Authority: 42 U.S.C. 6912, 6991, 6991a, 6991b, 6991c, 6991d, 6991e, 6991f, 6991g, 6991h.
Source: 53 FR 37194, Sept. 23, 1988, unless otherwise noted.
(a) The requirements of this part apply to all owners and operators of an UST
system as defined in §280.12 except as otherwise provided in paragraphs (b),
(c), and (d) of this section. Any UST system listed in paragraph (c) of this
section must meet the requirements of §280.11.
(b) The following UST systems are excluded from the requirements of this
part:
(1) Any UST system holding hazardous wastes listed or identified under
Subtitle C of the Solid Waste Disposal Act, or a mixture of such hazardous waste
and other regulated substances.
(2) Any wastewater treatment tank system that is part of a wastewater
treatment facility regulated under section 402 or 307(b) of the Clean Water Act.
(3) Equipment or machinery that contains regulated substances for operational
purposes such as hydraulic lift tanks and electrical equipment tanks.
(4) Any UST system whose capacity is 110 gallons or less.
(5) Any UST system that contains a de minimis concentration of
regulated substances.
(6) Any emergency spill or overflow containment UST system that is
expeditiously emptied after use.
(c) Deferrals. Subparts B, C, D, E, and G do not apply to any of the
following types of UST systems:
(1) Wastewater treatment tank systems;
(2) Any UST systems containing radioactive material that are regulated under
the Atomic Energy Act of 1954 (42 U.S.C. 2011 and following);
(3) Any UST system that is part of an emergency generator system at nuclear
power generation facilities regulated by the Nuclear Regulatory Commission under
10 CFR part 50, appendix A;
(4) Airport hydrant fuel distribution systems; and
(5) UST systems with field-constructed tanks.
(d) Deferrals. Subpart D does not apply to any UST system that stores
fuel solely for use by emergency power generators.
(a) No person may install an UST system listed in §280.10(c) for the purpose
of storing regulated substances unless the UST system (whether of single- or
double-wall construction):
(1) Will prevent releases due to corrosion or structural failure for the
operational life of the UST system;
(2) Is cathodically protected against corrosion, constructed of noncorrodible
material, steel clad with a noncorrodible material, or designed in a manner to
prevent the release or threatened release of any stored substance; and
(3) Is constructed or lined with material that is compatible with the stored
substance.
(b) Notwithstanding paragraph (a) of this section, an UST system without
corrosion protection may be installed at a site that is determined by a
corrosion expert not to be corrosive enough to cause it to have a release due to
corrosion during its operating life. Owners and operators must maintain records
that demonstrate compliance with the requirements of this paragraph for the
remaining life of the tank.
Note: The National Association of Corrosion Engineers Standard
RP-02-85, "Control of External Corrosion on Metallic Buried, Partially Buried,
or Submerged Liquid Storage Systems," may be used as guidance for complying with
paragraph (b) of this section.
Aboveground release means any release to the surface of the land or to
surface water. This includes, but is not limited to, releases from the
above-ground portion of an UST system and aboveground releases associated with
overfills and transfer operations as the regulated substance moves to or from an
UST system.
Ancillary equipment means any devices including, but not limited to,
such devices as piping, fittings, flanges, valves, and pumps used to distribute,
meter, or control the flow of regulated substances to and from an UST.
Belowground release means any release to the subsurface of the land
and to ground water. This includes, but is not limited to, releases from the
belowground portions of an underground storage tank system and belowground
releases associated with overfills and transfer operations as the regulated
substance moves to or from an underground storage tank.
Beneath the surface of the ground means beneath the ground surface or
otherwise covered with earthen materials.
Cathodic protection is a technique to prevent corrosion of a metal
surface by making that surface the cathode of an electrochemical cell. For
example, a tank system can be cathodically protected through the application of
either galvanic anodes or impressed current.
Cathodic protection tester means a person who can demonstrate an
understanding of the principles and measurements of all common types of cathodic
protection systems as applied to buried or submerged metal piping and tank
systems. At a minimum, such persons must have education and experience in soil
resistivity, stray current, structure-to-soil potential, and component
electrical isolation measurements of buried metal piping and tank systems.
CERCLA means the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980, as amended.
Compatible means the ability of two or more substances to maintain
their respective physical and chemical properties upon contact with one another
for the design life of the tank system under conditions likely to be encountered
in the UST.
Connected piping means all underground piping including valves,
elbows, joints, flanges, and flexible connectors attached to a tank system
through which regulated substances flow. For the purpose of determining how much
piping is connected to any individual UST system, the piping that joins two UST
systems should be allocated equally between them.
Consumptive use with respect to heating oil means consumed on the
premises.
Corrosion expert means a person who, by reason of thorough knowledge
of the physical sciences and the principles of engineering and mathematics
acquired by a professional education and related practical experience, is
qualified to engage in the practice of corrosion control on buried or submerged
metal piping systems and metal tanks. Such a person must be accredited or
certified as being qualified by the National Association of Corrosion Engineers
or be a registered professional engineer who has certification or licensing that
includes education and experience in corrosion control of buried or submerged
metal piping systems and metal tanks.
Dielectric material means a material that does not conduct direct
electrical current. Dielectric coatings are used to electrically isolate UST
systems from the surrounding soils. Dielectric bushings are used to electrically
isolate portions of the UST system (e.g., tank from piping).
Electrical equipment means underground equipment that contains
dielectric fluid that is necessary for the operation of equipment such as
transformers and buried electrical cable.
Excavation zone means the volume containing the tank system and
backfill material bounded by the ground surface, walls, and floor of the pit and
trenches into which the UST system is placed at the time of installation.
Existing tank system means a tank system used to contain an
accumulation of regulated substances or for which installation has commenced on
or before December 22, 1988. Installation is considered to have commenced if:
(a) The owner or operator has obtained all federal, state, and local
approvals or permits necessary to begin physical construction of the site or
installation of the tank system; and if,
(b)(1) Either a continuous on-site physical construction or installation
program has begun; or,
(2) The owner or operator has entered into contractual obligations -- which
cannot be cancelled or modified without substantial loss -- for physical
construction at the site or installation of the tank system to be completed
within a reasonable time.
Farm tank is a tank located on a tract of land devoted to the
production of crops or raising animals, including fish, and associated
residences and improvements. A farm tank must be located on the farm property.
"Farm" includes fish hatcheries, rangeland and nurseries with growing
operations.
Flow-through process tank is a tank that forms an integral part of a
production process through which there is a steady, variable, recurring, or
intermittent flow of materials during the operation of the process. Flow-through
process tanks do not include tanks used for the storage of materials prior to
their introduction into the production process or for the storage of finished
products or by-products from the production process.
Free product refers to a regulated substance that is present as a
non-aqueous phase liquid (e.g., liquid not dissolved in water.)
Gathering lines means any pipeline, equipment, facility, or building
used in the transportation of oil or gas during oil or gas production or
gathering operations.
Hazardous substance UST system means an underground storage tank
system that contains a hazardous substance defined in section 101(14) of the
Comprehensive Environmental Response, Compensation and Liability Act of 1980
(but not including any substance regulated as a hazardous waste under subtitle
C) or any mixture of such substances and petroleum, and which is not a petroleum
UST system.
Heating oil means petroleum that is No. 1, No. 2, No. 4 -- light, No.
4 -- heavy, No. 5 -- light, No. 5 -- heavy, and No. 6 technical grades of fuel
oil; other residual fuel oils (including Navy Special Fuel Oil and Bunker C);
and other fuels when used as substitutes for one of these fuel oils. Heating oil
is typically used in the operation of heating equipment, boilers, or furnaces.
Hydraulic lift tank means a tank holding hydraulic fluid for a
closed-loop mechanical system that uses compressed air or hydraulic fluid to
operate lifts, elevators, and other similar devices.
Implementing agency means EPA, or, in the case of a state with a
program approved under section 9004 (or pursuant to a memorandum of agreement
with EPA), the designated state or local agency responsible for carrying out an
approved UST program.
Liquid trap means sumps, well cellars, and other traps used in
association with oil and gas production, gathering, and extraction operations
(including gas production plants), for the purpose of collecting oil, water, and
other liquids. These liquid traps may temporarily collect liquids for subsequent
disposition or reinjection into a production or pipeline stream, or may collect
and separate liquids from a gas stream.
Maintenance means the normal operational upkeep to prevent an
underground storage tank system from releasing product.
Motor fuel means petroleum or a petroleum-based substance that is
motor gasoline, aviation gasoline, No. 1 or No. 2 diesel fuel, or any grade of
gasohol, and is typically used in the operation of a motor engine.
New tank system means a tank system that will be used to contain an
accumulation of regulated substances and for which installation has commenced
after December 22, 1988. (See also "Existing Tank System.")
Noncommercial purposes with respect to motor fuel means not for
resale.
On the premises where stored with respect to heating oil means UST
systems located on the same property where the stored heating oil is used.
Operational life refers to the period beginning when installation of
the tank system has commenced until the time the tank system is properly closed
under Subpart G.
Operator means any person in control of, or having responsibility for,
the daily operation of the UST system.
Overfill release is a release that occurs when a tank is filled beyond
its capacity, resulting in a discharge of the regulated substance to the
environment.
Owner means:
(a) In the case of an UST system in use on November 8, 1984, or brought into
use after that date, any person who owns an UST system used for storage, use, or
dispensing of regulated substances; and
(b) In the case of any UST system in use before November 8, 1984, but no
longer in use on that date, any person who owned such UST immediately before the
discontinuation of its use.
Person means an individual, trust, firm, joint stock company, Federal
agency, corporation, state, municipality, commission, political subdivision of a
state, or any interstate body. "Person" also includes a consortium, a joint
venture, a commercial entity, and the United States Government.
Petroleum UST system means an underground storage tank system that
contains petroleum or a mixture of petroleum with de minimis quantities
of other regulated substances. Such systems include those containing motor
fuels, jet fuels, distillate fuel oils, residual fuel oils, lubricants,
petroleum solvents, and used oils.
Pipe or Piping means a hollow cylinder or tubular conduit that
is constructed of non-earthen materials.
Pipeline facilities (including gathering lines) are new and existing
pipe rights-of-way and any associated equipment, facilities, or buildings.
Regulated substance means:
(a) Any substance defined in section 101(14) of the Comprehensive
Environmental Response, Compensation and Liability Act (CERCLA) of 1980 (but not
including any substance regulated as a hazardous waste under subtitle C), and
(b) Petroleum, including crude oil or any fraction thereof that is liquid at
standard conditions of temperature and pressure (60 degrees Fahrenheit and 14.7
pounds per square inch absolute).
The term "regulated substance" includes but is not limited to petroleum and
petroleum-based substances comprised of a complex blend of hydrocarbons derived
from crude oil though processes of separation, conversion, upgrading, and
finishing, such as motor fuels, jet fuels, distillate fuel oils, residual fuel
oils, lubricants, petroleum solvents, and used oils.
Release means any spilling, leaking, emitting, discharging, escaping,
leaching or disposing from an UST into ground water, surface water or subsurface
soils.
Release detection means determining whether a release of a regulated
substance has occurred from the UST system into the environment or into the
interstitial space between the UST system and its secondary barrier or secondary
containment around it.
Repair means to restore a tank or UST system component that has caused
a release of product from the UST system.
Residential tank is a tank located on property used primarily for
dwelling purposes.
SARA means the Superfund Amendments and Reauthorization Act of 1986.
Septic tank is a water-tight covered receptacle designed to receive or
process, through liquid separation or biological digestion, the sewage
discharged from a building sewer. The effluent from such receptacle is
distributed for disposal through the soil and settled solids and scum from the
tank are pumped out periodically and hauled to a treatment facility.
Storm-water or wastewater collection system means piping, pumps,
conduits, and any other equipment necessary to collect and transport the flow of
surface water run-off resulting from precipitation, or domestic, commercial, or
industrial wastewater to and from retention areas or any areas where treatment
is designated to occur. The collection of storm water and wastewater does not
include treatment except where incidental to conveyance.
Surface impoundment is a natural topographic depression, man-made
excavation, or diked area formed primarily of earthen materials (although it may
be lined with man-made materials) that is not an injection well.
Tank is a stationary device designed to contain an accumulation of
regulated substances and constructed of non-earthen materials (e.g., concrete,
steel, plastic) that provide structural support.
Underground area means an underground room, such as a basement,
cellar, shaft or vault, providing enough space for physical inspection of the
exterior of the tank situated on or above the surface of the floor.
Underground release means any belowground release.
Underground storage tank or UST means any one or combination of
tanks (including underground pipes connected thereto) that is used to contain an
accumulation of regulated substances, and the volume of which (including the
volume of underground pipes connected thereto) is 10 percent or more beneath the
surface of the ground. This term does not include any:
(a) Farm or residential tank of 1,100 gallons or less capacity used for
storing motor fuel for noncommercial purposes;
(b) Tank used for storing heating oil for consumptive use on the premises
where stored;
(c) Septic tank;
(d) Pipeline facility (including gathering lines) regulated under:
(1) The Natural Gas Pipeline Safety Act of 1968 (49 U.S.C. App. 1671, et
seq.), or
(2) The Hazardous Liquid Pipeline Safety Act of 1979 (49 U.S.C. App. 2001,
et seq.), or
(3) Which is an intrastate pipeline facility regulated under state laws
comparable to the provisions of the law referred to in paragraph (d)(1) or
(d)(2) of this definition;
(e) Surface impoundment, pit, pond, or lagoon;
(f) Storm-water or wastewater collection system;
(g) Flow-through process tank;
(h) Liquid trap or associated gathering lines directly related to oil or gas
production and gathering operations; or
(i) Storage tank situated in an underground area (such as a basement, cellar,
mineworking, drift, shaft, or tunnel) if the storage tank is situated upon or
above the surface of the floor.
The term "underground storage tank" or "UST" does not include any pipes
connected to any tank which is described in paragraphs (a) through (i) of this
definition.
Upgrade means the addition or retrofit of some systems such as
cathodic protection, lining, or spill and overfill controls to improve the
ability of an underground storage tank system to prevent the release of product.
UST system or Tank system means an underground storage tank,
connected underground piping, underground ancillary equipment, and containment
system, if any.
Wastewater treatment tank means a tank that is designed to receive and
treat an influent wastewater through physical, chemical, or biological methods.
In order to prevent releases due to structural failure, corrosion, or spills
and overfills for as long as the UST system is used to store regulated
substances, all owners and operators of new UST systems must meet the following
requirements.
(a) Tanks. Each tank must be properly designed and constructed, and
any portion underground that routinely contains product must be protected from
corrosion, in accordance with a code of practice developed by a nationally
recognized association or independent testing laboratory as specified below:
(1) The tank is constructed of fiberglass-reinforced plastic; or
Note: The following industry codes may be used to comply with
paragraph (a)(1) of this section: Underwriters Laboratories Standard 1316,
"Standard for Glass- Fiber-Reinforced Plastic Underground Storage Tanks for
Petroleum Products"; Underwriter's Laboratories of Canada CAN4-S615-M83,
"Standard for Reinforced Plastic Underground Tanks for Petroleum Products"; or
American Society of Testing and Materials Standard D4021-86, "Standard
Specification for Glass-Fiber-Reinforced Polyester Underground Petroleum Storage
Tanks."
(2) The tank is constructed of steel and cathodically protected in the
following manner:
(i) The tank is coated with a suitable dielectric material;
(ii) Field-installed cathodic protection systems are designed by a corrosion
expert;
(iii) Impressed current systems are designed to allow determination of
current operating status as required in §280.31(c); and
(iv) Cathodic protection systems are operated and maintained in accordance
with §280.31 or according to guidelines established by the implementing agency;
or
Note: The following codes and standards may be used to comply with
paragraph (a)(2) of this section:
(A) Steel Tank Institute "Specification for STI-P3 System of External
Corrosion Protection of Underground Steel Storage Tanks";
(B) Underwriters Laboratories Standard 1746, "Corrosion Protection Systems
for Underground Storage Tanks";
(C) Underwriters Laboratories of Canada CAN4-S603-M85, "Standard for Steel
Underground Tanks for Flammable and Combustible Liquids," and CAN4-G03.1-M85,
"Standard for Galvanic Corrosion Protection Systems for Underground Tanks for
Flammable and Combustible Liquids," and CAN4-S631-M84, "Isolating Bushings for
Steel Underground Tanks Protected with Coatings and Galvanic Systems"; or
(D) National Association of Corrosion Engineers Standard RP-02-85, "Control
of External Corrosion on Metallic Buried, Partially Buried, or Submerged Liquid
Storage Systems," and Underwriters Laboratories Standard 58, "Standard for Steel
Underground Tanks for Flammable and Combustible Liquids."
(3) The tank is constructed of a steel-fiberglass-reinforced-plastic
composite; or
Note: The following industry codes may be used to comply with
paragraph (a)(3) of this section: Underwriters Laboratories Standard 1746,
"Corrosion Protection Systems for Underground Storage Tanks," or the Association
for Composite Tanks ACT-100, "Specification for the Fabrication of FRP Clad
Underground Storage Tanks."
(4) The tank is constructed of metal without additional corrosion protection
measures provided that:
(i) The tank is installed at a site that is determined by a corrosion expert
not to be corrosive enough to cause it to have a release due to corrosion during
its operating life; and
(ii) Owners and operators maintain records that demonstrate compliance with
the requirements of paragraphs (a)(4)(i) for the remaining life of the tank; or
(5) The tank construction and corrosion protection are determined by the
implementing agency to be designed to prevent the release or threatened release
of any stored regulated substance in a manner that is no less protective of
human health and the environment than paragraphs (a) (1) through (4) of this
section.
(b) Piping. The piping that routinely contains regulated substances
and is in contact with the ground must be properly designed, constructed, and
protected from corrosion in accordance with a code of practice developed by a
nationally recognized association or independent testing laboratory as specified
below:
(1) The piping is constructed of fiberglass-reinforced plastic; or
Note: The following codes and standards may be used to comply with
paragraph (b)(1) of this section:
(A) Underwriters Laboratories Subject 971, "UL Listed Non-Metal Pipe";
(B) Underwriters Laboratories Standard 567, "Pipe Connectors for Flammable
and Combustible and LP Gas";
(C) Underwriters Laboratories of Canada Guide ULC-107, "Glass Fiber
Reinforced Plastic Pipe and Fittings for Flammable Liquids"; and
(D) Underwriters Laboratories of Canada Standard CAN 4-S633-M81, "Flexible
Underground Hose Connectors."
(2) The piping is constructed of steel and cathodically protected in the
following manner:
(i) The piping is coated with a suitable dielectric material;
(ii) Field-installed cathodic protection systems are designed by a corrosion
expert;
(iii) Impressed current systems are designed to allow determination of
current operating status as required in §280.31(c); and
(iv) Cathodic protection systems are operated and maintained in accordance
with §280.31 or guidelines established by the implementing agency; or
Note: The following codes and standards may be used to comply with
paragraph (b)(2) of this section:
(A) National Fire Protection Association Standard 30, "Flammable and
Combustible Liquids Code";
(B) American Petroleum Institute Publication 1615, "Installation of
Underground Petroleum Storage Systems";
(C) American Petroleum Institute Publication 1632, "Cathodic Protection of
Underground Petroleum Storage Tanks and Piping Systems"; and
(D) National Association of Corrosion Engineers Standard RP-01-69, "Control
of External Corrosion on Submerged Metallic Piping Systems."
(3) The piping is constructed of metal without additional corrosion
protection measures provided that:
(i) The piping is installed at a site that is determined by a corrosion
expert to not be corrosive enough to cause it to have a release due to corrosion
during its operating life; and
(ii) Owners and operators maintain records that demonstrate compliance with
the requirements of paragraph (b)(3)(i) of this section for the remaining life
of the piping; or
Note: National Fire Protection Association Standard 30, "Flammable and
Combustible Liquids Code"; and National Association of Corrosion Engineers
Standard RP-01-69, "Control of External Corrosion on Submerged Metallic Piping
Systems," may be used to comply with paragraph (b)(3) of this section.
(4) The piping construction and corrosion protection are determined by the
implementing agency to be designed to prevent the release or threatened release
of any stored regulated substance in a manner that is no less protective of
human health and the environment than the requirements in paragraphs (b) (1)
through (3) of this section.
(c) Spill and overfill prevention equipment. (1) Except as provided in
paragraph (c)(2) of this section, to prevent spilling and overfilling associated
with product transfer to the UST system, owners and operators must use the
following spill and overfill prevention equipment:
(i) Spill prevention equipment that will prevent release of product to the
environment when the transfer hose is detached from the fill pipe (for example,
a spill catchment basin); and
(ii) Overfill prevention equipment that will:
(A) Automatically shut off flow into the tank when the tank is no more than
95 percent full; or
(B) Alert the transfer operator when the tank is no more than 90 percent full
by restricting the flow into the tank or triggering a high-level alarm; or
(C) Restrict flow 30 minutes prior to overfilling, alert the operator with a
high level alarm one minute before overfilling, or automatically shut off flow
into the tank so that none of the fittings located on top of the tank are
exposed to product due to overfilling.
(2) Owners and operators are not required to use the spill and overfill
prevention equipment specified in paragraph (c)(1) of this section if:
(i) Alternative equipment is used that is determined by the implementing
agency to be no less protective of human health and the environment than the
equipment specified in paragraph (c)(1) (i) or (ii) of this section; or
(ii) The UST system is filled by transfers of no more than 25 gallons at one
time.
(d) Installation. All tanks and piping must be properly installed in
accordance with a code of practice developed by a nationally recognized
association or independent testing laboratory and in accordance with the
manufacturer's instructions.
Note: Tank and piping system installation practices and procedures
described in the following codes may be used to comply with the requirements of
paragraph (d) of this section:
(i) American Petroleum Institute Publication 1615, "Installation of
Underground Petroleum Storage System"; or
(ii) Petroleum Equipment Institute Publication RP100, "Recommended Practices
for Installation of Underground Liquid Storage Systems"; or
(iii) American National Standards Institute Standard B31.3, "Petroleum
Refinery Piping," and American National Standards Institute Standard B31.4
"Liquid Petroleum Transportation Piping System."
(e) Certification of installation. All owners and operators must
ensure that one or more of the following methods of certification, testing, or
inspection is used to demonstrate compliance with paragraph (d) of this section
by providing a certification of compliance on the UST notification form in
accordance with §280.22.
(1) The installer has been certified by the tank and piping manufacturers; or
(2) The installer has been certified or licensed by the implementing agency;
or
(3) The installation has been inspected and certified by a registered
professional engineer with education and experience in UST system installation;
or
(4) The installation has been inspected and approved by the implementing
agency; or
(5) All work listed in the manufacturer's installation checklists has been
completed; or
(6) The owner and operator have complied with another method for ensuring
compliance with paragraph (d) of this section that is determined by the
implementing agency to be no less protective of human health and the
environment.
[53 FR 37194, Sept. 23, 1988, as amended at 56 FR 38344, Aug. 13,
1991] (a) Alternatives allowed. Not later than December 22, 1998, all
existing UST systems must comply with one of the following requirements:
(1) New UST system performance standards under §280.20;
(2) The upgrading requirements in paragraphs (b) through (d) of this section;
or
(3) Closure requirements under subpart G of this part, including applicable
requirements for corrective action under subpart F.
(b) Tank upgrading requirements. Steel tanks must be upgraded to meet
one of the following requirements in accordance with a code of practice
developed by a nationally recognized association or independent testing
laboratory:
(1) Interior lining. A tank may be upgraded by internal lining if:
(i) The lining is installed in accordance with the requirements of §280.33,
and
(ii) Within 10 years after lining, and every 5 years thereafter, the lined
tank is internally inspected and found to be structurally sound with the lining
still performing in accordance with original design specifications.
(2) Cathodic protection. A tank may be upgraded by cathodic protection
if the cathodic protection system meets the requirements of §280.20(a)(2) (ii),
(iii), and (iv) and the integrity of the tank is ensured using one of the
following methods:
(i) The tank is internally inspected and assessed to ensure that the tank is
structurally sound and free of corrosion holes prior to installing the cathodic
protection system; or
(ii) The tank has been installed for less than 10 years and is monitored
monthly for releases in accordance with §280.43 (d) through (h); or
(iii) The tank has been installed for less than 10 years and is assessed for
corrosion holes by conducting two (2) tightness tests that meet the requirements
of §280.43(c). The first tightness test must be conducted prior to installing
the cathodic protection system. The second tightness test must be conducted
between three (3) and six (6) months following the first operation of the
cathodic protection system; or
(iv) The tank is assessed for corrosion holes by a method that is determined
by the implementing agency to prevent releases in a manner that is no less
protective of human health and the environment than paragraphs (b)(2) (i)
through (iii) of this section.
(3) Internal lining combined with cathodic protection. A tank may be
upgraded by both internal lining and cathodic protection if:
(i) The lining is installed in accordance with the requirements of §280.33;
and
(ii) The cathodic protection system meets the requirements of §280.20(a)(2)
(ii), (iii), and (iv).
Note: The following codes and standards may be used to comply with
this section:
(A) American Petroleum Institute Publication 1631, "Recommended Practice for
the Interior Lining of Existing Steel Underground Storage Tanks";
(B) National Leak Prevention Association Standard 631, "Spill Prevention,
Minimum 10 Year Life Extension of Existing Steel Underground Tanks by Lining
Without the Addition of Cathodic Protection";
(C) National Association of Corrosion Engineers Standard RP-02-85, "Control
of External Corrosion on Metallic Buried, Partially Buried, or Submerged Liquid
Storage Systems"; and
(D) American Petroleum Institute Publication 1632, "Cathodic Protection of
Underground Petroleum Storage Tanks and Piping Systems."
(c) Piping upgrading requirements. Metal piping that routinely
contains regulated substances and is in contact with the ground must be
cathodically protected in accordance with a code of practice developed by a
nationally recognized association or independent testing laboratory and must
meet the requirements of §280.20(b)(2) (ii), (iii), and (iv).
Note: The codes and standards listed in the note following
§280.20(b)(2) may be used to comply with this requirement.
(d) Spill and overfill prevention equipment. To prevent spilling and
overfilling associated with product transfer to the UST system, all existing UST
systems must comply with new UST system spill and overfill prevention equipment
requirements specified in §280.20(c).
(a) Any owner who brings an underground storage tank system into use after
May 8, 1986, must within 30 days of bringing such tank into use, submit, in the
form prescribed in appendix I of this part, a notice of existence of such tank
system to the state or local agency or department designated in appendix II of
this part to receive such notice. Note: Owners and operators of UST systems that were in the ground on
or after May 8, 1986, unless taken out of operation on or before January 1,
1974, were required to notify the designated state or local agency in accordance
with the Hazardous and Solid Waste Amendments of 1984, Pub. L. 98-616, on a form
published by EPA on November 8, 1985 (50 FR 46602) unless notice was given
pursuant to section 103(c) of CERCLA. Owners and operators who have not complied
with the notification requirements may use portions I through VI of the
notification form contained in appendix I of this part.
(b) In states where state law, regulations, or procedures require owners to
use forms that differ from those set forth in appendix I of this part to fulfill
the requirements of this section, the state forms may be submitted in lieu of
the forms set forth in Appendix I of this part. If a state requires that its
form be used in lieu of the form presented in this regulation, such form must
meet the requirements of section 9002.
(c) Owners required to submit notices under paragraph (a) of this section
must provide notices to the appropriate agencies or departments identified in
appendix II of this part for each tank they own. Owners may provide notice for
several tanks using one notification form, but owners who own tanks located at
more than one place of operation must file a separate notification form for each
separate place of operation.
(d) Notices required to be submitted under paragraph (a) of this section must
provide all of the information in sections I through VI of the prescribed form
(or appropriate state form) for each tank for which notice must be given.
Notices for tanks installed after December 22, 1988 must also provide all of the
information in section VII of the prescribed form (or appropriate state form)
for each tank for which notice must be given.
(e) All owners and operators of new UST systems must certify in the
notification form compliance with the following requirements:
(1) Installation of tanks and piping under §280.20(e);
(2) Cathodic protection of steel tanks and piping under §280.20 (a) and (b);
(3) Financial responsibility under subpart H of this part; and
(4) Release detection under §§280.41 and 280.42.
(f) All owners and operators of new UST systems must ensure that the
installer certifies in the notification form that the methods used to install
the tanks and piping complies with the requirements in §280.20(d).
(g) Beginning October 24, 1988, any person who sells a tank intended to be
used as an underground storage tank must notify the purchaser of such tank of
the owner's notification obligations under paragraph (a) of this section. The
form provided in appendix III of this part may be used to comply with this
requirement. (a) Owners and operators must ensure that releases due to spilling or
overfilling do not occur. The owner and operator must ensure that the volume
available in the tank is greater than the volume of product to be transferred to
the tank before the transfer is made and that the transfer operation is
monitored constantly to prevent overfilling and spilling.
Note: The transfer procedures described in National Fire Protection
Association Publication 385 may be used to comply with paragraph (a) of this
section. Further guidance on spill and overfill prevention appears in American
Petroleum Institute Publication 1621, "Recommended Practice for Bulk Liquid
Stock Control at Retail Outlets," and National Fire Protection Association
Standard 30, "Flammable and Combustible Liquids Code."
(b) The owner and operator must report, investigate, and clean up any spills
and overfills in accordance with §280.53.
All owners and operators of steel UST systems with corrosion protection must
comply with the following requirements to ensure that releases due to corrosion
are prevented for as long as the UST system is used to store regulated
substances:
(a) All corrosion protection systems must be operated and maintained to
continuously provide corrosion protection to the metal components of that
portion of the tank and piping that routinely contain regulated substances and
are in contact with the ground.
(b) All UST systems equipped with cathodic protection systems must be
inspected for proper operation by a qualified cathodic protection tester in
accordance with the following requirements:
(1) Frequency. All cathodic protection systems must be tested within 6
months of installation and at least every 3 years thereafter or according to
another reasonable time frame established by the implementing agency; and
(2) Inspection criteria. The criteria that are used to determine that
cathodic protection is adequate as required by this section must be in
accordance with a code of practice developed by a nationally recognized
association.
Note: National Association of Corrosion Engineers Standard RP-02-85,
"Control of External Corrosion on Metallic Buried, Partially Buried, or
Submerged Liquid Storage Systems," may be used to comply with paragraph (b)(2)
of this section.
(c) UST systems with impressed current cathodic protection systems must also
be inspected every 60 days to ensure the equipment is running properly.
(d) For UST systems using cathodic protection, records of the operation of
the cathodic protection must be maintained (in accordance with §280.34) to
demonstrate compliance with the performance standards in this section. These
records must provide the following:
(1) The results of the last three inspections required in paragraph (c) of
this section; and
(2) The results of testing from the last two inspections required in
paragraph (b) of this section.
Owners and operators must use an UST system made of or lined with materials
that are compatible with the substance stored in the UST system.
Note: Owners and operators storing alcohol blends may use the
following codes to comply with the requirements of this section:
(a) American Petroleum Institute Publication 1626, "Storing and Handling
Ethanol and Gasoline-Ethanol Blends at Distribution Terminals and Service
Stations"; and
(b) American Petroleum Institute Publication 1627, "Storage and Handling of
Gasoline-Methanol/Cosolvent Blends at Distribution Terminals and Service
Stations."
Owners and operators of UST systems must ensure that repairs will prevent
releases due to structural failure or corrosion as long as the UST system is
used to store regulated substances. The repairs must meet the following
requirements:
(a) Repairs to UST systems must be properly conducted in accordance with a
code of practice developed by a nationally recognized association or an
independent testing laboratory.
Note: The following codes and standards may be used to comply with
paragraph (a) of this section: National Fire Protection Association Standard 30,
"Flammable and Combustible Liquids Code"; American Petroleum Institute
Publication 2200, "Repairing Crude Oil, Liquified Petroleum Gas, and Product
Pipelines"; American Petroleum Institute Publication 1631, "Recommended Practice
for the Interior Lining of Existing Steel Underground Storage Tanks"; and
National Leak Prevention Association Standard 631, "Spill Prevention, Minimum 10
Year Life Extension of Existing Steel Underground Tanks by Lining Without the
Addition of Cathodic Protection."
(b) Repairs to fiberglass-reinforced plastic tanks may be made by the
manufacturer's authorized representatives or in accordance with a code of
practice developed by a nationally recognized association or an independent
testing laboratory.
(c) Metal pipe sections and fittings that have released product as a result
of corrosion or other damage must be replaced. Fiberglass pipes and fittings may
be repaired in accordance with the manufacturer's specifications.
(d) Repaired tanks and piping must be tightness tested in accordance with
§280.43(c) and §280.44(b) within 30 days following the date of the completion of
the repair except as provided in paragraphs (d) (1) through (3), of this
section:
(1) The repaired tank is internally inspected in accordance with a code of
practice developed by a nationally recognized association or an independent
testing laboratory; or
(2) The repaired portion of the UST system is monitored monthly for releases
in accordance with a method specified in §280.43 (d) through (h); or
(3) Another test method is used that is determined by the implementing agency
to be no less protective of human health and the environment than those listed
above.
(e) Within 6 months following the repair of any cathodically protected UST
system, the cathodic protection system must be tested in accordance with §280.31
(b) and (c) to ensure that it is operating properly.
(f) UST system owners and operators must maintain records of each repair for
the remaining operating life of the UST system that demonstrate compliance with
the requirements of this section.
Owners and operators of UST systems must cooperate fully with inspections,
monitoring and testing conducted by the implementing agency, as well as requests
for document submission, testing, and monitoring by the owner or operator
pursuant to section 9005 of Subtitle I of the Resource Conservation and Recovery
Act, as amended.
(a) Reporting. Owners and operators must submit the following
information to the implementing agency:
(1) Notification for all UST systems (§280.22), which includes certification
of installation for new UST systems (§280.20(e)),
(2) Reports of all releases including suspected releases (§280.50), spills
and overfills (§280.53), and confirmed releases (§280.61);
(3) Corrective actions planned or taken including initial abatement measures
(§280.62), initial site characterization (§280.63), free product removal
(§280.64), investigation of soil and ground-water cleanup (§280.65), and
corrective action plan (§280.66); and
(4) A notification before permanent closure or change-in-service (§280.71).
(b) Recordkeeping. Owners and operators must maintain the following
information:
(1) A corrosion expert's analysis of site corrosion potential if corrosion
protection equipment is not used (§280.20(a)(4); §280.20(b)(3)).
(2) Documentation of operation of corrosion protection equipment (§280.31);
(3) Documentation of UST system repairs (§280.33(f));
(4) Recent compliance with release detection requirements (§280.45); and
(5) Results of the site investigation conducted at permanent closure
(§280.74).
(c) Availability and Maintenance of Records. Owners and operators must
keep the records required either:
(1) At the UST site and immediately available for inspection by the
implementing agency; or
(2) At a readily available alternative site and be provided for inspection to
the implementing agency upon request.
(3) In the case of permanent closure records required under §280.74, owners
and operators are also provided with the additional alternative of mailing
closure records to the implementing agency if they cannot be kept at the site or
an alternative site as indicated above. (a) Owners and operators of new and existing UST systems must provide a
method, or combination of methods, of release detection that:
(1) Can detect a release from any portion of the tank and the connected
underground piping that routinely contains product;
(2) Is installed, calibrated, operated, and maintained in accordance with the
manufacturer's instructions, including routine maintenance and service checks
for operability or running condition; and
(3) Meets the performance requirements in §280.43 or 280.44, with any
performance claims and their manner of determination described in writing by the
equipment manufacturer or installer. In addition, methods used after the date
shown in the following table corresponding with the specified method except for
methods permanently installed prior to that date, must be capable of detecting
the leak rate or quantity specified for that method in the corresponding section
of the rule (also shown in the table) with a probability of detection (Pd) of
0.95 and a probability of false alarm (Pfa) of 0.05. (b) When a release detection method operated in accordance with the
performance standards in §280.43 and §280.44 indicates a release may have
occurred, owners and operators must notify the implementing agency in accordance
with subpart E.
(c) Owners and operators of all UST systems must comply with the release
detection requirements of this subpart by December 22 of the year listed in the
following table: (d) Any existing UST system that cannot apply a method of release detection
that complies with the requirements of this subpart must complete the closure
procedures in subpart G by the date on which release detection is required for
that UST system under paragraph (c) of this section.
[53 FR 37194, Sept. 23, 1988, as amended at 55 FR 17753, Apr. 27,
1990; 55 FR 23738, June 12, 1990; 56 FR 26, Jan. 2, 1991] Owners and operators of petroleum UST systems must provide release detection
for tanks and piping as follows:
(a) Tanks. Tanks must be monitored at least every 30 days for releases
using one of the methods listed in §280.43 (d) through (h) except that:
(1) UST systems that meet the performance standards in §280.20 or §280.21,
and the monthly inventory control requirements in §280.43 (a) or (b), may use
tank tightness testing (conducted in accordance with §280.43(c)) at least every
5 years until December 22, 1998, or until 10 years after the tank is installed
or upgraded under §280.21(b), whichever is later;
(2) UST systems that do not meet the performance standards in §280.20 or
§280.21 may use monthly inventory controls (conducted in accordance with
§280.43(a) or (b)) and annual tank tightness testing (conducted in accordance
with §280.43(c)) until December 22, 1998 when the tank must be upgraded under
§280.21 or permanently closed under §280.71; and
(3) Tanks with capacity of 550 gallons or less may use weekly tank gauging
(conducted in accordance with §280.43(b)).
(b) Piping. Underground piping that routinely contains regulated
substances must be monitored for releases in a manner that meets one of the
following requirements:
(1) Pressurized piping. Underground piping that conveys regulated
substances under pressure must:
(i) Be equipped with an automatic line leak detector conducted in accordance
with §280.44(a); and
(ii) Have an annual line tightness test conducted in accordance with
§280.44(b) or have monthly monitoring conducted in accordance with §280.44(c).
(2) Suction piping. Underground piping that conveys regulated
substances under suction must either have a line tightness test conducted at
least every 3 years and in accordance with §280.44(b), or use a monthly
monitoring method conduct in accordance with §280.44(c). No release detection is
required for suction piping that is designed and constructed to meet the
following standards:
(i) The below-grade piping operates at less than atmospheric pressure;
(ii) The below-grade piping is sloped so that the contents of the pipe will
drain back into the storage tank if the suction is released;
(iii) Only one check valve is included in each suction line;
(iv) The check valve is located directly below and as close as practical to
the suction pump; and
(v) A method is provided that allows compliance with paragraphs (b)(2)
(ii)-(iv) of this section to be readily determined.
Owners and operators of hazardous substance UST systems must provide release
detection that meets the following requirements:
(a) Release detection at existing UST systems must meet the requirements for
petroleum UST systems in §280.41. By December 22, 1998, all existing hazardous
substance UST systems must meet the release detection requirements for new
systems in paragraph (b) of this section.
(b) Release detection at new hazardous substance UST systems must meet the
following requirements:
(1) Secondary containment systems must be designed, constructed and installed
to:
(i) Contain regulated substances released from the tank system until they are
detected and removed;
(ii) Prevent the release of regulated substances to the environment at any
time during the operational life of the UST system; and
(iii) Be checked for evidence of a release at least every 30 days.
Note. -- The provisions of 40 CFR 265.193, Containment and Detection
of Releases, may be used to comply with these requirements.
(2) Double-walled tanks must be designed, constructed, and installed to:
(i) Contain a release from any portion of the inner tank within the outer
wall; and
(ii) Detect the failure of the inner wall.
(3) External liners (including vaults) must be designed, constructed, and
installed to:
(i) Contain 100 percent of the capacity of the largest tank within its
boundary;
(ii) Prevent the interference of precipitation or ground-water intrusion with
the ability to contain or detect a release of regulated substances; and
(iii) Surround the tank completely (i.e., it is capable of preventing lateral
as well as vertical migration of regulated substances).
(4) Underground piping must be equipped with secondary containment that
satisfies the requirements of paragraph (b)(1) of this section (e.g., trench
liners, jacketing of double-walled pipe). In addition, underground piping that
conveys regulated substances under pressure must be equipped with an automatic
line leak detector in accordance with §280.44(a).
(5) Other methods of release detection may be used if owners and operators:
(i) Demonstrate to the implementing agency that an alternate method can
detect a release of the stored substance as effectively as any of the methods
allowed in §§280.43(b) through (h) can detect a release of petroleum;
(ii) Provide information to the implementing agency on effective corrective
action technologies, health risks, and chemical and physical properties of the
stored substance, and the characteristics of the UST site; and,
(iii) Obtain approval from the implementing agency to use the alternate
release detection method before the installation and operation of the new UST
system.
Each method of release detection for tanks used to meet the requirements of
§280.41 must be conducted in accordance with the following:
(a) Inventory control. Product inventory control (or another test of
equivalent performance) must be conducted monthly to detect a release of at
least 1.0 percent of flow-through plus 130 gallons on a monthly basis in the
following manner:
(1) Inventory volume measurements for regulated substance inputs,
withdrawals, and the amount still remaining in the tank are recorded each
operating day;
(2) The equipment used is capable of measuring the level of product over the
full range of the tank's height to the nearest one-eighth of an inch;
(3) The regulated substance inputs are reconciled with delivery receipts by
measurement of the tank inventory volume before and after delivery;
(4) Deliveries are made through a drop tube that extends to within one foot
of the tank bottom;
(5) Product dispensing is metered and recorded within the local standards for
meter calibration or an accuracy of 6 cubic inches for every 5 gallons of
product withdrawn; and
(6) The measurement of any water level in the bottom of the tank is made to
the nearest one-eighth of an inch at least once a month.
Note: Practices described in the American Petroleum Institute
Publication 1621, "Recommended Practice for Bulk Liquid Stock Control at Retail
Outlets," may be used, where applicable, as guidance in meeting the requirements
of this paragraph.
(b) Manual tank gauging. Manual tank gauging must meet the following
requirements:
(1) Tank liquid level measurements are taken at the beginning and ending of a
period of at least 36 hours during which no liquid is added to or removed from
the tank;
(2) Level measurements are based on an average of two consecutive stick
readings at both the beginning and ending of the period;
(3) The equipment used is capable of measuring the level of product over the
full range of the tank's height to the nearest one-eighth of an inch;
(4) A leak is suspected and subject to the requirements of subpart E if the
variation between beginning and ending measurements exceeds the weekly or
monthly standards in the following table: (5) Only tanks of 550 gallons or less nominal capacity may use this as the
sole method of release detection. Tanks of 551 to 2,000 gallons may use the
method in place of manual inventory control in §280.43(a). Tanks of greater than
2,000 gallons nominal capacity may not use this method to meet the requirements
of this subpart.
(c) Tank tightness testing. Tank tightness testing (or another test of
equivalent performance) must be capable of detecting a 0.1 gallon per hour leak
rate from any portion of the tank that routinely contains product while
accounting for the effects of thermal expansion or contraction of the product,
vapor pockets, tank deformation, evaporation or condensation, and the location
of the water table.
(d) Automatic tank gauging. Equipment for automatic tank gauging that
tests for the loss of product and conducts inventory control must meet the
following requirements:
(1) The automatic product level monitor test can detect a 0.2 gallon per hour
leak rate from any portion of the tank that routinely contains product; and
(2) Inventory control (or another test of equivalent performance) is
conducted in accordance with the requirements of §280.43(a).
(e) Vapor monitoring. Testing or monitoring for vapors within the soil
gas of the excavation zone must meet the following requirements:
(1) The materials used as backfill are sufficiently porous (e.g., gravel,
sand, crushed rock) to readily allow diffusion of vapors from releases into the
excavation area;
(2) The stored regulated substance, or a tracer compound placed in the tank
system, is sufficiently volatile (e.g., gasoline) to result in a vapor level
that is detectable by the monitoring devices located in the excavation zone in
the event of a release from the tank;
(3) The measurement of vapors by the monitoring device is not rendered
inoperative by the ground water, rainfall, or soil moisture or other known
interferences so that a release could go undetected for more than 30 days;
(4) The level of background contamination in the excavation zone will not
interfere with the method used to detect releases from the tank;
(5) The vapor monitors are designed and operated to detect any significant
increase in concentration above background of the regulated substance stored in
the tank system, a component or components of that substance, or a tracer
compound placed in the tank system;
(6) In the UST excavation zone, the site is assessed to ensure compliance
with the requirements in paragraphs (e) (1) through (4) of this section and to
establish the number and positioning of monitoring wells that will detect
releases within the excavation zone from any portion of the tank that routinely
contains product; and
(7) Monitoring wells are clearly marked and secured to avoid unauthorized
access and tampering.
(f) Ground-water monitoring. Testing or monitoring for liquids on the
ground water must meet the following requirements:
(1) The regulated substance stored is immiscible in water and has a specific
gravity of less than one;
(2) Ground water is never more than 20 feet from the ground surface and the
hydraulic conductivity of the soil(s) between the UST system and the monitoring
wells or devices is not less than 0.01 cm/sec (e.g., the soil should consist of
gravels, coarse to medium sands, coarse silts or other permeable materials);
(3) The slotted portion of the monitoring well casing must be designed to
prevent migration of natural soils or filter pack into the well and to allow
entry of regulated substance on the water table into the well under both high
and low ground-water conditions;
(4) Monitoring wells shall be sealed from the ground surface to the top of
the filter pack;
(5) Monitoring wells or devices intercept the excavation zone or are as close
to it as is technically feasible;
(6) The continuous monitoring devices or manual methods used can detect the
presence of at least one-eighth of an inch of free product on top of the ground
water in the monitoring wells;
(7) Within and immediately below the UST system excavation zone, the site is
assessed to ensure compliance with the requirements in paragraphs (f) (1)
through (5) of this section and to establish the number and positioning of
monitoring wells or devices that will detect releases from any portion of the
tank that routinely contains product; and
(8) Monitoring wells are clearly marked and secured to avoid unauthorized
access and tampering.
(g) Interstitial monitoring. Interstitial monitoring between the UST
system and a secondary barrier immediately around or beneath it may be used, but
only if the system is designed, constructed and installed to detect a leak from
any portion of the tank that routinely contains product and also meets one of
the following requirements:
(1) For double-walled UST systems, the sampling or testing method can detect
a release through the inner wall in any portion of the tank that routinely
contains product;
Note: The provisions outlined in the Steel Tank Institute's "Standard
for Dual Wall Underground Storage Tanks" may be used as guidance for aspects of
the design and construction of underground steel double-walled tanks.
(2) For UST systems with a secondary barrier within the excavation zone, the
sampling or testing method used can detect a release between the UST system and
the secondary barrier;
(i) The secondary barrier around or beneath the UST system consists of
artificially constructed material that is sufficiently thick and impermeable (at
least 10−6 cm/sec for the regulated substance stored) to direct a
release to the monitoring point and permit its detection;
(ii) The barrier is compatible with the regulated substance stored so that a
release from the UST system will not cause a deterioration of the barrier
allowing a release to pass through undetected;
(iii) For cathodically protected tanks, the secondary barrier must be
installed so that it does not interfere with the proper operation of the
cathodic protection system;
(iv) The ground water, soil moisture, or rainfall will not render the testing
or sampling method used inoperative so that a release could go undetected for
more than 30 days;
(v) The site is assessed to ensure that the secondary barrier is always above
the ground water and not in a 25-year flood plain, unless the barrier and
monitoring designs are for use under such conditions; and,
(vi) Monitoring wells are clearly marked and secured to avoid unauthorized
access and tampering.
(3) For tanks with an internally fitted liner, an automated device can detect
a release between the inner wall of the tank and the liner, and the liner is
compatible with the substance stored.
(h) Other methods. Any other type of release detection method, or
combination of methods, can be used if:
(1) It can detect a 0.2 gallon per hour leak rate or a release of 150 gallons
within a month with a probability of detection of 0.95 and a probability of
false alarm of 0.05; or
(2) The implementing agency may approve another method if the owner and
operator can demonstrate that the method can detect a release as effectively as
any of the methods allowed in paragraphs (c) through (h) of this section. In
comparing methods, the implementing agency shall consider the size of release
that the method can detect and the frequency and reliability with which it can
be detected. If the method is approved, the owner and operator must comply with
any conditions imposed by the implementing agency on its use to ensure the
protection of human health and the environment.
Each method of release detection for piping used to meet the requirements of
§280.41 must be conducted in accordance with the following:
(a) Automatic line leak detectors. Methods which alert the operator to
the presence of a leak by restricting or shutting off the flow of regulated
substances through piping or triggering an audible or visual alarm may be used
only if they detect leaks of 3 gallons per hour at 10 pounds per square inch
line pressure within 1 hour. An annual test of the operation of the leak
detector must be conducted in accordance with the manufacturer's requirements.
(b) Line tightness testing. A periodic test of piping may be conducted
only if it can detect a 0.1 gallon per hour leak rate at one and one-half times
the operating pressure.
(c) Applicable tank methods. Any of the methods in §280.43 (e) through
(h) may be used if they are designed to detect a release from any portion of the
underground piping that routinely contains regulated substances.
All UST system owners and operators must maintain records in accordance with
§280.34 demonstrating compliance with all applicable requirements of this
subpart. These records must include the following:
(a) All written performance claims pertaining to any release detection system
used, and the manner in which these claims have been justified or tested by the
equipment manufacturer or installer, must be maintained for 5 years, or for
another reasonable period of time determined by the implementing agency, from
the date of installation;
(b) The results of any sampling, testing, or monitoring must be maintained
for at least 1 year, or for another reasonable period of time determined by the
implementing agency, except that the results of tank tightness testing conducted
in accordance with §280.43(c) must be retained until the next test is conducted;
and
(c) Written documentation of all calibration, maintenance, and repair of
release detection equipment permanently located on-site must be maintained for
at least one year after the servicing work is completed, or for another
reasonable time period determined by the implementing agency. Any schedules of
required calibration and maintenance provided by the release detection equipment
manufacturer must be retained for 5 years from the date of installation.
Owners and operators of UST systems must report to the implementing agency
within 24 hours, or another reasonable time period specified by the implementing
agency, and follow the procedures in §280.52 for any of the following
conditions:
(a) The discovery by owners and operators or others of released regulated
substances at the UST site or in the surrounding area (such as the presence of
free product or vapors in soils, basements, sewer and utility lines, and nearby
surface water).
(b) Unusual operating conditions observed by owners and operators (such as
the erratic behavior of product dispensing equipment, the sudden loss of product
from the UST system, or an unexplained presence of water in the tank), unless
system equipment is found to be defective but not leaking, and is immediately
repaired or replaced; and,
(c) Monitoring results from a release detection method required under §280.41
and §280.42 that indicate a release may have occurred unless:
(1) The monitoring device is found to be defective, and is immediately
repaired, recalibrated or replaced, and additional monitoring does not confirm
the initial result; or
(2) In the case of inventory control, a second month of data does not confirm
the initial result.
When required by the implementing agency, owners and operators of UST systems
must follow the procedures in §280.52 to determine if the UST system is the
source of off-site impacts. These impacts include the discovery of regulated
substances (such as the presence of free product or vapors in soils, basements,
sewer and utility lines, and nearby surface and drinking waters) that has been
observed by the implementing agency or brought to its attention by another
party.
Unless corrective action is initiated in accordance with subpart F, owners
and operators must immediately investigate and confirm all suspected releases of
regulated substances requiring reporting under §280.50 within 7 days, or another
reasonable time period specified by the implementing agency, using either the
following steps or another procedure approved by the implementing agency:
(a) System test. Owners and operators must conduct tests (according to
the requirements for tightness testing in §280.43(c) and §280.44(b)) that
determine whether a leak exists in that portion of the tank that routinely
contains product, or the attached delivery piping, or both.
(1) Owners and operators must repair, replace or upgrade the UST system, and
begin corrective action in accordance with subpart F if the test results for the
system, tank, or delivery piping indicate that a leak exists.
(2) Further investigation is not required if the test results for the system,
tank, and delivery piping do not indicate that a leak exists and if
environmental contamination is not the basis for suspecting a release.
(3) Owners and operators must conduct a site check as described in paragraph
(b) of this section if the test results for the system, tank, and delivery
piping do not indicate that a leak exists but environmental contamination is the
basis for suspecting a release.
(b) Site check. Owners and operators must measure for the presence of
a release where contamination is most likely to be present at the UST site. In
selecting sample types, sample locations, and measurement methods, owners and
operators must consider the nature of the stored substance, the type of initial
alarm or cause for suspicion, the type of backfill, the depth of ground water,
and other factors appropriate for identifying the presence and source of the
release.
(1) If the test results for the excavation zone or the UST site indicate that
a release has occurred, owners and operators must begin corrective action in
accordance with subpart F;
(2) If the test results for the excavation zone or the UST site do not
indicate that a release has occurred, further investigation is not required.
(a) Owners and operators of UST systems must contain and immediately clean up
a spill or overfill and report to the implementing agency within 24 hours, or
another reasonable time period specified by the implementing agency, and begin
corrective action in accordance with subpart F in the following cases:
(1) Spill or overfill of petroleum that results in a release to the
environment that exceeds 25 gallons or another reasonable amount specified by
the implementing agency, or that causes a sheen on nearby surface water; and
(2) Spill or overfill of a hazardous substance that results in a release to
the environment that equals or exceeds its reportable quantity under CERCLA (40
CFR part 302).
(b) Owners and operators of UST systems must contain and immediately clean up
a spill or overfill of petroleum that is less than 25 gallons or another
reasonable amount specified by the implementing agency, and a spill or overfill
of a hazardous substance that is less than the reportable quantity. If cleanup
cannot be accomplished within 24 hours, or another reasonable time period
established by the implementing agency, owners and operators must immediately
notify the implementing agency.
Note: Pursuant to §§302.6 and 355.40, a release of a hazardous
substance equal to or in excess of its reportable quantity must also be reported
immediately (rather than within 24 hours) to the National Response Center under
sections 102 and 103 of the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980 and to appropriate state and local authorities under
Title III of the Superfund Amendments and Reauthorization Act of 1986.
Owners and operators of petroleum or hazardous substance UST systems must, in
response to a confirmed release from the UST system, comply with the
requirements of this subpart except for USTs excluded under §280.10(b) and UST
systems subject to RCRA Subtitle C corrective action requirements under section
3004(u) of the Resource Conservation and Recovery Act, as amended.
Upon confirmation of a release in accordance with §280.52 or after a release
from the UST system is identified in any other manner, owners and operators must
perform the following initial response actions within 24 hours of a release or
within another reasonable period of time determined by the implementing agency:
(a) Report the release to the implementing agency (e.g., by telephone or
electronic mail);
(b) Take immediate action to prevent any further release of the regulated
substance into the environment; and
(c) Identify and mitigate fire, explosion, and vapor hazards.
(a) Unless directed to do otherwise by the implementing agency, owners and
operators must perform the following abatement measures:
(1) Remove as much of the regulated substance from the UST system as is
necessary to prevent further release to the environment;
(2) Visually inspect any aboveground releases or exposed belowground releases
and prevent further migration of the released substance into surrounding soils
and ground water;
(3) Continue to monitor and mitigate any additional fire and safety hazards
posed by vapors or free product that have migrated from the UST excavation zone
and entered into subsurface structures (such as sewers or basements);
(4) Remedy hazards posed by contaminated soils that are excavated or exposed
as a result of release confirmation, site investigation, abatement, or
corrective action activities. If these remedies include treatment or disposal of
soils, the owner and operator must comply with applicable State and local
requirements;
(5) Measure for the presence of a release where contamination is most likely
to be present at the UST site, unless the presence and source of the release
have been confirmed in accordance with the site check required by §280.52(b) or
the closure site assessment of §280.72(a). In selecting sample types, sample
locations, and measurement methods, the owner and operator must consider the
nature of the stored substance, the type of backfill, depth to ground water and
other factors as appropriate for identifying the presence and source of the
release; and
(6) Investigate to determine the possible presence of free product, and begin
free product removal as soon as practicable and in accordance with §280.64.
(b) Within 20 days after release confirmation, or within another reasonable
period of time determined by the implementing agency, owners and operators must
submit a report to the implementing agency summarizing the initial abatement
steps taken under paragraph (a) of this section and any resulting information or
data.
(a) Unless directed to do otherwise by the implementing agency, owners and
operators must assemble information about the site and the nature of the
release, including information gained while confirming the release or completing
the initial abatement measures in §§280.60 and 280.61. This information must
include, but is not necessarily limited to the following:
(1) Data on the nature and estimated quantity of release;
(2) Data from available
sources and/or site
investigations concerning the following factors: surrounding populations, water
quality, use and approximate locations of wells potentially affected by the
release, subsurface soil conditions, locations of subsurface sewers,
climatological conditions, and land use;
(3) Results of the site check required under §280.62(a)(5); and
(4) Results of the free product investigations required under §280.62(a)(6),
to be used by owners and operators to determine whether free product must be
recovered under §280.64.
(b) Within 45 days of release confirmation or another reasonable period of
time determined by the implementing agency, owners and operators must submit the
information collected in compliance with paragraph (a) of this section to the
implementing agency in a manner that demonstrates its applicability and
technical adequacy, or in a format and according to the schedule required by the
implementing agency.
At sites where investigations under §280.62(a)(6) indicate the presence of
free product, owners and operators must remove free product to the maximum
extent practicable as determined by the implementing agency while continuing, as
necessary, any actions initiated under §§280.61 through 280.63, or preparing for
actions required under §§280.65 through 280.66. In meeting the requirements of
this section, owners and operators must:
(a) Conduct free product removal in a manner that minimizes the spread of
contamination into previously uncontaminated zones by using recovery and
disposal techniques appropriate to the hydrogeologic conditions at the site, and
that properly treats, discharges or disposes of recovery byproducts in
compliance with applicable local, State and Federal regulations;
(b) Use abatement of free product migration as a minimum objective for the
design of the free product removal system;
(c) Handle any flammable products in a safe and competent manner to prevent
fires or explosions; and
(d) Unless directed to do otherwise by the implementing agency, prepare and
submit to the implementing agency, within 45 days after confirming a release, a
free product removal report that provides at least the following information:
(1) The name of the person(s) responsible for implementing the free product
removal measures;
(2) The estimated quantity, type, and thickness of free product observed or
measured in wells, boreholes, and excavations;
(3) The type of free product recovery system used;
(4) Whether any discharge will take place on-site or off-site during the
recovery operation and where this discharge will be located;
(5) The type of treatment applied to, and the effluent quality expected from,
any discharge;
(6) The steps that have been or are being taken to obtain necessary permits
for any discharge; and
(7) The disposition of the recovered free product.
(a) In order to determine the full extent and location of soils contaminated
by the release and the presence and concentrations of dissolved product
contamination in the ground water, owners and operators must conduct
investigations of the release, the release site, and the surrounding area
possibly affected by the release if any of the following conditions exist:
(1) There is evidence that ground-water wells have been affected by the
release (e.g., as found during release confirmation or previous corrective
action measures);
(2) Free product is found to need recovery in compliance with §280.64;
(3) There is evidence that contaminated soils may be in contact with ground
water (e.g., as found during conduct of the initial response measures or
investigations required under §§280.60 through 280.64); and
(4) The implementing agency requests an investigation, based on the potential
effects of contaminated soil or ground water on nearby surface water and
ground-water resources.
(b) Owners and operators must submit the information collected under
paragraph (a) of this section as soon as practicable or in accordance with a
schedule established by the implementing agency.
(a) At any point after reviewing the information submitted in compliance with
§§280.61 through 280.63, the implementing agency may require owners and
operators to submit additional information or to develop and submit a corrective
action plan for responding to contaminated soils and ground water. If a plan is
required, owners and operators must submit the plan according to a schedule and
format established by the implementing agency. Alternatively, owners and
operators may, after fulfilling the requirements of §§280.61 through 280.63,
choose to submit a corrective action plan for responding to contaminated soil
and ground water. In either case, owners and operators are responsible for
submitting a plan that provides for adequate protection of human health and the
environment as determined by the implementing agency, and must modify their plan
as necessary to meet this standard.
(b) The implementing agency will approve the corrective action plan only
after ensuring that implementation of the plan will adequately protect human
health, safety, and the environment. In making this determination, the
implementing agency should consider the following factors as appropriate:
(1) The physical and chemical characteristics of the regulated substance,
including its toxicity, persistence, and potential for migration;
(2) The hydrogeologic characteristics of the facility and the surrounding
area;
(3) The proximity, quality, and current and future uses of nearby surface
water and ground water;
(4) The potential effects of residual contamination on nearby surface water
and ground water;
(5) An exposure assessment; and
(6) Any information assembled in compliance with this subpart.
(c) Upon approval of the corrective action plan or as directed by the
implementing agency, owners and operators must implement the plan, including
modifications to the plan made by the implementing agency. They must monitor,
evaluate, and report the results of implementing the plan in accordance with a
schedule and in a format established by the implementing agency.
(d) Owners and operators may, in the interest of minimizing environmental
contamination and promoting more effective cleanup, begin cleanup of soil and
ground water before the corrective action plan is approved provided that they:
(1) Notify the implementing agency of their intention to begin cleanup;
(2) Comply with any conditions imposed by the implementing agency, including
halting cleanup or mitigating adverse consequences from cleanup activities; and
(3) Incorporate these self-initiated cleanup measures in the corrective
action plan that is submitted to the implementing agency for approval.
(a) For each confirmed release that requires a corrective action plan, the
implementing agency must provide notice to the public by means designed to reach
those members of the public directly affected by the release and the planned
corrective action. This notice may include, but is not limited to, public notice
in local newspapers, block advertisements, public service announcements,
publication in a state register, letters to individual households, or personal
contacts by field staff.
(b) The implementing agency must ensure that site release information and
decisions concerning the corrective action plan are made available to the public
for inspection upon request.
(c) Before approving a corrective action plan, the implementing agency may
hold a public meeting to consider comments on the proposed corrective action
plan if there is sufficient public interest, or for any other reason.
(d) The implementing agency must give public notice that complies with
paragraph (a) of this section if implementation of an approved corrective action
plan does not achieve the established cleanup levels in the plan and termination
of that plan is under consideration by the implementing agency. (a) When an UST system is temporarily closed, owners and operators must
continue operation and maintenance of corrosion protection in accordance with
§280.31, and any release detection in accordance with subpart D. Subparts E and
F must be complied with if a release is suspected or confirmed. However, release
detection is not required as long as the UST system is empty. The UST system is
empty when all materials have been removed using commonly employed practices so
that no more than 2.5 centimeters (one inch) of residue, or 0.3 percent by
weight of the total capacity of the UST system, remain in the system.
(b) When an UST system is temporarily closed for 3 months or more, owners and
operators must also comply with the following requirements:
(1) Leave vent lines open and functioning; and
(2) Cap and secure all other lines, pumps, manways, and ancillary equipment.
(c) When an UST system is temporarily closed for more than 12 months, owners
and operators must permanently close the UST system if it does not meet either
performance standards in §280.20 for new UST systems or the upgrading
requirements in §280.21, except that the spill and overfill equipment
requirements do not have to be met. Owners and operators must permanently close
the substandard UST systems at the end of this 12-month period in accordance
with §§280.71-280.74, unless the implementing agency provides an
extension of the 12-month temporary closure period. Owners and operators must
complete a site assessment in accordance with §280.72 before such an extension
can be applied for.
(a) At least 30 days before beginning either permanent closure or a
change-in-service under paragraphs (b) and (c) of this section, or within
another reasonable time period determined by the implementing agency, owners and
operators must notify the implementing agency of their intent to permanently
close or make the change-in-service, unless such action is in response to
corrective action. The required assessment of the excavation zone under §280.72
must be performed after notifying the implementing agency but before completion
of the permanent closure or a change-in-service.
(b) To permanently close a tank, owners and operators must empty and clean it
by removing all liquids and accumulated sludges. All tanks taken out of service
permanently must also be either removed from the ground or filled with an inert
solid material.
(c) Continued use of an UST system to store a non-regulated substance is
considered a change-in-service. Before a change-in-service, owners and operators
must empty and clean the tank by removing all liquid and accumulated sludge and
conduct a site assessment in accordance with §280.72.
Note: The following cleaning and closure procedures may be used to
comply with this section:
(A) American Petroleum Institute Recommended Practice 1604, "Removal and
Disposal of Used Underground Petroleum Storage Tanks";
(B) American Petroleum Institute Publication 2015, "Cleaning Petroleum
Storage Tanks";
(C) American Petroleum Institute Recommended Practice 1631, "Interior Lining
of Underground Storage Tanks," may be used as guidance for compliance with this
section; and
(D) The National Institute for Occupational Safety and Health "Criteria for a
Recommended
Standard * * * Working
in Confined Space" may be used as guidance for conducting safe closure
procedures at some hazardous substance tanks.
(a) Before permanent closure or a change-in-service is completed, owners and
operators must measure for the presence of a release where contamination is most
likely to be present at the UST site. In selecting sample types, sample
locations, and measurement methods, owners and operators must consider the
method of closure, the nature of the stored substance, the type of backfill, the
depth to ground water, and other factors appropriate for identifying the
presence of a release. The requirements of this section are satisfied if one of
the external release detection methods allowed in §280.43 (e) and (f) is
operating in accordance with the requirements in §280.43 at the time of closure,
and indicates no release has occurred.
(b) If contaminated soils, contaminated ground water, or free product as a
liquid or vapor is discovered under paragraph (a) of this section, or by any
other manner, owners and operators must begin corrective action in accordance
with subpart F.
When directed by the implementing agency, the owner and operator of an UST
system permanently closed before December 22, 1988 must assess the excavation
zone and close the UST system in accordance with this subpart if releases from
the UST may, in the judgment of the implementing agency, pose a current or
potential threat to human health and the environment.
Owners and operators must maintain records in accordance with §280.34 that
are capable of demonstrating compliance with closure requirements under this
subpart. The results of the excavation zone assessment required in §280.72 must
be maintained for at least 3 years after completion of permanent closure or
change-in-service in one of the following ways:
(a) By the owners and operators who took the UST system out of service;
(b) By the current owners and operators of the UST system site; or
(c) By mailing these records to the implementing agency if they cannot be
maintained at the closed facility. Source: 53 FR 43370, Oct. 26, 1988, unless otherwise noted.
(a) This subpart applies to owners and operators of all petroleum underground
storage tank (UST) systems except as otherwise provided in this section.
(b) Owners and operators of petroleum UST systems are subject to these
requirements if they are in operation on or after the date for compliance
established in §280.91.
(c) State and Federal government entities whose debts and liabilities are the
debts and liabilities of a state or the United States are exempt from the
requirements of this subpart.
(d) The requirements of this subpart do not apply to owners and operators of
any UST system described in §280.10 (b) or (c).
(e) If the owner and operator of a petroleum underground storage tank are
separate persons, only one person is required to demonstrate financial
responsibility; however, both parties are liable in event of noncompliance.
Regardless of which party complies, the date set for compliance at a particular
facility is determined by the characteristics of the owner as set forth in
§280.91.
Owners of petroleum underground storage tanks are required to comply with the
requirements of this subpart by the following dates:
(a) All petroleum marketing firms owning 1,000 or more USTs and all other UST
owners that report a tangible net worth of $20 million or more to the U.S.
Securities and Exchange Commission (SEC), Dun and Bradstreet, the Energy
Information Administration, or the Rural Electrification Administration; January
24, 1989, except that compliance with §280.94(b) is required by: July 24, 1989.
(b) All petroleum marketing firms owning 100-999 USTs; October 26, 1989.
(c) All petroleum marketing firms owning 13-99 USTs at more than one
facility; April 26, 1991.
(d) All petroleum UST owners not described in paragraphs (a), (b), or (c) of
this section, excluding local government entities; December 31, 1993.
(e) All local government entities (including Indian tribes) not included in
paragraph (f) of this section; February 18, 1994.
(f) Indian tribes that own USTs on Indian lands which meet the applicable
technical requirements of this part; December 31, 1998.
[53 FR 43370, Oct. 26, 1988, as amended at 54 FR 5452, Feb. 3, 1989;
55 FR 18567, May 2, 1990; 55 FR 46025, Oct. 31, 1990; 56 FR 66373, Dec. 23,
1991; 59 FR 9607, Feb. 28, 1994] When used in this subpart, the following terms shall have the meanings given
below:
Accidental release means any sudden or nonsudden release of petroleum
from an underground storage tank that results in a need for corrective action
and/or compensation for bodily injury or property damage neither expected nor
intended by the tank owner or operator.
Bodily injury shall have the meaning given to this term by applicable
state law; however, this term shall not include those liabilities which,
consistent with standard insurance industry practices, are excluded from
coverage in liability insurance policies for bodily injury.
Chief Financial Officer, in the case of local government owners and
operators, means the individual with the overall authority and responsibility
for the collection, disbursement, and use of funds by the local government.
Controlling interest means direct ownership of at least 50 percent of
the voting stock of another entity.
Director of the Implementing Agency means the EPA Regional
Administrator, or, in the case of a state with a program approved under section
9004, the Director of the designated state or local agency responsible for
carrying out an approved UST program.
Financial reporting year means the latest consecutive twelve-month
period for which any of the following reports used to support a financial test
is prepared:
(1) a 10-K report submitted to the SEC;
(2) an annual report of tangible net worth submitted to Dun and Bradstreet;
or
(3) annual reports submitted to the Energy Information Administration or the
Rural Electrification Administration.
"Financial reporting year" may thus comprise a fiscal or a calendar year
period.
Legal defense cost is any expense that an owner or operator or
provider of financial assurance incurs in defending against claims or actions
brought,
(1) By EPA or a state to require corrective action or to recover the costs of
corrective action;
(2) By or on behalf of a third party for bodily injury or property damage
caused by an accidental release; or
(3) By any person to enforce the terms of a financial assurance mechanism.
Local government shall have the meaning given this term by applicable
state law and includes Indian tribes. The term is generally intended to include:
(1) Counties, municipalities, townships, separately chartered and operated
special districts (including local government public transit systems and
redevelopment authorities), and independent school districts authorized as
governmental bodies by state charter or constitution; and (2) Special districts
and independent school districts established by counties, municipalities,
townships, and other general purpose governments to provide essential services.
Occurrence means an accident, including continuous or repeated
exposure to conditions, which results in a release from an underground storage
tank.
Note: This definition is intended to assist in the understanding of
these regulations and is not intended either to limit the meaning of
"occurrence" in a way that conflicts with standard insurance usage or to prevent
the use of other standard insurance terms in place of "occurrence."
Owner or operator, when the owner or operator are separate parties,
refers to the party that is obtaining or has obtained financial assurances.
Petroleum marketing facilities include all facilities at which
petroleum is produced or refined and all facilities from which petroleum is sold
or transferred to other petroleum marketers or to the public.
Petroleum marketing firms are all firms owning petroleum marketing
facilities. Firms owning other types of facilities with USTs as well as
petroleum marketing facilities are considered to be petroleum marketing firms.
Property damage shall have the meaning given this term by applicable
state law. This term shall not include those liabilities which, consistent with
standard insurance industry practices, are excluded from coverage in liability
insurance policies for property damage. However, such exclusions for property
damage shall not include corrective action associated with releases from tanks
which are covered by the policy.
Provider of financial assurance means an entity that provides
financial assurance to an owner or operator of an underground storage tank
through one of the mechanisms listed in §§280.95-280.103, including a guarantor,
insurer, risk retention group, surety, issuer of a letter of credit, issuer of a
state-required mechanism, or a state.
Substantial business relationship means the extent of a business
relationship necessary under applicable state law to make a guarantee contract
issued incident to that relationship valid and enforceable. A guarantee contract
is issued "incident to that relationship" if it arises from and depends on
existing economic transactions between the guarantor and the owner or operator.
Substantial governmental relationship means the extent of a
governmental relationship necessary under applicable state law to make an added
guarantee contract issued incident to that relationship valid and enforceable. A
guarantee contract is issued "incident to that relationship" if it arises from a
clear commonality of interest in the event of an UST release such as coterminous
boundaries, overlapping constituencies, common ground-water aquifer, or other
relationship other than monetary compensation that provides a motivation for the
guarantor to provide a guarantee.
Tangible net worth means the tangible assets that remain after
deducting liabilities; such assets do not include intangibles such as goodwill
and rights to patents or royalties. For purposes of this definition, "assets"
means all existing and all probable future economic benefits obtained or
controlled by a particular entity as a result of past transactions.
Termination under §280.97(b)(1) and §280.97(b)(2) means only those
changes that could result in a gap in coverage as where the insured has not
obtained substitute coverage or has obtained substitute coverage with a
different retroactive date than the retroactive date of the original policy.
[53 FR 43370, Oct. 26, 1988, as amended at 54 FR 47081, Nov. 9, 1989;
58 FR 9050, Feb. 18, 1993] (a) Owners or operators of petroleum underground storage tanks must
demonstrate financial responsibility for taking corrective action and for
compensating third parties for bodily injury and property damage caused by
accidental releases arising from the operation of petroleum underground storage
tanks in at least the following per-occurrence amounts:
(1) For owners or operators of petroleum underground storage tanks that are
located at petroleum marketing facilities, or that handle an average of more
than 10,000 gallons of petroleum per month based on annual throughput for the
previous calendar year; $1 million.
(2) For all other owners or operators of petroleum underground storage tanks;
$500,000.
(b) Owners or operators of petroleum underground storage tanks must
demonstrate financial responsibility for taking corrective action and for
compensating third parties for bodily injury and property damage caused by
accidental releases arising from the operation of petroleum underground storage
tanks in at least the following annual aggregate amounts:
(1) For owners or operators of 1 to 100 petroleum underground storage tanks,
$1 million; and
(2) For owners or operators of 101 or more petroleum underground storage
tanks, $2 million.
(c) For the purposes of paragraphs (b) and (f) of this section, only, "a
petroleum underground storage tank" means a single containment unit and does not
mean combinations of single containment units.
(d) Except as provided in paragraph (e) of this section, if the owner or
operator uses separate mechanisms or separate combinations of mechanisms to
demonstrate financial responsibility for:
(1) Taking corrective action;
(2) Compensating third parties for bodily injury and property damage caused
by sudden accidental releases; or
(3) Compensating third parties for bodily injury and property damage caused
by nonsudden accidental releases, the amount of assurance provided by each
mechanism or combination of mechanisms must be in the full amount specified in
paragraphs (a) and (b) of this section.
(e) If an owner or operator uses separate mechanisms or separate combinations
of mechanisms to demonstrate financial responsibility for different petroleum
underground storage tanks, the annual aggregate required shall be based on the
number of tanks covered by each such separate mechanism or combination of
mechanisms.
(f) Owners or operators shall review the amount of aggregate assurance
provided whenever additional petroleum underground storage tanks are acquired or
installed. If the number of petroleum underground storage tanks for which
assurance must be provided exceeds 100, the owner or operator shall demonstrate
financial responsibility in the amount of at least $2 million of annual
aggregate assurance by the anniversary of the date on which the mechanism
demonstrating financial responsibility became effective. If assurance is being
demonstrated by a combination of mechanisms, the owner or operator shall
demonstrate financial responsibility in the amount of at least $2 million of
annual aggregate assurance by the first-occurring effective date anniversary of
any one of the mechanisms combined (other than a financial test or guarantee) to
provide assurance.
(g) The amounts of assurance required under this section exclude legal
defense costs.
(h) The required per-occurrence and annual aggregate coverage amounts do not
in any way limit the liability of the owner or operator.
(a) Subject to the limitations of paragraphs (b) and (c) of this section,
(1) An owner or operator, including a local government owner or operator, may
use any one or combination of the mechanisms listed in §§280.95 through 280.103
to demonstrate financial responsibility under this subpart for one or more
underground storage tanks, and
(2) A local government owner or operator may use any one or combination of
the mechanisms listed in §§280.104 through 280.107 to demonstrate financial
responsibility under this subpart for one or more underground storage tanks.
(b) An owner or operator may use a guarantee under §280.96 or surety bond
under §280.98 to establish financial responsibility only if the Attorney(s)
General of the state(s) in which the underground storage tanks are located has
(have) submitted a written statement to the implementing agency that a guarantee
or surety bond executed as described in this section is a legally valid and
enforceable obligation in that state.
(c) An owner or operator may use self-insurance in combination with a
guarantee only if, for the purpose of meeting the requirements of the financial
test under this rule, the financial statements of the owner or operator are not
consolidated with the financial statements of the guarantor.
[53 FR 43370, Oct. 26, 1988, as amended at 58 FR 9051, Feb. 18,
1993] (a) An owner or operator, and/or guarantor, may satisfy the requirements of
§280.93 by passing a financial test as specified in this section. To pass the
financial test of self-insurance, the owner or operator, and/or guarantor must
meet the criteria of paragraph (b) or (c) of this section based on year-end
financial statements for the latest completed fiscal year.
(b)(1) The owner or operator, and/or guarantor, must have a tangible net
worth of at least ten times:
(i) The total of the applicable aggregate amount required by §280.93, based
on the number of underground storage tanks for which a financial test is used to
demonstrate financial responsibility to EPA under this section or to a state
implementing agency under a state program approved by EPA under 40 CFR part 281;
(ii) The sum of the corrective action cost estimates, the current closure and
post-closure care cost estimates, and amount of liability coverage for which a
financial test is used to demonstrate financial responsibility to EPA under 40
CFR 264.101, 264.143, 264.145, 265.143, 165.145, 264.147, and 265.147 or to a
state implementing agency under a state program authorized by EPA under 40 CFR
part 271; and
(iii) The sum of current plugging and abandonment cost estimates for which a
financial test is used to demonstrate financial responsibility to EPA under 40
CFR 144.63 or to a state implementing agency under a state program authorized by
EPA under 40 CFR part 145.
(2) The owner or operator, and/or guarantor, must have a tangible net worth
of at least $10 million.
(3) The owner or operator, and/or guarantor, must have a letter signed by the
chief financial officer worded as specified in paragraph (d) of this section.
(4) The owner or operator, and/or guarantor, must either:
(i) File financial statements annually with the U.S. Securities and Exchange
Commission, the Energy Information Administration, or the Rural Electrification
Administration; or
(ii) Report annually the firm's tangible net worth to Dun and Bradstreet, and
Dun and Bradstreet must have assigned the firm a financial strength rating of 4A
or 5A.
(5) The firm's year-end financial statements, if independently audited,
cannot include an adverse auditor's opinion, a disclaimer of opinion, or a
"going concern" qualification.
(c)(1) The owner or operator, and/or guarantor must meet the financial test
requirements of 40 CFR 264.147(f)(1), substituting the appropriate amounts
specified in §280.93 (b)(1) and (b)(2) for the "amount of liability coverage"
each time specified in that section.
(2) The fiscal year-end financial statements of the owner or operator, and/or
guarantor, must be examined by an independent certified public accountant and be
accompanied by the accountant's report of the examination.
(3) The firm's year-end financial statements cannot include an adverse
auditor's opinion, a disclaimer of opinion, or a "going concern" qualification.
(4) The owner or operator, and/or guarantor, must have a letter signed by the
chief financial officer, worded as specified in paragraph (d) of this section.
(5) If the financial statements of the owner or operator, and/or guarantor,
are not submitted annually to the U.S. Securities and Exchange Commission, the
Energy Information Administration or the Rural Electrification Administration,
the owner or operator, and/or guarantor, must obtain a special report by an
independent certified public accountant stating that:
(i) He has compared the data that the letter form the chief financial officer
specifies as having been derived from the latest year-end financial statements
of the owner or operator, and/or guarantor, with the amounts in such financial
statements; and
(ii) In connection with that comparison, no matters came to his attention
which caused him to believe that the specified data should be adjusted.
(d) To demonstrate that it meets the financial test under paragraph (b) or
(c) of this section, the chief financial officer of the owner or operator, or
guarantor, must sign, within 120 days of the close of each financial reporting
year, as defined by the twelve-month period for which financial statements used
to support the financial test are prepared, a letter worded exactly as follows,
except that the instructions in brackets are to be replaced by the relevant
information and the brackets deleted:
I am the chief financial officer of [insert: name and address of the owner or
operator, or guarantor]. This letter is in support of the use of [insert: "the
financial test of self-insurance," and/or "guarantee"] to demonstrate financial
responsibility for [insert: "taking corrective action" and/or "compensating
third parties for bodily injury and property damage"] caused by [insert:
"suddent accidential releases" and/or "nonsudden accidential releases"] in the
amount of at least [insert: dollar amount] per occurrence and [insert: dollar
amount] annual aggregate arising from operating (an) underground storage
tank(s).
Underground storage tanks at the following facilities are assured by this
financial test or a financial test under an authorized State program by this
[insert: "owner or operator," and/or "guarantor"]: [List for each facility: the
name and address of the facility where tanks assured by this financial test are
located, and whether tanks are assured by this financial test or a financial
test under a State program approved under 40 CFR part 281. If separate
mechanisms or combinations of mechanisms are being used to assure any of the
tanks at this facility, list each tank assured by this financial test or a
financial test under a State program authorized under 40 CFR part 281 by the
tank identification number provided in the notification submitted pursuant to 40
CFR 280.22 or the corresponding State requirements.]
A [insert: "financial test," and/or "guarantee"] is also used by this
[insert: "owner or operator," or "guarantor"] to demonstrate evidence of
financial responsibility in the following amounts under other EPA regulations or
state programs authorized by EPA under 40 CFR parts 271 and 145: This [insert: "owner or operator," or "guarantor"] has not received an
adverse opinion, a disclaimer of opinion, or a "going concern" qualification
from an independent auditor on his financial statements for the latest completed
fiscal year.
[Fill in the information for Alternative I if the criteria of paragraph (b)
of §280.95 are being used to demonstrate compliance with the financial test
requirements. Fill in the information for Alternative II if the criteria of
paragraph (c) of §280.95 are being used to demonstrate compliance with the
financial test requirements.] [If "No," please attach a report from an independent certified public
accountant certifying that there are no material differences between the data as
reported in lines 4-18 above and the financial statements for the latest fiscal
year.]
[For both Alternative I and Alternative II complete the certification with
this statement.]
I hereby certify that the wording of this letter is identical to the wording
specified in 40 CFR part 280.95(d) as such regulations were constituted on the
date shown immediately below.
[Signature]
[Name]
[Title]
[Date] (e) If an owner or operator using the test to provide financial assurance
finds that he or she no longer meets the requirements of the financial test
based on the year-end financial statements, the owner or operator must obtain
alternative coverage within 150 days of the end of the year for which financial
statements have been prepared.
(f) The Director of the implementing agency may require reports of financial
condition at any time from the owner or operator, and/or guarantor. If the
Director finds, on the basis of such reports or other information, that the
owner or operator, and/or guarantor, no longer meets the financial test
requirements of §280.95(b) or (c) and (d), the owner or operator must obtain
alternate coverage within 30 days after notification of such a finding.
(g) If the owner or operator fails to obtain alternate assurance within 150
days of finding that he or she no longer meets the requirements of the financial
test based on the year-end financial statements, or within 30 days of
notification by the Director of the implementing agency that he or she no longer
meets the requirements of the financial test, the owner or operator must notify
the Director of such failure within 10 days.
(a) An owner or operator may satisfy the requirements of §280.93 by obtaining
a guarantee that conforms to the requirements of this section. The guarantor
must be:
(1) A firm that (i) possesses a controlling interest in the owner or
operator; (ii) possesses a controlling interest in a firm described under
paragraph (a)(1)(i) of this section; or, (iii) is controlled through stock
ownership by a common parent firm that possesses a controlling interest in the
owner or operator; or,
(2) A firm engaged in a substantial business relationship with the owner or
operator and issuing the guarantee as an act incident to that business
relationship.
(b) Within 120 days of the close of each financial reporting year the
guarantor must demonstrate that it meets the financial test criteria of §280.95
based on year-end financial statements for the latest completed financial
reporting year by completing the letter from the chief financial officer
described in §280.95(d) and must deliver the letter to the owner or operator. If
the guarantor fails to meet the requirements of the financial test at the end of
any financial reporting year, within 120 days of the end of that financial
reporting year the guarantor shall send by certified mail, before cancellation
or nonrenewal of the guarantee, notice to the owner or operator. If the Director
of the implementing agency notifies the guarantor that he no longer meets the
requirements of the financial test of §280.95 (b) or (c) and (d), the guarantor
must notify the owner or operator within 10 days of receiving such notification
from the Director. In both cases, the guarantee will terminate no less than 120
days after the date the owner or operator receives the notification, as
evidenced by the return receipt. The owner or operator must obtain alternative
coverage as specified in §280.110(c).
(c) The guarantee must be worded as follows, except that instructions in
brackets are to be replaced with the relevant information and the brackets
deleted:
Guarantee made this [date] by [name of guaranteeing entity], a business
entity organized under the laws of the state of [name of state], herein referred
to as guarantor, to [the state implementing agency] and to any and all third
parties, and obligees, on behalf of [owner or operator] of [business
address]. (1) Guarantor meets or exceeds the financial test criteria of 40 CFR 280.95
(b) or (c) and (d) and agrees to comply with the requirements for guarantors as
specified in 40 CFR 280.96(b).
(2) [Owner or operator] owns or operates the following underground storage
tank(s) covered by this guarantee: [List the number of tanks at each facility
and the name(s) and address(es) of the facility(ies) where the tanks are
located. If more than one instrument is used to assure different tanks at any
one facility, for each tank covered by this instrument, list the tank
identification number provided in the notification submitted pursuant to 40 CFR
280.22 or the corresponding state requirement, and the name and address of the
facility.] This guarantee satisfies 40 CFR part 280, subpart H requirements for
assuring funding for [insert: "taking corrective action" and/or "compensating
third parties for bodily injury and property damage caused by" either "sudden
accidental releases" or "nonsudden accidental releases" or "accidental
releases"; if coverage is different for different tanks or locations, indicate
the type of coverage applicable to each tank or location] arising from operating
the above-identified underground storage tank(s) in the amount of [insert dollar
amount] per occurrence and [insert dollar amount] annual aggregate.
(3) [Insert appropriate phrase: "On behalf of our subsidiary" (if guarantor
is corporate parent of the owner or operator); "On behalf of our affiliate" (if
guarantor is a related firm of the owner or operator); or "Incident to our
business relationship with" (if guarantor is providing the guarantee as an
incident to a substantial business relationship with owner or operator)] [owner
or operator], guarantor guarantees to [implementing agency] and to any and all
third parties that:
In the event that [owner or operator] fails to provide alternative coverage
within 60 days after receipt of a notice of cancellation of this guarantee and
the [Director of the implementing agency] has determined or suspects that a
release has occurred at an underground storage tank covered by this guarantee,
the guarantor, upon instructions from the [Director], shall fund a standby trust
fund in accordance with the provisions of 40 CFR 280.108, in an amount not to
exceed the coverage limits specified above.
In the event that the [Director] determines that [owner or operator] has
failed to perform corrective action for releases arising out of the operation of
the above-identified tank(s) in accordance with 40 CFR part 280, subpart F, the
guarantor upon written instructions from the [Director] shall fund a standby
trust in accordance with the provisions of 40 CFR 280.108, in an amount not to
exceed the coverage limits specified above.
If [owner or operator] fails to satisfy a judgment or award based on a
determination of liability for bodily injury or property damage to third parties
caused by ["sudden" and/or "nonsudden"] accidential releases arising from the
operation of the above-identified tank(s), or fails to pay an amount agreed to
in settlement of a claim arising from or alleged to arise from such injury or
damage, the guarantor, upon written instructions from the [Director], shall fund
a standby trust in accordance with the provisions of 40 CFR 280.108 to satisfy
such judgment(s), award(s), or settlement agreement(s) up to the limits of
coverage specified above.
(4) Guarantor agrees that if, at the end of any fiscal year before
cancellation of this guarantee, the guarantor fails to meet the financial test
criteria of 40 CFR 280.95 (b) or (c) and (d), guarantor shall send within 120
days of such failure, by certified mail, notice to [owner or operator]. The
guarantee will terminate 120 days from the date of receipt of the notice by
[owner or operator], as evidenced by the return receipt.
(5) Guarantor agrees to notify [owner or operator] by certified mail of a
voluntary or involuntary proceeding under Title 11 (Bankruptcy), U.S. Code
naming guarantor as debtor, within 10 days after commencement of the proceeding.
(6) Guarantor agrees to remain bound under this guarantee notwithstanding any
modification or alteration of any obligation of [owner or operator] pursuant to
40 CFR part 280.
(7) Guarantor agrees to remain bound under this guarantee for so long as
[owner or operator] must comply with the applicable financial responsibility
requirements of 40 CFR part 280, subpart H for the above-identified tank(s),
except that guarantor may cancel this guarantee by sending notice by certified
mail to [owner or operator], such cancellation to become effective no earlier
than 120 days after receipt of such notice by [owner or operator], as evidenced
by the return receipt.
(8) The guarantor's obligation does not apply to any of the following:
(a) Any obligation of [insert owner or operator] under a workers'
compensation, disability benefits, or unemployment compensation law or other
similar law;
(b) Bodily injury to an employee of [insert owner or operator] arising from,
and in the course of, employment by [insert owner or operator];
(c) Bodily injury or property damage arising from the ownership, maintenance,
use, or entrustment to others of any aircraft, motor vehicle, or watercraft;
(d) Property damage to any property owned, rented, loaded to, in the care,
custody, or control of, or occupied by [insert owner or operator] that is not
the direct result of a release from a petroleum underground storage tank;
(e) Bodily damage or property damage for which [insert owner or operator] is
obligated to pay damages by reason of the assumption of liability in a contract
or agreement other than a contract or agreement entered into to meet the
requirements of 40 CFR 280.93.
(9) Guarantor expressly waives notice of acceptance of this guarantee by [the
implementing agency], by any or all third parties, or by [owner or operator].
I hereby certify that the wording of this guarantee is identical to the
wording specified in 40 CFR 280.96(c) as such regulations were constituted on
the effective date shown immediately below. Effective date:_____
[Name of guarantor]
[Authorized signature for guarantor]
[Name of person signing]
[Title of person signing]
Signature of witness or notary: (d) An owner or operator who uses a guarantee to satisfy the requirements of
§280.93 must establish a standby trust fund when the guarantee is obtained.
Under the terms of the guarantee, all amounts paid by the guarantor under the
guarantee will be deposited directly into the standby trust fund in accordance
with instructions from the Director of the implementing agency under §280.108.
This standby trust fund must meet the requirements specified in §280.103.
(a) An owner or operator may satisfy the requirements of §290.93 by obtaining
liability insurance that conforms to the requirements of this section from a
qualified insurer or risk retention group. Such insurance may be in the form of
a separate insurance policy or an endorsement to an existing insurance policy.
(b) Each insurance policy must be amended by an endorsement worded as
specified in paragraph (b)(1) of this section, or evidenced by a certificate of
insurance worded as specified in paragraph (b)(2) of this section, except that
instructions in brackets must be replaced with the relevant information and the
brackets deleted: Name: [name of each covered location] _____ _____
Address: [address of each covered location] _____ _____ Policy Number: _____
Period of Coverage: [current policy period] _____ _____
Name of [Insurer or Risk Retention Group]: _____ _____
Address of [Insurer or Risk Retention Group]: _____ _____ Name of Insured:
_____ Address of Insured: _____ _____ _____
1. This endorsement certifies that the policy to which the endorsement is
attached provides liability insurance covering the following underground storage
tanks: for [insert: "taking corrective action" and/or "compensating third parties
for bodily injury and property damage caused by" either "sudden accidental
releases" or "nonsudden accidental releases" or "accidental releases"; in
accordance with and subject to the limits of liability, exclusions, conditions,
and other terms of the policy; if coverage is different for different tanks or
locations, indicate the type of coverage applicable to each tank or location]
arising from operating the underground storage tank(s) identified above.
The limits of liability are [insert the dollar amount of the "each
occurrence" and "annual aggregate" limits of the Insurer's or Group's liability;
if the amount of coverage is different for different types of coverage or for
different underground storage tanks or locations, indicate the amount of
coverage for each type of coverage and/or for each underground storage tank or
location], exclusive of legal defense costs, which are subject to a separate
limit under the policy. This coverage is provided under [policy number]. The
effective date of said policy is [date].
2. The insurance afforded with respect to such occurrences is subject to all
of the terms and conditions of the policy; provided, however, that any
provisions inconsistent with subsections (a) through (e) of this Paragraph 2 are
hereby amended to conform with subsections (a) through (e);
a. Bankruptcy or insolvency of the insured shall not relieve the ["Insurer"
or "Group"] of its obligations under the policy to which this endorsement is
attached.
b. The ["Insurer" or "Group"] is liable for the payment of amounts within any
deductible applicable to the policy to the provider of corrective action or a
damaged third-party, with a right of reimbursement by the insured for any such
payment made by the ["Insurer" or "Group"]. This provision does not apply with
respect to that amount of any deductible for which coverage is demonstrated
under another mechanism or combination of mechanisms as specified in 40 CFR
280.95-280.102.
c. Whenever requested by [a Director of an implementing agency], the
["Insurer" or "Group"] agrees to furnish to [the Director] a signed duplicate
original of the policy and all endorsements.
d. Cancellation or any other termination of the insurance by the ["Insurer"
or "Group"], except for non-payment of premium or misrepresentation by the
insured, will be effective only upon written notice and only after the
expiration of 60 days after a copy of such written notice is received by the
insured. Cancellation for non-payment of premium or misrepresentation by the
insured will be effective only upon written notice and only after expiration of
a minimum of 10 days after a copy of such written notice is received by the
insured.
[Insert for claims-made policies:
e. The insurance covers claims otherwise covered by the policy that are
reported to the ["Insurer" or "Group"] within six months of the effective date
of cancellation or non-renewal of the policy except where the new or renewed
policy has the same retroactive date or a retroactive date earlier than that of
the prior policy, and which arise out of any covered occurrence that commenced
after the policy retroactive date, if applicable, and prior to such policy
renewal or termination date. Claims reported during such extended reporting
period are subject to the terms, conditions, limits, including limits of
liability, and exclusions of the policy.]
I hereby certify that the wording of this instrument is identical to the
wording in 40 CFR 280.97(b)(1) and that the ["Insurer" or "Group"] is ["licensed
to transact the business of insurance or eligible to provide insurance as an
excess or surplus lines insurer in one or more states"].
[Signature of authorized representative of Insurer or Risk Retention Group]
[Name of person signing]
[Title of person signing], Authorized Representative of [name of Insurer or
Risk Retention Group]
[Address of Representative] Name: [name of each covered location] _____ _____
Address: [address of each covered location] _____ _____ Policy Number:_____
Endorsement (if applicable):_____
Period of Coverage: [current policy period] _____
Name of [Insurer or Risk Retention Group]: _____ _____
Address of [Insurer or Risk Retention Group]: _____ _____ Name of
Insured:_____
Address of Insured: _____ _____ _____ 1. [Name of Insurer or Risk Retention Group], [the "Insurer" or "Group"], as
identified above, hereby certifies that it has issued liability insurance
covering the following underground storage
tank(s): for [insert: "taking corrective action" and/or "compensating third parties
for bodily injury and property damage caused by" either "sudden accidental
releases" or "nonsudden accidental releases" or "accidental releases"; in
accordance with and subject to the limits of liability, exclusions, conditions,
and other terms of the policy; if coverage is different for different tanks or
locations, indicate the type of coverage applicable to each tank or location]
arising from operating the underground storage tank(s) identified above.
The limits of liability are [insert the dollar amount of the "each
occurrence" and "annual aggregate" limits of the Insurer's or Group's liability;
if the amount of coverage is different for different types of coverage or for
different underground storage tanks or locations, indicate the amount of
coverage for each type of coverage and/or for each underground storage tank or
location], exclusive of legal defense costs, which are subject to a separate
limit under the policy. This coverage is provided under [policy number]. The
effective date of said policy is [date].
2. The ["Insurer" or "Group"] further certifies the following with respect to
the insurance described in Paragraph 1:
a. Bankruptcy or insolvency of the insured shall not relieve the ["Insurer"
or "Group"] of its obligations under the policy to which this certificate
applies.
b. The ["Insurer" or "Group"] is liable for the payment of amounts within any
deductible applicable to the policy to the provider of corrective action or a
damaged third-party, with a right of reimbursement by the insured for any such
payment made by the ["Insurer" or "Group"]. This provision does not apply with
respect to that amount of any deductible for which coverage is demonstrated
under another mechanism or combination of mechanisms as specified in 40 CFR
280.95-280.102.
c. Whenever requested by [a Director of an implementing agency], the
["Insurer" or "Group"] agrees to furnish to [the Director] a signed duplicate
original of the policy and all endorsements.
d. Cancellation or any other termination of the insurance by the ["Insurer"
or "Group"], except for non-payment of premium or misrepresentation by the
insured, will be effective only upon written notice and only after the
expiration of 60 days after a copy of such written notice is received by the
insured. Cancellation for non-payment of premium or misrepresentation by the
insured will be effective only upon written notice and only after expiration of
a minimum of 10 days after a copy of such written notice is received by the
insured.
[Insert for claims-made policies:
e. The insurance covers claims otherwise covered by the policy that are
reported to the ["Insurer" or "Group"] within six months of the effective date
of cancellation or non-renewal of the policy except where the new or renewed
policy has the same retroactive date or a retroactive date earlier than that of
the prior policy, and which arise out of any covered occurrence that commenced
after the policy retroactive date, if applicable, and prior to such policy
renewal or termination date. Claims reported during such extended reporting
period are subject to the terms, conditions, limits, including limits of
liability, and exclusions of the policy.]
I hereby certify that the wording of this instrument is identical to the
wording in 40 CFR 280.97(b)(2) and that the ["Insurer" or "Group"] is ["licensed
to transact the business of insurance, or eligible to provide insurance as an
excess or surplus lines insurer, in one or more states"].
[Signature of authorized representative of Insurer]
[Type name]
[Title], Authorized Representative of [name of Insurer or Risk Retention
Group]
[Address of Representative] (c) Each insurance policy must be issued by an insurer or a risk retention
group that, at a minimum, is licensed to transact the business of insurance or
eligible to provide insurance as an excess or surplus lines insurer in one or
more states.
[53 FR 43370, Oct. 26, 1988, as amended at 54 FR 47081, Nov. 9,
1989] (a) An owner or operator may satisfy the requirements of §280.93 by obtaining
a surety bond that conforms to the requirements of this section. The surety
company issuing the bond must be among those listed as acceptable sureties on
federal bonds in the latest Circular 570 of the U.S. Department of the Treasury.
(b) The surety bond must be worded as follows, except that instructions in
brackets must be replaced with the relevant information and the brackets
deleted:
Principal: [legal name and business address of owner or operator] _____
Type of organization: [insert "individual," "joint venture," "partnership,"
or "corporation"] _____
State of incorporation (if applicable): _____
Surety(ies): [name(s) and business address(es)] _____
Scope of Coverage: [List the number of tanks at each facility and the name(s)
and address(es) of the facility(ies) where the tanks are located. If more than
one instrument is used to assure different tanks at any one facility, for each
tank covered by this instrument, list the tank identification number provided in
the notification submitted pursuant to 40 CFR 280.22, or the corresponding state
requirement, and the name and address of the facility. List the coverage
guaranteed by the bond: "taking corrective action" and/or "compensating third
parties for bodily injury and property damage caused by" either "sudden
accidental releases" or "nonsudden accidental releases" or "accidental releases"
"arising from operating the underground storage tank"]. Penal sums of bond: Per occurrence $_____ Annual aggregate $_____ Surety's
bond number:_____
Know All Persons by These Presents, that we, the Principal and Surety(ies),
hereto are firmly bound to [the implementing agency], in the above penal sums
for the payment of which we bind ourselves, our heirs, executors,
administrators, successors, and assigns jointly and severally; provided that,
where the Surety(ies) are corporations acting as co-sureties, we, the Sureties,
bind ourselves in such sums jointly and severally only for the purpose of
allowing a joint action or actions against any or all of us, and for all other
purposes each Surety binds itself, jointly and severally with the Principal, for
the payment of such sums only as is set forth opposite the name of such Surety,
but if no limit of liability is indicated, the limit of liability shall be the
full amount of the penal sums.
Whereas said Principal is required under Subtitle I of the Resource
Conservation and Recovery Act (RCRA), as amended, to provide financial assurance
for [insert: "taking corrective action" and/or "compensating third parties for
bodily injury and property damage caused by" either "sudden accidental releases"
or "nonsudden accidental releases" or "accidental releases"; if coverage is
different for different tanks or locations, indicate the type of coverage
applicable to each tank or location] arising from operating the underground
storage tanks identified above, and
Whereas said Principal shall establish a standby trust fund as is required
when a surety bond is used to provide such financial assurance;
Now, therefore, the conditions of the obligation are such that if the
Principal shall faithfully ["take corrective action, in accordance with 40 CFR
part 280, subpart F and the Director of the state implementing agency's
instructions for," and/or "compensate injured third parties for bodily injury
and property damage caused by" either "sudden" or "nonsudden" or "sudden and
nonsudden"] accidental releases arising from operating the tank(s) indentified
above, or if the Principal shall provide alternate financial assurance, as
specified in 40 CFR part 280, subpart H, within 120 days after the date the
notice of cancellation is received by the Principal from the Surety(ies), then
this obligation shall be null and void; otherwise it is to remain in full force
and effect.
Such obligation does not apply to any of the following:
(a) Any obligation of [insert owner or operator] under a workers'
compensation, disability benefits, or unemployment compensation law or other
similar law;
(b) Bodily injury to an employee of [insert owner or operator] arising from,
and in the course of, employment by [insert owner or operator];
(c) Bodily injury or property damage arising from the ownership, maintenance,
use, or entrustment to others of any aircraft, motor vehicle, or watercraft;
(d) Property damage to any property owned, rented, loaned to, in the care,
custody, or control of, or occupied by [insert owner or operator] that is not
the direct result of a release from a petroleum underground storage tank;
(e) Bodily injury or property damage for which [insert owner or operator] is
obligated to pay damages by reason of the assumption of liability in a contract
or agreement other than a contract or agreement entered into to meet the
requirements of 40 CFR 280.93.
The Surety(ies) shall become liable on this bond obligation only when the
Principal has failed to fulfill the conditions described above.
Upon notification by [the Director of the implementing agency] that the
Principal has failed to ["take corrective action, in accordance with 40 CFR part
280, subpart F and the Director's instructions," and/or "compensate injured
third parties"] as guaranteed by this bond, the Surety(ies) shall either perform
["corrective action in accordance with 40 CFR part 280 and the Director's
instructions," and/or "third-party liability compensation"] or place funds in an
amount up to the annual aggregate penal sum into the standby trust fund as
directed by [the Regional Administrator or the Director] under 40 CFR 280.108.
Upon notification by [the Director] that the Principal has failed to provide
alternate financial assurance within 60 days after the date the notice of
cancellation is received by the Principal from the Surety(ies) and that [the
Director] has determined or suspects that a release has occurred, the
Surety(ies) shall place funds in an amount not exceeding the annual aggregate
penal sum into the standby trust fund as directed by [the Director] under 40 CFR
280.108.
The Surety(ies) hereby waive(s) notification of amendments to applicable
laws, statutes, rules, and regulations and agrees that no such amendment shall
in any way alleviate its (their) obligation on this bond.
The liability of the Surety(ies) shall not be discharged by any payment or
succession of payments hereunder, unless and until such payment or payments
shall amount in the annual aggregate to the penal sum shown on the face of the
bond, but in no event shall the obligation of the Surety(ies) hereunder exceed
the amount of said annual aggregate penal sum.
The Surety(ies) may cancel the bond by sending notice of cancellation by
certified mail to the Principal, provided, however, that cancellation shall not
occur during the 120 days beginning on the date of receipt of the notice of
cancellation by the Principal, as evidenced by the return receipt.
The Principal may terminate this bond by sending written notice to the
Surety(ies).
In Witness Thereof, the Principal and Surety(ies) have executed this Bond and
have affixed their seals on the date set forth above.
The persons whose signatures appear below hereby certify that they are
authorized to execute this surety bond on behalf of the Principal and
Surety(ies) and that the wording of this surety bond is identical to the wording
specified in 40 CFR 280.98(b) as such regulations were constituted on the date
this bond was executed. [Signature(s)]
[Names(s)]
[Title(s)]
[Corporate seal] [Name and address]
[State of Incorporation: _____
[Liability limit: $_____
[Signature(s)]
[Names(s) and title(s)]
[Corporate seal]
[For every co-surety, provide signature(s), corporate seal, and other
information in the same manner as for Surety above.]
Bond premium: $_____ (c) Under the terms of the bond, the surety will become liable on the bond
obligation when the owner or operator fails to perform as guaranteed by the
bond. In all cases, the surety's liability is limited to the per-occurrence and
annual aggregate penal sums.
(d) The owner or operator who uses a surety bond to satisfy the requirements
of §280.93 must establish a standby trust fund when the surety bond is acquired.
Under the terms of the bond, all amounts paid by the surety under the bond will
be deposited directly into the standby trust fund in accordance with
instructions from the Director under §280.108. This standby trust fund must meet
the requirements specified in §280.103.
(a) An owner or operator may satisfy the requirements of §280.93 by obtaining
an irrevocable standby letter of credit that conforms to the requirements of
this section. The issuing institution must be an entity that has the authority
to issue letters of credit in each state where used and whose letter-of-credit
operations are regulated and examined by a federal or state agency.
(b) The letter of credit must be worded as follows, except that instructions
in brackets are to be replaced with the relevant information and the brackets
deleted:
[Name and address of issuing institution]
[Name and address of Director(s) of state implementing agency(ies)] Dear Sir or Madam: We hereby establish our Irrevocable Standby Letter of
Credit No. ___ in your favor, at the request and for the account of [owner or
operator name] of [address] up to the aggregate amount of [in words] U.S.
dollars ($[insert dollar amount]), available upon presentation [insert, if more
than one Director of a state implementing agency is a beneficiary, "by any one
of you"] of
(1) your sight draft, bearing reference to this letter of credit, No. ___,
and
(2) your signed statement reading as follows: "I certify that the amount of
the draft is payable persuant to regulations issued under authority of Subtitle
I of the Resource Conservation and Recovery Act of 1976, as amended."
This letter of credit may be drawn on to cover [insert: "taking corrective
action" and/or "compensating third parties for bodily injury and property damage
caused by" either "sudden accidental releases" or "nonsudden accidental
releases" or "accidental releases"] arising from operating the underground
storage tank(s) identified below in the amount of [in words] $[insert dollar
amount] per occurrence and [in words] $[insert dollar amount] annual aggregate:
[List the number of tanks at each facility and the name(s) and address(es) of
the facility(ies) where the tanks are located. If more than one instrument is
used to assure different tanks at any one facility, for each tank covered by
this instrument, list the tank identification number provided in the
notification submitted pursuant to 40 CFR 280.22, or the corresponding state
requirement, and the name and address of the facility.]
The letter of credit may not be drawn on to cover any of the following:
(a) Any obligation of [insert owner or operator] under a workers'
compensation, disability benefits, or unemployment compensation law or other
similar law;
(b) Bodily injury to an employee of [insert owner or operator] arising from,
and in the course of, employment by [insert owner or operator];
(c) Bodily injury or property damage arising from the ownership, maintenance,
use, or entrustment to others of any aircraft, motor vehicle, or watercraft;
(d) Property damage to any property owned, rented, loaned to, in the care,
custody, or control of, or occupied by [insert owner or operator] that is not
the direct result of a release from a petroleum underground storage tank;
(e) Bodily injury or property damage for which [insert owner or operator] is
obligated to pay damages by reason of the assumption of liability in a contract
or agreement other than a contract or agreement entered into to meet the
requirements of 40 CFR 280.93.
This letter of credit is effective as of [date] and shall expire on [date],
but such expiration date shall be automatically extended for a period of [at
least the length of the original term] on [expiration date] and on each
successive expiration date, unless, at least 120 days before the curent
expiration date, we notify [owner or operator] by certified mail that we have
decided not to extend this letter of credit beyond the current expiration date.
In the event that [owner or operator] is so notified, any unused portion of the
credit shall be available upon presentation of your sight draft for 120 days
after the date of receipt by [owner or operator], as shown on the signed return
receipt.
Whenever this letter of credit is drawn on under and in compliance with the
terms of this credit, we shall duly honor such draft upon presentation to us,
and we shall deposit the amount of the draft directly into the standby trust
fund of [owner or operator] in accordance with your instructions.
We certify that the wording of this letter of credit is identical to the
wording specified in 40 CFR 280.99(b) as such regulations were constituted on
the date shown immediately below.
[Signature(s) and title(s) of official(s) of issuing institution]
[Date]
This credit is subject to [insert "the most recent edition of the Uniform
Customs and Practice for Documentary Credits, published and copyrighted by the
International Chamber of Commerce," or "the Uniform Commercial
Code"]. (c) An owner or operator who uses a letter of credit to satisfy the
requirements of §280.93 must also establish a standby trust fund when the letter
of credit is acquired. Under the terms of the letter of credit, all amounts paid
pursuant to a draft by the Director of the implementing agency will be deposited
by the issuing institution directly into the standby trust fund in accordance
with instructions from the Director under §280.108. This standby trust fund must
meet the requirements specified in §280.103.
(d) The letter of credit must be irrevocable with a term specified by the
issuing institution. The letter of credit must provide that credit be
automatically renewed for the same term as the original term, unless, at least
120 days before the current expiration date, the issuing institution notifies
the owner or operator by certified mail of its decision not to renew the letter
of credit. Under the terms of the letter of credit, the 120 days will begin on
the date when the owner or operator receives the notice, as evidenced by the
return receipt.
[53 FR 37194, Sept. 23, 1988, as amended at 59 FR 29960, June 10,
1994] (a) For underground storage tanks located in a state that does not have an
approved program, and where the state requires owners or operators of
underground storage tanks to demonstrate financial responsibility for taking
corrective action and/or for compensating third parties for bodily injury and
property damage, an owner or operator may use a state-required financial
mechanism to meet the requirements of §280.93 if the Regional Administrator
determines that the state mechanism is at least equivalent to the financial
mechanisms specified in this subpart.
(b) The Regional Administrator will evaluate the equivalency of a
state-required mechanism principally in terms of: certainty of the availability
of funds for taking corrective action and/or for compensating third parties; the
amount of funds that will be made available; and the types of costs covered. The
Regional Administrator may also consider other factors as is necessary.
(c) The state, an owner or operator, or any other interested party may submit
to the Regional Administrator a written petition requesting that one or more of
the state-required mechanisms be considered acceptable for meeting the
requirements of §280.93. The submission must include copies of the appropriate
state statutory and regulatory requirements and must show the amount of funds
for corrective action and/or for compensating third parties assured by the
mechanism(s). The Regional Administrator may require the petitioner to submit
additional information as is deemed necessary to make this determination.
(d) Any petition under this section may be submitted on behalf of all of the
state's underground storage tank owners and operators.
(e) The Regional Administrator will notify the petitioner of his
determination regarding the mechanism's acceptability in lieu of financial
mechanisms specified in this subpart. Pending this determination, the owners and
operators using such mechanisms will be deemed to be in compliance with the
requirements of §280.93 for underground storage tanks located in the state for
the amounts and types of costs covered by such mechanisms.
[53 FR 43370, Oct. 26, 1988; 53 FR 51274, Dec. 21,
1988] (a) An owner or operator may satisfy the requirements of §280.93 for
underground storage tanks located in a state, where EPA is administering the
requirements of this subpart, which assures that monies will be available from a
state fund or state assurance program to cover costs up to the limits specified
in §280.93 or otherwise assures that such costs will be paid if the Regional
Administrator determines that the state's assurance is at least equivalent to
the financial mechanisms specified in this subpart.
(b) The Regional Administrator will evaluate the equivalency of a state fund
or other state assurance principally in terms of: Certainty of the availability
of funds for taking corrective action and/or for compensating third parties; the
amount of funds that will be made available; and the types of costs covered. The
Regional Administrator may also consider other factors as is necessary.
(c) The state must submit to the Regional Administrator a description of the
state fund or other state assurance to be supplied as financial assurance, along
with a list of the classes of underground storage tanks to which the funds may
be applied. The Regional Administrator may require the state to submit
additional information as is deemed necessary to make a determination regarding
the acceptability of the state fund or other state assurance. Pending the
determination by the Regional Administrator, the owner or operator of a covered
class of USTs will be deemed to be in compliance with the requirements of
§280.93 for the amounts and types of costs covered by the state fund or other
state assurance.
(d) The Regional Administrator will notify the state of his determination
regarding the acceptability of the state's fund or other assurance in lieu of
financial mechanisms specified in this subpart. Within 60 days after the
Regional Administrator notifies a state that a state fund or other state
assurance is acceptable, the state must provide to each owner or operator for
which it is assuming financial responsibility a letter or certificate describing
the nature of the state's assumption of responsibility. The letter or
certificate from the state must include, or have attached to it, the following
information: the facility's name and address and the amount of funds for
corrective action and/or for compensating third parties that is assured by the
state. The owner or operator must maintain this letter or certificate on file as
proof of financial responsibility in accordance with §280.107(b)(5).
(a) An owner or operator may satisfy the requirements of §280.93 by
establishing a trust fund that conforms to the requirements of this section. The
trustee must be an entity that has the authority to act as a trustee and whose
trust operations are regulated and examined by a federal agency or an agency of
the state in which the fund is established.
(b) The wording of the trust agreement must be identical to the wording
specified in §280.103(b)(1), and must be accompanied by a formal certification
of acknowledgement as specified in §280.103(b)(2).
(c) The trust fund, when established, must be funded for the full required
amount of coverage, or funded for part of the required amount of coverage and
used in combination with other mechanism(s) that provide the remaining required
coverage.
(d) If the value of the trust fund is greater than the required amount of
coverage, the owner or operator may submit a written request to the Director of
the implementing agency for release of the excess.
(e) If other financial assurance as specified in this subpart is substituted
for all or part of the trust fund, the owner or operator may submit a written
request to the Director of the implementing agency for release of the excess.
(f) Within 60 days after receiving a request from the owner or operator for
release of funds as specified in paragraph (d) or (e) of this section, the
Director of the implementing agency will instruct the trustee to release to the
owner or operator such funds as the Director specifies in writing.
(a) An owner or operator using any one of the mechanisms authorized by
§§280.96, 280.98, or 280.99 must establish a standby trust fund when the
mechanism is acquired. The trustee of the standby trust fund must be an entity
that has the authority to act as a trustee and whose trust operations are
regulated and examined by a Federal agency or an agency of the state in which
the fund is established.
(b)(1) The standby trust agreement, or trust agreement, must be worded as
follows, except that instructions in brackets are to be replaced with the
relevant information and the brackets deleted:
Trust agreement, the "Agreement," entered into as of [date] by and between
[name of the owner or operator], a [name of state] [insert "corporation,"
"partnership," "association," or "proprietorship"], the "Grantor," and [name of
corporate trustee], [insert "Incorporated in the state of ___" or "a national
bank"], the "Trustee."
Whereas, the United States Environmental Protection Agency, "EPA," an agency
of the United States Government, has established certain regulations applicable
to the Grantor, requiring that an owner or operator of an underground storage
tank shall provide assurance that funds will be available when needed for
corrective action and third-party compensation for bodily injury and property
damage caused by sudden and nonsudden accidental releases arising from the
operation of the underground storage tank. The attached Schedule A lists the
number of tanks at each facility and the name(s) and address(es) of the
facility(ies) where the tanks are located that are covered by the standpoint
trust agreement.
[Whereas, the Grantor has elected to establish [insert either "a guarantee,"
"surety bond," or "letter of credit"] to provide all or part of such financial
assurance for the underground storage tanks identified herein and is required to
establish a standby trust fund able to accept payments from the instrument (This
paragraph is only applicable to the standby trust agreement.)];
Whereas, the Grantor, acting through its duly authorized officers, has
selected the Trustee to be the trustee under this agreement, and the Trustee is
willing to act as trustee;
Now, therefore, the Grantor and the Trustee agree as
follows: As used in this Agreement:
(a) The term "Grantor" means the owner or operator who enters into this
Agreement and any successors or assigns of the Grantor.
(b) The term "Trustee" means the Trustee who enters into this Agreement and
any successor Trustee. This Agreement pertains to the [identify the financial assurance mechanism,
either a guarantee, surety bond, or letter of credit, from which the standby
trust fund is established to receive payments (This paragraph is only applicable
to the standby trust agreement.)]. The Grantor and the Trustee hereby establish a trust fund, the "Fund," for
the benefit of [implementing agency]. The Grantor and the Trustee intend that no
third party have access to the Fund except as herein provided. [The Fund is
established initially as a standby to receive payments and shall not consist of
any property.] Payments made by the provider of financial assurance pursuant to
[the Director of the implementing agency's] instruction are transferred to the
Trustee and are referred to as the Fund, together with all earnings and profits
thereon, less any payments or distributions made by the Trustee pursuant to this
Agreement. The Fund shall be held by the Trustee, IN TRUST, as hereinafter
provided. The Trustee shall not be responsible nor shall it undertake any
responsibility for the amount or adequacy of, nor any duty to collect from the
Grantor as provider of financial assurance, any payments necessary to discharge
any liability of the Grantor established by [the state implementing
agency] The Trustee shall make payments from the Fund as [the Director of the
implementing agency] shall direct, in writing, to provide for the payment of the
costs of [insert: "taking corrective action" and/or compensating third parties
for bodily injury and property damage caused by" either "sudden accidental
releases" or "nonsudden accidental releases" or "accidental releases"] arising
from operating the tanks covered by the financial assurance mechanism identified
in this Agreement.
The Fund may not be drawn upon to cover any of the following:
(a) Any obligation of [insert owner or operator] under a workers'
compensation, disability benefits, or unemployment compensation law or other
similar law;
(b) Bodily injury to an employee of [insert owner or operator] arising from,
and in the course of employment by [insert owner or operator];
(c) Bodily injury or property damage arising from the ownership, maintenance,
use, or entrustment to others of any aircraft, motor vehicle, or watercraft;
(d) Property damage to any property owned, rented, loaned to, in the care,
custody, or control of, or occupied by [insert owner or operator] that is not
the direct result of a release from a petroleum underground storage tank;
(e) Bodily injury or property damage for which [insert owner or operator] is
obligated to pay damages by reason of the assumption of liability in a contract
or agreement other than a contract or agreement entered into to meet the
requirements of 40 CFR 280.93.
The Trustee shall reimburse the Grantor, or other persons as specified by
[the Director], from the Fund for corrective action expenditures and/or
third-party liability claims in such amounts as [the Director] shall direct in
writing. In addition, the Trustee shall refund to the Grantor such amounts as
[the Director] specifies in writing. Upon refund, such funds shall no longer
constitute part of the Fund as defined herein. Payments made to the Trustee for the Fund shall consist of cash and
securities acceptable to the Trustee. The Trustee shall invest and reinvest the principal and income of the Fund
and keep the Fund invested as a single fund, without distinction between
principal and income, in accordance with general investment policies and
guidelines which the Grantor may communicate in writing to the Trustee from time
to time, subject, however, to the provisions of this Section. In investing,
reinvesting, exchanging, selling, and managing the Fund, the Trustee shall
discharge his duties with respect to the trust fund solely in the interest of
the beneficiaries and with the care, skill, prudence, and diligence under the
circumstances then prevailing which persons of prudence, acting in a like
capacity and familiar with such matters, would use in the conduct of an
enterprise of a like character and with like aims; except that:
(i) Securities or other obligations of the Grantor, or any other owner or
operator of the tanks, or any of their affiliates as defined in the Investment
Company Act of 1940, as amended, 15 U.S.C. 80a-2(a), shall not be acquired or
held, unless they are securities or other obligations of the federal or a state
government;
(ii) The Trustee is authorized to invest the Fund in time or demand deposits
of the Trustee, to the extent insured by an agency of the federal or state
government; and
(iii) The Trustee is authorized to hold cash awaiting investment or
distribution uninvested for a reasonable time and without liability for the
payment of interest thereon. The Trustee is expressly authorized in its discretion:
(a) To transfer from time to time any or all of the assets of the Fund to any
common, commingled, or collective trust fund created by the Trustee in which the
Fund is eligible to participate, subject to all of the provisions thereof, to be
commingled with the assets of other trusts participating therein; and
(b) To purchase shares in any investment company registered under the
Investment Company Act of 1940, 15 U.S.C. 80a-1 et seq., including one which may
be created, managed, underwritten, or to which investment advice is rendered or
the shares of which are sold by the Trustee. The Trustee may vote such shares in
its discretion. Without in any way limiting the powers and discretions conferred upon the
Trustee by the other provisions of this Agreement or by law, the Trustee is
expressly authorized and empowered:
(a) To sell, exchange, convey, transfer, or otherwise dispose of any property
held by it, by public or private sale. No person dealing with the Trustee shall
be bound to see to the application of the purchase money or to inquire into the
validity or expediency of any such sale or other disposition;
(b) To make, execute, acknowledge, and deliver any and all documents of
transfer and conveyance and any and all other instruments that may be necessary
or appropriate to carry out the powers herein granted;
(c) To register any securities held in the Fund in its own name or in the
name of a nominee and to hold any security in bearer form or in book entry, or
to combine certificates representing such securities with certificates of the
same issue held by the Trustee in other fiduciary capacities, or to deposit or
arrange for the deposit of such securities in a qualified central depository
even though, when so deposited, such securities may be merged and held in bulk
in the name of the nominee of such depository with other securities deposited
therein by another person, or to deposit or arrange for the deposit of any
securities issued by the United States Government, or any agency or
instrumentality thereof, with a Federal Reserve bank, but the books and records
of the Trustee shall at all times show that all such securities are part of the
Fund;
(d) To deposit any cash in the Fund in interest-bearing accounts maintained
or savings certificates issued by the Trustee, in its separate corporate
capacity, or in any other banking institution affiliated with the Trustee, to
the extent insured by an agency of the federal or state government; and
(e) To compromise or otherwise adjust all claims in favor of or against the
Fund. All taxes of any kind that may be assessed or levied against or in respect of
the Fund and all brokerage commissions incurred by the Fund shall be paid from
the Fund. All other expenses incurred by the Trustee in connection with the
administration of this Trust, including fees for legal services rendered to the
Trustee, the compensation of the Trustee to the extent not paid directly by the
Grantor, and all other proper charges and disbursements of the Trustee shall be
paid from the Fund. The Trustee may from time to time consult with counsel, who may be counsel to
the Grantor, with respect to any questions arising as to the construction of
this Agreement or any action to be taken hereunder. The Trustee shall be fully
protected, to the extent permitted by law, in acting upon the advice of
counsel. The Trustee shall be entitled to reasonable compensation for its services as
agreed upon in writing from time to time with the Grantor. The Trustee may resign or the Grantor may replace the Trustee, but such
resignation or replacement shall not be effective until the Grantor has
appointed a successor trustee and this successor accepts the appointment. The
successor trustee shall have the same powers and duties as those conferred upon
the Trustee hereunder. Upon the successor trustee's acceptance of the
appointment, the Trustee shall assign, transfer, and pay over to the successor
trustee the funds and properties then constituting the Fund. If for any reason
the Grantor cannot or does not act in the event of the resignation of the
Trustee, the Trustee may apply to a court of competent jurisdiction for the
appointment of a successor trustee or for instructions. The successor trustee
shall specify the date on which it assumes administration of the trust in
writing sent to the Grantor and the present Trustee by certified mail 10 days
before such change becomes effective. Any expenses incurred by the Trustee as a
result of any of the acts contemplated by this Section shall be paid as provided
in Section 9. All orders, requests, and instructions by the Grantor to the Trustee shall be
in writing, signed by such persons as are designated in the attached Schedule B
or such other designees as the Grantor may designate by amendment to Schedule B.
The Trustee shall be fully protected in acting without inquiry in accordance
with the Grantor's orders, requests, and instructions. All orders, requests, and
instructions by [the Director of the implementing agency] to the Trustee shall
be in writing, signed by [the Director], and the Trustee shall act and shall be
fully protected in acting in accordance with such orders, requests, and
instructions. The Trustee shall have the right to assume, in the absence of
written notice to the contrary, that no event constituting a change or a
termination of the authority of any person to act on behalf of the Grantor or
[the director] hereunder has occurred. The Trustee shall have no duty to act in
the absence of such orders, requests, and instructions from the Grantor and/or
[the Director], except as provided for herein. This Agreement may be amended by an instrument in writing executed by the
Grantor and the Trustee, or by the Trustee and [the Director of the implementing
agency] if the Grantor ceases to exist. Subject to the right of the parties to amend this Agreement as provided in
Section 14, this Trust shall be irrevocable and shall continue until terminated
at the written direction of the Grantor and the Trustee, or by the Trustee and
[the Director of the implementing agency], if the Grantor ceases to exist. Upon
termination of the Trust, all remaining trust property, less final trust
administration expenses, shall be delivered to the Grantor. The Trustee shall not incur personal liability of any nature in connection
with any act or omission, made in good faith, in the administration of this
Trust, or in carrying out any directions by the Grantor or [the Director of the
implementing agency] issued in accordance with this Agreement. The Trustee shall
be indemnified and saved harmless by the Grantor, from and against any personal
liability to which the Trustee may be subjected by reason of any act or conduct
in its official capacity, including all expenses reasonably incurred in its
defense in the event the Grantor fails to provide such
defense. This Agreement shall be administered, construed, and enforced according to
the laws of the state of [insert name of state], or the Comptroller of the
Currency in the case of National Association banks. As used in this Agreement, words in the singular include the plural and words
in the plural include the singular. The descriptive headings for each section of
this Agreement shall not affect the interpretation or the legal efficacy of this
Agreement.
In Witness whereof the parties have caused this Agreement to be executed by
their respective officers duly authorized and their corporate seals (if
applicable) to be hereunto affixed and attested as of the date first above
written. The parties below certify that the wording of this Agreement is
identical to the wording specified in 40 CFR 280.103(b)(1) as such regulations
were constituted on the date written above. [Signature of Grantor]
[Name of the Grantor]
[Title]
Attest: (2) The standby trust agreement, or trust agreement must be accompanied by a
formal certification of acknowledgement similar to the following. State
requirements may differ on the proper content of this acknowledgment.
State of_____ County of_____
On this [date], before me personally came [owner or operator] to me known,
who, being by me duly sworn, did depose and say that she/he resides at
[address], that she/he is [title] of [corporation], the corporation described in
and which executed the above instrument; that she/he knows the seal of said
corporation; that the seal affixed to such instrument is such corporate seal;
that it was so affixed by order of the Board of Directors of said corporation;
and that she/he signed her/his name thereto by like order.
[Signature of Notary Public] (c) The Director of the implementing agency will instruct the trustee to
refund the balance of the standby trust fund to the provider of financial
assurance if the Director determines that no additional corrective action costs
or third-party liability claims will occur as a result of a release covered by
the financial assurance mechanism for which the standby trust fund was
established.
(d) An owner or operator may establish one trust fund as the depository
mechanism for all funds assured in compliance with this rule.
[53 FR 43370, Oct. 26, 1988; 53 FR 51274, Dec. 21,
1988] (a) A general purpose local government owner or operator and/or local
government serving as a guarantor may satisfy the requirements of §280.93 by
having a currently outstanding issue or issues of general obligation bonds of $1
million or more, excluding refunded obligations, with a Moody's rating of Aaa,
Aa, A, or Baa, or a Standard & Poor's rating of AAA, AA, A, or BBB. Where a
local government has multiple outstanding issues, or where a local government's
bonds are rated by both Moody's and Standard and Poor's, the lowest rating must
be used to determine eligibility. Bonds that are backed by credit enhancement
other than municipal bond insurance may not be considered in determining the
amount of applicable bonds outstanding.
(b) A local government owner or operator or local government serving as a
guarantor that is not a general-purpose local government and does not have the
legal authority to issue general obligation bonds may satisfy the requirements
of §280.93 by having a currently outstanding issue or issues of revenue bonds of
$1 million or more, excluding refunded issues and by also having a Moody's
rating of Aaa, A, A, or Baa, or a Standard & Poor's rating of AAA, AA, A, or
BBB as the lowest rating for any rated revenue bond issued by the local
government. Where bonds are rated by both Moody's and Standard & Poor's, the
lower rating for each bond must be used to determine eligibility. Bonds that are
backed by credit enhancement may not be considered in determining the amount of
applicable bonds outstanding.
(c) The local government owner or operator and/or guarantor must maintain a
copy of its bond rating published within the last 12 months by Moody's or
Standard & Poor's.
(d) To demonstrate that it meets the local government bond rating test, the
chief financial officer of a general purpose local government owner or operator
and/or guarantor must sign a letter worded exactly as follows, except that the
instructions in brackets are to be replaced by the relevant information and the
brackets deleted:
I am the chief financial officer of [insert: name and address of local
government owner or operator, or guarantor]. This letter is in support of the
use of the bond rating test to demonstrate financial responsibility for [insert:
"taking corrective action" and/or "compensating third parties for bodily injury
and property damage"] caused by [insert: "sudden accidental releases" and/or
"nonsudden accidental releases"] in the amount of at least [insert: dollar
amount] per occurrence and [insert: dollar amount] annual aggregate arising from
operating (an) underground storage tank(s).
Underground storage tanks at the following facilities are assured by this
bond rating test: [List for each facility: the name and address of the facility
where tanks are assured by the bond rating test].
The details of the issue date, maturity, outstanding amount, bond rating, and
bond rating agency of all outstanding bond issues that are being used by [name
of local government owner or operator, or guarantor] to demonstrate financial
responsibility are as follows: [complete table] The total outstanding obligation of [insert amount], excluding refunded bond
issues, exceeds the minimum amount of $1 million. All outstanding general
obligation bonds issued by this government that have been rated by Moody's or
Standard & Poor's are rated as at least investment grade (Moody's Baa or
Standard & Poor's BBB) based on the most recent ratings published within the
last 12 months. Neither rating service has provided notification within the last
12 months of downgrading of bond ratings below investment grade or of withdrawal
of bond rating other than for repayment of outstanding bond issues.
I hereby certify that the wording of this letter is identical to the wording
specified in 40 CFR Part 280.104(d) as such regulations were constituted on the
date shown immediately below. [Date] _____ [Signature] _____ [Name] _____
[Title] _____ (e) To demonstrate that it meets the local government bond rating test, the
chief financial officer of local government owner or operator and/or guarantor
other than a general purpose government must sign a letter worded exactly as
follows, except that the instructions in brackets are to be replaced by the
relevant information and the brackets deleted:
I am the chief financial officer of [insert: name and address of local
government owner or operator, or guarantor]. This letter is in support of the
use of the bond rating test to demonstrate financial responsibility for [insert:
"taking corrective action" and/or "compensating third parties for bodily injury
and property damage"] caused by [insert : "sudden accidental releases" and/or
"nonsudden accidental releases"] in the amount of at least [insert: dollar
amount] per occurrence and [insert: dollar amount] annual aggregate arising from
operating (an) underground storage tank(s). This local government is not
organized to provide general governmental services and does not have the legal
authority under state law or constitutional provisions to issue general
obligation debt.
Underground storage tanks at the following facilities are assured by this
bond rating test: [List for each facility: the name and address of the facility
where tanks are assured by the bond rating test].
The details of the issue date, maturity, outstanding amount, bond rating, and
bond rating agency of all outstanding revenue bond issues that are being used by
[name of local government owner or operator, or guarantor] to demonstrate
financial responsibility are as follows: [complete table] The total outstanding obligation of [insert amount], excluding refunded bond
issues, exceeds the minimum amount of $1 million. All outstanding revenue bonds
issued by this government that have been rated by Moody's or Standard &
Poor's are rated as at least investment grade (Moody's Baa or Standard &
Poor's BBB) based on the most recent ratings published within the last 12
months. The revenue bonds listed are not backed by third-party credit
enhancement or are insured by a municipal bond insurance company. Neither rating
service has provided notification within the last 12 months of downgrading of
bond ratings below investment grade or of withdrawal of bond rating other than
for repayment of outstanding bond issues.
I hereby certify that the wording of this letter is identical to the wording
specified in 40 CFR part 280.104(e) as such regulations were constituted on the
date shown immediately below. [Date] _____ [Signature] _____ [Name] _____
[Title] _____ (f) The Director of the implementing agency may require reports of financial
condition at any time from the local government owner or operator, and/or local
government guarantor. If the Director finds, on the basis of such reports or
other information, that the local government owner or operator, and/or
guarantor, no longer meets the local government bond rating test requirements of
§280.104, the local government owner or operator must obtain alternative
coverage within 30 days after notification of such a finding.
(g) If a local government owner or operator using the bond rating test to
provide financial assurance finds that it no longer meets the bond rating test
requirements, the local government owner or operator must obtain alternative
coverage within 150 days of the change in status.
[58 FR 9053, Feb. 18, 1993] (a) A local government owner or operator may satisfy the requirements of
§280.93 by passing the financial test specified in this section. To be eligible
to use the financial test, the local government owner or operator must have the
ability and authority to assess and levy taxes or to freely establish fees and
charges. To pass the local government financial test, the owner or operator must
meet the criteria of paragraphs (b)(2) and (b)(3) of this section based on
year-end financial statements for the latest completed fiscal year.
(b)(1) The local government owner or operator must have the following
information available, as shown in the year-end financial statements for the
latest completed fiscal year:
(i) Total revenues: Consists of the sum of general fund operating and
non-operating revenues including net local taxes, licenses and permits, fines
and forfeitures, revenues from use of money and property, charges for services,
investment earnings, sales (property, publications, etc.), intergovernmental
revenues (restricted and unrestricted), and total revenues from all other
governmental funds including enterprise, debt service, capital projects, and
special revenues, but excluding revenues to funds held in a trust or agency
capacity. For purposes of this test, the calculation of total revenues shall
exclude all transfers between funds under the direct control of the local
government using the financial test (interfund transfers), liquidation of
investments, and issuance of debt.
(ii) Total expenditures: Consists of the sum of general fund operating
and non-operating expenditures including public safety, public utilities,
transportation, public works, environmental protection, cultural and
recreational, community development, revenue sharing, employee benefits and
compensation, office management, planning and zoning, capital projects, interest
payments on debt, payments for retirement of debt principal, and total
expenditures from all other governmental funds including enterprise, debt
service, capital projects, and special revenues. For purposes of this test, the
calculation of total expenditures shall exclude all transfers between funds
under the direct control of the local government using the financial test
(interfund transfers).
(iii) Local revenues: Consists of total revenues (as defined in
paragraph (b)(1)(i) of this section) minus the sum of all transfers from other
governmental entities, including all monies received from Federal, state, or
local government sources.
(iv) Debt service: Consists of the sum of all interest and principal
payments on all long-term credit obligations and all interest-bearing short-term
credit obligations. Includes interest and principal payments on general
obligation bonds, revenue bonds, notes, mortgages, judgments, and interest
bearing warrants. Excludes payments on non-interest-bearing short-term
obligations, interfund obligations, amounts owed in a trust or agency capacity,
and advances and contingent loans from other governments.
(v) Total funds: Consists of the sum of cash and investment securities
from all funds, including general, enterprise, debt service, capital projects,
and special revenue funds, but excluding employee retirement funds, at the end
of the local government's financial reporting year. Includes Federal securities,
Federal agency securities, state and local government securities, and other
securities such as bonds, notes and mortgages. For purposes of this test, the
calculation of total funds shall exclude agency funds, private trust funds,
accounts receivable, value of real property, and other non-security assets.
(vi) Population consists of the number of people in the area served by
the local government.
(2) The local government's year-end financial statements, if independently
audited, cannot include an adverse auditor's opinion or a disclaimer of opinion.
The local government cannot have outstanding issues of general obligation or
revenue bonds that are rated as less than investment grade.
(3) The local government owner or operator must have a letter signed by the
chief financial officer worded as specified in paragraph (c) of this section.
(c) To demonstrate that it meets the financial test under paragraph (b) of
this section, the chief financial officer of the local government owner or
operator, must sign, within 120 days of the close of each financial reporting
year, as defined by the twelve-month period for which financial statements used
to support the financial test are prepared, a letter worded exactly as follows,
except that the instructions in brackets are to be replaced by the relevant
information and the brackets deleted:
I am the chief financial officer of [insert: name and address of the owner or
operator]. This letter is in support of the use of the local government
financial test to demonstrate financial responsibility for [insert: "taking
corrective action" and/or "compensating third parties for bodily injury and
property damage"] caused by [insert: "sudden accidental releases" and/or
"nonsudden accidental releases"] in the amount of at least [insert: dollar
amount] per occurrence and [insert: dollar amount] annual aggregate arising from
operating [an] underground storage tank[s].
Underground storage tanks at the following facilities are assured by this
financial test [List for each facility: the name and address of the facility
where tanks assured by this financial test are located. If separate mechanisms
or combinations of mechanisms are being used to assure any of the tanks at this
facility, list each tank assured by this financial test by the tank
identification number provided in the notification submitted pursuant to 40 CFR
Part 280.22 or the corresponding state requirements.]
This owner or operator has not received an adverse opinion, or a disclaimer
of opinion from an independent auditor on its financial statements for the
latest completed fiscal year. Any outstanding issues of general obligation or
revenue bonds, if rated, have a Moody's rating of Aaa, Aa, A, or Baa or a
Standard and Poor's rating of AAA, AA, A, or BBB; if rated by both firms, the
bonds have a Moody's rating of Aaa, Aa, A, or Baa and a Standard and Poor's
rating of AAA, AA, A, or BBB.
a. Revenues (dollars) ______ b. Subtract interfund transfers (dollars)______
c. Total Revenues (dollars)______ a. Expenditures (dollars) ______ b. Subtract interfund transfers (dollars)______
c. Total Expenditures (dollars)______ a. Total Revenues (from 1c) (dollars) ______
b. Subtract total intergovernmental transfers (dollars)______
c. Local Revenues (dollars)______ a. Interest and fiscal charges (dollars)______
b. Add debt retirement (dollars)______
c. Total Debt Service (dollars)______ (Sum of amounts held as cash and investment securities from all funds,
excluding amounts held for employee retirement funds, agency funds, and trust
funds) a. Total Revenues (from 1c)______
b. Population (from 6)______
c. Divide 7a by 7b ______
d. Subtract 417______
e. Divide by 5,212______
f. Multiply by 4.095______ a. Total Expenses (from 2c)______
b. Population (from 6)______
c. Divide 8a by 8b ______
d. Subtract 524 ______
e. Divide by 5,401______
f. Multiply by 4.095______ a. Local Revenues (from 3c)______
b. Total Revenues (from 1c)______
c. Divide 9a by 9b ______
d. Subtract .695______
e. Divide by .205______
f. Multiply by 2.840 ______ a. Debt Service (from 4d) ______
b. Population (from 6)______
c. Divide 10a by 10b ______
d. Subtract 51 ______
e. Divide by 1,038______
f. Multiply by −1.866______ a. Debt Service (from 4d)______
b. Total Revenues (from 1c)______
c. Divide 11a by 11b ______
d. Subtract .068 ______
e. Divide by .259 ______
f. Multiply by −3.533 ______ a. Total Revenues (from 1c)______
b. Total Expenses (from 2c)______
c. Divide 12a by 12b______
d. Subtract .910 ______
e. Divide by .899 ______
f. Multiply by 3.458 ______ a. Total Funds (from 5) ______
b. Total Revenues (from 1c)______
c. Divide 13a by 13b ______
d. Subtract .891 ______
e. Divide by 9.156______
f. Multiply by 3.270 ______ a. Total Funds (from 5)______
b. Total Expenses (from 2c)______
c. Divide 14a by 14b______
d. Subtract .866 ______
e. Divide by 6.409 ______
f. Multiply by 3.270 ______ a. Total Funds (from 5) ______
b. Population (from 6)______
c. Divide 15a by 15b ______
d. Subtract 270 ______
e. Divide by 4,548 ______
f. Multiply by 1.866 ______ I hereby certify that the financial index shown on line 16 of the worksheet
is greater than zero and that the wording of this letter is identical to the
wording specified in 40 CFR part 280.105(c) as such regulations were constituted
on the date shown immediately below.
[Date]
[Signature]
[Name]
[Title] (d) If a local government owner or operator using the test to provide
financial assurance finds that it no longer meets the requirements of the
financial test based on the year-end financial statements, the owner or operator
must obtain alternative coverage within 150 days of the end of the year for
which financial statements have been prepared.
(e) The Director of the implementing agency may require reports of financial
condition at any time from the local government owner or operator. If the
Director finds, on the basis of such reports or other information, that the
local government owner or operator no longer meets the financial test
requirements of §280.105 (b) and (c), the owner or operator must obtain
alternate coverage within 30 days after notification of such a finding.
(f) If the local government owner or operator fails to obtain alternate
assurance within 150 days of finding that it no longer meets the requirements of
the financial test based on the year-end financial statements or within 30 days
of notification by the Director of the implementing agency that it no longer
meets the requirements of the financial test, the owner or operator must notify
the Director of such failure within 10 days.
[58 FR 9054, Feb. 18, 1993] (a) A local government owner or operator may satisfy the requirements of
§280.93 by obtaining a guarantee that conforms to the requirements of this
section. The guarantor must be either the state in which the local government
owner or operator is located or a local government having a "substantial
governmental relationship" with the owner and operator and issuing the guarantee
as an act incident to that relationship. A local government acting as the
guarantor must:
(1) demonstrate that it meets the bond rating test requirement of §280.104
and deliver a copy of the chief financial officer's letter as contained in
§280.104(c) to the local government owner or operator; or
(2) demonstrate that it meets the worksheet test requirements of §280.105 and
deliver a copy of the chief financial officer's letter as contained in
§280.105(c) to the local government owner or operator; or
(3) demonstrate that it meets the local government fund requirements of
§280.107(a), §280.107(b), or §280.107(c) and deliver a copy of the chief
financial officer's letter as contained in §280.107 to the local government
owner or operator.
(b) If the local government guarantor is unable to demonstrate financial
assurance under any of §§280.104, 280.105, 280.107(a), 280.107(b), or
280.107(c), at the end of the financial reporting year, the guarantor shall send
by certified mail, before cancellation or non-renewal of the guarantee, notice
to the owner or operator. The guarantee will terminate no less than 120 days
after the date the owner or operator receives the notification, as evidenced by
the return receipt. The owner or operator must obtain alternative coverage as
specified in §280.114(c).
(c) The guarantee agreement must be worded as specified in paragraph (d) or
(e) of this section, depending on which of the following alternative guarantee
arrangements is selected:
(1) If, in the default or incapacity of the owner or operator, the guarantor
guarantees to fund a standby trust as directed by the Director of the
implementing agency, the guarantee shall be worded as specified in paragraph (d)
of this section.
(2) If, in the default or incapacity of the owner or operator, the guarantor
guarantees to make payments as directed by the Director of the implementing
agency for taking corrective action or compensating third parties for bodily
injury and property damage, the guarantee shall be worded as specified in
paragraph (e) of this section.
(d) If the guarantor is a state, the local government guarantee with standby
trust must be worded exactly as follows, except that instructions in brackets
are to be replaced with relevant information and the brackets
deleted: Guarantee made this [date] by [name of state], herein referred to as
guarantor, to [the state implementing agency] and to any and all third parties,
and obliges, on behalf of [local government owner or
operator]. (1) Guarantor is a state.
(2) [Local government owner or operator] owns or operates the following
underground storage tank(s) covered by this guarantee: [List the number of tanks
at each facility and the name(s) and address(es) of the facility(ies) where the
tanks are located. If more than one instrument is used to assure different tanks
at any one facility, for each tank covered by this instrument, list the tank
identification number provided in the notification submitted pursuant to 40 CFR
part 280 or the corresponding state requirement, and the name and address of the
facility.] This guarantee satisfies 40 CFR part 280, subpart H requirements for
assuring funding for [insert: "taking corrective action" and/or "compensating
third parties for bodily injury and property damage caused by" either "sudden
accidental releases" or "nonsudden accidental releases" or "accidental
releases"; if coverage is different for different tanks or locations, indicate
the type of coverage applicable to each tank or location] arising from operating
the above-identified underground storage tank(s) in the amount of [insert dollar
amount] per occurrence and [insert dollar amount] annual aggregate.
(3) Guarantor guarantees to [implementing agency] and to any and all third
parties that:
In the event that [local government owner or operator] fails to provide
alternative coverage within 60 days after receipt of a notice of cancellation of
this guarantee and the [Director of the implementing agency] has determined or
suspects that a release has occurred at an underground storage tank covered by
this guarantee, the guarantor, upon instructions from the [Director] shall fund
a standby trust fund in accordance with the provisions of 40 CFR part 280.112,
in an amount not to exceed the coverage limits specified above.
In the event that the [Director] determines that [local government owner or
operator] has failed to perform corrective action for releases arising out of
the operation of the above-identified tank(s) in accordance with 40 CFR part
280, subpart F, the guarantor upon written instructions from the [Director]
shall fund a standby trust fund in accordance with the provisions of 40 CFR part
280.112, in an amount not to exceed the coverage limits specified above.
If [owner or operator] fails to satisfy a judgment or award based on a
determination of liability for bodily injury or property damage to third parties
caused by ["sudden" and/or "nonsudden"] accidental releases arising from the
operation of the above-identified tank(s), or fails to pay an amount agreed to
in settlement of a claim arising from or alleged to arise from such injury or
damage, the guarantor, upon written instructions from the [Director], shall fund
a standby trust in accordance with the provisions of 40 CFR part 280.112 to
satisfy such judgment(s), award(s), or settlement agreement(s) up to the limits
of coverage specified above.
(4) Guarantor agrees to notify [owner or operator] by certified mail of a
voluntary or involuntary proceeding under Title 11 (Bankruptcy), U.S. Code
naming guarantor as debtor, within 10 days after commencement of the proceeding.
(5) Guarantor agrees to remain bound under this guarantee notwithstanding any
modification or alteration of any obligation of [owner or operator] pursuant to
40 CFR part 280.
(6) Guarantor agrees to remain bound under this guarantee for so long as
[local government owner or operator] must comply with the applicable financial
responsibility requirements of 40 CFR part 280, subpart H for the above
identified tank(s), except that guarantor may cancel this guarantee by sending
notice by certified mail to [owner or operator], such cancellation to become
effective no earlier than 120 days after receipt of such notice by [owner or
operator], as evidenced by the return receipt.
(7) The guarantor's obligation does not apply to any of the following:
(a) Any obligation of [local government owner or operator] under a workers'
compensation, disability benefits, or unemployment compensation law or other
similar law;
(b) Bodily injury to an employee of [insert: local government owner or
operator] arising from, and in the course of, employment by [insert: local
government owner or operator];
(c) Bodily injury or property damage arising from the ownership, maintenance,
use, or entrustment to others of any aircraft, motor vehicle, or watercraft;
(d) Property damage to any property owned, rented, loaded to, in the care,
custody, or control of, or occupied by [insert: local government owner or
operator] that is not the direct result of a release from a petroleum
underground storage tank;
(e) Bodily damage or property damage for which [insert owner or operator] is
obligated to pay damages by reason of the assumption of liability in a contract
or agreement other than a contract or agreement entered into to meet the
requirements of 40 CFR part 280.93.
(8) Guarantor expressly waives notice of acceptance of this guarantee by [the
implementing agency], by any or all third parties, or by [local government owner
or operator],
I hereby certify that the wording of this guarantee is identical to the
wording specified in 40 CFR part 280.106(d) as such regulations were constituted
on the effective date shown immediately below. Effective date: _____
[Name of guarantor]
[Authorized signature for guarantor]
[Name of person signing]
[Title of person signing]
Signature of witness or notary:
If the guarantor is a local government, the local government guarantee with
standby trust must be worded exactly as follows, except that instructions in
brackets are to be replaced with relevant information and the brackets deleted:
Guarantee made this [date] by [name of guaranteeing entity], a local
government organized under the laws of [name of state], herein referred to as
guarantor, to [the state implementing agency] and to any and all third parties,
and obliges, on behalf of [local government owner or
operator]. (1) Guarantor meets or exceeds [select one: the local government bond rating
test requirements of 40 CFR part 280.104, the local government financial test
requirements of 40 CFR part 280.105, or the local government fund under 40 CFR
part 280.107(a), 280.107(b), or 280.107(c)].
(2) [Local government owner or operator] owns or operates the following
underground storage tank(s) covered by this guarantee: [List the number of tanks
at each facility and the name(s) and address(es) of the facility(ies) where the
tanks are located. If more than one instrument is used to assure different tanks
at any one facility, for each tank covered by this instrument, list the tank
identification number provided in the notification submitted pursuant to 40 CFR
part 280 or the corresponding state requirement, and the name and address of the
facility.] This guarantee satisfies 40 CFR part 280, subpart H requirements for
assuring funding for [insert: "taking corrective action" and/or "compensating
third parties for bodily injury and property damage caused by" either "sudden
accidental releases" or "nonsudden accidental releases" or "accidental
releases"; if coverage is different for different tanks or locations, indicate
the type of coverage applicable to each tank or location] arising from operating
the above-identified underground storage tank(s) in the amount of [insert dollar
amount] per occurrence and [insert: dollar amount] annual aggregate.
(3) Incident to our substantial governmental relationship with [local
government owner or operator], guarantor guarantees to [implementing agency] and
to any and all third parties that:
In the event that [local government owner or operator] fails to provide
alternative coverage within 60 days after receipt of a notice of cancellation of
this guarantee and the [Director of the implementing agency] has determined or
suspects that a release has occurred at an underground storage tank covered by
this guarantee, the guarantor, upon instructions from the [Director] shall fund
a standby trust fund in accordance with the provisions of 40 CFR part 280.112,
in an amount not to exceed the coverage limits specified above.
In the event that the [Director] determines that [local government owner or
operator] has failed to perform corrective action for releases arising out of
the operation of the above-identified tank(s) in accordance with 40 CFR part
280, subpart F, the guarantor upon written instructions from the [Director]
shall fund a standby trust fund in accordance with the provisions of 40 CFR part
280.112, in an amount not to exceed the coverage limits specified above.
If [owner or operator] fails to satisfy a judgment or award based on a
determination of liability for bodily injury or property damage to third parties
caused by ["sudden" and/or "nonsudden"] accidental releases arising from the
operation of the above-identified tank(s), or fails to pay an amount agreed to
in settlement of a claim arising from or alleged to arise from such injury or
damage, the guarantor, upon written instructions from the [Director], shall fund
a standby trust in accordance with the provisions of 40 CFR part 280.112 to
satisfy such judgment(s), award(s), or settlement agreement(s) up to the limits
of coverage specified above.
(4) Guarantor agrees that, if at the end of any fiscal year before
cancellation of this guarantee, the guarantor fails to meet or exceed the
requirements of the financial responsibility mechanism specified in paragraph
(1), guarantor shall send within 120 days of such failure, by certified mail,
notice to [local government owner or operator], as evidenced by the return
receipt.
(5) Guarantor agrees to notify [owner or operator] by certified mail of a
voluntary or involuntary proceeding under Title 11 (Bankruptcy), U.S. Code
naming guarantor as debtor, within 10 days after commencement of the proceeding.
(6) Guarantor agrees to remain bound under this guarantee notwithstanding any
modification or alteration of any obligation of [owner or operator] pursuant to
40 CFR part 280.
(7) Guarantor agrees to remain bound under this guarantee for so long as
[local government owner or operator] must comply with the applicable financial
responsibility requirements of 40 CFR part 280, subpart H for the above
identified tank(s), except that guarantor may cancel this guarantee by sending
notice by certified mail to [owner or operator], such cancellation to become
effective no earlier than 120 days after receipt of such notice by [owner or
operator], as evidenced by the return receipt.
(8) The guarantor's obligation does not apply to any of the following:
(a) Any obligation of [local government owner or operator] under a workers'
compensation, disability benefits, or unemployment compensation law or other
similar law;
(b) Bodily injury to an employee of [insert: local government owner or
operator] arising from, and in the course of, employment by [insert: local
government owner or operator];
(c) Bodily injury or property damage arising from the ownership, maintenance,
use, or entrustment to others of any aircraft, motor vehicle, or watercraft;
(d) Property damage to any property owned, rented, loaned to, in the care,
custody, or control of, or occupied by [insert: local government owner or
operator] that is not the direct result of a release from a petroleum
underground storage tank;
(e) Bodily damage or property damage for which [insert: owner or operator] is
obligated to pay damages by reason of the assumption of liability in a contract
or agreement other than a contract or agreement entered into to meet the
requirements of 40 CFR part 280.93.
(9) Guarantor expressly waives notice of acceptance of this guarantee by [the
implementing agency], by any or all third parties, or by [local government owner
or operator].
I hereby certify that the wording of this guarantee is identical to the
wording specified in 40 CFR part 280.106(d) as such regulations were constituted
on the effective date shown immediately below. Effective date: _____
[Name of guarantor]
[Authorized signature for guarantor]
[Name of person signing]
[Title of person signing]
Signature of witness or notary: _____ (e) If the guarantor is a state, the local government guarantee without
standby trust must be worded exactly as follows, except that instructions in
brackets are to be replaced with relevant information and the brackets
deleted:
Guarantee made this [date] by [name of state], herein referred to as
guarantor, to [the state implementing agency] and to any and all third parties,
and obliges, on behalf of [local government owner or
operator]. (1) Guarantor is a state.
(2) [Local government owner or operator] owns or operates the following
underground storage tank(s) covered by this guarantee: [List the number of tanks
at each facility and the name(s) and address(es) of the facility(ies) where the
tanks are located. If more than one instrument is used to assure different tanks
at any one facility, for each tank covered by this instrument, list the tank
identification number provided in the notification submitted pursuant to 40 CFR
part 280 or the corresponding state requirement, and the name and address of the
facility.] This guarantee satisfies 40 CFR part 280, subpart H requirements for
assuring funding for [insert: "taking corrective action" and/or "compensating
third parties for bodily injury and property damage caused by" either "sudden
accidental releases" or "nonsudden accidental releases" or "accidental
releases"; if coverage is different for different tanks or locations, indicate
the type of coverage applicable to each tank or location] arising from operating
the above-identified underground storage tank(s) in the amount of [insert:
dollar amount] per occurrence and [insert: dollar amount] annual aggregate.
(3) Guarantor guarantees to [implementing agency] and to any and all third
parties and obliges that:
In the event that [local government owner or operator] fails to provide
alternative coverage within 60 days after receipt of a notice of cancellation of
this guarantee and the [Director of the implementing agency] has determined or
suspects that a release has occurred at an underground storage tank covered by
this guarantee, the guarantor, upon written instructions from the [Director]
shall make funds available to pay for corrective actions and compensate third
parties for bodily injury and property damage in an amount not to exceed the
coverage limits specified above.
In the event that the [Director] determines that [local government owner or
operator] has failed to perform corrective action for releases arising out of
the operation of the above-identified tank(s) in accordance with 40 CFR part
280, subpart F, the guarantor upon written instructions from the [Director]
shall make funds available to pay for corrective actions in an amount not to
exceed the coverage limits specified above.
If [owner or operator] fails to satisfy a judgment or award based on a
determination of liability for bodily injury or property damage to third parties
caused by ["sudden" and/or "nonsudden"] accidental releases arising from the
operation of the above-identified tank(s), or fails to pay an amount agreed to
in settlement of a claim arising from or alleged to arise from such injury or
damage, the guarantor, upon written instructions from the [Director], shall make
funds available to compensate third parties for bodily injury and property
damage in an amount not to exceed the coverage limits specified above.
(4) Guarantor agrees to notify [owner or operator] by certified mail of a
voluntary or involuntary proceeding under Title 11 (Bankruptcy), U.S. Code
naming guarantor as debtor, within 10 days after commencement of the proceeding.
(5) Guarantor agrees to remain bound under this guarantee notwithstanding any
modification or alteration of any obligation of [owner or operator] pursuant to
40 CFR part 280.
(6) Guarantor agrees to remain bound under this guarantee for so long as
[local government owner or operator] must comply with the applicable financial
responsibility requirements of 40 CFR part 280, subpart H for the above
identified tank(s), except that guarantor may cancel this guarantee by sending
notice by certified mail to [owner or operator], such cancellation to become
effective no earlier than 120 days after receipt of such notice by [owner or
operator], as evidenced by the return receipt. If notified of a probable
release, the guarantor agrees to remain bound to the terms of this guarantee for
all charges arising from the release, up to the coverage limits specified above,
notwithstanding the cancellation of the guarantee with respect to future
releases.
(7) The guarantor's obligation does not apply to any of the following:
(a) Any obligation of [local government owner or operator] under a workers'
compensation disability benefits, or unemployment compensation law or other
similar law;
(b) Bodily injury to an employee of [insert local government owner or
operator] arising from, and in the course of, employment by [insert: local
government owner or operator];
(c) Bodily injury or property damage arising from the ownership, maintenance,
use, or entrustment to others of any aircraft, motor vehicle, or watercraft;
(d) Property damage to any property owned, rented, loaded to, in the care,
custody, or control of, or occupied by [insert: local government owner or
operator] that is not the direct result of a release from a petroleum
underground storage tank;
(e) Bodily damage or property damage for which [insert: owner or operator] is
obligated to pay damages by reason of the assumption of liability in a contract
or agreement other than a contract or agreement entered into to meet the
requirements of 40 CFR part 280.93.
(8) Guarantor expressly waives notice of acceptance of this guarantee by [the
implementing agency], by any or all third parties, or by [local government owner
or operator].
I hereby certify that the wording of this guarantee is identical to the
wording specified in 40 CFR part 280.106(e) as such regulations were constituted
on the effective date shown immediately below. Effective date: _____
[Name of guarantor]
[Authorized signature for guarantor]
[Name of person signing]
[Title of person signing]
Signature of witness or notary:
If the guarantor is a local government, the local government guarantee
without standby trust must be worded exactly as follows, except that
instructions in brackets are to be replaced with relevant information and the
brackets deleted:
Guarantee made this [date] by [name of guaranteeing entity], a local
government organized under the laws of [name of state], herein referred to as
guarantor, to [the state implementing agency] and to any and all third parties,
and obliges, on behalf of [local government owner or
operator]. (1) Guarantor meets or exceeds [select one: the local government bond rating
test requirements of 40 CFR part 280.104, the local government financial test
requirements of 40 part CFR 280.105, the local government fund under 40 CFR part
280.107(a), 280.107(b), or 280.107(c).
(2) [Local government owner or operator] owns or operates the following
underground storage tank(s) covered by this guarantee: [List the number of tanks
at each facility and the name(s) and address(es) of the facility(ies) where the
tanks are located. If more than one instrument is used to assure different tanks
at any one facility, for each tank covered by this instrument, list the tank
identification number provided in the notification submitted pursuant to 40 CFR
part 280 or the corresponding state requirement, and the name and address of the
facility.] This guarantee satisfies 40 CFR part 280, subpart H requirements for
assuring funding for [insert: "taking corrective action" and/or "compensating
third parties for bodily injury and property damage caused by" either "sudden
accidental releases" or "nonsudden accidental releases" or "accidental
releases"; if coverage is different for different tanks or locations, indicate
the type of coverage applicable to each tank or location] arising from operating
the above-identified underground storage tank(s) in the amount of [insert:
dollar amount] per occurrence and [insert: dollar amount] annual aggregate.
(3) Incident to our substantial governmental relationship with [local
government owner or operator], guarantor guarantees to [implementing agency] and
to any and all third parties and obliges that:
In the event that [local government owner or operator] fails to provide
alternative coverage within 60 days after receipt of a notice of cancellation of
this guarantee and the [Director of the implementing agency] has determined or
suspects that a release has occurred at an underground storage tank covered by
this guarantee, the guarantor, upon written instructions from the [Director]
shall make funds available to pay for corrective actions and compensate third
parties for bodily injury and property damage in an amount not to exceed the
coverage limits specified above.
In the event that the [Director] determines that [local government owner or
operator] has failed to perform corrective action for releases arising out of
the operation of the above-identified tank(s) in accordance with 40 CFR part
280, subpart F, the guarantor upon written instructions from the [Director]
shall make funds available to pay for corrective actions in an amount not to
exceed the coverage limits specified above.
If [owner or operator] fails to satisfy a judgment or award based on a
determination of liability for bodily injury or property damage to third parties
caused by ["sudden" and/or "nonsudden"] accidental releases arising from the
operation of the above-identified tank(s), or fails to pay an amount agreed to
in settlement of a claim arising from or alleged to arise from such injury or
damage, the guarantor, upon written instructions from the [Director], shall make
funds available to compensate third parties for bodily injury and property
damage in an amount not to exceed the coverage limits specified above.
(4) Guarantor agrees that if at the end of any fiscal year before
cancellation of this guarantee, the guarantor fails to meet or exceed the
requirements of the financial responsibility mechanism specified in paragraph
(1), guarantor shall send within 120 days of such failure, by certified mail,
notice to [local government owner or operator], as evidenced by the return
receipt.
(5) Guarantor agrees to notify [owner or operator] by certified mail of a
voluntary or involuntary proceeding under Title 11 (Bankruptcy), U.S. Code
naming guarantor as debtor, within 10 days after commencement of the proceeding.
(6) Guarantor agrees to remain bound under this guarantee notwithstanding any
modification or alteration of any obligation of [owner or operator] pursuant to
40 CFR part 280.
(7) Guarantor agrees to remain bound under this guarantee for so long as
[local government owner or operator] must comply with the applicable financial
responsibility requirements of 40 CFR part 280, subpart H for the above
identified tank(s), except that guarantor may cancel this guarantee by sending
notice by certified mail to [owner or operator], such cancellation to become
effective no earlier than 120 days after receipt of such notice by [owner or
operator], as evidenced by the return receipt. If notified of a probable
release, the guarantor agrees to remain bound to the terms of this guarantee for
all charges arising from the release, up to the coverage limits specified above,
notwithstanding the cancellation of the guarantee with respect to future
releases.
(8) The guarantor's obligation does not apply to any of the following:
(a) Any obligation of [local government owner or operator] under a workers'
compensation disability benefits, or unemployment compensation law or other
similar law;
(b) Bodily injury to an employee of [insert: local government owner or
operator] arising from, and in the course of, employment by [insert: local
government owner or operator];
(c) Bodily injury or property damage arising from the ownership, maintenance,
use, or entrustment to others of any aircraft, motor vehicle, or watercraft;
(d) Property damage to any property owned, rented, loaded to, in the care,
custody, or control of, or occupied by [insert: local government owner or
operator] that is not the direct result of a release from a petroleum
underground storage tank;
(e) Bodily damage or property damage for which [insert: owner or operator] is
obligated to pay damages by reason of the assumption of liability in a contract
or agreement other than a contract or agreement entered into to meet the
requirements of 40 CFR part 280.93.
(9) Guarantor expressly waives notice of acceptance of this guarantee by [the
implementing agency], by any or all third parties, or by [local government owner
or operator],
I hereby certify that the wording of this guarantee is identical to the
wording specified in 40 CFR part 280.106(e) as such regulations were constituted
on the effective date shown immediately below. Effective date: _____
[Name of guarantor]
[Authorized signature for guarantor]
[Name of person signing]
[Title of person signing]
Signature of witness or notary:
[58 FR 9056, Feb. 18, 1993] A local government owner or operator may satisfy the requirements of §280.93
by establishing a dedicated fund account that conforms to the requirements of
this section. Except as specified in paragraph (b), a dedicated fund may not be
commingled with other funds or otherwise used in normal operations. A dedicated
fund will be considered eligible if it meets one of the following requirements:
(a) The fund is dedicated by state constitutional provision, or local
government statute, charter, ordinance, or order to pay for taking corrective
action and for compensating third parties for bodily injury and property damage
caused by accidental releases arising from the operation of petroleum
underground storage tanks and is funded for the full amount of coverage required
under §280.93, or funded for part of the required amount of coverage and used in
combination with other mechanism(s) that provide the remaining coverage; or
(b) The fund is dedicated by state constitutional provision, or local
government statute, charter, ordinance, or order as a contingency fund for
general emergencies, including taking corrective action and compensating third
parties for bodily injury and property damage caused by accidental releases
arising from the operation of petroleum underground storage tanks, and is funded
for five times the full amount of coverage required under §280.93, or funded for
part of the required amount of coverage and used in combination with other
mechanism(s) that provide the remaining coverage. If the fund is funded for less
than five times the amount of coverage required under §280.93, the amount of
financial responsibility demonstrated by the fund may not exceed one-fifth the
amount in the fund; or
(c) The fund is dedicated by state constitutional provision, or local
government statute, charter, ordinance or order to pay for taking corrective
action and for compensating third parties for bodily injury and property damage
caused by accidental releases arising from the operation of petroleum
underground storage tanks. A payment is made to the fund once every year for
seven years until the fund is fully-funded. This seven year period is hereafter
referred to as the "pay-in-period." The amount of each payment must be
determined by this formula: Where TF is the total required financial assurance for the owner or operator,
CF is the current amount in the fund, and Y is the number of years remaining in
the pay-in-period, and;
(1) The local government owner or operator has available bonding authority,
approved through voter referendum (if such approval is necessary prior to the
issuance of bonds), for an amount equal to the difference between the required
amount of coverage and the amount held in the dedicated fund. This bonding
authority shall be available for taking corrective action and for compensating
third parties for bodily injury and property damage caused by accidental
releases arising from the operation of petroleum underground storage tanks, or
(2) The local government owner or operator has a letter signed by the
appropriate state attorney general stating that the use of the bonding authority
will not increase the local government's debt beyond the legal debt ceilings
established by the relevant state laws. The letter must also state that prior
voter approval is not necessary before use of the bonding authority.
(d) To demonstrate that it meets the requirements of the local government
fund, the chief financial officer of the local government owner or operator
and/or guarantor must sign a letter worded exactly as follows, except that the
instructions in brackets are to be replaced by the relevant information and the
brackets deleted:
I am the chief financial officer of [insert: name and address of local
government owner or operator, or guarantor]. This letter is in support of the
use of the local government fund mechanism to demonstrate financial
responsibility for [insert: "taking corrective action" and/or "compensating
third parties for bodily injury and property damage"] caused by [insert: "sudden
accidental releases" and/or "nonsudden accidental releases"] in the amount of at
least [insert: dollar amount] per occurrence and [insert: dollar amount] annual
aggregate arising from operating (an) underground storage tank(s).
Underground storage tanks at the following facilities are assured by this
local government fund mechanism: [List for each facility: the name and address
of the facility where tanks are assured by the local government fund].
[Insert: "The local government fund is funded for the full amount of coverage
required under §280.93, or funded for part of the required amount of coverage
and used in combination with other mechanism(s) that provide the remaining
coverage." or "The local government fund is funded for ten times the full amount
of coverage required under §280.93, or funded for part of the required amount of
coverage and used in combination with other mechanisms(s) that provide the
remaining coverage," or "A payment is made to the fund once every year for seven
years until the fund is fully-funded and [name of local government owner or
operator] has available bonding authority, approved through voter referendum, of
an amount equal to the difference between the required amount of coverage and
the amount held in the dedicated fund" or "A payment is made to the fund once
every year for seven years until the fund is fully-funded and I have attached a
letter signed by the State Attorney General stating that (1) the use of the
bonding authority will not increase the local government's debt beyond the legal
debt ceilings established by the relevant state laws and (2) that prior voter
approval is not necessary before use of the bonding authority"].
The details of the local government fund are as follows: Amount in Fund
(market value of fund at close of last fiscal year):_____
[If fund balance is incrementally funded as specified in §280.107(c), insert:
Amount added to fund in the most recently completed fiscal year: _____
Number of years remaining in the pay-in period: ____]
A copy of the state constitutional provision, or local government statute,
charter, ordinance or order dedicating the fund is attached.
I hereby certify that the wording of this letter is identical to the wording
specified in 40 CFR 280.107(d) as such regulations were constituted on the date
shown immediately below.
[Date]
[Signature]
[Name]
[Title] [58 FR 9059, Feb. 18, 1993] (a) An owner or operator may substitute any alternate financial assurance
mechanisms as specified in this subpart, provided that at all times he maintains
an effective financial assurance mechanism or combination of mechanisms that
satisfies the requirements of §280.93.
(b) After obtaining alternate financial assurance as specified in this
subpart, an owner or operator may cancel a financial assurance mechanism by
providing notice to the provider of financial assurance.
[53 FR 43370, Oct. 26, 1988. Redesignated at 58 FR 9051, Feb. 18,
1993] (a) Except as otherwise provided, a provider of financial assurance may
cancel or fail to renew an assurance mechanism by sending a notice of
termination by certified mail to the owner or operator.
(1) Termination of a local government guarantee, a guarantee, a surety bond,
or a letter of credit may not occur until 120 days after the date on which the
owner or operator receives the notice of termination, as evidenced by the return
receipt.
(2) Termination of insurance or risk retention coverage, except for
non-payment or misrepresentation by the insured, or state-funded assurance may
not occur until 60 days after the date on which the owner or operator receives
the notice of termination, as evidenced by the return receipt. Termination for
non-payment of premium or misrepresentation by the insured may not occur until a
minimum of 10 days after the date on which the owner or operator receives the
notice of termination, as evidenced by the return receipt.
(b) If a provider of financial responsibility cancels or fails to renew for
reasons other than incapacity of the provider as specified in §280.114, the
owner or operator must obtain alternate coverage as specified in this section
within 60 days after receipt of the notice of termination. If the owner or
operator fails to obtain alternate coverage within 60 days after receipt of the
notice of termination, the owner or operator must notify the Director of the
implementing agency of such failure and submit:
(1) The name and address of the provider of financial assurance;
(2) The effective date of termination; and
(3) The evidence of the financial assistance mechanism subject to the
termination maintained in accordance with §280.107(b).
[58 FR 9051, Feb. 18, 1993] (a) An owner or operator must submit the appropriate forms listed in
§280.111(b) documenting current evidence of financial responsibility to the
Director of the implementing agency:
(1) Within 30 days after the owner or operator identifies a release from an
underground storage tank required to be reported under §280.53 or §280.61;
(2) If the owner or operator fails to obtain alternate coverage as required
by this subpart, within 30 days after the owner or operator receives notice of:
(i) Commencement of a voluntary or involuntary proceeding under Title 11
(Bankruptcy), U.S. Code, naming a provider of financial assurance as a debtor,
(ii) Suspension or revocation of the authority of a provider of financial
assurance to issue a financial assurance mechanism,
(iii) Failure of a guarantor to meet the requirements of the financial test,
(iv) Other incapacity of a provider of financial assurance; or
(3) As required by §280.95(g) and §280.109(b).
(b) An owner or operator must certify compliance with the financial
responsibility requirements of this part as specified in the new tank
notification form when notifying the appropriate state or local agency of the
installation of a new underground storage tank under §280.22.
(c) The Director of the Implementing Agency may require an owner or operator
to submit evidence of financial assurance as described in §280.111(b) or other
information relevant to compliance with this subpart at any time.
[58 FR 9051, Feb. 18, 1993] (a) Owners or operators must maintain evidence of all financial assurance
mechanisms used to demonstrate financial responsibility under this subpart for
an underground storage tank until released from the requirements of this subpart
under §208.113. An owner or operator must maintain such evidence at the
underground storage tank site or the owner's or operator's place of work.
Records maintained off-site must be made available upon request of the
implementing agency.
(b) An owner or operator must maintain the following types of evidence of
financial responsibility:
(1) An owner or operator using an assurance mechanism specified in §§280.95
through 280.100 or §280.102 or §§280.104 through 280.107 must maintain a copy of
the instrument worded as specified.
(2) An owner or operator using a financial test or guarantee, or a local
government financial test or a local government guarantee supported by the local
government financial test must maintain a copy of the chief financial officer's
letter based on year-end financial statements for the most recent completed
financial reporting year. Such evidence must be on file no later than 120 days
after the close of the financial reporting year.
(3) An owner or operator using a guarantee, surety bond, or letter of credit
must maintain a copy of the signed standby trust fund agreement and copies of
any amendments to the agreement.
(4) A local government owner or operator using a local government guarantee
under §280.106(d) must maintain a copy of the signed standby trust fund
agreement and copies of any amendments to the agreement.
(5) A local government owner or operator using the local government bond
rating test under §280.104 must maintain a copy of its bond rating published
within the last twelve months by Moody's or Standard & Poor's.
(6) A local government owner or operator using the local government guarantee
under §280.106, where the guarantor's demonstration of financial responsibility
relies on the bond rating test under §280.104 must maintain a copy of the
guarantor's bond rating published within the last twelve months by Moody's or
Standard & Poor's.
(7) An owner or operator using an insurance policy or risk retention group
coverage must maintain a copy of the signed insurance policy or risk retention
group coverage policy, with the endorsement or certificate of insurance and any
amendments to the agreements.
(8) An owner or operator covered by a state fund or other state assurance
must maintain on file a copy of any evidence of coverage supplied by or required
by the state under §280.101(d).
(9) An owner or operator using a local government fund under §280.107 must
maintain the following documents:
(i) A copy of the state constitutional provision or local government statute,
charter, ordinance, or order dedicating the fund, and
(ii) Year-end financial statements for the most recent completed financial
reporting year showing the amount in the fund. If the fund is established under
§280.107(a)(3) using incremental funding backed by bonding authority, the
financial statements must show the previous year's balance, the amount of
funding during the year, and the closing balance in the fund.
(iii) If the fund is established under §280.107(a)(3) using incremental
funding backed by bonding authority, the owner or operator must also maintain
documentation of the required bonding authority, including either the results of
a voter referendum (under §280.107(a)(3)(i)), or attestation by the State
Attorney General as specified under §280.107(a)(3)(ii).
(10) A local government owner or operator using the local government
guarantee supported by the local government fund must maintain a copy of the
guarantor's year-end financial statements for the most recent completed
financial reporting year showing the amount of the fund.
(11)(i) An owner or operator using an assurance mechanism specified in
§§280.95 through 280.107 must maintain an updated copy of a certification of
financial responsibility worded as follows, except that instructions in brackets
are to be replaced with the relevant information and the brackets deleted:
[Owner or operator] hereby certifies that it is in compliance with the
requirements of subpart H of 40 CFR part 280.
The financial assurance mechanism(s) used to demonstrate financial
responsibility under subpart H of 40 CFR part 280 is (are) as follows:
[For each mechanism, list the type of mechanism, name of issuer, mechanism
number (if applicable), amount of coverage, effective period of coverage and
whether the mechanism covers "taking corrective action" and/or "compensating
third parties for bodily injury and property damage caused by" either "sudden
accidental releases" or "nonsudden accidental releases" or "accidental
releases."]
[Signature of owner or operator]
[Name of owner or operator]
[Title]
[Date]
[Signature of witness or notary]
[Name of witness or notary]
[Date]
(ii) The owner or operator must update this certification whenever the
financial assurance mechanism(s) used to demonstrate financial responsibility
change(s).
[58 FR 9051, Feb. 18, 1993] (a) Except as specified in paragraph (d) of this section, the Director of the
implementing agency shall require the guarantor, surety, or institution issuing
a letter of credit to place the amount of funds stipulated by the Director, up
to the limit of funds provided by the financial assurance mechanism, into the
standby trust if:
(1)(i) The owner or operator fails to establish alternate financial assurance
within 60 days after receiving notice of cancellation of the guarantee, surety
bond, letter of credit, or, as applicable, other financial assurance mechanism;
and
(ii) The Director determines or suspects that a release from an underground
storage tank covered by the mechanism has occurred and so notifies the owner or
operator or the owner or operator has notified the Director pursuant to subparts
E or F of a release from an underground storage tank covered by the mechanism;
or
(2) The conditions of paragraph (b)(1) or (b)(2) (i) or (ii) of this section
are satisfied.
(b) The Director of the implementing agency may draw on a standby trust fund
when:
(1) The Director makes a final determination that a release has occurred and
immediate or long-term corrective action for the release is needed, and the
owner or operator, after appropriate notice and opportunity to comply, has not
conducted corrective action as required under 40 CFR part 280, subpart F; or
(2) The Director has received either:
(i) Certification from the owner or operator and the third-party liability
claimant(s) and from attorneys representing the owner or operator and the
third-party liability claimant(s) that a third-party liability claim should be
paid. The certification must be worded as follows, except that instructions in
brackets are to be replaced with the relevant information and the brackets
deleted:
The undersigned, as principals and as legal representatives of [insert: owner
or operator] and [insert: name and address of third-party claimant], hereby
certify that the claim of bodily injury [and/or] property damage caused by an
accidental release arising from operating [owner's or operator's] underground
storage tank should be paid in the amount of $[______].
[Signatures] [Signatures] or (ii) A valid final court order establishing a judgment against the owner
or operator for bodily injury or property damage caused by an accidental release
from an underground storage tank covered by financial assurance under this
subpart and the Director determines that the owner or operator has not satisfied
the judgment.
(c) If the Director of the implementing agency determines that the amount of
corrective action costs and third-party liability claims eligible for payment
under paragraph (b) of this section may exceed the balance of the standby trust
fund and the obligation of the provider of financial assurance, the first
priority for payment shall be corrective action costs necessary to protect human
health and the environment. The Director shall pay third-party liability claims
in the order in which the Director receives certifications under paragraph
(b)(2)(i) of this section, and valid court orders under paragraph (b)(2)(ii) of
this section.
(d) A governmental entity acting as guarantor under §280.106(e), the local
government guarantee without standby trust, shall make payments as directed by
the Director under the circumstances described in §280.112 (a), (b), and (c).
[58 FR 9052, Feb. 18, 1993] An owner or operator is no longer required to maintain financial
responsibility under this subpart for an underground storage tank after the tank
has been properly closed or, if corrective action is required, after corrective
action has been completed and the tank has been properly closed as required by
40 CFR part 280, subpart G.
[53 FR 43370, Oct. 26, 1988. Redesignated at 58 FR 9051, Feb. 18,
1993] (a) Within 10 days after commencement of a voluntary or involuntary
proceeding under Title 11 (Bankruptcy), U.S. Code, naming an owner or operator
as debtor, the owner or operator must notify the Director of the implementing
agency by certified mail of such commencement and submit the appropriate forms
listed in §280.111(b) documenting current financial responsibility.
(b) Within 10 days after commencement of a voluntary or involuntary
proceeding under Title 11 (Bankruptcy), U.S. Code, naming a guarantor providing
financial assurance as debtor, such guarantor must notify the owner or operator
by certified mail of such commencement as required under the terms of the
guarantee specified in §280.96.
(c) Within 10 days after commencement of a voluntary or involuntary
proceeding under Title 11 (Bankruptcy), U.S. Code, naming a local government
owner or operator as debtor, the local government owner or operator must notify
the Director of the implementing agency by certified mail of such commencement
and submit the appropriate forms listed in §280.111(b) documenting current
financial responsibility.
(d) Within 10 days after commencement of a voluntary or involuntary
proceeding under Title 11 (Bankruptcy), U.S. Code, naming a guarantor providing
a local government financial assurance as debtor, such guarantor must notify the
local government owner or operator by certified mail of such commencement as
required under the terms of the guarantee specified in §280.106.
(e) An owner or operator who obtains financial assurance by a mechanism other
than the financial test of self-insurance will be deemed to be without the
required financial assurance in the event of a bankruptcy or incapacity of its
provider of financial assurance, or a suspension or revocation of the authority
of the provider of financial assurance to issue a guarantee, insurance policy,
risk retention group coverage policy, surety bond, letter of credit, or
state-required mechanism. The owner or operator must obtain alternate financial
assurance as specified in this subpart within 30 days after receiving notice of
such an event. If the owner or operator does not obtain alternate coverage
within 30 days after such notification, he must notify the Director of the
implementing agency.
(f) Within 30 days after receipt of notification that a state fund or other
state assurance has become incapable of paying for assured corrective action or
third-party compensation costs, the owner or operator must obtain alternate
financial assurance.
[58 FR 9053, Feb. 18, 1993] (a) If at any time after a standby trust is funded upon the instruction of
the Director of the implementing agency with funds drawn from a guarantee, local
government guarantee with standby trust, letter of credit, or surety bond, and
the amount in the standby trust is reduced below the full amount of coverage
required, the owner or operator shall by the anniversary date of the financial
mechanism from which the funds were drawn:
(1) Replenish the value of financial assurance to equal the full amount of
coverage required, or
(2) Acquire another financial assurance mechanism for the amount by which
funds in the standby trust have been reduced.
(b) For purposes of this section, the full amount of coverage required is the
amount of coverage to be provided by §280.93 of this subpart. If a combination
of mechanisms was used to provide the assurance funds which were drawn upon,
replenishment shall occur by the earliest anniversary date among the mechanisms.
[58 FR 9053, Feb. 18, 1993] Source: 60
FR 46711, Sept. 7, 1995, unless otherwise noted.
(a) UST technical standards, as used in this subpart, refers to the
UST preventative and operating requirements under 40 CFR part 280, subparts B,
C, D, G, and §280.50 of subpart E.
(b) Petroleum production, refining, and marketing.
(1) Petroleum production means the production of crude oil or other
forms of petroleum (as defined in §280.12) as well as the production of
petroleum products from purchased materials.
(2) Petroleum refining means the cracking, distillation, separation,
conversion, upgrading, and finishing of refined petroleum or petroleum products.
(3) Petroleum marketing means the distribution, transfer, or sale of
petroleum or petroleum products for wholesale or retail purposes.
(c) Indicia of ownership means evidence of a secured interest,
evidence of an interest in a security interest, or evidence of an interest in
real or personal property securing a loan or other obligation, including any
legal or equitable title or deed to real or personal property acquired through
or incident to foreclosure. Evidence of such interests include, but are not
limited to, mortgages, deeds of trust, liens, surety bonds and guarantees of
obligations, title held pursuant to a lease financing transaction in which the
lessor does not select initially the leased property (hereinafter "lease
financing transaction"), and legal or equitable title obtained pursuant to
foreclosure. Evidence of such interests also includes assignments, pledges, or
other rights to or other forms of encumbrance against property that are held
primarily to protect a security interest. A person is not required to hold title
or a security interest in order to maintain indicia of ownership.
(d) A holder is a person who, upon the effective date of this
regulation or in the future, maintains indicia of ownership (as defined in
§280.200(c)) primarily to protect a security interest (as defined in
§280.200(f)(1)) in a petroleum UST or UST system or facility or property on
which a petroleum UST or UST system is located. A holder includes the initial
holder (such as a loan originator); any subsequent holder (such as a
successor-in-interest or subsequent purchaser of the security interest on the
secondary market); a guarantor of an obligation, surety, or any other person who
holds ownership indicia primarily to protect a security interest; or a receiver
or other person who acts on behalf or for the benefit of a holder.
(e) A borrower, debtor, or obligor is a person whose UST or UST system
or facility or property on which the UST or UST system is located is encumbered
by a security interest. These terms may be used interchangeably.
(f) Primarily to protect a security interest means that the holder's
indicia of ownership are held primarily for the purpose of securing payment or
performance of an obligation.
(1) Security interest means an interest in a petroleum UST or UST
system or in the facility or property on which a petroleum UST or UST system is
located, created or established for the purpose of securing a loan or other
obligation. Security interests include but are not limited to mortgages, deeds
of trusts, liens, and title pursuant to lease financing transactions. Security
interests may also arise from transactions such as sale and leasebacks,
conditional sales, installment sales, trust receipt transactions, certain
assignments, factoring agreements, accounts receivable financing arrangements,
and consignments, if the transaction creates or establishes an interest in an
UST or UST system or in the facility or property on which the UST or UST system
is located, for the purpose of securing a loan or other obligation.
(2) Primarily to protect a security interest, as used in this subpart,
does not include indicia of ownership held primarily for investment purposes,
nor ownership indicia held primarily for purposes other than as protection for a
security interest. A holder may have other, secondary reasons for maintaining
indicia of ownership, but the primary reason why any ownership indicia are held
must be as protection for a security interest.
(g) Operation means, for purposes of this subpart, the use, storage,
filling, or dispensing of petroleum contained in an UST or UST system.
The term "participating in the management of an UST or UST system" means
that, subsequent to the effective date of this subpart, December 6, 1995, the
holder is engaging in decisionmaking control of, or activities related to,
operation of the UST or UST system, as defined herein.
(a) Actions that are participation in management.
(1) Participation in the management of an UST or UST system means, for
purposes of this subpart, actual participation by the holder in the management
or control of decisionmaking related to the operation of an UST or UST system.
Participation in management does not include the mere capacity or ability to
influence or the unexercised right to control UST or UST system operations. A
holder is participating in the management of the UST or UST system only if the
holder either:
(i) Exercises decisionmaking control over the operational (as opposed to
financial or administrative) aspects of the UST or UST system, such that the
holder has undertaken responsibility for all or substantially all of the
management of the UST or UST system; or
(ii) Exercises control at a level comparable to that of a manager of the
borrower's enterprise, such that the holder has assumed or manifested
responsibility for the overall management of the enterprise encompassing the
day-to-day decisionmaking of the enterprise with respect to all, or
substantially all, of the operational (as opposed to financial or
administrative) aspects of the enterprise.
(2) Operational aspects of the enterprise relate to the use, storage,
filling, or dispensing of petroleum contained in an UST or UST system, and
include functions such as that of a facility or plant manager, operations
manager, chief operating officer, or chief executive officer. Financial or
administrative aspects include functions such as that of a credit manager,
accounts payable/receivable manager, personnel manager, controller, chief
financial officer, or similar functions. Operational aspects of the enterprise
do not include the financial or administrative aspects of the enterprise, or
actions associated with environmental compliance, or actions undertaken
voluntarily to protect the environment in accordance with applicable
requirements in 40 CFR part 280 or applicable state requirements in those states
that have been delegated authority by EPA to administer the UST program pursuant
to 42 USC 6991c and 40 CFR part 281.
(b) Actions that are not participation in management pre-foreclosure.
(1) Actions at the inception of the loan or other transaction. No act or
omission prior to the time that indicia of ownership are held primarily to
protect a security interest constitutes evidence of participation in management
within the meaning of this subpart. A prospective holder who undertakes or
requires an environmental investigation (which could include a site assessment,
inspection, and/or audit) of the UST or UST system or facility or property on
which the UST or UST system is located (in which indicia of ownership are to be
held), or requires a prospective borrower to clean up contamination from the UST
or UST system or to comply or come into compliance (whether prior or subsequent
to the time that indicia of ownership are held primarily to protect a security
interest) with any applicable law or regulation, is not by such action
considered to be participating in the management of the UST or UST system or
facility or property on which the UST or UST system is located.
(2) Loan policing and work out. Actions that are consistent with holding
ownership indicia primarily to protect a security interest do not constitute
participation in management for purposes of this subpart. The authority for the
holder to take such actions may, but need not, be contained in contractual or
other documents specifying requirements for financial, environmental, and other
warranties, covenants, conditions, representations or promises from the
borrower. Loan policing and work out activities cover and include all such
activities up to foreclosure, exclusive of any activities that constitute
participation in management.
(i) Policing the security interest or loan.
(A) A holder who engages in policing activities prior to foreclosure will
remain within the exemption provided that the holder does not together with
other actions participate in the management of the UST or UST system as provided
in §280.210(a). Such policing actions include, but are not limited to, requiring
the borrower to clean up contamination from the UST or UST system during the
term of the security interest; requiring the borrower to comply or come into
compliance with applicable federal, state, and local environmental and other
laws, rules, and regulations during the term of the security interest; securing
or exercising authority to monitor or inspect the UST or UST system or facility
or property on which the UST or UST system is located (including on-site
inspections) in which indicia of ownership are maintained, or the borrower's
business or financial condition during the term of the security interest; or
taking other actions to adequately police the loan or security interest (such as
requiring a borrower to comply with any warranties, covenants, conditions,
representations, or promises from the borrower).
(B) Policing activities also include undertaking by the holder of UST
environmental compliance actions and voluntary environmental actions taken in
compliance with 40 CFR part 280, provided that the holder does not otherwise
participate in the management or daily operation of the UST or UST system as
provided in §280.210(a) and §280.230. Such allowable actions include, but are
not limited to, release detection and release reporting, release response and
corrective action, temporary or permanent closure of an UST or UST system, UST
upgrading or replacement, and maintenance of corrosion protection. A holder who
undertakes these actions must do so in compliance with the applicable
requirements in 40 CFR part 280 or applicable state requirements in those states
that have been delegated authority by EPA to administer the UST program pursuant
to 42 U.S.C. 6991c and 40 CFR part 281. A holder may directly oversee these
environmental compliance actions and voluntary environmental actions, and
directly hire contractors to perform the work, and is not by such action
considered to be participating in the management of the UST or UST system.
(ii) Loan work out. A holder who engages in work out activities prior to
foreclosure will remain within the exemption provided that the holder does not
together with other actions participate in the management of the UST or UST
system as provided in §280.210(a). For purposes of this rule, "work out" refers
to those actions by which a holder, at any time prior to foreclosure, seeks to
prevent, cure, or mitigate a default by the borrower or obligor; or to preserve,
or prevent the diminution of, the value of the security. Work out activities
include, but are not limited to, restructuring or renegotiating the terms of the
security interest; requiring payment of additional rent or interest; exercising
forbearance; requiring or exercising rights pursuant to an assignment of
accounts or other amounts owing to an obligor; requiring or exercising rights
pursuant to an escrow agreement pertaining to amounts owing to an obligor;
providing specific or general financial or other advice, suggestions,
counseling, or guidance; and exercising any right or remedy the holder is
entitled to by law or under any warranties, covenants, conditions,
representations, or promises from the borrower.
(c) Foreclosure on an UST or UST system or facility or property on which an
UST or UST system is located, and participation in management activities
post-foreclosure.
(1) Foreclosure. (i) Indicia of ownership that are held primarily to protect
a security interest include legal or equitable title or deed to real or personal
property acquired through or incident to foreclosure. For purposes of this
subpart, the term "foreclosure" means that legal, marketable or equitable title
or deed has been issued, approved, and recorded, and that the holder has
obtained access to the UST, UST system, UST facility, and property on which the
UST or UST system is located, provided that the holder acted diligently to
acquire marketable title or deed and to gain access to the UST, UST system, UST
facility, and property on which the UST or UST system is located. The indicia of
ownership held after foreclosure continue to be maintained primarily as
protection for a security interest provided that the holder undertakes to sell,
re-lease an UST or UST system or facility or property on which the UST or UST
system is located, held pursuant to a lease financing transaction (whether by a
new lease financing transaction or substitution of the lessee), or otherwise
divest itself of the UST or UST system or facility or property on which the UST
or UST system is located, in a reasonably expeditious manner, using whatever
commercially reasonable means are relevant or appropriate with respect to the
UST or UST system or facility or property on which the UST or UST system is
located, taking all facts and circumstances into consideration, and provided
that the holder does not participate in management (as defined in §280.210(a))
prior to or after foreclosure.
(ii) For purposes of establishing that a holder is seeking to sell, re-lease
pursuant to a lease financing transaction (whether by a new lease financing
transaction or substitution of the lessee), or divest in a reasonably
expeditious manner an UST or UST system or facility or property on which the UST
or UST system is located, the holder may use whatever commercially reasonable
means as are relevant or appropriate with respect to the UST or UST system or
facility or property on which the UST or UST system is located, or may employ
the means specified in §280.210(c)(2). A holder that outbids, rejects, or fails
to act upon a written bona fide, firm offer of fair consideration for the
UST or UST system or facility or property on which the UST or UST system is
located, as provided in §280.210(c)(2), is not considered to hold indicia of
ownership primarily to protect a security interest.
(2) Holding foreclosed property for disposition and liquidation. A holder,
who does not participate in management prior to or after foreclosure, may sell,
re-lease, pursuant to a lease financing transaction (whether by a new lease
financing transaction or substitution of the lessee), an UST or UST system or
facility or property on which the UST or UST system is located, liquidate, wind
up operations, and take measures, prior to sale or other disposition, to
preserve, protect, or prepare the secured UST or UST system or facility or
property on which the UST or UST system is located. A holder may also arrange
for an existing or new operator to continue or initiate operation of the UST or
UST system. The holder may conduct these activities without voiding the security
interest exemption, subject to the requirements of this subpart.
(i) A holder establishes that the ownership indicia maintained after
foreclosure continue to be held primarily to protect a security interest by,
within 12 months following foreclosure, listing the UST or UST system or the
facility or property on which the UST or UST system is located, with a broker,
dealer, or agent who deals with the type of property in question, or by
advertising the UST or UST system or facility or property on which the UST or
UST system is located, as being for sale or disposition on at least a monthly
basis in either a real estate publication or a trade or other publication
suitable for the UST or UST system or facility or property on which the UST or
UST system is located, or a newspaper of general circulation (defined as one
with a circulation over 10,000, or one suitable under any applicable federal,
state, or local rules of court for publication required by court order or rules
of civil procedure) covering the location of the UST or UST system or facility
or property on which the UST or UST system is located. For purposes of this
provision, the 12-month period begins to run from December 6, 1995 or from the
date that the marketable title or deed has been issued, approved and recorded,
and the holder has obtained access to the UST, UST system, UST facility and
property on which the UST or UST system is located, whichever is later, provided
that the holder acted diligently to acquire marketable title or deed and to
obtain access to the UST, UST system, UST facility and property on which the UST
or UST system is located. If the holder fails to act diligently to acquire
marketable title or deed or to gain access to the UST or UST system, the
12-month period begins to run from December 6, 1995 or from the date on which
the holder first acquires either title to or possession of the secured UST or
UST system, or facility or property on which the UST or UST system is located,
whichever is later.
(ii) A holder that outbids, rejects, or fails to act upon an offer of fair
consideration for the UST or UST system or the facility or property on which the
UST or UST system is located, establishes by such outbidding, rejection, or
failure to act, that the ownership indicia in the secured UST or UST system or
facility or property on which the UST or UST system is located are not held
primarily to protect the security interest, unless the holder is required, in
order to avoid liability under federal or state law, to make a higher bid, to
obtain a higher offer, or to seek or obtain an offer in a different manner.
(A) Fair consideration, in the case of a holder maintaining indicia of
ownership primarily to protect a senior security interest in the UST or UST
system or facility or property on which the UST or UST system is located, is the
value of the security interest as defined in this section. The value of the
security interest includes all debt and costs incurred by the security interest
holder, and is calculated as an amount equal to or in excess of the sum of the
outstanding principal (or comparable amount in the case of a lease that
constitutes a security interest) owed to the holder immediately preceding the
acquisition of full title (or possession in the case of a lease financing
transaction) pursuant to foreclosure, plus any unpaid interest, rent, or
penalties (whether arising before or after foreclosure). The value of the
security interest also includes all reasonable and necessary costs, fees, or
other charges incurred by the holder incident to work out, foreclosure,
retention, preserving, protecting, and preparing, prior to sale, the UST or UST
system or facility or property on which the UST or UST system is located,
re-lease, pursuant to a lease financing transaction (whether by a new lease
financing transaction or substitution of the lessee), of an UST or UST system or
facility or property on which the UST or UST system is located, or other
disposition. The value of the security interest also includes environmental
investigation costs (which could include a site assessment, inspection, and/or
audit of the UST or UST system or facility or property on which the UST or UST
system is located), and corrective action costs incurred under §§280.51 through
280.67 or any other costs incurred as a result of reasonable efforts to comply
with any other applicable federal, state or local law or regulation; less any
amounts received by the holder in connection with any partial disposition of the
property and any amounts paid by the borrower (if not already applied to the
borrower's obligations) subsequent to the acquisition of full title (or
possession in the case of a lease financing transaction) pursuant to
foreclosure. In the case of a holder maintaining indicia of ownership primarily
to protect a junior security interest, fair consideration is the value of all
outstanding higher priority security interests plus the value of the security
interest held by the junior holder, each calculated as set forth in this
paragraph.
(B) Outbids, rejects, or fails to act upon an offer of fair consideration
means that the holder outbids, rejects, or fails to act upon within 90 days of
receipt, a written, bona fide, firm offer of fair consideration for the
UST or UST system or facility or property on which the UST or UST system is
located received at any time after six months following foreclosure, as defined
in §280.210(c). A "written, bona fide, firm offer" means a legally
enforceable, commercially reasonable, cash offer solely for the foreclosed UST
or UST system or facility or property on which the UST or UST system is located,
including all material terms of the transaction, from a ready, willing, and able
purchaser who demonstrates to the holder's satisfaction the ability to perform.
For purposes of this provision, the six-month period begins to run from December
6, 1995 or from the date that marketable title or deed has been issued, approved
and recorded to the holder, and the holder has obtained access to the UST, UST
system, UST facility and property on which the UST or UST system is located,
whichever is later, provided that the holder was acting diligently to acquire
marketable title or deed and to obtain access to the UST or UST system, UST
facility and property on which the UST or UST system is located. If the holder
fails to act diligently to acquire marketable title or deed or to gain access to
the UST or UST system, the six-month period begins to run from December 6, 1995
or from the date on which the holder first acquires either title to or
possession of the secured UST or UST system, or facility or property on which
the UST or UST system is located, whichever is later.
(3) Actions that are not participation in management post-foreclosure. A
holder is not considered to be participating in the management of an UST or UST
system or facility or property on which the UST or UST system is located when
undertaking actions under 40 CFR part 280, provided that the holder does not
otherwise participate in the management or daily operation of the UST or UST
system as provided in §280.210(a) and §280.230. Such allowable actions include,
but are not limited to, release detection and release reporting, release
response and corrective action, temporary or permanent closure of an UST or UST
system, UST upgrading or replacement, and maintenance of corrosion protection. A
holder who undertakes these actions must do so in compliance with the applicable
requirements in 40 CFR part 280 or applicable state requirements in those states
that have been delegated authority by EPA to administer the UST program pursuant
to 42 U.S.C. 6991c and 40 CFR part 281. A holder may directly oversee these
environmental compliance actions and voluntary environmental actions, and
directly hire contractors to perform the work, and is not by such action
considered to be participating in the management of the UST or UST system.
Ownership of an UST or UST system or facility or property on which an UST or
UST system is located. A holder is not an "owner" of a petroleum UST or UST
system or facility or property on which a petroleum UST or UST system is located
for purposes of compliance with the UST technical standards as defined in
§280.200(a), the UST corrective action requirements under §§280.51 through
280.67, and the UST financial responsibility requirements under §§280.90 through
280.111, provided the person:
(a) Does not participate in the management of the UST or UST system as
defined in §280.210; and (b) Does not engage in petroleum production, refining, and marketing as
defined in §280.200(b).
(a) Operating an UST or UST system prior to foreclosure. A holder, prior to
foreclosure, as defined in §280.210(c), is not an "operator" of a petroleum UST
or UST system for purposes of compliance with the UST technical standards as
defined in §280.200(a), the UST corrective action requirements under §§280.51
through 280.67, and the UST financial responsibility requirements under §§280.90
through 280.111, provided that, after December 6, 1995, the holder is not in
control of or does not have responsibility for the daily operation of the UST or
UST system.
(b) Operating an UST or UST system after foreclosure. The following
provisions apply to a holder who, through foreclosure, as defined in
§280.210(c), acquires a petroleum UST or UST system or facility or property on
which a petroleum UST or UST system is located.
(1) A holder is not an "operator" of a petroleum UST or UST system for
purposes of compliance with 40 CFR part 280 if there is an operator, other than
the holder, who is in control of or has responsibility for the daily operation
of the UST or UST system, and who can be held responsible for compliance with
applicable requirements of 40 CFR part 280 or applicable state requirements in
those states that have been delegated authority by EPA to administer the UST
program pursuant to 42 U.S.C. 6991c and 40 CFR part 281.
(2) If another operator does not exist, as provided for under paragraph
(b)(1) of this section, a holder is not an "operator" of the UST or UST system,
for purposes of compliance with the UST technical standards as defined in
§280.200(a), the UST corrective action requirements under §§280.51 through
280.67, and the UST financial responsibility requirements under §§280.90 through
280.111, provided that the holder:
(i) Empties all of its known USTs and UST systems within 60 calendar days
after foreclosure or within 60 calendar days after December 6, 1995, whichever
is later, or another reasonable time period specified by the implementing
agency, so that no more than 2.5 centimeters (one inch) of residue, or 0.3
percent by weight of the total capacity of the UST system, remains in the
system; leaves vent lines open and functioning; and caps and secures all other
lines, pumps, manways, and ancillary equipment; and
(ii) Empties those USTs and UST systems that are discovered after foreclosure
within 60 calendar days after discovery or within 60 calendar days after
December 6, 1995, whichever is later, or another reasonable time period
specified by the implementing agency, so that no more than 2.5 centimeters (one
inch) of residue, or 0.3 percent by weight of the total capacity of the UST
system, remains in the system; leaves vent lines open and functioning; and caps
and secures all other lines, pumps, manways, and ancillary equipment.
(3) If another operator does not exist, as provided for under paragraph
(b)(1) of this section, in addition to satisfying the conditions under paragraph
(b)(2) of this section, the holder must either:
(i) Permanently close the UST or UST system in accordance with §§280.71
through 280.74, except §280.72(b); or
(ii) Temporarily close the UST or UST system in accordance with the following
applicable provisions of §280.70:
(A) Continue operation and maintenance of corrosion protection in accordance
with §280.31;
(B) Report suspected releases to the implementing agency; and
(C) Conduct a site assessment in accordance with §280.72(a) if the UST system
is temporarily closed for more than 12 months and the UST system does not meet
either the performance standards in §280.20 for new UST systems or the upgrading
requirements in §280.21, except that the spill and overfill equipment
requirements do not have to be met. The holder must report any suspected
releases to the implementing agency. For purposes of this provision, the
12-month period begins to run from December 6, 1995 or from the date on which
the UST system is emptied and secured under paragraph (b)(2) of this section,
whichever is later.
(4) The UST system can remain in temporary closure until a subsequent
purchaser has acquired marketable title to the UST or UST system or facility or
property on which the UST or UST system is located. Once a subsequent purchaser
acquires marketable title to the UST or UST system or facility or property on
which the UST or UST system is located, the purchaser must decide whether to
operate or close the UST or UST system in accordance with applicable
requirements in 40 CFR part 280 or applicable state requirements in those states
that have been delegated authority by EPA to administer the UST program pursuant
to 42 U.S.C. 6991c and 40 CFR part 281.
Alabama (EPA Form), Alabama Department of Environmental Management, Ground
Water Section/Water Division, 1751 Congressman W.L. Dickinson Drive, Montgomery,
Alabama 36130, 205/271-7823
Alaska (EPA Form), Department of Environmental Conservation, Box 0, Juneau,
Alaska 99811-1800, 970/465-2653
American Samoa (EPA Form), Executive Secretary, Environmental Quality
Commission, Office of the Governor, American Samoan Government, Pago Pago,
American Samoa 96799; Attention: UST Notification
Arizona (EPA Form), Attention: UST Coordinator, Arizona Department of
Environmental Quality, Environmental Health Services, 2005 N. Central, Phoenix,
Arizona 85004
Arkansas (EPA Form), Arkansas Department of Pollution Control and Ecology,
P.O. Box 9583, Little Rock, Arkansas 72219, 501/562-7444
California (State Form), Executive Director, State Water Resources Control
Board, P.O. Box 100, Sacramento, California 95801, 916/445-1533
Co1orado (EPA Form), Section Chief, Colorado Department of Health, Waste
Management Division, Underground Tank Program, 4210 East 11th Avenue, Denver,
Colorado 80220, 303/320-8333
Connecticut (State Form), Hazardous Materials Management Unit, Department of
Environmental Protection, State Office Building, 165 Capitol Avenue, Hartford,
Connecticut 06106
Delaware (State Form), Division of Air and Waste Management, Department of
Natural Resources and Environmental Control, P.O. Box 1401, 89 Kings Highway,
Dover, Delaware 19903, 302/726-5409
District of Columbia (EPA Form), Attention: UST Notification Form, Department
of Consumer and Regulatory Affairs, Pesticides and Hazardous Waste Management
Branch, Room 114, 5010 Overlook Avenue SW., Washington, DC 20032
Florida (State Form), Florida Department of Environmental Regulation, Solid
Waste Section, Twin Towers Office Building, 2600 Blair Stone Road, Tallahassee,
Florida 32399, 904/487-4398
Georgia (EPA Form), Georgia Department of Natural Resources, Environmental
Protection Division, Underground Storage Tank Program, 3420 Norman Berry Drive,
7th Floor, Hapeville, Georgia 30354, 404/656-7404
Guam (State Form), Administrator, Guam Environmental Protection Agency, P.O.
Box 2999, Agana, Guam 96910, Overseas Operator (Commercial call 646-8863)
Hawaii (EPA Form), Administrator, Hazardous Waste Program, 645 Halekauwila
Street, Honolulu, Hawaii 96813, 808/548-2270
Idaho (EPA Form), Underground Storage Tank Coordinator, Water Quality Bureau,
Division of Environmental Quality, Idaho Department of Health and Welfare, 450
W. State Street, Boise, Idaho 83720, 208/334-4251
Illinois (EPA Form), Underground Storage Tank Coordinator, Division of Fire
Prevention, Office of State Fire Marshal, 3150 Executive Park Drive,
Springfield, Illinois 62703-4599
Indiana (EPA Form), Underground Storage Tank Program, Office of Environmental
Response, Indiana Department of Environmental Management, 105 South Meridian
Street, Indianapolis, Indiana 46225
Iowa (State Form), UST Coordinator, Iowa Department of Natural Resources,
Henry A. Wallace Building, 900 East Grand, Des Moines, Iowa 50219, 512/281-8135
Kansas (EPA Form), Kansas Department of Health and Environment, Forbes Field,
Building 740, Topeka, Kansas 66620, 913/296-1594
Kentucky (State Form), Department of Environmental Protection, Hazardous
Waste Branch, Fort Boone Plaza, Building #2, 18 Reilly Road, Frankfort, Kentucky
40601, 501/564-6716
Louisiana (State Form), Secretary, Louisiana Department of Environmental
Quality, P.O. Box 44066, Baton Rouge, Louisiana 70804, 501/342-1265
Maine (State Form), Attention: Underground Tanks Program, Bureau of Oil and
Hazardous Material Control, Department of Environmental Protection, State House
-- Station 17, Augusta, Maine 04333
Maryland (EPA Form), Science and Health Advisory Group, Office of
Environmental Programs, 201 West Preston Street, Baltimore, Maryland 21201
Massachusetts (EPA Form), UST Registry, Department of Public Safety, 1010
Commonwealth Avenue, Boston, Massachusetts 02215, 617/566-4500
Michigan (EPA Form), Michigan Department of State Police, Fire Marshal
Division, General Office Building, 7150 Harris Drive, Lansing, Michigan 48913
Minnesota (State Form), Underground Storage Tank Program, Division of Solid
and Hazardous Wastes, Minnesota Pollution Control Agency, 520 West Lafayette
Road, St. Paul, Minnesota 55155
Mississippi (State Form), Department of Natural Resources, Bureau of
Pollution Control, Underground Storage Tank Section, P.O. Box 10385, Jackson,
Mississippi 39209, 601/961-5171
Missouri (EPA Form), UST Coordinator, Missouri Department of Natural
Resources, P.O. Box 176, Jefferson City, Missouri 65102, 314/751-7428
Montana (EPA Form), Solid and Hazardous Waste Bureau, Department of Health
and Environmental Science, Cogswell Bldg., Room B-201, Helena, Montana 59620
Nebraska (EPA Form), Nebraska State Fire Marshal, P.O. Box 94677, Lincoln,
Nebraska 68509-4677, 402/471-9465
Nevada (EPA Form), Attention: UST Coordinator, Division of Environmental
Protection, Department of Conservation and Natural Resources, Capitol Complex
201 S. Fall Street, Carson City, Nevada 89710, 800/992-0900, Ext. 4670,
702/885-4670
New Hampshire (EPA Form), NH Dept. of Environmental Services, Water Supply
and Pollution Control Division, Hazen Drive, P.O. Box 95, Concord, New Hampshire
03301, Attention: UST Registration
New Jersey (State Form), Underground Storage Tank Coordinator, Department of
Environmental Protection, Division of Water Resources (CN-029), Trenton, New
Jersey 08625, 609/292-0424
New Mexico (EPA Form), New Mexico Environmental Improvement Division,
Groundwater/Hazardous Waste Bureau, P.O. Box 968, Santa Fe, New Mexico 37504,
505/827-2933
New York (EPA Form), Bulk Storage Section, Division of Water, Department of
Environmental Conservation, 50 Wolf Road, Room 326, Albany, New York 12233-0001,
518/457-4351
North Carolina (EPA Form), Division of Environmental Management, Ground-Water
Operations Branch, Department of Natural Resources and Community Development,
P.O. Box 27687, Raleigh, North Carolina 27611, 919/733-3221
North Dakota (State Form), Division of Hazardous Management and Special
Studies, North Dakota Department of Health, Box 5520, Bismarck, North Dakota
58502-5520
Northern Mariana Islands (EPA Form), Chief, Division of Environmental
Quality, P.O. Box 1304, Commonwealth of Northern Mariana Islands, Saipan, CM
96950, Cable Address: Gov. NMI Saipan, Overseas Operator: 6984
Ohio (State Form), State Fire Marshal's Office, Department of Commerce, 8895
E. Main Street, Reynoldsburg, Ohio 43068, State Hotline: 800/282-1927
Oklahoma (EPA Form), Underground Storage Tank Program, Oklahoma Corporation
Comm., Jim Thorpe Building, Oklahoma City, Oklahoma 73105
Oregon (State Form), Underground Storage Tank Program, Hazardous and Solid
Waste Division, Department of Environmental Quality, 811 S.W. Sixth Avenue,
Portland, Oregon 98204, 503/229-5788
Pennsylvania (EPA Form), PA Department of Environmental Resources, Bureau of
Water Quality Management, Ground Water Unit, 9th Floor Fulton Building, P.O. Box
2063, Harrisburg, Pennsylvania 17120
Puerto Rico (EPA Form), Director, Water Quality Control Area, Environmental
Quality Board, Commonwealth of Puerto Rico, Santurce, Puerto Rico, 809/725-0717
Rhode Island (EPA Form), UST Registration, Department of Environmental
Management, 83 Park Street, Providence, Rhode Island 02903, 401/277-2234
South Carolina (State Form), Ground-Water Protection Division, South Carolina
Department of Health and Environmental Control, 2600 Bull Street, Columbia,
South Carolina 29201, 803/758-5213
South Dakota (EPA Form), Office of Water Quality, Department of Water and
Natural Resources, Joe Foss Building, Pierre, South Dakota 57501,
Tennessee (EPA Form), Tennessee Department of Health and Environment,
Division of Superfund Underground Storage Tank Section, 150 Ninth Avenue, North,
Nashville, Tennessee 37219-5404, 615/741-0690
Texas (EPA Form), Underground Storage Tank Program, Texas Water Commission,
P.O. Box 13087, Austin, Texas 78711
Utah (EPA Form), Division of Envirormental Health, P.O. Box 45500, Salt Lake
City, Utah 84145-0500
Vermont (State Form), Underground Storage Tank Program, Vermont AEC/Waste
Management Division, State Office Building, Montpelier, Vermont 05602,
802/828-3395
Virginia (EPA Form), Virginia Water Control Board, P.O. Box 11143, Richmond,
Virginia 23230-1143, 804/257-6685
Virgin Islands (EPA Form), 205(J) Coordinator, Division of Natural Resources
Management, 14 F Building 111, Watergut Homes, Christianstead, St. Croix, Virgin
Islands 00820
Washington (State Form), Underground Storage Tank Notification, Solid and
Hazardous Waste Program, Department of Ecology, M/S PV-11, Olympia, Washington
98504-8711, 206/459-6316
West Virginia (EPA Form), Attention: UST Notification, Solid and Hazardous
Waste, Ground Water Branch, West Virginia Department of Natural Resources, 1201
Greenbriar Street, Charleston, West Virginia 25311
Wisconsin (State Form), Bureau of Petroleum Inspection, P.O. Box 7969,
Madison, Wisconsin 53707, 608/266-7605
Wyoming (EPA Form), Water Quality Division, Department of Environmental
Quality, Herschler Building, 4th Floor West, 122 West 25th Street, Cheyenne,
Wyoming 82002, 307/777-7781. Note. -- A Federal law (the Resource Conservation and Recovery Act
(RCRA), as amended (Pub. L. 98-616)) requires owners of certain underground
storage tanks to notify designated State or local agencies by May 8, 1986, of
the existence of their tanks. Notifications for tanks brought into use after May
8, 1986, must be made within 30 days. Consult EPA's regulations, issued on
November 8, 1985 (40 CFR part 280) to determine if you are affected by this
law
[TOP]
§280.10
Applicability.
[TOP]
§280.11
Interim prohibition for deferred UST systems.
[TOP]
§280.12
Definitions.
[TOP]
§280.20
Performance standards for new UST systems.
[TOP]
§280.21
Upgrading of existing UST systems.
[TOP]
§280.22
Notification requirements.
[TOP]
§280.30
Spill and overfill control.
[TOP]
§280.31
Operation and maintenance of corrosion protection.
[TOP]
§280.32
Compatibility.
[TOP]
§280.33
Repairs allowed.
[TOP]
§280.34
Reporting and recordkeeping.
[TOP]
§280.40
General requirements for all UST systems.
------------------------------------------------------------------------
Date after which Pd/Pfa
Method Section must be demonstrated
------------------------------------------------------------------------
Manual Tank Gauging........... 280.43(b) December 22, 1990.
Tank Tightness Testing........ 280.43(c) December 22, 1990.
Automatic Tank Gauging........ 280.43(d) December 22, 1990.
Automatic Line Leak Detectors. 280.44(a) September 22, 1991.
Line Tightness Testing........ 280.44(b) December 22, 1990.
------------------------------------------------------------------------
Schedule for Phase-in of Release Detection
------------------------------------------------------------------------
Year when release detection is required
(by December 22 of the year indicated)
Year system was installed ------------------------------------------
1989 1990 1991 1992 1993
------------------------------------------------------------------------
Before 1965 or date unknown.. RD P
1965-69...................... ....... P/RD
1970-74...................... ....... P RD
1975-79...................... ....... P ....... RD
1980-88...................... ....... P ....... ...... RD
1 1
New tanks (after December 22) immediately upon installation.
------------------------------------------------------------------------
P=Must begin release detection for all pressurized piping as defined in
§ 280.41(b)(1).
RD=Must begin release detection for tanks and suction piping in
accordance with § 280.41(a), § 280.41(b)(2), and §
280.42.
[TOP]
§280.41
Requirements for petroleum UST systems.
[TOP]
§280.42
Requirements for hazardous substance UST systems.
[TOP]
§280.43
Methods of release detection for tanks.
------------------------------------------------------------------------
Monthly standard
Nominal tank capacity Weekly standard (average of four
(one test) tests)
------------------------------------------------------------------------
550 gallons or less............. 10 gallons........ 5 gallons.
551-1,000 gallons............... 13 gallons........ 7 gallons.
1,001-2,000 gallons............. 26 gallons........ 13 gallons.
------------------------------------------------------------------------
[TOP]
§280.44
Methods of release detection for piping.
[TOP]
§280.45
Release detection recordkeeping.
[TOP]
§280.50
Reporting of suspected releases.
[TOP]
§280.51
Investigation due to off-site impacts.
[TOP]
§280.52
Release investigation and confirmation steps.
[TOP]
§280.53
Reporting and cleanup of spills and overfills.
[TOP]
§280.60
General.
[TOP]
§280.61
Initial response.
[TOP]
§280.62
Initial abatement measures and site check.
[TOP]
§280.63
Initial site characterization.
[TOP]
§280.64
Free product removal.
[TOP]
§280.65
Investigations for soil and ground-water cleanup.
[TOP]
§280.66
Corrective action plan.
[TOP]
§280.67
Public participation.
[TOP]
§280.70
Temporary closure.
[TOP]
§280.71
Permanent closure and changes-in-service.
[TOP]
§280.72
Assessing the site at closure or change-in-service.
[TOP]
§280.73
Applicability to previously closed UST systems.
[TOP]
§280.74
Closure records.
[TOP]
§280.90
Applicability.
[TOP]
§280.91
Compliance dates.
[TOP]
§280.92
Definition of terms.
[TOP]
§280.93
Amount and scope of required financial responsibility.
[TOP]
§280.94
Allowable mechanisms and combinations of mechanisms.
[TOP]
§280.95
Financial test of self-insurance.
LETTER FROM CHIEF FINANCIAL OFFICER
EPA Regulations Amount
Closure (§§ 264.143 and 265.143).............. $____
Post-Closure Care (§§ 264.145 and 265.145).... $____
Liability Coverage (§§ 264.147 and 265.147)... $____
Corrective Action (§§ 264.101(b))............. $____
Plugging and Abandonment (§ 144.63)................ $____
Closure................................................. $____
Post-Closure Care....................................... $____
Liabilitly Coverage..................................... $____
Corrective Action....................................... $____
Plugging and Abandonment................................ $____
Total............................................... $____
Alternative I
1. Amount of $____
annual UST
aggregate
coverage
being
assured by a
financial
test, and/or
guarantee
2. Amount of $____
corrective
action,
closure and
post-closure
care costs,
liability
coverage,
and plugging
and
abandonment
costs
covered by a
financial
test, and/or
guarantee
3. Sum of lines $____
1 and 2
4. Total $____
tangible
assets
5. Total $____
liabilities
[if any of
the amount
reported on
line 3 is
included in
total
liabilities,
you may
deduct that
amount from
this line
and add that
amount to
line 6]
6. Tangible net $____
worth
[subtract
line 5 from
line 4]
Yes No
7. Is line 6 at __ _
least $10
million?
8. Is line 6 at __ _
least 10
times line
3?
9. Have __ _
financial
statements
for the
latest
fiscal year
been filed
with the
Securities
and Exchange
Commission?
10. Have __ _
financial
statements
for the
latest
fiscal year
been filed
with the
Energy
Information
Administrati
on?
11. Have __ _
financial
statements
for the
lastest
fiscal year
been filed
with the
Rural
Electrificat
ion
Administrati
on?
12. Has __ _
financial
information
been
provided to
Dun and
Bradstreet,
and has Dun
and
Bradstreet
provided a
financial
strength
rating of 4A
or 5A?
[Answer
``Yes'' only
if both
criteria
have been
met.]
Alternative II
1. Amount of $____
annual UST
aggregate
coverage
being
assured by a
test, and/or
guarantee
2. Amount of $____
corrective
action,
closure and
post-closure
care costs,
liability
coverage,
and plugging
and
abandonment
costs
covered by a
financial
test, and/or
guarantee
3. Sum of lines $____
1 and 2
4. Total $____
tangible
assets
5. Total $____
liabilities
[if any of
the amount
reported on
line 3 is
included in
total
liabilities,
you may
deduct that
amount from
this line
and add that
amount to
line 6]
6. Tangible net $____
worth
[subtract
line 5 from
line 4]
7. Total assets $____
in the U.S.
[required
only if less
than 90
percent of
assets are
located in
the U.S.]
Yes No
8. Is line 6 at $__ _
least $10
million?
9. Is line 6 at __ _
least 6
times line
3?
10. Are at least __ _
90 percent
of assets
located in
the U.S.?
[If ``No,''
complete
line 11.]
11. Is line 7 at __ _
least 6
times line
3?
[Fill in either lines 12-15 or lines 16-18:]
12. Current $____
assets
13. Current ____
liabilities
14. Net working _____
capital
[subtract
line 13 from
line 12]
Yes No
15. Is line 14 __ _
at least 6
times line
3?
16. Current bond __ _
rating of
most recent
bond issue
17. Name of __ _
rating
service
18. Date of __ _
maturity of
bond
19. Have __ _
financial
statements
for the
latest
fiscal year
been filed
with the
SEC, the
Energy
Information
Administrati
on, or the
Rural
Electrificat
ion
Administrati
on?
[TOP]
§280.96
Guarantee.
GUARANTEE
Recitals.
_____
[TOP]
§280.97
Insurance and risk retention group coverage.
(1) Endorsement
ENDORSEMENT:
[List the number of tanks at each facility and
the name(s) and address(es) of the facility(ies) where the tanks are located. If
more than one instrument is used to assure different tanks at any one facility,
for each tank covered by this instrument, list the tank identification number
provided in the notification submitted pursuant to 40 CFR 280.22, or the
corresponding state requirement, and the name and address of the facility.]
(2) Certificate of Insurance
Certification:
[List the number of tanks at each facility
and the name(s) and address(es) of the facility(ies) where the tanks are
located. If more than one instrument is used to assure different tanks at any
one facility, for each tank covered by this instrument, list the tank
identification number provided in the notification submitted pursuant to 40 CFR
280.22, or the corresponding state requirement, and the name and address of the
facility.]
[TOP]
§280.98
Surety bond.
PERFORMANCE BOND
Principal
Corporate Surety(ies)
[TOP]
§280.99
Letter of credit.
IRREVOCABLE STANDBY LETTER OF CREDIT
[TOP]
§280.100
Use of state-required mechanism.
[TOP]
§280.101
State fund or other state assurance.
[TOP]
§280.102
Trust fund.
[TOP]
§280.103
Standby trust fund.
TRUST AGREEMENT
Section 1. Definitions
Section 2. Identification of the Financial
Assurance Mechanism
Section 3. Establishment of
Fund
Section 4. Payment for ["Corrective Action" and/or Third-Party
Liability Claims"]
Section 5. Payments
Comprising the Fund
Section 6. Trustee
Management
Section 7. Commingling and Investment
Section 8. Express Powers of Trustee
Section 9. Taxes and Expenses
Section 10. Advice of Counsel
Section 11. Trustee Compensation
Section 12.
Successor Trustee
Section 13. Instructions to the Trustee
Section 14. Amendment
of Agreement
Section 15. Irrevocability and
Termination
Section
16. Immunity and Indemnification
Section 17. Choice of Law
Section 18.
Interpretation
[Signature of
Trustee]
[Name of the
Trustee]
[Title]
[Seal]
[Signature
of Witness]
[Name of the
Witness]
[Title]
[Seal]
[Name of Notary
Public]
[TOP]
§280.104
Local government bond rating test.
LETTER FROM CHIEF FINANCIAL OFFICER
----------------------------------------------------------------------------------------------------------------
Issue date Maturity date Outstanding amount Bond rating Rating agency
----------------------------------------------------------------------------------------------------------------
[Moody's or
Standard &
Poor's]
----------------------------------------------------------------------------------------------------------------
LETTER FROM CHIEF FINANCIAL OFFICER
----------------------------------------------------------------------------------------------------------------
Issue date Maturity date Outstanding amount Bond rating Rating agency
----------------------------------------------------------------------------------------------------------------
[Moody's or
Standard &
Poor's]
----------------------------------------------------------------------------------------------------------------
[TOP]
§280.105
Local government financial test.
LETTER FROM CHIEF FINANCIAL OFFICER
WORKSHEET FOR MUNICIPAL FINANCIAL TEST
Part I: Basic
Information
Value of revenues
excludes liquidation of investments and issuance of debt. Value includes all
general fund operating and non-operating revenues, as well as all revenues from
all other governmental funds including enterprise, debt service, capital
projects, and special revenues, but excluding revenues to funds held in a trust
or agency capacity.
Value consists of
the sum of general fund operating and non-operating expenditures including
interest payments on debt, payments for retirement of debt principal, and total
expenditures from all other governmental funds including enterprise, debt
service, capital projects, and special revenues.
Part II:
Application of Test
[TOP]
§280.106
Local government guarantee.
Recitals
LOCAL GOVERNMENT GUARANTEE WITH STANDBY TRUST MADE BY A LOCAL
GOVERNMENT
Recitals
LOCAL GOVERNMENT GUARANTEE WITHOUT STANDBY TRUST MADE BY A
STATE
Recitals
LOCAL GOVERNMENT GUARANTEE WITHOUT STANDBY TRUST MADE BY A LOCAL
GOVERNMENT
Recitals
[TOP]
§280.107
Local government fund.
TF-CF
-------------
Y
------------------------------------------------------------------------
LETTER FROM CHIEF FINANCIAL OFFICER
[TOP]
§280.108
Substitution of financial assurance mechanisms by owner or operator.
[TOP]
§280.109
Cancellation or nonrenewal by a provider of financial
assurance.
[TOP]
§280.110
Reporting by owner or operator.
[TOP]
§280.111
Recordkeeping.
[TOP]
§280.112
Drawing on financial assurance mechanisms.
Owner or
Operator
Attorney for Owner or
Operator
(Notary)
Date
Claimant(s)
Attorney(s)
for
Claimant(s)
(Notary)
Date
[TOP]
§280.113
Release from the requirements.
[TOP]
§280.114
Bankruptcy or other incapacity of owner or operator or
provider of financial assurance.
[TOP]
§280.115
Replenishment of guarantees, letters of credit, or surety
bonds.
[TOP]
§280.116
Suspension of enforcement. [Reserved]
[TOP]
§280.200
Definitions.
[TOP]
§280.210
Participation in management.
[TOP]
§280.220
Ownership of an underground storage tank or underground
storage tank system or facility or property on which an underground storage tank
or underground storage tank system is located.
[TOP]
§280.230
Operating an underground storage tank or underground storage
tank system.