Reproduced with permission for the InterAm Database 1996.
National Law Center for Inter-American Free Trade
Arizona Supreme Court
Arizona/Sonora
Judicial Relations Project
National Law Center for Inter-America Free Trade
Underground Storage Tanks
by
Lic. Rocio Algora Wesolowski
and
Lisa Michelle Le Grand, Esq.
March 1996
Funded by State Justice Institute (SJI)
Acknowledgement
We would like to take this
opportunity to acknowledge the
assistance of the National Law
Center for Inter-America Free
Trade and Professor David A.
Gantz. Special recognition is
given to the authors: Lic. Rocio
Algora Wesolowski and Lisa
Michelle Le Grand, Esq. Finally,
we would like to thank the State
Justice Institute without whose
financial assistance this report
would have been impossible.
TABLE OF CONTENTS
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
PART I
Historical Background of Underground
Storage Tanks in Mexico
and the United States . . . . . . . . . . . . . . . . . . . . . . 4
PART II
Legal Framework and Definition of
Underground Storage Tank . . . . . . . . . . . . . . . . . . . . . . 8
PART III
Life of an Underground Storage Tank
and the Potential for Leaks. . . . . . . . . . . . . . . . . . . . . 25
PART IV
Steps Required when a Release is
Detected from an UST . . . . . . . . . . . . . . . . . . . . . . . . 40
PART V
Financial Responsibility for Leaks. . . . . . . . . . . . . . . . 49
PART VI
Legal Remedies Available when a Leak
has Occurred . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
PART VII
Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
"Petroleum is quite possibly the most
valuable resource on the planet...
Literally thousands of products used in
our daily lives are directly or indirectly
made from petroleum, including:
solvents used in paints and dry
cleaning fluids, lubricants, from
spindle oils to heavy greases; specialty
oils for hydraulic fluids, transformer
emulsions, cutting fluids, and inks;
paraffin wax used in the production of
candles, waxes, soaps, medicines,
detergents, and candies; and petroleum
greases for use in medicinal creams
and ointments. Petroleum is an
invaluable commodity in our daily
lives."
INTRODUCTION
Unfortunately, petroleum and the
petrochemical industry have caused a great
deal of environmental degradation to
underground water sources and the land
surrounding them. The Environmental
Protection Agency (EPA) estimated that
approximately fifty percent (50%) of the US.
population depends on ground water as their
source of drinking water. The EPA also
estimated in a study in 1986, that a leak of one
gallon of gasoline can contaminate the water
supply of 50,000 people in the United States.
The greatest cause for this type of pollution to
ground water is from leaking underground
storage tanks (UST's), used to store petroleum.
The Office of Technology Assessment
identified ground water contamination by
carcinogenic and toxic compounds from
leaking underground petroleum tanks as "one
of the most significant environmental threats
facing the United States."
Though the US. has probably the largest
number of corner gas stations and
independent petroleum dealers in the world,
this problem is not limited to the United States.
Underground storage tanks and other
petroleum related leaks are causing
environmental concerns in Mexico as well.
Leakage of petroleum products from USTs are
a concern since they can cause environmental,
as well as health risks. These health risks can
include explosions from vapor leaks, and
contamination of ground soil and ground
water from liquid leaks.
"There are at least three readily
identifiable areas where gasoline tank
leaks cause harm: 1) contamination of
ground water, 2) direct inhalation of
petroleum vapor, and 3) explosive and
fire threat from the collection of
petroleum vapor. In addition, there is a
large category of harm that is not so
apparent--the economic loss caused by
the costs of alternative water supplies,
clean-up, lost wages, decreased real
estate values, decreased agricultural
productivity, and social dislocation
costs."
A secondary concern from leakage of an
underground storage tank is the liability for
cleanup. Many of the following questions
arise when a leak has occurred: Who will pay
for cost of clean up? Damages to property?
Damages to persons (i.e., health related issues)
or damage to the surrounding environment by
a leaking UST? Can the person who owns the
UST afford to pay? If not, should the state or
federal governments help clean up or pay?
Who is the UST owner? Is the owner the
person who installed the tank, or the new real
estate purchaser who has no knowledge of the
tank, much less the leak? Clean up costs alone
are extremely expensive in the United States.
For example, "cleanup costs for a single site
range from $20,000 to $1 million. The
average cost rose from $85,000 in 1989 to
$135,000 in 1990."
The purpose of this paper is twofold: 1) To give
the American lawyer, and more specifically an
Arizona lawyer, a general overview of
Mexican environmental law as compared to
the United States, and 2) to more specifically
deal with the problem of installation and
liability concerning the storage of petroleum
in underground storage tanks in the States of
Sonora and Arizona. Part I of this article will
show the historical differences behind the use
of USTs in the United States and Mexico. Part
II will attempt to lay out the legal framework
of the two countries, giving an overview of the
structure of the environmental regulations
pertaining to underground storage tanks and
explain what an underground storage tank is.
Part III will explore the installation and
closing of a tank, as well as various leak
prevention equipment for tanks in use. The
overarching emphasis in this section is how
leaks may be caused during these various
stages of the life of a tank. Part IV will discuss
the steps to take when a leak or release occurs.
Part V will examine the use of insurance and
other means of financial responsibility for the
owner of a tank that has a leak. Part VI
pertains to liability for USTs, as well as the
legal remedies available in the two countries
when a leak has occurred. Part VII will
conclude that although steps need to be taken
to prevent leaks in the future, the two
countries can learn from each others'
experiences and laws to come to a better
solution for all concerned.
PART I
HISTORICAL BACKGROUND
OF UNDERGROUND STORAGE
TANKS IN MEXICO AND
THE UNITED STATES
PART I
HISTORICAL BACKGROUND OF UNDERGROUND STORAGE
TANKS IN MEXICO AND THE UNITED STATES
To understand a law it is logical to look to its
historical background to understand the
reason for its implementation and purpose.
"Oliver Wendell Holmes, Jr., the United
States first great legal historian, told us
'a page of history is worth a volume of
logic,' and 'the life of the law has not
been logic: it has been experience'."
This section will develop the use of
underground storage tanks in the United
States and Mexico by looking at the roles the
petroleum industries have played in the
history of each country. Not only are the
environmental legal structures completely
different between these two NAFTA countries,
the purposes are different as well. The present
law concerning underground storage tanks in
the United States is designed to limit future
contamination from past unregulated
practices. In Mexico, the industry relating to
the distribution of petroleum has always been
regulated as state owned entities; however,
environmental regulation is a new burgeoning
field.
A. UNITED STATES
"A seemingly innocent feature of the
modern American landscape, corner
gasoline stations are everywhere.
But buried beneath every station
there is an environmental disaster
waiting to happen: the underground
storage tank."
The history of underground storage tanks
in the United States are ultimately linked
with the "filling station."
"The past seventy years constitute the
automobile age in the United States.
During this time, as many as one
million filling stations, each with a
life expectancy of about fifteen years,
have come and gone. When Henry
Ford's introduction of the mass-
produced, gasoline-powered Model T
in 1909 opened the market to mass
consumption of horseless carriages,
the only gasoline distribution stations
around were general stores using
barrels for storage and buckets as
dispensers. A fill up was a messy,
downright dangerous task. Invention
followed need, however, and, in the
early 1910's, the introduction of
pumps to dispense gasoline allowed
the burial of storage tanks
underground."
Filling stations dominated the retail
gasoline distribution industry, since they
were a means to independent
entrepreneurship for people across the
country. By 1910, retail gasoline stations
accounted for almost half of all gasoline
sales, and by 1929 more than 120,000
filling stations nationwide accounted for
nearly 92 percent of all gasoline sales. In
1939, independent filling stations were at
their peak, accounting for almost one-
quarter million stations across the
nation.
Today, many of the tanks remain from
"bygone filling stations," or if they were
removed, many owners did not check for
residual contamination to the ground soil
or underground water tables. Today, there
are fewer gas stations, however, these
modern stations tend to have 3 or 4 larger
tanks. With the choice of fuels from
leaded, unleaded, premiums of unleaded
and diesel, each type of fuel needs its own
tank.
In addition to filling stations, there are
many other types of private underground
storage tanks for farm houses or suburban
residences outside the urban
infrastructure, which held gasoline,
heating oil and liquefied petroleum gas.
This type of private tank has been used to
store petroleum by facilities such as:
gasoline stations, taxi companies, rental
car agencies, fire departments, post offices,
marinas, airports and construction
companies. Unfortunately, both types of
tanks, private or filling station, are causing
serious hazards to the environment
surrounding them.
B. MEXICO
In many Latin American countries,
"hydrocarbons constitute the exclusive
property of the nation" and Mexico is no
exception. The Mexican Constitution
provides a national monopoly stating that
oil and all solid, liquid and gaseous
hydrocarbons are owned by the state. The
state gained its monopoly in 1938, when
President Lazaro Cardenas confiscated
the oil field's from foreign ownership and
nationalized the petroleum industry. The
Mexican Constitution also prohibits
Petroleos Mexicanos (PeMex) from
making concessions or contracts
regarding their mandate of the Mexican oil
exploitation. In other words, if PeMex
wanted to hire out any activity relating to
oil exploitation, it would be a violation of
their Constitutional directive. Moreover,
this monopoly to PeMex extends to any
activity related to exploration of oil and to
the actual distribution of its petrochemical
bi-products. To put it simply, the
production and sale of petroleum is done
solely by the state through the entity
known as PeMex.
Under this legal framework, any
distribution of petroleum is done by direct
license from the state through PeMex.
PeMex lays out the specific standards that
a distributorship must adhere to before it
may sell petroleum. All petroleum in
Mexico, in such distributorships, is stored
in underground storage tanks (tanques
subterraneos). In Mexico, there are no
other use for USTs, except as used by
PeMex distributors. All other chemicals
are stored in above ground tanks (tanques
superficiales). In sum, the cropping up of
independent unregulated filling stations
did not occur in Mexico as it did in the
United States, since the sale of petroleum
is strictly regulated by Constitutional
mandate. Mexico regulated underground
storage tanks and the distribution of
gasoline prior to many of the
environmental problems facing the U.S.
occurred in Mexico. Even though the
distribution of petroleum and the use of
underground storage tanks are regulated,
Mexico still faces issues of liability for
leaks and new environmental regulation.
For example, Mexico does not require an
owner of a distributorship to have liability
insurance or proof of financial
responsibility.
PART II
LEGAL FRAMEWORK AND
DEFINITION OF AN
UNDERGROUND STORAGE TANK
PART II
LEGAL FRAMEWORK AND DEFINITION OF AN
UNDERGROUND STORAGE TANK
A. LEGAL FRAMEWORK
When making any comparative analysis of
Mexican and US. laws, it must be
remembered that the two countries come
from entirely different legal systems and
mental frameworks. The United States
has a common law tradition, based on
judicial interpretation of the law and a long
history of precedence. The Mexican legal
system is based on the civil law system,
where the civil code, "Codigo Civile," is
relied on more than judicial interpretation
or precedence.
"For centuries, civil lawyers have
been taught to discover legal
principles as articulated over time
by legal scholars and incorporated
into positive law by legislators.
Civil lawyers are trained to apply
logic. Specific results are derived
from general principles. As one
commentator has noted, [t]o
paraphrase Holmes by inversion,
the life of the civil law has not
been experience but logic."
The central feature of any civil law
country is the existence of a code. A code
such as the Codigo Civile is:
"A compendium of laws, a body or
corpus of legal provisions relating
to a particular matter. It is more
specifically, a 'collection of laws or
regulations gathered under one
whole corpus, containing a more
or less complete system of rules
on one of several legal matters.' It
is the product of the 'esprit de
methode' applied to legislation."
"A code is then characterized by
two fundamental functions: it
gathers together written rules of
law and it regulates different
fields of law."
The basic premise or theory behind the
modern civil code is that the code is a new
reformulation of the law as it exists at that
moment. The civil law practitioner will
not study the history of a law (i.e., pre-code
interpretations), but simply view it upon
its own foundations. The civil lawyer will
simply look at the text of the code and
interpret it "in the light of its own
provisions and definitions."
"Surely, the principal function of a
Code is to abolish the past. At least a
common lawyer assumes that was the
theory on which the great civil law
codes were based. From the date of the
Code's enactment, the pre-Code law is
no longer available as a source of law.
The gaps, the ambiguities, the
unforeseen situations cannot be
referred for decision to the
accumulated wisdom of the past. There
is a fresh start, a new universe of legal
discourse, in which the only
permissible way of solving a problem is
to find (or pretend to find) the answer
in the undefiled, the unconstrued, the
uncontaminated text of the Code
itself."
More important than the differences in law
itself, in the area of the environment, there
is a greater use of administrative
proceedings in Mexico.
"The main practical difference
between the two legal systems lies
in the significantly greater
reliance within the Mexican
system on administrative
proceedings for enforcement
rather than litigation. This means
a far less active role in
environmental enforcement for
the Mexican judiciary compared
to the US. judicial system and
greater power within the
administrative governmental
bodies of the executive branch. It
also means that Mexico places a
much higher priority on
negotiating with the regulated
community as a means of
resolving disputes."
Remembering the general differences of
implementation and enforcement between
the two countries, the relevant laws and
regulations pertaining to underground
storage tanks have similar purposes: to
protect health and human safety from
leaks into underground water tables,
including explosions or fires from leaking
tanks or piping, and to protect the
environment. The basic goals for Mexican
and U.S. regulations alike are to find and
prevent leaks and spills, to correct any
environmental and health problems
created by leaks, and in the U.S. to make
sure owners and operators of UST's can
pay for the correction of problems created
by their UST's leaks.
B. UNITED STATES
Legislation and regulations in the United
States, in general, are concerned with the
abatement of pollution and the clean-up of
environmental contamination. For
underground storage tanks, the laws
impose strict liability on landowners for
environmental contamination on their
land (caused by leaks) and enforce strict
compliance with regulations promulgated
by the EPA and implemented through EPA
approved state UST programs.
1. Federal Level
In response to the growing need for
proper disposal and treatment of
hazardous waste in the United States,
Congress enacted the Resource
Conservation and Recovery Act
(RCRA) in 1976. Congress
empowered the Environmental
Protection Agency (EPA) to prescribe
standards to protect health and the
human environment concerning the
storage and disposal of hazardous waste
as well as other regulated substances. In
1984, RCRA was amended by the
Hazardous and Solid Waste
Amendments (HWSA) to include
regulation of underground storage
tanks containing petroleum products
and other hazardous chemicals.
With the intention to prevent ground
water pollution, RCRA imposes strict
and complex management standards for
the storage of regulated chemical bi-
products. The EPA regulations aid in
detection, correction and prevention of
leaks in existing tanks, as well as,
providing standards for installation of
new tanks. The following are the eight
categories of standards covered by
RCRA relating specifically to
underground storage tanks: notification
of the tanks existence, leak detection,
records maintenance, release
reporting, corrective action, tank
closure, financial responsibility, and
performance standards for new tanks.
RCRA also provides for a Leaking
Storage Tank Trust Fund from federal
taxes on fuel, which is used by the
federal government to clean up leaks
when the responsible party can not be
identified. In addition, RCRA may
permit civil suits to enforce RCRA
standards under section 7002, which
compliments the regulations under the
Comprehensive Environmental
Response, Compensation, and Liability
Act (CERCLA).
Enacted in 1980, CERCLA or
Superfund's principle purposes were to
govern improper disposal of hazardous
waste and promote the cleanup of
contaminated sites. CERCLA was
intended to act "independently of and in
addition to" other environmental
statutes, such as RCRA. Both
CERCLA and RCRA can govern the
same site at the same time.
CERCLA authorizes the federal
government to step in and clean up any
leak of a regulated or controlled
substance, as well as establishing a trust
fund for this clean up. CERCLA also
authorizes penalties and restitution
against a person who is responsible for
environmental contamination due to a
leak. CERCLA may permit the EPA to
use the Superfund clean up for leaking
underground storage tanks and to
recover from the responsible party for
those costs.
CERCLA liability is determined by
whether a substance is classified as a
hazardous substance. Hazardous
substances under CERCLA include
substances and pollutants listed in the
Clean Air Act, the Clean Water Act,
hazardous wastes listed in the Solid
Waste Disposal Act (RCRA
Amendments), and toxic substances
listed in the Toxic Substances Control
Act.
It must be noted that CERCLA
specifically excludes petroleum.
However, it has been argued that
CERCLA may apply to releases of
petroleum products with "substances
other than their indigenous components
and common additives."
In sum, a cause of action is not available
under CERCLA if the substance
released is petroleum or some natural bi-
product of petroleum. However, if the
substance released is a foreign,
otherwise regulated substance, then
CERCLA would apply.
"Whether an aggrieved party has a
cause of action under CERCLA for
a leaking UST will depend upon the
substance leaked. If the UST
contained hazardous substances
other than petroleum with its
indigenous components and
common additives, the injured
party will not be barred from
pursuing relief under CERCLA for
any harm suffered. If, however, a
UST contained only petroleum
with its indigenous components
and common additives, the injured
party does not have a CERCLA
cause [of] action against the
polluter."
Congress has empowered the EPA to
make extensive implementing
regulations for underground storage
tanks pursuant to RCRA and CERCLA.
These regulations, which supplement
the law, are listed in the Code of Federal
Regulations.
2. State Level - Arizona
In the United States, there exists a two-
tier system of governmental regulation
of environmental issues and protection.
There is first the federal level, as stated
above, regulated by the federal statute
(RCRA and CERCLA in the case of
USTs) and regulations (in the Code of
Federal Regulations) promulgated by
the EPA. The second tier is the state
level. In the case of underground
storage tanks, there are two options for
state regulation: an independent
federally approved state program, or
state law which is authorized to regulate
USTs according to strict federally
approved standards.
In a few states, the state administrative
agency for environmental quality has
been authorized by the EPA to
implement an independent program
which takes the place of federal
legislation. In other words, the state
program supplants federal law in
implementation and enforcement of
underground storage tanks. Before a
program becomes effective, the EPA
must approve of the state legislation and
verify that the state has meet the high
standards that the federal law requires.
After May 8, 1987, any state is
permitted to submit an underground
storage tank release detection,
prevention, and correction program for
review and approval by the federal
administrative agency (the EPA). A
state program may not be approved until
the state demonstrates that the state
program includes certain requirements
for maintaining a leak detection system,
for maintaining records of any
monitoring or leak detection system, for
reporting releases, any corrective action
for releases, for closure of tanks and
evidence of financial responsibility.
A state program may only be approved if
the requirements applied by the state are
no less stringent than the corresponding
requirements standards promulgated by
the administrative agency. Within one
hundred and eighty (180) days after the
date of receipt of the proposed state
program, the administrative agency,
after notice and an opportunity for
public comment, must make a
determination whether the state's
program complies with the provisions
of the federal legislation and provides
for adequate enforcement of
compliance. If the state program is
approved, then the state program would
apply "in lieu" of the federal program and
the state would have primary
enforcement responsibility with respect
to the requirements of its program.
The second option for state regulation of
underground storage tanks is the
enforcement of federal legislation in the
state. This occurs when there is no
independent federally authorized state
program. Therefore, the state is
authorized by the EPA to enforce
federal law in the state, no less
stringently than the EPA would. There
is nothing in the federal legislation that
precludes or denies any right of any
state or political subdivision to adopt or
enforce any regulation, requirement, or
standard of performance respecting
underground storage tanks that is more
stringent than its counterpart in effect
under federal legislation, or to impose
any additional liability with respect to
the release of regulated substances
within such state or political
subdivision. If there is a conflict
between state and federal law, the
federal law preempts state law.
In the case of Arizona, as with many
other states, the EPA promulgates
regulations concerning underground
storage tanks that must be implemented
no less stringently by the state
administrative agency. In Arizona,
that agency is the Arizona Department
of Environmental Quality (ADEQ).
Arizona does not have a program that
has been approved to supplant federal
law, so ADEQ implements and enforces
federal law and any Arizona additions.
Arizona, through the work of ADEQ,
has proposed a state program that it
hopes to take effect in early 1997. The
proposed legislation went into the
informal comment period in the state of
Arizona in June, 1995.
"The legislature finds that the
environment and health of the
people of this state are endangered
by the release into the surface
water, ground water and
subsurface soils of this state of
regulated substances from
underground storage tanks. It is
therefore the intent of the
legislature by this act to establish a
program for the regulation of
underground storage tanks which
implements the requirements of
the provisions of Title VI of the
Hazardous and Solid Waste
Amendments of 1984 (P.L. 98-
616; 98 Stat. 3221; 42 United
States Code 6991a through
6691h)."
Arizona's laws pertaining to
underground storage tanks appear in
the Arizona Revised Statutes, Title 49,
Chapter 6 1001-1071 and the
implementing legislation enacted by
ADEQ appears in the Arizona
Administrative Code, Title 18, Chapter
12. These laws follow almost to the
word the federal legislation in RCRA
and the implementing regulations of the
EPA.
3. Who is the Regulatory Authority?
With all the laws of the two
governments, state and federal, who
regulates underground storage tanks?
In the case of implementation, the state
agency must implement federal law "no
less stringently" than the EPA would,
unless the state has an EPA approved
program. In the case of enforcement of
environmental regulations, both the
state and the federal government can
come in and enforce the rules pertaining
to a specific leak. However, states have
the primary enforcement
responsibility.
"Although RCRA is federal
legislation, it is a minimum
requirements act, allowing states to
legislate more stringent
prescriptions if they so desire.
Therefore, while RCRA prescribes
standards for regulating federal
underground storage tanks, it is the
state which ultimately determines
the means by which the tanks are
policed."
C. MEXICO
When looking at Mexican law, it most be
noted that Mexico is a civil law country
that uses complex regulation in place of
judicial or administrative proceedings for
environmental enforcement.
Underground storage tanks are no
exception. In Mexico, USTs are used
solely for the storage of petroleum and
petroleum based products. The
distribution of petroleum is highly
regulated by PeMex through their
Constitutional monopoly. They regulate
who is able to get a distributorship of
petroleum and then how their tanks are to
be designed, installed and checked for
releases. The appropriate administrative
agency issues permits, requires impact
statements and regulates leaks and any
potential harm to the environment.
1. Federal Level
An important aspect of Mexican law is
that the powers of the government to
formulate and enforce the law is derived
directly from the Constitution
(Constitucion Politica de los Estados
Mexicanos). For example, pursuant to
Article 28 of the Mexican Constitution,
PeMex is authorized to have a national
monopoly on oil and its bi-products.
From this Constitutional mandate,
PeMex is able to regulate every aspect of
the petroleum industry, from
exploration to distribution.
Also, there are three basic
Constitutional provisions which give
power to the government to regulate the
environment and protect natural
resources: Article 25, Article 27 and
section 16 of Article 73. Article 25 and
27 of the Mexican Constitution provide
the central authority for environmental
protection and regulation of natural
resources for the benefit of the public.
Article 25 of the Constitution provides:
"Corresponde al Estado...Bajo
criterios de equidad social y
roductividad apoyar e impulsar a
las de los sectores social y privado
de la economia, sujetandolos a las
modalidades que dicte el interes
publico y al uso, en beneficio
general, de los recursos
productivos, cuidando su
conservacion y el medio ambiente."
Article 27 of the Constitution, dealing
with conservation of land and natural
resources, authorizes the Mexican
government to "impose measures on
owners of private property to protect the
general public's well being." Article 27
states:
"La Nacion tendra en todo tiempo el
derecho de imponer a la propiedad
privada las modiladades que dicte
el inters publico, asi como el de
regular, en beneficio social, el
aprovechmiento de los elementos
naturales susceptibles de
apropiacion, con object de hacer
una distribucion equitative de la
riqueza publica, cuidar de su
conservacion, lograr el desarrollo
equilibrado del paid y el
mejoramiento de las condiciones de
vida de la poblacion rural y
urbana."
The Mexican governments ability to
promulgate legislation protecting
human health from environmental
pollution is derived from Article 73 of
the Mexican Constitution. More
specifically, Section 16 of Article 73
authorizes the federal government to
regulate sanitation, cleanup of
environmental hazards and all aspects
of environmental pollution in general.
Article 73 section XVI provides:
"El Congreso tiene facultad:
(3a) La autoridad sanitaria ser
ejecutiva y sus disposiciones ser n
obedecidas por las autoridades
administratives del pais.
(4a) Las medidad que el Consejo
haya puesto en vigor en la campna
contra el alcoholismo y la venta de
sustancias que envenenan al
individuo o degeneran la especie
humana, asi como las adoptadas
para prevenir y combatir la
contaminacion ambiental, ser en
despus revisadas por el Congreso
de la Union, en los casos que le
competan;"
The key components of the legal
environmental framework in Mexico,
which form a three tiered system of
regulation below the Mexican
Constitution are the laws (leyes), the
environmental regulations
(reglamentos) and the ecological
technical norms (Normas Officiales
Mexicanas). The central piece of
environmental legislation in Mexico is
the General Law of Environmental
Protection and Ecological Balance (Ley
General del Equilibrio Ecologico y la
Proteccion al Ambiente - GEL),
enacted Jan 28, 1988. This legislation,
enacted by the Mexican Congress of
Deputies, replaced the 1972 law, and
provides a comprehensive legal
framework for governmental protection
of natural resources and environmental
regulation. The 1988 General
Environmental Law is composed of 6
titles, 25 chapters, and 194 articles.
This Law establishes a comprehensive
scheme for the regulation of air
pollution, water pollution, the handling
of hazardous wastes, vehicle
inspections, pesticides, as well as,
requiring environmental impact
statements for any activities that may
have an adverse impact on the
environment.
The second tier is comprised of the
"reglamentos," which like the
regulations in the United States,
implement the federal environmental
law, in this case the General
Environmental Law. These regulations
are promulgated by the President of the
Republic in conjunction with the
appropriate administrative agency. As
with any legislation in Mexico, to have
the force of law, these regulations must
be signed by the President and endorsed
by the Secretary of the appropriate
federal agency.
The final tier are the actual ecological
technical standards promulgated by the
federal administrative agency. Article
36 of the General Ecology Law, defines
these standards or norms as:
"A series of scientific or technical
rules issued by the [administrative
agency], which set forth the
requirements, specifications,
conditions, procedures, parameters
and permissible limits that must be
observed in the performance of
activities or in the use of goods,
which cause or may cause
ecological imbalance or harm to the
environment, rules which, also,
permit uniform principles, criteria,
policies and strategies in relation to
the subject."
In Mexico, the norms protect the
environment by regulating the medium
and the industry that causes the
pollution. All the proposed norms and
regulations must be published in the
Official Journal of the Federation
(Diario Oficial de la Federacion), where
they will be open to a public comment
period.
The federal administrative agency that
is principally responsible for
environmental protection and natural
resource conservation is the Secretariat
of Fishing and Protection of the
Environment, as published in the Diario
Oficial de la Federacion on 12 December
1994. This ministry has just recently
replaced the Secretariat of Social
Development (SEDESOL). SEDESOL
was created in 1992, when it replaced
the Secretariat for Urban Development
and Ecology (SEDUE).
"SEDESOL, a cabinet-level agency,
was originally created as a part of
the Mexican Government's
economic development reform
program, and therefore oversees
regional development, urban
development, housing, and
indigenous peoples, in addition to
environmental protection and
conservation of natural
resources."
The Secretariat of Fishing and
Protection of the Environment, like
SEDESOL, consists of two internal
autonomous agencies known at the
National Institute of Ecology (INE) and
the Office of the Attorney General for
Protection of the Environment
(PROFEPA). The INE is responsible
for Mexico's overall environmental
policy formulation and implementation.
This agency is responsible for
promulgating the technical standards
regulating the various areas of the
environment, issuing permits,
overseeing environmental impact
statements and for conducting further
research on environmental protection
and conservation of natural resources.
PROFEPA is responsible for
monitoring compliance with the
legislation promulgated by INE, the
investigation of alleged violations of the
law and the enforcement of
environmental regulations. This agency
can conduct environmental audits as a
part of their investigative power. It may
also refer violations to the Attorney
General at the Secretariat of Justice for
criminal sanctions, as a part of their
enforcement power.
2. State Level - Sonora
One of SEDESOL's principle functions
was to decentralize Mexican
environmental programs and encourage
an increase in state and municipal
environmental action.
"In Mexico there is a trend towards
decentralization of environmental
authority from Federal to state and
local governments. The General
Law of 1988 is the basis for this
distribution of authority between
federal and state levels....the trend
is towards giving state and local
governments greater responsibility
as regards environmental policy-
making and enforcement."
Title I, Chapter II of GEL authorizes
states and local governments, in
coordination with federal
administrative agencies to regulate the
environment if state laws were not
inconsistent with federal law.
"The Mexican states are authorized
to adopt legislation relating to
environmental issues, except with
respect to those issues that are
reserved exclusively to the federal
government, provided that the state
laws and regulations may not be
inconsistent with federal laws and
regulations relating to the same
subjects."
As of September, 1992, twenty nine (29)
of the thirty one (31) states of the
Mexican Republic had enacted their
own ecology laws. The State of Sonora
has also adopted its own environmental
law, the Law 217, Concerning
Environmental Equilibrium and the
Protection of the Environment for the
State of Sonora (Ley Numero 217, Del
Equilibrio y la Proteccion al ambiente
para el Estado de Sonora). The law is
comprised of seven titles which deal
with ecological policy, protected natural
areas, protection of the environment,
social participation, the regulatory
power of the government and control
and safety standards. Pursuant to the
Law 217 of the state of Sonora, the state
administrative agency that implements
and enforces the law is the Secretariat of
Urban Infrastructure and Ecology
(Secretaria de Infraestructura Urbana
y Ecologia).
D. WHO IS THE REGULATORY AUTHORITY?
The state has the authority to implement
and enforce federal law as long as it does
not conflict with federal legislation. When
state law does conflict with federal law,
then federal law prevails. In other words,
as in the United States, federal law
preempts state law when there is a conflict.
The state has the primary responsibility in
regulating underground storage tanks in
Mexico. Unfortunately, underground
storage tanks are not as widely regulated
environmentally in Mexico as they are in
the United States. Under the
Constitutional monopoly, PeMex has the
ability to regulate who is able to get a
petroleum distributorship. Before PeMex
will give a distributorship, the party
requesting it, must follow the instructions
and standards supplied by PeMex for the
installation, monitoring and record
keeping for an underground storage tank.
The responsible party must then gain a
permit for the installation of the tank and
follow other state environmental
regulations pertaining to the tank during
its lifetime. The State administrative
agency then enforces the federal and state
laws promulgated for the protection of the
environment from vapor leaks and liquid
leaks. Some of the requirements are
writing an environmental impact
statement, issuing permits and regulating
leaks.
E. WHAT IS AN UNDERGROUND STORAGE TANK (UST): LEGAL
DEFINITION
1. United States
In the United States an UST is defined
as an one or more underground storage
tanks, including any underground
piping connected to the tank itself,
which is used to contain an
accumulation of regulated substances
and which has at least ten percent (10%)
of its volume underground. Congress
has defined what USTs are regulated by
including all underground storage
tanks, then giving specific exclusions to
tanks not covered by Subtitle 1.
Congress regulates USTs ultimately by
regulating what type of tank is covered,
who is covered by the statute and what
types of substances are regulated.
A regulated substance has been
defined in Subtitle 1 as: (1) any
substance defined in section 9601(14)of
this title (but not including any
substance regulated as a hazardous
waste under subchapter III of this
chapter), and (2) petroleum.
"Thus, the jurisdiction of RCRA
Subtitle 1 is directly dependent on
the definition of a 'regulated
substance.'"
This article has been limited to the
storage of petroleum and petroleum bi-
products (i.e., petroleum-based
substances) in underground storage
tanks.
Congress and the EPA have defined the
type of tanks covered by RCRA Subtitle
1 through two types of exclusions:
definitional and applicability
exclusions. UST's specifically
excluded by definition from regulation
by either Congress or the EPA are:
Farm or residential tank of 1,100
gallons or less capacity used for
storing motor fuel for non
commercial purposes.
Tank used for storing heating oil for
consumptive use on the premises
where stored.
Septic tank.
Pipeline facility (including gathering
lines)....
Surface impoundment, pit, pond or
lagoon.
Storm water or waste water
collection system.
Flow-through process tank.
Liquid trap or associated gathering
lines directly related to oil or gas
production and gathering operations.
Storage tank situated in an
underground area (such as a
basement, cellar, mine working, drift,
shaft, or tunnel) if the storage tank is
situated upon or above the surface of
the floor.
"Certain classes of USTs were
excluded by the EPA in its final
rule, on authority granted by
Congress to determine which tanks
should be regulated, based on
certain factors such as tank usage
and size. These exclusions are
specifically listed under the
'applicability' section of the federal
regulations."
The federal requirements under RCRA
do not apply to: tanks holding
hazardous wastes identified under
Subtitle C of the Solid Waste Disposal
Act, systems used in wastewater
treatment facilities regulated under the
Clean Water Act, equipment or
machinery tanks used for operational
purposes (e.g., hydraulic lift tanks and
electrical equipment tanks), tanks with
a capacity of less than 110 gallons, tank
systems holding a minimal
concentration of regulated substances,
and emergency overflow tanks which
are emptied immediately after use.
Not only are tanks and their substances
regulated by legislation, the people
regulated by Subtitle I as owners and
operators for cleanup and liability
purposes are:
Operator: Any person in control of, or
having responsibility for, the daily
operation of the underground storage
tank;
Owner: (A) in the case of any
underground storage tank in use on
November 8, 1984, or brought into
use after that date, any person who
owns an underground storage tank
used for the storage, use, or
dispensing of regulated substances,
and (B) in the case of any
underground storage tank in use
before November 8, 1984, but no
longer in use on November 8, 1984,
any person who owned such tank
immediately before the
discontinuation of its use.
It must be noted that owners and
operators are jointly and severally
liable. They may decide amongst
themselves who will prove financial
responsibility under the federal and
state laws. However, both are liable in
the event of noncompliance with the
laws and regulations promulgated.
"Simply stated, an owner or
operator of a UST system is under
the jurisdiction of RCRA Subtitle I
if (1)the tank is at least ten percent
underground, and (2) it is used to
contain a 'regulated substance', and
(3) it is not otherwise excluded
from the applicability of Subtitle I
or the definition of an underground
storage tank."
In the state of Arizona, if a person comes
into possession or control of property
where an underground storage tank is
located and the person is not the owner
under the above rules, as stated in A.R.S.
49-1001.01, the person must follow the
requirements of A.R.S. 49-1016(c)
and they will not incur liability as the
owner.
2. Mexico
In Mexico, the environment is protected
by regulating the medium and the
industry that causes the pollution. For
example, underground storage tanks
themselves are not regulated. PeMex's
monopoly allows the state to decide who
shall receive a distributorship of
petroleum, and one cannot gain a
distributorship, unless one meets the
requirements for a tank.
Environmentally, USTs are regulated in
Mexico because the contents of the tanks
are regulated, and industry that causes
the pollution is regulated.
Substances are classified as hazardous
wastes if the substance has any of the
following characteristics: it is
corrosive, reactive, explosive, toxic,
ignitable, and is biological[ly]
infectious. The law then regulates the
industry by stating that there is no
specific source needed to be regulated
(i.e., activities that generate hazardous
wastes can be applied in different
industries or processes). The law also
regulates hazardous wastes by broadly
defining when the activities of the
industries occur:
"El conjunto de actividades fisicas
o quimicas relativas a la
porduccion, obtencio,
acondicionamiento, envasado,
maneho, y embalado de productos
intermedios o finales."
The wastes classified in Table 1, of
which petroleum is one, are considered
to be hazardous. The industry and
process are defined as petroleum
refining, and one of the possible
hazardous wastes are untreated sludges
from storage tanks containing toxic
substances that exceed the limits
permitted under this norm.
In sum, the tanks themselves are only
regulated in Mexico by PeMex who
requires strict compliance with their
tank specifications. These
specifications deal primarily with the
construction, installation and
monitoring equipment that is used in
connection with the distribution of
petroleum from the USTs. The field of
environmental regulation is relatively
new in Mexico; and, therefore, still
general in many areas. The manner in
which the law protects the environment
is by regulating the industry and any
potential mediums they produce that
might adversely affect the environment.
Petroleum is considered a hazardous
waste since it appears in Table 1 and the
activity of storage or containment of the
product is regulated in the norma as
well.
PART III
LIFE OF AN
UNDERGROUND STORAGE TANK
AND THE POTENTIAL FOR LEAKS
PART III
LIFE OF AN UNDERGROUND STORAGE TANK
AND THE POTENTIAL FOR LEAKS
A. UNITED STATES
1. Requirements for the Installation of
New Petroleum Underground Storage
Tanks: Installation and Certification
All the tanks and piping must be
installed by a qualified installer
following proper industry standards.
Proper installation is required as a way
to prevent the risk of leaks due to
shifting and structural failure of the
tank.
Under Arizona law, owners of
underground storage tanks are required
to notify the Arizona Department of
Environmental Quality about the
installation of a new tank. This same
notification is used to inform ADEQ of
any change in relation with the
installation, closure, method of release
detection, or change in ownership, etc.
In this case, the notification should be
submitted within 30 days of
installation.
The notification form provides:
Type of notification: new facility,
amendment to an existing facility, or
a closure of a facility.
Ownership of tanks.
Operator of the tank.
Location of the tank.
Type of owner: Federal Government,
State Government, local Government,
Private, Commercial, or Indian
Country.
Type of facility: gas station,
petroleum distributor, air taxi,
utilities, automobile dealership,
railroad, industrial, etc.
Financial Responsibility
requirements.
Map and diagram.
Description of the tank: date of
installation, total gallon capacity,
substance currently or last stored in
the tank, material of construction
(tank and piping), product piping,
release detection, emergency
generator.
Status of the tank: currently in use,
temporary closure, permanent
closure, change in service and
evidence of release.
Certification.
Tank installation or upgrade
certification: installation, spill and
overfill protection and corrosion
protection.
2. Corrosion Protection
Tanks and piping must be protected
against corrosion through cathodic
protection, fiberglass coating, steel tank
clad with fiberglass or other methods
approved by the administrative
authority.
3. Spill and Overfill Protection
All new tanks must have spill and
overfill prevention mechanisms. The
tanks have to be provided with a
catchment basin to prevent the release
of product when the transfer hose is
disconnected from the fill pipe. When
the tanks are no more than 95% full, the
overfill equipment should shut off the
flow. Also, an alarm will be activated
when the tank is either 90% full or
within 1 minute of being overfilled.
4. Release Detection
New tanks are required to be equipped
with leak detection mechanisms and
leak detection procedures. The possible
methods are:
a. Monthly Monitoring: automatic tank
gauging, vapor monitoring,
interstitial monitoring, ground water
monitoring or other approved
method.
b. Monthly inventory control combined
with periodic tank tightness
testing.
All pressurized piping must be equipped
with an automatic flow restrictor,
automatic shutoff device with monthly
monitoring, continuous alarm system
and annual line testing. Suction
piping that complies with several
requirements is exempted from the
release detection mechanisms, but other
suction piping is required to have
monthly monitoring, and line testing
every 3 years.
During the first 10 years of existence of
the tank, it is possible to use a monthly
inventory control with tank tightness
testing every 5 years. Small tanks can
use manual tank gauging by itself or in
combination with tank tightness testing.
5. Upgrading Existing Tanks
All existing tanks are those installed
before December 1988.
a. Corrosion Protection: All tanks
installed after May 8, 1985 must have
corrosion equipment. All other
existing tanks have to be protected
against corrosion by December 22,
1998. The corrosion protection
equipment can be the same for new
tanks, by adding a cathodic protection
system, interior lining or a
combination thereof.
b. Spill and Overfill Protection: All
existing tanks must have spill and
overfill prevention mechanisms
consisting of the same devices which
are required for new tanks, by
December 1998.
c. Release Detection: The existing tanks
are required to have a monthly
monitoring, or a monthly inventory
control and annual tank tightness
testing, or a monthly inventory
control and tank tightness testing
every 5 years (this option can be used
only for ten years after adding the
corrosion protection). For existing
pressurized and suction piping, the
mechanisms are the same. Following
is a listing of installation and
deadlines dates:
1965 . . . . . . .December 1989
1965-1969. . . . .December 1990
1970-1974. . . . .December 1991
1975-1979. . . . .December 1992
1980-1988. . . . .December 1993
6. Underground Storage Tanks in Use
All the equipment required to be used for
an UST is regulated in 40 C.F.R. 280.
7. Corrosion Mechanisms
Bare steel tanks can be very easily
damaged by corrosion. In this situation,
the tank and all the surrounding area
acts like a battery, where part of the tank
is charged negatively and the other part
positively. The proportionate ground
acts as a medium which makes the
battery start. In this way, the metal of
the tank starts to deteriorate and all the
materials contained in the tank will leak
into the ground.
To avoid corrosion, the new tanks can
use one of the following mechanisms:
Tank and piping made of
noncorrodible material, for example
fiberglass.
Tank and piping made of steel having
a corrosion-resistant coating and a
cathodic protection.
Tank made of steel clad with a layer
of noncorrodible material.
8. Cathodic Protection
The cathodic protection has to be
installed by a technician. It has to be
tested within 6 months of the
installation and every 3 years after that.
There are two methods:
a. Impressed Current Protection: It
requires the installation of an electric
current into the ground using anodes
not connected with the tank. This
system will produce an electric
current from the ground to the tank
greater than the one coming from the
tank, thereby, protecting the tank
from corrosion.
b. Sacrificial Anodes: Anodes will be
installed in the tank. These anodes
are more active than the tank, so the
electric current will flow from them
and not from the tank. This method
does not work very effectively or
economically.
9. Interior Lining
The interior of the tank is covered with
a noncorrodible material. The tank then
must be inspected in 10 years and every
5 years after that point.
Cathodic Protection and Interior
Lining: This method has the
advantage of creating more protection
for the tank. This mechanism does
not require the lining inspection, but
does require cathodic inspection.
The piping can be protected with a
cathodic method or can be made of a
noncorrodible material.
10. Spill and Overfills
a. Spills: Spills frequently occur when
the hose coming from the delivery
truck is disconnected. Every time
small amounts will leak, producing a
harm to the environment in the long-
term. There are two ways to act
against spills. First, the delivery
driver should watch the delivery at all
the times. Second, one can use
prevention devices as catchment
basins or dry disconnect couplings.
A catchment basin is a bucket
surrounding the fill pipe. This bucket
will collect any liquid which may spill
from the hose. The liquid can be
removed with a drain or a pump
existing in the same mechanism.
b. Overfills: Overfills occur when the
tank is filled beyond its capacity. The
amounts released in overfills are
larger than that in spills. The overfill
can be avoided by being sure the tank
has enough capacity to collect all of
the liquid, watching at all times the
filling procedure and using one of the
available prevention methods such as
automatic shutoff devices, overfill
alarms or ball float valves.
11. Automatic Shutoff Devices
These devices installed in the fill pipe
slow down the entrance of product when
the tank is close to full. If the driver is
watching the operation, he can continue
to deliver the liquid contained in the
hose. Otherwise, the device will shut off
not letting the delivery of the product
present in the hose.
a. Overfill Alarms: These alarms advise
the driver that the tank is 90% full or
that it will be full in one minute.
b. Ball Float Valves: The valves are
located in the vent lines, rising when
the tank is being filled. Once the tank
is filled, these valves can create
pressure in a way that does not allow
the entrance of more product.
12. Release Detection
a. Ground-Water Monitoring: The
purpose of this method is to monitor
the existence of any liquid in the
ground water table. It is necessary
that between one and four monitoring
wells be installed be in very close
proximity to the tank. The detection
devices can be automatic, taking
measures continuously or manual.
This system can be used only when
the liquid does not mix very easily
with the water. Also, the ground
water must not be more than 20 feet
below the surface. Wells should be
installed in a way that avoid pollution
from outside and the wells need to be
able to detect liquids that are one
eighth of an inch over the ground
water. The cost to operate the wells is
between $100 - $200. The equipment
is about $200-250 per well with an
installation cost of $15-25. Five wells
could cost between $2,200-5,000 for
equipment, plus $50-70 for
installation.
b. Vapor Monitoring: This method
monitors the existence of possible
gases in the soil surrounding the tank.
The soil samples will indicate
whether there is a leak. This
method requires the allocation of
monitoring wells in the tank backfill.
The backfill must be composed of
materials that allow vapors to move
easily, it has to be perfectly clean
from prior contaminations, the liquid
contained in the tank has to be very
volatile and the wells have to be
locked and marked. These devices
can operated automatically or
manually. The cost of the equipment
for two wells is $200-400, the
installation $1,000-2,000. Annual
operating costs of manual monitoring
using a laboratory is $1,200. For five
wells, the equipment cost is $2,800-
3,000, the installation $2,000-4,000,
and the annual operation cost is
$25.
c. Automatic Tank Gauging Systems:
This method measures automatically
and continuously the product level
and the temperature in the tank. If
either of these changes, as in the tank
tightness test and inventory control,
the owner or operator of the tank can
monitor it to see if a leak exists. This
equipment must be able to detect 0.2
gallons per hour. The cost for the
monitor is the $1,700-2,700, probes
$500-1,100 and cables $0,15-
1,00/foot. The installation varies
between $500 to $10,000. The cost of
the annual operation is $50-100.
13. Tank Tightness Testing and
Inventory Control
a. Tank Tightness Testing: There are
several methods for tank tightness
testing. Most of them measure the
volume of product in the tank.
Usually, temperature is the measure
because a change in the temperature
produces changes in the volume. The
equipment must be installed
temporally in the tank which will be
out of operation between 6 to 12
hours. This method must detect at
least 0.1 gallon per hour. The costs
can vary between $250 to $1,000 per
tank.
b. Inventory Control: Every month the
owner or operator balances the
product delivered and the amount
sold from the tank with the daily
measurements taken with a gauge
stick in the tank. This inventory
has to be performed in coordination
with the above method. The stick has
to be long enough to reach the bottom
of the tank. The cost is less than
$200.
14. Manual Tank Gauging
This method can be used by itself only in
tanks up to 1,000 gallons. The tank
cannot be disturbed for at least 36
hours. The tank has to be measured
twice at the beginning of the week and
twice at the end. For tanks between
1,000 and 2,000 gallons this method
can be used in combination with tank
tightness testing. It is a very cheap
method: $200 for tanks up to 1,000
gallons, and $250 for tanks of 1,000 to
2,000 gallons.
15. Leak Detection for Underground
Suction Piping
There are two cases in which leak
detection is not required. First, when
the pipe is sloped in a way that all the
liquid contained in the pipe will be sent
back to the tank if the suction is
released. Second, when there is only one
check valve in each suction line. In all
other cases, the pipes need one of the
following leak detection methods:
a. Line Tightness: In this method, the
line is taken out of service and
pressurized. If the pressure drops,
there is a leak. The cost is about
$50-100.
b. Monthly Vapor Monitoring: This
method detects vapor in the soil close
to the pipes. It is very cheap if the
tank has already been installed with
this method of detection.
c. Monthly Ground-Water Monitoring:
Like in the tanks, this systems detects
liquids floating in the ground-water
close to the pipe. This method is very
cheap if the tank has already a
ground-water monitoring system.
d. Monthly Interstitial Monitoring:
This method is based on the
installation of a barrier between the
piping and the environment, and a
monitor that detects the leaks
between the pipe and the barrier. The
cost of this method is about
$10,000.
e. Leak Detection for Pressurized
Underground Piping: The
pressurized pipes have to employ one
of the following methods:
Automatic line leak detector:
Automatic flow restrictor will
decrease the rate at which the
liquid flows in case of a leak, or
Automatic flow shutoff cuts the
flow of liquid at the moment that
it detects a leak, or
Continuous alarm system will be
activated at the moment it
suspects the presence of a leak.
In holding to the above there must
be monthly ground water or vapor
monitoring, or monthly interstitial
monitoring and annual tightness
test.
The cost for automatic flow
restrictors are $300-400; automatic
shut-off, $2,000; line tightness test,
$50-100; interstitial monitoring,
$10,000.
16. Closure of an Underground Storage
Tank
49 A.R.S. 1008 and 40 C.F.R. 280
regulate the process of closing a tank.
There are two possibilities: permanent
or temporary closure.
a. Permanent Closure: Permanent
closure can be conducted by leaving
the tank in place and filling the tank
with an inert substance which is
harmless and chemically inactive, or
by removing the tank from the
ground. Another possibility is
changing the contents of the tank, to a
non-regulated substance. All the
liquid and sludge must be removed
from the tank, since there is the
possibility of the presence of
hazardous characteristics in these
materials that should be treated in
accordance with the status and
regulations.
The owner and operator of the tank
have to communicate to ADEQ, using
the same notification form required
for the installation at least 30 days
prior to the closure. ADEQ will
assign an identification number and
communicate to the Fire Department.
The Fire Department will assign a
permit number and will inspect the
installation during the closure
procedure.
The tank can be closed and removed
from the ground or closed on site. In
both situations, the main concern is
the possibility of an explosion as a
consequence of the flammable vapors
from the products contained in the
tank. An explosion is caused by the
presence of three elements: oxygen,
fuel and ignition. Therefore, in
removing a tank at least one of the
elements must to be under control (or
present) to avoid a reaction.
Following are the steps to be followed.
Elimination of the Ignition
Element:
No smoking in the area.
Shut down all open flames and
spark producing equipment.
Remove electrical and internal
combustion equipment.
Non sparking tools must be used.
Control static electricity.
Eliminating the Fuel Element:
Purging or ventilating the tank
reduces the vapors in the tank.
Inerting replaces the oxygen in
the tank with another inert or
non-reactive gas.
Eliminating the Oxygen Element:
The use of inerting methods also
eliminates the oxygen element
by substituting it for another
gas.
The next step is removing the sludge
existing in the tank. This can be done
on-site or off-site. The first procedure
has the advantage of eliminating
possible harms caused to the
environment as a consequence of the
release of vapors to the atmosphere
during transportation or removal.
The sludge is cleaned with water and
pumped out.
When the tank is not going to be
removed from the ground after
cleaning, and when there is no ground
pollution, the tank can be filled with
the inert material. Within 30 days of
the closure the owner and operator
must present the notification form
and the inspection report to the Fire
Department.
b. Temporary Closure: All the reporting
requirements are the same for
permanent closure of the tank. A
temporary closure for more than 3
months requires leaving all the vent
lines open and closing and securing
the rest of the lines. If the tanks
have all the requirements for
corrosion protection, the closure can
be indefinite. However, if corrosion
protection is not provided after 12
months, the owner and operator are
required to close the tank
permanently, or upgrade the tank to
start using it again. It is possible to
request an extension.
17. Record Keeping and Reporting
All record keeping and reporting
requirements are regulated under 40
C.F.R. 280.34(b)(1)-(5).
a. Record Keeping: There are several
records that are required to be kept
for a period of time in relation to leak
detection.
Monitoring results from the last
year and recent tightness test.
Maintenance, repair and
calibration of leak detection
equipment.
Records in relation with the last
two inspections of the corrosion
protection.
Records referring to the upgrading
of the tank.
Records of the permanent closure
for at least three years.
b. Reporting: Owners and operators of
the tanks must notify the authority of
the following:
New UST installation.
Report of releases and suspected
releases.
Corrective action taken or planned.
Notification of a permanent
closure.
All the records must be presented to
the authority when requested.
These records are open to the public,
except in some situations as trade
secrets, and they can be used for
statistical purposes.
B. MEXICO
1. Environmental Impact Statement
In Mexico, the installation of tanks
requires the creation of an impact
statement (IS). This requirement is
independent of other permits. There are
three kinds of impact statements:
general, intermediate and specific. The
Secretariat will determine which one is
necessary based on the type and location
of the construction and the impact to the
environment.
a. General: This impact statement must
include the following information:
Name, address and nationality of
the owner of the facility to be
constructed.
Complete description of the
construction.
General socio-economic
characteristics of the area where
the facility is going to be built.
Compliance with all the laws
related to the land use.
Description of all the effects the
construction will produce in the
environment.
Measures to prevent the above
effects.
b. Intermediate: An intermediate
impact statement requires a more
detailed study in addition to the
description of the construction and
the general socio-economic
characteristics.
c. Specific: Specific impact statements
are more detailed. This type of impact
statement requires, among other
things: justification of the project,
detailed information of the
construction from the beginning to
the end, and a detailed program for
the prevention and mitigation of
damages caused to the atmosphere.
The authority can request additional
information. Once the authority has
received all this information, the
authority must provide a resolution
within 30 days for a general impact
statement, 60 days for an intermediate
and 90 days for a specific impact
statement. When the authority
requires a technical opinion, the time
can be extended another 45 days for the
general impact statements and 30 days
for the intermediate and specific impact
statements. The authority can approve,
approve with changes or disapprove the
work. In the case of any modification
in the work, the authority has to
determine if another impact statement
is required.
Notice of the presentation of the impact
statement will be published in the
"Gaceta Ecologica." Any person has the
right to examine all the records,
including the impact statement, the
additional documents required and the
authority's resolution.
2. Installation and Certification
a. 2.1. Permit:
The issuance of a permit to install an
UST is regulated under "Reglamento
de la Ley General del Equilibrio
Ecologico y la Proteccion al Ambiente
en materia de Prevencion y Control
de la Contaminacion de la Atmosfera"
(RPCCA). The owner or operator of a
tank has to request the permit from
the Secretariat, but as a
consequence of the decentralization
process the states are now responsible
for the emission of these permits.
The owner and operator has to fill out
the notification form which contains
the following information:
General information about the
person requesting the permit.
Location of the tank using a map or
diagram.
Description of the process.
Description of the equipment.
Material storage in the tank.
Possible substances emitted into
the atmosphere.
Equipment used to control
pollution.
Contingency program containing
all the procedures to remediate any
kind of pollution derived from the
tank.
Following is the process to obtain the
permit:
The owner has to present an
original and two copies of the
notification form.
If the notification is incomplete,
the state will return the
notification. Within 15
days the state will
inspect the facility. If
the inspector decides
that the facility does
not comply with all the
requirements, he will
notify the owner and
operator, who can take
corrective action
within a certain
deadline.
If the deficiencies have been
corrected, the state delegation will
issue the permit.
The state must issue a permit
within 30 days from the moment
the facility complies with all the
requirements.
b. 2.2. Installation:
General Requirements
All the tanks have to be built with a
double container. The second
container has to be thick enough to
avoid ground pollution in the case
the first container suffers a leak.
In addition, the manufacturer has
to provide a system to monitor the
tank. The tanks must allow the
entrance of a person to clean the
tank or for inspections. All the
tanks must be certified by
Underwriters Laboratories.
c. Characteristics of the Tanks:
Containers can be built from three
materials: bare steel and fiberglass;
bare steel and polietileno; and
fiberglass and fiberglass. All the
tanks have to be equipped with bare
plates. A pipe must be located in the
top of the tank to permit the drainage
of water which may have
accumulated. Before the installation,
the manufacturer has to provide a
guaranty of hermeticity. After the
installation, an inspection is required
to determine if the tank is completely
hermetic. To protect against
corrosion, the first metallic container
has to be covered with 100%
inorganic zinc.
d. Leak Detection:
Automatic Measure System: The
purpose of this system is to provide
a precise inventory of the different
products in the tank. This system
has to be electronic and certified by
Underwriters Laboratories.
Vapor Monitoring: These wells can
detect the presence of pollutants in
the ground surrounding the tanks.
Ground-Water Monitoring: It is
used to detect the presence of
pollutants in the ground-water.
Interstitial Monitoring: It is used
to check the presence of leaks
between the two containers.
All the technology applicable to these
mechanisms are the same as that used
in the U.S.
e. Pipes:
Pipes can be made from four
different materials, depending if the
pipes are installed in the first or the
second container: steel and
Polietileno; steel and fiberglass;
fiberglass for both; or thermoplastic
material and polietileno.
All the pipes built with steel have to be
covered with an inorganic material to
avoid corrosion. In addition, the
pipes need to have a leak detection
mechanism approved by Underwriter
Laboratories.
3. Record Keeping and Reports
The permit issued will establish how
often the owner and operator must
present inventories, measures and
monitoring reports to the
administrative authority . Every
February, the owner and operator must
present to the authority another
notification containing all the
requirements established for the first
notification.
Mexico requires a detailed
environmental impact statement prior
to the installation of a tank. In the U.S.,
the impact statements are only required
for federal actions, regulation proposals,
or for projects that are going to produce
a "significant" environment impact.
Following are the same characteristics
of the United States and Mexican impact
statement:
The notification forms are very
similar in both countries.
In the U.S. there is an obligatory
deadline established by statute to
force the owners and operators to
comply with the requirements for
corrosion protection, leak detections,
spills and overfills.
Mexico does not have a law, norma or
reglamento, that require the use of a
particular kind of equipment. PeMex
has established in the
"especificaciones" (which do not have
the characteristics of a law) those
requirements in a very general way,
leaving the choice up to the owner.
The "especificaciones" refer most of
the time to American technology. If
PeMex considers that the tanks do
not comply with their requirements,
they will not provide gasoline.
Tank closure is not regulated in any
way in Mexico, while in the U.S. there
is a very detailed legal procedure.
The reporting requirements are
different in both countries. In
Mexico, each permit will determine
for each single facility when the
reports have to be presented to the
authority. In U.S., they are
determined by law.
PART IV
STEPS REQUIRED
WHEN A RELEASE
IS DETECTED FROM AN UST
PART IV
STEPS REQUIRED WHEN A RELEASE
IS DETECTED FROM AN UST
A. UNITED STATES
It is important to note that it is not a crime
or a violation of law to have an
underground storage tank that is leaking.
However, the owner and/or operator is
responsible for any damage caused by the
leaking tank and clean up of the tank site
and the surrounding environment. The
responsible party is also liable for any non-
compliance with the rules promulgated by
the EPA and by ADEQ in Arizona.
For simplicity, in discussing the
responsibilities of owners and operators
for underground storage tanks, this article
will use Arizona law and the regulations
promulgated by ADEQ. The Arizona laws
and regulations as stated previously are
designed to implement and enforce federal
laws, no less stringently than the EPA
would. Therefore, when using Arizona
law, federal law is included as a minimum
standard. If there is a great discrepancy
between the two laws, this paper will
indicate the differences.
The greatest harm caused by a leaking
underground storage tank, which holds
petroleum or petroleum bi-products, is the
contamination of ground water. Due to the
hotter and drier climate, cities in Arizona,
as with other western states in the U.S.,
depend more on underground water
sources, such as underground water
aquifers, than do cities on the east coast.
Even a small leak into an underground
water table can be permanently damaging
to the source, since groundwater is unable
to naturally recharge and cleanse itself
because petroleum and its bi-products float
on top of the water.
In Arizona, a release means a "spill, leak,
emission, discharge, escape, leach, or
disposal from an underground storage
tank into ground water, surface water or
subsurface soils." Pursuant to federal
regulations, there are various types of
leaks or releases, including above ground
releases, and any below ground or
underground release. Arizona has yet to
specifically define the various types of
releases. However, in the proposed draft
the ADEQ has defined these releases
almost word for word from the federal
legislation.
The duty to respond to the occurrence of a
release from an underground storage tank
is shared by the EPA, the state agency
administering the federal legislation and
the owner or operator of the tank in
question. The initial actions that must be
undertaken upon discovering a leak are by
the responsible party.
In Arizona, if a release or leak from an
underground storage tank is discovered or
suspected, the ADEQ must be notified
within 24 hours. After the release has
been confirmed, the responsible party
must immediately perform all initial
abatement measures that are necessary for
the protection of public health and
safety. These abatement procedures are
to prevent any spread of further
contamination due to the leak and can
include: the removal of free product, the
measurement and removal of explosive
vapors which may cause fire or explosion,
and /or the sampling of potentially affected
parties. If imminent or serious threats to
public health or safety are discovered at
the leaking UST site from elements such as
the presence of free product, further
emergency response actions may be
required.
Along with the initial abatement
requirements, an owner or operator must
have a qualified party conduct a "site
characterization" which will determine the
total extent and degree of laboratory
detectable soil contamination. The "site
characterization" will also determine
whether the release has affected the
quality of any underground water source.
A report describing what was discovered
during the "site characterization" with
sufficient information to enable ADEQ to
complete a thorough site evaluation must
be submitted to ADEQ within 60 days of
the reported release, or at another
reasonable time period that is specified by
ADEQ.
The owner or operator of the leaking
underground storage tank must follow all
the notification requirements and obtain
all the relevant permits for the all
corrective and abatement actions.
Notification to the appropriate agency and
permits may be required for the following
leaking underground storage tank related
activities:
The discovery of a known or suspected
release.
The removal or abandonment of an UST
system.
The transportation, treatment, storage
and disposal of solid and hazardous
wastes.
A discharge that may affect air quality.
The completion or installation of soil
borings, groundwater monitoring wells
and groundwater recovery wells and the
withdrawal of groundwater.
A discharge or potential discharge to the
surface or subsurface or the "Waters of
the United States."
Pursuant to A.R.S. 49-1005 and 40
C.F.R. 280.64 through 280.65,
additional investigations and corrective
actions will be required by ADEQ if the
extent of laboratory detectable soil
contamination is not determined, soil
contamination is in excess of ADEQ's
Suggested Soil Cleanup Levels, and/or
the release has affected groundwater
quality. The leaking underground storage
tank Site Characterization Report
Checklist must include the following:
1. The General Background of the Release,
including:
The nature of the release, including a
description of the known or suspected
leak location(s) in the UST system,
and the methods used to identify
them.
The type of regulated substance
released.
The quantity of the release.
The period of time over the release
occurred.
The extent of the release known at the
time of the report.
The dimensions of any excavations,
as well as an estimate of the amount
of contamination material removed
and its disposition.
2. The General Background of the Facility,
including:
Present land use and ownership. (If
former land use may have
contributed to the present
contamination, also provide this
relevant information.)
The legal description of the property
location (cadastral coordinates) using
USGS topographic maps.
An identification of any populations
or structures potentially affected by
the release, including, but not limited
to, schools, day care centers,
hospitals, nursing homes, and
residential areas.
A list of all petroleum products,
chemicals, and wastes stored in each
on-site underground storage tank that
is within 150 feet of the UST system
that has leaked.
3. A General Location Map of the Site Area
at an Appropriate Scale, showing:
The site location.
Streets (labeled).
The locations of any populations that
could potentially be affected by the
release.
The location of wells potentially
affected by the release using Arizona
Department of Water Resources
(ADWR) well inventory records, field
surveys, and other records. At a
minimum, wells located within a 1/4
mile radius of the UST site should be
identified.
Known or suspected regional
direction of groundwater flow for the
uppermost aquifer underlying the
site.
A north arrow.
4. A Detailed Site Plan (map view at an
appropriate scale) containing the
following properly labeled features:
Adjacent land uses and structures
surrounding the facility that could
affect, or be affected by the release
(including irrigation canals, drainage
channels, transportation avenues and
other relevant information).
Fences and property boundaries.
Any buildings or other on-site
structures, including aboveground
storage tanks.
The type and extent of on-site, ground-
surface cover (i.e., asphalt, concrete,
soil, grass,etc).
The present and/or former tank
locations, including all piping and
ancillary equipment.
The extent of any excavation(s) and
the location of the associated soil
stockpile(s).
Any significant subsurface features
that could provide a pathway for the
migration of petroleum hydrocarbons
(i.e., production wells, dry wells,
septic systems, utility structures,
trenches, sewer lines and other
relevant features).
The location(s) of the leaks.
Soil sample collection locations.
Boring locations.
Overhead structures limiting access
of drilling equipment, such as
electrical utility lines (if these are a
limiting factor).
5. The Hydrogeology of the Site Area,
including:
The known or recorded depth to
groundwater beneath the site using
ADWR well records and maps, and
other relevant sources include a table
that lists the ADWR well registration
number, well use, depth-to-
groundwater and construction details
(total depth, casing type and size, and
the screened or perforated interval)
for all wells within 1/4 mile of the
site;
Direction and magnitude of the
groundwater gradient as determined
from ADWR maps, on-site
measurements, or other relevant
information.
Lithology of the subsurface as
determined through soil borings,
excavations, or other sources.
Include a copy of the boring logs
showing the driller's name, drilling
date, drilling method, lithology,
samplings, intervals, percent-
recovery data, blow counts,
instrument readings and all other
pertinent information.
Potential areas for local groundwater
recharge (streams, washes, canals,
dry wells, etc.).
The known water quality of the
uppermost aquifer underlying the
facility, which could be impacted by
the release.
Climatological data for the site area,
including, but not limited to, the
monthly average precipitation.
cite any references used to obtain the
above information.
6. Representative Collection of
Groundwater and Soil Samples, with
Sample Collection and Preservation
Methods, including:
Identification and qualifications of
the person, or person conducting the
sampling.
A description of the sampling
methods and procedures and
equipment used.
Decontamination methods and
procedures used on the sampling and
drilling equipment.
A description of the sample
containers.
Methods used to prevent volatile
losses from the samples during and
after collection.
Methods used to preserve the samples
at or below four degrees Celsius until
delivery to a qualified laboratory.
7. Proper Chain of Custody
Documentation for all Samples
Collected for Analytical Testing,
including:
An individual listing of all samples
submitted for laboratory analyses.
the signatures of all person handling
the samples before delivery to the lab.
The names of these persons should be
printed legibly or types next to the
signatures.
If the samples are not delivered to the
laboratory on the same day as
collected, include the methods used to
store the samples during this interim
period.
8. Copies of the Original Laboratory
Reports, including:
The Environmental Protection
Agency analytical methods, as
described in the EPA documents and
below, to quantitatively identify the
presence of any contaminants in the
samples.
Dates of sample collection, extraction,
and laboratory analyses.
The laboratory detection limits of the
EPA analytical methods employed
for testing.
Quality assurance and quality control
data, including surrogate and spike
recovery data.
If there is a leak of hazardous waste, the
EPA must be notified along with the
state administrative agency. The EPA
must then take corrective action, along
with the responsible party, to limit the
damage caused by the release. The
EPA's corrective actions may include
temporary or permanent relocation of
residents and the procurement of
alternative household water supplies.
However, the EPA may undertake these
actions only if the action is necessary to
protect human health and the
environment, and one or more of the
following circumstances exists: (1) no
responsible and able party can be found
to clean up the leak, (2) the situation
requires prompt attention in order to
protect human health and the
environment, (3) the owner or operator
of the tank refuses to comply with an
EPA order to undertake the corrective
actions, or (4) corrective action costs at
a facility exceed the amount of coverage
required by Subtitle I, and the
expenditures form the Leaking
Underground Storage Tank Funds are
necessary to assure an effective
corrective action.
Under the Comprehensive
Environmental Response,
Compensation, and Liability Act
(CERCLA), there is the possibility to
hold a responsible party liable for the
cleanup of the polluted site. The
responsible party may be the past and
present owner of the tank, and other
persons related with the tank or the
property.
CERCLA explicitly excludes petroleum
in the definition of hazardous waste.
The term hazardous waste "does not
include petroleum, including crude oil
or any fraction thereof which is not
otherwise specifically listed or
designated as a hazardous
substance...." Congress did not define
the terms petroleum and fraction. The
problem lies in the fact that gasoline has
components that are listed as hazardous
waste.
In Wilshire Westwood Ass'n v. Atlantic
Richfield Corp., the plaintiff argued
that because gasoline contains
substances that are listed as hazardous
waste, the liability for cleanup under
CERCLA should be applicable in the
case of a petroleum spill. The court held
gasoline was excluded in CERCLA. In
reaching that conclusion, the court first
examined the plain language of the
statute. Second, the lack of legislative
history in enacting CERCLA, lead the
court to review subsequent legislative
history. It was sufficiently clear for the
court that Congress intended the
exclusion of gasoline. Therefore, the
court concluded that "the EPA's
interpretation of the scope of the
petroleum exclusion is entirely
consistent with its plain meaning and
legislative history...." But, the court
considered that all petroleum products
that contain substances different to
their common additive are not
excluded, if they are hazardous waste.
Under CERCLA, the following persons
are responsible for the cleanup of the
site:
"Owner and operator of a vessel
or a facility,
Any person who at the time of
the disposal of any hazardous
waste owned or operated any
facility at which such hazardous
substances were disposed of.
Any person who by contract,
agreement, or otherwise
arranged for disposal or
treatment, or arranged with a
transporter for transport for
disposal or treatment, of
hazardous substances owned or
possessed by such person, by any
other party or entity, at any
facility or incineration vessel
owned or operated by another
party or entity and containing
such hazardous substances.
Any person who accepts or
accepted any hazardous
substances for transport to
disposal or treatment facilities,
incineration vessels or sites
selected by such person, form
which there is a release or a
threatened release which causes
the incurrence of response
costs...."
All these persons are liable for "all costs
of removal or remedial action incurred
by the United States Government or a
state...."
There are three "defenses" for a person
not to be held liable as follows:
"Act of God.
An act of war.
An act or omission of a third
party other than an employee or
agent of the defendant, or than
one whose act or omission
occurs in connection with a
contractual relationship existing
directly or indirectly, with the
defendant ...if the defendant
establishes by a preponderance
of the evidence that (a) he
exercised due care ... (b) he took
precautions against foreseeable
acts or omissions of any such
third party...."
Congress intended the imposition of
strict liability for all the parties, even
though CERCLA does not refer to it
explicitly. In section 101(32), the
term liability is construed "to be the
standard of liability which obtains
under...." Section 311 of the Clean Water
Act, which the courts have considered
in different situations as strict
liability. Furthermore, in cases of
indivisible harm, CERCLA permits the
imposition of joint and several
liability.
B. MEXICO
In Mexico, the generator of the waste (in
this case the petroleum industry) and the
handling services company (the
distributors of the product) share the duty
of responding immediately to the
possibility of a release. The owners have a
duty to notify the appropriate
administrative authority of any spillage,
infiltrations, discharges or emptying of
hazardous wastes. Regardless of the
cause, if any release has occurred during
the handling or during other operations of
the generator, the Secretariat must be
immediately notified.
The responsible party then has three days
to notify the Secretariat in writing, so that
the Secretariat may decide a resolution or
address it to the other corresponding
competent authorities in order to
implement the adequate measures for
abatement. The written notification to the
Secretariat should include:
Names, addresses, and telephone
numbers of the owners, holders,
administrators or individuals in charge
of the hazardous waste in question.
Location and characteristics of the place
where the accident has occurred.
Causes of the spillage, infiltration,
discharge or emptying.
The precise description of the physical,
chemical and toxicological
characteristics of the hazardous wastes
when they were spilled, infiltrated,
discharged or emptied.
Actions taken in attending to and
correcting the accident.
Measures adopted for cleaning and
restoring the affected areas.
Possible damages caused to the
surrounding ecosystems.
This written notice is similar to the Site
Characterization Reports required in the
State of Arizona. The reports in Mexico,
however, are much less detailed. This is
probably due to the fact that Mexican
environmental regulation is a new field,
and the administrative agency has been
forced to deal with a large quantity of
environmental issues in such a short
period of time. Unfortunately, this leaves
many areas, such as underground storage
tanks, that have very little, if any,
regulation. For responsibility and liability
for releases, see Section VI of this paper.
PART V
FINANCIAL RESPONSIBILITY
FOR LEAKS
PART V
FINANCIAL RESPONSIBILITY FOR LEAKS
A. UNITED STATES
1. Federal Level
Proof of Financial Responsibility:
RCRA specifically mandates
requirements for proof of financial
responsibility by owners and
operators for underground storage
tanks which contain petroleum or
petroleum based substances. This
regulation is intended to aid clean up of
contaminating releases by requiring
responsible parties to have the financial
means available prior to a release
occurring.
Proof of financial responsibility is
required by owners and operators of
USTs, but not both, if they are different
people. The law states that both the
owner and operators are jointly and
severally liable. They may decide
amongst themselves who will prove
financial responsibility under federal
and state laws. However, both are liable
in the event of non-compliance with the
laws and regulations promulgated.
It must be noted that financial
responsibility does not in any way limit
a responsible party's liability. The
responsible parties are still liable for the
damage caused by the leak, up to the
amount stated in the statutes. The costs
of a release may include cleaning up
leaked petroleum, correcting
environmental damage, supplying
drinking water, and compensating
people for personal injury or property
damage. Financial responsibility can
also aid the owner or operator by
providing the funds for clean up or third
party suits prior to a release occurring.
RCRA specifically lays out progressive
dates for compliance with the new
environmental regulations depending
on the type of tank and the person
responsible for the tank (i.e., number of
tanks, marketer or non-marketer with a
specific net worth). However, in 1995
this schedule is moot, since the last date
for non-compliance was October 1990.
Now any type of tank, whether pre-
existing or newly installed, must
comply with the financial responsibility
requirements.
The amount of coverage under this
regulation depends on the type of owner
or operator of the UST in question (i.e.,
petroleum marketer or petroleum non-
marketer), the type and number of
tanks, and the type of facility involved.
2. Federal Assurance Funds
a. RCRA Fund: RCRA regulates
underground storage tanks for the
life of the tank in question. An owner
or operator must submit evidence of
all financial assurance mechanisms
used to demonstrate financial
responsibility for a potential release.
An owner or operator must have per
occurrence coverage and annual
aggregate amounts. In discussing the
responsibilities of owners and
operators for underground storage
tanks, this paper will use Arizona law
and the regulations promulgated by
ADEQ. The Arizona laws and
regulations are designed to
implement and enforce federal laws,
no less stringently than the EPA.
Therefore, when using Arizona law,
federal law is included as a minimum
standard (see State Level -Arizona
below).
b. CERCLA Superfund: Again,
CERCLA can only be applied to the
clean-up of a release if that UST
contained hazardous substances
other than petroleum with its
indigenous components and common
additives. The Superfund program
identifies and ranks the nation's most
severely contaminated sites (National
Priority List) and provides for a
means for funding their cleanup.
When the site has been listed on the
National Priority List, Superfund's
monies may be used to clean up the
site. If the site is not on the List, the
state may still recover any response
costs from the responsible parties.
3. State Level - Arizona
a. Proof of Financial Responsibility:
The financial responsibility
regulations of Arizona reflect, and
ultimately implement, federal
standards, and are stated in the
Arizona Administrative Code in
Chapter 12, Article 3. An owner
and operator of an underground
petroleum system are subject to the
requirements of proving financial
responsibility. State and federal
government entities whose debts and
liabilities are the debts and liabilities
of the state or the United States are
exempt from the requirements to
show financial responsibility.
Pursuant to R18-12-301 of the
Arizona Administrative Code, all
owners and operators are required to
submit evidence of all financial
assurance mechanisms used to
demonstrate financial responsibility
under this Article for an underground
storage tank as follows:
All petroleum marketing firms
owning 1000 or more UST's and all
other UST owners that report a
tangible net worth of $20 million
or more the U.S. Securities and
Exchange Commission (SEC),
Dun and Bradstreet, the Energy
Information Administration, or
the Rural Electrification
Administration by December 21,
1992.
All petroleum marketing firms
owning 100-999 USTs by
December 21, 1992.
All petroleum marketing firms
owing 13-99 USTs at more than
one facility by December 21, 1992.
All petroleum UST owners not
described in paragraphs 1.)
through 3.) above, excluding all
local government entities by
December, 31, 1993.
All local government entities one
year from the date of final federal
promulgation of additional
mechanisms for use by local
government entities to comply with
financial responsibility
requirements for underground
storage tanks containing
petroleum.
These responsible parties may submit
any one or a combination of
assurance mechanisms specified
by law with the Department of
Environmental Quality, along with a
copy of the standby trust agreement,
if it is required. An owner and
operator of a petroleum UST must
demonstrate financial responsibility
for taking corrective action and for
compensating third parties for bodily
injury and property damage caused
by accidental releases arising from
the operation of their tanks in "at
least" the following amounts:
For an owner and operator of
petroleum USTs that are located at
petroleum marketing facilities, or
that handle an average of more
than 10,000 gallons of petroleum
per month based on annual
throughput for the previous
calendar year, $1 million.
For each owner and operator of
petroleum USTs not described in
paragraph 1, $500,000."
An owner and operator must also
demonstrate financial responsibility
for taking corrective action and for
compensating third parties for bodily
injury and property damage caused
by accidental releases arising from
the operation of a petroleum UST in at
least the following annual aggregate
amounts:
For an owner and operator of 1 to
100 petroleum UST's, $1 million.
For an owner and operator of 101
or more petroleum UST's,
$2 million.
For the purposes of annual
aggregated amounts only "a petroleum
underground storage tank" means a
single containment unit and does not
mean combinations of single
containment units. It must be
noted that the amounts of assurance
required under R-18-12-303 exclude
legal defense costs, and that the per-
occurrence and annual aggregate
coverage amounts required do no
limit the liability of the owner or
operator.
The mechanisms available to prove
financial responsibility include
financial test of self-insurance,
guarantee, insurance and risk
retention group coverage, surety
bond, letter of credit, trust fund,
standby trust fund or an alternate
mechanism which satisfies the
requirements of R18-12-303.
b. Financial Test of Self-Insurance: An
owner, operator or guarantor may
satisfy the requirements of R-18-12-
303 by passing a financial test of self
insurance, based on year-end
financial statements for the latest
completed fiscal year. There are
two manners in which to prove
financial capability under R-18-12-
303, subsections (B) or (C). To pass
the financial test under R-18-12-305
subsection (B), an owner, operator or
guarantor must meet the following
requirements:
Have a tangible worth of at least ten
times all of the following:
The total of the applicable
amount aggregate amount
required by R-18-12-303, based
on the number of underground
storage tanks for which a
financial test is used to
demonstrate financial
responsibility.
The sum of the corrective action
cost estimates, the current
closure and post-closure care
cost estimates and amount
liability coverage for which a
financial test is used to
demonstrate financial
responsibility to the Department
under R-18-8-264.
The sum of current plugging and
abandonment cost estimates for
which a financial test is used to
demonstrate financial
responsibility to the EPA under
40 CFR 144.63 as amended is
incorporated herein by reference
and is on file with ADEQ and the
Office of the Secretary of State.
Have a tangible net worth of at least
$10 million.
Have a letter signed by the chief
financial officer within 120 days
of the close of each financial
reporting year worded exactly as
provided under 40 CFR
280.95(d), except that the brackets
are to be deleted and the
information stated.
Do either one of the following:
File financial statements
annually with the U.S. Securities
and Exchange Commission, the
Energy Information
Administration, or the Rural
Electrification Administration.
Report annually the firm's
tangible net worth to Dun and
Bradstreet, and Dun and
Bradstreet must have assigned
the firm a financial strength
rating of 4A or 5A.
The firm's year-end financial
statements, if independently
audited, cannot include an adverse
auditor's opinion, a disclaimer of
opinion, or a "going concern"
qualification. In order to pass a
financial test of self insurance
under R-18-12-305, subsection C,
an owner, operator or guarantor
must meet all of the following
requirements:
The owner, operator or
guarantor must meet the
financial test requirements of
40 CFR 264.147(f)(1),
substituting the appropriate
amount specified in either R-18-
12-303(B)(1) or (2) for the
"amount of liability coverage"
each time specified in that
Section.
The fiscal year-end financial
statements of the owner,
operator or guarantor must be
examined by an independent
certified public accountant and
be accompanied by the
accountant's report of the
examination.
The firm's year-end financial
statements cannot include an
adverse auditor's opinion, a
disclaimer of opinion, or a "going
concern" qualification.
Have a letter signed by the chief
financial officer within 120
days of the close of each
financial reporting year worded
exactly as provided under 40
CFR 280.95(d), except that the
brackets are to be deleted and the
information stated.
If the financial statements of the
owner, operator or guarantor are
not submitted annually to the U.S.
Securities and Exchange
Commission, the Energy
Information Administration, or
the Rural Electrification
Administration, the owner,
operator or guarantor shall obtain
a special report by an independent
certified public accountant stating
all of the following:
The accountant has compared
the data that the letter from the
chief financial officer specifies
as having been derived from the
latest year-end financial
statements of the owner,
operator or guarantor, with the
amounts in such financial
statements.
In connection with the
comparison under subparagraph
(a), no matters came to the
accountant's attention which
caused the accountant to believe
that the specified data should be
adjusted.
If the owner, operator or guarantor
find that they can no longer meet the
requirements of the test of self-
insurance they have 150 days after
the end of the year to find alternative
coverage. The Director of ADEQ
may at any time search the records to
see if the owner, operator or
guarantor meets the requirements of
self-insurance. If the Director finds
that the responsible party no longer
meets these requirements, the owner,
operator or guarantor has 30 days
after notification from the Director to
obtain alternative coverage. If the
owner or operator fails to obtain an
alternative assurance within the
specified period, he must notify the
Director within 10 days. It must be
noted that an owner or operator may
use self-insurance in combination
with a guarantee only if, for the
purpose of meeting the requirements
of the financial test under R-18-12-
305, the financial statements of the
owner or operator are not
consolidated with the financial
statements of the guarantor.
c. Guarantee: An owner and operator
may satisfy the requirements of R-18-
12-303 by obtaining a guarantee that
conforms to the requirements of
Section R-18-12-303. The
guarantor must be one of the
following:
A firm that meets any one of the
following descriptions:
Possesses a controlling interest
in the owner or operator.
Possesses a controlling interest
in a firm described under
subparagraph a.
Is controlled through stock
ownership by a common parent
firm that possesses a controlling
interest in the owner or
operator.
A firm engaged in substantial
business relationship with the
owner or operator and who issues
the guarantee as an act incident to
that business relationship.
Within 120 days of the close of each
financial reporting year, the
guarantor must demonstrate that it
meets the financial test criteria of R-
18-12-305. An owner and operator
who uses an guarantee to satisfy the
requirements of R18-12-303 must
establish a standby trust fund when
the guarantee is obtained and under
the terms of the of the guarantee, all
amounts paid by the guarantor will be
deposited directly into this standby
trust fund.
Insurance and Risk Retention
Group Coverage: An owner and
operator may satisfy the
requirements of R-18-12-303 by
obtaining liability insurance from
a qualified insurer or risk
retention group, which may be in
the form of a separate insurance
policy or an endorsement to an
existing insurance policy. Each
insurance policy must be issued by
an insurer or a risk retention group
that, at a minimum, is licensed to
transact the business of insurance
or is eligible to provide insurance
as an excess or surplus lines
insurer in one or more states.
Surety Bond: An owner and
operator may satisfy the
requirements of R-18-12-303 by
obtaining a surety bond. The
surety company issuing the bond
must be listed as acceptable
sureties on federal bonds in the
July 1, 1992, Circular 570 of the
U.S. Department of the Treasury.
The surety bond should be worded
as provided in 40 CFR
280.98(b). Under the terms of
the bond, the surety shall become
liable on the bond obligation when
the owner or operator fails to
perform as guaranteed by the bond
and the sureties liability is limited
to the per-occurrence and annual
aggregate penal sums. An owner
and operator who uses a surety
bond to satisfy the requirements of
R18-12-303 must establish a
standby trust fund, where all the
amounts paid by the surety are
deposited directly into the trust
fund.
Letter of Credit: An owner and
operator may satisfy the
requirements of R-18-12-303 by
obtaining an irrevocable standby
letter of credit. The issuing
institution must be an entity that
has the authority to issue letters of
credit in the state of Arizona and
whose letter of credit operations
are regulated and examined by a
federal or state agency. The
letter of credit must be worded as
provided in 40 CFR 280.99(b).
An owner and operator who uses a
letter of credit as an assurance
mechanism must also establish a
standby trust fund, where all
amounts paid pursuant to the draft
by the Director must be deposited
by the issuing institution directly
into the standby trust fund in
accordance with instructions from
the Director under R18-12-318.
The letter of credit must be
irrevocable with a term specified
by the issuing institution and must
provide that credit automatically be
renewed for the same term as the
original term, unless, at least 120
days prior to the expiration of the
current letter, the issuing
institution gives notice.
Trust Fund: An owner and
operator may satisfy the
requirements of R-18-12-303 by
obtaining a trust fund. The
trustee must be an entity that has
the authority to act as a trustee and
whose trust operations are
regulated and examined by a
federal agency or an agency of the
state in which the fund is
established. The wording of the
trust agreement must be identical
to the wording specified in 40 CFR
280.103(b)(1) and must be
accompanied by a formal
certification of acknowledgment as
specified in 40 CFR
280.103(b)(2). If the value of
the trust fund is greater than the
required amount of coverage, or
other types of assurance
mechanisms are used, the owner or
operator may submit a written
request to the Director for a release
of the coverage. Within 60 days
after receiving a request from the
owner and operator for release of
funds, the Director must instruct
the trustee to release to the owner
and operator the funds that the
Director specifies in writing.
Standby Trust Fund: An owner
and operator using any one of the
mechanisms authorized by R18-12-
306,R18-12-308, and R18-12-309
must establish a standby trust fund
when the mechanism is
acquired. The trustee of the
standby fund must be an entity that
has the authority to act as a trustee
and whose trust operations are
regulated and examined by a
federal agency or an agency of the
state in which the fund is
established. The standby trust
agreement must be worded as
provided in 40 CFR 280.103(b)(1)
and (2). The Director shall
instruct the trustee to refund the
balance of the standby trust fund to
the provider of financial assurance
if the Director determines that no
additional corrective action costs
or third party liability claims will
occur as a result of a release
covered by the financial assurance
mechanism for which the standby
trust fund was established. It
must be noted that an owner and
operator may establish one trust
fund as the depository mechanism
for all funds assured. As to
when a Director may draw on a
standby trust fund see Arizona
Administrative Code, R-18-12-318.
4. Reporting by Owner and Operator
In addition to meeting the requirements
of R18-12-301, an owner and operator
must submit documented evidence of
financial responsibility to the Director
according to any one of the following
applicable time frames:
Within thirty (30) days after the
owner and operator identifies a
release from an underground storage
tank required to be reported under
A.R.S. 49-1004 and the rules
promulgated thereunder.
If the owner and operator fails to
obtain alternate coverage as required
under R18-12-315(b), within thirty
(30) days after the owner or operator
receives notice of any one of the
following:
Commencement of a voluntary or
involuntary proceeding under Title
11 (Bankruptcy), U.S. Code,
naming a provider of financial
assurance as a debtor.
Suspension or revocation of the
authority of a provider of financial
assurance to issue a financial
assurance mechanism.
Failure of a guarantor to meet the
requirements of the financial test.
Other incapacity of a provider of
financial assurance.
As required by R18-12-305(G) and
R18-12-315(B).
5. Arizona Excise Tax
On or before the 25th day of each month,
a supplier must pay to the Director of the
Department of Transportation an
amount equal to one cent for each gallon
of regulated substance which is refined,
manufactured, produced, compounded,
or blended in the state of Arizona or
imported into Arizona by the supplier
during the preceding month. A
supplier may deduct from these
required payments a specified amount
delivered to person with an exemption
certificate or by some specified refund
amount. Along with the excise tax,
suppliers must also submit to the
Director a monthly summary
containing information like the number
of gallons in the supplier's inventory, the
number of gallons brought into Arizona
during the report period, the number of
gallons which are tax due, the number of
gallons of regulated substance sold or
exported and the gallon difference
between ending book inventory and
ending physical inventory. The tax
collected here will go into the Arizona
Underground Storage Tank State
Assurance Fund.
6. Arizona Assurance Fund
The Underground Storage Tank State
Assurance Fund which was established
in 1990 by the Arizona Legislature,
imposes a one cent per gallon excise tax
on regulated products placed into
underground storage tanks. This fund
will pay for corrective actions
performed in response to releases of
regulated substances from UST's
providing the costs were incurred after
September 15, 1989.
The purpose of the State Assurance
Fund is two-fold:
To help owners/operators/volunteers
with the potentially high costs of
mitigating the public health and
environmental damages of a leaking
underground storage tank (LUST).
To provide a means of partially
meeting the financial responsibility
provisions of the federal regulations
for UST systems (40 CFR, Part 280,
Subpart H). The EPA has not yet
approved the State Assurance Fund
as a partial financial mechanism.
Therefore, owners and operators
currently cannot use the Fund to
demonstrate financial responsibility
compliance."
a. Eligibility Requirements: The release
must be from an underground storage
tank system as defined in A.R.S. 49-
1001.17 and the eligible applicants for
the fund include:
Registered owners or operators of
UST systems and certain political
subdivisions.
Anyone who owned an UST system
in Arizona and incurred eligible
corrective action costs after
September 15, 1989.
Anyone who is not an UST owner
or operator but who complies with
A.R.S. 49-1052(H).
Indian nations with an Arizona
State Assurance Fund
Intergovernmental Agreement.
Entities that are excluded from
eligibility are:
State agencies.
Federal agencies.
Owners and operators of tanks
with kerosene-type or naphtha-type
jet fuel.
Owners and operators of tanks on
Indian Reservations where no
Intergovernmental Agreement has
been reached.
Owners and operators of USTs
excluded under 40 CFR
280.10(b), and UST systems
subject to RCRA Subtitle C
corrective action requirements
under 3004(u) of the RCRA, as
amended.
b. Eligible Costs: Costs that are eligible
for reimbursement from the State
Assurance Fund are those costs and
expenses which arise directly from
the performance of necessary
corrective action in response to a
release from an underground storage
tank. Allowable costs must be
reasonable, based on typical costs
expected for a particular type of
response action. ADEQ will also
determine if the corrective action
procedure that was utilized by the
responsible party was technically
correct. Some of the eligible costs
may include removal of free product,
abatement of impacts and threats of
impacts to human health or the
environment, collection of samples,
installation of monitoring wells,
removal and replacement of soil, tank
integrity testing, and preparation of
technical reports. Ineligible costs
may include the cost of replacement
or repair to affected tanks or piping,
cost of upgrade, loss of income or
profits, decreased property values,
bodily injury or property damage to
third parties or costs of making
improvements to the facility.
c. Deductible Limits: The State
Assurance Fund provides partial
coverage for expenses incurred
during the cleanup of releases from
regulated underground storage tanks.
Claim applicants must select one of
two deductible limits and then the
applicable coverage will vary
depending upon the deductible limit
chosen. The decision of which
deductible to choose depends on when
the claim application is filed as
follows:
For releases reported through
December 31, 1991:
$5,000 deductible: If $5,000 is
chosen as the deductible, the Fund
will pay allowable corrective action
costs equal to or less than
$145,000 after the claimant covers
the deductible amount.
$25,000 deductible: If $25,000 is
chosen as the deductible, the Fund
will pay allowable corrective action
costs equal to or less than
$225,000 after the claimant
covers the deductible amount.
For releases reported from and after
January 1, 1992:
$5,000 deductible: If $5,000 is
chosen as the deductible, the Fund
will pay allowable corrective action
costs equal to or less than
$130,000 after the claimant covers
the deductible amount.
$25,000 deductible: If $25,000 is
chosen as the deductible, the Fund
will pay allowable corrective action
costs equal to or less than
$200,000 after the claimant
covers the deductible amount.
See R-18-12-601 through R18-12-609
for more information on
reimbursement rules, priority of
payments, qualification standards
and pre-qualification status and
appeals from ADEQ decisions.
B. MEXICO
At present, Mexico has no apparatus or
regulation set up to aid in the clean up of
contaminating releases from underground
storage tanks.
PART VI
LEGAL REMEDIES
AVAILABLE WHEN A
LEAK HAS OCCURRED
PART VI
LEGAL REMEDIES AVAILABLE
WHEN A LEAK HAS OCCURRED
ADMINISTRATIVE ENFORCEMENT
A. UNITED STATES
1. Federal Enforcement
In the case of a person who is in
violation of any requirement
established by RCRA, the EPA can issue
an order to comply within a specific
period of time. If the violator does not
comply, then the EPA can initiate a civil
action in federal district court. Prior
to the issuance of an order the EPA
must notify the state in which the
violation is occurring.
The violator has a right to a hearing no
later than 30 days after the order has
been issued. After that date, the order
will be final. If the violator fails to
comply with the order "he will be liable
for a civil penalty of not more than
$25,000 per day" of noncompliance.
Any owner who "knowingly" presents
false information or does not notify the
administrative authority will be liable
for a civil penalty of not more than
$10,000 for each tank.
Any owner which violates any
requirement or standard, federal or
state, or installs a tank without
anticorrosion mechanisms will be liable
for a civil penalty of not more than
$10,000 per tank per day.
2. State Enforcement
If a person is in violation of any
requirement established by the Arizona
Statutes Title 49, Chapter 6, the
Director can issue an order of
compliance. Within 30 days of the
notification the violator can request a
hearing. After this hearing the order is
final. Violators who fail to comply
with these orders are liable for a civil
penalty of no more than $25,000 per
day of violation.
The owner of a UST that "knowingly"
submits false information or does not
submit information, or does not comply
with the standards or requirements of
the title 49, Chapter 6 (Arizona
Statutes), is liable for a civil penalty no
more than $10,000 for each tank.
The Director can file civil action in the
superior court to collect the penalties or
to seek temporary or permanent
injunction.
Penalties issued under state law cannot
cumulate with penalties issued under
federal law. All the penalties collected
will be deposited in the state general
fund.
B. MEXICO
The General Ecology Law (Ley General de
Ecologia y Proteccion al Ambiente, GEL)
authorizes any person to file with the
Secretariat of Fishing and Protection of
the Environment a denunciation for acts
or omissions that produce an ecological
ambivalence or injury to the
environment. The Secretariat of
Fishing and Protection of the
Environment will notify the alleged
violator of the complaint or any other
person that may be affected by the actions
taken as a result of the complaint. The
Secretariat of Fishing and Protection of
the Environment will then investigate the
allegations. Within 15 days of the
receipt of the denunciation, the Secretariat
will inform the parties about the state of
the investigations and within 30 days
must notify them of the result. If the
violator caused injuries, the Secretariat of
Fishing and Protection of the
Environment may ask for a technical
opinion.
All the complaints are processed by
PROFEPA. Complaints are received,
classified and pursued by different
operational units within the department.
Any violation of the GEL, regulations or
NOMs can be sanctioned as follow:
Fine equal to 20 to 20,000 days of
minimum wage.
Permanent or temporary closure of the
tank, which may be partial or total.
Administrative arrest, with a limit of 36
hours of detention.
If after the deadline to comply with the
regulations as established by the authority,
the violation persists, the authority then
can establish a fine for each day of
violation.
The authority may consider the following
information to determine the penalty:
The effect of the violation on the
environment and public health.
The economic situation of the violator.
Whether it is a repeat violation.
Any person affected by the resolution can
appeal (Recurso de Inconformidad) before
PROFEPA within 15 days after the
notification. Within 15 days after
receiving the appeal, PROFEPA will
notify the parties of the resolution The
appellant can present additional proof and
ask for the suspension of the previous
resolution. The authority can grant the
suspension only when the following
applies:
The appellant requested it.
It is not a repeat violation.
The execution of the resolution can
produce irreversible damage.
The suspension does not produce any
harm to the public.
There is a guaranty of the fiscal interest.
Within 15 days of the result of the "recurso
de inconformidad," any affected person
can appeal before the "Tribunal del
Contencioso-Administrativo." This federal
court is the court of last instance in the
administrative process. The court will
notify parties of the resolution within 15
days. After this appeal, the affected parties
may only present a "Recurso de
Amparo" (RA).
The purpose of the RA is restitution of the
individual's rights (Article XXVII of the
Mexican Constitution). The affected
party has a period of 15 days from the day
of the notification to present the RA. The
RA in this case is a "recurso de amparo
directo." "El Tribunal Colegiado de
Circuito" is the federal court authorized to
hear the amparo suit, which can be
presented against final resolutions of an
administrative court.
CIVIL ENFORCEMENT
A. UNITED STATES
Subtitle I of RCRA does not include citizen
suits as a remedy available in the case of a
leaking underground storage tank (LUST).
The Court in Zands v. Nelson concluded
that Congress intended that RCRA's solid
waste provisions should apply to gasoline
leaks from USTs. The Court analyzed the
definition of solid waste contained in
RCRA. Solid waste refers to any
"discarded material" in a solid, liquid or
gaseous form. Discarded materials are
defined as material that has been
abandoned and materials are solid waste
if they have been abandoned by being
disposed. The definition of disposal in
RCRA also includes leaking. This leads
to a circuitous definition. However, the
Court overlooked this situation.
Therefore, any person can initiate a civil
action against "another person,... past or
present owner or operator of a ...storage
facility, who has contributed or who is
contributing to the past or present
handling, storage, treatment,
transportation or disposal of any solid or
hazardous waste which may present an
imminent and substantial endangerment
to health or the environment."
What is considered an imminent and
substantial endangerment? RCRA does
not contain a definition. In Zands v.
Nelson, the Court concluded "an imminent
hazard may be declared at any point in a
chain of events which may ultimately
result in harm to the public. It is not
necessary that the final anticipate injury
actually have occurred prior to a
determination that an imminent hazard
exists." A gasoline leak could ultimately
result in harm to the public.
RCRA requires the plaintiff, to give a
notice to the EPA, the state in which the
alleged violation occurred and any person
against who the action is filed 90 days
prior initiating the action. The plaintiff
cannot initiate an action while the federal
or the state authorities have already
intervened by any of the actions
established in RCRA or CERCLA.
In addition to the RCRA remedies, many
common law theories can be employed.
1. Actions Arising from a Sales
Transaction
The Restatement Second of Torts
establishes that under the "caveat
emptor" doctrine, in the absence of
express agreement, the vendor of land is
not liable to the buyer, or any other
person, for the condition of the land at
the time of transfer. Some courts
have established exceptions to this
doctrine in relation to environmental
cases.
An action can be filed based on a breach
of contract. Both parties can agree in the
contract that the vendor will remedy the
harm caused by waste, in the case any
waste appears.
The unjust enrichment theory can be
also applied in some cases. The
Restatement of Restitution 1 determines
"a person who has been unjustly
enriched at the expense of another is
required to make restitution to the
other." This restitution will be the clean-
up cost.
The doctrine of fraud can be applied in
those situations in which the seller
knew about the condition of the land, but
did not disclose the information at the
time of purchase.
2. Invasion of Personal Interests
Negligence doctrine is applied in most
cases. Four elements are required in a
negligence action:
a. Legal duty: The plaintiff must show
the defendant has a duty in relation
with the LUST. All the rules
established in RCRA referring to
monitoring, installation,
construction, etc. of a tank constitute
minimum rules of care for the owner
or operator. Therefore, the violation
of these rules constitute negligence.
b. Breach of duty: In Malone v. Ware Oil
Co, the Court considered the
existence of a breach of duty when the
operator or owner of a tank acts or
fails to act causing a harm.
c. Causal connection between the
conduct and the resulting injury: The
causation element can be provided by
circumstantial evidence, e.8.1 the loss
of gasoline, the use of the tank longer
than its useful life, etc.
d. Actual injury: The plaintiff must
show the existence of an injury.
Strict liability is also applicable in
certain circumstances. In this case,
the plaintiff must prove the
defendant's tanks produced the
pollution, and the plaintiff's harm
was caused by the pollution. Strict
liability can be applied for damages
resulting from "abnormally
dangerous activities." Dangerous
activities are those that:
Involve a high risk.
Produce a major harm.
The risk cannot be eliminated with
reasonable care.
The activity is not a matter of
common usage.
The activity is inappropriate for
the place where is carried on.
The courts differ in their conclusions
in relation of strict liability. In some
cases of gasoline leaks from gas
stations, the courts concluded strict
liability did not apply, but in cases
related to tanks located near
residential neighborhoods strict
liability applies.
3. Invasion of property interests
a. Trespass: Strict liability is imposed
for intentional physical invasion of a
person's interest in the exclusive
possession of land. Trespass refers
to an intrusion of a person or an
object. What would constitute
trespass pollution caused in another's
property as a result of a LUST? In
Martin v. Reynolds Metals Co, the
court considered trespass, the
pollution caused by the smoked
produced by a factory and affecting
the plaintiff's view.
b. Private Nuisance: It is the invasion
in the use and enjoyment of land to
another person's land. The invasion
must be:
Intentional and unreasonable. The
conduct is intentional when the
violator has the purpose to cause a
harm. The conduct is unreasonable
when "the gravity of the harm
outweighs the utility of the conduct
engaged in by the defendant."
Unintentional and actionable
under negligence or reckless
conduct.
c. Public Nuisance: It is an
"unreasonable interference with a
right common to the public." It is
considered unreasonable when:
The conduct that interferes with
the public health, the public safety,
the public peace, the public comfort
or the public convenience.
The conduct is of a continuing
nature or has produced a
permanent or long-lasting effect,
and, as the actor knows or has
reason to know, has a significant
effect upon the public right.
B. MEXICO
Mexican citizens can file tort claims
against a polluter only alleging the
existence of an individual harm. The Civil
Code establishes that any person acting
illegally producing a harm to another
person is responsible. The violator has
to pay damages to the person suffering the
harm.
The GEL establishes the interested party
can choose to file in a federal or state
court.
CRIMINAL ENFORCEMENT
A. UNITED STATES
United States legislation does not include
criminal enforcement for violations
related with underground storage tanks.
B. MEXICO
The GEL establishes that any person
without authorization and in violation of
the requirements established by law
infiltrates pollutants into the ground or
groundwater causes a damage to the
environment or to the general public. The
responsible party is liable for a criminal
fine of 100 to 10,000 days of minimum
wage and 3 months to 5 years of
imprisonment.
The Secretariat has to initiate the action
filing the complaint in a state or federal
court.
PART VII
CONCLUSION
PART VII
CONCLUSION
The first step in any research involving
environmental issues, as in the case of
underground storage tanks, is to look to the
law. In the United States, a legal practitioner
need only look to the specific statutes that deal
directly with the subject matter at issue. There
is a two tiered system in the United States:
federal law with its requisite implementing
regulations, and then state law with their
programs. As in the case with UST's, the
applicable federal legislation is RCRA and
CERCLA. One must then look to state
legislation to see if it implements or supplants
federal law.
When looking at environmental protection in
Mexico, one must remember that
environmental regulation has its roots in the
very recent General Ecological Law of 1988.
This law is intended to be a broad overview of
all the areas that the Mexican government
may regulate in protecting the environment
and conserving natural resources. To
implement this law, the administrative
authority has created the reglamentos and
normas. Unfortunately, all this legislation
forms a complex web, where a practitioner is
forced to look to the entire gambit of
reglamentos and normas to make sure that all
aspects of one's issues are covered. Many of
the laws are too broad to deal with the specific
needs of each environmental issue. Mexico is
now in the process of adding new technical
standards (normas) for the various areas
needing environmental protection.
We have found that Mexico has used the
United States as a model for the regulation of
environmental issues, especially in the case of
underground storage tanks. Many of the
standards found in the Mexican normas are
similar in structure, if not in content. From a
technology point of view, Mexico lacks
regulations dealing with the technological
aspects of environmental protection. For
instance, the "espicificaciones" provided by
PeMex are only guidelines, which anyone
interested in installing a tank must follow.
These guidelines specifically refer to
American institutions and technology which
certifies and gives a warranty for all the
equipment involved.
One of the major differences between Mexican
and U.S. environmental legislation is found in
the area of enforcement. In the United States,
the available remedies are regulated
specifically in each statute in a very detailed
manner. However, in Mexico the
administrative and criminal remedies are
included in each reglamento, though all
potential remedies are the same. In Mexico,
there are no specific civil remedies for
environmental issues, so the only possibility
is to look to the Civil Code. This makes the
application of civil remedies more theoretical
than real. By contrast, in the United States
there is no criminal liability in relation with
underground storage tanks.
In general, legislation and regulations in the
United States are concerned with the
abatement of pollution and the clean-up of
environmental contamination. To implement
this objective, many environmental laws
contain provisions which require potential
polluters to prove financial responsibility, or
to pay a tax into a fund which can be used if
environmental
clean-up is needed. Federal and state laws
state specifically what types of proof of
financial responsibility is required. In
Mexico, there is no apparatus or requirements
to have funds available in the case of
environmental contamination.
