By Marcos Gil, REALTOR®, Keller Williams Commonwealth, KY license 296259
Illustrative: a rusty oil tank removed during a 2014 debris cleanup in New Jersey. Photo: U.S. Fish and Wildlife Service, public domain. Not a Kentucky property.
A pipe sticking out of the ground beside an older house may be the fill or vent for a heating oil tank, past or present. Two documents answer the first questions a buyer or seller has: Kentucky’s definition of an underground storage tank, and the Kentucky Real Estate Commission’s seller’s disclosure form.
Kentucky’s UST definition leaves it out
KRS 224.60-100(1) defines “Underground storage tank” as “any one (1) or combination of tanks (including underground pipes connected thereto) used to contain an accumulation of regulated substances,” with ten percent or more of the volume below ground. Then: “Such term does not include any:” and a list. Three items on that list matter for a house:
- (a) “Farm or residential tank of one thousand one hundred (1,100) gallons or less capacity used for storing motor fuel for noncommercial purposes;”
- (b) “Tank used for storing heating oil for consumptive use on the premises where stored;”
- (i) “Storage tank situated in an underground area (such as a basement, cellar, mineworking, drift, shaft, or tunnel) if the storage tank is situated upon or above the surface of the floor.”
The section applies “As used in KRS 224.60-105.”
The federal definition matches
The federal UST rule, 40 CFR 280.12, carries the same exclusion: “Tank used for storing heating oil for consumptive use on the premises where stored.” It defines the two key phrases. “Consumptive use with respect to heating oil means consumed on the premises.” And “On the premises where stored with respect to heating oil means UST systems located on the same property where the stored heating oil is used.”
Read together, a buried tank that held heating oil burned in the house on the same lot falls outside both definitions. A tank that held motor fuel, or served a different property, is a different analysis.
What the exclusion doesn’t answer
The exclusion answers one question: whether the tank is a regulated underground storage tank under these definitions. It doesn’t answer whether the tank leaked, whether anything in the soil needs attention, or what a removal or closure would involve. Those stay UNKNOWN until an environmental professional looks at the specific property.
What the seller’s disclosure form asks
On the Kentucky Real Estate Commission’s Seller’s Disclosure of Property Condition (KREC Form 402, 12/2022), Section 11, Hazardous Conditions, item (a) asks: “Are you aware of any underground storage tanks, old septic tanks, field lines, cisterns, or abandoned wells on the property?” The answer boxes are N/A, Yes, No and Unknown.
The question asks about “any underground storage tanks”; its text doesn’t reference the statute’s exclusions. How to answer it for a specific tank is a question for the seller and their attorney.
Under 201 KAR 11:121, Section 4(1), a licensee “shall direct the seller-client of a single family residential real estate dwelling, duplex, triplex, fourplex, condominium, or townhouse to accurately complete and sign the Seller’s Disclosure of Property Condition form required by KRS 324.360,” unless the seller refuses and the refusal is documented.
Questions for the inspection period
- Is there a fill pipe or vent pipe in the yard or along the foundation?
- How was the house heated before the current system?
- What does the seller’s Form 402 say on Section 11(a)?
- If a tank is suspected, ask an environmental professional which testing fits. Scope and cost: UNKNOWN until they see the property.
This is general information about Kentucky and federal tank definitions, not legal or environmental advice. An environmental professional and a Kentucky real estate attorney have the final word on a specific property. I’m your agent, not your attorney or environmental consultant.
Put the tank question on the list
Buying or selling an older house in Central Kentucky? Call (859) 310-1209. I’ll put the tank question on the inspection-period list.
Marcos Gil, REALTOR® · Kentucky license №296259
Keller Williams Commonwealth · 1908 Bryant Rd Ste 250, Lexington, KY 40509
Principal Broker: Bo Smith · (859) 721-2121
Equal Housing Opportunity.
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