New Closure Policy for Low-Threat Underground Storage Tanks Sites is Now Official

August 2012

Approved by the California State Water Resources Control Board’s (“State Board”) on May 1, 2012, the Low-Threat Underground Storage Tank Case Closure Policy (“Policy”) became effective on July 30, 2012. The Policy sets forth uniform criteria for closing former leaking underground storage tank (“UST”) sites where cleanup has occurred and monitoring indicates that the site is stable and ready for reuse. In addition, the State Board has directed all Regional Water Quality Control Boards and local agencies to provide a report to the State Board on the Policy’s effectiveness by the end of January 2013, and to evaluate the Policy’s applicability to each site within their jurisdiction (i.e. a case review) by July 30, 2013.

The case reviews are required, at a minimum, to include an individual evaluation of whether each UST site with the regulatory agency’s jurisdiction meets the Policy’s criteria or is otherwise appropriate for closure based on a site-specific analysis. If a case does not satisfy the Policy’s criteria or does not present a low-risk based upon a site-specific analysis, impediments to closure must be identified in the case review. Upon completion, each case review must be made publicly available on the State Board’s GeoTracker website. It should be noted, however, that although regulatory agencies will be conducting individual case reviews, responsible parties should still apply for site closure, independent of the regulatory agency’s review, if they believe closure is appropriate.

Contained in the Policy are eight basic criteria that must be satisfied to qualify for closure: (1) The unauthorized release is located within the service area of a public water system; (2) The unauthorized release consists only of petroleum; (3) The unauthorized (“primary”) release from the UST system has been stopped; (4) Free product has been removed to the maximum extent practicable; (5) A conceptual site model that assesses the nature, extent, and mobility of the release has been developed (this may be sourced from multiple documents); (6) Secondary source has been removed to the extent practicable; (7) Soil or groundwater has been tested for methyl tert-butyl ether (MTBE) and results reported in accordance with Health and Safety Code section 25296; and (8) Nuisance as defined by Water Code section 13050 does not exist at the site. In addition, the site is to be evaluated based on the media impacted by the contamination (e.g., groundwater, soil, etc.). For example, groundwater contamination must meet certain criteria based on the size of the contaminant plume. Presumably a plume’s size would be measured from the farthest two points, but the Policy is not clear, which illustrates that while the intent of the Policy is to provide uniform and objective closure criteria, regulators will retain some discretion. As a further example, the Policy provides that a site may be closed despite not meeting all criteria if the regulator deems it a low threat; the opposite is also true (i.e., a site may be denied closure if a site meets all criteria, but the regulator deems closure inappropriate).

It is believed by some prognosticators that the Policy may allow site closure for between one-third to one-half of the 8,000 currently-open UST sites across California, which should result in the freeing-up of UST Cleanup Fund dollars for more problematic sites, and faster, more efficient closure petition process.

The State Board’s approval of the Policy is great news to owners of UST sites where cleanup has occurred, and monitoring shows that any remaining petroleum contamination has stabilized and will not migrate into domestic or municipal water supply wells, streams, or rivers. It is also great news to owners of UST sites that are in need of remediation funding because UST Cleanup Fund dollars may now be directed towards more challenging sites.

The Policy’s full text can be accessed here.

The information in this newsletter is not intended to provide specific legal advice. You should consult with an attorney and not rely on any information contained herein regarding your specific situation.