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BUSTR 2005 CLOSURE AND CORRECTIVE ACTION RULES

external resources: Ohio Bureau of Underground Storage Tank Regulations (BUSTR) Ohio Administrative Code, Sections 1301:7-9 (scroll down)

The Ohio Bureau of Underground Storage Tank Regulation (BUSTR), operated under the state’s Fire Marshal office, has updated Closure and Corrective Action Rules effective March 1, 2005. The Closure and Corrective Action Rules are codified in Ohio Administrative Code (OAC) 1301:7-9-12 and 1301:7-9-13, respectively. The updated rules are interpreted by the bureau in the BUSTR 2005 Technical Guidance Manual.

This article is an informal and significantly condensed overview of regulated UST systems under the BUSTR 2005 Closure and Corrective Action Rules. Viewpoint Technical Group has not made or implied interpretative statements regarding the guidance manual or rules in this article, and strongly recommends referring to the guidance manual and rules prior to making any decisions regarding UST closure and/or corrective action in Ohio.

The following information in its entirety is by reference from the BUSTR 2005 Technical Guidance Manual:

Review of Regulated UST Systems:

A UST is defined as one or a combination of tanks, including the underground piping that is used to contain an accumulation of regulated substances, the volume of which, including the volume of the underground piping, is 10% or more below ground.

As specified in OAC 1301:7-9-02 the following do not meet the definition of a UST and therefore are exempt from closure and corrective action requirements:

• Farm or residential tanks of 1,100 gallons or less capacity used for storing motor fuel for noncommercial purposes;
• Tanks used for storing heating fuel for consumptive use on the premises where stored;
• Pipeline facilities, including gathering lines, regulated under the Natural Gas Pipeline Safety Act of 1968, 82 Stat. 720, 49 USCA 2001 (United States Code Annotated), as amended;
• Surface impoundments, pits, ponds, or lagoons;
• Storm or waste water collection systems (i.e., oil/water separators);
• Flow-through process tanks;
• Storage tanks located in underground areas, including without limitation, basements, cellars, mine workings, drifts, shafts, or Septic tanks; and
• Liquid traps or associated gathering lines directly related to oil or gas production and gathering operations.

All of the following regulated UST systems are exempt from the 2005 Closure Rule:

• Any UST system holding hazardous wastes listed or identified under OAC Chapter 3745-51 or a mixture of such hazardous wastes and other regulated substances;
• Any waste water treatment tank system that is part of a waste water treatment facility regulated under Section 402 or 307(B) of the Federal Water Pollution Control Act (33 USCA 1251 and following);
• Equipment or machinery that contains regulated substances for certain operational purposes such as hydraulic lift tanks and electrical equipment tanks;
• Any UST system whose capacity is 110 gallons or less;
• Any UST system that contains a de minimis concentration of regulated substances;
• Any emergency-spill or overflow-containment UST system that is emptied expeditiously after use; Waste water treatment systems;*
• Any UST system containing radioactive material that are regulated under the Atomic Energy Act of 1954 (42 USCA 2014 and following);*
• Any UST system that is part of an emergency generator system at nuclear power generation facilities regulated by the United States Nuclear Regulatory Commission;*
• Airport hydrant fuel distribution systems; and*
• Any UST systems with field-constructed tanks.*

*Indicates these regulated UST systems are exempt from the Closure Rule but releases from these systems are regulated under the Corrective Action Rule, OAC 1301:7-9-13.

Review of Key Dates for Regulated UST Systems:

January 1, 1974: If a UST was last used on or before January 1, 1974, then BUSTR registration is not required. However, if a UST was taken out of service after January 1, 1974, in a manner inconsistent with the Ohio Fire Code or 1301:7-9 (whichever was in effect at the time), then registration (and applicable fees) are owed by the appropriate owner. However, registration fees are only due from 1989 forward, excluding 1990.

On or After November 8, 1984: An “owner” is the person who owns the UST system, or the property on which it is located, if it was in use on November 8, 1984, or brought into use after that date. If the UST was used by anyone on or after November 8, 1984 and a release has not been reported, then the property owner may be the “owner” or “operator” and subsequently liable should a release be reported after their purchase (even if the UST system no longer exists).

Before November 8, 1984: An “owner” is the person who owned the UST system, or the property on which it was/is located, immediately before the discontinuation of its use if the UST system was in use before November 8, 1984, but no longer in use on that date. It is also important to note that an “operator” is the person in daily control of, or having responsibility for the daily operation of, the UST system. The “operator” may also be held liable, but BUSTR typically focuses its efforts on “owners”.

On or Before December 22, 1988: If a UST system was permanently closed prior to December 22, 1988, the “owner” is not required to perform a closure assessment, unless directed to do so by the State Fire Marshal. BUSTR does not define the term “permanently closed”. However, 40 CFR (Code of Federal Regulations) 280.71(b) defines the term as removing all liquids and accumulated sludges and filling the UST with an inert solid material.

Closure

OAC 1301:7-9-12 includes rules that address out-of-service, closure-in-place, permanent removal, and change-in-service for USTs systems that BUSTR regulates. An owner/operator needs to perform a closure assessment if any portion of the UST system is permanently removed including removals resulting from modifications and major repairs, closed-in-place, changed-in-service, or has been out-of-service for more than 12 months. Sampling required by the Closure Rule determines if a release has occurred, but sampling is not intended to determine the extent of a release.

Corrective Action

OAC 1301:7-9-13 includes rules that address the investigation of releases and suspected petroleum releases from UST systems regulated by BUSTR and the required corrective actions for clean-up of a release to appropriate levels. To protect human health and the environment, BUSTR uses a risk-based corrective action process to ensure an appropriate investigation and clean-up of releases from UST systems. Releases and suspected releases are required to be reported by the owner/operator of the system to BUSTR within 24 hours of discovery.

OAC 1301:7-9-13, effective March 1, 2005, (i.e., the 2005 Corrective Action Rule) applies to all owner/operators performing corrective actions at petroleum UST sites, as follows:

• For releases reported on or after March 1, 2005, the owner/operator must conduct corrective actions in accordance with the current Corrective Action Rule;
• For releases reported prior to March 1, 2005, the owner/operator may elect to conduct corrective actions in accordance with this rule by submitting a letter to BUSTR stating an election to conduct corrective actions in accordance with the current Corrective Action Rule.
• Owner/operators conducting corrective actions in accordance with OAC 1301:7-9-13 (effective date September 1, 1992) may continue to conduct corrective actions in accordance with that version until September 1, 2005. Thereafter, all Owner/operators conducting corrective actions in accordance with OAC 1301:7-9-13 (effective date March 31, 1999) may continue to conduct corrective actions in accordance with that version until March 1, 2006. Thereafter, all owner/operators must conduct corrective actions in accordance with the current Corrective Action Rule; and
• Owner/operators may request an extension of time in accordance with OAC 1301:7-9-13(Q) to continue corrective actions under a previous version of the CA Rule where good cause exists as determined by BUSTR.

Addressing Suspected Releases or Releases

Suspected releases or releases can be further evaluated under BUSTR guidance by evaluating the UST system, conducting a tightness test, and then following one of three site check options including a Tier 1 Source Investigation, Closure Assessment, or Below the Source of the Suspected Release. If applicable, immediate corrective actions such as free product recovery and clean-ups of spills and overfills must also take place.

The Tier 1 Source Investigation needs to be completed within 90 days of reporting the release or suspected release and includes the identification of all potential source areas, identification of chemicals of concern, action level determination, subsurface investigation of all suspected source areas, groundwater determination, comparison of laboratory results to action levels, and reporting. A minimum of three soil borings and three monitoring wells need to be completed on site. Samples need to be collected and analyzed for the appropriate analytical group(s).

If the results of the Tier 1 Source Investigation do not exceed action levels, then a Tier 1 Evaluation Report would be submitted to BUSTR for review. If the Tier 1 Evaluation Report were technically complete, then BUSTR would issue a no further action (NFA) status or suspected release disproved status. However, if the results of the Tier 1 Source Investigation exceed action levels, then a Tier 1 Delineation Notification would need to be submitted to BUSTR and a Tier 1 Delineation would need to be conducted within 1 year.

The Tier 1 Delineation includes delineating identified contamination to the generic delineation levels, determining if groundwater is classified as drinking or non-drinking water, developing action levels based on drinking water determination, and reporting. An additional set of soil borings, monitoring wells, and laboratory samples is typically necessary in the delineation.

Following the delineation, a Tier 1 Investigation Report (i.e., combining source and delineation findings) would be submitted to BUSTR for review. If the results do not exceed action levels and the report is technically complete, then BUSTR would issue a NFA status. However, if the results exceed action levels, then a Tier 2 Evaluation, Interim Response Action (IRA), and/or Remedial Action Plan (RAP) would need to be completed. The best option or combination of options would depend on the results of the Tier 1 Investigation. The following summarizes the attributes of each option.

The Tier 2 Evaluation includes defining the distribution of chemicals of concern to action levels developed in the Tier 1, classifying land use, evaluating pathways and points of exposure, developing site specific target levels, comparing chemicals of concern to site specific target levels, and reporting. Unlike the Tier 1, the Tier 2 evaluation allows for the modification of the exposure scenario. The Tier 2 Evaluation needs to be conducted within 18 months of the Tier 1 Investigation Report approval. If the chemicals of concern concentrations exceed the Tier 2 Evaluation action levels or site-specific target levels, then a Tier 3 Evaluation (i.e., implementing site specific fate and transport modeling), IRA and/or RAP would need to be conducted.

The IRA offers a limited but aggressive short-term mechanism to remove, where feasible, source materials and/or groundwater above action levels or site-specific target levels (i.e., as applicable to preceding Tier report). As such, the IRA can be conducted following the Tier 1, 2 and/or 3 reporting. The IRA needs to be conducted within 90 days of the applicable Tier report approval and includes confirmatory sampling and further evaluation as necessary. A Completion Report has to be submitted within 60 days of the IRA completion date.

The RAP is developed to applicable Tier action levels or site-specific target levels, and needs to be submitted within 90 days of the preceding Tier report approval. The RAP can incorporate a number of remedial techniques including examples such as source removal, design and installation of cleanup equipment, engineering controls or use restrictions, and natural attenuation processes. The RAP may also include a monitoring program with reporting to evaluate the effectiveness of the remediation. A Completion Report is submitted following confirmation of meeting remediation objectives.