Chapter 979 Oregon Laws 1999

Session Law

AN ACT

HB 3107

Relating to heating oil tanks; creating new provisions; amending ORS 466.706, 466.710, 466.750 and 466.760; repealing section 9, chapter 880, Oregon Laws 1999 (Enrolled Senate Bill 542); appropriating money; limiting expenditures; and declaring an emergency.

Be It Enacted by the People of the State of Oregon:

SECTION 1. Sections 2 to 7 of this 1999 Act are added to and made a part of ORS 466.706 to 466.845.

SECTION 2. (1) The Environmental Quality Commission shall adopt a heating oil tank program to regulate the decommissioning of heating oil tanks and the corrective action of soil contamination resulting from the release of oil from heating oil tanks.

(2) The program adopted under subsection (1) of this section shall include:

(a) A procedure to license persons who demonstrate, to the satisfaction of the Department of Environmental Quality, the ability to provide heating oil tank services.

(b) An educational pamphlet on the proper procedure to decommission heating oil tanks.

(c) A certification program that allows the department to certify the voluntary decommissioning of heating oil tanks or to approve a corrective action that is certified to be complete by a person licensed under section 4 of this 1999 Act to perform such corrective action.

SECTION 3. No person shall perform or offer to perform heating oil tank services without first obtaining the license required under section 4 of this 1999 Act.

SECTION 4. (1) In order to obtain a license under the program established pursuant to section 2 of this 1999 Act, a person shall provide to the Department of Environmental Quality:

(a) A certificate of insurance in an amount adequate to pay for any additional corrective action necessary as a result of an improper or inadequate decommissioning or corrective action approved by the department.

(b) A summary of all projects completed since the applicant last applied for a license, including the costs of those projects.

(c) For each individual license, a demonstration of ability, which may consist of written or field examinations.

(d) Any other information deemed necessary by the department.

(e) An annual license fee. The fee shall be:

(A) $750 for the business, including but not limited to corporations, limited partnerships and sole proprietorships, engaged in the performance of heating oil tank services; and

(B) $75 for each individual employed by the business and charged with the supervisory responsibility to direct and oversee the performance of tank services at a facility.

(2) The department shall maintain a registry of all persons licensed under this section, including a summary of the project information required in the application.

(3) In accordance with ORS 183.310 to 183.550, the department may revoke a license of any person offering heating oil tank services who commits fraud or deceit in obtaining a license or who demonstrates negligence or incompetence in performing the heating oil tank services.

SECTION 5. When the use of an underground heating oil tank is terminated because the tank is replaced or an oil-heated building or residence is converted to a different primary source of heat:

(1) The property owner shall ensure that the underground heating oil tank has been emptied of oil, which shall be appropriately managed.

(2) The vent line shall be left in place if the tank is not decommissioned.

(3) The person installing the new heating equipment shall advise the property owner that it is illegal to disconnect a heating oil tank without pumping out the tank and that there are Department of Environmental Quality recommended practices for decommissioning heating oil tanks.

SECTION 6. (1) In establishing the requirements to certify a voluntary decommissioning or to approve corrective action on the basis of a certification received from a heating oil tank service provider, the Department of Environmental Quality shall include:

(a) A process for conducting inspections of sites where a heating oil tank has been decommissioned or where a heating oil tank service provider certifies corrective action is complete;

(b) The specific information that a person must submit to certify that corrective action is complete;

(c) Provisions that allow the department to reject certification and require additional corrective action prior to approval by the department that the certification is complete and complies with the standard set forth in ORS 465.315; and

(d) Provisions to require additional information about a decommissioning before certifying the decommissioning.

(2) Any person requesting certification of a heating oil tank decommissioning or corrective action under subsection (1) of this section shall file a request with the department. The request shall be accompanied by a filing fee of $50.

SECTION 7. The Environmental Quality Commission shall adopt rules necessary to carry out sections 2 to 6 of this 1999 Act. The rules shall include but need not be limited to:

(1) A voluntary process for certifying the decommissioning of an abandoned underground heating oil tank;

(2) Information required to be submitted by a licensed heating oil tank service provider or homeowner to allow the Department of Environmental Quality to approve a heating oil tank corrective action;

(3) Requirements for the approval of decommissioning;

(4) Standards to define adequate tank decommissioning; and

(5) Requirements for the approval by the Department of Environmental Quality of decommissioning of underground heating oil tanks that were decommissioned before the effective date of this 1999 Act.

SECTION 8. ORS 466.706 is amended to read:

466.706. As used in ORS 466.706 to 466.845 and 466.994:

(1) "Commercial lending institution" means any financial institution or trust company, as those terms are defined in ORS 706.008, or any cooperative financial institution regulated by an agency of the Federal Government or this state.

(2) "Commission" means the Environmental Quality Commission.

(3) "Corrective action" means remedial action taken to protect the present or future public health, safety, welfare or the environment from a release of a regulated substance. "Corrective action" includes but is not limited to:

(a) The prevention, elimination, removal, abatement, control, minimization, investigation, assessment, evaluation or monitoring of a hazard or potential hazard or threat, including migration of a regulated substance; or

(b) Transportation, storage, treatment or disposal of a regulated substance or contaminated material from a site.

(4) "Decommission" means to remove from operation an underground storage tank, including temporary or permanent removal from operation, abandonment in place or removal from the ground.

(5) "Department" means the Department of Environmental Quality.

(6) "Facility" means any one or combination of underground storage tanks and underground pipes connected to the tanks, used to contain an accumulation of motor fuel, including gasoline or diesel oil, that are located at one contiguous geographical site.

(7) "Fee" means a fixed charge or service charge.

(8) "Guarantor" means any person other than the permittee who by guaranty, insurance, letter of credit or other acceptable device, provides financial responsibility for an underground storage tank as required under ORS 466.815.

(9) "Heating oil tank" has the meaning given that term in ORS 469.228.

(10) "Heating oil tank service" means the decommissioning of a heating oil tank or the performance of corrective action necessary as a result of a release of oil from a heating oil tank.

[(10)] (11) "Investigation" means monitoring, surveying, testing or other information gathering.

[(11)] (12) "Local unit of government" means a city, county, special service district, metropolitan service district created under ORS chapter 268 or a political subdivision of the state.

[(12)] (13) "Oil" means gasoline, crude oil, fuel oil, diesel oil, lubricating oil, sludge, oil refuse and any other petroleum related product or fraction thereof that is liquid at a temperature of 60 degrees Fahrenheit and a pressure of 14.7 pounds per square inch absolute.

[(13)] (14) "Owner" means the owner of an underground storage tank.

[(14)] (15) "Permittee" means the owner or a person designated by the owner who is in control of or has responsibility for the daily operation or maintenance of an underground storage tank under a permit issued pursuant to ORS 466.760.

[(15)] (16) "Person" means an individual, trust, firm, joint stock company, corporation, partnership, joint venture, consortium, association, state, municipality, commission, political subdivision of a state or any interstate body, any commercial entity or the Federal Government or any agency of the Federal Government.

[(16)] (17) "Regulated substance" means:

(a) Any substance listed by the United States Environmental Protection Agency in 40 CFR Table 302.4 pursuant to the Comprehensive Environmental Response, Compensation and Liability Act of 1980 as amended (P.L. 96-510 and P.L. 98-80), but not including any substance regulated as a hazardous waste under 40 CFR Part 261 and OAR 340 Division 101;

(b) Oil; or

[(17)] (18) "Release" means the discharge, deposit, injection, dumping, spilling, emitting, leaking or placing of a regulated substance from an underground storage tank into the air or into or on land or the waters of the state, other than as authorized by a permit issued under state or federal law.

[(18)] (19) "Stage I vapor collection system" means a system where gasoline vapors are forced from a tank into a vapor-tight holding system or vapor control system through direct displacement by the gasoline being loaded.

[(19)] (20) "Stage II vapor collection system" means a system where at least 90 percent, by weight, of the gasoline vapors that are displaced or drawn from a vehicle fuel tank during refueling are transferred to a vapor-tight holding system or vapor control system.

[(20)] (21) "Underground storage tank" means any one or combination of tanks and underground pipes connected to the tank, used to contain an accumulation of a regulated substance, and the volume of which, including the volume of the underground pipes connected to the tank, is 10 percent or more beneath the surface of the ground.

[(21)] (22) "Waters of the state" has the meaning given that term in ORS 468B.005.

SECTION 9. ORS 466.710 is amended to read:

466.710. ORS 466.706 to 466.845 and 466.994 shall not apply to a:

(1) Farm or residential tank of 1,100 gallons or less capacity used for storing motor fuel for noncommercial purposes.

(2) Except as provided in sections 2 to 7 of this 1999 Act, tank used for storing heating oil for consumptive use on the premises where stored.

(3) Septic tank.

(4) Pipeline facility including gathering lines regulated:

(a) Under the Natural Gas Pipeline Safety Act of 1968 (49 U.S.C. 1671);

(b) Under the Hazardous Liquid Pipeline Safety Act of 1979 (49 U.S.C. 2001); or

(c) As an intrastate pipeline facility under state laws comparable to the provisions of law referred to in paragraph (a) or (b) of this subsection.

(5) Surface impoundment, pit, pond or lagoon.

(6) Storm water or waste water collection system.

(7) Flow-through process tank.

(8) Liquid trap or associated gathering lines directly related to oil or gas production and gathering operations.

(9) Storage tank situated in an underground area if the storage tank is situated upon or above the surface of a floor. As used in this subsection, "underground area" includes but is not limited to a basement, cellar, mine, drift, shaft or tunnel.

(10) Pipe connected to any tank described in subsections (1) to (8) of this section.

SECTION 10. ORS 466.750 is amended to read:

466.750. (1) In order to safeguard the public health, safety and welfare, to protect the state's natural and biological systems, to protect the public from unlawful underground tank installation and retrofit procedures, to assure the highest degree of leak prevention from underground storage tanks and to insure the appropriate cleanup of oil spills and releases, the Environmental Quality Commission may adopt a program to regulate persons providing underground storage tank installation and removal, retrofit, testing, inspection and remedial action services.

[(2) As part of the program established under subsection (1) of this section, the commission also may regulate persons who provide remedial action on heating oil tanks covered under ORS 469.228 to 469.298 and 469.991. As used in this section, "remedial action" has the meaning given that term in ORS 469.228.]

[(3)] (2) The program established under subsection (1) of this section may include a procedure to license persons who demonstrate, to the satisfaction of the Department of Environmental Quality, the ability to service underground storage tanks [and heating oil tanks]. This demonstration of ability may consist of written or field examinations. The commission may establish different types of licenses for different types of demonstrations, including but not limited to:

(a) Installation, removal, retrofit and inspection of underground storage tanks;

(b) Tank integrity testing;

(d) Cleanup of soil contamination resulting from spills or releases of oil from underground storage tanks[; and]

[(e) Cleanup of soil contamination resulting from the release of heating oil from heating oil tanks under ORS 469.228 to 469.298 and 469.991].

[(4)] (3) The program adopted under subsection (1) of this section may allow the department after opportunity for hearing under the provisions of ORS 183.310 to 183.550, to revoke a license of any person offering underground storage tank [or heating oil tank] services who commits fraud or deceit in obtaining a license or who demonstrates negligence or incompetence in performing underground tank services.

[(5)] (4) The program adopted under subsection (1) of this section shall:

(a) Provide that no person may offer to perform or perform services for which a license is required under the program without such license.

(b) Establish a schedule of fees for licensing under the program. The fees shall be in an amount sufficient to cover the costs of the department in administering the program.

[(6)] (5) The following persons shall apply for an underground storage tank permit from the department:

(a) An owner of an underground storage tank currently in operation;

(b) An owner of an underground storage tank taken out of operation between January 1, 1974, and the operative date of this section; and

(c) An owner of an underground storage tank that was taken out of operation before January 1, 1974, but that still contains a regulated substance.

SECTION 10a. If Senate Bill 542 becomes law, section 9, chapter 880, Oregon Laws 1999 (Enrolled Senate Bill 542) (amending ORS 466.750), is repealed.

SECTION 11. ORS 466.760 is amended to read:

466.760. (1) No person shall install, bring into operation, operate or decommission an underground storage tank without first obtaining a permit from the Department of Environmental Quality.

(2) No person shall deposit a regulated substance into an underground storage tank unless the tank is operating under a permit issued by the department.

(3) Any person who assumes ownership of an underground storage tank from a previous permittee must complete and return to the department an application for a new permit before the person begins operation of the underground storage tank under the new ownership.

(4) Any person who deposits a regulated substance into an underground storage tank or sells an underground storage tank shall notify the owner or operator of the tank of the permit requirements of this section.

(5) The following persons must sign an application for a permit submitted to the department under this section or ORS 466.750 [(6)] (5):

(a) The owner of an underground storage tank storing a regulated substance;

(b) The owner of the real property in which an underground storage tank is located; and

(c) The proposed permittee, if a person other than the owner of the underground storage tank or the owner of the real property.

SECTION 12. Notwithstanding any other law, the amount of $240,000 is established for the biennium beginning July 1, 1999, as the maximum limit for payment of expenses from fees, moneys or other revenues, including Miscellaneous Receipts, excluding federal funds, collected or received by the Department of Environmental Quality for the purpose of carrying out this 1999 Act.

SECTION 13. In addition to and not in lieu of any other appropriation, there is appropriated to the Department of Environmental Quality, for the biennium beginning July 1, 1999, out of the General Fund, the amount of $300,000 for the purpose of carrying out this 1999 Act.

SECTION 14. If Senate Bill 542 becomes law, section 6, chapter 880, Oregon Laws 1999 (Enrolled Senate Bill 542), is added to and made a part of ORS 466.706 to 466.845.

SECTION 15. If Senate Bill 542 becomes law, section 5 of this 1999 Act is repealed.

SECTION 16. If Senate Bill 542 becomes law, section 7 of this 1999 Act is amended to read:

Sec. 7. The Environmental Quality Commission shall adopt rules necessary to carry out sections 2 to 6 of this 1999 Act and section 6, chapter 880, Oregon Laws 1999 (Enrolled Senate Bill 542). The rules shall include but need not be limited to:

(1) A voluntary process for certifying the decommissioning of an abandoned underground heating oil tank;

(2) Information required to be submitted by a licensed heating oil tank service provider or homeowner to allow the Department of Environmental Quality to approve a heating oil tank corrective action;

(3) Requirements for the approval of decommissioning;

(4) Standards to define adequate tank decommissioning; and

(5) Requirements for the approval by the Department of Environmental Quality of decommissioning of underground heating oil tanks that were decommissioned before the effective date of this 1999 Act.

SECTION 17. If Senate Bill 542 becomes law, ORS 466.710, as amended by section 9 of this 1999 Act, is amended to read:

466.710. ORS 466.706 to 466.845 and 466.994 shall not apply to a:

(1) Farm or residential tank of 1,100 gallons or less capacity used for storing motor fuel for noncommercial purposes.

(2) Except as provided in sections 2 to 7 of this 1999 Act and section 6, chapter 880, Oregon Laws 1999 (Enrolled Senate Bill 542), tank used for storing heating oil for consumptive use on the premises where stored.

(3) Septic tank.

(4) Pipeline facility including gathering lines regulated:

(a) Under the Natural Gas Pipeline Safety Act of 1968 (49 U.S.C. 1671);

(b) Under the Hazardous Liquid Pipeline Safety Act of 1979 (49 U.S.C. 2001); or

(c) As an intrastate pipeline facility under state laws comparable to the provisions of law referred to in paragraph (a) or (b) of this subsection.

(5) Surface impoundment, pit, pond or lagoon.

(6) Storm water or waste water collection system.

(7) Flow-through process tank.

(8) Liquid trap or associated gathering lines directly related to oil or gas production and gathering operations.

(10) Pipe connected to any tank described in subsections (1) to (8) of this section.

SECTION 18. This 1999 Act being necessary for the immediate preservation of the public peace, health and safety, an emergency is declared to exist, and this 1999 Act takes effect July 1, 1999.

Approved by the Governor August 17, 1999

Filed in the office of Secretary of State August 18, 1999

Effective date August 17, 1999

__________