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

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, 40 C.F.R. Part 280 Subpart G, Part 281, 42 U.S.C. 6991-6991c

STATUTORY AUTHORITY: KRS 224.10-100, 224.60-105, 224.60-137, 40 C.F.R. Part 280 Subpart G, Part 281, 42 U.S.C. 6991c

NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.10-100 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 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 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. 401 KAR Chapter 42 identifies 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. Application of Federal Regulations. The requirements for temporary closure, permanent closure, change-in-service, record keeping, and applicability to previously closed UST systems are governed by 40 C.F.R. Part 280 Subpart G and this administrative regulation.

Section 2. Applicability. (1) This administrative regulation shall apply to any owner or operator of a UST system that has a UST system release confirmed after the effective date of this administrative regulation, or has submitted a "Notice of Intent to Permanently Close Underground Storage Tank System" DEP 7114, (January 2006), that has been received by the cabinet's regional office after the effective date of this administrative regulation.

(2) The owners and operators of a UST system who have, prior to the effective date of this administrative regulation, 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 and corrective action requirements in existence when the notice of intent to permanently close underground storage tank systems was received by the cabinet’s regional office or the confirmed release was reported to the cabinet.

(3) A UST system owner or operator that chooses to remove a UST system from the ground that was permanently closed in place, or empty and taken out of service, prior to December 22, 1988 shall comply with the requirements that were in place prior to April 18, 1994 regardless of the submittal date of the Notice of Intent Form.

(4) If the cabinet determines that a UST system that closed before December 22, 1988 poses a current or potential threat to human health, safety, or the environment, the owner or operator shall assess the excavation zone and close the UST system in accordance with this administrative regulation.

(5) The documents incorporated by reference in Section 9 of this administrative regulation shall be used in meeting the requirements of this administrative regulation.

Section 3. 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 401 KAR 42:040. 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. UST system release detection is not required as long as the UST system is empty.

(2) 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;

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

(c) Submit an amended "UST Facility Registration Form", DEP 7112, (August 2006), (incorporated by reference in 401 KAR 42:020) to the cabinet indicating that the UST system has changed to temporary closure status.

(3)(a) If a UST system is temporarily closed for more than twelve (12) months, and does not meet the performance standards of 401 KAR 42:020, then the UST system shall be permanently closed in accordance with Section 4 of this administrative regulation.

(b) The owners and operators shall permanently close the substandard UST system at the end of this twelve (12) month period, unless the cabinet provides an extension of the twelve (12) month temporary closure period. The cabinet may grant an extension if the cabinet determines that an extension would not have a detrimental impact on human health or the environment.

Section 4. Permanent Closure and Changes in Service. (1)(a) Owners and operators shall notify the cabinet of their 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 under subsections (2) and (3) of this section. This notice shall be submitted on the "Notice of Intent to Permanently Close Underground Storage Tank System" DEP 7114, (January 2006). Initial abatement action shall not alleviate the owners and operators from notifying the cabinet of the intent to permanently close a UST system; however, the cabinet may specify a shorter notification time prior to permanent closure.

(b) The "Notice of Intent to Permanently Close Underground Storage Tank System" DEP 7114, (January 2006), shall only be valid for twelve (12) months following submittal to the cabinet. The closure assessment required under Section 5 of this administrative regulation shall be performed after submitting notification to the cabinet, but prior to completing the permanent closure or change in service.

(2) To permanently close a UST system, the owners and operators shall empty and clean the UST system by removing all tank contents and residual tank materials. All UST systems permanently taken out of service shall be either removed from the ground or filled with an inert solid material.

(3) Continued use of a UST system to store a nonregulated substance shall constitute a change in service. Before a change in service, the owners and operators shall empty and clean the UST system by removing the tank contents and residual tank materials. The owners and operators shall also conduct a closure assessment in accordance with Section 5 of this administrative regulation.

Section 5. Assessing the Site at a Temporary Closure, Permanent Closure or Change in Service. (1)(a) Before completing permanent closure or change in service of a UST system, or at the end of the twelve (12) month temporary closure period identified in Section 3(3) of this administrative regulation, the owners and operators shall measure for the presence of a UST system release where contamination is most likely to be present. In selecting sample types, sample locations, and measurement methods, the owners and operators shall consider the method of closure, the nature of the stored substance, the type of backfill, the depth to groundwater, and other factors appropriate for identifying the presence of a UST system release. In accordance with 401 KAR 42:080, the requirements of this paragraph shall be satisfied if one (1) of the external UST system release detection methods allowed in 401 KAR 42:040 is operating in accordance with the requirements in 401 KAR 42:040 at the time of closure and indicates that no UST system release has occurred during the life of the UST system.

(b) The closure assessment required by paragraph (a) of this subsection shall be performed in accordance with the requirements of the "Closure Outline", (August 2006). The "Closure Assessment Report", (DEP 8055, (August 2006), shall be received by the cabinet within ninety (90) days after UST system removal, closure in place, or change in service.

(2) If contaminated soils, contaminated groundwater, or free product as a liquid or vapor is discovered under subsection (1) of this section, or by any other manner, initial abatement, site checks, site investigations, corrective action, and public participation, shall be performed in accordance with 401 KAR 42:060.

(3) The handling, transportation, and disposal of any regulated substance from a UST system and any 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. Closure Records. In accordance with 401 KAR 42:030 and this administrative regulation, the owners and operators shall maintain records that demonstrate compliance with closure requirements under Section 5 of this administrative regulation. The results of the closure assessment required by Section 5 of this administrative regulation shall be maintained for at least three (3) years after receipt of the closure letter indicating that no further action is required for the permanent closure or change in service.

Section 7. Extensions. The owner or operator of a UST system may request extension of the time frame for reports required by this administrative regulation. The extension request shall be submitted in writing and received by the Underground Storage Tank Branch of the Division of Waste Management prior to the deadline. The cabinet may grant extensions, if the cabinet determines that an extension would not have a detrimental impact on human health or the environment.

Section 8. No Further Action Letter. (1) If a UST facility has met all requirements in 401 KAR Chapter 42, the cabinet shall issue a no further action letter for the UST facility.

(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 to any UST facility.

Section 9. Incorporation by Reference. (1) The following material is incorporated by reference:

(a) "Closure Outline" (August 2006);

(b) "Notice of Intent to Permanently Close Underground Storage Tank System", DEP 7114, (January 2006);

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

(e) American Petroleum Institute Recommended Practice 1631, "Interior Lining and Periodic Inspection of Underground Storage Tanks", (June 2001); and

(f) 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 Underground Storage Tank Branch, 81 C. Michael Davenport Blvd., Frankfort, Kentucky 40601, Monday through Friday, 8 a.m. to 4:30 p.m.

(3) This material may also be obtained by calling the Division of Waste Management at (502) 564-5981 or on the division's Web page located at www.waste.ky.gov. (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.)