[The following is an excerpted from “Environmental Liability: Managing Environmental Risks in Corporate, Real Estate and Brownfield Transactions” written by Larry Schnapf and published by Lexis Law Publishing]

Underground Storage Tank Program

	One of the major gaps in the regulation of hazardous waste has been ground-water contamination from leading underground storage tanks (UST).  In the early 1980's, the EPA has estimated that nearly 30 percent of the approximately two million underground storage tank systems in operation across the country were leaking but since most of these USTs were releasing gasoline, the EPA could not require cleanups under CERCLA because petroleum and its fractions were not regulated by that law.  Furthermore, since the USTs contained products and not wastes, the EPA could not regulate them under RCRA.  While many states and towns had developed standards for underground storage talk systems, these were based on fire code regulations that were concerned with preventing fires or explosions and not with groundwater contamination.
	As a result, Congress added Subtitle I when it adopted HSWA, which created a self-contained regulatory program for underground storage tanks.  A UST mini-superfund was added by SARA in 1986, which authorized the EPA to cleanup releases from abandoned gasoline tanks. The UST program applies to over 700,000 establishments, including gasoline stations, shopping centers, municipal and county facilities, airports, car rental agencies, trucking firms, heating oil companies, large apartment buildings, schools and other commercial operations where fuel or heating oil is stored in large quantities.
	Like the Subtitle C regulatory program, the EPA may authorize states to administer and enforce the Subtitle I underground storage tank regulatory program so long as those state programs are as stringent as the federal program  It is important to note that there may be significant differences between the state and federal design standards.  The deadlines for implementing those standards and the more common variances will be noted in each section.  Ironically, in many cases the strictest technical standards are being imposed not by the federal or state governments but, instead, by insurance carriers.
	The major components of the UST regulatory program are:

	(1)	design and construction standards for new UST systems and gradual upgrading of existing USTs to prevent releases of the UST contents into the environment, which are enforced by a registration and permit system;

	(2)	installation of monitoring devices to detect leaks into the environment;

	(3)	corrective action requirements to remediate releases;

	(4)	standards for deactivating UST systems; and

	(5)	financial reporting requirements.

	These requirements apply to owners and operators of UST systems.  The definition of "owner" includes any person who owns a UST system in use since November 8, 1984, or brought into use after that date for the purpose of storing, using or dispensing regulated substances.For USTs that were permanently taken out of operation prior November 8, 1984, the owner is the person who owned the tank immediately before it was taken out of service.  The RCRA UST program does contain a secured creditor's exemption similar to CERCLA's which excludes from the definition of "owner" persons holding indicia of ownership primarily to protect a security interest in the UST provided they are not involved in management of the tank or engaged in petroleum production, refining and marketing.
	The UST regulations define an "operator" a any person in control of or responsible for the daily operation of the tank system.  Thus, property managers may fall within the definition of operator.
	Since the federal UST program went into effect in 1988, approximately 907,000 USTs have been taken out of service. EPA estimates that 155,412 USTs were closed in fiscal year 1994 alone. Of the 1.41 million regulated USTs now believed to be in operation, it is estimated that as many as 1.1 million USTs will have to upgraded, replaced or closed to meet the 1998 federal design standards. The cost for bringing these USTs into compliance with the 1998 standards has been estimated to be as high as $12.5 billion. These figures do not include the 2.7 million heating oil USTs and motor fuel tanks located on farms or rural areas which are exempt from federal regulation. However, these tanks are considered regulated USTs under many state UST programs.
	A recent EPA study indicated that by the end of fiscal 1994, there had been 270,567 confirmed releases from since the inception of the UST program since with 209,797 corrective actions underway and 107,448 cleanups completed. It is believed that approximately 463,000 USTs will ultimately have to undergo cleanups. According to EPA and industry studies, UST cleanups are averaging between $100,000-$125,000 per site. 

Regulated USTs

	The UST regulations define a UST as a tank(s) and any associated piping that has at least ten percent of its volume underground and is used to store regulated substances.  A "regulated substance" is petroleum and any hazardous substance regulated by CERLCA, excluding RCRA hazardous wastes.
	The following tanks are statutorily excluded from the definition of UST:

	(1)	farm or residential tanks with a storage capacity of 1,100 gallons or less that are used to store motor fuel for non-commercial purposes;

	(2)	tanks used to store heating oil for use on the premises where the tanks are stored;

	(3)	septic tanks;

	(4)	pipelines and their gathering lines that are regulated by the Natural Gas Pipeline Safety Act of 1968 or the Hazardous Liquid Pipeline Act of 1979 or intrastate pipelines regulated under comparable state laws;

	(5)	surface impoundments, pits, ponds and lagoons;

	(6)	stormwater or wastewater collection systems;

	(7)	flow-through process tanks;

	(8)	liquid traps or associated gathering lines directly used in oil or gas production; and

	(9)	storage tanks located above ground but situated in below ground areas such as cellars and basements.

	In addition, the EPA has excluded the following tank systems from the UST regulatory program:

	(1)	any UST system holding RCRA wastes or mixtures of RCRA wastes;

	(2)	any wastewater treatment tank system (including oil-water separators) regulated by the CWA;

	(3)	equipment or machinery such as hydraulic lift tanks that contain regulated substances for operational purposes;

	(4)	any UST system with a capacity less than 110 gallons or that contains a de    minimis concentration of regulated substances; and

	(5)	any emergency overflow or spill containment system for UST, such as sumps and secondary barrier tanks, that is expeditiously emptied after use.

	Furthermore, the EPA has deferred additional categories of tanks from the design standards, notification and operating requirements, release detection and reporting provisions and closure requirements.  However, these tanks are subject to the corrective action and financial responsibility obligations, as well as certain interim standards.  The UST systems include:

	(1)	wastewater treatment tank systems not excluded from regulation;

	(2)	USTs containing radioactive materials regulated under the Atomic Energy Act of 1954 or that are part of an emergency generator system for a nuclear power generation facility regulated by the Nuclear Regulatory Commission;

	(3)	airport hydrant fuel distribution systems; and

	(4)	UST systems with field-constructed tanks.

	Significantly, most used oil USTs will be subject to the Subtitle I program.  However, USTs containing used oil that is used as a substitute for heating oil are excluded. 
	State UST programs may add or delete categories of USTs to the list of those that are federally regulated, so it is important for owners and operators to review the requirements of their state or local UST programs [Refer to section 4.29].

Notification Requirements

	Any owner who brings an UST system into use after May 8, 1986 is required to notify the EPA within 30 days after the tank comes into operation.  The owner must use the prescribed notification form.  In addition, owners and operators of new UST systems must certify in the notification form that they have complied with the various design standards, release detection and financial responsibility requirements, and also must have the installers certify that the UST system was installed in accordance with the applicable requirements.
	Owners of any inactive USTs remaining in the ground on May 8, 1986 that were taken out of operation after January 1, 1974 were required to submit an older form to the EPA, which contained information on when the tank was taken out of service as well as its age, location, size and the type of material that it contained.  Those who have failed to comply with this requirement may use the notification form prescribed by the regulations.  USTs that became non-operational between January 1, 1974 and November 8, 1984 had to be reported by the owner of the tank at the time the tank was removed from service.
	Beginning October 24, 1988, any person selling tanks for use in an UST system was required to notify the purchaser of its notification obligations.

Design and Construction Standards
	The federal UST program calls for a gradual retrofitting of existing USTs, which are defined as USTs installed on or before December 22, 1988, so that all existing USTs meet the new UST requirements by December 22, 1998,  The retrofitting must take place according to a phased-in schedule, with the oldest tanks having to comply first.  USTs that are not upgraded by the mandated deadline must be taken out of service in accordance with UST closure requirements.  Some state programs may require retrofitting on an accelerated basis.

	Corrosion Protection

	The leading cause of releases from USTs and their piping is corrosion.  USTs erode because the metal in the tanks attracts electrical current in the soil and corrodes in much the same way as a battery terminal.  The EPA has established national performance standards for new and existing UST systems designed to prevent corrosion.
	New USTs and associated piping must be constructed or coated with non-corrosive materials such as fiberglass or cathodically-protected to prevent corrosion or structural failure during their operational lifetimes.  The EPA has also issued interim design standards requiring that USTs that are deferred from regulation or that were installed prior to the publication of the final standards be equipped with anti-corrosion materials. However, all existing USTs will have to be retrofitted with corrosion protection or a fiberglass lining by December 22, 1998.
	Early retrofitting with corrosion protection could result in lower long-term operating costs because the USTs regulations provide for relaxed release detection requirements for USTs that meet the anti-corrosion requirements.    
	Spill and Overfill Protection

	In addition, because environmental contamination also occurs during filing tanks or dispensing their contents, the EPA requires new USTs to be equipped with spill and overfill prevention equipment.  The latter usually consists of an automatic shut-off value or an alarm that sounds when the tank is nearly full, while the former consists of a catch basin fitted to fill pipe, which contains spilled product and funnels it back into tank. 
	Furthermore, owners and operators of new USTs must certify that tanks and piping have been properly installed in accordance with nationally recognized practices. This certification must generally be filed 30 days within the date of UST installation although some states may require approval prior to installation.  New USTs storing hazardous substances must be equipped with secondary containment systems such as concrete vaults, double walls or alternative systems that will capture released regulated substances before they come into contact with the environment.
	For existing USTs, the spill and overfill protection equipment does not have to be installed prior until December, 1998 although some states may require earlier installation. Since spills and overflows are a common source of surficial soil contamination, early installation may reduce the need or the costs of corrective action.
Release Detection Requirements

	The aforementioned national performance standards are designed to prevent releases of regulated substances.  The leak detection provisions are intended to enable UST owners and operators to promptly discover leaks before substantial damage to the environment takes place.  Leak detection equipment can be the most expensive piece of equipment required by the national performance standards.
	The UST regulatory program requires new and existing USTs to be equipped with leak detection systems. The leak detection requirements differ for petroleum USTs and hazardous substance USTs.  For petroleum USTs, leak detection equipment requirements are to be phased-in by December 22, 1998, depending on the age of the tanks as follows: 
	Installation Date			Compliance Date
	Pre-1965 or unknown 			December 22, 1989 
	1965-1969 				December 22, 1990. 
	1970-1974				December 22, 1991
	1975-1979				December 22, 1992
	1980-1988				December 22, 1993

	Petroleum USTs that are not upgraded at the end of the ten-year phase-in period must be permanently closed. 	State programs may establish an accelerated implementation schedule for the installation of leak detection equipment.	

Release Detection Methods for USTs
	There are a number of release detection methods that owners and operators of USTs may use to meet the UST regulatory requirements. These options vary in price. For existing UST owners or operators, the availability of a particular options depends on whether the USTs meet the corrosion protection standards. 

Monthly Inventory Control 
	This is an internal leak detection method which attempts to detects leaks by identifying changes in the volume of product over time. The problem with this approach is that it can be unreliable with large or multi-UST systems and by the time a leak is suspected, a significant volume of product may have escaped into the environment. 
	This method usually involves taking daily readings and then reconciling the cumulative readings against month-end delivery receipts.If there is a discrepancy greater than one percent of flow through plus 130 gallons, a leak will be suspected and the release investigation procedures must be implemented.
	Because monthly inventory control may not be sensitive enough to detect certain kinds of leaks, the UST program does not allow owners or operators of existing tank systems to use this method as the sole form of release detection for USTs with an individual capacity above 550 gallons. Instead, UST owners and operators must use inventory control in conjunction with periodic tank tightness testing (discussed below). If the USTs meet the corrosion protection standards, then tank testing may be performed every five years. However, if the USTs do not have corrosion protection, then they must be tightness tested every year. In any event, after December 22, 1998 or ten years after the date of installation, whichever is later. While the federal program allows for monthly inventory control using dipstick coupled with annual tank testing, states frequently require the installation leak detection equipment capable of continuous monitoring. 
	For tanks with a capacity below 2,000 gallons, the daily reading may be obtained using a dip stick calibrated to at least one-eighth of an inch.  The dipstick will be used to determine to measure inventory levels twice over a period of time when product is neither added or removed. While this is the cheapest release detection method, it is not sensitive to minor leaks and is subject to human error so it may not be an accurate predictor of leaks.
	A more accurate daily inventory control method is an automatic tank guaging device which can detect a leak of .2 gallon per hour with 95% accuracy. These devices are costly and can exceed $10,000.  

Tank Tightness or Integrity Testing
	This is another internal leak detection method and encompasses approximately two dozen different proprietary testing techniques which attempt to detect UST leaks by putting the UST system under pressure. The tightness test must be capable of detecting a leak rate of 0.1 gallons per hour with 95 percent accuracy, which means that even a tank that tests "tight" may still leak over 400 gallons a year. An EPA study indicated that only 3 of the 25 integrity tests that are available were able to meet this leak rate detection standard. Therefore, this method of leak detection must be performed in conjunction with inventory controls.
	With this method, the tank is generally filled with product and and then placed under pressure. Changes in volume are then measured by the test operator who must because it must take into account thermal expansion, vapor pockets, evaporation, condensation, tank deformation and other physical characteristics of the system. The product usually must be placed in the tank 24 hours before the test is to be conducted to make sure that the product has a uniform temperature. Sometimes, vapor pockets can develop if the tank has settled unevenly. In addition, it is important that the fill line be tested along with the tank itself since a defective line or valve can produce a failure reading.  
	The test generally costs about $1,000 per tank plus the cost of the product. This latter cost is often an expense that owners or operators are reluctant to incur especially where the UST is rarely used. 

C. Monthly Vapor Monitoring

	This is an external leak detection technique which involves the installation of "dry" monitoring wells that do not intersect the water table.  The well can be monitored using hand-held sniffing devices or by installing continuous monitoring sensors. The cost of installing the vapor wells can exceed $5,000 per well depending on the depth of the well and monthly samplying costs may range from $250-$500 per sample depending on the constituents being analyzed.
	This method of leak detection does not work well with "tight" soils that do not easily surrender vapors and readings can be affected by soil moisture and naturally occurring background levels of contaminants. In addition, since it will only detect a leak after the soil has been contaminated¾the UST owner or operator may find out about the leak when it is too late to prevent costly corrective action measures. 

D.  Monthly Groundwater Monitoring
	This is another external leak detection method which involves installing a groundwater monitoring well and collecting monthly samples either by hand or by installing devices that continuously monitor the groundwater  This method may only be used for regulated substances that are immiscible (float) on water and must be used in permeable (porous) soil.  In addition, the water table must be no deeper than 20 feet to allow for rapid detection.  If the groundwater is too deep, there will be a long lag period before detection, during which time a greater quantity of material may be released.
	The cost of installing groundwater monitoring wells depends on the depth to the water table but is generally around $5,000 for a 20 foot well. The monthly laboratory costs may range as high as $1,500 per month.  
	Like vapor monitoring, this method will only detect a leak after the groundwater has already been impacted and it is too late to avoid a costly cleanup, which may range from $50,000 to $500,000.

Interstitial Monitoring
	When USTs are constructed with a secondary containment or double-wall, monitoring sensors can be placed in the space between the UST and the second barrier, usually underneath and alongside the tank to detect releases.  This method provides the greatest protection because of the secondary barrier but because secondary containment is extremely expensive, it is generally used only when required by the EPA or local environmental authorities.
	Some states may require that all USTs be equipped with secondary containment or may only require secondary containment in environmentally sensitive areas (i.e., wetlands). Those states that do require extensive secondary containment features will distinguish between "leaks", which are discharges of regulated substances into the interstitial space between the tank and the secondary containment wall, and "releases", which are those discharges of regulated substances that actually escape into the environment. 

Release Detection Requirements for Piping
	The EPA has also promulgated release detection requirements for piping since it is believed that piping accounts for one-third of all releases from USTs.  Pressurized piping systems on new USTs must be equipped with automatic line leak detectors that contain flow restrictors or shutoffs and have either annual line tightness testing or monthly monitoring. For existing tanks with pressured piping, line leak detectors had to be installed by December 22, 1990.  Non-pressured piping must have a line tightness testing every three years or be subject to monthly monitoring.  Non-pressurized piping does not have to be equipped with release detection equipment if it meets certain design standards.   

	EPA did not rigorous enforce the leak detection compliance deadlines during the five year phase-in period since its enforcement resources were focused on corrective action. However, because of perceived non-compliance and weak state enforcement, EPA launched a major enforcement initiative in 1994 for non-compliance with the leak detection requirements. In some cases, penalties in excess of $500,000 were assessed against UST operators for leak detection violations. 

Release Reporting, Investigation and Confirmation

A. Release Reporting
	Under the federal UST program, owners and operators are required to report the following conditions to the EPA or delegated state environmental authority:  
	- Any spill or overfill releasing 25 or more gallons of petroleum or a reportable quantity of hazardous substance into the environment;
	- The discovery of a leak or release in the environment such as presence of free product or vapors in soil, nearby sewers or surface waters;
	- Unusual operating conditions (erratic behavior of dispensing equipment, sudden loss of product, unexplained presence of water in the tank, etc.) unless the owner/operator confirms that the equipment is malfunctioning and immediately institutes repairs; -- monitoring results that may indicate the presence of a release unless the owner/operator determines the monitoring equipment is malfunctioning and immediately undertakes repairs; and -- any other suspected releases.  

B. Confirmation of Suspected Releases-
	Unless corrective action is instituted, all suspected releases except those relating to malfunction equipment must be investigated within seven days to confirm if a release has taken place. This investigation may include both a tightness test and a site assessment where soil samples are collected and analyzed for the presence of contaminants. The location of the soil samples must take into account the nature of the regulated substance, the type of backfill, the nature of the alarm, depth to groundwater, etc. 
	The results of the investigation must be reported within seven days of the discovery of the suspected release. However, because some states are afraid of being overburdened by an excessive number of false positives, state programs may provide that a suspected release does not have to be reported until the release is confirmed after the seven-day period.

Release Response and Corrective Action

	The most significant aspect of the UST regulatory program is the requirement that owners and operators of UST systems take corrective action for releases of regulated substances.  Owners or operators of USTs that are excluded from regulations or own or operate USTs that contain RCRA wastes and are subject to the corrective action of section 3004(u) are not required to comply with these Subtitle I UST program standards.
		If a release into the groundwater, surface water or soil is confirmed, the release must be immediately reported an action must then be taken in two stages.  The initial response is immediate abatement action such as closing a leaking valve or line, emptying the UST of product to prevent further release into the environment, removing obviously contaminated soil or free product from the environment and otherwise mitigating fire, explosive or vapor hazards that may be posed by the release or the abatement activities.  Within 20 days after release confirmation, UST owners and operators must furnish the EPA with a report summarizing the initial abatement steps taken.
		The second phase of the UST corrective action is to conduct soil and ground-water investigations and long-term cleanup if necessary.  Within 45 days of the release confirmation, this information must be furnished in a site characterization report.  The EPA may also require the submission of a corrective action plan for remediation of the site.  Before a proposed corrective action plan may be approved, a public meeting must be held to allow the public to comment on the plan.  The EPA did not establish uniform cleanup levels for corrective action but relies on the states to develop site-specific cleanup levels.
	The costs of remediating soil depends on the policies of the states where the UST is located. Some states do not require the contaminated soil to be removed to a waste disposal facility but, instead allow moderately contaminated soils it to be managed on-site. In such circumstances, the UST owner or operator would be allowed to excavate the contaminated soil and place it on plastic sheets. The soil would then be covered with plastic to prevent rainwater from leaching out contaminants. The soil would be periodically turned over to allow the contaminants to volatize or allow bacteria in the soil to breakdown the petroleum hydrocarbons. Once contaminant levels have reached acceeptable levels, the soil may be placed back in the ground. The cost for managing moderately contaminated soils from relatively small releases can range from $20,000 to $50,000.
	If there are high level of contamination or widespread contamination, then the soil will probably have to disposed offsite at a landfill or other treatment facility. The cost of off-site disposal can range from $100-$300 per cubic yard depending on the level of contamination.  In a typical UST cleanup, a single tank can contaminate 300-500 cubic yards of soil, which means that soil remediation costs can range between $50,000-100,000 per tank, excluding sampling costs and tank removal. Groundwater remediation can range from $50,000- $500,000.
	Because many states have set up trust funds which reimburse owners and operators of USTs for their corrective actions costs, UST owners and operators should not ensure that the corrective action meets states cleanup standards but whatever additional conditions may have been established by the UST trust funds for determining reimbursement eligibility. 

Out-of-Service USTs and Closure Requirements

	The federal UST program establishes procedures for temporary closure, change-in-service and permanent closure of UST systems.

Temporary Closure
	USTs are subject to temporary closure if they are closed for a maximum of 12 months.  When an UST become non-operational for less than three months, owners and operators must maintain anti-corrosion protection and continue release detection although the latter requirement will not be required if the UST is empty (i.e., all materials have been removed so that no more than one inch of residue or 0.3 percent by weight of the total system capacity remains in the system.)  If an UST is to be temporarily closed for more than three months, additional measures must be taken, such as securing certain ancillary equipment.  USTs that are temporarily closed for more than 12 months and do not meet the performance standards for new or upgraded USTs must be permanently closed unless and extension is received from the appropriate agency. Some states allow USTs to be temporarily closed for a longer period of time.
Permanent Closure
	When USTs are to be permanently removed from service, the owners and operators must provide the EPA with at least 30 days' notice unless the action is in response to corrective action. In addition, many states do not require advance notice for initiating tank closure procedures.
	To permanently close or make a change-in-service of a tank, the owners and operators must empty and remove all liquids and accumulated sludges and the decommissioned tanks either must be removed from the ground or filled with inert solid material.  While the federal rules permit tanks to be left in the ground after they are decommissioned, many states require that the tanks be removed when closure takes place unless it is impractical such as removal would jeporadize a building structure or the UST is located underneath a building. Some states may require the preparation of a closure plan similar to that required by Subtitle C. 
	Before closure, however, a site investigation must be completed to determine the presence of contamination.  If contaminated soils, groundwater or free product is discovered, corrective action must be undertaken.  An owner or operator of an UST system that was permanently closed prior to December 22, 1988 may be required to perform a site assessment and undergo closure in accordance with the UST program if the agency decides that the UST poses a threat to human health or the environment.
Change-in-Service
	If a UST has been taken out of service without undergoing permanent closure and is then used to store non-regulated substances, such use will be considered a change-in-service. Owners and operators intending a change-in-service will have to comply with the UST closure requirements including providing 30 days' notice of such intent, removing all liquids and accumulated sludges and performing a site assessment.

Financial Responsibility Requirements

	Because most USTs are owned by small businesses with limited assets, Congress required owners or operators of USTs to demonstrate that they have the financial resources to take any corrective action that may be required under Subtitle I and be able to compensate third parties for bodily injury or property damage cause by releases of petroleum from USTs.  The UST regulations establish a schedule for complying with the financial responsibility requirements.  The largest USTs were to be in compliance by July 24, 1989 while the deadline for the smallest operators was originally October 26, 1990. However, because affordable insurance was largely unavailable to the smaller tank owners/operators (those with 100 or less tanks) when the October 1990 financial assurance deadline approached, the EPA agreed to extend the compliance period to December 31, 1993.
	The federal UST financial assurance requirements for each owner or operator of a petroleum UST is as follows:
	-$500,000 per occurrence for petroleum USTs handling an average of less than 10,000 gallons per month;
	-$1 million per occurrence for UST systems dispensing at least 10,000 gallons of petroleum per month; 
	- Maintaince of an annual aggregate of $1 million for owners of 100 USTs or less; and 
	- Maintenance of an annual aggregate of $2 million for all other owners .
	This financial responsibility requirement may be satisfied by using financial mechanisms such as liability insurance, self-insurance if certain financial tests are met, corporate guarantee, surety bond, letters of credit, surety bond, trust fund, standby trust fund or alternative financial assurances.  If the owner or operator are separate persons, only one is required to obtain the financial assurance.
	If an owner, operator or guarantor is named as a debtor in voluntary or involuntary bankruptcy proceedings commenced under Title 11 of the Bankruptcy Code, the EPA must be notified within ten days of the commencement of the bankruptcy proceeding.
	The EPA has determined that owners and operators of USTs may satisfy their financial assurance requirements where states have established state trust funds that EPA has determined will meet the potential corrective action costs and liability to third parties [Refer to section 4.30 below]. 
4.28 Federal UST Leaking Underground Storage Tank Fund
	The Leaking Underground Storage Tank ("LUST") Trust Fund was established in 1986 as part of SARA to finance corrective action for releases of petroleum.  The LUST trust fund currently contains about $800 million and some of it has been set aside to help states finance their UST trust funds. To receive money from the LUST trust fund, a state must enter into a memorandum of agreement with the EPA in which the states must agree to assume certain administrative and enforcement responsibilities. 
	The LUST trust fund may not be used until the EPA or designated state official determines that the funds are necessary to protect human health and the environment and one of the following circumstances occurs:

	(1)	the owner or operator is unidentifiable;

	(2)	the required corrective action exceeds the financial resources of the owner and operator;

	(3)	the owner or operator is unwilling or unable to comply with a corrective action order; and

	(4)	the conditions require prompt action to protect human health and the environment.

	Owners or operators of USTs from which releases have occurred are strictly liable for funds dispersed from the LUST Trust Fund.	

State Administration of the RCRA UST Program

		Like other federal environmental programs, states may be delegated the authority to administer their own UST program lieu of the federal program so long as the state programs impose requirements that are at least as stringent as the federal requirements and provide for adequate enforcement. When EPA grants approval to a state to operate the state UST program in lieu of the federal UST program, EPA will generally reserve its right to undertake inspections and commence enforcement actions in the approved states. If EPA does exercise its enforcement perogative, any enforcement action will be implemented pursuant to federal authority and procedures rather than the authority or procedures established by the approved state. Where a state has provisions in its approved UST program that are "broader in scope" than the federal program (e.g. regulation of home heating oil USTs), EPA will not be able to exercise its enforcement perogative for those broader provisions. 
	If a state program has received EPA approval, owners and operators in that state only have to comply with the requirements of the state program.  Otherwise, in those states that are not EPA approved, owners and operators have to comply with both the Federal and State program requirements. Some states have only received partial delegation so that portions of the federal UST program may be administered by the particular state (e.g. financial assurance) while other aspects of the UST program will be enforced by the EPA (e.g. corrective action, leak detection, closure).
	The most common area where state programs may be broader than the federal program is the the kinds of USTs that are regulated. While 29 states regulate the same kinds of USTs covered by the federal program, 21 have broader programs which regulate a larger universe of USTs. The most important of these are motor fuel and heating oil USTs. 

Enforcement

	The Subtitle I program has its own enforcement provisions.  The EPA may issue administrative orders similar to the compliance orders of section 3008, which require specific compliance steps and an administrative penalty of up to $25,000 per day for each day of continued non-compliance, or may commence civil actions.  Owners will be liable for penalties of up to $10,000 per tank for knowingly failing to provide information or submitting false information regarding tank notifications.  In addition, owners or operators who fail to comply with design standards will be subject to a penalty of up to $10,000 per day for each day of non-compliance.  If the financial responsibility requirements were satisfied by a guarantee, the guarantor will be liable to the EPA for any claims of the UST owners or operators that cannot be satisfied.
 
(c) copyright 1999 Lawrence P. Schnapf