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CLOSEOUT REPORT CALIFORNIA ABANDONED UNDERGROUND STORAGE TANK INITIATIVE APRIL 2017 REMAINING CHALLENGES (CONTINUED) Limited Funding at UPAS for Non-Permitted Sites Owners of non-permitted abandoned UST sites rarely pay annual permit fees. The UPAS that regulate active UST facilities depend on permit fees for their operation costs, and it becomes challenging to allocate resources when these fees are not paid. UPAS require significant resources to address abandoned UST sites, including time to track down the property owners, conduct annual inspections, and provide guidance on compliance requirements and funding programs. UPAS are also not equipped to gauge and pump tanks. Limited Effectiveness of Existing Enforcement Tools Additional enforcement actions are necessary to address abandoned UST sites that remain out of compliance. While the greater concern is for sites with tanks containing product, empty tanks still need to be removed to prevent their future use as a convenient place to dump hazardous substances. It is also important to determine if a leak occurred in the past. The State Water Board and UPAS will need to utilize existing enforcement tools, and consider developing new approaches. Below is a summary of the existing enforcement tools and their limitations for addressing abandoned UST sites: (A) Red-Tagging: For UST Facilities with significant violations, UPAS may affix red tags to a UST fill pipe to prevent future fuel deliveries. However, at abandoned UST sites that have not been in operation for years, owner(s) do not depend on income from the sale of fuel at the site. Red-tagging is far more effective at sites with active operating permits. (B) Administrative Enforcement Orders (AEOs): In an AEO, UPAS specify the compliance activities, deadlines, and penalties that must be paid. An owner can contest the order triggering an appearance before an administrative law judge to make their case. Many abandoned UST sites are not in compliance with tank closure requirements because the owner faces financial hardship. Thus, assessing penalties will not help, but could instead take away the limited resources the owner may have to pay for tank closure. (C) Cleanup &Abatement Orders (CROs): Under the California Water Code, it is possible for the State Water Board to issue a CAO requiring the property owner to close the USTs, under the premise that continued non- compliance "threatens to cause or permit any waste to be discharged or deposited where it is, or probably will be, discharged into the waters of the state and creates, or threatens to create, a condition of pollution or nuisance" (California Water Code, Section 13304). If the property owner fails to comply with the order, then the State Water Board could assess penalties through an Administrative & Civil Liabilities Complaint and place a lien on the property for enforcement costs expended if the owner is unable to pay the penalty. However, given limited legal and technical resources, precedence for pursuing CAOs is assigned to sites with known contamination. The State Water Board is also less likely to recoup their enforcement costs for abandoned USTs. (D) Emergency, Abandoned, and Recalcitrant(EAR)Account. Through the EAR Account, the State Water Board can conduct fieldwork and place liens on UST properties for costs incurred. However, the program requires that contamination be confirmed for a site to be eligible. There has been no field investigation conducted at most of these sites. While the newer Site Cleanup Subaccount (SCAP) has not yet been utilized to conduct fieldwork at abandoned UST sites, it may be possible to identify and investigate contamination sources through this program in the future. Prepared by Redhorse Corporation, a U.S. EPA Contractor on behalf of the State Water Resources Control Board 6