By Sedina L. Banks, Attorney, Greenberg Glusker Fields Claman & Machtinger LLP
On May 1, 2012, the California State Water Resources Control Board (SWRCB) adopted via Resolution No. 2012-0016 the Water Quality Control Policy for Low-Threat Underground Storage Tank Case Closure (Low-Threat Closure Policy). The Low-Threat Closure Policy finally became effective on August 17th. This should be good news for the thousands of UST sites in California because the Low-Threat Closure Policy will hopefully make it easier to obtain closure. At a minimum it defines more clearer criteria for obtaining closure.
The Low-Threat Closure Policy recognizes that many petroleum release cases pose a low-threat to human health and the environment. The policy's purpose is to establish consistent California statewide case closure criteria for low-threat petroleum UST sites. To potentially qualify for closure, the site must satisfy eight general criteria (applicable to all sites), as well as media-specific criteria as it pertains to groundwater, vapor intrusion to indoor air and direct contact, and outdoor air exposure. Below is a brief description of each of these criteria.
The general criteria are as follows:
In addition to these general criteria, the Low-Threat Closure Policy discusses the media-specific criteria (groundwater, vapor intrusion to indoor air and direct contact, and outdoor air exposure) that must be met to obtain closure:
Resolution No. 2012-0016 directs each regulatory agency to review all cases within 365 days to determine if any cases can be closed under the above criteria. The review will include, at a minimum, the following:
Cases that have been open for five or more years are recommended to be reviewed under the Five Year Review Site Closure Recommendation. Where it is recommended that a case be reviewed by SWRCB staff, review will not need to be done by the oversight agency. To see whether your case is listed for this review, go to the SWRCB's website here.
If the regulatory agency determines that a site meets both the general criteria and the media-specific criteria, the agency must notify the responsible parties that they are eligible for case closure. The regulatory agency must then give notice of case closure, make sure that all monitoring wells are destroyed and all waste has been removed. The regulatory agency can then issue a closure letter within 30 days unless it revises its determination based on comments received on the proposed closure.
Even sites that do not meet all of the criteria, may still be able to obtain closure. The policy instructs that regulatory agencies should issue a closure letter if the site is determined to be a low-threat based upon a site specific analysis. Also, while the policy addresses USTs, the policy states that if a non-UST site (e.g., an aboveground tank or pipelines) exhibits attributes similar to those addressed in the policy, the criteria for closure evaluation of these sites should be similar to those discussed in the policy.
The SWRCB has created a checklist, which summarizes the criteria for early closure. If you think that your site may qualify, it is worth checking with your environmental consultant or environmental counsel.
DisclaimerGreenberg Blawg contains information of a general nature that is not intended to be legal advice and should not be considered or relied on as legal advice. Any reader of Greenberg Blawg who has legal matters involving information addressed on this website should consult with an experienced environmental law attorney. Greenberg Blawg does not create an attorney-client relationship with any reader of this website. The opinions expressed in the posts are the individual opinions of the authors and do not represent the opinions of Greenberg Glusker, its employees, agents, or clients.
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