UST Program - Local Guidance (LG) 56

To: Local Agencies

This letter transmits a legal analysis in response to questions regarding the obligation of third parties to report unauthorized releases from underground storage tanks.  The State Board legal staff has determined that the underground tank law holds only tank owners and/or operators responsible for leak reporting and subject to penalties for failure to comply with reporting requirements.

If you have any questions, contact us.

Sincerely,

[Original signed by:]
Roger Johnson, Chief
Land Disposal Section
Division of Water Quality

Enclosure

Mr. Pat Wright
The Circle K Corporation
Convenience Food Stores
5811 Manzanita Avenue
Carmichael, CA 95608

LEGAL REQUIREMENT TO REPORT KNOWN MOTOR FUEL CONTAMINATION

Thank you for your February 18, 1987 letter requesting clarification of the unauthorized release (leak) reporting requirements of the underground storage tank law (Health and Safety Code, Division 20, Chapter 6.7 Sections 25280 through 25299.6). You raise this issue from the standpoint of a potential purchaser of a store site who might learn of a leak through a hydrocarbon site assessment. The underground storage tank law imposes a leak reporting responsibility on the operator.  This law does not require a potential purchaser of a site where a leak has occurred to report the leak to the local implementing agency.  We have also included some information (from Chapter 6.5 of Division 20 of the Health and Safety Code) on land use restrictions that may apply to sites with contamination.

To answer your specific questions:

Question

1. Under California laws would our company or the owner/operator be responsible for reporting the contamination to the. governmental regulatory agencies?

Answer

Under California law, the operator is specifically responsible for reporting leaks under Section 25295(a).

In the event we furnish the owner/operator with all reports and data concerning the contamination, and they fail to report to the regulatory agencies, are we liable for penalties under present law?

Answer

No. The operator is liable for civil penalties under Section 25299(a)(4) and criminal penalties under Section 25299(d) for failure to report a leak.  The owner is liable for civil penalties under Section 25299(b)(4) for knowing failure to ensure compliance with the law by the operator.  These penalty provisions do not apply to a potential buyer.

3. Under California laws, are both the buyer and the seller obligated to report known contamination to the appropriate governmental agencies?

Answer

No. The seller, as the owner of record, is liable for penalties for knowing failure to ensure compliance with the law by the operator.  Buyers of real property do not automatically acquire an obligation to report contamination, under the underground tank law, when they buy land.  If you become the owner of real property that shows contamination, you should contact the responsible local agency implementing the underground tank program.  A leak report, which the local agency can provide, should be filled out if the local agency is not aware of the contamination.

If you decide to buy real property that is contaminated, it may be subject to Article 11 of Chapter 6.5, which covers hazardus waste disposal land use.  To summarize this article restricts certain land uses where a significant disposal of hazardous waste has occurred.  For additional information on the requirements of Article 11, please contact Judy Tracy at the Department of Health Services, 1531 I Street, Sacramento 95814, telephone (916) 445-2013.

Sincerely,

[Original signed by:]

James W. Baetge, Chief
Division of Water Quality