More BUSTR Updates Pending

As we posted last week, the Bureau of Underground Storage Tank Regulations (BUSTR) were updated last fall to allow current landowners to address certain BUSTR releases under the Ohio Environmental Protection Agency's (OEPA) Voluntary Action Program or the "VAP".  [Don't you just love all these acronyms?]  Below is a brief summary of some other rule changes that will soon take effect and pending legislation.

 

1. BUSTR Rule 13 -- Correct Action Rule

BUSTR amended its Corrective Action Rule (Rule 13) to equate an OEPA Covenant Not to Sue to a BUSTR NFA. This amendment takes effect July 1, 2012 (OAC 1301:7-9-13(R)(3)).  If the CNS is not upheld then BUSTR will revoke the NFA.

2.  BUSTR Rule 19 -- Operating Training

 

Operator training requirements are specified for 3 types of classes:

• Class A Operator - Upper Level Manager
• Class B Operator - Field Supervisor
• Class C Operator - Hourly Worker

No later than August 1, 2012, owners and operators of UST systems must designate, per site, the Class A, B and C operators.  No later than August 8, 2012, all designated Class, A, B and C operators must be trained. Proof of training must be provided to the fire marshal upon request.  There is a three year inspection cycle.

Each UST system or group of UST systems at a facility must have a Class A, Class B and Class C operator designated. The operators can be trained according to their classification with Class A operators having the most extensive training. Training programs may be held by the State of Ohio or a third party that has received prior state approval. There are currently 14 approved trainers for Ohio's UST program.

 

Due to high turnover rate and volume of Class C operators, BUSTR accepts training of Class C operators by a trained Class A or Class B operator.

 

No later than August 1, 2012, owners and operators of UST systems must designate, per site, the Class A, B and C operators. No later than August 8, 2012, all designated Class, A, B and C operators must be trained. Proof of training must be provided to the fire marshal upon request. There is a three year inspection cycle.

 

See OAC 1301:7-9-19.

 

3.  BUSTR Rule 12 - Out of Service Tanks

 

Effective July 1, 2012, Rule 12 will allow for longer out of service periods under an approved permit. (See OAC 1301:7-9-12)  If an owner or operator can demonstrate compliance with various release prevention requirements (including having a certificate of coverage from the Petro Board) during the out of service period, a closure assessment will not be required.

4.  Senate Bill 294

 

New legislation known as Senate Bill 294 has been proposed to further expand "Class C Release" situations where a current landowner can address a BUSTR release under OEPA's VAP. This new exception, if it becomes law, addresses those situations where there is a viable responsible party who refuses or is not otherwise addressing the BUSTR release and a volunteer wants to step in and address the release under the VAP. This volunteer can do so, provided...

 

• the person conducting the voluntary action is not the responsible party for the BUSTR release;
• The BUSTR release is addressed in conjunction with a non-BUSTR regulated release of hazardous substances or petroleum; and
• an escalated enforcement action has not been initiated (i.e., the fire marshal has not issued an enforcement order or made a referral to the Ohio Attorney General's office).

 

Keep in mind that these provisions and the ones discussed by my colleague, Steve Richman, last week, apply to individual releases not sites nor particular tanks. BUSTR does not classify a whole site as a Class C release. This can be problematic when a site has multiple releases or has had multiple sets of tanks.

 

For the volunteer to participate in the VAP, the release must be an identified release, meaning an environmental assessment of some type (closure, Tier 1 or Phase 2) showing contamination above BUSTR action levels must have been performed and that data has been submitted to BUSTR. The volunteer may arrange for the environmental assessment and then submit it to BUSTR.

 

Current owners beware--If there are any out of service USTs on your property that have been in use in the past few decades and there have not been any environmental assessments conducted on these USTs to see if there has been a release then you may be a responsible party under Ohio law.

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