401 KAR 42:070. Out-of-service UST systems, temporary closure and permanent closure of UST systems, and change in service of UST systems.

 

      RELATES TO: KRS 224.01, 224.10, 224.40, 224.43, 224.46, 224.60, 322, 322A, 40 C.F.R. Part 280 Subpart G, 42 U.S.C. 6991-6991c

      STATUTORY AUTHORITY: KRS 224.10-100, 224.60-105, 224.60-137

      NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.10-100 requires the 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 requires the cabinet to regulate underground storage tanks by requiring registration, minimum construction and performance standards, leak detection, recordkeeping, release reporting, corrective action, closure, financial responsibility, and other requirements to protect public health and the environment. KRS 224.60-105(3) requires the cabinet to establish a regulatory program that implements federal requirements for UST systems. This administrative regulation establishes the requirements for out-of-service UST systems, temporary and permanent closure of UST systems, and change in service of UST systems.

 

      Section 1. Applicability. (1) This administrative regulation shall apply to an owner or operator of a UST system that has a UST system release confirmed after October 1, 2011 or has submitted a Notice of Intent to Permanently Close Underground Storage Tank System DEP 7114,, that has been received by the appropriate Division of Waste Management regional office after October 1, 2011.

      (2) With the exception of those UST systems addressed in subsection (3) of this section, the owners and operators of a UST system who have, prior to October 1, 2011, either submitted a notice of intent to permanently close underground storage tank systems or reported a confirmed release to the cabinet, shall comply with the closure requirements in existence when the notice of intent to permanently close underground storage tank systems was received by the appropriate Division of Waste Management regional office or the confirmed release was reported to the cabinet. This subsection shall not apply to the screening levels, which shall be determined in accordance with 401 KAR 42:080, Section 1(2).

      (3) An owner or operator shall comply with the permanent closure requirements that were in place prior to April 18, 1994 for:

      (a) A UST system that was taken out of operation prior to April 18, 1994, regardless of the submittal date of the Notice of Intent to Permanently Close Underground Storage Tank System;

      (b) A Notice of Intent to Permanently Close Underground Storage Tank System was submitted after December 22, 1988 but prior to April 18, 1994; or

      (c) A confirmed release was reported prior to April 18, 1994, regardless of the submittal date of the Notice of Intent to Permanently Close Underground Storage Tank System.

 

      Section 2. Temporary Closure. (1) If a UST system is temporarily closed, the owners and operators shall continue operation and maintenance of corrosion protection and UST system release detection in accordance with 401 KAR 42:030 and 42:040.

      (a) If a UST system release is suspected or confirmed, the owners and operators shall comply with 401 KAR 42:050 and 401 KAR 42:060.

      (b) UST system release detection is not required if the UST system is empty.

      (2) In addition to the requirements of subsection (1) of this section, if a UST system is temporarily closed for more than three (3) months, the owners and operators shall comply with the following requirements:

      (a) Leave vent lines open and functioning; and

      (b) Cap and secure all other lines, pumps, man ways, and ancillary equipment.

      (3) In addition to the requirements of subsections (1) and (2) of this section, if a UST system is temporarily closed for more than six (6) months, the owners and operators shall submit an amended "UST Facility Registration Form", DEP 7112, incorporated by reference in 401 KAR 42:020 to the cabinet indicating that the UST system has changed to temporary closure status.

      (4) If a UST system is temporarily closed for more than twelve (12) months and does not meet the performance standards of 401 KAR 42:030 and 42:040, the owner or operator of the UST system shall:

      (a) Complete permanent closure in accordance with the Closure Outline and this administrative regulation; or

      (b) Request an extension of temporary closure status in accordance with Section 8 of this administrative regulation and perform an assessment in accordance with Section 5 of this administrative regulation.

      (5) If an UST system is temporarily closed for more than twelve (12) months and meets the performance standards for corrosion protection, spill containment and overfill prevention, and leak detection in accordance with 401 KAR 42:020, 42:030, and 42:040, owners and operators shall conduct tank and piping tightness tests on the temporarily closed tanks and piping prior to returning the UST system to operation.

 

      Section 3. Notice of Intent for Permanent Closure and Changes in Service. (1)(a) Owners and operators shall notify the cabinet of intent to permanently close or make a change in service for a UST system a minimum of two (2) weeks (fourteen (14) calendar days) prior to beginning either the permanent closure or change in service in accordance with Sections 4 and 5 of this administrative regulation.

      1. This notice shall be submitted on the Notice of Intent to Permanently Close Underground Storage Tank System DEP 7114.

      2. Initial abatement action shall not alleviate the owners and operators from notifying the cabinet of the intent to permanently close a UST system.

      3. The cabinet may specify a shorter notification time prior to permanent closure if permanent closure activities are completed in response to actions conducted in accordance with the Release Response and Initial Abatement Requirements Outline or actions directed by the Environmental Response Team.

      (b) The Notice of Intent to Permanently Close Underground Storage Tank System DEP 7114, shall only be valid for twelve (12) months following submittal to the cabinet.

 

      Section 4. Permanent Closure or Change in Service. Owners or operators performing permanent closure or change in service of a UST system shall comply with the requirements of the Closure Outline.

 

      Section 5. Assessing the Site for Permanent Closure or Change in Service. (1)(a) In order to complete permanent closure or change in service of a UST system, the owners and operators shall measure for the presence of a UST system release in accordance with the Closure Outline.

      (b) Permanent closure activities shall be reported to the cabinet within ninety (90) days after UST system removal, closure in place, or change in service, in accordance with the closure Outline.

      (2) If analytical results from permanent closure sampling indicate that further actions are necessary, those actions shall be determined at the written direction of the cabinet in accordance with 401 KAR 42:060.

      (3) The handling, transportation, and disposal of a regulated substance from a UST system and contaminated soils, backfill materials, groundwater, cleaning liquids, and other similar materials generated during activities performed pursuant to this administrative regulation shall be performed in accordance with applicable requirements of 401 KAR Chapters 30 through 49.

 

      Section 6. Applicability to previously closed UST systems. Applicability to previously closed UST systems shall be as established in 40 C.F.R. 280.73.

 

      Section 7. Closure Records. (1)(a) Owners or operators shall submit a Closure Assessment Report, DEP 8055, within ninety (90) days of the date of permanent closure or a change in service, in accordance with the Closure Outline.

      (b) The Closure Assessment Report shall be signed by a professional engineer or a professional geologist pursuant to KRS Chapters 322 and 322A.

      (2) Owners or operators shall submit Certification of Properly Cleaned USTs, DEP 5039, to the cabinet if a UST system is permanently closed by removal.

 

      Section 8. Extensions. (1) The owner or operator of a UST system may request an extension to a deadline established by this administrative regulation or established by the cabinet in writing pursuant to this administrative regulation.

      (2) The extension request shall be submitted in writing and received by the Division of Waste Management prior to the deadline.

      (3) The cabinet shall grant an extension, if an extension would not have a detrimental impact on human health or the environment.

 

      Section 9. No Further Action Letter. (1) If a UST facility has met all applicable requirements in 401 KAR Chapter 42, the cabinet shall issue a no further action letter.

      (2) Any unpaid registration fees due in accordance with 401 KAR 42:200 shall be paid in full prior to the cabinet issuing a no further action letter.

      (3) If a threat to human health or the environment exists, related to a release or permanent closure for which a No Further Action letter was previously issued, the cabinet shall revoke the No Further Action letter and require necessary action in accordance with 401 KAR Chapter 42.

 

      Section 10. Incorporation by Reference. (1) The following material is incorporated by reference:

      (a) "Closure Outline", August 2011;

      (b) "Notice of Intent to Permanently Close Underground Storage Tank System", DEP 7114, April 2011;

      (c) "Closure Assessment Report ", DEP 8055, April 2011;

      (d) American Petroleum Institute Recommended Practice 1604, "Closure of Underground Petroleum Storage Tanks", (Reaffirmed 2001);

      (e) "Certification of Properly Cleaned USTs", DEP 5039, April 2011;

      (f) "Test Methods for Evaluation Solid Wastes Physical/Chemical Methods", US EPA –SW-846, March 2009; and

      (g) American Petroleum Institute Publication 2015, "Requirements for Safe Entry and Cleaning of Petroleum Storage Tanks", August 2001.

      (2) This material may be inspected, copied, or obtained, subject to applicable copyright law, at the Division of Waste Management, 200 Fair Oaks Lane, Second Floor, Frankfort, Kentucky 40601, Monday through Friday, 8 a.m. to 4:30 p.m. This material is also available on the Division of Waste Management’s Web site at http://waste.ky.gov/ust.

        (3) The material listed in subsection (1)(f) of this section may also be obtained at: http://www.epa.gov/epawaste/hazard/testmethods/sw846/online/index.htm. (17 Ky.R. 1645; Am. 1994; eff. 12-19-90; 22 Ky.R. 327; 922; eff. 11-14-95; 32 Ky.R. 2123; 33 Ky.R. 466; 740; eff. 9-13-2006; 37 Ky.R. 2706; 38 Ky.R. 271; 524; eff. 10-6-11; TAm 4-3-2012.)