Leaking Underground Storage Tank Program Responsibility and Liability Issues

If you are the owner or operator of the UST system, you should have been issued a permit for its installation, and, if not done already, you must register it with the Illinois Office of the State Fire Marshal (OSFM). The OSFM regulates the daily operation and maintenance of UST systems, including oversight of UST removal. If you should ever choose to upgrade the tank, remove the tank, or abandon it in place, you must contact the OSFM for a permit to do so. You may contact the OSFM at 217-785-1020 with questions about permit requirements for installation, upgrade, or removal; leak prevention or detection requirements; financial responsibility requirements; or eligibility and deductible determinations for the Illinois Underground Storage Tank Fund (UST Fund).

If a leak or spill occurs, the UST owner or operator, or its designated representative, must notify the Illinois Emergency Management Agency (IEMA) within 24 hours after the release. The IEMA then notifies the Illinois Environmental Protection Agency (Illinois EPA) of the release, at which time the Illinois EPA's Leaking UST Section begins oversight of cleanup activities.

After reporting the release to the IEMA, you, as the UST owner or operator, must ensure that immediate action is taken to prevent any further release of the substance into the environment and to identify and mitigate fire, explosion, and vapor hazards. All other environmental laws and regulations governing leaking UST systems (including further early action requirements, reporting requirements, and investigative and corrective action requirements) must be followed. Environmental laws and regulations can be found in the Environmental Protection Act, Title XVI, Petroleum Underground Storage Tanks; and in Title 35, Illinois Administrative Code, Subtitle G. These documents are available at the Illinois Pollution Control Board Web site.

There are some UST systems that are excluded from these requirements (for example, an UST system whose capacity is 110 gallons or less). For the list of exemptions, please refer to the regulations, or contact the Illinois EPA's Leaking Underground Storage Tank Section at 217-524-3300.

Under the UST regulations only, the property owner is not liable for corrective action unless the property owner is also the owner or operator of the UST system. Prior to January 1, 2006, the owner of an UST system in use on or after November 8, 1984, was any person who owned the UST system while it was still in service. In the case of any UST system in use before November 8, 1984, but no longer in use on or after that date, the owner was any person who owned the UST system immediately before it was taken out of service. Effective January 1, 2006, the "owner" definition was expanded to include any person who has:

• submitted to the Illinois EPA a written election to proceed under Title XVI of the Environmental Protection Act, and
• acquired an ownership interest in a site on which one or more registered tanks have been removed, but on which corrective action has not yet resulted in the issuance of a "no further remediation letter" by the Illinois EPA pursuant to Title XVI of the Environmental Protection Act.

The owner is the person having responsibility for the daily operation of the UST system, including storage and dispensing of product.

Because of the complexity and variety of business arrangements, determination of UST system owner or operator status in a particular instance is usually site-specific. However, an entity purchasing a property with an UST system that is no longer in service generally is not considered the owner or operator of the UST system. Therefore, the new property owner would not be liable under UST regulations for cleanup of a release from the UST system. This assumes that the new property owner or lessee was not involved in ownership or operation of the UST system while it was in service and has not elected to proceed as "owner" under the new definition.

Please be aware that, although the property owner is not liable insofar as the Leaking UST rules apply, the property owner could potentially be cited in a third-party lawsuit or under other provisions of the Environmental Protection Act if contamination from the UST release migrates beyond the property boundary or poses a safety threat. Before purchasing property with an UST system, you should consult a private attorney for advice concerning the specific circumstances.

You would be eligible for payment from the UST Fund if you submit to the Illinois EPA an Election To Proceed as "Owner" form and if the OSFM deems you eligible as owner of the UST. The property owner is not eligible for payment from the UST Fund unless also listed by the OSFM as the owner or operator of the UST system. Only the owner or operator of an UST system, as determined by the OSFM, can access the UST Fund and be paid for costs to comply with the UST regulations.

If the UST system is still in the ground on a property that you already own or intend to purchase, then you should contact the OSFM to determine whether you meet the eligibility requirements for the UST Fund. The OSFM also determines the deductible amount to be paid by the owner or operator of the UST system; the deductible amount must be paid before any payment from the UST Fund will be made.

If you are the new property owner, or a prospective property owner, and the UST system is still in the ground, you may want to inquire with the OSFM about registering the UST system or transferring UST system registration to yourself so you may be eligible to access the UST Fund for cleanup of existing contamination as a result of a release from said UST system. You should be prepared to tell the OSFM whether the UST system is still in operation or provide the date the UST system was taken out of service. However for a property owner who is not technically the owner or operator of the UST system—before registering the tank or transferring registration to yourself, please be advised to consider the legal consequences of becoming the UST system owner or operator; in doing so, you would also become subject to all UST regulations.

As property owner, if you wish to voluntarily address any remaining contamination, or portion thereof, resulting from a leak or spill from the UST system, you may participate in the Illinois EPA's Site Remediation Program (SRP). This program was developed to provide Illinois EPA guidance, assistance, and determinations of successful completion for the voluntary conduct of remediation actions. The objectives of the program are, as follows:

1. to provide Illinois EPA experience and assistance toward a timely, effective, and resource-efficient cleanup of soil and/or groundwater contamination; and
2. to provide proper conclusion of participation in the program, resulting in the issuance of either a No Further Remediation Letter or a Release of Responsibility Letter by the Illinois EPA.

Participants in the program are required to reimburse the Illinois EPA for such services.

Additional information on the SRP can be obtained by contacting the project manager on call for the SRP at 217-524-3300, or by visiting Site Remediation Program web page.

A property owner who elects to proceed as owner of the UST system may access the UST Fund for payment of corrective action costs (after payment of the applicable deductible) and be issued a No Further Remediation Letter by the Illinois EPA's Leaking UST Program. Again, please be advised of the responsibilities and liabilities that accompany such ownership.

More information may also be obtained by contacting the project manager on call for the Leaking Underground Storage Tank Section at 217-524-3300.

This fact sheet is for general information only and is not intended to replace, interpret, or modify laws, rules, or regulations.

Revised June 2008