Underground Storage Tanks Program overview
The Virginia Department of Environmental Quality implements the UST program under Article 9 of State Water Control Law. Article 9, first enacted in 1987, enables DEQ to receive UST notifications, receive federal grant funds, develop regulations, conduct cleanups, and provide overall supervision of UST activities in the state. The technical requirements for USTs are included in Virginia regulation 9 VAC 25-580 et seq. entitled "Underground Storage Tanks: Technical Standards and Corrective Action Requirements."
The financial responsibility requirements for USTs are found in Virginia Regulation 9 VAC 25-590 et seq. entitled "Virginia Petroleum Underground Storage Tanks Financial Responsibility Requirements Regulation." State housing law Section 36-99.6 provides for local code officials to permit and inspect UST installations, upgrades, repairs, and closures statewide in support of the program. In Virginia there were some 75,000 USTs (19,000 active) at 25,000 facilities with some 3,000 owners. VA-DEQ maintains the notification records for USTs and receives annual federal grant funding to support the program. In general, after December 22, 1998 all regulated USTs must have spill containment provisions at the fill pipe; overfill devices to alert the owner when overfills may occur; corrosion protection on both tank and product lines; release detection on both tank and product lines; and, financial responsibility.
UST Pollution Prevention
Except in a few instances, Federal regulations prior to 1984 did not address underground storage tanks (UST) systems. The Resource Conservation and Recovery Act (RCRA) of 1976 regulated only tanks containing hazardous wastes, not tanks storing petroleum or hazardous products. The Clean Water Act (CWA) of 1972 required owners of large underground tanks (greater than 42,000 gallons) to take certain measures to prevent corrosion and to test tanks periodically. These requirements, however, applied only to those tanks that were potentially direct sources of pollution into navigable waters. Because releases from USTs generally contaminated only groundwater, and usually affect surface water only indirectly, the CWA could not be used as a general basis for regulating most USTs. The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980, commonly known as Superfund, authorized EPA to respond whenever a hazardous substance is released into the environment. Superfund, however, cannot be used to respond to releases from UST systems because petroleum is specifically excluded from the list of hazardous substances defined under CERCLA.
In 1984, Congress prepared amendments to RCRA that would address the problems of leaking UST systems. In October 1984, Congress passed a final version of the Hazardous and Solid Waste Amendments (HSWA) to RCRA. In November 1984, President Reagan signed the amendments into law. Title IV of the Amendments added Subtitle I (sections 9001 through 9010) which specifically provided for regulation of UST systems.
Subtitle I includes requirements for tank notification, interim prohibition, new tank standards, reporting and record-keeping requirements for existing tanks, corrective action, financial responsibility, compliance monitoring and enforcement, and approval of State programs. The law also requires EPA to develop a comprehensive program for the regulation of UST systems "as may be necessary to protect human health and the environment."
The Office of Underground Storage Tanks (OUST) was created in 1985 as part of EPA's Office of Solid Waste and Emergency Response (OSWER) to carry out the Congressional mandate to develop and implement a new regulatory program for UST systems. OUST has two divisions: The Policy and Standards Division and the Implementation Division. OUST is charged with developing regulations for UST systems in the areas of technical standards for tanks, financial responsibility, and state program approval.
In 1986, Congress passed the Superfund Amendments Reauthorization Act (SARA) which amended Subtitle I to provide Federal funds for corrective actions on petroleum releases from UST systems. This amendment established the Leaking Underground Storage Tank (LUST) Trust Fund, commonly known as the "LUST Trust Fund". On September 23, 1988, EPA published the final technical regulations for tanks. On October 26, 1988, EPA published the financial responsibility regulations, indicating the minimum levels of insurance UST owners and operators need to ensure that they can take "corrective action" in response to any leaks that occur from their UST systems and compensate anyone who is harmed by a release. Corrective action includes assessing the release and the extent of damage or danger to human health and the environment, determining what action is needed to repair any damage and remove contaminants, and taking the necessary remedial action (e.g., free product recovery, bioventing).
In 1984, President Reagan signed into law Subtitle I of RCRA creating the federal Underground Storage Tank (UST) Program. On May 8, 1985 the federal Interim Prohibition became effective banning nationwide, the installation of corrodible tanks and piping until final federal regulations became effective (December 22, 1988). Since May 8, 1986 each existing UST, any new USTs, any changes to USTs and any closure of USTs must be reported to the DEQ on the new official UST Notification forms. Thus far, the DEQ has received over 25,000 facility forms representing over 75,000 USTs (active and closed).
In 1986 (and reauthorized in 1990), Congress amended RCRA to create the federal Leaking Underground Storage Tank Fund (LUST Fund) with $1 billion from a 1/10 cent per gallon gasoline tax for the purpose of cleaning up petroleum UST leak sites nationwide. Many more sites are being prioritized for future cleanup actions. There have been over 11,000 leaking tank sites reported to DEQ to date.
Effective July 1, 1987, the Virginia General Assembly created Articles 9 & 10 of the Water Control Law (Sections 62.1-44.34:8-12) which gave the DEQ general supervision of USTs, set financial responsibility requirements, and established the Virginia Underground Petroleum Storage Tank Fund (State Cleanup Fund). The Virginia law initially went further than EPA by regulating as USTs all heating oil USTs with a capacity greater than 5,000 gallons, but this was rescinded July 1, 1996 by the General Assembly. The Virginia law requires that owners/operators notify the DEQ of all USTs taken out of use before January 1, 1974, yet still in the ground. Also effective as a State law change on July 1, 1987 (Sec. 36-99.6), the Department of Housing and Community Development, through the local building/fire inspectors, were given the task of permitting and inspecting the installations, upgrades, repairs, and closures of USTs. These actions are also referenced in the Virginia UST Technical Regulation.
On September 23, 1988 EPA published in the Federal Register the final federal UST Technical Regulations that took effect on December 22, 1988. Generally, these require new systems to have non-corrodible tanks and piping , overfill and spill prevention devices, and leak detection . USTs in use before that date were given 10 years (until 1998) to upgrade to the new UST standards for non-corrodible tanks and piping and overfill and spill prevention devices, but leak detection must have been initiated during a five year period from 1989 to 1993 based on tank age. USTs installed prior to 1965 or of unknown age must have had leak detection installed during 1989; those installed from 1965-1969 during 1990; from 1970-1974 during 1991; from 1975-1979 during 1992; from 1980-1988 during 1993. Leak detection must be continued indefinitely on a monthly basis. Due to a greater incidence of pressurized piping leaks, all pressurized piping nationwide must have begun leak detection by December 22, 1990.
Virginia's UST Technical Regulation which became effective October 25, 1989 is entitled "UST; Technical Standards and Corrective Action Requirements" (9 VAC 25-580-10 et seq.). The Virginia regulation is very similar to the federal regulation, except it requires notifications from owners of all regulated USTs that remain in the ground. The latest UST amendments effective September 15, 2010 incorporate the federal Energy Policy Act of 2005 requirements of secondary containment, delivery prohibition, and operator training.
EPA's final Financial Responsibility (FR) Regulation was published on October 26, 1988 and took effect January 24, 1989. It requires owners/operators of USTs containing petroleum to demonstrate evidence of financial responsibility in the amount of $1 million per occurrence for petroleum marketers/$500,000 for non-marketers to cover corrective action and third party liability costs for accidental petroleum releases from their USTs. You may do this using insurance or any of the other mechanisms permitted in the regulation. There was a 5 year phase-in of federal FR requirements based on the category of your business. Owners/operators of 13 or more USTs and non-marketers worth more than $20 million who report financial information to the Securities and Exchange Commission or Dun & Bradstreet were required to demonstrate FR. Owners/operators with 1-12 USTs, all other non-marketers, local government entities and petroleum storage tank vendors were not required to demonstrate FR until December 31, 1993. State law changes effective July 1, 1989 and the State FR Regulation entitled "Petroleum UST Financial Responsibility Requirements " (9 VAC 25-590-10 et seq.) effective May 9, 1990 required owners/operators to demonstrate financial responsibility of $50,000 for corrective action and $150,000 for third party liability. State law was amended effective July 1, 1992 to require all owners/operators to demonstrate financial responsibility based on the total annual gallons pumped through all regulated petroleum USTs owned and operated by them in Virginia. The sliding scale financial responsibility requirement ranges from $5,000 for corrective action and $15,000 for third party claims ($20,000 Annual Aggregate) to a maximum of $50,000 for corrective action and $150,000 for third party claims ($200,000 Annual Aggregate). Owners/operators may then use the Fund to demonstrate FR between the State financial responsibility requirement and $1 million to meet the federal requirement.
The federal regulations are the law of the land nationwide, and the DEQ and local building departments/fire officials implement them in Virginia for the EPA and under State law. There have been numerous policy calls over the years to EPA and Virginia which have been resolved within the context of the existing regulations.
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