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The Oregon Administrative Rules contain OARs filed through September 15, 2014
 
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DEPARTMENT OF ENVIRONMENTAL QUALITY

 

DIVISION 172

UNDERGROUND STORAGE TANK

FINANCIAL ASSISTANCE PROGRAM

340-172-0005

Authority, Purpose, and Scope

(1) These rules are promulgated in accordance with and under the authority of ORS 466.706 to 466.835 as amended by Chapter 863, Oregon Laws, 1991 (Senate Bill 1215).

(2) The purpose of these rules is to:

(a) Provide for the regulation of persons who receive financial assistance for UST project work and buying UST insurance for underground storage tank facilities that hold or have held an accumulation of motor fuel for resale; and

(b) Provide financial assistance to persons owning or responsible for underground storage tanks that hold or have held an accumulation of motor fuel for resale and are regulated by ORS 466.706 to 466.835 and federal regulations 40 CFR 280.

(3) These rules establish requirements and procedures for:

(a) Applying and qualifying for financial assistance; and

(b) Administration and enforcement of these rules by the Department.

[Publications: The publication(s) referred to or incorporated by reference in this rule are available from the agency.]

Stat. Auth.: ORS 466.706 - ORS 466.895 & ORS 466.995 
Stats. Implemented: ORS Sec. 7, OL 1991, Ch. 863 
Hist.: DEQ 29-1991(Temp), f. 12-18-91, cert. ef. 12-20-91; DEQ 14-1992, f. & cert. ef. 6-11-92

340-172-0010

Definitions

As used in these rules:

(1) "Aboveground Storage Tank" or "AST" means one or a combination of tanks that is used to contain an accumulation of motor fuel for resale and is not an underground storage tank.

NOTE: Some examples of ASTs include:

-1- Tanks located entirely aboveground;

-2- Tanks located in vaults entirely aboveground;

-3- Tanks in a below ground vault where all portions of the tanks can be physically inspected. By contrast, a tank with ten percent or more of its volume covered by soil is an underground storage tank.

(2) "Commercial Lending Institution" means any bank, mortgage banking company, trust company, stock savings bank, saving and loan association, credit union, national banking association, federal savings and loan association, cooperative financial institution regulated by an agency of the Federal Government or this state, or federal credit union maintaining an office in this state.

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

(4) "Completed Project" means UST that meets all the 1998 requirements of OAR Chapter 340, Division 150 or an AST that meets all federal, state and local regulations for ASTs and the property meets the cleanup levels in OAR Chapter 340, Division 122.

(5) "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.

(6) "Current Ratio" means Current Assets mathematically divided by Current Liabilities, as defined in Appendix 1.

(7) "Debt Service Coverage Ratio" means Net Profit + Non-Cash mathematically divided by Current Portion of Long Term Debt as defined in Appendix 1.

(8) "Debt to Equity Ratio" means Total Liabilities mathematically divided by Total Equity, as defined in Appendix 1.

(9) "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.

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

(11) "Director" means the Director of the Department of Environmental Quality.

(12) "Essential Services Grant" means a grant provided to a person qualifying for Tier 4 benefits under these rules.

(13) "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. The Department further defines facility to include all underground storage tanks that hold or have held an accumulation of motor fuel for resale at the site.

(14) "Financial Responsibility Requirements" means the UST financial responsibility require-ments in OAR 340-150-0002, 340-150-0004 and federal regulation 40 CFR 280.

(15) "Grant" means payment for costs of UST project work.

(16) "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.

(17) "Imminent Hazard" means petroleum contamination or threat of petroleum contamination to a groundwater drinking water supply or potential groundwater drinking water supply or where a spill or release of petroleum is likely to cause a fire or explosion that threatens public life and safety or where a spill or release of petroleum threatens a critical habitat or an endangered species.

(18) "Investigation" means monitoring, surveying, testing or other information gathering.

(19) "Licensed" means that a firm or an individual with supervisory responsibility for the performance of tank services has met the Department's minimum experience and qualification requirements to offer or perform services related to underground storage tanks and has been issued a license by the Department to perform those services.

(20) "Licensed Public Accountant" means a Certified Public Accountant (CPA) or a Public Accountant (PA) licensed to practice in Oregon.

(21) "Local Unit of Government" means a city, county, special service district, metropolitan service district created under ORS Chapter 268 or political subdivision of the state.

(22) "Motor Fuel" means a petroleum or a petroleum-based substance that is a motor gasoline, No. 1 or 2 diesel fuel, or any grade of gasohol, and is typically used in the operation of a motor engine.

(23) "New Tank Standards" means modifying a UST or replacing a UST to comply with the 1998 technical requirements of OAR Chapter 340, Division 150 and federal regulation 40 CFR 280.

(24) "Operator" means any person in control of, or having responsibility for, the daily operation of the UST or AST system.

(25) "Owner" means the owner of an underground storage tank.

(26) "Permittee" means the owner or a person designated by the owner who is in control of or has responsibility for the daily operation or daily maintenance of an underground storage tank under a permit issued pursuant to OAR Chapter 340, Division 150.

(27) "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.

(28) "Phase I Environmental Audit" means a visual inspection of the property and adjacent properties, including inspection of public records, for the purpose of discovering environmental contamination from past uses.

(29) "Phase II Environmental Audit" means investigation to discover or characterize environmental contamination.

(30) "Pollution Prevention Grant" means a grant provided to a person qualifying for Tier 3 benefits under these rules.

(31) "Property Owner" means the legal owner of the property where the underground storage tank resides.

(32) "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.

(33) "Retail Facility" means business reselling or previously reselling motor fuel to the public.

(34) "Retail Gas Sales Facility" means business reselling motor fuel to the public at least three days per week during 11 months each calendar year.

(35) "Site Assessment" means evaluating the soil and groundwater adjacent to the UST system for contamination from motor fuel.

(36) "Soil Matrix Cleanup Service Provider" is an individual or firm licensed to offer or perform soil matrix cleanup at regulated underground storage tanks in Oregon.

(37) "Soil Matrix Cleanup Supervisor" means a licensed individual operating alone or employed by a soil matrix cleanup service provider and charged with the responsibility to direct and oversee the performance of soil matrix cleanup at an underground storage tank facility.

(38) "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.

(39) "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 vaportight holding system or vapor control system.

(40) "Supervisor" means a licensed individual operating alone or employed by a contractor and charged with the responsibility to direct and oversee the performance of tank services at an underground storage tank facility.

(41) "Tank Services" include but are not limited to tank installation, permanent decommissioning, retrofitting, testing, and inspection.

(42) "Tank Services Provider" is an individual or firm registered and, if required, licensed to offer or perform tank services on regulated underground storage tanks in Oregon.

(43) "Tier" means one of four levels of financial assistance a person may qualify to receive under these rules.

(44) "Underground Storage Tank" or "UST" means an underground storage tank as defined in OAR Chapter 340, Division 150.

(45) "USTCCA Fund" means the Underground Storage Tank Compliance and Corrective Action Fund established by ORS 466.790.

(46) "UST Project Work" means conducting corrective action, replacing UST systems with new UST systems meeting new tank standards, upgrading underground storage tank systems to new tank standards, replacing UST systems with aboveground storage tank systems, and installing Stage I and II vapor collection systems, including hoses and nozzles, at an underground storage tank facility location holding or that held an accumulation of motor fuel for resale.

[ED. NOTE: The Appendices referred to or incorporated by reference in this rule is available from the agency.]
[Publications: The publication(s) referred to or incorporated by reference in this rule are available from the agency.]

Stat. Auth.: OL 1993, Ch. 661 
Stats. Implemented: ORS 466.706, OL 1991, Ch. 863 & OL 1993, Ch. 661 
Hist.: DEQ 29-1991(Temp), f. 12-18-91, cert. ef. 12-20-91; DEQ 14-1992, f. & cert. ef. 6-11-92; DEQ 8-1994, f. & cert. ef. 3-22-94

340-172-0015

Interim Program Benefits

Financial Assistance Program applications approved and confirmed for funding between July 1, 1993 and July 1, 1995 can only qualify for an essential services grant.

Stat. Auth: OL 1993, Ch. 661 
Stats. Implemented: OL 1991, Ch. 863 & OL 1993, Ch. 661 
Hist.: DEQ 21-1993, f. & cert. ef. 11-9-93; DEQ 8-1994, f. & cert. ef. 3-22-94

 

340-172-0020

General Provisions, UST Financial Assistance

(1) To qualify for financial assistance under these rules, a person:

(a) Must be the owner of the USTs at a facility holding or that held an accumulation of motor fuel for resale; or

(b) Must be the person responsible for the USTs at a facility holding or that held an accumulation of motor fuel for resale. A person responsible for the USTs at the facility must be:

(A) The property owner; or

(B) The permittee of the USTs.

(c) May be required to demonstrate financial need.

(2) A person may apply for financial assistance at the UST facility jointly with other eligible persons as determined in section (1) of this rule if the persons receiving financial assistance provide a copy of a signed legal contract with the application that defines the proportionate share of the financial assistance to be paid to each person.

(3) A person owning or responsible for a UST may qualify to receive any or all of the following financial assistance for UST project work at a facility location. Individual tanks at a facility location with multiple tanks are not each eligible for separate assistance:

(a) Copayment for a portion of the insurance premium for a policy that meets the UST financial responsibility requirements (See OAR Chapter 340, Division 174.);

(b) Grant (See OAR Chapter 340, Division 175);

(c) Loan guarantee for a loan obtained from a commercial lending institution (See OAR Chapter 340, Division 176.);

(d) Reduced interest rate for a loan obtained from a commercial lending institution (See OAR Chapter 340, Division 178.)

(4) A person owning or responsible for a UST may qualify to receive financial assistance for UST project work provided all of the following conditions are met:

(a) The USTs are regulated or were previously regulated by OAR Chapter 340, Division 150 and federal regulation 40 CFR 280;

(b) UST project work:

(A) Was started after December 22, 1988;

(B) Was approved for financial assistance by issuance of an UST financial assistance confirmation letter pursuant to OAR Chapter 340, Divisions 174, 175, 176 or 178 on or before December 31, 1994; and

(C) Will be started by March 1, 1995.

(c) Each UST has a valid UST permit or had a valid UST permit before permanently decommissioning, as required by OAR Chapter 340, Division 150;

(d) The UST holds an accumulation of motor fuel for resale or that held an accumulation of motor fuel for resale before temporary or permanent decommissioning (closure);

(e) Financial assistance under these rules was not provided to another person for work approved under these rules;

(f) A site assessment for all tanks containing motor fuel for resale is to be or has been performed in accordance with OAR Chapter 340, Division 122 and these rules;

(g) The UST does not hold motor fuel used as fuel for the operation of aircraft;

(h) The UST does not hold motor fuel used as fuel for the operation of boats or marine vessels;

(i) UST project work meets or will meet, upon project completion, the 1998 requirements of OAR Chapter 340, Division 150, including:

(A) Corrosion resistance;

(B) Spill prevention and overfill prevention;

(C) Leak detection; and

(D) Where applicable, Stage I and II vapor collection system requirements in OAR Chapter 340, Division 22.

(j) The UST project site will meet the cleanup standards in OAR Chapter 340, Division 122.

(5) A person owning or responsible for USTs permanently decommissioned (closed) in accordance with federal regulation 40 CFR 280 between December 22, 1988 and April 1, 1992 and not replaced with another UST shall meet the requirements of subsections (4)(a) through (i) of this rule.

(6) Financial assistance may be provided for any or all of the following:

(a) Site assessment and corrective action to clean up soil and groundwater contamination in accordance with OAR Chapter 340, Division 122 and/or in accordance with the decommissioning requirements in OAR Chapter 340, Division 150;

(b) Upgrading or replacing a UST to new UST standards in accordance with OAR Chapter 340, Division 150 and federal UST regulation 40 CFR 280;

(c) Replacing existing USTs with aboveground storage tanks in accordance with state or local fire codes and federal aboveground storage tank regulation 40 CFR Part 112;

(d) Installation of Stage I and II vapor collection system underground piping, hoses and nozzles in accordance with OAR Chapter 340, Division 22 to meet present or future requirements for Stage I or II vapor collection;

(e) Copayment for a portion of the insurance premium for a policy that meets UST financial responsibility requirements of OAR Chapter 340, Division 150 and federal UST regulation 40 CFR 280.

NOTE: The legislature intended to provide financial assistance for the purpose of upgrading motor fuel resale facilities to comply with Federal/State underground storage tank regulations. The Depart-ment will not approve financial assistance where the person intends to close a facility and not resell motor fuel.

(7) Project costs for UST project work shall meet the requirements of this section:

(a) Financial assistance for UST project work is available for:

(A) Equipment, labor and materials provided by a licensed UST service provider;

(B) Equipment, labor and materials to replace an UST with an AST;

(C) Equipment, employee labor and materials supplied by the applicant, provided the labor charge and hours charged to the project are approved by the Department;

(D) Interest paid lender during construction phase;

(E) Loan fees;

(F) Application and loan related project management, financial management or similar consultant fees;

(G) Preparing engineering reports, schedules, plans, designs, and conducting project oversight and inspections;

(H) Site assessment including engineering and hydrological investigations, testing of soil and water samples and related reports;

(I) Corrective action to remove petroleum contamination of soil and surface and groundwaters;

(J) Treatment and disposal of contaminated soil, liquids, sludges, and USTs;

(K) Tank tightness testing required as part of UST project work; and

(L) Other costs that the Department may approve.

(b) Financial assistance for UST project work is not available for:

(A) Work on a UST that is not supervised by a licensed UST supervisor;

(B) Acquisition of land and rights-of-way;

(C) Costs which are treated as operation and maintenance expenses under general accounting practices;

(D) Costs previously paid under OAR Chapter 340, Division 170;

(E) Tax credits claimed and received as an Oregon Pollution Control Tax Credit under OAR Chapter 340, Division 16;

(F) Costs resulting from lost business while a UST is being upgraded, a UST is being replaced or while corrective action is being conducted;

(G) Insurance premiums or other costs associated with meeting state and federal UST financial responsibility requirements before completion of the project;

(H) Labor provided by an employee of the applicant where the labor has not been approved by the Department;

(I) Costs that are recoverable by the applicant, the property owner, the tank owner or permittee from insurance coverage or other persons or entities liable for those costs;

(J) Costs for bodily injury or damage to personal property of a third party;

(K) Costs not directly attributed or contributing to completion of the project;

(L) Interest and financing charges due to untimely payment of contractors and suppliers of material, equipment and labor;

(M) Labor performed by the applicant;

(N) Tanks other than tanks containing motor fuel for resale;

(O) Payment for insurance required to demonstrate financial responsibility in accordance with OAR 340-172-0090;

(P) Annual tank tightness testing not required as part of UST project work; and

(Q) Other work not expressly included under subsection (a) of this section.

(8) An applicant may only receive financial assistance for UST project work if all applicable financial assistance confirmation letters are signed by the Department on or before December 31, 1996.

(9) An applicant may receive financial assistance when relocating an existing facility to another geographical location, providing:

(a) The new resale facility services the same customer base as the original facility;

(b) The new resale facility is within five road miles of the original facility unless the Department determines the facility meets the requirements of subsection (a) of this section;

(c) Construction is completed at the new resale facility within 90 days after confirmation of UST project work unless otherwise approved by the Department;

(d) Financial assistance is based upon the original location; and

(e) Both facilities meet the requirements of these rules, including a site assessment in accordance with the requirements of OAR 340-172-0050 at the location of any UST or AST at the new resale facilities.

(10) If the applicant disputes a Department finding under this rule, the applicant may seek resolution of the dispute through the appeals procedures in OAR 340-172-0110.

[Publications: The publication(s) referred to or incorporated by reference in this rule are available from the agency.]

Stat. Auth.: OL 1993, Ch. 661 
Stats. Implemented: OL 1991, Ch. 863 & OL 1993, Ch. 661 
Hist.: DEQ 29-1991(Temp), f. 12-18-91, cert. ef. 12-20-91; DEQ 14-1992, f. & cert. ef. 6-11-92; DEQ 8-1994, f. & cert. ef. 3-22-94

 

340-172-0025

Documents Required to Receive Financial Assistance

(1) To receive financial assistance under this program an applicant must submit:

(a) The combination of:

(A) On or before April 1, 1994, a Letter of Intent to apply for financial assistance, Appendix 2 of these rules; and

(B) On or before October 1, 1996, an application for financial assistance, described by these rules.

(b) On or before April 1, 1994, an application for financial assistance, described by these rules.

(2) To receive financial assistance under this program an applicant must submit, on or before October 1, 1994, a signed Consent Agreement, Appendix 3 of these rules.

NOTE: Applications previously submitted under Chapter 1071, Oregon Laws 1989, (HB 3080) will not meet the requirements of this rule. A new application is needed.

(3) To qualify for an essential services grant an applicant must sign a property lien agreement or equivalent agreement as required by OAR 340-175-0055.

(4) Persons who filed a Letter of Intent by April 1, 1992 are not required to file the Letter of Intent required by paragraph (1)(a)(A) of this rule. The Department will recognize a Letter of Intent filed by April 1, 1992 as complying with the present filing requirements.

[ED. NOTE: The Appendicies referenced in this rule are not printed in the OAR Compilation. Copies are available from the agency.]

Stat. Auth.: OL 1993, Ch. 661 
Stats. Implemented: OL 1991, Ch. 863 & OL 1993, Ch. 661 
Hist.: DEQ 29-1991(Temp), f. 12-18-91, cert. ef. 12-20-91; DEQ 14-1992, f. & cert. ef. 6-11-92; DEQ 8-1994, f. & cert. ef. 3-22-94

 

340-172-0030

Application Process for UST Financial Assistance

(1) Any person wishing to obtain UST financial assistance from the Department shall submit a written application on a form provided by the Department. Applications must be submitted no later than October 1, 1996. All application forms must be completed in full, and accompanied by all required attachments (to be considered with the application).

(2) Applications which are unsigned or which do not contain the required attachments will not be considered complete by the Department. The application will not be considered complete until the requested information is received.

(3) After the application is determined complete, and reviewed by the Department and found to be in compliance with these rules, the Department will, where applicable:

(a) Issue a loan guarantee certificate;

(b) Issue a reduced interest rate certificate;

(c) Issue an insurance premium copayment certificate;

(d) Issue a pollution prevention or essential services grant certificate.

(4) If, upon review of an application, the Department determines that the application does not meet the requirements of the statutes and rules, the Department shall notify the applicant in writing of this determination.

(5) Determinations by the Department may be appealed pursuant to OAR 340-172-0110.

Stat. Auth.: OL 1993, Ch. 661 
Stats. Implemented: OL 1991, Ch. 863 & OL 1993, Ch. 661 
Hist.: DEQ 29-1991(Temp), f. 12-18-91, cert. ef. 12-20-91; DEQ 14-1992, f. & cert. ef. 6-11-92; DEQ 8-1994, f. & cert. ef. 3-22-94

 

340-172-0040

Information Required on Financial Assistance Application

(1) The UST financial assistance application shall include, at a minimum:

(a) The applicant's name, mailing address and phone.

NOTE: An applicant must be the property owner, tank owner or permittee.

(b) The signatures and phone numbers of the property owner, the tank owner and the permittee of facility;

(c) The UST facility location information including:

(A) Facility name, street address, city and county; and

(B) Where the applicant intends to qualify for Tier 3 and 4 financial assistance:

(i) The distance to nearest retail gas sales facility if the applicant's facility is outside an incorporated city measured in accordance with OAR 340-172-0070(2)(d)(C)(iii); or

(ii) The name of the city, if the applicant's facility is the only retail UST facility reselling motor fuel within a city listed in the 1991/1992 Oregon Blue Book.

(d) The UST facility number;

(e) The date of the application;

(f) Description of the UST project work area including a scaled drawing (contractor's or engineer's drawing) showing, but not limited to, property boundaries, location of structures, location and identification of the existing underground storage tanks containing an accumulation of motor fuel. Where AST(s) replace UST(s) the application shall also include:

(A) Description of the AST project work, installation specifications and a scaled installation drawing (contractor's or engineer's drawing) showing all information necessary to determine compliance with local and state fire codes and federal regulation 40 CFR 112 including, but not limited to:

(i) Spill containment structures;

(ii) Control equipment to allow removal of motor fuel and rainwater from the spill containment area;

(iii) Overfill prevention devices;

(iv) Piping and valving;

(v) Atmospheric and emergency venting; and

(vi) Tank construction details.

(B) A copy of the Spill Prevention Control and Countermeasure (SPCC) Plan certified by a registered professional engineer, as required by federal regulation 40 CFR 112.

(g) Description of the UST project work including a scaled drawing (contractor's or engineer's drawing) showing those items and activities that are not part of a UST system but are required because of construction interference.

NOTE: OAR 340-172-0020(6)(a) through (e) describe the UST project work that may qualify for financial assistance.

(h) Total project cost in the form of a bid or estimate for the proposed UST project work or the actual cost where UST project work is completed prior to filing an application under these rules. Where there is no site assessment information on possible petroleum contamination, a bid or estimate shall include the following costs for corrective action:

(A) For a facility with:

(i) One tank, include soil cleanup costs of $6,000;

(ii) Two tanks, include soil cleanup costs of $9,000;

(iii) Three tanks, include soil cleanup costs of $12,000;

(iv) Four tanks, include soil cleanup costs of $15,000;

(v) Five tanks, include soil cleanup costs of $18,000;

(vi) Six or more tanks, include soil cleanup costs of $21,000.

(B) Include groundwater cleanup costs of $25,000 for each facility where seasonal groundwater exists at ten feet or less below the surface of the ground according to available records from the Oregon Department of Water Resources, U.S. Soil Conservation Service, U.S. Geological Service, or equivalent information.

(i) For persons intending to qualify for Tiers 2, 3, and 4 financial assistance, a determination of the financial assistance ratios in section (2) of this rule by an Oregon licensed public accountant based upon the tank owner's business or personal financial information showing all assets, income from all sources, outstanding debts and liabilities, including financial information from sole proprietors, all partners of a partnership or joint venture, corporations, and all wholly owned subsidiaries of corporations. The information furnished by the applicant to the accountant shall be adequate to allow the licensed public accountant to prepare a compiled pro forma fiscal year-end financial statement and shall include:

(A) Federal and state income tax filings for most recent fiscal year; or

(B) The most recent pro forma fiscal year-end financial statement or, where unavailable, on the most recent fiscal year, a compiled pro forma year end financial statement prepared by a licensed public accountant.

(j) Where a UST remains in the ground and a site assessment is not part of the UST project work, the application shall include a report of the site assessment work described in OAR 340-172-0050;

(k) Insurer's written quote; and

(l) Other information required by the Department.

(2) A licensed public accountant shall determine the following financial ratios from the information provided by the applicant in subsection (1)(i) and section (3) of this rule and definitions in Appendix 1. The calculated ratios shall be rounded upward to the nearest hundredth whole number:

(a) Current Ratio;

(b) Debt to Equity Ratio; and

(c) Debt Service Coverage Ratio.

NOTE: See OAR 340-172-0070(3) and Appendix 1 for criteria to determine the ratios in this subsection.

(3) The following estimate of liabilities associated with upgrading the USTs containing motor fuel for resale shall be added to the applicant's compiled financial statement prior to calculation of the ratios in section (2) of this rule. For each facility for which an application is submitted for financial assistance the licensed public accountant shall add the liabilities associated with a $125,000, 5.0 percent fixed interest rate, ten year term loan. The $125,000 pro forma liability for UST project work is comprised of $35,000 for corrective action work and $90,000 for other UST project work.

[ED. NOTE: The Appendix referred to or incorporated by reference in this rule is available from the agency.]

[Publications: The publication(s) referred to or incorporated by reference in this rule are available from the agency.]

Stat. Auth.: ORS 466.706 - ORS 466.895 & ORS 466.995 
Stats. Implemented: OL 1991, Ch. 863 
Hist.: DEQ 29-1991(Temp), f. 12-18-91, cert. ef. 12-20-91; DEQ 14-1992, f. & cert. ef. 6-11-92

 

340-172-0050

Site Assessment

(1) Unless the Department finds the UST site meets the decommissioning requirements in OAR Chapter 340, Division 150 or the cleanup standards described in OAR Chapter 340, Division 122 based upon currently available information, a person applying for financial assistance must assess the site for contamination in accordance with this section.

(2) One of the following site assessments shall be conducted and submitted to the Department for approval:

(a) A complete report of a site assessment conducted after December 22, 1988;

(b) A site assessment following the sampling method described in section (3) of this rule. The proposed sampling plan shall be submitted to the Department for approval before initiating any work;

(c) An alternate sampling plan and site assessment procedure determined by the applicant and approved by the Department before initiating any work.

(3) Unless otherwise approved by the Department pursuant to subsection (2)(c) of this rule, collect soil or water samples by boring or test pits:

(a) Where groundwater is not present, collect one sample in each boring or test pit from the native soils at an elevation below, but no more than two feet below, the bottom of any underground storage tank and from any soil that appears to be contaminated if encountered during installation of borings or test pits;

(b) Where groundwater is present, collect a soil and water sample at the soil/water interface in each boring or test pit;

(c) Borings or test pits shall be located along each side of an imaginary rectangular area drawn around an UST or group of USTs so that each side of the rectangle lies a maximum of three feet from the nearest UST:

(A) The imaginary rectangle may be drawn around a group of USTs when each UST is within six feet of an adjacent UST;

(B) A separate imaginary rectangle must be drawn around each UST that is located more than six feet from an adjacent UST;

(C) A minimum of one boring or test pit shall be located at the midpoint on each side of the imaginary rectangle. Where a side exceeds 15 feet, two or more borings or test pits shall be located equally spaced along the side. Borings or test pits shall not be located more than 25 feet apart along any side of the rectangle.

(d) Analyze the soil and/or groundwater samples in accordance with OAR 340-122-0205 through 340-122-0360.

(4) The sample collection and analytical procedures shall meet the requirements of OAR Chapter 340, Division 122.

(5) The site assessment must be performed under the direction or supervision of a licensed UST soil matrix supervisor, registered professional engineer, registered geologist, or a certified professional soil scientist (a soil scientist with certification and inclusion in the American Registry of Certified Professionals in Agronomy, Crops, and Soils, Ltd. (ARCPACS)).

NOTE: In addition to the site assessment described by this section, commercial lending institutions or insurers may require a person to complete Phase I and II environmental audits before issuing a loan.

Stat. Auth.: ORS 466.706 - ORS 466.895 & ORS 466.995 
Stats. Implemented: OL 1991, Ch. 863 
Hist.: DEQ 29-1991(Temp), f. 12-18-91, cert. ef. 12-20-91; DEQ 14-1992, f. & cert. ef. 6-11-92

 

340-172-0060

Notice of Compliance with Cleanup Standards

(1) The Department will issue a written notice of compliance with the Department's soil and groundwater cleanup standards where no cleanup is required, the results show compliance with applicable standards and the applicant has completed:

(a) The site assessment requirements in OAR 340-172-0050; or

(b) The UST closure requirements in OAR Chapter 340, Division 150.

(2) The Department will issue a written notice of compliance with the Department's soil and groundwater cleanup standards where cleanup of soil and cleanup of groundwater has been performed in accordance with and meets the requirements of OAR Chapter 340, Division 122.

(3) Within 30 days after receipt of a complete decommissioning report or a complete site assessment report, the Department will determine if the facility meets the Department's cleanup standards and will provide a written determination of compliance. Incomplete reports will be returned to the applicant.

(4) Within 90 days after successful completion of correction action and receipt of a final corrective action report, the Department will determine if the facility meets the Department's cleanup standards and will provide a written determination of compliance. Incomplete reports will be returned to the applicant.

Stat. Auth.: ORS 466.706 - ORS 466.895 & ORS 466.995 
Stats. Implemented: OL 1991, Ch. 863 
Hist.: DEQ 29-1991(Temp), f. 12-18-91, cert. ef. 12-20-91; DEQ 14-1992, f. & cert. ef. 6-11-92

 

340-172-0070

Determination and Conditions of Financial Assistance

(1) The Department shall determine the applicant's financial assistance tier from:

(a) Information provided in the application;

(b) The financial ratios determined in accordance with OAR 340-172-0040(2) by a licensed public accountant; and

(c) Tank ownership information available in the Department's files or electronic database at the time of application. For purposes of financial need, tank ownership shall include all tanks at all facility locations with the same legal ownership such as sole proprietor, joint ventures, partnerships, corporations or other similar business ownerships. In the case of corporations, tank ownership shall include all tanks at all facility locations owned by parent corporations and all wholly owned subsidiaries of the parent corporation.

(2) The Department shall award financial assistance to an applicant in accordance with these rules and OAR Chapter 340, Divisions 174, 175, 176, and 178 where the applicant meets the following financial assistance tier criteria:

(a) Tier 1: Own or responsible for one or more USTs holding or that previously held an accumulation of motor fuel for resale;

(b) Tier 2:

(A) Own or responsible for 100 or more USTs holding or that previously held an accumulation of motor fuel for resale; and

(B) Meet two or more of the financial assistance criterion in section (3) of this rule.

(c) Tier 3:

(A) Own or responsible for one to 99 USTs holding or that previously held an accumulation of motor fuel for resale; and

(B) Either:

(i) Meet two or more of the financial assistance criterion in section (3) of this rule; or

(ii) Meet the Tier 4 location requirements described in paragraph (2)(d)(C) of this rule.

(d) Tier 4:

(A) Own or responsible for one to 12 USTs holding or that previously held an accumulation of motor fuel for resale; and

(B) Meet two or more of the financial assistance criteria in section (3) of this rule; and

(C) The retail facility meets the criteria in one of subparagraph (i), (ii), (iii), or (iv) of this paragraph:

(i) The only retail facility with UST holding or that previously held an accumulation of motor fuel for resale within a city listed in the 1993/1994 Oregon Blue Book;

(ii) The retail facility filing the first application within a city listed in the 1993/1994 Oregon Blue Book where a retail facility is not presently reselling motor fuel from an UST holding an accumulation of motor fuel;

(iii) The only retail gas sales facility in a city listed in the 1993/1994 Oregon Blue Book with other retail facilities within the city;

(iv) If outside a city listed in the 1993/1994 Oregon Blue Book, the retail facility is nine miles or more from a retail gas sales facility measured in accordance with subparagraph (v) of this paragraph;

(v) The distance shall be the shortest distance in any direction between facilities. The distance shall be measured between the nearest public driveway entrance of each facility over the shortest distance on a public road. Distances shall be rounded upward to the nearest tenth mile. The adjacent retail gas sales facility may be inside or outside a city. The Department may verify the distance where the distance measured by the applicant is between nine and ten miles. Measurements by the Department shall be the final distance determination.

(3) Financial need criteria:

(a) The Current Ratio (CR) is less than or equal to 1.60;

(b) The Debt to Equity Ratio (DE) is greater than or equal to 1.60;

(c) The Debt Service Coverage Ratio (DSC) is less than or equal to 3.20.

(4) The Department may reconsider an award of financial assistance where:

(a) The applicant has requested reconsideration of the award, in writing;

(b) UST project work including soil or groundwater cleanup has started;

(c) A Tier of greater financial assistance is available for the facility;

(d) The lender indicates the applicant can borrow additional monies necessary to complete the newly identified corrective action work;

(e) The Department determines the estimated soil and groundwater cleanup costs are appropriate and exceed $40,000 (at least $5,000 above the $35,000 included for the initial financial need evaluation); and

(f) The applicant has provided a new determination of the financial ratios in accordance with OAR 340-172-0040(2), where the estimated corrective action costs above $35,000 are added to the UST project work at the facility.

(5) An award of financial assistance under these rules requires:

(a) Department approval, where applicable, of the:

(A) Completed application;

(B) Site assessment conducted under OAR 340-172-0050;

(C) Corrective action plan required by OAR 340-122-0250;

(D) Estimated eligible costs; and

(E) Time schedule for completing the work.

(b) That the USTCCA fund has sufficient money allocated to the program from which financial assistance is requested; and

(c) That the financial assistance requested does not exceed the financial assistance limits at OAR Chapter 340, Divisions 172, 174, 175, 176, and 178.

(6) The Department may include conditions in an award of financial assistance, requiring the applicant to:

(a) Conduct work within a Department established time schedule where the USTCCA Fund cannot fund the UST project work as scheduled by the applicant;

(b) Submit progress reports or payment records at stated intervals before disbursement of grant funds;

(c) Allow Department personnel to enter and inspect the project site at reasonable times;

(d) Maintain project accounts and records to support the eligibility of expenditures; the records must clearly separate eligible and ineligible project costs;

(e) Obtain all titles and easements necessary to provide authority to complete the proposed project; and

(f) Comply with other terms and conditions necessary to ensure the project is completed in accordance with the approved plans.

Stat. Auth.: OL 1993, Ch. 661 
Stats. Implemented: OL 1991, Ch. 863 
Hist.: DEQ 29-1991(Temp), f. 12-18-91, cert. ef. 12-20-91; DEQ 14-1992, f. & cert. ef. 6-11-92; DEQ 8-1994, f. & cert. ef. 3-22-94

 

340-172-0080

Financial Assistance Priority

Monies, other than monies necessary to pay the Department's program administration expenses, will be allocated in the following priority order:

(1) First to satisfy the 1993 - 1995 biennial obligations for the financial assistance commit-ments made prior to July 1, 1993 under ORS 466.706 through 466.835 and 466.895 through 466.995, as amended by Chapter 1071, Oregon Laws, 1989. (House Bill 3080) and Chapter 863, Oregon Laws 1991 (Senate Bill 1215);

(2) Second to fund Tier 4 UST project work allowed under these rules on a first come, first serve basis, based upon the date of Department determination of a complete application.

Stat. Auth.: OL 1993, Ch. 661 
Stats. Implemented: OL 1991, Ch. 863 & OL 1993, Ch. 661 
Hist.: DEQ 29-1991(Temp), f. 12-18-91, cert. ef. 12-20-91; DEQ 14-1992, f. & cert. ef. 6-11-92; DEQ 8-1994, f. & cert. ef. 3-22-94

 

340-172-0090

Financial Responsibility

(1) Applicants receiving UST financial assistance under these rules must demonstrate compliance with the financial responsibility requirements of OAR 340-174-0060 and Division 150 within 60 days of the Department issuing a letter requiring demonstration of financial responsibility pursuant to OAR Chapter 340, Division 174.

(2) The applicant shall request copayment from the Department within 30 days after receipt of the letter requiring demonstration of financial assistance. The request shall conform to the requirements of OAR Chapter 340, Division 174.

Stat. Auth.: ORS 466.706 - ORS 466.895 & ORS 466.995 
Stats. Implemented: OL 1991, Ch. 863 
Hist.: DEQ 29-1991(Temp), f. 12-18-91, cert. ef. 12-20-91; DEQ 14-1992, f. & cert. ef. 6-11-92

 

340-172-0100

Records

The Department and commercial lending institutions shall have access to books, documents, papers and records of the applicant which are directly pertinent to qualifying for financial assistance for the purpose of making audit, examination, excerpts and transcripts. The applicant shall maintain these records for three years after upgrading the UST to new tank standards, replacement of the UST, or completion of the AST project.

Stat. Auth.: ORS 466.706 - ORS 466.895 & ORS 466.995 
Stats. Implemented: OL 1991, Ch. 863 
Hist.: DEQ 29-1991(Temp), f. 12-18-91, cert. ef. 12-20-91; DEQ 14-1992, f. & cert. ef. 6-11-92

 

340-172-0110

Appeal Procedures

(1) If an applicant disagrees with the Department's decision regarding financial assistance for that applicant under these rules, the applicant may request a formal contested case hearing in accordance with ORS 183.310 through 183.550 and rules promulgated thereunder.

(2) A request for a formal contested case hearing shall be in writing and received by the Department within 20 days after the Department awards or denies financial assistance: The request for a formal contested case hearing must include:

(a) The name, mailing address and telephone number of the requestor; and

(b) A brief, clear summary of the reasons for requesting the hearing.

(3) In addition to requesting a contested case hearing, the Department encourages the requestor to ask for an informal review to resolve the disagreement. The informal review will be held at a time and place agreed upon by the Department and the requestor within 30 days after the Department receives the request for formal contested case hearing. The Department shall send a meeting notice to all review committee members; and by certified mail, return receipt requested, to the requestor.

(4) The Department informal review committee shall be:

(a) The UST Compliance Section Manager;

(b) The UST Project Reviewer or the UST Regional Advisor; and

(c) The Finance Section Manager. The Finance Section Manager shall serve as chair.

(5) The requestor shall have the opportunity before and during the informal review to provide any additional relevant information. The requestor may be accompanied by persons involved in the UST project work such as licensed public accountant, project manager, consultant, licensed service provider or supervisor.

(6) When applicable, the Department will issue an amended determination and corresponding certificates based on the recommendation of the informal review committee within 30 days after completion of the informal review.

Stat. Auth.: ORS 466.706 - ORS 466.895 & ORS 466.995 
Stats. Implemented: OL 1991, Ch. 863 
Hist.: DEQ 29-1991(Temp), f. 12-18-91, cert. ef. 12-20-91; DEQ 14-1992, f. & cert. ef. 6-11-92

 

340-172-0120

Enforcement

(1) Where a person who is the tank owner, property owner or permittee has submitted a financial assistance application or has filed a signed Letter of Intent or Consent Agreement (Appendix 3), in accordance with these rules, the facility shall not be subject to enforcement action of the technical or financial responsibility requirements of OAR Chapter 340, Division 150 on the UST facility if the person has made a good faith effort to either secure a confirmation letter for UST project work by December 31, 1996 or permanently close the UST facility on or before December 31, 1996 except for:

(a) UST permit requirements, including permit fees;

(b) Corrective action requirements in the event of an imminent hazard, as defined in OAR 340-172-0010(17);

(c) Permanent decommissioning requirements where the applicant permanently decommissions a UST at the UST facility;

(d) Leak detection requirements. The person signing the Consent Agreement must provide monthly inventory records to the Department, on a form provided by the Department when requested by the Department, for each UST using manual inventory or daily inventory with monthly reconciliation as the sole method of leak detection; and

(e) The requirements of the signed Consent Agreement.

(2) The Consent Agreement will be in force through December 31, 1996 or 60 days after the UST project work is complete, whichever comes first.

(3) The person signing the consent agreement must:

(a) Report all suspected releases to the Department of Environmental Quality within 24 hours and investigate all suspected releases;

(b) Report all confirmed releases to the Department of Environmental Quality within 24 hours;

(c) Upon confirmation of a release take immediate action to prevent any further release of motor fuel into the environment;

(d) Determine whether an imminent hazard exists through adequate investigation and testing; and

(e) Take appropriate corrective action in accordance with OAR Chapter 340, Divisions 122 and 150 in the event of an imminent hazard as defined in OAR 340-172-0010(17).

[ED. NOTE: The Appendix referred to or incorporated by reference in this rule is available from the agency.]

Stat. Auth.: OL 1993, Ch. 661 
Stats. Implemented: OL 1991, Ch. 863 
Hist.: DEQ 29-1991(Temp), f. 12-18-91, cert. ef. 12-20-91; DEQ 14-1992, f. & cert. ef. 6-11-92; DEQ 8-1994, f. & cert. ef. 3-22-94

 

340-172-0130

Enforcement and Termination of Financial Assistance

(1) The Department may terminate financial assistance and require repayment of any financial assistance by any person receiving financial assistance under these rules if the person:

(a) Fraudulently obtains or attempts to obtain financial assistance;

(b) Knowingly fails to report any release of a regulated substance at the UST facility as required by OAR 340-122-0220 if the release occurred before or after filing an application under these rules;

(c) Is ordered by the Department to comply with the requirements of Chapter 340, Divisions 172, 174, 175, 176 and 178 and applicable underground storage tank regulations in OAR Chapter 340, Divisions 122, 150, 160, and 162; or

(d) A civil penalty is assessed by the Director.

(2) A written determination to terminate financial assistance shall be made by the Department for each affected facility and shall identify the facility, the UST project work, the financial assistance benefits, the persons responsible for repayment of the financial assistance, and the schedule for repayment of the financial assistance monies to the Department. Repayment shall be required for all monies expended for financial assistance under these rules including fees paid by the Department directly related to financial assistance at this facility.

(3) Any person applying for assistance or receiving financial assistance under there rules is subject to the enforcement requirements of ORS 466.895 and 466.995 and OAR Chapter 340, Division 12.

(4) Any person subject to enforcement under this section may appeal the enforcement action in accordance with OAR 340-172-0110 and OAR Chapter 340, Division 11.

Stat. Auth.: ORS 466.706 - ORS 466.895 & ORS 466.995 
Stats. Implemented: OL 1991, Ch. 863 
Hist.: DEQ 29-1991(Temp), f. 12-18-91, cert. ef. 12-20-91; DEQ 14-1992, f. & cert. ef. 6-11-92

 

340-172-0140

Cost Containment

(1) To assure appropriate expenditure of financial assistance funds, the Department may require a person receiving financial assistance under these rules to manage UST project work under the direction of the Department. The Department may require the applicant to:

(a) Delay start of the UST project work where adequate funds are not available from the UST Compliance and Corrective Action Fund to complete the UST project work, as scheduled;

(b) Suspend or stop UST project work where:

(A) UST project work is not in accordance with these rules; or

(B) Adequate funds are not available from the UST Compliance and Corrective Action Fund to complete the UST project work.

(c) Seek alternate bids or project proposals where the Department determines the applicant's bid or proposal for the UST project work is at least 20 percent greater than similar UST project work;

(d) Select alternate bids or project proposals where the alternate bid or proposal required in subsection (c) of this section is at least 20 percent less than the applicant's bid or proposal; or

(e) Reduce scope of the UST project work where adequate funds are not available from the UST Compliance and Corrective Action Fund to complete the UST project work. The reduction in project scope may include, but is not limited to:

(A) Size of each UST;

(B) Number of USTs;

(C) Type of leak detection system;

(D) Type of spill and overfill prevention equipment; and

(E) Cleanup to meet cleanup standards that are not more restrictive than OAR Chapter 340, Division 122.

(2) The Department shall not pay any UST project work costs that exceed the estimated cost by 20 percent or more, as shown on grant, loan guarantee or reduced interest rate confirmation letters, unless the applicant files a modified financial assistance application, the cost appears reasonable based upon generally accepted construction and corrective action cleanup practices and funds are available from the USTCCA Fund. The filing date of a complete modified application will be used to determine funding priority in accordance with OAR 340-172-0080.

Stat. Auth.: ORS 466.706 - ORS 466.895 & ORS 466.995 
Stats. Implemented: OL 1991, Ch. 863 
Hist.: DEQ 29-1991(Temp), f. 12-18-91, cert. ef. 12-20-91; DEQ 14-1992, f. & cert. ef. 6-11-92

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