of a UST system shall report to t
dures in 329 IAC 9-5-4.1 for any of the following conditions:
Indiana Administrative CodePage 33
UNDERGROUND STORAGE TANKS
(1) The discovery by the owner and operator or another person of released regulated substances at the underground storage
tank site or in the surrounding area. Released regulated substances may include the presence of free product or vapors in any
of the following:
(A) Soils.
(B) Basements.
(C) Storm sewer lines.
(D) Sanitary sewer lines.
(E) Utility lines.
(F) Nearby surface water.
(G) Ground water.
(2) Unusual operating conditions observed by the owner and operator that may include the erratic behavior of product
dispensing equipment, the sudden loss of product from the UST system, or an unexplained presence of water in the tank unless
the system equipment is:
(A) found to be defective but not leaking; and
(B) immediately repaired or replaced.
(3) Monitoring results from the release detection method require
release may have occurred unless:
(A) the monitoring device is:
(i) found to be defective; and
(ii) immediately repaired, recalibrated, or replaced;
and additional monitoring does not confirm the initial result; o
(B) in the case of inventory control, a second month of data does not confirm the initial result.
(Solid Waste Management Board; 329 IAC 9-4-1; filed Dec 1, 1992, 5:00 p.m.: 16 IR 1069; filed Jul 19, 1999, 12:00 p.m.: 22 IR
3706; readopted filed Jan 10, 2001, 3:25 p.m.: 24 IR 1535)
329 IAC 9-4-2Investigations due to off-site impacts
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23
Sec. 2. When required by the commissioner, the owner and operator of a UST system shall follow the procedures in section
3 of this rule to determine if the UST system is the source of off-site impacts. These impacts include the presence of regulatd
substances. The presence of regulated substances may include free or dissolved product or vapors in:
(1) soils;
(2) basements;
(3) storm sewer lines;
(4) sanitary sewer lines;
(5) utility lines;
(6) nearby surface waters;
(7) nearby drinking waters;
(8) irrigation ground waters; or
(9) thermal extraction ground waters;
(Solid Waste Management Board;
that have been observed by the agency or brought to the attentio
329 IAC 9-4-2; filed Dec 1, 1992, 5:00 p.m.: 16 IR 1070; filed Jul 19, 1999, 12:00 p.m.: 22 IR 3706; readopted filed Jan 10, 2001,
3:25 p.m.: 24 IR 1535)
329 IAC 9-4-3Release investigations and confirmation steps
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23
Sec. 3. Unless corrective action is initiated in accordance with 329 IAC 9-5, the owner and operator s
investigate and confirm all suspected releases of regulated substances requiring reporting under section 1 of this rule withiseven
Indiana Administrative CodePage 34
UNDERGROUND STORAGE TANKS
(7) days using the following steps or another procedure approved
(1) The owner and operator shall conduct tests according to the requirements for tightness testing in 329 IAC 9-7-4(3) and
329 IAC 9-7-5(2) to determine whether a leak exists in that port
delivery piping, or both. The owner and operator shall complete
(A) The owner and operator shall repair, replace, or upgrade the UST system and begin corrective action in accordance
with 329 IAC 9-5 if the test results for the system, tank, or de
(B) Further investigation is not required if the test results fo
a leak exists and if contaminants are not present.
(C) The owner and operator shall conduct a site check as described in subdivision (2) if the test results fo
tank, and delivery piping do not indicate that a leak exists, bu
(2) The owner and operator shall measure for the presence of a rlease where the contaminant is most likely to be present at
the underground storage tank site. In selecting sample types, sample locations, and measurement methods, the owner and
operator shall consider the nature of the stored substance, the ill,
the depth to ground water, and other factors appropriate for identifying the presence and source of the release. The owner and
operator shall complete one (1) of the following:
(A) If the test results for the excavation zone or the undergrou
the owner and operator shall begin corrective action in accordance with 329 IAC 9-5.
(B) If the test results for the excavation zone or the undergrou
occurred, further investigation is not required.
(Solid Waste Management Board; 329 IAC 9-4-3; filed Dec 1, 1992, 5:00 p.m.: 16 IR 1070; filed Jul 19, 1
3706; readopted filed Jan 10, 2001, 3:25 p.m.: 24 IR 1535; filed Aug 30, 2004, 9:35 a.m.: 28 IR 157)
329 IAC 9-4-4Reporting and cleanup of spills and overfills
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23
Sec. 4. (a) The owner and operator of an UST system shall contai
incident to the emergency response twenty-four (24) hour spill hotline at (888) 233-7745 in Indiana or s
possible but within twenty-four (24) hours, and begin corrective action in accordance with 329 IAC 9-5 in
(1) Spill or overfill of petroleum that results in a release to
(A) equals or exceeds twenty-five (25) gallons; or
(B) causes a sheen on nearby surface water.
(2) Spill or overfill of a hazardous substance that results in a release to the environment that equals or exceeds its reportable
quantity under 40 CFR 302.4, revised 2000. The Code of Federal Regulations is available from the Superintendent of
Documents, Government Printing Office, Washington, D.C. 20402.
(b) The owner and operator of an UST system shall contain and immediately remove any contaminated media when one (1)
of the following occur:
(1) Spill or overfill of petroleum that is less than twenty-five
(2) Spill or overfill of a hazardous substance that is less than the reportable quantity under 40 CFR 302.4, revised 2000. The
Code of Federal Regulations is available from the Superintendent of Documents, Government Printing Office, Washington,
D.C. 20402.
If the removal of any contaminated media cannot be accomplished within twenty-four (24) hours, the owner and operator shall
(Solid Waste Management Board; 329 IAC 9-4-4; filed Dec 1, 1992,
immediately notify the agency.
Jul 19, 1999, 12:00 p.m.: 22 IR 3707; readopted filed Jan 10, 20 3:25 p.m.: 24 IR 1535; filed Aug 30, 2004, 9:35 a.m.: 28 IR
158)
Rule 4.5.Fuel Delivery Prohibition
329 IAC 9-4.5-1Affixing red tags
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2; 42 U.S.C. 6991
Affected:IC 13-13-1-1; IC 13-23-12-1
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UNDERGROUND STORAGE TANKS
Sec. 1. (a) Upon the agency's discovery of a chronic failure to comply and prior to affixing a red tag, the agency must notify
the owner, operator, or employee on site in writing of the agency's discovery of a chronic failure to comply.
(b) After the owner, operator, or employee on site receives the written notification required in subsection (a), the red tag will
be attached to the fill pipe of the noncompliant underground stoe tank system so that the tag is visible to any person attempting
to deliver a regulated substance to the underground storage tank
(c) Upon the discovery by the agency of an owner or operator tha
letter to the owner and operator identifying the specific rule requirements that were not complied with in this article.
(d) If the owner or operator fails to correct the specific complnce failure within the time stipulated in the violation letter,
agency may affix a red tag to the fill pipe of the noncompliant underground storage tank system so that the tag is visible to any person
attempting to deliver a regulated substance to the underground s
(e) The owner or operator may continue to dispense from the noncompliant underground storage tank until the undergroun
storage tank is empty.
(f) The owner or operator of a facility shall:
(1) not deposit or allow the deposit of a regulated substance into an underground storage tank that has a red tag affixed to the
tank's fill pipe; and
(2) immediately notify their fuel delivery transporter of the re
(g) No person shall do the following:
(1) Deposit a regulated substance into an underground storage tank that has a red tag affixed to the tank's fill pipe.
(2) Remove, deface, alter, or otherwise tamper with a red tag so that the information obtained on the tag is not legible.
(h) A red tagged underground storage tank system may not be out
After this time, the underground storage tank system must be clo
(i) The underground storage tank annual registration fee, as reqred by IC 13-23-12-1, must be paid on any tank that has a
(Solid Waste Management Board; 329 IAC 9-4.5-1; filed May 7, 2010, 10:02 a.m.: 20100602-IR-329070468FRA)
red tag.
329 IAC 9-4.5-2Removing red tags
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2; 42 U.S.C. 6991
Affected:IC 13-13-1-1; IC 13-23
Sec. 2. (a) Upon notification by the owner or operator documentito the satisfaction of the agency that the compliance failure
has been corrected, the agency may provide written authorization the owner or operator to remove the red tag. The agency shall
do the following:
(1) Inspect the underground storage tank system within five (5) business days of the notification to validate the documentation
submitted by the owner or operator.
(2) Upon validation of the submitted documentation, the agency s
removed by the owner or operator under this subsection.
(b) A red tag that has been removed by the owner or operator sha
(Solid Waste Management Board; 329 IAC 9-4.5-2; filed May 7, 2010, 10:02 a.m.: 20100602-IR-329070468FRA)
329 IAC 9-4.5-3Notice of correction of a failure to comply
Authority:IC 4-21-5-3-4; IC 4-21.5-3-7; IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2; 42 U.S.C. 6991
Affected:IC 13-13-1-1; IC 13-23
Sec. 3. Upon confirmation that a compliance failure has been corrected, the agency shall notify the owner or operator in writing
(Solid Waste Management Board; 329 IAC 9-4.5-3; filed May 7, 2010, 10:02 a.m.: 20100602-
by certified mail of the confirmation.
IR-329070468FRA)
Rule 5.Initial Response, Site Investigation, and Corrective Action
329 IAC 9-5-1Applicability for release response and corrective a
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-12-3-2; IC 13-23
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UNDERGROUND STORAGE TANKS
Sec. 1. An owner and operator of a petroleum or hazardous substance UST system shall, in response to a confirmed release
from the UST system, comply with the requirements of this rule u
UST system is subject to corrective action requirements under Section 3004(u) (42 U.S.C. 6924(u)) of the Solid Waste Disposal
Act, as amended by the Resource Conservation and Recovery Act, as amended, 42 U.S.C. 6901, et seq., in effect on September 30,
(Solid Waste Management Board; 329 IAC 9-5-1; filed Dec 1, 1992, 5:00 p.m.: 16 IR 1071; file
1996.
22 IR 3707; errata filed Sep 10, 1999, 9:08 a.m.: 23 IR 26; readopted filed Jan 10, 2001, 3:25 p.m.: 24 IR 1535; filed Aug 30,2004,
9:35 a.m.: 28 IR 158)
329 IAC 9-5-2Initial response
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23
Sec. 2. Upon confirmation of a release in accordance with 329 IAC 9-4-3 or after a release from the UST system is identified
in any other manner, the owner and operator shall perform the following initial response actions within twenty-four (24) hours of
a release:
(1) Report the release to the agency:
(A) by telephone at (317) 232-8900 or after hours or holidays at
(B) by fax at (317) 234-0428; or
(C) at LeakingUST@dem.state.in.us for electronic mail.
(2) Take immediate action to prevent any further release of the regulated substance into the environment.
(3) Identify and mitigate fire, explosion, and vapor hazards.
(4) Mitigate to the extent practicable adverse effects to human
(Solid Waste Management Board; 329 IAC 9-5-2; filed Dec 1, 1992, 5:00 p.m.: 16 IR 1071; filed Jul 19, 1
3709; readopted filed Jan 10, 2001, 3:25 p.m.: 24 IR 1535; filed Aug 30, 2004, 9:35 a.m.: 28 IR 160)
329 IAC 9-5-3Initial abatement measures and site check (Repealed)
(Repealed by Solid Waste Management Board; filed Jul 19, 1999, 1
Sec. 3.
329 IAC 9-5-3.1Free product removal (Repealed)
(Repealed by Solid Waste Management Board; filed Aug 30, 2004, 9
Sec. 3.1.
329 IAC 9-5-3.2Initial abatement measures and site check
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23
Sec. 3.2. (a) The owner and operator shall perform the following abatement measures:
(1) Remove as much of the regulated substance from the UST system as necessary to prevent further release to the
environment.
(2) Visually inspect any aboveground releases or exposed belowground releases and prevent further migration of the released
substance into surrounding soils and ground water.
(3) Continue to monitor and mitigate any additional fire and safety hazards posed by vapors or free product that have migrated
from the underground storage tank excavation zone and entered into subsurface structures, which may include:
(A) storm sewers;
(B) sanitary sewers;
(C) utility lines;
(D) inhabitable buildings with a basement or crawlspace; or
(E) underground conduits.
(4) Remedy hazards posed by contaminated soils that are excavated or exposed as a result of release confirmation, site
investigation, abatement, or corrective action activities. If thand
Indiana Administrative CodePage 37
UNDERGROUND STORAGE TANKS
operator shall comply with applicable state and local requiremen
(5) Measure for the presence of a release where the contaminant is most likely to be present at the underground storage tank
site unless the presence and source of the release have been confirmed in accordance with the site check required by 329 IAC
9-4-3(2) or the closure site assessment of 329 IAC 9-6-2.5. In selecting sample types, sample locations, and measurement
methods, the owner and operator shall consider the nature of thestored substance, the type of backfill, depth to ground water,
and other factors as appropriate for identifying the presence and source of the release.
(6) Investigate to determine the possible presence of free produt, and begin free product removal as soon as practicable and
in accordance with section 4.2 of this rule.
(b) If:
(1) drinking water is affected;
(2) free product is present; or
(3) vapors are present in:
(A) storm sewers;
(B) sanitary sewers;
(C) utility lines;
(D) inhabitable buildings with a basement or crawlspace; or
(E) underground conduits;
within twenty (20) days after release confirmation, the owner aninitial
(Solid Waste Management Board; 329 IAC
abatement measures taken under subsection (a) and any resulting information or data.
9-5-3.2; filed Aug 30, 2004, 9:35 a.m.: 28 IR 160)
329 IAC 9-5-4Initial site characterization (Repealed)
(Repealed by Solid Waste Management Board; filed Jul 19, 1999, 1
Sec. 4.
329 IAC 9-5-4.1Initial abatement measures and site check (Repealed)
(Repealed by Solid Waste Management Board; filed Aug 30, 2004, 9
Sec. 4.1.
329 IAC 9-5-4.2Free product removal
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23
Sec. 4.2. At sites where investigations indicate the presence of free product, the owner and operator shall remove free produc
to the maximum extent practicable as determined by the commissioner based on free product removal technology and site conditions
while continuing, as necessary, any actions initiated under sect2, 3.2, and 5.1 of this rule, or preparation for actions required
under sections 6 and 7 of this rule. In meeting the requirements of this section, the owner and operator shall do the following:
(1) Conduct free product removal in a manner that:
(A) minimizes the spread of the contaminant into previously unco
techniques appropriate to the hydrogeologic conditions at the si
(B) properly treats, discharges, or disposes of recovery products and byproducts in compliance with applicable local,
state, and federal regulations.
(2) Use abatement of free product migration as a minimum objecti
(3) Handle any flammable products in a manner so as to prevent fires or explosions in accordance with the site health and
safety plan as required by section 7(e) of this rule.
(4) Unless directed to do otherwise by the commissioner, prepare
confirming a release, a free product removal report that provide
(A) The name of the person responsible for directing the free product removal measures.
(B) The estimated quantity, type, and thickness of free product observed or measured in wells, boreholes, and
excavations.
(C) The type of free product recovery system used.
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UNDERGROUND STORAGE TANKS
(D) Whether any discharge of free product will take place on-site or off-site during the recovery operation and where
this discharge will be located.
(E) The type of treatment applied to, and the effluent quality e
(F) The steps that have been, or are being taken, to obtain nece
(G) The disposition of the recovered free product.
(Solid Waste Management Board; 329 IAC 9-5-4.2; filed Aug 30, 2004, 9:35 a.m.: 28 IR 160)
329 IAC 9-5-5Free product removal (Repealed)
(Repealed by Solid Waste Management Board; filed Jul 19, 1999, 1
Sec. 5.
329 IAC 9-5-5.1Initial site characterization
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-12-3-2; IC 13-23; IC 25-17.6; IC 25-31-1; IC 25-3
Sec. 5.1. (a) In conformance with IC 13-12-3-2, the owner and op
nature of the release, including information gained while confirming the release or completing the initial response and abatement
measures in sections 2 and 3.2 of this rule. This information mung the
work, the date the report was prepared, and the following:
(1) Data on the nature, site-specific location, and estimated qu
(2) Data from available sources or site investigations, or both,
(A) Surrounding populations.
(B) Surface and ground water quality.
(C) Use and approximate locations of all wells potentially affected by the release but at a minimum include those wells
specified in subsection (b)(2)(E)(v)(CC) and (b)(2)(E)(v)(DD).
(D) Subsurface soil conditions.
(E) Locations of on-site and adjacent subsurface features.
(F) Climatological conditions.
(G) Land use.
(3) Results of the site check required under section 3.2(a)(5) o
(4) Results of the free product investigations required under section 3.2(a)(6) of this rule, to be used by the owner and operator
to determine whether free product must be recovered under section 4.2 of this rule.
(5) Known or expected extent of the contaminant or contaminants.
(6) Information requested by the commissioner.
(b) Within sixty (60) days of release confirmation, the owner and operator shall submit the information collected under
subsection (a) to the agency as follows:
(1) In a manner that demonstrates the applicability and technica
(2) In a format as required by the agency that includes the following information:
(A) Background, including the following:
(i) The owner's and operator's name and address.
(ii) Past owners' and operators' names and addresses.
(iii) The facility name, address, and telephone number.
(iv) All prior and present operations of the facility.
(v) Prior construction activities.
(vi) List of prior spills at the facility.
(vii) Site proximity to sensitive areas, such as:
(AA) residences;
(BB) schools;
(CC) wells;
(DD) well fields; or
(EE) wellhead protection areas;
Indiana Administrative CodePage 39
UNDERGROUND STORAGE TANKS
delineated under rules of the water pollution control board at 3
(viii) Subsurface soil descriptions.
(ix) Information known about all ground water wells within a one (1) mile radius of the facility.
(x) Description of all site work completed and the date the site
(xi) Number and volume of underground storage tank or tanks.
(xii) Underground storage tank construction material and type of
(xiii) Past and present contents of each underground storage tank.
(xiv) Records of most recent tightness test results, inventory records, and underground storage tank gaging
records for the prior calendar year.
(xv) Underground storage tank age and date of installation.
(xvi) Underground storage tank system closure report submittal date, if applicable.
(B) Release incident description, including the following:
(i) Date reported to the agency.
(ii) Release incident number given by the agency at the initial
(iii) Assigned agency site priority ranking obtained at the init
(iv) List of material or materials released.
(v) List of volume lost.
(vi) List of areas affected, such as the:
(AA) soil;
(BB) ground water;
(CC) surface water features; or
(DD) subsurface conduits.
(vii) Health and environmental risks associated with the spill i
(C) Initial response and abatement information, including the following:
(i) A detailed description of immediate actions taken to prevent
(ii) Measures taken to prevent further migration of the spill.
(iii) Actions taken to identify and mitigate fire and explosion hazards posed by vapors or free product.
(iv) Actions taken to investigate free product release.
(D) Free product recovery information, including the following:
(i) The name of the person or persons responsible for product removal.
(ii) Estimated quantity, type, and thickness of product observed or discovered.
(iii) A description of the recovery system.
(iv) Copies of all permits from local, state, and federal agencies necessary for:
(AA) handling;
(BB) treating;
(CC) discharging; and
(DD) disposing of;
the contaminants.
(v) Final disposition of the recovered free product and associated documentation.
(E) Investigation information, including the following:
(i) Types of bedrock.
(ii) Soil series description.
(iii) List of regional soil and geologic references used.
(iv) Regional hydrogeological references used.
(v) Appropriately scaled regional maps with the following:
(AA) Illustrated legends, scale, and compass direction.
(BB) Topographic base with ten (10) foot contour intervals.
(CC) Location, depth, and corresponding department of natural resources' well records for wells located
within a two (2) mile radius of the site that have a capacity of over seventy (70) gallons per minute or that
are municipal water supply wells.
(DD) Location, depth, and corresponding department of natural resources' well records for wells with a
Indiana Administrative CodePage 40
UNDERGROUND STORAGE TANKS
capacity of less than seventy (70) gallons per minute within a o
(EE) Identification of facilities and land for agricultural, industrial, and commercial use within one (1) mile
radius of the site.
(FF) Locations of surface water features within a one (1) mile radius of the site.
(vi) Site-specific geologic information as follows:
(AA) A minimum of three (3) on-site, continuously sampled soil b
(BB) Soil boring locations, accurately field surveyed with a horizontal closure of less than one (1) foot
error.
(CC) Site soil stratigraphy identification, including cross sect
(DD) Soil boring logs that include the method of drilling, total depth of boring, type and thickness of
formations or materials encountered, including color, hardness, and a geological description, soil vapor
readings, name and address of drilling company, name and license
signature of licensed driller or environmental professional who logged the boring.
(EE) Soil boring logs with the same vertical scale and including surface elevations.
(vii) Hydrogeologic information, including the following:
(AA) Depth to ground water measured in a piezometer or monitorin
(BB) Ground water flow directions and gradients.
(CC) A minimum of three (3) ground water samples collected from
contaminated and a description of the method of sample collectio
(DD) A minimum of three (3) monitoring wells or piezometers must
fluctuation and not placed in a straight line. Monitoring wells must be installed, when time series
water quality monitoring is required.
(EE) Monitoring well and piezometer location surveyed to a temporary benchmark with a vertical accuracy
of one-hundredth (.01) foot and with a horizontal closure of les
(FF) Monitoring well or piezometer construction records submitte
ground surface and the top of the well casing elevations, casing size and materials, well screen length, slot
size, depth to the top and bottom of screen, method of drilling or well installation, borehole size, name and
address of drilling company, name and license number of the equi
thickness of grouting materials, method of installation, and signature of licensed driller.
(GG) Monitoring well or piezometer stratigraphic logs that meet
resources commission at 312 IAC 13, and include method of drilling, total depth of boring, type and
thickness of formations or materials encountered, including colo
soil vapor readings, borehole diameter, well diameter, name and
license number of drilling operator, and signature of licensed d
logged the well or piezometer boring.
(viii) Contamination plume identification and maps, appropriatel
(AA) Illustrated legends, scale, and compass directions.
(BB) Topographic base with appropriate contour intervals to accurately describe the site.
(CC) Identification of aboveground features, including buildings
property lines.
(DD) Identification of subsurface features, including tanks, piping, and utility conduits, storm sewers,
sanitary sewers, utility lines, and french drains.
(EE) Soil borings and monitoring well locations surveyed to a te
closure accuracy of one (1) foot, and monitoring well locations surveyed with a vertical accuracy of one-
hundredth (.01) foot.
(FF) Sampling locations, depth of sample taken, and the contaminant concentration results.
(GG) Horizontal and vertical contaminant plume identification.
(HH) Geologic cross sections showing the water table and illustr
contaminant plume.
(II) Ground water flow directions.
(F) Sampling information, including the following:
Indiana Administrative CodePage 41
UNDERGROUND STORAGE TANKS
(i) Field investigation procedures.
(ii) Field screen samples.
(iii) Laboratory procedures that include:
(AA) checking sample validity;
(BB) sample acquisition;
(CC) container;
(DD) preservation;
(EE) shipping requirements;
(FF) storage time;
(GG) chain of custody; and
(HH) decontamination of equipment between samples.
(iv) Provisions for retention of laboratory quality assurance and quality control information, so that the
information may be made available to representatives of the agen
(v) Documentation, in a format prescribed by the commissioner, o
(vi) A report, in a format prescribed by the commissioner, that includes a signed laboratory certificate of analysis
that lists:
(AA) analysis method;
(BB) method preparation;
(CC) date of sample receipt;
(DD) date of analysis;
(EE) a statement that the method quality assurance and quality control procedures were followed;
(FF) the chain of custody documentation, including laboratory receipts, decontamination procedures, and
sampling procedures and techniques.
(vii) Analytical methods and corresponding detection limits.
(G) Results and conclusions that include the following:
(i) A discussion of the results of the site investigation.
(ii) Field and laboratory sample results in a tabular format.
(H) Recommendations that include a discussion of the need for further site investigations under section 6 of this rule
to determine the nature and extent of the contaminants.
(3) In a report that is signed by a:
(A) registered professional engineer under IC 25-31-1;
(B) licensed professional geologist under IC 25-17.6;
(C) certified hazardous materials manager (CHMM) as certified by the Institute of Hazardous Material Management;
or
(D) professional soil scientist registered under IC 25-31.5-4.
(c) The commissioner may approve an alternative procedure for in
substantially equal protection for human health and the environm (b) and
(Solid Waste Management Board; 329 IAC 9-5-5.1; filed Jul 19, 1999,
is in the format as described in subsection (b)(2) and (b)(3).
12:00 p.m.: 22 IR 3710; errata filed Sep 10, 1999, 9:08 a.m.: 23IR 26; readopted filed Jan 10, 2001, 3:25 p.m.: 24 IR 1535; filed
Aug 30, 2004, 9:35 a.m.: 28 IR 161)
329 IAC 9-5-6Further site investigations for soil and ground wat
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-12-3-2; IC 13-23
Sec. 6. (a) In order to determine the full extent and location of soils contaminated by the release and the presence and
concentrations of dissolved product as a contaminant of the ground water, the owner and operator shall conduct a further site
investigation of the release, the release site, and the surroundng
conditions exist:
(1) Information collected and submitted under section 5.1 of this rule is incomplete or fails to define the nature and extent
of contamination in the soil and ground water.
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(2) There is evidence that ground water wells have been affected by the contaminant. This evidence may include any
information collected during release confirmation or previous corrective action measures.
(3) Free product is found to need recovery in compliance with se
(4) There is evidence that contaminated soils may be in contact with ground water. This evidence may include any information
collected while conducting the initial response measures or invetigations required under sections 1, 2, 3.1, 4.1, and 5.1 of
this rule.
(5) The commissioner requests a further site investigation based on the potential effects of contaminated soil or ground water
on nearby surface water and ground water resources.
(b) During the further site investigation the owner or operator
exceeds the cleanup objectives under IC 13-12-3-2:
(1) Install a minimum of three (3) ground water monitoring wellstial
site investigation under section 5.1 of this rule. Additional monitoring wells may be required to fully define the extent of
contamination.
(2) Take a ground water sample from each of the monitoring wells and report the analytical results to the agency.
(3) Provide a description of the method for collecting the groun
(4) Monitoring wells must be screened across water table fluctuation and not placed in a straight line.
(5) Monitoring wells must be installed as per the requirement of
3.
(c) The owner and operator shall submit the information collecte under subsection (b) as soon as practicable or in accordance
with a schedule established by the commissioner in the format deribed in section 5.1(b)(2) and 5.1(b)(3) or 5.1(c) of this rule as
well as a title page that identifies the consultant performing t
information:
(1) Hydraulic conductivity.
(2)Transmissivity.
(3) Storativity.
(4) Confined or unconfined condition.
(5) Porosity of the aquifer or aquifers involved.
(6) The average linear velocity of the ground water in the aquif
(d) Provide a complete discussion of effective remediation alternatives, including the following for each alternative:
(1) Overall effectiveness of technology.
(2) Ability to achieve cleanup criteria.
(3) Expected treatment duration.
(4) Treatment reliability.
(5) Permits that will be required.
(e) The approval of a further site investigation or initial site characterization under section 5.1 of this rule is not a
determination that the actual costs incurred performing these site characterization activities are reimb rules
(Solid Waste Management Board; 329 IAC 9-5-6; filed
of the underground storage tank financial assurance board at 328
Dec 1, 1992, 5:00 p.m.: 16 IR 1072; filed Jul 19, 1999, 12:00 p.m.: 22 IR 3712; readopted filed Jan 10, 2001, 3:25 p.m.: 24 IR
1535; filed Aug 30, 2004, 9:35 a.m.: 28 IR 164)
329 IAC 9-5-7Corrective action plan
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-12-3-2; IC 13-23-8-4; IC 25-17.6; IC 25-31-1; IC
Sec. 7. (a) At any point after reviewing the information submitt
the commissioner may require the owner and operator to:
(1) submit additional information; or
(2) develop and submit a corrective action plan for responding to contaminated soils and ground water.
If a plan is required, the owner and operator shall submit the plan according to a schedule established by the commissioner and the
format designated under subsection (f). Alternatively, the owner and operator may, after fulfilling the requirements of sections 2,
3.2, and 5.1 of this rule, choose to submit a corrective action plan for responding to contaminated soil and ground water. In either
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UNDERGROUND STORAGE TANKS
case, the owner and operator are responsible for submitting a plan that provides for adequate protection of human health and the
environment, as determined by the commissioner, and shall modify their plan as necessary to meet this standard.
(b) The commissioner will approve the corrective action plan onl
adequately protect human health, safety, and the environment. In making this determination, the commissioner shall consider the
following factors, as appropriate:
(1) The physical and chemical characteristics of the regulated substance, including its toxicity, persistencr
migration.
(2) The hydrogeologic characteristics of the facility and the su
(3) The proximity, quality, and current and future uses of nearby surface water and ground water.
(4) The potential effects of a residual contaminant on nearby surface water and ground water.
(5) The proximity of potential contaminant receptors, including:
(A) adjacent residences;
(B) wells;
(C) well fields; or
(D) wellhead protection areas delineated under rules of the wate
(6) An exposure assessment.
(7) Any information assembled in compliance with this rule.
(8) The suitability of the chosen remediation method for site conditions.
(c) Upon approval of the corrective action plan or as directed by the commissioner, the owner and operator shall implement
the plan, including modifications to the plan made by the commissioner. The owner and operator shall monitor, evaluate, and report
the results of implementing the plan in accordance with a schedu
implementation of the corrective action plan the commissioner mae
or is not achieving the cleanup objectives. Upon making this fin
(1) the commissioner will notify the owner and operator that app
modification;
(2) the basis of the finding shall also be provided to the owner
(3) the owner or operator shall submit a modified plan to the to the commissioner for approval under subsection (b) before
corrective action plan approval is reinstated;
(4) a reinstated corrective action plan approval is subject to a
(5) the approval of a corrective action plan under this subsection is not a determination that the actual costs incurred
performing the corrective action plan are reimbursable costs under the rules of the underground storage tank financial
assurance board at 328 IAC 1.
(d) The owner and operator may, in the interest of minimizing the effect of a contaminant and promoting more effective
cleanup, begin cleanup of soil and ground water before the corretive action plan is approved provided that the owner and operator:
(1) notify the agency of their intention to begin cleanup;
(2) comply with any conditions imposed by the commissioner, including halting cleanup or mitigating adverse consequences
from cleanup activities; and
(3) incorporate these self-initiated cleanup measures in the corrective action plan that is submitted to the commissioner for
approval.
(e) During corrective action, the owner and operator and their d
meets all applicable requirements of the occupational safety standards commission and the rules of the fire prevention and building
safety commission at 675 IAC 22.
(f) The owner and operator shall conduct corrective action that meets the following requirements:
(1) The corrective action plan must be presented in a format prescribed by the commissioner and contain the following
information:
(A) A title page that identifies the consultant performing the w
(B) An executive summary, including the following:
(i) A briefing about the site in narrative form, highlighting ev
(ii) Other information regarding the need for corrective action.
(C) A narrative concerning contaminant and site conditions, incl
(i) Contaminant identification including chemical and physical p
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UNDERGROUND STORAGE TANKS
(ii) Determination of chemical reference doses (RfDs), cancer slope factors (Sfs or CPFs), reference ingestion
factors, and maximum contaminant levels.
(iii) Potential effects of residual contaminants.
(iv) Site-specific soil and hydrogeologic characteristics.
(v) Proximity of local surface waters and ground water and assoc water quality data.
(vi) Current and potential future uses of local water sources.
(vii) A summary of site-specific water quality data generated du
(viii) Other information necessary to describe site conditions.
(D) Health and safety plan for corrective action activities, inc
(i) Known hazards and risk evaluation associated with site activities.
(ii) A list of personnel, alternates to personnel, and areas of responsibilities of personnel.
(iii) Levels of personal protection for personnel.
(iv) Decontamination equipment and procedures.
(v) Site access control measures.
(vi) Site emergency procedures, medical care availability, and a
facility.
(vii) A list of emergency phone numbers that includes:
(AA) the fire department;
(BB) the police department;
(CC) a local ambulance; and
(DD) the local hospital or medical facility.
(viii) A list of personnel training, qualifications, and certifications.
(ix) A description of how the plan will meet health and safety r
and safety standards and the rules of the fire prevention and building safety commission at 675 IAC 22.
(E) An appropriately scaled regional map that can be reproduced
investigation reports but that must include the following:
(i) Illustrated legends, scales, and compass directions.
(ii) A legible, topographic base with ten (10) foot contour inte
(iii) The location and depth of any wells that have a capacity:
(AA) greater than seventy (70) gallons per minute within a two (
(BB) less than seventy (70) gallons per minute within a one (1)
(iv) Identification of facilities and land for:
(AA) agricultural;
(BB) residential;
(CC) commercial; and
(DD) industrial;
use within a one (1) mile radius of the site.
(v) Locations of surface water features within a one (1) mile radius of the site.
(vi) Site location.
(F) Appropriately scaled site maps that can be reproduced from p
reports that must include the following:
(i) Illustrated legends, scales, and compass directions.
(ii) Topographic base with appropriate contour intervals to accurately describe the site.
(iii) Identified aboveground features, including:
(AA) buildings;
(BB) roadways;
(CC) manways;
(DD) pump islands; and
(EE) property lines.
(iv) Identified subsurface features, including tanks, piping, and utility conduits.
(v) Soil boring and monitoring well locations surveyed with a ho
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UNDERGROUND STORAGE TANKS
(vi) Sampling locations, depth of sample taken, and the contaminant concentration results.
(vii) Soil and ground water contaminant plume delineation.
(viii) Ground water elevation contours and ground water flow direction.
(ix) The location of remediation equipment shown to scale.
(G) Geologic and hydrogeologic maps that describe subsurface features, identify the contaminant plume, and include
the following:
(i) Cross sections.
(ii) Fence diagrams.
(iii) Geophysical profile or geophysical maps, or both, if avail
(H) A narrative on selected remediation technology that includes
(i) Feasibility studies showing the effectiveness of the selected remediated technology.
(ii) A detailed description of the selected technology, design explanations, and illustrations.
(iii) Projected contaminant removal or treatment rates, or both.
(iv) Technical specifications of equipment and the process.
(v) Discussion of disposal or fate of treated air, soil, and ground water, and permit or discharge requirements.
(I) Sampling and analysis plan to evaluate the performance of th
(i) A minimum of quarterly samples taken and reported.
(ii) The following as applicable:
(AA) Field investigation procedures.
(BB) Documentation, in a format prescribed by the commissioner,
measures, and analysis.
(CC) Field screen samples.
(DD) Sampling methods and laboratory procedures conducted in a manner that will generate scientific
valid data.
(EE) Provisions for retention of laboratory quality assurance an
(FF) Provisions for submission of reports that must include a si
lists analysis method, method preparation, date of sample receipt, date of analysis, a statement that the
method quality assurance and quality control procedures were followed, the chain of custody
documentation, including laboratory receipts, and laboratory decontamination procedures.
(J) A timetable that includes the following shown on a bar chart
(i) Installation and implementation dates.
(ii) Sampling events.
(iii) Progress milestones.
(iv) Completion dates.
(K) The corrective action plan must be signed by an environmenta
(i) A registered professional engineer under IC 25-31-1.
(ii) A licensed professional geologist under IC 25-17.6.
(iii) A certified hazardous materials manager (CHMM) as certified by the Institute of Hazardous Material
Management.
(iv) A professional soil scientist registered under IC 25-31.5-4
(L) Provisions for progress reports to be submitted quarterly in
the following:
(i) A brief narrative of the remediation process.
(ii) Documentation and data graphically demonstrating remediation effectiveness.
(iii) Quarterly sampling results presented in a tabular format as prescribed by the commissioner with all previous
sample data, if previous samples were taken.
(iv) Quarterly ground water elevation gauging results presented
commissioner, showing the following:
(AA) Wellhead or measuring point elevation.
(BB) Depth to ground water.
(CC) Ground water elevation.
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(v) Updated site maps showing the following:
(AA) Soil and ground water contaminant plume delineations.
(BB) Ground water elevation contours.
(CC) Ground water flow directions.
(vi) Signed by an environmental professional that is one (1) of
(AA) A registered professional engineer under IC 25-31-1.
(BB) A licensed professional geologist under IC 25-17.6.
(CC) A certified hazardous materials manager (CHMM) as certified by the Institute of Hazardous Material
Management.
(DD) A professional soil scientist registered under IC 25-31.5-4
(vii) Discussion of remediation system function, days of operation, and explanation for any time periods
remediation system does not operate, and repairs or maintenance performed or needed by the remediation system.
This discussion must include volumes of air, soil, or ground wat
system, and effluent stream sample results.
(M) Provisions for a final report that includes the following:
(i) Documentation that the cleanup goals and objectives have bee
(ii) A signature by an environmental professional that is one (1
(AA) A registered professional engineer under IC 25-31-1.
(BB) A licensed professional geologist under IC 25-17.6.
(CC) A certified hazardous materials manager (CHMM) as certified by the Institute of Hazardous Material
Management.
(DD) A professional soil scientist registered under IC 25-31.5-4
(2) The soil cleanup objectives must be determined and met by co
(3) The ground water cleanup objectives must be determined and m
(Solid Waste Management Board; 329 IAC 9-5-7; filed Dec 1, 1992, 5:00 p.m.: 16 IR 1072; errata, 16 IR 1
12:00 p.m.: 22 IR 3713; readopted filed Jan 10, 2001, 3:25 p.m.: 24 IR 1535; filed Aug 30, 2004, 9:35 a.m.: 28 IR 165)
329 IAC 9-5-8Public participation
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23
Sec. 8. (a) For each confirmed release that requires a corrective action plan, the commissioner shall provide notice to the plic
in a manner designed to reach those members of the public directly affected by the release and the planned corrective action. This
notice may include any of the following:
(1) Public notice in local newspapers.
(2) Block advertisements.
(3) Public service announcements.
(4) Publication in the Indiana Register.
(5) Letters to individual households.
(6) Personal contacts by field staff.
(b) The commissioner shall ensure that site release information and decisions concerning the corrective action plan are made
available to the public for inspection upon request.
(c) Before approving a corrective action plan, the commissioner
proposed corrective action plan if there is sufficient public interest, or for any other reason.
(d) The commissioner shall give public notice that complies with subsection (a) if implementation of an approved corrective
action plan does not achieve the established cleanup levels in te plan and termination of the plan is under consideration by the
(Solid Waste Management Board; 329 IAC 9-5-8; filed Dec 1, 1992, 5:00 p.m.: 16 IR 1073; filed Jul 19, 1999, 12:00
commissioner.
p.m.: 22 IR 3713; readopted filed Jan 10, 2001, 3:25 p.m.: 24 IR
Rule 6.Closure
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UNDERGROUND STORAGE TANKS
329 IAC 9-6-1Applicability
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23
Sec. 1. Closure of an UST system must be completed by one (1) of
in section 2.5 of this rule:
(1) In-place closure as defined at 329 IAC 9-1-27.3.
(2) Removal closure as defined at 329 IAC 9-1-39.5.
(3) Change-in-service as defined at 329 IAC 9-1-10.4.
(Solid Waste Management Board; 329 IAC 9-6-1; filed Dec 1, 1992, 5:00 p.m.: 16 IR 1073; filed Jul 19, 1
3714; readopted filed Jan 10, 2001, 3:25 p.m.: 24 IR 1535; filed Aug 30, 2004, 9:35 a.m.: 28 IR 168)
329 IAC 9-6-2Assessing the site at closure or change-in-service (Repealed)
(Repealed by Solid Waste Management Board; filed Aug 30, 2004, 9
Sec. 2.
329 IAC 9-6-2.5Closure procedure
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-12-3-2; IC 13-23
Sec. 2.5. (a) The procedure for closure is as follows:
(1) At least thirty (30) days before beginning closure, the owner and operator shall notify, using the notification form requied
by 329 IAC 9-2-2(a), the agency and the office of the state fire
methods in section 1 of this rule unless such action is a part o
(2) Closure sampling and laboratory analysis with the associated detection limits for the UST system closure are required as
follows:
(A) Quantity and location of soil samples for each closure method are as follows:
(i) In-place closure soil samples must be taken as described in subsection (b).
(ii) Removal closure soil samples must be taken as described in subsection (c).
(iii) Change-in-service soil samples must be taken as described
(B) Quantity and location of ground water samples for each closure method are as follows:
(i) In-place closure ground water samples must be taken as described in subsection (e).
(ii) Removal closure ground water samples must be taken as described in subsection (f).
(iii) Change-in-service ground water samples must be taken as described in subsection (g).
(C) Laboratory analyses and detection limits for soil samples an
required for the chemical of concern.
(3) If, at any time during the closure process for any method ofosure, a release is either suspected or detected in the backfill,
native soil, or ground water, the owner or operator shall contac
release is suspected or detected.
(4) A confirmed release based on the soil and ground water sampls taken at the UST removal requires the owner or operator
to contact the agency to report within twenty-four (24) hours af
tank (LUST) incident number was not obtained under subdivision (
(5) A closure report must be completed and submitted to the agen
report must include the following:
(A) The notification form provided by the agency under 329 IAC 9
(B) The underground storage tank closure report. The closure rep
(i) For the responsible party, the following information:
(AA) The UST system facility owner or operator name, agency's ow
and phone number.
(BB) The name of the UST system facility contact person, owner or operator affiliation, and phone
number.
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UNDERGROUND STORAGE TANKS
(CC) Owners or operators during the last twenty-five (25) years.
(ii) For the UST contractor, the following information:
(AA) UST closure contractor, company name, and address.
(BB) The name of the person on-site during closure that is certi
to perform UST closure and that person's certification number.
(iii) For the UST site information regarding the following:
(AA) Facility name, agency's facility identification number, address, and phone number.
(BB) Type of facility, past and current operation.
(CC) Coverage, stating if coverage is turf, concrete, asphalt, or other.
(DD) History of any spill reports listed by incident number.
(EE) Site proximity to both human and environmentally sensitive areas, such as residences, schools, wells,
well fields, or wellhead protection areas delineated under rules of the water pollution control board at 327
IAC 8-4.1.
(FF) Backfill and site natural soil texture.
(iv) A site-specific map or maps with illustrated legends and co
site details described as follows:
(AA) Drainage features, surface slope, or surface water run-off direction.
(BB) Identified aboveground features, such as buildings, roadways, manways, pump islands, and utilit
and property lines.
(CC) Identified subsurface features, such as tanks and excavation pit, piping, and utility conduits.
(DD) Locations where samples were taken, soil borings made, and
(EE) Location of active and previously closed tanks, as applicab
(FF) Site surroundings, such as adjacent buildings, businesses, or human and environmentally sensitive
areas, such as residences, schools, wells, well fields, or wellhead protection areas delineated under rules
of the water pollution control board at 327 IAC 8-4.1.
(v) Information for the underground storage tank being closed as
(AA) The number and volume of tanks.
(BB) Past and present contents of the tank.
(CC) Construction material of tank.
(DD) Construction and material of piping.
(EE) Age and installation date of tank.
(FF) Leak detection methods used.
(GG) Records of the most current tank tightness test results.
(HH) Records of any other current leak detection method results
water, or vapor monitoring results.
(II) Information on any previously closed UST system, such as the date closed and the number, size, and
product stored.
(vi) Physical and chemical results of the samples taken under su
(AA) Data from analysis of soil samples presented in a tabular f
(BB) Data from analysis of water samples presented in a tabular
(CC) A signed laboratory certificate of analysis listing analysi
sample receipt, and date of analysis.
(DD) Proper sample identification numbers for cross-reference to UST site maps.
(EE) Chain of custody documentation.
(FF) Description of the sampling procedures, sampling equipment, and decontamination procedures.
(GG) Data from analyses of used oil sampling, as applicable.
(vii) Miscellaneous closure documentation, including manifests or receipts, or both, as follows:
(AA) Contaminated soil and contaminated water disposal documenta
(BB) Remaining product and sludge disposal documentation.
(CC) Tank and piping disposal documentation.
(6) If one (1) or more additional tanks are discovered during a closure, the owner and operator shall:
Indiana Administrative CodePage 49
UNDERGROUND STORAGE TANKS
(A) close each additional tank under this rule; and
(B) supply all known information on each additional tank in the closure report.
(7) The commissioner shall require additional information if the
commissioner shall provide in writing the reasons for requiring dditional information and a list of the additional information
required to be submitted. The owner and operator shall have fort
agency, after receipt of written notification from the commissioner that additional information is required.
(8) The closure will not be considered complete until all closur
(9) If the underground storage tank contains hazardous substances, the owner and operator shall perform sampling and
analyses as required for the chemical of concern.
(10) The owner and operator shall demonstrate compliance with this section by providing a certification of compliance on
the notification form under 329 IAC 9-2-2. The certification mus
certified by the office of the state fire marshal under rules of
12-12.
(b) Soil sampling for in-place closure must be achieved as follo
(1) The owner and operator shall submit a site plan with proposed boring locations to the agency with the notification form
under 329 IAC 9-2-2 and to the office of the state fire marshal for approval to request in-place closure. The accompanying
map must be to scale and include the entire site. Submission of
recommended for large sites. The boring locations should be as f
(A) One (1) boring every twenty (20) feet around the tank area,
(B) Each boring must be within three (3) feet adjacent to the un
(2) The commissioner may grant conditional approval to proceed with in-place closure of the UST system based on the
following:
(A) The location of the borings as required under subdivision (1
(B) Approval from the office of the state fire marshal.
(3) After approval is received under subdivision (2), the owner and operator may proceed with soil borings that must meet
the following requirements:
(A) Soil sampling must be performed continuously using a sampling device relevant to the drilling technology used.
(B) Borings must extend two (2) feet or greater below the elevat
(C) If the boring depth is fifteen (15) feet or less, a minimum
locations:
(i) The point where a contaminant is detected.
(ii) One (1) soil sample must be taken at the:
(AA) midpoint; and
(BB) bottom;
of the boring.
(D) If the boring depth is greater than fifteen (15) feet, a min
shallow soil sample must be taken one (1) foot or greater below grade. Samples must be taken where the release is
suspected or detected.
(4) Piping and dispenser sampling and analysis must be completed
(5) The waiver of closure sampling requirements under subsection (h) will not be granted for in-place closure.
(c) Soil sampling for removal closure must be achieved as follow
(1) Soil removal is allowed as follows:
(A) The backfill may be removed from the following to provide access to native soil for sampling:
(i) Tank cavity excavation.
(ii) Piping trenches.
(iii) Dispensing unit areas.
(iv) Remote fill pipe trenches.
(B) Closure soil samples must be taken from the following:
(i) Excavated backfill under subdivision (2)(B).
(ii) Undisturbed native soil under subdivision (2)(A).
(2) Each underground storage tank excavation must be sampled separately. Composite samples are not acceptable for closure.
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UNDERGROUND STORAGE TANKS
The samples must meet the following requirements:
(A) All samples must be discrete grab samples taken directly from the undisturbed native soil from the base and
sidewalls of the excavation. The following requirements apply to
(i) Bottom samples must meet the following requirements:
(AA) Soil sampling must consist of a minimum of two (2) soil sam
both ends of each underground storage tank.
(BB) If the underground storage tank capacity is greater than te
additional sample must be taken within two (2) feet below the mi
(ii) Sidewall samples must meet the following requirements:
(AA) The sidewalls must be sampled and analyzed at a rate of one (1) sample every twenty (20) feet of
perimeter distance around the excavation zone.
(BB) If the perimeter dimension measures less than eighty (80) feet, a minimum of one (1) sample for each
sidewall must be taken.
(CC) Sidewall samples must be taken at a point half the distance from the surface to the bottom of the
underground storage tank excavation.
(B) Excavated materials must be staged in a separate area. Samples must be discrete grab samples taken
the excavated materials. Sampling of the excavated soil must occur for every fifty (50) cubic yards of material.
(3) Native soil under piping and dispenser islands, which routiny contains regulated substances, must be sampled. All
samples must be discrete grab samples. The following requirements apply to the number and location of
and dispensers:
(A) Soil sampling under piping must be completed as follows:
(i) Soil under piping must be sampled every twenty (20) feet, or fraction thereof, along the piping run. If the
piping run is less than twenty (20) feet in length, one (1) soil
underground storage tank excavation and the pump or dispenser is
(ii) Piping must have soil sampled under piping elbows and conne
(B) Soils under the dispenser islands must be sampled and analyzed at a rate of one (1) soil sample per dispenser.
(C) If the UST system has a remote fill line, the following soil
(i) Soils under the remote fill line must be sampled and analyzeill area and every twenty (20)
feet, or fraction thereof, from the fill area to the underground storage tank connection.
(ii) If the remote fill line is less than twenty (20) feet, one
the fill area and the underground storage tank.
(D) Composite samples are not acceptable for closure.
(4) Soil sampling under the piping and product dispenser islandsare not required if the following requirements are complied
with:
(A) All:
(i) piping that routinely contains product; and
(ii) dispensers;
are located directly above the UST system that is being closed.
(B) The requirements of clause (A) are documented in the closure
(5) During removal closure, native soil and backfill that is to be returned to the underground storage tank excavation must
be sampled. The sampling must meet the following requirements:
(A) The exposure criteria in accordance with IC 13-12-3-2.
(B) One (1) discrete grab sample must be taken for every fifty (
(d) Soil sampling for change-in-service must be achieved as foll
(1) The boring locations are as follows:
(A) One (1) soil boring every twenty (20) feet around the tank a
(B) Each soil boring must be within three (3) feet adjacent to the underground storage tank.
(C) Soil sampling must be performed continuously using a sampling device relevant to the drilling technology used.
(D) Each soil boring must extend two (2) feet or greater below t
tank.
(E) If the soil boring depth is fifteen (15) feet or less, a min
Indiana Administrative CodePage 51
UNDERGROUND STORAGE TANKS
locations:
(i) The point where a contaminant is detected.
(ii) One (1) soil sample must be taken at the:
(AA) midpoint; and
(BB) bottom;
of the soil boring.
(F) If the soil boring depth is greater than fifteen (15) feet,
shallow soil sample must be taken one (1) foot or greater below grade. Samples must be collected where the release
is suspected or detected.
(2) Piping and dispenser sampling and analysis must be completed
(3) The waiver of closure sampling requirements under subsection (h) will not be granted for change in service.
(e) Water samples for an in-place closure must be collected in the following quantities and locations:
(1) One (1) boring must be placed in each of the four (4) principal directions within ten (10) feet of the area most likely to
have contaminated ground water.
(2) Each boring must extend to the first saturated ground water
area of suspected or confirmed release. A water sample must be collected from each boring if ground water is present within
a depth of thirty (30) feet or less.
(3) If ground water is not encountered within a depth of thirty (30) feet, an additional soil sample must be obtained at the base
of the boring or a minimum depth of thirty (30) feet.
(4) A ground water sample must be collected within any area where a suspected contaminant release has occurred, or where
a chemical of concern release has been substantiated through one
(A) Visual staining of the soil or water.
(B) Field screening with the following:
(i) Flame ionization detector or FID.
(ii) Photo ionization detector or PID.
(iii) Field gas chromatograph or GC.
(C) Petroleum odors.
(D) Laboratory analytical results.
(5) If bedrock is encountered in a boring before a depth of thirty (30) feet is reached, and a saturated ground water zone is
not encountered in the boring, an owner or operator may contact the agency for approval of alternative sampling or waiver
of ground water sampling requirements. The agency may approve a waiver of ground water sampling within the bedrock if
the owner or operator can demonstrate the following:
(A) A soil zone at least ten (10) feet thick existing immediately above the bedrock does not have a contaminant.
(B) A soil sample collected immediately above the bedrock does n
(f) Water samples for a removal closure must be collected in the following quantities and locations:
(1) If any water is encountered in any excavation, a minimum of
the water encountered.
(2) A ground water sample must be collected within any area where a suspected contaminant release has occurred, or where
a chemical of concern release has been substantiated through one
(A) Visual staining of the soil or water.
(B) Field screening with the following:
(i) Flame ionization detector or FID.
(ii) Photo ionization detector or PID.
(iii) Field gas chromatograph or GC.
(C) Petroleum odors.
(D) Laboratory analytical results.
(3) The sample collected in subdivision (2) must be collected from a continuously sampled boring that extends to the first
saturated ground water zone or to a total depth of thirty (30) f
(4) If ground water is not encountered within a depth of thirty
boring.
(5) If bedrock is encountered in a boring before a depth of thirty (30) feet is reached, and a saturated ground water zone is
Indiana Administrative CodePage 52
UNDERGROUND STORAGE TANKS
not encountered in the boring, an owner or operator may contact the agency for approval of alternative sampling or waiver
of ground water sampling requirements. The agency may approve a waiver of ground water sampling within the bedrock if
the owner or operator can demonstrate the following:
(A) A soil zone at least ten (10) feet thick existing immediately above the bedrock does not have a contaminant.
(B) A soil sample collected immediately above the bedrock does n
(g) Water samples for a change-in-service must be collected in t
(1) One (1) boring must be placed in each of the four (4) principal directions within ten (10) feet of the area most likely to
have contaminated ground water.
(2) Each boring must extend to the first saturated ground water
area of suspected or confirmed release. A water sample must be c
a depth of thirty (30) feet depth or less.
(3) If ground water is not encountered within a depth of thirty (30) feet, an additional soil sample must be obtained at the base
of the boring or a minimum depth of thirty (30) feet.
(4) A ground water sample must be collected within any area where a suspected contaminant release has occurred, or where
a chemical of concern release has been substantiated through one
(A) Visual staining of the soil or water.
(B) Field screening with the following:
(i) Flame ionization detector or FID.
(ii) Photo ionization detector or PID.
(iii) Field gas chromatograph or GC.
(C) Petroleum odors.
(D) Laboratory analytical results.
(5) If bedrock is encountered in a boring before a depth of thirty (30) feet is reached, and a saturated ground water zone is
not encountered in the boring, an owner or operator may contact the agency for approval of alternative sampling or waiver
of ground water sampling requirements. The agency may approve a waiver of ground water sampling within the bedrock if
the owner or operator can demonstrate the following:
(A) A soil zone at least ten (10) feet thick existing immediately above the bedrock does not have a contaminant.
(B) A soil sample collected immediately above the bedrock does n
(h) Closure sampling waiver requirements must be completed as fo
(1) The commissioner may waive closure sampling based on the fol
(A) The LUST incident number is assigned and the following requi
(i) Closure is conducted due to a confirmed release at the site.
(ii) The confirmed release occurred before the request for closu
(B) The initial site characterization meets the requirements of 329 IAC 9-5-5.1.
(C) The corrective action plan meets the requirements of 329 IAC
(2) Sites that have previous releases and are not under remediat
sampling waiver.
(Solid Waste Management Board; 329 IAC 9-6-2.5; filed Aug 30, 2004, 9:35 a.m.: 28 IR 168)
329 IAC 9-6-3Applicability to previously closed UST systems
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23
Sec. 3. When directed by the commissioner, the owner and operator of an UST system permanently closed before December
22, 1988, shall assess the excavation zone and close the UST system in accordance with this rule, and the closure must be performed
by a person certified under the rules of the fire prevention and building safety commission at 675 IAC 12-12, if releases fromthe
underground storage tank may, in the judgment of the commissione
(Solid Waste Management Board; 329 IAC 9-6-3; filed Dec 1, 1992, 5:00 p.m.: 16 IR 1074; filed Jul 1
environment.
p.m.: 22 IR 3722; readopted filed Jan 10, 2001, 3:25 p.m.: 24 IR 1535; filed Aug 30, 2004, 9:35 a.m.: 28 IR 172)
Indiana Administrative CodePage 53
UNDERGROUND STORAGE TANKS
329 IAC 9-6-4Closure records
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23
Sec. 4. The owner and operator shall maintain records in accordance with 329 IAC 9-3-1 that are capable of demonstrating
compliance with closure requirements under this rule. The resultthis
rule must be submitted to the agency within thirty (30) days aft.
Results of the excavation zone assessment must be maintained for at least three (3) years after completion of closure or change-in-
service in one (1) of the following ways:
(1) By the owner and operator who took the UST system out of ser
(2) By the current owner and operator of the UST system site.
(3) By mailing these records to the agency if the records cannot be maintained at the closed facility.
(Solid Waste Management Board; 329 IAC 9-6-4; filed Dec 1, 1992, 5:00 p.m.: 16 IR 1074; filed Jul 19, 1
3722; readopted filed Jan 10, 2001, 3:25 p.m.: 24 IR 1535; filed2:50
p.m.: 28 IR 1184)
329 IAC 9-6-5Temporary closure
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23
Sec. 5. (a) When an UST system is temporarily closed, the owner and operator shall complete the following:
(1) Continue operation and maintenance of corrosion protection under 329 IAC 9-3.1-2.
(2) Continue operation and maintenance of any release detection under 329 IAC 9-7, except release detection is not required
as long as the UST system is empty. The UST system is empty when
employed practices so that no more than:
(A) two and five-tenths (2.5) centimeters or one (1) inch of res
(B) three-tenths percent (0.3%) by weight of the total capacity
remains in the system.
(3) Comply with 329 IAC 9-4 and 329 IAC 9-5 if a release is susp
(b) When an UST system is temporarily closed for three (3) months or longer, the owner and operator also shall comply with
the following requirements:
(1) Leave vent lines open and functioning.
(2) Cap and secure the following:
(A) All other lines.
(B) Pumps.
(C) Manways.
(D) Ancillary equipment.
(c) When an UST system has been temporarily closed for twelve (1
(1) The owner and operator shall permanently close the UST system if it does not meet the:
(A) performance standards in 329 IAC 9-2-1 for new UST systems;
(B) upgrading requirements in 329 IAC 9-2.1;
except that the spill and overfill equipment requirements do not
(2) The owner and operator shall permanently close the substandard UST system at the end of the temporary twelve (12)
month period under sections 1 through 4 of this rule.
(3) The commissioner may grant an extension of the twelve (12) m
(A) The owner and operator shall complete a site assessment under section 2 of this rule before the owner and operator
may apply for an extension.
(B) The length of the extension is based on the following:
(i) The results of the site assessment under clause (A).
(ii) The owner and operator shall submit written proof that explains why permanent closure cannot take place
within the twelve (12) month period of temporary closure.
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UNDERGROUND STORAGE TANKS
(iii) The owner and operator shall submit information that explains when permanent closure will take place.
(d) The owner and operator shall demonstrate compliance with this section by providing a certification of compliance on the
notification form under 329 IAC 9-2-2. The certification must defied
(Solid
by the office of the state fire marshal under rules of the fire
Waste Management Board; 329 IAC 9-6-5; filed Jul 19, 1999, 12:00 p.m.: 22 IR 3722; readopted filed Jan 10, 2001, 3:25 p.m.:
24 IR 1535; filed Aug 30, 2004, 9:35 a.m.: 28 IR 173)
Rule 7.Release Detection
329 IAC 9-7-1General requirements for all UST systems
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23
Sec. 1. (a) All owners and operators of new and existing UST systems shall provide a method, or combina
of release detection that does the following:
(1) Can detect a release from any portion of the tank and the co
(2) Is installed, calibrated, operated, and maintained in accordance with the manufacturer's instructions, including routine
maintenance and service checks for operability or running condition.
(3) Meets the performance requirements in section 4 or 5 of this rule, with any performance claims and the manner of
determination of the performance claims described in writing by the equipment manufacturer or installer. In addition, methods
used after the date shown in the following table corresponding w
installed prior to that date, must be capable of detecting the l specified for that method in the corresponding
citation of this rule shown in the table with a probability of detection (Pd) of ninety-five hundredths (0.95) and a probability
of false alarm (Pfa) of five-hundredths (0.05):
MethodCitationDate After Which Pd/Pfa Was Demonstrated
Manual tank gaugingsection 4(2) of this ruleDecember 22, 1990
Tank tightness testingsection 4(3) of this ruleDecember 22, 1990
Automatic tank gaugingsection 4(4) of this ruleDecember 22, 1990
Automatic line leak detectorssection 5(1) of this ruleSeptember
Line tightness testingsection 5(2) of this ruleDecember 22, 1990
(b) When a release detection method that is operated under the prformance standards in sections 4 and 5 of this rule indicates
a release may have occurred, the owner and operator shall notify the agency under 329 IAC 9-4.
(c) Owners and operators of all UST systems shall comply with th
22 of the year listed in the following table:
SCHEDULE FOR PHASE-IN OF RELEASE DETECTION
Year When Release Detection Was Required
Year System Was Installed(By December 22 of the Year Indicated)
19891990199119921993
Before 1965 or date unknownRDP
1965-69P/RD
1970-74PRD
1975-79PRD
1980-88PRD
New tanks (after December 22, 1988) immediately upon installation. P = Shall have begun release detection for all pressurized
piping under sections 2(2)(A) and 3(2)(D) of this rule. RD = Shall have begun release detection for tanks and suction piping under
sections 2(1), 2(2)(B), and 3 of this rule.
(d) Any existing UST system that cannot apply a method of releas
closure procedures under 329 IAC 9-6-2.5 by the date on which release detection is required for that UST system under subsection
(Solid Waste Management Board; 329 IAC 9-7-1; filed Jul 19, 1999, 12:00 p.m.: 22 IR 3723; readopted fil
(c).
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UNDERGROUND STORAGE TANKS
p.m.: 24 IR 1535; filed Aug 30, 2004, 9:35 a.m.: 28 IR 173)
329 IAC 9-7-2Requirements for petroleum UST systems
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23
Sec. 2. The owner and operator of a petroleum UST system shall provide release detection for tanks and piping as follows:
(1) Tanks must be monitored at least every thirty (30) days for
through 4(8) of this rule, except for the following:
(A) An UST system that meets
the performance standards in 329 IAC 9-2-1 or 329 IAC 9-2.1 may
(i) the monthly inventory control requirements in section 4(1) o
(ii) tank tightness testing conducted under section 4(3) of this rule at least every five (5) years until December
22, 1998, or until ten (10) years after the tank is installed or upgraded under 329 IAC 9-2.1-1(b), whichever is
later.
(B) An UST system that does not meet the performance standards i
(i) monthly inventory controls conducted under section 4(1) or 4
(ii) annual tank tightness testing conducted under section 4(3) of this rule;
until December 22, 1998, when the tank must be upgraded under 329 IAC 9-2.1 or closed under 329 IAC 9-6-1 through
329 IAC 9-6-2.5.
(C) Tanks with capacity of five hundred fifty (550) gallons or less may use weekly tank gauging conducted under
section 4(2) of this rule.
(2) Underground piping that routinely contains regulated substances must be monitored for releases in a manner that meets
one (1) of the following requirements:
(A) Underground piping that conveys regulated substances under pressure must:
(i) be equipped with an automatic line leak detector under secti
(ii) have an annual line tightness test conducted under section 5(2) of this rule or have monthly monitoring
conducted under section 5(3) of this rule.
(B) Underground piping that conveys regulated substances under suction must either have a line tightness test
conducted at least every three (3) years under section 5(2) of t
section 5(3) of this rule. No release detection is required for suction piping that is designed and constructed to meet the
following standards:
(i) The below-grade piping operates at less than atmospheric pre
(ii) The below-grade piping is sloped so that the contents of the pipe will drain back into the storage tank if the
suction is released.
(iii) Only one (1) check valve is included in each suction line.
(iv) The check valve is located directly below and as close as practical to the suction pump.
(v) A method is provided that allows compliance with items (ii)
(Solid Waste Management Board; 329 IAC 9-7-2; filed Jul 19, 1999, 12:00 p.m.: 22 IR 3724; readopted fil
p.m.: 24 IR 1535; filed Aug 30, 2004, 9:35 a.m.: 28 IR 174)
329 IAC 9-7-3Requirements for hazardous substance UST systems
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23
Sec. 3. The owner and operator of a hazardous substance UST syst
requirements:
(1) Release detection at an existing UST system must meet the requirements for a petroleum UST system in section 2 of this
rule. By December 22, 1998, all existing hazardous substance USTsystems shall meet the release detection requirements for
a new system in subdivision (2).
(2) Release detection at a new hazardous substance UST system must meet the following requirements:
Indiana Administrative CodePage 56
UNDERGROUND STORAGE TANKS
(A) Secondary containment systems must be designed, constructed, and installed to complete the following:
(i) Contain regulated substances released from the tank system u
(ii) Prevent the release of regulated substances to the environment at any time during the operational life of the
UST system.
(iii) Be checked for evidence of a release at least every thirty (30) days.
(B) Double-walled tanks must be designed, constructed, and installed to complete the following:
(i) Contain a release from any portion of the inner tank within
(ii) Detect the failure of the inner wall.
(C) External liners, including vaults, must be designed, constructed, and installed to complete the following:
(i) Contain one hundred percent (100%) of the capacity of the la
(ii) Prevent the interference of precipitation or ground water intrusion with the ability to contain or detect a release
of regulated substances.
(iii) Surround the tank completely so that the external liners, including vaults, are capable of preventing lateral
as well as vertical migration of regulated substances.
(D) Underground piping must be equipped with secondary containment that satisfies the requirements of clause (A) and
may include either of the following:
(i) Trench liners.
(ii) Jacketing of double-walled pipe.
In addition, underground piping that conveys regulated substances under pressure must be equipped with an automatic
line leak detector under section 5(1) of this rule.
(E) Other methods of release detection may be used if the owner and operator complete the following:
(i) Demonstrate to the commissioner that an alternate method can detect a release of the stored substance as
effectively as any of the methods under section 4(2) through 4(8) of this rule can detect a release of petroleum.
(ii) Provide information to the commissioner on effective corrective action technologies, health risks, and
chemical and physical properties of the stored substance, and the characteristics of the UST site.
(iii) Obtain approval from the commissioner to use the alternate release detection method before the installation
and operation of the new UST system.
(Solid Waste Management Board; 329 IAC 9-7-3; filed Jul 19, 1999, 12:00 p.m.: 22 IR 3724; readopted filed Jan 10, 2001, 3:25
p.m.: 24 IR 1535)
329 IAC 9-7-4Methods of release detection for tanks
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23
Sec. 4. Each method of release detection for tanks used to meet section 2 of this rule must be conducted in accordance with
the following:
(1) Product inventory control, or another test of equivalent per conducted monthly to detect a release of
at least one percent (1.0%) of flow-through plus one hundred thirty (130) gallons on a monthly basis in the following manner:
(A) Inventory volume measurements for regulated substance inputs, withdrawals, and the amount still remaining in the
tank are recorded each operating day.
(B) The equipment used is capable of measuring the level of prod
nearest one-eighth () of an inch.
c
(C) The regulated substance inputs are reconciled with delivery receipts by measurement of the tank inventory volume
before and after delivery.
(D) Product dispensing is metered and recorded within the local standards for meter calibration or an accuracy of six
(6) cubic inches for every five (5) gallons of product withdrawn
(E) The measurement of any water level in the bottom of the tank) of an inch at
c
least once a month.
(F) Deliveries must be made through a drop tube that extends to
(2) Manual tank gauging must meet the following requirements:
(A) Tank liquid level measurements are taken at the beginning and ending of a period of at least thirty-six (36) hours
Indiana Administrative CodePage 57
UNDERGROUND STORAGE TANKS
during which no liquid is added to or removed from the tank.
(B) Level measurements are based on an average of two (2) consecutive stick readings at both the beginning and ending
of the period in clause (A).
(C) The equipment used is capable of measuring the level of prod
nearest one-eighth () of an inch.
c
(D) A leak is suspected and subject to 329 IAC 9-4 if the variat
exceeds the weekly or monthly standards in the following table:
Nominal TankWeekly StandardMonthly Standard
Capacity(1 Test)(Average of 4 Tests)
550 gallons or less10 gallons5 gallons
551Î1,000 gallons13 gallons7 gallons
1,001Î2,000 gallons26 gallons13 gallons
(E) The following requirements apply:
(i) Only tanks of five hundred fifty (550) gallons or less nomin
sole method of release detection.
(ii) Tanks of five hundred fifty-one (551) to two thousand (2,000) gallons may use manual tank gauging in place
of product inventory control in subdivision (1).
(iii) Tanks of greater than two thousand (2,000) gallons nominal capacity must not use manual tank gauging to
meet the requirements of this rule.
(3) Tank tightness testing, or another test of equivalent performance, must be capable of detecting a one-te
per hour leak rate from any portion of the tank that routinely c
following:
(A) Thermal expansion or contraction of the product.
(B) Vapor pockets.
(C) Tank deformation, evaporation, or condensation.
(D) Location of the water table.
(4) Equipment for automatic tank gauging that tests for the loss
following requirements:
(A) The automatic product level monitor test can detect a two-te
of the tank that routinely contains product.
(B) Inventory control, or another test of equivalent performance, is conducted under subdivision (1).
(5) Testing or monitoring for vapors within the soil gas of the
(A) The materials used as backfill are sufficiently porous to re
excavation area. The materials used as backfill may include any
(i) Gravel.
(ii) Sand.
(iii) Crushed rock.
(B) The stored regulated substance or a tracer compound placed in the tank system, which may include gasoline as an
example, is sufficiently volatile to result in a vapor level tha
excavation zone in the event of a release from the tank.
(C) The measurement of vapors by the monitoring device is not re
(i) ground water;
(ii) rainfall;
(iii) soil moisture; or
(iv) other known interferences;
so that a release could go undetected for more than thirty (30)
(D) The background level for contaminants in the excavation zone must not interfere with the method used to detect
releases from the tank.
(E) The vapor monitors are designed and operated to detect any s
of any of the following:
Indiana Administrative CodePage 58
UNDERGROUND STORAGE TANKS
(i) The regulated substance stored in the tank system.
(ii) A component or components of the regulated substance stored
(iii) A tracer compound placed in the tank system.
(F) In the UST excavation zone, the site is assessed to:
(i) ensure compliance with clauses (A) through (D); and
(ii) establish the number and positioning of observation wells that will detect releases within the excavation zone
from any portion of the tank that routinely contains product.
(G) Observation wells are clearly marked and secured to prevent damage and unauthorized access and tampering.
(6) Testing or monitoring for liquids on the ground water must m
(A) The regulated substance stored is immiscible in water and has a specific gravity of less than one (1).
(B) Ground water is never more than twenty (20) feet from the ground surface. The hydraulic conductivity of the soil
between the UST system and the observation wells, monitoring wel
hundredth (0.01) centimeter per second. The soil may consist of
(i) Gravel.
(ii) Coarse to medium sand.
(iii) Coarse silt.
(iv) Other permeable material.
(C) The slotted portion of the observation well casing must be d
(i) prevent migration of natural soils or filter pack into the w
(ii) allow entry of regulated substance on the water table into the well under both high and low ground water
conditions.
(D) Observation wells must be sealed from the ground surface to the top of the filter pack.
(E) Observation wells, monitoring wells, or monitoring devices m
(i) An observation well intercepts the excavation zone.
(ii) A monitoring well that meets the requirements of rules of t
is installed as close to the excavation zone as is technically f
excavation zone.
(iii) A monitoring device intercepts the excavation zone or is a
feasible.
(F) The continuous monitoring devices or manual methods used can detect the presence of at least one-eighth () of
c
an inch of free product on top of the ground water in the observ
(G) Within and immediately below the UST system excavation zone,
(i) ensure compliance with clauses (A) through (E); and
(ii) establish the number and positioning of observation wells, monitoring wells, or monitoring devices that will
detect releases from any portion of the tank that routinely cont
(H) Observation wells and monitoring wells are clearly marked and secured to prevent damage and unauthorized access
and tampering.
(7) Interstitial monitoring between the UST system and a secondary barrier immediately around or beneath it
but only if the system is designed, constructed, and installed t
contains product and also meets one (1) of the following require
(A) For a double-walled UST system, the sampling or testing meth
portion of the tank that routinely contains product.
(B) For an UST system with a secondary barrier within the excava
detect a release between the UST system and the secondary barrie
(i) The secondary barrier around or beneath the UST system consi
sufficiently thick and impermeable (no more than 1 × 10-6 centimeters per second for water) to direct a release
to an observation well and allow its detection.
(ii) The barrier is compatible with the regulated substance stor
cause a deterioration of the barrier allowing a release to pass
(iii) For cathodically protected tanks, the secondary barrier must be installed so that the secondary barrier does
not interfere with the proper operation of the cathodic protecti
Indiana Administrative CodePage 59
UNDERGROUND STORAGE TANKS
(iv) The ground water, soil moisture, or rainfall must not render the testing or sampling method used inoperative
so that a release could go undetected for more than thirty (30)
(v) The site is assessed to ensure that the secondary barrier is always above the ground water and not in a twenty-
five (25) year flood plain unless the barrier and observation well designs are for use under such conditions.
(vi) Observation wells are clearly marked and secured to prevent damage and unauthorized access and tampering.
(C) For tanks with an internally fitted liner, the following mus
(i) An automated device that can detect a release between the inner wall of the tank and the line
(ii) The liner is compatible with the substance stored.
(8) Any other type of release detection method, or combination of methods, may be used if one (1) of the following is
completed:
(A) The release detection method or combination of methods must
(i) Capability to detect a two-tenths (0.2) gallon per hour leak rate or a release of one hundred fifty (150) gallons
within a month.
(ii) Probability of detection of ninety-five hundredths (0.95) and a probability of false alarm of fi
(0.05).
(iii) The method is third party certified.
(B) The commissioner may approve another method if the owner and
detect a release as effectively as any of the methods allowed in subdivisions (3) through (7) and clause (A). In
comparing methods, the commissioner shall consider the size of r
and reliability with which it can be detected. If the method is approved, the owner and operator shall comply with any
conditions imposed by the commissioner on the method's use to en
environment.
(Solid Waste Management Board; 329 IAC 9-7-4; filed Jul 19, 1999, 12:00 p.m.: 22 IR 3725; readopted filed Jan 10, 2001, 3:2
p.m.: 24 IR 1535; filed Aug 30, 2004, 9:35 a.m.: 28 IR 175)
329 IAC 9-7-5Methods of release detection for piping
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23
Sec. 5. Each method of release detection for piping used to meet section 2 of this rule must be conducted in accordance with
the following:
(1) Automatic line leak detectors. Methods that alert the operat
(A) restricting or shutting off the flow of regulated substances
(B) triggering an audible or visual alarm;
may be used only if it detects leaks of at least three (3) gallons per hour at ten (10) pounds per square inch line pressure within
one (1) hour. An annual test of the operation of the automatic line leak detector must be conducted in accordance with the
manufacturer's requirements.
(2) Line tightness testing. A periodic line tightness test of piping may be conducted only if it can detect a one-tenth (0.1)
gallon per hour leak rate at one and one-half (1½) times the operating pressure.
(3) Applicable tank methods. Any of the methods in section 4(5)
designed to detect a release from any portion of the underground piping that routinely contains regulated substances.
(Solid Waste Management Board; 329 IAC 9-7-5; filed Jul 19, 1999, 12:00 p.m.: 22 IR 3727; readopted fil
p.m.: 24 IR 1535; filed Aug 30, 2004, 9:35 a.m.: 28 IR 177)
329 IAC 9-7-6Release detection record keeping (Repealed)
(Repealed by Solid Waste Management Board; filed Aug 30, 2004, 9
Sec. 6.
329 IAC 9-7-7Release detection certification of compliance
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23
Indiana Administrative CodePage 60
UNDERGROUND STORAGE TANKS
Sec. 7. The owner and operator shall demonstrate compliance with this rule by providing a certification of compliance on the
underground storage tank notification form under 329 IAC 9-2-2. certification must demonstrate that the person that performs
the work has been certified by the office of the state fire marshal under rules of the fire prevention and building safety commission
(Solid Waste Management Board; 329 IAC 9-7-7; filed Jul 19, 1999, 12:00 p.m.: 22 IR 3728; readopted filed Jan
at 675 IAC 12-12.
10, 2001, 3:25 p.m.: 24 IR 1535)
Rule 8.Financial Responsibility
329 IAC 9-8-1Applicability
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23-4-1; IC 13-23-4-2
Sec. 1. (a) This rule applies to owners and operators of all petcept as otherwise provided in this section.
(b) Owners and operators of petroleum UST systems are subject tothis rule if they are in operation on or after the date for
compliance established in section 2 of this rule.
(c) State and federal government entities whose debts and liabilities are the debts and liabilities of a state or the United Sates
are exempt from the requirements of this rule.
(d) The requirements of this rule do not apply to an owner and o
329 IAC 9-1-1(c).
(e) If the owner and operator of a petroleum underground storage tank are separate persons, only one (1) person is required
to demonstrate financial responsibility; however, both parties aliable in the event of noncompliance. Regardless of which party
complies, the date set for compliance at a particular facility in section
(Solid Waste Management Board; 329 IAC 9-8-1; filed Jul 19, 1999, 12:00 p.m.: 22 IR 3728; readopted filed Jan 10,
2 of this rule.
2001, 3:25 p.m.: 24 IR 1535)
329 IAC 9-8-2Compliance dates
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23-4-1; IC 13-23-4-2
Sec. 2. Owners of petroleum underground storage tanks are required to comply with the requirements of this rule by the
following dates:
(1) All petroleum marketing firms owning one thousand (1,000) or more underground storage tanks and all other underground
storage tank owners that report a tangible net worth of twenty million dollars ($20,000,000) or more to:
(A) the U.S. Securities and Exchange Commission (SEC);
(B) Dun and Bradstreet;
(C) the Energy Information Administration; or
(D) the Rural Utilities Service of the United States Department
Administration);
by January 24, 1989, except that compliance with section 5(b) of this rule is required by July 24, 1989.
(2) All petroleum marketing firms owning one hundred (100) to ni
by October 26, 1989.
(3) All petroleum marketing firms owning thirteen (13) to ninety
facility by April 26, 1991.
(4) All petroleum underground storage tank owners not described in subdivision (1), (2), or (3), excluding local government
entities by December 31, 1993.
(5) All local government entities, including Indian tribes, not
(6) Indian tribes that own underground storage tanks on Indian lnds that meet the applicable technical requirements of this
article by December 31, 1998.
(Solid Waste Management Board; 329 IAC 9-8-2; filed Jul 19, 1999, 12:00 p.m.: 22 IR 3728; readopted filed Jan 10, 2001, 3:2
p.m.: 24 IR 1535)
Indiana Administrative CodePage 61
UNDERGROUND STORAGE TANKS
329 IAC 9-8-3Definitions
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-13-1-1; IC 13-23-4-1; IC 13-23-4-2
Sec. 3. (a) The definitions in this section apply throughout thi
(b) "Accidental release" means any:
(1) sudden; or
(2) nonsudden;
release of petroleum from an underground storage tank that resul in a need for corrective action or compensation or both for bodily
injury or property damage neither expected nor intended by the t
(c) "Bodily injury" has the meaning given to this term by applicable state law; however, this term must not include those
liabilities that, consistent with standard insurance industry practices, are excluded from coverage in liability insurance policies for
bodily injury.
(d) "Chief financial officer", in the case of a local government owner and operator, means the individual with the overall
authority and responsibility for the collection, disbursement, and use of funds by the local government.
(e) "Commissioner" means the commissioner of the department of environmental management as created under IC 13-13-1-1.
(f) "Controlling interest" means direct ownership of at least fifty percent (50%) of the voting stock of another entity.
(g) "Financial reporting year" means the latest consecutive twel (12) month fiscal or calendar year period for which any of
the following reports used to support a financial test is prepar
(1) A 10-K report submitted to the U.S. Securities and Exchange
(2) An annual report of tangible net worth submitted to Dun and
(3) Annual reports submitted to the Energy Information Administr
Department of Agriculture (formerly the Rural Electrification Ad
(h) "Legal defense cost" means any expense that an owner or operator, or provider of financial assurance incurs in defending
against claims or actions brought by any of the following:
(1) By the United States Environmental Protection Agency (EPA) or Indiana to require corrective action or recover the costs
of corrective action.
(2) By or on behalf of a third party for bodily injury or property damage caused by an accidental release.
(3) By any person to enforce the terms of a financial assurance
(i) "Local government" includes any of the following:
(1) City.
(2) County.
(3) County solid waste management district.
(4) Joint solid waste management district.
(5) Municipal corporation.
(6) Municipality.
(7) School corporation.
(8) Special district.
(9) Special taxing district.
(10) Town.
(11) Township.
(12) Unit.
(13) Indian tribe.
(14) Any other legal entity given this term by applicable state
(j) "Occurrence" means an accident, including continuous or repeed exposure to conditions, that results in a release from an
underground storage tank. The definition of this term is intendeto assist in the understanding of this rule and is not intended either
to limit the meaning of occurrence in a way that conflicts with andard insurance usage or to prevent the use of other standard
insurance terms in place of occurrence.
(k) "Owner or operator", when the owner or operator are separate parties, means the party that is obtaining or has obtained
financial assurance.
(l) "Petroleum marketing facilities" means all facilities at whih petroleum is produced or refined and all facilities from which
Indiana Administrative CodePage 62
UNDERGROUND STORAGE TANKS
petroleum is sold or transferred to other petroleum marketers or to the public.
(m) "Petroleum marketing firms" means all firms owning petroleum marketing facilities. Firms owning other types of facilities
with underground storage tanks as well as petroleum marketing facilities are considered to be petroleum marketing firms.
(n) "Property damage" has the meaning given this term by applicable state law. This term must not include those liabilities
that, consistent with standard insurance industry practices, are excluded from coverage in liability insurance policies for property
damage. However, such exclusions for property damage must not include corrective action associated with releases from tanks
covered by the policy.
(o) "Provider of financial assurance" means an entity that provi
underground storage tank through one (1) of the mechanisms listeollow-
ing:
(1) Guarantor.
(2) Insurer.
(3) Risk retention group.
(4) Surety.
(5) Issuer of a letter of credit.
(6) Issuer of a state-required mechanism.
(7) State.
(p) "Substantial governmental relationship" means the extent of a governmental relationship necessary under applicable state
law to make an added guarantee contract issued incident to that ued
incident to that relationship if it arises from a clear commonalease,
including any of the following:
(1) Coterminous boundaries.
(2) Overlapping constituencies.
(3) Common ground water aquifer.
(4) Other relationship other than monetary compensation that provides a motivation for the guarantor to provide a guarantee.
(q) "Tangible net worth" means the tangible assets that remain ales
such as goodwill and rights to patents or royalties. As used in this subsection, "assets" means all existing and all probable future
economic benefits obtained or controlled by a particular entity as a result of past transactions.
(r) "Termination", under section 8(b) of this rule, means only te changes that could result in a gap in coverage as where
the insured has:
(1) not obtained substitute coverage; or
(2) obtained substitute coverage with a different retroactive date than the retroactive date of the orig
(Solid Waste Management Board; 329 IAC 9-8-3; filed Jul 19, 1999, 12:00 p.m.: 22 IR 3728; errata filed Sep 10, 1999, 9:08 a.m.:
23 IR 26; readopted filed Jan 10, 2001, 3:25 p.m.: 24 IR 1535)
329 IAC 9-8-4Amount and scope of required financial responsibili
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23-4-1; IC 13-23-4-2
Sec. 4. (a) An owner or operator of a petroleum underground storage tank shall demonstrate financial responsibility for taking
corrective action and for compensating third parties for bodily jury and property damage caused by accidental releases arising from
the operation of a petroleum underground storage tank in a per occurrence amount of at least one million dollars ($1,000,000).
(b) An owner or operator of a petroleum underground storage tank shall demonstrate financial responsibility for taking correc-
tive action and for compensating third parties for bodily injuryand property damage caused by accidental releases arising from the
operation of a petroleum underground storage tank in at least the following annual aggregate amounts:
(1) For an owner or operator of one (1) to one hundred (100) pet
($1,000,000).
(2) For an owner or operator of one hundred one (101) or more petroleum underground storage tanks, two million dollars
($2,000,000).
(c) As used in subsections (b) and (f), "petroleum underground storage tank" means a single containment
mean combinations of single containment units.
Indiana Administrative CodePage 63
UNDERGROUND STORAGE TANKS
(d) Except as provided in subsection (e), if the owner or operator uses separate mechanisms or separate combinations of
mechanisms to demonstrate financial responsibility for:
(1) taking corrective action;
(2) compensating third parties for bodily injury and property damage caused by sudden accidental releases; or
(3) compensating third parties for bodily injury and property damage caused by nonsudden accidental releases;
the amount of assurance provided by each mechanism or combination of mechanisms must be in the full amount specified in
subsections (a) and (b).
(e) If an owner or operator uses separate mechanisms or separate combinations of mechanisms to demonstrat
responsibility for different petroleum underground storage tankse annual aggregate required must be based on the number of tanks
covered by each such separate mechanism or combination of mechan
(f) The owner or operator shall review the amount of aggregate a
underground storage tanks are acquired or installed. The owner or operator shall complete the following:
(1) If the number of petroleum underground storage tanks for which assurance must be provided exceeds one hundred (100),
the owner or operator shall demonstrate financial responsibility in the amount of at least two million d
annual aggregate assurance by the anniversary of the date on whiting financial responsibility has
become effective.
(2) If assurance is demonstrated by a combination of mechanisms, the owner or operator shall demonstrate financial
responsibility in the amount of at least two million dollars ($2,000,000) of annual aggregate assurance by the first occurring
effective date anniversary of any one (1) of the mechanisms combined (other than a financial test or guarantee) to provide
assurance.
(g) The amounts of assurance required under this section exclude
(h) The required per occurrence and annual aggregate coverage amounts do not in any way limit the liability of the owner or
(Solid Waste Management Board; 329 IAC 9-8-4; filed Jul 19, 1999, 12:00 p.m.: 22 IR 3730; readopted filed Jan 10, 2001
operator.
3:25 p.m.: 24 IR 1535)
329 IAC 9-8-5Allowable mechanisms and combinations of mechanisms
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23-4-1; IC 13-23-4-2
Sec. 5. (a) Subject to the limitations of subsections (b) and (c), an owner or operator may use the follow
financial responsibility:
(1) An owner or operator, including a local government owner or
mechanisms listed in sections 6 through 13 of this rule to demonstrate financial responsibility under this rule for one (1) o
more underground storage tanks.
(2) A local government owner or operator may use any one (1) or combination of the mechanisms listed in sections 14 through
17 of this rule to demonstrate financial responsibility under this rule for one (1) or more underground storage tanks.
(b) An owner or operator may use a:
(1) guarantee under section 7 or 11(c)(8) of this rule; or
(2) surety bond under section 9 of this rule;
to establish financial responsibility only if the attorney general of Indiana has submitted a written statemeoner that
a guarantee or surety bond executed as described in this section is a legally valid and enforceable obligation in Indiana.
(c) An owner or operator may use self-insurance in combination w
requirements of the financial test under this rule, the financia the
(Solid Waste Management Board; 329 IAC 9-8-5; filed Jul 19, 1999, 12:00 p.m.: 22 IR 3730;
financial statements of the guarantor.
readopted filed Jan 10, 2001, 3:25 p.m.: 24 IR 1535)
329 IAC 9-8-6Financial test of self-insurance
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23-4-1; IC 13-23-4-2
Sec. 6. (a) An:
Indiana Administrative CodePage 64
UNDERGROUND STORAGE TANKS
(1) owner or operator and guarantor;
(2) owner or operator; or
(3) guarantor;
may satisfy the requirements of section 4 of this rule by passina financial test as specified in this section. To pass the financial test
of self-insurance, the owner or operator and guarantor, the owneor operator, or the guarantor shall meet the criteria of subsection
(b) or (c) based on year end financial statements for the latest
(b) The owner or operator and guarantor, the owner or operator, or the guarantor shall complete the following:
(1) The owner or operator and guarantor, the owner or operator, have a tangible net worth of at least ten
(10) times:
(A) the total of the applicable aggregate amount required by:
(i) section 4 of this rule, based on the number of underground storage tanks for which a financial test is used to
demonstrate financial responsibility to the commissioner under t
(ii) the EPA under 40 CFR 280.93 and 40 CFR 280.95;
(B) the sum of the corrective action cost estimates, the current closure and post-closure care cost estimates, and amount
of liability coverage for which a financial test is used to demonstrate financial responsibility to:
(i) the commissioner under 329 IAC 3.1-9, 329 IAC 3.1-14, and 32
(ii) the EPA under:
(AA) 40 CFR 264.101;
(BB) 40 CFR 264.143;
(CC) 40 CFR 264.145;
(DD) 40 CFR 264.147;
(EE) 40 CFR 265.143;
(FF) 40 CFR 265.145; and
(GG) 40 CFR 265.147; and
(C) the sum of current plugging and abandonment cost estimates f
financial responsibility:
(i) under a state program authorized by the EPA under 40 CFR 145
(ii) to the EPA under 40 CFR 144.63.
(2) The owner or operator and guarantor, the owner or operator, have a tangible net worth of at least ten
million dollars ($10,000,000).
(3) The owner or operator and guarantor, the owner or operator, or the guarantor shall have a letter signedial
officer worded as specified in subsection (d).
(4) The owner or operator and guarantor, the owner or operator, or the guarantor shall complete either of the following:
(A) File financial statements annually with the U.S. Securities and Exchange Commission (SEC), the Energy Informa-
tion Administration, or the Rural Utilities Service of the United States Department Of Agriculture (formerly the Rural
Electrification Administration).
(B) Report annually the firm's tangible net worth to Dun and Bradstreet. Dun and Bradstreet shall have assigned the firm
a financial strength rating of 4A or 5A.
(5) The firm's year end financial statements, if independently a
(A) an adverse auditor's opinion;
(B) a disclaimer of opinion; or
(C) a going concern qualification.
(c) The owner or operator and guarantor, the owner or operator, or the guarantor shall complete the following:
(1) The owner or operator and guarantor, the owner or operator, or the guarantor shall meet the financial test requirements of
40 CFR 265.147(f)(1), substituting the appropriate amounts speciin section 4(b) of this rule for the amount of liability
coverage each time specified in that section. 40 CFR 265.147(f)( revised as of July 1, 1997, is incorporated by reference.
The Code of Federal Regulations is available from the Superintendent of Documents, Government Printing Office,
Washington, D.C. 20402.
(2) The fiscal year end financial statements of the owner or operator and guarantor, the owner or operator, or the guarantor
must be examined by an independent certified public accountant and be accompanied by the accountant's report of the
examination.
Indiana Administrative CodePage 65
UNDERGROUND STORAGE TANKS
(3) The firm's year end financial statements cannot include:
(A) an adverse auditor's opinion;
(B) a disclaimer of opinion; or
(C) a going concern qualification.
(4) The owner or operator and guarantor, the owner or operator, or the guarantor shall have a letter signedial
officer, worded as specified in subsection (d).
(5) If the financial statements of the owner or operator and guarantor, the owner or operator, or the guarantor are not submitted
annually to the U.S. Securities and Exchange Commission (SEC), the Energy Information Administration, or the Rural Utilities
Service of the United States Department of Agriculture (formerly the Rural Electrification Administration), the owner or
operator and guarantor, the owner or operator, or the guarantor shall obtain a special report by an independc
accountant stating that:
(A) the independent certified public accountant has compared the
specifies as having been derived from the latest year end financial statements of the owner or operator and guarantor,
the owner or operator, or the guarantor with the amounts in such
(B) in connection with that comparison, no matters came to the a
believe that the specified data should be adjusted.
(d) To demonstrate that it meets the financial test under subsecon (b) or (c), the chief financial officer of the owner or operator
or guarantor shall sign, within one hundred twenty (120) days of the close of each financial reporting year as defined by the twelve
(12) month period for which financial statements used to supportthe financial test are prepared, a letter worded exactly as follows,
except that the instructions in brackets are to be replaced by the relevant information and the brackets deleted:
Letter from Chief Financial Officer
I am the chief financial officer of [insert name and address of the owner or operator or guarantor]. This letter is in support of the use
of [insert "the financial test of self-insurance" or "guarantee"ity for
[insert "taking corrective action" or "compensating third parties for bodily injury and property damage" or both of those phrases]
caused by [insert "sudden accidental releases" or "nonsudden accal releases" or both of those phrases] in the amount of at least
[insert dollar amount] per occurrence and [insert dollar amount]annual aggregate arising from operating (an) underground storage
tank(s).
Underground storage tanks at the following facilities are assurethis financial test, a financial test under an authorized state
program, or a financial test under the United States Environmentl Protection Agency (EPA) regulations by this [insert "owner or
operator" or "guarantor" or both of those phrases]: [List for each facility the name and address of the facility where tanks asured
by this financial test are located, and whether tanks are assured by this financial test, a financial test under a state program approved
under 40 CFR 281, or a financial test under EPA under 40 CFR 280.95. If separate mechanisms or combinations of mechanisms are
being used to assure any of the tanks at this facility, list eac
authorized under 40 CFR 281, or a financial test under EPA under 40 CFR 280.95 by the tank identification number provided in the
notification submitted pursuant to 329 IAC 9-2-2, the applicableregulation of a state program authorized under 40 CFR 281, or EPA
under 40 CFR 280.22.]
A [insert "financial test" or "guarantee" or both of those phrases] is also used by this [insert "owner or operator" or "guarantor"] to
demonstrate evidence of financial responsibility in the following amounts under other EPA regulations or state programs authorized
by EPA under 40 CFR 271 and 40 CFR 145:
Indiana RulesAmount
Closure (329 IAC 3.1-14-4 through 329 IAC
3.1-14-12 and 329 IAC 3.1-15-4)$____
Post-Closure Care (329 IAC 3.1-14-14 through
329 IAC 3.1-14-22 and 329 IAC 3.1-15-6)$____
Liability Coverage (329 IAC 3.1-14-24 and 329
IAC 3.1-15-8)$____
Corrective Action (329 IAC 3.1-9-1)$____
Authorized State Rules under 40 CFR 145
Plugging and Abandonment$____
EPA Regulations
Closure (40 CFR 264.143 and 40 CFR 265.143)$____
Indiana Administrative CodePage 66
UNDERGROUND STORAGE TANKS
Post-Closure Care (40 CFR 264.145 and
40 CFR 265.145)$____
Liability Coverage (40 CFR 264.147 and
40 CFR 265.147)$____
Corrective Action (40 CFR 264.101(b))$____
Plugging and Abandonment (40 CFR 144.63)$____
Total$____
This [insert "owner or operator" or "guarantor"] has not receivern
qualification from an independent auditor on his or her financial statements for the latest completed fiscal year.
[Fill in the information for Alternative I if the criteria of 32e
financial test requirements. Fill in the information for Alternative II if the criteria of 329 IAC 9-8-6(c) are being used to demonstrate
compliance with the financial test requirements.]
Alternative I
1. Amount of annual UST aggregate coverage being assured by a fi$____
2. Amount of corrective action, closure and post-closure care costs, liability coverage, and plugging and abandonment costs coered
by a financial test or guarantee or both$____
3. Sum of lines 1 and 2$____
4. Total tangible assets$____
5. Total liabilities (if any of the amount reported on line 3 is included in total liabilities, you may deduct that amount from this line
and add that amount to line 6)$____
6. Tangible net worth (subtract line 5 from line 4)$____
Yes No
7. Is line 6 at least $10 million?___ ___
8. Is line 6 at least 10 times line 3?___ ___
9. Have financial statements for the latest fiscal year been filed with the U.S. Securities and Exchange Commission (SEC)___ ___
10. Have financial statements for the latest fiscal year been filed with the Energy Information Administration?___ ___
11. Have financial statements for the latest fiscal year been fitment
Of Agriculture (formerly the Rural Electrification Administratio___ ___
12. Has financial information been provided to Dun and Bradstreet, and has Dun and Bradstreet provided a financial strength raing
of 4A or 5A?___ ___
(Answer "Yes" only if both criteria have been met.)
Alternative II
1. Amount of annual UST aggregate coverage being assured by a fi$____
2. Amount of corrective action, closure and post-closure care costs, liability coverage, and plugging and abandonment costs coered
by a financial test or guarantee or both$____
3. Sum of lines 1 and 2$____
4. Total tangible assets$____
5. Total liabilities (if any of the amount reported on line 3 is included in total liabilities, you may deduct that amount from this line
and add that amount to line 6)$____
6. Tangible net worth (subtract line 5 from line 4)$____
7. Total assets in the U.S. (required only if less than 90 percent of assets are located in the U.S.)$____
Yes No
8. Is line 6 at least $10 million?___ ___
9. Is line 6 at least 6 times line 3?___ ___
10. Are at least 90 percent of assets located in the U.S.? (If "No," complete line 11.)___ ___
11. Is line 7 at least 6 times line 3?___ ___
[Fill in either lines 12-15 or lines 16-18]
12. Current assets$____
13. Current liabilities$____
14. Net working capital (subtract line 13 from line 12)$____
Yes No
Indiana Administrative CodePage 67
UNDERGROUND STORAGE TANKS
15. Is line 14 at least 6 times line 3?___ ___
16. Current bond rating of most recent bond issue___ ___
17. Name of rating service___ ___
18. Date of maturity of bond___ ___
19. Have financial statements for the latest fiscal year been filed with the U.S. Securities and Exchange Commission (SEC), th
Energy Information Administration, or the Rural Utilities Servic the United States Department of Agriculture (formerly the Rural
Electrification Administration)?___ ___
[If "No," please attach a report from an independent certified public accountant certifying that there are no material differences
between the data as reported in lines 4-18 above and the financi
[For both Alternative I and Alternative II, complete the certification with this statement.]
I hereby certify that the wording of this letter is identical towere
constituted on the date shown immediately below.
[Signature]
[Name]
[Title]
[Date]
(e) If an owner or operator using the test to provide financial assurance finds that the owner no longer meets the requirement
of the financial test based on the year end financial statements, the owner or operator shall obtain alternative coverage within one
hundred fifty (150) days of the end of the year for which financial statements have been prepared.
(f) The commissioner may require reports of financial condition at any time from the owner or operator and guarantor, the
owner or operator, or the guarantor. If the commissioner finds, er or
operator and guarantor, the owner or operator, or the guarantor no longer meets the financial test requirements of subsections (b) or
(c) and (d), the owner or operator shall obtain alternate coverage within thirty (30) days after notificatio.
(g) If the owner or operator fails to obtain alternate assurance
(1) one hundred fifty (150) days of finding that the owner no longer meets the requirements of the financial test based on the
year end financial statements; or
(2) thirty (30) days of notification by the commissioner that the owner no longer meets the requirements of the financial test;
(Solid Waste Management Board; 329 IAC
the owner or operator shall notify the commissioner of such fail
9-8-6; filed Jul 19, 1999, 12:00 p.m.: 22 IR 3731; readopted filed Jan 10, 2001, 3:25 p.m.: 24 IR 1535)
329 IAC 9-8-7Guarantee
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23-4-1; IC 13-23-4-2
Sec. 7. (a) An owner or operator may satisfy the requirements of section 4 of this rule by obtaining a gua
to this section. The guarantor shall be a firm that:
(1) possesses a controlling interest in the owner or operator;
(2) possesses a controlling interest in a firm described under s
(3) is controlled through stock ownership by a common parent firm that possesses a controlling interest in the owner or
operator.
(b) The guarantor shall complete the following:
(1) Within one hundred twenty (120) days of the close of each financial reporting year, the guarantor shall demonstrate that
it meets the financial test criteria of section 6 of this rule based on year end financial statements for the latest completed
financial reporting year by completing the letter from the chiefncial officer described in section 6(d) of this rule and shall
deliver the letter to the owner or operator.
(2) If the guarantor fails to meet the requirements of the finanial test at the end of any financial reporting year, within one
hundred twenty (120) days of the end of that financial reporting year, the guarantor shall send by cert
cancellation or nonrenewal of the guarantee, notice to the owner
(3) If the commissioner notifies the guarantor that the guaranto
section 6(b) or 6(c) and 6(d) of this rule, the guarantor shall notify the owner or operator within ten (10) days of receivinsuch
notification from the commissioner.
Indiana Administrative CodePage 68
UNDERGROUND STORAGE TANKS
As used in subdivisions (2) and (3), the guarantee terminates noless than one hundred twenty (120) days after the date the owner
or operator receives the notification as evidenced by the return receipt. The owner or operator shall obtain alternative coverage as
specified in section 20(c) of this rule.
(c) The guarantee must be worded as follows, except that instructions in brackets are to be replaced with the relevant informa-
tion and the brackets deleted:
Guarantee
Guarantee made this [date] by [insert name of guaranteeing entit], a business entity organized under the laws of the state of [insert
name of state], herein referred to as guarantor, to the Indiana Department of Environmental Management (IDEM) and to any and
all third parties, and obligees, on behalf of [owner or operator] of [business address].
Recitals
1. Guarantor meets or exceeds the financial test criteria of 329IAC 9-8-6(b) or 329 IAC 9-8-6(c) and 329 IAC 9-8-6(d) and agrees
to comply with the requirements for guarantors as specified in 3
2. [Owner or operator] owns or operates the following undergrounstorage tank(s) covered by this guarantee: [List the number of
tanks at each facility and the name(s) and address(es) of the facility(ies) where the tanks are located. If more than one instrument
is used to assure different tanks at any one facility, for each tank covered by this instrument, list the tank identification number
provided in the notification submitted pursuant to 329 IAC 9-2-2and the name and address of the facility.] This guarantee satisfies
329 IAC 9-8 requirements for assuring funding for [insert "takincorrective action" or "compensating third parties for bodily injury
and property damage caused by" or "taking corrective action and compensating third parties for bodily injury and property damage
caused by" either "sudden accidental releases" or "nonsudden acc releases" or "accidental releases"; if coverage is different
for different tanks or locations, indicate the type of coverage applicable to each tank or location] arising from operating the above-
identified underground storage tank(s) in the amount of [insert dollar amount] per occurrence and [insert dollar amount] annua
aggregate.
3. [Insert appropriate phrase "On behalf of our subsidiary" (if guarantor is a corporate parent of the owner or operator) or "On behalf
of our affiliate" (if guarantor is a related firm of the owner or operator)] [owner or operator], guarantor guarantees to IDEM and to
any and all third parties that:
In the event that [owner or operator] fails to provide alternative coverage within 60 days after receipt of a notice of cancelation of
this guarantee and the IDEM commissioner has determined or suspects that a release has occurred at an underground storage tank
covered by this guarantee, the guarantor, upon instructions from the IDEM commissioner, shall fund a standby trust fund in
accordance with the provisions of 329 IAC 9-8-22 in an amount not to exceed the coverage limits specified above.
In the event that the IDEM commissioner determines that [owner or operator] has failed to perform corrective action for releass
arising out of the operation of the above-identified tank(s) in accordance with 329 IAC 9-5, the guarantor, upon written instctions
from the IDEM commissioner, shall fund a standby trust in accordce with the provisions of 329 IAC 9-8-22 in an amount not to
exceed the coverage limits specified above.
If [owner or operator] fails to satisfy a judgment or award based on a determination of liability for bodily injury or property damage
to third parties caused by [insert "sudden" or "nonsudden" or boh of those phrases] accidental releases arising from the operation
of the above-identified tank(s), or fails to pay an amount agree to in settlement of a claim arising from or alleged to arise from such
injury or damage, the guarantor, upon written instructions from the IDEM commissioner, shall fund a standby trust in accordance
with the provisions of 329 IAC 9-8-22 to satisfy such judgment(s, award(s), or settlement agreement(s) up to the limits of coverage
specified above.
4. Guarantor agrees that if, at the end of any fiscal year beforhe financial
test criteria of 329 IAC 9-8-6(b) or 329 IAC 9-8-6(c) and 329 IAC 9-8-6(d), guarantor shall send within 120 days of such failure,
by certified mail, notice to [owner or operator]. The guarantee ill terminate 120 days from the date of receipt of the notice by [owner
or operator] as evidenced by the return receipt.
5. Guarantor agrees to notify [owner or operator] by certified mail of a voluntary or involuntary proceeding under the bankrucy
laws of the United States (11 U.S.C. 101 et seq.), naming guarantor as debtor, within 10 days after commencing.
6. Guarantor agrees to remain bound under this guarantee notwithanding any modification or alteration of any obligation of [owner
or operator] pursuant to 329 IAC 9.
7. Guarantor agrees to remain bound under this guarantee for so
financial responsibility requirements of 329 IAC 9-8 for the abo-identified tank(s), except that guarantor may cancel this guarantee
by sending notice by certified mail to [owner or operator], suchcancellation to become effective no earlier than 120 days after receipt
of such notice by [owner or operator] as evidenced by the return receipt.
Indiana Administrative CodePage 69
UNDERGROUND STORAGE TANKS
8. The guarantor's obligation does not apply to any of the follo
(a) Any obligation of [owner or operator] under a workers' compensation, disability benefits, or unemployment compensation
law or other similar law.
(b) Bodily injury to an employee of [owner or operator] arising
(c) Bodily injury or property damage arising from the ownership, maintenance, use, or entrustment to others of any aircraft,
motor vehicle, or watercraft.
(d) Property damage to any property owned, rented, loaned to, in the care, custody, or control of, or occupied by [owner or
operator] that is not the direct result of a release from a petroleum underground storage tank.
(e) Bodily injury or property damage for which [owner or operator] is obligated to pay damages by reason of the assumption
of liability in a contract or agreement other than a contract or agreement entered into to meet the requirements of 329 IAC 9-8-
4.
9. Guarantor expressly waives notice of acceptance of this guarantee by IDEM, by any or all third parties, or by [owner or operator].
I hereby certify that the wording of this guarantee is identicalns were
constituted on the effective date shown immediately below.
Effective date:
[Name of guarantor]
[Authorized signature for guarantor]
[Name of person signing]
[Title of person signing]
Signature of witness or notary:
(d) An owner or operator who uses a guarantee to satisfy section 4 of this rule shall establish a standby trust fund when the
guarantee is obtained. Under the terms of the guarantee, all amounts that are paid by the guarantor under the guarantee must be
deposited directly into the standby trust fund in accordance wit instructions from the commissioner under section 22 of this rule.
(Solid Waste Management Board; 329 IAC
This standby trust fund must meet the requirements specified in
9-8-7; filed Jul 19, 1999, 12:00 p.m.: 22 IR 3734; readopted filed Jan 10, 2001, 3:25 p.m.: 24 IR 1535)
329 IAC 9-8-8Insurance and risk retention group coverage
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23-4-1; IC 13-23-4-2
Sec. 8. (a) An owner or operator may satisfy the requirements of
conforms to this section from a qualified insurer or risk retenton group. Such insurance may be in the form of a separate insurance
policy or an endorsement to an existing insurance policy.
(b) Each insurance policy must be amended by an endorsement word
certificate of insurance worded as specified in subdivision (2),except that instructions in brackets must be replaced with the r
information and the brackets deleted:
(1) Endorsement
Name: [insert name of each covered location]
Address: [insert address of each covered location]
Policy Number:
Period of Coverage: [current policy period]
Name of [Insurer or Risk Retention Group]:
Address of [Insurer or Risk Retention Group]:
Name of Insured:
Address of Insured:
Endorsement
1. This endorsement certifies that the policy to which the endorsement is attached provides liability insurance covering the following
underground storage tanks:
[List the number of tanks at each facility and the name(s) and address(es) of the facility(ies) where the tanks are located. If more than
one instrument is used to assure different tanks at any one facidentification
number provided in the notification submitted pursuant to 329 IAC 9-2-2, and the name and address of the facility.]
Indiana Administrative CodePage 70
UNDERGROUND STORAGE TANKS
For [insert "taking corrective action" or "compensating third pang
corrective action and compensating third parties for bodily injueases"
or "nonsudden accidental releases" or "accidental releases"; in ons,
conditions, and other terms of the policy; if coverage is differrage
applicable to each tank or location] arising from operating the underground storage tank(s) identified above.
The limits of liability are [insert the dollar amount of the "ea occurrence" and "annual aggregate" limits of the Insurer's or Group's
liability; if the amount of coverage is different for different types of coverage or for different undergr locations,
indicate the amount of coverage for each type of coverage, or for each underground storage tank or location, or for each type of
coverage and for each underground storage tank or location], exce of legal defense costs, which are subject to a separate limit
under the policy. This coverage is provided under [policy number]. The effective date of said policy is [date].
2. The insurance afforded with respect to such occurrences is subject to all of the terms and conditions of the policy; providd,
however, that any provisions inconsistent with subsections (a) through (e) of this paragraph 2 are hereby amended to conform with
subsections (a) through (e).
a. Bankruptcy or insolvency of the Insured shall not relieve the ["Insurer" or "Group"] of its obligations under the policy t
which this endorsement is attached.
b. The ["Insurer" or "Group"] is liable for the payment of amounts within any deductible applicable to the policy to the
provider of corrective action or a damaged third party, with a right of reimbursement by the Insured for any such payment
made by the ["Insurer" or "Group"]. This provision does not appl
coverage is demonstrated under another mechanism or combination of mechanisms as specified in 329 IAC 9-8-6 through 329
IAC 9-8-12.
c. Whenever requested by the Indiana Department of Environmental Management (IDEM) commissioner, the ["Insurer" or
"Group"] agrees to furnish to the IDEM commissioner a signed duplicate original of the policy and all endorsements.
d. Cancellation or any other termination of the insurance by the ["Insurer" or "Group"], except for nonpayment of premium
or misrepresentation by the Insured, will be effective only uponwritten notice and only after the expiration of sixty (60) days
after a copy of such written notice is received by the Insured. Cancellation for nonpayment of premium or misrepresentation
by the Insured will be effective only upon written notice and onter expiration of a minimum of ten (10) days after a copy
of such written notice is received by the Insured.
[Insert for claims-made policies:
e. The insurance covers claims otherwise covered by the policy tat are reported to the ["Insurer" or "Group"] within six (6)
months of the effective date of cancellation or nonrenewal of the policy except where the new or renewed policy has the same
retroactive date or a retroactive date earlier than that of the prior policy, and which arise out of any covered occurrence tht
commenced after the policy retroactive date, if applicable, and prior to such policy renewal or termination date. Claims
reported during such extended reporting period are subject to the terms, conditions, limits, including limits of liability, an
exclusions of the policy.]
I hereby certify that the wording of this instrument is identica
"Group"] is [insert "licensed to transact the business of insurace or eligible to provide insurance as an excess or surplus lines insurer
in one or more states"].
[Signature of authorized representative of Insurer or Risk Retention Group]
[Name of person signing]
[Title of person signing], Authorized Representative of [name of Insurer or Risk Retention Group]
[Address of representative]
(2) Certificate of Insurance
Name: [insert name of each covered location]
Address: [insert address of each covered location]
Policy Number:
Endorsement (if applicable):
Period of Coverage: [current policy period]
Name of [Insurer or Risk Retention Group]:
Address of [Insurer or Risk Retention Group]:
Name of Insured:
Address of Insured:
Indiana Administrative CodePage 71
UNDERGROUND STORAGE TANKS
Certification
1. [Insert name of Insurer or Risk Retention Group], [the "Insurhas issued
liability insurance covering the following underground storage t
[List the number of tanks at each facility and the name(s) and address(es) of the facility(ies) where the tanks are located. If more than
one instrument is used to assure different tanks at any one facidentification
number provided in the notification submitted pursuant to 329 IAC 9-2-2, and the name and address of the facility.]
For [insert "taking corrective action" or "compensating third paties for bodily injury and property damage caused by" or "taking
corrective action and compensating third parties for bodily inju and property damage caused by" either "sudden accidental releases"
or "nonsudden accidental releases" or "accidental releases"; in accordance with and subject to the limits of liability, exclusions,
conditions, and other terms of the policy; if coverage is different for different tanks or locations, indicate the type of coverage
applicable to each tank or location] arising from operating the underground storage tank(s) identified above.
The limits of liability are [insert the dollar amount of the "ea occurrence" and "annual aggregate" limits of the Insurer's or Group's
liability; if the amount of coverage is different for different types of coverage or for different underground storage tanks or locations,
indicate the amount of coverage for each type of coverage, or for each underground storage tank or location, or for each type of
coverage and for each underground storage tank or location], exce of legal defense costs, which are subject to a separate limit
under the policy. This coverage is provided under [policy number]. The effective date of said policy is [date].
2. The ["Insurer" or "Group"] further certifies the following with respect to the insurance described in paragraph 1:
a. Bankruptcy or insolvency of the Insured shall not relieve the ["Insurer" or "Group"] of its obligations under the policy t
which this certificate applies.
b. The ["Insurer" or "Group"] is liable for the payment of amoun
provider of corrective action or a damaged third party, with a r
made by the ["Insurer" or "Group"]. This provision does not apply with respect to that amount of any deductible for which
coverage is demonstrated under another mechanism or combination of mechanisms as specified in 329 IAC 9-8-6 through 329
IAC 9-8-12.
c. Whenever requested by the Indiana Department of Environmental Management (IDEM) commissioner, the ["Insurer" or
"Group"] agrees to furnish to the IDEM commissioner a signed duplicate original of the policy and all endorsements.
d. Cancellation or any other termination of the insurance by the ["Insurer" or "Group"], except for nonpayment of premium
or misrepresentation by the Insured, will be effective only uponwritten notice and only after the expiration of sixty (60) days
after a copy of such written notice is received by the Insured. Cancellation for nonpayment of premium or misrepresentation
by the Insured will be effective only upon written notice and onter expiration of a minimum of ten (10) days after a copy
of such written notice is received by the Insured.
[Insert for claims-made policies:
e. The insurance covers claims otherwise covered by the policy tat are reported to the ["Insurer" or "Group"] within six (6)
months of the effective date of cancellation or nonrenewal of the policy except where the new or renewed policy has the same
retroactive date or a retroactive date earlier than that of the prior policy, and which arise out of any covered occurrence tht
commenced after the policy retroactive date, if applicable, and prior to such policy renewal or termination date. Claims
reported during such extended reporting period are subject to the terms, conditions, limits, including limits of liability, an
exclusions of the policy.]
I hereby certify that the wording of this instrument is identica
"Group"] is [insert "licensed to transact the business of insuraines
insurer, in one or more states"].
[Signature of authorized representative of Insurer]
[Type name]
[Title], Authorized Representative of [name of Insurer or Risk Retention Group]
[Address of representative]
(c) Each insurance policy must be issued by an Insurer or a Risk Retention Group that, at a minimum, is licensed to transact
(Solid Waste
the business of insurance or eligible to provide insurance as an excess or surplus lines insurer in one (1) or more states.
Management Board; 329 IAC 9-8-8; filed Jul 19, 1999, 12:00 p.m.: 22 IR 3736; readopted filed Jan 10, 2001, 3:25 p.m.: 24 IR 1535)
Indiana Administrative CodePage 72
UNDERGROUND STORAGE TANKS
329 IAC 9-8-9Surety bond
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23-4-1; IC 13-23-4-2
Sec. 9. (a) An owner or operator may satisfy the requirements of section 4 of this rule by obtaining a surs
to this section. The surety company issuing the bond must be among those listed as acceptable sureties on federal bonds byUnited
States department of the treasury in the most current edition of Circular 570.
(b) The surety bond must be worded as follows, except that instr
information and the brackets deleted:
Performance Bond
Date bond executed:
Period of coverage:
Principal: [insert legal name and business address of owner or operator]
Type of organization: [insert "individual", "joint venture", "partnership", or "corporation"]
State of incorporation (if applicable):
Surety(ies): [insert name(s) and business address(es)]
Scope of Coverage: [List the number of tanks at each facility annks are
located. If more than one (1) instrument is used to assure different tanks at any one (1) facility, for each tank covered bis
instrument, list the tank identification number provided in the notification submitted pursuant to 329 IAC 9-2-2, and the name and
address of the facility. List the coverage guaranteed by the bon "taking corrective action" or "compensating third parties for bodily
injury and property damage caused by" or "taking corrective action and compensating third parties for bodily injury and propery
damage caused by" either "sudden accidental releases" or "nonsudn accidental releases" or "accidental releases" "arising from
operating the underground storage tank."]
Penal sums of bond:
Per occurrence $______
Annual aggregate $______
Surety's bond number:
Know All Persons by These Presents, that we, the Principal and Srety(ies), hereto are firmly bound to the Indiana Department of
Environmental Management (IDEM), in the above penal sums for the payment of which we bind ourselves, our heirs, executors,
administrators, successors, and assigns jointly and severally; povided that, where the Surety(ies) are corporations acting as co-
sureties, we, the Sureties, bind ourselves in such sums jointly and severally only for the purpose of allowing a joint action or actions
against any or all of us, and for all other purposes each Suretybinds itself, jointly and severally with the Principal, for the payment
of such sums only as is set forth opposite the name of such Surebility shall
be the full amount of the penal sums.
Whereas said Principal is required under Subtitle I of the Resource Conservation and Recovery Act (RCRA) of 1976, as amended
by the Hazardous and Solid Waste Amendments (HSWA) of 1984 and the Superfund Amendments and Reauthorization Act (SARA)
of 1986, to provide financial assurance for [insert "taking corrective action" or "compensating third parties for bodily injury and
property damage caused by" or "taking corrective action and compensating third parties for bodily injury and property damage caused
by" either "sudden accidental releases" or "nonsudden accidentaleases" or "accidental releases"; if coverage is different for
different tanks or locations, indicate the type of coverage applicable to each tank or location] arising from operating the uerground
storage tanks identified above, and
Whereas said Principal shall establish a standby trust fund as irequired when a surety bond is used to provide such financial
assurance;
Now, therefore, the conditions of the obligation are such that if the Principal shall faithfully [insert "take corrective actin, in
accordance with 329 IAC 9-5 and the IDEM commissioner's instructy
injury and property damage caused by" or "take corrective action
instructions, and compensate injured third parties for bodily injury and property damage caused by" either "sudden" or "nonsudden"
or "sudden and nonsudden"] accidental releases arising from operating the tank(s) identified above, or if the rovide
alternate financial assurance, as specified in 329 IAC 9-8, within one hundred twenty (120) days after the date the notice of
cancellation is received by the Principal from the Surety(ies), en this obligation shall be null and void; otherwise it is to remain
in full force and effect.
Indiana Administrative CodePage 73
UNDERGROUND STORAGE TANKS
Such obligation does not apply to any of the following:
(a) Any obligation of [owner or operator] under a workers' compensation, disability benefits, or unemployment compensation
law or other similar law.
(b) Bodily injury to an employee of [owner or operator] arising
(c) Bodily injury or property damage arising from the ownership, maintenance, use, or entrustment to others of any aircraft,
motor vehicle, or watercraft.
(d) Property damage to any property owned, rented, loaned to, in the care, custody, or control of, or occupied by [owner or
operator] that is not the direct result of a release from a petroleum underground storage tank.
(e) Bodily injury or property damage for which [owner or operator] is obligated to pay damages by reason of the assumption
of liability in a contract or agreement other than a contract or agreement entered into to meet the requirements of 329 IAC 9-8-
4.
The Surety(ies) shall become liable on this bond obligation onlybed
above.
Upon notification by the IDEM commissioner that the Principal has failed to [insert "take corrective action, in accordance with 329
IAC 9-5 and the IDEM commissioner's instructions," or "compensate injured third parties" or "take corrective action, in accordance
with 329 IAC 9-5 and the IDEM commissioner's instructions, and cmpensate injured third parties"] as guaranteed by this bond, the
Surety(ies) shall either perform [insert "corrective action, in accordance with 329 IAC 9-5 and the IDEM commissioner's
instructions," or "third party liability compensation" or "corre
commissioner's instructions, and third party liability compensatnal
sum into the standby trust fund as directed by the IDEM commissi
Upon notification by the IDEM commissioner that the Principal hafailed to provide alternate financial assurance within sixty (60)
days after the date the notice of cancellation is received by the Principal from the Surety(ies) and that the IDEM commissioner has
determined or suspects that a release has occurred, the Surety(ies) shall place funds in an amount not exceeding the annual agregate
penal sum into the standby trust fund as directed by the IDEM co
The Surety(ies) hereby waive(s) notification of amendments to applicable laws, statutes, rules, and regulations and agrees that no
such amendment shall in any way alleviate its (their) obligation
The liability of the Surety(ies) shall not be discharged by any payment or succession of payments hereunder, unless and untiluch
payment or payments shall amount in the annual aggregate to the penal sum shown on the face of the bond, but in no event shallthe
obligation of the Surety(ies) hereunder exceed the amount of sai
The Surety(ies) may cancel the bond by sending notice of cancelltion by certified mail to the Principal, provided, however, that
cancellation shall not occur during the one hundred twenty (120)ys beginning on the date of receipt of the notice of cancellation
by the Principal as evidenced by the return receipt.
The Principal may terminate this bond by sending written notice
In Witness Thereof, the Principal and Surety(ies) have executed this bond and have affixed their seals on the date set forth aove.
The persons whose signatures appear below hereby certify that th are authorized to execute this surety bond on behalf of the
Principal and Surety(ies) and that the wording of this surety bo such
regulations were constituted on the date this bond was executed.
Principal
[Signature(s)]
[Name(s)]
[Title(s)]
[Corporate seal]
Corporate Surety(ies)
[Name and address]
[State of Incorporation: _____]
[Liability limit: $_____]
[Signature(s)]
[Name(s) and title(s)]
[Corporate seal]
[For every co-surety, provide signature(s), corporate seal, and other information in the same manner as f
Bond premium: $_____
Indiana Administrative CodePage 74
UNDERGROUND STORAGE TANKS
(Note: The corporate seal is not required by Indiana law.)
(c) Under the terms of the bond, the surety shall become liable on the bond obligation when the owner or operator fails to
perform as guaranteed by the bond. In all cases, the surety's libility is limited to the per occurrence and annual aggregate penal sums.
(d) The owner or operator who uses a surety bond to satisfy the quirements of section 4 of this rule shall establish a standby
trust fund when the surety bond is acquired. Under the terms of
deposited directly into the standby trust fund in accordance wit instructions from the commissioner under section 22 of this rule.
(Solid Waste Management Board; 329 IAC
This standby trust fund must meet the requirements specified in
9-8-9; filed Jul 19, 1999, 12:00 p.m.: 22 IR 3738; readopted filed Jan 10, 2001, 3:25 p.m.: 24 IR 1535)
329 IAC 9-8-10Letter of credit
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23-4-1; IC 13-23-4-2
Sec. 10. (a) An owner or operator may satisfy the requirements of section 4 of this rule by obtaining an
letter of credit that conforms to this section. The issuing institution must be an entity:
(1) that has the authority to issue letters of credit in each state where used; and
(2) whose letter of credit operations are regulated and examined
(b) The letter of credit must be worded as follows, except that instructions in brackets are to be replaced with the relevant
information and the brackets deleted:
Irrevocable Standby Letter of Credit
[Insert name and address of issuing institution]
[Insert name and business address of the commissioner of the Indiana Department of Environmental Management (IDEM)]
Dear Sir or Madam:
We hereby establish our Irrevocable Standby Letter of Credit No.___ in your favor, at the request and for the account of [insert name
of owner or operator] of [address] up to the aggregate amount of[insert in words] U.S. dollars ($ [insert dollar amount]), available
upon presentation [insert, if more than one (1) director of a state implementing agency is a beneficiary, "by any one of you"] of:
1. your sight draft, bearing reference to this letter of credit,
2. your signed statement reading as follows: "I certify that the
under authority of Subtitle I of the Resource Conservation and Recovery Act (RCRA) of 1976, as amended by the Hazardous
and Solid Waste Amendments (HSWA) of 1984 and the Superfund Amendments and Reauthorization Act (SARA) of 1986.".
This letter of credit may be drawn on to cover [insert "taking corrective action" or "compensating third parties for bodily injury and
property damage caused by" or "taking corrective action and compensating third parties for bodily injury and property damage caused
by" either "sudden accidental releases" or "nonsudden accidentalleases" or "accidental releases"] arising from operating the
underground storage tank(s) identified below in the amount of [iert in words] ($ [insert dollar amount]) per occurrence and [insert
in words] ($ [insert dollar amount]) annual aggregate:
[List the number of tanks at each facility and the name(s) and address(es) of the facility(ies) where the tanks are located. If more than
one (1) instrument is used to assure different tanks at any one (1) facility, for each tank covered by this instrument, liste tank
identification number provided in the notification submitted purt to 329 IAC 9-2-2, and the name and address of the facility.]
The letter of credit may not be drawn on to cover any of the fol
a. Any obligation of [owner or operator] under a workers' compensation, disability benefits, or unemployment compensation
law or other similar law.
b. Bodily injury to an employee of [owner or operator] arising f
c. Bodily injury or property damage arising from the ownership, maintenance, use, or entrustment to others of any aircraft,
motor vehicle, or watercraft.
d. Property damage to any property owned, rented, loaned to, in the care, custody, or control of, or occupied by [owner or
operator] that is not the direct result of a release from a petroleum underground storage tank.
e. Bodily injury or property damage for which [owner or operator] is obligated to pay damages by reason of the assumption
of liability in a contract or agreement other than a contract or agreement entered into to meet the requirements of 329 IAC 9-8-
4.
This letter of credit is effective as of [date] and shall expire on [date], but such expiration date shall
a period of [at least the length of the original term] on [expiration date] and on each successive expiration date, unless, at least one
Indiana Administrative CodePage 75
UNDERGROUND STORAGE TANKS
hundred twenty (120) days before the current expiration date, we notify [owner or operator] by certified mail that we have decided
not to extend this letter of credit beyond the current expiratiote. In the event that [owner or operator] is so notified, any unused
portion of the credit shall be available upon presentation of yosight draft for one hundred twenty (120) days after the date of receipt
by [owner or operator] as shown on the signed return receipt.
Whenever this letter of credit is drawn on under and in compliance with the terms of this credit, we shall duly honor such draft upon
presentation to us, and we shall deposit the amount of the draftdirectly into the standby trust fund of [owner or operator] in
accordance with your instructions.
We certify that the wording of this letter of credit is identica to the wording specified in 329 IAC 9-8-10(b) as such regulations were
constituted on the date shown immediately below.
[Signature(s) and title(s) of official(s) of issuing institution
[Date]
This credit is subject to [insert "the most recent edition of the Uniform Customs and Practice for Documentary Credits, publised
and copyrighted by the International Chamber of Commerce" or "the Uniform Commercial Code, as adopted under state law
governing the issuance and use of this letter of credit"].
(c) An owner or operator who uses a letter of credit to satisfy the requirements of section 4 of this rule also shall establish a
standby trust fund when the letter of credit is acquired. Under e terms of the letter of credit, all amounts that are paid pursuant to
a draft by the commissioner must be deposited by the issuing institution directly into the standby trust fund in accordance with
instructions from the commissioner under section 22 of this rulein
section 13 of this rule.
(d) The letter of credit must be irrevocable with a term specified by the issuing institution. The letter of credit must provie
that credit be automatically renewed for the same term as the orore
the current expiration date, the issuing institution notifies the owner or operator by certified mail of its decision not to renew the letter
of credit. Under the terms of the letter of credit, the one hund twenty (120) days begins on the date when the owner or operator
(Solid Waste Management Board; 329 IAC 9-8-10; filed Jul 19, 199
receives the notice as evidenced by the return receipt.
p.m.: 22 IR 3740; readopted filed Jan 10, 2001, 3:25 p.m.: 24 IR
329 IAC 9-8-11Excess liability trust fund
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23-4-1; IC 13-23-4-2; IC 13-23-8-3
Sec. 11. (a) An owner or operator may satisfy the requirements of section 4 of this rule by participation ity
trust fund under 328 IAC 1. Eligibility is determined by complia
(b) An owner or operator of:
(1) twelve (12) or fewer underground storage tanks shall demonstrate the ability to pay the applicable deductible amount under
IC 13-23-8-3; or
(2) more than twelve (12) underground storage tanks shall demons
deductible amount under IC 13-23-8-3.
(c) The owner or operator shall use any one (1) or a combination of the following mechanisms to demonstrate the ability to
pay the applicable amount under subsection (b):
(1) An owner or operator may satisfy the requirements of subsection (b) by obtaining a letter signed by an officer of a federly
insured financial institution that verifies the financial instittion's commitment to issue a loan to the owner or operator, if
necessary, to pay the applicable amount under subsection (b). This letter must be reviewed and updated annually by the
financial institution.
(2) An owner or operator may satisfy the requirements of subsection (b) by obtaining a certificate of deposit from a feder
insured financial institution.
(3) An owner or operator may satisfy the requirements of subsection (b) by obtaining a letter signed by an independent cerd
public accountant or independent professional accountant that verifies the tangible net worth of the owner o
sufficient to pay the applicable amount under subsection (b). This letter must be reviewed and updated annually by the certified
public accountant or professional accountant.
(4) An owner or operator may satisfy the requirements of subsect
risk retention group.
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UNDERGROUND STORAGE TANKS
(5) An owner or operator may satisfy the requirements of subsection (b) by obtaining a surety bond.
(6) An owner or operator may satisfy the requirements of subsection (b) by obtaining an irrevocable standby letter of cred
issued by a federally insured financial institution.
(7) An owner or operator may satisfy the requirements of subsection (b) by establishing a trust fund.
(8) An owner or operator may satisfy the requirements of subsection (b) by obtaining a written guarantee from a person ot
than the owner or operator that verifies the guarantor's ability to pay the applicable amount under subsection (b). The written
guarantee must disclose the relationship between the guarantor, and the owner or operator. The guarantor shall use one (1) or
more of the mechanisms under this subsection.
(d) In addition to subsection (c), local government owners or operators may use any one (1) or a combination of the following
mechanisms:
(1) A local government owner or operator may satisfy the requirements of subsection (b) by meeting a bond rating test under
section 14 of this rule. The local government owner or operator shall list the amount under subsection (b) for the "per
occurrence" and "annual aggregate" amounts in the letter from th
(2) A local government owner or operator may satisfy the requirements of subsection (b) by passing the financial test specified
in section 15 of this rule. The local government owner or operat
occurrence" and "annual aggregate" amounts in the letter from th
(3) A local government owner or operator may satisfy the requirements of subsection (b) by obtaining a guarantee that
conforms to section 16 of this rule. The local government owner or operator shall list the amount under subsection (b) for t
"per occurrence" and "annual aggregate" amounts in the local gov
government. The local government owner or operator shall list the amount under subsection (b) for the "per occurrence" and
"annual aggregate" amounts in the local government guarantee without standby trust made by a local government.
(4) A local government owner or operator may satisfy the requirements of subsection (b) by establishing a dedicated fund
account that conforms to section 17 of this rule. The local government owner or operator shall list the amount under subsection
(b) for the "per occurrence" and "annual aggregate" amounts in t
(Solid Waste Management Board; 329 IAC 9-8-11; filed Jul 19, 1999, 12:00 p.m.: 22 IR 3741; errata filed Sep 10, 1999, 9:08 a.:
23 IR 26; readopted filed Jan 10, 2001, 3:25 p.m.: 24 IR 1535)
329 IAC 9-8-12Trust fund
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23-4-1; IC 13-23-4-2
Sec. 12. (a) An owner or operator may satisfy the requirements of section 4 of this rule by establishing a trust fund that
conforms to this section. The trustee must be an entity:
(1) that has the authority to act as a trustee; and
(2) whose trust operations are regulated and examined by:
(A) a federal agency; or
(B) an agency of the state in which the fund is established.
(b) The wording of the trust agreement must be:
(1) identical to the wording specified in section 13(b)of this r
(2) accompanied by a formal certification of acknowledgment as specified in section 13(c) and 13(d) of this rule.
(c) The trust fund, when established, must be funded for:
(1) the full required amount of coverage; or
(2) part of the required amount of coverage and used in combination with another mechanism that provides the remaining
required coverage.
(d) If the value of the trust fund is greater than the required amount of coverage, the owner or operator may submit a written
request to the commissioner for release of the excess.
(e) If other financial assurance as specified in this rule is substituted for all or part of the trust fund, the owner or operator may
submit a written request to the commissioner for release of the
(f) Within sixty (60) days after receiving a request from the owr or operator for release of funds as specified in subsection
(d) or (e), the commissioner shall instruct the trustee to release to the owner or operator such funds as the commissioner speifies
(Solid Waste Management Board; 329 IAC 9-8-12; filed Jul 19, 1999, 12:00 p.m.: 22 IR 3742; readopted filed Jan 10,
in writing.
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2001, 3:25 p.m.: 24 IR 1535)
329 IAC 9-8-13Standby trust fund
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23-4-1; IC 13-23-4-2
Sec. 13. (a) An owner or operator that uses any one (1) of the mechanisms authorized by section 7, 9, 10, 11(c)(2), or 11(c)(7)
of this rule shall establish a standby trust fund when the mecha an
entity:
(1) that has the authority to act as a trustee; and
(2) whose trust operations are regulated and examined by:
(A) a federal agency; or
(B) an agency of the state in which the fund is established.
(b) The standby trust agreement, or trust agreement, must be worded as follows, except that instructions in brackets are to be
replaced with the relevant information and the brackets deleted:
Trust Agreement
Trust agreement, the "Agreement", entered into as of [date] by and between [insert name of the owner or operator], a [insert name
of state] [insert "corporation", "partnership", "association", o"proprietorship"], the "Grantor", and [insert name of corporate
[insert "Incorporated in the state of ___" or "a national bank"], the "Trustee".
Whereas, the Indiana Department of Environmental Management (IDE), an agency of Indiana, has established certain regulations
applicable to the Grantor, requiring that an owner or operator of an underground storage tank shall provide assurance that fus will
be available when needed for corrective action and third party compensation for bodily injury and property damage caused by sudden
and nonsudden accidental releases arising from the operation of e underground storage tank. The attached Schedule A lists the
number of tanks at each facility and the name(s) and address(es)red by
the Agreement.
[Whereas, the Grantor has elected to establish a [insert either "guarantee" or "surety bond" or "letter of credit" or "certificate of
deposit"] to provide all or part of such financial assurance for the underground storage tanks identified herein and is requid to
establish a standby trust fund able to accept payments from the strument (This paragraph is only applicable to the standby trust
agreement.)];
Whereas, the Grantor, acting through its duly authorized officers, has selected the Trustee to be the trustee under this Agreement,
and the Trustee is willing to act as trustee;
Now, therefore, the Grantor and the Trustee agree as follows:
Section 1. Definitions
As used in this Agreement:
a. The term "Grantor" means the owner or operator who enters into this Agreement and any successors or assigns of the
Grantor.
b. The term "Trustee" means the Trustee who enters into this Agreement and any successor Trustee.
Section 2. Identification of the Financial
Assurance Mechanism
This Agreement pertains to the [identify the financial assurance mechanism, either a guarantee, surety bond, letter of credit,or
certificate of deposit, from which the standby trust fund is est to the
standby trust agreement.)].
Section 3. Establishment of Fund
The Grantor and the Trustee hereby establish a trust fund, the "und", for the benefit of IDEM. The Grantor and the Trustee intend
that no third party have access to the Fund except as herein provided. [The Fund is established initially as a standby to receive
payments and shall not consist of any property.] Payments made by the provider of financial assurance pursuant to the IDEM
commissioner's instruction are transferred to the Trustee and arreferred to as the Fund, together with all earnings and profits therein,
less any payments or distributions made by the Trustee pursuant to this Agreement. The Fund shall be held by the Trustee, IN
TRUST, as hereinafter provided. The Trustee shall not be responsible nor shall it undertake any responsibility for the amour
adequacy of, nor any duty to collect from the Grantor as provideof financial assurance, any payments necessary to discharge any
liability of the Grantor established by IDEM.
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UNDERGROUND STORAGE TANKS
Section 4. Payment for [insert "Corrective Action" or
"Third Party Liability Claims" or "Corrective
Action and Third Party Liability Claims"]
The Trustee shall make payments from the Fund as the IDEM commissioner shall direct, in writing, to provide for the payment of
the costs of [insert "taking corrective action" or "compensating third parties for bodily injury and property damage caused by or
"taking corrective action and compensating third parties for bodily injury and property damage caused by" either "sudden accidental
releases" or "nonsudden accidental releases" or "accidental releases"] arising from operating the tanks covered by the financial
assurance mechanism identified in this Agreement.
The Fund may not be drawn upon to cover any of the following:
a. Any obligation of [owner or operator] under a workers' compensation, disability benefits, or unemployment compensation
law or other similar law.
b. Bodily injury to an employee of [owner or operator] arising f
c. Bodily injury or property damage arising from the ownership, maintenance, use, or entrustment to others of any aircraft,
motor vehicle, or watercraft.
d. Property damage to any property owned, rented, loaned to, in the care, custody, or control of, or occupied by [owner or
operator] that is not the direct result of a release from a petroleum underground storage tank.
e. Bodily injury or property damage for which [owner or operator] is obligated to pay damages by reason of the assumption
of liability in a contract or agreement other than a contract or agreement entered into to meet the requirements of 329 IAC 9-8-
4.
The Trustee shall reimburse the Grantor, or other persons as specified by the IDEM commissioner, from the Fund for corrective
action expenditures or third party liability claims or both in sch amounts as the IDEM commissioner shall direct in writing. In
addition, the Trustee shall refund to the Grantor such amounts as the IDEM commissioner specifies in writing. Upon refund, such
funds shall no longer constitute part of the Fund as defined her
Section 5. Payments Comprising the Fund
Payments made to the Trustee for the Fund shall consist of cash and securities acceptable to the Trustee.
Section 6. Trustee Management
The Trustee shall invest and reinvest the principal and income of the Fund and keep the Fund invested as a single fund, without
distinction between principal and income, in accordance with general investment policies and guidelines which the Grantor may
communicate in writing to the Trustee from time to time, subjectever, to the provisions of this section. In investing, reinvesting,
exchanging, selling, and managing the Fund, the Trustee shall diharge his or her duties with respect to the trust fund solely in the
interest of the beneficiaries and with the care, skill, prudence, and diligence under the circumstances then prevailing which ersons
of prudence, acting in a like capacity and familiar with such matters, would use in the conduct of an enterprise of a like character
and with like aims; except that:
a. securities or other obligations of the Grantor, or any other owner or operator of the tanks, or any of their affiliates as defined
in the Investment Company Act of 1940, as amended, 15 U.S.C. 80a
securities or other obligations of the federal or a state govern
b. the Trustee is authorized to invest the Fund in time or demand deposits of the Trustee, to the extent insured by an agency
of the federal or state government; and
c. the Trustee is authorized to hold cash awaiting investment or distribution uninvested for a reasonable time and without
liability for the payment of interest therein.
Section 7. Commingling and Investment
The Trustee is expressly authorized in its discretion:
a. to transfer from time to time any or all of the assets of the Fund to any common, commingled, or collective trust fund cred
by the Trustee in which the Fund is eligible to participate, subect to all of the provisions thereof, to be commingled with the
assets of other trusts participating therein; and
b. to purchase shares in any investment company registered under the Investment Company Act of 1940, 15 U.S.C. 80a-1 et
seq., including one which may be created, managed, underwritten,or to which investment advice is rendered or the shares of
which are sold by the Trustee. The Trustee may vote such shares in its discretion.
Section 8. Express Powers of Trustee
Without in any way limiting the powers and discretions conferredby
law, the Trustee is expressly authorized and empowered:
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UNDERGROUND STORAGE TANKS
a. to sell, exchange, convey, transfer, or otherwise dispose of any property held by it by public or private sale. No person
dealing with the Trustee shall be bound to see to the applicatio
expediency of any such sale or other disposition;
b. to make, execute, acknowledge, and deliver any and all documents of transfer and conveyance and any and all other
instruments that may be necessary or appropriate to carry out the powers herein granted;
c. to register any securities held in the Fund in its own name o
form or in book entry, or to combine certificates representing sch securities with certificates of the same issue held by the
Trustee in other fiduciary capacities, or to deposit or arrange for the deposit of such securities in a qualified central depository
even though, when so deposited, such securities may be merged and held in bulk in the name of the nominee of such depository
with other securities deposited therein by another person, or to deposit or arrange for the deposit of any securities issued by
the United States Government, or any agency or instrumentality thereof, with a Federal Reserve bank, but the books and
records of the Trustee shall at all times show that all such sec
d. to deposit any cash in the Fund in interest bearing accounts intained or savings certificates issued by the Trustee, in its
separate corporate capacity, or in any other banking institutionffiliated with the Trustee, to the extent insured by an agency
of the federal or state government; and
e. to compromise or otherwise adjust all claims in favor of or against the Fund.
Section 9. Taxes and Expenses
All taxes of any kind that may be assessed or levied against or in respect of the Fund and all brokerage commissions incurred by the
Fund shall be paid from the Fund. All other expenses incurred bythe Trustee in connection with the administration of this Trust,
including fees for legal services rendered to the Trustee, the cmpensation of the Trustee to the extent not paid directly by the
Grantor, and all other proper charges and disbursements of the Trustee shall be paid from the Fund.
Section 10. Advice of Counsel
The Trustee may from time to time consult with counsel, who may g
as to the construction of this Agreement or any action to be taknt
permitted by law, in acting upon the advice of counsel.
Section 11. Trustee Compensation
The Trustee shall be entitled to reasonable compensation for itsGrantor.
Section 12. Successor Trustee
The Trustee may resign or the Grantor may replace the Trustee, b the
Grantor has appointed a successor trustee and this successor accts the appointment. The successor trustee shall have the same
powers and duties as those conferred upon the Trustee hereunder. Upon the successor trustee's acceptance of the appointment, the
Trustee shall assign, transfer, and pay over to the successor trustee the funds and properties then constituting the Fund. If for any
reason the Grantor cannot or does not act in the event of the regnation of the Trustee, the Trustee may apply to a court of competent
jurisdiction for the appointment of a successor trustee or for instructions. The successor trustee shall specify the date on which it
assumes administration of the Trust in writing sent to the Grantor and the present Trustee by certified mail ten (10) days before such
change becomes effective. Any expenses incurred by the Trustee al be
paid as provided in Section 9.
Section 13. Instructions to the Trustee
All orders, requests, and instructions by the Grantor to the Trustee shall be in writing, signed by such persons as are designated in
the attached Schedule B or such other designees as the Grantor may designate by amendment to Schedule B. The Trustee shall be
fully protected in acting without inquiry in accordance with theGrantor's orders, requests, and instructions. All orders, requests, and
instructions by the IDEM commissioner to the Trustee shall be in writing, signed by the IDEM commissioner, and the Trustee shal
act and shall be fully protected in acting in accordance with su orders, requests, and instructions. The Trustee shall have the right
to assume, in the absence of written notice to the contrary, that no event constituting a change or a termination of the authority of
any person to act on behalf of the Grantor or the IDEM commissioct
in the absence of such orders, requests, and instructions from the Grantor or the IDEM commissioner or both, except as provided
for herein.
Section 14. Amendment of Agreement
This Agreement may be amended by an instrument in writing execut
IDEM commissioner if the Grantor ceases to exist.
Section 15. Irrevocability and Termination
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UNDERGROUND STORAGE TANKS
Subject to the right of the parties to amend this Agreement as provided in Section 14, this Trust shall be irrevocable and shall
continue until terminated at the written direction of the Grantor and the Trustee, or by the Trustee and the IDEM commissioner if
the Grantor ceases to exist. Upon termination of the Trust, all remaining trust property, less final trust administration expses, shall
be delivered to the Grantor.
Section 16. Immunity and Indemnification
The Trustee shall not incur personal liability of any nature in onnection with any act or omission, made in good faith, in the
administration of this Trust, or in carrying out any directions by the Grantor or the IDEM commissioner issued in accordanceth
this Agreement. The Trustee shall be indemnified and saved harmless by the Grantor, from and against any personal liability twhich
the Trustee may be subjected by reason of any act or conduct in ed in
its defense in the event the Grantor fails to provide such defen
Section 17. Choice of Law
This Agreement shall be administered, construed, and enforced acrding to the laws of the state of [insert name of state], or the
Comptroller of the Currency in the case of National Association
Section 18. Interpretation
As used in this Agreement, words in the singular include the plural and words in the plural include the singular. The descriptive
headings for each section of this Agreement shall not affect the interpretation or the legal efficacy of this Agreement.
In Witness Whereof, the parties have caused this Agreement to be executed by their respective officers duly authorized and thr
corporate seals (if applicable) to be hereunto affixed and attesed as of the date first above written. The parties below certify that the
wording of this Agreement is identical to the wording specified in 329 IAC 9-8-13(b)(1) as such regulations were constituted on the
date written above.
[Signature of Grantor]
[Name of the Grantor]
[Title]
Attest:
[Signature of Trustee]
[Name of the Trustee]
[Title]
[Seal]
[Signature of Witness]
[Name of the Witness]
[Title]
[Seal]
(Note: Corporate seal is not required by Indiana law.)
(c) The standby trust agreement, or trust agreement, must be accompanied by a formal certification of acknowledgment similar
to the following:
Certification of Acknowledgment
State of ________________________________
County of ______________________________
On this [date], before me personally came [owner or operator] to
she/he resides at [address], that she/he is [title] of [corporation], the corporation described in and which executed the abov
instrument; that she/he knows the seal of said corporation; thatthe seal affixed to such instrument is such corporate seal; that it was
so affixed by order of the Board of Directors of said corporation; and that she/he signed her/his name thereto by like order.
[Signature of Notary Public]
[Name of Notary Public]
(d) The following is an example of the Indiana form of acknowledgment. (Standby trust agreements, or trust agreements,
notarized in Indiana must use this form of acknowledgment.):
Form of Indiana certification of acknowledgment.
ACKNOWLEDGMENT
State of ________________________________
County of ______________________________
Before me, the undersigned, a Notary Public in and for said Coun
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UNDERGROUND STORAGE TANKS
known by me to be the person who [(only for corporate party)], as [insert title] of ________, Inc., the corporation that execu
foregoing instrument, signed the same and acknowledged to me tha
said corporation as such officer], and the same is his free act and deed [and the free corporate act and deed of said corporation, and
that he/she was duly authorized by the Board of Directors of said corporation] and the statements made in the foregoing instrument
are true.
IN WITNESS WHEREOF, I have set my hand and official seal this ________ day of ________, 199_.
State of: ________________________________
County of residence: ______________________
________________________________________
Notary Public
Commission Expires: ______________________
(e) The commissioner shall instruct the trustee to refund the ba
assurance if the commissioner determines that no additional:
(1) corrective action costs; or
(2) third party liability claims;
will occur as a result of a release covered by the financial assurance mechanism for which the standby trust fund has been estblished.
If the balance of the standby trust fund includes funds received from a certificate of deposit, the commissioner shall instruct the
trustee to refund the balance received from the certificate of deposit to the owner or operator under section 11(c)(7)(I) of this rule.
(f) An owner or operator may establish one (1) trust fund as the depository mechanism for all funds assured
(Solid Waste Management Board; 329 IAC 9-8-13; filed Jul 19, 1999, 12:00 p.m.: 22 IR 3743; readopted filed Jan 10, 2001
this rule.
3:25 p.m.: 24 IR 1535; errata filed Mar 17, 2005, 3:00 p.m.: 28
329 IAC 9-8-14Local government bond rating test
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23-4-1; IC 13-23-4-2
Sec. 14. (a) A:
(1) general purpose local government owner or operator and general purpose local government serving as a guarantor;
(2) general purpose local government owner or operator; or
(3) general purpose local government serving as a guarantor;
may satisfy the requirements of section 4 of this rule by having a currently outstanding issue or issues of general obligationbonds
of one million dollars ($1,000,000) or more, excluding refunded ations, with a Moody's rating of Aaa, Aa, A, or Baa, or a
Standard & Poor's rating of AAA, AA, A, or BBB. Where a local government has multiple outstanding issues, or where a local
government's bonds are rated by both Moody's and Standard & Poorthe lowest rating must be used to determine eligibility. Bonds
that are backed by credit enhancement, other than municipal bond
applicable bonds outstanding.
(b) A local government owner or operator or local government ser
(1) is not a general purpose local government; and
(2) does not have the legal authority to issue general obligatio
may satisfy the requirements of section 4 of this rule by having a currently outstanding issue or issues of revenue bonds of oe million
dollars ($1,000,000) or more, excluding refunded issues, and havMoody's rating of Aaa, Aa, A, or Baa, or a Standard & Poor's
rating of AAA, AA, A, or BBB as the lowest rating for any rated revenue bond issued by the local government. Where bonds are
rated by both Moody's and Standard & Poor's, the lower rating foeach bond must be used to determine eligibility. Bonds that are
backed by credit enhancement must not be considered in determining the amount of applicable bonds outstanding.
(c) The:
(1) local government owner or operator and local government guar
(2) local government owner or operator; or
(3) local government guarantor;
shall maintain a copy of its bond rating published within the last twelve (12) months by Moody's or Standard & Poor's.
(d) To demonstrate that it meets the local government bond ratin
(1) general purpose local government owner or operator and general purpose local government serving as a guarantor;
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UNDERGROUND STORAGE TANKS
(2) general purpose local government owner or operator; or
(3) general purpose local government serving as a guarantor;
shall sign a letter worded exactly as follows, except that the istructions in brackets are to be replaced by the relevant information
and the brackets deleted:
Letter from Chief Financial Officer
I am the chief financial officer of [insert name and address of local government owner or operator or guarantor]. This letter is in
support of the use of the bond rating test to demonstrate financial responsibility for [insert "taking corrective action" or "compensat-
ing third parties for bodily injury and property damage" or both of those phrases] caused by [insert "sudden accidental releases" or
"nonsudden accidental releases" or both of those phrases] in theamount of at least [insert dollar amount] per occurrence and [insert
dollar amount] annual aggregate arising from operating (an) unde
Underground storage tanks at the following facilities are assured by this bond rating test: [List for each facility the name and address
of the facility where tanks are assured by the bond rating test.
The details of the issue date, maturity, outstanding amount, bond rating, and bond rating agency of all outstanding bond issu that
are being used by [insert name of local government owner or operator or guarantor] to demonstrate financial responsibility are as
follows: [complete table]
Issue DateMaturity DateOutstanding AmountBond RatingRating Agenc
The total outstanding obligation of [insert amount], excluding refunded bond issues, exceeds the minimum amount of one million
dollars ($1,000,000). All outstanding general obligation bonds i
Standard & Poor's are rated as at least investment grade (Moody's
published within the last twelve (12) months. Neither rating serice has provided notification within the last twelve (12) months of
downgrading of bond ratings below investment grade or of withdrawal of bond rating other than for repayment of outstanding bond
issues.
I hereby certify that the wording of this letter is identical to were
constituted on the date shown immediately below.
[Date]
[Signature]
[Name]
[Title]
(e) To demonstrate that it meets the local government bond ratin
(1) local government owner or operator other than a general purpose government and guarantor other than a general purpose
government;
(2) local government owner or operator other than a general purp
(3) guarantor other than a general purpose government;
shall sign a letter worded exactly as follows, except that the istructions in brackets are to be replaced by the relevant information
and the brackets deleted:
Letter from Chief Financial Officer
I am the chief financial officer of [insert name and address of local government owner or operator or guarantor]. This letter is in
support of the use of the bond rating test to demonstrate financial responsibility for [insert "taking corrective action" or "compensat-
ing third parties for bodily injury and property damage" or both of those phrases] caused by [insert "sudden accidental releases" or
"nonsudden accidental releases" or both of those phrases] in theamount of at least [insert dollar amount] per occurrence and [insert
dollar amount] annual aggregate arising from operating (an) underound storage tank(s). This local government is not organized
to provide general governmental services and does not have the legal authority under state law or constitutional provisions tissue
general obligation debt.
Underground storage tanks at the following facilities are assured by this bond rating test: [List for each facility the name and address
of the facility where tanks are assured by the bond rating test.
The details of the issue date, maturity, outstanding amount, bond rating, and bond rating agency of all outstanding revenue bd
issues that are being used by [insert name of local government owner or operator or guarantor] to demonstrate financial responsibility
are as follows: [complete table]
Issue DateMaturity DateOutstanding AmountBond RatingRating Agenc
The total outstanding obligation of [insert amount], excluding refunded bond issues, exceeds the minimum amount of one million
dollars ($1,000,000). All outstanding revenue bonds issued by thrnment that have been rated by Moody's or Standard & Poor's
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UNDERGROUND STORAGE TANKS
are rated as at least investment grade (Moody's Baa or Standard & Poor's BBB) based on the most recent ratings published within
the last twelve (12) months. The revenue bonds listed are not backed by third party credit enhancement or are insured by a municipal
bond insurance company. Neither rating service has provided notition within the last twelve (12) months of downgrading of bond
ratings below investment grade or of withdrawal of bond rating other than for repayment of outstanding bond issues.
I hereby certify that the wording of this letter is identical to the wording specified in 329 IAC 9-8-14(e) as such regulations were
constituted on the date shown immediately below.
[Date]
[Signature]
[Name]
[Title]
(f) The commissioner may require reports of financial condition
(1) local government owner or operator and local government guar
(2) local government owner or operator; or
(3) local government guarantor.
If the commissioner finds, on the basis of such reports or otherformation, that the local government owner or operator and local
government guarantor, the local government owner or operator, or
government bond rating test requirements of this section, the local government owner or operator shall obtain alternative coverage
within thirty (30) days after notification of such a finding.
(g) If a local government owner or operator that uses the bond rting test to provide financial assurance finds that it no longer
meets the bond rating test requirements, the local government owr or operator shall obtain alternative coverage within one hundred
(Solid Waste Management Board; 329 IAC 9-8-14; filed Jul 19, 199
fifty (150) days of the change in status.
3747; readopted filed Jan 10, 2001, 3:25 p.m.: 24 IR 1535)
329 IAC 9-8-15Local government financial test
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23-4-1; IC 13-23-4-2
Sec. 15. (a) A local government owner or operator may satisfy the requirements of section 4 of this rule by passing the financial
test specified in this section. To be eligible to use the financial test, the local government owner or operator shall have ability
and authority to:
(1) assess and levy taxes; or
(2) freely establish fees and charges.
To pass the local government financial test, the owner or operator shall meet the criteria of subsection (b)(2) and (b)(3) based on year
end financial statements for the latest completed fiscal year.
(b) The local government owner or operator shall complete the fo
(1) The local government owner or operator shall have the followng information available, as shown in the year end financial
statements, for the latest completed fiscal year:
(A) Total revenues that consist of the sum of general fund operating and nonoperating revenues, including the followin
(i) Net local taxes.
(ii) Licenses and permits.
(iii) Fines and forfeitures.
(iv) Revenues from the use of money and property.
(v) Charges for services.
(vi) Investment earnings.
(vii) Sales, that may include any of the following:
(AA) Property.
(BB) Publications.
(viii) Intergovernmental revenues (restricted and unrestricted).
(ix) Total revenues from all other governmental funds, including
(AA) enterprise;
(BB) debt service;
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UNDERGROUND STORAGE TANKS
(CC) capital projects; and
(DD) special revenues;
but excluding revenues to funds held in a trust or agency capaci
For purposes of this test, the calculation of total revenues must exclude all transfers between funds under the direct
control of the local government using the financial test (interfund transfers), liquidation of investments, and issuance
of debt.
(B) Total expenditures that consist of the sum of general fund operating and nonoperating expenditures, including the
following:
(i) Public safety.
(ii) Public utilities.
(iii) Transportation.
(iv) Public works.
(v) Environmental protection.
(vi) Cultural and recreational.
(vii) Community development.
(viii) Revenue sharing.
(ix) Employee benefits and compensation.
(x) Office management.
(xi) Planning and zoning.
(xii) Capital projects.
(xiii) Interest payments on debt.
(xiv) Payments for retirement of debt principal.
(xv) Total expenditures from all other governmental funds, inclu
(AA) Enterprise.
(BB) Debt service.
(CC) Capital projects.
(DD) Special revenues.
For purposes of this test, the calculation of total expenditures must exclude all transfers between funds under the direct
control of the local government using the financial test (interf
(C) Local revenues that consist of total revenues, as defined in clause (A), minus the sum of all transfers from other
governmental entities, including all monies received from any of
(i) Federal sources.
(ii) State sources.
(iii) Local government sources.
(D) Debt service that consists of the sum of all interest and principal payments on all long term credit obligations and
all interest bearing short term credit obligations, including interest and principal payments on the following:
(i) General obligation bonds.
(ii) Revenue bonds.
(iii) Notes.
(iv) Mortgages.
(v) Judgments.
(vi) Interest bearing warrants.
Debt service excludes payments on noninterest bearing short term obligations, interfund obligations, amounts owed in
a trust or agency capacity, and advances and contingent loans fr
(E) Total funds that consist of the sum of cash and investment securities from all funds, including general, enterprise,
debt service, capital projects, and special revenue funds, but excluding employee retirement funds, at the end of the local
government's financial reporting year. Total funds include the f
(i) Federal securities.
(ii) Federal agency securities.
(iii) State and local government securities.
(iv) Other securities such as bonds, notes, and mortgages.
Indiana Administrative CodePage 85
UNDERGROUND STORAGE TANKS
For purposes of this test, the calculation of total funds must exclude agency funds, private trust funds, accounts
receivable, value of real property, and other nonsecurity assets.
(F) Population that consists of the number of people in the area served by the local government.
(2) The local government's year end financial statements, if independently audited, must not include an adverse auditor's
opinion or a disclaimer of opinion. The local government shall not have outstanding issues of general obligation or revenue
bonds that are rated as less than investment grade.
(3) The local government owner or operator shall have a letter signed by the chief financial officer worded as specified in
subsection (c).
(c) To demonstrate that it meets the financial test under subsection (b), the chief financial officer of the local government owner
or operator shall sign, within one hundred twenty (120) days of the close of each financial reporting year, as defined by the twelve
(12) month period for which financial statements used to supportthe financial test are prepared, a letter worded exactly as follows,
except that the instructions in brackets are to be replaced by the relevant information and the brackets deleted:
Letter from Chief Financial Officer
I am the chief financial officer of [insert name and address of the owner or operator]. This letter is in support of the use of the local
government financial test to demonstrate financial responsibility for [insert "taking corrective action" or "compensating third parties
for bodily injury and property damage" or both of those phrases] caused by [insert "sudden accidental releases" or "nonsudden
accidental releases" or both of those phrases] in the amount of at least [insert dollar amount] per occurrence and [insert dollar amount]
annual aggregate arising from operating (an) underground storage
Underground storage tanks at the following facilities are assureby this financial test: [List for each facility the name and address
of the facility where tanks assured by this financial test are lcated. If separate mechanisms or combinations of mechanisms are being
used to assure any of the tanks at this facility, list each tank assured by this financial test by the tank identification numer provided
in the notification submitted pursuant to 329 IAC 9-2-2.]
This owner or operator has not received an adverse opinion or a disclaimer of opinion from an independent auditor on its financial
statements for the latest completed fiscal year. Any outstandingissues of general obligation or revenue bonds, if rated, have a
Moody's rating of Aaa, Aa, A, or Baa or a Standard & Poor's rating of AAA, AA, A, or BBB; if rated by both firms, the bonds hae
a Moody's rating of Aaa, Aa, A, or Baa and a Standard & Poor's rating of AAA, AA, A, or BBB.
Worksheet for Municipal Financial Test
Part I: Basic Information
1. Total revenues
a. Revenues (dollars) ______
Value of revenues excludes liquidation of investments and issuance of debt. Value includes all general fund operating and nonoerat-
ing revenues, as well as all revenues from all other governmental funds, including enterprise, debt serviceand
special revenues, but excluding revenues to funds held in a trus
b. Subtract interfund transfers (dollars)______
c. Total revenues (dollars)______
2. Total expenditures
a. Expenditures (dollars) ______
Value consists of the sum of general fund operating and nonoperating expenditures, including interest payments on debt, payments
for retirement of debt principal, and total expenditures from all other governmental funds, including enterprise, debt service capital
projects, and special revenues.
b. Subtract interfund transfers (dollars) ______
c. Total expenditures (dollars) ______
3. Local revenues
a. Total revenues (from 1c) (dollars) ______
b. Subtract total intergovernmental transfers (dollars) ______
c. Local revenues (dollars) ______
4. Debt service
a. Interest and fiscal charges (dollars) ______
b. Add debt retirement (dollars) ______
c. Total debt service (dollars) ______
5. Total funds (dollars) ______
Indiana Administrative CodePage 86
UNDERGROUND STORAGE TANKS
(Sum of amounts held as cash and investment securities from all funds, excluding amounts held for employee retirement funds,
agency funds, and trust funds.)
6. Population (persons)______
Part II: Application of Test
7. Total revenues to population
a. Total revenues (from 1c)______
b. Population (from 6)______
c. Divide 7a by 7b ______
d. Subtract 417______
e. Divide by 5,212______
f. Multiply by 4.095______
8. Total expenses to population
a. Total expenses (from 2c)______
b. Population (from 6)______
c. Divide 8a by 8b ______
d. Subtract 524 ______
e. Divide by 5,401______
f. Multiply by 4.095______
9. Local revenues to total revenues
a. Local revenues (from 3c)______
b. Total revenues (from 1c)______
c. Divide 9a by 9b ______
d. Subtract .695______
e. Divide by .205______
f. Multiply by 2.840 ______
10. Debt service to population
a. Debt service (from 4c) ______
b. Population (from 6)______
c. Divide 10a by 10b ______
d. Subtract 51 ______
e. Divide by 1,038______
f. Multiply by -1.866______
11. Debt service to total revenues
a. Debt service (from 4c)______
b. Total revenues (from 1c)______
c. Divide 11a by 11b ______
d. Subtract .068 ______
e. Divide by .259 ______
f. Multiply by -3.533 ______
12. Total revenues to total expenses
a. Total revenues (from 1c)______
b. Total expenses (from 2c)______
c. Divide 12a by 12b______
d. Subtract .910 ______
e. Divide by .899 ______
f. Multiply by 3.458 ______
13. Funds balance to total revenues
a. Total funds (from 5) ______
b. Total revenues (from 1c)______
c. Divide 13a by 13b ______
d. Subtract .891 ______
Indiana Administrative CodePage 87
UNDERGROUND STORAGE TANKS
e. Divide by 9.156______
f. Multiply by 3.270 ______
14. Funds balance to total expenses
a. Total funds (from 5)______
b. Total expenses (from 2c)______
c. Divide 14a by 14b______
d. Subtract .866 ______
e. Divide by 6.409 ______
f. Multiply by 3.270 ______
15. Total funds to population
a. Total funds (from 5) ______
b. Population (from 6)______
c. Divide 15a by 15b ______
d. Subtract 270 ______
e. Divide by 4,548 ______
f. Multiply by 1.866 ______
16. Add 7f + 8f + 9f + 10f + 11f + 12f + 13f + 14f + 15f + 4.937
I hereby certify that the financial index shown on line 16 of thrksheet is greater than zero and that the wording of this letter is
identical to the wording specified in 329 IAC 9-8-15(c) as such w.
[Date]
[Signature]
[Name]
[Title]
(d) If a local government owner or operator that uses the test to provide financial assurance finds that it no longer meets the
requirements of the financial test based on the year end financioverage
within one hundred fifty (150) days of the end of the year for which financial statements have been prepared.
(e) The commissioner may require reports of financial condition at any time from the local government owner or operator. If
the commissioner finds, on the basis of such reports or other information, that the local government owner or operator no longer
meets the financial test requirements of subsections (b) and (c), the owner or operator shall obtain alternate coverage within thirty
(30) days after notification of such a finding.
(f) If the local government owner or operator fails to obtain al
(1) one hundred fifty (150) days of finding that it no longer mes the requirements of the financial test based on the year end
financial statements; or
(2) thirty (30) days of notification by the commissioner that it no longer meets the requirements of the financial test;
(Solid Waste Management Board; 329 IAC
the owner or operator shall notify the commissioner of such fail
9-8-15; filed Jul 19, 1999, 12:00 p.m.: 22 IR 3749; readopted filed Jan 10, 2001, 3:25 p.m.: 24 IR 1535)
329 IAC 9-8-16Local government guarantee
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23-4-1; IC 13-23-4-2
Sec. 16. (a) A local government owner or operator may satisfy th
guarantee that conforms to this section. The guarantor must be ahip
with the owner and operator and issues the guarantee as an act icident to that relationship. A local government that acts as the
guarantor shall complete any of the following:
(1) Demonstrate that it meets the bond rating test requirement osection 14 of this rule and deliver a copy of the chief financial
officer's letter as contained in section 14(d) of this rule to t
(2) Demonstrate that it meets the worksheet test requirements ofsection 15 of this rule and deliver a copy of the chief financial
officer's letter as contained in section 15(c) of this rule to t
(3) Demonstrate that it meets the local government fund requirems of section 17(a)(1), 17(a)(2), or 17(a)(3) of this rule and
deliver a copy of the chief financial officer's letter as contaid in section 17 of this rule to the local government owner or
Indiana Administrative CodePage 88
UNDERGROUND STORAGE TANKS
operator.
(b) If the local government guarantor is unable to demonstrate financial assurance under section 14, 15, 17(a)(1), 17(a)(2), or
17(a)(3) of this rule, at the end of the financial reporting year, the guarantor shall send by certified mail, before cancellion or
nonrenewal of the guarantee, notice to the owner or operator. Th)
days after the date the owner or operator receives the notification as evidenced by the return receipt. The owner or operator shall
obtain alternative coverage as specified in section 20(c) of thi
(c) The guarantee agreement must be worded as specified in subsection (d) or (e), depending on which of the following altern
tive guarantee arrangements is selected:
(1) If, in the default or incapacity of the owner or operator, the guarantor guarantees to fund a standby trust as directed bythe
commissioner, the guarantee must be worded as specified in subse
(2) If, in the default or incapacity of the owner or operator, the guarantor guarantees to make payments as directed by the
commissioner for taking corrective action or compensating third parties for bodily injury and property damage, the guarantee
must be worded as specified in subsection (e).
(d) If the guarantor is a local government, the local government
follows, except that instructions in brackets are to be replaced with relevant information and the brackets deleted:
Local Government Guarantee with Standby
Trust Made by a Local Government
Guarantee made this [date] by [insert name of guaranteeing entit of
state], herein referred to as guarantor, to the Indiana Department of Environmental Management (IDEM) and to any and all third
parties, and obligees, on behalf of [local government owner or o
Recitals
1. Guarantor meets or exceeds [select one: the local government bond rating test requirements of 329 IAC 9-8-14, the local
government financial test requirements of 329 IAC 9-8-15, or the local government fund under 329 IAC 9-8-17(a)(1), 329 IAC 9-
17(a)(2), or 329 IAC 9-8-17(a)(3)].
2. [Local government owner or operator] owns or operates the following underground storage tank(s) covered by this guarantee:List
the number of tanks at each facility and the name(s) and address(es) of the facility(ies) where the tanks are located. If morethan one
instrument is used to assure different tanks at any one facility, for each tank covered by this instrument, list the tankification
number provided in the notification submitted pursuant to 329 IA2-2, and the name and address of the facility.] This guarantee
satisfies 329 IAC 9-8 requirements for assuring funding for [ins"taking corrective action" or "compensating third parties for bodily
injury and property damage caused by" or "taking corrective action and compensating third parties for bodily injury and propery
damage caused by" either "sudden accidental releases" or "nonsudaccidental releases" or "accidental releases"; if coverage is
different for different tanks or locations, indicate the type of coverage applicable to each tank or location] arising from operating the
above-identified underground storage tank(s) in the amount of [insert dollar amount] per occurrence and [insert dollar amount]annual
aggregate.
3. Incident to our substantial governmental relationship with [local government owner or operator], guarantor guarantees to IDEM
and to any and all third parties that:
In the event that [local government owner or operator] fails to provide alternative coverage within 60 days after receipt of a notice
of cancellation of this guarantee and the IDEM commissioner has determined or suspects that a release has occurred at an
underground storage tank covered by this guarantee, the guaranto
standby trust fund in accordance with the provisions of 329 IAC 8-22 in an amount not to exceed the coverage limits specified
above.
In the event that the IDEM commissioner determines that [local g
action for releases arising out of the operation of the above-identified tank(s) in accordance with 329 IAC 9-5, the guarantor, upon
written instructions from the IDEM commissioner, shall fund a standby trust fund in accordance with the provisions of 329 IAC 9-8-
22 in an amount not to exceed the coverage limits specified abov
If [owner or operator] fails to satisfy a judgment or award based on a determination of liability for bodily injury or property damage
to third parties caused by [insert "sudden" or "nonsudden" or both] accidental releases arising from the operation of the above-
identified tank(s), or fails to pay an amount agreed to in settlement of a claim arising from or alleged to arise from such injury or
damage, the guarantor, upon written instructions from the IDEM cmmissioner, shall fund a standby trust in accordance with the
provisions of 329 IAC 9-8-22 to satisfy such judgment(s), award(s), or settlement agreement(s) up to the limits of coverage specified
above.
Indiana Administrative CodePage 89
UNDERGROUND STORAGE TANKS
4. Guarantor agrees that if, at the end of any fiscal year before cancellation of this guarantee, the guarantor fails to meetr exceed
the requirements of the financial responsibility mechanism specied in paragraph (1), guarantor shall send within one hundred twenty
(120) days of such failure, by certified mail, notice to [local government owner or operator] as evidenced t.
5. Guarantor agrees to notify [owner or operator] by certified mail of a voluntary or involuntary proceeding under the bankrucy
laws of the United States (11 U.S.C. 101 et seq.), naming guarantor as debtor within ten (10) days after commencement of the
proceeding.
6. Guarantor agrees to remain bound under this guarantee notwithanding any modification or alteration of any obligation of [owner
or operator] pursuant to 329 IAC 9.
7. Guarantor agrees to remain bound under this guarantee for so ong as [local government owner or operator] must comply with the
applicable financial responsibility requirements of 329 IAC 9-8 for the above-identified tank(s), except thcel
this guarantee by sending notice by certified mail to [owner or rator], such cancellation to become effective no earlier than one
hundred twenty (120) days after receipt of such notice by [owner
8. The guarantor's obligation does not apply to any of the follo
a. Any obligation of [local government owner or operator] under a workers' compensation, disability benefits, or unem-
ployment compensation law or other similar law.
b. Bodily injury to an employee of [local government owner or operator] arising from, and in the course of, employment by
[local government owner or operator].
c. Bodily injury or property damage arising from the ownership, maintenance, use, or entrustment to others of any aircraft,
motor vehicle, or watercraft.
d. Property damage to any property owned, rented, loaned to, in the care, custody, or control of, or occupied by [local
government owner or operator] that is not the direct result of a release from a petroleum underground storage tank.
e. Bodily injury or property damage for which [owner or operator] is obligated to pay damages by reason of the assumption
of liability in a contract or agreement other than a contract or agreement entered into to meet the requirements of 329 IAC 9-8-
4.
9. Guarantor expressly waives notice of acceptance of this guarantee by IDEM, by any or all third parties, or by [local government
owner or operator].
I hereby certify that the wording of this guarantee is identical
constituted on the effective date shown immediately below.
Effective date:
[Name of guarantor]
[Authorized signature for guarantor]
[Name of person signing]
[Title of person signing]
Signature of witness or notary:
(e) If the guarantor is a local government, the local government
follows, except that instructions in brackets are to be replaced with relevant information and the brackets deleted:
Local Government Guarantee without Standby
Trust Made by a Local Government
Guarantee made this [date] by [insert name of guaranteeing entit of
state], herein referred to as guarantor, to the Indiana Department of Environmental Management (IDEM) and to any and all third
parties, and obligees, on behalf of [local government owner or o
Recitals
1. Guarantor meets or exceeds [select one (1): the local government bond rating test requirements of 329 IAC 9-8-14, the loca
government financial test requirements of 329 IAC 9-8-15, or the local government fund under 329 IAC 9-8-17(a)(1), 329 IAC 9-
17(a)(2), or 329 IAC 9-8-17(a)(3)].
2. [Local government owner or operator] owns or operates the following underground storage tank(s) covered by this guarantee:List
the number of tanks at each facility and the name(s) and address(es) of the facility(ies) where the tanks are located. If morethan one
(1) instrument is used to assure different tanks at any one (1) facility, for each tank covered by this instrument, list thnk
identification number provided in the notification submitted purt to 329 IAC 9-2-2, and the name and address of the facility.]
This guarantee satisfies 329 IAC 9-8 requirements for assuring fthird
parties for bodily injury and property damage caused by" or "taking corrective action and compensating third parties for bodil injury
Indiana Administrative CodePage 90
UNDERGROUND STORAGE TANKS
and property damage caused by" either "sudden accidental release" or "nonsudden accidental releases" or "accidental releases"; if
coverage is different for different tanks or locations, indicate the type of coverage applicable to each tank or location] arising from
operating the above-identified underground storage tank(s) in thamount of [insert dollar amount] per occurrence and [insert dollar
amount] annual aggregate.
3. Incident to our substantial governmental relationship with [local government owner or operator], guarantor guarantees to IDEM
and to any and all third parties and obligees that:
In the event that [local government owner or operator] fails to provide alternative coverage within 60 days after receipt of a notice
of cancellation of this guarantee and the IDEM commissioner has determined or suspects that a release has occurred at an
underground storage tank covered by this guarantee, the guaranto, upon written instructions from the IDEM commissioner, shall
make funds available to pay for corrective actions and compensat third parties for bodily injury and property damage in an amount
not to exceed the coverage limits specified above.
In the event that the IDEM commissioner determines that [local g
action for releases arising out of the operation of the above-identified tank(s) in accordance with 329 IAC 9-5, the guarantor, upon
written instructions from the IDEM commissioner, shall make fundxceed
the coverage limits specified above.
If [owner or operator] fails to satisfy a judgment or award based on a determination of liability for bodily injury or property damage
to third parties caused by [insert "sudden" or "nonsudden" or boh] accidental releases arising from the operation of the above-
identified tank(s), or fails to pay an amount agreed to in settlment of a claim arising from or alleged to arise from such injury or
damage, the guarantor, upon written instructions from the IDEM cmmissioner, shall make funds available to compensate third
parties for bodily injury and property damage in an amount not t
4. Guarantor agrees that if, at the end of any fiscal year before cancellation of this guarantee, the guarantor fails to meet or exceed
the requirements of the financial responsibility mechanism specied in paragraph (1), guarantor shall send within one hundred twenty
(120) days of such failure, by certified mail, notice to [local government owner or operator] as evidenced t.
5. Guarantor agrees to notify [owner or operator] by certified mail of a voluntary or involuntary proceeding under the bankrucy
laws of the United States (11 U.S.C. 101 et seq.), naming guaranor as debtor within ten (10) days after commencement of the
proceeding.
6. Guarantor agrees to remain bound under this guarantee notwithanding any modification or alteration of any obligation of [owner
or operator] pursuant to 329 IAC 9.
7. Guarantor agrees to remain bound under this guarantee for so ong as [local government owner or operator] must comply with the
applicable financial responsibility requirements of 329 IAC 9-8 for the above-identified tank(s), except thcel
this guarantee by sending notice by certified mail to [owner or rator], such cancellation to become effective no earlier than one
hundred twenty (120) days after receipt of such notice by [owner or operator] as evidenced by the return receipt. If notified of a
probable release, the guarantor agrees to remain bound to the terms of this guarantee for all charges arising from the release, up to
the coverage limits specified above, notwithstanding the cancellation of the guarantee with respect to future releases.
8. The guarantor's obligation does not apply to any of the follo
a. Any obligation of [local government owner or operator] under a workers' compensation, disability benefits, or unem-
ployment compensation law or other similar law.
b. Bodily injury to an employee of [local government owner or op
[local government owner or operator].
c. Bodily injury or property damage arising from the ownership, maintenance, use, or entrustment to others of any aircraft,
motor vehicle, or watercraft.
d. Property damage to any property owned, rented, loaned to, in the care, custody, or control of, or occupied by [local
government owner or operator] that is not the direct result of a release from a petroleum underground storage tank.
e. Bodily injury or property damage for which [owner or operator] is obligated to pay damages by reason of the assumption
of liability in a contract or agreement other than a contract or agreement entered into to meet the requirements of 329 IAC 9-8-
4.
9. Guarantor expressly waives notice of acceptance of this guarantee by IDEM, by any or all third parties, or by [local government
owner or operator].
I hereby certify that the wording of this guarantee is identical
constituted on the effective date shown immediately below.
Effective date:
Indiana Administrative CodePage 91
UNDERGROUND STORAGE TANKS
[Name of guarantor]
[Authorized signature for guarantor]
[Name of person signing]
[Title of person signing]
Signature of witness or notary:
(Solid Waste Management Board; 329 IAC 9-8-16; filed Jul 19, 1999, 12:00 p.m.: 22 IR 3752; readopted filed Jan 10, 2001, 3:2
p.m.: 24 IR 1535)
329 IAC 9-8-17Local government fund
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23-4-1; IC 13-23-4-2
Sec. 17. (a) A local government owner or operator may satisfy the requirements of section 4 of this rule by establishing a
dedicated fund account that conforms to this section. Except as ingled
with other funds or otherwise used in normal operations. A dediced fund is considered eligible if it meets one (1) of the following
requirements:
(1) The fund is:
(A) dedicated by:
(i) state constitutional provision; or
(ii) local government:
(AA) statute;
(BB) charter;
(CC) ordinance; or
(DD) order;
(B) established to pay for taking corrective action and for compensating third parties for bodily injury and property
damage caused by accidental releases arising from the operation of petroleum underground storage tanks; and
(C) funded for:
(i) the full amount of coverage required under section 4 of this
(ii) part of the required amount of coverage and used in combination with another mechanism that provides the
remaining coverage.
(2) The fund is:
(A) dedicated by:
(i) state constitutional provision; or
(ii) local government:
(AA) statute;
(BB) charter;
(CC) ordinance; or
(DD) order;
(B) established as a contingency fund for general emergencies, including taking corrective action and compensating third
parties for bodily injury and property damage caused by accidental releases arising from the operation of petroleum
underground storage tanks; and
(C) funded for either of the following:
(i) Five (5) times the full amount of coverage required under section 4 of this rule.
(ii) Part of the required amount of coverage and used in combination with another mechanism that provides the
remaining coverage. If the fund is funded for less than five (5) times the amount of coverage required under
section 4 of this rule, the amount of financial responsibility demonstrated by the fund must not exceed one-fifth
(1/) the amount in the fund.
5
(3) The following requirements must be completed:
(A) The fund is dedicated by:
(i) state constitutional provision; or
(ii) local government:
Indiana Administrative CodePage 92
UNDERGROUND STORAGE TANKS
(AA) statute;
(BB) charter;
(CC) ordinance; or
(DD) order.
(B) The fund is established to pay for taking corrective action and for compensating third parties for bodily injury and
property damage caused by accidental releases arising from the operation of petroleum underground storage tanks.
(C) A payment is made to the fund once every year for seven (7) years until the fund is fully funded. This seven (7) year
period is hereafter referred to as the "pay-in-period". The amount of each payment must be determined by the following
formula:
TF - CF
Y
Where:TF =Total required financial assurance for the owner or op
CF=Current amount in the fund.
Y=Number of years remaining in the pay-in-period.
(D) The local government owner or operator shall meet one (1) of
(i) The local government owner or operator has available bonding
(if such approval is necessary prior to the issuance of bonds),
(AA) The bonding authority is for an amount equal to the differe
age and the amount held in the dedicated fund.
(BB) The bonding authority must be available for taking correcti
parties for bodily injury and property damage caused by accidental releases arising from the operation of
petroleum underground storage tanks.
(ii) The local government owner or operator has a letter signed by the appropriate state attorney general that states
the following:
(AA) The use of the bonding authority will not increase the loca
ceilings established by the relevant state laws.
(BB) Prior voter approval is not necessary before use of the bonding authority.
(b) To demonstrate that it meets the requirements of the local g
(1) local government owner or operator and local government guar
(2) local government owner or operator; or
(3) local government guarantor;
shall sign a letter worded exactly as follows, except that the istructions in brackets are to be replaced by the relevant information
and the brackets deleted:
Letter from Chief Financial Officer
I am the chief financial officer of [insert name and address of local government owner or operator or guarantor]. This letter is in
support of the use of the local government fund mechanism to demonstrate financial responsibility for [insert "taking corrective
action" or "compensating third parties for bodily injury and property damage" or both of those phrases] caused by [insert "suen
accidental releases" or "nonsudden accidental releases" or both those phrases] in the amount of at least [insert dollar amount] per
occurrence and [insert dollar amount] annual aggregate arising from operating (an) underground storage tank(s).
Underground storage tanks at the following facilities are assureby this local government fund mechanism: [List for each facility
the name and address of the facility where tanks are assured by
[Insert "The local government fund is funded for the full amountof coverage required under 329 IAC 9-8-4, or funded for part of
the required amount of coverage and used in combination with other mechanism(s) that provide the remaining coverage" or "The
local government fund is funded for ten (10) times the full amou of coverage required under 329 IAC 9-8-4, or funded for part of
the required amount of coverage and used in combination with oth
payment is made to the fund once every year for seven (7) years until the fund is fully funded and [insert name of local goverment
owner or operator] has available bonding authority, approved thrvoter referendum, of an amount equal to the difference between
the required amount of coverage and the amount held in the dediced fund" or "A payment is made to the fund once every year for
seven (7) years until the fund is fully funded and I have attached a letter signed by the state attorney general stating that:
1. the use of the bonding authority will not increase the local government's debt beyond the legal debt ceilings established by
the relevant state laws; and
Indiana Administrative CodePage 93
UNDERGROUND STORAGE TANKS
2. prior voter approval is not necessary before use of the bondi
The details of the local government fund are as follows:
Amount in fund (market value of fund at close of last fiscal yea
[If fund balance is incrementally funded as specified in 329 IAC
Amount added to fund in the most recently completed fiscal year:
Number of years remaining in the pay-in-period: ____.]
A copy of the state constitutional provision, or local governmenatute, charter, ordinance, or order dedicating the fund is attached.
I hereby certify that the wording of this letter is identical to were
constituted on the date shown immediately below.
[Date]
[Signature]
[Name]
[Title]
(Solid Waste Management Board; 329 IAC 9-8-17; filed Jul 19, 1999, 12:00 p.m.: 22 IR 3755; readopted filed Jan 10, 2001, 3:2
p.m.: 24 IR 1535)
329 IAC 9-8-18Substitution of financial assurance mechanisms by owner or operator
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23-4-1; IC 13-23-4-2
Sec. 18. (a) An owner or operator may substitute any alternate financial assurance mechanism under this
at all times the owner maintains an effective financial assuranc 4
of this rule.
(b) After obtaining alternate financial assurance under this rul
(Solid Waste Management Board; 329 IAC 9-8-18; filed Jul
mechanism by providing notice to the provider of financial assur
19, 1999, 12:00 p.m.: 22 IR 3756; readopted filed Jan 10, 2001, 3:25 p.m.: 24 IR 1535)
329 IAC 9-8-19Cancellation or nonrenewal by a provider of financial assurance
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23-4-1; IC 13-23-4-2
Sec. 19. (a) Except as otherwise provided, a provider of financial assurance may cancel or fail to renew an assurance
mechanism by sending a notice of termination by certified mail t the owner or operator. The following requirements must be
completed:
(1) Termination of a:
(A) local government guarantee;
(B) guarantee;
(C) surety bond; or
(D) letter of credit;
must not occur until one hundred twenty (120) days after the dat
termination as evidenced by the return receipt.
(2) Termination of:
(A) insurance, except for nonpayment or misrepresentation by the
(B) risk retention coverage, except for nonpayment or misreprese
(C) the excess liability trust fund under section 11 of this rul
must not occur until sixty (60) days after the date on which the
denced by the return receipt. Termination for nonpayment of prem
a minimum of ten (10) days after the date on which the owner or operator receives the notice of termination as evidenced by
the return receipt.
(b) If a provider of financial responsibility cancels or fails t
specified in section 24 of this rule, the owner or operator shall obtain alternate coverage as specified in this section within sixty (60)
Indiana Administrative CodePage 94
UNDERGROUND STORAGE TANKS
days after receipt of the notice of termination. If the owner ordays after
receipt of the notice of termination, the owner or operator shall notify the commissioner of such failure and submit the folloing:
(1) The name and address of the provider of financial assurance.
(2) The effective date of termination.
(3) The evidence of the financial assistance mechanism subject t
of this rule.
(Solid Waste Management Board; 329 IAC 9-8-19; filed Jul 19, 1999, 12:00 p.m.: 22 IR 3757; readopted filed Jan 10, 2001, 3:2
p.m.: 24 IR 1535)
329 IAC 9-8-20Reporting by owner or operator
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23-4-1; IC 13-23-4-2
Sec. 20. (a) An owner or operator shall submit the appropriate forms listed in section 21(b) of this rule documenting current
evidence of financial responsibility to the commissioner when an
(1) Within thirty (30) days after the owner or operator identifies a release from an underground storage tank required to
reported under 329 IAC 9-4-4 or 329 IAC 9-5-2.
(2) If the owner or operator fails to obtain alternate coverage as required by this rule, within thirty (30) days after the owner
or operator receives notice of any of the following:
(A) Commencement of a voluntary or involuntary proceeding under the bankruptcy laws of the United States (11 U.S.C.
101 et seq.) naming a provider of financial assurance as a debto
(B) Suspension or revocation of the authority of a provider of financial assurance to issue a financial assurance mecha-
nism.
(C) Failure of a guarantor to meet the requirements of the finan
(D) Other incapacity of a provider of financial assurance.
(3) As required by sections 6(g) and 19(b) of this rule.
(b) An owner or operator shall certify compliance with the finanial responsibility requirements of this article as specified in
the new tank notification form when notifying the Indiana depart
branch of the installation of a new underground storage tank und
(c) The commissioner may require an owner or operator to submit:
(1) evidence of financial assurance as described in section 21(b
(2) other information relevant to compliance with this rule;
(Solid Waste Management Board; 329 IAC 9-8-20; filed Jul 19, 1999, 12:00 p.m.: 22 IR 3757; readopted filed Jan 10,
at any time.
2001, 3:25 p.m.: 24 IR 1535)
329 IAC 9-8-21Record keeping
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23-4-1; IC 13-23-4-2
Sec. 21. (a) An owner or operator shall maintain evidence of all financial assurance mechanisms used to demonstrate financial
responsibility under this rule for an underground storage tank ureleased from the requirements of this rule under section 23 of
this rule. An owner or operator shall maintain such evidence at the underground storage tank site or the owner's or operator'place
of work. Records maintained off site must be made available uponrequest of the Indiana department of environmental management,
underground storage tank branch.
(b) An owner or operator shall maintain the following types of evidence of financial responsibility:
(1) An owner or operator using an assurance mechanism specified
(A) sections 6 through 10 of this rule;
(B) section 11(c) of this rule;
(C) section 12 of this rule; or
(D) sections 14 through 17 of this rule;
shall maintain a copy of the instrument worded as specified.
Indiana Administrative CodePage 95
UNDERGROUND STORAGE TANKS
(2) An owner or operator using a:
(A) financial test or guarantee; or
(B) local government financial test or local government guarante
shall maintain a copy of the chief financial officer's letter bad on year end financial statements for the most recent, completed
financial reporting year. Such evidence must be on file no later
financial reporting year.
(3) An owner or operator using a guarantee, surety bond, letter of credit, or certificate of deposit shall he
signed standby trust fund agreement and copies of any amendments
(4) A local government owner or operator using a local government guarantee under section 16(d) of this rule shall maintain
a copy of the signed standby trust fund agreement and copies of any amendments to the agreement.
(5) A local government owner or operator using the local government bond rating test shall maintain a copy of its bond rating
published within the last twelve (12) months by Moody's or Stand
(6) A local government owner or operator using the local government guarantee, where the guarantor's demonstration of
financial responsibility relies on the local government bond rattest, shall maintain a copy of the guarantor's bond rating
published within the last twelve (12) months by Moody's or Stand
(7) An owner or operator using an insurance policy or risk retention group coverage shall maintain a copy of the signed
insurance policy or risk retention group coverage policy, with the endorsement or certificate of insurance and any amendments
to the agreements.
(8) An owner or operator covered by the excess liability trust fund under section 11 of this rule shall maintain on file a copy
of any evidence of coverage supplied by or required by Indiana under 40 CFR 280.101(d). If a certificate of deposit is u
under section 11(c)(2) of this rule, the following must be maint
(A) The updated copy of the certification and agreement.
(B) Designation of the current location of the certificate of de
(9) An owner or operator using a local government fund shall mai
(A) A copy of the state constitutional provision or local governnt statute, charter, ordinance, or order dedicating the
fund.
(B) Year end financial statements for the most recent, completed financial reporting year showing the amount in the
fund. If the fund is established under section 17(a)(3) of this rule using incremental funding backed by bonding
authority, the financial statements must show the following:
(i) The previous year's balance.
(ii) The amount of funding during the year.
(iii) The closing balance in the fund.
(C) If the fund is established under section 17(a)(3) of this rule using incremental funding backed by b
the owner or operator also shall maintain documentation of the r
(i) the results of a voter referendum as specified under section 17(a)(3)(A) of this rule; or
(ii) attestation by the state attorney general as specified under section 17(a)(3)(B) of this rule.
(10) A local government owner or operator using the local government guarantee supported by the local government fund shal
maintain a copy of the guarantor's year end financial statements for the most recent, completed financial reporting year
showing the amount of the fund.
(c) An owner or operator that uses an assurance mechanism specified in sections 6 through 17 of this rule shall maintain an
updated copy of a certification of financial responsibility word follows, except that instructions in brackets are to be replaced
with the relevant information and the brackets deleted:
Certification of Financial Responsibility
[Owner or operator] hereby certifies that it is in compliance wi
The financial assurance mechanism(s) used to demonstrate financial responsibility under 329 IAC 9-8 is (are) as follows:
[For each mechanism, list the type of mechanism, name of issuer, mechanism number (if applicable), amount of coverage, effecte
period of coverage, and whether the mechanism covers "taking corrective action" or "compensating third parties for bodily injury
and property damage caused by" or "taking corrective action and compensating third parties for bodily injury and property damage
caused by" either "sudden accidental releases" or "nonsudden accidental releases" or "accidental releases".]
[Signature of owner or operator]
[Name of owner or operator]
Indiana Administrative CodePage 96
UNDERGROUND STORAGE TANKS
[Title]
[Date]
[Signature of witness or notary]
[Name of witness or notary]
[Date]
(d) The owner or operator shall update the certification of financial responsibility whenever the financial assurance mechanism
(Solid Waste Management Board; 329 IAC 9-8-21; filed Jul 19, 199
used to demonstrate financial responsibility changes.
p.m.: 22 IR 3757; readopted filed Jan 10, 2001, 3:25 p.m.: 24 IR
329 IAC 9-8-22Drawing on financial assurance mechanisms
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23-4-1; IC 13-23-4-2
Sec. 22. (a) Except as specified in subsection (d), the commissioner shall require the guarantor, surety, institution that ises
a letter of credit, or owner or operator that obtains a certific
commissioner, up to the limit of funds provided by the financialollowing
occur:
(1) The conditions of clauses (A) and (B) are completed as follo
(A) The owner or operator fails to establish alternate financial assurance within sixty (60) days after
of cancellation of the guarantee, surety bond, letter of credit, or, as applicable, other financial assurance mechanism.
(B) Either of the following occur:
(i) The commissioner determines or suspects that a release from
mechanism has occurred and so notifies the owner or operator.
(ii) The owner or operator has notified the commissioner under 3
underground storage tank covered by the mechanism.
(2) The conditions of subsection (b)(1), (b)(2)(A), or (b)(2)(B)
(b) The commissioner may draw on a standby trust fund when eithe
(1) The commissioner makes a final determination that a release has occurred and immediate or long term corrective action
for the release is needed, and the owner or operator, after appropriate notice and opportunity to comply under 329 IAC 9-4
and 329 IAC 9-5, has not conducted corrective action as required under 329 IAC 9-5.
(2) The commissioner has received either of the following:
(A) Certification from the:
(i) owner or operator;
(ii) third party liability claimant;
(iii) attorney representing the owner or operator; and
(iv) attorney representing the third party liability claimant;
that a third party liability claim should be paid. The certification must be worded as follows, except that instructions in
brackets are to be replaced with the relevant information and th
Certification of Valid Claim
The undersigned, as principals and as legal representatives of [owner or operator] and [insert name and address of third party
claimant], hereby certify that the claim of bodily injury [and/or] property damage caused by an accidental release arising from
operating [owner's or operator's] underground storage tank should be paid in the amount of $[______].
[Signatures]
Owner or Operator
Attorney for Owner or Operator
(Notary)
Date
[Signatures]
Claimant(s)
Attorney(s) for Claimant(s)
(Notary)
Indiana Administrative CodePage 97
UNDERGROUND STORAGE TANKS
Date
(B) A valid final court order establishing a judgment against the owner or operator for bodily injury or property damage
caused by an accidental release from an underground storage tank covered by financial assurance under this rule the
commissioner determines that the owner or operator has not satis
(c) If the commissioner determines that the amount of corrective
payment under subsection (b) may exceed the balance of the standby trust fund and the obligation of the provider of financial
assurance, the first priority for payment must be corrective action costs necessary to protect human health and the environment. The
commissioner shall direct payment of third party liability claims in the order in which the commissioner receives:
(1) certifications under subsection (b)(2)(A); and
(2) valid court orders under subsection (b)(2)(B).
(d) A governmental entity that acts as guarantor under section 16(e) of this rule, the local government guarantee without
(Solid Waste
standby trust, shall make payments as directed by the commissioner under the circumstances described in this section.
Management Board; 329 IAC 9-8-22; filed Jul 19, 1999, 12:00 p.m.: 22 IR 3759; readopted filed Jan 10, 2001, 3:25 p.m.: 24 IR
1535)
329 IAC 9-8-23Release from the requirements
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23-4-1; IC 13-23-4-2
Sec. 23. An owner or operator is no longer required to maintain financial responsibility under this rule for an underground
storage tank after the tank has been properly closed or, if corrective action is required, after corrective action has been completed
(Solid Waste Management Board; 329 IAC 9-8-23; filed Jul 19,
and the tank has been properly closed as required by 329 IAC 9-6
1999, 12:00 p.m.: 22 IR 3760; readopted filed Jan 10, 2001, 3:25 p.m.: 24 IR 1535)
329 IAC 9-8-24Bankruptcy or other incapacity of owner or operator or provider of financial assurance
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23-4-1; IC 13-23-4-2
Sec. 24. (a) Within ten (10) days after commencement of a voluntary or involuntary proceeding under the bankruptcy laws
of the United States (11 U.S.C. 101 et seq.) naming an owner or operator as debtor, the owner or operator shall:
(1) notify the commissioner by certified mail of such commenceme
(2) submit the appropriate forms listed in section 21(b) of this rule documenting current financial responsibility.
(b) Within ten (10) days after commencement of a voluntary or involuntary proceeding under the bankruptcy laws of the United
States (11 U.S.C. 101 et seq.) naming a guarantor providing financial assurance as debtor, such guarantor sr or
operator by certified mail of such commencement as required undee terms of the guarantee specified in section 7 or 11(c)(7) of
this rule.
(c) Within ten (10) days after commencement of a voluntary or involuntary proceeding under the bankruptcy laws of the United
States (11 U.S.C. 101 et seq.) naming a local government owner o operator as debtor, the local government owner or operator shall:
(1) notify the commissioner by certified mail of such commenceme
(2) submit the appropriate forms listed in section 21(b) of this rule documenting current financial responsibility.
(d) Within ten (10) days after commencement of a voluntary or involuntary proceeding under the bankruptcy laws of the United
States (11 U.S.C. 101 et seq.) naming a guarantor providing a lo government financial assurance as debtor, such guarantor shall
notify the local government owner or operator by certified mail such commencement as required under the terms of the guarantee
specified in section 16 of this rule.
(e) An owner or operator who obtains financial assurance by a mechanism other than the financial test of self-insurance shall
be deemed to be without the required financial assurance in the
(1) bankruptcy or incapacity of its provider of financial assura
(2) suspension or revocation of the authority of the provider of financial assurance to issue a:
(A) guarantee;
(B) insurance policy;
(C) risk retention group coverage policy;
Indiana Administrative CodePage 98
UNDERGROUND STORAGE TANKS
(D) surety bond;
(E) letter of credit; or
(F) certificate of deposit.
The owner or operator shall obtain alternate financial assurancespecified in this rule within thirty (30) days after receiving n
of such an event. If the owner or operator does not obtain altere coverage within thirty (30) days after such notification, the owner
shall notify the commissioner.
(f) Within thirty (30) days after receipt of notification that the excess liability trust fund under section 11 of this rule hs
become incapable of paying for assured corrective action or third party compensation costs, the owner or operator shall obtain
(Solid Waste Management Board; 329 IAC 9-8-24; filed Jul 19, 1999, 12:00 p.m.: 22 IR 3760;
alternate financial assurance.
readopted filed Jan 10, 2001, 3:25 p.m.: 24 IR 1535)
329 IAC 9-8-25Replenishment of guarantees, letters of credit, surety bonds, or certificates of depo
Authority:IC 13-14-8-1; IC 13-14-8-2; IC 13-23-1-1; IC 13-23-1-2
Affected:IC 13-23-4-1; IC 13-23-4-2
Sec. 25. (a) If at any time after a standby trust is funded, upon the instruction of the commissioner, with
guarantee, local government guarantee with standby trust, letter credit, surety bond, or certificate of deposit, and the amount in
the standby trust is reduced below the full amount of coverage rquired, the owner or operator shall, by the anniversary date of the
financial mechanism from which the funds were drawn or within one hundred twenty (120) days after the reduction has occurred,
whichever is sooner:
(1) replenish the value of financial assurance to equal the full amount of coverage required; or
(2) acquire another financial assurance mechanism for the amount by which funds in the standby trust have been reduced.
(b) As used in this section, "full amount of coverage required" means the amount of coverage to be provided by section 4 of
this rule. If a combination of mechanisms is used to provide the assurance funds that are drawn upon, replenishment must occuby
the earliest anniversary date among the mechanisms or within one
(Solid Waste Management Board; 329 IAC 9-8-25; filed Jul 19, 1999, 12:00 p.m.: 22 IR 3760; readopted filed
whichever is sooner.
Jan 10, 2001, 3:25 p.m.: 24 IR 1535)
*
Indiana Administrative CodePage 99
Attachment 2: 40 CFR 280
§279.82 40 CFR Ch. I (7105 Edition)
the requirements of parts 257 and 258 of Subpart DRelease Detection
this chapter.
280.40General requirements for all UST sys-
tems.
§279.82Use as a dust suppressant.
280.41Requirements for petroleum UST sys-
(a) The use of used oil as a dust sup-tems.
280.42Requirements for hazardous sub-
pressant is prohibited, except when
stance UST systems.
such activity takes place in one of the
280.43Methods of release detection for
states listed in paragraph (c) of this
tanks.
section.
280.44Methods of release detection for pip-
(b) A State may petition (e.g., as part
ing.
of its authorization petition submitted 280.45Release detection recordkeeping.
to EPA under §271.5 of this chapter or
Subpart ERelease Reporting,
by a separate submission) EPA to allow
Investigation, and Confirmation
the use of used oil (that is not mixed
with hazardous waste and does not ex-
280.50Reporting of suspected releases.
hibit a characteristic other than ignit-
280.51Investigation due to off-site impacts.
ability) as a dust suppressant. The 280.52Release investigation and confirma-
tion steps.
State must show that it has a program
280.53Reporting and cleanup of spills and
in place to prevent the use of used oil/
overfills.
hazardous waste mixtures or used oil
exhibiting a characteristic other than
Subpart FRelease 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-
280.60General.
pressant on the environment.
280.61Initial response.
(c)List of States. [Reserved]
280.62Initial abatement measures and site
check.
PART 280TECHNICAL STANDARDS
280.63Initial site characterization.
280.64Free product removal.
AND CORRECTIVE ACTION RE-
280.65Investigations for soil and ground-
QUIREMENTS FOR OWNERS AND
water cleanup.
OPERATORS OF UNDERGROUND
280.66Corrective action plan.
STORAGE TANKS (UST)
280.67Public participation.
Subpart GOut-of-Service UST Systems
Subpart AProgram Scope and Interim
and Closure
Prohibition
280.70Temporary closure.
Sec.
280.71Permanent closure and changes-in-
280.10Applicability.
service.
280.11Interim prohibition for deferred UST
280.72Assessing the site at closure or
systems.
change-in-service.
280.12Definitions.
280.73Applicability to previously closed
UST systems.
Subpart BUST Systems: Design, 280.74Closure records.
Construction, Installation and Notification
Subpart HFinancial Responsibility
280.20Performance standards for new UST
280.90Applicability.
systems.
280.91Compliance dates.
280.21Upgrading of existing UST systems.
280.92Definition of terms.
280.22Notification requirements.
280.93Amount and scope of required fi-
nancial responsibility.
Subpart CGeneral Operating
280.94Allowable mechanisms and com-
Requirements
binations of mechanisms.
280.95Financial test of self-insurance.
280.30Spill and overfill control.
280.96Guarantee.
280.31Operation and maintenance of corro-
280.97Insurance and risk retention group
sion protection.
coverage.
280.32Compatibility.
280.98Surety bond.
280.33Repairs allowed.
280.99Letter of credit.
280.34Reporting and recordkeeping. 280.100Use of state-required mechanism.
464
VerDate Aug<04>2004 10:43 Aug 05, 2005Jkt 205166PO 00000Frm 0047
Environmental Protection Agency §280.11
280.101State fund or other state assurance.
(1) Any UST system holding haz-
280.102Trust fund.
ardous wastes listed or identified under
280.103Standby trust fund.
Subtitle C of the Solid Waste Disposal
280.104Local government bond rating test.
Act, or a mixture of such hazardous
280.105Local government financial test.
waste and other regulated substances.
280.106Local government guarantee.
(2) Any wastewater treatment tank
280.107Local government fund.
system that is part of a wastewater
280.108Substitution of financial assurance
treatment facility regulated under sec-
mechanisms by owner or operator.
tion 402 or 307(b) of the Clean Water
280.109Cancellation or nonrenewal by a pro-
Act.
vider of financial assurance.
(3) Equipment or machinery that
280.110Reporting by owner or operator.
280.111Recordkeeping.
contains regulated substances for oper-
280.112Drawing on financial assurance
ational purposes such as hydraulic lift
mechanisms.
tanks and electrical equipment tanks.
280.113Release from the requirements.
(4) Any UST system whose capacity
280.114Bankruptcy or other incapacity of
is 110 gallons or less.
owner or operator or provider of finan-
(5) Any UST system that contains a
cial assurance.
de minimis concentration of regulated
280.115Replenishment of guarantees, letters
substances.
of credit, or surety bonds.
(6) Any emergency spill or overflow
280.116Suspension of enforcement. [Re-
served]
containment UST system that is expe-
ditiously emptied after use.
Subpart ILender Liability
(c)Deferrals.Subparts B, C, D, E, and
G do not apply to any of the following
280.200Definitions.
types of UST systems:
280.210Participation in management.
(1) Wastewater treatment tank sys-
280.220Ownership of an underground stor-
tems;
age tank or underground storage tank
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
280.230Operating an underground storage
(42 U.S.C. 2011 and following);
tank or underground storage tank sys-
(3) Any UST system that is part of an
tem.
emergency generator system at nuclear
AIP280N
PPENDIXTOARTOTIFICATIONFOR
power generation facilities regulated
UST(F)
NDERGROUNDTORAGEANKSORM
by the Nuclear Regulatory Commission
AIIP280LA
PPENDIXTOARTISTOFGENCIES
under 10 CFR part 50, appendix A;
DRN
ESIGNATEDTOECEIVEOTIFICATIONS
(4) Airport hydrant fuel distribution
AIIIP280S
PPENDIXTOARTTATEMENTFOR
systems; and
STI
HIPPINGICKETSANDNVOICES
(5) UST systems with field-con-
A: 42 U.S.C. 6912, 6991, 6991a, 6991b,
UTHORITY
structed tanks.
6991c, 6991d, 6991e, 6991f, 6991g, 6991h.
(d)Deferrals.Subpart D does not
S: 53 FR 37194, Sept. 23, 1988, unless
OURCE
apply to any UST system that stores
otherwise noted.
fuel solely for use by emergency power
generators.
Subpart AProgram Scope and
Interim Prohibition
§280.11Interim prohibition for de-
ferred UST systems.
§280.10Applicability.
(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
465
VerDate Aug<04>2004 10:43 Aug 05, 2005Jkt 205166PO 00000Frm 0047
§280.12 40 CFR Ch. I (7105 Edition)
to prevent the release or threatened re-ther galvanic anodes or impressed cur-
lease of any stored substance; and rent.
Cathodic protection tester means a per-
(3) Is constructed or lined with mate-
son who can demonstrate an under-
rial that is compatible with the stored
standing of the principles and measure-
substance.
ments of all common types of cathodic
(b) Notwithstanding paragraph (a) of
protection systems as applied to buried
this section, an UST system without
or submerged metal piping and tank
corrosion protection may be installed
systems. At a minimum, such persons
at a site that is determined by a corro-
must have education and experience in
sion expert not to be corrosive enough
soil resistivity, stray current, struc-
to cause it to have a release due to cor-
ture-to-soil potential, and component
rosion during its operating life. Owners
electrical isolation measurements of
and operators must maintain records
buried metal piping and tank systems.
that demonstrate compliance with the
CERCLA means the Comprehensive
requirements of this paragraph for the
Environmental Response, Compensa-
remaining life of the tank.
tion, and Liability Act of 1980, as
N: The National Association of Corro-
OTE
amended.
sion Engineers Standard RP0285, Control
Compatible means the ability of two
of External Corrosion on Metallic Buried,
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
§280.12Definitions.
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
466
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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. 4light, No. 4heavy,
tion is considered to have commenced No. 5light, No. 5heavy, 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 obligationswhich pressed air or hydraulic fluid to oper-
cannot be cancelled or modified with-ate lifts, elevators, and other similar
out substantial lossfor 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
467
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§280.12 40 CFR Ch. I (7105 Edition)
gasoline, aviation gasoline, No. 1 or No. Pipe or Piping means a hollow cyl-
inder or tubular conduit that is con-
2 diesel fuel, or any grade of gasohol,
structed of non-earthen materials.
and is typically used in the operation
Pipeline facilities (including gathering
of a motor engine.
lines)are new and existing pipe rights-
New tank system means a tank system
of-way and any associated equipment,
that will be used to contain an accu-
facilities, or buildings.
mulation of regulated substances and
Regulated substance means:
for which installation has commenced
(a) Any substance defined in section
after December 22, 1988. (See also Ex-
101(14) of the Comprehensive Environ-
isting Tank System.)
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.
Release means any spilling, leaking,
(a) In the case of an UST system in
emitting, discharging, escaping, leach-
use on November 8, 1984, or brought
ing or disposing from an UST into
into use after that date, any person
ground water, surface water or sub-
who owns an UST system used for stor-
surface soils.
age, use, or dispensing of regulated
Release detection means determining
substances; and
whether a release of a regulated sub-
(b) In the case of any UST system in
stance has occurred from the UST sys-
use before November 8, 1984, but no
tem into the environment or into the
longer in use on that date, any person
interstitial space between the UST sys-
who owned such UST immediately be-
tem and its secondary barrier or sec-
fore the discontinuation of its use.
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
468
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Environmental Protection Agency §280.20
are pumped out periodically and hauled (2) The Hazardous Liquid Pipeline
Safety Act of 1979 (49 U.S.C. App. 2001,
to a treatment facility.
et seq.), or
Storm-water or wastewater collection
(3) Which is an intrastate pipeline fa-
system means piping, pumps, conduits,
cility regulated under state laws com-
and any other equipment necessary to
parable to the provisions of the law re-
collect and transport the flow of sur-
ferred to in paragraph (d)(1) or (d)(2) of
face water run-off resulting from pre-
this definition;
cipitation, or domestic, commercial, or
(e) Surface impoundment, pit, pond,
industrial wastewater to and from re-
or lagoon;
tention areas or any areas where treat-
(f) Storm-water or wastewater collec-
ment is designated to occur. The col-
tion system;
lection of storm water and wastewater
(g) Flow-through process tank;
does not include treatment except
(h) Liquid trap or associated gath-
where incidental to conveyance.
ering lines directly related to oil or gas
Surface impoundment is a natural
production and gathering operations;
topographic depression, man-made ex-
or
cavation, or diked area formed pri-
(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-
The term underground storage tank
lated substances and constructed of
or UST does not include any pipes
non-earthen materials (e.g., concrete,
connected to any tank which is de-
steel, plastic) that provide structural
scribed in paragraphs (a) through (i) of
support.
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 BUST 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-
§280.20Performance 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-
orerly designed and constructed, and any
469
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§280.20 40 CFR Ch. I (7105 Edition)
Standard 58, Standard for Steel Under-
portion underground that routinely
ground Tanks for Flammable and Combus-
contains product must be protected
tible Liquids.
from corrosion, in accordance with a
(3) The tank is constructed of a steel-
code of practice developed by a nation-
fiberglass-reinforced-plastic composite;
ally recognized association or inde-
or
pendent testing laboratory as specified
N: The following industry codes may be
OTE
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-
N: The following industry codes may be
OTE
derground Storage Tanks, or the Associa-
used to comply with paragraph (a)(1) of this
tion for Composite Tanks ACT100, 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; Underwriters Labora-
without additional corrosion protec-
tories of Canada CAN4S615M83, Standard
tion measures provided that:
for Reinforced Plastic Underground Tanks
(i) The tank is installed at a site that
for Petroleum Products; or American Soci-
is determined by a corrosion expert not
ety of Testing and Materials Standard D4021
to be corrosive enough to cause it to
86, Standard Specification for Glass-Fiber-
have a release due to corrosion during
Reinforced Polyester Underground Petro-
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-
N: The following codes and standards
erly designed, constructed, and pro-
OTE
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
nationally recognized association or
STI-P3 System of External Corrosion Protec-
independent testing laboratory as spec-
tion of Underground Steel Storage Tanks;
ified below:
(B) Underwriters Laboratories Standard
(1) The piping is constructed of fiber-
1746, Corrosion Protection Systems for Un-
glass-reinforced plastic; or
derground Storage Tanks;
(C) Underwriters Laboratories of Canada
N: The following codes and standards
OTE
CAN4S603M85, 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 CAN4G03.1M85,
(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
S631M84, Isolating Bushings for Steel Un-
Combustible and LP Gas;
derground Tanks Protected with Coatings (C) Underwriters Laboratories of Canada
and Galvanic Systems; or
Guide ULC107, Glass Fiber Reinforced
(D) National Association of Corrosion En-
Plastic Pipe and Fittings for Flammable
gineers Standard RP0285, Control of Ex-
Liquids; and
ternal Corrosion on Metallic Buried, Par-(D) Underwriters Laboratories of Canada
tially Buried, or Submerged Liquid Storage Standard CAN 4S633M81, Flexible Under-
Systems, and Underwriters Laboratories ground Hose Connectors.
470
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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.
(c)Spill and overfill prevention equip-
lowing manner:
(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
N: The following codes and standards
that will:
OTE
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
(B) Alert the transfer operator when
Liquids Code;
the tank is no more than 90 percent
(B) American Petroleum Institute Publica-
full by restricting the flow into the
tion 1615, Installation of Underground Pe-
tank or triggering a high-level alarm;
troleum Storage Systems;
(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
high level alarm one minute before
(D) National Association of Corrosion En-
overfilling, or automatically shut off
gineers Standard RP0169, Control of Ex-
flow into the tank so that none of the
ternal Corrosion on Submerged Metallic Pip-
fittings located on top of the tank are
ing Systems.
exposed to product due to overfilling.
(3) The piping is constructed of metal
(2) Owners and operators are not re-
without additional corrosion protec-
quired to use the spill and overfill pre-
tion measures provided that:
vention equipment specified in para-
(i) The piping is installed at a site
graph (c)(1) of this section if:
that is determined by a corrosion ex-
(i) Alternative equipment is used
pert to not be corrosive enough to
that is determined by the imple-
cause it to have a release due to corro-
menting agency to be no less protec-
sion during its operating life; and
tive of human health and the environ-
(ii) Owners and operators maintain
ment than the equipment specified in
records that demonstrate compliance
paragraph (c)(1) (i) or (ii) of this sec-
with the requirements of paragraph
tion; or
(b)(3)(i) of this section for the remain-
(ii) The UST system is filled by
ing life of the piping; or
transfers of no more than 25 gallons at
N: National Fire Protection Associa-
OTE
one time.
tion Standard 30, Flammable and Combus-
tible Liquids Code; and National Associa-
(d)Installation.All tanks and piping
tion of Corrosion Engineers Standard RP01
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
by a nationally recognized association
used to comply with paragraph (b)(3) of this
or independent testing laboratory and
section.
in accordance with the manufacturers
(4) The piping construction and cor-
instructions.
rosion protection are determined by
N: Tank and piping system installation
OTE
the implementing agency to be de-
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
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§280.21 40 CFR Ch. I (7105 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-
by a nationally recognized association
tute Standard B31.3, Petroleum Refinery
or independent testing laboratory:
Piping, and American National Standards
(1)Interior lining. A tank may be up-
Institute Standard B31.4 Liquid Petroleum
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
ers 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.
The second tightness test must be con-
[53 FR 37194, Sept. 23, 1988, as amended at 56
ducted between three (3) and six (6)
FR 38344, Aug. 13, 1991]
months following the first operation of
§280.21Upgrading of existing UST
the cathodic protection system; or
systems.
(iv) The tank is assessed for corro-
sion holes by a method that is deter-
(a)Alternatives allowed. Not later
mined by the implementing agency to
than December 22, 1998, all existing
prevent releases in a manner that is no
UST systems must comply with one of
less protective of human health and
the following requirements:
the environment than paragraphs (b)(2)
(1) New UST system performance
(i) through (iii) of this section.
standards under §280.20;
(3)Internal lining combined with ca-
(2) The upgrading requirements in
thodic protection. A tank may be up-
paragraphs (b) through (d) of this sec-
graded by both internal lining and ca-
tion; or
thodic protection if:
(3) Closure requirements under sub-
(i) The lining is installed in accord-
part G of this part, including applica-
ble requirements for corrective action ance with the requirements of §280.33;
and
under subpart F.
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VerDate Aug<04>2004 10:43 Aug 05, 2005Jkt 205166PO 00000Frm 0048
Environmental Protection Agency §280.22
Waste Amendments of 1984, Pub. L. 98616, on
(ii) The cathodic protection system
a form published by EPA on November 8, 1985
meets the requirements of §280.20(a)(2)
(50 FR 46602) unless notice was given pursu-
(ii), (iii), and (iv).
ant to section 103(c) of CERCLA. Owners and
N: The following codes and standards
OTE
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-
forth in appendix I of this part to fulfill
ground Tanks by Lining Without the Addi-
the requirements of this section, the
tion of Cathodic Protection;
state forms may be submitted in lieu of
(C) National Association of Corrosion Engi-
the forms set forth in Appendix I of
neers Standard RP0285, Control of Exter-
this part. If a state requires that its
nal Corrosion on Metallic Buried, Partially
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-
9002.
ground Petroleum Storage Tanks and Piping
(c) Owners required to submit notices
Systems.
under paragraph (a) of this section
(c)Piping upgrading requirements.
must provide notices to the appro-
Metal piping that routinely contains
priate agencies or departments identi-
regulated substances and is in contact
fied in appendix II of this part for each
with the ground must be cathodically
tank they own. Owners may provide
protected in accordance with a code of
notice for several tanks using one noti-
practice developed by a nationally rec-
fication form, but owners who own
ognized association or independent
tanks located at more than one place
testing laboratory and must meet the
of operation must file a separate notifi-
requirements of §280.20(b)(2) (ii), (iii),
cation form for each separate place of
and (iv).
operation.
N: The codes and standards listed in the
OTE
(d) Notices required to be submitted
note following §280.20(b)(2) may be used to
under paragraph (a) of this section
comply with this requirement.
must provide all of the information in
(d)Spill and overfill prevention equip-
sections I through VI of the prescribed
ment.To prevent spilling and over-
form (or appropriate state form) for
filling associated with product transfer
each tank for which notice must be
to the UST system, all existing UST
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
§280.22Notification requirements.
must be given.
(e) All owners and operators of new
(a) Any owner who brings an under-
UST systems must certify in the notifi-
ground storage tank system into use
cation form compliance with the fol-
after May 8, 1986, must within 30 days
lowing requirements:
of bringing such tank into use, submit,
(1) Installation of tanks and piping
in the form prescribed in appendix I of
under §280.20(e);
this part, a notice of existence of such
(2) Cathodic protection of steel tanks
tank system to the state or local agen-
and piping under §280.20 (a) and (b);
cy or department designated in appen-
(3) Financial responsibility under
dix II of this part to receive such no-
subpart H of this part; and
tice.
(4) Release detection under §§280.41
N: Owners and operators of UST sys-
OTE
and 280.42.
tems that were in the ground on or after May
(f) All owners and operators of new
8, 1986, unless taken out of operation on or
UST systems must ensure that the in-
before January 1, 1974, were required to no-
staller certifies in the notification
tify the designated state or local agency in
form that the methods used to install
accordance with the Hazardous and Solid
473
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§280.30 40 CFR Ch. I (7105 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 owners 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
that are used to determine that ca-
Subpart CGeneral Operating
thodic protection is adequate as re-
Requirements
quired by this section must be in ac-
cordance with a code of practice devel-
§280.30Spill and overfill control.
oped by a nationally recognized asso-
(a) Owners and operators must ensure
ciation.
that releases due to spilling or over-
N: National Association of Corrosion
OTE
filling do not occur. The owner and op-
Engineers Standard RP0285, 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-
sure the equipment is running prop-
N: The transfer procedures described in
OTE
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
the cathodic protection must be main-
American Petroleum Institute Publication
tained (in accordance with §280.34) to
1621, Recommended Practice for Bulk Liq-
demonstrate compliance with the per-
uid Stock Control at Retail Outlets, and
formance standards in this section.
National Fire Protection Association Stand-
These records must provide the fol-
ard 30, Flammable and Combustible Liquids
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-
§280.31Operation and maintenance of
graph (b) of this section.
corrosion protection.
§280.32Compatibility.
All owners and operators of steel
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-
N: Owners and operators storing alco-
OTE
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:
(a) American Petroleum Institute Publica-
continuously provide corrosion protec-
tion 1626, Storing and Handling Ethanol and
tion to the metal components of that
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.
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Environmental Protection Agency §280.34
agency to be no less protective of
§280.33Repairs allowed.
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-
N: The following codes and standards
OTE
tion.
may be used to comply with paragraph (a) of
this section: National Fire Protection Asso-
§280.34Reporting and recordkeeping.
ciation Standard 30, Flammable and Com-
Owners and operators of UST sys-
bustible Liquids Code; American Petroleum
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-
sion, testing, and monitoring by the
derground Storage Tanks; and National
owner or operator pursuant to section
Leak Prevention Association Standard 631,
9005 of Subtitle I of the Resource Con-
Spill Prevention, Minimum 10 Year Life Ex-
servation and Recovery Act, as amend-
tension of Existing Steel Underground Tanks
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:
ufacturers 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
manufacturers 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 experts 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-
pairs (§280.33(f));
is determined by the implementing
475
VerDate Aug<04>2004 10:43 Aug 05, 2005Jkt 205166PO 00000Frm 0048
§280.40 40 CFR Ch. I (7105 Edition)
(4) Recent compliance with release
Date after which Pd/Pfa
Method Section
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.
Tank Tightness 280.43(c) December 22, 1990.
(§280.74).
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
(b) When a release detection method
site and be provided for inspection to
operated in accordance with the per-
the implementing agency upon request.
formance standards in §280.43 and
(3) In the case of permanent closure
§280.44 indicates a release may have oc-
records required under §280.74, owners
curred, owners and operators must no-
and operators are also provided with
tify the implementing agency in ac-
the additional alternative of mailing
cordance with subpart E.
closure records to the implementing
(c) Owners and operators of all UST
agency if they cannot be kept at the
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 DRelease Detection following table:
SP-R
CHEDULEFORHASEINOFELEASE
§280.40General requirements for all
D
UST systems. ETECTION
(a) Owners and operators of new and
Year when release detection is required (by
Year system
December 22 of the year indicated)
existing UST systems must provide a
was in-
stalled
method, or combination of methods, of
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-
196569....P/RD
197074....P RD
tains product;
197579....P RD
(2) Is installed, calibrated, operated,
198088....P RD
and maintained in accordance with the
New tanks (after December 22) immediately upon installa-
manufacturers 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-
(d) Any existing UST system that
formance claims and their manner of
cannot apply a method of release de-
determination described in writing by
tection that complies with the require-
the equipment manufacturer or in-
ments of this subpart must complete
staller. In addition, methods used after
the closure procedures in subpart G by
the date shown in the following table
the date on which release detection is
corresponding with the specified meth-
required for that UST system under
od except for methods permanently in-
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
signed and constructed to meet the fol-
§280.41Requirements for petroleum
lowing standards:
UST systems.
(i) The below-grade piping operates
Owners and operators of petroleum
at less than atmospheric pressure;
UST systems must provide release de-
(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
§280.42Requirements for hazardous
substance UST systems.
under §280.21(b), whichever is later;
(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-
ments for new systems in paragraph (b)
(3) Tanks with capacity of 550 gallons
of this section.
or less may use weekly tank gauging
(b) Release detection at new haz-
(conducted in accordance with
ardous substance UST systems must
§280.43(b)).
meet the following requirements:
(b)Piping.Underground piping that
(1) Secondary containment systems
routinely contains regulated sub-
must be designed, constructed and in-
stances must be monitored for releases
stalled to:
in a manner that meets one of the fol-
(i) Contain regulated substances re-
lowing requirements:
leased from the tank system until they
(1)Pressurized piping. Underground
are detected and removed;
piping that conveys regulated sub-
(ii) Prevent the release of regulated
stances under pressure must:
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
N. The provisions of 40 CFR 265.193,
OTE
§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:
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§280.43 40 CFR Ch. I (7105 Edition)
(i) Contain 100 percent of the capac-ing in the tank are recorded each oper-
ating day;
ity of the largest tank within its
boundary;(2) The equipment used is capable of
measuring the level of product over the
(ii) Prevent the interference of pre-
full range of the tanks height to the
cipitation or ground-water intrusion
nearest one-eighth of an inch;
with the ability to contain or detect a
(3) The regulated substance inputs
release of regulated substances; and
are reconciled with delivery receipts by
(iii) Surround the tank completely
measurement of the tank inventory
(i.e., it is capable of preventing lateral
volume before and after delivery;
as well as vertical migration of regu-
(4) Deliveries are made through a
lated substances).
drop tube that extends to within one
(4) Underground piping must be
foot of the tank bottom;
equipped with secondary containment
(5) Product dispensing is metered and
that satisfies the requirements of para-
recorded within the local standards for
graph (b)(1) of this section (e.g., trench
meter calibration or an accuracy of 6
liners, jacketing of double-walled pipe).
cubic inches for every 5 gallons of prod-
In addition, underground piping that
uct withdrawn; and
conveys regulated substances under
(6) The measurement of any water
pressure must be equipped with an
level in the bottom of the tank is made
automatic line leak detector in accord-
to the nearest one-eighth of an inch at
ance with §280.44(a).
least once a month.
(5) Other methods of release detec-
N: Practices described in the American
OTE
tion may be used if owners and opera-
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.
(b)Manual tank gauging. Manual
as effectively as any of the methods al-
tank gauging must meet the following
lowed in §§280.43(b) through (h) can de-
requirements:
tect a release of petroleum;
(1) Tank liquid level measurements
(ii) Provide information to the imple-
are taken at the beginning and ending
menting agency on effective corrective
of a period of at least 36 hours during
action technologies, health risks, and
which no liquid is added to or removed
chemical and physical properties of the
from the tank;
stored substance, and the characteris-
(2) Level measurements are based on
tics of the UST site; and,
an average of two consecutive stick
(iii) Obtain approval from the imple-
readings at both the beginning and
menting agency to use the alternate
ending of the period;
release detection method before the in-
(3) The equipment used is capable of
stallation and operation of the new
measuring the level of product over the
UST system.
full range of the tanks height to the
nearest one-eighth of an inch;
§280.43Methods of release detection
for tanks.
(4) A leak is suspected and subject to
the requirements of subpart E if the
Each method of release detection for
variation between beginning and end-
tanks used to meet the requirements of
ing measurements exceeds the weekly
§280.41 must be conducted in accord-
or monthly standards in the following
ance with the following:
table:
(a)Inventory control. Product inven-
tory control (or another test of equiva-
Nominal
Weekly standard (one Monthly standard (av-
tank capac-
lent performance) must be conducted
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.
or less.
lons on a monthly basis in the fol-
5511,000 13 gallons...................7 gallons.
lowing manner:
gallons.
(1) Inventory volume measurements
1,001 26 gallons...................13 gallons.
2,000
for regulated substance inputs, with-
gallons.
drawals, and the amount still remain-
478
VerDate Aug<04>2004 10:43 Aug 05, 2005Jkt 205166PO 00000Frm 0048
Environmental Protection Agency §280.43
interfere with the method used to de-
(5) Only tanks of 550 gallons or less
tect releases from the tank;
nominal capacity may use this as the
(5) The vapor monitors are designed
sole method of release detection.
and operated to detect any significant
Tanks of 551 to 2,000 gallons may use
increase in concentration above back-
the method in place of manual inven-
ground of the regulated substance
tory control in §280.43(a). Tanks of
stored in the tank system, a compo-
greater than 2,000 gallons nominal ca-
nent or components of that substance,
pacity may not use this method to
or a tracer compound placed in the
meet the requirements of this subpart.
tank system;
(c)Tank tightness testing. Tank tight-
(6) In the UST excavation zone, the
ness testing (or another test of equiva-
site is assessed to ensure compliance
lent performance) must be capable of
with the requirements in paragraphs
detecting a 0.1 gallon per hour leak
(e) (1) through (4) of this section and to
rate from any portion of the tank that
establish the number and positioning
routinely contains product while ac-
of monitoring wells that will detect re-
counting for the effects of thermal ex-
leases within the excavation zone from
pansion or contraction of the product,
any portion of the tank that routinely
vapor pockets, tank deformation, evap-
contains product; and
oration or condensation, and the loca-
(7) Monitoring wells are clearly
tion of the water table.
marked and secured to avoid unauthor-
(d)Automatic tank gauging. Equip-
ized access and tampering.
ment for automatic tank gauging that
(f)Ground-water monitoring. Testing
tests for the loss of product and con-
or monitoring for liquids on the ground
ducts inventory control must meet the
water must meet the following require-
following requirements:
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
VerDate Aug<04>2004 10:43 Aug 05, 2005Jkt 205166PO 00000Frm 0048
§280.44 40 CFR Ch. I (7105 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-
N: The provisions outlined in the Steel
OTE
prove another method if the owner and
Tank Institutes Standard for Dual Wall
operator can demonstrate that the
Underground Storage Tanks may be used as
method can detect a release as effec-
guidance for aspects of the design and con-
tively as any of the methods allowed in
struction of underground steel double-walled
paragraphs (c) through (h) of this sec-
tanks.
tion. In comparing methods, the imple-
(2) For UST systems with a sec-
menting agency shall consider the size
ondary barrier within the excavation
of release that the method can detect
zone, the sampling or testing method
and the frequency and reliability with
used can detect a release between the
which it can be detected. If the method
UST system and the secondary barrier;
is approved, the owner and operator
(i) The secondary barrier around or
must comply with any conditions im-
beneath the UST system consists of ar-
posed by the implementing agency on
tificially constructed material that is
its use to ensure the protection of
sufficiently thick and impermeable (at
human health and the environment.
least 10cm/sec for the regulated sub-
stance stored) to direct a release to the
§280.44Methods of release detection
monitoring point and permit its detec-
for piping.
tion;
(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
per hour at 10 pounds per square inch
(iv) The ground water, soil moisture,
or rainfall will not render the testing line pressure within 1 hour. An annual
test of the operation of the leak detec-
or sampling method used inoperative
so that a release could go undetected tor must be conducted in accordance
with the manufacturers requirements.
for more than 30 days;
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VerDate Aug<04>2004 10:43 Aug 05, 2005Jkt 205166PO 00000Frm 0049
Environmental Protection Agency §280.51
(b)Line tightness testing. A periodic
Subpart ERelease 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-
§280.50Reporting 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:
§280.45Release 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
as the erratic behavior of product dis-
pertaining to any release detection sys-
pensing equipment, the sudden loss of
tem used, and the manner in which
product from the UST system, or an
these claims have been justified or
unexplained presence of water in the
tested by the equipment manufacturer
tank), unless system equipment is
or installer, must be maintained for 5
found to be defective but not leaking,
years, or for another reasonable period
and is immediately repaired or re-
of time determined by the imple-
placed; and,
menting agency, from the date of in-
(c) Monitoring results from a release
stallation;
detection method required under
(b) The results of any sampling, test-
§280.41 and §280.42 that indicate a re-
ing, or monitoring must be maintained
lease may have occurred unless:
for at least 1 year, or for another rea-
(1) The monitoring device is found to
sonable period of time determined by
be defective, and is immediately re-
the implementing agency, except that
paired, recalibrated or replaced, and
the results of tank tightness testing
additional monitoring does not confirm
conducted in accordance with §280.43(c)
the initial result; or
must be retained until the next test is
(2) In the case of inventory control, a
conducted; and
second month of data does not confirm
(c) Written documentation of all cali-
the initial result.
bration, maintenance, and repair of re-
lease detection equipment permanently
§280.51Investigation due to off-site
located on-site must be maintained for
impacts.
at least one year after the servicing
When required by the implementing
work is completed, or for another rea-
agency, owners and operators of UST
sonable time period determined by the
systems must follow the procedures in
implementing agency. Any schedules of
§280.52 to determine if the UST system
required calibration and maintenance
is the source of off-site impacts. These
provided by the release detection
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.
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VerDate Aug<04>2004 10:43 Aug 05, 2005Jkt 205166PO 00000Frm 0049
§280.52 40 CFR Ch. I (7105 Edition)
(2) If the test results for the exca-
§280.52Release investigation and con-
firmation steps. vation zone or the UST site do not in-
dicate that a release has occurred, fur-
Unless corrective action is initiated
ther investigation is not required.
in accordance with subpart F, owners
and operators must immediately inves-
§280.53Reporting and cleanup of
tigate and confirm all suspected re-
spills and overfills.
leases of regulated substances requir-
(a) Owners and operators of UST sys-
ing reporting under §280.50 within 7
tems must contain and immediately
days, or another reasonable time pe-
clean up a spill or overfill and report to
riod specified by the implementing
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
the environment that equals or exceeds
for the system, tank, or delivery piping
its reportable quantity under CERCLA
indicate that a leak exists.
(40 CFR part 302).
(2) Further investigation is not re-
(b) Owners and operators of UST sys-
quired if the test results for the sys-
tems must contain and immediately
tem, tank, and delivery piping do not
clean up a spill or overfill of petroleum
indicate that a leak exists and if envi-
that is less than 25 gallons or another
ronmental contamination is not the
reasonable amount specified by the im-
basis for suspecting a release.
plementing agency, and a spill or over-
(3) Owners and operators must con-
fill of a hazardous substance that is
duct a site check as described in para-
less than the reportable quantity. If
graph (b) of this section if the test re-
cleanup cannot be accomplished within
sults for the system, tank, and delivery
24 hours, or another reasonable time
piping do not indicate that a leak ex-
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
N: Pursuant to §§302.6 and 355.40, a re-
OTE
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
24 hours) to the National Response Center
ers and operators must consider the na-
under sections 102 and 103 of the Comprehen-
ture of the stored substance, the type
sive Environmental Response, Compensa-
of initial alarm or cause for suspicion,
tion, and Liability Act of 1980 and to appro-
the type of backfill, the depth of
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;
482
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Environmental Protection Agency §280.63
surface structures (such as sewers or
Subpart FRelease Response and
basements);
Corrective Action for UST Sys-
(4) Remedy hazards posed by con-
tems Containing Petroleum or
taminated soils that are excavated or
Hazardous Substances
exposed as a result of release confirma-
tion, site investigation, abatement, or
§280.60General.
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
requirements;
with the requirements of this subpart
(5) Measure for the presence of a re-
except for USTs excluded under
lease where contamination is most
§280.10(b) and UST systems subject to
likely to be present at the UST site,
RCRA Subtitle C corrective action re-
unless the presence and source of the
quirements under section 3004(u) of the
release have been confirmed in accord-
Resource Conservation and Recovery
ance with the site check required by
Act, as amended.
§280.52(b) or the closure site assess-
§280.61Initial response. ment of §280.72(a). In selecting sample
types, sample locations, and measure-
Upon confirmation of a release in ac-
ment methods, the owner and operator
cordance with §280.52 or after a release
must consider the nature of the stored
from the UST system is identified in
substance, the type of backfill, depth
any other manner, owners and opera-
to ground water and other factors as
tors must perform the following initial
appropriate for identifying the pres-
response actions within 24 hours of a
ence and source of the release; and
release or within another reasonable
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
§280.62Initial 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
§280.63Initial 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
in §§280.60 and 280.61. This information
the released substance into sur-
must include, but is not necessarily
rounding soils and ground water;
limited to the following:
(3) Continue to monitor and mitigate
(1) Data on the nature and estimated
any additional fire and safety hazards
quantity of release;
posed by vapors or free product that
(2) Data from available sourcesand/
have migrated from the UST exca-
or site investigations concerning the
vation zone and entered into sub-
483
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§280.64 40 CFR Ch. I (7105 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.
§280.64Free product removal.
§280.65Investigations for soil and
ground-water cleanup.
At sites where investigations under
(a) In order to determine the full ex-
§280.62(a)(6) indicate the presence of
tent and location of soils contaminated
free product, owners and operators
by the release and the presence and
must remove free product to the max-
concentrations of dissolved product
imum extent practicable as determined
contamination in the ground water,
by the implementing agency while con-
owners and operators must conduct in-
tinuing, as necessary, any actions ini-
vestigations of the release, the release
tiated under §§280.61 through 280.63, or
site, and the surrounding area possibly
preparing for actions required under
affected by the release if any of the fol-
§§280.65 through 280.66. In meeting the
lowing conditions exist:
requirements of this section, owners
(1) There is evidence that ground-
and operators must:
water wells have been affected by the
(a) Conduct free product removal in a
release (e.g., as found during release
manner that minimizes the spread of
confirmation or previous corrective ac-
contamination into previously
tion measures);
uncontaminated zones by using recov-
(2) Free product is found to need re-
ery and disposal techniques appro-
covery in compliance with §280.64;
priate to the hydrogeologic conditions
(3) There is evidence that contami-
at the site, and that properly treats,
nated soils may be in contact with
discharges or disposes of recovery by-
ground water (e.g., as found during
products in compliance with applicable
conduct of the initial response meas-
local, State and Federal regulations;
(b) Use abatement of free product mi-ures or investigations required under
§§280.60 through 280.64); and
gration as a minimum objective for the
design of the free product removal sys-(4) The implementing agency re-
quests an investigation, based on the
tem;
(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
modifications to the plan made by the
paragraph (a) of this section as soon as
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-
§280.66Corrective 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,
adverse consequences from cleanup ac-
after fulfilling the requirements of
tivities; and
§§280.61 through 280.63, choose to sub-
(3) Incorporate these self-initiated
mit a corrective action plan for re-
cleanup measures in the corrective ac-
sponding to contaminated soil and
tion plan that is submitted to the im-
ground water. In either case, owners
plementing agency for approval.
and operators are responsible for sub-
mitting a plan that provides for ade-
§280.67Public participation.
quate protection of human health and
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-
(c) Before approving a corrective ac-
rent and future uses of nearby surface
tion plan, the implementing agency
water and ground water;
may hold a public meeting to consider
(4) The potential effects of residual
comments on the proposed corrective
contamination on nearby surface water
action plan if there is sufficient public
and ground water;
interest, or for any other reason.
(5) An exposure assessment; and
(d) The implementing agency must
(6) Any information assembled in
give public notice that complies with
compliance with this subpart.
paragraph (a) of this section if imple-
(c) Upon approval of the corrective
mentation of an approved corrective
action plan or as directed by the imple-
action plan does not achieve the estab-
menting agency, owners and operators
must implement the plan, including
lished cleanup levels in the plan and
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VerDate Aug<04>2004 10:43 Aug 05, 2005Jkt 205166PO 00000Frm 0049
§280.70 40 CFR Ch. I (7105 Edition)
of this section, or within another rea-
termination of that plan is under con-
sideration by the implementing agen-sonable time period determined by the
cy.
implementing agency, owners and oper-
ators must notify the implementing
Subpart GOut-of-Service UST
agency of their intent to permanently
close or make the change-in-service,
Systems and Closure
unless such action is in response to cor-
§280.70Temporary closure.
rective action. The required assess-
ment of the excavation zone under
(a) When an UST system is tempo-
§280.72 must be performed after noti-
rarily closed, owners and operators
fying the implementing agency but be-
must continue operation and mainte-
fore completion of the permanent clo-
nance of corrosion protection in ac-
sure or a change-in-service.
cordance with §280.31, and any release
(b) To permanently close a tank,
detection in accordance with subpart
owners and operators must empty and
D. Subparts E and F must be complied
clean it by removing all liquids and ac-
with if a release is suspected or con-
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:
N: The following cleaning and closure
OTE
(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-
tion 2015, Cleaning Petroleum Storage
owners and operators must perma-
Tanks;
nently close the UST system if it does
(C) American Petroleum Institute Rec-
not meet either performance standards
ommended Practice 1631, Interior Lining of
in §280.20 for new UST systems or the
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
conducting safe closure procedures at some
riod in accordance with §§280.71280.74,
hazardous substance tanks.
unless the implementing agency pro-
vides an extension of the 12-month
§280.72Assessing the site at closure or
temporary closure period. Owners and
change-in-service.
operators must complete a site assess-
(a) Before permanent closure or a
ment in accordance with §280.72 before
change-in-service is completed, owners
such an extension can be applied for.
and operators must measure for the
§280.71Permanent 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
VerDate Aug<04>2004 10:43 Aug 05, 2005Jkt 205166PO 00000Frm 0049
Environmental Protection Agency §280.91
consider the method of closure, the na-
§280.90Applicability.
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-
tities whose debts and liabilities are
(b) If contaminated soils, contami-
the debts and liabilities of a state or
nated ground water, or free product as
the United States are exempt from the
a liquid or vapor is discovered under
requirements of this subpart.
paragraph (a) of this section, or by any
(d) The requirements of this subpart
other manner, owners and operators
do not apply to owners and operators of
must begin corrective action in accord-
any UST system described in §280.10 (b)
ance with subpart F.
or (c).
(e) If the owner and operator of a pe-
§280.73Applicability to previously
closed UST systems. troleum underground storage tank are
separate persons, only one person is re-
When directed by the implementing
quired to demonstrate financial re-
agency, the owner and operator of an
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.
§280.91Compliance dates.
Owners of petroleum underground
§280.74Closure records.
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
Administration; January 24, 1989, ex-
(a) By the owners and operators who
cept that compliance with §280.94(b) is
took the UST system out of service;
required by: July 24, 1989.
(b) By the current owners and opera-
(b) All petroleum marketing firms
tors of the UST system site; or
owning 100999 USTs; October 26, 1989.
(c) By mailing these records to the
(c) All petroleum marketing firms
implementing agency if they cannot be
owning 1399 USTs at more than one fa-
maintained at the closed facility.
cility; April 26, 1991.
(d) All petroleum UST owners not de-
Subpart HFinancial
scribed in paragraphs (a), (b), or (c) of
Responsibility
this section, excluding local govern-
ment entities; December 31, 1993.
(e) All local government entities (in-
S: 53 FR 43370, Oct. 26, 1988, unless
OURCE
cluding Indian tribes) not included in
otherwise noted.
487
VerDate Aug<04>2004 10:43 Aug 05, 2005Jkt 205166PO 00000Frm 0049
§280.92 40 CFR Ch. I (7105 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
an owner or operator or provider of fi-
[53 FR 43370, Oct. 26, 1988, as amended at 54
nancial assurance incurs in defending
FR 5452, Feb. 3, 1989; 55 FR 18567, May 2, 1990;
against claims or actions brought,
55 FR 46025, Oct. 31, 1990; 56 FR 66373, Dec. 23,
(1) By EPA or a state to require cor-
1991; 59 FR 9607, Feb. 28, 1994]
rective action or to recover the costs of
§280.92Definition of terms.
corrective action;
(2) By or on behalf of a third party
When used in this subpart, the fol-
for bodily injury or property damage
lowing terms shall have the meanings
caused by an accidental release; or
given below:
(3) By any person to enforce the
Accidental release means any sudden
terms of a financial assurance mecha-
or nonsudden release of petroleum from
nism.
an underground storage tank that re-
Local government shall have the
sults in a need for corrective action
meaning given this term by applicable
and/or compensation for bodily injury
state law and includes Indian tribes.
or property damage neither expected
The term is generally intended to in-
nor intended by the tank owner or op-
clude: (1) Counties, municipalities,
erator.
townships, separately chartered and
Bodily injury shall have the meaning
operated special districts (including
given to this term by applicable state
local government public transit sys-
law; however, this term shall not in-
tems and redevelopment authorities),
clude those liabilities which, con-
and independent school districts au-
sistent with standard insurance indus-
thorized as governmental bodies by
try practices, are excluded from cov-
state charter or constitution; and (2)
erage in liability insurance policies for
Special districts and independent
bodily injury.
school districts established by coun-
Chief Financial Officer, in the case of
ties, municipalities, townships, and
local government owners and opera-
other general purpose governments to
tors, means the individual with the
provide essential services.
overall authority and responsibility for
Occurrence means an accident, in-
the collection, disbursement, and use
cluding continuous or repeated expo-
of funds by the local government.
sure to conditions, which results in a
Controlling interest means direct own-
release from an underground storage
ership of at least 50 percent of the vot-
tank.
ing stock of another entity.
N: This definition is intended to assist
OTE
Director of the Implementing Agency
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.
Petroleum marketing facilities include
used to support a financial test is pre-
pared:all facilities at which petroleum is pro-
(1) a 10K 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
VerDate Aug<04>2004 10:43 Aug 05, 2005Jkt 205166PO 00000Frm 0049
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
[53 FR 43370, Oct. 26, 1988, as amended at 54
insurance policies for property damage.
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
§280.93Amount and scope of required
tanks which are covered by the policy.
financial responsibility.
Provider of financial assurance means
(a) Owners or operators of petroleum
an entity that provides financial assur-
underground storage tanks must dem-
ance to an owner or operator of an un-
onstrate financial responsibility for
derground storage tank through one of
taking corrective action and for com-
the mechanisms listed in §§280.95
pensating third parties for bodily in-
280.103, including a guarantor, insurer,
jury and property damage caused by
risk retention group, surety, issuer of a
accidental releases arising from the op-
letter of credit, issuer of a state-re-
eration of petroleum underground stor-
quired mechanism, or a state.
age tanks in at least the following per-
Substantial business relationship means
occurrence amounts:
the extent of a business relationship
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
nual aggregate amounts:
monetary compensation that provides
(1) For owners or operators of 1 to 100
a motivation for the guarantor to pro-
petroleum underground storage tanks,
vide a guarantee.
$1 million; and
Tangible net worth means the tangible
(2) For owners or operators of 101 or
assets that remain after deducting li-
more petroleum underground storage
abilities; such assets do not include in-
tanks, $2 million.
tangibles such as goodwill and rights
(c) For the purposes of paragraphs (b)
to patents or royalties. For purposes of
and (f) of this section, only, a petro-
this definition, assets means all ex-
leum underground storage tank
isting and all probable future economic
means a single containment unit and
benefits obtained or controlled by a
particular entity as a result of past does not mean combinations of single
transactions.containment units.
489
VerDate Aug<04>2004 10:43 Aug 05, 2005Jkt 205166PO 00000Frm 0049
§280.94 40 CFR Ch. I (7105 Edition)
(d) Except as provided in paragraph
§280.94Allowable 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
a guarantee or surety bond executed as
by each such separate mechanism or
described in this section is a legally
combination of mechanisms.
valid and enforceable obligation in
(f) Owners or operators shall review
that state.
the amount of aggregate assurance pro-
(c) An owner or operator may use
vided whenever additional petroleum
self-insurance in combination with a
underground storage tanks are ac-
guarantee only if, for the purpose of
quired or installed. If the number of pe-
meeting the requirements of the finan-
troleum underground storage tanks for
cial test under this rule, the financial
which assurance must be provided ex-
statements of the owner or operator
ceeds 100, the owner or operator shall
are not consolidated with the financial
demonstrate financial responsibility in
statements of the guarantor.
the amount of at least $2 million of an-
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-
§280.95Financial test of self-insur-
sibility became effective. If assurance
ance.
is being demonstrated by a combina-
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
VerDate Aug<04>2004 10:43 Aug 05, 2005Jkt 205166PO 00000Frm 0050
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
accountants report of the examina-
program approved by EPA under 40
tion.
CFR part 281;
(3) The firms year-end financial
(ii) The sum of the corrective action
statements cannot include an adverse
cost estimates, the current closure and
auditors 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.
(i) He has compared the data that the
(2) The owner or operator, and/or
letter form the chief financial officer
guarantor, must have a tangible net
specifies as having been derived from
worth of at least $10 million.
the latest year-end financial state-
(3) The owner or operator, and/or
ments of the owner or operator, and/or
guarantor, must have a letter signed
guarantor, with the amounts in such fi-
by the chief financial officer worded as
nancial statements; and
specified in paragraph (d) of this sec-
(ii) In connection with that compari-
tion.
son, no matters came to his attention
(4) The owner or operator, and/or
which caused him to believe that the
guarantor, must either:
specified data should be adjusted.
(i) File financial statements annually
(d) To demonstrate that it meets the
with the U.S. Securities and Exchange
financial test under paragraph (b) or (c)
Commission, the Energy Information
of this section, the chief financial offi-
Administration, or the Rural Elec-
cer of the owner or operator, or guar-
trification Administration; or
antor, must sign, within 120 days of the
(ii) Report annually the firms tan-
close of each financial reporting year,
gible net worth to Dun and Bradstreet,
as defined by the twelve-month period
and Dun and Bradstreet must have as-
for which financial statements used to
signed the firm a financial strength
support the financial test are prepared,
rating of 4A or 5A.
a letter worded exactly as follows, ex-
(5) The firms year-end financial
cept that the instructions in brackets
statements, if independently audited,
are to be replaced by the relevant in-
cannot include an adverse auditors
formation and the brackets deleted:
opinion, a disclaimer of opinion, or a
going concern qualification.
LCFO
ETTERFROMHIEFINANCIALFFICER
(c)(1) The owner or operator, and/or
I am the chief financial officer of [insert:
guarantor must meet the financial test
name and address of the owner or operator,
requirements of 40 CFR 264.147(f)(1),
or guarantor]. This letter is in support of the
substituting the appropriate amounts
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
VerDate Aug<04>2004 10:43 Aug 05, 2005Jkt 205166PO 00000Frm 0050
§280.95 40 CFR Ch. I (7105 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
Corrective Action (§§264.101(b)) $
llll
test or a financial test under an authorized
Plugging and Abandonment
State program by this [insert: owner or op-
(§144.63).................................$
llll
erator, and/or guarantor]: [List for each
Closure.....................................$
facility: the name and address of the facility
llll
Post-Closure Care.....................$
where tanks assured by this financial test
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
This [insert: owner or operator, or
to assure any of the tanks at this facility,
guarantor] has not received an adverse
list each tank assured by this financial test
opinion, a disclaimer of opinion, or a going
or a financial test under a State program au-
concern qualification from an independent
thorized under 40 CFR part 281 by the tank
auditor on his financial statements for the
identification number provided in the notifi-
latest completed fiscal year.
cation submitted pursuant to 40 CFR 280.22
[Fill in the information for Alternative I if
or the corresponding State requirements.]
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 co
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
YesNo
7.Is line 6 at least $10 million?
lll
8.Is line 6 at least 10 times line 3?
lll
9. Have financial statements for the latest fiscal year been fil
with the Securities and Exchange Commission?
lll
10. Have financial statements for the latest fiscal year been fi
with the Energy Information Administration?
lll
11. Have financial statements for the lastest fiscal year been f
with the Rural Electrification Administration?
lll
12. Has financial information been provided to Dun and Bradstree
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 co
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
VerDate Aug<04>2004 10:43 Aug 05, 2005Jkt 205166PO 00000Frm 0050
Environmental Protection Agency §280.96
Alternative IIContinued
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 perce
assets are located in the U.S.] $
llll
YesNo
8.Is line 6 at least $10 million? $
lll
9.Is line 6 at least 6 times line 3?
lll
10. Are at least 90 percent of assets located in the U.S.? [If
complete line 11.]
lll
11.Is line 7 at least 6 times line 3?
lll
[Fill in either lines 1215 or lines 1618:]
12. Current assets$
llll
13. Current liabilities
llll
14.Net working capital [subtract line 13 from line 12]
lllll
YesNo
15.Is line 14 at least 6 times line 3?
lll
16.Current bond rating of most recent bond issue
lll
17.Name of rating service
lll
18.Date of maturity of bond
lll
19. Have financial statements for the latest fiscal year been fi
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 418
obtain alternate assurance within 150
above and the financial statements for the
days of finding that he or she no longer
latest fiscal year.]
meets the requirements of the finan-
[For both Alternative I and Alternative II
cial test based on the year-end finan-
complete the certification with this state-
cial statements, or within 30 days of
ment.]
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
longer meets the requirements of the
were constituted on the date shown imme-
financial test, the owner or operator
diately below.
must notify the Director of such fail-
[Signature]
ure within 10 days.
[Name]
[Title]
§280.96Guarantee.
[Date]
(a) An owner or operator may satisfy
(e) If an owner or operator using the
the requirements of §280.93 by obtain-
test to provide financial assurance
ing a guarantee that conforms to the
finds that he or she no longer meets
requirements of this section. The guar-
the requirements of the financial test
antor must be:
based on the year-end financial state-
(1) A firm that (i) possesses a control-
ments, the owner or operator must ob-
ling interest in the owner or operator;
tain alternative coverage within 150
(ii) possesses a controlling interest in a
days of the end of the year for which fi-
firm described under paragraph (a)(1)(i)
nancial statements have been prepared.
of this section; or, (iii) is controlled
(f) The Director of the implementing
through stock ownership by a common
agency may require reports of financial
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
VerDate Aug<04>2004 10:43 Aug 05, 2005Jkt 205166PO 00000Frm 0050
§280.96 40 CFR Ch. I (7105 Edition)
ber provided in the notification submitted
(b) Within 120 days of the close of
pursuant to 40 CFR 280.22 or the cor-
each financial reporting year the guar-
responding state requirement, and the name
antor must demonstrate that it meets
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-
dental releases or nonsudden accidental
scribed in §280.95(d) and must deliver
releases or accidental releases; if cov-
the letter to the owner or operator. If
erage is different for different tanks or loca-
the guarantor fails to meet the require-
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.
(3) [Insert appropriate phrase: On behalf
or nonrenewal of the guarantee, notice
of our subsidiary (if guarantor is corporate
to the owner or operator. If the Direc-
parent of the owner or operator); On behalf
tor of the implementing agency noti-
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],
guarantor guarantees to [implementing
notification from the Director. In both
agency] and to any and all third parties that:
cases, the guarantee will terminate no
In the event that [owner or operator] fails
less than 120 days after the date the
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
guarantee, the guarantor, upon instructions
(c) The guarantee must be worded as
from the [Director], shall fund a standby
follows, except that instructions in
trust fund in accordance with the provisions
brackets are to be replaced with the
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-
G
UARANTEE
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
of liability for bodily injury or property
(1) Guarantor meets or exceeds the finan-
damage to third parties caused by [sudden
cial test criteria of 40 CFR 280.95 (b) or (c)
and/or nonsudden] accidential releases
and (d) and agrees to comply with the re-
arising from the operation of the above-iden-
quirements for guarantors as specified in 40
tified tank(s), or fails to pay an amount
CFR 280.96(b).
(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
VerDate Aug<04>2004 10:43 Aug 05, 2005Jkt 205166PO 00000Frm 0050
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.
Effective date:
guarantee, the guarantor fails to meet the fi-
lllllllllllllll
[Name of guarantor]
nancial test criteria of 40 CFR 280.95 (b) or
[Authorized signature for guarantor]
(c) and (d), guarantor shall send within 120
[Name of person signing]
days of such failure, by certified mail, notice
[Title of person signing]
to [owner or operator]. The guarantee will
Signature of witness or notary:
terminate 120 days from the date of receipt
of the notice by [owner or operator], as evi-
llllllllllllllllllllllll
denced by the return receipt.
(d) An owner or operator who uses a
(5) Guarantor agrees to notify [owner or
guarantee to satisfy the requirements
operator] by certified mail of a voluntary or
of §280.93 must establish a standby
involuntary proceeding under Title 11 (Bank-
trust fund when the guarantee is ob-
ruptcy), U.S. Code naming guarantor as
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
fund in accordance with instructions
of [owner or operator] pursuant to 40 CFR
from the Director of the implementing
part 280.
agency under §280.108. This standby
(7) Guarantor agrees to remain bound
trust fund must meet the requirements
under this guarantee for so long as [owner or
specified in §280.103.
operator] must comply with the applicable
financial responsibility requirements of 40
§280.97Insurance and risk retention
CFR part 280, subpart H for the above-identi-
group coverage.
fied tank(s), except that guarantor may can-
cel this guarantee by sending notice by cer-
(a) An owner or operator may satisfy
tified mail to [owner or operator], such can-
the requirements of §290.93 by obtain-
cellation to become effective no earlier than
ing liability insurance that conforms
120 days after receipt of such notice by
to the requirements of this section
[owner or operator], as evidenced by the re-
from a qualified insurer or risk reten-
turn receipt.
tion group. Such insurance may be in
(8) The guarantors obligation does not
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-
(b) Each insurance policy must be
pensation law or other similar law;
amended by an endorsement worded as
(b) Bodily injury to an employee of [insert
specified in paragraph (b)(1) of this sec-
owner or operator] arising from, and in the
tion, or evidenced by a certificate of
course of, employment by [insert owner or
insurance worded as specified in para-
operator];
graph (b)(2) of this section, except that
(c) Bodily injury or property damage aris-
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
VerDate Aug<04>2004 10:43 Aug 05, 2005Jkt 205166PO 00000Frm 0050
§280.97 40 CFR Ch. I (7105 Edition)
Address of Insured:
bination of mechanisms as specified in 40
lllllllllllll
CFR 280.95280.102.
llllllllllllllllllllllll
c. Whenever requested by [a Director of an
llllllllllllllllllllllll
implementing agency], the [Insurer or
E:
NDORSEMENT
Group] agrees to furnish to [the Director]
a signed duplicate original of the policy and
1. This endorsement certifies that the pol-
all endorsements.
icy to which the endorsement is attached
d. Cancellation or any other termination of
provides liability insurance covering the fol-
the insurance by the [Insurer or Group],
lowing underground storage tanks:
except for non-payment of premium or mis-
[List the number of tanks at each facility
representation by the insured, will be effec-
and the name(s) and address(es) of the fa-
tive only upon written notice and only after
cility(ies) where the tanks are located. If
the expiration of 60 days after a copy of such
more than one instrument is used to as-
written notice is received by the insured.
sure different tanks at any one facility,
Cancellation for non-payment of premium or
for each tank covered by this instru-
misrepresentation by the insured will be ef-
ment, list the tank identification num-
fective only upon written notice and only
ber provided in the notification sub-
after expiration of a minimum of 10 days
mitted pursuant to 40 CFR 280.22, or the
after a copy of such written notice is re-
corresponding state requirement, and the
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 Insurers or
its of liability, and exclusions of the policy.]
Groups 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
VerDate Aug<04>2004 10:43 Aug 05, 2005Jkt 205166PO 00000Frm 0050
Environmental Protection Agency §280.98
bination of mechanisms as specified in 40
llllllllllllllllllllllll
Name of Insured:
CFR 280.95280.102.
llllllllllllll
Address of Insured:
c. Whenever requested by [a Director of an
implementing agency], the [Insurer or
llllllllllllllllllllllll
Group] agrees to furnish to [the Director]
llllllllllllllllllllllll
a signed duplicate original of the policy and
llllllllllllllllllllllll
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.
I hereby certify that the wording of this
The limits of liability are [insert the dollar
instrument is identical to the wording in 40
amount of the each occurrence and an-
CFR 280.97(b)(2) and that the [Insurer or
nual aggregate limits of the Insurers or
Group] is [licensed to transact the busi-
Groups liability; if the amount of coverage
ness of insurance, or eligible to provide in-
is different for different types of coverage or
surance as an excess or surplus lines insurer,
for different underground storage tanks or
in one or more states].
locations, indicate the amount of coverage
[Signature of authorized representative of
for each type of coverage and/or for each un-
Insurer]
derground storage tank or location], exclu-
[Type name]
sive of legal defense costs, which are subject
[Title], Authorized Representative of [name
to a separate limit under the policy. This
of Insurer or Risk Retention Group]
coverage is provided under [policy number].
[Address of Representative]
The effective date of said policy is [date].
2. The [Insurer or Group] further cer-
(c) Each insurance policy must be
tifies the following with respect to the insur-
issued by an insurer or a risk retention
ance described in Paragraph 1:
group that, at a minimum, is licensed
a. Bankruptcy or insolvency of the insured
to transact the business of insurance or
shall not relieve the [Insurer or Group]
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
§280.98Surety bond.
[Insurer or Group]. This provision does
(a) An owner or operator may satisfy
not apply with respect to that amount of any
the requirements of §280.93 by obtain-
deductible for which coverage is dem-
ing a surety bond that conforms to the
onstrated under another mechanism or com-
497
VerDate Aug<04>2004 10:43 Aug 05, 2005Jkt 205166PO 00000Frm 0050
§280.98 40 CFR Ch. I (7105 Edition)
of liability is indicated, the limit of liability
requirements of this section. The sur-
shall be the full amount of the penal sums.
ety company issuing the bond must be
Whereas said Principal is required under
among those listed as acceptable sure-
Subtitle I of the Resource Conservation and
ties on federal bonds in the latest Cir-
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-
erage is different for different tanks or loca-
leted:
tions, indicate the type of coverage applica-
PB
ble to each tank or location] arising from op-
ERFORMANCEOND
erating the underground storage tanks iden-
Date bond executed:
lllllllllllll
tified above, and
Period of coverage:
lllllllllllll
Whereas said Principal shall establish a
Principal: [legal name and business address
standby trust fund as is required when a sur-
of owner or operator]
ety bond is used to provide such financial as-
llllllllllllllllllllllll
surance;
Type of organization: [insert individual,
Now, therefore, the conditions of the obli-
joint venture, partnership, or corpora-
gation are such that if the Principal shall
tion]
faithfully [take corrective action, in ac-
llllllllllllllllllllllll
cordance with 40 CFR part 280, subpart F and
State of incorporation (if applicable):
the Director of the state implementing agen-
llllllllllllllllllllllll
cys instructions for, and/or compensate
Surety(ies): [name(s) and business ad-
injured third parties for bodily injury and
dress(es)]
property damage caused by either sudden
llllllllllllllllllllllll
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 $
operator];
llllllllllllll
Annual aggregate $
(c) Bodily injury or property damage aris-
lllllllllllll
Suretys bond number:
ing from the ownership, maintenance, use, or
lllllllllll
entrustment to others of any aircraft, motor
Know All Persons by These Presents, that
vehicle, or watercraft;
we, the Principal and Surety(ies), hereto are
(d) Property damage to any property
firmly bound to [the implementing agency],
owned, rented, loaned to, in the care, cus-
in the above penal sums for the payment of
tody, or control of, or occupied by [insert
which we bind ourselves, our heirs, execu-
owner or operator] that is not the direct re-
tors, administrators, successors, and assigns
sult of a release from a petroleum under-
jointly and severally; provided that, where
ground storage tank;
the Surety(ies) are corporations acting as co-
sureties, we, the Sureties, bind ourselves in (e) Bodily injury or property damage for
which [insert owner or operator] is obligated
such sums jointly and severally only for the
to pay damages by reason of the assumption
purpose of allowing a joint action or actions
against any or all of us, and for all other pur-of liability in a contract or agreement other
than a contract or agreement entered into to
poses each Surety binds itself, jointly and
meet the requirements of 40 CFR 280.93.
severally with the Principal, for the pay-
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
VerDate Aug<04>2004 10:43 Aug 05, 2005Jkt 205166PO 00000Frm 0050
Environmental Protection Agency §280.99
failed to fulfill the conditions described
[Corporate seal]
above.
Corporate Surety(ies)
Upon notification by [the Director of the
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
Directors 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 Directors instruc-
corporate seal, and other information in the
tions, and/or third-party liability com-
same manner as for Surety above.]
pensation] or place funds in an amount up
Bond premium: $
to the annual aggregate penal sum into the
lllll
standby trust fund as directed by [the Re-
(c) Under the terms of the bond, the
gional Administrator or the Director] under
surety will become liable on the bond
40 CFR 280.108.
obligation when the owner or operator
Upon notification by [the Director] that
fails to perform as guaranteed by the
the Principal has failed to provide alternate
bond. In all cases, the suretys liability
financial assurance within 60 days after the
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)
surety bond to satisfy the require-
shall place funds in an amount not exceeding
ments of §280.93 must establish a
the annual aggregate penal sum into the
standby trust fund when the surety
standby trust fund as directed by [the Direc-
bond is acquired. Under the terms of
tor] under 40 CFR 280.108.
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-
accordance with instructions from the
ate its (their) obligation on this bond.
Director under §280.108. This standby
The liability of the Surety(ies) shall not be
trust fund must meet the requirements
discharged by any payment or succession of
specified in §280.103.
payments hereunder, unless and until such
payment or payments shall amount in the
§280.99Letter of credit.
annual aggregate to the penal sum shown on
the face of the bond, but in no event shall
(a) An owner or operator may satisfy
the obligation of the Surety(ies) hereunder
the requirements of §280.93 by obtain-
exceed the amount of said annual aggregate
ing an irrevocable standby letter of
penal sum.
credit that conforms to the require-
The Surety(ies) may cancel the bond by
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
in each state where used and whose let-
the notice of cancellation by the Principal,
ter-of-credit operations are regulated
as evidenced by the return receipt.
and examined by a federal or state
The Principal may terminate this bond by
agency.
sending written notice to the Surety(ies).
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
relevant information and the brackets
hereby certify that they are authorized to
deleted:
execute this surety bond on behalf of the
Principal and Surety(ies) and that the word-
ISLC
RREVOCABLETANDBYETTEROFREDIT
ing of this surety bond is identical to the
[Name and address of issuing institution]
wording specified in 40 CFR 280.98(b) as such
[Name and address of Director(s) of state im-
regulations were constituted on the date this
plementing agency(ies)]
bond was executed.
Dear Sir or Madam: We hereby establish
Principal
our Irrevocable Standby Letter of Credit No.
in your favor, at the request and for
[Signature(s)]
lll
the account of [owner or operator name] of
[Names(s)]
[Title(s)][address] up to the aggregate amount of [in
499
VerDate Aug<04>2004 10:43 Aug 05, 2005Jkt 205166PO 00000Frm 0050
§280.99 40 CFR Ch. I (7105 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. , and
lll
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
the date of receipt by [owner or operator], as
under authority of Subtitle I of the Resource
shown on the signed return receipt.
Conservation and Recovery Act of 1976, as
Whenever this letter of credit is drawn on
amended.
under and in compliance with the terms of
This letter of credit may be drawn on to
this credit, we shall duly honor such draft
cover [insert: taking corrective action
upon presentation to us, and we shall deposit
and/or compensating third parties for bod-
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-
issuing institution]
ity(ies) where the tanks are located. If more
[Date]
than one instrument is used to assure dif-
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-
cial Code].
ity.]
(c) An owner or operator who uses a
The letter of credit may not be drawn on to
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;
the letter of credit, all amounts paid
(b) Bodily injury to an employee of [insert
pursuant to a draft by the Director of
owner or operator] arising from, and in the
the implementing agency will be depos-
course of, employment by [insert owner or
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
ance with instructions from the Direc-
entrustment to others of any aircraft, motor
tor under §280.108. This standby trust
vehicle, or watercraft;
fund must meet the requirements spec-
(d) Property damage to any property
ified in §280.103.
owned, rented, loaned to, in the care, cus-
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-
issuing institution. The letter of credit
ground storage tank;
must provide that credit be automati-
(e) Bodily injury or property damage for
cally renewed for the same term as the
which [insert owner or operator] is obligated
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]
cision not to renew the letter of credit.
and shall expire on [date], but such expira-
Under the terms of the letter of credit,
tion date shall be automatically extended for
the 120 days will begin on the date
a period of [at least the length of the origi-
when the owner or operator receives
nal term] on [expiration date] and on each
500
VerDate Aug<04>2004 10:43 Aug 05, 2005Jkt 205166PO 00000Frm 0051
Environmental Protection Agency §280.101
determination, the owners and opera-
the notice, as evidenced by the return
tors using such mechanisms will be
receipt.
deemed to be in compliance with the
[53 FR 37194, Sept. 23, 1988, as amended at 59
requirements of §280.93 for under-
FR 29960, June 10, 1994]
ground storage tanks located in the
state for the amounts and types of
§280.100Use of state-required mecha-
costs covered by such mechanisms.
nism.
(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
§280.101State fund or other state as-
requires owners or operators of under-
surance.
ground storage tanks to demonstrate
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 states 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.
(b) The Regional Administrator will
funds for taking corrective action and/
or for compensating third parties; the evaluate the equivalency of a state
fund or other state assurance prin-
amount of funds that will be made
available; and the types of costs cov-cipally in terms of: Certainty of the
availability of funds for taking correc-
ered. The Regional Administrator may
also consider other factors as is nec-tive action and/or for compensating
third parties; the amount of funds that
essary.
(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.
(c) The state must submit to the Re-
more of the state-required mechanisms
gional Administrator a description of
be considered acceptable for meeting
the state fund or other state assurance
the requirements of §280.93. The sub-
to be supplied as financial assurance,
mission must include copies of the ap-
along with a list of the classes of un-
propriate state statutory and regu-
derground storage tanks to which the
latory requirements and must show the
funds may be applied. The Regional Ad-
amount of funds for corrective action
ministrator may require the state to
and/or for compensating third parties
submit additional information as is
assured by the mechanism(s). The Re-
deemed necessary to make a deter-
gional Administrator may require the
mination regarding the acceptability
petitioner to submit additional infor-
of the state fund or other state assur-
mation as is deemed necessary to make
ance. Pending the determination by
this determination.
(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 states 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 mechanisms 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
VerDate Aug<04>2004 10:43 Aug 05, 2005Jkt 205166PO 00000Frm 0051
§280.102 40 CFR Ch. I (7105 Edition)
states 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
release of funds as specified in para-
this subpart. Within 60 days after the
graph (d) or (e) of this section, the Di-
Regional Administrator notifies a state
rector of the implementing agency will
that a state fund or other state assur-
instruct the trustee to release to the
ance is acceptable, the state must pro-
owner or operator such funds as the Di-
vide to each owner or operator for
rector specifies in writing.
which it is assuming financial responsi-
bility a letter or certificate describing
§280.103Standby trust fund.
the nature of the states assumption of
(a) An owner or operator using any
responsibility. The letter or certificate
one of the mechanisms authorized by
from the state must include, or have
§§280.96, 280.98, or 280.99 must establish
attached to it, the following informa-
a standby trust fund when the mecha-
tion: the facilitys name and address
nism is acquired. The trustee of the
and the amount of funds for corrective
standby trust fund must be an entity
action and/or for compensating third
that has the authority to act as a
parties that is assured by the state.
trustee and whose trust operations are
The owner or operator must maintain
regulated and examined by a Federal
this letter or certificate on file as proof
agency or an agency of the state in
of financial responsibility in accord-
which the fund is established.
ance with §280.107(b)(5).
(b)(1) The standby trust agreement,
§280.102Trust fund.
or trust agreement, must be worded as
follows, except that instructions in
(a) An owner or operator may satisfy
brackets are to be replaced with the
the requirements of §280.93 by estab-
relevant information and the brackets
lishing a trust fund that conforms to
deleted:
the requirements of this section. The
trustee must be an entity that has the
TA
RUSTGREEMENT
authority to act as a trustee and whose
Trust agreement, the Agreement, en-
trust operations are regulated and ex-
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 or a
lll
national bank], the Trustee.
specified in §280.103(b)(1), and must be
Whereas, the United States Environmental
accompanied by a formal certification
Protection Agency, EPA, an agency of the
of acknowledgement as specified in
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
compensation for bodily injury and property
used in combination with other mecha-
damage caused by sudden and nonsudden ac-
nism(s) that provide the remaining re-
cidental releases arising from the operation
quired coverage.
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.
[Whereas, the Grantor has elected to estab-
lease of the excess.
lish [insert either a guarantee, surety
(e) If other financial assurance as
bond, or letter of credit] to provide all or
specified in this subpart is substituted
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
VerDate Aug<04>2004 10:43 Aug 05, 2005Jkt 205166PO 00000Frm 0051
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
owner or operator] arising from, and in the
As used in this Agreement:
course of employment by [insert owner or
(a) The term Grantor means the owner
operator];
or operator who enters into this Agreement
(c) Bodily injury or property damage aris-
and any successors or assigns of the Grantor.
ing from the ownership, maintenance, use, or
(b) The term Trustee means the Trustee
entrustment to others of any aircraft, motor
who enters into this Agreement and any suc-
vehicle, or watercraft;
cessor Trustee.
(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
owner or operator] that is not the direct re-
This Agreement pertains to the [identify
sult of a release from a petroleum under-
the financial assurance mechanism, either a
ground storage tank;
guarantee, surety bond, or letter of credit,
(e) Bodily injury or property damage for
from which the standby trust fund is estab-
which [insert owner or operator] is obligated
lished to receive payments (This paragraph
to pay damages by reason of the assumption
is only applicable to the standby trust agree-
of liability in a contract or agreement other
ment.)].
than a contract or agreement entered into to
meet the requirements of 40 CFR 280.93.
Section 3. Establishment of Fund
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 agencys] 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-
Payments made to the Trustee for the
ments or distributions made by the Trustee
Fund shall consist of cash and securities ac-
pursuant to this Agreement. The Fund shall
ceptable to the Trustee.
be held by the Trustee, IN TRUST, as herein-
after provided. The Trustee shall not be re-
Section 6. Trustee Management
sponsible nor shall it undertake any respon-
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
VerDate Aug<04>2004 10:43 Aug 05, 2005Jkt 205166PO 00000Frm 0051
§280.103 40 CFR Ch. I (7105 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-
son, or to deposit or arrange for the deposit
fined in the Investment Company Act of 1940,
of any securities issued by the United States
as amended, 15 U.S.C. 80a2(a), shall not be
Government, or any agency or instrumen-
acquired or held, unless they are securities
tality thereof, with a Federal Reserve bank,
or other obligations of the federal or a state
but the books and records of the Trustee
government;
shall at all times show that all such securi-
(ii) The Trustee is authorized to invest the
ties are part of the Fund;
Fund in time or demand deposits of the
(d) To deposit any cash in the Fund in in-
Trustee, to the extent insured by an agency
terest-bearing accounts maintained or sav-
of the federal or state government; and
ings certificates issued by the Trustee, in its
(iii) The Trustee is authorized to hold cash
separate corporate capacity, or in any other
awaiting investment or distribution
banking institution affiliated with the
uninvested for a reasonable time and with-
Trustee, to the extent insured by an agency
out liability for the payment of interest
of the federal or state government; and
thereon.
(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:
All taxes of any kind that may be assessed
(a) To transfer from time to time any or
or levied against or in respect of the Fund
all of the assets of the Fund to any common,
and all brokerage commissions incurred by
commingled, or collective trust fund created
the Fund shall be paid from the Fund. All
by the Trustee in which the Fund is eligible
other expenses incurred by the Trustee in
to participate, subject to all of the provi-
connection with the administration of this
sions thereof, to be commingled with the as-
Trust, including fees for legal services ren-
sets of other trusts participating therein;
dered to the Trustee, the compensation of
and
the Trustee to the extent not paid directly
(b) To purchase shares in any investment
by the Grantor, and all other proper charges
company registered under the Investment
and disbursements of the Trustee shall be
Company Act of 1940, 15 U.S.C. 80a1 et seq.,
paid from the Fund.
including one which may be created, man-
aged, underwritten, or to which investment
Section 10. Advice of Counsel
advice is rendered or the shares of which are
The Trustee may from time to time con-
sold by the Trustee. The Trustee may vote
sult with counsel, who may be counsel to the
such shares in its discretion.
Grantor, with respect to any questions aris-
Section 8. Express Powers of Trustee
ing as to the construction of this Agreement
or any action to be taken hereunder. The
Without in any way limiting the powers
Trustee shall be fully protected, to the ex-
and discretions conferred upon the Trustee
tent permitted by law, in acting upon the ad-
by the other provisions of this Agreement or
vice of counsel.
by law, the Trustee is expressly authorized
and empowered:
Section 11. Trustee Compensation
(a) To sell, exchange, convey, transfer, or
The Trustee shall be entitled to reasonable
otherwise dispose of any property held by it,
compensation for its services as agreed upon
by public or private sale. No person dealing
in writing from time to time with the Grant-
with the Trustee shall be bound to see to the
or.
application of the purchase money or to in-
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 trustees 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
VerDate Aug<04>2004 10:43 Aug 05, 2005Jkt 205166PO 00000Frm 0051
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
Section 17. Choice of Law
provided in Section 9.
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
Section 18. Interpretation
designees as the Grantor may designate by
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 Grantors 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
[Signature of Grantor]
such orders, requests, and instructions from
[Name of the Grantor]
the Grantor and/or [the Director], except as
[Title]
provided for herein.
Attest:
Section 14. Amendment of Agreement
[Signature of Trustee]
[Name of the Trustee]
This Agreement may be amended by an in-
[Title]
strument in writing executed by the Grantor
[Seal]
and the Trustee, or by the Trustee and [the
[Signature of Witness]
Director of the implementing agency] if the
[Name of the Witness]
Grantor ceases to exist.
[Title]
[Seal]
Section 15. Irrevocability and Termination
(2) The standby trust agreement, or
Subject to the right of the parties to
trust agreement must be accompanied
amend this Agreement as provided in Sec-
by a formal certification of acknowl-
tion 14, this Trust shall be irrevocable and
edgement similar to the following.
shall continue until terminated at the writ-
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
State of
lllllllllllllllllll
remaining trust property, less final trust ad-
County of
ministration expenses, shall be delivered to
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
[title] of [corporation], the corporation de-
ity of any nature in connection with any act
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
corporation; that the seal affixed to such in-
any directions by the Grantor or [the Direc-
tor of the implementing agency] issued in strument is such corporate seal; that it was
505
VerDate Aug<04>2004 10:43 Aug 05, 2005Jkt 205166PO 00000Frm 0051
§280.104 40 CFR Ch. I (7105 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.
Moodys rating of Aaa, A, A, or Baa, or
[Signature of Notary Public]
a Standard & Poors 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 Moodys and Standard &
fund to the provider of financial assur-
Poors, 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 Moodys
mechanism for all funds assured in
or Standard & Poors.
compliance with this rule.
(d) To demonstrate that it meets the
local government bond rating test, the
[53 FR 43370, Oct. 26, 1988; 53 FR 51274, Dec.
21, 1988]
chief financial officer of a general pur-
pose local government owner or oper-
§280.104Local 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
LCFO
by having a currently outstanding
ETTERFROMHIEFINANCIALFFICER
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 Moodys
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 & Poors rating of AAA, AA,
demonstrate financial responsibility for [in-
sert: taking corrective action and/or
A, or BBB. Where a local government
compensating third parties for bodily in-
has multiple outstanding issues, or
jury and property damage] caused by [in-
where a local governments bonds are
sert: sudden accidental releases and/or
rated by both Moodys and Standard
nonsudden accidental releases] in the
and Poors, 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
rating test: [List for each facility: the name
standing.
and address of the facility where tanks are
(b) A local government owner or op-
assured by the bond rating test].
erator or local government serving as a
The details of the issue date, maturity,
guarantor that is not a general-purpose
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
[Moodys or Standard &
Poors]
506
VerDate Aug<04>2004 10:43 Aug 05, 2005Jkt 205166PO 00000Frm 0051
Environmental Protection Agency §280.104
The total outstanding obligation of [insert LCFO
ETTERFROMHIEFINANCIALFFICER
amount], excluding refunded bond issues, ex-
I am the chief financial officer of [insert:
ceeds the minimum amount of $1 million. All
name and address of local government owner
outstanding general obligation bonds issued
or operator, or guarantor]. This letter is in
by this government that have been rated by
support of the use of the bond rating test to
Moodys or Standard & Poors are rated as at
demonstrate financial responsibility for [in-
least investment grade (Moodys Baa or
sert: taking corrective action and/or
Standard & Poors BBB) based on the most
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
governmental services and does not have the
were constituted on the date shown imme-
legal authority under state law or constitu-
diately below.
tional provisions to issue general obligation
[Date]
llllllllllllllllllll
debt.
[Signature]
lllllllllllllllll
Underground storage tanks at the fol-
[Name]
lllllllllllllllllll
[Title]lowing facilities are assured by this bond
llllllllllllllllllll
rating test: [List for each facility: the name
(e) To demonstrate that it meets the
and address of the facility where tanks are
local government bond rating test, the
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
[Moodys or Standard &
Poors]
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
(f) The Director of the implementing
government that have been rated by Moodys
agency may require reports of financial
or Standard & Poors are rated as at least in-
vestment grade (Moodys Baa or Standard &
condition at any time from the local
Poors 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
rector finds, on the basis of such re-
third-party credit enhancement or are in-
ports or other information, that the
sured by a municipal bond insurance com-
local government owner or operator,
pany. Neither rating service has provided no-
and/or guarantor, no longer meets the
tification within the last 12 months of down-
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.
tain alternative coverage within 30
I hereby certify that the wording of this
days after notification of such a find-
letter is identical to the wording specified in
ing.
40 CFR part 280.104(e) as such regulations
(g) If a local government owner or op-
were constituted on the date shown imme-
diately below.
erator using the bond rating test to
provide financial assurance finds that
[Date]
llllllllllllllllllll
507
VerDate Aug<04>2004 10:43 Aug 05, 2005Jkt 205166PO 00000Frm 0051
§280.105 40 CFR Ch. I (7105 Edition)
ments on debt, payments for retire-
it no longer meets the bond rating test
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-
nues. For purposes of this test, the cal-
[58 FR 9053, Feb. 18, 1993]
culation of total expenditures shall ex-
§280.105Local government financial
clude all transfers between funds under
test.
the direct control of the local govern-
ment using the financial test
(a) A local government owner or op-
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
on all long-term credit obligations and
based on year-end financial statements
all interest-bearing short-term credit
for the latest completed fiscal year.
obligations. Includes interest and prin-
(b)(1) The local government owner or
cipal payments on general obligation
operator must have the following infor-
bonds, revenue bonds, notes, mort-
mation available, as shown in the year-
gages, judgments, and interest bearing
end financial statements for the latest
warrants. Excludes payments on non-
completed fiscal year:
interest-bearing short-term obliga-
(i)Total revenues: Consists of the sum
tions, interfund obligations, amounts
of general fund operating and non-oper-
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 governments 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
and mortgages. For purposes of this
the direct control of the local govern-
test, the calculation of total funds
ment using the financial test
shall exclude agency funds, private
(interfund transfers), liquidation of in-
trust funds, accounts receivable, value
vestments, and issuance of debt.
of real property, and other non-secu-
(ii)Total expenditures: Consists of the
rity assets.
sum of general fund operating and non-
(vi)Population consists of the number
operating expenditures including pub-
of people in the area served by the
lic safety, public utilities, transpor-
local government.
tation, public works, environmental
(2) The local governments year-end
protection, cultural and recreational,
financial statements, if independently
community development, revenue shar-
audited, cannot include an adverse
ing, employee benefits and compensa-
tion, office management, planning and auditors opinion or a disclaimer of
zoning, capital projects, interest pay-
opinion. The local government cannot
508
VerDate Aug<04>2004 10:43 Aug 05, 2005Jkt 205166PO 00000Frm 0051
Environmental Protection Agency §280.105
MFT
W
have outstanding issues of general obli-
ORKSHEETFORUNICIPALINANCIALEST
gation or revenue bonds that are rated
Part I: Basic Information
as less than investment grade.
1. Total Revenues
(3) The local government owner or
operator must have a letter signed by
a. Revenues (dollars)
llllll
Value of revenues excludes liquidation of
the chief financial officer worded as
investments and issuance of debt. Value
specified in paragraph (c) of this sec-
includes all general fund operating and
tion.
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,
but excluding revenues to funds held in a
of the local government owner or oper-
trust or agency capacity.
ator, must sign, within 120 days of the
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
2. Total Expenditures
support the financial test are prepared,
a letter worded exactly as follows, ex-
a. Expenditures (dollars)
llllll
Value consists of the sum of general fund
cept that the instructions in brackets
operating and non-operating expendi-
are to be replaced by the relevant in-
tures including interest payments on
formation and the brackets deleted:
debt, payments for retirement of debt
principal, and total expenditures from all
LFCFO
ETTERROMHIEFINANCIALFFICER
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.
b. Subtract interfund transfers (dol-
This letter is in support of the use of the
lars)
local government financial test to dem-
llllll
c. Total Expenditures (dollars)
onstrate financial responsibility for [insert:
llllll
taking corrective action and/or compen-
3. Local Revenues
sating third parties for bodily injury and
a. Total Revenues (from 1c) (dollars)
property damage] caused by [insert: sud-
den accidental releases and/or nonsudden
llllll
b. Subtract total intergovernmental trans-
accidental releases] in the amount of at
fers (dollars)
least [insert: dollar amount] per occurrence
llllll
c. Local Revenues (dollars)
llllll
and [insert: dollar amount] annual aggregate
arising from operating [an] underground
4. Debt Service
storage tank[s].
a. Interest and fiscal charges (dol-
Underground storage tanks at the fol-
lars)
llllll
lowing facilities are assured by this financial
b. Add debt retirement (dollars)
llllll
test [List for each facility: the name and ad-
c. Total Debt Service (dollars)
llllll
dress of the facility where tanks assured by
this financial test are located. If separate
5. Total Funds (Dollars)
llllll
mechanisms or combinations of mechanisms
(Sum of amounts held as cash and invest-
are being used to assure any of the tanks at
ment securities from all funds, excluding
this facility, list each tank assured by this
amounts held for employee retirement
financial test by the tank identification
funds, agency funds, and trust funds)
number provided in the notification sub-
mitted pursuant to 40 CFR Part 280.22 or the
6. Population (Persons)
llllll
corresponding state requirements.]
Part II: Application of Test
This owner or operator has not received an
adverse opinion, or a disclaimer of opinion
7. Total Revenues to Population
from an independent auditor on its financial
statements for the latest completed fiscal
a. Total Revenues (from 1c)
llllll
year. Any outstanding issues of general obli-b. Population (from 6)
llllll
c. Divide 7a by 7b
gation or revenue bonds, if rated, have a
llllll
d. Subtract 417
Moodys rating of Aaa, Aa, A, or Baa or a
llllll
e. Divide by 5,212
Standard and Poors rating of AAA, AA, A,
llllll
f. Multiply by 4.095
or BBB; if rated by both firms, the bonds
llllll
have a Moodys rating of Aaa, Aa, A, or Baa
8. Total Expenses to Population
and a Standard and Poors rating of AAA,
AA, A, or BBB. a. Total Expenses (from 2c)
llllll
509
VerDate Aug<04>2004 10:43 Aug 05, 2005Jkt 205166PO 00000Frm 0051
§280.106 40 CFR Ch. I (7105 Edition)
b. Population (from 6)
16. Add 7f + 8f + 9f + 10f + 11f + 12f + 13f + 14f
llllll
+ 15f + 4.937
c. Divide 8a by 8b
llllll
llllll
d. Subtract 524
llllll
I hereby certify that the financial index
e. Divide by 5,401
llllll
shown on line 16 of the worksheet is greater
f. Multiply by 4.095
than zero and that the wording of this letter
llllll
is identical to the wording specified in 40
9. Local Revenues to Total Revenues
CFR part 280.105(c) as such regulations were
constituted on the date shown immediately
a. Local Revenues (from 3c)
llllll
below.
b. Total Revenues (from 1c)
llllll
[Date]
c. Divide 9a by 9b
llllll
[Signature]
d. Subtract .695
llllll
[Name]
e. Divide by .205
llllll
[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-
cial assurance finds that it no longer
a. Debt Service (from 4d)
llllll
meets the requirements of the finan-
b. Population (from 6)
llllll
c. Divide 10a by 10b
cial test based on the year-end finan-
llllll
d. Subtract 51
cial statements, the owner or operator
llllll
e. Divide by 1,038
must obtain alternative coverage with-
llllll
¥
f. Multiply by 1.866
in 150 days of the end of the year for
llllll
which financial statements have been
11. Debt Service to Total Revenues
prepared.
a. Debt Service (from 4d)
(e) The Director of the implementing
llllll
b. Total Revenues (from 1c)
agency may require reports of financial
llllll
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
local government owner or operator no
12. Total Revenues to Total Expenses
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 12b
llllll
erage within 30 days after notification
d. Subtract .910
llllll
of such a finding.
e. Divide by .899
llllll
(f) If the local government owner or
f. Multiply by 3.458
llllll
operator fails to obtain alternate as-
surance within 150 days of finding that
13. Funds Balance to Total Revenues
it no longer meets the requirements of
a. Total Funds (from 5)
llllll
the financial test based on the year-end
b. Total Revenues (from 1c)
llllll
financial statements or within 30 days
c. Divide 13a by 13b
llllll
of notification by the Director of the
d. Subtract .891
llllll
implementing agency that it no longer
e. Divide by 9.156
llllll
meets the requirements of the finan-
f. Multiply by 3.270
llllll
cial test, the owner or operator must
14. Funds Balance to Total Expenses
notify the Director of such failure
within 10 days.
a. Total Funds (from 5)
llllll
b. Total Expenses (from 2c)
llllll
[58 FR 9054, Feb. 18, 1993]
c. Divide 14a by 14b
llllll
d. Subtract .866
llllll
§280.106Local government guarantee.
e. Divide by 6.409
llllll
(a) A local government owner or op-
f. Multiply by 3.270
llllll
erator may satisfy the requirements of
15. Total Funds to Population
§280.93 by obtaining a guarantee that
llllll
conforms to the requirements of this
a. Total Funds (from 5)
llllll
section. The guarantor must be either
b. Population (from 6)
llllll
the state in which the local govern-
c. Divide 15a by 15b
llllll
ment owner or operator is located or a
d. Subtract 270
llllll
local government having a substan-
e. Divide by 4,548
llllll
tial governmental relationship with
f. Multiply by 1.866
llllll
510
VerDate Aug<04>2004 10:43 Aug 05, 2005Jkt 205166PO 00000Frm 0052
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 officers 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
Guarantee made this [date] by [name of
(2) demonstrate that it meets the
state], herein referred to as guarantor, to
worksheet test requirements of §280.105
[the state implementing agency] and to any
and deliver a copy of the chief financial
and all third parties, and obliges, on behalf
officers letter as contained in
of [local government owner or operator].
§280.105(c) to the local government
Recitals
owner or operator; or
(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
storage tank(s) covered by this guarantee:
and deliver a copy of the chief financial
[List the number of tanks at each facility
officers letter as contained in §280.107
and the name(s) and address(es) of the facil-
to the local government owner or oper-
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
part 280 or the corresponding state require-
end of the financial reporting year, the
ment, and the name and address of the facil-
guarantor shall send by certified mail,
ity.] This guarantee satisfies 40 CFR part
before cancellation or non-renewal of
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-
dental releases; if coverage is different for
ceipt. The owner or operator must ob-
different tanks or locations, indicate the
tain alternative coverage as specified
type of coverage applicable to each tank or
in §280.114(c).
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
agency] and to any and all third parties that:
(1) If, in the default or incapacity of
In the event that [local government owner
the owner or operator, the guarantor
or operator] fails to provide alternative cov-
guarantees to fund a standby trust as
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
instructions from the [Director] shall fund a
the owner or operator, the guarantor
standby trust fund in accordance with the
guarantees to make payments as di-
provisions of 40 CFR part 280.112, in an
rected by the Director of the imple-
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
VerDate Aug<04>2004 10:43 Aug 05, 2005Jkt 205166PO 00000Frm 0052
§280.106 40 CFR Ch. I (7105 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
If the guarantor is a local government, the
above.
local government guarantee with standby
(4) Guarantor agrees to notify [owner or
trust must be worded exactly as follows, ex-
operator] by certified mail of a voluntary or
cept that instructions in brackets are to be
involuntary proceeding under Title 11 (Bank-
replaced with relevant information and the
ruptcy), U.S. Code naming guarantor as
brackets deleted:
debtor, within 10 days after commencement
of the proceeding.
LGGWS-
OCALOVERNMENTUARANTEEITHTAND
(5) Guarantor agrees to remain bound
TMLG
BYRUSTADEBYAOCALOVERNMENT
under this guarantee notwithstanding any
Guarantee made this [date] by [name of
modification or alteration of any obligation
guaranteeing entity], a local government or-
of [owner or operator] pursuant to 40 CFR
ganized under the laws of [name of state],
part 280.
herein referred to as guarantor, to [the state
(6) Guarantor agrees to remain bound
implementing agency] and to any and all
under this guarantee for so long as [local
third parties, and obliges, on behalf of [local
government owner or operator] must comply
government owner or operator].
with the applicable financial responsibility
requirements of 40 CFR part 280, subpart H
Recitals
for the above identified tank(s), except that
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 guarantors 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
280, subpart H requirements for assuring
owned, rented, loaded to, in the care, cus-
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
bodily injury and property damage caused
not the direct result of a release from a pe-
troleum underground storage tank; by either sudden accidental releases or
512
VerDate Aug<04>2004 10:43 Aug 05, 2005Jkt 205166PO 00000Frm 0052
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 guarantors 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
(c) Bodily injury or property damage aris-
releases arising out of the operation of the
ing from the ownership, maintenance, use, or
above-identified tank(s) in accordance with
entrustment to others of any aircraft, motor
40 CFR part 280, subpart F, the guarantor
vehicle, or watercraft;
upon written instructions from the [Direc-
(d) Property damage to any property
tor] shall fund a standby trust fund in ac-
owned, rented, loaned to, in the care, cus-
cordance with the provisions of 40 CFR part
tody, or control of, or occupied by [insert:
280.112, in an amount not to exceed the cov-
local government owner or operator] that is
erage limits specified above.
not the direct result of a release from a pe-
If [owner or operator] fails to satisfy a
troleum underground storage tank;
judgment or award based on a determination
(e) Bodily damage or property damage for
of liability for bodily injury or property
which [insert: owner or operator] is obligated
damage to third parties caused by [sudden
to pay damages by reason of the assumption
and/or nonsudden] accidental releases
of liability in a contract or agreement other
arising from the operation of the above-iden-
than a contract or agreement entered into to
tified tank(s), or fails to pay an amount
meet the requirements of 40 CFR part 280.93.
agreed to in settlement of a claim arising
(9) Guarantor expressly waives notice of
from or alleged to arise from such injury or
acceptance of this guarantee by [the imple-
damage, the guarantor, upon written in-
menting agency], by any or all third parties,
structions from the [Director], shall fund a
or by [local government owner or operator].
standby trust in accordance with the provi-
I hereby certify that the wording of this
sions of 40 CFR part 280.112 to satisfy such
guarantee is identical to the wording speci-
judgment(s), award(s), or settlement agree-
fied in 40 CFR part 280.106(d) as such regula-
ment(s) up to the limits of coverage specified
tions were constituted on the effective date
above.
shown immediately below.
(4) Guarantor agrees that, if at the end of
Effective date:
any fiscal year before cancellation of this
lllllllllllllll
[Name of guarantor]
guarantee, the guarantor fails to meet or ex-
[Authorized signature for guarantor]
ceed the requirements of the financial re-
[Name of person signing]
sponsibility mechanism specified in para-
[Title of person signing]
graph (1), guarantor shall send within 120
Signature of witness or notary:
days of such failure, by certified mail, notice
to [local government owner or operator], as
llllllllllllllllllllllll
evidenced by the return receipt.
(e) If the guarantor is a state, the
(5) Guarantor agrees to notify [owner or
local government guarantee without
operator] by certified mail of a voluntary or
standby trust must be worded exactly
involuntary proceeding under Title 11 (Bank-
as follows, except that instructions in
ruptcy), U.S. Code naming guarantor as
513
VerDate Aug<04>2004 10:43 Aug 05, 2005Jkt 205166PO 00000Frm 0052
§280.106 40 CFR Ch. I (7105 Edition)
tor] shall make funds available to pay for
brackets are to be replaced with rel-
corrective actions in an amount not to ex-
evant information and the brackets de-
ceed the coverage limits specified above.
leted:
If [owner or operator] fails to satisfy a
judgment or award based on a determination
LGGW
OCALOVERNMENTUARANTEEITHOUT
of liability for bodily injury or property
STMS
TANDBYRUSTADEBYATATE
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
damage, the guarantor, upon written in-
Recitals
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 guarantors 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
VerDate Aug<04>2004 10:43 Aug 05, 2005Jkt 205166PO 00000Frm 0052
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.
LGGW
OCALOVERNMENTUARANTEEITHOUT
In the event that the [Director] determines
STMLG-
TANDBYRUSTADEBYAOCALOVERN
that [local government owner or operator]
MENT
has failed to perform corrective action for
releases arising out of the operation of the
Guarantee made this [date] by [name of
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
upon written instructions from the [Direc-
herein referred to as guarantor, to [the state
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-
ceed the coverage limits specified above.
government owner or operator].
If [owner or operator] fails to satisfy a
Recitals
judgment or award based on a determination
of liability for bodily injury or property
(1) Guarantor meets or exceeds [select one:
damage to third parties caused by [sudden
the local government bond rating test re-
and/or nonsudden] accidental releases
quirements of 40 CFR part 280.104, the local
arising from the operation of the above-iden-
government financial test requirements of 40
tified tank(s), or fails to pay an amount
part CFR 280.105, the local government fund
agreed to in settlement of a claim arising
under 40 CFR part 280.107(a), 280.107(b), or
from or alleged to arise from such injury or
280.107(c).
damage, the guarantor, upon written in-
(2) [Local government owner or operator]
structions from the [Director], shall make
owns or operates the following underground
funds available to compensate third parties
storage tank(s) covered by this guarantee:
for bodily injury and property damage in an
[List the number of tanks at each facility
amount not to exceed the coverage limits
and the name(s) and address(es) of the facil-
specified above.
ity(ies) where the tanks are located. If more
(4) Guarantor agrees that if at the end of
than one instrument is used to assure dif-
any fiscal year before cancellation of this
ferent tanks at any one facility, for each
guarantee, the guarantor fails to meet or ex-
tank covered by this instrument, list the
ceed the requirements of the financial re-
tank identification number provided in the
sponsibility mechanism specified in para-
notification submitted pursuant to 40 CFR
graph (1), guarantor shall send within 120
part 280 or the corresponding state require-
days of such failure, by certified mail, notice
ment, and the name and address of the facil-
to [local government owner or operator], as
ity.] This guarantee satisfies 40 CFR part
evidenced by the return receipt.
280, subpart H requirements for assuring
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
VerDate Aug<04>2004 10:43 Aug 05, 2005Jkt 205166PO 00000Frm 0052
§280.107 40 CFR Ch. I (7105 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
§280.107Local government fund.
modification or alteration of any obligation
A local government owner or oper-
of [owner or operator] pursuant to 40 CFR
ator may satisfy the requirements of
part 280.
§280.93 by establishing a dedicated fund
(7) Guarantor agrees to remain bound
account that conforms to the require-
under this guarantee for so long as [local
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
funds or otherwise used in normal oper-
guarantor may cancel this guarantee by
ations. A dedicated fund will be consid-
sending notice by certified mail to [owner or
ered eligible if it meets one of the fol-
operator], such cancellation to become effec-
lowing requirements:
tive no earlier than 120 days after receipt of
(a) The fund is dedicated by state
such notice by [owner or operator], as evi-
constitutional provision, or local gov-
denced by the return receipt. If notified of a
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-
for bodily injury and property damage
standing the cancellation of the guarantee
caused by accidental releases arising
with respect to future releases.
from the operation of petroleum under-
(8) The guarantors obligation does not
ground storage tanks and is funded for
apply to any of the following:
the full amount of coverage required
(a) Any obligation of [local government
under §280.93, or funded for part of the
owner or operator] under a workers com-
required amount of coverage and used
pensation disability benefits, or unemploy-
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-
ernment statute, charter, ordinance, or
ing from the ownership, maintenance, use, or
order as a contingency fund for general
entrustment to others of any aircraft, motor
emergencies, including taking correc-
vehicle, or watercraft;
tive action and compensating third
(d) Property damage to any property
parties for bodily injury and property
owned, rented, loaded to, in the care, cus-
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
of coverage required under §280.93, or
which [insert: owner or operator] is obligated
funded for part of the required amount
to pay damages by reason of the assumption
of coverage and used in combination
of liability in a contract or agreement other
with other mechanism(s) that provide
than a contract or agreement entered into to
the remaining coverage. If the fund is
meet the requirements of 40 CFR part 280.93.
funded for less than five times the
(9) Guarantor expressly waives notice of
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-
fund; or
fied in 40 CFR part 280.106(e) as such regula-
(c) The fund is dedicated by state
tions were constituted on the effective date
constitutional provision, or local gov-
shown immediately below.
ernment statute, charter, ordinance or
Effective date:
lllllllllllllll
order to pay for taking corrective ac-
[Name of guarantor]
tion and for compensating third parties
[Authorized signature for guarantor]
for bodily injury and property damage
[Name of person signing]
caused by accidental releases arising
[Title of person signing]
516
VerDate Aug<04>2004 10:43 Aug 05, 2005Jkt 205166PO 00000Frm 0052
Environmental Protection Agency §280.107
action and/or compensating third parties
from the operation of petroleum under-
for bodily injury and property damage]
ground storage tanks. A payment is
caused by [insert: sudden accidental re-
made to the fund once every year for
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-
lowing facilities are assured by this local
¥
TFCF
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
combination with other mechanism(s) that
remaining in the pay-in-period, and;
provide the remaining coverage. or The
(1) The local government owner or
local government fund is funded for ten
operator has available bonding author-
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
seven years until the fund is fully-funded and
the amount held in the dedicated fund.
[name of local government owner or oper-
This bonding authority shall be avail-
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
years until the fund is fully-funded and I
storage tanks, or
have attached a letter signed by the State
(2) The local government owner or
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 governments 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
ments debt beyond the legal debt ceil-
is not necessary before use of the bonding
authority].
ings established by the relevant state
The details of the local government fund
laws. The letter must also state that
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
completed fiscal year:
local government owner or operator
lllllllllll
Number of years remaining in the pay-in pe-
and/or guarantor must sign a letter
riod:]
llll
worded exactly as follows, except that
A copy of the state constitutional provi-
the instructions in brackets are to be
sion, or local government statute, charter,
replaced by the relevant information
ordinance or order dedicating the fund is at-
and the brackets deleted:
tached.
I hereby certify that the wording of this
LCFO
ETTERFROMHIEFINANCIALFFICER
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
VerDate Aug<04>2004 10:43 Aug 05, 2005Jkt 205166PO 00000Frm 0052
§280.108 40 CFR Ch. I (7105 Edition)
[Title]
erage as specified in this section within
60 days after receipt of the notice of
[58 FR 9059, Feb. 18, 1993]
termination. If the owner or operator
§280.108Substitution 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-
menting agency of such failure and
stitute any alternate financial assur-
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
[58 FR 9051, Feb. 18, 1993]
providing notice to the provider of fi-
nancial assurance.
§280.110Reporting by owner or oper-
ator.
[53 FR 43370, Oct. 26, 1988. Redesignated at 58
FR 9051, Feb. 18, 1993]
(a) An owner or operator must sub-
mit the appropriate forms listed in
§280.109Cancellation or nonrenewal
§280.111(b) documenting current evi-
by a provider of financial assur-
dence of financial responsibility to the
ance.
Director of the implementing agency:
(a) Except as otherwise provided, a
(1) Within 30 days after the owner or
provider of financial assurance may
operator identifies a release from an
cancel or fail to renew an assurance
underground storage tank required to
mechanism by sending a notice of ter-
be reported under §280.53 or §280.61;
mination by certified mail to the
(2) If the owner or operator fails to
owner or operator.
obtain alternate coverage as required
(1) Termination of a local govern-
by this subpart, within 30 days after
ment guarantee, a guarantee, a surety
the owner or operator receives notice
bond, or a letter of credit may not
of:
occur until 120 days after the date on
(i) Commencement of a voluntary or
which the owner or operator receives
involuntary proceeding under Title 11
the notice of termination, as evidenced
(Bankruptcy), U.S. Code, naming a pro-
by the return receipt.
vider of financial assurance as a debt-
(2) Termination of insurance or risk
or,
retention coverage, except for non-pay-
(ii) Suspension or revocation of the
ment or misrepresentation by the in-
authority of a provider of financial as-
sured, or state-funded assurance may
surance to issue a financial assurance
not occur until 60 days after the date
mechanism,
on which the owner or operator re-
(iii) Failure of a guarantor to meet
ceives the notice of termination, as
the requirements of the financial test,
evidenced by the return receipt. Termi-
(iv) Other incapacity of a provider of
nation for non-payment of premium or
financial assurance; or
misrepresentation by the insured may
(3) As required by §280.95(g) and
not occur until a minimum of 10 days
§280.109(b).
after the date on which the owner or
(b) An owner or operator must certify
operator receives the notice of termi-
nation, as evidenced by the return re-compliance with the financial responsi-
bility requirements of this part as
ceipt.
(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
VerDate Aug<04>2004 10:43 Aug 05, 2005Jkt 205166PO 00000Frm 0052
Environmental Protection Agency §280.111
(c) The Director of the Implementing within the last twelve months by
Agency may require an owner or oper-
Moodys or Standard & Poors.
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.
tors demonstration of financial re-
sponsibility relies on the bond rating
[58 FR 9051, Feb. 18, 1993]
test under §280.104 must maintain a
copy of the guarantors bond rating
§280.111Recordkeeping.
published within the last twelve
(a) Owners or operators must main-
months by Moodys or Standard &
tain evidence of all financial assurance
Poors.
mechanisms used to demonstrate fi-
(7) An owner or operator using an in-
nancial responsibility under this sub-
surance policy or risk retention group
part for an underground storage tank
coverage must maintain a copy of the
until released from the requirements of
signed insurance policy or risk reten-
this subpart under §208.113. An owner
tion group coverage policy, with the
or operator must maintain such evi-
endorsement or certificate of insurance
dence at the underground storage tank
site or the owners or operators 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 officers letter based on year-
under §280.107(a)(3) using incremental
end financial statements for the most
funding backed by bonding authority,
recent completed financial reporting
the financial statements must show
year. Such evidence must be on file no
the previous years balance, the
later than 120 days after the close of
amount of funding during the year, and
the financial reporting year.
the closing balance in the fund.
(3) An owner or operator using a
(iii) If the fund is established under
guarantee, surety bond, or letter of
§280.107(a)(3) using incremental funding
credit must maintain a copy of the
backed by bonding authority, the
signed standby trust fund agreement
owner or operator must also maintain
and copies of any amendments to the
documentation of the required bonding
agreement.
authority, including either the results
(4) A local government owner or oper-
of a voter referendum (under
ator using a local government guar-
§280.107(a)(3)(i)), or attestation by the
antee under §280.106(d) must maintain
State Attorney General as specified
a copy of the signed standby trust fund
under §280.107(a)(3)(ii).
agreement and copies of any amend-
(10) A local government owner or op-
ments to the agreement.
erator using the local government
(5) A local government owner or oper-
guarantee supported by the local gov-
ator using the local government bond
rating test under §280.104 must main-ernment fund must maintain a copy of
tain a copy of its bond rating published the guarantors year-end financial
519
VerDate Aug<04>2004 10:43 Aug 05, 2005Jkt 205166PO 00000Frm 0052
§280.112 40 CFR Ch. I (7105 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
mechanism has occurred and so noti-
(11)(i) An owner or operator using an
assurance mechanism specified in fies the owner or operator or the owner
or operator has notified the Director
§§280.95 through 280.107 must maintain
an updated copy of a certification of fi-pursuant to subparts E or F of a release
from an underground storage tank cov-
nancial responsibility worded as fol-
lows, except that instructions in brack-ered by the mechanism; or
(2) The conditions of paragraph (b)(1)
ets are to be replaced with the relevant
or (b)(2) (i) or (ii) of this section are
information and the brackets deleted:
satisfied.
CFR
ERTIFICATIONOFINANCIALESPONSIBILITY
(b) The Director of the implementing
agency may draw on a standby trust
[Owner or operator] hereby certifies that it
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
action for the release is needed, and
follows:
the owner or operator, after appro-
[For each mechanism, list the type of
priate notice and opportunity to com-
mechanism, name of issuer, mechanism
ply, has not conducted corrective ac-
number (if applicable), amount of coverage,
tion as required under 40 CFR part 280,
effective period of coverage and whether the
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-
claimant(s) and from attorneys rep-
dental releases.]
resenting the owner or operator and
[Signature of owner or operator]
the third-party liability claimant(s)
[Name of owner or operator]
that a third-party liability claim
[Title]
should be paid. The certification must
[Date]
be worded as follows, except that in-
[Signature of witness or notary]
structions in brackets are to be re-
[Name of witness or notary]
placed with the relevant information
[Date]
and the brackets deleted:
(ii) The owner or operator must update
this certification whenever the financial as-
CVC
ERTIFICATIONOFALIDLAIM
surance mechanism(s) used to demonstrate
financial responsibility change(s).
The undersigned, as principals and as legal
representatives of [insert: owner or operator]
[58 FR 9051, Feb. 18, 1993]
and [insert: name and address of third-party
claimant], hereby certify that the claim of
§280.112Drawing on financial assur-
bodily injury [and/or] property damage
ance mechanisms.
caused by an accidental release arising from
(a) Except as specified in paragraph
operating [owners or operators] under-
(d) of this section, the Director of the
ground storage tank should be paid in the
amount of $[].
implementing agency shall require the
llllll
[Signatures]
guarantor, surety, or institution
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)
Attorney(s) for Claimant(s)
(1)(i) The owner or operator fails to
(Notary)
establish alternate financial assurance
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
VerDate Aug<04>2004 10:43 Aug 05, 2005Jkt 205166PO 00000Frm 0053
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-
ruptcy), U.S. Code, naming a guarantor
(c) If the Director of the imple-
providing financial assurance as debt-
menting agency determines that the
or, such guarantor must notify the
amount of corrective action costs and
owner or operator by certified mail of
third-party liability claims eligible for
such commencement as required under
payment under paragraph (b) of this
the terms of the guarantee specified in
section may exceed the balance of the
§280.96.
standby trust fund and the obligation
(c) Within 10 days after commence-
of the provider of financial assurance,
ment of a voluntary or involuntary
the first priority for payment shall be
proceeding under Title 11 (Bank-
corrective action costs necessary to
ruptcy), U.S. Code, naming a local gov-
protect human health and the environ-
ernment owner or operator as debtor,
ment. The Director shall pay third-
the local government owner or oper-
party liability claims in the order in
ator must notify the Director of the
which the Director receives certifi-
implementing agency by certified mail
cations under paragraph (b)(2)(i) of this
of such commencement and submit the
section, and valid court orders under
appropriate forms listed in §280.111(b)
paragraph (b)(2)(ii) of this section.
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
must notify the local government
[58 FR 9052, Feb. 18, 1993]
owner or operator by certified mail of
§280.113Release from the require-such commencement as required under
ments.
the terms of the guarantee specified in
§280.106.
An owner or operator is no longer re-
(e) An owner or operator who obtains
quired to maintain financial responsi-
financial assurance by a mechanism
bility under this subpart for an under-
other than the financial test of self-in-
ground storage tank after the tank has
surance will be deemed to be without
been properly closed or, if corrective
the required financial assurance in the
action is required, after corrective ac-
event of a bankruptcy or incapacity of
tion has been completed and the tank
its provider of financial assurance, or a
has been properly closed as required by
suspension or revocation of the author-
40 CFR part 280, subpart G.
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
§280.114Bankruptcy 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
VerDate Aug<04>2004 10:43 Aug 05, 2005Jkt 205166PO 00000Frm 0053
§280.115 40 CFR Ch. I (7105 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.
(3)Petroleum marketing means the dis-
§280.115Replenishment of guarantees,
tribution, transfer, or sale of petro-
letters of credit, or surety bonds.
leum or petroleum products for whole-
(a) If at any time after a standby
sale or retail purposes.
trust is funded upon the instruction of
(c)Indicia of ownership means evi-
the Director of the implementing agen-
dence of a secured interest, evidence of
cy with funds drawn from a guarantee,
an interest in a security interest, or
local government guarantee with
evidence of an interest in real or per-
standby trust, letter of credit, or sur-
sonal property securing a loan or other
ety bond, and the amount in the stand-
obligation, including any legal or equi-
by trust is reduced below the full
table title or deed to real or personal
amount of coverage required, the
property acquired through or incident
owner or operator shall by the anniver-
to foreclosure. Evidence of such inter-
sary date of the financial mechanism
from which the funds were drawn: ests include, but are not limited to,
mortgages, deeds of trust, liens, surety
(1) Replenish the value of financial
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.
(d)A holder is a person who, upon the
[58 FR 9053, Feb. 18, 1993]
effective date of this regulation or in
§280.116Suspension of enforcement.
the future, maintains indicia of owner-
[Reserved]
ship (as defined in §280.200(c)) pri-
marily to protect a security interest
Subpart ILender Liability
(as defined in §280.200(f)(1)) in a petro-
leum UST or UST system or facility or
property on which a petroleum UST or
S: 60 FR 46711, Sept. 7, 1995, unless
OURCE
UST system is located. A holder in-
otherwise noted.
cludes the initial holder (such as a loan
§280.200Definitions.
originator); any subsequent holder
(such as a successor-in-interest or sub-
(a)UST technical standards, as used in
sequent purchaser of the security in-
this subpart, refers to the UST pre-
terest on the secondary market); a
ventative and operating requirements
guarantor of an obligation, surety, or
under 40 CFR part 280, subparts B, C, D,
any other person who holds ownership
G, and §280.50 of subpart E.
indicia primarily to protect a security
(b)Petroleum production, refining, and
interest; or a receiver or other person
marketing.
who acts on behalf or for the benefit of
(1)Petroleum production means the
a holder.
production of crude oil or other forms
(e)A borrower, debtor, or obligor is a
of petroleum (as defined in §280.12) as
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
VerDate Aug<04>2004 10:43 Aug 05, 2005Jkt 205166PO 00000Frm 0053
Environmental Protection Agency §280.210
(a) Actions that are participation in
or UST system is located is encum-
management.
bered by a security interest. These
(1) Participation in the management
terms may be used interchangeably.
of an UST or UST system means, for
(f)Primarily to protect a security inter-
purposes of this subpart, actual partici-
est means that the holders indicia of
pation by the holder in the manage-
ownership are held primarily for the
ment or control of decisionmaking re-
purpose of securing payment or per-
lated to the operation of an UST or
formance of an obligation.
UST system. Participation in manage-
(1)Security interest means an interest
ment does not include the mere capac-
in a petroleum UST or UST system or
ity or ability to influence or the
in the facility or property on which a
unexercised right to control UST or
petroleum UST or UST system is lo-
UST system operations. A holder is
cated, created or established for the
participating in the management of the
purpose of securing a loan or other ob-
UST or UST system only if the holder
ligation. Security interests include but
either:
are not limited to mortgages, deeds of
(i) Exercises decisionmaking control
trusts, liens, and title pursuant to
over the operational (as opposed to fi-
lease financing transactions. Security
nancial or administrative) aspects of
interests may also arise from trans-
the UST or UST system, such that the
actions such as sale and leasebacks,
holder has undertaken responsibility
conditional sales, installment sales,
for all or substantially all of the man-
trust receipt transactions, certain as-
agement of the UST or UST system; or
signments, factoring agreements, ac-
(ii) Exercises control at a level com-
counts receivable financing arrange-
parable to that of a manager of the
ments, and consignments, if the trans-
borrowers enterprise, such that the
action creates or establishes an inter-
holder has assumed or manifested re-
est in an UST or UST system or in the
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
§280.210Participation 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
VerDate Aug<04>2004 10:43 Aug 05, 2005Jkt 205166PO 00000Frm 0053
§280.210 40 CFR Ch. I (7105 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 borrowers 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
VerDate Aug<04>2004 10:43 Aug 05, 2005Jkt 205166PO 00000Frm 0053
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.
sonable means as are relevant or appro-
(c) Foreclosure on an UST or UST
priate with respect to the UST or UST
system or facility or property on which
system or facility or property on which
an UST or UST system is located, and
the UST or UST system is located, or
participation in management activities
may employ the means specified in
post-foreclosure.
§280.210(c)(2). A holder that outbids, re-
(1) Foreclosure. (i) Indicia of owner-
jects, or fails to act upon a written
ship that are held primarily to protect
bona fide, firm offer of fair consider-
a security interest include legal or eq-
ation for the UST or UST system or fa-
uitable title or deed to real or personal
cility or property on which the UST or
property acquired through or incident
UST system is located, as provided in
to foreclosure. For purposes of this
§280.210(c)(2), is not considered to hold
subpart, the term foreclosure means
indicia of ownership primarily to pro-
that legal, marketable or equitable
tect a security interest.
title or deed has been issued, approved,
(2) Holding foreclosed property for
and recorded, and that the holder has
disposition and liquidation. A holder,
obtained access to the UST, UST sys-
who does not participate in manage-
tem, UST facility, and property on
ment prior to or after foreclosure, may
which the UST or UST system is lo-
sell, re-lease, pursuant to a lease fi-
cated, provided that the holder acted
nancing transaction (whether by a new
diligently to acquire marketable title
lease financing transaction or substi-
or deed and to gain access to the UST,
tution of the lessee), an UST or UST
UST system, UST facility, and prop-
system or facility or property on which
erty on which the UST or UST system
the UST or UST system is located, liq-
is located. The indicia of ownership
uidate, wind up operations, and take
held after foreclosure continue to be
measures, prior to sale or other dis-
maintained primarily as protection for
position, to preserve, protect, or pre-
a security interest provided that the
pare the secured UST or UST system or
holder undertakes to sell, re-lease an
facility or property on which the UST
UST or UST system or facility or prop-
or UST system is located. A holder
erty on which the UST or UST system
may also arrange for an existing or
is located, held pursuant to a lease fi-
new operator to continue or initiate
nancing transaction (whether by a new
operation of the UST or UST system.
lease financing transaction or substi-
525
VerDate Aug<04>2004 10:43 Aug 05, 2005Jkt 205166PO 00000Frm 0053
§280.210 40 CFR Ch. I (7105 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
VerDate Aug<04>2004 10:43 Aug 05, 2005Jkt 205166PO 00000Frm 0053
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
which the UST or UST system is lo-
ceived by the holder in connection with
cated, whichever is later.
any partial disposition of the property
(3) Actions that are not participation
and any amounts paid by the borrower
in management post-foreclosure. A
(if not already applied to the bor-
holder is not considered to be partici-
rowers obligations) subsequent to the
pating in the management of an UST
acquisition of full title (or possession
or UST system or facility or property
in the case of a lease financing trans-
on which the UST or UST system is lo-
action) pursuant to foreclosure. In the
cated when undertaking actions under
case of a holder maintaining indicia of
40 CFR part 280, provided that the hold-
ownership primarily to protect a junior
er does not otherwise participate in the
security interest, fair consideration is
management or daily operation of the
the value of all outstanding higher pri-
UST or UST system as provided in
ority security interests plus the value
§280.210(a) and §280.230. Such allowable
of the security interest held by the jun-
actions include, but are not limited to,
ior holder, each calculated as set forth
release detection and release reporting,
in this paragraph.
release response and corrective action,
(B) Outbids, rejects, or fails to act
temporary or permanent closure of an
upon an offer of fair consideration
UST or UST system, UST upgrading or
means that the holder outbids, rejects,
replacement, and maintenance of cor-
or fails to act upon within 90 days of
rosion protection. A holder who under-
receipt, a written, bona fide, firm offer
takes these actions must do so in com-
of fair consideration for the UST or
pliance with the applicable require-
UST system or facility or property on
ments in 40 CFR part 280 or applicable
which the UST or UST system is lo-
state requirements in those states that
cated received at any time after six
have been delegated authority by EPA
months following foreclosure, as de-
to administer the UST program pursu-
fined in §280.210(c). A written, bona
ant to 42 U.S.C. 6991c and 40 CFR part
fide,firm offer means a legally en-
281. A holder may directly oversee
forceable, commercially reasonable,
these environmental compliance ac-
cash offer solely for the foreclosed UST
tions and voluntary environmental ac-
or UST system or facility or property
tions, and directly hire contractors to
on which the UST or UST system is lo-
perform the work, and is not by such
cated, including all material terms of
action considered to be participating in
the transaction, from a ready, willing,
the management of the UST or UST
and able purchaser who demonstrates
system.
to the holders satisfaction the ability
to perform. For purposes of this provi-
§280.220Ownership 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-
ground storage tank or under-
been issued, approved and recorded to
ground storage tank system is lo-
the holder, and the holder has obtained
cated.
access to the UST, UST system, UST
facility and property on which the UST Ownership of an UST or UST system
or facility or property on which an
or UST system is located, whichever is
later, provided that the holder was act-UST or UST system is located. A hold-
er is not an owner of a petroleum
ing diligently to acquire marketable
title or deed and to obtain access to UST or UST system or facility or prop-
erty on which a petroleum UST or UST
the UST or UST system, UST facility
and property on which the UST or UST system is located for purposes of com-
pliance with the UST technical stand-
system is located. If the holder fails to
act diligently to acquire marketable ards as defined in §280.200(a), the UST
corrective action requirements under
title or deed or to gain access to the
UST or UST system, the six-month pe-§§280.51 through 280.67, and the UST fi-
nancial responsibility requirements
riod begins to run from December 6,
1995 or from the date on which the under §§280.90 through 280.111, provided
the person:
holder first acquires either title to or
527
VerDate Aug<04>2004 10:43 Aug 05, 2005Jkt 205166PO 00000Frm 0053
§280.230 40 CFR Ch. I (7105 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
days after December 6, 1995, whichever
(b) Does not engage in petroleum pro-
duction, refining, and marketing as de-is later, or another reasonable time pe-
riod specified by the implementing
fined in §280.200(b).
agency, so that no more than 2.5 centi-
§280.230Operating 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
VerDate Aug<04>2004 10:43 Aug 05, 2005Jkt 205166PO 00000Frm 0053
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
VerDate Aug<04>2004 10:43 Aug 05, 2005Jkt 205166PO 00000Frm 0053
Pt. 280, App. I 40 CFR Ch. I (7105 Edition)
AIP280NUST(F)
PPENDIXTOARTOTIFICATIONFORNDERGROUNDTORAGEANKSORM
530
VerDate Aug<04>2004 10:43 Aug 05, 2005Jkt 205166PO 00000Frm 0054
Environmental Protection Agency Pt. 280, App. I
531
VerDate Aug<04>2004 10:43 Aug 05, 2005Jkt 205166PO 00000Frm 0054
Pt. 280, App. II 40 CFR Ch. I (7105 Edition)
gressman W.L. Dickinson Drive, Mont-
AIIP280L
PPENDIXTOARTISTOF
gomery, Alabama 36130, 205/2717823
ADTR
GENCIESESIGNATEDOECEIVE
Alaska (EPA Form), Department of Environ-
N
OTIFICATIONS
mental Conservation, Box 0, Juneau, Alas-
ka 998111800, 970/4652653
Alabama (EPA Form), Alabama Department
of Environmental Management, Ground
Water Section/Water Division, 1751 Con-
532
VerDate Aug<04>2004 10:43 Aug 05, 2005Jkt 205166PO 00000Frm 0054
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, 512/2818135
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-
501/5627444
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/
501/5646716
4451533
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, 501/3421265
gram, 4210 East 11th Avenue, Denver, Colo-
Maine (State Form), Attention: Underground
rado 80220, 303/3208333
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,
Maryland (EPA Form), Science and Health
Connecticut 06106
Advisory Group, Office of Environmental
Delaware (State Form), Division of Air and
Programs, 201 West Preston Street, Balti-
Waste Management, Department of Nat-
more, Maryland 21201
ural Resources and Environmental Con-
Massachusetts (EPA Form), UST Registry,
trol, P.O. Box 1401, 89 Kings Highway,
Department of Public Safety, 1010 Com-
Dover, Delaware 19903, 302/7265409
monwealth Avenue, Boston, Massachusetts
District of Columbia (EPA Form), Attention:
02215, 617/5664500
UST Notification Form, Department of
Michigan (EPA Form), Michigan Department
Consumer and Regulatory Affairs, Pes-
of State Police, Fire Marshal Division,
ticides and Hazardous Waste Management
General Office Building, 7150 Harris Drive,
Branch, Room 114, 5010 Overlook Avenue
Lansing, Michigan 48913
SW., Washington, DC 20032
Minnesota (State Form), Underground Stor-
Florida (State Form), Florida Department of
age Tank Program, Division of Solid and
Environmental Regulation, Solid Waste
Hazardous Wastes, Minnesota Pollution
Section, Twin Towers Office Building, 2600
Control Agency, 520 West Lafayette Road,
Blair Stone Road, Tallahassee, Florida
St. Paul, Minnesota 55155
32399, 904/4874398
Mississippi (State Form), Department of
Georgia (EPA Form), Georgia Department of
Natural Resources, Bureau of Pollution
Natural Resources, Environmental Protec-
Control, Underground Storage Tank Sec-
tion Division, Underground Storage Tank
tion, P.O. Box 10385, Jackson, Mississippi
Program, 3420 Norman Berry Drive, 7th
39209, 601/9615171
Floor, Hapeville, Georgia 30354, 404/6567404
Missouri (EPA Form), UST Coordinator, Mis-
Guam (State Form), Administrator, Guam
souri Department of Natural Resources,
Environmental Protection Agency, P.O.
P.O. Box 176, Jefferson City, Missouri 65102,
Box 2999, Agana, Guam 96910, Overseas Op-
314/7517428
erator (Commercial call 6468863)
Montana (EPA Form), Solid and Hazardous
Hawaii (EPA Form), Administrator, Haz-
Waste Bureau, Department of Health and
ardous Waste Program, 645 Halekauwila
Environmental Science, Cogswell Bldg.,
Street, Honolulu, Hawaii 96813, 808/5482270
Room B201, Helena, Montana 59620
Idaho (EPA Form), Underground Storage
Nebraska (EPA Form), Nebraska State Fire
Tank Coordinator, Water Quality Bureau,
Marshal, P.O. Box 94677, Lincoln, Nebraska
Division of Environmental Quality, Idaho
685094677, 402/4719465
Department of Health and Welfare, 450 W.
Nevada (EPA Form), Attention: UST Coordi-
State Street, Boise, Idaho 83720, 208/3344251
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
6270345990900, Ext. 4670, 702/8854670
533
VerDate Aug<04>2004 10:43 Aug 05, 2005Jkt 205166PO 00000Frm 0054
Pt. 280, App. III 40 CFR Ch. I (7105 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 (CN029), Trenton, New Jersey
ville, Tennessee 372195404, 615/7410690
08625, 609/2920424
Texas (EPA Form), Underground Storage
New Mexico (EPA Form), New Mexico Envi-
Tank Program, Texas Water Commission,
ronmental Improvement Division, Ground-
P.O. Box 13087, Austin, Texas 78711
water/Hazardous Waste Bureau, P.O. Box
Utah (EPA Form), Division of Envirormental
968, Santa Fe, New Mexico 37504, 505/827
2933Health, P.O. Box 45500, Salt Lake City,
New York (EPA Form), Bulk Storage Sec-
Utah 841450500
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 122330001,
agement Division, State Office Building,
518/4574351
Montpelier, Vermont 05602, 802/8283395
North Carolina (EPA Form), Division of En-
Virginia (EPA Form), Virginia Water Con-
vironmental Management, Ground-Water
trol Board, P.O. Box 11143, Richmond, Vir-
Operations Branch, Department of Natural
ginia 232301143, 804/2576685
Resources and Community Development,
Virgin Islands (EPA Form), 205(J) Coordi-
P.O. Box 27687, Raleigh, North Carolina
nator, Division of Natural Resources Man-
27611, 919/7333221
agement, 14 F Building 111, Watergut
North Dakota (State Form), Division of Haz-
Homes, Christianstead, St. Croix, Virgin
ardous Management and Special Studies,
North Dakota Department of Health, Box
Islands 00820
5520, Bismarck, North Dakota 585025520
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 PV11, Olympia, Washington
Mariana Islands, Saipan, CM 96950, Cable
985048711, 206/4596316
Address: Gov. NMI Saipan, Overseas Oper-
West Virginia (EPA Form), Attention: UST
ator: 6984
Notification, Solid and Hazardous Waste,
Ohio (State Form), State Fire Marshals Of-
Ground Water Branch, West Virginia De-
fice, Department of Commerce, 8895 E.
partment of Natural Resources, 1201
Main Street, Reynoldsburg, Ohio 43068,
Greenbriar Street, Charleston, West Vir-
State Hotline: 800/2821927
ginia 25311
Oklahoma (EPA Form), Underground Stor-
Wisconsin (State Form), Bureau of Petro-
age Tank Program, Oklahoma Corporation
leum Inspection, P.O. Box 7969, Madison,
Comm., Jim Thorpe Building, Oklahoma
Wisconsin 53707, 608/2667605
City, Oklahoma 73105
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, 503/2295788
82002, 307/7777781.
Pennsylvania (EPA Form), PA Department
of Environmental Resources, Bureau of
AIIIP280S
PPENDIXTOARTTATEMENT
Water Quality Management, Ground Water
STI
FORHIPPINGICKETSANDNVOICES
Unit, 9th Floor Fulton Building, P.O. Box
2063, Harrisburg, Pennsylvania 17120
N. A Federal law (the Resource Con-
OTE
Puerto Rico (EPA Form), Director, Water
servation and Recovery Act (RCRA), as
Quality Control Area, Environmental
amended (Pub. L. 98616)) requires owners of
Quality Board, Commonwealth of Puerto
certain underground storage tanks to notify
Rico, Santurce, Puerto Rico, 809/7250717
designated State or local agencies by May 8,
Rhode Island (EPA Form), UST Registration,
1986, of the existence of their tanks. Notifica-
Department of Environmental Manage-
tions for tanks brought into use after May 8,
ment, 83 Park Street, Providence, Rhode
1986, must be made within 30 days. Consult
Island 02903, 401/2772234
EPAs regulations, issued on November 8,
South Carolina (State Form), Ground-Water
1985 (40 CFR part 280) to determine if you are
Protection Division, South Carolina De-
partment of Health and Environmental affected by this law.
Control, 2600 Bull Street, Columbia, South
Carolina 29201, 803/7585213
534
VerDate Aug<04>2004 10:43 Aug 05, 2005Jkt 205166PO 00000Frm 0054
Attachment 3: BTEX Plume Behavior Stabilization Summary
PLUME STABILITY -OBSERVATIONS
OUT OF ALL PLUMES: Less than 1 in 10 plumes are
found to be expanding
3 to 8 % of plumes expanding based on plume length.
8 to 14 % of plumes expanding based on average plume concentration.
PLUME LENGTH STATISTICS
PLUME LENGTH PROBABILITY
25 % less than 80 ft(1 out of 4)
35 % less than 100 ftin length (about 1 out of 3)
50 % less than 132 ftin length (1 out of 2; median)
72 % less than 200 ftin length
75 % less than 203 ftin length) (3 out of 4)
86 % less than 300 ftin length
90 % less than 319 ftin length (9 out of 10)
90.9 % less than 400 ftin length
93 % less than 500 ftin length
94.3 % less than 600 ftin length
94.8 % less than 700 ftin length
95 % less than 750 ftin length (95 out of 100)
95.3 % less than 800 ft
95.6 % less than 900 ft
97.5 % less than 1000 ft.
PLUME LENGTH PROBABILITY
POLICY APPROACH
LOWER PROBABILITY: Plume is less than 100 ft(1 out of 3 chance)
MODERATE PROBABILITY:Plume is less than 130 ft(1 out of 2 chance)
LIKELY PROBABILITY: Plume is less than 200 ft(3 out of 4 chance)
HIGH PROBABILITY : Plume is less than 300 ft(9 out of 10 chance)
VERY HIGH PROBABILITY: Plume is less than 750 ftlength (95 out of 100 chance).