Congress created the Leaking Underground Storage Tank Trust Fund (L.U.S.T.) in 1986 by amending Subtitle I of the Resource Recovery and Conservation Act (RCRA). In December 1990, Congress re-authorized the fund for five more years. Up until December 31, 1995, the L.U.S.T. fund was financed by a 0.1 cent tax on each gallon of motor fuel sold in the country. Currently there is over $1.8 billion in the federal L.U.S.T. fund. The L.U.S.T. fund tax expired December 31, 1995, but was reinstated in 1998 and will sunset in 2008. However, Congress has yet to appropriate even the amount of interest earned each year on the fund, to states to cope with enforcement and tank remediation. In other words, the fund continues to grow exponentially, with little going for the fund’s intended purpose – tank clean-up.

As originally created, the L.U.S.T. fund has two functions. First, it is supposed to provide money for overseeing corrective action taken by a responsible party, usually the owner or operator of a leaking UST. Second, the fund is supposed to provide money for cleanup of UST sites where no owner is identified or where the owner is unable or unwilling to pay. The funds are distributed to the states based on an allocation formula which includes the number of confirmed releases, the number of notified tanks, the number of cleanups initiated and the danger to existing ground water drinking supplies.

Currently, approximately 99% of the money appropriated each year goes for administration and enforcement of the L.U.S.T. program and approximately 1% is spent on the clean-up of orphan tanks. That means that, out of approximately $72 million appropriated for the program in FY '01, only about $720,000 went to clean-up tanks (orphan only). The rest of the money appropriated in FY '01 -- $71,280,000 -- went for the administration and oversight of the program (for both federal and state E.P.A. enforcement). E.P.A. has cleaned up a fraction of tanks to date (partially because they can only use federal money on orphan tanks) and private tank owners have cleaned up the large majority or remaining tanks. PMAA's position has been and remains that the bulk of clean-ups need to be done in situations where the owner or operator can be identified, but may need financial assistance or where MTBE contamination has occurred.

Additionally, PMAA strongly favors state enforcement of the program and urges Congress to enable states to pursue this role by giving them the bulk of the federal funding, while lessening the restrictions they have on how they must spend the money. PMAA does not support giving states money for any reason, but encourages Congress to allow states to use the funds for expanded enforcement and remediation efforts.

Senator Lincoln Chafee (R-RI) has introduced legislation, S. 1850, which would mandate that 80% of the federal fund be allocated to states for enforcement and remediation of underground storage tanks. In addition, the bill would compel federal, state and local governments to get their own houses in order by requiring them to establish guidelines for the clean-up of publicly-owned tanks. The bill would also expand current authorization by allowing states to use the money to address sites contaminated with MTBE.

Senator Bob Smith (R-NH) has also introduced legislation, S. 950, that would augment the states’ ability to remediate underground storage tanks and use federal funds to deal with MTBE remediation. The bill would also phase-out the use of MTBE altogether and lift the federal oxygenate mandate.

PMAA expects House legislation to also be introduced soon that would mirror, to some degree, the Senate legislation. Under the proposed legislation, states -- who have the expertise -- could allocate cleanup money where it is needed most. Moreover, federal disbursements would greatly relieve many of the state L.U.S.T. funds from facing insolvency and facilitate the efficient and cost effective cleanup of the nations’ leaking underground storage tanks. Finally, this would help to ensure that the cleanups mandated by EPA are performed and that the federal fund supports those efforts.