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Although it may seem obvious that if you ever owned or operated an underground storage tank (UST) that you are responsible for compliance or cleanup in case of a leak, the fact is that many USTs have long and complicated histories, and identifying the responsible party when, for example, the tank had multiple owners is not always straightforward.
The EPA often draws its own conclusions in such cases. So, if you find yourself identified as a responsible party for a UST, there are some clues as to how that decision was arrived at in an EPA guidance document, Responsible Party Search Guide for the Underground Storage Tank Program.
Who Is, or Is Not, the Owner?
According to the EPA:
- The landowner is not always the UST owner.
- State law, including property law, may influence the definition of a UST owner and operator. State laws vary across the country. However, state UST requirements must be at least as strict as, and may be stricter than, federal requirements.
- If the EPA or a state uses site-specific Leaking Underground Storage Tank (LUST) Trust Fund money, the determination of an owner must be based on the federal statutory definition of “owner.”
Attend the Ethanol and Biodiesel in Your ASTs and USTs webinar on April 15 to learn how to prevent and respond to tank damage from alternative fuels. Learn more.
What the feds mean by UST “owner”
According to the federal definition of “owner” (42 USC 6991(4)), whether you are the owner of a particular UST is a matter of timing:
- In the case of a UST system in use on November 8, 1984, or brought into use after that date, an owner is any person who owns a UST system used for storage, use, or dispensing of regulated substances.
- In the case of any UST system in use before November 8, 1984, but no longer in use on that date, an owner is any person who owned the UST immediately before the discontinuation of its use.
A UST is considered in use if it is used to store or dispense a regulated substance. The “or” is important here because a UST just has to contain a regulated substance to be considered in use even if the potential owner did not dispense fuel or operate the UST system or cause any suspected contamination.
That is good enough reason to make sure that when you close a UST, you make sure it is empty according to the federal definition of “empty,” i.e., “when all materials have been removed using commonly employed practices so that no more than 2.5 cm (one inch) of residue, or 0.3 percent by weight of the total capacity of the UST system, remain in the system.” (40 CFR 280.70).
Also, there may have been multiple owners of USTs in use on or after
November 8, 1984, and, under the federal definition, an owner is not limited to only the most recent owner.
In cleanup cases, implementing agencies often try to identify the owners (or operators) from the time of a release. But there are other factors that an implementing agency may consider.
If the UST was taken out of service (i.e., not in use) before November 8, 1984, the only owner is the last person who owned it before it was taken out of service.
Ethanol and Biodiesel in Your ASTs and USTs: How to Prevent Corrosion and Achieve Compliance
Properly store alternative fuels in both aboveground and underground storage tanks while maintaining compliance with regulations. Register today!
Leases
USTs are generally considered fixtures or trade fixtures that belong to the landowner. However, in some states, USTs are not a fixture to the land. In such cases, UST ownership may be changed by entering into contracts or leases. If you are leasing land to someone who installs a UST, you may (repeat, may) be protected from liability if the lease clearly spells out the ownership of the UST, responsibility for the UST, and requirements of the lessee upon expiration of the lease in terms of closure and/or removal of the UST.