42 U.S.C. § 6991b : US Code - Section 6991B: Release detection, prevention, and correction regulations

Search 42 U.S.C. § 6991b : US Code - Section 6991B: Release detection, prevention, and correction regulations

(a) Regulations
The Administrator, after notice and opportunity for public
comment, and at least three months before the effective dates
specified in subsection (f) of this section, shall promulgate
release detection, prevention, and correction regulations
applicable to all owners and operators of underground storage
tanks, as may be necessary to protect human health and the
environment.
(b) Distinctions in regulations
In promulgating regulations under this section, the Administrator
may distinguish between types, classes, and ages of underground
storage tanks. In making such distinctions, the Administrator may
take into consideration factors, including, but not limited to:
location of the tanks, soil and climate conditions, uses of the
tanks, history of maintenance, age of the tanks, current industry
recommended practices, national consensus codes, hydrogeology,
water table, size of the tanks, quantity of regulated substances
periodically deposited in or dispensed from the tank, the technical
capability of the owners and operators, and the compatibility of
the regulated substance and the materials of which the tank is
fabricated.
(c) Requirements
The regulations promulgated pursuant to this section shall
include, but need not be limited to, the following requirements
respecting all underground storage tanks -
(1) requirements for maintaining a leak detection system, an
inventory control system together with tank testing, or a
comparable system or method designed to identify releases in a
manner consistent with the protection of human health and the
environment;
(2) requirements for maintaining records of any monitoring or
leak detection system or inventory control system or tank testing
or comparable system;
(3) requirements for reporting of releases and corrective
action taken in response to a release from an underground storage
tank;
(4) requirements for taking corrective action in response to a
release from an underground storage tank;
(5) requirements for the closure of tanks to prevent future
releases of regulated substances into the environment; and
(6) requirements for maintaining evidence of financial
responsibility for taking corrective action and compensating
third parties for bodily injury and property damage caused by
sudden and nonsudden accidental releases arising from operating
an underground storage tank.
(d) Financial responsibility
(1) Financial responsibility required by this subsection may be
established in accordance with regulations promulgated by the
Administrator by any one, or any combination, of the following:
insurance, guarantee, surety bond, letter of credit, qualification
as a self-insurer or any other method satisfactory to the
Administrator. In promulgating requirements under this subsection,
the Administrator is authorized to specify policy or other
contractual terms, conditions, or defenses which are necessary or
are unacceptable in establishing such evidence of financial
responsibility in order to effectuate the purposes of this
subchapter.
(2) In any case where the owner or operator is in bankruptcy,
reorganization, or arrangement pursuant to the Federal Bankruptcy
Code or where with reasonable diligence jurisdiction in any State
court of the Federal courts cannot be obtained over an owner or
operator likely to be solvent at the time of judgment, any claim
arising from conduct for which evidence of financial responsibility
must be provided under this subsection may be asserted directly
against the guarantor providing such evidence of financial
responsibility. In the case of any action pursuant to this
paragraph such guarantor shall be entitled to invoke all rights and
defenses which would have been available to the owner or operator
if any action had been brought against the owner or operator by the
claimant and which would have been available to the guarantor if an
action had been brought against the guarantor by the owner or
operator.
(3) The total liability of any guarantor shall be limited to the
aggregate amount which the guarantor has provided as evidence of
financial responsibility to the owner or operator under this
section. Nothing in this subsection shall be construed to limit any
other State or Federal statutory, contractual or common law
liability of a guarantor to its owner or operator including, but
not limited to, the liability of such guarantor for bad faith
either in negotiating or in failing to negotiate the settlement of
any claim. Nothing in this subsection shall be construed to
diminish the liability of any person under section 9607 or 9611 of
this title or other applicable law.
(4) For the purpose of this subsection, the term "guarantor"
means any person, other than the owner or operator, who provides
evidence of financial responsibility for an owner or operator under
this subsection.
(5)(A) The Administrator, in promulgating financial
responsibility regulations under this section, may establish an
amount of coverage for particular classes or categories of
underground storage tanks containing petroleum which shall satisfy
such regulations and which shall not be less than $1,000,000 for
each occurrence with an appropriate aggregate requirement.
(B) The Administrator may set amounts lower than the amounts
required by subparagraph (A) of this paragraph for underground
storage tanks containing petroleum which are at facilities not
engaged in petroleum production, refining, or marketing and which
are not used to handle substantial quantities of petroleum.
(C) In establishing classes and categories for purposes of this
paragraph, the Administrator may consider the following factors:
(i) The size, type, location, storage, and handling capacity of
underground storage tanks in the class or category and the volume
of petroleum handled by such tanks.
(ii) The likelihood of release and the potential extent of
damage from any release from underground storage tanks in the
class or category.
(iii) The economic impact of the limits on the owners and
operators of each such class or category, particularly relating
to the small business segment of the petroleum marketing
industry.
(iv) The availability of methods of financial responsibility in
amounts greater than the amount established by this paragraph.
(v) Such other factors as the Administrator deems pertinent.
(D) The Administrator may suspend enforcement of the financial
responsibility requirements for a particular class or category of
underground storage tanks or in a particular State, if the
Administrator makes a determination that methods of financial
responsibility satisfying the requirements of this subsection are
not generally available for underground storage tanks in that class
or category, and -
(i) steps are being taken to form a risk retention group for
such class of tanks; or
(ii) such State is taking steps to establish a fund pursuant to
section 6991c(c)(1) of this title to be submitted as evidence of
financial responsibility.
A suspension by the Administrator pursuant to this paragraph shall
extend for a period not to exceed 180 days. A determination to
suspend may be made with respect to the same class or category or
for the same State at the end of such period, but only if
substantial progress has been made in establishing a risk retention
group, or the owners or operators in the class or category
demonstrate, and the Administrator finds, that the formation of
such a group is not possible and that the State is unable or
unwilling to establish such a fund pursuant to clause (ii).
(e) New tank performance standards
The Administrator shall, not later than three months prior to the
effective date specified in subsection (f) of this section, issue
performance standards for underground storage tanks brought into
use on or after the effective date of such standards. The
performance standards for new underground storage tanks shall
include, but need not be limited to, design, construction,
installation, release detection, and compatibility standards.
(f) Effective dates
(1) Regulations issued pursuant to subsections (c) and (d) of
this section, and standards issued pursuant to subsection (e) of
this section, for underground storage tanks containing regulated
substances defined in section 6991(7)(B) of this title (petroleum,
including crude oil or any fraction thereof which is liquid at
standard conditions of temperature and pressure) shall be effective
not later than thirty months after November 8, 1984.
(2) Standards issued pursuant to subsection (e) of this section
(entitled "New Tank Performance Standards") for underground storage
tanks containing regulated substances defined in section 6991(7)(A)
of this title shall be effective not later than thirty-six months
after November 8, 1984.
(3) Regulations issued pursuant to subsection (c) of this section
(entitled "Requirements") and standards issued pursuant to
subsection (d) of this section (entitled "Financial
Responsibility") for underground storage tanks containing regulated
substances defined in section 6991(7)(A) of this title shall be
effective not later than forty-eight months after November 8, 1984.
(g) Interim prohibition
(1) Until the effective date of the standards promulgated by the
Administrator under subsection (e) of this section and after one
hundred and eighty days after November 8, 1984, no person may
install an underground storage tank for the purpose of storing
regulated substances unless such tank (whether of single or double
wall construction) -
(A) will prevent releases due to corrosion or structural
failure for the operational life of the tank;
(B) is cathodically protected against corrosion, constructed of
noncorrosive material, steel clad with a noncorrosive material,
or designed in a manner to prevent the release or threatened
release of any stored substance; and
(C) the material used in the construction or lining of the tank
is compatible with the substance to be stored.
(2) Notwithstanding paragraph (1), if soil tests conducted in
accordance with ASTM Standard G57-78, or another standard approved
by the Administrator, show that soil resistivity in an installation
location is 12,000 ohm/cm or more (unless a more stringent standard
is prescribed by the Administrator by rule), a storage tank without
corrosion protection may be installed in that location during the
period referred to in paragraph (1).
(h) EPA response program for petroleum
(1) Before regulations
Before the effective date of regulations under subsection (c)
of this section, the Administrator (or a State pursuant to
paragraph (7)) is authorized to -
(A) require the owner or operator of an underground storage
tank to undertake corrective action with respect to any release
of petroleum when the Administrator (or the State) determines
that such corrective action will be done properly and promptly
by the owner or operator of the underground storage tank from
which the release occurs; or
(B) undertake corrective action with respect to any release
of petroleum into the environment from an underground storage
tank if such action is necessary, in the judgment of the
Administrator (or the State), to protect human health and the
environment.
The corrective action undertaken or required under this paragraph
shall be such as may be necessary to protect human health and the
environment. The Administrator shall use funds in the Trust Fund
for payment of costs incurred for corrective action under
subparagraph (B), enforcement action under subparagraph (A), and
cost recovery under paragraph (6) of this subsection. Subject to
the priority requirements of paragraph (3), the Administrator (or
the State) shall give priority in undertaking such actions under
subparagraph (B) to cases where the Administrator (or the State)
cannot identify a solvent owner or operator of the tank who will
undertake action properly.
(2) After regulations
Following the effective date of regulations under subsection
(c) of this section, all actions or orders of the Administrator
(or a State pursuant to paragraph (7)) described in paragraph (1)
of this subsection shall be in conformity with such regulations.
Following such effective date, the Administrator (or the State)
may undertake corrective action with respect to any release of
petroleum into the environment from an underground storage tank
only if such action is necessary, in the judgment of the
Administrator (or the State), to protect human health and the
environment and one or more of the following situations exists:
(A) No person can be found, within 90 days or such shorter
period as may be necessary to protect human health and the
environment, who is -
(i) an owner or operator of the tank concerned,
(ii) subject to such corrective action regulations, and
(iii) capable of carrying out such corrective action
properly.
(B) A situation exists which requires prompt action by the
Administrator (or the State) under this paragraph to protect
human health and the environment.
(C) Corrective action costs at a facility exceed the amount
of coverage required by the Administrator pursuant to the
provisions of subsections (c) and (d)(5) of this section and,
considering the class or category of underground storage tank
from which the release occurred, expenditures from the Trust
Fund are necessary to assure an effective corrective action.
(D) The owner or operator of the tank has failed or refused
to comply with an order of the Administrator under this
subsection or section 6991e of this title or with the order of
a State under this subsection to comply with the corrective
action regulations.
(3) Priority of corrective actions
The Administrator (or a State pursuant to paragraph (7)) shall
give priority in undertaking corrective actions under this
subsection, and in issuing orders requiring owners or operators
to undertake such actions, to releases of petroleum from
underground storage tanks which pose the greatest threat to human
health and the environment.
(4) Corrective action orders
The Administrator is authorized to issue orders to the owner or
operator of an underground storage tank to carry out subparagraph
(A) of paragraph (1) or to carry out regulations issued under
subsection (c)(4) of this section. A State acting pursuant to
paragraph (7) of this subsection is authorized to carry out
subparagraph (A) of paragraph (1) only until the State's program
is approved by the Administrator under section 6991c of this
title. Such orders shall be issued and enforced in the same
manner and subject to the same requirements as orders under
section 6991e of this title.
(5) Allowable corrective actions
The corrective actions undertaken by the Administrator (or a
State pursuant to paragraph (7)) under paragraph (1) or (2) may
include temporary or permanent relocation of residents and
alternative household water supplies. In connection with the
performance of any corrective action under paragraph (1) or (2),
the Administrator may undertake an exposure assessment as defined
in paragraph (10) of this subsection or provide for such an
assessment in a cooperative agreement with a State pursuant to
paragraph (7) of this subsection. The costs of any such
assessment may be treated as corrective action for purposes of
paragraph (6), relating to cost recovery.
(6) Recovery of costs
(A) In general
Whenever costs have been incurred by the Administrator, or by
a State pursuant to paragraph (7), for undertaking corrective
action or enforcement action with respect to the release of
petroleum from an underground storage tank, the owner or
operator of such tank shall be liable to the Administrator or
the State for such costs. The liability under this paragraph
shall be construed to be the standard of liability which
obtains under section 1321 of title 33.
(B) Recovery
In determining the equities for seeking the recovery of costs
under subparagraph (A), the Administrator (or a State pursuant
to paragraph (7) of this subsection) may consider the amount of
financial responsibility required to be maintained under
subsections (c) and (d)(5) of this section and the factors
considered in establishing such amount under subsection (d)(5)
of this section.
(C) Effect on liability
(i) No transfers of liability
No indemnification, hold harmless, or similar agreement or
conveyance shall be effective to transfer from the owner or
operator of any underground storage tank or from any person
who may be liable for a release or threat of release under
this subsection, to any other person the liability imposed
under this subsection. Nothing in this subsection shall bar
any agreement to insure, hold harmless, or indemnify a party
to such agreement for any liability under this section.
(ii) No bar to cause of action
Nothing in this subsection, including the provisions of
clause (i) of this subparagraph, shall bar a cause of action
that an owner or operator or any other person subject to
liability under this section, or a guarantor, has or would
have, by reason of subrogation or otherwise against any
person.
(D) Facility
For purposes of this paragraph, the term "facility" means,
with respect to any owner or operator, all underground storage
tanks used for the storage of petroleum which are owned or
operated by such owner or operator and located on a single
parcel of property (or on any contiguous or adjacent property).
(E) Inability or limited ability to pay
(i) In general
In determining the level of recovery effort, or amount that
should be recovered, the Administrator (or the State pursuant
to paragraph (7)) shall consider the owner or operator's
ability to pay. An inability or limited ability to pay
corrective action costs must be demonstrated to the
Administrator (or the State pursuant to paragraph (7)) by the
owner or operator.
(ii) Considerations
In determining whether or not a demonstration is made under
clause (i), the Administrator (or the State pursuant to
paragraph (7)) shall take into consideration the ability of
the owner or operator to pay corrective action costs and
still maintain its basic business operations, including
consideration of the overall financial condition of the owner
or operator and demonstrable constraints on the ability of
the owner or operator to raise revenues.
(iii) Information
An owner or operator requesting consideration under this
subparagraph shall promptly provide the Administrator (or the
State pursuant to paragraph (7)) with all relevant
information needed to determine the ability of the owner or
operator to pay corrective action costs.
(iv) Alternative payment methods
The Administrator (or the State pursuant to paragraph (7))
shall consider alternative payment methods as may be
necessary or appropriate if the Administrator (or the State
pursuant to paragraph (7)) determines that an owner or
operator cannot pay all or a portion of the costs in a lump
sum payment.
(v) Misrepresentation
If an owner or operator provides false information or
otherwise misrepresents their financial situation under
clause (ii), the Administrator (or the State pursuant to
paragraph (7)) shall seek full recovery of the costs of all
such actions pursuant to the provisions of subparagraph (A)
without consideration of the factors in subparagraph (B).
(7) State authorities
(A) General
A State may exercise the authorities in paragraphs (1), (2),
and (12), subject to the terms and conditions of paragraphs
(3), (5), (9), (10), and (11), and the authority under sections
6991j and 6991k of this title and paragraphs (4), (6), and (8),
if -
(i) the Administrator determines that the State has the
capabilities to carry out effective corrective actions and
enforcement activities; and
(ii) the Administrator enters into a cooperative agreement
with the State setting out the actions to be undertaken by
the State.
The Administrator may provide funds from the Trust Fund for the
reasonable costs of the State's actions under the cooperative
agreement.
(B) Cost share
Following the effective date of the regulations under
subsection (c) of this section, the State shall pay 10 per
centum of the cost of corrective actions undertaken either by
the Administrator or by the State under a cooperative
agreement, except that the Administrator may take corrective
action at a facility where immediate action is necessary to
respond to an imminent and substantial endangerment to human
health or the environment if the State fails to pay the cost
share.
(8) Emergency procurement powers
Notwithstanding any other provision of law, the Administrator
may authorize the use of such emergency procurement powers as he
deems necessary.
(9) Definition of owner or operator
(A) In general
As used in this subchapter, the terms "owner" and "operator"
do not include a person that, without participating in the
management of an underground storage tank and otherwise not
engaged in petroleum production, refining, or marketing, holds
indicia of ownership primarily to protect the person's security
interest.
(B) Security interest holders
The provisions regarding holders of security interests in
subparagraphs (E) through (G) of section 9601(20) of this title
and the provisions regarding fiduciaries at section 9607(n) of
this title shall apply in determining a person's liability as
an owner or operator of an underground storage tank for the
purposes of this subchapter.
(C) Effect on rule
Nothing in subparagraph (B) shall be construed as modifying
or affecting the final rule issued by the Administrator on
September 7, 1995 (60 Fed. Reg. 46,692), or as limiting the
authority of the Administrator to amend the final rule, in
accordance with applicable law. The final rule in effect on
September 30, 1996, shall prevail over any inconsistent
provision regarding holders of security interests in
subparagraphs (E) through (G) of section 9601(20) of this title
or any inconsistent provision regarding fiduciaries in section
9607(n) of this title. Any amendment to the final rule shall be
consistent with the provisions regarding holders of security
interests in subparagraphs (E) through (G) of section 9601(20)
of this title and the provisions regarding fiduciaries in
section 9607(n) of this title. This subparagraph does not
preclude judicial review of any amendment of the final rule
made after September 30, 1996.
(10) Definition of exposure assessment
As used in this subsection, the term "exposure assessment"
means an assessment to determine the extent of exposure of, or
potential for exposure of, individuals to petroleum from a
release from an underground storage tank based on such factors as
the nature and extent of contamination and the existence of or
potential for pathways of human exposure (including ground or
surface water contamination, air emissions, and food chain
contamination), the size of the community within the likely
pathways of exposure, and the comparison of expected human
exposure levels to the short-term and long-term health effects
associated with identified contaminants and any available
recommended exposure or tolerance limits for such contaminants.
Such assessment shall not delay corrective action to abate
immediate hazards or reduce exposure.
(11) Facilities without financial responsibility
At any facility where the owner or operator has failed to
maintain evidence of financial responsibility in amounts at least
equal to the amounts established by subsection (d)(5)(A) of this
section (or a lesser amount if such amount is applicable to such
facility as a result of subsection (d)(5)(B) of this section) for
whatever reason the Administrator shall expend no monies from the
Trust Fund to clean up releases at such facility pursuant to the
provisions of paragraph (1) or (2) of this subsection. At such
facilities the Administrator shall use the authorities provided
in subparagraph (A) of paragraph (1) and paragraph (4) of this
subsection and section 6991e of this title to order corrective
action to clean up such releases. States acting pursuant to
paragraph (7) of this subsection shall use the authorities
provided in subparagraph (A) of paragraph (1) and paragraph (4)
of this subsection to order corrective action to clean up such
releases. Notwithstanding the provisions of this paragraph, the
Administrator may use monies from the fund to take the corrective
actions authorized by paragraph (5) of this subsection to protect
human health at such facilities and shall seek full recovery of
the costs of all such actions pursuant to the provisions of
paragraph (6)(A) of this subsection and without consideration of
the factors in paragraph (6)(B) of this subsection. Nothing in
this paragraph shall prevent the Administrator (or a State
pursuant to paragraph (7) of this subsection) from taking
corrective action at a facility where there is no solvent owner
or operator or where immediate action is necessary to respond to
an imminent and substantial endangerment of human health or the
environment.
(12) Remediation of oxygenated fuel contamination
(A) In general
The Administrator and the States may use funds made available
under section 6991m(2)(B) of this title to carry out corrective
actions with respect to a release of a fuel containing an
oxygenated fuel additive that presents a threat to human health
or welfare or the environment.
(B) Applicable authority
The Administrator or a State shall carry out subparagraph (A)
in accordance with paragraph (2), and in the case of a State,
in accordance with a cooperative agreement entered into by the
Administrator and the State under paragraph (7).
(i) Additional measures to protect groundwater from contamination
The Administrator shall require each State that receives funding
under this subchapter to require one of the following:
(1) Tank and piping secondary containment
(A) Each new underground storage tank, or piping connected to
any such new tank, installed after the effective date of this
subsection, or any existing underground storage tank, or existing
piping connected to such existing tank, that is replaced after
the effective date of this subsection, shall be secondarily
contained and monitored for leaks if the new or replaced
underground storage tank or piping is within 1,000 feet of any
existing community water system or any existing potable drinking
water well.
(B) In the case of a new underground storage tank system
consisting of one or more underground storage tanks and connected
by piping, subparagraph (A) shall apply to all underground
storage tanks and connected pipes comprising such system.
(C) In the case of a replacement of an existing underground
storage tank or existing piping connected to the underground
storage tank, subparagraph (A) shall apply only to the specific
underground storage tank or piping being replaced, not to other
underground storage tanks and connected pipes comprising such
system.
(D) Each installation of a new motor fuel dispenser system,
after the effective date of this subsection, shall include under-
dispenser spill containment if the new dispenser is within 1,000
feet of any existing community water system or any existing
potable drinking water well.
(E) This paragraph shall not apply to repairs to an underground
storage tank, piping, or dispenser that are meant to restore a
tank, pipe, or dispenser to operating condition.
(F) As used in this subsection:
(i) The term "secondarily contained" means a release
detection and prevention system that meets the requirements of
40 CFR 280.43(g), but shall not include under-dispenser spill
containment or control systems.
(ii) The term "underground storage tank" has the meaning
given to it in section 6991 of this title, except that such
term does not include tank combinations or more than a single
underground pipe connected to a tank.
(iii) The term "installation of a new motor fuel dispenser
system" means the installation of a new motor fuel dispenser
and the equipment necessary to connect the dispenser to the
underground storage tank system, but does not mean the
installation of a motor fuel dispenser installed separately
from the equipment need to connect the dispenser to the
underground storage tank system.
(2) Evidence of financial responsibility and certification
(A) Manufacturer and installer financial responsibility
A person that manufactures an underground storage tank or
piping for an underground storage tank system or that installs
an underground storage tank system is required to maintain
evidence of financial responsibility under subsection (d) of
this section in order to provide for the costs of corrective
actions directly related to releases caused by improper
manufacture or installation unless the person can demonstrate
themselves (!1) to be already covered as an owner or operator
of an underground storage tank under this section.
(B) Installer certification
The Administrator and each State that receives funding under
this subchapter, as appropriate, shall require that a person
that installs an underground storage tank system is -
(i) certified or licensed by the tank and piping
manufacturer;
(ii) certified or licensed by the Administrator or a State,
as appropriate;
(iii) has their (!1) underground storage tank system
installation certified by a registered professional engineer
with education and experience in underground storage tank
system installation;
(iv) has had their (!1) installation of the underground
storage tank inspected and approved by the Administrator or
the State, as appropriate;
(v) compliant with a code of practice developed by a
nationally recognized association or independent testing
laboratory and in accordance with the manufacturer's
instructions; or
(vi) compliant with another method that is determined by
the Administrator or a State, as appropriate, to be no less
protective of human health and the environment.
(C) Savings clause
Nothing in subparagraph (A) alters or affects the liability
of any owner or operator of an underground storage tank.
(j) Government-owned tanks
(1) State compliance report
(A) Not later than 2 years after August 8, 2005, each State
that receives funding under this subchapter shall submit to the
Administrator a State compliance report that -
(i) lists the location and owner of each underground storage
tank described in subparagraph (B) in the State that, as of the
date of submission of the report, is not in compliance with
this section; and
(ii) specifies the date of the last inspection and describes
the actions that have been and will be taken to ensure
compliance of the underground storage tank listed under clause
(i) with this subchapter.
(B) An underground storage tank described in this subparagraph
is an underground storage tank that is -
(i) regulated under this subchapter; and
(ii) owned or operated by the Federal, State, or local
government.
(C) The Administrator shall make each report, received under
subparagraph (A), available to the public through an appropriate
media.(!2)
(2) Financial incentive
The Administrator may award to a State that develops a report
described in paragraph (1), in addition to any other funds that
the State is entitled to receive under this subchapter, not more
than $50,000, to be used to carry out the report.
(3) Not a safe harbor
This subsection does not relieve any person from any obligation
or requirement under this subchapter.