I. REGISTERED UNDERGROUND STORAGE TANKS

The Resource Conservation and Recovery Act (RCRA) of 1976 required that underground storage tanks (USTs) greater than 110 gallons in volume used to dispense commercial motor fuel (certain farm and residential exceptions) be registered. The registration procedure is administered through the Department of Environmental Quality in the State of Michigan. RCRA further mandated that existing single wall tanks be upgraded to certain standards by December 22, 1998.

Tanks that were not upgraded were required to be removed from the ground or in certain instances closed in place. After December 22, 1998 the Michigan Department of Environmental Quality (MDEQ) did allow operators to pump down the substandard USTs through normal sales until they were essentially empty. The tanks were then considered temporarily closed. These USTs were then either to be removed or brought into compliance with current standards. The overwhelming majority of these temporarily abandoned USTs have been upgraded or removed.

Operators of USTs that were still out of compliance after December 22, 1999 no longer have the option to comply by upgrading to current standards. The USTs must be removed or on approval closed in place.

Even though the flurry of UST removals that has occurred over the last ten years appears to be over, business changes may result in compliant systems being removed from service or being remodeled. MDEQ Storage Tank Division (STD) regulations still apply to these USTs and their associated piping/dispenser systems. Changes in, or removal of the systems still require an environmental site assessment with sampling be performed.

Occasionally during excavation a UST is discovered where one was not thought to exist. If the UST has been determined to have been used for commercial purposes, it must be registered with the MDEQ STD and the $100 per UST registration fee paid. The operator is required to comply with site assessment and analytical sampling regulations.

UST Removal Project Management/Removal/Remediation

Owners/operators are still required to give 30 days written notice to the MDEQ of their intent to remove, close or change the use of the UST. This requirement also applies to the associated piping and pumps.

The question is frequently asked, "Can I just fill the UST with water or sand and leave it in the ground"? The National Fire Code requires that all permanently out-of-use tanks be removed from the ground unless removal poses a risk to a surrounding structure. If the UST cannot be removed, it must be entered, cleaned, and filled with an inert material such as clean sand or concrete. It should not be filled with water since the water may eventually cause the tank to rust releasing water tainted with residual fuel to the environment. Closure in place does not remove the owner/operator's obligation to perform a site assessment or collect analytical samples. Generally a closure in place is more costly to perform than a removal.

Once the USTs have been removed and the piping has been emptied and purged, samples must be collected by qualified personnel using generally accepted sampling procedures. The MDEQ specifies the number of, sampling suite, and where these samples are to be collected. The site assessment must be completed and submitted to the STD within 45 days of the samples being taken.

If during the removal process you find visual or olfactory evidence of contamination in the UST excavation or along the piping runs, of if your analytical results show contamination, you must report a confirmed release to the STD within 24 hours of discovery. The key to remember is that any positive analytical result is evidence of a release even though it is present at a concentration below levels requiring cleanup.

If a release is discovered, the STD will require that an investigation be performed to determine the vertical and lateral extent of the contaminant impact in the soil and, if affected, the groundwater. The sampling range will be expanded over what is required for a clean site closure. The work will have to be performed by a consultant that is recognized as "qualified" by the MDEQ. EC&S and its personnel are recognized by MDEQ to perform this work. The MDEQ imposes deadlines for the various phases of investigation as well as dictating the style and content of the reports to be submitted.

In 1995 Michigan became one of the first states to adopt the ASTM risk-based corrective action (RBCA) approach for site closure. Under this method sites could be closed with contamination in place as long as the risk analysis indicates that the remaining contamination poses no threat to human health and the environment.

Under the RBCA approach sites can now be closed via title restriction without costly cleanups. The owner/operator must still weigh his or her own needs such as, "Will a restricted closure adversely impact the future sale price of the property?" There may be obligations imposed to prevent contact to unknowing third parties or prevent the spread of the contaminant plume.

II. HOME HEATING OIL TANKS

PROJECT MANAGEMENT

Many homes, especially in northern Michigan have relied on fuel oil as a source of heat during the winter months. Typically this fuel has been stored in aboveground tanks (AGTs), underground storage tanks (USTs) or in basement tanks. Storing fuel in underground tanks has become an environmental concern because the UST is more susceptible to corrosion. Since the UST cannot readily be inspected, slow leaks can go undetected for a long time causing significant environmental damage.

Because this damage can be costly to remediate, many lending institutions are unwilling to accept any liability associated with USTs. The lenders usually require that that the USTs be removed or that an environmental assessment, including analytical sampling, be performed before any loan is approved.

REMOVAL

The UST is usually located close to the house in a flower bed or landscaped area, is 300 or 500 gallons in size and buried 2' or less below ground. The tank can generally be excavated by hand and winched out of the pit via a pickup truck minimizing damage to the lawn or surrounding landscaping. The whole procedure including filling to grade with clean soil usually takes 1/2 to 3/4 of a day. There are several advantages to the removal method:

• The UST can be thoroughly inspected for evidence of overfill, staining, or holes.
  
  
• The entire excavation can be examined for evidence of a fuel oil release
  
  
• The seller's potential liability for continued future use of the UST will end if it has been removed.

In the situation where the home is not changing to natural gas or propane, the UST will have to be replaced. The best option is to replace it with a low profile skid-mounted AGT. The skid-mounted tank is more stable and less likely to tip over that the oval tank mounted on legs.

The cost of removal is roughly equivalent to the cost and installation of the new tank. Generally the seller pays for the UST removal since they have had the use of the tank and are responsible for any releases associated with it. The buyer usually pays for the new AGT and its installation since they will have the benefit of its use for years to come.

ENVIRONMENTAL ASSESSMENT

Some lending institutions will not require the removal of the UST and will grant loan approval based on the results of an environmental assessment. The assessment generally consists of advancing hand-augered borings to the base of the UST at two or three locations. The soil is evaluated for possible petroleum impact during the augering process. Samples are collected at the base of the UST and submitted to a laboratory for petroleum analysis. The advantage of the assessment method is that it costs less than the removal method. There are several disadvantages to the assessment method. They are:

• The assessment is base on a prescribed number of borings and is not as thorough as the examination that can be performed during the removal process. Many USTs, especially in northern Michigan are placed in highly porous and permeable soils such as lose sand. Results of borings placed at each end of the UST may indicate that the tank has not leaked when it is actually leaking from a hole at the middle of the tank. When USTs are located in such soils at lakeside residences, they are close to the water table where an undetected release may require a costly and lengthy remediation.
  
  
• Many of the USTs were installed when the home was originally built often twenty to thirty years ago. Experience indicates that the useful average leak-free life span of a home heating oil tank to be between 15 and 20 years. When the buyer accepts the UST, it may already be close to failure.
  
  
• Even with a site assessment, the seller may be considered liable by the buyer at a future date if a release is detected.

The best approach is to have the UST removed prior to listing or early in the listing process so that environmental concerns can be addressed before a buyer is found and a closing date is established. The asking price of the property can be adjusted to reflect the UST removal and new tank installation. The presence of the new AGT and clean UST closure can then be used as a positive selling point. There is a tendency however, to make the UST removal a bargaining chip in the contract process. If a release is detected immediately prior to closing, the deal may unnecessarily fall through because there is not sufficient time to remediate it. Many of the releases are small and can be efficiently remediated if sufficient time is available.

If a release from a home heating oil tank is documented, the homeowner may not be burdened with the entire cost to remediate. These costs may be covered by the homeowner's insurance policy if it does not contain an environmental exclusion clause. The liability section of the policy that deals with damage to a third party generally provides coverage. The State of Michigan is usually the threatened third party since groundwater is considered a state resource and not the property owner's. Similarly if there a threat to or the plume has moved to an adjoining property, a third party has been damaged. Significant Michigan case law exists on this issue.

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