I 
THEODORE R. KULONGOSKI 

Governor 

June 21,2010 

Mr. Dennis J. McLerran, Regional Administrator 

EPA Region 10 

Regional Administrator's Office, RA-140 

1200 Sixth Avenue, Suite 900 

Seattle, WA 98101 

Dear Mr. McLerran: 

In accordance with Section 9004 of Subtitle I ofthe Solid Waste Disposal Act, as amended 

by the Resource Conservation and Recovery Act, I am forwarding an application for approval ofthe 

Underground Storage Tank Program for the State of Oregon. I believe you will find it contains the 

provisions necessary to implement an effective Underground Storage Tank Program. 

Should you require fiirther information, please contact Dick Pedersen, Director of the 

Department ofEnvironmental Quality, at (503) 229-5300. 

Thank you for yoxir assistance. 

Sincerely, 

^''\\^^Me.e-/^e^ 

THEODORE R. KULONGOSKI 

Govemor 

TRK:mc:jb 

STATE CAPITOL, 900 COURT STREET NE, SALEM OR 97301-404 7 (503 ) 378-31 1 1 FAX (S03) 378-682 7 

WWW.GOVERNOR.OREGON.GOV 

JOHN R. KROGER ^^^ ^ MARY H. WILLIAMS 

ATTORNEY GENERAL .^^^9^^ ^ DEPUTY ATTORNEY GENERAL 

DEPARTMENT OF JUSTICE 

1162 Court Street NE 

Ju.stice Building 

Salem. Oregon 97301-4096 

Telephone: (503) 378-4400 

June 21,2010 

Dennis J. McLerran 

Regional Administrator 

U.S. EPA, Region 10 

1200 6th Ave., Suite 900, RA-140 

Seattle, WA 98101 

Dear Mr. McLerran: 

I hereby certify pursuant to my authority as Oregon State Attomey General and in 

accordance with Section 9004 ofthe Solid Waste Disposal Act, as amended by the Resource 

Conservation and Recovery Act, as amended, and 40 C.F.R. Part 281 that in my opinion the 

laws of the State of Oregon provide adequate authority to (1) carry out the "no less 

stringent" technical requirements submitted by the Department of Environmental Quality, 

(2) adequately enforce compliance with such program, and (3) regulate, at a minimum, the 

same Underground Storage Tank universe as the Federal program. 1 hereby certify, to the 

best of my knowledge, that the application submitted by the Department of Environmental 

Quality is legally accurate. The specific authorities provided are contained in statutes or 

regulations lawfully adopted at the time this statement is signed, or which will be effective 

by the time the program is approved. I also certify that the copies of such statutes and 

regulations submitted with the application are copies of the legally enforceable statutes and 

regulations. 

Sincerely, 

JOHN R. KROGER 

Attomey General 

ATTORNEY GENERAL'S STATEMENT 

June 21, 2010 

r' 
Objective §281.30: New UST Systems and Notification 

The State must have requirements that 

ensure that all new UST systems conform 

with the following: 

(a) Be designed, constructed, and installed in i 

a manner that will prevent releases for their 

operating life due to manufacturing defects, 

structural failure, or corrosion. [Note: Codes of| 

practice developed by nationally-recognized 1 

organizations may be used to demonstrate 

that the State program requirements are no 

less stringent in this area.] 

(b) Be provided with equipment to prevent 

spills and tank overfills when new tanks are 

installed or existing tanks are upgraded, 

unless the tank does not receive more than 25 

gallons at one time. 

(c) All UST system owners and operators 

must notify the implementing State agency of , 

the existence of any new UST system using a 1 

form designated by the State agency. 

Cite 

Regulation Statute 

OAR 340-150-0160(1)(a)(A)-(E) 

OAR 340-150-0300(2), (3), (5) 

OAR 340-150-0310 

OAR 340-150-0320 

OAR 340-150-0325 

OAR 340-150-0400 to -0470 

OAR 340-160-0020 

OAR 340-150-0160(1 )(a)(C) 

OAR 340-150-0300(4)(a) 

OAR 340-150-0310 

OAR 340-150-0560(4) 

OAR 340-150-0020(2)(d)^ 

OAR340-150-0160(1)(d) 

, OAR 340-150-0300(7)-(9) 

ORS 466.746 1 

ORS 466.750 1 

ORS 466.765 i 

ORS 466.746 1 

ORS 466.765 ! 

ORS 466.740 | 

ORS 466.746 i 

ORS 466.760 1 

ORS 466.765 1 
Objective §281.30: New UST Systems and Notification 

(a) The state standards are the same as or more stringent than the analogous federal rules 

for design, construction and installation found at 40 CFR 280.20(a), (b), (c), (d), and 

(e). All USTs and underground piping must meet the performance standards and 

requirements for spill and overfill prevention, corrosion protection, and release 

protection. OAR 340-150-0160(l)(a)(A) through (E) and OAR 340-150-0300(4)(a) 

through (c). ' 

Many ofthe codes and standards for design, construction and protection of tanks 

identified in the state rules are listed in 40 CFR 280.20(a)(1) and (a)(2). OAR 340-

150-0300 and -0320. The state rules include codes and standards found in 40 CFR 

280.20(a)(3), (b)(1) and (b)(2), but also include additional standards codes and 

standards not found in the federal rules. OAR 340-150-0300 and -0320 (Appendices 

A, D2, E2 and F). We have, however, no reason to believe that the additional codes 

and standards found in the state rules are less stringent that those in the federal rules. 

40 CFR 280.20 was promulgated in 1988 and last amended in 1991. OAR chapter 

340 division 150 has been amended several times, including amendments in both 

2003 and 2008. Thus, the codes and standards referenced in the appendices in the 

State rules are simply more current than those identified in the federal rules.' 

All USTs and underground piping must be installed in accordance with a code of 

practice developed by a nationally recognized association or independent testing 

laboratory and with the manufacturer's instructions. OAR 340-150-0300(2). The 

codes and standards used to comply with the state rules are listed in Appendix A to 

Division 150. Appendix A includes four codes and standards, one of which is 

identified in 40 CFR 280.20(b)(2) and two of which are identified in 40 CFR 

280.20(d). We have, however, no reason to believe that the additional code and 

standard found in the state rule is less stringent than those in the federal rules. It is 

simply more current. 

The state rules differ from and are more stringent than the federal rules in the 

following respects: 

(1) The state rules do not allow the use of metal tanks or piping without corrosion 

protection as allowed in 40 CFR 280.20(a)(4) and (b)(3); 

(2) The state rules do not allow for the use of alternative types of tanks and piping 

determined to be equally protective as those otherwise identified in the rules, as 

allowed in 40 CFR 280.20(a)(5) and (b)(4). 

(3) The state rules allow only one mode of certifying the installation. The 

certification of compliance must be signed by the owner, permittee and a service 

' The references in Division 150 to various codes and standards will be reviewed and updated to the then 

current codes and standards, as necessary, when Division 150 is amended. 
provider licensed by the department, and must certify that the system has been 

installed in compliance with the required methods and standards. OAR 340-150-

0300(9). 

(4) The state rules require used USTs that have been removed from the ground to 

be certified by a UST manufacturer in writing before being reused. OAR 340-

150-0302. 

The state and federal rules differ slightly in terms of how the piping subject to the 

rules is described. The requirements in 40 CFR 280.20 apply to tanks and to piping 

that comes in contact with the ground. OAR Chapter 340 Division 150 uses the term 

underground piping, which refers to both connected piping that is located below the 

ground surface and connected piping that is otherwise covered by earthen materials. 

See OAR 340-150-0010(85). \ye have confirmed that these terms are equivalent with 

EPA Region 10. 

(b) All new tanks must be installed and operated in accordance with the performance 

standards for spill and overfill protection in OAR 340-150-0310. OAR 340-150-

0300(4)(a). The standards in OAR 340-150-0310 are the same as the federal 

standards found in 40 CFR 280.20(c), except that: 

(1) The state rules do not include the options for overfill prevention equipment 

found in 40 CFR 280.20(c)(l)(ii)(C) and (c)(2)(i). OAR 340-150-0310(2). 

(2) The state rules require that the owner and permittee be able to demonstrate 

that the overfill equipment operates as required. This demonstration must be by 

visual verification for systems installed on or after March 1, 2003. OAR 340-

150-0310(3). 

(3) The state rules require the owner and permittee to "follow fill procedures that 

. prevent any ofthe fittings located on top ofthe UST from being exposed to a 

regulated substance due to overfilling.". OAR 340-150-0310(2). 

All existing tanks must comply with the performance standards for new tanks as 

specified in 40 CFR 280.20(c). OAR 340-150-0560(4). 

(c) The state notification requirements are generally the same as the analogous federal 

requirements in 40 CFR 280.22(a), (e), and (f), but are more stringent in the following 

respects: 

(1) The owner and permittee must notify the Department ofEnvironmental 

Quality (Department) at least 30 days before beginning installation of a UST 

system. (The department may allow a shorter period on a case-by-case basis.) 

OAR 340-150-0300(7). &e a/50, OAR 340-150-0020(2)(d) (completed 

notification form required to be submitted with application for registration 

certificate at least 30 days before installing or operating an unregistered UST). 
The federal rules require notification within 30 days of bringing a UST system 

into use. 

(2) The owner and permittee must notify the Department ofthe confirmed time 

and date ofthe installation ofthe UST system at least three working days before 

beginning the installation. The Department may also request additional 

notifications. OAR 340-150-0300(8). 

(3) The installation checklist required upon completion ofthe installation requires 

certification of compliance with required installation standards and methods, as 

well as the standards for spill and overfill prevention, corrosion protection, and 

release detection, and financial responsibility as is required by 40 CFR 280.22 but 

also requires the owner and permittee to provide substantially more information, 

than appears to be required by 40 CFR 280.22(e) and (f). OAR 340-150-

300(9)(b)-(g). 
Objective §281.31: Upgrading Existing UST Systems 

The State must have requirements | 

that ensure existing UST systems 

will be replaced or upgraded before | 

December 22, 1998, to prevent 

releases for their operating life due | 

to corrosion, and spills or overfills. ] 

Cite 

Regulation Statute 

OAR 340-150-0550 

OAR 340-150-0555 

OAR 340-150-0560 

ORS 466.746 

ORS 466.765 
Objective §281.31: Upgrading Existing UST Systems 

The state rules are the same as those in 40 CFR 280.21. OAR 340-150-0555 and -0560. 

OAR 340-150-0555(3) and (4) require the owner and permittee of an existing system (i.e. 

installed on or before December 22, 1988) to comply with either the new system 

performance standards or the upgrading requirements in OAR 340-150-0560, or 

decommission the system, by no later than December 22, 1998. The upgrading standards 

in OAR 340-150-0560(l)-(4) are the same as those in 40 CFR 280.2 l(b)-(d).^ The 

compliance schedule for release detection requirements found in OAR 340-150-0555 is 

the same as that in 40 CFR 280.40 (general requirements) and 280.42 (requirements for 

hazardous substance UST systems). 

^ OAR 340-150-560(3) pertains to protection of metal piping. It expressly states that the piping must meet 

the requirements of 40 CFR 280.20(b)(2). There is, however, an error in Subsection (3) in that the list of 

specific codes and standards that an owner or permittee can use to comply with the requirements, identifies 

the wrong codes and standards. It identifies those in 40 CFR 280.20(b)(1), which apply to nonmetal piping. 

The regulated community should not be confused by the list. DEQ will address this error the next time 

Division 150 is amended. 
Objective §281.32: General Operating Requirements 

The State must have requirements that 

ensure all new and existing UST systems 

conform to the following: 

(a) Prevent spills and overfills by ensuring that 

the space in the tank is sufficient to receive 

the volume to be transferred and that the 

transfer operation is monitored constantly; 

(b) Where equipped with cathodic protection, 

be operated and maintained by a person with 

sufficient training and experience in 

preventing corrosion, and in a manner that 

ensures that no releases occur during the 

operating life of the UST system [Note: Codes 

of practice developed by nationallyrecognized organizations and national 

independent testing laboratories may be used 

to demonstrate the State program 

requirements are no less stringent.]; 

(c) Be made of or lined with materials that are 

compatible with the substance stored; 

(d) At the time of upgrade or repair, be 

structurally sound and upgraded or repaired in 

a manner that will prevent releases due to 

structural failure or corrosion during their 

operating lives; 

(e) Have records of monitoring, testing, 

repairs, and closure maintained that are 

sufficient to demonstrate recent facility 

compliance status, except that records 

demonstrating compliance with repair and 

upgrading requirements must be maintained 

for the remaining operating life of the facility. 

These records must be made readily available 

when requested by the implementing agency. 

Cite 

Regulation Statute 

OAR 340-150-0163(1 )(b) 

OAR 340-150-0310(1 )-(5) 

OAR 340-150-0163(1 )(c) 

OAR 340-150-0320 

OAR 340-150-0325 

OAR 340-150-0156 

OAR 340-150-0300(3) 

OAR 340-150-0163(1)(h) 

OAR 340-150-0350 

OAR 340-150-0352(4) 

OAR 340-150-0560 

OAR 340-150-0135(2) 

OAR 340-150-0140(2) 

OAR 340-150-0163(1)0 

OAR 340-150-0166(8) 

OAR 340-150-0167(10) 

OAR 340-150-0168(10) 

OAR 340-150-0325(6) 

OAR 340-150-0350(9) 

OAR 340-150-0352(8) 

OAR 340-150-0354(3) 

OAR 340-150-0400 to -0470 

ORS 466.746 

ORS 466.765 

ORS 466.746 

ORS 466.765 

ORS 466.746 

ORS 466.765 

ORS 466.746 

ORS 466.765 

i 

ORS 466.746 

ORS 466.765 
Objective §281.32: General Operating Requirements 

(a) The state requirements in OAR 340-150-0310 are substantially equivalent to those in 

40 CFR 280.30(a). An owner and permittee must "install, operate and maintain spill 

prevention equipment * * * that will prevent the release of a regulated substance to 

the environment when the transfer hose is detached fi-om the fill pipe" and "install, 

operate and niaintain overfill prevention equipment and follow fill procedures that 

prevent any ofthe fittings located on top ofthe UST from being exposed to a 

regulated substance due to overfilling." OAR 340-150-0310(1) and (2). As in 40 

CFR 280.30(a), an owner and permittee must confirm that the volume available in a 

UST is greater than the volume ofthe regulated substance to be deposited. OAR 340-

150-0310(4)(a). The state rules also incorporate the same code and transfer 

procedures for purposes of compliance with the spill and overfill requirements as 

found in 40 CFR 280.30(a). See OAR 340-150-0310(5). 

In addition, the state rules require that: 

(1) The owner and permittee be able to demonstrate that the overfill equipment 

operates as required. This demonstration must be by visual verification for 

systems installed on or after March 1, 2003; and 

(2) The owner and permittee develop and implement procedures to ensure that 

each deposit of a regulated substance into a UST is monitored constantly to 

prevent spills and overfills. OAR 340-150-0310(3) and (4)(b). 

(b) The state.requirements, in OAR 340-150-0325, are the same as the analogous federal 

provisions in 40 CFR 280.31(a) through (c), with the following exceptions: 

(1) The state rules in OAR 340-150-0325 apply to all USTs and piping. The 

federal rules apply only to steel UST systems with corrosion protection. 

(2) The state rules require that cathodic protection systems be tested within six 

months of installation and at least once every three years thereafter. OAR 340-

150-0325(2). The federal rules allow the implementing agency to establish a 

different timeframe for testing (see 40 CFR 280.31(b)(1)). 

(3) The state rules clarify what is meant by "a qualified cathodic protection 

tester" by reference to testers licensed by the state under OAR chapter 340 

division 160 or persons allowed to perform testing under OAR 340-150-0156. 

OAR 340-150-0325(2). 

(4) The state rules require the owner and permittee to report all corrosion 

protection test failures to the department within 24 hours. OAR 340-150-0325(4). 

In addition, the state rules are currently broader in that tank owners who install, 

decommission or test their own tanks are required to take the same proficiency 
examination as UST supervisors to ensure that they have the technical knowledge 

to do the work safely and correctly. See, OAR 340-150-0156, 340-150-0160(2), 

340-150-0163(l)(n) and (2), 340-150-0166(4), 340-150-0167(4), 340-150-

0168(8). 

(c) The state requirement in OAR 340-150-0300(3) is the same as that in 40 CFR 

280.32. 

(d) The state requirements in OAR 340-150-0300 and 340-150-0350 are the same as or 

more stringent than those in 40 CFR 280.33(a) through (e). 

The owner and permittee of a UST system needing repair must repair the system in a 

manner that will prevent releases for so long as the UST system is used to store 

regulated substances, and in accordance with national codes of practice. OAR 340-

150-0350(1) and (3). Metal pipe sections and fittings that have previously released a 

regulated substance as a result of corrosion or other damage must be replaced rather 

than repaired. OAR 340-150-0350(2). USTs that have been previously repaired or 

upgraded with interior lining may be repaired by restoring or adding to the lining only 

if the metal portion ofthe UST has been determined to be structurally sound. OAR 

340-150-0350(4). Before an internal lining may be added to a tank previously 

protected with cathodic protection, the integrity ofthe tank must be assessed. OAR 

340-150-0352(4). Cathodic protection must be tested within six months after repair. 

OAR 340-150-0350(7). 

The state standards are more stringent in that: 

(1) Repaired tanks and piping must be tightness tested. OAR 340-150-

0350(5)(a) and (6). The state rules do not afford the owner and permittee 

alternatives to tightness testing afforded by 40 CFR 280.33(d). 

(2) Repaired tanks and piping must be tested after completion ofthe repairs 

and before operation. OAR 340-150-0350(5)(a) and (6). The federal rules 

allow testing within 30 days of repair but apparently allow operation ofthe 

system before testing. 

(3) Any test failures must be reported to the department. OAR 340-150-

0350(5)(a) and (6). 

(4) Repaired tanks (except those repaired by lining) must be certified as 

meeting the performance standards by the original manufacturer or, if 

unavailable, another manufacturer ofthe same type of tank. OAR 340-

150-0350(5)(b). 

(e) The state record-keeping provisions are the same as the federal requirements in 40 

CFR 280.34(b) and (c), except as noted below. As a general matter, the property 

owner, UST owner and permittee must allow access to the property and make the 

10 
required records available upon request. OAR 340-150-0135(2) and -0163(l)(j). If 

the UST facility is sold, all documentation pertaining to the UST system must be 

transferred to the new owner. OAR 340-150-0140(2). Release detection records 

must be maintained at the UST facility or at a readily available altemative site. OAR 

340-150-0400(4) and (5). 

Records relating to repairs, modifications and additions, and replacements of system 

parts must be maintained for the operating life ofthe system. OAR 340-150-350(9), 

-0352(8), and -0354(3), respectively. Records demonstrating the results ofthe last 

two tests ofthe cathodic protection system (three tests for an impressed current 

cathodic protection system) must be maintained. OAR 340-150-0325(6). Records 

relating to changes in service, temporary closure, and permanent closure (including 

the site assessment report) must be maintained for three years. OAR 340-150-166(8), 

-0167(10), and -0168(10), respectively. Records relating to the release detection 

system must be maintained as long as that system is in use. OAR 340-150-0400(4). 

Monitoring results must be maintained for at least a year (the most current 12 months 

of monitoring) regardless ofthe release detection methods used. OAR 340-150-

410(8), -0420(7), -0430(12), -435(8), -0440(6), -0450(5), -0455(7), -0460(7), -

0465(5), -0470(5). 

The state rules differ from 40 CFR 280.34(b) in that the state rules do not have a 

record-keeping requirement that corresponds with that in 40 CFR 280.34(b)(1) 

because the state does not allow the altemative to corrosion protection found in 40 

CFR 280.20(a)(4). 

11 
Objective §281.33: Release Detection 

(a) Release detection requirements for 

owners and operators must consist of a 

method, or combination of methods, that is: 

(1) capable of detecting a release of 

the regulated substance from any 

portion of the UST system that 

routinely contains regulated 

substances ~ as effectively as any of 

the methods allowed under the 

Federal Technical Standards ~ for as 

long as the UST system is in 

operation. In comparing methods, the 

implementing agency shall consider 

the size of release that the method 

can detect and the speed and 

reliability with which the release can 

be detected. 

(2) designed, installed, calibrated, 

operated and maintained so that 

releases will be detected in 

accordance with the capabilities of the; 

method; 

(b) Release detection requirements must, at a 

minimum, be scheduled to be applied at all 

UST systems: 

(1) immediately when a new UST 

system is installed: 

(2) on an orderly schedule that 

completes a phase-in of release 

detection at all existing UST systems 

(or their closure) before December 

22, 1993, except that release 

detection for the piping attached to 

any existing UST that conveys a 

regulated substance under greater 

than atmospheric pressure must be 

phased-in before December 22, 1990. 

(c) All petroleum tanks must be sampled, 

tested, or checked for releases at least 

monthly, except that: 

(1) new or upgraded tanks (that is, 

tanks and piping protected from 

releases due to corrosion and 

Cite 

Regulation Statute 

OAR 340-150-0163(1 )(d) 

OAR 340-150-0400(1 ),(2) 

OAR 340-150-0410 

OAR 340-150-0420 

OAR 340-150-0430 to-0470 

OAR 340-150-0163(1)(d) 

OAR 340-150-0400(1)(c) 

1 

ORS 466.746 

ORS 466.765 

1 

ORS 466.746 

ORS 466.765 

-

OAR 340-150-0160(1 )(a)(E) 

OAR 340-150-0163(1 )(d) 

OAR 340-150-300(4)(c) [ 

OAR 340-150-0555(1)(f) 

and (5) 

OAR 340-150-0555(1) 

ORS 466.746 1 

ORS 466.765 

i 

1 

i 

ORS 466.746 

ORS 466.765 

OAR 340-150-0435(5) 

OAR 340-150-0440(3) 

OAR 340-150-0450(2) 

OAR 340-150-0455(6) 

OAR 340-150-0460(6) 

OAR 340-150-0465(3) 

OAR 340-150-0470(2) 

OAR 340-150-0430(2) ORS 466.746 

ORS 466.765 

12 
equipped with both spill and overfill 

prevention devices) may temporarily 

use monthly inventory control (or its 

equivalent) in combination with 

tightness testing (or its equivalent) 

conducted every 5 years for the first 

10 years after the tank is installed or 

upgraded, or until December 22, 

1998, whichever is later; and 

(2) existing tanks unprotected from 

releases due to corrosion or without 

spill and overfill prevention devices 

may use monthly inventory control (or 

its equivalent) in combination with 

annual tightness testing (or its 

equivalent) until December 22, 1998. 

(d) All underground piping attached to the 

tank that routinely conveys petroleum must 

conform to the following: 

(1) if the petroleum is conveyed under 

greater than atmospheric pressure: 

(i) the piping must be 

equipped with release 

detection that detects a 

release within an hour by 

restricting or shutting off flow 

or sounding an alarm; and 

(ii) the piping must have 

monthly monitoring applied or 

annual tightness tests 

conducted. 

(2) if suction lines are used: 

(i) tightness tests must be 

conducted at least once every 

3 years, unless a monthly 

method of detection is applied 

to this piping; or 

(ii) the piping is designed to 

allow the contents of the pipe 

to drain back into the storage 

tank if the suction is released 

and is also designed to allow 

an inspector to immediately 

determine the integrity of the 

piping system. 

(e) All UST systems storing hazardous 

isubstances must meet the following: 

(1) all existing hazardous substance 

UST systems must comply with all the 

requirements for petroleum UST 

systems in sections 281.33(c) and (d) 

above, and after December 22, 1998, 

they must comply with the following 

OAR 340-150-0555(6) 

i 

ORS 466.746 1 

ORS 466.765 

OAR 340-150-0410(2), (3), (7) 

1 

OAR 340-150-0410(4)-(7) 

OAR 340-150-0555(5) 

ORS 466.746 

ORS 466.765 

ORS 466.746 

ORS 466.765 

i 

i 

ORS 466.746 

ORS 466.765 ' 

13 
subsection (ej(2). 

(2) all new hazardous substance UST 

systems must use interstitial 

monitoring within secondary 

containment of the tanks and the 

attached underground piping that 

conveys the regulated substance 

stored in the tank, unless the owner 

and operator can demonstrate to the 

State (or the State otherwise 

determines) that another method will 

detect a release of the regulated 

substance as effectively as other 

methods allowed under the State 

program for petroleum UST systems 

and that effective corrective action 

technology is available for the 

hazardous substance being stored 

that can be used to protect human 

health and the environment. 

/ 

OAR 340-150-0555(1)(f) 

OAR 340-150-0160(1 )(a)(E) 

OAR 340-150-0420 

i 

1 

; 

1 

n R 9 4Rfi 74fi 

ORS ^66.765 

i 

i 

14 
Objective §281.33: Release Detection 

(a)(1) To maintain compliance with its operating certificate, the permittee must operate 

and maintain the UST system in compliance with the release detection 

requirements of OAR 340-150-0400 through -0470. OAR 340-150-0163(l)(d). 

The requirements in OAR 340-150-0400 are the same as the leak detection 

requirements in 40 CFR 280.40(a), except as noted below. OAR 340-150-0400 

requires that the portion ofthe tank and underground piping that routinely 

contains a regulated substance be capable of detecting a leak as effectively as the 

methods specified in OAR 340-150-450 through -470 (-410 for piping): automatic 

tank gauging, vapor monitoring, groundwater monitoring, interstitial monitoring, 

and any other method that capable of detecting a leak of 0.2 gallons per hour with 

a probability of detection (Pd) of at least 95% and probability of false alarm (Pfa) 

of no more than 5%. 

The state rules differ from the federal rules in the following respects: 

(1) The state rules require that the owner and permittee select a primary release 

detection method. OAR 340-150-0400(2). The federal rules allow use of a 

combination of methods to achieve the standard. 40 CFR 280.40. 

(2) The method used must be an approved leak detection method or equipment as 

listed by a national organization. OAR 340-150-0400(1 )(b). 

(3) The statistical inventory reconciliation (SIR) method may be used, if the method 

used is listed by a national organization, is capable of detecting a leak of 0.2 

gallons per hour and meet the PD and Pfa standards, and is coupled with daily 

inventory control measurements and data. OAR 340-150-0435. 

(4) The state rules allow use ofthe manual gauging method as the sole method of 

detection for tanks of 1000 gallons or less in size. OAR 340-150-0440(1 )(a). The 

state rules no longer allow use of manual gauging method as the sole method of 

detection for tanks larger than 1000 gallons in size. OAR 340-150-0440(l)(b). 

The federal rules allow use ofthe manual gauging method for tanks of 550 

gallons or less as the sole detection method and for tanks of 551 to 2000 gallons 

in place of manual inventory control. 40 CFR 280.43(b). (Inventory control is no 

longer an allowed as a primary method of detection in Oregon. OAR 340-150-

0430(2)(c). 

The state standard for release detection applicable to piping (OAR 340-150-0410) is the 

same as the federal standard, except that the state rules provide that interstitial monitoring 

is the only monitoring method allowed in lieu of an annual line tightness test. 

The state standard for release detection applicable to hazardous substance UST systems 

(OAR 340-15-0420) is the same as that in 40 CFR 280.42(b). 

15 
(a)(2) The state requirement in OAR 340-150-0400(1 )(c) is the same as that in 40 CFR 

280.40(a)(2).. 

(b)(1) The state requires immediate compliance. All new systems (any installed after 

December 22, 1988) must meet the release detection requirements. OAR 340-

150-0555(1) and (5). 

(b)(2) The state rules include the same phase-in schedule for compliance with release 

detection requirements as found in 40 CFR 280.40(c). OAR 340-150-0555(1) 

(c) Every release detection method allowed by the state rules requires monitoring for 

releases on a monthly, or more frequent, basis. OAR 340-150-0435(5),-0440(3), -

450(2), -0455(6), -0460(6), -0465(3), and -0470(2). 

(c)(1) OAR 340-150-0430(2) is more stringent than 40 CFR 280.41(a)(1). The state rule 

is more stringent in that inventory control is not allowed as the primary release 

detection method after December 22, 2008, regardless ofthe date of system 

installation or upgrade. 

(c)(2) The state rules are the same as the federal in that they no longer allow use of 

monthly inventory control and annual tightness tests for existing tanks that do not 

meet performance standards. Operation of a UST system requires compliance 

with spill and overfill prevention and corrosion protection requirements. OAR 

340-150-0555(6). 

(d)(1) The state requirements (OAR 340-150-410(2), (3)and (7)) are the same as those in 

40 CFR 280.41(b)(1) and 280.44, except that automatic tank gauging is allowed 

in lieu of line tightness testing under OAR 340-150-410(7). 40 CFR 280.44(c) 

does not appear to allow use of this method in lieu of a line tightness test. 

(d)(2) The state requirements (OAR 340-150-410(4) through (7)) are the same as those 

in 40 CFR 280.41(b)(2) and 280.44(c), except as follows: 

(1) The state rules require the owner and permittee to check the piping for air if 

unusual operating conditions are observed (OAR 340-150-0410(4)); and 

(2) The state rules allow automatic tank gauging in lieu of annual line tightness 

testing. OAR 340-150-0410(7). 40 CFR 280.44(c) does not appear to allow use 

of this method in lieu of an annual line tightness test. 

(e)(1) This standard is met by OAR 340-150-0555(5), which is the same as that in 40 

CFR 280.42(a). 

(e)(2) The state requires immediate compliance. All new systems (i.e. installed after 

December 22, 1988) must meet the release detection requirements upon 

installation. OAR 340-150-555(l)(f); 340-150-0160(l)(a)(E). 

16 
Objective §281.34: Release Reporting, Investigation, and 

Confirmation 

All owners and operators must conform with 

the following: 

(a) Promptly investigate all suspected 

releases, including: 

(1) when unusual operating 

conditions, release detection signals 1 

and environmental conditions at the ! 

site suggest a release of regulated 

substances may have occurred; and ; 

(2) when required by the 

implementing agency to determine 

the source of a release having an 

Cite 

Regulation Statute 

OAR 340-150-0163(1)(f) 

OAR 340-150-0510 

OAR 340-150-0163(1 )(f) 

OAR 340-150-0500, -0510 

OAR 340-150-0520 

ORS 466.746 

ORS 466.765 

ORS 466.746 

ORS 466.765 

ORS 466.746 

ORS 466.765 

impact in the surrounding area; and 

(b) Promptly report all confirmed underground 

releases and any spills and overfills that are 

not contained and cleaned up. 

OAR 340-150-0163(1 )(g) 

OAR 340-150-0510(5) 

OAR 340-122-0220 

OAR 340-142-0040 

ORS 466.625 

ORS 466.635 

ORS 466.746 

ORS 466.765 

(c) Ensure that all owners and operators 

contain and clean up unreported spills and 

overfills in a manner that will protect human 

health and the environment. 

OAR 340-150-0510(5) 

and (6) 

OAR 340-122-0220 

OAR 340-142-0040,-0060 

ORS 466.625 

ORS 466.645 

ORS 466.746 

ORS 466.765 

17 
Objective §281.34: Release Reporting, Investigation, and 

Confirmation 

c 

(a)(1) The state rule (OAR 340-150-0500) requires prompt (i.e. 24 hour) reporting of 

suspected releases under the same three conditions as the federal rule (40 CFR 

280.50): discovery of a release, observation of unusual conditions, and monitoring 

results indicating a release. The state rule (OAR 340-150-0510) is the same as the 

analogous federal rule (40 CFR 280.52), except as otherwise noted below. OAR 

340-150-0510 requires that an owner and permittee investigate and confirm all 

suspected releases within seven days of discovery or as otherwise approved by the 

department. As with the federal rule, OAR 340-150-0510 requires the 

investigation method for confirming a suspected release by a system test and site 

check. 

The state rule differs from the federal rule in the following respects: 

(1) The universe of "suspected releases" that trigger, reporting, investigation and 

confirmation under OAR 340-150-0500 is, however, broader than the federal rule, 

including (a) discovery of a release into a secondary containment area; and (b) 

monitoring results or alarms from release detection systems. OAR 340-150-

0500(1 )(a) and (c). The state rule also expands the universe of people whose 

observations of unusual conditions could trigger reporting. OAR 340-150-

' 0500(1 )(b). 

(2) The state rule requires submission of a description ofthe system test and any 

test results confirming that a release did not occur or a work plan for completing 

the system test or site assessment, including a firm schedule for completion, 

within seven days (or other period approved by the department). OAR 340-150-

0510(2). 

(3) The state rule requires investigation ofany release to a secondary containment 

unit. OAR 340-150-0510(3). 

(4) The state rule requires site assessment not only if the suspected release was 

reported as a result ofthe discovery of a regulated substance at the facility (as 

opposed to operating conditions or monitoring results) but also if directed by the 

department. OAR 340-150-0510(4). 

(5) The state rule specifies the sample collection and analytical tests and methods 

to be used in the site assessment and provides that the department may require 

submission and approval of a sampling plan before the work is done. OAR 340-

150-0510(4). 

(6) The state rule provides that further investigation is not required if the site 

assessment results do not indicate that a release has occurred, unless specifically 

directed by the department. OAR340-150-0510(4)(b). 

18 
(7) The state rule provides that the department can require additional actions not 

specified in the rule on a case-by-case basis to address actual or potential threat to 

human health or the environment. OAR 340-150-0510(6). 

(a)(2) The requirement in OAR 340-150-0520 is identical to that in 40 CFR 280.51. 

(b) The reporting requirement in the state rule (OAR 340-150-0510) is the same as that in 

the analogous federal rule (40 CFR 280.53), except as otherwise noted below. As 

with the federal rule, OAR 340-150-0510 requires an owner and permittee to report 

the release to the department within 24 hours, if the suspected release investigation 

confirms that a release has occurred. It further requires that the owner and permittee 

comply with the additional reporting, investigation and corrective action requirements 

in OAR 340-122-0205 through -0360 (petroleum USTs) and OAR 340-142-0040 and 

340-122-0010 through -0115 (nonpetroleum USTs). OAR 340-0510(5). 

OAR 340-122-0220 requires reporting of a confirmed release from a petroleum UST 

system within 24 hours if the release: is below-ground, equals or exceeds the 

reportable quantity (RQ) of 25 gallons, or cannot be contained or cleaned up within 

24 hours. A confirmed release from a nonpetroleum UST system (hazardous 

substance UST system) that equals or exceeds the RQ (or will exceed the RQ in any 

24-hour period) must be reported immediately. OAR 340-142-0040.^ 

(c) The state requirements are substantially equivalent to those in 40 CFR 280.53. 

Confirmation of a release triggers the cleanup requirements in OAR Chapter 340, 

Division 122. These requirements apply to releases generally, not just to those 

releases that equal or exceed the reportable quantity. Immediate cleanup of a spill or • 

release of oil or hazardous substance is also required by statute (ORS 466.645). 

' 40 CFR 280.53 requires reporting of a release of less than the RQ if it cannot be cleaned up within 24 

hours. This appears to be addressed by OAR 340-150-0510(5), which requires that confirmed releases be 

reported within 24 hours (i.e. does not include a RQ threshold). 

19 
Objective §281.35: Release Response and Corrective Action 

The state must have requirements that ensure: 

(a) All releases from UST systems are promptly 

assessed and further releases are stopped; 

(b) Actions are taken to identify, contain and 

Imitigate any immediate health and safety 

threats that are posed by a release (such 

activities include investigation and initiation of 

free product removal, if present); 

Cite 

Regulation Statute 

OAR 340-150-0163(1 )(g) 

OAR 340-150-0510(5) 

OAR340-122-0217(1)(a) 

OAR 340-122-0220 

OAR 340-122-0230 

OAR 340-142-0030, 0060 

ORS 466.746 

ORS 466.765 

ORS 466.645 

OAR 340-150-163(1 )(g) 

OAR 340-122-0217(1 )(a), (b) 

OAR 340-122-0225 

OAR 340-122-0235 

OAR 340-122-0050, -0070 

OAR 340-142-0030, 0060 

\ y 

ORS 466.746 

ORS 466.765 

ORS 466.645 

(c) All releases from UST systems are 

investigated to determine if there are impacts on 

soil and ground water, and any nearby surface 

waters. The extent of soil and ground-water 

contamination must be delineated when a 

potential threat to human health and the 

environment exists. 

OAR 340-150-0163(1 )(g) 

OAR 340-122-0217(1)(a), (c) 

OAR 340-122-0230 

OAR 340-122-0240 

OAR 340-122-0050, -0072, 

-0080 

ORS 466.746 

ORS 466.765 

(d) All releases from UST systems are cleaned 

up through soil and ground water remediation 

and any other steps, as necessary to protect 

human health and the environment; 

j(e) Adequate information is made available to 

[the State to demonstrate that corrective actions 

[are taken in accordance with the requirements 

lof (a) through (d) of this section. This 

jinformation must be submitted in a timely 

[manner that demonstrates its technical 

adequacy to protect human health and the 

environment; and 

OAR 340-

OAR 340-

OAR 340-

OAR 340-

OAR 340-

OAR 340-

OAR 340-

OAR 340-

OAR 340-

OAR1340-

OAR 340-

OAR 340-

OAR 340-

OAR 340-

OAR 340-

and (6) 

OAR 340-

OAR 340-

OAR 340-

OAR 340-

-0080(1), 

150-0163(1)(g) 

122-0217(1)(d) 

122-0243 

122-0244 to 

122-0252 

122-0320 to 

122-0090 

0250 

0360 

ORS 466.746 

ORS 466.765 

150-0163(1 )(g) 

122-0217(1)(e) 

122-0225(3) 

122-0230(2) 

122-0235(5) 

122-0240(3) 

122-0243(3) 

122-0250(3), (4), (5) 

122-0252(3) 

122-0360 

142-0030 

122-0050, -0072(3), 

-0085, -0090(5) 

ORS 466.746 

ORS 466.765 

(f) In accordance with section 280.67, the State 

must notify the affected public of all confirmed 

releases requiring a plan for soil and ground 

OAR 340-122-0217(2) 

OAR 340-122-0250(5) 

OAR 340-122-0260 

ORS 465.320 

ORS 466.746 

ORS 466.765 

20 
water remediation, and upon request provide or 

make available information to inform the 

interested public of the nature of the release 

and the corrective measures planned or taken. 

OAR 340-122-0100 ORS 465.320 j 

21 
Objective §281.35: Release Response and Corrective Action 

Introductory note: Ofthe 5861 UST systems currently regulated in Oregon, only 13 are 

hazardous substance (nonpetroleum) UST systems. These UST systems are located at 6 

facilities. Consequently, the program's primary focus has been on petroleum UST 

systems and the rules applicable thereto. As described in greater detail below, OAR 

Chapter 340 Division 150 directs the regulated community to different portions ofthe 

remedial action rules in OAR Chapter 340, Division 122 for purposes of release response 

and corrective action. See OAR 340-150-0510(5)(a) and (b). 

The rules applicable to nonpetroleum systems expressly reference the remedial action 

requirements of OAR 340-122-0010 through -0115, except that releases are to be 

reported in accordance with OAR 340, Division 142. See OAR 340-150-0510(5)(b). The 

rules in OAR 340-122-0010 through -0115 are, however, intended to apply if hazardous 

substances remain after any emergency response conducted under OAR 340 Division 

142. See OAR 340-122-0030(3)(b). The UST rules do not expressly reference Division 

142 for purposes other than reporting. 

This is not necessarily a SPA issue! OAR 340 Division 142 is independently applicable. 

It does not need to be specifically referenced in the UST rules to apply. Nonetheless, the 

fact that Division 142 is expressly referenced for purposes of reporting has generated 

some discussion as to whether the current UST rules have the potential to create 

confusion with respect to the early release response requirements for nonpetroleum UST 

systems. The Department is exploring this issue and the need, if any, for clarifying 

amendments to its rules. 

The state has provided for release response and corrective action in its remedial action 

rules (OAR Chapter 340, Division 122). As a general matter, the universe of regulated 

persons is broader under the state rules than under the federal rules. The obligations in 

Division 122 are imposed upon "the responsible person," a term that appears to 

encompass a broader class of persons than the term "owner and operator." OAR 340-

122-0210(27). 

Confirmed releases from petroleum UST systems trigger the remedial action rules in 

OAR 340-122-0205 through -0360. Confirmed releases from nonpetroleum UST 

systems trigger the remedial action rules in OAR 340-122-0010 through -0115. OAR 

340-150-0163(l)(g) and OAR 340-150-0510(5). 

(a) Petroleum UST systems: The initial response requirements in OAR 340-122-0220 are 

the same as those in 40 CFR 280.61. The responsible person must report the release, 

take immediate action to prevent any further release, and identify and mitigate fire, 

explosion, and vapor hazards within 24 hours. 

Hazardous substance UST systems: Confirmed releases from nonpetroleum UST 

systems trigger the remedial action rules in OAR 340-122-0010 through -0115. OAR 

340-150-0163(l)(g) and OAR 340-150-0510(5). During the emergency response 

22 
phase, spills and releases of hazardous substances regulated by_OAR 340-122-0010 to 

340-122-0110, are, however, managed in accordance with OAR 340 Division 142. 

See, OAR 340-142-0001(5) and 340-122-0030(3)(b). 

Pursuant to OAR 340-142-0030, the person owning or having control over the 

hazardous materials must immediately implement the spill plan or undertake every 

reasonable method to stop the spill and contain the oil or hazardous material, and 

make an initial assessment. The person liable for an actual or threatened spill or 

release of oil or hazardous, materials must prevent further spill or release by taking 

immediate repair, corrective or containment action. OAR 340-142-0060. See also, 

ORS 466.645. 

(b) Petroleum UST svstems: The initial abatement requirements in OAR 340-122-0225 

are the same as those in 40 CFR 280.62, except that the state rules also expressly 

require that contaminated soil be managed in accordance with solid waste regulations. 

The free product removal requirements in OAR 340-122-0235 are the same as those 

in 40 CFR 280.62(6) and 280.64. 

Hazardous substance UST systems: As noted above, in the event of a spill or release 

of hazardous substances, the emergency response phase is managed under OAR 340 

Division 142. The person owning or having control over the hazardous materials 

must immediately implement the spill plan or undertake every reasonable method to 

stop the spill and contain the oil or hazardous material, make an initial assessment, 

clean up the spill and take steps to mitigate any threatened release or spill by taking 

immediate repair; corrective or containment action. OAR 340-142-0030 and -0060. 

The Department may, in any case, evaluate the response and require additional action 

as it deems necessary to complete the cleanup and disposal. OAR 340-142-0030. If 

the person owning or having control over the hazardous materials does not or cannot 

immediately arrange a response acceptable to the Department, the Department may 

dispatch a contractor.'* 

If hazardous substances remain after completion of emergency response, the rules in 

OAR 340-122-0010 to 340-122-0110 apply. OAR 340-122:0030(3)(b). The Director 

may perform or require to be performed a preliminary assessment, removal, remedial 

investigation, risk assessments, feasibility study, other investigations or remedial 

action. OAR 340-122-0050. The type and scope ofthe activities is determined by 

the Department on a case-by-case basis, based on information generated in the course 

or these and earlier activities. OAR 340-122-0050. 

(c) Petroleum UST systems: The initial site characterization requirements in OAR 340-

122-0230 are the same as or substantially equivalent to those found in 40 CFR 

"'Immediately' in relation to a response to a spill means the actions necessary to protect human health and 

the environment take priority over all other concerns ofthe responsible person." OAR 340-142-0005(10). 

"'Respond' or 'response' includes among other things, containment and other actions appropriate to 

prevent, minimize or mitigate damage to the public health, safety, welfare or the environment. OAR 340-

142-0005(21). 

23 
280.63. There are minor differences in the data required to be collected (compare 

OAR 340-0122-0230 and 40 CFR 280.63) but the rules appear to be substantially 

equivalent. The state also requires an investigation ofthe magnitude and extent of 

soil and groundwater contamination if not otherwise fiilly identified in the course of 

the initial site characterization. OAR 340-122-0240. This requirement is more 

stringent than those under 40 CFR 280.65, to the extent that the additional 

investigation in 40 CFR 280.65 is triggered only if groundwater wells have been 

affected, free product is found to need recovery, soils may be in contact with 

groundwater or the implementing agency requests an investigation. 

Hazardous substance UST svstems: The scope of the characterization described in 40 

CFR 280.63 appears substantially equivalent to the preliminary assessment described 

in OAR 340-122-0072, the purpose of which is to develop sufficient information to 

determine whether additional investigation, removal or remedial action are needed to 

assure protection of present and future public health, safety and welfare, and ofthe 

environment. The Department may undertake or require a remedial investigation, 

based on the preliminary assessment, removal or other information. OAR 340-122-

0080. The investigation will, among other things, identify and characterize the nature 

and extent ofthe contamination in both soil and groundwater consistent with the 

scope ofthe investigation described in 40 CFR 280.65. 

(d) Petroleum UST svstems: Based on the site investigations, the responsible person 

must perform one of four remediation approaches, each designed to ensure a cleanup 

that is protective of human health and the environment. OAR 340-122-0217(l)(d). 

These include: (1) remediation to site-specific risk-based corrective action levels 

identified in a corrective action plan approved by the agency (OAR 340-122-0244 

and -250); (2) remediation pursuant to a generic remedy developed by the agency, 

based oneither generic risk-based cleanup levels or certain remedial technologies, 

that have been determined by the agency to be protective of human health and the 

environment (OAR 340-122-0252); (3) remediation of soils to specific numeric soil 

cleanup standards that have been determined by the agency to be protective of human 

health and the environment (OAR 340-122-0320 to -0360); or (4) closure or 

remediation in accordance with OAR 340-122-0243 for low-impact sites (where site 

conditions have stabilized site is likely to have low current and potential future 

impact on the basis of risk or impairment of beneficial land and water uses). 

Hazardous substance UST svstems: Remedial actions are selected or approved 

pursuant to OAR 340-122-0090. The remedial action must, among other things, be 

protective of present and future public health, safety and welfare and ofthe 

environment. The method of remediation at a specific facility is selected from among 

the protective alternatives based on a balancing of remedy selection factors 

(effectiveness, long term reliability, implementability, implementation risk, and 

reasonableness of cost). OAR 340-122-0090(3). 

(e) Petroleum UST svstems: The reporting requirements applicable to release response 

and corrective action are the same as or substantially equivalent to those in the 

24 
analogous federal rules. The requirements in OAR 340-122-0225(3) (initial 

abatement) are the same as those in 40 CFR 280.62(b). The requirements in OAR 

340-122-0230(2) (initial site characterization) are, the same or the substantial 

equivalent of those in 40 CFR 280.63(b). The requirements in OAR 340-122-0235(5) 

„ (free product removal), which provide for inclusion of required information in the 

report prepared for the initial site characterization, are the substantial equivalent of 

those in 40 CFR 280.64(d). The state rules also provide for reporting with respect to 

the magnitude and extent of contamination within 45 days ofthe completion ofthe 

field work or such longer period as approved by the department. OAR 340-122-

0240(3). There are also reporting requirements associated with each ofthe four 

remedial options. See OAR 340-122-0243(3), -0250(6), -0252(3), and -0360. 

Hazardous substance UST systems: The initial assessment required under OAR 340-

142-0030(2) includes, among other things, confirming and correcting the reported 

quantity and extent ofthe contamination, reporting the efficacy ofthe initial 

containment and providing the Department with information necessary to the 

Department's risk evaluation and characterization ofthe release. 

If hazardous substances remain after completion of emergency response, the rules in 

OAR 340-122-0010 to 340-122-0110 apply. OAR 340-122-0030(3)(b). The Director 

may perform or require to be performed a preliminary assessment, removal, remedial 

investigation, risk assessments, feasibility study, other investigations or remedial 

action. The type and scope ofthe activities is determined by the Department on a 

case-by-case basis, based on information generated in the earlier activities. OAR 

340-122-0050. The record on which the Department's remedy selection is based will 

include information generated during a preliminary assessment, remedial 

investigation, and risk assessment. See also, OAR 340-122-0072(3) and -0080(1). 

The record will also include a feasibility study that evaluates the protectiveness, 

feasibility and appropriateness ofthe various remedial action altematives at a given 

site. OAR 340-122-0085. OAR 340-122-090(5) provides that the person responsible 

for undertaking a remedial action has the burden of demonstrating that the proposed 

remedial action is, among other things, protective of both present and fiiture public 

health, safety and welfare, and the environment. 

(f) Petroleum UST systems: The state public notice provisions, found in OAR 340-122-

0260, are the same as those in 40 CFR 280.67(a) through (c), except that the state 

program requires a public meeting to accept comment on the proposed remedial 

activities (except for soil matrix cleanups) upon written request of 10 or more persons 

or a group having ten or more members. 

Hazardous substance UST systems: The state public notice and participation 

provisions in OAR 340-122-0100 are the same as those in 40 CFR 280.67(a) through 

(c), except that the state program requires a public meeting to accept comment on the 

proposed remedial activities upon written request of 10 or more persons or a group 

having ten or more members. 

25 
Objective §281.36: Out-of-Service UST Systems and Closure 

The State must have requirements that 

ensure UST systems conform with the 

following: | 

(a) All new and existing UST systems 

temporarily closed must: 

(1) continue to comply with general 

operating requirements, release 

reporting and investigation,' and 

release response and corrective 

<' action; 

(2) continue to comply with release 

detection requirements if regulated i 

substances are stored in the tank; j 

(3) be closed off to outside access; 

and 

(4) be permanently closed if the UST 

system has not been protected from 

corrosion and has not been used in 

one year, unless the State approves | 

an extension after the owner and 

operator conducts a site assessment, j 

(b) All tanks and piping must be cleaned and | 

permanently closed in a manner that 

eliminates the potential for safety hazards and; 

future releases. 

The owner or operator must notify the State of; 

permanent UST system closures. j 

i 

The site must also be assessed to determine 

if there are any present or were past releases, 

and if so, release response and corrective 

action requirements must be complied with. 

(c) All UST systems taken out of service 

before December 22, 1988, must permanently; 

close in accordance with paragraph (b) of this 

section when directed by the State. 

Cite 

Regulation Statute 

OAR 340-150-0135(7) 

OAR 340-150-0167(3)(b),(c) ! 

OAR 340-150-0167(6) 

i 

OAR 340-150-0167(3)(a) 

OAR 340-150-0167(2) 

OAR 340-150-0168(4) 

t 

OAR 340-150-0168(1), (3) 

OAR 340-150-0168 (5), (6) 

OAR 340-150-0180 

OAR 340-150-0006(2) 

OAR 340-150-0168(4) 

ORS 466.746 

ORS 466.765 

ORS 466.746 

ORS 466.765 

ORS 466.746 

ORS 466.765 

/ i 

ORS 466.746 

ORS 466.765 

4 

ORS 466.746 

ORS 466.765 

ORS 466.746 

ORS 466.765 

26 
Objective §281.36: Out-of-Service UST Systems and Closure 

The state standards regarding temporary closure are substantially equivalent to those in 

40 CFR 280.70. A UST may not be temporarily closed without a temporary closure 

certificate.^ OAR 340-150-0020(1 )(d). To maintain compliance with the certificate, the 

permittee must comply with the standards in OAR 340-150-0167(3). 

(a)(1) The state standard is the same as that in 40 CFR 280.70(a). The state standards 

for release reporting, response and corrective action applicable to temporarily 

closed systems are the same as those applicable to operating systems. OAR 340-

150-0135(7); OAR 340-150-0167(3)(b) and (3)(c). If the UST is not empty, the 

permittee must operate, test, and maintain corrosion protection (metal tanks), or 

periodically inspect the tank lining (lined tanks), in accordance with the standards 

applicable to operating tanks.^ OAR 340-150-0167(6). 

(a)(2) The state standard is the same as that in 40 CFR 280.70(a). If the UST is not 

empty, the permittee must comply with the release detection requirements 

applicable to operating systems. OAR 340-150-0167(6). 

(a)(3) The state standard is the same as that in 40 CFR 280.70(b). To maintain 

compliance with the temporary closure certificate, the permittee must cap and 

secure all lines, pumps, accessways and ancillary equipment (except vent lines) if 

the system is temporarily closed for three months or more. OAR 340-150-

0167(3)(a). 

(a)(4) The state standard differs somewhat from that in 40 CFR 280.70(c) but is 

substantially equivalent to the federal standard. The owner and permittee must 

submit an application for a temporary closure general permit at least 30 days 

before begirming temporary closure. OAR 340-150-0167(1). The certificate 

. expires one year from the date of issuance, unless the department approves a 

request for extension. Without an extension the permittee must permanently 

decommission the system by permanent closure or change-in-service. OAR 340-

150-0167(2). 

The state standard differs from the federal standard in that the state rules require 

that an extension be requested at least 30 days before expiration ofthe temporary 

closure certificate. OAR 340-150-0167(2). 

(b) The state standard for system cleaning upon permanent closure is the same as that 

found at 40 CFR 280.71(b), except that the state requirements apply to the UST 

system as a whole, whereas the federal requirements apply to tanks. OAR 340-150-

0168(4). If the permittee proposes to close the UST in place and fill it, the permittee 

( 

' "Temporary closure" is defined at OAR 340-150-0010(80). 

* The definition of "empty" found at OAR 340-150-0010(27) is the same as that found in 40 CFR 

280.70(a). 

27 
must submit a site assessment plan. Closure cannot begin until the plan is approved 

by the department. OAR 340-150-0168(2). 

The state requirements for notifying the state of permanent closures and for site 

assessment upon permanent closure are the same as those in 40 CFR 280.71(a) and 

280.72, except as described below. i 

The owner and permittee must submit notice of permanent closure at least 30 days 

before beginning permanent closure. OAR 340-150-0168(1) and OAR 340-150-

0163(4). The permittee must perform a site assessment before permanent closure. 

OAR 340-150-0168(5) and OAR 340-150-0180. The state requirements are, more 

stringent in that the permittee cannot satisfy the requirements ofthe site assessment 

by relying on the release detection method in place at the time of closure as allowed 

by 40 CFR 280.72(a). 

(c) The rules in OAR Division 150, apply to all UST systems taken out of operation 

between January 1, 1974 and May 1, 1988, if not emptied and cleaned as required by 

OAR 340-150-0168(4), and to all UST systems taken out of operation before January 

1, 1974, if not empty. OAR 340-150-0006(2). This is more stringent than the federal 

standard in 40 CFR 280.73, which leaves assessment and closure of systems taken out 

of operation before December 22, 1988 up to a case-by-case determination by the 

agency as to current or potential health threat. 

28 
Objective §281.37: Financial Responsibility for USTs Containing 

Petroleum 

(a) State requirements for financial 

responsibility must ensure that: 

(1) owners and operators have $1 

million per occurrence for corrective 

action and third-party claims in a 

timely manner to protect human 

health and the environment; 

(2) owners and operators not 

engaged in petroleum production, 

refining, and marketing and who 

handle a throughput of 10,000 gallons 

of petroleum per month or less have 

$500,000 per occurrence for 

corrective action and third-party 

claims in a timely manner to protect 

human health and the environment; 

(3) owners and operators of 1 to 100 

petroleum USTs must have an annual 

aggregate of $1 million; and 

(4) owners and operators of 101 or 

more petroleum USTs must have an 

annual aggregate of $2 million. 

(b) Phase-in requirements. Financial 

responsibility requirements for petroleum UST 

systems must, at a minimum, be scheduled to 

be applied at all UST systems on an orderly 

schedule that completes a phase-in of the 

financial responsibility requirements within the 

time allowed in the .Federal regulations under 

40 CFR §280.91. 

(c) States may allow the use of a wide variety 

of financial assurance mechanisms to meet 

this requirement. Each financial mechanism 

must meet the following criteria: be valid and 

enforceable; be issued by a provider that is 

qualified or licensed in the State; not permit 

cancellation without allowing the State to draw 

funds; ensure that funds will only and directly 

be used for corrective action and third-party 

liability costs; and require that the provider 

notify the owner or operator of any 

circumstance that would impair or suspend 

coverage. 

(d) States must require owners and operators 

to maintain records and demonstrate 

compliance with the State financial 

responsibility requirements, and these records 

must be made readily available when 

requested by the implementing agency. 

Cite 

Regulation 

OAR 340-151-0010 to-0025 

OAR 340-151-0010 to-0025 

OAR 340-151-0010 to-0025 

OAR 340-151-0010 to-0025 

OAR 340-151-0010 to-0025 

OAR 340-151-0010 to-0025 

OAR 340-151-0010 to-0025 

Statute 

ORS 466.746 

ORS 466.765 

ORS 466.815 i 

ORS 466.746 1 

ORS 466.765 1 

ORS 466.815 : 

ORS 466.746 1 

ORS 466.765 ! 

ORS 466.815 i 

ORS 466.746 ^ 

ORS 466.765 I 

ORS 466.815 i 

ORS 466.746 i 

ORS 466.765 i 

ORS 466.815 \ 

1 

ORS 466.746 

ORS 466.765 ' 

ORS 466.815 | 

ORS 466.746 i 

ORS 466.765 

ORS 466.815 i 

t ^ 

29 
Objective §281.37: Financial Responsibility for USTs Containing 

Petroleum 

The state requirements are generally the same as the federal financial responsibility 

requirements. The state has adopted the financial responsibility requirements in 40 CFR 

Part 280 Subpart H in effect as of February 1, 2003 by reference with only minor 

changes. As is relevant here, the term "owner and permittee" is substituted for the term 

"owner or operator" as used in Subpart H. The rules also include definitions of "owner" 

and "permittee." The definition of "owner" is the same as that found in 40 CFR 280.12. 

The term "permittee" is defined to mean "the owner or person designated by the owner, 

who is in control of or has responsibility for daily UST system operation and 

maintenance, financial responsibility and UST operator training requirements under a 

general permit pursuant to OAR 340-150-0160 through 340-150-0168. OAR 340-151-

0025(2)(b). 

(a)(1) The state standard is identical to that in 40 CFR 280.93(a)(1). 

(a)(2) The state standard is identical to that in 40 CFR 280.93(a)'(2). 

(a)(3) The state standard is identical to that in 40 CFR 280.93(b)(1). 

(a)(4) The state standard is identical to that in 40 CFR 280.93(b)(2). 

(b) The state standard is identical to that in 40 CFR 280.91. 

(c) The state standards are identical to those in 40 CFR 280.94 through 280.103. 

(d) The state standard is identical to that in 40 CFR 280. 111. 

In addition, the state rules require that tank owners and insurers notify DEQ when 

insurance coverage is canceled or not renewed. See OAR 340-151-0025(4) and (5). 

30 
Objective § 281.39: Lender liability. 

(a) A state program that contains a security interest exemption will be considered to be 

no less stringent than, and as broad in scope as, the federal program provided the state's 

exemption: 

(1) Mirror the security interest exemption provided for in 40 CFR part 280, subpart I; or 

(2) Achieve the same effect as provided by the following key criteria: 

(i) A holder, meaning a person who maintains indicia of ownership primarily to protect a 

security interest in a petroleum UST or UST system or facility or property on which a 

petroleum UST or UST system is located, who does not participate in the management of 

the UST or UST system as defined under § 280.210 of this chapter, and who does not 

engage in petroleum production, refining, and marketing as defined under § 280.200(b) 

of this chapter is not: 

(A) An "owner" of a petroleum UST or UST system or facility or property on which a 

petroleum UST or UST system is located for purposes of compliance with the 

requirements of 40 CFR part 280; or 

(B) An "operator" of a petroleum UST or UST system for purposes of compliance with 

the requirements of 40 CFR part 280, provided the holder is not in control ofor does not 

have responsibility for the daily operation ofthe UST or UST system. 

40 CFR 281.39 appears to be inapplicable here. Oregon's UST program does not contain 

a security interest exemption (i.e. an exemption directly applicable to obligations arising 

under the UST program authorities in ORS Chapter 466). Oregon does have a security 

interest provision that protects qualifying persons from liability imder ORS 465.255 (the 

state's superfund analogue). ORS 465.430-.455; OAR 340-122-0120. It mirrors the 

analogous provision in CERCLA (42 USC 9601 et seq.) It would not, however, apply to 

liability arising under ORS Chapter 466 or OAR Chapter 340 Division 150. 

31 
§281.40: Legal Authorities for Compliance Monitoring 

The State must have the following specific^ 

compliance monitoring authorities: 

(a) Any authorized representative of the 

State engaged in compliance inspections, 

monitoring, and testing must have authority 

to obtain by request any information from an 

owner or operator with respect to the UST 

system(s) that is necessary to determine . 

compliance with the regulations. 

1 

(b) Any authorized representative of the 

State must have authority to require an 

owner or operator to conduct monitoring or 

testing. 

(c) Authorized representatives must have ' 

the authority to enter any site or premises 

subject to UST system regulations or in 

which records relevant to the operation of 

the UST system(s) are kept, and to copy 

these records, obtain samples of regulated 

substances, and inspect or conduct the 

monitoring or testing of UST system(s). 

Cite 

Regulation Statute 

OAR 340-150-0135(2),(4) 

OAR 340-150-0160(1 )(b),(c) 

OAR 340-150-0163(1 )(j),(k) 

OAR 340-150-0166(4)(c),(d) 

OAR 340-150-0167(3)(e),(f) 

OAR 340-150-0168(7)(c),(d) 

OAR 340-150-0135(4) 

OAR 340-150-0160(1 ),(2) 

OAR 340-150-0163(1 )(c)-(g) 

OAR 340-150-0166(2)(c),(6) 

OAR 340-150-0167(6) 

OAR 340-150-0135(2) 

OAR 340-150-0160(1 )(b),(c) 

OAR 340-150-0163(1 )(j),(k) 

OAR 340-150-0166(4)(c),(d) 

OAR 340-150-0167(3)(e),(f) 

OAR 340-150-0168(7)(c),(d) 

ORS 465.250 i 

ORS 466.765(3),(6) 

1 

1 

ORS 466.765(5) j 

ORS 465.250 ! 

ORS 466.765(3) | 

and (6) 

ORS 466.805 

ORS 466.810 

32 
§281.40: Legal Authorities for Compliance Monitoring 

(a) The state has sufficient compliance monitoring authority. The owner and 

permittee must provide information regarding the UST system, UST facility, 

system operator and UST facility attendant upon request. ORS 466.765(3) and 

(6); OAR 340-150-0135(4). These requirements are incorporated into 

installation, operation and closure permits. 

(b) The state has sufficient compliance monitoring authority. ORS 466.765(5) 

requires that the owner or permittee conduct monitoring and testing as 

required by DEQ rules or a permit issued by DEQ. Monitoring and testing 

requirements associated with release detection, corrosion protection, and 

corrective action are incorporated into installation, operation and closure 

permits. See e.g. OAR 340-150-0135(4); OAR 340-150-0160(l),(2); OAR 

340-150-0163(l)(c)-(g); OAR 340-150-0166(2)(c),(6); OAR 340-150-

0167(6). 

(c) The state has sufficient compliance monitoring authority. The property owner, 

UST owner, and permittee must allow department employees and authorized 

representatives access to the property on which the UST system is located to 

inspect equipment and site conditions, collects samples, take pictures, conduct 

an investigation, review and copy records, and conduct interviews. ORS 

466.765(3) and (6); ORS 466.805; and OAR 340-150-0135(2) and (4). These 

requirements are incorporated into installation, operation and closure permits. 

33 
§281.41: Legal Authorities for Enforcement Response 

The State must have the following specific 

enforcement response authorities for State 

program approval: 

(a) Any State agency administering a program 

must have the authority to implement the 

following remedies for violations of State 

program requirements: 

(1) To restrain immediately and 

effectively any person by order or by 

suit in State court from engaging in 

any unauthorized activity that is 

endangering or causing damage to 

public health or the environment; 

(2) To sue in courts of competent 

jurisdiction to enjoin any threatened or 

continuing violation of any program 

requirement; 

(3) To assess or sue to recover in 

court civil penalties as follows: 

(i) Civil penalties for failure to ^ 

notify or for submitting false 

information pursuant to tank ; 

notification requirements 

must be capable of being 

assessed up to $5,000 or 

more per violation. 

(ii) Civil penalties for failure to 

comply with any State 

requirements or standards for 

existing or new tank systems 

must be capable of being 

assessed for each instance of 

violation, up to $5,000 or 

more for each tank for each 

day of violation. If the 

violation is continuous, civil 

penalties shall be capable of 

being assessed up to $5,000 

or more for each day of 

violation. 

Cite 

Regulation Statute 

• 

' 

: 

ORS 466.830 

ORS 466.810(7) 

ORS 466.830 

ORS 466.994 

ORS 466.994 

34 
§281.41: Legal Authorities for Enforcement Response 

(a)(1) The state has sufficient enforcement authority. The department may enjoin 

operation of a UST if it has reason to believe that a clear and immediate danger to public 

health, welfare, safety, or the environment exists from continued operation ofthe tank. 

ORS 466.830. The department may also institute actions or proceedings for legal or 

equitable remedies to enforce compliance when it appears to the department that a person 

is engaged or about to engage in an act or practice that violates a provision ofthe UST 

program (or any permit or order issued thereunder). ORS 466.810(7). 

(a)(2) see response to (a)(1) above. 

(a)(3) The state has sufficient enforcement authority. The state can assess civil penalties 

through administrative contested case proceedings as follows: 

(3)(i) Any person who violates any provision ofthe UST program (including 

permits and orders issued thereunder) is subject to a civil penalty of up to $10,000 

per violation per day. ORS 466.994(1). 

(3)(ii) Each violation can be treated as a separate and distinct offense and each 

day's continuance of each violation may be treated as a separate and distinct 

offense. ORS 466.994(2). 

The requirements in Division 150 generally apply to an UST or "UST system" (tank, 

piping and ancillary equipment and containment). In other words, they apply on a per 

tank basis. It follows that violation of such requirements would also be determined on a 

per tank basis. And each violation may be treated as a separate offense. 

35 
§281.42: Public Participation in Enforcement Proceedings 

Any State administering a program must 

provide for public participation in the State 

enforcement process by providing any one of 

the following three options: 

(a) Authority that allows intervention 

analogous to Federal Rule 24(a)(2), and 

assurance by the appropriate State 

enforcement agency that it will not oppose 

intervention under the State analogue to Rule 

24(a)(2) on the ground that the applicant's 

interest is adequately represented by the 

State. 

(b) Authority that allows intervention as of 

right in any civil action to obtain the remedies i 

specified in 281.41 by any citizen having an 

interest that is or may be adversely affected; 

or 

(c) Assurance by the appropriate State 

agency that: 

(1) It will provide notice and 

opportunity for public comment on all 

proposed settlements of civil 

enforcement actions (except where 

immediate action is necessary to 

adequately protect human health and ] 

the environment); 

(2) It will investigate and provide 

responses to citizen complaints about 

violations; and 

(3) It will not oppose citizen 

intervention when permissive 

intervention is allowed by statute, 

rule, or regulation. 

Cite ' : 

Regulation Statute 

• 

N/A ! 

ORCP 33C 

N/A 

\ i 

N/A 

36 
§281.42: Public Participation in Enforcement Proceedings 

(a) Oregon allows intervention analogous to that provided by FRCP 24(a)(2). ORCP 

33C provides for permissive intervention in a civil actions, as follows: 

"At any time before trial, any person who has an interest in the matter in litigation 

may, by leave of court, intervene. In exercising its discretion, the court shall 

consider whether the intervention will unduly delay or prejudice the adjudication 

of the rights ofthe original parties." 

Although discretionary, rather than "of right," intervention under ORCP 33C is 

analogous to FRCP 24(a)(2) (which allows intervention as of right to one with 

interest in subject of an action that may be impaired by the court's disposition of 

that action). 

There are also opportunities under the Oregon Administrative Procedures Act 

(APA) for public participation in contested cases and in the judicial review of 

agency decisions. With respect to contested cases, the term "party" is defined in 

relevant part to include: 

"Any person requesting to participate before the agency as a party or in a 

limited party status when the agency determines either has an interest in 

the outcome ofthe agency's proceeding or represents a public interest in 

such a result." ORS 183.310(6)(c). 

Further, any person adversely affected or aggrieved by an order or any party to an 

agency proceeding is entitled to judicial review of an agency order. ORS 

183.480. Persons adversely affected or aggrieved by agency orders issued 

without a contested case may also seek judicial review. ORS 183.484. 

Organizations do not have representational standing under the Oregon APA but 

may participate in a representative capacity in noh-APA matters based on the 

discretionary standard in ORCP 33C. Organizations that suffer a direct impact 

(i.e. are able to assert that organization itself has been adversely affected or 

aggrieved) may participate in matters under the APA. See e.g., Local No. 290 v. 

Dept. of Environ. Quality, 323 Or 559, 919 P2d 1168 (1996); People for Ethical 

Treatment v. Inst Animal Care, 312 Or 95, 817 P2d 1299 (1991). 

The department agrees that it will not oppose intervention under ORCP 33C 

or participation under the APA on the ground that the applicant's interest is 

adequately represented by the state. 

(b) Oregon does not allow intervention as of right in civil actions to obtain the 

remedies specified in 40 CFR 281.41 by citizens having an interest that is or may 

be adversely affected. As noted above, citizens and organizations may represent 

37 
their individual interests in administrative matters govemed by the Oregon APA if 

they can establish that they have been adversely affected or aggrieved. 

(c) This section is not applicable in light ofthe authorities described in (a) above. 

38 
Scope of State Program: 

Oregon's UST program is a complete program with the same scope as the federal 

program. It regulates both petroleum and hazardous substance UST systems and the 

same categories of tanks regulated under the federal rules. 

Exempt UST systems: The state program exempts the same types of tanks exempted 

under the federal program (by exclusion from the definition of "UST" found in 40 CFR 

280.12 and by 40 CFR 280.10(b)). OAR 340-150-0008(3). Heating oil tanks are, 

however, regulated under OAR chapter 340 division 177. OAR 340-150-0008(2). 

Indian Lands: USTs located on Indian lands are exempt from the requirements of OAR 

chapter 340 Divisions 150 and 151. OAR 340-150-0008(1). 

Deferred UST systems: The state program defers regulation ofthe same types of UST 

systems deferred under the federal program (40 CFR 280.12). OAR 340-150-0008(4). 

Deferred systems are still subject to the corrective action requirements and the same 

interim prohibitions as in 40 CFR 280.11. OAR 340-150-0008(4)-(6). The state program 

does not, however, include the exception found in 40 CFR 280.11(b). 

Additional legislation will not be necessary if EPA elects to regulate the deferred systems 

in the fiiture. The deferred systems fall within the universe of UST systems the agency 

already has statutory authority to regulate. See ORS 466.710. Definitions: The 

definitions of key terms used in the state rules are generally the same (either verbatim or 

substantively the same) as those used in the federal rules, with one exception noted 

below. (OAR 340-150-0010.) 

"UndergroundStorage Tank": The state definition is structured differently than the 

federal definition in that the exclusions found in (a) -(i) ofthe definition are not included 

in the state definition but rather in the "Exemptions and Deferrals section of the state 

rules (OAR 340-150-0008(2) and (3)). OAR 340-150-0010(86). The state definition also 

clarifies that USTs include tanks 10 percent or more of which are "beneath the ground 

surface or otherwise covered by earthen materials. " (The federal definition has the same 

scope by virtue ofthe definition of "beneath the surface ofthe ground." 40 CFR §280.12) 

"RegulatedSubstance": The state definition is the same as the federal definition, except 

that the federal definition is fixed (i.e. "regulated substance means") whereas the state 

definition "includes, but is not limited to" the identified substances. OAR 340-150-

0010(66). 

"Petroleum UST System ": The state definition is identical to the federal definition. 

"Petroleum ": The federal rules do not include a definition of "petroleum." A federal 

"definition" could be derived from the federal definitions of "regulated substance" and 

"petroleum UST system." The state definition of "petroleum" is consistent with these 

definitions. OAR 340-150-0010(58). 

39 
"Release ": Although not verbatim, the state definition of "release" is, as a 

practical matter, as broad as the federal definition. 

40 CFR 280.12: Release means any spilling, leaking, emitting, discharging, 

escaping, leaching or disposing from an UST into groimd water, surface water or 

subsurface soils. 

! 

ORS 466.706(18) and OAR 340-150-0010(67): "Release" means the discharge, 

deposit, injection, dumping, spilling, emitting, leaking or placing of a regulated 

substance from an UST into the air or into or on land or the waters ofthe state, 

other than as authorized by a permit issued under state or federal law. 

The state definition encompasses the modes by which a regulated substance can 

reasonably exit a UST system, despite the fact that it does not expressly refer to 

"escaping, leaching or disposing." It also picks up ground water because the term 

"waters ofthe state" includes "underground waters." See, ORS 466.706(22) and ORS 

468B.005(10). 

As noted above, the rule language comes straight from statute (ORS 466.706). We have 

reviewed the legislative history in an effort to determine the intent behind the exception 

for releases from an UST authorized by permit (".. .other than as authorized by a permit 

issued under state or federal law."). Although not free from doubt, our review indicates 

that the exception in the definition of "release" in ORS 466.706 enacted in 1987 was 

simply imported from the definition of "spill and release" enacted as part ofthe spill 

response and cleanup program just one legislative session eailier.^ 

DEQ does not know of circumstances in which a release of regulated substances from a 

UST to air, water or land would be authorized under a permit and does not intend to issue 

such authorizations. 

"Owner": The state definition tracks the federal definition, but clarifies that the owner 

means the person who currently owns the UST or who owned it during the tank's 

operational life. OAR 340-150-0010(55). 

"Person": The state definition includes partnerships and associations, in addition to the 

entities included in the federal definition. OAR 340-150-0010(57). 

"Operator": EPA uses the term "operator." Operator means any person in control of, or 

having responsibility for, the daily operation ofthe UST system. 

7 

The legislative history for 466.706 was not informative. The definition was the product of 1987 

legislation by which ORS 466.705 was enacted (OL 1987 c 539 §2). ORS 466.706 was enacted in lieu of 

466.705 in 1991, without any change to the definition. But further research uncovered a similar exception 

in the definition of "spill and release" applicable to the nearby spill response and cleanup program: ORS 

466.605. That defmition was adopted only one session earlier, in 1985. The rationale for "a permit 

exception" in the context of spill response and cleanup is fairly plain given that a release might be 

permitted in conjunction with a cleanup activity or spill response. 

40 
The state rules neither define nor use this term. The state rules use the term "permittee" 

in lieu ofthe term "operator" and the obligations ofthe state program rest with a system's 

"owner and permittee" or, in some cases to the "permittee" alone. The state rules define 

a "permittee" as follows: 

"Permittee" means the owner or person designated by the owner, who is in control 

of or has responsibility for daily UST system operation and maintenance, 

financial responsibility and UST operator training requirements under a general 

permit pursuant to OAR 340-150-0160 through 340-150-0168. See OAR 340-

150-0010(56) (emphasis added). 

This does not, however, render the state program less stringent. Unlike the federal 

definition of "operator," the term "permittee" is defined to include the owner, so there is 

always a responsible party. The owner is responsible for compliance with ongoing 

operational requirements, as well as operation without a permit, if applicable, even if the 

owner is not actually operating the facility. For that reason, the differences between the 

federal definition of "operator" and state definition of "permittee" (shown in italicized 

text above) would not render the state program less stringent. 

"Under a general permit": The term "permittee" is relevant only to the extent one has a 

permit. In Oregon, any "person" who installs; brings into operation, operates or 

decommissions a UST without a permit, is subject to enforcement related to that aspect of 

their "operations." See e.g. ORS 466.760. That enforcement authority does not rely on 

the definition of "permittee" or "operator," but rather the broader definition of "person." 

See ORS 466.706(16). 

"Person designated by the owner ": There is always a permittee. The rules require that 

the permittee be designated in the application for a general permit registration certificate. 

OAR 340-150-0020(2)(c). But failure to designate a permittee does not leave a facility 

without one. In the absence of an express designation, the owner is the permittee. OAR 

340-150-0020(2)(c)((B). Thus, facilities operating under a registration certificate will 

always have a permittee, whether one is specifically designated or not. 

Further, DEQ retains ample enforcement authority even if there is a change of owner or 

permittee. Under DEQ's rules a new owner or proposed new permittee must apply to 

modify the UST general permit registration certificate upon a change in ownership ofthe 

property on which the UST is located, a change in UST ownership, or a change in the 

designated permittee. OAR 340-150-0052(1). The general permit registration certificate 

automatically terminates 60 days after any of these changes are made, unless DEQ has 

received an application for modification by that date. OAR 340-150-102(1). 

As noted above, wholly independent ofthe permit's status, DEQ can always pursue the 

new owner for operational violations and the "responsible person" for reporting, spill 

41 
response and corrective action under OAR 340 Divisions 122 and 142.^ In the interim 

before termination, DEQ can also pursue the original permittee. After that, DEQ can 

pursue both the new owner and any person operating the facility for doing so without a 

permit.' 

"Responsible Person" means any person owning or having control over any oil or hazardous material 

spilled or released or threatening to spill or release. OAR 340-142-0005(22). 

"Responsible Person" includes "owner" as defined in OAR 340-150-0010(51), "permittee" as defmed in 

OAR 340-150-0010(52), "owner or operator" as defmed in ORS 465.200(19) and any other person liable 

for or voluntarily undertaking remediation under ORS 465.200, et seq. or ORS 466.706, et seq. OAR 340-

122-210(27). 

' In 2008, DEQ promulgated rules providing for an armual operating certificate as well. OAR 340-150-

0110(5). This aimual process serves to alert DEQ more promptly to a facility at which a change requiring 

an application for modification was made without such an application being submitted. DEQ's practice is 

to send the new owner or operator a waming letter by which they are reminded of their obligation to submit 

a modification application. As a practical matter, a new owner or operator is substantially more likely to 

submit an application for modification than impair its annual operating certificate, which is required before 

one is allowed to deposit or accept deposit of a regulated substance into a UST. 

42 
Energy Policy Act of 2005 

DEQ has amended its rules consistent with EPA guidance on the Energy Policy Act 

requirements, including provisions relating to: 

(1) Operator Training: New requirements for operator training, including an 

additional class of operator. See OAR 340-150-0210. 

(2) Secondary Containment: New requirements for secondary containment and 

monitoring for new and replaced tanks and piping. See OAR 340-150-0300. 

(3) Delivery Prohibition: New requirements prohibiting delivery of fuel to tanks that 

are out of compliance. See OAR 340-150-0152. 

EPA does not yet have an equivalent regulatory program against which to assess 

stringency or equivalence. OAR chapter 340 Division 150 was, however, amended in 

2008 consistent with program guidelines issued by EPA in 2007. 

1945479 

43 
r 

1 I 
DEMONSTRATION OF ADEQUATE ENFORCEMENT PROCEDURES 

A. PROCEDURES FOR COMPLIANCE MONITORING 

• 1. IDENTIFYING THE REGULATED COMMUNITY 

The Department requires permitting of all regulated USTs and that all USTs actively 

dispensing regulated substances obtain an annual operating certificate by July 1 of each 

year. Any person intending to install and operate a new regulated tank in Oregon must 

submit a General Permit Registration Form and 30-Day Notice to Install and Operate 

Regulated Underground Storage Tanks. The general permit registration form captures 

permittee, tank owner and property owner contact information as well as all the other 

required tank and piping information on EPA's Notification for USTs form (Form 7530-

1). 

After the USTs are installed, the tank owner and/or service provider must submit an UST 

Installation Checklist that certifies the UST system complies with all applicable technical 

requirements and that the facility is in compliance with financial responsibility. Upon 

evaluation ofthe information on the UST Installation Checklist and other relevant 

documentation, the Department issues an aimual operating certificate for the facihty. In 

order to renew the annual operating certificate, the permittee must pay the annual $135 

per tank compliance fee, must have a current financial resppnsibihty mechanism on file 

with the Department and must have paid any civil penalty assessments subject to a final 

default order. ^ 

The Department prohibits petroleum distributors from delivering fiael to USTs that do not 

have an annual operating certificate posted at the facility. For audit purposes, petroleum 

distributors are required to keep a list of all facilities to which they deliver fuel. The 

Department posts on its UST Program website lists of facilities with operating certificates 

(updated quarterly) and facilities without operating certificates (updated whenever there 

is a change to the list) for use by distributors. The Department sends an e-mail notice to 

distributers whenever an operating certificate is suspended or revoked. If a distributor 

comes across a facility without an annual operating certificate, the Department expects 

the distributor will advise the tank owner that they are unable to dehver fiiel and to 

contact the Department to come into compliance with the UST rules. 

Occasionally existing unregistered regulated tanks are discovered during property 

transactions. The tanks are currently not used and the prospective purchaser either 

requires the USTs to be removed before the purchase is final and/or intends to 

decommission the tanks after purchase; In this case the Department requires the current 

tank owner to submit a General Permit Registration Form to Decommission Existing 

Unregistered Tanks. This form captures current ownership information and as much of 

the EPA tank information asked for on EPA Form 7530-1 as is known by the current tank 

owner. These tanks are registered and entered into the UST database but are not 

permitted, nor is an operating certificate issued. 

Adequate Enforcement Procedures Page 1 of 12 

June 2010 Final 
To captiire changes in permittees or ownership, within 60 days of any such changes the 

Department requires that the new permittee, tank owner and/or property owner submit a 

General Permit Registration Form to Modify Tank Owner, Permittee or Property Owner 

Information Only form. The Department also leams of these ownership changes during 

the annual billing of the $135 per tank per year compliance fee. Some invoices are 

retumed because the ovmer of record in the Department's database is no longer the 

current owner ofthe facility. If a modified permit application was not submitted, the 

Department contacts the new owner and requests submittal of an application along with a 

copy ofthe financial responsibility mechanism. 

The Department also monitors changes of ownership posted weekly on the Oregon 

Liquor Confrol Commission's (OLCC) Website. Whenever ownership of convenience 

stores and retail markets selling liquor changes, they must apply for a new OLCC license 

to continue selling beer, wine and other hard liquor. The Department reviews the OLCC 

weekly posting for possible ownership changes for convenience stores and retail markets 

that also sell motor fiiel from USTs regulated by the Department. 

2. RECORD REVIEWS 

Any person intending to install a new regulated tank in Oregon must submit a General 

Permit Registration Form and 30-Day Notice to Install and Operate Regulated 

Underground Storage Tanks. The general permit regisfration form captures permittee, 

tank owner and property owner contact information as well as all the other required 

information on EPA's Notification for USTs form (Form 7530-1). The 30-day notice of 

intent to install and a subsequently required 3-day notice of intent to start work allow the 

Department's UST inspectors to schedule field inspections of new installations. The 

general permit registration data allows the Department to create an initial facility record 

to track all regulated USTs and facilities over their fiill life cycle through permanent 

decommissioning. 

After the USTs are installed, the tank owner and/or service provider must submit an UST 

Installation Checklist that certifies the UST system complies with all applicable technical 

requirements arid that the facility is in compliance with financial responsibility. Required 

attachments to the checklist include a list of major system components, third-party 

evaluations, manufacturer's checklists, photographs, as-built drawings and if available, 

fire authority signoff or pressure test records. Upon evaluation ofthe information on the 

UST Installation Checklist, including attachments, and information collected during an 

installation inspection, the Department issues an annual operating certificate for the 

facility. 

During the life of an UST system, equipment modifications may occur. Before 

commencing work on an UST modification, the Department requires submission ofthe 

UST System Modification 30-Day Notice form. The Department also requires a 3-day 

notice of intent to start work. After completion ofthe modifications, the Department 

requires the submission ofthe Underground Storage Tank System Modification Report 

Adequate Enforcement Procedures Page 2 of 12 

June 2010 Final 
and Checklist, including equipment receipts. Information on the modification report and 

checklist is used to update equipment information in the UST database. 

Occasionally a tank owner may choose to temporarily stop using an UST and/or facility 

while selling a facility, deciding to affect a change in service or scheduling a permanent 

decommissioning. In this case, the Department required the tank owner to submit a 

Notification of Temporary Closure of Underground Storage Tanks. The Department 

issues a one year Teriiporary Closure Certificate (TCC) and places the facility on the "Do 

Not Deliver Fuel" list. Before the TCC expires the tank owner needs to make a written 

request to obtain an operating certificate, submit a 30-day notice to affect a change-inservice or permanent decommissioning or submit a Request for Extension - Temporary 

Closure of Underground Storage Tanks. 

On removal of USTs from regulated status by change-in-service or permanent 

decommissioning, the Department requires the submission of a 30-Day Notice of Intent to 

Decommission USTs or Complete a Change-In-Service form. Following completion of 

the work to affect a change-in-service or permanent decommissioning the Department 

requires the submission of an Underground Storage Tank Decommissioning Checklist 

and Site Assessment Report. Receipt ofthe decommissioning checklist and site 

assessmentreport allows the Department to terminate active permits in the UST database. 

Whenever a suspected or confirmed spill or release of a regulated substance from an 

underground storage tank occurs, the Department requires notification within 24 hours. 

To facilitate the reporting of confirmed pefroleum spills or releases, the Department 

.requires the submission of an UST Petroleum Release Form. Information from the 

release reporting forms is the basis for creating a contaminated site record in the Leaking 

Underground Storage Tank (LUST) database. To facilitate the timely reporting of 

confirmed pefroleum spills and releases by service providers, the Department has 

established an On-Line Petroleum Release Reporting protocol 

(http://www.deq.state.or.us/lq/tanks/report.hfaTi). Upon receiving a password to utilize 

the on-line reporting system from the Department, service providers submit the release 

reports electronically. When the on-line submittal is complete, the Department accepts 

the submission and creates a contaminated site record in the LUST database. An e-mail 

confirmation of receipt ofthe release report is automatically sent back to the service 

provider along with the contaminated site identification number. Receipt of an UST 

Petroleum Release Report is the basis for establishing a site in the LUST database. 

40 C.F.R 281.40 requires this system comply with the Cross-Media Elecfronic Reporting 

Rule (CROMERR) in 40 CFR Part 3 for State Program Approval to occur. To address 

this issue, DEQ will continue to use the on-line reporting system for regulated releases 

until EPA grants State Program Approval., At such time, DEQ will discontinue its use 

unless the system has come into compliance with CROMERR. 

Within 20 days of submitting a confirmed release report, the responsible party, or a 

service provider acting on their behalf, must submit an Initial (Twenty Day) Report Form 

for UST Cleanup Projects. The intent ofthe report is to provide enough information for 

Adequate Enforcement Procedures Page 3 of 12 

June 2010 Final 
the Department to prioritize the environmental significance ofthe site and to assign a 

Department LUST Project manager to high environmental priority sites (typically 

groundwater-:Contaminated sites, occasionally contaminated sites with vapor intrusion 

into buildings). 

A responsible party for a LUST cleanup site may also choose to submit a LUST Cost 

Recovery Agreement [CR guidelines are in.ORS 465.25 and 465.333 which comply with 

EPA requirements, no EPA approval exists]. By agreeing to pay the Department's 

project management oversight costs, the Department is able.to assign a LUST project 

manager in a timely manner. Upon completion ofthe required sampling and cleanup, if 

any, and submission of a final cleanup report, the Department can provide a No Further 

Action (NFA) letter. 

LUST Project Managers will review reports detailing UST Cleanup work uicluduig initial 

site investigations, site assessments, groundwater compliance monitoring reports, 

corrective action plans and risk-based corrective action determinations. To assist Project 

Managers with report reviews and to assist service providers, geologists, hydrogeologists 

and other environmental consultants conducting the work, the Department has issued 

several technical guidance documents incliiding an UST Cleanup Manual (2008) and 

Risk-Based Decision Making for the Remediation of Petroleum-Contaminated Sites 

(2003). Information gleaned from UST cleanup reports is used to update the LUST 

database. -

3. COMPLIANCE INSPECTIONS/COMPLAINT INVESTIGATIONS/SUSPECTED 

RELEASE REPORTS/UST CLEAI^JUP INSPECTIONS 

Consistent with the UST Compliance Act of 2005, Oregon inspects all facilities with 

tanks that have not been permanently closed or undergone a change-in-service at least 

once every three years. These inspections are scheduled in advance and confirmed by a 

Tetter that includes a copy of an inspection guidance document entitled How to Prepare 

for an UST Compliance Inspection. To promote statewide consistency, inspection results 

are recorded on an UST Inspector Compliance Inspection Checklist. Results of 

inspections are entered into the UST database, including updating any tank and piping 

information. 

In addition to compliance inspections, UST inspectors inspect all new installations at 

least once, and time permitting, conduct change-in-service and permanent 

decommissioiung inspections. To facilitate the scheduling these inspections, the 

Department requires 30-day vmtten notices of intent to install, change-in-service or 

decommission USTs and 3-day verbal notices ofthe intended start of work dates. Results 

of UST installation, change-in-service and decommissioning inspections are entered into 

the UST database. 

UST inspectors follow-up on any UST complaints arid suspected release reports received 

for facilities and/or sites located in their geographic territory: Based on findings, UST 

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June 2010 Final 
inspectors issue an investigative report, identify required corrective actions and establish 

deadlines for any required work or compliance action. 

LUST Project Managers may schedule one or more site inspections during initial site 

investigations, during site cleanups or during long-term compliance monitoring. Results 

of LUST site inspections are entered into the LUST database. 

4. PUBLIC REPORTING 

The Department uses three main tools for receiving information, concerns and/or 

complaints about the UST program in general, and specific UST and LUST facilities. 

These tools include letters, phone calls and the UST program website. To facilitate 

phone calls, the Department manages a toll-free UST Helpline (1-800-742-7878) for any 

long distance calls originating in Oregon. From the Portland area they can call the UST 

Permitting and Licensing Coordinator at 503-229-6652. To facihtate Internet 

communication, the Department established a tanks.info(2)4eq.state.or.us e-mail address. 

These communications resources are managed centrally in the UST Section. Inquiries of 

a general program nature are responded to by headquarters staff within 24 hours of 

receipt. Inquiries that are facility or site specific are forwarded to the regional UST 

inspectors for follow-up within 24 hours ofthe information reaching the inspectors. 

5. DATA MAINTENANCE 

The Department has developed three databases to manage information on the UST 

program - the UST database, the LUST database and the Service Provider Licensing 

database. The UST and LUST databases are linked by a computer generated UST 

Facility ID number. 

In addition to these data bases, the Department stores formal enforcement information 

(i.e., all enforcement other than field citations - see 5B on page 6) for the UST and LUST 

programs in the Compliance and Enforcement database maintained by the Department's 

Office of Compliance and Enforcement. Field citation violations are stored in an Excel 

database maintained by the Tanks Program and field citation penalty payments are stored 

in an Access database maintained by the Department's Business Office. 

All databases are stored on a central server with daily tape backup. Access to the 

databases is by desktop computers using a client /server software architecture. 

The UST database stores permittee, tank owner and property owner contact information 

and tank arid piping information from the General Permit Registration Form to Install 

and Operate Regulated Underground Storage Tank form, including information on . 

financial responsibility. The database is used to issue annual operating certificates, 

generate annual compliance fee invoices and issue standard program reports, including 

EPA's semi-annual activities report. This data is entered cenfrally by the UST Permitting 

and Licensing Coordinator. The UST database also stores information gathered during 

Adequate Enforcement Procedures Page 5 of 12 

June 2010 Final 
installation, modification, decommissioning and compliance inspections. This 

information is entered directly by UST Inspectors. 

The LUST database stores responsible party contact information and contaminated site 

information from the UST Petroleum Release Form. The data is entered by regional 

support services staff The LUST database also stores information on LUST inspections 

and LUST report reviews including initial site investigations, site assessments, 

groundwater monitoring reports, corrective action plans, etc. The database also contains 

information on final closure determinations including No Further Action Letters and any 

site or land use restrictions. The information is entered directly by LUST Project 

Managers as they conduct project oversight. Summary information from this database is 

available on-line using the LUST Lookup Database tool. The database is also used to 

provide LUST data for EPA reporting purposes. 

The Service Provider Licensing database contains information on the companies and 

supervisors licensed to do installation, decommissioning, tank tightness testing, cathodic 

protection testing and soil matrix cleanup work at UST facilities and pefroleumcontaminated cleanup sites. Information to license companies arid supervisors is 

collected from the following four hcense application forms: 

• UST Service Provider License Application 

• UST Supervisor License Application 

• Soil Matrix Cleanup Service Provider License Application 

• Soil Matrix Cleanup Supervisor License Application. 

The licensing of UST service providers and supervisors is handled centrally by the UST 

Permitting and Licensing Coordinator as is all the data entry associated with the license 

application forms. The database is used to issue 2-year hcenses to qualifying applicants. 

B. PROCEDURES FOR ENFORCEMENT RESPONSE 

The Department's UST Program has a full range of adminisfrative and criminal 

authorities to handle UST compliance, cleanup and sei^ice provider violations. For both 

administrative and criminal violations the maximum penalty is $ 10,000 per day of 

violation. Each day the violation continues may be cited as a separate offense. This 

maximum penalty applies on a per tank basis. For persons who receive UST operating 

certificates or service provider licenses, the Department also has certificate and license 

revocation authority. Failure to pay compliance fees or enforcement penalties may result 

in the debt being sent to the Oregon Department of Revenue or a private collection 

agency. The Department may also apply a lien against any personal or real property 

owned in Oregon. 

On the administrative side, violations are handled with a waming letter, field citation, 

civil penalty assessment or revocation of an operating certificate or service 

provider/supervisor license. A waming letter or civil penalty assessment can be apphed 

to any UST compliance, cleanup or service provider violation. A field citation can only 

Adequate Enforcement Procedures Page 6 of 12 

June 2010 Final 
be assessed against permittees and tank owners for UST compliance violations. The 

Oregon Attomey General's Office and/or County District Attomeys would handle 

criminal actions with technical assistance from the Department. 

The internal guidance publication entitled Enforcement Guidance for, Field Staff (M.?(xch. 

31, 2006) outlines the Department's enforcement sfrategy for all UST and LUST staff 

This document covers such topics as right of entry authority, evidence collection and 

documentation, chain of custody procedures, adminisfrative versus criminal actions, 

calculation of a civil penalty assessment, negotiated settlements, and adminisfrative 

hearings. 

The UST field citation program guidance is outlined in two internal guidance documents 

entitled: 

• UST Field Citations — Guidance for Expedited Enforcement of UST Compliance 

Violations - March 2008 (general guidance and internal coordination procedures). 

• UST Facility Inspection and Compliance Enforcement - March 2008 (specific 

UST compliance violation penalty tables). 

1. INSPECTION DOCUMENTATION 

The Enforcement Guidance for Field 5'/a^ emphasizes the importance of planning ahead 

during inspections and collecting compliance information from the perspective that 

potential mle violations may be discovered. Prior to conducting an inspection it is 

important to become familiar with the kinds of information (evidence) that will be needed 

to prove all the elements of a violation in the event the violation is pursued through 

administrative or criminal proceedings. The guidance also discusses the strengths of 

various types of evidence such as samples, direct observation or eyewitness testimony, 

photos, inspection reports, diagrams and monitoring reports. 

During the conduct of UST compliance and cleanup inspections, complaint investigations 

or suspected release investigations, UST Inspectors may collect regulated substance 

samples and contaminated soil, groundwater or air samples. To ensure an appropriate 

sample has been collected and proper chain of custody procedures have been followed, 

two intemal guidance documents have been issued for use by UST Inspectors and LUST 

Project Managers. These documents are the Department Laboratory Field Sampling 

Reference Guide (1998) and UST Quality Assurance Project Plan (2002). The current 

versions ofthe Department Laboratory Field Sampling Reference Guide and UST 

Quality Assurance Project Plan have been submitted to EPA for review and approval. 

2. WARNING LETTERS 

A waming letter (WL) notifies a person of alleged violations for which issuance of a field 

citation or assessment of civil penalty is not anticipated. - A WL describes the alleged 

violations, discusses needed corrective actions and may contain a corrective action 

schedule, if appropriate. A person receiving a WL may provide information to the 

Adequate Enforcement Procedures Page 7 of 12 

June 2010 Final 
Department to clarify the facts surrounding the alleged violations. A WL is not a formal 

enforcement action and does not afford a person the right to a contested case hearing. 

UST compliance, cleanup and service provider violations suitable for handling with a 

WL are described in Appendices L - Underground Storage Tank (UST) violation 

Guidance (OAR 340-012-0067) and M - Leaking Underground Storage Tank Cleanup 

(LUST) Violations guidance (OAR 340-012-0074) in Enforcement Guidance for Field 

Staff. Waming letters are issued by UST Inspectors and LUST Project Managers with 

review by UST Regional Managers, if appropriate. Failure to comply with a corrective 

action schedule in a waming letter may result in a formal enforcement action being 

initiated. 

3. EXPEDITED ENFORCEMENT (FIELD CITATION) 

UST Inspectors issue field citations for most alleged UST compliance violations. Class I 

violations may be assessed a field citation penalty of $150 to $500. Class n violations 

may be assessed a field citation penalty of $50 to $150. Repeated Class EI violations 

may be assessed a field citation penalty of $50. The maximum field citation penalty 

associated with a single compliance inspection is $1,500. If the number and severity of 

violations documented during a single inspection would cause the field citation penalty to 

exceed $1,500, the UST Inspector must initiate a formal enforcement action rather than 

issuing a field citation. 

Assuming that all the information necessary to complete a compliance inspection is 

available at the time of the inspection, the UST Inspector lists any alleged violations on a 

pre-numbered Field Citation for UST Violations form. The penalty amount for each 

violation is found in the tables in the UST Facility Inspection and Compliance 

Enforcement guidance document. A copy ofthe field citation is left with the facility 

representative at the end ofthe inspection. If information is not available to make a final 

compliance determination in the field, the information is requested by a specific date and 

then, if apphcable, the field citation is mailed to the permittee or tank owner after the 

requested information is received and reviewed. 

The permittee or tank owner has 30 days to respond to a field citation by taking one of 

two actions: 

• By selecting Option 1 on the field citation, the permittee or tank owner 

acknowledges that the violations have occurred, agrees to pay the penalty amount, 

gives up all rights to any administrative or judicial reviews and agrees to make the 

corrections listed. When the violations have been corrected, the permittee or tank 

owner retums a copy ofthe violation page to the UST Inspector for compliance 

verification. At this point the violations are considered corrected. 

• By selecting Option 2 on the field citation, the permittee and tank owner denies 

the alleged violations. In this case, the Department will take formal enforcement 

action, including the assessment of a civil penalty. 

Adequate Enforcement Procedures Page 8 of 12 

June 2010 Final 
If the owner or permittee does not respond to the field citation by selecting either Option 

1 or 2, the Department follows up with the permittee via telephone. If the permittee still 

does not respond, the Department rescinds the field citation and the UST Inspector will 

submit a formal enforcement referral to the Office of Compliance and Enforcement 

(OCE) for assessment of a civil penalty. 

4. FORMAL ADMINISTRATIVE ENFORCEMENT. 

Under Oregon Revised Stattite (ORS) 466.706 to 466.835, 466.994 and 466.468.090 to 

468.140 alleged UST comphance violations (OAR 340-012-0067) outside the scope of 

the field citation program, and for any alleged LUST (340-012-0074) or service provider 

violations (OAR 340-012-0067) hsted as an "A" response in Appendices L and M ofthe 

Enforcement Guidance for Field Staff, the UST Inspector or LUST Project Manager 

sends a Pre-Enforcement Notice (PEN) to the permittee and tank owner. A PEN template 

is found in Appendix P of the Enforcement Guidance for Field S'toj^ guidance document 

Once the PEN is sent, a referral requesting a formal enforcement action is sent to OCE. 

An enforcement referral template is found in Appendix R oi Enforcement Guidance for 

Field Staff, 

NOTE: If the evidence gathered suggests that the violations were deliberate, deceitful or 

dishonest, the UST inspector or LUST Project Manager should call OCE to discuss a 

possible referral for criminal investigation. Although the Department could legally 

proceed with an administrative action and a criminal action concurrently, as a matter of 

policy the Department will pursue only one or the other in most cases. That being the 

policy, an early decision on a criminal proceeding should be made if the threshold criteria 

of deliberate, deceitful or dishonest violations are met. Criminal proceedings are 

discussed more fiilly below. 

Upon receipt of an enforcement referral, OCE prepares the formal enforcement 

documents including a cover letter; a notice of assessment of a civil penalty; a 

compliance order, if appropriate; and the exhibits that show the calculation ofthe civil 

penalty amount. The civil penalty amount is a combination of a base penalty as set forth 

in OAR 340-012-0140 and the addition or subfraction of mitigating and aggravating 

factors, respectively, as set forth in OAR 340-012-0145. 

A person assessed a civil penalty has 20 days to request a hearing, request an informal 

discussion and file an answer to the allegations. If an appeal is not filed, any order issued 

becomes final by operation of law. If the civil penalty assessment is not appealed, the 

Environmental Quality Commission is asked to issue a default order for collection of the 

penalty. 

If a request for hearing is received, the first would be a meeting at which DEQ and the 

parties review the facts, provide new information, if any, discuss the applicable laws and 

mles and potentially narrow the issues to take to a formal hearing. If a settlement ofthe 

issues can be reached, the settlemerit offer is incorporated into a Mutual Agreement and 

Order to be signed by both parties. Mutual Agreement and Orders are more fiilly 

Adequate Enforcement Procedures Page 9 of 12 

June 2010 Final 
discussed in Section IX of the Enforcement Guidance for Field Staff. If a settlement 

agreement is not reached, the Department will schedule a formal hearing in front of an 

Administrative Law Judge (ALJ). 

An ALJ hearing is similar to a court trial, but less formal. Both parties may be 

represented by counsel and may call witnesses. The Departmerit presents its case and 

then the respondent has an opportunity to present its case. Both sides are given the 

opportunity to cross-examine witnesses. Following the hearing, the ALJ will issue a 

proposed final order. The respondent has 30 days to appeal the proposed final order. If 

there is no appeal, the proposed final order becomes a final order ofthe Erivironmental 

Quality Commission (EQC). 

An appeal of a proposed final order is heard by the EQC. The respondent presents their 

case and answers questions from the EQC. Then the Department presents its case and 

answers questions. No new information can be presented by either party at this hearing. 

The EQC may adopt the ALJ's findings, instmct a new hearing order be prepared that 

reflects the EQC's decision or remand the case to the ALJ for further consideration. 

Final orders may be appealed by the respondent to the Oregon Court of Appeals. The 

Oregon Attomey General's Office represents the Department in these cases. The 

Department may not appeal an EQC final order since the Commission is acting on behalf 

ofDEQ. 

Penalties are not collectable until the Department receives a final order from the EQC by 

default, by prevailing at hearing or by agreement with the respondent. The Department 

uses the Oregon Department of Revenue or private collection agencies to collect its debts. 

The Department may place liens on all personal and real property owned in Oregon for 

the penalty amount plus interest at rate of 9% per year. The Department may agree to 

payment plans with a 9% annual interest rate. Lastly, the-Department may seek the aid of 

the Oregon Attomey General's office to pursue collections through judicial means. 

5. OPERATING CERTIFICATE REVOCATION 

Effective July 1, 2008, the Department began issuing aimual operating certificates to UST 

facilities with active tanks under OAR 340-150-0110 (ORS 466.783 and 466.785). 

Conditions for issuance ofthe aimual operating certificate include payment of aimual 

comphance fees, documentation of compliance with financial responsibility and payment 

ofany final civil penalty assessment. If the conditions to issue an operating certificate 

are not met, a notice of intent to revoke is issued. The permittee has 20 days to file an 

appeal, request a hearing and submit an answer to the allegations. 

If no appeal is filed, the operating certificate is revoked by operation of law. The facility 

is placed on the Department's "UST Facilities that cannot Receive Fuel List". Whenever 

there is an addition and/or removal to the list, a copy ofthe list is e-mailed to all 

pefroleum distributors and a copy is posted on the Department's website 

Adequate Enforcement Procedures Page 10 of 12 

June 2010 Final 
(http://vtnyvv.deq.state.or.us/lq/tanks/ust/index.htm). It is a violation ofthe UST rales for 

a distributor to deliver fuel to a facility without a valid operating certificate. 

If a request for hearing is filed, a hearing before an ALJJ is scheduled. The respondent 

and the Department present their case and the ALJ issues a final order. The respondent 

has 30 days to appeal the final order to the EQC. The EQC may affirm the ALJ's final 

order, may issue its own final order or may remand the case back to the ALJ for fiirther 

consideration. The respondent may appeal a final order ofthe EQC to the Oregon Court 

of Appeals. 

6. SERVICE PROVIDER OR SUPERVISOR LICENSE SUSPENSION OR 

REVOCATION 

The Department may suspend, revoke or refuse to issue a license under OAR 340-160-

0035 (ORS: 466.746 and 466.750) if the service provider: 

• Fraudulently obtains a license; 

• Fails to comply with licensing mles or UST and LUST rales; 

• Fails to comply with any applicable state or federal standards relating to UST 

services performed under the license; 

• Fails to employ a licensed supervisor to oversee UST or UST Soil Matrix work. 

UST and UST Soil Matrix supervisor licenses may also be suspended or revoked for 

failure to comply with any state or federal rales or standards pertaining to USTs under 

OAR 340-162-0030 (ORS 466.750). 

The licensee has 20 days to file an appeal, request a hearing and submit an answer to the 

allegations. If no appeal is filed, the hcense is suspended or revoked by operation of law. 

If a request for hearing is filed, a hearing before an ALJ is scheduled. The licensee and 

the Department present their case and the ALJ issues a final order. The hcensee has 30 

days to appeal the final order to the EQC. The EQC may affirm the ALJ's final order, 

may issue its own final order or may remand the case back to the ALJ for further 

consideration. The licensee may appeal a final order ofthe EQC to the Oregon Court of 

Appeals. 

7. CRIMINAL ENFORCEMENT. 

Oregon Revised Statutes (ORS) 466.995 (3) and (4) provide that any person who 

knowingly violates any provision of the UST laws and rales (ORS 466.702 to 466.882) or 

UST Cleanup laws and rales (ORS 465.200 to 466.545) shall, upon conviction, be subject 

to a criminal penalty not to exceed $10,000 or imprisonment for not more than one year, 

or both. Each day of violation shall be deemed a separate offense.' 

ORS 468.953 establishes the crime of supplying false information to any agency if the 

person: 

Adequate Enforcement Procedures ; Page 11 of 12 

June 2010 Final 
• Makes any false material statement, representation or certification knowing it to 

be false in any document required by ORS 465.200 to 465.545 or ORS 466.702 to 

466.882. 

• Omits any material or required information, knowing it to be required, from any 

document required by ORS 465.200 to 465.545 or ORS 466.702 to 466.882. 

• Alters, conceals or fails to file or maintain any document required by ORS 

465.200 to 465.545 or ORS 466.702 to 466.882. 

Supplying false information is a Class C felony. 

As discussed in Section VHI ofthe Enforcement Guidance for Field Staff, the 

Department and prosecutors will only be interested in investigating the most significant 

and egregious violations as crimes - those that most closely resemble fraditional crimes 

with which juries are most familiar. In the earliest stages of an inspection or ^ 

investigation the UST Inspector or LUST Project Manager will look for several key 

characteristics that may warrant the violations be prosecuted as a crime: 

• Does the Department have evidence that the'violator's conduct was deceitful, 

deliberate or dishonest? 

• Does the Department have scientific evidence that the violator caused a serious 

threat to public health or the environment? 

• Does the violator have a history of non-compliance? 

If these characteristics are evident and documentable, UST Inspectors and LUST Project 

Managers will consult with OCE staff on the merits of pursuing a criminal investigation. 

If the decision is made to pursue a criminal investigation, a criminal investigator will be 

assigned to the case and will serve in the capacity of case coordinator. Prosecution of a 

criminal case is typically handled by the County District Attomey's office in the county 

where the environmental crime occurred. 

Adequate Enforcement Procedures Page 12 of 12 

June 2010 Final 

MEMORANDUM OF AGREEMENT 

BETWEEN 

The State of Oregon Department of Environmental Quality 

and 

The United States Enviroiunental Protection Agency 

Region 10 

A. GENERAL 

This Memorandum of Agreement (hereinafter "Agreement") 

establishes policies, responsibilities, and procedures pursuant 

to 40 CFR Part 281 for the State of Oregon's Underground Storage 

Tank Program (hereinafter "State Program") approved under 

Section 9004 of Subtitle I of the Resource Conservation and 

Recovery Act (hereinafter "RCRA" or "the Act")(42 USC 6991 et 

seq.), as amended, and the Region 10 office of the United States 

Environmental Protection Agency (hereinafter "EPA"). This 

Agreement further sets forth the manner in which the State and 

EPA will coordinate in the State's Administration of the 

program. The State program encompasses regulation of both 

petroleum and hazardous substance tanks. 

This Agreement is entered into by the Director of the Oregon 

Department of Environmental Quality (herein after "Director" or 

the "State") and the Regional Administrator, EPA Region 

10(hereinafter "Regional Administrator" or "EPA"). The points 

of contact for any issues arising under this MOA shall be the 

EPA UST/LUST program manager and the Oregon Environmental 

Cleanup and Tanks program manager. 

Nothing in this Agreement shall, be construed to restrict in any 

way EPA's authority to fulfill its oversight and enforcement 

responsibilities under Subtitle I of RCRA. Nothing in the 

Agreement shall be construed to contravene any provision of 40 

CFR Parts 280 and 281. Likewise, nothing in this agreement 

shall be construed to contravene any provision of ORS 4 65.200 

through 465.450, ORS 466.705 through 466.835 and 466.895, or OAR 

chapter 340, Divisions 12, 122, 142, 150, 151, 160 and 162. 

The parties will review, the Agreement jointly at least once each 
MEMORANDUM OF AGREEMENT 

UST Program Approval Application 

^Page 2 

year, preferably at the end of the state fiscal year. This 

Agreement may be modified upon the initiative of either party in 

order to ensure consistency with National or State program 

modifications made, or for other purposes mutually agreed upon. 

Any revisions or modifications must be in writing and must be 

signed by the Director and Regional Administrator. 

This Agreement will remain in effect indefinitely, unless State 

program approval is withdrawn by or voluntarily transferred to 

EPA according to the criteria and procedures established in 40 

CFR Part 281.60 and 281.61. 

This Agreement shall be executed by the Director and the 

Regional Administrator and shall become- effective at the time 

the State's approval takes effect, as specified in the Federa l 

Registe r notice announcing EPA's final decision to grant 

approval to the State. 

B. POLICY STATEMENT 

Each of the parties to this Agreement is responsible for 

ensuring that its obligations under Subtitle I of RCRA are met. . 

Upon final delegation by EPA, the State assumes primary 

responsibility for implementing the Subtitle I Underground 

Storage Tank Program within its boundaries, with the exception' 

of underground storage tanks on lands designated as being within 

the boundaries of an Indian Reservation or on Indian Trust or _ 

fee lanlds. EPA retains its responsibility to ensure full and 

faithful execution of the requirements of Subtitle I of RCRA, 

including direct implementation in the event the State is unable 

to act. The Director and the Regional Administrator agree to 

maintain a high level of cooperation and coordination between 

their respective staffs in a partnership to assure successful 

and effect:ive administration of the program. 

EPA assumes an oversight role upon granting final approval to 

the State. EPA will meet with the State program annually in 

order to review and assist the State in implementing its program 

and to allow EPA to report to the President, the Congress, and' 

the public on the achievements of the underground storage tank 

program, and to encourage the State and EPA to agree on 
MEMORANDUM OF AGREEMENT 

UST Program Approval Application 

Page 3 . 

desirable technical support and targets for joint efforts to 

prevent and mitigate environmental problems associated with 

improper management of underground storage tanks. EPA's role 

will include establishment of written reporting requirements, 

compliance and enforcement overview and annual review of the 

State Program. 

C. SCOPE 

In addition to adopting portions of 40 CFR Part 280, the scope 

of the Oregon Underground Storage Tank, program includes the 

enforcement program under OAR 340-12, the UST compliance program 

under OAR 340-150 and 151, and the Leaking UST program under OAR 

340-122 and 142. The Oregon UST program includes all regulated 

tanks on private. State and Federal lands, but excludes 

regulated tanks in Indian Country. 

D. STATE PROGRAM REVIEWS 

The EPA will .assess the State administration and enforcement of 

the underground storage tank program on a continuing basis for 

stringency with Subtitle I requirements, for compliance with 

this•Agreement, and all applicable Federal requirements and 

policies, and for adequacy of enforcement. This assessment will 

be accomplished by EPA review of information submitted by the 

State in accordance with this Agreement and annual review of 

State program activities. The EPA may also consider as part of 

this regular assessment, written comments about the State's 

program administration and enforcement that are received from 

regulated persons, the public, and Federal, State, and local 

agencies.' Copies of any such comments received by the Regional 

Administrator will be provided to the State. 

To ensure effective program 'review, the State agrees to allow 

EPA access to all files and other information requested by the 

EPA and deemed necessary for reviewing State program 

administration and enforcement. 

Review of the Department of Environmental Quality files may be 

scheduled at quarterly intervals. Program review meetings 

between the State and EPA will be scheduled at reasonable 

intervals not less than annually to review specific operating 
• MEMORANDUM OF AGREEMENT 

UST Program Approval Application 

Page 4 

procedures and schedules, to resolve problems and to discuss 

mutual program concerns. These meetings will be scheduled at 

least 15 days in advance unless agreed to differently. 

E. INFORMATION SHARING 

,1. General 

As the respective information needs of the State and EPA evolve, 

changes to this section of the Agreement may be appropriate. 

During the annual review of this agreement, the State and EPA. 

will carefully examine the following information sharing 

provisions for necessary revisions. 

2. EPA 

EPA will keep the State informed of the content and meaning of 

Federal statutes, regulations, guidelines, standards,' policy 

decisions, directives, and any other factors that affect the 

State program. EPA will also provide general technical guidance 

to the State. EPA will share with the States any national . 

reports developed by EPA from the data submitted through State 

reporting requirements. 

When within the resource capabilities, EPA will provide Other 

relevant information as requested that the State requires to 

implement its approved program. 

EPA will consider opportunities to provide .relevant training for 

UST and LUST staff members,' and will work with the State to 

continuously improve and streamline its program. 

3. State 

The State will inform EPA of any proposed or adopted program 

changes that would affect the States implementation of the UST 

.approved program. Program changes of concern include 

legislative or organizational changes including modifications of 

the State's.legal or technical authorities, initiation of, or 

modifications to memoranda of agreement or understanding with 

other agencies, modifications of resource levels, delegation of 

local programs, or changes of program focus. The State 
MEMORANDUM OF AGREEMENT 

UST Program Approval Application 

Page 5 

recognizes that program, revisions must be made in accordance 

with the provisions of 40 CFR Part 281. 

The State will maintain an on-going and up to date database and 

will also track and provide compliance monitoring and 

enforcement information to the Regional Administrator, as 

specified in annual guidance. 

F. REPORTING 

1'. Data . . 

The State will provide compliance monitoring and enforcement 

information to the EPA, as specified below, on a semi-annual 

basis. The State agrees to provide EPA with copies of reports 

on data resulting from any compliance inspection and subsequent 

enforcement actions, if EPA requests such copies. The State 

will provide EPA with the STARS semi-annual data. 

EPA is responsible • for maintaining reliable national data on 

underground.storage tanks. Whenever EPA determines that it 

needs to obtain program data, EPA will first seek to obtain this 

information from the State program. The State agrees to supply 

EPA this information when readily available and as resources 

allows. If the State is unable to provide the information or if 

it is necessary to supplement the State information, EPA may 

conduct a special survey or perform information collection site 

visits after notifying the State. EPA will share with the State 

any reports developed by EPA as a result of such information 

collection. 

2. Confidentiality 

Any information obtained or used in the administration of the 

State program shall be available to EPA upon request without 

restriction. If the information has been submitted to the State 

under a claim of confidentiality, the State must submit that 

claim to EPA when providing the information. Any information 

obtained from a State and subject, to a claim of confidentiality 

will be treated in accordance with the regulations in 40 CFR 

Part 2. Likewise, EPA shall furnish to the State, upon request. 
MEMORANDUM OF AGREEMENT 

UST Program Approval Application 

Page 6 

any information in EPA files that' the State needs to administer 

its approved State program, including: 1) any information 

submitted to EPA without a claim of confidentiality and 2)any 

information submitted to EPA under a claim of confidentiality, 

subject to the conditions in 40 CFR Part 2 . 

COMPLIANCE MONITORING AND ENFORCEMENT 

1. EPA Enforcement 

Except.as noted below, nothing in this agreement shall restrict 

EPA's right to inspect any underground storage tank facility or 

bring enforcement action against any person believed to be in 

violation of the approved State underground storage tank rules. 

Before conducting an inspection of a facility, EPA will normally 

give the State at least 7 days notice of the intent to inspect. 

If the State performs a compliance inspection and submits a 

report and relevant data thereto within that time to EPA, no EPA 

inspection will be made, unless EPA deems, the State report and 

data to-be inadequate. In case of an imminent hazard to human 

health or the environment, EPA may shorten or waive the notice 

period. EPA agrees to provide compliance inspections on Indian 

reservations where the State has no authority. 

The EPA may take enforcement action against any person 

determined to be in violation of Subtitle I of. RCRA in 

accordance with Section 9006. EPA also, retains its right to 

issue orders and bring actions under Section 9003(h) or 9006 of 

Subtitle I of RCRA and any other applicable Federal statute. 

With regard to Federal enforcement, it is EPA's policy not to 

take such action where a State has taken appropriate enforcement 

action. Before issuing a compliance order, corrective action 

order or commencing a civil action, EPA will give notice to the 

State pursuant to'Section 9006(a)(2) of Subtitle I of RCRA. 

2. State 

The State agrees to carry out an effective program for 

monitoring the compliance by owners and operators of facilities 
MEMORANDUM OF AGREEMENT 

UST Program Approval Application 

Page 7 . 

with applicable program requirements. As part of this program, 

the State will conduct compliance inspections and use other 

mechanisms to assess compliance, with underground storage tank 

standards, compliance schedules, and all other program 

requirements. 

The State agrees to implement- an appropriate enforcement 

response against all persons in violation of underground storage 

tank standards (including notification requirements), compliance 

schedules, and all other program requirements, including 

violations detected by State compliance inspections. 

'( 

The State will'maintain procedures for receiving and ensuring 

proper consideration of information about violations, submitted 

by the public. ' . 

The State agrees to retain all records for at least three years 

unless there is an enforcement action pending. In that case all 

records will be retained until such action is resolved. 

3. Stringency 

ORS 466.780 provides that an owner may request a waiver of the • 

rules if the commission finds:" (a) The alternative proposed by 

the petitioner provides protection to the public health, safety, 

welfare and the environment, equal to or greater than the rule 

or standard; and (b) the alternative proposal is at least as 

stringent as any applicable federal requirements. The 

commission may grant a variance only if compliance with the rule 

or standard is inappropriate because: (a) Conditions exist that 

are beyond the control of the petitioner; or (b) Special 

physical conditions or other circumstances render strict 

compliance unreasonable, burdensome or impracticable. The 

commission may delegate the authority to grant a variance to the 

department." 

No waiver shall be granted which contravenes the intent of any 

rule. However, nothing in this agreement prevents the State 

from implementing rules more stringent or broader in scope than 

those of Subtitle I. 
MEMORANDUM OF AGREEMENT 

UST Program Approval Application 

Page 8 

H. LOCAL DELEGATION 

EPA will be "advised of any request/ and decision to grant, local 

delegation. If local delegation' is approved it would be an inlieu-of program with the State retaining the right of program 

approval and retaining the ability to enforce if necessary. The 

State recognizes that program revisions must be made, in 

accordance with the provisions of 40 CFR Part 281. 

I. INDIAN COUNTRY 

EPA will retain responsibility for program implementation in 

Indian Country. This includes database maintenance, 

inspections, oversight of cleanups, and enforcement. 

The terms set forth in this Agreement are intended solely for 

the purpose of memorializing the parties' understanding of their 

respective roles and commitments in the administration of the 

Underground Storage Tank Program. They are not intended/- and 

cannot be relied upon to create any rights, substantive or 

procedural, enforceable by an.y other party in litigation with 

either of the parties to this agreement. The parties reserve 

the right to modify this agreement in accordance with its terms 

without public notice. . -
MEMORANDUM OF AGREEMENT 

UST Program Approval Application 

Page 9- ' ' 

STATE OF OREGON 

OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY 

BY: 

DICK PEDERSEN, DIRECTOR 

DATE: 

U.S. ENVIRONMENTAL PROTECTION AGENCY 

REGION 10 • 

BY: • 

DENNIS J. MCLERRAN, REGIONAL ADMINISTRATOR 

DATE: 

PROGRAM DESCRIPTION 

A. TYPE OF APPROVAL REQUESTED 

Interim Final X 

The State of Oregon is requesting final approval of a program that regulates both petroleum and 

hazardous substances underground storage tanks (USTs). 

B. INDIAN LANDS 

The State of Oregon does not have any existing agreements with Indian tribes. EPA will retain 

responsibility for UST program implementation in Indian Country. This includes database 

maintenance, inspections, oversight of cleanups, and enforcement. 

C. PROGRAM SCOPE 

The 1987 and subsequent Legislative Assemblies adopted the necessary laws to establish an 

Oregon UST Program. The Legislature directed the Environmental Quality Commission (EQC) 

to adopt the necessary mles to gain final authorization of Oregon's UST program. Lastly, the 

Legislature designated the Department ofEnvironmental Quality (the Department) as the state 

agency to administer Oregon's UST program. 

Table 1 outlines the specific statutes and administrative mles that constitute the Oregon UST 

program. 

Table 1 

Statute 

ORS 466 

ORS 465 

Administrative Rule 

OAR 340, Division 122 

ORS 466 OAR 340, Division 150 

ORS 466 OAR 340, Division 151 

Program Elerrient 

Petroleum corrective action 

equivalent to 40 CFR 280 Subparts E and F 

Technical requirements equivalent to 40 

CFR 280 Subparts A through D and G 

Financial responsibility equivalent to 40 

CFR 280 Subpart H 

Program Description 

June 2010 
ORS 466 OAR 340, Division 160 

ORS 466 OAR 340, Division 162 

ORS 466 

ORS 468 

OAR 340, Division 163 

ORS 466 OAR 340, Division 177 

ORS 465 

ORS 466 OAR 340, Division 150 

OAR 340, Division 12 

Oregon Program Application 

Page 2 of 17 

Licensing of UST service providers 

and supervisors . 

Licensing of UST cleanup service 

providers and supervisors 

Licensing of HOT service providers 

and supervisors 

Reporting and cleanup of 

releases from underground 

heating oil tanks 

Expedited enforcement (Field Citation) 

program 

Enforcement procedure and 

civil penalty authority 

The scope ofthe UST universe covered by the state, program is identical to the scope ofthe 

Federal UST universe with a couple of exceptions. Oregon requires reporting and cleanup of 

releases from imdergroimd heating oil tanks (HOTs) as set forth in OAR 340, Division 177 that 

is broader in scope. In addition, Oregon encourages voluntary decommissioning of HOTs and 

licenses UST, Soil Matrix Cleanup and HOT service providers and supervisors. These programs 

are also broader in scope than the Federal program. 

D. ORGANIZATION AND STRUCTURE OF THE STATE PROGRAM 

The Department is the lead agency for the UST program. The Hazardous Waste and Tanks 

Section in the Land Quality Division implements the program. The headquarters office has 

responsibility for policy and program development, grant adminisfration, processing of 

notification forms, maintenance of databases, financial responsibility tracking, collection of fees 

and issuance of installation, operation and temporary closure certificates. 

There are seven field offices in the three regions ofthe state that house UST staff The field 

offices have responsibility for conducting inspections, issuing field citations and overseeing 

corrective actions. 

Although authority exists for delegation ofthe UST Program to a local government entity, no 

local government entity has apphed for the authority to develop an underground storage tank 

program in lieu ofthe Department. This appears to be mainly due to a lack of available funding 

'' . fe 

Program Description 

June 2010 . 
Oregon Program Application 

Page 3 of 17 

for a local program. If a local government entity developed an UST program it would be in lieu 

ofthe State program, but it would be required to be equally as stringent as the State program. An 

application for approval of a local government program must be submitted to the Department for 

review and approval. The Department would then submit a State Program Approval (SPA) 

revision to EPA. EPA would then review the local program for its approval. If approved, the 

Department and the local government entity would sign a contractual agreement detailing the 

administration of the program. 

E. DEPARTMENTAL ORGANIZATIONAL STRUCTURE 

The attached staffing chart depicts the Department ofEnvironmental Quality structure and the 

positions assigned to the UST Program in the Headquarters and Regional Offices. 

F. UST AND LUST RESOURCE INFORMATION 

The State of Oregon has a two-year budget cycle. The total budget for the 2010 - 2011 biennium 

is $6,858,069 for regulated tank compliance and cleanup activities and adminisfration of a 

licensing program for work on regulated tanks. Federal fimding for the UST Program consists of 

an annual UST grant totaling $354,733 for the two year budget cycle and a LUST Prevention 

Cooperative Agreement totaling $662,296 which consists of fimding authorized by the Energy 

PoUcy Act of 2005. The Leaking Underground Storage Tank (LUST) Tmst Fund is expected to 

provide $1,899,309 for LUST Tmst Fimd eligible activities during the two year period. The 

LUST program recovers costs funded with LUST tmst funds from responsible parties. The 

program expects to spend approximately $1,957,668 in cost recovery ftmds over the two year 

period. These fiinds are used for additional tmst fimd eligible activities. 

State fimding includes aimual permit compliance fees of $135.00 per tank or tank compartment. 

These fees are the source of fimding for the UST grant's 25% state match and the 25% match for 

LUST Prevention fimding; The 10% match on the LUST Tmst Fimd cooperative agreement 

allocation is fimded by the state's Hazardous Substance Remedial Action Fund (HSRAF) which 

is a state hazardous waste landfill tipping fee. Other sources of state funding for the UST 

Program are from civil penalties and field citations. 

Fees paid by service providers and supervisors support the UST licensing and UST soil matrix 

cleanup licensing programs. UST Service Providers and UST Soil Matrix Cleanup Service 

Providers pay $600 for a two year license. UST Supervisors pay $150 every two years for 

supervisor licenses. 

The budget for the 2010 - 2011 biennium and the number of staff the budget supports is set forth 

below. 

Program Description 

June 2010 
Oregon Program Apphcation 

Page 4 of 17 

Subprogram 

LUST 

Fund Type 

FEDERAL 

OTHER 

2010 - 2011 Budget and FTE 

Fund Name . 

LUST Tmst Fund 

LUST Match (HSRAF) 

LUST Cost Recovery 

Total $ 

1,899,309 

211,033 

1,957,668 

FTE 

7.06 

.78 

7.28 

LUST Total 4,068,010 15.12 

UST FEDERAL* 

OTHER 

UST Total 

UST Grant 

LUST Prevention 

UST Permit Fees 

Penalties 

354,733 

662,296 

1,567,180 

62,600 

2,646,809 

1.32 

2.46 

5.83 

.23 

9.84 

UST Permit Fees are used to pay the UST Grant and LUST Prevention 25% state match. 

Licensing OTHER 

Licensing Total 

GRAND TOTAL 

LUST Licensing 

UST Licensing 

56,100 

87,150 

143,250 

.21 

.32 

6,858,069 25.49 

Please note that the Department occasionally receives additional grant dollars from EPA for 

targeted purposes. These are generally one time allocations and are not part ofthe base budget. 

The work is largely performed by non-tank staff and/or agency contractors. The Department 

received $2,694,000 under the American Recovery and Reinvestment Act of 2009 to clean up 

high environmental priority LUST sites and create jobs and a total of $582,119 for a project to 

increase the number of cleanups completed from FY 2009 through FY 2011. 

G. FINANCIAL ASSISTANCE OR STATE CLEANUP FUND PROGRAMS 

The Department has no financial assistance programs for tank owners or responsible parties. 

The Department also has no state cleanup fimd for petroleum cleanups. Permittees and tank 

owners must demonsfrate financial responsibility for UST cleanups using one or more ofthe 

mechanisms identified in OAR 340, Division 151. Submittal of financial responsibility 

Program Description 

June 2010 
Oregon Program Application 

Page 5 of 17 

documentation is required prior to issuance of an annual operation certificate. Only facilities 

with operation certificates are authorized to receive fiiel deliveries. 

H. PROFILE OF REGULATED TANKS 

As of January 1, 2010 there are 5,824 active USTs registered in Oregon. This includes 12 

hazardous substance tanks. Active tanks include both operating tanks and tanks in temporary 

closure. The total number of both active and decommissioned USTs registered from 1986 to the 

present is 31,874. 

Currently there are 1,780 facilities with annual operation certificates to operate 5,295 tanks. The 

operation certificate identifies the tanks at the facility that are eligible for delivery, deposit or 

acceptance of a regulated substance. Approximately two-thirds of these facilities are retail 

businesses such as gas stations, grocery stores and cardlock facilities. The remaining third are 

non-retailers such as such as fleet operators, industrial facilities, farmers and governmental . 

agencies. Approximately 1,100 permittees are responsible for the daily operation ofthe 1,780 

facilities. 

Below is an outline ofthe steps followed by UST program staff for issuing general permit 

regisfration certificates to install and operate a new UST. 

The Department receives a General Permit Registration Form to Install and Operate Regulated 

Underground Storage Tanks (which is equivalent to the EPA Notification for Underground 

Storage Tanks) and required fees ($400 per tank or tank compartment installation fee plus the 

$135 per tank or tank compartment annual compliance fee). The permit application serves as the 

required 30-day notice. 

The Department inputs the information into the database. The information includes tank and 

ownership data including who the tank owner, permittee and property ovraer are. 

The Department issues a general permit registration certificate to install. This certificate does not 

authorize fiiel dehvery. 

A copy of certificate to install is sent to the appropriate regional office. The Regional office 

schedules an installation inspection. 

Owners must use a Department-licensed installer. The installer must submit as-built drawings, 

the installation checklist, a list of major system components, third-party evaluations, 

manufacturers' checklists, photographs, fire authority sign-off, if available, and any other 

relevant documentation. 

Program Description 

June 2010 
Oregon Program Application 

Page 6 of 17 

When the inspector has all the required documentation, he or she calls the headquarters office 

authorizing issuance of a general permit certificate to operate. Headquarters staff issues the 

operation certificate upon receipt ofthe financial responsibility documentation from the 

permittee or insurance company,on behalf of the permittee. 

In this way the program ensures that new installations have all the required equipment. 

Installation inspections also provide the inspectors with the opportunity to determine proper 

installation of the necessary equipment 

The Department mails an annual operation certificate to the permittee each year following 

installation, provided the Department has received proof of compliance with financial 

responsibility requirements, payment ofthe annual UST compliance fee of $135 per tank or tank 

compartment and payment ofany civil penalties. The aimual UST compliance fee is used to 

administer the Departmenf s compliance program. 

The Department also has general permit regisfration certificates for temporary closure and 

decommissioning. The owner and permittee must submit an application for a temporary closure 

general permit 30 days before beginning temporary closure. Certificates expire one year from the 

date of issuance. At least thirty days before the expiration date the permittee must submit one of 

the following to the Department: 

1. An application for a change-in-service or permanent closure. 

2. A written request to retum the UST system to operational status. 

3. A written request to extend the expfration date ofthe temporary closure certificate. 

Extensions will only be considered if the applicable USTs are empty and a site assessment has 

been conducted to determine if a release has occurred. If the extension is granted a revised 

temporary closure certificate is issued to the permittee. If the extension is denied then the 

permittee must decommission the UST system. 

The general permit requirements for decommissioning an UST system are as follows: 

1. At least 30 days before decommissioning the owner and permittee or service provider on 

behalf of the owner and permittee must submit an application for a permanent closure 

general permit to the Department. 

2. If the UST contains a hazardous substance or the permittee is proposing to fill the UST 

in-place then the application must include a written site assessment plan. A written site 

assessment plan is also required if the UST system will be closed by a change-in-service 

to store an unregulated substance. 

3. The Department must be notified ofthe date and time of decommissioning at least three 

days before beginning decommissioning activities. 

Program Description 

June 2010 
Oregon Program Application 

' Page 7 of 17 

4. The permittee must empty, clean and close the UST system in accordance with accepted 

industry standards including performing a site assessment. 

5. Within 30 days after completion ofthe field work the permittee must submit a permanent 

closure checklist and site assessment report. 

6. In addition, the permittee must report to the Department any spills or confirmed releases 

within 24 hours at take corrective action. 

The permittee must maintain records of permanent closure for three years after the permanent 

closure checklist and report have been approved. If the UST facility is sold within this time 

period the permittee must provide these records to the new property owner. 

I. CONTRACTOR LICENSING AND SUPERVISOR CERTIFICATION PROGRAMS 

On September 1, 1989, the Department began to license companies, referred to as service 

providers, and supervisors who install or remove USTs. On March 1, 1990, the Department 

added licenses for companies and supervisors involved with tank tightness and cathodic 

protection testing. On January 1, 1991, license requirements for UST soil matrix cleanups and 

heating oil cleanups were added. The purpose ofthe licensing programs is to establish a list of 

companies and supervisors who have demonstrated at least a minimum level of knowledge and 

competence in these constmction and testing programs and to: 

• Safeguard public health, safety and welfare; 

• Protect the state's natural and biological systems; 

• Protect the public from unlawftil underground tank installation and decommissioning 

procedures; 

• Assure the highest degree of leak prevention for regulated USTs; 

• Ensure the appropriate cleanup of spills and releases. 

There are three types of service provider licenses. 

UST Service Provider - business performing tank installation, decommissioning, tank tightness 

testing and/or cathodic protection services at regulated tank sites. 

UST Soil Matrix Cleanup Service Provider - business performing cleanup services at regulated 

tank sites. 

HOT Service Provider - business providing voluntary decommissioning and pefroleum 

contamination cleanup services primarily for residential heating oil tanks. 

To obtain an UST Service Provider license a business completes an apphcation form and submits 

it to the Department with the required fee of $600 for a two-year hcense and a description of their 

Program Description 

June 2010 
Oregon Program Apphcation 

Page 8 of 17 

experience. The process for obtaining an UST Soil Matrix Service Provider license is the same. 

The requirements for a HOT Service Provider hcense are different, as these companies must 

certify that their work has been performed in conformance with all regulatory requfrements. The 

application form must be submitted with the required fee of $750 for a one year hcense and proof 

of professional liability insurance. Renewal applications must include a list of projects completed 

during the previous license period. 

There are also three types of individual supervisor licenses, UST Services Supervisor 

(decommissioning, installation, tank tightaess testing and/or cathodic protection services for 

regulated tanks). Soil Matrix Cleanup Supervisor and Heating Oil Tank Supervisor. To obtain a 

supervisor license an individual must first pass a qualifying examination for each type of license 

category required. The Department currently recognizes as qualifying the examinations given by 

the Intemational Code Council (ICC) through their Voluntary Certification Program for UST 

Supervisors. The examinations are conducted by a professional test administration company, 

currently Pearson VUE, and are regularly scheduled at approximately 200 locations nationwide. 

Study materials are available from the Department and ICC. 

The Department issues a supervisor license upon receipt of an application, the pass score from 

the examination and a fee of $150 each for HOT and cleanup licenses. The $150 license fee for 

UST supervisors covers one to four license categories. Supervisor licenses are issued for a twoyear period. Renewal of a license requires filing a new application and taking and passing the 

exam again. 

The current availability of companies and supervisors is shown in Table 2. 

Table 2 

Installation 

Decommissioning 

Tightness Testing 

Cathodic Protection Testing 

UST Soil Matrix Cleanup 

Heating Oil Cleanup 

Licensed Service Providers 

49 

77 

15 

21 

66 

55 

Licensed Supervisors 

91 

104 

31 

33 

110 

128 

J. UST CORRECTIVE ACTION CLEANUPS 

As of January 1, 2010, the percent of cleanups initiated is 95.5% and the percent of cleanups 

completed is 84.3%. A total of 7193 releases have been reported, 6873 cleanups have been 

initiated and 6064 sites have been cleaned up. In July 2005, the LUST Program set a five year 

goal to eomplete 740 cleanups during state fiscal years 06 through 10 (July 1, 2005 - June 30, 

Program Description 

June 2010 
Oregon Program Apphcation 

Page 9 of 17 

2010). This averages out to 148 completed cleanups a year, however the projected number of 

closures is not a level number per year. The LUST Program exceeded the average goal in the 

earlier years and is, as expected, falling short ofthe average goal in later years. This is due to the 

fact that remaining open sites are often complex and more difficult to close. During the first four 

years ofthe five year goal the LUST Program closed a total of 616 sites which is an average of 

154 sites a year. The program is close to meeting the five year goal. 

The majority of releases are discovered at the time a tank is decommissioned. The remainder are 

discovered through visual observation, site assessments, leak detection, tank tightness testing or 

citizen complaints. Whenever a suspected or confirmed spill or release of a regulated substance 

from an imdergroimd storage tank occurs, DEQ requires notification within 24 hours. To 

facilitate the reporting of confirmed pefroleum spills or releases, DEQ requires the submission of 

an UST Petroleum Release Form. Information from the petroleum release form is the basis for 

creatiiig a contaminated site record in the Leaking Undergroimd Storage Tank (LUST) database. 

To facilitate the timely reporting of confirmed petroleum spills and releases by service providers, 

DEQ has established an On-Line Pefroleum Release Reporting protocol 

(http://www.deq.state.or.us/lq/taiiks/report.htm). Upon receiving a password to utilize the online reporting system from DEQ, service providers can submit the release reports elecfronically. 

When the on-line submittal is complete, DEQ accepts the submission and a contaminated site 

record is created in the LUST database. An e-mail confirmation of receipt ofthe release report is 

automatically sent back to the service provider along with the contaminated site identification 

number. 

40 C.F.R. 281.40 requires this system comply with the Cross-Media Electronic Reporting Rule 

(CROMERR) in 40 CFR Part 3 for State Program Approval to occur. To address this issue, 

DEQ will continue to use the on-hne reporting system for regulated releases until EPA grants 

State Program Approval. At such time, DEQ will discontinue its use unless the system has come 

into compliance with CROMERR. 

The Department's Cleanup Rules for Leaking Petroleum Underground Storage Tank Systems 

(OAR 340-122-0010 through -0360) provide several options for cleaning up pefroleumcontaminated soil and groundwater. After carrying out all appropriate reporting, abatement and 

investigation requirements a cleanup can be completed by meeting one or more ofthe following: 

• Low-impact site requirements, 

• Risk-based concentrations, 

• Generic remedy requirements, 

• Soil matrix cleanup levels. 

Historically, soil cleanups were most often completed using the soil "matrix" standards, a set of 

Program Description 

June 2010 
Oregon Program Apphcation 

Page 10 of 17 

adminisfrative mles adopted in 1989. The matrix cleanup option was designed to be selfimplementing by providing procedural guidance and predetermined cleanup levels. The matrix 

standards generally allow more pefroleum contamination to remain in the environment when arid 

conditions exist, groundwater is deep, soils are tight (i.e. clay) and where population and 

groundwater use is low. Although still protective of pubhc health, safety, welfare and the 

environment, variable standards control costs by keeping cleanup activities to the minimum 

necessary at any particular site. Responsible parties like this approach because it results in 

expedited cleanups, enabling them to get back in business or sell their property in a timely 

manner. 

In 1998, the Department adopted the low-impact site, generic remedy and risk-based 

concenfrations cleanup options. The low-impact site option provides a streamlined process for 

use at operating gas stations or other industrial or commercial properties. This option allows 

these facilities fo remain in operation while the responsible party manages any potential risk from 

contamination remaining at the site. 

The generic remedy option authorizes the Department to develop "generic remedies" designed to 

apply to a specific group of cleanup projects with similar properties or characteristics. The 

Department has developed a generic remedy for cleaning up releases of petroleum from 

underground heating oil tanks. 

The final option, risk-based decision making, is an evaluation ofthe potential risks to human 

health and may be used at sites with groundwater contamination as well as simple soil sites. This 

option is described in detail in the attached guidance document, Risk-Based Decision Making for 

the Remediation of Petroleum-Contaminated Sites. It has gained wide acceptance by the 

consulting community and responsible parties and has been used to close complex sites with 

groundwater contamination. 

K. DATABASES 

The UST Program currently uses Microsoft SQL Server databases. The information is updated 

daily, as needed. All staff have read access to. the data but only a select few have the ability to 

enter or change the data. There are three primary databases: the UST database, the LUST 

database and the licensing database. The types of data in the databases include EPA-required 

data, information on owners of UST sites and responsible parties at LUST sites, and basic facility 

regisfration and notification data. The data are used to coordinate regional office activities, frack 

compliance, issue licenses to supervisors and service providers, and to generate the annual 

compliance fee invoices. 

UST Database: The UST database was created 1986 to capture information from the EPA 

notification forms. In late 1985, the UST Program sent out 55,000 notification forms to everyone 

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June 2010 
Oregon Program Application 

Page 11 of 17 

on a mailing list of potential tank owners. The state developed the list using the mailing lists of 

other state departments and agencies (e.g.. Agriculture, Weights and Measures, Revenue) and a 

broad sample of potentially relevant SIC codes. The response yielded records of some 25,000 

UST systems. For the next year and a half, six EPA confract employees working full time 

entered the data in the database. 

The UST database fracks all basic facility and owner data. The fields are cumulative; for one 

facihty you could find all previotis property owners if the facility had changed hands several 

times. The database contains detailed tank information and includes screens for fracking 

financial responsibility, inspections and installation, modification and decommissioning 

activities. The database is also used to generate installation certificates, temporary closure 

certificates and issue and annually renew operating certificates. The data are organized by 

individual tanks at unique facilities. Most data entry and changes to the existing data are handled 

by headquarters staff UST data entry performed by regional office staff is limited to inspection 

data and data pertaining to UST system decommissioning. Only two UST staff have the ability 

to delete a record from the database. 

LUST Database: Most LUST data entry is performed by regional office staff The LUST 

database is used to track LUST incidents including dates for releases reported, cleanups initiated 

and cleanups completed. It contains site assessment information including contaminants and 

sources and causes of releases. The database assigns incident scores based on the relative threat 

to human health and the environment which facihtates the prioritization of site oversight work. 

It also contains responsible party information. 

As part ofthe UST Program's continuing efforts to better serve the public an interactive LUST 

Cleanup Site Database was developed and posted on the UST Program's web site. This database 

program allows consultants and other interested partied to look up LUST sites on the Internet. It 

also provides them with site information including basic incident information, assessment 

information, management information, contaminant impact information, status information and 

work performed information. 

Licensing Database: The licensing database tracks the status of hcensed service providers and 

supervisors. The system keeps a record of all their licenses and is used to generate the hcenses. 

This database also keeps cumulative records from the beginning ofthe program. Entry of 

licensing data is a headquarters fimction. 

L. OUTREACH 

It is the Department's belief that most'people will choose to voluntarily comply with 

environmental regulations assuming they have access to the apphcable laws, mles and technical 

guidance information associated with a particular environmental program. Given the large 

Program Description 

June 2010 
Oregon Program Application 

Page 12 of 17 

number of regulated underground storage tanks, pefroleum-contaminated cleanup sites and 

affected and interested parties, a significant effort has been and continues to be directed at 

creating an informed constituency, including permittees, tank owners, property owners, service 

providers, pefroleum distributors and the general public. A variety of communication tools are 

used to disseminate UST compliance and cleanup information including written publications, email missives, training seminars, a comprehensive website, operator training and press releases 

and public hearings. 

1. Publications 

One ofthe principal pubhcations used over the 20-year history ofthe UST program is a periodic 

publication known as the Tankline Bulletin. It is broadly disseminated by direct mailing to 

permittees, tank ovmers, property ovmers, service providers, distributors and affected and 

interested parties. The Tankline Bulletin is used to inform all parties about proposed and final 

law and mle changes, significant upcoming deadlines (original notification, 1998 upgrade 

standards, 2005 UST Compliance Act), fraining opportunities, pubhc comment opportunities, 

significant technical issues, general comphance tips and how to contact UST staff for help. 

Currently the Department issues two or more Tankline Bulletins a year with four to six pages of 

information. 

The Tankline Bulletin is supplemented by subject specific fact sheets and technical guidance 

documents generally distributed by mail to all affected and interested parties or specifically 

targeted to an audience such as permittees, service providers or distributors. Currently the 

Department issues two to four fact sheets and/or technical guidance documents a year with two to 

four pages of focused information per publication. 

Copies of UST compliance and cleanup laws and mles, fact sheets and technical guidance 

documents are mailed out to any person upon request or are available for immediate download 

from the UST program website as discussed in Item 4 below. 

2. E-mail Missives 

Over the last two years, the Department has begun to use e-mail missives to two targeted 

audiences, service providers and pefroleum distributors. 

a. Service Providers 

As discussed elsewhere, licensed service providers perform installation, operation and 

maintenance, testing, decommissioning and cleanup services for the majority of work needed to 

be done by permittees and tank owners. By creating a service provider e-mail contact list, the 

Department can routinely and quickly communicate with service providers on specific 

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June 2010 ' 
Oregon Program Application 

Page 13 of 17 

compliance and cleanup technical topics, training opportunities, frequently cited compliance 

violations, etc. 

b. Petroleum Distributors 

Petroleum distributors perform a significant role in implementing the fiiel delivery prohibition 

requirement. The majority of fiiel distributors in Oregon belong to the Oregon Petroleum 

Association (OP A). OP A has shared their e-mail contact list with the UST program. The UST 

program regularly e-mails to pefroleum distributors the list of active facilities not eligible to 

receive fiiel deliveries (based on a facility being in temporary closure or based on a facility whose 

operating certificate has been revoked). By having a current list in hand, pefroleum distributors 

can avoid delivering fliel to an active facility not currently eligible to receive fiiel. ' 

3. Training Seminars 

Training seminars have been focused on the service providers. The Department arranges 

approximately one 8-hour fraining seminar per year that covers either compliance or cleanup 

issues. By having well frained service providers, the Department expects the level of facility 

compliance to remain high and improve over time. 

4. UST Program Website 

Significant effort has been invested to develop a comprehensive website 

(http ://www.deq. state.or.us/lq/tanks/index.htm) that can be used by all affected and interested 

parties, including the general public. Information available for download from the website 

includes: 

• Copies of UST compliance, cleanup and enforcement laws and mles. 

• Copies of all UST compliance, cleanup and service provider forms (where applicable, as 

an interactive PDF form that can be filled out on-screen). 

• Copies of all current UST compliance and cleanup fact sheets and technical guidance 

documents. "^ 

• A copy ofthe most current "UST Facilities That Cannot Receive Fuel" list (updated 

whenever a new facility is added or removed). 

• Copies ofthe UST facilities list, UST operating certificate list and UST cleanup sites hst 

(up-dated quarterly). 

• UST and LUST Program statistics (updated semi-annually). 

In addition, petroleum-contaminated site information can be looked up using two Intemet based 

tools: 

Program Description 

June 2010 
• 

Oregon Program Application 

Page 14 of 17 

Leaking Underground Storage Tank (LUST) Cleanup Site Database (basic release 

reporting and cleanup information on all LUST and heating oil tank sites). 

Facility Profiler (location based mapping tool that draws information from the LUST 

cleanup database, the hazardous substance cleanup sites database (ECSI), permitted 

wastewater discharge points and hazardous and solid waste permitted sites). 

5. Operator Training 

By February 1, 2004, the Department's mles required the tank owner and/or permittee to 

designate an UST system operator knowledgeable about the day-to-day operation and 

maintenance ofthe UST facility. The UST system operator must take a fraining course offered 

by a vendor approved by the Department or take and pass an examination for tank operators. 

The Energy Policy Act of 2005 requfres fraining of three classes of operators identified as Class 

A, Class B and Class C operators. The Department v^ll ensure by August 8, 2012, that all three 

classes of operators are frained in accordance with the Act 

6. Press Releases and Public Hearings 

Press releases are issued to announce important program achievements, enforcement actions and 

proposals to issue no fiirther action letters at cleanup sites. The UST and LUST Programs also 

issue press releases and hold public hearings during mlemaking. Typically during rulemaking, 

there will be one or more Tankline Bulletins, press releases and public notices announcing the 

Department's intent to adopt or revise mles. The Department holds public hearings that are used 

both to educate interested and affected parties on proposed mles and to gather comments from 

them. Following adoption ofthe mle changes a Tankline Bulletin Program Update describing the 

mle changes is mailed to all permittees, tank owners, property owners and service providers. 

For example, fourteen hearings were held in the fall of 2002 to take comments on 

implementation of an operator fraining program and a pilot program for expedited enforcement 

legislatively-mandated by House Bill 2264. Following mle adoption in early 2003, a Tankline 

Bulletin was mailed discussing the results ofthe mlemaking and highlighting the implementation 

schedule for the changes. During the most recent mlemaking three public hearings were held in 

the fall of 2007. Following mle adoption in Febmaiy 2008, a Tankline Bulletin Progrqm Update 

was mailed to all interested parties describing the mle changes including the changes mandated 

by the Energy Policy Act of 2005. 

M. PUBLIC PARTICIPATION 

Program Description 

June 2010 
Oregon Program Application 

Page 15 of 17 

Prior to initiating mlemaking the UST Program issues a public notice that is mailed to all tank 

owners and other stakeholders such as service providers and industry representatives advising 

them ofthe proposed mlemaking effort and asking for volunteers to participate in an advisory 

committee. Advisory committee members are chosen to represent the diverse group of 

stakeholders. Rulemaking is a collaborative effort between the program and stakeholders on the 

advisory committee. 

In 2002, an advisory committee and three subcommittees were appointed to assist the UST 

Program with mlemaking to implement the provisions of HB 2264. A total of 24 advisory 

committee meetings and subcommittee meetings were held. The same advisory committee was 

convened for the 2007/2008 mlemakmg. 

The public is also involved in certain corrective actions. If nearby residences or businesses are 

likely to be impacted by pefroleum vapors or impacted groundwater, the LUST Program contacts 

the potentially impacted parties by telephone, in person or by letter. The Department may also 

issue press releases at significant points in an UST cleanup project when off-site impacts are 

present or when the LUST Program is considering issuing a no further action determination; 

N. ENERGY POLICY ACT OF 2005 COMPLIANCE 

1. Secondary Containment or Financial Responsibility 

To protect groundwater as required by Section 1530 ofthe Energy Policy Act the UST Program 

adopted a more stringent secondary containment option which went into effect on March 10, 

2008. All new and replaced tanks and piping are required to be secondarily contained and 

monitored for leaks regardless ofthe distance to existing community water systems or existing 

potable drinking water wells. In addition, all new motor fuel dispenser systems are required to 

have under-dispenser containment. 

2. Delivery Prohibition 

Oregon's UST Program has the authority in statute and mle to prohibit delivery. Rule changes to 

facilitate the implementation of delivery prohibition were adopted by the Oregon Environmental 

Quahty Commission on Febmary 21, 2008. The mles were effective March 10, 2008. The mle 

changes require the issuance of aimual operating certificates to facilities. Only facilities with 

operating certificates are authorized to receive fiiel. Conditions for issuance of an annual 

operating certificate are payment of aimual permit fees, financial responsibility verification and 

payment of any outstanding civil penalties. The UST Program issued aimual operating 

certificates to 1748 facilities meeting the conditions in early June 2008. Ninety-five facilities 

that had not complied with the conditions were mailed waming letters. Eleven facilities failed to 

come into comphance and fiiel deliveries were halted in September 2008. An e-mail was sent to 

Program Description 

June 2010 
Oregon Program Application 

Page 16 of 17 

the fuel distributors informing them that the eleven sites were no longer eligible to receive fuel. 

In addition, the "UST Facilities That Cannot Receive Fuel" hst was updated on our website. 

Operating certificates can also be revoked for not installing spill prevention, overfill protection, 

leak detection and/or corrosion protection equipment or for failing to take corrective action as 

directed by the Department through our standard inspection and enforcement procedures (see 

Section 4. ~ Demonsfration of Adequate Enforcement Procedures). 

3. Inspections 

The UST Program completed inspections of all USTs that had not been inspected since 

December 22,1998 on August 8, 2007, and began a 3-year inspection cycle on August 9, 2007. 

During the first twoyears ofthe 3-year cycle the UST Program completed 1238 inspections 

which is approxmiately two-thirds ofthe active and temporarily closed facilities in the state. As 

of October 1, 2009, the significant operational compliance (SOC) rate for release prevention was 

91.79%, SOC for release detection was 89.9% and SOC for both release prevention and release 

detection was 84.5%. The UST Program expects to complete the current 3-year inspection cycle 

byAugustS, 2010. 

4. Government Owned Tanks Report 

The Government Owned Tanks Report was submitted to EPA on August 3, 2007. 

5. Public Records Requirements 

The UST Program met both the September 30, 2007 deadline for developing a program to gather 

information and the October 1, 2007 deadline to begin gathering data. The first year of gathering 

data was completed on September 30, 2008. The public record report ofthe first year's data was 

made available to the general pubhc on November 19, 2008, meeting the December 31^' deadluie. 

The public record report is being updated annually. The second year's report was made available 

to the pubhc on October 13, 2009. 

6. Operator Training 

The Department made mle changes to Oregon's existing operator fraining program to conform to' 

EPA's grant guidelines for operator training. Beginning on August 8, 2009, UST operator 

training was required for three classes of operators. Current training venues include quarterly 

fraining classes presented by third-party fraining vendors and the Intemational Code Council's 

"UST System Operator" national exam. Retraining will be required for operators whose 

facilities are found to be out of compliance during an inspection. All Class A, B and C operators 

will have received training by August 8, 2012. 

Program Description 

June 2010 
Oregon Program Apphcation 

Page 17 of 17. 

7. Cost Recovery 

The cost recovery provisions have been fiilly implemented and the Energy Act requirements have 

been included in our cost recovery decision making. 

8. Civil Penalty Considerations 

The Department's enforcement mles include a provision for taking into account the compliance 

history of an owner or operator when assessing a civil penalty. 

9. Federal Facilities Waiver of Sovereign Immunity 

Oregon currently regulates federal facilities and has the authority to assess both permit 

compliance fees and civil penalties. 

Program Description 

June 2010 
^''- ^ Department ofEnvironmental Quality 

UST/LUST Programs 

Staffing Chart 

DEQ 

stale of Onsgon 

Department of 

Environmental 

Quality 

• '. Governor. 

• Environmental Quality Commission | 

rsi 

(Jl Director 

iJ! Deputy Director 

i! 

, 1 

Public Affairs Specialist 

Administrator 

Land Quality 

Program Manager 

Program/Grant 

Coordinator 

Rules/ Technical 

Assistance Coordinator 

Permit/License 

Coordinator 

Administrator 

Northwest Region 

Regional Manager 

UST Inspector 

UST Inspector 

LUST Project Manager 

LUST Project Manager 

LUST Project Manager 

LUST Hydrogeologist 

LUST Duty Officer 

Administrative 

Coordinator 

Administrative Specialist 

Administrative Specialist 

Administrator 

Western Region 

Regional Manager 

UST Inspector 

UST Inspector 

LUST Project Manager 

LUST Project Manager 

LUST Project Manager 

LUST Project Manager 

LUST Project Manager 

LUST Project Manager 

LUST Duty Officer 

Administrative 

Coordinator 

Administrator 

Eastern Region 

Regional Manager 

UST Inspector 

LUST Project Manager 

LUST Project Manager 

Administrative 

Coordinator