Subchapter A. GENERAL PROVISIONS
Sec.
977.1. Purpose.
977.2. Scope.
977.3. Applicability.
977.4. Definitions.§ 977.1. Purpose.
This chapter sets forth the requirements that participants in the Fund shall satisfy to be eligible for Fund coverage of corrective action costs, bodily injury and property damage.
§ 977.2. Scope.
This chapter addresses the establishment and collection of fees, the claims procedures, the optional heating oil tank program and the dispute procedures of the Fund.
§ 977.3. Applicability.
This chapter applies to owners and operators of USTs, owners and operators of HOTs that elect to participate in the Heating Oil Tank Optional Program, certified companies and distributors.
§ 977.4. Definitions.
The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:
Act—The Storage Tank and Spill Prevention Act (35 P. S. § § 6021.101—6021.2104).
Activity—Installing, making major modifications to or removing all or part of a storage tank system or storage tank facility.
Activity fee—The fee assessed upon a certified company for all activities on a UST or a HOT as established in accordance with section 705(d)(1) of the act (35 P. S. § 6021.705(d)(1)) and § 977.19(d) (relating to certified company fees).
Board—The Underground Storage Tank Indemnification Board.
Bodily injury—Physical injury, sickness, disease or death sustained by a third party, resulting from a release from a UST or a HOT, or a certified company activity.
Capacity fee—The fee assessed upon an owner or operator, as established in accordance with section 705(d)(2) of the act and § 977.18 (relating to capacity fee payment procedure).
Certification fee—The annual fee assessed upon a certified company which performs tank-handling activities on a UST, as established in accordance with section 705(d)(1) of the act and § 977.19(c).
Certified company—An entity, including, but not limited to, a sole proprietorship, a partnership or a corporation, which is authorized by the DEP to conduct tank-handling activities, tightness testing activities or inspection activities using certified installers, certified inspectors or both. See § 245.1 (relating to definitions).
Certified company fee—The fee assessed upon a certified company as established in accordance with section 705(d)(1) of the act and § 977.19(b).
Certified tank installer—A person certified by the DEP to perform tank-handling activities on a UST and who may also perform activities on a HOT. See § 245.1.
Claim—A request for coverage and reimbursement from the Fund which is made by the participant that has incurred, or will incur, corrective action costs or liability for bodily injury or property damage caused by a release.
Claim investigation—The obtaining and reviewing of information concerning a reported claim including:(i) Verbal or written statements.
(ii) Conducting onsite visits and any information obtained from these visits.
(iii) Other relevant information.
Corrective action costs—Reasonable and necessary expenses for corrective action, as defined in section 103 of the act (35 P. S. § 6021.103), incurred by an owner or operator in response to a confirmed underground storage tank release as specified in regulations promulgated by the DEP. The term does not include the cost of upgrading, routine inspections, investigations or permit activities not associated with a release. See § 245.1.
DEP—The Department of Environmental Protection of the Commonwealth.
Defense costs—Expenses incurred by the Fund in the investigation, settlement or defense of a specific claim, including fees of attorneys that the Fund retains and other litigation expenses.
Discount—The amount retained by distributors who collect the gallon fee in accordance with § 977.15 (relating to gallon fee discount for distributors).
Distributor—An intermediary that retains title to a regulated substance prior to delivery, and which delivers that substance into a UST.
Distributor delivery invoice—The document supplied by the distributor to a UST owner or operator which identifies the number of gallons of regulated substance delivered into a UST and the total gallon fee to be paid.
EPA—The United States Environmental Protection Agency.
Fund—The Underground Storage Tank Indemnification Fund.
Gallon fee—The fee assessed upon a UST owner or operator on regulated substances placed into a UST. The gallon fee is calculated by multiplying the number of gallons of regulated substance entering a UST by the unit charge in § 977.12 (relating to owner and operator fees).
Gallon fee statement—A form supplied by the Fund to a distributor or to a UST owner or operator upon which the assessed gallon fee is noted, and which is returned to the Fund with the remittance.
HOT—Heating oil tank—An underground heating oil tank not regulated under regulations promulgated by DEP, with a capacity of 3,000 gallons or greater used for storing heating oil products for use on the premises.
Nonretail bulk storage UST—A UST which is not used for dispensing gasoline to end-users.
Operator—Includes any of the following:(i) A person who manages, supervises, alters, controls or has responsibility for the operation of a UST.
(ii) A person who manages, supervises, alters, controls or has responsibility for the operation of a HOT, and elects to participate in the Heating Oil Tank Optional Program.
Owner—Includes any of the following:(i) A person who owns a UST storing regulated substances on or after November 8, 1984.
(ii) A person who owns a UST at the time all regulated substances were removed when removal occurred prior to November 8, 1984.
(iii) A person who owns a HOT and elects to participate in the Heating Oil Tank Optional Program.
Participant—Includes any of the following:(i) An owner or operator of a UST.
(ii) An owner or operator of a HOT.
(iii) A certified company.
Property damage—Damage to the property of third parties that includes:(i) Destruction of, contamination of, or other physical harm to real property or tangible personal property, including the resulting loss of use of that property which occurred from a release from a UST on or after February 1, 1994, or a release from a HOT on or after the date of election of coverage.
(ii) Loss of use of real property or tangible personal property that is not physically injured, destroyed or contaminated, but has been evacuated, withdrawn from use, or rendered inaccessible because of a release from a UST which occurred on or after February 1, 1994, or a release from a HOT on or after the date of election of coverage.
Regulated substance—(i) An element, compound, mixture, solution or substance that, when released into the environment, may present substantial danger to the public health, welfare or the environment, and which is:
(A) Any substance defined as a hazardous substance in section 101(14) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C.A. § 9601), but not including substances regulated as a hazardous waste under Subtitle C of the Resource Conservation and Recovery Act of 1976 (42 U.S.C.A. § § 6921—6931).
(B) Petroleum, including crude oil or a fraction thereof and hydrocarbons which are liquid at standard conditions of temperature and pressure (60° and 14.7 pounds per square inch absolute), including oil, petroleum, fuel oil, oil sludge, oil refuse, oil mixed with other nonhazardous wastes and crude oils, gasoline and kerosene.
(C) Other substances determined by the DEP whose containment, storage, use or dispensing may present a hazard to the public health and safety or the environment, but not including gaseous substances used exclusively for the administration of medical care.
(ii) The term does not include the storage or use of animal waste in normal agricultural practices. See section 103 of the act and § 245.1.
Release—(i) Spilling, leaking, emitting, discharging, escaping, leaching or disposing from a UST or a HOT into surface waters and groundwaters of this Commonwealth or soils or subsurface soils in an amount equal to or greater than the reportable release quantity determined under section 102 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C.A. § 9602), and regulations promulgated thereunder (See 40 CFR 302.1—302.8 (relating to designation, reportable quantities, and notification)), or an amount equal to or greater than a discharge as defined in section 311 of the Federal Water Pollution Control Act (33 U.S.C.A. § 1321) and regulations promulgated thereunder (See 40 CFR 110.1—110.6 (relating to discharge of oil)).
(ii) The term also includes any spilling, leaking, emitting, discharging, escaping, leaching or disposing from a UST or a HOT into a containment structure or facility that poses an immediate threat of contamination of the soils, subsurface soils, surface water or groundwater.
Security—A bond of the Commonwealth or the United States, a surety bond or an irrevocable letter of credit.
Statement—A document supplied by the Fund to the participant which documents the appropriate fees.
Subrogation—The right of the Fund to pursue a claim against a third party when the participant has been indemnified by the Fund.
Suit—A civil action instituted against the participant for bodily injury or property damage resulting from a release.
Tank fee—The fee assessed upon a UST owner or operator whose tanks store regulated substances, which is calculated by multiplying the number of the USTs owned or operated by the per tank charge in § 977.12.
UST—Underground storage tank—(i) Any one or a combination of tanks (including underground pipes connected thereto) which are used to contain an accumulation of regulated substances, and the volume of which (including the volume of underground pipes connected thereto) is 10% or more beneath the surface of the ground.
(ii) The term does not include:
(A) Farm or residential tanks of 1,100 gallons or less capacity used for storing motor fuel for noncommercial purposes.
(B) Tanks used for storing heating oil for consumptive use on the premises where stored unless they are specifically required to be regulated by Federal law.
(C) A septic or other subsurface sewage treatment tank.
(D) A pipeline facility (including gathering lines) regulated under:
(I) The Natural Gas Pipeline Safety Act of 1968 (49 U.S.C.A. App. § § 1671—1687).
(II) The Hazardous Liquid Pipeline Safety Act of 1979 (49 U.S.C.A. § § 2001—2015).
(E) An interstate or intrastate pipeline facility regulated under state laws comparable to the provisions of law in subparagraph (iv).
(F) Surface impoundments, pits, ponds or lagoons.
(G) Stormwater or wastewater collection systems.
(H) Flow-through process tanks.
(I) Liquid traps or associated gathering lines directly related to oil or gas production and gathering operations.
(J) Storage tanks situated in an underground area (such as a basement, cellar, mine working, drift, shaft or tunnel) if the tank is situated upon or above the surface of the floor.
(K) Except for tanks subject to the requirements of 40 CFR Part 280 (relating to technical standards and corrective action requirements for owners and operators of UST), tanks regulated under the Solid Waste Management Act (35 P. S. § § 6018.101—6018.1003), including piping, tanks, collection and treatment systems used for leachate, methane gas and methane gas condensate management.
(L) A UST whose capacity is 110 gallons or less.
(M) Tanks containing radioactive materials or coolants that are regulated under The Atomic Energy Act of 1954 (42 U.S.C.A § § 2011—2297).
(N) A wastewater treatment tank system.
(O) Equipment or machinery that contains regulated substances for operational purposes such as hydraulic lift tanks and electrical equipment tanks.
(P) A UST that contains a de minimis concentration of regulated substances.
(Q) An emergency spill or overflow containment UST system that is expeditiously emptied after use.
(R) A UST that is part of an emergency generator system at nuclear power generation facilities regulated by the Nuclear Regulatory Commission under 10 CFR Part 50, Appendix A (relating to general design criteria for nuclear power plants).
Waste oils—An accumulation of oils from one or more sources, including the following:(i) Water emulsified in oil.
(ii) Incompatible oils that have been mixed.
(iii) Foul or wet oil and sludge received from receipt operations.
(iv) Sludges or bottom sediment accumulating in the bottoms of storage tanks after a significant period of time.
(v) Oil which has been spilled and then recovered from sumps, basins or other spaces.
(vi) Oil contaminated by gasoline or other petroleum products.
Wholesale distribution UST—A UST used for intermediate storage of gasoline prior to delivery into a UST that directly serves end users.
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