RULES AND REGULATIONS
INSURANCE DEPARTMENT
[25 PA. CODE CHS. 971, 973, 975 AND 977]
Underground Storage Tank Indemnification Fund
[31 Pa.B. 6633] The Underground Storage Tank Indemnification Board (Board) adopts Chapter 977 (relating to underground storage tank indemnification fund) (Fund) and deletes Chapters 971, 973 and 975 to read as set forth in Annex A.
Statutory Authority
The final-form regulations are adopted under the authority of the Storage Tank and Spill Prevention Act (act) (35 P. S. §§ 6021.101--6021.2104).
Comments and Response
Notice of proposed rulemaking was published at 30 Pa.B. 6593 (December 23, 2000) with a 30-day comment period. During the 30-day comment period, comments were received from Earthtech, Inc., Professional Enterprises, Inc. and Associated Petroleum Industries of Pennsylvania (APIP). During its regulatory review, the Independent Regulatory Review Commission (IRRC) also submitted comments to the Board. The following is a response to those comments.
Comments from the Public
1. APIP questioned, in § 977.61(a) (relating to dispute procedures), whether 15 days is enough time to analyze the Executive Director's decision, draft another appeal and send it to the Board.
The Board can understand this concern and has no objection to increasing the allotted time to file an appeal to 35 days. Changes to § 977.61(a) reflect this revised 35-day period.
2. Earthtech believed that the regulations will cause qualified individuals and companies to allow their certifications to expire and that the requirements of the regulations are excessive for companies who already have errors and omissions (E&O) insurance.
Since the proposed rulemaking was published at 30 Pa.B. 6593, the Board has reduced the certified company fee from $2,000 to $1,000, made the certification fees $0, and decreased the activity fees, thereby significantly reducing the fee requirements in the regulations. These new fees were established in accordance with actuarial review and input, and are very reasonable for the amount of coverage provided by the Fund.
3. Professional Enterprises Inc. expressed concern with respect to the ''minimum'' $2,000 certified company fee in § 977.19 (relating to certified company fees).
As mentioned previously, the Board has reduced the certified company fee from $2,000 to $1,000, thereby effectively addressing the concerns in this regard.
IRRC Comments
During its review, IRRC expressed a number of concerns. Those concerns are addressed as follows.
1. Method of fee assessment. Statutory authority; economic impact; reasonableness; clarity.
The main concern expressed by IRRC was whether the Board had statutory authority to set a maximum fee and then adjust the fees outside of the regulatory promulgation process by publishing a notice in the Pennsylvania Bulletin. IRRC believes that this proposed process does not provide the opportunity for legislative or public input on the fee reductions, or on the underlying required actuarial study that is the basis for the fees.
The Board has eliminated the concept of ''maximum fees'' in the regulations. Fees will now be established by regulation, and any changes to these fees in the future will be accomplished through the appropriate regulatory process.
2. Section 977.4. Definitions.--Clarity.
IRRC had some concerns with respect to the definition section. IRRC stated that the definitions of ''operator,'' ''owner,'' ''regulated substance,'' ''release'' and ''UST'' are identical to the act and therefore the statutory definition of these terms would be sufficient in the chapter.
The Board reviewed the definitions and noticed that a few (''operator,'' ''owner'' and ''release'') reference the term ''HOT.'' This reference is not in the act, and therefore the definition should be provided in its entirety rather than referencing the definition in the act. The term ''UST'' is not in the act, although it does appear in § 245.1 (relating to definitions). The Board considered defining the term by referencing § 245.1, but was concerned that many of the parties affected by the regulations would not have access to that publication. Additionally, the cost for a hard copy of 25 Pa. Code (relating to environmental protection), which consists of 9 volumes, is $284 for an initial subscription and $222.50 for the annual renewal. Accordingly, cross references have been added for clarity, but otherwise the Board has kept the definition of ''UST'' as it appeared in the proposed rulemaking. The Board also considered replacing the definition of ''regulated substance'' with the statutory reference. Although cross references have been added, upon further review, the Board is requesting that the term ''regulated substance'' be printed as proposed rather than having the parties affected by the regulations spend additional time and money researching other reference materials.
3. IRRC questioned whether there is a certification that is not in 25 Pa. Code with respect to the definition of ''certified company.'' The Board is not aware of any certification other than those in 25 Pa. Code; therefore, reference to ''this title or'' has been removed from the definition of ''certified company.''
4. IRRC commented that a reference to the Department of Environmental Protection's (DEP) certification regulations would add clarity to the definition of ''certified tank installer.''
The Board agrees and has added a reference to the DEP's regulations.
5. IRRC had a concern that the term ''corrective action cost'' uses the phrases ''corrective action as defined in the act'' and ''as specified in the regulations promulgated by the Department.'' IRRC asked for specific references to the act and the DEP's regulations.
The Board agrees and has added the appropriate references to the act and the DEP's regulations.
6. IRRC asked the Board to clarify what regulation the phrase ''determined by the DEP by regulation'' pertained to in subparagraph (i)(C) of the definition of ''regulated substance.''
This phrase pertains to regulations that the DEP may promulgate, if necessary, in the future, but they do not exist at this time. Accordingly, the Board has removed this term to avoid any confusion.
7. IRRC also asked the Board to cite the appropriate Federal regulations that were referred to in subparagraph (i) of the definition of the term ''release.''
The Board has cited the appropriate Federal regulations.
8. IRRC also questioned what other policies or regulations were being referred to in ''Other tanks excluded by policy or regulation promulgated under the act'' in subparagraph (ii)(S) of ''UST--underground storage tank.''
The Board used the definition for ''UST--underground storage tank'' as found in § 245.1. Because there are no other tanks excluded by policy or regulation under the act, this phrase has been deleted for clarity.
9. IRRC questioned why ''waste oil'' is defined as ''an accumulation of oil from several sources,'' and whether ''waste oil'' could be from one source. Also, under subparagraph (ii), IRRC wanted to know what is meant by ''the reaction of incompatible oils that have been mixed.''
The Board agrees that an accumulation of oil could be from one source. Therefore, the definition of waste oil now reads, ''An accumulation of oils from one or more sources [. . .]'' Additionally, to clarify the sentence, ''The reaction of incompatible oils that have been mixed [. . .]'', the sentence now reads, ''Incompatible oils that have been mixed [. . .]''.
Section 977.12. Owner and operator fees.--Clarity.
10. IRRC noted that § 977.12(d) (relating to owner and operator fees) states that the Board may charge a fee that ''is calculated in accordance with section 705(d)(2) of the act.'' However, section 705(d)(2) of the act (35 P. S. § 6021.705(d)(2)) does not contain a formula for a calculation. It states that the ''capacity fee shall be set on the same actuarial basis'' as the other fees. Hence, IRRC contends that the word ''calculated'' should be removed from this subsection.
The Board agrees and has revised the section to use the word ''established.'' In accordance with this comment, the Board has also replaced the word ''calculated'' in § 977.18(b) (relating to capacity fee payment procedure) with the word ''established.''
Subsection (e). Changes to applicability of fees to particular substances.
11. IRRC commented that this subsection allows ''any changes regarding which substances are assessed a tank fee'' to be done by publication in the Pennsylvania Bulletin. In this regard, IRRC had a question and a comment. First, IRRC asked whether this subsection is intended to refer to the defined term ''regulated substances.'' If so, IRRC contends that the word ''regulated'' should be added to subsection (e). Secondly, IRRC commented that the regulation relies on the defined term ''regulated substances'' to establish fees. For example, § 977.12(b)(2) assesses ''a gallon fee on all regulated substances. . . .'' IRRC pointed out that publishing changes in the Pennsylvania Bulletin will not amend the regulation. The result will be a definition in the regulations and a different definition published in the Pennsylvania Bulletin. Therefore, IRRC noted that subsection (e) should be deleted.
The Board agrees that § 977.18(e) is not needed and therefore has deleted it from the regulations. This deletion also renders moot the question about the defined term ''regulated substance'' mentioned previously.
Section 977.13. Tank fee payment procedure.--Reasonableness; Clarity.
12. IRRC notes that subsection (b) states ''the tank fee shall be calculated in § 977.12.'' However, § 977.12 does not contain a formula for calculating fees. Section 977.12 states that the Board may charge and modify fees, not to exceed an established maximum and based on an annual actuarial review. IRRC contends that the word ''calculated'' should be removed from this subsection.
The Board agrees and has removed ''calculated'' and replaced it with ''established.''
Section 977.14. Gallon fee payment procedures.--Statutory authority; Reasonableness; Clarity.
13. IRRC had three questions with respect to § 977.14. They are as follows:
First, section 705(e) of the act (35 P. S. § 6021.705(e)) states that owners and operators are required to pay the fees to the Fund. Section 977.14 requires distributors to collect the gallon fee. IRRC questioned the statutory authority for ''requiring'' distributors to collect the gallon fee.
The gallon fee payment procedures that require distributors to collect the gallon fees are found in the current Fund regulations in § 973.4 (relating to gallon fee payment procedure), which the Board promulgated under its statutory authority found in section 705(f) of the act (relating to additional powers). Section 705(f) of the act provides in pertinent part, ''To make bylaws for the management and regulation of its affairs and to adopt, amend and repeal rules, regulations and guidelines governing the administrative procedures and business of the board and operation and administration of the fund.'' See section 705(f)(2) of the act.
Second, IRRC stated that subsection (e) applies to UST owners or operators who pay their fees directly to the Fund and not through distributors. The other subsections before and after subsection (e) establish procedures and requirements for distributors to collect the gallon fee. Hence, IRRC suggested that subsection (e) be placed before subsection (h).
The Board agrees and has placed the requirements found in subsection (e), before subsection (h).
Third, IRRC stated that subsection (h) limits ''gallon fees'' to no more than $5,000 per tank in 1 year. Section 705(d)(3) of the act uses the word ''fees,'' not ''per gallon fees.'' Hence, IRRC suggested that the maximum of $5,000 should apply to all fees paid by owners and operators, not only to the per gallon fee described in this section.
The Board agrees that the reference to ''per gallon fees'' is incorrect and has deleted it from this section.
Section 977.17. Security for payment of gallon fees.--Reasonableness; Clarity.
14. IRRC stated that subsection (a) states that the security shall be ''calculated by multiplying the gallon fee in § 977.12(b)(ii) by the number of gallons of regulated substance. . .'' There were two concerns.
First, IRRC noted a typographical error. IRRC stated that there is no § 977.12(b)(ii), and questioned whether the reference should be § 977.12(b)(2).
The Board agrees that this was a typographical error and has changed it accordingly.
Second, IRRC stated that even if the reference to § 977.12(b)(2) is correct, the reference is still unclear. Section 977.12(b)(2) states that the gallon fee will not exceed a maximum of $.02 per gallon. It does not set the fee level. It states that fee levels will be published in the Pennsylvania Bulletin under § 977.12(a). Since the fee is subject to change, IRRC questioned how a tank owner will determine the amount required for the security. IRRC suggested that the phrase ''the gallon fee as set forth in § 977.12(b)(ii)'' should be replaced with ''the gallon fee as established under § 977.12(a) and (b)(2).''
The Board agrees with this comment and has changed this section to read ''[. . .] the gallon fee as established under § 977.12(a) and (b)(2) [. . .]'', as requested by IRRC.
Section 977.19. Certified company fees.--Fiscal impact; Reasonableness; Clarity.
15. IRRC had three concerns. They are as follows:
First, subsection (b) states that certified companies may be required to pay a fee not to exceed a maximum of $2,000 per year. There is a concern with the fiscal impact of the maximum of $2,000 on smaller companies that perform only 12 to 15 installations in a 3-year period. IRRC noted that one commentator (see previous comment from Professional Enterprises) suggested that the fee should be ''per tank'' or linked to the number of tank installations performed by the company. IRRC suggested that the Board should examine the fiscal impact of the fee level on smaller businesses.
As previously explained, since the proposed version of this section was published, in accordance with actuarial review and input, the Board has reduced the certified company fee to $1,000, set the certification fees at $0, and reduced the activity fees as well.
Second, IRRC points out that subsection (c) uses the acronyms, ''UMX,'' ''UMR,'' ''UTT'' and ''TL'' as used by the DEP. IRRC suggested clarity would be improved by adding a cross reference to the definitions in the DEP's regulations.
The Board agrees and has made the appropriate cross references.
Third, subsection (d) requires an activity fee per tank for all activities on a UST or heating oil tank (HOT). The required fee and an activity fee form for each activity must be submitted to the Fund 30 days before the start of the activity. Similar language also appears in § 977.20(b) (relating to certified company fee, certification fee and activity fee payment procedures). IRRC questioned where and how can UST or HOT owners obtain copies of the activity fee forms. Additionally, the requirement to submit the fee and forms 30 days before any activity will cause an unwanted delay if immediate action is required to correct problems with a storage tank system. Accordingly, IRRC further questioned what steps UST or HOT owners can pursue if immediate action is necessary.
The Board agrees that the 30-day rule would not be feasible in an emergency situation where immediate action is necessary. Therefore, the Board has added ''[. . .] except in an emergency [. . .]'' to this section to allow for immediate action. Forms are now provided by DEP for the activity, and the regulation now denotes this change.
Section 977.31. Eligibility requirements.--Clarity.
16. IRRC had a concern with clarity in this section. This section states ''. . . to be eligible for Fund coverage, the participant shall meet the following eligibility requirements as set forth in section 706 of the act.'' However, IRRC noted that the list of requirements differs from the language in section 706 of the act (35 P. S. § 6021.706). IRRC pointed out that although the Board has the authority to clarify and establish additional requirements, the phrase should be changed to ''. . .under section 706 of the act, the participant shall meet the following eligibility requirements . . .''
IRRC also pointed out that the first paragraph is designated as subsection (a). This designation could be deleted since there is no subsection (b).
The Board agrees and has made these recommended changes. The language in the regulation is now as consistent as possible with the language in the act.
Section 977.33. Fund coverage and exclusions.--Clarity.
17. IRRC suggested that a reference to the limits referred to in paragraphs (1) and (2) of subsection (a) should be added.
The Board agrees and has made the recommended clarifications.
Section 977.37. Priority of payment.--Clarity.
18. IRRC had a concern with respect to clarity in this section, because the title of the section is ''Priority of payment,'' but the first sentence uses the phrase ''prioritize reimbursements.'' Section 705(b) of the act uses the phrase ''prioritizing claims,'' and therefore IRRC contended that the word ''claims'' should be used consistently.
The Board agrees and has renamed the section ''Priority of claims.'' Also changed was the first line so that the phrase ''prioritize reimbursements'' now reads ''prioritize claims.''
Section 977.61. Dispute of procedures.--Reasonableness.
19. IRRC was concerned because subsection (a) allows 35 days to file an appeal of a Fund decision to the Executive Director, while subsection (b) only allows 15 days to appeal the Executive Director's decision to the Board. IRRC questioned whether 15 days is sufficient time to receive and review a decision of the Executive Director, and prepare an appeal of that decision to the Board.
The Board agrees and has made both appeal periods 35 days, as noted earlier.
Other changes
Some other minor changes appear in the final-form regulations from the proposed format. These changes were to make the regulations accurately reflect the act. None of the changes were substantive therefore additional comments and concerns are not expected.
In § 977.4, it was determined that the DEP does not require certification to perform activities on a HOT. Accordingly, the ''or a HOT'' language in the definition of ''certified tank installer'' is being changed to ''and who may also perform activities on a HOT.''
In § 977.31, the term ''or HOT'' in subsection (a)(3) has been removed, as a HOT is not required to be registered under the act.
In § 977.33(a)(3) states that ''A certified installer is subject to one deductible. . .''. It should state ''A certified company is subject to one deductible. . .''. The company is the participant and therefore the installer is not subject to the deductibles.
Affected Parties
A participant or a distributor transacting business in this Commonwealth is affected by this rulemaking. There is a fiscal impact as a result of this rulemaking relating to fees. However, this rulemaking will have minimal impact on owners and operators as they have previously been paying fees and receiving benefits.
Fiscal Impact
State Government
State government will not be affected by this rulemaking since the program is funded entirely by fees paid by participants. No tax dollars are used to support this program. The fees paid by participants cover both claims and administrative expenses.
General Public
The general public may be minimally affected to the extent that fees are assessed, since the general public is a consumer of goods and services provided by owners and operators of a UST or a HOT who utilize the services of certified companies. Theoretically, any fees imposed by this rulemaking may add additional costs which in turn may lead to higher prices to consumers. However, the competitive market will likely serve as a buffer to any increase to consumers.
Political Subdivisions
Political subdivisions are directly affected by the implementation of this rulemaking since they constitute a portion of the owner, operator and certified company community. The political subdivision may pay fees based upon the types of product stored in their underground storage tanks and the cost of necessary services supplied by certified companies to keep their tank systems in compliance with Federal and State mandates. However, the political subdivisions receive benefits from the fees. If a release occurs, the political subdivision may receive up to $1 million to clean the environment and minimize adverse impact to third parties.
Private Sector
Owners and operators of a UST or a HOT, as well as owners of certified companies, are directly affected by the implementation of these regulations since they constitute a portion of the regulated community. The private sector may pay fees based upon the types of product stored in underground storage tanks and the cost of necessary services supplied by certified companies. To offset this increase in costs the private sector shall receive up to $1 million in coverage in the event of a release.
Paperwork
This rulemaking will affect all UST owners and operators and certified companies in this Commonwealth. There will be additional paperwork relating to payment of fees and claims made by a participant. However, the Fund is developing electronic commerce capabilities to minimize paperwork burdens. A participant can choose which method (hard copy or electronic commerce) best meets the participant's individual business needs for paying fees, reviewing transactions and facility information and communicating with the Fund.
Effectiveness/Sunset Date
This rulemaking becomes effective January 1, 2002. No sunset date has been assigned.
Contact person
Any questions regarding these final-form regulations should be directed to Peter J. Salvatore, Regulatory Coordinator, Special Projects Office, 1326 Strawberry Square, Harrisburg, PA 17120, (717) 787-4429. In addition, questions may be e-mailed to psalvatore@state. pa.us or faxed to (717) 772-1969.
Regulatory review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on February 9, 2001, the agency submitted a copy of these final-form regulations to IRRC and to the Chairpersons of the House Insurance Committee and the Senate Banking and Insurance Committee. In addition to the submitted final-form regulations, the agency has provided IRRC and the Committees with a copy of a detailed Regulatory Analysis Form prepared by the agency in compliance with Executive Order 1996-1, ''Regulatory Review and Promulgation.'' A copy of that material is available to the public upon request.
In preparing these final-form regulations, the agency considered all comments received from IRRC, the Committees and the public. These final-form regulations were deemed approved by the House and Senate Committees on October 17, 2001. In accordance with section 5a(d) of the Regulatory Review Act (71 P. S. § 745.5a(d)), IRRC met on October 18, 2001, and approved the final-form regulations in accordance with section 5a(e) of the Regulatory Review Act (71 P. S. § 745.5a(e)).
Findings
The Insurance Commissioner and the Chairperson of the Board find that:
(1) Public notice of intention to adopt this rulemaking as amended by this order has been given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No240) (45 P. S. §§ 1201 and 1202) and the regulations thereunder, 1 Pa. Code §§ 7.1 and 7.2.
(2) The adoption of this rulemaking in the manner provided in this order is necessary and appropriate for the administration and enforcement of the authorizing statutes.
Order
The Insurance Commissioner and the Chairperson of the Board, acting under the authorizing statutes, order that:
(a) The regulations of the Board, 25 Pa. Code Part VIII, are amended by deleting §§ 971.1--971.4, 973.1--973.12, 975.1--975.6; and by adding §§ 977.1--977.4, 977.11--977.24, 977.31--977.40, 977.51--977.54 and 977.61, to read as set forth in Annex A.
(b) The Insurance Commissioner and Chairperson of the Board shall submit this order and Annex A to the Office of General Counsel and Office of Attorney General for approval as to form and legality as required by law.
(c) The Insurance Commissioner and Chairperson of the Board shall certify this order and Annex A and deposit them with the Legislative Reference Bureau as required by law.
(d) The order shall take effect January 1, 2002.
M. DIANE KOKEN,
Insurance CommissionerE. BRUCE SHELLER,
Chair,
Underground Storage Tank
Indemnification Board(Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 31 Pa.B. 6120 (November, 3, 2001).)
Fiscal Note: Fiscal Note 11-179 remains valid for the final adoption of the subject regulations.
Annex A
TITLE 25. ENVIRONMENTAL PROTECTION
PART VIII. UNDERGROUND STORAGE TANK INDEMNIFICATION BOARD
CHAPTER 971. (Reserved) §§ 971.1--971.4. (Reserved).
CHAPTER 973. (Reserved) §§ 973.1--973.12. (Reserved).
CHAPTER 975. (Reserved) §§ 975.1--975.6. (Reserved).
CHAPTER 977. UNDERGROUND STORAGE TANK INDEMNIFICATION FUND
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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