§ 44-2-50 — Regulations to be promulgated; cost of rehabilitation.

(A) The department shall promulgate regulations relating to permitting, release detection, prevention, and correction applicable to all owners and operators of underground storage tanks as may be necessary to protect human health and the environment. The department in these regulations may distinguish between types and classes of underground storage tanks. The regulations promulgated pursuant to this section must include the following requirements for underground storage tanks: (1) requirements for submitting a permit application and obtaining permits before the installation and operation of an underground storage tank; (2) requirements for maintaining a leak detection system, an inventory control system together with tank testing, or a comparable system or method designed to identify releases in a manner consistent with the protection of human health and the environment; (3) requirements for maintaining records of any monitoring or leak detection system or inventory control system or tank testing or comparable system; (4) requirements for reporting of releases and corrective action taken in response to a release from an underground storage tank; (5) requirements for taking corrective action in response to a release from an underground storage tank. The requirements mandated by this item, other than necessary abatement actions to eliminate any imminent threat to human health, safety, or the environment a release may pose, do not apply to a person who, without participating in the management of a petroleum or petroleum product underground storage tank and is otherwise not engaged in petroleum production, refining, and marketing, holds indicia of ownership primarily to protect that person's security interest in the tank. The indicia of ownership exemption includes persons who acquire title to the property through foreclosure or other means necessary to enforce the security interests and who, without participating in the management, are otherwise not engaged in petroleum production, refining, and marketing; and (6) requirements for the closure of tanks to prevent future releases of regulated substances into the environment. (B) The department shall keep an accurate record of costs and expenses incurred under the provisions of this chapter for the rehabilitation of sites contaminated with petroleum or petroleum products released from underground storage tanks and to make this record public on a quarterly basis, and, except as otherwise provided in Section 44-2-110, the department thereafter shall diligently pursue the recovery of any sum so incurred from the person responsible or from the United States government under any applicable federal law, unless the department finds the amount involved too small or the likelihood of success too uncertain. The department shall provide the forms necessary for an application for compensation of site rehabilitation costs to the Superb Account and for compensation of rehabilitation costs from the Superb Account. By March 10, 1996, the department shall submit to the General Assembly regulations addressing the following: (1) General procedures that response action contractors must follow during site rehabilitation. (2) General requirements that identify allowable costs for site rehabilitation activities, procedures for payment, provisions for auditing of claims paid, provisions for recovery of costs for ineligible or inappropriate activities, and procedures for addressing related disputes. (3) Prioritizing expenditures from the Superb fund for site rehabilitation activities. This system for prioritizing releases must be based on available technical information and shall consider the potential risk to human health and the environment. Releases at sites that present an imminent threat to human health and the environment shall receive first priority for receiving Superb funds to eliminate the imminent threat. All other releases at sites must be prioritized based on the available technical information so that the appropriate level of assessment is performed at the site. The assessment should adequately define the extent and severity of contamination at each site so that a determination of appropriate actions can be made. A proper assessment includes, but is not limited to, the following: (a) site specific geology; (b) distance to drinking water sources or Wellhead Protection Areas; (c) concentrations in soil and ground water; (d) depth to ground water; and (e) potential for an emergency situation, including fire or explosion hazard. (4) Develop a system to determine the appropriate actions for releases at sites based on the results of the assessment. This system also shall determine standards in the soil and ground water. The standards must be based on the potential risk to human health and the environment and take into account the current and reasonably potential use of the ground water as drinking water. The standards shall provide that no additional site rehabilitation is required if site-specific concentrations in soil and ground water are below applicable standards. (5) Procedures for determining site-specific corrective actions. If contaminant concentrations are above the standards set forth pursuant to item (4), a site-specific evaluation must be conducted utilizing site-specific risk assessment. The procedures to determine acceptable levels of risk must include, but not be limited to, the following: (a) identification and elimination of sources of soil and ground water contamination; (b) identification of transport mechanisms and exposure pathways; (c) evaluation of exposure scenarios and potential receptors; (d) consideration of land use and surrounding land use; (e) evaluation of other appropriate scientific data; (f) use of appropriate statistical procedures and modeling protocols; (g) evaluation of the use of institutional and engineering controls; and (h) consideration of technological limitations. The regulations shall further provide that determination of completion of site rehabilitation must be based on achievement of corrective action standards. (6) Procedures for coordinating all permits necessary to implement a corrective action plan. (7) An appeals process for those owners or operators who are denied access to the Superb fund because they were found not to be in substantial compliance under Section 44-2-40(A). (C) For purposes of enforcing this chapter and any regulations promulgated pursuant thereto, any representative or employee of the department is authorized: (1) to enter at reasonable times any establishment or other place where an underground storage tank is located; (2) to inspect and obtain samples of any regulated substance contained in the tank; and (3) to copy any records, reports, information, or test results relating to the purpose of this chapter.

Legislative History

HISTORY: 1988 Act No. 486, SECTION 2; 1994 Act No. 497, Part II, SECTION 80E; 1995 Act No. 145, Part II, SECTION 2J; 1995 Act No. 146, SECTION 8B; 1997 Act No. 88, SECTION 2.