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Produced by: Nebraska Department of Environmental Quality, P.O.
Box 98922, Lincoln, Neb. 68509-8922;
phone (402) 471-2186. To view this, and other information
related to our agency, visit our web site at http://deq.ne.gov.
This guidance document is advisory in nature but is binding on
an agency until amended by such agency. A guidance
document does not include internal procedural documents that
only affect the internal operations of the agency and does not
impose additional requirements or penalties on regulated parties or
include confidential information or rules and regulations made in
accordance with the Administrative Procedure Act. If you believe
that this guidance document
imposes additional requirements or penalties on regulated
parties, you may request a review of the document.
16-009 October 2016
Petroleum Remediation Section Petroleum Release Remedial Action
Reimbursement Fund
(Title 200 Program)
Reimbursement Reduction Guidance
http://deq.ne.gov/
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Table of Contents
Title 200 Reimbursement Reduction Guidance
............................................................................................
1
1. Requirements Before Closure
.............................................................................................
2 I. PRRA Fund Fee Payments
....................................................................................
2 II. Registration/Permitting of Non-Exempt Tanks
..................................................... 2 III.
Registration/Permitting of Exempt Tanks
............................................................. 3 IV.
Registration of Tanks Permanently Out of Service
............................................... 3 V. Registration
of Tanks Permanently Out of Service
............................................... 3 VI. Release
Detection/Tank Gauging
..........................................................................
3
2. Requirements Before or At the Time of
Closure.................................................................
3 VII. Release Notification
...............................................................................................
3 VIII. Release Abatement/Containment
...........................................................................
4 IX. Failure to Clean Up Documented Past Spills
......................................................... 4
3. Requirements at the Time of Closure
..................................................................................
4 X. Tank Permits at Time of Removal/Closure
........................................................... 4 XI.
Disposal of Wastes
.................................................................................................
4
4. Post Closure Requirements
.................................................................................................
4 XII. Non-Compliance with DEQ Timetables (One Time Reduction)
........................... 4 XIII. Non-Compliance with Title 200
Provisions (One Time Reductions) .................... 5 XIV
Substantial Non-Compliance—Categories I - XI
.................................................. 5 XV Flexibility
...............................................................................................................
5
Reimbursement Reduction Support Document
.............................................................................................
6
1. Purpose
...............................................................................................................................
6 2. DEQ Determinations
...........................................................................................................
6 3. Exemption
...........................................................................................................................
7 4. Percentages and Limits
.......................................................................................................
7 5. Compliance Violation Categories
.....................................................................................
10
I. PRRA Fund Fee Payments
..................................................................................
10 II. Registration/Permitting of Non-Exempt Tanks
................................................... 10 III.
Registration/Permitting of Exempt Tanks
........................................................... 10 IV.
Registration of Tanks Permanently Out of Service
............................................. 11 V. Tank Design,
Construction, Installation, and Repair
........................................... 11 VI. Release
Detection/Tank Gauging
........................................................................
12 VII. Release Notification
.............................................................................................
12 VIII. Release Abatement/Containment
.........................................................................
12 IX. Failure to Clean Up Documented Past Spills
....................................................... 13 X. Tank
Permits at Time of Removal/Closure
......................................................... 13 XI.
Disposal of Wastes
...............................................................................................
13 XII. Non-Compliance with DEQ Timetables
.............................................................. 13
XIII. Non-Compliance with Title 200 Provisions
........................................................ 14 XIV.
Substantial Non-Compliance—Categories I - XI
................................................ 15 XV. Flexibility
.............................................................................................................
15
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Title 200 Reimbursement Reduction Guidance
Pursuant to Neb. Rev. Stat. §66-1525 (5) reimbursements made for
remedial action costs may be reduced as much as one hundred percent
for failure by the responsible person to comply with applicable
statutory or regulatory requirements. These guidelines were
established for consistent and equitable determinations and/or
calculations of reductions in reimbursements. The Department of
Environmental Quality (DEQ) will, however, maintain flexibility
with the use of these guidelines where situations warrant change.
Reductions are determined as a percentage of reimbursement with a
corresponding limit unless otherwise noted.
In determining the amount of the reimbursement reduction, the
DEQ takes into consideration:
a) The extent and reasons for non-compliance; b) The likely
environmental impact of the non-compliance; and c) Whether
non-compliance was negligent, knowing, or willful.
Three numerical values are given for most categories of
non-compliance that correspond to the instance of non-compliance
being negligent, knowing, or willful. If in the DEQ’s judgment the
non-compliance was negligent, the lowest percentage reduction and
corresponding limit would be applied to the reimbursement.
Accordingly, if in the DEQ’s judgment the non-compliance was
willful, the highest percentage reduction and corresponding limit
would be applied to the reimbursement.
When the Department makes a determination of non-compliance, the
responsible person will be notified of the decision via certified
letter. Reimbursements to the responsible person under Title 200
will then be reduced by the specified percentage up to a maximum
dollar amount based on the circumstances and extent of
non-compliance. Non-compliance reduction amounts will decrease the
$975,000 ($985,000 if low volume) maximum amount reimbursable for
remedial actions under Neb. Rev. Stat. §66-1523.
A responsible person may elect to formally petition the
Department for review of the determination of non-compliance within
thirty days of the date of the DEQ’s official notification as a
contested case pursuant to Title 115, Chapter 7 of the Nebraska
Administrative Code. Title 115 is available on the agency web page
www.deq.ne.gov.
http://www.deq.ne.gov/
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1. Requirements Before Closure
Compliance Violation * Percent Reduction†
Maximum Limit‡
I. PRRA Fund Fee Payments
A. No payment of Initial PRRA fees 8.33% $2,500 (≥50% of all
contributing tanks) 16.67% $5,000 33.33% $10,000 No payment of
Initial PRRA fees 4.00% $1,000 (
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Compliance Violation * Percent Reduction†
Maximum Limit‡
III. Registration/Permitting of Exempt Tanks
A. No Initial registration or untimely registration 2.00% $500
3.00% $750 4.00% $1,000
IV. Registration of Tanks Permanently Out of Service
A. Failure to register 2.00% $500 3.00% $750 4.00% $1,000
V. Registration of Tanks Permanently Out of Service
A. Does not meet SFM, SPCC, or NRC requirements 4.00% $1,000
6.00% $1,500 10.00% $2,500
VI. Release Detection/Tank Gauging
A. Inadequate release detection 8.33% $2,500 16.67% $5,000
33.33% $10,000 B. Inadequate tank gauging records 4.00% $1,000
6.00% $1,500 10.00% $2,500
2. Requirements Before or At the Time of Closure
Compliance Violation Percent Reduction
Maximum Limit
VII. Release Notification
A. Non-reporting of release to DEQ or SFM Period of
non-reporting 2-7 days 2.00% $500 8-30 days 8.33% $2,500 31-60 days
33.33% $10,000 61-90 days 50.00% $15,000 91 days or more 100.00%
-----
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Compliance Violation Percent Reduction
Maximum Limit
VIII. Release Abatement/Containment
A. No attempt at containment or inadequate containment 4.00%
$1,000 6.00% $1,500 10.00% $2,500
IX. Failure to Clean Up Documented Past Spills
A. Failure to clean up 4.00% $1,000 6.00% $1,500 10.00%
$2,500
3. Requirements at the Time of Closure
Compliance Violation Percent Reduction
Maximum Limit
X. Tank Permits at Time of Removal/Closure
A. No closure permit 8.33% $2,500 16.67% $5,000 33.33%
$10,000
B. No certified closer 4.00% $1,000 6.00% $1,500 10.00%
$2,500
XI. Disposal of Wastes
A. Documented improper disposal of wastes (tanks, sludge from
tanks, contaminated soils, contaminated wastewater, etc.)
8.33% 16.67% 33.33%
$2,500 $5,000
$10,000
4. Post Closure Requirements
XII. Non-Compliance with DEQ Timetables (One Time Reduction)
Failure to meet a DEQ compliance date will result in a 10%
reduction of total expenses associated with the work effort(s) for
which the timetable was established in writing by the DEQ, or
agreed upon in a Stipulated Agreement. A responsible person or
party will be given one notice/warning of non-compliance (5 day
warning letter) during the history of a site without a reduction in
reimbursement. Thereafter, any failures to meet DEQ compliance
dates will result in a 10% reduction for the corresponding work
efforts. Seven calendar days beyond an established compliance date
will be considered failure for the purposes of this category. A
timetable is that amount of time allotted to complete each of the
various phases of remedial action described in Title 118. A new
timetable is established by the DEQ in writing during the
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remedial action process. The reduction in reimbursement is
calculated as a percentage of the total expenses associated with
the work in question and not as a percentage of the calculated
reimbursement.
XIII. Non-Compliance with Title 200 Provisions (One Time
Reductions)
A. For work performed during or before April 1995, remedial
action taken prior to Departmental approval of a plan that is
subsequently approved or accepted as completed will result in a 25%
reduction of total expenses associated with the work effort(s)
completed before Departmental approval. This reduction in
reimbursement is calculated as a percentage of the total expenses
associated with the work in question and not as a percentage of the
calculated reimbursement. However, for work performed after April
1995, responsible persons may undertake remedial prior to approval
of a plan with no reduction, if the work is later approved by the
DEQ project manager.
B. Remedial action(s) taken that the DEQ cannot approve, either
before or after the work is completed, will be ineligible for
reimbursement. Responsible persons and/or their consultants must
follow applicable guidelines, regulations, and statutes pursuant to
Neb. Rev. Stat. §66-1525 (2) (d).
C. Applications that are submitted to the DEQ subsequent to the
time limits described in Chapter 2, Section 007 of Title 200 will
be subject to reimbursement reduction according to the following
schedule:
Submittal Period (Calendar days beyond time limit)
Percent Reduction
Maximum Limit
1 – 30 days 10% $2,500 31 – 45 days 25% $10,000 46 – 60 days 50%
$25,000 61+ days 100% -----
This percentage is calculated after any deductible and/or
co-payment obligations are subtracted from the eligible expenses.
Other applicable noncompliance reductions will be calculated after
this reduction is assessed.
XIV Substantial Non-Compliance—Categories I - XI
Reductions in reimbursement will be added together in cases
where multiple non-compliance issues exist. A total of 100% or
greater is considered substantial non-compliance and will result in
the denial of access into the Fund. In addition, if an
Administrative Order is issued, the responsible party does not meet
the Order, and DEQ must seek court action against the responsible
party, the cause of the court action would be considered
substantial non-compliance. An Appeal of a Final Order filed by the
Responsible Party to determine responsibility will in and of itself
not be considered non-compliance.
XV Flexibility
The procedures established herein are for maintaining
consistency in applying reductions to reimbursements. DEQ however
reserves the ability to be flexible if circumstances warrant.
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Reimbursement Reduction Support Document
1. Purpose
The Petroleum Release Remedial Action Act and the corresponding
regulation (Title 200) give the DEQ duty and authority as described
in the Act to reduce reimbursements by as much as one hundred
percent for failure by a responsible person to comply with
applicable statutory or regulatory requirements.
In making such reduction determinations without specific
statutory direction, the DEQ recognized the need for consistency in
applying reductions. The guidelines were developed primarily for
purposes of consistency in the application of reductions in
reimbursements.
The guidance includes issues of non-compliance in applying
reductions that relate to petroleum storage tank and environmental
remedial action requirements generally found in State Fire Marshal
(SFM) and DEQ regulations. SFM regulations address the
registration, operation, permitting, and removing of a tank. DEQ
regulations address investigation and remedial action in response
to a release. Compliance violation categories contained in the
policy are arranged into four areas of requirements relating to
time: requirements prior to closure, requirements prior to or at
the time of closure, requirements at the time of closure, and post
closure requirements.
2. DEQ Determinations
In determining the amounts of reimbursement reductions pursuant
to §66-1525 (5) and Title 200 Chapter 3, 005.01, the DEQ shall
consider:
1. The extent of and reasons for non-compliance; 2. The likely
environmental impact of the non-compliance; and 3. Whether
non-compliance was negligent, knowing, or willful.
The extent and reasons for non-compliance and the likely
environmental impact of the non-compliance were considered in
arriving at the categories included in the policy, and they were
factored into the size of potential reductions and limits for each
category.
For the purposes of the policy, the terms negligent, knowing,
and willful will be used in their literal sense and as defined in
English dictionaries or by the Nebraska Supreme Court in case law.
To help explain how the DEQ will make a determination as to whether
a person or party has been negligent, knowing, or willful, a
typical example follows:
Concerning the SFM requirement and compliance violation category
II: Registration/permitting of non-exempt tanks, A. No Initial
registration (≥50% of all contributing tanks):
(a) An owner did not register his or her tank, is not a member
of any marketing group, and was never notified by the SFM of the
requirement. The DEQ would find this person negligent and in doing
so would apply a reduction of 8.33% with a limit of $2500.
(b) An owner did not register his or her tank, is not a member
of any marketing group, and has been informed once of the
registration requirement by receiving a general mailing from the
SFM sent to many tank owners. The DEQ would find this person to be
knowing as they were informed of the requirement but failed to take
action and in doing so would apply a 16.67% reduction with a limit
of $5000.
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(c) An owner did not register his or her tank, is a member of a
marketing group, has been directly notified at least once of the
SFM requirement, and/or has been given orders by the SFM to
register his or her tanks. The Department would find this person
willful and they were notified and ordered but did not comply, and
in doing so would apply a 33.33% reduction with a limit of
$10,000.
The DEQ’s determination in this example considers whether the
Responsible Party (RP) had knowledge of the requirement (with
documentation). That is, was the owner notified or even ordered by
the SFM to register his or her tanks, and is there documentation
confirming this? The DEQ then may also consider the RP’s
opportunity to know about such requirements. In this particular
example, this consideration was not necessary. While not knowing
about a regulatory requirement is of course not a defense for not
adhering to a requirement, the DEQ secondarily considers such items
such as an owner’s affiliation to a marketing group. Most owners of
exempt tanks are not affiliated with such groups. Most owners of
non-exempt, “commercial” tanks are affiliated with some sort of
association.
The DEQ considers non-compliance issues for which reimbursement
reductions will be assessed according to Title 200 Chapter 3,
005.02. The policy therefore includes all of these as
non-compliance categories. Title 200 directs the DEQ to consider
such issues as:
A. Tank permit and registration requirements. B. Tank design,
construction, installation, and repair. C. Release detection
requirements. D. Tank gauging requirements. E. Release notification
requirements. F. Release containment. G. Failure to clean up past
spills and overfills when they occurred. H. Compliance with
Department standards of quality and performance, with
Department
timetables, and with other applicable regulations. I. Disposal
of wastes.
3. Exemption
When determining potential reductions in reimbursement, the DEQ
will not consider future or current SFM compliance issues for newer
tanks at a facility where a previous release is being addressed.
For example, at a hypothetical facility tanks were removed in 1990
and leaked. In the years before and including 1990, the owner had
complied with all SFM requirements. The site is now an on-going
investigation with DEQ in 1993. New tanks were installed in 1990
when the leaking tanks were removed. The owner has not complied
with some SFM requirements in 1992 and 1993. The issues of SFM
non-compliance relating to the new tanks at the same facility will
not be considered when applying potential reductions in
reimbursement for the on-going investigation and remediation of a
release from the tanks removed in 1990.
4. Percentages and Limits
The policy provides percent reductions ranging from 2.0% to 100%
for individual violations, and up to 100% for multiple violations.
Limits range from $500 to $15,000 for individual violations and,
like the percentages, are cumulative for multiple violations.
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The odd percentages can best be explained by first discussing
the limits and how they relate to the percentages. The limits were
chosen to be comparable to typical administrative penalties. Larger
limits have corresponding larger percentages as these relate to
more serious instances of non-compliance.
For categories I through XI, one to three “sets” of numbers are
given for most categories. A “set” is a percentage and a
corresponding limit. Multiple sets are used to account for and to
differentiate as to whether the instance of non-compliance was
negligent, knowing, or willful. An instance of negligent
non-compliance receives the lower set reduction. An instance of
willful non-compliance receives the higher set reduction.
The following items were taken into account in determining the
percentages:
(a) In order to be fair, an RP who receives a lower set
reduction should typically not have to incur (over time) a higher
limit than an RP who receives a medium or higher set reduction
within the same category of non-compliance. Because each limit has
a corresponding percentage, an RP must incur ‘X’ number of dollars
to reach that limit (usually over several applications). Further,
if total remedial costs at a particular site do not reach ‘X’
number of dollars, the reduction in reimbursement for that site
becomes smaller than the assigned limit. The procedure of reducing
reimbursements rather than paying a one time reduction prior to
reimbursement in order to participate in the fund makes it possible
for an RP who receives a higher set reduction to incur less penalty
than an RP who receives a lower set reduction because total
remedial costs for the higher set RP may in some cases be very
low.
(b) The reduction incurred should be large enough to justify
administrative time to apply the reduction and to grasp the
attention of the RP, but not so large as to cause an unacceptable
number of RPs to become insolvent in the process. The reduction
should also be large enough to serve as a deterrent to RPs or
potential RPs.
To address item (a), a mathematical equation was used to find
out at what percents all three set divisions within a particular
category would meet the set limits with equivalent remedial costs,
and taking into consideration the deductible and co-pay amounts.
The equivalent total remedial costs chosen would therefore have a
direct relationship to the percentages determined. Total remedial
costs of $45,000 for low-volume sites and $50,000 for high-volume
sites were selected for categories I.A, II.A, VI.A, VI.A, X.A, and
XI.A. These are the “large” categories with reductions up to 50%
and limits up to $15,000. For the remaining categories, total
remedial costs of $38,333.34 (low-volume) and $43,333.34
(high-volume) were selected.
As an example, consider an RP who failed to register his or her
non-exempt tanks, and was simply negligent in doing so. This
category (II.A) and the lower division set (8.33% and $2,500 limit)
would be utilized for assessing the amount of reduction from
reimbursement. The RP would have to incur and make application for
reimbursement of $50,000 in total eligible remedial costs in order
to reach the limit of $2,500. Again, this also takes into
consideration the deductible and co-payment.
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Eligible Deductible Co-payment Subtotal Reduction 8.33%
Reimbursed
$20,000 $10,000 $2,500 $7,500 $625 $6,875 $10,000 ------ $2,500
$7,500 $625 $6,875 $10,000 ------ $2,500 $7,500 $625 $6,875
$10,000 ------ $2,500 $7,500 $625 $6,875
$50,000 $10,000 $10,000 $30,000 $2,500 $27,500
Now as a related example, take for instance the same conditions
described above, but instead of being negligent in failing register
his or her tanks, the RP was found to be willful in not doing so.
The higher division set (33.33% and $10,000) within this same
category would be utilized for assessing the amount of reduction
from reimbursement. Although the percentage reduced and the limit
have changed from the first example, this “willful” RP will also
incur and make application for $50,000 in total remedial costs in
order to reach the limit of $10,000.
Eligible Deductible Co-payment Subtotal Reduction 8.33%
Reimbursed
$20,000 $10,000 $2,500 $7,500 $2,500 $5,000 $10,000 ------
$2,500 $7,500 $2,500 $5,000 $10,000 ------ $2,500 $7,500 $2,500
$5,000
$10,000 ------ $2,500 $7,500 $2,500 $5,000
$50,000 $10,000 $10,000 $30,000 $10,000 $20,000
By developing set divisions within each category that are based
upon the equivalent total remedial costs cited above, we believe
that in almost all instances the amount of total reductions in
reimbursement will more closely relate to the act of
non-compliance, rather than the cost of remediating a site - large
or small.
Item (b) above was one consideration in selecting the figures of
$45,000/$50,000 and $38,333.34/$43,333.34 as total remedial costs
that must be incurred in order to also incur the maximum limit in
reimbursement reduction. In most cases the deductible alone will
force insolvency if the situation is imminent.
The DEQ also recognized that for the “larger” categories, I.A,
II A, VI A, VII A, X A, and XI A, it may not be realistic to
utilize total remedial costs of $38,333.34/$43,333.34, and
therefore selected the figures of $45,000/50,000. If the lower
total remedial costs were chosen for these “larger” categories, the
percentages would have to be much higher in order to meet the
limits. For example, a willful RP with a limit of $15,000 would
receive reductions in reimbursements at 60% and would incur
$33,333.33 of the first $43,333.33 in total remedial costs. The
higher percentages would also affect substantial non-compliance
determinations - category XIV (See discussion below in 5 XIV.).
Another consideration or assumption is that most sites which
have caused a problem to the extent that fund dollars will be
applied for will have total remedial costs of a least $38,333.34 to
$45,000, or $43,333.33 to $50,000. Total dollars expended on
remedial costs beyond these figures are usually not comparable for
two randomly picked sites. If the calculations are based on total
remedial costs higher than these figures, the scenario given in
item (a) above may occur frequently—an RP who receives a lower set
reduction will pay/incur a larger limit than a higher set RP within
the same category. Further, if the reduction method is based on
higher total remedial costs, the percentages would have to be lower
to match the assigned limits, and therefore would affect
substantial non-compliance determinations (see discussion below in
5 XIV). Some of the points raised in item (b) above may also be
compromised by
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using higher total remedial costs—percent reductions could
become so small that administrative time to apply the reductions
may not be justified, and such small percentages may not grasp the
attention of violators or serve as a deterrent to RPs or potential
RPs.
In short, three types of figures found in the guidance are “in
balance” with one another based upon DEQ judgment and philosophy,
and the necessity to make consistent and equitable determinations.
The three types of figures are the percentages, the limits, and the
figure of 100% constituting substantial non-compliance. Because
these figures are “in balance” with one another, a change in one
type necessitates a change in the other two types of figures.
5. Compliance Violation Categories
Further explanation is given here for what each category
addresses, and the reasoning for the size of reduction percentages
and limits.
I. PRRA Fund Fee Payments
Categories I A, B, and C address non-payment of Petroleum
Release Remedial Action Fees - Initial one-time fees and Annual
fees. In applying these categories, the PRRA fees not paid will be
recovered in the reimbursement process. Non-payment of the Initial
fees is divided into two applications under I. A. Larger percentage
reductions and limits are applied to the reimbursement if an owner
failed to pay the fees on greater than or equal to 50% of the tanks
at the facility that contributed to the release. This
differentiation was included in the guidance primarily for those
sites where a waste oil tank was neglected in the registration and
therefore the initial Fund fee payment process.
Reductions for non-payment of the Annual fees will be applied
for each year of non-compliance. This is one of the categories that
does not have three sets of percentages and limits corresponding to
negligent, knowing, and willful. Rather, for each year that Annual
fees were not paid, a 2.0% reduction is applied to the
reimbursement with a limit of $500 per year. For example, if an
owner failed to pay the fees on any of his or her tanks for five
years, the percentage reduction applied to the reimbursement would
be 10% with a limit of $2500.
Full payment of Petroleum Release Remedial Action (PRRA) fees
during the period of usage of a leaking tank(s) is a requirement
for participation in the fund. Category I C addresses the issue.
Non-payment of all fees (Initial and Annual) will result in total
ineligibility of costs submitted for reimbursement. If the fees
were paid some years and not others, categories I A and/or B will
be utilized to assess a reduction. This category addresses an owner
who never paid the fees. This category does not make room for a
differentiation of negligent or knowing, as the DEQ can only draw
the conclusion that the non-compliance was willful. The DEQ has
become aware of owners who make payment of their Annual tank
registration fees but intentionally do not make payment of the PRRA
fees. The DEQ believes that the creation of the fund and the
mechanism of funding operate much like insurance. The DEQ
interprets the legislation to require funding participation (i.e.,
fees payments) by all tank owners specified.
II. Registration/Permitting of Non-Exempt Tanks
III. Registration/Permitting of Exempt Tanks
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IV. Registration of Tanks Permanently Out of Service
Categories II A - D, III A, and IV A address initial (one-time)
registration of all tanks. Categories II A, III A, and IV A address
situations where an owner failed to provide Initial registration.
Like category I A, category II A is divided into two applications.
Category II B addresses situations where an owner had not secured a
permit until the last year before the tanks were to be removed,
upgraded, sold, etc. More commonly, this category is used for
owners who want to remove their tanks and in order to do so have to
register their tanks within a few days of the tank removal.
Category II C addresses situations where owners have failed to
secure a permit, but have registered their tanks at least a year or
more before the release was discovered.
Category II D addresses Annual permits for non-exempt and not
permanently abandoned tanks. Like category I B, only one set of
percentage and limit is given for this category. This category will
be applied for each year that an annual permit was not secured.
All categories differentiate between non-exempt and exempt tanks
or tanks that are permanently out of service. Further, the
non-exempt categories carry higher percentages and limits than
exempt or out of service categories. The DEQ believes that the
leaking non-exempt tanks have a greater potential to harm or impact
humans and the environment than do the other tanks. In general,
non-exempt tanks handle much larger volumes of petroleum than do
exempt tanks. Therefore, by not meeting the SFM requirements, a
leaking tank may go undiscovered and continue to leak. This
philosophy is supported by the SFM regulations and corresponding
legislation as non-exempt tanks are in general terms more heavily
regulated.
Category II A, failure to initially register non-exempt tanks,
is the only “large” category under all registration/permitting
categories. This category imposes higher percentages of reduction
and higher limits than the other categories. Further, total
remedial costs must reach $45,000/50,000 in order to reach the
limits in this category as opposed to $38,333.34/43,333.34 for the
remaining categories. A larger reduction was assigned to this
category because the DEQ believes that by not initially registering
any tank, but especially non-exempt tanks which generally handle
much larger volumes of petroleum, all future requirements like leak
detection, annual registration, etc. would not be met, and the
regulating agency (SFM) would be unaware of the tanks and their
compliance status. Again, in not meeting the requirements, a
leaking tank may go undiscovered and continue to leak.
V. Tank Design, Construction, Installation, and Repair
This category covers a broad array of requirements for existing
and new underground and aboveground tanks. This category is applied
to USTs which have failed to meet the requirements of precision
testing, new UST system performance standards, upgrade
requirements, closure requirements, overfill protection, corrosion
protection, release detection, secondary containment for new tanks
which are within 500 feet of a public water supply system, and
system compatibility with product to be stored. This category is
applied to ASTs and USTs that are subject to and have failed to
meet the SPCC requirements of planning and updated Oil Pollution
Act requirements of spill response planning. ASTs and USTs are also
subject to the National Fire Protection Association (NFPA) 30 -
Flammable and Combustible Liquids Code that outline containment
requirements and other construction requirements. NFPA 30 is
enforced by the SFM. Lastly, ASTs are also subject to Department of
Natural Resources regulations outlining containment requirements
within flood plain management programs.
This category has been assigned “medium” reductions in
reimbursements because the category relates to failure of
preventive measures or inadequate construction/repair requirements
that were intended to lessen the possibility of, or lessen the
impact of, a release. Releases have happened and will continue to
happen
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even when all design, construction, installation, and repair
requirements are met. For this reason, the DEQ believes that
“larger” reductions are not appropriate. At the same time, the DEQ
believes that preventive measures are of high importance and
therefore “small” reductions are not appropriate, as they do not
convey this message.
VI. Release Detection/Tank Gauging
Category VI A addresses both a failure to apply release
detection and inadequately performing release detection. Release
detection in most cases involves several items that when paired
together meet the total requirements of release detection. Release
detection is also a requirement for new tank installations covered
by category V A above. Category VI B. addresses both a failure to
perform and inadequately performing inventory control (tank
gauging), and record keeping.
Categories VI A and B are often times applied together on
reimbursements. This is due to the fact that tank gauging when
paired with annual precision testing meets the requirements of
release detection for UST systems which do not meet the performance
standards of Design and Installation Standards for New UST Systems,
or the Upgrade Requirements for Existing UST Systems (Chapters 4
and 5 of Title 159). There exist other methods to meet the release
detection requirements. Regardless of the chosen method, inventory
control and record keeping is always a separate requirement.
Category VI A - release detection has been assigned “large”
reduction percentages and limits because the DEQ believes that
without release detection or with inadequate release detection,
leaking tanks may go undiscovered and continue to harm or impact
humans and the environment. With that same philosophy, category VI
B - tank gauging has been assigned “medium” reduction percentages
and limits. “Larger” reductions were not assigned to the
tank-gauging category because the DEQ recognizes the inaccuracies,
correction for temperature, metering methods, etc. associated with
tank filling and gauging. Nonetheless, by not performing tank
gauging or doing it improperly, a release may go undiscovered.
VII. Release Notification
Both the SFM and DEQ utilize regulations outlining requirements
for immediate notification of a release or suspected release. The
DEQ believes that immediate notification is of great importance for
reasons such as taking immediate action to respond to a release to
protect public health or taking immediate remedial measures to
lessen the extent of impact to the environment. As such, “large”
reductions are assessed for failure to notify in excess of 30 days,
and non-participation in the fund (substantial non-compliance) is
applied for failure to notify in excess of 90 days.
The term immediate seems straightforward but has been
interpreted to mean varying degrees of time. The DEQ has recognized
that often it is not possible to make immediate notification past
business hours and has on occasion treated “next day” notification
as meeting the notification requirements. For these reasons a
“small” reduction is assigned for notifications within 2 to 7
days.
VIII. Release Abatement/Containment
This category generally addresses failures by RPs to physically
respond to releases or improperly respond to releases. Abatement
and containment requirements in the event of a release are found in
DEQ Title 126. Common use of this category would be an instance
where an RP flushes a petroleum release to waters of the State,
rather than containing and lessening the impacts of the release.
Such instances of “making the situation worse,” or “ignoring” the
release altogether if immediate abatement and containment measures
are necessary, are viewed by the DEQ as serious, and have therefore
been assigned “medium to large” reduction percentages and
limits.
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IX. Failure to Clean Up Documented Past Spills
This category is self explanatory except to note that the past
spill(s) must be documented. That is, they must have been reported
to the State or documented by some other reliable method that the
DEQ would recognize, such as, notification to a local regulatory
body. The DEQ believes that such documentation is necessary to make
reductions in reimbursement. In reality, almost every tank system
has spills of varying sizes throughout the history of use. Some are
cleaned up, some are not; some are “sort of” cleaned up. Often
times this “historical contamination” adds to or is the sole source
of ground water contamination. For these reasons, the DEQ has
assigned “medium” reduction percentages and limits to this
category.
X. Tank Permits at Time of Removal/Closure
Categories X A and B address a failure to obtain a closure
permit and failure to use a certified closer. These categories have
been assigned “large” and “medium” reduction percentages and limits
respectively. The DEQ believes that obtaining a closure permit and
utilizing a certified closer are important in identifying releases
and in decreasing the opportunities for dishonesty in reporting.
Because the SFM and DEQ cannot be at every removal/closure, the
permitting and certification process has been developed to ensure
that releases are identified, assessed, and reported in a
responsible and honest fashion.
XI. Disposal of Wastes
Disposal of wastes from removal of an UST system are subject to
DEQ approval. Contaminated soils are generally classified as
special waste and regulated under DEQ Title 132. Sludges and
contaminated wastewater may be hazardous waste. This category is
most commonly utilized when no contact is made with the DEQ
regarding disposal of wastes generated from an UST, and improper
disposal has occurred. An example of improper disposal would be the
dumping of contaminated soil in an unapproved location such as on
the banks of a waterway. “Medium to large” reduction percentages
and limits are assigned to this category because the DEQ believes
that improper disposal can enlarge the scope of contamination not
only at a leaking UST site, but also off-site where contamination
may be first introduced as a result of improper disposal. Further,
improper disposal may lead to the contamination of another medium
that may be more fragile and/or more difficult to remediate.
XII. Non-Compliance with DEQ Timetables
The DEQ sets timetables for completion of remedial action phases
for various reasons: (a) to reach cleanup in a short timeframe and
therefore be able to address more sites, (b) to keep the scope of
the problems from enlarging, (c) to ensure that human health
threats are eliminated, (d) to address all sites in a consistent
manner, and (e) to reach site closure more economically. These are
only some of the reasons that timeframes are established. The DEQ
has assigned a 10% reduction to this category with no limit.
Failing to meet a timetable has little to do with the reasons for
setting limits for the above categories. The reduction is one-time
- for the particular work effort or phase that may be in question.
The reductions for Categories I - XI are lifetime - they are
reduced from all reimbursements until the limit is reached.
To ensure that the DEQ has made all reasonable attempts at
attaining voluntary compliance as contemplated in NEPA, the DEQ
assesses this reduction in the following manner. If a compliance
date is missed anywhere during the chronological history of site
cleanup, and a single warning letter was sent informing the RP of
their compliance status, no reduction is assessed. This instance of
non-compliance is forgiven. If then after such a warning letter is
sent and one or more compliance dates are missed in the ongoing
history of site investigation and cleanup, a 10% reduction for each
corresponding missed compliance date and associated work effort or
phase of remediation is assessed. If no warning letters are
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sent informing the RP of their compliance status, no reductions
are assessed no matter how many compliance dates are missed.
This category may also be applied to a reimbursement where a
Stipulated Agreement was not adhered to by the responsible party.
This would not require a warning letter as described above.
XIII. Non-Compliance with Title 200 Provisions
Category XIII. A. One of the eligibility criteria established in
Title 200 is that the DEQ has approved the plan for remedial
action. The reasons for this approval process are many; however,
simply stated the DEQ approves plans to ensure that the remedial
action is sufficient, is economical, is satisfying regulatory
requirements, and is not contradicting or violating any other
environmental statutes or regulations.
For work performed during or before April 1995, a 25% reduction
has been assigned. Although approval of a plan for remedial action
is one of the eligibility criteria for participation in the fund,
the DEQ believes that an argument could be made that no harm has
been caused if a plan is subsequently approved. Further, the DEQ
has interpreted the approval aspect of the act and Title 200
regulation to imply approval before any work is initiated. Title
200 requires Departmental acceptance of an increment of remedial
action prior to reimbursement of costs associated with that phase.
The DEQ will not wholly accept an increment of remedial action (and
work product) if the work was done before approval. With this in
mind, the DEQ believes these instances of non-compliance should
still be allowed to be reimbursed from the fund at 75% of total
expenses associated with the particular work effort or phase of
remedial action that may be in question.
Statutory changes made to Neb. Rev. Stat. §66-1525 (2) (d),
established the voluntary remedial action program (VRA) for work
performed after April 1995. Under VRA, responsible persons may
undertake remedial actions before Departmental approval. This
allows responsible persons with backlogged, suspended, or active
sites to perform remedial activities and receive reimbursement at a
later date. However, the responsible person and/or their consultant
must follow all applicable guidance, regulations, and statutes.
Reimbursement will not be made until the site is activated or
reactivated and/or the work performed is approved.
Category XIII. B. This section addresses instances where not
only was remedial action taken without approval, but the DEQ
subsequently disagreed with the remedial action plan in whole or
part and did not approve of the plan. The DEQ believes that in
these instances the eligibility criteria is clearly not met and
therefore all expenses are ineligible.
Category XIII. C. Pursuant to Chapter 2, Section 007, applicants
who incur expenses in excess of the applicable deductible amount
must submit their Title 200 application in a timely fashion. For
costs incurred on or before June 11, 1997, an application must have
been submitted by June 11, 1998. For costs incurred after June 11,
1997, an application must be submitted within one year of the
compliance date established by the DEQ when the remedial phase is
approved or the actual completion date of the remedial stage
whichever is later. Chapter 2 also states that applications
submitted to the DEQ subsequent to this time limit may be subject
to reimbursement reduction or denial.
The tiered, maximum-limit approach to reimbursement reduction
for this category is consistent with the manner in which the
document addresses other non-compliance issues that are “time
sensitive” (e.g., release notification). The DEQ believes that the
submittal period categories are appropriate for a number of
reasons. First, a responsible person has a one-year period to
submit his/her application before any reduction is assessed. As
environmental consultants and contractors typically invoice their
clients on a monthly basis, and most remediation phases extend over
a period of several months, responsible persons
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have ample opportunity over the course of a remediation phase to
gather any necessary backup documentation that might be needed in
order to complete their application form. Even should an applicant
wait until he/she receives the final invoice of the phase before
assembling their application, a one-year period is adequate to
obtain necessary invoice/payment documentation. In addition, under
provisions in Section 007.03, applicants who submit an incomplete
application within the one-year period gain an additional 30 days
to correct and resubmit their application without reduction.
Additionally, a responsible person is not penalized when, due to
unforeseen difficulties, his/her consultant is unable to complete a
remedial phase within the original compliance deadline. However,
the RP and/or their consultant must obtain a deadline extension
from their DEQ project manager. This extension request should be
made two weeks before the original deadline in writing. This new
extended compliance deadline then becomes the date from which the
one-year application submittal period originates.
With regard to the 100% reduction in reimbursement for
application submitted 61 or more days following the application
deadline, it should be noted that this timely submittal requirement
was instituted, in part, due to the many responsible persons that
have performed remedial work and elected not to participate in the
Title 200 reimbursement program but failed to inform the DEQ of
their intentions. In the past, these sites represented an
obligation to the fund that was impossible to quantify. Now,
however, through implementation of a 100% reduction, the DEQ has
the ability to take such sites “off the books” and thus more
efficiently prioritize and utilize the funds available.
XIV. Substantial Non-Compliance—Categories I - XI
The Act directs the DEQ to determine if owners or operators were
in substantial compliance with all applicable rules and regulations
as an eligibility criterion for reimbursement, and gives the DEQ
duty and authority to reduce reimbursements by as much as 100% for
non-compliance. Limits have been assigned to categories I through
XI and therefore, even when several categories are applied to a
single site, a responsible party may still be eligible for
reimbursement of the majority of site remedial action costs. This,
however, is not the case when categories that may be added together
total greater than or equal to 100%. Being at or above 100%
constitutes “substantial non-compliance,” and denial of any
reimbursement from the fund. If a responsible person was willfully
non-compliant in three of the “large” categories, that is, three
individual assessments of 33⅓%, the DEQ would find the person to be
substantially non-compliant.
XV. Flexibility
The DEQ recognizes that this policy cannot cover every
circumstance and therefore should incorporate the ability to be
flexible where instances of odd circumstance, including the extent
and reasons for non-compliance, warrant such flexibility. In such
instances where the DEQ utilizes this flexibility, detailed
documentation will be provided to the RP and the DEQ file.
Title 200 Reimbursement Reduction Guidance1. Requirements Before
Closure2. Requirements Before or At the Time of Closure3.
Requirements at the Time of Closure4. Post Closure RequirementsXII.
Non-Compliance with DEQ Timetables (One Time Reduction)XIII.
Non-Compliance with Title 200 Provisions (One Time Reductions)XIV
Substantial Non-Compliance—Categories I - XIXV Flexibility
I. PRRA Fund Fee PaymentsII. Registration/Permitting of
Non-Exempt TanksIII. Registration/Permitting of Exempt TanksIV.
Registration of Tanks Permanently Out of ServiceV. Registration of
Tanks Permanently Out of ServiceVI. Release Detection/Tank
GaugingVII. Release NotificationVIII. Release
Abatement/ContainmentIX. Failure to Clean Up Documented Past
SpillsX. Tank Permits at Time of Removal/ClosureXI. Disposal of
WastesReimbursement Reduction Support Document1. Purpose2. DEQ
Determinations3. Exemption4. Percentages and Limits5. Compliance
Violation CategoriesI. PRRA Fund Fee PaymentsII.
Registration/Permitting of Non-Exempt TanksIII.
Registration/Permitting of Exempt TanksIV. Registration of Tanks
Permanently Out of ServiceV. Tank Design, Construction,
Installation, and RepairVI. Release Detection/Tank GaugingVII.
Release NotificationVIII. Release Abatement/ContainmentIX. Failure
to Clean Up Documented Past SpillsX. Tank Permits at Time of
Removal/ClosureXI. Disposal of WastesXII. Non-Compliance with DEQ
TimetablesXIII. Non-Compliance with Title 200 ProvisionsXIV.
Substantial Non-Compliance—Categories I - XIXV. Flexibility