Liability For Releases From Storage Tanks
The person responsible for cleaning up a petroleum release and/or complying with other regulatory and statutory requirements depends upon several factors. As a general rule, the responsible person is the owner or operator of an underground storage tank (UST) on the date that the release is reported to DEQ. For an aboveground storage tank (AST) discharge, the responsible person is the operator of an aboveground facility from which a discharge has occurred or the person who discharged or caused or permitted a discharge to occur. Differences in the statutory provisions governing USTs and ASTs make it necessary to consider each type of tank separately when identifying who is responsible for a release.
Requirements for USTs are established by Article 9 of State Water Control Law and the UST Technical Regulation (9 VAC 25-580-10 et seq.). The responsible person for releases from regulated, deferred, partially deferred, and excluded USTs (as defined in the UST Technical Regulation) is the owner and/or operator of the UST on the date that the release is reported to or discovered by DEQ. UST owners and operators are equally liable for the cleanup under State Water Control Law. As a procedural matter, the UST owner, who is usually identified on the UST Notification Form (7530-2) on file with DEQ, is typically expected to conduct the cleanup of a release. However, the UST operator may be required to conduct the cleanup in those instances where (1) the operator's conduct is the sole or primary cause of the petroleum release, (2) the owner has been determined to be unable to pay, or (3) the UST owner is a person or an entity that no longer exists or cannot be found.
When a release from a regulated, deferred, partially deferred, or excluded UST is reported to or discovered by DEQ, DEQ staff will perform a the responsible person analysis based upon the following presumptions:
1. The release from the UST is presumed to have occurred at the time of discovery by DEQ or the date that the release is reported to DEQ, whichever is earlier.
2. The UST owner listed on the UST Notification Form (7530-2) is the person responsible for the cleanup and compliance with the UST Technical Regulation. Generally, the owner listed on the Notification Form is the responsible person regardless of whether this person used the UST.
3. If DEQ has not received a Notification Form, the current landowner is presumed to be the UST owner.
Discharges of oil from ASTs and those USTs that are exempt from the UST Technical Regulation (such as heating oil tanks) are governed by Article 11 of State Water Control Law. Under Article 11, the person(s) responsible for cleaning up a discharge of oil are the person discharging, causing, or permitting the discharge and any operator of the facility from which the discharge occurred. Article 11 differs from Article 9 and the UST Technical Regulation in that a person who causes a discharge (sometimes called the “spiller”) is also liable to conduct a cleanup, even if the spiller neither owns nor operates the facility where the discharge occurred. ( Additionally, the definition of operator in Article 11 includes more entities than the Article 9 definition of operator. ) Under Article 11, the person who caused or permitted the discharge (the spiller) and the facility operator are equally liable. Where the spiller and the operator are different persons, DEQ will first pursue the spiller. The following list shows the priority for assigning responsibility for an Article 11 discharge:
The person causing the discharge (the spiller);
The operator who is responsible for the day to day operation of the AST;
The AST owner;
The person who owns the land where the AST is located;
Another person (depending upon information presented to and obtained by DEQ.
For additional information about DEQ procedures related to responsible persons, please see Chapter 3 of the Storage Tank Program Technical Manual.