401 KAR 42:330. Small Owners Tank Removal
Account.
RELATES TO: KRS 224.60-105,
224.60-130(1)(a), (b), (j), 224.60-140, 224.60-150, 40 C.F.R. 280 Part H
STATUTORY AUTHORITY: KRS 224.60-130(1)(j)
NECESSITY, FUNCTION, AND CONFORMITY: KRS
224.60-130(1)(j) requires the establishment of an account to reimburse small
owners for the reasonable cost of permanent closure, and authorizes the cabinet
to promulgate administrative regulations to establish this account. This
administrative regulation establishes the eligibility requirements and rates
for reimbursement from the Small Owners Tank Removal Account (SOTRA).
Section 1. Eligibility. (1) To
demonstrate eligibility, an owner shall submit a completed SOTRA Application
for Assistance, DEP 6067. An owner shall be eligible for reimbursement from
this account if:
(a) The petroleum storage tank owner meets
the financial eligibility criteria of $100,000 total income averaged over the
last five (5) years as documented by the applicant's signed federal income tax
returns for the last five (5) years, with the exception of Non-Profit Public Service
Corporations, eligible governmental bodies and all other Non-Profit entities,
which shall provide tax exemption documentation and budgets for the last five
(5) years;
(b) The tanks are located on a facility
that is or was involved in the retail sale or wholesale distribution of motor
fuel;
(c) The tanks are registered with the
Division of Waste Management by the applicant seeking reimbursement from the
Small Owners Tank Removal Account (SOTRA), pursuant to KRS 224.60-105 and 401
KAR 42:020;
(d) The owner certifies that:
1. The retail sale or wholesale
distribution of motor fuel at the facility from a UST system or systems permanently
cease upon permanent closure of the tanks; and
2. All known tanks at the facility are
being removed or closed in place; and
(e) The owner has owned the tanks for
more than one (1) year prior to the date of the application for reimbursement
from this account.
(2) A newly discovered underground
storage tank system shall not affect the eligibility of an owner otherwise
eligible in accordance with subsection (1) of this section.
(3) A tank shall not need to be in
operation prior to its removal.
(4) A written notice shall be submitted
to the applicable regional office at least fourteen (14) calendar days prior to
commencement of the permanent closure of the petroleum storage tank to maintain
eligibility for reimbursement.
(5) Federal and state-owned facilities
shall not be eligible for reimbursement from the Small Owners Tank Removal
Account.
Section 2. Account Use. (1) Funds in this
account shall be used to reimburse eligible petroleum storage tank owners for
those reasonable and necessary costs incurred through performance of actions required
in 401 KAR 42:070.
(2) The use of this account shall be
limited as specified in KRS 224.60-130(1)(j).
(3)(a) The owner of a facility shall be
eligible for reimbursement of the cost of permanent closure, but shall not be
eligible for payment of corrective action cost from this account.
(b) If corrective action is required,
eligible reimbursement shall be governed by 401 KAR 42:250.
(4)(a) If expenditures from this account
exceed $3,000,000 during any fiscal year, the cabinet shall suspend further reimbursements
from this account. The suspension shall be in effect until the cabinet determines
that further reimbursements from this account will not threaten the solvency of
the Petroleum Storage Tank Environmental Assurance Fund.
(b) This determination shall be based
upon legislatively enacted budgets and associated appropriations.
Section 3. Application Procedure. (1) The
owner shall file a completed SOTRA Application for Assistance, DEP 6067 for participation
in this account at least forty-five (45) days prior to the permanent closure of
the petroleum storage tank. The owner shall also provide the following information:
(a) Verification of income through the
submittal of copies of the applicant's signed federal income tax returns for
the last five (5) years, with the exception of Non-Profit Public Service Corporations,
eligible governmental bodies and all other Non-Profit entities, which shall provide
tax exemption documentation and budgets for the last five (5) years;
(b) A copy of the contract between the
owner and the primary contractor;
(c) A facility map identifying
approximate property boundaries, placement of petroleum storage tank pits,
location of other relevant facility features including buildings, canopies,
driveways, piping, dispenser islands, paved areas, and the proposed extent of
areas to be evacuated in the performance of permanent closure, including dimensions;
(d) Color photographs of the facility and
the areas to be impacted by the permanent closure; and
(e) A copy of a deed or other documentation
indicating ownership of the tanks, if the tanks have not been registered in the
applicant's name, in accordance with 401 KAR 42:020, with the Division of Waste
Management for twelve (12) months prior to the SOTRA application being
submitted.
(2) The owner shall retain a copy of the
SOTRA Application for their records.
(3)(a) In response to the application
submitted, the cabinet shall issue a letter setting forth the owner's
eligibility status and the availability of funding for the closure of the
petroleum storage tank.
(b) Permanent closure of the tank system
shall not begin until the cabinet has approved the application and established
the reimbursable amount. Failure to comply with this requirement shall result
in denial of the reimbursement.
Section 4.
Permanent Closure Costs. The rates established for permanent closure costs in
this section shall apply to a SOTRA Application for Assistance approved after
October 6, 2011. (1)(a) Reimbursement from this account shall be determined
from the lesser of two (2) dollars and sixty (60) cents per gallon of tank
capacity or the following matrix table:
Number of Tanks in Pit
Size of Largest Tank in
Pit (gallons)
Less than
3,100
3,101 to
5,100
5,101 to
10,000
Greater than
10,000
1
$3,900
$4,420
$6,370
$7,020
2
$6,370
$7,150
$9,620
$11,180
3
$8,320
$9,750
$12,610
$15,340
4
$10,270
$11,700
$15,340
$18,200
5
$12,220
$13,650
$17,940
$21,970
Each Extra
$1,950
$1,950
$2,340
$2,860
(b) In addition to
the cost listed in subsection (1)(a) of this section, the cabinet shall
reimburse a one (1) time amount of $2,095, for the preparation and submission
of a Closure Assessment Report, incorporated by reference in 401 KAR 42:070.
1. This shall
include the cost of preparing a classification guide.
2. The cabinet
shall also reimburse a one (1) time amount of $500 for the mobilization and
demobilization of equipment.
(c) If more than
one (1) tank pit is located on a facility, the reimbursement shall be
calculated by adding the matrix table cost for each pit, in addition to the
costs allowed in subsection (3) of this section.
(2) The following
items shall be included in the cost listed in subsection (1)(a) of this
section:
(a) Tank system
removal, cleaning, and disposal or closure-in-place requirements;
(b) Permanent
closure of thirty-five (35) feet of associated piping outside of the tank pit;
(c) Removal of the
pump island and canopy;
(d) Drumming of
cleaning material;
(e) Backfilling to
return the excavation to grade less the reimbursable volume of contaminated
backfill disposed or treated at a permitted facility and replaced in accordance
with subsection (3) of this section;
(f) Concrete or
asphalt surface removal;
(g) Equipment and
material necessary for the permanent closure;
(h) Preparation of
a permit if required for permanent closure or testing of a tank system;
(i) Excavation and
loading of material;
(j) Collection of
samples, including domestic-use wells, domestic-use springs, and domestic-use
cisterns within a 100-meter radius of the UST system; and
(k) Labor charges
relating to paragraphs (a) through (j) of this subsection.
(3) The costs of
the following items shall be allowed, if necessary, in addition to the cost
established in subsection (1)(a) of this section upon the submittal of a claim
in accordance with Section 5 of this administrative regulation:
(a) Facility
restoration. Facility restoration activities shall only be reimbursable under
this account if a No Further Action Letter has been issued for the subject
facility upon completion of permanent closure activities in accordance with 401
KAR 42:070, without corrective action activities being performed outside of the
excavation zone. A cost estimate shall be submitted, through the completion
of Section 12 of the SOTRA Reimbursement Worksheet, DEP 0064, and shall be approved
by the Underground Storage Tank Branch, in writing, prior to incurring costs.
Additional costs related to the repair of subsidence resulting from improper
placement of fill material shall not be reimbursable;
(b) Transportation,
disposal, or treatment, and replacement of backfill contaminated above the
applicable screening levels established in 401 KAR 42:080;
(c) Disposal of
asphalt surface material;
(d) Installation of
up to four (4) soil borings in accordance with Section 4.4 of the Closure
Outline, incorporated by reference in 401 KAR 42:070;
(e) Transportation
and disposal, treatment, or recycling of tank contents or waste;
(f) Removal,
transportation, and disposal or treatment of water from within the excavation
zone in accordance with Section 4.1 of the Closure Outline, contaminated above
the applicable screening levels established in 401 KAR 42:080;
(g) Laboratory
analysis, as required in accordance with the Closure Outline, incorporated by
reference in 401 KAR 42:070, with the exception of laboratory analysis of
samples collected in accordance with Section 6 of the Closure Outline; and
(h) Grain size
analysis for facilities accurately classified as Class B in accordance with the
Classification Outline, incorporated by reference in 401 KAR 42:080.
(4) Optional soil
removal outside of the excavation zone in accordance with Section 6 of the
Closure Outline, incorporated by reference in 401 KAR 42:070 shall be
reimbursed in accordance with 401 KAR 42:250.
(5) Facility
restoration for corrective action activities performed outside of the
excavation zone shall be reimbursed in accordance with 401 KAR 42:250.
Section 5. Claims.
Eligible reimbursement for permanent closure costs associated with a SOTRA Application
for Assistance approved prior to October 6, 2011 shall be made in accordance
with the administrative regulations in effect at the time the SOTRA Application
for Assistance was approved. (1)(a) To receive reimbursement, an owner shall
submit a completed SOTRA Claim Request, DEP 6068; and
(b) The owner shall
retain a copy of the form for his or her records.
(2)(a) In addition
to the completed claim form, the owner shall submit the required SOTRA
Reimbursement Worksheet, DEP 0064.
(b) Documentation
of actual cost, including invoices and weigh tickets, shall be attached to the
worksheet.
(3) The cabinet
shall review a claim request for the following:
(a) The number and
size of tanks removed; and
(b) Verification of
eligible costs.
(4) To receive
reimbursement, an owner shall have paid all annual tank fees as required by KRS
224.60-150.
(5) The cabinet may
request additional supporting documentation to verify the reasonableness or
necessity of a cost.
(6) If a claim is
determined to be deficient by the Underground Storage Tank Branch, a written
deficiency letter, outlining the deficiencies, shall be issued to the
applicant. Failure by the applicant to provide the requested information and
documentation within thirty (30) days of receipt of the request shall cause the
claim to be denied.
(7) Reimbursement
shall be contingent upon a determination by the cabinet that the report
required is complete and meets the requirements of 401 KAR Chapter 42.
(8)(a) An entry
level shall not be assessed for eligible reimbursement in accordance with this
administrative regulation.
(b) An
entry level shall be assessed upon confirmation of a release, constituting an
occurrence, that requires corrective action for which the applicant is seeking
reimbursement through the Financial Responsibility Account or Petroleum Storage
Tank Account in accordance with 401 KAR 42:250.
(9) All
claims shall be submitted within two (2) years after issuance of a No Further
Action letter by the Underground Storage Tank Branch.
Section 6.
Extensions. (1) The owner or operator of a UST system may request an extension
to a deadline established by this administrative regulation or established by
the cabinet in writing pursuant to this administrative regulation.
(2) The extension
request shall be submitted in writing and received by the Underground Storage
Tank Branch of the Division of Waste Management prior to the deadline.
(3) The cabinet shall
grant an extension, if the cabinet determines that an extension would not have
a detrimental impact on human health or the environment.
Section 7.
Incorporation by Reference. (1) The following material is incorporated by
reference:
(a) "SOTRA
Application for Assistance", DEP 6067, April 2011;
(b) "SOTRA
Claim Request", DEP 6068, April 2011; and
(c) "SOTRA
Reimbursement Worksheet", DEP 0064, August 2011.
(2) This material
may be inspected, copied, or obtained, subject to applicable copyright law, at
the Division of Waste Management, 200 Fair Oaks Lane, Second Floor, Frankfort,
Kentucky 40601, Monday through Friday, 8 a.m. to 4:30 p.m. This material is
also available on the Division of Waste Management's Web site at
http://waste.ky.gov/ust.
(23 Ky.R. 3649; Am. 4178; 24 Ky.R. 77; eff. 7-9-97; 25 Ky.R. 1128; 2868;
eff. 6-9-99; Recodified from 415 KAR 1:130; 32 Ky.R. 2141; 33 Ky.R. 483; eff.
9-13-2006; 37 Ky.R. 2735; 38 Ky.R. 287; 546; 746; eff. 10-6-11.)
