Leaking UST Cleanup Enforcement Tools

EPA may take administrative or judicial enforcement action against an owner and/or operator of an underground storage tank (UST) from which there is a release. Whether the enforcement action is administrative or judicial depends on the circumstances surrounding the release and the authority that EPA relies on to address the contamination caused by the release.

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Administrative Enforcement Actions

EPA may issue an administrative order to an owner and/or operator of an UST to take certain actions to compel cleanup. EPA may issue two types of administrative orders:

  • unilateral administrative order (UAO), an order in which EPA demands cleanup and compliance; and
  • administrative order on consent (AOC), an agreement between EPA and the owner and/or operator describing a plan to achieve cleanup and compliance.

Sections 3013, 7003, and 9003(h) of the Resource Conservation and Recovery Act (RCRA) authorize EPA to issue administrative orders against owners and operators of an UST. Orders issued under RCRA section 9003(h) are governed by rules set forth in 40 C.F.R. Part 24. These rules describe the process in which an owner and/or operator may request a hearing.

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Complaint/Consent Agreement Final Order

EPA may also seek an administrative penalty from an owner and/or operator, under RCRA section 9006(a) by filing an administrative complaint with the Regional Hearing Clerk.

Administrative complaints are governed by the Consolidated Rules of Practice found in 40 C.F.R. Part 22. Under 40 C.F.R. § 22.18, EPA may settle with an owner and/or operator and enter into a Consent Agreement and Final Order (CAFO).

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Judicial Enforcement Actions

The United States, on behalf of EPA, may bring a law suit in federal district court against owners and/or operators of a leaking UST for a violation of RCRA Subtitle I. Lawsuits are often used in cases involving:

  • repeated violations;
  • uncooperative or recalcitrant owners and/or operators; or
  • when the release caused serious environmental damage.

The U.S. Department of Justice (DOJ) prosecutes such cases on behalf of EPA.

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Citizen Suits

RCRA § 7002 authorizes citizens to bring enforcement actions against potential or actual violators of RCRA in federal district court, including actions against owners and/or operators in violation of the underground storage tank cleanup requirements om Subtitle I of the statute.

Citizens are generally required to provide notice to EPA, to the state in which the violation occurred, and to the alleged violator. A citizen may not seek cost recovery if the citizen spends his or her own money on cleanup.

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Enforcement Tools

EPA uses tools as part of, or in addition to, administrative orders and judicial actions to achieve timely and effective cleanup or encourage reuse. The enforcement tools are:

  • Institutional Controls

    Institutional controls are non-engineered instruments, such as administrative and legal controls, that protect human health and the environment and ongoing remedial activities to ensure the viability of the cleanup. For instance, zoning restrictions prevent site land uses, like residential uses, that are not consistent with the level of cleanup. Additional information is available from EPA's Institutional Controls webpage.

  • Comfort/Status Letters

    In some instances, EPA may provide comfort/status letters to purchasers or developers of a property regulated under RCRA Subtitle I. Such letters are provided solely for informational purposes and relate only to EPA's enforcement intentions under RCRA Subtitle I at a property based on known information. See Memorandum for Comfort/Status Letters for RCRA Brownfield Properties (PDF) (2/5/01) which provides guidance for sites regulated under RCRA Subtitle I.

  • Supplemental Environmental Projects (SEPs)

    In an administrative or judicial settlement, EPA and an owner and/or operator may agree that the owner and/or operator perform a supplemental environmental project (SEP) in exchange for a lower civil penalty. Supplemental environmental projects are environmentally beneficial projects undertaken by a party, documented in a settlement of an environmental enforcement action, but which the party is not otherwise legally required to perform. Supplemental environmental projects can play a role in improving the environment at or near a LUST site.

Learn More: LUST Trust Fund and Cost Recovery

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