Selling a convenience cornerbegins with who owns the tanks

A fuel corner's underground storage tanks answer to two roles that 9VAC25-580-10 defines separately from the land: the tank owner and the operator.

For a system in use on November 8, 1984, or brought into use after that date, the owner is any person who owns it; the operator is "any person in control of, or having responsibility for, the daily operation of the UST system." A landowner, a separate tank owner and a separate store operator can be three persons, and each rule below names which it reaches. The definition of owner excludes a person who holds indicia of ownership "primarily to protect the holder's security interest in the tank," without participating in its management or being otherwise engaged in petroleum production, refining and marketing.

Not every buried tank is in the program. The definition excludes, among nine items, farm or residential tanks of 1,100 gallons or less storing motor fuel for noncommercial purposes, and tanks storing heating oil for consumption on the premises where stored.

One notification duty in 9VAC25-580-70 is addressed to the landowner as such: "owners of property who have actual knowledge of underground storage tanks on such property that were taken out of service before January 1, 1974, yet are still in the ground, must notify the department on the notification form." The regulation defines the department as the Department of Environmental Quality, and the statute authorizes the State Water Control Board to exercise "general supervision and control over underground storage tank activities in this Commonwealth."

The ground under the tanks has its own answers: a store set within a larger commercial property may stand on a pad site, interchange distance is covered in how far from an exit is still commercial ground, and a county without zoning in what unzoned means for a commercial buyer.

The tank owner's and operator's records are what a buyer's environmental consultant can ask to see, and 9VAC25-580-120 lists the records owners and operators must maintain.

They include documentation of compliance with release detection requirements and the results of the site investigation at permanent closure, kept at the UST site and "immediately available for inspection by the department," or at a readily available alternative site. That duty runs to DEQ, not to a buyer; what a buyer receives is settled in the contract.

Trained operators are persons, not features of the land: 9VAC25-580-125 has owners and operators designate Class A, Class B and Class C operators for each system or facility, so the designation duty sits with whoever owns and operates the tanks after a sale.

Release reporting runs on a 24-hour clock. Owners and operators must report a suspected release to DEQ within 24 hours, including discovery "by owners and operators or others" of released substances at the site or nearby, and, unless corrective action begins under Part VI, investigate and confirm it within seven days or another period DEQ approves on a timely written request. A petroleum spill or overfill must be contained and immediately cleaned up, and reported to DEQ within 24 hours, when it results in "a release to the environment that exceeds 25 gallons or that causes a sheen on nearby surface water"; the 25 gallons is measured on what reaches the environment. A confirmed release brings further DEQ reports, among them a summary of initial abatement steps.

A seller who is also the tank owner or operator carries these duties in that role. Whether any duty or liability outlasts the sale, and what a past release means for it, are an environmental attorney's questions.

Financial responsibility is the duty 9VAC25-590 places on owners and operators of petroleum underground storage tanks, with the exceptions that chapter lists, to demonstrate the means to take corrective action and to compensate third parties for bodily injury and property damage caused by accidental releases; Va. Code 62.1-44.34:12 has them "annually demonstrate and maintain evidence of financial responsibility."

Where owner and operator are separate persons, 9VAC25-590-20 says "only one person is required to demonstrate financial responsibility; however, both parties are liable in event of noncompliance." Va. Code 62.1-44.34:12 allows insurance, guarantee, surety bond, letter of credit, irrevocable trust fund, self-insurance or the Fund, in any combination, and 9VAC25-590-40 says the required coverage amounts "do not in any way limit the liability of the owner or operator."

The Virginia Petroleum Storage Tank Fund is a nonlapsing revolving fund for the tank programs, for demonstrating financial responsibility and for other lawful purposes. One disbursement purpose in Va. Code 62.1-44.34:11 reimburses corrective action costs above the per-occurrence requirement, for releases reported after December 22, 1989, to "the owner or operator who is the responsible person," whom Va. Code 62.1-44.34:10 defines as the owner or operator "at the time the release is reported to the Board." That follows the tank owner or operator, not a landowner or later buyer as such. No Fund money is paid if the owner or operator fails to report a release as required, a claim must be filed within two years of the site remediation closure letter, and the Board seeks recovery of Fund money where substantive tank rules were violated. Eligibility is DEQ Fund staff's call.

A buyer's lender reads the same corner from its side. The Comptroller of the Currency's lending handbook says property types "that may pose an elevated level of environment liability include gas stations," and that retail properties "merit close review of past and intended uses." It is guidance for national banks; what a particular lender requires is that lender's call.

EPA says CERCLA liability may be assigned based solely on property ownership and aims its inquiry rule at purchasers; whether a seller needs a Phase 1 environmental study is a separate answer.