401 KAR 42:005. Definitions related to 401 KAR Chapter 42.

401 KAR 42:005. Definitions related to 401 KAR Chapter 42.

RELATES TO: KRS 224.01, 224.10, 224.60, 40 C.F.R. Part 281, 42 U.S.C. 6991c

STATUTORY AUTHORITY: KRS 224.10-100(5), 224.60-105, 40 C.F.R. Part 280, Part 281, 42 U.S.C. 6991c

NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.10-100(5) requires the Environmental and Public Protection Cabinet to develop and conduct programs that provide for the prevention, abatement, and control of contaminants that may threaten the environment. KRS 224.60-105(2) requires the cabinet to regulate underground storage tank (UST) systems by requiring registration, minimum construction and performance standards, leak detection, recordkeeping, release reporting, corrective action, closure, financial responsibility, and other standards to protect human health and the environment. KRS 224.60-105(3) requires the cabinet to establish a regulatory program that implements federal requirements for UST systems. 401 KAR Chapter 42 identifies requirements for UST systems. This administrative regulation defines terms used throughout 401 KAR Chapter 42.

Section 1. Definitions. (1) "Aboveground release" means any UST system release to the surface of the land or to surface water. This includes, but is not limited to, UST system releases from the aboveground portion of a UST system and aboveground releases associated with overfills and transfer operations as the regulated substance moves to or from a UST system.

(2) "Actual cost" means the cost incurred by the person performing the services or supplying the products.

(3) "Ancillary equipment" means any devices used to distribute, meter, or control the flow of regulated substances to and from a UST system, including, but not limited to, piping, fittings, flanges, valves, and pumps.

(4) "Assets" is defined by KRS 224.60-120(3).

(5) "Background" means the concentration of substances consistently present in the environment at, or regionally proximate to, a UST system release, but outside of the influence of the UST system release. There are two (2) types of background as follows:

(a) Natural background is the amount of naturally-occurring substances in the environment, exclusive of that from anthropogenic sources; and

(b) Ambient background is the amount of both naturally-occurring substances and ubiquitous anthropogenic substances in the environment at levels that are representative of the region surrounding the UST facility and at levels not attributable to activities on the property.

(6) "Belowground release" means any UST system release to the subsurface of the land or to groundwater. This includes, but is not limited to, UST system releases from the belowground portions of a UST system and belowground releases associated with overfills and transfer operations as the regulated substance moves to or from a UST system.

(7) "Beneath the surface of the ground" means, for purposes of identifying an underground storage tank system as set forth in KRS 224.60-100, beneath the ground surface or otherwise covered with earthen materials.

(8) "Bodily injury and property damage" is defined by KRS 224.60-115(1).

(9) "Cathodic protection" means a technique to prevent corrosion of a metal surface by making that surface the cathode of an electrochemical cell. For example, a UST system can be cathodically protected through the application of either galvanic anodes or impressed current.

(10) "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, a cathodic protection tester has education and experience in soil resistivity, stray current, structure-to-soil potential, and component electrical isolation measurements of buried metal piping and tank systems.

(11) "Certified company" means a person certified pursuant to 401 KAR 42:316.

(12) "Certified contractor" means a person certified pursuant to 401 KAR 42:314.

(13) "Change in service" means continued use of a UST system that previously stored a regulated substance to store a nonregulated substance.

(14) "Claim" is defined by KRS 224.60-115(3).

(15) "Compatible" means the ability of two (2) or more substances to maintain their respective physical and chemical properties upon contact with one another for the design life of the UST system under conditions likely to be encountered in the UST system.

(16) "Connected piping" means all underground piping including valves, elbows, joints, flanges, and flexible connectors attached to a UST 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 (2) UST systems shall be allocated equally between them.

(17) "Consumptive use" means, with respect to heating oil, consumed on the premises where stored.

(18) "Contamination" means degradation in the quality of surface water, sediment, groundwater, air, soil, or bedrock as a result of human activities.

(19) "Contract" means the legally-binding written agreement for performance of corrective action entered into by an owner or operator and a contracting company certified pursuant to 401 KAR 42:316.

(20) "Corrective action":

(a) For purposes of 401 KAR 42:250, 42:290, 42:300, 42:314, 42:316; 42:330, 42:335 and 42:340, is defined in KRS 224.60-115; or

(b) For purposes of 401 KAR 42:011, 42:030, 42:040, 42:050, 42:060, 42:070. 42:080, 42:090, and 42:200, means those actions necessary to protect human health and the environment if there is a UST system release. Corrective action may include remedial actions to clean up contaminated groundwater, surface waters or soil, actions to address residual effects after initial corrective action is taken, and actions taken to restore or replace potable water supplies. Corrective action may also include actions necessary to monitor, assess, and evaluate a UST system release, as well as actions necessary to monitor, assess, and evaluate the effectiveness of remedial action after a UST system release has occurred.

(21) "Corrective action agreement" means a written agreement for reimbursement between the cabinet, the owner or operator, and the certified contractor, which applies to corrective action or interim action to be performed.

(22) "Corrosion expert" means a person accredited or certified as being a corrosion expert by the National Association of Corrosion Engineers (NACE International), or a professional engineer registered by the Kentucky State Board of Registration for Professional Engineers and Land Surveyors with certification or licensing that includes education and experience in corrosion control of buried or submerged metal piping systems and metal tanks.

(23) "Dielectric material" means a material that does not conduct direct electrical current.

(24) "Division" is defined by KRS 224.60-115(6).

(25) "Domestic-use well, spring, cistern, or well head protection area" means a well, spring, cistern, or well head protection area currently used or potentially used by humans for personal, commercial, or agriculture purposes.

(26) "Electrical equipment" means underground equipment containing dielectric fluid used for the operation of equipment such as transformers and buried electrical cable.

(27) "Empty" means all regulated substances have been removed from the UST system using commonly employed practices so that no more than two and five-tenths (2.5) centimeters (one (1) inch) of residue, or three-tenths (0.3) percent by weight of the total capacity of the UST system, remain in the system.

(28) "Entry level" means an amount equal to the financial responsibility the owner or operator shall establish and maintain in accordance with KRS 224.60-120.

(29) "Environmentally sensitive feature" means surface waters and wetland areas. The term shall not include road-side ditches or manmade drainage ways that do not discharge to surface waters or wetland areas within a fifty (50) meter radius of the excavation zone.

(30) "EPA identification number" means the number assigned by the U.S. EPA or the cabinet to each hazardous waste generator; transporter; and treatment, storage, or disposal facility.

(31) "Excavation zone" means the volume containing the UST 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.

(32) "Existing UST system" means a UST 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 UST facility or installation of the UST system; and

(b)1. A continuous, physical construction or installation program has begun at the UST facility; or

2. The owner or operator has entered into contractual obligations, that cannot be canceled or modified without substantial loss, for physical construction at the UST facility or installation of the UST system to be completed within a reasonable time.

(33) "Facility" is defined by KRS 224.60-115(7).

(34) "Farm tank" means a tank located on a tract of land devoted to the production of crops (including nurseries) or raising animals (including fish hatcheries) and associated residences and improvements.

(35) "Federal agency" means any department, agency, or other instrumentality of the federal government, any independent agency or establishment of the federal government, including any government corporation, and the U.S. Government Printing Office.

(36) "Federal regulations" is defined by KRS 224.60-115(8).

(37) "Financial ability" means the capacity of a petroleum storage tank owner or operator to finance the performance of corrective action.

(38) "Flow-through process tank" means 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.

(39) "Free product" is defined by KRS 224.60-115(9).

(40) "Guarantor" is defined by KRS 224.60-120(4).

(41) "Gathering lines" means pipelines, equipment, facilities, and buildings used in the transportation of oil or gas during oil or gas production or gathering operations.

(42) "Groundwater" means the subsurface water occurring in the zone of saturation beneath the water table, and perched water zones below the B-soil horizon, including water circulating through fractures, bedding planes, and solution conduits.

(43) "Hazardous substance UST system" means a UST system that contains a hazardous substance identified in Section 101(14) of CERCLA (but not including any substance regulated as a hazardous waste under 401 KAR Chapters 31 through 39), or contains a mixture of this type of hazardous substance and petroleum and

is not a petroleum UST system.

(44) "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 if used as substitutes for one (1) of these fuel oils. Heating oil is typically used in the operation of heating equipment, boilers, or furnaces.

(45) "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.

(46) "Hydrogeologically downgradient" means in the direction from a point of higher hydrostatic pressure to a point of lower hydrostatic pressure, as defined by wells or piezometers constructed to the same depth, or in the direction from a point where a higher water table elevation exists to a point where a lower water table elevation exists, as defined by wells or piezometers.

(47) "Hydrogeologically upgradient" means in the direction from a point of lower hydrostatic pressure to a point of higher hydrostatic pressure, as defined by wells or piezometers constructed to the same depth, or in the direction from a point where a lower water table elevation exists to a point where a higher water table elevation exists, as defined by wells or piezometers.

(48) "Leak-detection system" means a method of monthly monitoring capable of detecting a failure in a UST system of either the primary or secondary containment system, or capable of detecting the presence of a UST system release of a regulated substance outside the UST system.

(49) "Liquid trap" means a sump, well cellar, or other trap 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.

(50) "Maintenance" means the normal operational upkeep to prevent a UST system from releasing a regulated substance.

(51) "Monitoring" means the act of systematically collecting and accessing data on operational parameters or on the quality of the air, soil, bedrock, groundwater, sediment, or surface water.

(52) "Motor fuel" is defined by KRS 224.60-115(12).

(53) "Net worth" is defined by KRS 224.60-120(3).

(54) "Newly discovered UST system" means a UST system at a UST facility that would not have been discovered by the owner or operator by the exercise of ordinary diligence.

(55) "New UST system" means a UST system that will be used to contain an accumulation of regulated substances and for which installation has commenced after December 22, 1988.

(56) "Noncommercial purposes" means, with respect to motor fuel, not for resale.

(57) "Occurrence" is defined by KRS 224.60-115(13).

(58) "Off-site" means any area beyond the Point of compliance.

(60) "On the premises where stored" means, with respect to heating oil, UST systems located on the same property where the stored heating oil is used.

(61) "Operation" means the storage and dispensing of a regulated substance from a UST system.

(62) "Operational life" means the period beginning when installation of the UST system has commenced and ending when the UST system is closed under 401 KAR 42:070.

(63) "Operator" means any person in control of, or having responsibility for, the daily operation of the UST system.

(64) "Original invoice" means an original or duplicate copy of an itemized list of all products or services obtained, including the itemized cost thereof provided to the contractor or owner or operator by the person supplying the products or providing the services.

(65) "Overfill release" means a UST system release that occurs if a UST system is filled beyond its capacity, resulting in a discharge of the regulated substance to the environment.

(66) "Owner" means:

(a) If a UST system in use on November 8, 1984, or brought into use after that date, any person who owns a UST system used for storage, use, or dispensing of a regulated substance; and

(b) If a UST system in use before November 8, 1984, but no longer in use on that date, any person who owned the UST system immediately before the discontinuation of its use.

(67) "Permanent closure" means either removing the UST system from the ground or filling the UST system with an inert solid material or a combination of both methods.

(68) "Permanently closed" means a UST system was:

(a) Closed prior to December 22, 1988 in accordance with the requirements of the Kentucky Fire Marshal, in accordance with applicable industry standards when closure occurred, and in a manner that prevents any future use of the UST system;

(b) Closed after December 22, 1988, but prior to December 19, 1990, in accordance with 40 C.F.R. 280.71 through 280.74;

(c) Closed after December 19, 1990, but prior to April 18, 1994, in accordance with administrative regulations in effect at that time;

(d) Closed after April 18, 1994, but prior to January 1, 1996, in accordance with the emergency administrative regulations that took effect on February 15, 1994;

(e) Closed after January 1, 1996 in accordance with 401 KAR 42:070 or 401 KAR 42:071 in effect at that time; or

(f) Closed in accordance with 401 KAR 42:070 after the effective date of this administrative regulation.

(69) "Person" is defined by KRS 224.60-115(14).

(70) "Petroleum" is defined by KRS 224.60-115(15).

(71) "Petroleum storage tank" is defined by KRS 2224.60-115(16);

(72) "Petroleum storage tank operator" is defined by KRS 224.60-115(17);

(73) "Petroleum storage tank owner" is defined by KRS 224.60-115(18).

(74) "Petroleum UST system" means a UST system that contains petroleum or a mixture of petroleum with de minimis quantities of other regulated substances. The term includes those containing motor fuels, jet fuels, distillate fuel oils, residual fuel oils, lubricants, petroleum solvents, and used oils.

(75) "Pipe" or "piping" means a hollow cylinder or tubular conduit that is constructed of nonearthen materials (for example, concrete, steel, plastic, or a combination of these types of materials).

(76) "Pipeline facilities" means new and existing pipe rights-of-way and any associated equipment, facilities, or buildings, including gathering lines.

(77) "Point of compliance" means the property boundaries of the property on which the UST facility is located.

(78) "Preestablished fixed cost" means the cost determined by the cabinet to be reimbursed from the Petroleum Storage Tank Environmental Assurance Fund for actions taken as a result of a written directive from the cabinet or corrective action agreement.

(79) "Ranking system" means the system for determining extent of environmental harm and financial ability, as established by 401 KAR 42:290;

(80) "Registration" or "register" shall have the same meaning as "notification" or "notice", as used in 40 C.F.R. Part 280 Subpart B.

(81) "Regulated substance" is defined by KRS 224.60-100(2)

(82) "Release" is defined by KRS 224.60-115(20).

(83) "Release detection" means a method of determining whether a UST system release has occurred.

(84) "Repair" means to restore a UST system component that has caused a release of a regulated substance from a UST system.

(85) "Residential tank" means a tank located on property used primarily for dwelling purposes.

(86) "Residual tank materials" means any accumulated tank water, bottom sediments, mixture of product and water, or other material remaining in a tank after removal of tank contents.

(87) "Secretary" means the Secretary of the Environmental and Public Protection Cabinet.

(88) "Septic tank" means a watertight covered receptacle designed to receive or process, through liquid separation or biological digestion, the sewage discharged from a building sewer. The effluent from the 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.

(89) "Storm-water or wastewater collection system" means piping, pumps, conduits, and any other equipment used to collect or transport the flow of surface water run-off resulting from precipitation or domestic, commercial, or industrial wastewater to or from retention areas or any areas where treatment is designated to occur.

(90) "Surface impoundment" means a natural topographic depression, manmade excavation, or diked area formed primarily of earthen materials (although it may be lined with manmade materials) that is not an injection well.

(91) "Surface water" means those waters having well-defined banks and beds, either constantly or intermittently flowing; lakes and impounded waters; marshes and wetlands; and any subterranean waters flowing in well-defined channels and having a demonstrable hydrologic connection to the surface. Effluent ditches and lagoons used for waste treatment that are situated on property owned, leased, or under valid easement by a permitted discharger are not considered to be surface waters of the Commonwealth.

(92) "Tank" means a stationary device designed to contain an accumulation of regulated substances and constructed of nonearthen materials (for example, concrete, steel, plastic, or a combination of these materials) that provide structural support.

(93) "Tank contents" means any accumulated tank water, bottom sediments, or mixture of product and water that is removed from a tank at one (1) time by the same method and that is accepted by a recycling facility.

(94) "Temporary closure" means taking a UST system out of operation pursuant to the requirements of 401 KAR 42:070.

(95) "Third party" is defined by KRS 224.60-115(22).

(96) "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 UST system situated on or above the surface of the floor.

(97) "Underground utility conduits" means any manmade underground conduit installed for utility purposes either on or off site.

(98) "Upgrade" means the addition of or retrofitting of UST system components to improve the ability of a UST system to prevent a UST system release. Examples of upgrades include the addition of cathodic protection, improvements to the interior lining, and improvements of spill and overfill controls.

(99) "UST facility" or "site" means, with respect to any owner or operator, all UST systems which are owned or operated by an owner or operator and are located on a single parcel of property or on any contiguous or adjacent property.

(100) "UST system", "tank system", or "underground storage tank system" means an underground storage tank (as defined in KRS 224.60-100), connected underground piping, underground ancillary equipment, and containment system, if any.

(101) "UST system release" means any spilling, leaking, emitting, discharging, escaping, leaching, or disposing or a regulated substance from a UST system into groundwater, surface water, surface or subsurface soils, or interstitial space between a UST system and its secondary barrier or secondary containment. The term shall not include spilling, leaking, emitting, discharging, escaping, leaching, or disposing that is permitted or authorized by Kentucky or federal law.

(102) "UST system release detection" means method, that complies with the requirements of 401 KAR 42:040, for determining whether a UST system release has occurred.

(103) "Wastewater treatment tank" means a tank that is designed to receive and treat an influent wastewater through physical, chemical, or biological methods.

Section 2. Acronyms and Abbreviations. Unless otherwise specifically indicated by context, acronyms and abbreviations used in 401 KAR Chapter 42 shall have the meaning as identified in Table 1 of this administrative regulation.

Table 1. Acronyms and Abbreviations.
CERCLA	Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (42 U.S.C. 9601 et seq.)
C.F.R.	Code of Federal Regulations
DEP	Kentucky Department for Environmental Protection
KAR	Kentucky Administrative Regulation
KRS	Kentucky Revised Statute
SARA	Superfund Amendments and Authorization Act of 1986
U.S.C.	United States Code
U.S. EPA	United States Environmental Protection Agency
UST	Underground Storage Tank

(22 Ky.R. 427; Am. 918; eff. 11-14-95; 23 Ky.R. 986; eff. 3-12-97; 29 Ky.R. 2146; 2458; eff. 4-11-03; 32 Ky.R. 2109; 33 Ky.R. 456; 732; eff. 9-13-2006.)