If you or your company now or anytime in the past owned or operated an underground tank containing regulated materials, you should be aware of your potential responsibility for compliance with environmental regulations or for cleanup if a leak from the tank caused contamination. 

That may seem like an obvious statement, but in fact many underground storage tanks (USTs) have long and complicated histories, and identifying the responsible party when, for example, the tank had multiple owners is not always straightforward.  When evidence is scarce and ownership is not clear, regulatory authorities may be forced to draw their own conclusions about who is responsible for a UST.  Anyone who finds himself or herself identified as a responsible party should be aware of how that conclusion was reached. 

EPA guidance

In a 2013 guidance document, Responsible Party Search Guide for the Underground Storage Tank Program, the EPA makes the following general points about owners/operators of USTs:

• The landowner is not always the UST owner.
• State law, including property law, may influence the definition of a UST owner and operator.  State laws vary across the country.  However, state UST requirements must be at least as stringent as, and may be more stringent than, federal requirements.
• If the EPA or a state uses site-specific Leaking Underground Storage Tank (LUST) Trust Fund money, the determination of an owner must be based on the federal statutory definition of “owner.”

Federal definition

The federal definition of an owner depends on whether the UST was in use on or after November 8, 1984.  Specifically:

• In the case of a UST system in use on November 8, 1984, or brought into use after that date, an owner is any person who owns a UST system used for storage, use, or dispensing of regulated substances.
• In the case of any UST system in use before November 8, 1984, but no longer in use on that date, an owner is any person who owned the UST immediately before the discontinuation of its use.

A UST is considered in use if it is used to store or dispense a regulated substance.  If a UST contains a regulated substance, it would be in use even if the potential owner did not dispense fuel or operate the UST system or cause any suspected contamination.

Whether a UST is storing a regulated substance can be determined by the definition of empty at 40 CFR 280.70:  “The UST system is empty when all materials have been removed using commonly employed practices so that no more than 2.5 cm (one inch) of residue, or 0.3 percent by weight of the total capacity of the UST system, remain in the system.”  Thus, there may have been no fuel deliveries to the UST and no dispensing of petroleum from the UST, but if the UST contained product on or after November 8, 1984, the UST is considered to have been in use because of product storage.

Also, there may have been multiple owners of USTs in use on or after November 8, 1984, and, under the federal definition, an owner is not limited to only the most recent owner.  But there are different approaches to identifying owners of USTs in use after November 8, 1984.   In cleanup cases, implementing agencies often try to identify the owners (or operators) from the time of a release.  But there are other factors that an implementing agency may consider.  

If the UST was taken out of service (i.e., not in use) before November 8, 1984, the only owner is the last person who owned it before it was taken out of service.

Leases

USTs are generally considered fixtures or trade fixtures that belong to the landowner.  However, in some states, USTs are not a fixture to the land.  In such cases, UST ownership may be changed by entering into contracts or leases.  For example, if a lessee installs a  UST system, state law may determine whether the lessee may treat the UST like any other personal property or if the UST is a fixture that runs with the land (i.e., is the property of the landowner).

If a lessee abandons the UST, it may become the property of the landowner.  In this case, while the lessee remains liable, the landowner may also be liable for closure, site assessment, and any necessary cleanup.  The landowner may be protected from liability if the lease clearly spells out the ownership of the UST, responsibility for the UST, and requirements of the lessee upon expiration of the lease in terms of closure and/or removal of the UST.

Responsible Party Search Guide for the Underground Storage Tank Program