Remediation of Underground Storage Tank Leaks in Colorado-part I

• Publication year: 1992
• Pages: 269
• Citation: Vol. 21 No. 2 Pg. 269

21 Colo.Law. 269 Colorado Lawyer 1992.

1992, February, Pg. 269. Remediation of Underground Storage Tank Leaks in Colorado-Part I

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Vol. 21, No. 2, Pg. 269

Remediation of Underground Storage Tank Leaks in Colorado---Part I

by William Bruce Thompson

Part I of this article outlines the standards now governing release reporting and corrective actions for regulated petroleum underground storage tank ("UST") systems in Colorado, as well as procedures for handling contaminated soils at UST sites. In the process, this Part I identifies areas of conflict between the Colorado Department of Health ("CDH") and the State Inspector of Oils ("State Inspector") and points out where the framework of the Act still lacks substance. Part II of this article, to appear in the April issue of The Colorado Lawyer, will examine the procedures for obtaining reimbursement from the UST fund.

History of the Act

Like many environmental laws, Colorado's Underground Storage Tank Act(fn1) ("Act") is largely framework---a skeleton on which the appropriate regulatory agencies construct the muscle and flesh that will bring the statutory goals to life. Passed by the Colorado General Assembly in 1989, the Act's purpose was

to establish a program for the protection of the environment and of the public health and safety by preventing and mitigating the contamination of the subsurface soil, groundwater, and surface water which may result from leaking underground storage tanks.(fn2)

The Act was in response to a growing public concern about the integrity of thousands of UST systems nationwide and the threat posed by undetected releases of petroleum and other hazardous substances from UST systems in Colorado.(fn3) At the same time, the General Assembly sought to establish a fund which would serve as a resource for corrective actions performed by the state and assist owners and operators of UST systems in meeting their financial responsibilities under federal law.(fn4) Thus, creation of the UST fund was a primary component of the Act.

State regulations setting performance standards for the construction, installation and monitoring of newly installed UST systems have existed since shortly after July 1,1989, the effective date of the Act. These technical standards were co-opted largely from the regulations promulgated by the Environmental Protection Agency ("EPA") pursuant to federal UST legislation enacted in 1984.(fn5) However, the agencies in Colorado implementing the Act only recently have fleshed out the appropriate procedures for performing remediation of petroleum releases (known as "corrective action") and for seeking reimbursement from the fund for the costs of performing such work.

Scheme of the Act

The Act attempts to create separate domains of authority for the State Inspector and the CDH. The former is charged with, among other things, promulgating and enforcing regulations concerning release reporting, investigation and confirmation.(fn6) The State Inspector further is responsible for assuring that releases from UST systems are "promptly assessed and that further releases are stopped."(fn7) Meanwhile, the CDH ostensibly has authority under the Act only when a release of a reportable quantity of a petroleum or hazardous substance occurs from a regulated UST system. Under the Act, it is the province of the State Inspector to determine whether a UST release exceeds reportable quantities and to so notify the CDH.(fn8)

The implementing agencies obviously have sought to reconcile their respective spheres of influence. Nevertheless, as predicted, some confusion in the regulations exists.(fn9) Presumably, to have complete sets of regulatory standards in (at least) one place, both the State Inspector and the CDH have enacted regulations covering the gamut of responsibilities owed by owners and operators of UST systems with respect to release reporting

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and corrective action under the Act, including responsibilities which fall outside the domain of the respective promulgating agency. Thus, CDH regulations address issues of initial release detection and notification---functions given by the Act to the State Inspector.(fn10) Likewise, regulations enacted by the State Inspector cover initial site characterization and corrective action---over which the CDH has authority.(fn11) For the most part, the regulations are not only consistent but are identical. However, some areas of apparent conflict appear

Release Detection And Reporting

Suspected releases from regulated UST systems must be reported to the State Inspector within twenty-four hours. A release may be suspected if one of several conditions exist, including the discovery of petroleum at the UST site or in the surrounding area, unusual operating conditions or positive results from release detection systems in place.(fn12)

A regulation of the State Inspector authorizes that agency to order an investigation by an UST owner/operator to determine whether a detected off-site impact is a result of a release from the UST.(fn13) An identical regulation gives CDH the same authority.(fn14) Both the State Inspector and CDH regulations require owner/operators to take steps to confirm all suspected releases within seven days. The CDH can authorize another reasonable time for confirmation under its regulation. Curiously, the EPA has this authority under the current regulation of the State Inspector.(fn15)

An...