United States
Environmental Protection
Agency
Solid Waste And
Emergency Response
(OS-420) WF
EPA 500-B-92-004
OSWER Directive 9650.11
May 1992
?/EPA
State Program Approval
Handbook
Printed on Recycled Paper
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&EPA
United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
DfRECTIVE NUMBER: 9650.11
TITLE: State Program Approval Handbook
APPROVAL DATE: May 11, 1992
EFFECTIVE DATE: May n, 1992
ORIGINATING OFFICE: office of Underground Storage
0 FINAL Tanks (°UST)
D DRAFT
STATUS:
REFERENCE (other documents):
OSWER Directive 9650.12 "Suggested Procedures for
Review of State UST Applications"
OSWER OSWER OSWER
'E DIRECTIVE DIRECTIVE D\
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cnvironmonui rroiwcuon
G-CO/\ Washington. DC 20460
retzm QSWER Directive Initiation Request
1. Directive Number
9650.11
2. Originator Information
Namt of Contact Partofl
Jerry Parker
Mai) Coda
05-410(WF)
Office
OUST
Telephone Code
703-308-8884
State Program Approval Handbook
4. Summary of Directive (include brief statement of purpose)
Provides guidance, to the States on requirements and procedures for
State programs to be approved to operate in lieu of the Federal
UST program.
5. Keywords
underground storage tanks. State program approval
da. Does This Directive Supersede Previous Directive(s)?
b. Does It Supplement Previous Directive(s)?
No
No
X
Yes What directive (number, title) 9650.8
Yes What directive (number, title)
7. Draft Level
A - Signed by AA/DAA
8 - Signed by Office Director
C - For Review & Comment
D - In Development
8. Document to be distributed to States by Headquarters?
X
Yes
No
This Request Meats OSWER Directives System Format Standards
9. Signature of Lead Office Directives Coordinator
Beverly Thomas, OUST Directives" Coordinator"
Date
/
57
"
10. Name and Title of Approving Official
David Ziegele, Director, OU5
Date
EPA Form 1315-17 (Rev. 5-87) Previous editions are obsolete.
OSWER OSWER OSWER O
VE DIRECTIVE DIRECTIVE DIRECTIVE
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OSWER Directive 9650.11
STATE PROGRAM APPROVAL HANDBOOK
U.S. ENVIRONMENTAL PROTECTION AGENCY
OFFICE OF UNDERGROUND STORAGE TANKS
May 1992
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OSWER Directive 9650.11
OUST would like to thank those individuals .who helped make these
revisions to the original, March 1989 version of the State Program Approval
Handbook. Since the initial publication of this manual, a number of Regional
offices have reviewed State Program Approval applications submitted by their
States. Their successes, but perhaps more importantly, the difficulties they
encountered, have taught us much about the State Program Approval process.
With the help of Regional and State UST program staff, as well as
representatives of the Office of General Counsel, Offices of Regional Counsel,
and the Office of Enforcement, we have been able to produce what we feel is a'
useful, accurate, and up-to-date document which draws on more than two years
of Regional experience in proceeding with State Program Approval. OUST feels
that the lessons that have been learned over the past two years are refleeted
in the current document and should lead to a greater number of States seeking
and achieving program approval in the near future.
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OSWER Directive 9650.11
The policies and procedures set out in this document are intended solely
for the guidance of Government personnel. They are not intended, nor can they
be relied upon, to create any rights, substantive or procedural, enforceable
by any party in litigation with the United States. The Agency reserves the
right to act at variance with these policies and procedures and to change them
at any time without public notice.
iii
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OSWER Directive 9650.11
TABLE OF CONTENTS
1. INTRODUCTION
A. Purpose of This Handbook i
B. The Goals of This Handbook i
C. How This Handbook Can Help You 1
D. EPA's Approach to Regulating UST Systems 3
E. EPA's Approach for Implementing the UST Program 5
2. STATE PROGRAM APPROVAL PROCESS 6
A. Purpose of State Program Approval 6
B. Approval Criteria 7
C. Application Process for Approval 8
3. COMPONENTS OF THE STATE PROGRAM APPROVAL APPLICATION 11
A. Introduction n
B. Components of the Application n
1. Governor's Letter n
2. Attorney General's Certification and Statement 12
3. Demonstration of "Adequate Enforcement" Procedures 14
4. Memorandum of Agreement 14
5. Program Description 14
6. State Statutes and Regulations 15
4. ATTORNEY GENERAL'S STATEMENT: DEMONSTRATION OF "NO LESS
STRINGENT" OBJECTIVES AND "ADEQUATE ENFORCEMENT" AUTHORITIES 16
A. Introduction ^g
B. Objectives of the Federal Technical Requirements 16
1. New UST Systems and Notification 19
2. Upgrading Existing UST Systems 23
3. General Operating Requirements 26
4. Release Detection 31
5. Release Reporting, Investigation and Confirmation 39
6. Release Response and Corrective Action 43
7. Out-of-Service UST Systems and Closure 50
8. Financial Responsibility for USTs Containing
Petroleum 54
C. Adequate Enforcement Authorities 59
D. Scope of the State Program 65
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OSWER Directive 9650.11
5. DEMONSTRATION OF ADEQUATE ENFORCEMENT PROCEDURES
A. Introduction
B. Procedures for Compliance Monitoring
1. Identifying the Regulated Community
2. Record Review
3. Inspections
4. Public Reporting
5. Data Maintenance
C. Procedures for Enforcement Response
1. Compliance Monitoring Checklist
2. Enforcement Response Procedures Checklist
3. Informal Means of Encouraging Voluntary Compliance
4. Formal Enforcement Responses
5. Enforcement Outreach
69
69
70
71
72
73
74
75
75
78
79
80
81
82
MEMORANDUM OF AGREEMENT
A. Explanation
1. Who Signs
2. Federal/State Partnership
3. State Program Appraisal Process
4. Compliance Monitoring and Enforcement
5. Scope of the UST Program.
6. Variances.
7. Creative Use of the Memorandum of Agreement
B. Sample Memorandum of Agreement
83
83
83
83
84
85
86
86
87
90
PROGRAM DESCRIPTION
A. Introduction
B. Local Implementation
C. Program Description Questions
1. General Questions
2. Program Scope
3. Organization and Structure of Program
4. Resource Information
D. Capabilities Assessment
1. Purpose of the Capabilities Matrices
2. Structure of the Capabilities Matrices
3. Use of the Capabilities Matrices
96
96
97
97
97
98
100
102
103
103
104
104
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OSWER Directive 9650.11
APPENDICES
Appendix A Sample Application
A-l
Appendix B Federal Subtitle I Program
B-l
Appendix C Tools for Implementing State Programs G^
Appendix D Table of National Industry Codes ^
Appendix E Public Participation
E-l
Appendix F Capabilities Matrices
F-l
Appendix G Most Commonly Asked Questions about the State Program G 1
Approval Handbook and Suggested Procedures Manual
Appendix H Hj.loj.IMa-.. on Revving State Puads for
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OSWER Directive 9650.11
CHAPTER 1. INTRODUCTION
A. Purpose of This Handbook
This handbook was developed for State and EPA officials who are building
and evaluating State UST programs to be approved to operate in lieu of the
Federal UST program. As provided in Subtitle I of the Resource Conservation
and Recovery Act, 42 U.S.C. §§6991 - 6991 et seq.. States may be approved by
EPA to administer and enforce their UST programs in lieu of the Federal UST
program if their technical requirements are no less stringent than the
corresponding Federal requirements, and if they provide adequate enforcement
of these requirements. [Note: Throughout this document, the word "States"
generally includes both States and territories.] EPA has promulgated
regulations for State program approval (40 CFR Part 281). This handbook
provides further explanation and discussion to increase the States'
understanding of how EPA intends to implement these regulations.
B. The Goals of This Handbook
The goals for this handbook are:
To encourage State applications by making the application
process as easy and straightforward as possible;
To clearly describe EPA's expectations and criteria for an
approvable State program. Clear expectations will help
States with existing UST programs anticipate any legislative
or regulatory changes that may be necessary for approval,
and may help other States in designing approvable programs.
Clear expectations will also promote consistency in the
approach that EPA Regional offices use to review State
programs; and
To encourage a wide range of S'tate UST programs. EPA
recognizes that there are many different ways to design an
UST program that can meet the basic environmental and public
health goals of the Federal regulations, while also
reflecting the unique environmental characteristics and
governmental institutions of each State.
C. How This Handbook Can Help You
The handbook is written for two audiences: State agencies and EPA
Regional offices. This document should assist States as they design their UST
programs and assemble applications for program approval. In addition, it
should assist EPA Regional offices as they work with States before
applications for program approval are submitted, and as the Regional offices
review the official State applications.
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OSWER Directive 9650.11
Because not all the material presented here will be useful for every
situation, the reader need not feel obligated to read the handbook from cover
to cover. The handbook is divided into seven chapters and Appendices as
follows:
Chapter 2 discusses the State program approval process and defines EPA's
goal of allowing approved State programs to operate "in lieu of" the Federal
program. This chapter also describes the criteria that will be used to
determine a State program's suitability for approval, and outlines the steps
in the application process.
Chapter 3 provides a brief description and explanation of each component
of the State program approval application. Sample letters and other forms are
included in some sections of this chapter to aid States in developing their
own application packages. More detailed discussions of some of these
components are provided in the subsequent chapters. ~»
Chapter 4 discusses the Attorney General's statement that the statutes
and regulations of the State meet the "no less stringent" technical
requirements and ensure adequate enforcement of the State's UST program. A
table with spaces to cite relevant State statutes and regulations and examples
are provided for each of the "no less stringent" objectives to help States
interpret these Federal objectives.
Chapter 5 explains the requirements for compliance monitoring and
enforcement procedures, and includes detailed discussions to aid States in
describing how their own programs demonstrate "adequate enforcement"
procedures.
Chapter 6 describes the purpose of the Memorandum of Agreement (MOA)
that the State may provide to EPA. This MOA, to be negotiated with EPA,
describes the coordination and shared responsibilities of the State and EPA.
A' sample MOA is also provided in this chapter to aid States in preparing their
own applications.
Chapter 7 provides additional guidance for completing the Program
Description section of the State program approval application. The guidance
covers the five major areas of the Program Description including: general
questions, program scope, organization and structure of the program, resource
information, and State funds for financial responsibility.
The Appendices contain a sample program approval application, the
applicable Federal statute and regulations, other regulatory and statutory
tools, and a list of codes and standards written by nationally-recognized
organizations and national independent testing laboratories.
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OSWER Directive 9650.11
D. EPA's Approach to Regulating DST Systems
EPA s approach to the regulation of underground storage tank systems on
a national scale must be different from that undertaken by most of its other
regulatory programs because the UST problem is significantly different This
difference is mainly a result of three factors: the large number of
facilities to be regulated; the nature of the regulated community; and the
nature of the regulatory work.
1. Large size of regulated community.
The most significant problem is the sheer size of the regulated
community. Nationally, over 700,000 UST facilities account for about 2
million UST systems. Estimates indicate that roughly 48 percent of existing
UST systems are unprotected from corrosion (and thus, present a serious
environmental risk). A relatively high proportion of UST facilities (10-30
percent) have already had a leak, and soon others will leak unless measures
are taken to upgrade them.
The amount of activity it takes to properly manage an UST system
throughout its operating life has led EPA to conclude that the national UST
program is most effectively carried out at State and local levels of
government For example, a small city with about 700 facilities and 2 000 UST
systems within its jurisdiction can run a manageable regulatory program If
each of those 700 facilities installs one new tank during the neJt five years
that would be an average of 140 installations per year, or three per week If
that small city requires a city inspector to be present at each installation
an inspector would have to be in the field three times a week just for
installations of new USTs. This estimate does not include "spot" inspections
that might be needed for periodic tank testings, closures, upgrading or
ret^°St and cleanuPs' s task would be challenging, but the city could
probably manage to oversee at least its small percentage of the national
regulated community. However, if the above figures are multiplied by the
number of cities across the country, the idea of a Federally-implemented
program that would oversee all of these facilities becomes practically and
errectively impossible.
-, -, f consideration °f the large numbers of UST owners and UST systems also
led EPA to design the Federal UST regulations with a phase-in period for
certain requirements on existing UST systems. While all Federal requirements
foLln immediately for new UST systems, owners have until December 22
1998, or ten years, to upgrade existing UST systems to the corrosion
protection standard for new UST systems, and 1 to 5 years to install release
detection equipment for existing UST systems. These phased-in requirements
are a recognition of the fact that there are some limitations on the
capability of 700,000 UST owners and supporting service and manufacturing
industries to respond immediately to new regulations. The experience of
States that have been operating UST regulatory programs shows that it takes
several years for most owners of existing UST systems to understand and
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OSWER Directive 9650.11
I
respond to new regulations that require significant changes in the day-to-day
management of their businesses.
2. Nature of the regulated community.
Many UST facilities are owned and operated as small local businesses:
"Mom and Pop" gasoline service stations and convenience stores. These small
entrepreneurs, who are used to operating their businesses with minimal
environmental regulation, will be significantly affected by regulations for
UST systems.
The experience of State and local agencies with UST programs shows that
large businesses that own USTs are generally willing and have already begun to
comply with UST requirements, but that small owners, with limited resources
and knowledge of Federal regulations, often need more direct attention and
immediate assistance to bring them into compliance and to maintain that
compliance. Given the nature of this particular regulated community, EPA
believes this regulatory program often will be most effectively carried out by
the level of government nearest to the problem. State and local governments
know their regulated communities and are best able to respond quickly and
effectively to their individual problems.
3. Nature of the regulatory work.
The problem of releases from USTs is multi-faceted. There are three
major sources of release incidents: product delivery piping failures;
corrosion of unprotected tanks and piping; and spills and overfills.
Environmental regulations for UST systems must be aimed at preventing these
different types of petroleum and hazardous substance releases as well as
increasing the ability to quickly detect and minimize the contamination of
soil and ground water caused by such releases, and ensuring adequate cleanup
of contamination. To do this, UST regulatory requirements must address every
phase of the life cycle of a storage tank system: selection of the UST
system, installation, operation and maintenance, closure, financial
responsibility, and cleanup of the site where releases have occurred. Many
State and local governments have found that a great deal of visible, on-site
monitoring and a constant enforcement "presence** is needed to effectively
ensure many owners' compliance with requirements at each stage of the life of
the^UST system. Therefore, a regulatory program will be most successful in
achieving this compliance (and thus preventing environmental contamination and
ensuring cleanups of contamination) if it can be implemented by the level of
government most capable of performing these close and constant checks on the
regulated community.
4. State and local UST programs needed.
While the task of regulating USTs poses unique problems, it also
presents opportunities that are not available to some other environmental
regulatory programs. First, 40 States and territories already have final
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OSWER Directive 9650.11
technical regulations for USTs, while an additional 11 have draft technical
regulations. A number of local programs are also in operation. These State
and local programs provide a range of existing program designs and experiences
that can be useful models for the remaining States and localities as they
design and implement their new programs. Second, in many instances, the large
number of petroleum UST facilities to be regulated could provide an
opportunity for States and localities to impose fees or taxes that may raise
enough revenue to support a successful UST regulatory program. Finally State
and local governments may have a number of effective regulatory mechanisms and
informal enforcement tools that can be applied to underground storage tank
systems that are not available to the Federal government. For example, some
State and local agencies may be able to require installation permits for UST
systems and regulate petroleum distributors, while local enforcement actions
may include the revocation of a facility's business license.
The task of regulating USTs presents EPA with both the need and the
opportunity to work with States to encourage the development of State and
local UST programs. The "national" UST program will continue to be primarily
a network of State and local programs, with EPA providing leadership and
assistance and enforcement backup as necessary. This approach is based on
substantial evidence that, in the long run, UST systems will be most
successfully regulated by State and local governments. EPA's focus is on the
achievement of long-range goals and the need to build a relationship with
State and local governments so that we can work together to improve the
implementation of the UST program over the next decade.
E. EPA's Approach for Implementing the UST Program
OUST has adopted the franchise model as its implementation approach in
managing the national UST program. It should be noted here that the franchise
approach is simply a model of organizing and administering a service
organization. While the main goal of businesses is to make a profit EPA's
goal is to protect human health and the environment, and this difference is
reflected in how the model is used. The State, as franchisee, operates
independently, under a signed agreement with EPA, to operate the UST program
Regions serve as the field representatives or liaisons between EPA
Headquarters and the States to relay ideas, needs, and information between the
EPA and the States. This model permits both uniformity and distinction in
management styles. Headquarters provides general operating guidelines to
ensure that all of the States are achieving the same basic objectives in
managing underground storage tanks. Simultaneously, the States run their
programs using a management style that is tailored to meet the specific needs
and demands of their own regulated community. The demand for service and
support varies in each State, and is affected by such factors as UST
population, ground-water usage, weather and climate conditions, and financial
conditions of owners and operators. The aim of State program approval is to
develop the State-Federal partnership that will allow both parties to focus on
preventing leaking USTs from causing further environmental contamination
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OSWER Directive 9650.11
CHAPTER 2. STATE PROGRAM APPROVAL PROCESS
As an important step toward achieving the long-range goal of developing
a. network of effective State and local programs, EPA is encouraging States to
apply for formal approval of State UST programs to operate "in lieu of" the
Federal program. EPA plans to approve acceptable State UST programs as
quickly as possible, and follow up with activities that provide continual
assistance to States and localities for improving their capability and
performance.
A. Purpose of State Program Approval
Subtitle I of RCRA allows State UST programs approved by EPA to operate
in lieu of the Federal program if such programs contain requirements for UST
systems that are "no less stringent" than the Federal requirements and for
which there is "adequate enforcement" of compliance. The requirements and
procedures for approval of State programs are contained in the Federal
regulations at 40 CFR Part. 281 and are described in further detail elsewhere
in this handbook.
Approval by EPA of a State program means that the requirements in the
State's laws and regulations will be in effect rather than the Federal
requirements. Program approval ensures that a single set of requirements (the
State's) will be enforced in that State, thus eliminating the duplication and
confusion that can result from having separate State and Federal requirements.
Once a State program is approved, the State program will operate under an
agreement with EPA that clearly delineates EPA's limited role in an approved
State, and assures the State of its lead role in administering and enforcing
the UST program.
It should be understood that State programs may operate under State law
without Federal approval. There is nothing in Subtitle I which requires the
States to receive EPA blessing before operating their own UST programs under
State law. State program approval signifies Federal authorization of the
State program to operate in lieu of the Federal program. In essence, the
State becomes the implementing agency for the Federal UST program. One, major
impact of Federal approval is that the Federal regulations no longer apply in
the authorized State; it is implementing an approved State program in lieu of
the Federal program.
Approval of a State program also means that the basic environmental
protection afforded by the Federal program is contained in the State program
as well. The primary focus of EPA's approval review will be on basic State
authorities (laws and regulations) needed to achieve the underlying objectives
of the Federal regulations covering the prevention, detection, and cleanup of
UST releases.
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OSWER Directive 9650.11
B. Approval Criteria
Subtitle I allows EPA to authorize States to operate their own program
in lieu of the Federal program if certain conditions are met. Two major areas
that are often confused with one another in the determination of program
adequacy, and thus merit closer examination, are "scope" and "stringency.".
Scope refers to whether or not the State program addresses the same UST system
universe and applies requirements to that universe for each of the elements in
the Federal program. Stringency refers to whether or not those requirements
are as demanding as the corresponding Federal requirements. For example,
State programs must require release detection on all USTs no later than
December 22, 1993. In addition to meeting the scope and stringency
requirements, the State must provide for adequate enforcement of the
requirements.
Most States have developed and begun to implement their own
comprehensive UST programs. EPA has encouraged these developments and
believes that States must continue to have the flexibility to develop and
carry out "homegrown" initiatives. EPA wishes to allow States to develop UST
programs that best suit their own needs; it does not want to create arbitrary
requirements defining program size (for example, number of staff members), or
the amount of detail to be included in an application's description of the
roles of State and local governments. EPA simply wants to be sure that all
States have a complete program. For example, if States demonstrate that local
governments and agencies contribute to a complete State UST program, then that
level of detail will be appropriate for inclusion in the application, and will
be judged accordingly. States should gauge their own needs and use their own
judgment in developing their individual UST programs. EPA intends for its
approval criteria to result in as little unnecessary disruption of these
ongoing initiatives as possible. A State should not have to go back and make
revisions to its program to receive EPA's approval unless those revisions are
necessary to meet Federal objectives designed to protect human health and the
environment.
EPA's determination of whether State programs are no less stringent will
be based on a comparison of the State's technical requirements with the
Federal objectives for each of these program elements. Chapter 4 of this
handbook discusses the Federal objectives in detail. The specific Federal
requirements in the Agency's technical regulations for UST systems do not
provide the only definitive approach for protection of human health and the
environment. In developing the Federal requirements, EPA recognized that
there could be other approaches that would meet EPA's overall performance
objectives. The Federal Technical Standards are by necessity more detailed
and specific than the objectives they are designed to meet, because the
Federal regulations must be complied with by the regulated community and must
be enforceable in those States without approved State programs. The
individual requirements set forth in the Federal regulations should not be
interpreted as to preclude States from developing other approaches that will
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OSWER Directive 9650.11
still achieve the overall objectives of performance specified for State
program approval.
It is important to note that the approach used in reviewing State
programs is a "no less stringent" approach and not a Subtitle C "equivalent
and consistent" approach. Reviewers should especially note that the success
of the UST program's flexibility approach requires that those reviewing State
programs for stringency assess the overall efficacy of program components,
rather than demand complete agreement in structure and content. States are
expected to meet performance objectives and are allowed to differ from the
Federal technical regulations. Nevertheless, the program does contain many
clear-cut mandatory elements (such as the enforcement authorities spelled out
in §281.41) that circumscribe the overall flexibility. Thus, each element of
a proposed State program must be checked for completeness against all
requirements of Part 281.
The Federal objectives presented in Chapter 4 represent the Agency's
expectations of what will constitute an approvable State program. Federal
objectives have been identified for the following program elements: (1) new
UST system design, construction, installation and notification; (2) upgrading
of existing UST systems; (3) general operating requirements; (4) release
detection; (5) release reporting, investigation, and confirmation; (6)
corrective action; (7) out-of-service or closed UST systems; and (8)'financial
responsibility. To satisfy the "no less stringent" requirements using this
approach, the State must have requirements for all UST systems that meet these
obj ectives.
EPA's criteria for "adequate enforcement" of compliance require that a
State have in place adequate legal authorities for inspection and compliance
monitoring, enforcement, and public participation, plus- appropriate written
procedures for implementing those authorities. Chapter 4 provides guidance on
the enforcement authorities, and Chapter 5 contains guidance on these
enforcement procedures. EPA seeks to maintain its flexibility to approve a
variety of State programs, and to encourage States to use innovative as well
as traditional approaches in achieving compliance.
C. Application Process for Approval
EPA has two goals for the approval process: to make the application
process as simple and easy to understand as possible; and to develop a close
working relationship between EPA Regional offices and the States long before
official applications are received,' so that all major problems can be resolved
ahead of time.
Federal regulations require that a State application contain the
following components:
(1) A letter from the Governor requesting approval of the State
program;
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OSWER Directive 9650.11
(2) A certification and statement from the State Attorney General (or
the attorney for those State or interstate agencies which have
independent legal counsel) demonstrating that the laws of the
State or compact achieve the "no less stringent" objectives of the
Federal UST program, and provide legal authorities for adequate
enforcement;
(3) A description of the compliance monitoring and enforcement
procedures that demonstrate the State's basis for adequate
enforcement of compliance;
(4) A draft Memorandum of Agreement (MOA) that outlines the
responsibilities of EPA and the State's implementing agency(ies)
(the MOA becomes final at the time the State's program takes
effect);
, "**
(5) A program description that provides background information on the
State's organization and resources for implementing its program;
(6) Copies of all applicable State statutes and regulations, including
those governing State administrative procedures and compacts, if
relied upon.
Detailed guidance on each of these elements is included in the following
chapters. A suggested application form, that the State can tear out and fill
in, is provided in Appendix A of this handbook.
Approval authority has been delegated to the Regional Administrators.
Headquarters will be involved in this process only on a limited, consultative
basis. Regions may choose to discuss approval issues with Headquarters, but
will be required to do so only when a tentative determination is made to
disapprove a program.
A great, deal of informal contact should be occurring between the State
and EPA's Regional offices well before the clock starts running on the 180-day
period set by statute for the review of, and decision on, a State's
application for approval. As the State begins developing its application, the
State and the Region, working together, will identify as soon as possible any
legislative modifications that need to be made in order to satisfy the "no
less stringent" and "adequate enforcement" requirements in the regulations.
The State Attorney General or other legal representative should also be
consulted during these early statutory and regulatory reviews so that later
conflicts may be avoided. The Regional UST Attorney should also be in close
and early contact with the State Attorney General for consultation on legal
matters, if necessary. Many problems and delays can be avoided if the State
and EPA attorney work closely together. In addition, the Region will work
closely with the State to ensure the completeness of the various other
components of the State's draft application (for example, the program
description).
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OSWER Directive 9650.11
In general, the Region should relay comments back to the State as
quickly as possible. This process will alert the State very early to issues
that otherwise could cause a delay in the review and approval of the final
application. OUST considers these pre-application reviews to be invaluable
and stresses their importance because they will assure the State of being able
to develop an official program approval application with confidence and
timeliness.
Within two and one-half months following submission of the final
application, and following consultations between State and Regional staff, the
Regional Administrator will make a tentative determination of approval or
disapproval and notify the State Agency Director. This tentative
determination is then published in the Federal Register to provide an
opportunity for public comment. A final determination on the State's program
will be made by the Regional Administrator within 180 days of submission of
the State's application. (These procedures are described in greater detail in
a companion document entitled Suggested Procedures for Review of State UST
Applications.)
After a State program is approved, it is codified for publication in the
Code of Federal Regulations (CFR). EPA codifies the entire approved State UST
program (including more stringent elements, but not those that are broader in
scope) to identify the specific elements of the State program that are RCRA
Subtitle I requirements. The codification of State programs also enables the
public to discern the current status of the approved State program. This will
be of particular importance as States adopt additional Federal requirements or
revise their approved UST programs.
After a State program is approved, the State may need to submit certain
program revisions to EPA for approval. Such a need may arise if: (1) Federal
authorities or requirements are changed by new legislation or rulemaking; (2)
State authorities or requirements are revised; or (3) local authorities or
requirements that are part of the approved State program change. EPA will
treat revised applications by reviewing those program areas specifically
affected by the change. The process will be streamlined; instead of
publishing a tentative determination in the Federal Register. EPA will publish
a proposed determination that may become final immediately after 60 days.
Additional discussion on the process of revising approved State programs may
be found in the preamble to the September 23, 1988 State Program Approval Rule
(53 FR 37239).
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OSWER Directive 9650.11
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CHAPTER 3. COMPONENTS OF THE STATE PROGRAM APPROVAL APPLICATION
A. Introduction
In order to qualify for program approval, a State must submit an
official application to its Regional office. This packet must contain various
components, including letters and certifications, descriptions of relevant
State regulations, descriptions of the program, a Memorandum of Agreement, and
actual copies of State statutes and regulations. This chapter briefly
describes each of these components, and in some cases, provides sample forms
that may aid States in developing their own applications. More detailed
discussions of the various sections of the program approval application appear
in separate chapters of this handbook.
B. Components of the Application
1. Governor's Letter.
A letter from the Governor transmits the State's application for
approval of its underground storage tank program and acts as a formal request
for EPA approval. The letter to EPA should include a reference to the Federal
statute, a request for approval of the State program, and the Governor's
signature. The letter is a formal tool to designate the responsible lead
State agency.
Sample Letter
Ms. Jane Jones
Regional Administrator
Region XI, U.S. Environmental Protection Agency
Street Address
City, State
Dear Ms. Jones:
In accordance with Section 9004 of Subtitle I of the Resource
Conservation and Recovery Act as amended'on November 8, 1984, I am forwarding
an application for approval of the Underground Storage Tank Program of
(State) . I believe you will find it contains the provisions necessary
to implement an effective Underground Storage Tank Program.
Should you require further information, please contact
°f (Lead Agency) Thank you for your assistance.
(Director)
Sincerely,
Jane Smith
Governor
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OSWER Directive 9650.11
2. Attorney General's Certification and Statement.
States applying for program approval must submit an Attorney General's
Statement that certifies that the statutes and regulations of the state
provide adequate authority to carry out the technical requirements in a "no
less stringent" manner and for "adequate enforcement" of these requirements.
All statutes and regulations cited by the Attorney General must be fully
effective by the time the program is approved. In addition, if the State has
any authority over Indian lands, or agreements with a tribe or tribes to do
so, this must be described here. The Attorney General's Statement certifies
to State authorities only. The requirement that the State have the authority
to carry out the technical requirements and enforce those requirements does
not change if certain aspects of the State program are implemented by local
government agencies. The Attorney General's Statement must be signed by the
State Attorney General or the attorney for those State or interstate agencies
that have independent legal counsel. This provision allows the following
persons to sign the Attorney's General's Statement: (1) the State Attorney
General or an attorney in his/her office who is authorized to sign for the
Attorney General; or, (2) a Deputy or Assistant Attorney General if authorized
to do so. Authorization should be in writing, case law, or statute. An
independent counsel for the State may submit the "no less stringent"
certification in place of the Attorney General, provided that the independent
counsel has full authority to represent independently the State agency in
court on all matters pertaining to the State program.
Where a State has incorporated by reference any Federal regulation, the
Attorney General should demonstrate the authority to adopt State regulations
in this manner. The Attorney General should cite the State statutes and
regulations, listing the comparable CFR cite and date of incorporation. If
the State's incorporation is intended to include any EPA revisions that may
occur in the future, then the Attorney General should cite State authority
both to promulgate and to enforce regulations in this manner. The State
should note that the Attorney General's Statement includes a certification
that State statutes and regulations shall be fully effective by the time the
program is approved. When a State adopts the Federal regulations by
reference, the following standard phrase can be included in the Attorney
General's Statement to demonstrate that the State has no less stringent
requirements: "The State has adopted the Federal regulations by reference and
therefore meets the no less stringent criterion for Objective §281. ." This
statement is sufficient for demonstrating adequate stringency and will save
States from writing lengthy and unnecessary justifications of how the Federal
regulations (adopted by reference) meet the Federal objectives.
Sample Attorney General's Certification. Following is a suggested
format for the State Attorney General's certification. The certification
consists of two parts: (1) the Attorney General's letter of certification and
(2) the Attorney General's Statement. A form letter that certifies to the
State's complete authorities is provided below.
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OSWER Directive 9650.11
Sample Letter
Ms. Jane Jones
Regional Administrator
Region XI, U.S. Environmental Protection Agency
Street Address
City, State, Zip code
Dear Ms. Jones:
I hereby certify pursuant to my authority as [insert official title] and
in accordance with Section 9004 of the Solid Waste Disposal Act, as
amended by the Resource Conservation and Recovery Act and the Superfund
Amendments and Reauthorization Act of 1986, and 40 CFR Part 281 that in
my opinion the laws of the (State) provide adequate authority to (1)
carry out the "no less stringent" technical requirements submitted by the
.(Lead Agency) , (2) adequately enforce compliance with such program, and (3)
regulate, at a minimum, the same UST universe as the Federal program. I
hereby certify, to the best of my knowledge, that the application submitted by
(Lead Agency) is legally accurate. The specific authorities provided are
contained in statutes or regulations lawfully adopted at the time this
Statement is signed and which will be effective by the time the program is
approved, [or are provided by judicial decisions issued at the time this
Statement is signed].
Seal of Office
Signature
In addition, a sample form of the Attorney General's Statement is
presented in Appendix A, following the Governor's letter. The State may use
this sample format to cite and explain its authorities for each objective.
Please note that EPA personnel responsible for approving the State program
will not be familiar with all the State's laws; therefore, the Attorney
General's Statement should specify and analyze relevant State legal authority.
Clarity is necessary because: (1) the Attorney General's Statement will be
subject to review and comment by the public through its inclusion in the
administrative record to the Federal State program approval process; (2) the
Attorney General's Statement may be an important part of the administrative
record for future lawsuits challenging the implementing agency's actions
during an enforcement proceeding taken under the State program; (3) the laws
and regulations submitted in the application will form the basis of the
codified program. Finally, if EPA takes enforcement action in the State after
the State program is approved, EPA uses the Attorney General's Statement to
help interpret State law since EPA would be enforcing the State law in lieu of
the Federal law. The approved State program operates "in lieu of" the Federal
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OSWER Directive 9650.11
program under Section 9004(d). If the Attorney General's Statement fails to
analyze a cited authority, and EPA's review of that cited authority indicates
that the law or regulation is ambiguous or does not appear to meet Federal
requirements, EPA may ask the Attorney General to supplement the statement.
The Attorney General would be asked to address specific legal issues raised by
the Agency's review of the cited State statutes and regulations. EPA may also
ask that the Attorney General clarify or expand a prior narrative analysis.
Without further comment from the Attorney General on certain issues, EPA
generally cannot evaluate the State's legal position that its laws and
regulations meet the requirements of Federal law for State approval. For
example, if the State Attorney General provides a general opinion that a State
statute allows the State to regulate all UST systems, but the statute appears
to exempt compressed oil tank systems, EPA would bring this issue to the
Attorney General's attention and ask that it be addressed. EPA would ask the
State Attorney General to reconcile the difference in coverage.
3. Demonstration of "Adequate Enforcement" Procedures.
To ensure that States have adequate enforcement, EPA requires that
States have certain compliance monitoring and enforcement procedures, in
addition to the legal authorities discussed above. These procedures are
necessary to ensure compliance with the technical and financial responsibility
requirements for underground storage tanks. The procedural requirements cover
the following program areas:
Compliance Monitoring;
Enforcement Response; and
UST Inventory.
Chapter 5 provides a detailed discussion of these procedural requirements.
4. Memorandum of Agreement.
The appropriate official of the State's lead agency must negotiate a
Memorandum of Agreement (MOA) with the Regional Administrator before the State
program is approved. The MOA describes the coordination and shared
responsibilities between the State and EPA in areas including, but not limited
to: implementation of partial State programs and other program scope issues;
compliance monitoring and enforcement; EPA appraisal of State programs; and
reporting of information. Chapter 6 provides a detailed discussion of the MOA
requirement and includes a sample agreement.
5. Program Description.
This section provides an overview of the State's program for managing
underground storage tanks. Information requested includes the scope of the
State program, the organization and structure of the implementing agencies,
and staff resources for implementation. This information will be used to
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OSWER Directive 9650.11
inform the general public about the approved State program and will serve as a
baseline for EPA to work with the State over the long term. Chapter 7
contains additional guidance on the questions in the Program Description.
6. State Statutes and Regulations.
Integral to the State program approval application are the copies of all
applicable State statutes and regulations which must be submitted by a State.
These include -those statutes and regulation governing State administrative
procedures and interstate compacts, if relied upon. These documents should
also include any general statutes that are used by the State to establish UST
program authorities. This information will help EPA to establish a .record of
the State laws and regulations regarding USTs in approved States. The Agency
will codify State programs by incorporating State laws and regulations by
reference as part of its final approval of the State program. If the Federal
government were ever to pursue an enforcement action within a particular
State, it would use that State's own EPA-approved UST statutes and regulations
to do so. For that reason, the Federal government must be able to easily
locate and implement all State UST standards and requirements that would be
effective in that State for purposes of Federal enforcement. This section of
the application is self-contained, and may be attached to the rest of the
packet. This application requirement is not discussed elsewhere in this
handbook.
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OSWER Directive 9650.11
CHAPTER 4. ATTORNEY GENERAL'S STATEMENT: DEMONSTRATION OF "NO LESS
STRINGENT" OBJECTIVES AND "ADEQUATE ENFORCEMENT" AUTHORITIES
A. Introduction
Under Subtitle I, a State must demonstrate that its requirements and
standards for existing and new USTs are "no less stringent" than the Federal
requirements and standards in 40 CFR Part 281 and provide for adequate
enforcement. The State's demonstration that its authorities are "no less
stringent" and allow for adequate enforcement will be provided with the
Attorney General's Statement. This chapter describes and explains the
criteria States must meet in order to be "no less stringent" in the technical
program areas and how the State Attorney General will certify their legal
authority. Chapter 5 provides an explanation of the adequate enforcement
procedures.
B. Objectives of the Federal Technical Requirements
Since an introduction to the purpose and requirements for the Attorney
General's Statement is provided in the preamble to the State Program Approval
Rule, it is not repeated here. If you are not familiar with this material, we
recommend that you read it now before proceeding. It is important for all
staff working on State Program Approval to read the preamble to the
regulations at 40 CFR Part 281 in order to fully understand the relevant
issues, especially the Agency's intent to move away from RCRA Subtitle C-type
reviews to a "no less stringent" review based on performance objectives, which
is one of the most distinguishing characteristics of the national UST program.
(See Appendix B, page B-2, "Final State Program Approval Rule" and page B-3,
"Preamble to Financial Responsibility Objective")
Reviewers are reminded, however, that the "element-by-element" approach
using performance objectives applies only to the review of technical and
financial responsibility regulations, and not to such things as the
definitions that establish the scope of a State's program. Some parts of a
State's program are reviewed to ensure that the same universe of, UST systems
is being addressed and that the minimum enforcement authorities mandated by 40
CFR Part 281, Subpart D are established. Thus, there are some portions of a
State Program Approval application where the element-by-element approach is
not appropriate.
This section is organized by objective. For each objective, there is a
table with spaces to cite relevant State statutes and regulations, notes on
fulfilling the objective, and some examples of State requirements that do or
do not meet the objective. The table is organized so that citations can be
written in where the State has a requirement that corresponds to each
subsection of the objective. The State should cite all relevant statutes and
regulations, if more than one is applicable. The tables are intended to be
used by both the State and the EPA Regional Office, but only the Regional EPA
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OSWER Directive 9650.11
Office can make the judgment of whether the State's requirement is no less
stringent than the Federal objective. The State is strongly encouraged to
provide additional explanation on the back of the tables or on extra pages to
describe how their regulations meet the objective in cases when the State's
regulations are organized differently from the Federal approach. The State
should also consider attaching relevant policies and procedures that may
influence the interpretation of statutes or regulations. The notes on
fulfilling the objective provide some key data for interpreting the objective
and the last note for each objective references the page in the September 23,
1988 Federal Register where further information may be found. Finally,
Appendix C includes a section called Tools for Implementing State Regulations,
which describes certain approaches that several States have used to implement
their laws and that other States might wish to consider in developing or
improving their own programs.
It is important to note that the review process is facilitated when
States cite specific references to State laws. This includes reference to
specific chapters, subparts, or sections of statutes and regulations and,
where appropriate, to "pocket part" updates to bound copies of State statutes
and regulations. States also should include, as part of the Attorney
General's Statement, written explanations of how the cited State laws meet
each objective. These explanations should be as specific as possible, and
should also provide a discussion of where the State program is "broader in
scope" or "more stringent" than the Federal program.
Some State and Regional UST staff have indicated that they would like to
see a checklist for each objective, outlining what is and is not acceptable;
however, this would run contrary to the philosophy of the UST program. If EPA
were to mandate what may or may not be incorporated into a State's program,
the flexibility intended to be built into the process would be lost, and State
programs would begin to look like clones of one another. Such a checklist
would further encourage the perception that State Program Approval
applications should be reviewed line-by-line against a set of pre-determined
criteria, which is one of the barriers to State Program Approval that OUST has
been working to overcome. Delineating what is and is not acceptable for each
objective would remove the ability of States to tailor their programs to meet
the objectives in the manner that best suits their needs and abilities.
Please note that great effort was expended to make these examples as
"true to life" as possible. Readers are asked to remember that these examples
are simply a means by which EPA can more clearly demonstrate how the States
should examine their technical requirements in terms of the Federal
objectives. Thus, States should not take the evaluations provided in the
examples as the last word on State program approval for that given program
element. Please remember that these examples also serve as samples of the
type of thinking and documentation that should be included in the'explanation
sections that follow the regulatory citations in the Attorney General's
Statement. EPA is concerned that some readers will infer from these examples
that if their State regulations are not identical to the example given that
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OSWER Directive 9650.11
their State program is not approvable. Such an inference would be mistaken.
By providing these examples, EPA is suggesting simply one interpretation out
of many possibilities. Regional EPA Offices will be making the actual
decisions as to what is "no less stringent" when reviewing the State program
application. If a State has specific questions on whether their regulations
meet the objectives, they should ask the Regional EPA Office for assistance
and advice. The regulatory citations provided by the State should be as
precise as possible, in order to facilitate Regional review and the "no less
stringent" determination.
As an alternative to developing new, or revising existing, State UST
regulations, States may choose to adopt or incorporate by reference the
Federal Technical Standards. Obviously those States that do so can be
considered no less stringent. The Federal Technical Standards are written
with the intention that some States will choose to adopt them. Therefore,
some language was added to several sections to allow the State some
flexibility to substitute their own procedural and administrative requirements
for those set forth in the Federal requirements. A discussion of this
additional decision-making authority for State agencies can be found in the
preamble to the Federal Technical Standards (53 FR 37186). It is EPA's intent
to allow States a significant amount of discretion in this matter, as long as
States can demonstrate that overall program performance in each element will
not be adversely affected by their use of differing administrative practices
and procedures. An example of the flexible language is §280.50 under Release
Reporting, Investigation, and Confirmation: "Owners and operators of UST
systems must report to the implementing agency within 24 hours, or another
reasonable time period specified by the implementing agency..." The State
should be aware that when adopting or copying this language, if the State does
not specify another time period in the requirement, then the Federally-
specified time period (the 24-hour time period in the example) is
automatically in effect. An alternative time period must be specified in the
State requirement in place of the Federally-specified time period in order for
the State to exercise the decision-making flexibility allowed in the Federal
Rule.
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OSWER Directive 9650.11
New UST Systems and Notification
Objective §281.30
The State must have requirements that
ensure that all new UST systems conform
with the following:
(a) Be designed, constructed, and installed in
a manner that will prevent releases for their
operating life due to manufacturing defects,
structural failure, or corrosion. [Note:
Codes of practice developed by nationally-
recognized organizations may be used to
demonstrate that the State program
requirements are no less stringent in this
area.]
(b) Be provided with equipment to prevent spills
and tank overfills when new tanks are in-
stalled or existing tanks are upgraded,
unless the tank does not receive more than
25 gallons at one time.
(c) All UST system owners and operators must
notify the implementing State agency of
the existence of any new UST system using
a form designated by the State agency.
Cite
Regulation Statute
Notes on Fulfilling the Objective
1. Codes of practice developed by nationally-recognized organizations
.and national independent testing laboratories may be used to
demonstrate that the State program requirements are no less
stringent in the area of design, construction, installation, and
corrosion protection.
2. Currently available equipment to provide spill and tank overfill
protection includes small catchment basins for spills, alarms,
automatic flow restrictors, or shut off devices for overfill
prevention.
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OSWER Directive 9650.11
New UST Systems and Notification (continued)
Objective §281.30
Notes on Fulfilling the Objective
3. Under RCRA 9002, notification was required for existing UST
systems nationwide. State programs that only require owners and
operators of new UST systems to notify the State agency may be
approved because notification by owners of existing USTs was
already required after Subtitle I was enacted.
4. The Federal notification form has been revised to require updated
notifications from owners and operators of new USTs; however,
States may use their discretion as to whether or not they collect
this information.
5. More discussion on new UST systems may be found in the preamble to
the final State Program Approval Rule (53 FR 37224) and in the
preamble to the final Federal Technical Standards Rule (53 FR
37125).
* * *
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OSWER Directive 9650.11
State Examples for New UST System Design. Construction. Installation, and
Notification
Standards for Design and Installation. The following requirements of
State A demonstrate one way to fulfill the design criteria of subsection (a)
of this objective. In general, State A requires the use of national standards
for the design, construction, and installation of all UST systems. For
example, the State requires that tanks be built according to the following
recognized engineering standards: UL 58 and API 650 for steel tanks, and UL
1316-83 and ASTM D4021-81 for fiberglass tanks. Steel tanks must be coated
with a non-corrosive, impermeable material other than asphalt paint and be
equipped with sacrificial anode or impressed current cathodic protection.
Cathodic protection must be designed and installed using one or a combination
of these 4 standards: API 1632, UL of Canada SG03.1M, STI-P3, or NACE RP-02-
85. Both sacrificial anode and impressed current systems must be designed
with test stations so that routine operation checks can be performed. Because
EPA believes that the design, construction, and installation of a new UST
system according to any code of practice of a nationally-recognized
organization or testing laboratory will prevent releases'during the operating
life of an UST, these State requirements fulfill the proper tank design
criteria of subsection (a) of this'objective. State A could have met the
criteria in subsection (a) by adopting just one of these codes of practice.
Some aspects of the State's standards, while showing excellent forethought,
are not necessary to meet the objective, such as the requirement that anode
and current systems must be designed so routine checks can be performed.
This State's requirements also demonstrate one way to fulfill the proper
tank installation criteria of subsection (a). The State mandates that
installers follow practices outlined in PEI RP 100-86, API 1615, and the
manufacturer's instructions that come with the tank. All fittings must be
wrapped or coated using a manufacturer-approved method. The State also
requires that defects in the tank's coating that occur during shipping must be
repaired according to the manufacturer's instructions. The State lists the
specifications for backfilling the UST system, which are derived from NFPA 30;
additional requirements are specified by the State for anchoring USTs that are
in areas with high water tables. Again not all of these requirements may be
necessary to achieve subsection (a) of this objective.
Because piping is part of the UST system, the State's requirements for
the design, construction, and installation of piping must also meet subsection
(a) of this objective. State A demonstrates one way of meeting the objective,
again by specifying the codes to be used for designing and installing new
underground piping. All new underground pipes in this State must be made of
fiberglass reinforced plastic or cathodically protected, coated, iron or steel
and must be designed using one of the recognized standards such as NACE RP-02-
85, UL, and API 1632. The use of galvanized piping for product lines is
prohibited. State regulations specify how the piping must be installed in
terms of backfill thickness, product line slope, and the strength of unions
and fittings (250 pounds or 300 pounds with metal seats). On UST systems
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OSWER Directive 9650.11
using sacrificial anodes where electrical isolation is essential for adequate
corrosion protection, the State requires all underground piping to be isolated
from the tanks and dispensing units by means of non-conductive bushings and
fittings, which are to be designed and installed in accordance with NACE
RP-0285, API 1632, or STI-P3. As part of the installation, all product piping
must be tested for tightness. These State requirements for the design and
installation of piping in combination with corresponding State requirements
for tanks demonstrate one way that a State could fulfill subsection (a) of
this objective.
Spill and Overfill Protection. State B allows two options for spill
and overfill protection. The first option consists of an in-tank product
level sensor that is equipped with an audible or visual alarm and is triggered
when the tank is 95 percent full, and a spill catchment basin of at least 15
gallon capacity. The second option consists of a device designed to restrict
the flow of the regulated substance into the tank when the tank is 95 percent
full, and a spill catchment basin of at least 5 gallon capacity. The State's
explanation for the difference in the capacity of the spill catchment basin is
that the sensor only triggers an alarm in the first option as opposed to a
flow restrictor in the second option. [EPA notes that the flow restrictor,
unless it is an automatic shut-off device, does not actually shut off inflow
completely, which means that both options require the operator to quickly shut
off the hose used to fill the tank. ] v Although EPA believes the distinction
the State makes between alarms and restrictors is somewhat artificial (because
both approaches similarly rely on rapid action by the person filling the tank
to avoid overfilling when the filling operation approaches the tank's
capacity), the above State B requirements demonstrate one way to fulfill
subsection (b) of this objective.
Although the Federal Technical Standards require that flow restrictors
or alarms be triggered when the tank is 90 percent full, State B's
requirements can still be considered no less stringent because they still
accomplish the Agency's main goal: getting equipment and devices to prevent
spills and overfills on all new and upgraded USTs.
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- OSWER Directive 9650.11
Upgrading Existing UST Systems
Objective §281.31
The State must have requirements that ensure
existing UST systems will be replaced or
upgraded before December 22, 1998, to prevent
releases for their operating life due to
corrosion, and spills or overfills.
Cite
Regulation Statute
Notes on Fulfilling the Objective
1. Within 10 years all existing UST systems must meet essentially the
same standards of release prevention as new UST systems, which
includes corrosion protection and spill and overfill equipment.
2. The 10-year schedule cannot include phase-in of leak detection
requirements, which must be completed within 5 years (see'
Objective 281.33(b) on Release Detection). ,"
3. , The State may develop a phase-in schedule that will bring all
existing USTs into compliance incrementally during the lO-year
period or establish a deadline without specifying a schedule.
4. Commonly accepted practices for protecting a structurally sound
existing steel tank from failure due'to corrosion consist of
internal lining, retrofitting with a cathodic protection system,
or both. EPA believes all of these methods are protective of
human health and environment. "
5. The proposed objective for upgrading existing UST systems included
a provision that allowed States to demonstrate in their
- application how other State requirements will achieve this Federal
goal without an explicit 10-year deadline. This provision has
been deleted in the final State Program Approval Rule. EPA was
concerned that the provision in the proposed objective would lead
States to believe that a time period greater than 10 ye,ars for
upgrading was allowable. In addition, it was unclear what
information would provide an adequate demonstration. Therefore,
States must require existing UST systems to be replaced or
upgraded before December 22, 1998.
6. More discussion on upgrading existing UST systems may be found in
the preamble to the final State Program Approval Rule (53 FR
37225) and in the preamble to the final Federal Technical
Standards (53 FR 37130).
* * * .
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OSWER- Directive 9650.11
State Examples for Upgrading Existing UST Systems
Defining When a Tank Needs To Be Upgraded. The following example shows
State requirements that do not meet the Federal objective for upgrading
existing UST systems. State C requires owners and operators to explicitly
determine how long each tank will last without developing a leak. This
regulatorily-defined lifetime is considered to be the tank's life expectancy.
When the end of the life expectancy is reached, the UST system must be
replaced, upgraded, or closed, whether or not a leak has occurred. Life
expectancy of the UST system is calculated using the tank's age, the tank
manufacturer's guarantee, and the type of corrosion protection in use on the
tank. If the tank's age is unknown, the calculation is more complicated and
requires the assistance of a corrosion expert. Once the life expectancy of
the tank is defined, the tank will fall into one of two groups as defined by
the State. If the life expectancy ends after November 1, 1988, the UST system
may be used for up to five years beyond the calculated life expectancy. If
the life expectancy ends before November 1, 1988, the UST system may be used
until November 1, 1988 or up to five years beyond the calculated life
expectancy, whichever is later.
Under the State's current approach, State C's requirements cannot be
approved as no less stringent for two reasons. First, to properly upgrade an
UST system under this objective, spill and overfill equipment must be added.
State G does not require that existing USTs be retrofitted with this
equipment. Second, under this objective, all unprotected USTs in the State
must be upgraded by 1998. While the State requirements for USTs with life
expectancies that end before November 1, 1988, will fulfill the objective, the
State's requirements will allow some USTs with life expectancies that end
after that date to be upgraded sometime after 1998. Hypothetically, if a
tank without corrosion protection was installed in April 1985 (before interim
prohibition) and the life expectancy was determined to be 10 years (April
1995), the tank may be operated until April 2000 before it is upgraded,
replaced or closed, according to State law. State C could meet the objective
by revising their requirement so that all USTs must be brought into compliance
by the time their life expectancy is reached or by December 22, 1998,
whichever is earlier; and by requiring the addition of overfill and spill
protection equipment on upgraded USTs.
Defining What Upgrade Consists Of. State E takes another approach to
this objective by requiring scheduled closure of UST systems that are not
corrosion resistant. The State prohibits the use and operation of all non-
conforming UST systems (all bare steel tanks, asphalt coated steel tanks and
other unprotected steel tanks and piping) after October 1, 1997. Replacement
USTs are subject to the new UST system standards, and existing USTs cannot be
upgraded. Thus, all non-conforming tanks and piping must be closed within the
remaining 9 years of the State's mandatory closure period according to a
phase-in schedule based on UST system age and location. If the tank's age is
unknown, it is presumed to be 20 years old on October 1, 1989. The State
requirements cannot be considered no less stringent because existing
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OSWER Directive 9650.11
corrosion-protected USTs without spill and overfill equipment are not required
to be retrofitted with that equipment.
State D fulfills the Federal upgrading objective of §281.31 by requiring
both corrosion protection and overfill and spill protection systems to be
present on existing UST systems by 1998. [State D, however, also considers
the addition of leak detection equipment to be part of an UST system upgrade.
In other words, release detection is also phased-in over a 10-year period, and
therefore, the State program does not meet the release detection objective
found at §281.33 (see examples pertaining to the release detection
objective).]
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OSWER Directive 9650.11
General Operating Requirements
Objective §281.32
The State must have requirements that ensure
all new and existing UST systems conform to
the following:
Cite
Regulation Statute
(a) Prevent spills and overfills by ensuring that
the space in the tank is sufficient to receive
the volume to be transferred and that the
transfer operation is monitored constantly;
(b) Where equipped with cathodic protection, be
operated and maintained by a person with
sufficient training and experience in prevent-
ing corrosion, and in a manner that ensures
that no releases occur during the operating
life of the UST system [Note: Codes of practice
developed by nationally-recognized organizations
and national independent testing laboratories
may be used to demonstrate the State program
requirements are no less stringent.];
(c) Be made of or lined with materials that are
compatible with the substance stored;
(d) At the time of upgrade or repair, be
structurally sound and upgraded or repaired
in a manner that will prevent releases due
to structural failure or corrosion during
their operating lives;
(e) Have records of monitoring, testing, repairs,
and closure maintained that are sufficient
to demonstrate recent facility compliance
status, except that records demonstrating
compliance with repair and upgrading require-
ments must be maintained for the remaining
operating life of the facility. These
records must be made readily available when
requested by the implementing agency..
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OSWER Directive 9650.11
General Operating Requirements (continued)
Objective §281.32
Notes on Fulfilling the Objective
1. Codes of practice developed by nationally recognized organizations
and national independent testing laboratories may be used to
demonstrate that the State requirements are no less stringent in
the areas of: repairing and relining tanks; operation and
maintenance of corrosion protection; and compatibility.
2. Under the Federal Technical Standards, cathodic protection systems
must be tested within 6 months of installation and every 3 years
thereafter; and impressed current systems must be inspected every
60 days to ensure that the equipment is turned on. Each State
must require that cathodic protection systems be periodically
tested and that such tests include the checking of impressed
current systems.
3. Compatibility is an issue for concern primarily when high-
ethanol/methanol content fuels are stored in certain fiberglass
tanks. '
4. National codes of practices and warranties from tank lining,
companies generally require that internal inspections be conducted
within 10 years after lining, and every 5 years after that.
5. The National Leak Prevention Association (NLPA) Standard 631
contains procedures for the repair of fiberglass reinforced
plastic (FRP) tanks. In addition, manufacturers of FRP tanks and
piping publish procedures for the repair of their systems. These
standards and procedures may be used to fulfill the objective.
More discussion on the repair of FRP tanks can be found in the
preamble to the. final State Program Approval rule, beginning on
the bottom of the third column at 53 FR 37139.
6. More discussion on upgrading existing UST systems may be found in
the preamble to the final State Program Approval Rule (53 FR
37225) and in the preamble to the final Federal Technical
Standards (53 FR 37130).
* * *
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OSWER Directive 9650.11
State Examples for General Operating Requirements
Defining Product Transfer Practices. State F meets the first subsection
of this objective because it requires that API-recommended practices
concerning product deliveries to underground storage tanks be followed at all
UST systems in the State. A different approach, which also fulfills this part
of the objective, is used in State G. The State's regulations hold both the
carrier (or transporter) and the operator responsible for employing practices
to prevent spills and overfills. The carrier and the operator must be trained
in the mechanics of proper transfer and emergency response procedures. Before
transfer, the operator must determine that the tank has enough receiving
capacity to accommodate the volume of petroleum to be transferred. During the
transfer, the carrier must be at the controls to monitor the delivery
operation.
Maintaining Corrosion Protection. State H's requirements demonstrate
one way to satisfy subsection (b) of this objective concerning the operation
and maintenance of corrosion protection by qualified people. The State
requires that UST systems protected by galvanic cathodic protection systems
(also known as sacrificial anodes) have an accurate structure-to-soil
potential reading performed by a qualified person upon installation and
annually thereafter. In addition, when underground work is performed at the
site, the State requires the cathodic protection system to be monitored 6 to
12 weeks after the work has been completed to ensure that the system is still
functioning properly. UST systems protected by impressed current systems are
required by State regulations to have their rectifier meter inspected monthly
and the readings recorded in a log book; and a person who is qualified (by
training and experience) to measure the structure-to-soil and structure-to-
structure potentials, the rectifier voltage, and current output must conduct
an onsite test and inspection at least once a year. Finally, State H provides
a list of procedures detailing how the cathodic protection system must be
monitored, which includes following practices recommended by the National
Association of Corrosion Engineers (Recommended Practice 0285).
Ensuring Proper Repairs and Upgrades. State I's regulations provide an
example of requirements that satisfies subsection (d) of this objective, which
concerns the repair and upgrade of UST systems. The State mandates that a
determination must be made by fire department officials on whether the tank or
its components may be repaired or must be removed and replaced. The only form
of repair allowed by the State is lining the tank. Before a steel tank can be
repaired by lining, the tank must be physically inspected and a local fire
department official must determine whether the tank meets all of the following
conditions: . .
Has not experienced a leak as a result of corrosion;
Possesses a minimum design shell thickness of 0.18
inch (7 gauge);
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OSWER Directive 9650.11
Has no open seam or split;
Contains less than 10 holes after removal of thin
metal by reaming, with none larger than 1/2 inch in
diameter and no more than 2 holes within a 1-foot
radius; and
Satisfies all standards of the lining manufacturer for
structural soundness.
These requirements are no less stringent in the area of determining structural
integrity before lining a tank. The State also requires that any tank
replacement or repair as well as piping repairs must be performed: (1) by a
State-approved tank lining company and in accordance with API 1631 (if the
repair consists of tank lining), (2) by qualified technicians, and (3) in
accordance with manufacturers' instructions.
EPA would recommend that the State consider a requirement specifying the
design life of a lined tank. Unless a cathodic protection system is applied
when the tank is lined or within 10 years, the tank must be internally
inspected periodically after the initial 10 year life of the lining to make
sure that tank's structural integrity will continue for the remainder of its
operating life. Tank lining company warranties and the codes generally
require that internal inspections be conducted after 10 years, and then every
five years thereafter, because the tank lining is expected to prevent releases
only for the first 10 years.
Defining Adequate Recordkeeping. State J has developed recordkeeping
requirements that satisfy subsection (e) of this Federal objective. The State
mandates the on-site maintenance of written records of all monitoring
activities for at least 3 years from when the monitoring was performed. In
addition, the State requirements enable local implementing agencies to mandate
the owner or operator to provide the local agency with monitoring records or a
monitoring summary on a routine basis. Monitoring records must include:
Date and time of all monitoring and sampling;
Monitoring equipment calibration and maintenance
records;
Results of any visual observations;
Results of all sample analysis performed in the
laboratory or in the field, including laboratory data
sheets;
Logs of all readings of gauges or other monitoring
equipment, ground-water elevations, or other test
results; and
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OSWER Directive 9650.11
*
Results of inventory readings and reconciliations.
Another recordkeeping provision in this State program requires that UST
system permits be renewed every five years. To get a permit renewed, an UST
inspection must have been performed within the 3 previous years, and the UST
system must have been found to be in compliance with applicable regulations
for design, construction, and monitoring. Thus, the UST must be upgraded and
have records that show the upgrade has taken place before the permit can be
renewed. In this way, the State is aware of and can, if it chooses, maintain
its own records relating to UST system repair, upgrade, and replacement. For
UST closure by removal, State J requires the owner or operator to completely
describe all disposal and recycling procedures used for all UST system
components. When an UST system is closed, the owner or operator must
demonstrate to the satisfaction of the State that no release has occurred.
These State requirements clearly fulfill subsection (e) of this objective.
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OSWER Directive 9650.11
Release Detection
Objective §281.33
(a) Release detection requirements for cite
owners and operators must consist of Regulation
a method, or combination of methods,
that is:
(1) capable of detecting a release
of the regulated substance from
any portion of the UST system
that routinely contains regulated
substances --as effectively as
any of the methods allowed under
the Federal Technical Standards
-- for as long as the UST system
is in operation. In comparing
methods, the implementing agency
shall consider the size of release
that the method can detect and
the speed and reliability with
which the release can be detected.
(2) designed, installed, calibrated,
operated and maintained so that
releases will be detected in
accordance with the capabilities
of the method;
(b) Release detection requirements must, at
a minimum, be scheduled to be applied
at all UST systems:
(1) immediately when a new UST system
is installed:
(2) on an orderly schedule that completes
a phase-in of release detection at
all existing UST systems (or their
closure) before December 22, 1993,
except that release detection for
the piping attached to any existing
UST that conveys a regulated
substance under greater than
atmospheric pressure must be
phased-in before December 22, 1990.
Statute
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OSWER Directive 9650.11
Release Detection (continued)
Objective §281.33
(c) All petroleum tanks must be sampled, tested,
or checked for releases at least monthly,
except that:
Cite
Regulation Statute
(1) new or upgraded tanks (that is,
tanks and piping protected from
releases due to corrosion and
equipped with both spill and overfill
prevention devices) may temporarily use
monthly inventory control (or its
equivalent) in combination with
tightness testing (or its equivalent)
conducted every 5 years for the first
10 years after the tank is installed
or upgraded, or until December 22,
1998, whichever is later; and
(2) existing tanks unprotected from releases
due to corrosion or without spill and
overfill prevention devices may use
monthly inventory control (or its
equivalent) in combination with annual
tightness testing (or its equivalent)
until December 22, 1998.
(d) All underground piping attached to the
tank that routinely conveys petroleum
must conform to the following:
(1) if the petroleum is conveyed under greater
than atmospheric pressure:
(i) the piping must be equipped with
release detection that detects a
release within an hour by
restricting or shutting off flow
or sounding an alarm; and
(ii) the piping must have monthly
monitoring applied or annual
tightness tests conducted.
(2) if suction lines are used:
(i) tightness tests must be conducted
at least once every 3 years, unless
a monthly method of detection is
applied to this piping; or
32
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OSWER Directive 9650.11
Release Detection (continued)
Objective §281.33
Cite
...,, , Regulation Statute
(11) the piping is designed to allow
the contents of the pipe to drain
back into the storage tank if the
suction is released and is also
designed to allow an inspector to
immediately determine the integrity
of the piping system.
(e) All UST systems storing hazardous substances
must meet the following:
(1) all existing hazardous substance UST
systems must comply with all the
requirements for petroleum UST systems
in sections 281.33(c) and (d) above, and
after December 22, 1998, they must comply
with the following subsection (e)(2).
(2) all new hazardous substance UST systems
must use interstitial monitoring within
secondary containment of the tanks and
the attached underground piping that
conveys the regulated substance stored
in the tank, unless the owner and operator
can demonstrate to the State (or the
State otherwise determines) that another
method will detect a release of the
regulated substance as effectively as
other methods allowed under the State
program for petroleum UST systems and
that effective corrective action
technology is available for the
hazardous substance being stored that
can be used to protect human health
and the environment.
33
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OSWER Directive 9650.11
Release Detection (continued)
Objective §281.33
Notes on Fulfilling the Objective
1. In comparing methods of release detection, the implementing agency
must consider the size of release that the method can detect and
the speed and reliability with which the release can be detected.
2. The Federal Technical Standards allow six specific methods of
release detection. These are: in-tank monitors or tank gauging,
interstitial monitoring within a secondary barrier, ground-water
monitoring, vapor monitoring, and periodic tank tightness tests
combined with monthly inventory control. The Federal Technical
Standards also allow any method that achieves a release detection
rate of 0.2 gallons per hour (280.43(h)(ii)). Finally, in a
manner similar to the release detection objective in paragraph
(a)(l), the Federal Technical Standards allow the use of a release
detection method that the owner or operator demonstrates is as
effective as any of the listed methods.
3J State requirements for release detection on piping do not have to
address release detection for fill pipes and vent pipes to be
considered no less stringent, as release detection is required
only for piping that routinely conveys petroleum.
4. Discussion on European-style design of a suction piping system may
be found in the preamble to, the proposed Federal Technical
Standards (52 FR 12744), in the preamble to the final Federal
Technical Standards (53 FR 37154), and the preamble to the final
State Program Approval Rule (53 FR 37227).
5. Discussion on release detection methods may be found in the
preamble to the final Federal Technical Standards (53 FR 37145).
* * *
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OSWER Directive 9650.11
State Examples for Release Detection
Defining the General Methods. State K's regulations may fulfill
subsection (a) of the release detection objective. Release detection has
already been mandated for all UST sites in this State. State K has allowed
owners and operators of existing UST systems containing petroleum to choose
from among eight release detection alternatives (one is a three-year interim
alternative):
Monthly tank tightness testing;
Daily/continuous vadose monitoring, semi-annual
ground-water monitoring, and one-time soil testing;
Weekly static inventory control and annual tank
testing (which is limited to small tanks that do not
have frequent inputs or withdrawals and where the
liquid level- in the tank can be measured to the
accuracy of + or - 5 gallons); and
Daily inventory reconciliation or daily or weekly
gauging, and annual tank testing (three-year interim
alternative).
Daily inventory reconciliation, continuous pipeline
release detection attached to either audible/visual
alarm or automatic flow restrictor, and annual tank
testing; or
Same as above with less stringent accuracy limits and
the addition of variable frequency vadose and ground-
water monitoring that must be performed at least semi-
annual ly.
As illustrated above, most of the methods involve a primary release detection
system combined with at least one backup system, except that no backups are
required for monthly tank tightness testing and monthly ground-water
monitoring. To determine whether each alternative is acceptable it is
necessary to decide if it can detect " a release...as effectively, as any
method allowed under the Federal Technical Standards (§280.40) ..." State K's
first alternative, monthly tank testing, would be acceptable as long as
tightness tests were required, at a minimum, to reliably detect a 0.2 gallon
per hour release. This determination is based on the standard for "other
methods" in §280.43(h). The second alternative is also acceptable as long as
the vadose monitoring meets the standards for vapor monitoring described in
§280.43(e). The third method would be acceptable for tanks under 2000 gallons
until 1998 and for tanks under 550 gallons after 1998 as long as the static
inventory control and tank -testing methods were as effective as those
described in §280.43(b) and (c) respectively. The fourth method is acceptable
35
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OSWER Directive 9650.11
except that the weekly gauging alternative may only be applied to tanks under
2000 gallons. Once again, this assumes the methods described are as effective
as the corresponding ones in the Federal standards. The fifth method will be
good enough until 1998, but will not fulfill subsection (c) of this objective
after 1998. The sixth alternative would also be acceptable until 1998. After
1998, the method would be acceptable only if the vadose or groundwater
monitoring were performed at least monthly and that these methods were as
effective as those in the Federal Standards. Any of the last five
alternatives could also be approved if State K could demonstrate that the
combination of methods met the performance standard for other methods in
§280.43(h). In addition, most of these methods do not appear strict enough on
piping to meet the objective.
1,
Defining the Phase-In Schedule. State K's program requires that release
detection systems be in place at all new and existing UST systems by July 1,
1985. Thus, the State program has already completed phase-in of release
detection and is an example of one way to satisfy subsection (b) of this
obj ective.
While State L's regulations show another approach to this objective,
their regulations cannot be considered'no less stringent. The State requires
that release detection be phased-in at existing UST systems based on the
following schedule:
USTs with no corrosion control need to have release
detection applied by September 1990;
USTs with corrosion control need to have release
detection applied by September 1991; and
Federally-regulated agricultural USTs must have
release detection applied by 1998.
(By the term, "Federally-regulated agricultural USTs", the State is referring
to those farm tanks not exempted from the final EPA technical standards; that
is, farms tanks with a capacity of more than 1,100 gallons used for storing
motor fuel for commercial purposes.) These State criteria for phasing-in
release detection are based on the presence of corrosion protection and on the
type of UST owner (agricultural vs. non agricultural), whereas EPA's phase-in
criteria are based on the age of the UST system. State L generally has an
earlier phase-in deadline for release detection than, that found in the
objective, with the exception of the phase-in for "agricultural USTs". State
L's phase-in for release detection will be completed for most USTs by
September 1991, and for "agricultural USTs" by 1998. To meet the objective,
however, release detection must be phased in at all existing UST systems by
1993. Because one segment of the tank universe (Federally-regulated
agricultural tanks) will not have release detection until 1998, the State
cannot be considered no less stringent for this category of USTs. However, if
the State regulations did not single out agricultural USTs on a separate
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OSWER Directive 9650.11
schedule and simply based its phase-in schedule on whether or not the UST
system was protected from corrosion, they could be considered no less
stringent, as they would achieve the goals of the release detection objective
before the Federal deadline of 1993. While the Federal technical regulations
require, and we would hope that most State regulations would also require a
release detection schedule based upon tank age, the objective requires only
that release detection be applied by 1993 in an orderly fashion. Thus, while
State L's release detection requirement may not be the optimal approach for
meeting the objective, it does meet the bottom line requirements and could be
considered no less stringent for the purposes of State Program Approval
application review.
Defining Release Detection for Piping. State K's regulations provide an
example of requirements for piping that do not achieve subsection (d) of this
objective. Owners and operators are required by the State to:
Monitor all pressurized piping with an automatic on-
line pressure loss detector and flow restriction
device; the detector must be connected to an
audible/visual alarm system unless it provides for at
least a 50 percent reduction from the normal flow
rates; and
Monitor suction lines daily for indications of
possible leaks.
These State requirements meet the first part of subsection (d), which
addresses the problem of identifying major piping failures within an hour.
These State requirements do not go far enough, however, because under the
objective, pressurized piping must also have monthly monitoring or annual
tightness tests performed to check for very small slow releases. The State's
requirement for suction piping may or may not be sufficient to meet the
objective and further clarification from the State probably would be needed
for the EPA Regional Office to make a decision. If by "monitoring suction
lines daily" the State means that the owner or operator must do a visual
inspection every day, this requirement would not replace the need to do a
pressurized line test every three years. However, if the State can produce
evidence that the State's method is as reliable as monthly leak detection,
then it probably would be acceptable as no less stringent. Alternatively, the
State could demonstrate that the State's design standards for suction piping
only allow the use of European style piping in which the contents of the pipe
drain back into the storage tank if the suction is released and the check
valve on the piping system can be inspected. In this case, the State's
requirements for suction piping could be considered no less stringent than
subsection (d) of this objective.
Defining Release Detection for Hazardous Substance USTs. State K's
requirements demonstrate one way to address subsection (e) of this objective,
but they do not fulfill the objective. The State requires that all new
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OSWER Directive 9650.11
(petroleum and hazardous substance) USTs have secondary containment and
interstitial monitoring. However, State K does not require existing hazardous
substance USTs to be upgraded with secondary containment and interstitial
monitoring. To fulfill subsection (e) of this objective, State K will need to
require that within 10 years all existing hazardous substance USTs use
interstitial monitoring within secondary containment of tanks and attached
underground piping, unless the State chooses to allow variances. The State
may allow variances only if the owner and operator demonstrates to the State
(or the State otherwise determines) that (1) another method will detect a
release of the regulated substance as effectively as other methods allowed
under the state program for petroleum UST systems, and (2) effective
corrective action technology is available for the hazardous substance being
stored that can be used to protect human health and the environment.
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OSWER Directive 9650.11
Release Reporting, Investigation, and Confirmation
Objective §281.34
All owners and operators must conform with Cite
the following: Regulation Statute
(a) Promptly investigate all suspected releases,
including:
(1) when unusual operating conditions,
release detection signals and environ-
mental conditions at the site suggest
a release of regulated substances may
have occurred; and
(2) when required by the implementing agency
to determine the source of a release
having an impact in the surrounding
area; and
(b) Promptly report all confirmed underground
releases and any spills and overfills
that are not contained and cleaned up.
(c) Ensure that all owners and operators contain
and clean up unreported spills and overfills
in a manner that will protect human health
and the environment.
Notes on Fulfilling the Objective
1. State requirements will need to establish how and when a suspected
release is determined to be a confirmed release and corrective
action must begin. It is important that State requirements for
release investigation be clear on this point. Ambiguity on how a
suspected release must be investigated and when it is confirmed
may result in delays on the part of the owner and operator in
initiating clean-up actions.
2. The Federal objective requires "prompt" investigation because EPA
believes the precise definition of what constitutes a prompt
investigation should be left to the discretion of the States
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OSWER Directive 9650.11
Release Reporting, investigation and Confirmation (continued)
Objective §281.34
Notes on Fulfilling the Objective
within reason. The ability to investigate a site can depend on the
site and on the availability of the existing service community.
However, if a State program allows owners and operators to carry
out the same or similar investigations as required by EPA
significantly beyond 7 days, that State program is not likely to
meet the objective.
3. A State with reporting levels for spills and overfills greater
than 25 gallons can be considered no less stringent if two
conditions are satisfied: . '
(a) The State mandates that the unreported spill be completely
contained and cleaned up; and
(b) The State has requirements that identify the specific steps
an owner and operator must take to ensure unreported spills
and overfills are contained and cleaned up in a manner that
will protect human health and the environment.
4. A spill or overfill of a hazardous substance that results in a
release to the environment that equals or exceeds its reportable
quantity under CERCLA (40 CFR Part 302) must be reported
IMMEDIATELY to the National Response Center and to appropriate
State and local authorities.
5. More discussion on release reporting, investigation, and
confirmation methodology may be found in the preamble to the final
State Program Approval Rule (53 FR 37229) and in the preamble to
the final Federal Technical Standards (53 FR 37169).
* * *
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OSWER Directive 9650.11
State Examples for Release Reporting. Investigation, and Confirmation
Defining a "suspected" release and confirming it. State M's
requirements demonstrate one way to fulfill subsection (a) of this objective
for release investigation and confirmation. The State mandates that owners
and operators complete an investigation within 7 days of identifying a
"suspected" release. This requires prompt reporting of releases and is also
the same as EPA's technical standards for investigation.
As part of the investigation process, State M requires the owner or
operator to do some immediate double-checking of equipment and other site
check activities at all sites where the owner or operator suspects a release
may be occurring. The State, however, may need to clarify for the EPA
Regional Office as to whether or not the State has the authority required in
(a) (2) of this objective. The question that needs to be answered is: when
the State has reason to believe that a release is having an impact in the
surrounding area and that the source needs to be determined, can the State
require a nearby owner or operator to investigate his tanks and site for the
source of the release? Can a potential off-site impact be classified as a
suspected release for which the State can require a nearby UST owner to
investigate his site? The State must have this authority to fulfill
subsection (a) (2) of this objective; however, such authority does not have to
appear in the regulations and may instead be present under enforcement
authorities. This is the reason a clarification might.be necessary.
State Z had a statutory definition of "release" that was identical to
the Federal definition, except that it excluded incidents involving less than
25 gallons of product. While States are allowed to establish administrative
thresholds for reporting spills and overfills (e.g., report all spills and
overfills greater than 25 gallons), the State must ensure that all spills and
overfills that are unreported are completely contained and cleaned up. Thus,
the State's requirements are less stringent than the Federal objective because
no action would be required of owners and operators for incidents involving
less than 25 gallons of product, as such incidents are not defined as
"releases".
Defining a "confirmed" release and reporting it. The following example
of State criteria for confirming and reporting a release demonstrates one way
to fulfill subsection (b) of this objective. According to regulations in
State M, a release is confirmed when any of the following conditions exists:
(1) test, sampling or monitoring results from a leak or discharge detection
method that indicate a release has occurred when the monitoring equipment has
been checked and found to be operational; (2) test results from a precision
test of the UST and piping, conducted separately, which is performed after the
top of the tank is excavated and all loose fittings, vent pipes or other
equipment is checked, replaced or tightened, and which indicate that a release
may have occurred; (3) results from a closure plan indicate the presence of
contamination in excess of State standards and indicate that a release has
occurred; and (4) any other method, including visual inspection, that confirms
41
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OSWER Directive 9650.11
that a release has occurred. Once the release is confirmed, the State
mandates that "any person" must immediately report the release to the State
hotline and to any local agencies, if required by local regulations. The term
"any person" includes but is not limited to, the owner or operator of an UST
system or contractor hired to install, remove or test an UST system.
Reporting on Spills. State M's regulations illustrate one possible
approach for reporting and cleaning up spills that will fulfill subsections
(b) and (c) of this objective. State M, like many other States, does not
distinguish between aboveground and belowground releases in their reporting
and corrective action requirements. The State requires that all confirmed
releases be reported, and that all confirmed releases be contained and cleaned
up in a manner that protects human health and the environment. The State does
not set a limit for reporting spills, which means all spills must be reported.
The State chooses to direct owners and operators on how to contain and clean
up all spills.
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OSWER Directive 9650.11
Release Response and Corrective Action
Objective §281.35
The State must have requirements that ensure:
(a) All releases from UST systems are promptly
assessed and further releases are stopped;
(b) Actions are taken to identify, contain and
mitigate any immediate health and safety
threats that are posed by a release (such
activities include investigation and
initiation of free product removal, if
present);
(c) All releases from UST systems are
investigated to determine if there are
impacts on soil and ground water, and
any nearby surface waters. The extent
of soil and ground-water contamination
must be delineated when a potential
threat to human health and the
environment exists.
(d) All releases from UST systems are cleaned
up through soil and ground water remediation
arid any other steps, as necessary to
protect human health and the environment;
(e) Adequate information is made available to the
State to demonstrate that corrective actions
are taken in accordance with the requirements
of (a) through (d) of this section. This
information must be submitted in a timely
manner that demonstrates its technical
adequacy to protect human health and the
environment; and
(f) In accordance with section 280.67, the State
must notify the affected public of all
confirmed releases requiring a plan for
soil and ground water remediation, and
upon request provide or make available
information to inform the interested
public of the nature of the release and the
corrective measures planned or taken.
Cite
Regulation Statute
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OSWER Directive 9650.11
Release Response and Corrective Action (continued)
Objective §281.35
Notes on Fulfilling the Objective
1. Actions appropriate to stop a release will vary depending on how
the release was confirmed as well as the conditions at the site.
If the confirmation of the release identifies the tank or piping
component responsible for the release, then actions to prevent
future releases could include emptying the problem tank or not
using the suspect piping until it is replaced or repaired.
2. The use of the word "promptly" in the objective is intended te
mean that the State must require that owners and operators take
such steps quickly to minimize future releases. To provide
adequate enforcement of such a requirement, the State must clearly
define, using a number, the time frame within which an owner or
operator is expected to respond to this requirement.
3. The immediate threats to health and safety that normally are a
concern at release sites include: explosive gas levels or vapor
threats due to the exposure of contaminated soils; the off-site
impacts of free product or resulting vapors on nearby water, sewer
lines, or building basements; and the location of any nearby
ground-water users who could be exposed to or threatened by
dissolved contaminants in their drinking water.
4. Extent of cleanup of contaminated soil and ground water may be
based on a site-specific risk analysis that includes potential
human exposure or on State-wide numerical standards that establish
clean-up levels at every site.
5. Reporting on corrective action plans must result in information
being made available to the State quickly to ensure that steps are
being taken to prevent further contamination, and so that
technical direction can be -provided by the State.
6. Information on the site and surrounding areas should be reported
so that the corrective action can be tailored to the specific
conditions of the site and nature of the release.
7. While it is permissible for States to satisfy the objective by
requiring owners and operators to notify the interested public
about anticipated or ongoing corrective action measures, a State
that places the burden of notification on the owner or operator,
should provide specific guidelines to notify the owner or operator
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OSWER Directive 9650.11
of exactly what information must be provided to the public and the
forum in which it must be set forth. For instance, if the State
feels that reporting violations in a County or State newspaper of
wide circulation will not be sufficient to reach the intended
public audience, it may specify that publication of notice in a
newspaper of more specific, local distribution is required.
8. Initial corrective action steps, results of investigation of soils
and ground water, and plans and status reports on long-term
remediation of contamination at the site are among the types of
specific information that the State might require.
9. One possible model to use is the Federal Technical Standards
(280.66(b)), in making a determination that a corrective action
plan will adequately protect human health, safety, and the
environment, the State implementing agency should consider the
following factors as appropriate:
The physical and chemical characteristics of the regulated
substance, including its toxicity, persistence, and
potential for migration;
The hydrogeologic characteristics of the facility and the
surrounding area;
The proximity, quality, and current and future uses of
nearby surface water and ground water;
The potential effects of residual contamination on nearby
surface water, and ground water;
An exposure assessment; and
Any information assembled in compliance1 with the State
corrective action requirements.
10. States may use priority ranking systems to help define priorities
for their corrective action workload. A priority ranking system
is a good tool for States to ensure that the riskiest sites are
addressed quickly and that the implementing agency systematically
addresses the total corrective action workload.
11. More discussion on release response and corrective action may be
found in the preamble to the final State Program Approval Rule (53
FR 37230) and in the preamble to the final Federal Technical
Standards (53 FR 37173).
* * *
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OSWER Directive 9650.11
State Examples for Release Response and Corrective Action
Prompt Assessment and Stopping of Releases. State 0 requires that
"where a confirmed tank failure has occurred," the owner or operator must
empty the UST system within 5 days. The term "tank failure" in this State
requirement may be too narrow to meet the objective because it could be
interpreted to not include piping failures or spills and overfills. The
regulation does not specify the circumstances for when this requirement
applies. If this is the State's only requirement to ensure prompt action be
taken to stop a confirmed release of a regulated substance, then this
requirement will be considered less stringent than the objective because 5
days is not necessarily prompt enough for all circumstances. For example,
action must be taken within a shorter period of time than in five days if a
large release is suspected, and can only be stopped by rapid (if not
immediate) removal of the product. EPA also notes that emptying the tank, as
is required by this State, may not always be necessary. In the case of a
piping failure, merely preventing continued use of the suspect piping run
until it was repaired would be sufficient to stop further releases of
regulated substances from the UST system.
Finally, State 0 does not require that the site of the "confirmed tank
failure" be assessed to determine if and how cleanup should begin. The State
will need to clarify how its regulations address this subject or revise its
regulations in order to be considered no less stringent in meeting this aspect
of the objective.
Defining the Steps Needed to Mitigate Hazards and Investigate Impacts.
State P's regulations show one approach to satisfying subsection (b) of the
Federal objective, which addresses mitigation of immediate health and safety
hazards including the investigation and recovery of free product. The State
requires that UST owners and operators: (1) mitigate any fire, safety, or
health hazard, including hazards from combustible vapor or vapor inhalation
and the removal of ignition sources; and (2) conduct a visual inspection to
detect any above-ground discharge, and where any above-ground discharge is
evident, mitigate the effects of the discharge. In addition, the State
requires that the owner or operator must: (3) remove free product from the
water table or any aquifer material; (4) remove or decontaminate contaminated
soil, storing contaminated soil if necessary in such a manner that provides
complete isolation of the soil from the environment, and any hazardous
substances in the soil must be prevented from coming into contact with or
being released into the environment; and (5) repair, replace, or close the UST
system. These requirements satisfy aspect (b) of the objective.
Defining Investigative Actions. State P's regulations also demonstrate
one way to fulfill subsection (c) of this objective. The State requires that
every owner or operator collect the following information about the release:
(1) the anticipated migration route of the regulated substance; (2)
characteristics of the surrounding soil including composition, geology, and
hydrogeology; (3) the results of any monitoring or sampling conducted in
46
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OSWER Directive 9650.11
connection with the discharge that has been collected and analyzed in
accordance with State procedures; (4) the proximity of the discharge to
potable water supplies, surface water bodies, and populated areas; (5) a
detailed description of corrective actions taken and any planned; and (6) any
other relevant information requested by the State. These State requirements
fulfill subsection (c) of this Federal objective. It should be noted,
however, that subsection (e) of this objective requires timely reporting of
the activities completed in each phase of the cleanup in order to determine
its technical adequacy. State P does not identify in its regulations when the
information (collected during the investigations listed above) must be
submitted. The EPA Regional Office may ask the State additional questions to
make sure that subsection (e) of the objective is met. For example, can the
State ask for the site assessment information at any time before the cleanup
is completed? Does the State have access to enough information regarding each
release site to determine that each cleanup operation will protect human
health and the environment? In the site-specific approach to cleaning up UST
releases, reporting is important because the consideration accorded to some
factors, such as aquifer resource value and its current and potential use, is
largely left to State (or local) policy. Given the number of releases that
are expected to be detected in the near future, EPA acknowledges that there is
potential for delayed cleanups under this approach if the State is unable to
review all the reported information in a timely manner. The act of reporting
information does not necessarily have to be formal, however, and the State may
choose to accept information over the telephone or through personal interviews
on site. Alternatively, the State may use previously collected information to
categorize separately those releases that need to have more extensive
reporting than others. In order to be no less stringent overall than this
objective, State P may need to clarify the specifics as to when the
information gathered under these State regulations must be reported to ensure
that the need for prompt action and timely reporting is fulfilled.
Defining "Glean UP". State Q has requirements for corrective action
that consist of requiring the owner or operator to repair damage caused by the
release and restore the environment to a condition and quality acceptable to
the State agency. This requirement is not sufficient to fulfill subsection
(d) of this objective because the State does not define the criteria that will
be used to .determine what "acceptable to the State" is. The State must
elaborate on what the criteria or basis will be for deciding when to continue
and when to stop clean up. To make this requirement no less stringent, the
State must at a minimum, require that the release be cleaned up as necessary
to protect human health and the environment. Although this is a fairly
general criterion, several States already have opted for such general
requirements in their regulations because it gives them the authority to
oversee all aspects of the corrective action effort while at the same time,
providing them with flexibility to tailor State requirements for corrective
action to each site. However, this type of regulatory language also places a
greater burden on the State program because it must be prepared to
individually oversee every action on every site. To avoid the tasks of such
close oversight, a State that employs a general standard in its regulations
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OSWER Directive 9650.11
(for example, "as necessary to protect human health and the environment")
could issue basic guidelines for corrective action that would alleviate some
of the responsibilities of such site-specific direction.
Reporting On Corrective Actions Taken. The following requirements of
State P illustrate one approach to subsection (e) of the objective, which does
not clearly fulfill the objective. The State may need to make some changes or
provide some clarification to the EPA Regional Office. State P requires
owners and operators, in an initial notification of a confirmed release, to
provide information on the type and quantity of the substance released, the
location of the release, and the actions being taken to clean up the release.
In addition, the State requires owners and operators to submit a corrective
action plan (with an implementation schedule) within 120 days of release
confirmation date, and to implement the plan in accordance with the schedule.
The implementation schedule must include target dates to carry out the
following: (1) soil, surface and ground water sampling; (2) monitor well
installation; (3) the staging and/or disposal of soils; (4) the construction
of soil or ground-water treatment systems; (5) the provision of alternate
water supplies; and 6) the periodic re-evaluation of the effectiveness of
clean-up measures instituted. The release confirmation notification and the
corrective action plan submission make up the entire body of reporting
requirements in this State; thus the repprting on the initial actions taken
and the up-front release assessment steps, as well as the corrective action
plan, must be provided at 120 days. To be considered no less stringent in
subsection (e) of the objective, the State must require that the owner or
operator provide information concerning the immediate corrective action steps
required in subsections (b) and (c) (such as the abatement of fire hazards and
the investigation and removal of free product) well before 120 days have
passed. Provided that the owner and operator has mitigated any immediate
health and environmental threats posed by the site and has provided this
information to the State, the information required by State P in steps 3, 4,
5, and 6 focusses on long-term corrective actions, and reporting at 120 days
is sufficient.
Using a different approach, State R shows another way to fulfill
subsection (e) of this objective. State R provides a corrective action manual
to owners and operators of leaking USTs that presents detailed technical
instructions on reporting information in terms of: (1) invest- igating
suspected or known leaks for underground fuel storage sites; (2) assessing
risk to human health and the environment when leaks have occurred; (3)
determining cleanup levels in soil, ground water, and air for contaminated
sites; (4) screening out sites that represent an acceptable degree of risk
from further study; and (5) taking remedial action. This manual is an example
of procedures that are used to support relatively general State regulations;
it provides specific direction to the regulated community on what is expected
from them, what actions they must take and when they must report. As long as
the procedures are enforceable, this approach can be considered no less
stringent than subsection (e), as well as* subsections (a), (b), (c), and (d)
of this Federal objective.
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OSWER Directive 9650.11
Providing Public Notice. State S does not adequately fulfill subsection
(f)'of this objective. In major corrective action cases, where ground-water
recovery and treatment are involved, State S issues a permit for treatment of
contaminated water and discharge of the treated waters. Before a permit is
issued, the public is notified. The Federal objective, however, requires that
the public must be notified when any long-term cleanup is undertaken.
Generally, issuing a water treatment permit requires a public hearing because
of concerns about discharges into surface water, and this hearing or meeting
serves an entirely different purpose than that of notifying the public of
long-term cleanups of petroleum releases. EPA believes that this requirement
is not an onerous burden, as a public hearing or meeting, or even formal
response to comments, is not necessary to fulfill this objective. The problem
with State S's approach is that not all long-term cleanups require a water
treatment permit and so there will be instances under this State program when
the affected public is not notified when they should be notified.
State T's policy, however, is a good example of a State approach that
does meet subsection (f) of this objective. The State requires a press
release to be issued for all releases affecting ground water and all other
releases involving corrective action. The press release must describe the
location, the nature of the release, and announce that cleanup will be
performed. This State will hold a public meeting if it appears warranted and
allows public access to its files.
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OSWER Directive 9650.11
Out-of-Service UST Systems and Closure
Objective §281.36
The State must have requirements that ensure
UST systems conform with the following:
Cite
Regulation Statute
(a) All new and existing UST systems
temporarily closed must:
(1) continue to comply with general
operating requirements, release
reporting and investigation, and
release response and corrective action;
(2) continue to comply with release
detection requirements if regulated
substances are stored in the tank;
(3) be closed off to outside access; and
(4) be permanently closed if the UST
system has not been protected from
corrosion and has not been used in
one year, unless the State approves
an extension after the owner and
operator conducts a site assessment.
(b) All tanks and piping must be cleaned and
permanently closed in a manner that
eliminates the potential for safety
hazards and future releases.
The owner or operator must notify the State
of permanent UST system closures.
The site must also be assessed to determine
if there are any present or were past
releases, and if so, release response
and corrective action requirements must
be complied with.
(c) All UST systems taken out of service before
December 22, 1988, must permanently close
in accordance with paragraph (b) of this
section when directed by the State.
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OSWER Directive 9650.11
Out-of-Service UST Systems and Closure (continued)
Objective §281.36
Notes on Fulfilling the Objective
1. The State program must specify when a tank system is considered to
be temporarily out-of-service due to the fact that it has been
removed from service.
2. The time limit for the temporary closure of UST systems has been
set at one year to ensure that owners and operators of unprotected
. USTs that are unused are held responsible for protecting the UST
system from corrosion or permanently closing it. (See part ^4) in
subsection (a)).
3. Assessing the site at closure is not necessary if an external
release detection method was in operation at the time of closure
and it indicates no release has occurred.
4. More discussion on out-of-service UST systems and closure may be
found in the preamble to the final State Program Approval Rule (53
FR 37233) and in the preamble to the final Federal Technical
Standards (53 FR 37181).
* * *
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OSWER Directive 9650.11
State Examples For Out-of-Service USTs and Closure
Defining Temporarily Out-of-Service. State U's regulations do not
fulfill the criteria for temporary closure set out in subsection (a) of this
objective. State U requires owners and operators of UST systems containing
regulated substances that are temporarily out of service for 90 days or less
to continue to comply with all provisions of the State's regulations (for
example, release detection and corrective action). UST systems containing
regulated substances that are,out of service for an extended period of time,
that is 3 months to 2 years, are required to comply with the following
additional requirements: (1) leave vent lines open and functioning; and
(2) cap and secure all other lines, pumps, manways, and ancillary equipment.
Owners or operators of temporarily or extended out-of-service UST systems that
have been emptied and do not contain a regulated substance are required by the
State to maintain cathodic protection. Finally, the State requires UST
systems that have been removed from service for a period of 2 years or more to
be permanently closed. State U's requirements do fulfill the objective for
USTs that are temporarily out-of-service one year or less. However, these
requirements are less stringent concerning USTs closed for more than 1 year.
To be considered no less stringent than aspect (a) of this objective, State
U's requirement needs to be changed to mandate that an UST system that does
not have corrosion protection and has been removed from service for one year
or longer mus't permanently close, unless the State allows an extension based
on the results of a "site assessment.
Defining Permanent Closure. The following examples illustrate two
different States' approaches to the issue of permanent tank closure. The
first, State V, has regulations that do not fulfill subsection (b) of this
objective. State V requires that all UST systems being permanently closed be
removed (the State must be notified 10 days in advance). The State allows
abandonment in place only if it is not physically possible or practicable to
remove the UST system (the State lists instances of when this would be
allowed). For both methods of closure, the State provides detailed lists of
procedures that must be followed to avoid causing safety hazards and future
releases, including emptying and cleaning out the tanks. These regulations,
however, are less stringent than subsection (b) of EPA's closure objective
only because they do not specify that a site assessment must be performed at
permanent closure to identify any past or on-going releases. The State
program must require a site assessment to satisfy this objective.
State W uses a different approach to permanent closure. In addition,
the State's requirements do fulfill the objective. The State requires that
procedures for permanent closure include: (1) removal of all residual liquid,
solids, or sludges from the tank and appurtenant piping by draining, pumping,
or in-tank cleaning; (2) discharging such material in accordance with all
applicable Federal, State, and/or local regulations; and (3) purging all
flammable vapors. The State further requires that closure be performed in
accordance with the State's Uniform Construction Code; American Petroleum
Institute Standard 1604, "Recommended Practices for Abandonment and Removal of
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OSWER Directive 9650.11
Used Underground Storage Tanks;" and any standard or device that the State
determines to be protective of human health and the environment. In addition,
the State requires owners or operators to submit a closure plan to the State
agency that includes provisions for performing a site assessment. This report
triggers release response and corrective action requirements if it is
determined that an on-going or past release has occurred at the site. The
above State requirements fulfill subsection (b) of EPA's Federal objective.
Requiring Retroactive Closure. State Y's regulations illustrate one way
to fulfill subsection (c) of this objective. State Y mandates that all USTs
that have been taken out of service for more than 1 year be properly closed by
the owner or operator of the UST system or, if the owner or operator is
unknown, by the current owner of the property where the UST is located.
Because no date is specified, this requirement allows the State to go far back
in time, even prior to the effective date of the State regulations, and
requires owners, operators, or property owners to properly close abandoned
tanks. For example, State Y can require a property owner that has a 20-year-
old abandoned UST system to close the tank properly. This requirement
satisfies subsection (c) of this objective.
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OSWER Directive 9650.11
Financial Responsibility for USTs Containing Petroleum
Objective §281.37
(a) State requirements for financial
responsibility must ensure that:
(1) owners and operators have $1 million
per occurrence for corrective action
and third-party claims in a timely
manner to protect human health and
the environment;
(2) owners and operators not engaged in
petroleum production, refining, and
marketing and who handle a throughput
of 10,000 gallons of petroleum per
month or less have $500,000 per
occurrence for corrective action and
third-party claims in a timely manner to
protect human health and the environment;
(3) owners and operators of 1 to 100
petroleum USTs must have an annual
aggregate of $1 million; and
(4) owners and operators of 101 or more
petroleum USTs must have an annual
aggregate of $2 million.
(b) Phase-in requirements. Financial
responsibility requirements for petroleum
UST systems must, at a minimum, be scheduled
to be applied at all UST systems on an
orderly schedule that completes a phase-in
of the financial responsibility
requirements within the time allowed in the
Federal regulations under 40 CFR §280.91.
Cite
Regulation Statute
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OSWER Directive 9650.11
Financial Responsibility for USTs Containing Petroleum (continued)
Objective §281.37
Cite
Regulation Statute
(c) States may allow the use of a wide variety of
financial assurance mechanisms to meet this
requirement. Each financial mechanism must
meet the following criteria: be valid and
enforceable; be issued by a provider that
is qualified or licensed in the State; not
permit cancellation without allowing the
State to draw funds; ensure that funds will
only and directly be used for corrective
action and third-party liability costs;
and require that the provider notify the owner
or operator of any circumstance that would
impair or suspend coverage.
(d) States must require owners and operators to
maintain records and demonstrate compliance
with the State financial responsibility
requirements, and these records must be
made readily available when requested by
the implementing agency.
Notes on Fulfilling the Objective
1. More discussion on financial responsibility for UST owners and
operators may be found in the preamble to the Federal financial
responsibility requirements (53 FR 43365), in the preamble to the
State Program Approval Financial Responsibility objective (53 FR
43382), and in Appendix I of this handbook.
* * *
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OSWER Directive 9650.11
Discussion of Financial Responsibility Requirements for States
The objective for financial responsibility for USTs containing petroleum
was published separately from the rest of the State Program Approval Rule.
The objective appeared in the Federal Register on October 26, 1988 with the
Federal Financial Responsibility Requirements for Petroleum USTs (Part 280,
Subpart H).
The basic purpose of financial responsibility is simply to establish
reasonable assurance that someone has the funds to pay for the costs of
corrective action and third-party liability resulting from an UST release.
This means that someone (or combination of persons) is ready to pay from the
"first dollar" of costs incurred up to the maximum amount required by the
Federal regulations.
In order to be no less stringent than the Federal requirements for
financial responsibility, the State must either:
establish requirements for owners and operators to have financial
assurance for the types and amount of coverage specified in the
objective; or
develop a State financial assurance fund to provide coverage to
all owners and operators in lieu of enacting a State law or
regulations requiring owners and operators to comply with the
minimum coverage requirements. When used for this purpose, the
fund must provide coverage to all owners and operators in the full
amount required by the Federal objective, or the State must have
law or regulations requiring owners or operators to supplement the
coverage provided by the fund with another acceptable financial
assurance mechanism. This topic is described in OUST's guidance
document titled "Reviewing State Funds for Financial
Responsibility: Phase 2 -- Meeting the State Program Approval
Objective" dated November 17, 1989. (See Appendix I)
Note that while many States have enacted financial assurance funds, they are
typically not being used in lieu of regulations requiring tank owners and
operators to obtain the required amounts of coverage. Rather, as discussed
further below, they function as one of several financial assurance mechanisms
that owners can use to meet the coverage requirements.
States may allow the use of a variety of financial assurance mechanisms
to.meet the requirements. These mechanisms must:
Be valid and enforceable;
Be issued by a provider that is qualified or licensed in the
State;
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OSWER Directive 9650.11
Not permit cancellation without allowing the State to draw funds
if the mechanism is a guarantee, surety bond, or letter of credit;
Ensure that funds will only and directly be used for corrective
action and third-party liability costs;
Require that the provider notify the owner or operator of any
circumstance that would impair or suspend coverage, (i.e.,
bankruptcy of provider).
The mechanisms cited in the Federal financial responsibility regulation meet
the above criteria.
Finally, States must require owners and operators to maintain records
and demonstrate compliance with the State financial responsibility
requirements. These records must be made readily available when requested by
the State implementing agency.
State Funds
In general, States have enacted financial responsibility legislation or
regulations similar or identical to the Federal requirements. In addition, 43
States have either proposed or passed statutes creating State assurance funds
to help owners and operators of petroleum USTs in their State comply with
financial responsibility requirements. In almost all cases, the way in which
States intend to use these funds is as an additional mechanism that owners and
operators may choose to use to satisfy the State's financial responsibility
requirements.
As is the case.with other financial responsibility mechanisms, State
funds must meet the five criteria for mechanisms contained in §281.37(c),
which are mentioned above. For State funds, however, the main criteria of
concern are the first, fourth, and fifth. With regard to the second
criterion, we can generally assume that the fund has been issued by a
qualifying organization, i.e., the State. As discussed in the preamble to the
final rule, the third criterion was designed for guarantees, surety bonds, and
letters of credit, where the Director can order the funding of a standby trust
fund should a leak be suspected or confirmed after notice of cancellation. It
therefore has little relevance for State funds.
In determining whether the State fund is a "valid" financial assurance
mechanism (criterion 1) we suggest that Regions should rely primarily on
OUST's existing guidance documents on "Reviewing State Funds for Financial
Responsibility." Areas such as source and amount of funds, coverage provided,
methods of payment, and eligibility would appear to be appropriate topics to
consider in evaluating a State fund for "validity." We expect that most, if
not all, funds that meet the criteria in the fund review guidance would be
deemed to be valid. The 22 State funds that EPA has approved thus far as
financial responsibility mechanisms (under Section 280.101) would be
considered "valid" mechanisms for State Program Approval. However, there may
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OSWER Directive 9650.11
be other legally justifiable criteria to use in determining whether a fund is
a "valid" financial assurance mechanism for purposes of satisfying the State
program approval objective. As with other State Program Approval decisions,
this is a judgment call that Regions will make on a case-by-case basis.
In applying the fourth criterion, the preamble discusses it as a
safeguard against legal defense costs absorbing too great a portion of
coverage limits and thus leaving little coverage available for corrective
action and third party liability. Although State funds are sometimes used to
cover other costs, such as fund administration, this is generally acceptable,
since such expenditures do not affect the per occurrence or aggregate levels
of coverage being provided by the fund.
With regard to the last criterion, the State, as a provider of financial
assurance, bears the same responsibility as other providers who intend to
terminate coverage (Section 280.105). At least sixty days prior to the 7lk
termination of fund coverage, the State must notify all covered owners and
operators that coverage is terminating. The State should also advise owners
and operators that they must obtain other mechanisms to satisfy the State's
financial responsibility requirements.
Remember that States do not need a fund to meet the Federal objective
for financial responsibility. Statutory or regulatory provisions that contain
the Federal coverage requirements are sufficient for State program approval,
as long as they satisfy the State program approval requirements contained in
40 CFR Part 281.37 (a)-(d). In particular, this means that each mechanism
(including a State fund) that a State allows owners and operators to use to
satisfy the requirement must meet the criteria contained in Section 281.37(c).
Some States may establish a financial assurance fund or other compliance
mechanism after receiving approval of their program. Such modifications
should be treated as changes to the State program, which are addressed under
Section 281.52 of the State Program Approval rules -- "Revision of Approved
State Programs." The State must inform EPA of such changes, and EPA will
determine in each case whether a revision of the approved program is
necessary.
The financial responsibility objective under §281.37(b) in the October
26, 1988 financial responsibility rule regarding the phase-in of the financial
responsibility requirements was replaced in the Federal Register on October
31, 1990. The phase-in of the financial responsibility objective is now tied
to the compliance dates established by EPA under 40 CFR §280.91. This phase-
in date can be characterized as a "moving target" because the compliance date
for Category 4 tank owners, or the last financial responsibility compliance
date, was adjusted again in 1991. (On December 23, 1991, EPA extended the
financial responsibility compliance date for Category 4 tank owners (petroleum
marketers owning 1-12 tanks or one facility with less than 100 tanks and non-
marketers with less than $20 million in tangible net worth) to December 31,
1993 (56 FR 66369). In addition, local governments, which were originally
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OSWER Directive 9650.11
included in Category 4, were placed in their own sub-category and received a
deferral for compliance on October 31, 1990. Compliance will be required
within twelve months after a final rule concerning alternative compliance
mechanisms for local governments is promulgated.
G. Adequate Enforcement Authorities
In the Attorney General's Statement, the State must demonstrate that its
enforcement authorities meet the criteria specified in Subpart D of the State
Program Approval Rule which requires legal authorities for: (1) compliance
monitoring; (2) enforcement response; and (3) public participation. These
authorities are the minimum necessary for a program to provide "adequate
enforcement." Although a State may use local agencies to implement certain
aspects of its compliance monitoring and enforcement program, the application
for program approval must demonstrate that the State has adequate legal
authorities to enforce its requirements; the State cannot rely on local
authorities in its demonstration of adequate enforcement. Tables outlining
and explaining the specific requirements of the compliance monitoring and
enforcement response authorities are provided below. The regulatory
requirements for public participation in enforcement proceedings include
options for both legal authorities and procedural requirements. However, the
handbook discussion of public participation in enforcement proceedings is
located in this chapter (rather than Chapter 5) because EPA believes most
States will probably choose one of the authority options. A table is also
provided for the public participation in enforcement proceedings requirement.
Additional information on this subject is available in the preamble to the
State Program Approval Rule (53 FR 37234).
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OSWER Directive 9650.11
Legal Authorities for Compliance Monitoring
(§281.40)
The State must have the following
specific compliance monitoring authorities:
(a) Any authorized representative of
the State engaged in compliance
inspections, monitoring, and testing
must have authority to obtain by request
any information from an owner or operator
with respect to the UST system(s) that is
necessary to determine compliance with
the regulations.
(b) Any authorized representative of the State
must have authority to require an owner or
operator to conduct monitoring or testing.
(c) Authorized representatives must have the
authority to enter any site or premises subject
to UST system regulations or in which records
relevant to the operation of the UST system(s)
are kept, and to copy these records, obtain
samples of regulated substances, and inspect or
conduct the monitoring or testing of UST
system(s).
Cite
Regulation Statute
Notes on Fulfilling the Requirements
1. The proposed rule limited inspection authority solely to
"employees of the State." However, EPA believes that States may
also wish to delegate implementation responsibility to individuals
such as the local building inspector or fire marshall. Thus, in
order to broaden the scope of this authority to include such
persons, the Agency has in the final rule substituted the word
"employee" with "representative," as provided for in Subtitle I,
Section 9005 of RCRA.
2. More discussion on legal authorities for compliance monitoring may
be found in the preamble to the final State Program Approval Rule
(53 FR 37234).
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OSWER Directive 9650.11
Legal Authorities for Enforcement Response
(§281.41)
The State must have the following specific
enforcement response authorities for State
program approval:
Cite
Regulation Statute
(a)
Any State agency administering a program must
have the authority to implement the following
remedies for violations of State program
requirements:
(1) To restrain immediately and effectively
any person by order or by suit in State
court from engaging in any unauthorized
activity that is endangering or causing
damage to public health or the environment;
(2) To sue in courts of competent jurisdiction
to enjoin any threatened or continuing
violation of any program requirement;
(3) To assess or sue to recover in court
civil penalties as follows:
(i) Civil penalties for failure to
notify or for submitting false
information pursuant to tank
notification requirements must be
capable of being assessed up to
$5,000 or more per violation.
(ii) Civil penalties for failure to
comply with any State requirements
or standards for existing or new
tank systems must be capable of
being assessed for each instance
of violation, up to $5,000 or more
for each tank for each day of
violation. If the violation is
continuous, civil penalties shall
capable of being assessed up to
$5,000 or more for each day
of violation.
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OSWER Directive 9650.11
Legal Authorities for Enforcement Response (continued)
(§281.41)
Notes on Fulfilling the Requirements
1. "Unauthorized activity" is considered to include any activity by
an UST owner or operator that results in noncompliance with a
State's UST regulations.
2. States may find these standard legal authorities in general
enforcement statutes and not necessarily in UST-specific statutes.
3. More discussion on legal authorities for compliance monitoring may
be found in the preamble to the final State Program Approval Rule
(53 FR 37237).
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OSWER Directive 9650.11
Public Participation in Enforcement Proceedings
(§281.42)
Any State administering a program must Cite
provide for public participation in Regulation Statute
the State enforcement process by providing
any one of the following three options:
(a) Authority that allows intervention analogous
to Federal Rule 24(a)(2), and assurance by
the appropriate State enforcement agency that
it will not oppose intervention under the State
analogue to Rule 24(a)(2) on the ground that
the applicant's interest is adequately
represented by the State.
(b) Authority that allows intervention as of right
in any civil action to obtain the remedies
specified in 281.41 by any citizen having an
interest that is or may be adversely affected; or
(c) Assurance by the appropriate State agency that:
(1) It will provide notice and opportunity
for public comment on all proposed
settlements of civil enforcement actions
(except where immediate action is
necessary to adequately protect human
health and the environment); ,
(2) It will investigate and provide responses
to citizen complaints about violations; and
(3) It will not oppose citizen intervention
when permissive intervention is allowed
by statute, rule, or regulation.
Notes on Fulfilling the Requirements
1. These requirements are separate from the public participation
requirement under the corrective action objective on page 43 of
this chapter.
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OSWER Directive 9650.11
Public Participation in Enforcement Proceedings (continued)
(§281.42)
Notes on Fulfilling the Requirements
2. EPA expects that States will not have difficulty in fulfilling one
of the three options presented here, particularly because most
States already have an authority analogous to Federal Rule
24(a)(2) as a result of involvement in the RCRA hazardous waste
management program. Federal Rule 24(a)(2) is presented in
Appendix E.
3. The "right of intervention" required in the second option is
considered to be the right of a citizen, having an interest that
is or may be adversely affected by an UST system that is in
violation of the State's requirements, to intervene in a civil
action brought by the State against the,owner or operator. The
citizen has all the rights of an-intervenor, including the right
to submit a statement, the right to notice, and the right to
receive motions for arguments filed by other parties to the
action.
* * *
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OSWER Directive 9650.11
Additional Explanation of the Public Participation Requirements
The purpose of providing public participation in the enforcement
decision-making process is to meet the Federal statutory requirement,
reflected in Section 7004 of RCRA, that the public be provided with a
reasonable opportunity to participate in the implementation of the program.
The final State program approval regulations (§281.42) require that States
allow opportunities for the public to be informed and participate in the
enforcement decision-making process. To provide such public participation,
States may choose one of three options. The first two of these options allow
States to obtain legal authorities that permit public participation in the
enforcement process. The third option allows States to develop procedures
that assure that the implementing agency will respond to citizen input.
States that choose not to obtain either of the two legal authorities,
however, must develop procedures that assure public participation in :i>,
enforcement proceedings. States choosing this option are required to provide
opportunity for public comments on all proposed enforcement settlements and to
respond to citizen complaints about violations. States have the flexibility
to determine whether the citizen complaint is valid and to provide the
appropriate response depending on the significance of the violation. To
inform the public of proposed settlements for minor violations, for example,
States may consider submitting to a local newspaper a public notice of the
plan for returning to compliance. Public hearings may be held if enough
public interest is expressed. To handle citizen complaints, States may
determine the most appropriate follow-up action, depending upon the validity
of the complaint.
If a State chooses the first option, (§282.42(a)), which provides
authority to allow citizen intervention analogous to Federal Rule 24(a)(2),
there must be an explicit assurance by the State agency that it will not
oppose intervention because that applicant's interest is adequately
represented by the State. In addition, if the State chooses the third option,
(§281.42(c)), the State agency must provide assurance that it will not oppose
citizen intervention when permissive intervention is allowed by statute, rule,
or regulation. The MOA would be the most appropriate place for the State
agency to articulate these assurances.
Also, before submitting an application to EPA for approval of a State
program, the State must provide an opportunity for public notice and comment
in the development of its underground storage tank program (§281.50(b)). The
State Attorney General must certify in the Statement that these opportunities
were provided.
D. Scope of the State Program
A State has the option to develop an UST program to regulate either all
petroleum tanks, all hazardous substance tanks, or both. Depending upon which
of these options a State chooses, the State must have jurisdiction over at
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OSWER Directive 9650.11
least the same categories of tanks as the Federal program. For this reason,
the Attorney General must certify that the State UST program covers the same
scope of jurisdiction within each option as the Federal program, and does not
exclude any part of the UST universe regulated under the Federal rule. Those
categories of USTs that EPA had proposed to defer but now regulates in the
final Technical Standards must be included within the scope of the State
program. For example, used oil USTs need to be regulated under State
programs.
For a State program to be as broad in scope as the Federal program, it
must demonstrate that it covers the same UST systems and does not exclude UST
systems regulated under the Federal rule. Some key definitions that define a
program's scope include: "underground storage tank", "regulated substance",
"petroleum", "release", "owner", "operator", and "person". If these
definitions differ markedly from the Federal definitions, the State program
may not be sufficiently broad in scope. For example, if the State definition
of "petroleum" does not include diesel fuel, it does not cover the same scope
of UST systems as the Federal program.
Certain UST systems are currently deferred from regulation in the final
Federal rule because EPA has insufficient information to regulate these USTs.
However, these deferred systems are subject to interim prohibition and the
corrective action requirements under the Federal Technical Standards. UST
systems storing fuel for emergency generators are subject to all but the
release detection requirements. Thus, the EPA and the State must agree on how
to oversee compliance of the regulatory requirements applicable to any
deferred USTs in the Memorandum of Agreement (explained in Chapter 6) . States
should consider including the list of deferred USTs within their statutory
authority from the start to avoid the necessity for future changes to expand
their jurisdiction when complete Federal regulations for the deferred systems
are published.
EPA has exempted by regulation certain other categories of UST systems
entirely, and States will not need to include these systems within their
jurisdictions in order to have adequate program scope for approval.
States are free to implement a State program that is broader in scope
than the Federal program (§281.12(a)(3)). A State program, for example, may
regulate all heating oil tanks, although tanks used for storing heating oil
for consumptive use on the premises where stored are excluded from the
Federal UST program. In such cases, the additional scope of coverage is not
approved by EPA as part of the State program approval process. In addition,
if EPA were asked to provide enforcement assistance, EPA cannot enforce the
States' requirements against the tanks within the additional scope of
coverage.
EPA will administer the UST program on Indian lands, except where
Congress has clearly expressed an intention to grant a State the authority
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OSWER Directive 9650.11
to regulate USTs on Indian lands (§281.12(a)(2)). If a State has authority
over UST activities on Indian lands, the Attorney General's Statement must
contain an appropriate analysis of the State's authority.
Jurisdiction over USTs on Indian lands will vary by State, which will
necessitate a flexible approach, so it would be beneficial for States and
Regions to seek out additional information, based upon their individual needs.
Regional offices may find it helpful to refer to the Indian Lands
Implementation Tool Kit, in order to more fully understand the issues and
questions pertaining to USTs on Indian lands.
The following table contains the categories of tanks that are exempted
from the Federal Technical Standards. State programs must have the authority
to regulate all categories of UST systems except for those UST systems
contained in this checklist. (As noted above, Federally-deferred tanks are
only subject to the Interim prohibition and corrective action
requirements.) If the State exempts or defers any category of UST systems
that are in the jurisdiction of the Federal program, a discussion must be
provided in the Memorandum of Agreement on how those tanks will be covered
along with a schedule for expanding the State's jurisdiction. Additional
discussion on the State program scope and universe may be found in the
preamble to the State Program Approval Rule (53 FR 37219).
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OSWER Directive 9650.11
SCOPE OF THE STATE PROGRAM
The State must have authority to regulate all UST systems except those
UST systems outside the jurisdiction of the Federal program, listed as
follows:
Excluded by Congress
1. Farm or residential tanks of 1,100 gallons or less capacity storing
motor fuel for non-commercial purposes;
2. Tanks storing heating oil for consumptive use on the premises where
Stored;
3. Septic tanks;
4. Pipeline facilities (including gathering lines) regulated under the
National Gas Pipeline Safety Act of 1968, the Hazardous Liquid Pipe-
line Act of 1979, or State laws comparable to these Acts;
5. Surface impoundments, pits, ponds, or lagoons;
6. Storm-water or waste-water collection systems;
7. Flow-through process tanks;
8. Liquid traps or associated gathering lines directly related to
oil or gas production and gathering" operations; and
9. Storage tanks situated on or above the floor of underground areas,
such as basements or cellars.
Excluded by EPA
1. Any UST system holding hazardous wastes listed or identified
under Subtitle C of the Solid Waste Disposal Act, or a mixture
of such hazardous waste and other Subtitle I regulated substances;
2. Any waste-water treatment tank system that is part of a waste-water
treatment facility regulated under section 402 or 307(b) of the
Clean Water Act;
3. Equipment or machinery that contains regulated substances for
operational purposes such as hydraulic .lift tanks and electrical
equipment tanks;
4. Any UST"system whose capacity is 110 gallons or less;
5. Any UST system that contains a de minimis concentration of regulated
substances; and
6. Any emergency spill or overflow containment UST system that is
expeditiously emptied after use.
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OSWER Directive 9650.11
CHAFFER 5. DEMONSTRATION OF ADEQUATE ENFORCEMENT PROCEDURES
<.
A. Introduction
To ensure that States have adequate enforcement, EPA requires that
States have certain compliance monitoring and enforcement procedures in
addition to the legal authorities discussed in the previous chapter. These
procedures are necessary to ensure compliance with all UST requirements in
both the technical and financial responsibility rules. Furthermore, EPA
expects that any State program that incorporates these required procedures
will also have the ability to carry them out. That is, EPA will not approve
an apparent "paper" program. Beyond this,.EPA will not set any numerical
resource minimums to determine a State's enforcement capability.
Under §281.22 of the regulations, States seeking program approval are
required to submit descriptions of their compliance monitoring and enforcement
program in their application. Section 281.22 requires that any related State
administrative or judicial review procedures must be submitted as well. In
general, EPA considers a comprehensive enforcement program to include
procedures for the following areas:
Compliance monitoring and data collection; and
Enforcement responses.
As discussed in more detail below, §§281.40(d) - (g) set forth the procedural
requirements for compliance monitoring and enforcement. In developing these
requirements, EPA seeks to maintain the flexibility to approve a variety of
State programs, and encourages States to use innovative approaches to
monitoring compliance and taking enforcement actions. For that reason, the
final regulations for State program approval do not specify details of
compliance monitoring and enforcement procedures, but rather describe general
procedural areas that are necessary for program approval.
In addition, §281.41 (b) and (c) state that the burden of proof and
degree of knowledge or intent required under State law for establishing
violations must be no greater than that which EPA must provide when it brings
an action under Subtitle I. Further, a civil penalty assessed, sought, or
agreed upon by the State enforcement agency must be appropriate to the
violation.
To provide guidance on fulfilling these procedural requirements, this
chapter reiterates the overall purpose of each requirement and provides
examples of compliance monitoring and enforcement procedures that may
accomplish these purposes. Some of these procedures are currently being used
in existing State programs. It should be noted, however, that none of the
actual compliance monitoring and enforcement procedures described represent an
"ideal" or unique UST enforcement program, but serve only as examples of
methods that fulfill the purpose of the particular requirement. Further
detail on these examples and additional information on State compliance
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OSWER Directive 9650.11
monitoring and enforcement techniques can be found in the EPA handbook on
Building State Compliance Programs (August, 1988).
B. Procedures for Compliance Monitoring
An important purpose of the Federal requirements for adequate
enforcement is that States be able to identify violators and bring them into
compliance. The final State program approval regulations for adequate
enforcement require that States develop certain sets of procedures for
collecting and maintaining data on violators. In addition, the State
implementing agency must maintain data on the compliance status of the
regulated community to monitor the effectiveness of the compliance program and
ensure that violations are not repeated.
Specifically, States are required to develop procedures in each of the
following four areas:
1. Record Review: Procedures to receive, evaluate, retain, and
investigate records and reports that owners and operators are
required to submit to the implementing agency, and procedures to
enforce against failure to submit such mandatory reports
(§281.40(d));
2. Inspections: Systematic inspection procedures to determine
compliance with program requirements, independent of information
supplied by the regulated community, and to provide for
enforcement of failure to comply with program requirements
(§281.40(e));
3. Public Reporting: Programs to, encourage public effort in
reporting violations and to investigate information obtained
from the public about suspected violations (§281.40(f)); and
4. Data Maintenance: Procedures for maintaining the data collected
through inspections and record reviews so that the implementing
agency can monitor over time the .compliance status of the
regulated community (§281.40(g)).
In addition, for any compliance monitoring program to be effective, a State
should also be able to identify and characterize the regulated community.
Thus, procedures for developing an UST inventory .are also fundamental to a
State's ability to ensure compliance with the regulations.
Guidance for each requirement and examples of compliance monitoring
procedure and techniques that fulfill the requirements in each of these areas
are described below. Enforcement procedures that fulfill the requirements in
§§281.40(d) and (e) are discussed in Section C of this chapter.
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OSWER Directive 9650.11
1. Identifying the Regulated Community.
To structure an effective compliance monitoring program, a State
implementing agency must have a thorough awareness of its regulated community.
Examples are provided below of some optional procedures that have been
developed for identifying and characterizing UST systems and for keeping track
of changes in facility status over time. These are only examples, however,
and it is assumed that States do have other procedures that may be perfectly
acceptable.
Registration and Permitting. One customary and versatile method for
keeping inventory is to require that every facility in the regulated community
obtain a registration or permit. Registration and permitting programs vary in
the level of information required from the owners and operators, the means of
enforcing the program, and the consequences of noncompliance. In general,
registration programs require that UST owners and operators obtain an annual
license to operate their UST system. In doing so, owners and operators will
supply the implementing agency with little more detailed data than that
required for notification. For example, the registration programs in Rhode
Island and Texas merely require that owners and operators notify the State of
changes in the status of the UST system. Permit programs also serve to
provide inventory data, although they are usually developed primarily to
monitor compliance (as discussed in the following section on Record Review)
and thus provide more detailed UST information.
Another means of identifying USTs is to require certain actions from the
owner or operator. For example, a State may require that when property
containing an UST system is sold, the seller notify the purchaser of State
notification and reporting requirements applicable to the UST system. This
requirement would not only help keep the data updated, but also would ensure
that information is passed on to the next,owner or operator.
Alternative Means of Identification. To supplement their data on the
regulated community, States may rely upon other State or local government
agencies, such as building inspectors or fire departments, to identify UST
systems. For example, some State and county agencies incorporate UST !
requirements into local construction standards by requiring building permits
for UST system installation, alteration, or removal, much like any other
construction activity. The State or county typically requires these other
agencies to submit their observations and information to the UST implementing
agency.
States have also used commercial activities to help identify UST
systems. For example, Iowa requires that for all property transfers, real
estate agents must file a "Real Estate Ground-Water Hazards Statement," in
which the agent must note if the property involved contains any UST systems.
This statement is filed with the County Recorders Office and can be compared
with information submitted by the owners and operators to verify the accuracy
of their reports.
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OSWER Directive 9650.11
2. Record Review.
«
Under §281.40(d) of the final State program approval regulations, States
must develop procedures for collecting and analyzing data submitted by UST
system owners and operators. Although owners and operators will be required
to submit certain information under State and Federal regulations (for
example, reporting releases), States may require additional information as a
means of expanding compliance monitoring efforts. By developing a program
that encourages owners and operators to submit accurate data on their
compliance status, States can reduce the need for resource-intensive
inspections. Several techniques for incorporating record reviews into a
compliance monitoring program are described below. Compliance outreach, which
can enhance the effectiveness of a reporting program, is also discussed.
Permit Programs. Some State programs have reduced their need for
resource-intensive inspections by implementing comprehensive permit programs
that provide data on compliance. Many States and counties require that all
UST systems obtain annual permits as a condition of operation. To obtain
these permits, UST system owners and operators must demonstrate by independent
means that their UST systems have passed performance standards. States can
verify compliance in several ways, such as by inspecting the facility prior to
issuing the permit, or by requiring the owner or operator to submit results of
tank tightness tests. Once an initial inspection is conducted, States can
rely more heavily on periodic reports submitted by owners and operators with
permitted systems. States can also reduce the number of comprehensive
inspections conducted by increasing the time between major inspections at
permitted facilities.
California has developed a comprehensive permit program that is
implemented at the county level (and delegated to certain cities). The permit
requirements vary from county to county but are generally extensive. In San
Mateo County, for example, owners and operators applying for a permit must
complete a number of requirements, including conducting a precision test,
undergoing an inspection by the county, and installing leak detection
equipment. All UST systems in the State require permits for operation, and
any tank system that does not pass its county's requirements is taken out of
service.
Self-certification. States may also reduce the need for extensive
inspections by allowing some owners and operators to certify that they are in
compliance. Such self-certification programs have been used in the
Occupational Safety and Health Administration for large, independent business
chains. In these programs, companies, that demonstrate an understanding of the
regulations and a good compliance record are given the freedom to self-inspect
and submit results to the implementing agency. (This would reduce the number
and frequency of inspections that the agency would have to conduct at these
facilities.)
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OSWER Directive 9650.11
Effective use of such a program would require that the State have
'significant penalties for false certification. Qlearly, the State would also
need to conduct additional inspections at facilities that have not
demonstrated a good compliance record. It would be up to the State to
determine whether random inspection of self-certifying facilities was
necessary, although it seems reasonable to expect that periodic random
inspections would be conducted at all self-certifying facilities, not just at
those facilities with a demonstrated record of poor compliance. Random
inspections are customarily conducted as part of many State UST programs.'
Although this method would not be sufficient for determining the compliance
status of the entire regulated community, its use for a certain portion of the
UST population may enable a State to reduce some of its resource needs for
inspections.
Compliance Outreach. The effectiveness of reporting by the regulated
community can be enhanced by developing a compliance outreach program. Given
the large size of the regulated universe and the limited resources available
for compliance monitoring and inspections, the State UST programs will have to
rely heavily on voluntary compliance, and outreach is an effective tool for
encouraging compliance. States have developed a number of methods to inform
the regulated community of its obligations under the State UST program. A
common means of reaching the regulated community is to identify certain
industry groups as representative of the regulated community and then develop
relationships with these groups. For example, Minnesota and Texas have
established ongoing communication with the Independent Service Station
Organization and the Texas Oil Marketer's Association, respectively.
To reach a wider audience, some State programs use standard
communication techniques, such as press releases, public service
announcements, and mass mailings. The Maryland Department of Environment has
established an advisory committee comprising members from local government,
industry, and community groups to aid in communicating UST issues and to
encourage the exchange of ideas. The State of Oregon sends a newsletter
"Tankline" to all persons in the State who may be connected to the UST
community. This newsletter discusses State regulations along with UST
technology and practices.
3. Inspections.
Although the final State program approval regulations (§281.40(e))
require States to develop an inspection program, States should be aware that
the requirements do not mandate a State to develop "traditional" programs that
have specific inspection schedules and a required number of inspections and
subsequent enforcement actions. EPA realizes that resource constraints in
most States will make it difficult for them to develop the traditional "bean
counting" inspection program. Currently, some States do not have sufficient
resources to do much more than conduct inspections in response to potential or
known violations or releases. Although these States are expected to develop
the capability to conduct systematic inspections to detect non-compliance, EPA
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recognizes that alternative approaches to gathering inspection data may help
meet the overall performance goal of ensuring compliance. Several alternative
approaches to an inspection program are described below.
Targeted Inspections. One alternative to periodic, random inspections
is to develop inspection priorities, taking into account factors such as: (1)
the nature and magnitude of the threat; (2) the availability of resources for
preventative action; and (3) the results of past leak incidents. For example,
some States have targeted their inspections to groups of UST systems that
potentially pose greater risk to human health and the environment. Examples
of such UST populations include: aging UST systems, which have a greater
chance of leaking; UST systems located near sources of drinking water or
ground water; and UST systems whose owners or operators have a history of
significant violations.
Alternatively, some States have targeted UST-related activities, such as
installation or closure, for inspections. For example, in Rhode Island, an
inspector must, be present at every UST system closure to ensure that no
releases have occurred. In San Diego County, California, the UST staff has
inspected all new UST system installations and UST system removals since the
program was established in 1984. In these types of targeted inspections,
compliance is driven by the certainty that at least during one critical event,
all UST systems will be examined.
Alternative Inspectors. States can also supplement their basic
inspection programs by delegating certain compliance monitoring
responsibilities to other governmental entities or to private parties through
certification. A number of governmental programs, ranging from fire safety to
consumer affairs, require the presence of governmental personnel at UST system
sites. Some State and local agencies have incorporated their inspection needs
into the inspection programs of these agencies. Specifically, many agencies
rely on fire marshals or plumbing inspectors to conduct technical UST
inspections when at a facility.
Several States delegate elements of their UST inspections to private
parties. New York and Maine, for example, certify UST installers who then
must verify that UST system installations meet State requirements. Florida
has set up a licensing program for UST installers, testers, and removers.
Rhode Island certifies the tank testing procedure developed by companies
providing that service, and gives the testing company the responsibility for
approving their testers. These approaches reduce the need for the presence of
a State inspector at each UST system installation or testing event. Thus,
these States can limit their direct involvement to follow-up inspections and
possible enforcement actions if an UST system fails the test.
4. Public Reporting.
Under the Federal requirements for adequate enforcement (§281.40(f)),
States must encourage the public to report violations and must provide the
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public with information about reporting procedures. In addition to the
compliance outreach procedures for the regulated community described above,
States are encouraged to develop basic outreach procedures designed to reach
the general public. However, this requirement does not mandate States to
develop comprehensive outreach programs. Instead, procedures for encouraging
communication with the public may be as simple as providing a telephone "hot-
line" service for citizens to report observations and suspected violations.
Some States use mechanisms such as public notices, newspaper articles, press
releases, and mass mailings to inform the public about the UST program. In
particular, publicity that focuses on the State's enforcement response to a
particular violation may draw public attention to the program. (Publicity of
enforcement actions is described in Part C of this chapter).
5. Data Maintenance.
The final State program approval regulations for adequate enforcement
(§281.40(g)) require States to develop procedures for maintaining the data
collected through inspections and record reviews so that the implementing
agency can monitor over time the compliance status of the regulated community.
Any such compilation of compliance data must be made available to EPA upon
request. This requirement is based on Section 9002 of Subtitle I, which
mandates the establishment of State inventories, and emphasizes the necessity
of such inventories for effective compliance monitoring.
The Agency intends to limit these requests as much as possible and will
negotiate specific reporting requirements with the States as part of the
annual State grant process.
G. Procedures for Enforcement Response
The final State program approval regulations require State agencies to
have certain legal authorities for enforcement. The specific requirements and
guidance for these enforcement authorities were addressed in Chapter 4 on the
Attorney General's statement. However, in order to receive program approval,
States must also demonstrate that they have enforcement response procedures
for exercising these legal authorities. The purpose of enforcement response
is to take action against violators, bring them into compliance, and deter
other violators. Although the requirements for adequate enforcement do not
provide specific details on the requirements for enforcement procedures,
§§281.40(d) and (e) (see below) require that States have procedures for
enforcing against noncompliance. EPA will evaluate the adequacy of a State's
enforcement response procedures and their implementation as a whole.
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Enforcement Response (§281.40)
State programs must have procedures for receipt, evaluation,
retention, and investigation of records and reports required of
owners or operators and must provide for enforcement of failure
to submit these records and reports.
State programs must have inspection procedures to determine,
independent of information supplied by regulated persons,
compliance with program requirements, and must provide for
enforcement of failure to comply with the program requirements .
States must maintain a program for systematic inspections of
facilities subject to regulations in a manner designed to
determine compliance or non-compliance, to verify accuracy of
information submitted by owners or operators or regulated USTs,
and to verify adequacy of methods used by owners or operators
in developing that information.
When inspections are conducted, samples taken, or other
information gathered, these procedures must be conducted
in a manner (for example, using proper "chain of custody"
procedures) that will produce evidence admissible in an
enforcement proceeding, or in court.
States seeking program approval are not restricted to "traditional"
formal enforcement programs, but instead may prefer to use a combination of
formal and informal enforcement techniques. Formal enforcement is considered
to include any actions taken under the authority contained in a statute, such
as issuing a formal notice of violation or compliance order. In general, two
types of compliance orders can be levied: administrative orders and judicial
orders, both of which may have accompanying civil penalties. In States that
do not have administrative order authority, or where the order is not heeded
by the owner or operator, judicial orders and civil penalties typically are
sought. Informal enforcement programs include any other actions taken to
achieve compliance, such as the issuance of warning letters or undertaking
other means of encouraging voluntary compliance.
Although formal enforcement techniques are necessary for an effective
enforcement program, EPA recognizes that it may not be reasonable or
appropriate for State agencies to carry out formal enforcement responses in
all situations. States may often encounter violations that are not
significant enough to require formal orders and high penalties. In addition,
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States may lack the legal staff or funds necessary to carry out such responses
in all situations. Thus, a broad range of enforcement tools may be necessary.
By having a variety of formal and informal enforcement procedures, a
State can determine which type of response is most appropriate in a particular
situation, depending upon the threat to human health or the environment, the
willingness of the violator to cooperate, or a violator's history of
noncompliance. A State may want to develop procedures for issuing some of the
more formal orders (for example, notice of violation) as an informal response
when violations are minor and compliance is expected. For example, in cases
of minor violations, a State inspector may issue a simple warning notice or
on-site complaint, informing the owner or operator of the requirements and
specifying actions necessary to bring the UST system(s) into compliance.
Warning notices and on-site complaints may describe potential penalties, but
States typically do not have administrative authority to assess a penalty
through such notices. However, the threat of more stringent enforcement
actions and penalties remains an important factor in the success of using
informal notices. The following checklists, one for compliance monitoring
procedures and one for enforcement response procedures, outline some of the
procedures States may choose to develop when putting together an UST program.
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COMPLIANCE MONITORING CHECKLIST
States are required to have procedures to determine compliance with regulatory requirements
and to investigate suspected violations. These procedures will vary greatly among the States but the
following checklist provides a brief list of procedures that all States should develop.
FACILITY NOTIFICATION AND IDENTIFICATION
LJ Procedures for initial notification of ownership and operation of USTs.
LJ Procedures for notification of changes in the number and type of USTs, changes in
the use of the USTs, and changes in ownership and operation of the USTs.
RECORD REVIEW
LJ Procedures to request, receive, evaluate, retain, and investigate records and reports
from owners and operators.
LJ Procedures to enforce against failure to respond to such requests for information.
INSPECTIONS
LJ Systematic methods for conducting facility inspections.
LJ Appropriate methods to ensure that samples are taken and other information is
gathered in a manner that will ensure that such data will be admissible evidence in an
enforcement proceeding or in court, e.g., "chain of custody" procedures.
LJ Procedures to ensure that appropriate follow-up actions are taken for violations
discovered as a result of inspections.
PUBLIC REPORTING
a
A method for receiving public reports of suspected violations and procedures to
ensure that such reports are investigated and that appropriate follow-up action is
taken against confirmed violations.
DATA MAINTENANCE
a
Procedures for maintaining information collected through record reviews, inspections,
and public reports to ensure that facility compliance status can be tracked over time.
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ENFORCEMENT RESPONSE CHECKLIST
States are required to have procedures to take appropriate enforcement action against known
violations of UST regulatory requirements. Once again, these procedures will vary greatly among the
States but the following checklist provides a brief list of the procedures that the States may choose to
develop. [NOTE: The procedures listed below are not mandatory but States are encouraged to have
some variation thereof.]
INFORMAL ENFORCEMENT RESPONSE
LJ Procedures for initially notifying an owner or operator of a violation (e.g., issuing a
notice of violation or warning letter).
LJ Procedures to implement a self-certification program coupled with warning letters* to
non-respondents.
LJ A program to encourage voluntary compliance through outreach efforts.
FORMAL ENFORCEMENT RESPONSE
LJ Procedures for inspectors to issue field citations on site, including:
LJ Procedures to identify violations appropriate for field citation use;
LJ Procedures to ensure that any appeals are addressed in an expedited
manner.
LJ Procedures to issue administrative compliance orders, including:
LJ Methods to calculate and assess appropriate penalties.
LJ Procedures to ensure speedy administrative hearings on these orders.
LJ Strategy to refer cases to and coordinate with the Attorney General on judicial
compliance orders, including:
LJ Methods to calculate and assess appropriate penalties.
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Examples of some informal and formal enforcement techniques that may be
appropriate for use in UST programs are discussed in detail below.
1. Informal Means of Encouraging Voluntary Compliance.
The type of enforcement response used by a State generally will depend
upon the cooperation of the violator and the severity of the violation.
Unless a violation is significant or the violator is recalcitrant, States may
prefer to negotiate informally with the violator as a first step in obtaining
compliance. This is less resource-intensive than more formal actions and
encourages a cooperative relationship on the part of the regulated community.
Some States have developed procedures for notifying violators and
encouraging their cooperation in correcting a violation without having to
obtain compliance orders. Such notices are typically used when the violation
appears to have resulted from the violator's unfamiliarity with the
regulations. Most of these informal notices, such as Maryland's "Warning
Notice" and Rhode Island's "Letter of Noncompliance," require the violator to
bring the UST system(s) into compliance. The notice may indicate the
potential penalty if actions are not taken, but generally does not have the
force of law for imposing penalties.
Several States, including Michigan, Oklahoma, Hawaii, Arizona and
Nevada, have used an innovative approach to enforcement which, by notifying
the regulated community of its regulatory obligations and putting the burden
on owners and operators for self-certifying compliance, encourages voluntary
compliance with a minimum expenditure of resources. The States begin by
sorting through their databases to identify owners and operators who should be
in compliance with release detection requirements. Through a mass mailing,
owners and operators are notified of their obligations and appropriate means
for achieving compliance, and provided with a form on which the owner
certifies the method used to achieve compliance. Non-responders are sent
increasingly severe follow-up letters which have the effect of encouraging
larger and larger numbers of the compliance group targeted to come into
compliance or close tanks. Michigan has followed-up on this informal approach
with formal enforcement, by inspecting non-responders and issuing compliance
orders, while Arizona has continued with the mass mailing approach by sending
administrative orders to recalcitrant violators.
A State may also take advantage of a permit program to convince
violators to remedy major violations. As mentioned previously, the
implementing agency in any California county can threaten to revoke permits or
threaten to remove an UST system completely if major or repeated violations
occur. Other States enforce their permit requirements through commercial
vendors. In Iowa and Florida, for example, it is illegal for fuel vendors to
fill an unregistered UST system. UST programs that encourage participation of
local agencies such as fire departments may be able to employ the enforcement
authorities of that agency to encourage compliance. For example, in Baltimore
County, Maryland, the enforcement responses are tied to building permits. An
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UST system found to be leaking is considered to have violated the building
permit, and the permit is subsequently revoked. Without a permit, the UST
system cannot be operated, and its contents must be pumped out until a
replacement permit is obtained (after corrective action).
For violations or releases that require cleanups, States may develop
techniques that encourage the owner or operator to take responsibility for
remedying releases. For example, Minnesota has a program that encourages
voluntary cleanup from responsible parties without having to use traditional
enforcement techniques. To provide an incentive, the State has a trust fund
that reimburses costs to responsible parties who are in compliance when a
release is discovered, as long as they cooperate with the State in achieving
an agreed-upon level of cleanup. The "hammer" for encouraging voluntary
compliance is an aggressive State cleanup and cost recovery program
supplemented by penalties for unresponsive owners and operators. Florida has
implemented a similar program that provides amnesty from cleanup costs as long
as the owners have complied with certain requirements and have been
cooperative. In addition to cost recovery programs that provide reimbursement
or amnesty to cooperative owners or operators, some States provide no-cost
oversight of corrective action if the responsible party cooperates.
2. Formal Enforcement Responses.
For an effective program, a State must have procedures for carrying out
formal enforcement actions in certain situations. These enforcement actions
may be needed to compel compliance with regulatory requirements, to compel
corrective action, or to compel cost recovery. Formal enforcement responses
generally include authority to issue civil administrative compliance orders or
penalties. Although administrative authority is not required for program
approval, EPA encourages States to obtain such authority (including penalty
authority) as a cost-effective enforcement mechanism. In addition, judicial
authorities, which are required for program approval, will be needed to
address certain violations (e.g., a certain degree of environmental harm), and
to back up other enforcement responses if compliance has not been achieved.
States must also have adequate procedures for implementation of judicial
authorities.
States can undertake to make "traditional" authorities an effective part
of their UST program. For example, a State may want to develop streamlined
administrative hearing procedures for minor violations, or to develop judicial
case strategies or priorities with the Attorney General. Since these
traditional approaches may be resource-intensive,,States may wish to consider
developing expedited formal enforcement procedures such as field citations and
other alternative means of obtaining compliance. Regardless of the procedures
chosen by the State, its enforcement program considered as a whole needs to
meet the requirement of adequate enforcement of compliance.
In general, field citations are modified administrative orders issued on
site by inspectors when violations are discovered. In general, a field
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citation can be any of a number of legal entities, including a notice of
violation, an administrative order, a short-form settlement agreement, or a
summons, but in each case the citation is issued on site by an inspector when
a. clear-cut violation is discovered. Using the citations, the inspector
typically assesses a low to moderate penalty at the site and requires that
violators correct the violation within a short time period. Appeal procedures
can also be expedited, usually using informal conferences or specially-
appointed administrative law judges, to review citations. New Mexico uses a
two-pronged approach in its field citation program: non-correctable violations
are assessed immediate penalties on-site, whereas, for correctable violations,
the citation requires that the violation be addressed within thirty days and a
certificate of compliance submitted or a compliance order and penalty will be
issued. For States that have the necessary statutory authority, cease-and-
desist orders are also an effective and efficient alternative to
administrative orders for compelling compliance. Such orders may require
violators to cease operation of their UST systems, may revoke the operating
permit, or may require that tanks be pumped until empty, or closed, if
necessary. These cease-and-desist orders do not necessarily include a
penalty, but are effective in reducing the environmental threat caused by the
violation. The advantage of these less formal procedures is that they allow
for tailored on-site settlement of the violation without requiring extensive
administrative resources.
3. Enforcement Outreach.
As a supplement to compliance outreach, enforcement outreach can be a
useful tool for encouraging compliance in any enforcement program. States can
encourage compliance by publicizing enforcement responses. For example, the
implementing agency could publicize violations in local or national
newspapers. Currently, some State programs use press releases of patterns of
violations to encourage marketers to assess their compliance status. For
example, Rhode Island has had considerable success in influencing compliance
efforts through adverse publicity stinrulated by press releases accompanying
violations. Alabama required a violator to place a statement in the Alabama
Oilmen's Newsletter in which he admitted that he had violated the regulations
and was taking actions to return to compliance.
If a State finds a pattern of violations among a chain of outlets of one
owner or operator, the State could require that violator to initiate a self-
auditing program in lieu of a highly-publicized, intensive State inspection.
This type of enforcement outreach has been used in numerous enforcement
settlements under the Toxic Substances Control Act, the Clean Air Act, and the
Resource Conservation and Recovery Act.
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CHAPTER 6. MEMORANDUM OF AGREEMENT
A. Explanation
The MOA specifies the roles and responsibilities of EPA and the State
after approval of the State's program to operate in lieu of the Federal
program. The EPA Regional Office (the Region) will discuss the details of
particular components with the individual State to tailor the Agreement to the
specific needs and aspects of the State program. The MOA is a vehicle for
communicating the respective roles of the State and EPA, and clearly spelling
out the purpose and limitations of that role.
1. Who Signs.
Generally, the MOA is negotiated between the State Director and the
Regional Administrator and is drafted either by the State or the Region.
(Each Region may decide this question for itself.) In cases in which two or
more State agencies share considerable responsibilities for the functions
described in the MOA, the director of the lead agency should sign the MOA with
EPA. The lead agency may execute a Memorandum of Understanding (MOU) with the
other implementing agencies. The MOA describes the coordination and
implementation of those provisions of the MOA that concern more than one State
agency. Agreements with local units of government need not be included in the
MOA.
2. Federal/State Partnership.
EPA will maintain communication and provide support in order to assist
the State in achieving its program objectives. The Regional role in this
partnership includes: providing information and guidance regarding the Federal
UST regulations; communicating national and Regional priorities; providing
information on other successful State programs; and collecting information to
assess the nation's progress in the implementation of the underground storage
tank program. EPA must maintain reliable national data on underground storage
tanks which will be used to advise the President, the Congress, and the public
on the status of the Subtitle I UST program, and to support EPA's regulatory
development efforts. EPA will first seek to obtain this data from the States
when it decides what information is needed.
Perhaps the most important function described above is to provide
technical guidance to the State, including information on alternative and
effective UST technologies or corrective action approaches used in other
States. The Regions will inform Headquarters of specific State needs as well.
Headquarters will assemble this information for use in updating national
program policies and priorities.
Approved States have primary responsibility for implementing and
enforcing the UST program. They will work with the Regions in determining
specific State priorities and goals on an annual basis under the grant
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negotiation process. The States are responsible for collecting and reporting
information regarding the size of their UST population and compliance
monitoring data. States also will provide input to the Regions with regard to
further development of national program policy and future regulatory
development.
3. State Program Appraisal Process.
OUST's program appraisal process has three objectives:
Identify the levels of performance in key program areas;
Assist and support States in improving their
performance where needed; and
Disseminate information on successful approaches to
other States.
Regional offices, in particular the UST Program Managers, will have the
primary responsibility for balancing the service and evaluation functions that
are part of this process. They will use reporting information, on-site
program reviews, service visits, self appraisals by State,s and other tools to
determine the most pressing needs of the States for improvement. and
assistance.. -The Regional UST program staff work with other offices within the
Region (for example, Grants, Financial Management, and Regional Counsel) to
appraise performance in relevant program areas and to provide technical, legal
and other assistance to the States. State visits and reviews by other
Regional office staff should be coordinated with UST program reviews whenever
possible in order to minimize the disruption of normal program activities in
the States. At a minimum, UST Program Managers and the States should know of
such visits far enough in advance to allow for adequate preparation by the
States.
OUST's program appraisal process recognizes that State programs will be
using a variety of approaches to meet the Federal program objectives.
Therefore, expectations regarding State performance negotiated under grant
workplans and cooperative agreements will be tailored as much as possible to
reflect State-specific program implementation strategies. Reporting data on
UST system ownership, releases, and clean-up action contributes to a
comprehensive picture on the implementation of the UST program. In addition,
such data may assist EPA in further rulemaking efforts. The appraisal process
will rely on quantitative as well as qualitative assessments. The Regions
will negotiate specific reporting requirements with each of their States and
incorporate those requirements into the State grant workplans and cooperative
agreements.
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4. Compliance Monitoring and Enforcement.
State programs operate "in lieu of" the Federal government; consequently
approved States have primary enforcement responsibility in the State. When
requested, the Regions will be able to assist the States by providing legal
and technical expertise, compliance outreach, and formal enforcement of the
State's requirements.
The criteria for "adequate enforcement" have been designed to reflect
the significant differences that may exist in the UST universe across the
States. The goals of the UST enforcement program reflect an emphasis on
promoting compliance within the UST universe.
The MOA is an appropriate vehicle for establishing the relationship
between EPA and the State with respect to the State's enforcement program.
The agreement provides performance expectations for the State to use as goals
for achievements. The agreement enables the Region to evaluate the success of
State enforcement programs without relying solely on more traditional measures
of performance, for example, the number of enforcement actions taken in a
given year.
One of the most important uses of the MOA is as a guarantee that the
program will be effectively implemented by the State. First, it provides for
Federal enforcement of the State program requirements if State enforcement is
deemed insufficient. Federal enforcement of the State program is not likely
to be an issue for most States, however, because the MOA is also used in
performance reviews of the State program, usually conducted at mid-year and
the end of the year. The MOA itself is also customarily reviewed at this time
and decisions are made regarding any changes that need to be made. Because
receipt of Federal grant money is contingent upon adherence to the terms of
the MOA, there are substantial incentives for the State to comply. Thus, the
MOA is an agreement that assesses where the State program is, where it is
going, and, through mid- and end-of-year reviews, ensures that its terms will
be met because of the possibility that States not in compliance may lose their
Federal UST program grant.
By the same token, however, the MOA can be a vehicle for States to
demonstrate their commitment to the UST program by fully complying with its
terms, or creatively using it to compensate for weaknesses in their programs,
which are approvable despite the weaknesses. Such use of the MOA can help
Regional UST staff feel more comfortable approving such programs, as they can
be assured that program development will be an ongoing activity in the State
and the State program will eventually be as effective as the Federal program.
See paragraph 7 below for a more detailed discussion of creative use of the
MOA.
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5. Scope of the UST Program.
To receive program approval, a State program must include within its
jurisdiction all of the categories of UST systems that are addressed within
the scope of the Federal program for either petroleum tanks or hazardous
substance tanks or both. While it is not encouraged, the Regions may in a few
exceptional cases, approve a State program where the State does not have
immediate jurisdiction over all categories of tanks. The Agreement will also
spell out EPA's interim enforcement responsibilities with regard to those
unregulated segments of the UST universe.
6. Variances.
State programs using variances may be approved under certain conditions.
The objectives laid out in the State Program Approval Rule do not allow
approval of State programs with standards less stringent than those at the
Federal level. Ground-water area variances (for example, those that allow
less stringent release detection in remote or low groundwater table areas) are
prohibited, as well as any other variance that affords less stringent
protection of human health and the environment. For example, the rule does
not allow approval of State programs that allow less stringent requirements
(such as less frequent release detection) in ground-water areas that are
described or classified as less vulnerable, whether these variances are
applied on a case-by-case or class basis.
A State program with a variance procedure may be approved if the State's
eligibility criteria and procedures for reviewing site-specific or equivalent
technology-type variances requests will result in no less stringent
prevention, detection, and responses to releases. The State must not have any
provisions in its program that allow less stringent variances to be granted.
Furthermore, in the MOA, the State must agree to issue variances only in a
manner that is no less stringent than the Federal program in protecting human
health and the environment. More discussion of the general subject of
variances and EPA's response to public comments on this aspect of the rule can
be found in the preamble to the State Program Approval Rule (53 FR 37223).
Although no State program that includes a risk-based variance procedure
can be approved (for example, a variance procedure that allows less stringent
requirements in "less risky" situations), the Agency did approve the use of
technology-based variances, and may approve State programs with such
variances. Two examples of technology-based variances may be helpful. First,
a State that allows owners and operators to use an alternative technology (for
example, different release detection methods) may be no less stringent if each
particular method can be shown to achieve the same level of performance as the
methods allowed under the Federal program. The State may identify the
approved methods in regulation or the State may decide instead simply to make
provisions (in the form of a variance) to allow for the use of alternatives as
they are developed in the future and determined by the State to perform as
well as the Federally-allowed methods. This variance could allow the use of
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any particular method in accordance with the conditions that are necessary to
ensure that the requisite level of performance of that method is attained.
A second type of variance is the site-specific variance, where the State
approves a variance from its regulations for a particular UST system based on
site-specific circumstances. An instance in which a State could choose to
allow such variances that would be no less stringent, for example, would be in
cases where the State has determined that the nature of the soil at a
particular site or type of site is sufficiently non-corrosive, such that the
bare steel tanks or piping at that site will not leak due to corrosion during
it's operating life. As stated above, the terms of agreement on how variances
will be issued by the State must be specified in the MOA.
7. Creative Use of the Memorandum of Agreement
Regional UST staff may be reluctant to approve State programs that
diverge in some way from the Federal structure or that may appear to have
limited staffing or funding. This need not be the case, however; through
creative use of the Memorandum of Agreement between the Region and State,
questions about the State program which might have led to doubts about its
approvability may be sufficiently resolved so that approval can be granted.
For example, consider a State with a very small staff or limited budget
that is seeking program approval. Both the Region and State want to see the
State program approved, but the Region is reluctant to approve what may turn
out to be a "paper" program that the State cannot enforce. Upon close
scrutiny of the State program, however, the Region sees that the State is
utilizing a number of innovative approaches to program implementation,
including working closely with the Fire Marshal's office, Building Inspector,
and Board of Health to ensure that it receives any new information that may
affect the UST program; actively involving local entities such as industry
representatives, community groups, local media, and government agencies such
as the fire department in the UST program; and delivering presentations at oil
industry and trade association meetings.
Such activities help compensate for the lack of staff and funding, and
indicate that the State may indeed have the capabilities to run an effective
UST program. In such cases, allowances for the lack of program resources can
be made within the MOA and the program can be approved, as long as the Region
is confident that it can work with the State to further develop program
capabilities and provide support for continual improvement. States that
consciously work to make the most .of their limited resources are often able to
implement a program comparable to that of a less diligent State with
significantly more resources. The MOA may also be used to specify that the
State shall seek additional resources over the next several years. The signed
agreement should provide significant leverage for the State during legislative
sessions.
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Specifically, the MOA could be structured so that the State would be
required to submit information on statewide compliance status, with the
stipulation that if it is deemed unsatisfactory, the Region would be justified
in stepping in to enforce compliance with the requirements. The MOA could
also outline in some detail what form State program development would take,
clearly defining the respective roles of the State and Region. The MOA could
also outline what form continuing EPA oversight of the State program would
take. In each case, the MOA could set forth provisions that increase the
likelihood that the State program can be effectively implemented, despite the
areas in which it diverges from or is less explicit than the Federal program,
provided, of course, that the State's requirements are no less stringent than
the Federal performance objectives.
The Region may choose to use the MOA to spell out specific activities
expected of States upon receipt of program approval. Some examples of such
activities are provided below. It is important that Regions and States
recognize the flexibility of the MOA and utilize that flexibility to the
fullest extent possible, thus maximizing the benefits to their programs of
"customized" MOAs.
A promise from the State agency to attempt to obtain increased
staffing and conduct other program development activities;
A commitment from the State to develop guidance documents to
clarify the intent of regulations;
A promise that, where the State regulations allow variances as
part of the program, such variances will not be granted unless
they are implemented in a no less stringent manner and result in a
no less stringent program;
An explanation of implementation issues; specifically, an outline
of when and how they intend to develop or clarify guidance
materials to improve compliance status, or a specification of how
a particular portion of the program could be implemented, e.g.,
the State fund; or
A discussion of general program development issues. For example,
the agreement could specify that the State will develop an
automated data management system and pledge EPA support to assist
in adapting the UST data management system to the State's specific
needs. To date, most MOAs submitted by States have discussed what
obligations the State has to EPA; States could use the MOA to
include what obligations EPA has to the State in program
implementation and development as well, especially in those
programs where assistance is most needed.
The MOA can also be used to require States to report any program changes
that may affect the approved Subtitle I program. EPA can then review those
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changes and determine whether the State must submit an application for program
revision.
The structure of the sample MOA which follows this section should not be
viewed as the only one allowable, but rather as a baseline upon which States
and Regions can build. Writing the MOA should not be seen as a mere formality
or paperwork exercise, but a chance to use this adaptable State Program
Approval application component to promote flexibility in the structure of
State programs. The MOA can be structured in such a way to help gain approval
for programs that differ slightly from the Federal program or have minor
weaknesses that can be corrected over time, as long as there are explicit
pledges from both the State and Region to continuously work to solve existing
problems and further develop a fully capable State UST program.
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B. Sample Memorandum of Agreement:
MEMORANDUM OF AGREEMENT
BETWEEN
The State of New Columbia
and
The United States Environmental Protection Agency
Region III
I. GENERAL
This Memorandum of Agreement (hereinafter "Agreement") establishes policies,
responsibilities, and procedures pursuant to 40 CFR 281 for the State of New
Columbia's Underground Storage Tank Program (hereinafter "State Program")
approved under Section 9004 of Subtitle I of the Resource Conservation and
Recovery Act (hereinafter "RCRA" or "the Act") of 1976 (Public Law 98-616, USC
§6901 et seq.). as amended, and the United States Environmental Protection
Agency (hereinafter "EPA") Regional office for Region III. This Agreement
further sets forth the manner in which the State and EPA will coordinate in
the State's administration of the State program.
This Agreement is entered into by the Director [or other title as appropriate]
of [State Agency] (hereinafter "Director" or "the State") and the
Regional Administrator, EPA Region III (hereinafter "Regional Administrator"
or "EPA"). [Where State program responsibility is shared among two or more
agencies, each of the agencies is to be identified here as a party of the
Agreement and the Agreement must identify which of the agencies is responsible
for each provision of the Agreement.]
For administrative purposes, the [State Agency! will serve as lead
agency to simplify coordination and communication between the State and EPA.
[This provision need not be included in the MOA where there is only one
responsible State agency.]
Nothing in this Agreement shall be construed to restrict in any way EPA's
authority to fulfill its oversight and enforcement responsibilities under
Subtitle I of RCRA. Nothing in this Agreement shall be construed to
contravene any provision of 40 CFR Parts 280 and 281.
The parties will review the Agreement jointly at least once a year. This
Agreement may be modified upon the initiative of either party in order to
ensure consistency with State program modifications made or for other purposes
mutually agreed upon. Any revisions or modifications must be in writing and
must be signed by the State and the Regional Administrator.
This Agreement will remain in effect until such time as State program approval
is withdrawn by or is voluntarily transferred to EPA according to the criteria
and procedures established in 40 CFR Part 281.60 and 281.61.
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This Agreement shall be executed by the State and the Regional Administrator
and shall become effective at the time the State's approval takes effect,
which shall be the effective date of the approval as specified in the Federal
Register notice announcing EPA's final decision to grant approval to the
State. ' s
II. POLICY STATEMENT
Each of the parties to this Agreement is responsible for ensuring that its
obligations under Subtitle I of RCRA are met. Upon award of final approval by
EPA, the State assumes primary responsibility for implementing the Subtitle I
Underground Storage Tank Program within its boundaries. EPA retains its
responsibility to ensure full and faithful execution of the requirements of
Subtitle I of RCRA, including direct implementation in the event the State is
unwilling or unable to act. The State and the Regional Administrator agree to
maintain a high level of cooperation and coordination between their respective
staffs in a partnership to assure successful and effective administration of
the State program.
[Insert discussion on Regional and State roles and responsibilities with
regard to partial approved State programs. Provide details on how the
petroleum or hazardous substance UST systems will be managed in the approved
State.]
EPA assumes a management role upon granting [interim] final approval-to the
State. EPA will review the State program in order to assist the State in
implementing its program, to allow EPA to report to the President, the
Congress, and the public on the achievements of the underground storage tank
program, and to encourage the State and.EPA to agree on desirable technical
support and targets for joint efforts to prevent and mitigate environmental
problems associated with improper management of underground storage tanks.
Management will be accomplished by EPA through written reporting requirements,
compliance and enforcement overview, and annual review of the State's program.
III. STATE PROGRAM REVIEW
The Regional Administrator will .assess the State administration and
enforcement of the underground storage tank program on a continuing basis for
stringency with Subtitle I requirements, with this Agreement, and with all
applicable Federal requirements and policies and for adequacy of enforcement.
This assessment will be accomplished by EPA review of information submitted by
the State in accordance with this Agreement and annual review of State program
activities. The Regional Administrator may also consider, as part of this
regular assessment, written comments about the State's program administration
and enforcement that are received from regulated persons, the public, and
Federal, State, and local agencies. Copies of any such comments received by
the Regional Administrator will be provided to the State.
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To ensure effective program review, the State agrees to allow EPA access to
all files and other information requested by the Regional Administrator and
deemed necessary for reviewing State program administration and enforcement.
Review of [State agency] files may be scheduled at quarterly intervals.
Program review meetings between the State and the Regional Administrator or
their assignees will be scheduled at reasonable intervals not less than
annually to review specific operating procedures and schedules, to resolve
problems and to discuss mutual program concerns. These meetings will be
scheduled at least 15 days in advance unless agreed to differently. A
tentative agenda for the meeting will be prepared by EPA.
IV. INFORMATION SHARING
A.
General
As the national underground storage tank program matures, the respective roles
and responsibilities in this State/Federal partnership will become more clear.
As the respective information needs of the State and EPA evolve, changes to
this section of the Agreement may be appropriate. During the annual review of
this agreement, the State and Regional Administrator will carefully examine
the following information sharing provisions for necessary revisions.
B.
EPA
1.
2.
[3.
EPA will keep the State informed of the content and
meaning of Federal statutes, regulations, guidelines,
standards, policy decisions, directives, and any other
factors that affect the State program. EPA will also
provide general technical guidance to the State. EPA
will share with the States any national reports
developed by EPA from the data submitted through State
reporting requirements.
EPA will make available to the State other relevant
information as requested that the State needs to
implement its approved program.
Add specific language here regarding actions EPA agrees to pursue
for the State in order for the State to accomplish its program
development and implementation activities.]
G.
State
1. The State agrees to inform the Regional Administrator
of any proposed or adopted program changes that would
affect the State's ability to implement the approved
program. Program changes of concern include
modification of the State's legal authorities (for
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OSWER Directive 9650.11
example, statutes, regulations, and judicial or
legislative actions affecting those authorities),
modifications of memoranda of agreement or
understanding with other agencies, and modifications
of resource levels (for example, available or budgeted
personnel and funds). The State recognizes that
program revisions must be made in accordance with the
provisions of 40 CFR Part 281.
2. The State will provide compliance monitoring and
enforcement information to the Regional Administrator,
as specified in the annual grant guidance, on a
quarterly basis. The State agrees to provide EPA with
copies of reports on data resulting from any
compliance inspection and subsequent enforcement
actions, if EPA requests such copies. :»
3. [Insert specific language here regarding specific program changes
the State agrees to seek or adopt in order to improve its
effectiveness; e.g., develop an automated data management system.]
D. National Data
EPA maintains certain national data on underground, storage tanks. This data
is used to report to the President, the Congress, and the public on the
achievements of the underground storage tank program and to support EPA's
regulatory development efforts. Whenever EPA determines that it needs to
obtain certain information, EPA will first seek to obtain this information
from the States. The State agrees to supply the Regional Administrator with
this information if readily available and as resources allow. If the State is
unable to provide the information or if it is necessary to supplement the
State information, EPA may conduct a special survey or perform information
collection site visits after notifying the State. EPA will share with the
State any national reports developed by EPA as a result of such information
collection.
E. Confidentiality
Any information obtained or used in the administration of the State program
shall be available to EPA upon request without restriction. If the
information has been submitted to the State under a claim of confidentiality,
the State must submit that claim to EPA when providing the information. Any
information obtained from a State and subject to a claim of confidentiality
will be treated in accordance with the regulations in 40 CFR Part 2.
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OSWER Directive 9650.11
V. COMPLIANCE MONITORING AND ENFORCEMENT
A. EPA
Nothing in this agreement shall restrict EPA's right to inspect any
underground storage tank facility or bring enforcement action against any
person believed to be in violation of the approved State underground storage
tank program. Before conducting an inspection of a facility, the Regional
Administrator will normally give the State at least 7 days notice of the
intent to inspect. [The Regional Administrator and State may agree on a
longer period of time in order to allow the State the opportunity to conduct
the inspection.] If the State performs a compliance inspection and submits a
report and relevant data thereto within that time to EPA, no EPA inspection
will be made, unless the Regional Administrator deems the State report and
data to be inadequate. In case of an imminent hazard to human health or the
environment, the Regional Administrator may shorten or waive the notice
period.
The Regional Administrator may take enforcement action against any person
determined to be in violation of Subtitle I of RCRA in accordance with section
9006. EPA also retains its right to issue orders and bring actions under
Section 9003 (h) or 9006 of Subtitle I of RCRA and any other applicable Federal
statute. With regard to Federal enforcement, it is EPA's policy not to take
such action where a State has taken appropriate enforcement action. Before
issuing a compliance order under Section 9006, EPA will give notice to the
State.
B. State
The State agrees to carry out an effective program for monitoring the
compliance by owners and operators of facilities with applicable program
requirements. As part of this program, the State will conduct compliance
inspections and use other mechanisms to assess compliance with underground
storage tank standards, compliance schedules, and all other program
requirements.
The State agrees to develop an appropriate enforcement.response against all
persons in violation of underground storage tank standards (including
notification requirements), compliance schedules, and all other program
requirements, including violations detected by State compliance inspections.
The State will maintain procedures for receiving and ensuring proper
consideration of information about violations submitted by the public.
The State agrees to retain all records for at least 3 years unless there is an
enforcement action pending. In that case all records will be retained until
such action is resolved.
The terms set forth in this Agreement are intended solely for the purpose of
memorializing the parties' understanding of their respective roles and
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OSWER Directive 9650.11
commitments in the administration of the Underground Storage Tank Program.
They are not intended, and cannot be relied upon, to create any rights,
substantive or procedural, enforceable by any other party in litigation with
either of the parties to this agreement. The parties reserve the right to
modify this agreement in accordance with its terms without public notice.
STATE OF
AGENCY
BY:
U.S. ENVIRONMENTAL PROTECTION AGENCY
REGION
BY:
DATE:
DATE:
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OSWER Directive 9650.11
CHAPTER 7. PROGRAM DESCRIPTION
A. Introduction
This section of the application describes the scope and organization of
the State UST program and the resources that are available to run it. This
information is needed to enhance the Agency's and the public's understanding
of the State program, and to ensure that a basic program exists. EPA expects
that the information requested in these questions will rarely be used as
grounds for program approval or disapproval.
The questions covered in the Program Description are grouped into four
major categories: general information; program scope; program organization
and structure; and resource information. The first two sections request
information regarding the range of the State's jurisdiction over USTs and
whether the State program is a "partial" or "complete" program. For example,
a State may regulate an UST universe that is broader in scope than the Federal
program. (Program scope is also covered in Chapter 4 on the Attorney
General's Statement.) These questions also inquire about the extent of the
State's authority to regulate Indian lands.
The third category in the Program Description asks for information
regarding the organization and structure of any State and local implementing
agencies administering the UST program within a State. A State should
identify the major jurisdictional responsibilities, program operation roles,
and lines of communication and authority of these implementing agencies. It
should also provide an organizational chart depicting the role and
responsibility of each State agency that is involved in UST implementation.
The fourth section of the Program Description asks the State to describe
its staff and funding resources with any existing restrictions on the
utilization of either. In addition, the State should provide estimates of
various administrative and implementation costs involved in running a State
UST program.
The purpose of the Program Description is two-fold. First, the
information provided by the State in these sections will enhance EPA's and the
general public's understanding and knowledge of the content and structure of
that particular program. The overall success of a nationwide UST program
depends heavily on the sharing of such information among States in order that
they may draw from one another's experiences in developing and improving their
own programs.
Second, EPA can use this information as a yardstick by which to measure
the nature and scope of future improvements made in State UST programs. The
data that the States provide in their Program Descriptions will describe an
initial "baseline" UST program that the Agency can compare with future
programs.
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OSWER Directive 9650.11
B. Local Implementation
Although EPA gives States the primary responsibility to implement and
enforce their UST programs, the Agency strongly encourages States to involve
local agencies in this process. If a State chooses to involve local agencies
in the implementation of its UST program, it may do so in one of two possible
ways.
First, a State may request assistance from local agencies and allow them
to conduct activities under State authorities and requirements. In such
instances, States are not required to provide detailed discussion of local
agency implementation assistance in their applications. If the State program
has already been approved, the State can inform the EPA Regional Office of the
nature of the local involvement in its implementation and enforcement
programs. In summary, if local implementation activities supplement State
activities but do not replace State authorities and requirements, no formal
approval is required by EPA.
Second, a State develops an approvable program. Within the context of
an approvable program, the State may also permit local governments to develop
their own authorities and procedures as long as.those requirements are no less
stringent than the approved State program. In this case, the State agency
retains the ultimate responsibility for ensuring that the UST program
implemented in the State is no less stringent in all areas of the Federal
program and provides for adequate enforcement. In this example, EPA interacts
with the State agency regarding its approved program. It is the State's
responsibility to interact with local governments.
Chapter 2 of this Handbook provides additional discussion of the program
revision process, as does the preamble to the State Program Approval Rule (53
FR 37329).
C. Program Description Questions
1. General Questions.
a. Questions
1. Type of approval requested:
a.
b.
Final
or Interim
Complete (Petroleum & Hazardous Substances)_
or Partial (Petroleum)
or Partial (Hazardous Substances)
Does the State have any existing agreements with Indian
tribes related to jurisdiction on Indian lands for
environmental programs? If so, attach agreements and
briefly describe.
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OSWER Directive 9650.11
b. Explanation
States may choose to apply for approval of a program that regulates
either petroleum or hazardous substances or both. Approval of a partial
program authorizes a State to run the program only for the specific type of
substance indicated.
*
The information in question 2 is necessary so that EPA can identify
Indian lands in the State that it has responsibility for. EPA does not expect
States without authorities or agreements for Indian lands to secure these
authorities and agreements in order to receive approval. Pursuant to Federal
law, EPA cannot approve a State's assertion of jurisdiction over Indian lands
absent a clear and unambiguous expression of intent to confer State
jurisdiction through either a Federal statute or an applicable treaty with an
affected tribe. (Note that RCRA itself cannot be deemed such an expression of
intent.) In the absence of such a Federal statute or treaty, EPA has
exclusive jurisdiction over Indian lands.
2. Program Scope.
a. Questions
3. Describe the scope of the UST universe covered by the State
program. Include, the estimated number of petroleum UST systems,
hazardous substance UST systems, and any other information
affecting the State's regulation of this universe.
b. Explanation
By "UST universe", EPA means all of the categories or types of UST
systems including those not currently regulated under Subtitle I. The USTs
regulated under Subtitle I are a subset of the tanks in the UST universe.
What tanks are included in this subset, or the "scope" of the Federal UST
program, is defined by those tanks that are excluded from the program by
statute or through EPA regulations. In other words, if the type of tank in
question is not listed as one of those that is excluded, then it is within the
jurisdiction of the Federal program. Although deferred tanks are within the
jurisdiction of the Federal program, they are subject only to the requirements
of Subparts A (interim prohibition) and F (corrective action) of the Federal
Technical Standards. Exhibit 1 lists those UST systems that are outside the
scope of the Federal UST program.
In the program description, the State must describe .the scope of the
State UST program and provide the information requested on the estimated size
of the universe. This information does not duplicate the program scope
section required in the Attorney General's Statement. The Attorney General
certifies that the State has authority to regulate those tanks within the
scope of the State program and that it includes all those tanks regulated
under the Federal program. The program description provides a more useful
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EXHIBIT 1
UST Systems Outside the
Scope of the Federal UST Universe
Exclusions
Excluded by Congress through the definition of UST
farm USTs < 1100 gallons
heating oil USTs
septic tank systems
pipelines
impoundments, pits, ponds, and lagoons
stormwater and wastewater collection systems
flow-thru process tanks
oil and gas production facilities
USTs in underground areas
Excluded by EPA through applicability section 281.10(b)
hazardous waste USTs
wastewater treatment tanks under the Clean Water Act
equipment and machinery tanks
USTs <110 gallons
de minimus concentration USTs
emergency overflow USTs
Deferrals
Onfy Interim Prohibition and Corrective Action Standards Apply
waste water treatment tanks not under the Clean Water Act
radioactive material USTs
emergency generator USTs at nuclear power plants
airport hydrant fuel systems
field-constructed USTs
Release Detection Standards are Deferred; All Other Standards Appfy
emergency generator USTs
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OSWER Directive 9650.11
description of what the scope of the State program is in terms of its size and
categories of tanks.
In the program description, States must also identify those areas where
their UST programs are broader in scope than the Federal program. For
example, a State's statutes and laws may cover a larger regulated UST
community (for example, heating oil tanks) than is addressed by the Federal
program, and should be clearly identified in response to Question 4.
3. Organization and Structure of Program.
a. Questions
4. Indicate the lead agency for facilitating communications between
EPA and the State. If there is a separate agency for coordinating
Trust Fund activities, indicate that here also. r*.
5. Include a simple chart that describes the organizational
structure of the complete State underground storage tank
program, including all implementing agencies.
6. Describe the procedures for coordinating the State
implementing agencies.
b. Explanation
The program description should include an explanation of the
organization and structure of the State agencies with responsibility for
administering the program. The jurisdiction and responsibilities of State
implementing agencies should be delineated, appropriate procedures for
coordination set forth, and one State agency designated as a "lead agency" to
facilitate communications between EPA and the State. The identification of
the lead agency is intended to simplify coordination and communication between
the State and EPA. The "lead agency" will be the agency that other State
agencies and EPA contact when an issue concerns one or more State agencies or
when it is unclear which State agency should be contacted concerning a
particular issue.
The organizational structure chart (see sample in Exhibit 2) should .
include each agency involved in the implementation of the State UST program,
and describe the relationship and overall responsibilities of each State and
local agency that is involved in UST implementation. For example, if the
State UST program relies heavily on local programs, the State should include a
description of those organizations in questions 5 and 6.
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Sample State LIST Program Organization
Designated Lead
Agency
Fire Marshal
Program Implementation
Trust Fund Disbursement
Program
Administration
Budget
Planning
* Overhead
Health Department
Health Impacts
Exposure to Contaminants
State Program
Director
Compliance Monitoring
and Enforcement
State Program
Development
Conduct Inspections
Issue Compliance Orders
Assess Corrective Action
Needs
Develop Legislation
Develop Regulations
Apply for Authorization
Fire Department
Emergency Response
Oversee Clean ups
w
w
Water Resources
Board
Risk Assessment
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OSWER Directive 9650.11
All of the information requested in this section will be used to inform
the public about the State underground storage tank program. In addition,
this information will assist EPA in working with the States to implement their
UST programs.
4. Resource Information.
a. Questions
7. For each State implementing agency with responsibilities for
developing, regulating, enforcing, or administering the
underground storage tank program, please estimate the total dollar
budget and number of staff assigned to the underground storage
tank program.
8. Please provide an estimate of the administrative and implementa-
tion costs of the State's underground storage tank program on an
annual basis.
9. Indicate current Federal, State and local funding sources, with
approximate amounts for each. Please explain any restrictions or
limitations regarding these funding sources.
b. Explanation
If a State is formally delegating authority to local agencies, the State
should include information on local resources, staffing, and budget in the
program description. States should note that local resource estimates are
not required as a condition of approval. However, if the State uses local
agencies to help implement its program and feels that a description of those
agencies is necessary for a complete understanding of the entire UST program
organization, the State may include information regarding local government
participation in response to Questions 7, 8, and 9. The resource estimates
provided in response to the questions in this section will not be judged with
any upper or lower bounds for approval or disapproval. The next section of
this chapter discusses how EPA will conduct capabilities assessments to ensure
that State UST programs are not "paper programs."
Implementation costs are the direct costs incurred in developing and
implementing State programs. Some examples include the cost of conducting
inspections, writing field citations, issuing permits, reviewing tank test
results, working with the State legislature, preparing program approval
applications, and similar activities. Administrative costs, on the other
hand, include indirect program expenses such as the following examples:
developing a budget, providing clerical support, negotiating State grants and
cooperative agreements, testifying to State legislatures on program
accomplishments, maintaining supplies, etc.
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OSWER Directive 9650.11
D. Capabilities Assessment
As one tool to assist Regional UST personnel in developing and approving
State TJST programs, OUST, with input from Regional and State UST staff, has
developed the "State UST Program Implementation Activities" charts, or
"capabilities matrices" (see Appendix G). These matrices were developed in
response to Regional staff requests for additional guidance and tools for
determining the capabilities of and approving State programs. The purpose of
these matrices, their structure, and how they can be used is described below.
1. Purpose of the Capabilities Matrices.
The State program approval regulations establish environmental
performance objectives in key program areas. To become approved, States must
have requirements that meet these objectives in each area and they must
demonstrate the ability to undertake "adequate enforcement of those
requirements." These performance objectives are designed to give States
considerable flexibility in developing a regulatory program that meets the
specific needs of the State. Thus, unlike many other EPA programs, EPA is not
requiring that States match the Federal technical regulations line-by-line.
Many Regions have expressed concern over how to determine whether a
particular State has the capability to implement an effective program.
Regions were particularly concerned about States that meet the performance
objectives in the State program approval regulations, but might not have the
resources to make their regulations effective. For example, a. State may have
corrective action regulations that meet all the criteria for the corrective
action objective in the State program approval regulations, but not have
sufficient staff to oversee corrective actions, review corrective action
plans, or prepare information to guide responsible parties through the
corrective action process. In effect, the State may only have a "paper"
program.
The capabilities matrices are designed to: (1) assist the Regions in
working with States to develop the capabilities necessary to implement the
regulations, and (2) to assist the Regions in reviewing State applications to
determine if the State has the necessary capabilities for an effective
program. The matrices accomplish this by describing the various options a
State might use in implementing requirements in each of the key program areas.
A particular State is not required to use all or any of these specific options
in implementing a program. Instead, these options illustrate the numerous
approaches that can be taken to run an effective program.
The matrices do not establish a specific number to define what is an
approvable level of State program staffing and resources. They are designed
to assist in the development of State programs without establishing such a
number. As the matrices demonstrate, program staffing and resources can only
be determined based on what approach the State chooses to use. There is no
"minimum" number for these implementation activities. It is the
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OSWER Directive 9650.11
responsibility of the Regions to work with the States in assessing the
acceptable level of program staffing and resources.
2. Structure of the Capabilities Matrices.
A matrix has been developed for each of the State program approval
objectives including:
Upgrading Existing UST Systems,
New UST Systems and Notification,
General Operating Requirements,
Release Detection,
Release Reporting, Investigation, and Confirmation,
Release Response and Corrective Action,
Out-of-Service UST Systems and Closure, and
Financial Responsibility for USTs Containing Petroleum.
For each of these program areas, the matrix is divided into three or four
categories of implementation -activities. For example, the closure matrix is
divided into the following categories: (1) informing owners and operators of
the closure requirements, (2) validating proper'closure, and (3) taking action
against violators of the closure requirements. Under each of these categories
a number of different approaches for achieving the objective for that category
are listed. Thus, the "taking action against violators of closure
requirements" category includes such activities as issuing expedited
administrative orders, placing a lien on the property, and establishing
training programs for fire and police departments to recognize illegal closure
activities.
3. Use of rthe Capabilities Matrices.
As mentioned above, the capabilities matrices can be used in two
important ways. First, they can be used as a planning tool at the beginning
of the State program approval process. The information may be used by Regions
to work with a State in developing a State program and a State program
approval application. For example, if a particular State is weak in its
capabilities to validate proper closure, the matrices can help identify
realistic alternative methods for achieving this goal given the State's
resource and staffing constraints (e.g., delegating inspections to local
governments). This will, in turn, result in better State program approval
applications and will ensure that the State programs have developed not only
the necessary regulatory requirements, but the actual capabilities to
implement those regulations.
Second, after receiving a State program approval application, Regional
staff may use the matrices to evaluate whether the State has the necessary
capabilities to run an effective UST program. The description of a State's
capabilities will likely be included in the "Program Descriptidn" and
"Demonstration of Adequate Enforcement Procedures" sections of the State
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OSWER Directive 9650.11
application Regional staff can use the matrices to determine whether a State
has adequately developed policies, procedures, and capabilities to address the
major program areas. Again, a State is not required to perform all or any
specific activity in the matrices. However, States should be undertaking a
sufficient number of these activities to make the regulations effective The
determination of what is a "sufficient" number is a Regional decision.
^ + °f h°W the matrices fflight be applied, consider two States
that each submit applications containing closure requirements that are
identical to the Federal requirements (i.e., both States meet the closure
objective). Using the closure matrix in conjunction with the review of the
application will help determine that State A is conducting:
(1) Two types of activities to inform owners and operators of the
requirements :
Employing mass mailings to the regulated community; and
Delivering presentations at oil industry and trade
association meetings.
(2) Three types of activities to validate proper closure:
Inspectors oversee all closure activities;
Local agency staff monitor closure activities; and
Owners and operators must place a notice on their property
deed describing the specific location of the abandoned tank,
method of closure, and proof of closure certification.
(3) Three types of actions against violators of the closure
requirements:
Issuing administrative notices of violation, specifying
closure violations, and required compliance schedule;
Issuing administrative or judicial orders; and
Publishing newspaper and journal articles on violator and
associated enforcement action.
State B is conducting:
(1) One type of activity to inform owners and operators of the
requirements :
Employing mass mailings.
u'tate B is not undertaking any activities to validate proper closure or taking
attion against violators of the closure requirements.
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OSWER Directive 9650.11
State A is actively ensuring that the closure requirements are well
known among the regulated community, and that violators are detected and
enforced against. State A wpuld appear to have the necessary capabilities in
the closure area to implement an approved program. State B, however, is not
undertaking any activities to discover or take action against violators and
therefore, may not have the necessary capabilities in the closure area to
implement an approved program. This example demonstrates how the matrices may
be used in assessing State applications.
Because of the numerous different approaches that can be taken to run an
UST program, the capabilities matrices may not include all the possible
activities a State could be undertaking. The matrices are not meant to limit
the types of activities States can perform. As additional activities are
identified by OUST, the Regions, and the States, the matrices will be updated.
The matrices are viewed as a continuously evolving tool to assist the Regions
and States in developing and improving State UST programs.
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APPENDICES
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OSWER Directive 9650.11
APPENDIX A
Sample Application for Approval of State
Underground Storage Tank Programs
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OSWER Directive 9650.11
GOVERNOR'S LETTER AND ATTORNEY GENERAL'S STATEMENT
[Insert Governor's letter and the Attorney General's certification here in
that order.]
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OSWER Directive 9650.11
New UST Systems and Notification
Objective §281.30
The State must have requirements that
ensure that all new UST systems conform
with the following:
(a) Be designed, constructed, and installed in
a manner that will prevent releases for their
operating life due to manufacturing defects,
structural failure, or corrosion. [Note:
Codes of practice developed by nationally-
recognized organizations may be used to
demonstrate that the State program
requirements are no less stringent in this
area.]
(b) Be provided with equipment to prevent spills
and tank overfills when new tanks are in-
stalled or existing tanks are upgraded,
unless the tank does not receive more than
25 gallons at one time.
(c) All UST system owners and operators must
notify the implementing State agency of
the existence of any new UST system using
a form designated by the State agency.
Cite
Regulation Statute
Please put explanations of how State requirements meet this objective on
a separate page, as well as a detailed description of areas where the State
program is more stringent or broader in scope than the Federal program,
including specific statutory and regulatory citations.
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OSWER Directive 9650.11
Upgrading Existing UST Systems
Objective §281.31
The State must have requirements that ensure4 " Cite
existing UST systems will be replaced or Regulation Statute
upgraded before December 22, 1998, to prevent
releases for their operating life due to
corrosion, and spills or overfills.
Please put explanations of how State requirements meet this objective on
a separate page, as well as a detailed description of areas where the State
program is more stringent or broader in scope than the Federal program,
including specific statutory and regulatory citations.
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OSWER Directive 9650.11
General Operating Requirements
Objective §281.32
The State must have requirements that ensure
all new and existing UST systems conform to
the following:-
. Cite
Regulation Statute
(a) Prevent spills and overfills by ensuring that
the space in the tank is sufficient to receive
the volume to be transferred and that the
transfer operation is monitored constantly;
(b) Where equipped with cathodic protection,.be
operated and maintained by a person with
sufficient training and experience in prevent-
ing corrosion, and in a manner that ensures
that no releases occur during the operating
life of the UST system [Note: Codes of practice
developed by nationally-recognized organizations
and national independent testing laboratories
may be used to demonstrate the State program
requirements are no less stringent.];
(c) Be made of or lined with materials that are
compatible with the substance stored;
(d) At the time of upgrade or repair, be
structurally sound and upgraded or repaired
in a manner that will prevent releases due
to structural failure or corrosion during
their operating lives;
(e) Have records of monitoring, testing, repairs,
and closure maintained that are sufficient
to demonstrate recent facility compliance
status, except that records demonstrating . .
compliance with repair and upgrading require-
ments must be maintained for the remaining
operating life of the facility. These
records must be made readily available when
requested by the implementing agency.
Please put explanations of how State requirements meet this objective on
a separate page, as well as a detailed description of areas where the State
program is more stringent or broader in scope than the Federal program,
including specific statutory and regulatory citations.
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OSWER Directive 9650.11
Release Detection
Objective §281.33
(a) Release detection requirements for
owners and operators must consist of
a method, or combination of methods,
that is:
(1) capable of detecting a release
of the regulated substance from
any portion of.the UST system
that routinely contains regulated
substances --as effectively as
any of the methods allowed under
the Federal Technical Standards
-- for as long as the UST system
is in operation. In comparing
methods, the implementing agency
shall consider the size of release
that the method can detect and
the speed and reliability with
which the release can be detected.
(2) designed, installed, calibrated,
operated and maintained so that
releases will be detected in
accordance with the capabilities
of the method;
(b) Release detection requirements must, at
a minimum, be scheduled to be applied
at all UST systems:
(1) immediately when a new UST system
is installed:
(2) on an orderly schedule that completes
a phase-in of release detection at
all existing UST systems (or their
closure) before December 22, 1993,
except that release detection for
the piping attached to any existing
UST that conveys a regulated
substance under greater than
atmospheric pressure must be
phased-in before December 22, 1990.
Cite
Regulation Statute
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Release Detection (continued)
Objective §281.33
(c) All petroleum tanks must be sampled, tested,
or checked for releases at least monthly,
except that:
Cite
Regulation Statute
(1) new or upgraded tanks (that is,
tanks and piping protected from
releases due to corrosion arid
equipped with both spill and overfill
prevention devices) may temporarily use
monthly inventory control (or its
equivalent) in combination with
tightness testing (or its equivalent)
conducted every 5 years for the first
10 years after the tank is installed
or upgraded, or until December 22,
1998, whichever is later; and
(2) existing tanks unprotected from releases
due to corrosion or without spill and
overfill prevention devices may use
monthly inventory control (or its
equivalent) in combination with annual
tightness testing (or its equivalent)
until December 22, 1998.
(d) All underground piping attached to the
tank that routinely conveys petroleum
must conform to the following:
(1) if the petroleum is conveyed under greater
than atmospheric pressure:
(i) the piping must be equipped with
release detection that detects a
release within an hour by
restricting or shutting off flow
or sounding an alarm; and
(ii) the piping must have monthly
monitoring applied or annual
tightness tests conducted.
(2) if suction lines are used:
(i) tightness tests must be conducted
at least once every 3 years, unless
a monthly method of detection is
applied to this piping; or
A-6
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. OSWER Directive 9650.11
Release Detection (continued)
Objective §281.33
Cite
Regulation Statute
(ii) the piping is designed to allow
the contents of the pipe to drain
back into the storage tank if the
suction is released and is also
designed to allow an inspector to
immediately determine the integrity
of the piping system.
(e) All UST systems storing hazardous substances
must meet the following:
(1) all existing hazardous substance UST
systems must comply with all the
requirements for petroleum UST systems
in sections 281.33(c) and (d) above,, and
after December 22, 1998, they must comply
with the following subsection (e)(2).
(2) all new hazardous substance UST systems
must use interstitial monitoring within
secondary containment of the tanks and
the attached underground piping that
conveys the regulated substance stored
in the tank, unless the owner and operator
can demonstrate to the State (or the
State otherwise determines) that another
method will detect a release of the
regulated substance as effectively as
other methods allowed under the State
program for petroleum UST systems and
that effective corrective action
technology is available for the
hazardous substance being stored that
can be used to protect human health
and the environment.
Please put explanations of how State requirements meet this objective on
a separate page, as well as a detailed description of areas where the State
program is more stringent or broader in scope than the Federal program,
including specific statutory and regulatory citations.
A-7
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OSWER Directive 9650.11
Release Reporting, Investigation, and Confirmation
Objective §281.34
All owners and operators must conform with
the following:
(a) Promptly investigate all suspected releases,
including:
(1) when unusual operating conditions,
release detection signals and environ-
mental conditions at the site suggest
a release of regulated substances may
have occurred; and
(2) when required by the implementing agency
to determine the source of a release
having an impact in the surrounding
area; and
(b) Promptly report all confirmed underground
releases and any spills and overfills
that are not contained and cleaned up.
(c) Ensure that all owners and operators contain
and clean up unreported spills and overfills
in a manner that will protect human health
and the environment.
Cite
Regulation Statute
Please put explanations of how State requirements meet this objective on
a separate page, as well as a detailed description of areas where the State
program is more stringent or broader in scope than the Federal program,
including specific statutory and regulatory citations.
A-8
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OSWER Directive 9650.11
Release Response and Corrective Action
Objective §281.35
The State must have requirements that ensure:
(a) All releases from UST systems are promptly
assessed and further releases are stopped;
(b) Actions are taken to identify, contain and
mitigate any immediate health and safety
threats that are posed by a release (such
activities include investigation and
initiation of free product removal, if
present);
(c) All releases from UST systems are
investigated to determine if there are
impacts on soil and ground water, and
any nearby surface waters. The extent
of soil and ground-water contamination
must be delineated when a potential
threat to human health and the
environment exists.
(d) All releases from UST systems are cleaned
up through soil and ground water remediation
and any other steps, as necessary to
protect human health and. the environment;
(e) Adequate information is made available to the
State to demonstrate that corrective actions
are taken in accordance with the requirements
of (a) through (d) of this section. This
information must be submitted in a timely
manner that demonstrates its technical
adequacy to protect human health and the
environment; and
(f) In accordance with section 280.67, the State
must notify the affected public of all
confirmed releases requiring a plan for
soil and ground water remediation, and
upon request provide or make available
information to infjorm the interested
public of the nature of the release and the
corrective measures planned or taken.
Cite
Regulation Statute
Please put explanations of how State requirements meet this objective on
a separate page, as well as a detailed description of areas where the State
program is more stringent or broader in scope than the Federal program,
including specific statutory and regulatory citations.
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OSWER Directive 9650.11
Out-of-Service UST Systems and Closure
Objective §281.36
The State must have requirements that ensure Cite
UST systems conform with the following: Regulation Statute
(a) All new and existing UST systems
temporarily closed must:
(1) continue to comply with general
operating requirements, release
reporting and investigation, and
release response and corrective action;
(2) continue to comply with release
detection requirements if regulated
substances are stored in the tank;
(3) be closed off to outside access; and
(4) be permanently closed if the UST
system has not been protected from
corrosion and has not been used in
one year, unless the State approves
an extension after the owner and
operator conducts a site assessment.
(b) All tanks and piping must be cleaned and
permanently closed in a manner that
eliminates the potential for safety
hazards and future releases.
The owner or operator must notify the State
of permanent UST system closures. .
The site must also be assessed to determine
if there are any present or were past
releases, and if so, release response
and corrective action requirements must
be complied with.
(c) All UST systems taken out of service before
December 22, 1988, must permanently close
in accordance with paragraph (b) of this
section .when directed by the State.
Please put explanations of how State requirements meet this objective on
a separate page, as well as a detailed description of areas where the State
program is more stringent or broader in scope than the Federal program,
including specific statutory and regulatory citations.
A-10
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OSWER Directive 9650.11
Financial Responsibility for USTs Containing Petroleum
Objective §281.37
(a) State requirements for financial
responsibility must ensure that:
(1) owners and operators have $1 million
per occurrence for corrective action
and third-party claims in a timely
manner to protect human health and
the environment;
(2) owners and operators not engaged in
petroleum production, refining, and
marketing and who handle a throughput
of 10,000 gallons of petroleum per
month or less have $500,000 per
occurrence for corrective action and
third-party claims in a timely manner to
protect human health and the environment;
(3) owners and operators of 1 to 100
petroleum USTs must have an annual
aggregate of $1 million; and
(4) owners and operators of 101 or more
petroleum USTs must have an annual
aggregate of $2 million.
(b) Phase-in requirements. Financial
responsibility requirements for petroleum
UST systems must, at a minimum, be scheduled
to be applied at all UST systems on an
orderly schedule that completes a phase-in
of the financial responsibility
requirements within the time allowed in the
Federal regulations under 40 CFR §280.91.
Cite
Regulation Statute
A-ll
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OSWER Directive 9650.11
Financial Responsibility for USTs Containing Petroleum (continued)
Objective §281.37 .
Cite
Regulation Statute
(c) States may allow the use of a wide variety of
financial assurance mechanisms to meet this
requirement. Each financial mechanism must
meet the following criteria: be valid and
enforceable; be issued by a provider that
is qualified or licensed in the State; not
permit cancellation without allowing the
State to draw funds; ensure that funds will
only and directly be used for corrective
action and third-party liability costs;
and require that the provider notify the owner
or operator of any circumstance that would
impair or suspend coverage.
(d) States must require owners and operators to
maintain records and demonstrate compliance
with the State financial responsibility
requirements, and these records must be
made_; readily available when requested by
the implementing'agency.
Please put explanations of how State requirements meet this objective on
a separate page, as well as a detailed description of areas where the State
program is more stringent or broader in scope than the Federal program,
including specific statutory and regulatory citations.
A-12
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PROGRAM SCOPE
[Insert Program Scope discussion here.]
OSWER Directive 9650.11
A-13
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OSWER Directive 9650.11
Legal Authorities for Compliance Monitoring
(§281.40)
The State must have the following
specific compliance monitoring authorities:
(a) Any authorized representative of
the State engaged in compliance
inspections, monitoring, and testing
must have authority to obtain by request
any information from an owner or operator
with respect to the UST system(s) that is
necessary to determine compliance with
the regulations.
(b) Any authorized representative of the State
must have authority to require an owner or
operator to conduct monitoring or testing.
(c) Authorized representatives must have the
authority to enter any site or premises subject
to UST system regulations or in which records
relevant to the operation of the UST system(s)
are kept, and to copy these records, obtain
samples of regulated substances, and inspect or
conduct the monitoring or testing of UST
system(s).
Cite
Regulation Statute
Please put explanations of how State requirements meet this objective on
a separate page, as well as a detailed description of areas where the State
program is more stringent or broader in scope than the Federal program,
including specific statutory and regulatory citations.
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OSWER Directive 9650.11
Legal Authorities for Enforcement Response
(§281.41)
The State must have "the following specific Cite
enforcement response authorities for State Regulation Statute
program approval:
(a) Any State agency administering a program must
have the authority to implement the following
remedies for violations of State program
requirements:
(1) To restrain immediately and effectively
any person by order or by suit in State
court from engaging in any unauthorized
activity that is endangering or causing
damage to public health or the environment;
(2) To sue in courts of competent jurisdiction
to enjoin any threatened or continuing
violation of any program requirement;
(3) To assess or sue to recover in court
civil penalties as follows:
(i) Civil penalties for failure to
notify or for submitting false
information pursuant to tank
notification requirements must be
capable of being assessed up to
$5,000 or more per violation.
(ii) Civil penalties for failure to
comply with any State requirements
or standards for existing or new
tank systems must be capable of
being assessed for each instance
of violation, up to $5,000 or more
for each tank for each day of
violation. If the violation is
continuous, civil penalties shall
capable of being assessed up to
$5,000 or more for each day
of. violation.
Please put explanations of how State requirements meet this objective on
a separate page, as well as a detailed description of areas where the State
program is more stringent or broader in scope than the Federal program,
including specific statutory and regulatory citations.
A-15
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OSWER Directive 9650.11
Public Participation in Enforcement Proceedings
(§281.42)
Any State administering a program must Cite
provide for public participation in Regulation Statute
the State enforcement process by providing
any one of the following three options:
(a) Authority that allows intervention analogous
to Federal Rule 24(a)(2), and assurance by
the appropriate State enforcement agency that
it will not oppose intervention under the State
analogue to Rule 24(a)(2) on the ground that
the applicant's interest is adequately
represented by the State.
(b) Authority that allows intervention as of right
in any civil action to obtain the remedies
specified in 281.41 by any citizen having an
interest that is or may be adversely affected; or
(c) Assurance by the appropriate State agency that:
(1) It will provide notice and opportunity
for public comment on all proposed
settlements of civil enforcement actions
(except where immediate action is
necessary to adequately protect human
health and the environment);
(2) It will investigate and provide responses
to citizen complaints about violations; and
(3) It will not oppose citizen intervention"
when permissive intervention is allowed
by statute, rule, or regulation..
Please put explanations of how State requirements meet this objective on
a separate page, as well as a detailed description of areas where the State
program is more stringent or broader in scope than the Federal program,
including specific statutory and regulatory citations.
A-16
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OSWER Directive 9650.11
DEMONSTRATION OF PROCEDURES FOR ADEQUATE ENFORCEMENT
I. COMPLIANCE MONITORING
A. Purpose
The implementing agency must have compliance monitoring procedures for
collecting and maintaining data on violators and monitoring their and
the rest of the regulated community's compliance status over time.
Specifically, States must develop procedures in each of the following
four areas: record review; inspections; public reporting; and data
maintenance.
B. Explanation
A-17
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OSWER Directive 9650.11
II. ENFORCEMENT RESPONSE
A. Purpose
The implementing agency must have procedures to exercise legal
enforcement authorities against violators, bring them into compliance,
and deter other potential violators.
B. Explanation
A-18
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OSWER Directive 9650.11
PROGRAM DESCRIPTION
General
1. Type of approval requested:
(check one)
Interim
Final
(check one)
Complete
Partial (Petroleum)
Partial (Hazardous Substances)
2. Does the State have any existing agreements with Indian tribes? If so,
attach agreements and briefly describe.
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OSWER Directive 9650.11
Program Scope
3. Describe the UST universe covered by the State program. Include the
estimated number of petroleum UST systems, hazardous.substance UST
systems, and any other information affecting the State's regulation of
this universe.
Organization and Structure of State Program
4. Indicate the lead agency for facilitating communications between EPA and
the State. If there is a separate agency for coordinating Trust Fund
activities, indicate that here also.
5. Include a simple chart that describes the organizational structure of
the complete State underground storage tank program, including all
implementing agencies.
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OSWER Directive 9650.11
6. Describe the procedures for coordinating the State implementing
agencies.
Resource Information
7. For each State implementing agency with responsibilities for developing,
regulating, enforcing, or administering the underground storage tank
program, please,estimate the total dollar budget and number of staff
assigned to the underground storage tank program.
A-21
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OSWER Directive 9650.11
8. Please provide an estimate of the administrative and implementation
costs of the State's underground storage tank program on an annual
basis.
9.
Indicate current Federal, State, and local funding sources, with
approximate amounts for each. Please explain any restrictions or
limitations regarding these funding sources.
A-22
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OSWER Directive 9650.11
APPENDIX B
Federal Subtitle I Program
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OSWER Directive 9650.11
RCRA Subtitle I
B-l
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RESOURCE RECOVERY ACT
71:3163
"Subtitle IRegulation of Underground Storage Tanks
[Subtitle I. Sections 9001 through 9010 added by PL 98-
616]
"DEFINITIONS AND EXEMPTIONS
"Sec. 9001. For the purposes of this subtitle
"(1) The term 'underground storage tank' means any one or
combination of tanks (including underground pipes connected
thereto) which is used to contain an accumulation of regulated
substances, and the volume of which (including the volume of
the underground pipes connected thereto) is 10 per centum or
more beneath the surface of the ground. Such term does not
include any
"(A) farm or residential tank of 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,
"(a septic tank, .
"CD) pipeline facility (including gathering lines) regulated
under
"(i) the Natural Gas Pipeline Safety Act of 1968 (49
U.S.C. App. 1671, et seq.),
"(ii) the Hazardous Liquid Pipeline Safely Act of 1979
(49 U.S.C. App. 2001, et seq.), or
"(iii) which is an intrastate pipeline facility regulated
under State laws comparable to the provisions of law
referred to in clause (i) or (ii) of this subparagraph,
"(E) surface impoundment, pit, pond, or lagoon,
"(F) storm water or waste water collection system,
"(G) flow-throughjrocess tank,
"(H) liquid trap or associated gathering lines directly
related to oil or gas production and gathering operations, or
"(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 term 'underground storage tank' shall not include any
pipes connected to any tank which is described in subpara-
graphs (A) through (I).
"(2) The term 'regulated substance' means
"(A) any substance defined in section 101(14) of the Com-
prehensive Environmental Response, Compensation, and
Liability Act of 1980 (but not including any substance
regulated as a hazardous waste under subtitle C), and
"(B) petroleum.
[9001 (2)(B) revised by PL 99-499]
"(3) The term 'owner' means
"(A) in the case of an underground storage tank in use on
the date of enactment of the Hazardous and Solid Waste
Amendments of 1984, or brought into use after that date,
any person who owns an underground storage tank used for
. the storage, use, or dispensing of regulated sustances, and
"(B) in the case of any underground storage tank in use
before the date- of enactment of the Hazardous and Solid
Waste Amendments of 1984, but no longer in use on the
date of enactment of such Amendments, any person who
owned such tank immediately before the discontinuation of
its use.
"(4) The term 'operator' means any person in control of, or
having responsibility for, the daily operation of the under-
ground storage tank.
"(5) The term 'release' means any spilling, leaking, emitting,
discharging, escaping, leaching, or disposing from an under-
ground storage tank into ground water, surface water or subsur-
face soils.
"(6) The term 'person* has the same meaning as provided in
section 1004(15), except that such term includes a consortium, a
joint venture, and a commercial entity, and the United States
Government.
"(7) The term 'nonoperational storage tank' means any under-
ground storage tank in which regulated substances will not be
deposited or from which regulated substances will not be dis-
pensed after the date of the enactment of the Hazardous and
Solid Waste Amendments of 1984.
"(8) The term 'petroleum' means petroleum, including
crude oil or any fraction thereof which is liquid at
standard conditions of temperature and pressure (60
degrees Fahrenheit and 14.7 pounds per square inch
absolute).
[9001(8) added by PL 99-499]
"NOTIFICATION
"Sec. 9002. (a) UNDERGROUND STORAGE TANKS.(1) Within 18
months after the date of enactment of the Hazardous and Solid
Waste Amendments of 1984, each owner of an underground storage
tank shall notify the State or local agency or department designated
pursuant to subsection fbXl) of the existence of such rank, specifying
the age, size, type, location, and uses of such tank.
"(2XA) For each underground storage tank taken out of operation
after January 1,1974, the owner of such tank shall, within eighteen
months after the date of enactment of the Hazardous and Solid
Waste Amendments of 1984, notify the State or local agency, or
department designated pursuant to subsection (bXD of the existence
of such tanks (unless the owner knows the tank subsequently was
removed from the ground). The owner of a tank taken out of
operation on or before January 1, 1974, shall not be required to
notify the State or local agency under this subsection.
"(B) Notice under subparagraph (A) shall specify, to the extent
known to the owner
"(i) the date the tank was taken out of operation,
"(ii) the age of the tank on the date taken out of operation,
"(iii) the size, type and location of the tank, and
"(iv) the type and quantity of substances left stored in such
tank on the date taken out of operation.
"(3) Any owner which brings into use an underground storage
tank after the initial notification period specified under paragraph
(1), shall notify the designated State or local agency or department
within thirty days of the existence of such tank, specifying the age,
size, type, location and uses of such tank.
"(4) Paragraphs (1) through (3) of this subsection shall not apply to
tanks for which notice was given pursuant to section 103(c) of the
Comprehensive Environmental Response, Compensation, and Liabil-
ity Act of 1980.
"(5) Beginning thirty days after the Administrator prescribes the
form of notice pursuant to subsection (bX2) and for eighteen months
thereafter, any person who deposits regulated substances in an
underground storage tank shall reasonably notify the owner or
operator of such tank of the owner's notification requirements
pursuant to this subsection.
"(6) Beginning thirty days after the Administrator issues new
tank performance standards pursuant to section- 9003(e) of this
subtitle, any person who sells a tank intended to be used as an
underground storage tank shall notify the purchaser of such tank of
the owner's notification requirements pursuant to this subsection.
"(b) AGENCY DESIGNATION.(1) Within one hundred and-eighty
days after the enactment of the Hazardous and Solid Waste Amend-
ments of 1984, the Governors of each State shall designate the
appropriate State agency or department or local agencies or depart-
ments to receive, the notifications under subsection (a) (1), (2), or (3).
"(2) Within twelve months after the date of enactment of the
Hazardous and Solid Waste Amendments of 1984, the Administra-
tor, in consultation with State and local officials designated pursu-
ant to subsection (bXD, and after notice and opportunity for public
comment, shall prescribe the form of the notice and the information
to be included in the notifications under subsection (a) (1), (2), or (3).
In prescribing the form of such notice, the Administrator shall take
11-28-86
Published by THE BUREAU OF NATIONAL AFFAIRS, INC.. Washington. D.C. 20037
117
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71:3164
FEDERAL LAWS
into account the effect on small businesses and other owners and
operators.
"(c) State Inventories. Each State shall make 2
separate inventories of all underground storage tanks in
such State containing regulated substances. One inven-
tory shall be made with respect to petroleum and
one with respect to other regulated substances. In mak-
ing such inventories, the State shall utilize and aggre-
gate the data in the notification forms submitted pursu-
ant to subsections (a) and (b) of this section. Each State
shall submit such aggregated data to the Administrator
not later than 270 days after the enactment of the
Superfund Amendments and Reauthorization Act of
1986.
[9002(c) added by.PL 99-499]
"RELEASE DETECTION, PREVENTION, AND CORRECTION REGULATIONS
"SEC. 9003. (a) REGULATIONS.The Administrator, after notice and
opportunity for public comment, and at least three months before
the effective dates specified in subsection- (f), shall promulgate re-
lease detection, prevention, and correction regulations applicable to
all owners and operators of underground storage tanks,-as may be
necessary to protect human health and the environment.
"(b) DISTINCTIONS IN REGULATIONS.In promulgating regulations
under this section, the Administrator may distinguish between
types, classes, and ages of underground storage tanks. In making
such distinctions, the Administrator may take into consideration
factors, including, but not limited to: location of the tanks, soil and
climate conditions, uses of the tanks, history of maintenance, age of
the tanks, current industry recommended practices, national con-
serous codes, hydrogeology, water table, size of the tanks, quantity
01 regulated substances periodically deposited in or dispensed from
the tank, the technical capability of the.owners and operators, and
the compatibility of the regulated substance and the materials of
which the tank is fabricated.
"(c) REQUIREMENTS.The regulations promulgated pursuant to
this section shall include, but need not be limited to, the following
requirements respecting all underground storage tanks
"(1) requirements for maintaining a leak detection system, an
inventory control system together with tank testing, or a com-
parable system or method designed to identify releases in a
manner consistent with the protection of human health and the
environment;
"(2) requirements for maintaining records of any monitoring
or leak detection system or inventory control system or tank
testing or comparable system;
"(3) requirements for. reporting of releases and corrective
action taken in response to a release from an underground
storage tank;
"(4) requirements for taking corrective action in response to a
release from an underground storage tank;
[9003(c)(4) and (5) amended by PL 99-499]
"(5) requirements for the closure of tanks to prevent future
releases of regulated substances into the environment; and
"(6) requirements for maintaining evidence of finan-
cial responsibility for taking corrective action and com-
pensating third parties for bodily injury and property
damage caused by sudden and nonsudden accidental
releases arising from operating an underground storage
tank.
[9003(c)(6). added by PL 99-499]
"(d) FINANCIAL RESPONSIBILITY.
"(1) Financial responsibility required by this subsec-
tion may be established in accordance with regulations
promulgated by the Administrator by any one, or any
combination, of the following: insurance, guarantee,
surety bond, letter of credit, qualification as a self-
insurer or any other method satisfactory to the Adminis-
trator. In promulgating requirements under this subsec-
tion, the Administrator is authorized to specify policy or
other contractual terms, conditions, or defenses which
are necessary or are unacceptable in establishing such
evidence of financial responsibility in order to effectuate
the purposes of this subtitle.
[Former 9003(d)(2) amended and redesignated as (1)
by PL 99-499]
"(2) In any case where the owner or operator is in
bankruptcy, reorganization, or arrangement pursuant to
the Federal Bankruptcy Code or where with reasonable
diligence jurisdiction in any State court of the Federal-
Courts cannot be obtained over an owner or operator
likely to be solvent at the time of judgment, any claim
arising from conduct for which evidence of financial
responsibility must be provided under this subsection
may be asserted directly against the guarantor providing
such evidence of financial responsibility. In the case of
any action pursuant to this paragraph such guarantor
shall be entitled to invoke all rights and defenses which
would have been available to the owner or operator if
any action had been brought against the owner or
operator by the claimant and which would have been
available to the guarantor if an action had been brought
against the guarantor by the owner or operator.
"(3) The total liability of any guarantor shall be
limited to the aggregate amount which the guarantor
has provided as evidence of financial responsibility to the
owner or operator under this section. Nothing in this
subsection shall be construed to limit any other State or
Federal statutory, contractual or common law liability of
a guarantor to its owner or operator including, but not
limited to, the liability of such guarantor for bad faith
either in negotiating or in failing to negotiate the settle-
ment of any claim. Nothing in this subsection shall be
construed to diminish the liability of any person under
section 107 or 111 of the Comprehensive Environmental
Response, Compensatipn and Liability Act of 1980 or
other applicable law.
"(4) For the purpose of this subsection, the term
'guarantor' means any person, other than the owner or
operator, who provides evidence of financial responsibil-
ity for an owner or operator under this subsection.
"(5)(A) The Administrator, in promulgating financial
responsibility regulations under this section, may estab-
Environment Reporter-
118
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RESOURCE RECOVERY ACT
S-774
71:3165
lish an amount of coverage for particular classes or
categories of underground storage tanks containing pe-
troleum which shall satisfy such regulations and which
shall not be less than SI,000,000 for each occurrence
with an appropriate aggregate requirement.
"(B) The Administrator may set amounts lower than
the amounts required by subparagraph (A) of this para-
graph for underground storage tanks containing petrole-
um which arc at facilities not engaged in petroleum
production, refining, -or marketing and which are not
used to handle substantial quantities of petroleum.
"(C) In establishing classes and categories for pur-
poses of this paragraph, the Administrator may consider
the following, factors:
"(«) The size, type, location, storage, and handling
capacity of underground storage tanks in the class or
category and the volume of petroleum handled by such
tanks.
"(ii) The likelihood of release and the potential extent
of damage from any release from underground storage
tanks in the class or category.
"(iii) The economic impact of the limits on the owners
and operators of each such class or category, particularly
relating to the small business segment of the petroleum
marketing industry.
"(iv) The availability of methods of financial responsi-
bility in amounts greater than the amount established by
this paragraph.
"(v) Such other factors as the Administrator deems
pertinent.
"(D) The Administrator may suspend enforcement of
the financial responsibility requirements for a particular
class or category of underground storage tanks or in a
particular State, if the Administrator makes a determi-
nation that methods of financial responsibility satisfying
the requirements of this subsection are not generally
available for underground storage tanks in that class or
category, and
"(0 steps are being taken to form a risk retention
group for such class of tanks; or
"(ii) such State is taking steps to establish a fund
pursuant to section 9004(c)(l) of this Act to be submit-
ted as evidence of financial responsibility.
A suspension by the Administrator pursuant to this
paragraph shall extend for a period not to exceed 180
days. A determination to suspend may be made with
respect to the same class or category or for the same
State at the end of such period, but only if substantial
progress has been made in establishing a risk retention
group, or the owners or operators in the class or category
demonstrate, and the Administrator finds, that the for-
mation of such a group is not possible, and that the State
is unable or unwilling to establish such a fund pursuant
to clause (ii).
[9003(d)(5) added by PL 99-499]
"(e) NEW TANK PERFORMANCE STANDARDS.The Adnrinistraf-or
shall, not later than three months prior to the effective date speci-
fied in subsection (f), issue performance standards for underground
storage tanks brought into use on or after the effective date of such
standards. The performance standards for new underground storage
tanks shall include, but need not be limited to, design, construction,
installation, release detection, and compatibility standards.
"(f) EFFECTIVE DATES.(1) Regulations issued pursuant to subsec-
tion (c) and (d) of this section, and standards issued pursuant to
subsection (e) of this section, for underground storage tanks contain-
ing regulated substances defined in section 900K2XB) (petroleum,
including crude oil or any fraction thereof which is liquid at stand-
ard conditions of .temperature and pressure) shall be effective 'not
later than thirty months after the date of enactment of the Hazard-
ous and Solid Waste Amendments of 1984.
"(2) Standards issued pursuant to subsection (e) of this section
(entitled 'New Tank Performance Standards') for underground
storage tanks containing regulated substances defined in section
900K2XA) shall be effective not later than thirty-six months after
the date of enactment of the Hazardous and Solid Waste Amend-
ments of 1984.
"(3) Regulations issued pursuant to subsection (c) of this section
(entitled 'Requirements') and standards issued pursuant to subsec-
tion (d) of this section (entitled 'Financial Responsibility') for un-
derground storage tanks containing regulated substances defined in
section 900K2XA) shall be effective not later than forty-eight months
after the date of enactment of the Hazardous and Solid Waste
Amendments of 1984.
"(g) INTERIM PROHIBITION.(1) Until the effective date of the
standards promulgated by the Administrator under subsection (e)
and after one hundred and eighty days after the date of the enact-
ment of the Hazardous and Solid Waste Amendments of 1984, no
person may install an underground storage tank for the purpose of
storing regulated substances unless such tank (whether of single or
double wall construction)
"(A) will prevent releases due to.corrosion or structural fail-
ure for the operational life of the tank;
"(B) is cathodically protected against corrosion, constructed of
noncorrosive material, steel clad with a noncorrosive material,
or designed in a manner to prevent the release or threatened
release of any stored substance; and
"(C) the material used in the construction or lining of the
tank is compatible with the substance to be stored.
(2) Notwithstanding paragraph (1), if soil tests conducted in
accordance with ASTM Standard G57-78, or another standard ap-
proved by the Administrator, show that soil resistivity in an instal-
lation location is 12,000 ohm/cm or more (unless a more stringent
standard is prescribed by the Administrator by rule), a storage tank
without corrosion protection may be installed in that location
during the period referred to in paragraph (1).
"(h) EPA Response Program for Petroleum.
[9003(h) added by PL 99-499]
"(1) Before regulations. Before the effective date .
of regulations under subsection (c), the Administrator
(or a State pursuant to paragraph (7)) is authorized
to
"(A) require the owner or operator of an underground
storage tank to undertake corrective action with respect
to any release of petroleum when the Administrator (or
the State) determines that such corrective action will be
done properly and promptly by the owner or operator of
the underground storage tank from which the release
occurs; or
"(B) undertake corrective action with respect to any
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FEDERAL LAWS
release of petroleum into the environment from an un-
derground storage tank if such action is necessary, in the
judgment of the Administrator (or the State), tp protect
human health and the environment.
The corrective action undertaken or required under this
paragraph shall be such as may be necessary to protect
human health and the environment. The Administrator
shad use funds in the Leaking Underground Storage
Tank Trust Fund for payment of costs incurred for
corrective action under subparagraph (B), enforcement
action under subparagraph (A), and cost'recovery under
paragraph (6) of this subsection. Subject to the priority
requirements of paragraph (3), the Administrator (or
the State) shall give priority in undertaking such actions
under subparagraph (B) to cases where the Administra-
tor (or the State) cannot identify a solvent, owner or
operator of the tank who will undertake action properly.
"(2) After regulations.Following the effective date of
regulations under subsection (c), all actions or orders of
the Administrator (or a State pursuant to paragraph
(7)) described in paragraph (1) of this subsection shall
be in conformity with such regulations. Following such
effective date, the Administrator (or the State) may
undertake corrective action with respect to any release of
petroleum into the environment from an underground
storage tank only if such action is necessary, in the
judgment of the Administrator (or the State),, to protect
human health and the environment and one or more of
the following situations exists:
"(A) No person can be found, within 90 days or such
shorter period as may be necessary to protect human
health and the environment, who is
"(i) an owner or operator of the tank concerned,
"(ii) subject to such corrective action regulations, and
"(Hi) capable of carrying out such corrective action
properly.
"(B) A situation exists which requires prompt action
by the Administrator (or the State) under this para-
graph to protect human health and the environment.
"(C) Corrective action costs at a facility exceed the
amount of coverage required by the Administrator pur-
suant to the provisions of subsections (c) and (d)(5) of
this section and, considering the class or category of
underground storage tank from which the release oc-
curred, expenditures from the Leaking Underground
Storage Tank Trust Fund are necessary to assure an
effective corrective action.
"(D) The owner or operator of the tank has failed or
refused to comply with an order of the Administrator
under this subsection or section 9006 or with the order of
a State under this subsection to comply with the correc-
tive action regula'tions.
"(3) Priority of corrective actions.The Administra-
tor (or a State pursuant to paragraph (7)) shall give
priority in undertaking corrective actions under this
subsection, and in issuing orders requiring owners or
operators to undertake -such actions, to releases of petro-
leum from underground storage tanks which pose the
greatest threat to human health and the environment.
"(4) Corrective action orders. The Administrator is
authorized to issue orders to the owner or operator of an
underground storage tank to carry out subparagraph (A)
of paragraph (1) or to carry out regulations issued under
subsection (c)(4). A State acting pursuant to paragraph
(7) of this subsection is authorized to carry out subpara-
graph (A) of paragraph (1) only until the State's pro-
gram is approved by the Administrator under section
9004 of this subtitle. Such orders shall be issued and
enforced in the same manner and subject to the same
requirements as orders under section 9006.
"(5) Allowable corrective actions. The corrective ac-
tions undertaken by. the Administrator (or a State pursu-
ant to paragraph (7)) under paragraph (I) or (2) may
include. temporary or permanent relocation of residents
and alternative household water supplies. In connection
with the performance of any corrective' action under
paragraph (1) or (2), the Administrator may undertake
an exposure assessment as defined in paragraph (10) of
this subsection or provide for such an assessment in a
cooperative agreement with a State pursuant to para-
graph (7) of this subsection. The costs of any such
.assessment may be treated as corrective action for pur-
poses of paragraph (6), relating to cost recovery.
"(6) Recovery of costs.
"(A) In general. Whenever costs have been incurred
by the Administrator, or by a State pursuant to para-
graph (7), for undertaking corrective action or enforce-
ment action with respect to the release of petroleum
from an underground storage tank, the owner or opera-
tor of such tank shall be liable to the Administrator or
the State for such costs. The liability under this para-
graph shall be construed to be the standard of liability
which obtains under section 3 1 1 of the Federal Water
Pollution Control Act.
"(B) Recovery. In determining the equities for
seeking the recovery of costs under subparagraph (A),
the Administrator (or a State pursuant to paragraph (7)
of this subsection) may consider the amount of financial
responsibility required to be maintained under subsec-
tions (c) and (d)(5) of this section and the factors
considered in establishing such amount under subsection
"(C) Effect on liability.
"(i) No transfers of liability. No indemnification.
hold harmless, or similar agreement or conveyance shall
be effective to transfer from the owner or operator of
Environment Reporter
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RESOURCE RECOVERY ACT
S-774
71:3167
any underground storage tank or from any person who
may be liable for a release or threat of release under this
subsection, to any other person the liability imposed
under this subsection. Nothing in this subsection shall
bar any agreement to insure, hold harmless, or indemni-
fy a party to such agreement for any liability under this
section.
"(ii) No bar to cause of action. Nothing in this
subsection, including the provisions of clause (i) of this
subparagraph, shall bar a cause of action that an owner
or operator or any other person subject to liability under
this section, or a guarantor, has or would have, by reason
of subrogation or otherwise against any person.
"(D) Facility. For purposes of this paragraph, the'
lerm "facility' means, with respect to any owner or
operator, all underground storage tanks used for the
storage of petroleum which are owned or operated by
such owner or operator and located on a single parcel of
property (or on any contiguous or adjacent property).
"(7) State authorities.
"(A) General. A State may exercise the authorities
in paragraphs (I) and (2) of this subsection, subject to
the terms and conditions of paragraphs (3), (5), (9),
(10), and (11), and including the authorities of para-
graphs (4), (6), and (8) of this subsection if
"(i) the Administrator determines that the State has
the capabilities to carry out effective corrective actions
and enforcement activities; and
"(ii) the Administrator enters into a cooperative agree-
ment with the State setting out the actions to be under-
taken by the State.
The' Administrator may provide funds from the Leaking
Underground Storage Tank Trust Fund for the reason-
able costs of the State's actions under the cooperative
agreement.
"(B) Cost share. Following the effective date of the
regulations under subsection (c) of this section, the State
shall pay 10 per centum of the cost of corrective actions
undertaken either by'the Administrator or by the State
under a cooperative agreement, except that the Adminis-
trator may take corrective action at a facility where
immediate action is necessary to respond'to an imminent
and substantial endahgerment to'human health or the
environment if the State fails to pay the cost share.
"(8) Emergency procurement powers. Notwith-
standing any other provision of law, the Administrator
may authorize the use of such emergency procurement
powers as he deems necessary.
"(9) Definition of owner. As used in this subsection,
the term, 'owner' does not include any person who,
without participating in the management of an under-
ground storage tank and otherwise not engaged in petro-
leum production, refining, and marketing, holds indicia
of ownership primarily to protect the owner's security
interest in the tank.
"(10) Definition'of exposure assessment. As used in
this subsection, the term 'exposure assessment' means an|
assessment to determine the extent of exposure of, or
potential for exposure of, individuals to petroleum from
a release from an underground storage tank based on
such factors as the nature and extent of contamination
and the existence of or potential for pathways of human
exposure (including ground or surface water contamina-
tion, air emissions, and food chain contamination), the
size of the community within the likely pathways of
exposure, and the comparison of expected human expo-
sure levels to the short-term and long-term health effects
associated with identified contaminants and any avail-
able recommended exposure or tolerance limits for such
contaminants. Such assessment shall not delay corrective
action to abate immediate hazards or reduce exposure.
"(11) Facilities without financial responsibility. At
'any facility where the owner or operator has failed to
maintain evidence of financial responsibility in amounts
at least equal to the amounts established by subsection
(d)(5)(A) of this section (or a lesser amount if such
amount is applicable to such facility as a result of
subsection (d)(5)(B) of this section) for whatever reason
the Administrator shall expend no monies from the
Leaking Underground Storage Tank Trust- Fund to
clean up releases, at such facility pursuant to the provi-
sions of paragraph 0) or (2) of this subsection. At such
facilities the Administrator shall use the authorities
provided in subparagraph (A) of paragraph (1) and
paragraph (4) of this subsection and section 9006 of this
subtitle to order corrective action to clean up such
releases. States acting pursuant to paragraph (7) of this
subsection shall use the authorities provided in subpara-
graph (A) of paragraph (1) and paragraph (4) of this
subsection to order corrective action to clean up such
releases. Notwithstanding the provisions of this para-
graph, the Administrator may use monies from the fund
to take the corrective actions authorized by paragraph
(5) of this subsection to protect human health at such
facilities and shall seek full recovery of the costs of all
such actions pursuant to the provisions of paragraph
(6)(A) of this subsection and without consideration of
the factors in paragraph (6)(B) of this subsection. Noth-
ing in this paragraph shall prevent the Administrator (or
a State pursuant to paragraph (7) of this subsection)
from taking corrective action at a facility where there is
no solvent owner or operator or where immediate action
is necessary to respond to an imminent and substantial
endangerment of human health or the environment.
[Editor's note: Section 205(h) of PL 99-499 provides:
"(h) Pollution Liability Insurance.
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FEDERAL LAWS
(/) Study. The Comptroller General shall conduct
a sx-udy of xhe availability of pollution liability insurance,
leak insurance, and contamination insurance for owners
and operators of petroleum storage and distribution
facilities. The study shall assess the current and project-
ed extent to which private insurance can contribute to
the financial responsibility of owners and operators of
underground storage tanks and the ability of owners and
operators of underground storage tanks to maintain
financial responsibility through other methods. The
study shall consider the experience of owners and opera-
tors of marine vessels in getting insurance for their
liabilities under the Federal Water Pollution Control
Act and the operation of the Water Quality Insurance
Syndicate.
(2) Report. The Comptroller General shall report
the findings under this subsection to the Congress within
15 months after the enactment of this subsection. Such
report shall include recommendations for legislative or
administrative changes that will enable owners and oper-
ators of underground storage tanks to maintain financial
responsibility sufficient to provide all clean-up costs and
damages that may result from reasonably foreseeable
releases and events."]
"APPROVAL OF STATE PROGRAMS
"So:. 9004. (a) ELEMENTS OF STATE PROGRAM.Beginning 30
months after the date of enactment of the Hazardous and Solid
Waste Amendments of 1984, any State may, submit an underground
storage tank release detection, prevention, and correction program
for review and approval by the Administrator. The program may
cover tanks used to store regulated substances referred to in
9001(2) (A) or (B) or both. A State program may be approved by the
Administrator under this section only if the State demonstrates that
the State program includes the following requirements and
standards and provides for adequate enforcement of compliance with
such requirements and standards
"(1) requirements for maintaining a leak detection system, an
inventory control system together with tank testing, or a com-
parable system or method designed to identify releases in a
manner consistent with the protection of human health and the
environment;
"(2) requirements for maintaining records of any monitoring
or leak detection system or inventory control system or tank
testing system;
"(3) requirements for reporting of any releases and corrective
action taken in response to a release from an underground
storage tank;
"(4) requirements for taking corrective action in response to a
-release from an underground storage tank;
"(5) requirements for the closure of tanks to prevent future
releases of regulated substances into the environment;
"(6) requirements for maintaining evidence of financial re-
. sponsibility for taking corrective action and compensating third
parties for bodily injury and property damage caused by sudden
and nonsudden accidental releases arising from operating an
underground storage tank; ^^
"(7) standards of performance for new underground storage
tanks; and
"(8) requirements
"(A) for notifying the appropriate State agency or depart-
ment (or local agency or department) designated according
to section 9002(bXl) of the existence of any operationaTor
non-operational underground storage tanir- and
"(B) for providing the information required on the form
( issued pursuant to section 9002(bX2).
(b) FEDERAL STANDARDS.<1) A State program submitted under
this section may be approved only if the requirements under para-
graphs (1) through (7) of subsection (a) are no less stringent than the
6
"(2XA) A State program may be approved without regard to
whether or not the requirements referred to in paragraphsTU) (2)
2i!?dJP °f 3Jubsectio.n
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RESOURCE RECOVERY ACT
S-826
71:3169
evidence of financial responsibility for an owner or
operator under this subsection.
"(d) EPA Determination. (1) Within one
hundred and eighty days of the date of receipt of a
proposed State program, the Administrator shall, after
notice and opportunity for public comment, make a
determination whether the State's program complies
with the provisions of this section and provides for
adequate enforcement of compliance with the require-
ments and standards pursuant to this section.
"(2) If the Administrator determines that a State
program complies with the provisions of this section and
provides for adequate enforcement of compliance with
the requirements and standards adopted pursuant to this
section, he shall approve the State,program in lieu of the
Federal program and the State shall have primary en-
forcement responsibility with respect to requirements of
its program.
"(e) Withdrawal of Authorization. Whenever the
Administrator determines after public hearing that a
State is not administering and enforcing a program
authorized under this subtitle in accordance
with the provisions of this section, he shall so notify the
State. If appropriate action is not taken within a reason-
able time, not to exceed one hundred and twenty days
after such notification, the Administrator shall withdraw
approval of such program and reestablish the Federal
programs pursuant to this subtitle.
"Inspections, Monitoring, Testing and
Corrective Action
"Sec. 9005. (a) Furnishing Information.For the
purposes of developing or assisting in the development of
any regulation, conducting any study, taking any correc-
tive action or enforcing the provisions of this subtitle,
any owner or operator of an underground storage tank
(or any tank subject to study under section 9009 that is
used for storing regulated substances) shall, upon re-
quest of any officer, employee or representative of the
Environmental Protection Agency, duly, designated by
the Administrator, or upon request of any duly designat-
ed officer, employee, or representative of a State acting
pursuant to subsection (h)(7) of section 9003 or with an
approved program, furnish information relating to .such
tanks, their associated equipment, their contents, con-
duct monitoring or testing, permit such officer at all
reasonable times to have access to, and to copy all
records relating to such tanks and permit such officer to
have access for corrective action. For the purposes of
developing or assisting in the development of any regula-
tion, conducting any study, taking corrective action, or
enforcing the provisions of this subtitle, such officers,
employees, or representatives are authorized
"(I) to enter at reasonable times any establishment
or other place where an underground storage tank is
located;
"(2) to inspect and obtain samples from any person
of any regulated substances contained in such tank;
"(3) to conduct monitoring or testing of the tanks,
associated equipment, contents, or surrounding soils,
air, surface water OF ground water; and
Each such inspection shall be commenced and completed
with reasonable promptness.
(4) to take corrective action.
[9005 (a) amended by PL 99-499]
"(b) Confidentiality. (1) Any records, re-
ports, or information obtained from any persons under
this section shall be available to the public except that
upon a showing satisfactory to the Administrator (or the
State, as the case may be) by any person that records,
reports, or information, or a particular part thereof, to
which the Administrator (or the State, as the case may
be) or any officer, employee, or representative thereof
has access under this section if made public, would
divulge information entitled to protection under section
1905 of title 18 of the United States Code, such informa-
tion or particular portion thereof shall be considered
confidential in accordance with the purposes of that
section, except that such record, report, document, or
information may be disclosed to other officers, employ-
ees, or authorized representatives of the United States
concerned with carrying out this Act, or when relevant
in any proceeding under this Act.
"(2) Any person not subject to the provisions of
section 1905 of title 18 of the United States Code who
knowingly and willfully divulges or discloses any infor-
mation entitled to protection under this subsection shall,
upon conviction, be subject to a fine of not more than
$5,000 or to imprisonment not to exceed one year, or
both.
"(3) In submitting data under this subtitle, a person
required to provide such data may
"(A) designate the data which such person believes
is entitled to protection-under this subsection, and
"(B) submit such designated data separately from
other data submitted under this subtitle.
A -designation under this paragraph shall be made in
writing and in such manner as the Administrator may
prescribe.
"(4) Notwithstanding any limitation contained in this
section or any other provision of law, all information
reported to, or otherwise obtained, by the Administrator
(or any representative of the Administrator) under this
Act shall be made available, upon written request of any
duly authorized committee of the Congress, to such
committee (including records, reports, or information
obtained by representatives of the Environmental Protec-
tion Agency). . .
"FEDERAL ENFORCEMENT
"Sec- 9006. (a) Compliance Orders. (1)>
Except as provided in paragraph (2), whenever on the
basis of any information, the Administrator determines
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71:3170
FEDERAL LAWS
that any person is in violation of any requirement of this
subtitle, the Administrator may issue an order requiring
compliance within a reasonable specified time period or
the Administrator may commence a civil action in the
United States district court in which the violation oc-
curred for appropriate relief, including a temporary or
permanent injunction.
"(2),In the case of a violation of any requirement of
this subtitle where such violation occurs in a State with a
program approved under section 9004, the Administra-
tor shall give notice to the State in which such 'violation
has occurred prior to issuing an order or commencing a
civil action under this section.
"(3) If a violator fails to comply with an order under
this subsection within the time specified in the order, he
shall be liable for a civil penalty of not more than
$25,000 for each day of continued noncompliance.
"(b) Procedure. Any order issued under this
section shall become final unless, no later than thirty
days after the order is served, the person or persons
named therein request a public hearing. Upon such
request the Administrator shall promptly conduct a
public hearing. In connection with any proceeding under
this section the Administrator may issue subpoenas for
the attendance and testimony of witnesses and the pro-
duction of relevant papers, books, and documents, and
may promulgate rules for discovery procedures.
"(c) Contents of Order. Any order issued
under this section shall state with reasonable specificity
the nature of the violation, specify a reasonable time for
compliance, and assess a penalty, if any, which the
Administrator determines is reasonable taking into ac-
count the seriousness of the violation and any good faith
efforts to comply with the applicable requirements.
"(d) Civil Penalties. (1) Any owner who
knowingly fails to notify or submits false information
pursuant to section 9002(a) shall be subject to a civil
penalty not to exceed $10,000 for each tank for which
notification is not given or false information is
submitted.
"(2) Any owner or operator of an underground stor-
age tank who fails to comply with
"(A) any requirement or standard promulgated by
the Administrator under section 9003;
"(B) any requirement or standard of a State pro-
gram approved pursuant to section 9004; or
"(C) the provisions -of section 9003(g) (entitled
'Interim Prohibition')
'shall be subject to a civil penalty not to exceed $10,000
for each tank for each day of violation.
"FEDERAL FACILITIES
"Sec. 9007. (a) Application of Subtitle. Each de-
partment, agency, and instrumentality of the executive,
legislative, and judicial branches of the Federal Govern-
ment 'having jurisdiction over any underground storage
tank shall be subject to and comply with all Federal,
Slate, interstate, and local requirements, applicable to
such tank, both substantive and procedural, in the same
manner, and to the same extent, as any other person is.
subject to such requirements, including payment of rea-
sonable service charges. Neither the United States, nor
any agent, employee, or officer thereof, shall be immune
or exempt from any process or sanction of any State or
Federal court with respect to the enforcement of any
such injunctive relief.
"(b) Presidential Exemption. The President may
exempt any underground storage tanks of any depart-
ment, agency, or instrumentality in the executive branch
from compliance with such a requirement if he deter-
mines it to be in the paramount interest of the United
States to do so. No such exemption shall be granted due
to lack of appropriation unless the President shall have
specifically requested such appropriation as a part of the
budgetary process and the Congress shall have failed to
make available such requested appropriations. Any ex-
emption shall be for a period not in excess of one year,
but additional exemptions may be granted for periods
not to exceed one year upon the President's making a
new determination. The President shall report each Jan-
uary to the Congress all exemptions from the require-
ments of this section granted during the preceding calen-
dar year, together with his reason for granting each such
exemption.
"STATE AUTHORITY
"Sec. 9008. Nothing in this subtitle shall preclude or
deny any right of any State or political subdivision
thereof to adopt or enforce any regulation, requirement,
or standard of performance respecting underground stor-
age tanks that is more stringent 'than a regulation,
requirement, or standard of performance in effect under
this subtitle or to impose any additional liability with
respect to the release of regulated substances within such
State or political subdivision.
[9008 amended by PL 99-499]
"STUDY OF UNDERGROUND STORAGE TANKS
"Sec. 9009. (a) Petroleum Tanks. Not later than
twelve months after the date of enactment of the Haz-
ardous and Solid Waste Amendments of 1984, the Ad-
ministrator shall complete a study of underground stor-
age tanks used for the storage of regulated substances
defined in section 9001 (2)(B).
"(b) Other Tanks. Not later than thirty-six months
after the date of enactment of the Hazardous and Solid
Waste Amendments of 1984, the Administrator shall
complete a study of all other underground storage tanks.
"(c) Elements of Studies. The studies under sub-
sections (a) and (b) shall include an assessment of the
ages, types (including methods of manufacture, coatings,
protection systems, the compatibility of the construction
materials and the installation methods) and locations
(including the climate of the locations) of such tanks;
soil conditions water tables, and the hydrogeology of
tank locations; the relationship between the foregoing
Environment Reporter
30
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OSWER Directive 9650.11
Final State Program Approval Rule
B-2
-------
37212 Federal Register / Vol. 53. No. 185 f Friday. September 23. 1988 / Rules and Regulations
Texas (EPA Form). Underground Storage-
Tank Program. Texas Water Commi&sioru
P.O. Box 13087. Ausan. Texas 78711
Utah (EPA Form), Division of Eavircrmental
Health. P.O. Box 4550O. Salt Lain City.
Utah 84145-0500
Vermont (State Form), Underground Storage
Tank Program. Vermont AEC/Wasta
Management Division. State Office.
Building, Montpelier. Vermont 05602.W2l
825-0395
Virginia (EPA Form). Virginia Water Control
Board, P.O. Box 11143, Richmond. Virginia
2323O-1143. KW/ZS7-W8S
Virgin Islands (EPA Form], 20501
Coordinator. Division of Natural Resources
Management 14 F Building. 111. Watergut
Hornet. Christianstead. SLCroix, Virgin
Islands 00820
Washington (State Form), Underground
Storaga Tank Notification. Sob'd and
Hazardous Waits Program. Department of
Ecology, M/SFV-tl. Olympia. Washington
0e504-«m. 200/459-6310
W««t Virginia (EPA Form); Attention: VST
Notification Solid and Hazardous Waste.
Ground Water Branch. West Virginia
Department of Natural Resources^ 120T
Greenbnar Street. Charleston. West
Virginia 2S3H
Wisconsin (State Form}, Bureau of Petroleum
Inspection, P.O. Box 7909, Madrson.
Wisconsin 53707.608/288-7905
Wyoming (EPA Form>. Water Qualify
Division. Department of Environmental
Quality. TT^ra to
detannins if you ar* affected by this, few.
(FR Doc. 88-21153 Fired f-Z2-88r 8S45 amf
wuma cooe tHa-w-w
40 CFR Part 281
[FHL-3385-4I
Underground Storage Tanks; Slat*
Program Approval
AQBtcvr Environmental Protection
Agency (EPA).
ACTION: Final rule.
lieu of the federal program. These
regulations- weze first proposed on April
17,1987 (52 FR 128S3) and were further
developed in a subsequent
Supplemental Notice published on
December 23.1987 [52 FR 48838},
Subtitle I of the Resource
Conservation and Recovery Act (RCRA)
establishes- a federal program for the
regulation of underground storage tanks
(USTs) Subtitle I of RCRA also aUows
EPA to approve state programs to
operate in place of the federal UST
requirements if thojre state programs
have standard* that are no less stringent
than the. federal requirements, and
provide adequate enforcement of
compliance with those standards. States
with approved UST program* will have
primary enforcement responsibility with
respect to UST program requirements in
their states. Today's rale establishes-
final requirements for approval of state
UST programs, and for streamlined
procedures to be used in submitting and
evaluating state- apjplicatkNBB.
DATES: These regulations, will become
effective OD December 22,1S6S.
ABORESSeSThe public docket for this
mlemalung, is available for public.
inapectioA fzon ftOQ AJB to
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Federal Register / Vol. 53. No. 185 / Friday, September 23. 1988 / Rules and Regulations 37213
corrective action, corrective action.
closure, financial responsibility, and
new tank standards. Section 9004
specifies that a state program submitted
to EPA for approval may cover
petroleum substances, hazardous
substances (not including hazardous
wastes), or both.
Under Subtitle L a state with an
approved UST program has primary
enforcement responsibility for the
requirements of its program. EPA retains
authority to take enforcement action in
approved states as necessary and wiQ
notify the designated lead state agency
of any such intended action in
accordance with procedures contained
in a memorandum of agreement
executed with EPA and section
9006(a)(2) of RCRA. In this rulemaking,
EPA establishes requirements that a
state UST program must meet in order
for EPA to approve the program under
section 9004. These regulations are
codified in Part 281 of the Code of
Federal Regulations.
In section 9004. Congress clearly
provided EPA the authority to authorize
state UST programs to operate in lieu of
the federal program. Congressional
intent that Subtitle I be implemented at
the state level is supported by its
legislative history, in introducing the
Subtitle I legislation in 1984. its sponsor
stated: "The purpose of this amendment
is to establish a constructive federal role
to aid the states in establishing
programs to safeguard their water
supplies. Passage of this, program will
help to ensure consistency between
state programs and tan]f standards and
measured progress toward our goal of
protecting ground water from this
ubiquitous source of contamination." 130
Cong. Rec. 9184 (daily ed. July 25.1984)
(statement of Senator Ourenberger).
Accordingly, EPA believes that
Congress intended EPA to play an
important leadership role by
establishing UST criteria, and that,
consistent with statutory requirements.
the state and local governments should
carry out the program wherever
possible. This Congressional intent has
been influential in shaping today's final
rule for state UST program approval.
B. Summary of the April 17 Proposal
The April 17.1987 proposal (52 FR
12853) solicited public comments on
several topics concerning requirements
and procedures for approving state UST
programs to operate in place of federal
UST regulations. In the proposal. EPA
discussed the two criteria for approval
that are required under section 9004 of
RCRA. EPA described requirements for
ensuring "adequate enforcement of
compliance", including the specific legal
authorities that most be available to the
state enforcement agency. The proposal
also presented three possible
approaches that could be used to
determine whether state technical and
program requirements are "no less
stringent" than the federal standards.
In addition, the proposal contained a
number of procedural and
administrative requirements. The
proposal outlined the components of a
standard application for approval. These
components ""^d^ A program
description: an Attorney General's
statement: an implementation plan that
includes a Memorandum, of Agreement;
and copies of all applicable state laws
and regulations. Furthermore, the
proposal suggested procedures that EPA
will follow when evaluating state
applications for approval or when
withdrawing, approval of state programs.
The procedures for reviewing a state
application for approval most be
completed within 180 days, according to
section 9004. and the proposal provided
details on how the review should
proceed: (1) rnnfim that an application
is complete; (2) review the application;
(3) publish a tentative decision in the
Fedesal Register; (4) consider public
comments and hold public hearings if
necessary? and (5) publish a final
decision in the Federal Register.
Finally, the proposal reflected the '
provision in section 8004"that, in cases
when a state program has requirements
that are less stringent in certain areas
than corresponding federal
requirements. EPA could approve these
programs on an interim basis. The
proposal clarified the requirements and
procedures concerning the content and
review of a state application for such
interim approvals.
C. Summary of Supplemental Notice
EPA published a Supplemental Notice
on December 23.1987 (52 FR 48638) that
requested public comments on some
aspects of state program, approval that
EPA believed needed further
clarification. The two parts of this
supplemental notice that dealt
specifically with state program approval
are summarized below.
One part of the supplemental notice
addressed the "no less stringent" issue
and provided further details for public
review and comment on how the
Agency intended to implement its
proposed approach to state program
approval: A comparison of each of the
technical program elements of the state
program to the federal objectives for the
corresponding program elements. For
example, a state's regulations for release
detection as a whole would be
compared to the federal objectives for
release detection. As long as the state
program's overall requirements for.
release detection were "no less
stringent" than the federal objectives for
release detection, then EPA could
approve that state program element. An
essential part of this process was the
identification in the supplemental notice
of federal objectives for each of the
eight program elements. These federal
objectives were proposed to clarify
what constitutes acceptable "no less
stringent" requirements in state
programs.
The other part of the supplemental
notice concerning the issue of state
program approval requested comment
on providing additional flexibility to
implementing agencies by changing ths
wording of several sections of the
technical standards proposed on April
17. These proposed wording changes
were intended to allow state
implementing agencies to substitute
their own procedural and administrative
requirements for those detailed in the
federal technical standards for USTs.
D. Summary of Public Comments
EPA received many comments '
regarding both the April 17 proposed
rule for state program approval and the
December 23 supplemental notice. Four
major issues were identified by public
comment: Implementation by states and
localities: adequate enforcement- no-
less-«tringent criteria; and federal
funding. These issues are briefly
highlighted below and discussed in more
detail in section IV of today's preamble.
Implementation by states and
localities. Many commenters expressed
concern about the potential for a lack of
national consistency, which they
believed would be an inherent result of
the proposed rule for state program
approval. They recommended that EPA
not approve state regulations that would
be different and perhaps more stringent
than the federal rule. In addition.
several other commenters were
concerned that implementation of the
UST program by local governments,
specifically those with different
technical regulations, would cause
confusion for the regulated community.
EPA received other comments
concerning implementation by local
governments. Generally, these
commenters requested that EPA's final
. approval rule require that states
negotiate with localities and include
them in plans for UST program
implementation.
Adequate enforcement criteria. In.
defining what constitutes "adequate
enforcement", commenters particularly
wanted clarification of EPA's policy
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37214 Federal Register / Vol. 53. No. 185 / Friday. September 23, 1988 / Rules and Regulations
regarding enforcement Some
commenters. requested that broad
objectives be developed as a means of
approval in the federal rule, and some
suggested such objectives should be part
of the regulations. Others thought that
guidance alone would be appropriate.
Commenters also objected to the
requirements for inspections and
surveys, and wanted clarification of
EPA's expectations. Regarding legal
authorities required for enforcement,
many commenters felt that states must
be allowed to evaluate their own
penalties and devise their own
approaches on a case-by-case basis, and
that EPA could require, at a minimum,
general categories of authorities without
dictating their terms. Finally, many
commenters expressed concern about
EPA's public participation requirements
for state program approvals. Some
commenters suggested that states
should be allowed to assess the degree
of participation necessary for each
individual case, while others questioned
the statutory authority for requiring
specific levels of participation as criteria
for approval
No lest stringent criteria. In the
April 17 preamble, EPA had considered
three options for determining whether
state programs meet the no-less-
stringent criteria. Some commenters
supported EPA's proposed approach
(option 3), which compares the state and
federal programs element-by-element as
the most flexible and implementable. An
"element", was one of the paragraphs
(1) through (8) hi section 9004(a). Each
paragraph defined an element for
example, release detection. Others
claimed that only the holistic approach
of option 1 that evaluates the overall
results of a program gave states
sufficient flexibility. These commenters
also stressed that effectiveness in
meeting the environmental goals should
be considered first in approving states
rather than the ability to meet specific
Individual legal requirements. A few
commenters supported the line-by-line
approach of option 2. believing that the
flexibility of the other options could lead
to the approval of inadequate programs.
Many comments were received on
EPA's proposed approach to
implementing state program approval
Most commenters agreed with the use of
objectives for determining the
stringency of state programs and liked
the objectives that EPA outlined in the
December 23 supplemental notice. In
general they believed the objectives
would facilitate state program approval
by allowing state programs the
necessary room to develop regulation*
appropriate to the individual state's
geographical characteristics and
regulated communities. For the same
reason, these commenters also liked
EPA's proposal to provide states
additional decisionmaking authority
within the technical and financial
responsibility regulations.
Some commenters, however, did
express reservations about EPA's
proposed approach to provide states
with flexibility. Most of these
commentera felt that while flexibility
was an admirable goal consistency was
also important These commenters
argued that the proposed regulations,
particularly the additional state
decisionmaking authority in the
technical standards, allowed too much
flexibility to the states without
providing assurances that such
flexibility was necessary to protect
human health and the environment A
few commenters disagreed completely
with the objectives approach and stated
that objectives were not a substitute for
detailed technical requirements.
Federal funding. Some commenters
raised the issue of the high cost of
developing state UST programs
compared to the small amount of federal
funding available to assist state program
development They protested that EPA
wanted states to run a program without
sharing sufficient funds to make it
possible and they urged the Federal
Government to provide more grant
money.
£ Important Influences on Today's Rule
In developing today's final rule for
state program approval the Agency has
taken into consideration several
characteristics of the UST system
universe that are associated with any
attempt to regulate UST system
management The following sections
identify and discuss the influence of
specific features of the UST system
universe on the approval of state
programs.
1. Leaking USTs Present a Unique
Regulatory Challenge
EPA's approach to the regulation of
UST systems on a national scale must
be different from that undertaken by
most of its other regulatory programs
because the UST problem is
significantly different This difference is
mainly due to two factors: The large
number of facilities to be regulated and
the nature of the regulated community.
The most significant problem is the
sheer size of the regulated community.
Nationally, over 700,000 UST facilities
account for about 2 million UST
systems. Estimates indicate that roughly
75 percent of existing UST systems are
unprotected from corrosion (and thus
present a serious environmental risk). A
relatively high proportion of UST
facilities (10 to 30 percent) already have
had a leak, and soon others will leak
unless measures are taken to upgrade
them
Another problem arises from the
nature of the regulated community. A
large proportion of USTs are owned by
small businesses with $500,000 or less in
total assets. For example. 72 percent of
all retail motor fuel outlets are owned
by small businesses. These small
entrepreneurs, who are used to
operating their businesses under
minimal regulation, will be significantly
affected by environmental regulations
for UST systems. In the promulgation of
the technical standards elsewhere in
today's Federal Register, EPA has
attempted to minimi the regulatory
impact on small businesses without
compromising the statutory
requirements to protect human health
and the environment.
In addition, the problem of releases
from USTs is multi-faceted. There are
three major sources of release incidents:
Product delivery piping failures;
corrosion of unprotected tanks; and
spills and overfills. Environmental
regulations for UST systems must be
aimed at preventing these different
types of petroleum and hazardous
substance releases as well as increasing
the ability to quickly detect and
minimize the contamination of soil and
ground water by such releases, and
ensuring adequate cleanup of
contamination. To do this, UST
regulatory requirements must address
every phase of the life cycle of a storage
tank system: Selection of the tank
system: installation; operation and
maintenance; financial responsibility;
closure: and cleanup of the site where
releases have occurred.
In summary, the size of this regulated
community, the predominance of small
business ownership of the UST systems,
and the need for comprehensive
management of an UST so that releases
are minimized during its operating life
present a unique regulatory challenge.
This challenge calls for the
consideration of new approaches from
federal state, and local regulators. Some
existing state and local UST programs
already provide effective UST
management through a variety of
different approaches. In developing a
strategy for approval of state UST
programs, EPA has been guided by a
realization that there is often more than
one way to ensure sound UST
management using different regulatory
approaches.
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Federal Register / Vol. 53. No. 185 / Friday. September 23, 1988 / Rules and Regulations 37217
element-by-element. (Section 9004(a) of
RCRA establishes those elements that
must be included in a state program in
order to receive EPA approval; under .
today's rule an element is a discrete
segment of a comprehensive UST
management program that has an
identifiable objective.) EPA believed
this option gave the best combination of
flexibility and ease of implementation.
On December 23,1987, EPA requested
public comment on certain general
objectives provided as the criteria for
determining the stringency of each
program element. Today, the Agency is
promulgating these criteria substantially
as presented in the December 23 notice
(although the objective for financial
responsibility will be promulgated at a
later date with its associated technical
rules), except that they do reflect the
points of departure made to the
proposed underlying technical standards
(discussed elsewhere in today's Federal
Register) and public comments on the
supplemental notice.
As discussed in the December 23
notice, EPA does not believe that the
specific federal requirements in the Part
260 regulations provide the only
definitive and protective approach for
UST regulation. In developing the
federal technical standards, EPA
recognized that other approaches would
meet EPA's overall performance
objectives. These federal technical
standards are by necessity more
detailed and specific than the objectives
they are designed to meet because the
federal regulations must be able to be
implemented by the regulated
community and must be enforceable in
those states without approved state
programs. As indicated in today's rule,
EPA does not believe that the individual
requirements set forth within the federal
program elements should necessarily
preclude states from developing other
apprpaches that will achieve the overall
objectives of performance identified for
purposes of state program approval.
The objectives in Subpart C of today's
final rule identify the performance
standards for each element that the
federal requirements are intended to
meet and that a state program must
meet in order to be as stringent as the
federal program. They ensure that state
programs meet the basic standards
established by the federal program but,
at the same time, do not dictate the
methods the states can use in reaching
these standards. EPA believes this
approach to state program approval will
provide the states with significant
flexibility, permit alternative methods of
implementation, and still ensure that
state UST programs achieve the same
result in protecting human health and
the environment as the federal program.
Under section 9004, EPA also must
ensure that state programs demonstrate
"adequate enforcement" of compliance
with program requirements. EPA
proposed that states demonstrate
compliance monitoring and enforcement
authorities and basic compliance
monitoring procedures. In addition, EPA
solicited comment on whether it should
require a demonstration of enforcement
response procedures. As a result of
public comments, the Agency is
promulgating regulations for adequate
enforcement that require state programs
to demonstrate compliance monitoring
and enforcement authorities and
procedures for implementing those
authorities (except in the area of public
participation, where EPA will allow the
state to choose between specific
authorities or procedures). As explained
above, EPA seeks to approve a variety
of state programs and to encourage
states to use innovative approaches in
all program areas, including monitoring
compliance and undertaking
enforcement actions. In the near future,
EPA will be issuing additional guidance
on "adequate enforcement" that will
provide examples of acceptable
compliance monitoring and enforcement
programs currently being used by
several states.
Today EPA Is also clarifying the issue
of program scope. In evaluating the
state's program scope, EPA considered
requiring states to include all the
jurisdictional definitions listed in the
federal technical standards rule. EPA
concluded, however, that this would be
both burdensome and unnecessary.
Instead, the state must describe its
jurisdiction and regulated population in
the program description to show that its
program includes the UST population
that is covered by the federal program.
Broad state authorities are sufficient if,
under state law, they cover the same or
a greater universe than the federal
program. States may, of course, choose
to adopt any of the terms that are
included in the list of definitions in the
federal regulations at 40 CFR 280.12.
IV. Analysis of Today's Rule
The following sections of this
preamble Include discussions of the
major issues and address the public
comments received in response to the
April 17 proposed rule and December 23
supplemental notice.
EPA has reorganized the proposed
rule for two reasons. First, the Agency is
incorporating as Subpart C of today's
rule the criteria for "no less stringent" as
proposed on December 23,1987 (52 FR
48638), except for the criterion for
financial responsibility which will be
promulgated at a later date along with
its supporting technical rules. Second,
the Agency has clarified the
requirements for adequate enforcement
as a component of the state's
application. Previously, the adequate
enforcement demonstration was
proposed to be part of the program
description. Today, the Agency is
promulgating the adequate enforcement
requirements in a separate subpart of
the rule. Further explanation of this
change can be found later in this
preamble (section IV.B.). For ease of
reference, the following preamble
discussion is organized to address each
subpart of the rule separately.
A. Subpart APurpose, General
Requirements, and Scope (§§281.10
through 281.12)
Section 9004 of RCRA sets forth a
number of requirements for state UST
program approval. Section 9004(a)
establishes the elements that must be
included in a state program in order to
receive EPA approval. In order to
correspond with the technical
requirements promulgated elsewhere in
today's Federal Register (or to be
promulgated later, in the case of the
financial responsibility standards), EPA
refers to these program elements as new
UST systems; upgrading of existing UST
systems; general operating
requirements; release detection; release
reporting, investigation and
confirmation; release response and
corrective action; out-of-service UST
systems and closure; and financial
responsibility. Section 9004(b) requires
that each of the state program elements
be no less stringent than the
corresponding federal program elements
for final approval. (A discussion of the
Agency's approach to determining "no
less stringent" is provided in Subpart C
of this section of the preamble.) Under
section 9004(b) state programs may
receive interim approval as long as
certain (but not all) requirements are no
less stringent than the corresponding
federal standards. In the preamble to the
April 17 proposal, EPA solicited
comments on the requirement that a
state seeking interim approval must
have each program element present in
some form before interim approval. No
comments were received on this issue,
however. The proposed regulatory
language simply provided that a state
must have requirements in all the
program elements, including the less
stringent ones, as a condition of
receiving interim approval. The
proposed rule did not specify the type of
requirements the states must have for
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37218 Federal Register / Vol. 53. No. 185 / Friday, September 23, 1980 / Ruleu and Regulations
Ihcae other less stringent elements.
Therefore, the Agency is clarifying that
o state must have at least general
statutory authority for the less stringent .-
elements.
EPA received many comments
regarding the program elements
necessary for interim approval. Many
commcnlers expressed concern that
some of the most difficult program
elements to achieve were required to be
"no less stringent" at the time of
application in order for a state to qualify
for interim approval. The commenters
suggested that EPA change this in the
final rule. The Agency agrees with these
commenters that the program element
requirements required to be no less
stringent at the time of application, such
an financial responsibility, may be the
most difficult to develop. The Agency,
however, has promulgated these no less
stringent requirements substantially as
proposed because they are set forth by
statute and cannot be changed through
rulemaking.
In the proposal, the elements of a
state program that must be immediately
no less stringent were listed as
corrective action, financial
responsibility, notification, and new
tank performance standards. Those
elements that could be less stringent
were listed as leak detection and
prevention, recordkeeping for leak
detection, reporting of releases and
corrective action, and closure. Since the
April 17 proposal, the elements of a
program have been reorganized to
parallel the order in the technical
standards, and the new tank
performance standards have been
divided into standards for upgrading
existing UST systems and general
operating requirements as well as
standards for new tank design,
construction, installation and
notification.
In order to be no less stringent than
the federal program, a state must have
requirements for upgrading of existing
UST systems and for general operating
requirements. For purposes of interim
approval of state programs, these
elements are considered to be part of
the new tank performance standards.
Therefore, a state applying for interim
approval must have requirements that
meet the federal objectives for the
following elements: New tank design,
construction, installation, and
notification; upgrading existing UST
systems; general operating
requirements; release response and
corrective action; and financial
responsibility.
If a state chooses to apply for interim
approval, it is accepting the limitations
associated with it. It must upgrade all
less stringent authorities within the
federal law's established timeframes.
EPA acknowledges that this limitation
will make interim approval less
'attractive to states, and will discourage
states from applying for interim
approval. Today's rule, however,
provides procedures for both final and
interim approval, including the
automatic expiration of interim approval
when a state with interim approval does
not submit a program revision within the
prescribed time periods.
Under sections 9004 (a) and (d), the
stale UST program must also provide for
adequate enforcement of compliance.
The Agency proposed, and today is
finalizing, requirements mandating
certain stale legal authorities and
procedures for compliance monitoring
and enforcement. These regulatory
requirements are found in §§ 281.40
through ?01.43 and are discussed in
greater detail later in this preamble.
The following section of the preamble
explains the parts of the state's
application that must be provided to
demonstrate coverage of all of these
requirements.
B. Subpart DComponents of a Program
Application (§§281.20 through 281.25)
Today's regulation identifies the
components that must be included in the
state program application package
submitted to EPA. Many commenters
requested that the Agency keep the
application process as flexible and
streamlined as possible. The Agency
attempted to do this, and has simplified
the process even further by designing a
standard state application form that will
be provided in a State Program
Approval Handbook to be issued before
the effective date of this rule. The use of
this application form is optional and the
state may submit whatever application
form that it prefers as long as it meets
the regulatory requirements. As outlined
in § 201.20 (a) through (g), the state's
application must at least contain the
following basic parts: (1) A transmittal
letter from the Governor of the state; (2)
a description of the current state
program; (3) a description of compliance
monitoring and enforcement procedures;
(4) a schedule for interim approval,
where applicable; (5) a Memorandum of
Agreement; (6) a statement from the
state Attorney General; and (7) copies of
all applicable slate laws and
regulations. Although for purposes of
clarity today's rulemaking separately
addresses the Attorney General's
statement and the demonstration of
adequate enforcement, the state may
join the two into one document in the
application package.
The Agency had originally proposed
that states submit an implementation
plan as part of the application for
program approval. The proposed
implementation plan included: a long
tnrm implementation strategy; a
schedule for interim approval; and a
Memorandum of Agreemenl (MOA).
One commenter expressed concern
that the implementation plan (proposed
§ 281.22) was redundant and therefore
burdensome to require both a program
description and an implementation plan.
This commenter questioned the purpose
of a long lerm implementation strategy,
interpreting It to suggest that EPA would
conduct detailed oversight of approved
state programs. The commenter asked
whether the Agency would disapprove a
state that did not achieve the goals laid
out in the long-term implementation
strategy.
The Agency's intention is to conduct
oversight in a manner that allows for
changing circumstances. The original
intent of the long-term implementation
strategy was to provide a starting point
that the Agency could use to determine
the amount of assistance the state
needed to improve its UST program.
EPA expects that a significant amount of
this improvement will occur after state
program approval. As a result, the '
information provided by the plan can
and should be satisfied apart from the
approval process, and thus the proposed
long-term implementation strategy is
unnecessary. Because EPA believes that
the implementation plan is no longer
necessary for approval, and to be
consistent with its efforts to streamline
the application package, EPA has
deleted the proposed requirement for an
implementation plan. The schedule for
interim approval and the MOA are now
separate application components.
A brief description of each of the
reorganized components in the final rule
is provided below.
1. Transmittal Letter (§ 281.20(a))
A transmittal letter signed by the
Governor of the state must accompany
the original state application. This letter
serves to transmit the state's formal
request for UST program approval, and
indicates that the Governor has
approved the designated lead state
agency for implementation of the UST
program.
2. Program Description (§ 281.21)
The program description is intended
to provide EPA and the public with
basic information on the extent of the
state's effort to manage UST systems.
During the formal 180-day application
review period, EPA must issue a public
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Federal Register / Vol. 53. No. 185 / Friday. September 23. 1988 / Rules and Regulations
37219
notice of the tentative decision to
approve or disapprove a state program
application. As part of that notice. EPA
must note the availability for inspection
by the public of the state program
application. The information in the
program description is necessary to
ensure that the public is informed of (1)
the state's scope and jurisdiction, and
(2) the state's plans for implementing an
UST regulatory program in lieu of the
federal program. Many commenters
asked how EPA would use the resource
information in the program description.
In particular, they were concerned that
specific staffing and funding figures
would be set by EPA in determining
state approval or disapproval. EPA
notes that states have been receiving
federal grant funds for program
development since 1986. These grants.
which require matching state funds,
have enabled states to develop
notification systems, obtain necessary
legislation, write regulations and
policies, and hire and train staff. In
addition, most states now have LUST
Trust Fund cooperative agreements that
provide funds for corrective action, staff
hiring and training, and enforcement
and cleanup activities. Through the
grants and cooperative agreements, and
matching state funds, most states have
demonstrated sufficient staffing and
management capability for purposes of
state program approval.
The program description must address
several subjects. First the scope of the
state's UST program is described.
including the extent of the state's
jurisdiction and whether the state
program is a "partial" or "complete"
program. Knowledge of program scope is
important for approval because the
approved state program is formally
designated to operate in lieu of the
federal program. Thus, the state program
must regulate at least the same
categories of UST systems and
substances as the federal program to
avoid non-regulation by states of
categories of UST systems that Congress
intended to be regulated under the
national UST program. The program
description also indicates whether the
state's authority extends to Indian
lands. For those states that do not have
authority over their Indian lands. EPA
will implement an UST program on
those lands.
Although the Agency received no
comments on program scope, EPA is
providing further clarification of its
requirements in this area with regard to
partial and complete programs. To
demonstrate that the state program
coven the same universe as the federal
program, the state definitions will be
compared to the following six basic
terms, defined in Subtitle L that EPA
believes are essential hi defining the
scope of the federal UST universe.
Those six terms, which are defined in
Section 9001 of Subtitle L are: operator.
person, release, regulated substances,
petroleum, underground storage tank.
(Of course, the state may incorporate
any of the other terms that are included
in the list of definitions in the federal
regulations at 40 CFR 280.12.) The
Agency does not require the state to use
the exact definitions of these terms
promulgated in the federal regulations.
Broadly written state authorities will be
sufficient although the Agency may ask
for a clarification if it is not clear that a
state definition includes the same
jurisdiction as the federal program. For
example, rather than defining
"underground storage tank," a statute
that could regulate any facility with
potential for release into air, soil or
ground water would be sufficient
Section 281.12(a) allows the
Administrator to approve either partial
or complete state programs as specified
in section 9004(a) The definition of a
"partial" state program is one that
regulates either petroleum tanks only or
hazardous substance tanks only. To
receive program approval, a partial state
program must include within its
jurisdiction all of the major categories of
UST systems that are addressed within
the scope of the federal program for
either petroleum tanks or hazardous
substance tanks. For instance, a state
program only covering petroleum tanks
will not be approved if it does not cover
retail motor fuel UST systems. The state,
however, does not have to have
immediate jurisdiction over all
categories of petroleum tanks. To be
approved in such cases, the state must
reach an agreement with EPA in the
Memorandum of Agreement on how
those tanks not in the state scope will be
regulated, and the state also must
provide a schedule showing its plan for
expanding its jurisdiction so that these
tanks will be regulated by the state.
A "complete" state program regulates
both petroleum and hazardous
substance tanks, and the state must
have jurisdiction over at least the same
categories of tanks as the federal
program. As discussed above, the state
may indicate in the MOA how any tank
not hi its jurisdiction will be covered as
long as it provides a schedule for
expanding its jurisdiction Those
categories of USTs that EPA had
proposed to defer but now regulates in
the final technical standards must be
included within the scope of the state
program. For example, used oil USTs
need to be regulated under state
programs.
Today's final technical rules do not
cover certain UST systems. Because the
Agency currently has insufficient
information to decide whether to
regulate these deferred USTs, the
question of what (if any) standards are
appropriate will be considered in the
future. Deferred UST systems, however.
are subject to interim prohibition and
the release response and corrective
action requirements under the federal
program. UST systems storing fuel for
emergency generators are subject to all
but the release detection requirements.
Thus, EPA and the state must agree on
how to oversee compliance of the
regulatory requirements applicable to
any deferred USTs in the MOA. States
may want to consider including the list
of deferred USTs within their statutory
authority from the start to avoid the
necessity for future changes to expand
their jurisdiction when and if federal
regulations for the deferred systems are
eventually published
EPA has exempted by regulation
certain other categories of UST systems
entirely, and states will not need to
include these systems within their
jurisdictions in order to have adequate
program scope for approval The
categories of USTs that are deferred and
exempted are described elsewhere in
today's Federal Register.
Today's rulemaking does not hinder
states from implementing a state
program that is broader in scope than
the federal program (J 281.12(a)(3)). A
state program, for example, may
regulate all heating oil tanks, although
tanks used for storing heating oil for
consumptive use on the premises where
stored are excluded from the federal
UST program. In such cases, the
additional scope of coverage is not
reviewed by EPA as part of the state
program approval process. In addition, if
EPA were asked to provide enforcement
assistance. EPA cannot enforce these
additional state requirements. On the
other hand, hi approved states with
requirements (such as release detection)
that are more stringent than the
corresponding federal requirements, the
more stringent requirements are part of
the approved program and are federally
enforceable (§ 281.12(a)(3)).
Second, this program description will
also describe the organizational
structure of any state and local
implementing agencies administering the
UST program within a state. The
program description must generally
identify the major jurisdictional
responsibilities, program operation
roles, and lines of communication and
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37220 Federal Register / Vol. 53, No. 185 / Friday, September 23. 1988 / Rules and Regulations
authority of these implementing
agencies. Copies of any Memoranda of
Understanding (MOUs) or written
agreements for coordination of intra-
slato responsibilities should be
provided.
In addition, the program description
should identify the number of persons
currently involved in UST program
operations, their general functions, and
the staff expected to be employed in the
near future (if available]. State
applications should also explain any
limitations on hiring or the utilization of
existing staff. This information is
requested so that the public will be
informed of operating constraints when
the approval application is made
available to the public through the
formal review process. This information
would rarely be a determining factor in
assessing the adequacy of the state's
program for regulating the UST system
universe. In their response to the
proposal, many states commented on
their current resource problems. The
Agency will not dictate staffing levels
for purposes of state program approval.
Third, the program description should
explain any plans the state program has
for meeting the estimated future costs of
administering the program. There will be
no minimum base number used by EPA
In approving state programs. All states
must have some source of funding
independent of federal grant monies.
The Subtitle I federal grants are
provided by Congress as seed money for
UBQ by states to initiate program
development, among other things. EPA
received many comments about the high
costs of Implementing UST programs in
the states. EPA will not expect states to
have all necessary funds available at
the time of application for approval. As
with staffing, EPA will approve states
that need to develop additional funding
sources, and believes that funding is a
longer-term issue that is largely separate
and apart from the state program
approval process.
In conclusion, EPA does not expect
the resource information required in the
program description to result in the
disapproval of state programs. Only in
the unlikely situation where a state
clearly has insufficient staff or funds to
implement its program will EPA
disapprove the state because of
Inadequate resource levels. The program
description, in general, will be used by
EPA and the public as background
information that will help to ensure that
a viable state program does exist.
Additional guidance on the program
description and the other parts of the
application is being made available to
stales in the form of a State Program
Approval Handbook, which EPA has
, developed to help states implement
today's rule.
In the April 17 proposal, EPA required
states to include a description of their
compliance monitoring and enforcement
procedures in the program description.
In reorganizing the proposal, EPA is now
including compliance monitoring and
enforcement as separate parts of the
application. The Attorney General's -
statement (§ 281.25) should include the
state's authorities for compliance
monitoring and enforcement. The state's
demonstration of adequate enforcement
(§ 281.22) will ensure that the state has
appropriate procedures for
implementing those authorities. EPA's
criteria for evaluating the adequacy of
the state's authorities and procedures
are explained under Subpart D of this
preamble.
3. Description of Compliance Monitoring
and Enforcement Procedures (§ 281.22)
The description of compliance
monitoring and enforcement procedures
must include information on the state's
procedures for UST population
identification, general compliance
monitoring, and general enforcement
response. More specifically, the
implementing agency must have systems
for: Updating and maintaining an
inventory of the UST population;
collecting and maintaining data on
violators and monitoring their
subsequent compliance status over time;
and exercising legal authorities to take
enforcement actions against violators,
bring them into compliance, and deter
other potential violators.
4. Schedule for Interim Approval
(§ 281.23)
States applying for interim approval
must include a schedule to propose,
finalize, and change the necessary
regulations and legislation. The schedule
should address major milestones in the
program development process, for
example, submission of draft legislation,
proposal of regulation, and promulgation
of final regulations.
5. Attorney General's Statement
(§ 281.25)
A fifth component of the state UST
program application is a statement from
the state Attorney General certifying
that state laws and regulations provide
adequate authority to implement the
required elements of an approved
program. The Attorney General's
statement is the foundation for ensuring
that the state UST program is no less
stringent than the federal program. The
Attorney General, or an independent
legal counsel for the state, must certify
that the state laws and regulations
provide authority to Implement the
program described in the application
and has legal authorities for compliance
monitoring and enforcement that meet
the requirements of |§ 281.40 through
281.43.
6. Memorandum of Agreement {§ 281.24)
The MOA explains EPA's and the
lead state agency's respective
responsibilities for UST program
administration and enforcement. The
state staff will develop the draft MOA in
close consultation with EPA staff. The
MOA will be particularly important if a
state is applying for approval of only a
partial UST program. In addition, if the
state program does not cover the same
universe of underground storage tanks
as the federal program, the MOA should
include an agreement between the state
and.EPA with regard to how those tank
systems not covered by the state
program will be regulated.
EPA received comments suggesting
that local agencies be allowed to sign
the MOA. The MOA, however, is signed
only by EPA and the lead state agency
because it is important to have all UST
program issues within the state
coordinated by one lead state agency.
The need for coordination makes it
impractical for other participating state
agencies and all the local authorities to
sign the MOA. In addition, EPA is only
authorized to approve states.
7. Copies of All Applicable State Laws
and Regulations (§ 281.20)
Copies of all applicable state laws
and regulations are essential for EPA to
evaluate the state program's scope and
technical requirements. This information
will also serve as the basis for
establishing a record of the state laws
and regulations regarding USTs in
approved states. EPA will codify state
programs by incorporating state laws
and regulations by reference as part of
its final approval of the state program.
Codification will enable all interested
parties to receive notice of which state
laws and regulations comprise the
Subtitle I program in approved states.
Another reason the Agency codifies
state laws and regulations is to clarify
the requirements that are effective in
that state for purposes of federal
enforcement. Once the state program is
approved, it operates in lieu of the
federal UST program. Therefore, if EPA
were to take an enforcement action in
an approved state, it would do so using
federal authorities but citing violations
of state law or regulations.
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Federal Register / Vol. 53. No;IBS/ Friday. September^3. TSSSI Rules and.Regolations 37221
C. Subpart CCriteria for "No Less
Stringent" (§§28130 through 281361
1. Background
a. Summary of public comments. In
the preamble to the April 17 proposal (52
FR12858). EPA solicited comments on
three options for determining whether
technical requirements in states seeking
approval are no less stringent than the
corresponding federal standards.
Several states commented on the
importance of two goals: Establishing
flexible criteria for approval of state
programs, and clearly identifying the
mininmim state program requirements in
the final state program approval
regulation. EPA recognizes that these
two goals may often be in tension, and
today's final rule attempts to strike a
balance between them through the
establishment of clear baseline criteria
that will accommodate effective existing
state UST programs to the greatest
extent possible consistent with the
statute.
The Agency's preferred option
consisted of comparing the overall
requirements within each technical
program element of the state program to
the federal objective for that element
Whether the state program element was
no less stringent would be determined
by its performance in meeting the
overall federal objectives for that
element The two rejected options
included (1) a holistic evaluation that
would compare the overall stringency of
the total state program to the total
federal program, which would allow
trade-offs between program elements
(for example, balancing less stringent
financial responsibility with more
stringent release detection
requirements), and (2) a line-by-line
comparison of specific state and federal
requirements. In the second of these two
options, all the federal requirements
would be matched by identical or
closely similar state requirements for
purposes of state program approval.
Many comments were received on
these options for defining "no less
stringent" Some commenters felt that
only the holistic approach would allow
states sufficient flexibility. Some
commenters believed that only a line-
by-line review would result in no less
stringent state programs. Other
commenters agreed with the Agency's
preference for the element-by-element
approach as a balance between
flexibility and certainty. EPA carefully
reviewed these comments and still
prefers the element-by-element
approach. This decision was based on
EPA'a intention (1) to develop a state
program approval process that will
allow state* to use alternative
approaches in program development
and implementation, and (2) to ensure
that state programs meet the baseline
standards established in the federal
program to protect human health and
the environment
In the preamble to the April 17
proposal EPA requested comment on
whether to include state approval
criteria in regulation or guidance. Many
commenters wrote, and the Agency
agrees, that including the criteria in
regulation would ensure needed
consistency and clarity in approving
state programs. Subpart C of today's
final rule provides the criteria all states
must meet before receiving approval.
and that EPA will use in judging each
state application.
In its supplemental Federal Register
notice of December 23,1987. EPA
proposed criteria for state program
approval in the form of objectives for
each of the eight technical program
elements: New UST system design.
construction, installation and
notification; upgrading existing UST
systems; general operating
requirements: release detection: release
reporting and investigation; corrective
action: out-of-service and closed UST
systems; and Krumna\ responsibility.
Through the process of identifying the
underlying purpose of the federal
technical requirements in each program
element EPA developed the proposed
federal objectives. The Agency's own
interpretation of administrative and
procedural details that wen in the
technical rule were intentionally left out
of the federal objectives.
These objectives represented the
Agency's expectations of what
constitutes a no-less-stringent state
program. By requiring the state to
achieve the objectives underlying the
detailed federal requirements in each
element rather than match each
regulatory detail of the federal
requirements, EPA provides a
performance-based measure for
evaluating programs and recognizes that
the precise details in the federal
program are not the only feasible
approach to UST regulation. By
establishing these objectives, EPA also
provides a framework for approval that
guarantees that each state UST program
provides a minimum level of protection.
Many comments were received on
EPA's proposal to use the objectives as
criteria for state program approval.
Many commenters agreed with the
objectives approach and felt that
objectives would allow development of
regulations appropriate to the
geographical characteristics and the
profile of the regulated community of
each individual state. Some commenters
agreed with the objectives approach, but
they suggested that the objectives
needed to be more specific in several
areas. The Agency has reviewed each of
the objectives and provided greater
specificity for several of them. More
details and guidance are included in
today's preamble in the section-by-
section discussion of the objectives for
each program element Other
commenters expressed concern that the
objectives not be confused with
regulations and emphasized that the
objectives should be viewed by the
states as no less stringent review
criteria, but not as the model to be
copied into state regulations. EPA
agrees with these commenters and, in
the following section, has provided
further guidance on how states should
develop regulations that will meet the
performance goals set out in the
objectives. Furthermore, the Agency has
developed a Handbook for State
Program Approval that will give more
guidance and clarification on meeting
the objectives.
One commenter discussed the legality
of the federal objectives approach. This
commenter argued that the approach
was illegal, saying that Congress did not
authorize EPA to create a subset of the
federal requirements that would be used
to assess the adequacy of state .
programs. However, EPA does not agree
with the commenter who argued that the
federal objectives and element-by-
element approach promulgated today
are inconsistent with Congressional
intent First under today's rule. EPA is
not contrary to the commenter's
suggestion, picking and choosing a
subset of federal requirements by which
to judge the stringency of state UST
programs. Instead, the federal objectives
and the element-by-element approach
are designed to identify, on a holistic
basis, the environmental performance
standards to be achieved by the .
technical requirements in each program
area. State programs, will be required to
achieve the performance standard for
each program area rather than match
each detail in the federal rule. EPA does
not believe that the environmental
objectives approach set out in today's
rule will result in the approval of state
UST programs that are less stringent
than the federal UST program.
Second, the language of section 9004
is consistent with the federal objectives
and element-by-element approach
promulgated in today's rue. Section
9004(b) requires EPA to judge the
stringency of state programs by
comparing the state requirements in.
seven program areas to the
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37222 Federal Register / Vol. 53. No. 185 / Friday. September 23. 1988 / Rules and Regulations
corresponding federal standards.
Nothing in the statutory language
suggests that a line-by-line comparison
must be made between individual state
requirements and corresponding federal
regulations. Rather, paragraphs (a) and
(b) of section 9004, when read together,
strongly suggest that the relevant
comparison is to the standard set in
each federal program area.
Consistency among state programs
was an objection raised by many
commenters who are concerned that
UST programs that vary from state to
state will create an excessive
compliance burden on those members of
the regulated community operating in
more than one state. These commenters
believe some flexibility for states is
useful, but that uniformity and
consistency are equally important Some
commenters pointed out that the federal
technical rule is the result of extensive
research and analysis, and they
suggested that states should be
encouraged to adopt the federal
standards.
EPA does not believe, however, that
the specific federal requirements in the
technical rule provide the only definitive
approach for protection of human health
and the environment Many of the
specific details of the federal regulations
are necessary to establish requirements
that the regulated community can follow
and that the Agency can enforce. State
regulations must accomplish the same
underlying goals that the federal
requirements aim to achieve. If a state
chooses to accomplish them using
different methods or administrative
procedures than the federal government
however, EPA does not believe that that
choice should preclude program
approval.
b. The technical standards rule and
state program approval. The details
provided in the technical rule had to be
included so that the regulated
community could understand
specifically what had to be done to
comply with federal requirements, and
so that the regulations could be
enforceable by EPA. Given the nature of
the state program approval process, EPA
is aware that state program reviews will
inevitably entail some comparison of
specific federal and state technical
requirements because EPA's technical
requirements provide a model against
which the state program can be
measured. The Agency is concerned that
requiring such a line-by-line review of
state programs would result in delays
that would be due to issue* having little
to do with that actual stringency of the
state program or its overall
performance. Thus, in order to establish
the federal objectives for each program
element EPA distinguished between
those requirements in its technical
standards that are substantive baseline
environmental standards from those
procedural and administrative
requirements that are necessary to
protect human health and the
environment but are not the only
approach for doing so. The farmer only
are the basis for state program approval
under the "no less stringent" standard.
The latter may also be advised through
a variety of approaches established by
the implementing agency in states that
have not yet received program approval.
In the Supplemental Notice. EPA
requested comment on whether changes
were needed in several provisions of the
proposed UST technical standards to
ensure the intended flexibility was
available for the approval of states that
are no less stringent These changes
would allow states to substitute their
own procedural and administrative
requirements for those set forth by EPA
in the federal technical standards. Many
commenters supported allowing states
additional latitude in this exercise of
administrative discretion, specifically as
pertains to the development of
administrative and procedural
requirements. In considering this issue.
EPA noted that several state and local
programs are already implementing
varying procedural and administrative
requirements that appear to be effective.
For the above reasons, EPA has decided
to integrate this additional decision-
making authority into the final technical
rule. (See the preamble discussion in
support of that rule elsewhere in today's
Federal Register notice.)
c. Achieving the objective. In
developing a state UST program. EPA
believes all states will have the same
problem the Agency had in defining
sufficiently clear requirements so that
the regulated community will
understand their responsibilities under
the rales and can be held to comply with
them. UST system owners and
operators, the interested public, and
state inspectors will need to know and
be able to understand the minimum
state requirements that apply to the
complete operation (from installation to
closure) of all UST systems. However,
the final objectives promulgated in
today's state program approval
regulations do not and were not meant
to, restrict states to all the specific
details of the federal program. EPA
intends to allow states to choose a
number of methods that will establish
UST programs with clear,
understandable requirements. The three
major methods are discussed below.
First, a state may adopt or incorporate
by reference- today's final technical
regulations. EPA already has some
indications that several states plan to do
this. These technical requirements have
been developed with the thought that
state programs may use them as the
model for their state UST regulations.
This approach is the simplest and takes
advantage of the effort made by EPA tc
develop impiementable and
environmentally protective regulations.
Second, a state may develop a
different regulatory approach that is,
however, analogous to the federal
program because it satisfies the
performance objectives for each
program element. EPA's final technical
requirements reflect administrative and
technical decisions that do not always
have to be duplicated for a state
program to be no less stringent in
performance. For example, the federal
requirements for new UST system
installations mandate the use of
nationally accepted codes. The same
performance objective (sound
installations at all new USTs) may be
achieved if the state simply requires
owners and operators to use certified
installers and the state has a system of
licensing or certifying installers that
includes adherence to these same codes.
If a state uses another approach or
requires a different method than that
specified under the federal program, the
state must demonstrate that it has
achieved the federal objective within
that program element to be accepted to
operate "in lieu of the federal program.
In adopting this second approach, the
state may develop different regulations
that provide as specific and clear
directions for the owners and operators
as do the federal requirements. One
advantage of this method of rulemaking
that the regulated communities will
understand their responsibilities and
can be held to comply with them.
Alternatively, a state may choose to
promulgate regulations that are more
general and then supplement these with
detailed policies and guidelines to
instruct the regulated community and
the public of its requirements and
procedures for implementing the
regulations. These general requirements
must at least provide the state with
authority to hold all UST system owners
and operators responsible for achieving
the overall performance goals provided
in the objectives, even if the state
regulations do not specify exactly how
to meet each performance goal. This
method of rulemaking, however, has a
significant disadvantage in that it may
increase the state's implementation
burden because, to be enforceable, any
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Federal RegiagtyjVoLja. No. IBS / Friday. September 23. 1988 / Rules and Regulations
37223
such general requirements must be
supplemented by other state actions that
ensure adequate clarification of how, at
a minimum; to'achieve the performance
goal. Supportive actions could consist of
state administrative policies, technical
interpretations, procedures, or
guidelines that more clearly establish
how the general requirements can be
met. For example, if the state regulations
require the use of only approved
methods of release detection, then some
system for'review and approval of
release detection methods must be
developed by the state that will not
result in approval of methods less
stringent than those allowed under the
federal program.
Several commentera on the December
23 supplemental notice expressed
concerns about this type of state
approach and whether state guidelines
should be sufficient for program
approval as opposed to detailed state
regulatory requirements. Several other
commenters felt that procedures and
guidelines would be adequate to
demonstrate the adequacy of a state
program and that this could significantly
expedite program approvals, thus
allowing the state to concentrate its
resources on cleanups and other
necessary activities. Two commenters
objected to allowing state guidelines or
procedures to replace state regulations
for given requirements. One of these
commenters wrote that regulations and
statutes should be required in order to
eliminate the possibility of an informal
change in policy or of enforcement
problems. The other commenter felt that,
in order to provide fair notice and
clarity of state methods, such guidelines
or procedures must be submitted for
public notice and comment
In response to those commentera who
expressed concerns over whether state
guidelines should be sufficient for
purposes of program approval. EPA is
clarifying that guidelines are not a
substitute for regulations. Guidance
documents and written policies are not
generally enforceable, while regulations
do have the force of law. However.
because EPA's Subtitle I program
approval process focuses on whether a
state program meets federal
performance objectives, an approvable
program will not need to have the same
level of detail and specificity in
regulations that would be required if the
approach to program approval involved
a comparison of individual state
requirements with the federal standards.
State requirements that meet the
underlying federal objectives are
sufficient for approval in terms of
meeting the no less stringent criteria.
irrespective of whether or not they are
supplemented with additional guidance
or procedures. However, if the state
does not provide specific enough
direction to the regulated community
and public on how to implement the
state regulations, the state may not
receive approval for their UST program.
General regulations are difficult to
enforce because the vagueness and lack
of specificity may confuse owners and
operators who will then be less likely to
try and comply with them. Without the
ability to provide adequate enforcement
through clear direction, die state
program will not be approvable. One of
the criteria for withdrawing approval of
state programs (§ 281.60(1)) is the lack of
ability to enforce state regulations; thus.
it is also a criterion for approval. An
instance of where clear direction might
be needed occurs in the objective for
release investigation, confirmation and
reporting, which says that a state must
have standards that require prompt
reporting of confirmed releases. The
state should define what "prompt" is
using a number so that the owners and
operators have a clear direction on
when such reporting must be done and
so that the state has the ability to
determine and men to enforce a
violation of this reporting requirement
Therefore, where specific state
standards are not embodied in statute or
regulations, the Agency will consider
policies or guidance documents
submitted with the state application for
approval if they are used to support
applicable general state regulations.
Third, a state can use. for example, a
combination of the above approaches
that copies some elements of the federal
program in some elements, and uses a
different regulatory approach in other
program elements. The state program
will have met the no leu stringent
criteria for state program approval if the
regulations within each element achieve
the performance objectives for those
elements.
d State approaches to ground-water
classification. EPA recognizes that
releases from UST systems located in
certain sensitive areas could pose a
greater risk to human health and the
environment than other areas. In
developing the technical regulations, the
Agency considered and requested
comments on a federal classification
approach under which a class or classes
of UST systems located in higher-risk
areas would be subject to more stringent
requirements than UST systems located
in less sensitive areas. After careful.
consideration of this issue. EPA rejected
the concept of a federal ground-water
classification scheme in promulgating
the final technical regulations for
underground storage tanks. (This is
discussed in more detail in the technical
standards rule, published elsewhere in
today's Federal Register.) The Agency
strongly believes that the classification
of ground water must be based on highly
localized hydrogeological circumstances
and. therefore, that classification should
be a state or locally initiated activity.
The Agency has also concluded that
criteria for a national scheme of
classification (that is, one that could
encompass all the conditions across the
country) could not be developed and
feasibly applied to the national UST
program.
A classification approach to
regulating UST systems at state or local
levels, however, where local
environmental conditions are better
known, may be feasible and
appropriate; such a classification
approach could result in improved
environmental management. For
example, several states have karat cr
limestone areas where contamination.
once released, is nearly impossible to
contain. In such areas, the state is free
to consider whether secondary
containment with interstitial monitoring
could provide enhanced leak detection
and better prevent releases in these
sensitive areas. Under today's approach
to program approval the Agency allows,
but does not require, states to develop a
classification approach for use in
determining whether more stringent leak
detection and containment standards
should apply to UST systems being
located in sensitive or high-risk areas.
States that have already developed a
classification system may decide to use
it to regulate USTs. Under today's final
rule for state program approval, the
federal objectives must be the minimnr*
requirements in all areas of the state for
the program to be determined "no less
stringent" than the federal program;
however, states could use a
classification scheme to establish
standards for certain areas that are
more stringent than those under the
federal program.
e. The use of state variances in
approved programs. The Agency
solicited comment on the use of
technology- and risk-based variances in
the preamble to the proposed EPA
technical standards rule (52 FR12739
and 48641). Technology-based variances
are included in the federal technical
regulations (published elsewhere in
today's Federal Regurtec). For example.
the release detection standards allow
.owners or operators to use non-specified
methods of release detection if they can
demonstrate to the implementing
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37224 Federal Register / Vol. 53. No. 185 / Friday. September 23. 1988 / Rules and Regulations
agency, or if the implementing agency
otherwise determine!, that the
alternative method will achieve
performance that ia as effective as the
allowed methods. Risk-based variances
would allow less frequent or alternative
approaches to release detection of
protected tanks in area* where the risk
to human health and the environment is
believed to be iower (for example,
where ground water is deep and not
vulnerable to contamination). The
Agency has decided not to include risk-
baaed variances in the federal technical
standards rule because it is the
Agency's experience that variances
based on site characteristics are
generally difficult to justify and
implement In a regulated community
the size of the national UST community,
such a provision would be practically
impossible for EPA to implement
throughout the nation. Instead, the
Agency has developed national
standards that set a baseline of
protection in all areas.
This subject also arises in connection
with state program approval In the
December 23,1987 Supplemental Notice
(52 FR 48645). the Agency solicited
comments on whether state programs
should be approved if they had a
variance procedure for owner* and
operators of petroleum UST systems
that allowed alternative and less
stringent release monitoring methods in
lower risk areas (for example, a state
could prospectively classify such lower
risk areas). The Agency received some
comments in favor and some in
opposition to this approach. In
reviewing these comments, the Agency
has decided not to allow approval of
state programs that do not maintain the
minimum federal objectives in all areas
of the state. An important reason for not
accepting the use of less stringent
release detection in "lower risk areas" is
the difficulty in clearly establishing
what constitutes a lower risk. Several
state officials commented that they
would not be allowed by the public to
"write-off less vulnerable areas.
Another commenter questioned the
judgement of classifying lower risk
areas based on ground water because a
safety and.health hazard (explosive or
toxic gases) could be present at any site
with a release. EPA agrees that the final
technical standards for release detection
have been developed to enable the early
detection and minimization of all
releases to ensure that present and
future ground water uses are protected
at all sites and that all health and safety
threats are avoided. The state
requirements can do no less if they are
to be considered no less stringent For
this reason, today's final state program
approval objectives for no less stringent
programs do not allow approval of
states if these states permit less
stringent release detection in areas that
are described or classified as less
vulnerable, whether on a case-by-case
or class basis.
If a state program includes a variance
procedure, it can still be approved if the
state can demonstrate that its eligibility
criteria and procedures for reviewing
site-specific or more general technology-
type variance requests will ensure no
less stringent protection of human
health and the environment However, if
a state allows variances, it must agree to
issue them only in a manner that is no
less stringent in protecting human health
and the environment as the federal
program. Terms of thin agreement will
be specified in the MOA included in the
state program application.
Following is a more detailed
explanation of the objectives associated
with approval of no-less-stringent state
program elements.
2. New UST Systems and Notification
(S 281.30)
EPA has concluded that an important
objective of the national UST program is
for all new UST systems to be designed.
constructed, installed, and protected
from corrosion in a manner that will
prevent releases during their operating
life. Also, certain notification
requirements should be met when new
USTs are installed. States can achieve
this objective in several ways: Adopt
the same new UST system requirements
found in the federal technical standards;
require new UST systems to be built and
installed in accordance with nationally
recognized industry designs and
standards by incorporating the
applicable national codes and practices
directly into state requirements; or
adopt such codes by reference into state
regulation. The proposed federal .
objective for new UST systems has been
revised somewhat to reflect changes
made in the final technical standards
and public comment received on die
proposed objective. The objectives for
design and construction have been
merged with the installation objective to
emphasize the common reliance on
established codes in today's final
technical standards rule.
Some commenters were concerned
that a general dependence on current
national consensus codes would not be
protective of the human health and the
environment As discussed in the
preamble to the technical standards
rule, published elsewhere in today's
Federal Register. ETA does not agree.
The Agency's analysis of these industry.
codes and practices, public comments
on the proposal, and new information on
the causes of releases from UST systems
has led to the conclusion that
implementation of these nationally
recognized codes will protect human
health and the environment EPA notes
that several of these codes for new UST
system design, construction, and
installation have been revised and
improved since the publication of EPA's
proposed technical requirements on
April 17.1987.
Another commenter was concerned
that state requirements adopting current
industry codes will not reflect future
improvements in technology when they
occur. The Agency believes the current
industry codes and standards are
already protective of human health and
the environment. If a state adopts
current codes and those codes are later
updated and unproved in response to
new knowledge and technological
developments, the state may decide to
adopt the revised code, but it will not
generally be required to do so for
purposes of program approval. They
may need to submit program revisions in
the future, however, if the federal
technical standards are revised based
on a new code.
One commenter suggested th s t EPA
specify which industry standards were
acceptable. The commenter believed
that EPA should not assume that ail
standards developed by ail national
groups were adequate. For each element
in which codes have been developed.
the final federal technical standards list
the appropriate codes that may be used
for purposes of compliance.
The federal objective concerning spill
and overfill equipment (§ 281.30(b))
requires that the state program ensure
that all owners and operators of new
UST systems install equipment to
prevent spills and tank overfills. In
addition, when tanks are upgraded, such
equipment must be installed as part of
the upgrade. The proposed objective
(§ 281.32(b)) was modified to reflect
changes in the final technical rule. The
federal requirement for spill and overfill
equipment was originally contained in
Subpart C. General Operating
Requirements. In today's final technical
standards rule, this requirement for
equipment has been moved to Subpart
B. UST System Design. Construction.
Installation and Notification. To remain
consistent with this formatting change in
the federal technical standards rule, the
final objective for spill and overfill
equipment has been included with the
objectives for New UST Systems in the
state program approval rule
(§ 281.30(b)).
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Federal Register / Vol. 53. No. 185 / Friday. September .23. 198a / Rules and. Regulations
37225
To be no less stringent in this area,
the state must have requirements that
all new tanks must have spill and
overfill equipment (except as noted
below). Equipment to provide such
protection includes small catchment
basins for spills, and alarms, automatic
flow restrictors. or shutoff devices for
overfill prevention. A provision has
been added to clarify that states do not
have to require spill and overfill
equipment on tanks that are manually
filled through the addition of less than
25 gallons of product at a time (for
example, used oil storage collection
tanks at service stations that are
manually filled in small volumes). This
change recognizes the limited equipment
exemption that has been added to the
final EPA technical standard concerning
spill and overfill equipment
The proposal allowed state
substitution of requirements on
transporters in lieu of spill and overfill
equipment Several commenters were
concerned that this provision could
interfere with current regulations set
forth by the U.S. Department of
Transportation, and that they would
also not provide sufficient spill and
overfill protection. EPA agrees that this
problem cannot be adequately solved by
procedures required on the transporters
alone and that requiring UST preventive
equipment is more protective. Therefore,
the final objective has been revised to
no longer allow for substitution of
procedural requirements on transporters
in lieu of spill and overfill equipment on
the UST system.
The federal objective concerning the
notification requirement (5 281.30(c)) is
that the state program ensures that all
owners of new UST systems notify the
implementing agency of the USTs
existence. Under section 9002 of RCRA.
this notification requirement already has
been implemented nationally for
existing UST systems. Owners of
existing and new UST systems were
required to notify the designated state
agency of the existence, age. size. type.
use and location of their USTs beginning
May 1986. Therefore, states may be
approved if they only require owners
and operators of new UST systems to
notify the state agency because
notifications of existing USTs have
already taken place under existing
federal authorities.
Although it was not included as a
requirement for state program approval,
the April 17 proposal solicited comment
on whether approved states must
require updated notifications from
owners and operators of existing USTs
(52 FR12857). Updates of existing
notifications, however, are not
mandated by federal law and are not
part of the final federal technical
requirements. In general commenters
concurred with the decision not to
include updating as a state program
approval requirement although several
pointed out that such updated
information may be useful to the state.
A few commenters expressed their
belief that states should be required to
update existing tank notification
precisely because this data is useful to
the state for enforcement purposes.
Although some states may choose to
have notification updates as part of their
program, EPA is not requiring collection
of this information for purposes of state
program approval because it is not
required under the federal program.
Another commenter pointed out that
the federal notification form was
proposed (on April 17) to be revised to
include a new compliance status section
that must be filled out by new UST
system owners and operators. The
commenter questioned why this
additional information was not included
in the objective for new UST systems in
approved state programs. While this
information will be useful to the
implementing agency, EPA is not
convinced that such a requirement is
necessary to achieve the federal
objective for new UST systems. The
new UST system compliance checklist is
to assist in compliance monitoring, and
will not act as a substantive
performance standard. Because the
additional information is an
enforcement tool rather than a new UST
system standard, it is not required as
part of the objective for new UST
systems. Thus, states will be left with
the discretion as to whether or not they
desire to use the notification form to
collect this additional information on
new UST installations for purposes of
compliance monitoring
3. Upgrading Existing UST Systems
{§ 281.31)
An important national objective is to
ensure that unprotected steel UST
systems are either upgraded or replaced
within 10 years. This phase-in of
protected tank systems is expected to
prevent numerous leaks that would
otherwise occur in the future due to
corrosion of unprotected steel. The
upgrading of existing UST systems
ensures that existing USTs meet
essentially the same standards of
protection as new UST systems. Thus,
by 1898. all UST systems must prevent
releases due to corrosion, and spills or
overfills. This 10-year schedule,
however, does not include installation of
release detection devices, which must
be completed within 5 years according
to the release detection objective at
1281.33(b).
This 10-year goal may be achieved in
two general ways. First the state may
develop a phase-in schedule that will
bring all the USTs into compliance
incrementally during the 10-year period.
The phase-in schedule could be based
on the age of the tank, ground-water
sensitivity, county, zip coda or any other
factor chosen by the state. Second, the
state may establish the same baseline
goal as the federal requirements (1998),
without specifying a detailed phase-in
schedule.
The proposed objective .for upgrading
existing UST systems included a
provision that allowed states to
demonstrate in the state program
approval application how other state
requirements will achieve this federal
goal without an explicit 10-year
deadline. In the Supplemental Notice.
EPA described what such a
demonstration might consist of and
requested comments on this approach.
While several commenters encouraged
the use of this more flexible approach.
other commenters objected that the 10-
year deadline was not simply a goal to
work toward but that it was a
requirement that must be achieved. The
language in the proposed objective
created confusion on this point The
discussion of this objective in the
Supplemental Notice further raised
commenters' concerns because it said
that states could establish other
requirements that might reasonably
achieve the same general objective by
prompting most unprotected tanks to be
upgraded. One commenter asked for a
definition of "most tanks." Another
commenter argued that if EPA's best
judgment dictates that tanks should be
upgraded within 10 years (as required in
the federal technical standards), then a
state program that does not accomplish
this is not as stringent as the federal
program.
The Agency has considered these
arguments and has deleted the provision
that allows a demonstration of how
upgrading will be achieved without a 10-
year deadline. An important goal in the
federal technical standards rule is for all
existing UST systems storing regulated
substances to be required either to
upgrade to new tank standards within
10 years through retrofit or replacement
or be permanently closed. Most
commenters to the proposed technical
standards rule supported this
requirement (for further discussion, see
the Preamble to the final federal
technical standards role elsewhere in
today's Federal Register). The Agency
was concerned that the provision in the
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37228 Federal Register / Vol. 53. No. 185 / Friday. September 23, 1988 / Rules and Regulations
proposed objective would lead states to
believe that a time period greater than
10 years for upgrading was allowable. In
addition, it was unclear what
Information would provide an adequate
demonstration. The Agency was
concerned that the interpretations
would vary widely on what was
sufficient for the state program to be
approved and guidance on the subject
has proved difficult to provide. For all
these reasons, the Agency has deleted
the proposed provision that allowed the
state to demonstrate how the goal of
upgrading existing USTs within 10 years
would be achieved without a deadline.
4. General Operating Requirements
(1251.32)
An important objective of the final
EPA technical standards is the
prevention of releases through the
proper operation and maintenance of
the UST system. EPA has concluded that
the improper operation of UST systems
can result in significant releases into the
environment To achieve the objective of
the corresponding federal requirements
in this program element, a state program
needs to demonstrate that the risk of
operation-related releases is minimized.
This objective consists of five different
provisions: (1) The use of procedures to
prevent overfills and spills during
transfer; (2) the maintenance of
corrosion protection mechanisms; (3)
ensuring the continued compatibility of
the regulated substance stored with the
UST systems; (4) ensuring only sound
upgrades and repairs, which are
performed in accordance with
nationally-recognized practices; and (5)
maintenance of recordkeeping
necessary to demonstrate recent facility
compliance.
The final technical standards require
that spills and overfills be prevented
through the use of proper procedures
during product transfer (§ 281.32(a)). In
response to one commenter's concern
that the proposed objective in this area
was not specific enough regarding
proper transfer procedures, the final rule
now requires that steps be taken to
ensure that the space in the tank is
sufficient to receive the volume being
transferred and that the transfer
operation Is monitored constantly. This
change makes it clearer that the
Agency's intent in this aspect of the
objective is consistent with the final
technical standards.
The objective concerning the
operation and maintenance of corrosion
protection has been modified in
response to commenters' concerns
(§ 28132(b}). One commenter correctly
pointed out that the proposed objective,
which stated that UST systems must "be
operated and maintained to prevent
releases due to corrosion for the
operating life of the UST systems if they
have been equipped with corrosion
protection", was not specific enough to
ensure that states achieved the same
performance goals as the corresponding
EPA technical standards. Thus, the
revisions to the final wording of the
provision clarify EPA's intent that
procedures for operation and
maintenance of corrosion protection be
carried out by someone knowledgeable
and trained in corrosion protection. The
goal is to ensure that the necessary
protection is in place and operating
properly. A note has been added for
further guidance to suggest that state
requirements in this area build on
several existing national codes (such as
those established by the National
Association of Corrosion Engineers).
State programs must hold owners and
operators responsible for ensuring
compatibility between tank systems and
their stored substances (§ 281.32(c)).
EPA has concluded that incompatibility
can result in releases due to structural
deterioration of tanks or piping. EPA
recommends the use of certain industry
codes for ensuring the compatibility of
alcohol-blended fuels with fiberglass
tanks. For purposes of program
approval, a general state requirement in
this area would be sufficient (as it is in
EPA's final technical standard in
§ 280.32).
The general operating objective
includes a provision that addresses UST
system upgrading and repairs
(§ 281.32(d)). An additional requirement
that has been added to this objective is
that the system be found structurally
sound before upgrades or repairs can
take place. EPA has concluded that such
an assessment is an Important
performance objective because all repair
and upgrade technologies depend on the
structural soundness of the existing
system. Today's final technical
standards for upgrading and repairs
emphasize this initial assessment of
tank system soundness before a repair
or upgrading. The change to the federal
objective similarly reflects this
clarification of the corresponding
federal requirements. This change also
is made to respond to concerns raised
by some commenters on the December
23 Supplemental Notice that the
proposed objective appeared to ignore
the emphasis on an initial assessment
that was included in the proposed (and
now final) technical standard
concerning repairs.
To clarify the proposed objective, EPA
has revised the language for the final
rule to ensure that states mandate that
such assessments are conducted. There
are several approaches for determining
the structural integrity of tanks, for
example, internal inspections, vacuum
tests, and tightness testing. To meet this
objective, a state may allow several
approaches, mandate a specific test
technology, or simply require that a
general performance level be achieved.
This objective also ensures that
upgrades and repairs are conducted in a
manner that will prevent future releases
for the remaining operating life of the
UST system. Under today's final
technical rules, a steel tank that is
structurally sound may be upgraded or
repaired by use of an internal lining
alone (without cathodic protection), by
retrofitting with a cathodic protection
system, or both. FRP tanks must be
repaired by the tank manufacturer's
authorized representative or in
accordance with national codes EPA's
final technical standards require .the use
of applicable national codes and
standards to ensure sound repairs and
upgrading practices. Thus, the
stringency of the state requirement will
be considered in light of these existing
nationally recognized practices. '
The final provision of the general
operating objective establishes that
state programs must require UST
owners and operators to maintain
records of monitoring, testings, repairs
and closure sufficient to demonstrate -
recent facility compliance status, except
that repair and upgrading records must
be kept for the operating life of the
facility (§ 281.32(e)). As discussed in
greater detail in the preamble to the
final technical standards rule (elsewhere
in today's Federal Register), the Agency
has concluded that some recordkeeping
requirements are necessary to establish
the recent compliance status of this
large regulated community because
regular reporting and frequent and
routine inspections at all sites are not
feasible. One commenter requested that
EPA specify extensive recordkeeping ,
requirements for state programs,
including site plans and tank tests. EPA
encourages states to require that owners
and operators keep site plans on file as
they could be useful. However, EPA will
leave this administrative requirement,
as well as other specifics of
recordkeeping, to the discretion of the
state according to the needs of its
particular UST program.
In evaluating whether a state program
is no less stringent in this area, the
Agency will consider four points
pertaining to the state's recordkeeping
requirements. First, the state must
require records addressing the same
areas of the program that are mandated
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Federal Register / Vol. 53. No. 185 / Friday. September 23. 1988 / Rules and Regulations 37227
under the federal technical standards.
These areas are listed in the objective
and include release detection
monitoring, corrosion protection testing.
testing and certifications for repairs and
upgraded UST systems, and site
assessments at closure. Second, the
state program must require records to be
retained long enough to demonstrate
recent facility compliance. EPA has
designed the final technical standards to
represent a minimum paperwork burden
that will still enable an inspector to
assess current facility compliance
during an on-site inspection. These
requirements in the technical standards
rule may provide a guide for states to
follow in developing their own
requirements.
Third, the state's requirements must
ensure that documentation of
compliance is sufficiently detailed to
enable an inspector to evaluate
compliance in the areas mentioned
above. For example, site assessment test
results that demonstrate the condition of
the site at closure must be available.
Finally, the state program must require
that all on-site records be made
immediately available when requested
by representatives of the state agency,
or provided promptly to the inspector
when they are stored off-site. If a state
requires routine reporting, or collects
and maintains this information itself.
then an owner and operator may not
heed to maintain records on-site in order
for the state program to meet this
objective.
5. Release Detection (§ 281.33)
The detection of releases from new
and existing UST systems is an
important objective in the federal
program. In the preamble to the
December 23 Supplemental Notice (52
FR 48645), EPA discussed five major
provisions of the performance objective
for release detection. These provisions
included requirements for (1) The
phase-in of release detection
requirements: (2) new petroleum tank
systems; (3) the applicability of release
detection to both tanks and piping, and
the capability of detection methods
used; (4) new hazardous substance UST
systems; and (5) all existing UST
systems.
EPA received numerous comments on
these proposed objectives, as well as the
April 17 proposed technical
requirements for release detection. The
comments related to the proposed
objective are addressed below, while
the comments on the federal technical
standards for release detection are
discussed in the preamble to the federal
technical standards rule published
elsewhere in today's Federal Register.
The final technical Standards for release
detection have been revised to reflect
public comment as well as new
information available to the Agency
since proposal regarding the causes of
releases from UST systems. These
changes in the federal technical rule are
summarized in Section IV.D. of the
preamble to that final rule package.
First, more frequent tank tightness
testing (annual) of unprotected tanks is
required during the 10-year upgrading
period. Second, less frequent monitoring
of new and upgraded tanks is allowed
for 10 years from installation or upgrade,
or by 1998 if it is later, at which point
release monitoring must become more
frequent Third, the schedule for phase-
in of release detection over 1 to 5 years
at existing tanks will be based on age:
and fourth, release detection is phased-
in sooner on pressurized piping systems
{within 2 years).
EPA has modified the substance and
organization of the proposed release
detection objective in today's final rule
as a result of these changes and the
reformatting of the final technical
standards. The changes in the format for
the final release detection objective
resulted in a section for General
methods, phase-in of the requirements,
requirements for petroleum tanks and
piping, and requirements for hazardous
substance USTs. The following
discussion addresses the changes to the
federal objective for release detection in
greater detail.
a. General methods (§ 281.33(a)). An
important provision, of the release
detection objective is for state programs
to ensure that only those methods are
used that can detect releases from UST
systems as effectively as methods
allowed under the federal program. The
technical standards for release detection
specify general performance and design
requirements for several different
detection methods to ensure reliable
detection of releases. Accordingly, the
proposed objective for state programs
generally required the use of methods
that are as effective as the methods
allowed under the federal standards,
and that the method be designed,
installed, operated and maintained so
that releases are detected.
A few commenten expressed concern
that this provision of the proposed
objective was vague and should include
some of the details from the proposed
technical standards concerning
. allowable methods. For example, one
commenter expressed concern that the
wording of the proposed objective
would allow states to use different types
of interstitial monitoring, and that such
flexibility would place an undue burden
of oversight and evaluation on the state
implementing agency.
EPA does not agree that the objective
must include the same details contained
in the final federal technical standards.
As stated earlier, state programs do not
have to mandate exactly the same
requirements as the corresponding
federal standards in order to be no less
stringent. The state program must have
an approach, however, that will ensure
at least an equivalent level of
performance as the federally-allowed
methods. EPA plans to issue guides soon
concerning the performance and correct
use of various generic methods of
release detection that should assist
states in developing their own
guidelines and evaluations of release
detection methods
The provision of the proposed
objective regarding general methods has
been revised to reflect changes made in
the final release detection technical
standards. First, wording has been
added to § 28133(a)(l) clarifying that
release detection methods must be able
to detect releases from any portion of
the UST system "that routinely contains
the regulated substance." EPA interprets
this phrase to include all underground
delivery piping and the tank vessel itself
(except for the very top of the tank.
which is protected by overfill prevention
requirements). This clarification ensures
that several viable methods of release
detection are not disallowed (for
example, in-tank level gauges that
cannot detect releases due to loose bung
hole covers, or double-walled tanks that
do not cover the full 360-degree .
circumference of the tank).
The proposed objective for release
detection specified that, in general, the
method of release detection chosen must
be capable of detecting a release of
regulated substances before it migrates
beyond the excavation area. This
phrase, "before it migrates beyond the
excavation area," was intended to be
the performance goal that the state
requirements must meet. The Agency
requested comments on this language in
the Supplemental Notice, specifically on
what types of state requirements would
ensure a similar level of performance as
the federally-allowed methods. The
Supplemental Notice discussed the
placement of ground-water monitoring
wells as an example of possible
flexibility in specific requirements. EPA
noted that state regulations permitting
ground-water monitoring wells to be
located outside the excavation zone
might be acceptable if another method
was combined with the wells. One
commenter pointed to a contradiction
between this example and the
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37228 Federal Register / Vol. 53, No. 185 / Friday, September 23. 1988 / Rules and Regulations
performance requirement, and asked for
clarification.
The phrase "before it migrates beyond
the excavation area" has been deleted
in the final objective for release
detection because it precludes the use of
some acceptable out-of-tank methods of
release detection that are sometimes
installed just beyond the excavation
zone, such as ground-water monitoring
wells. The state should be able to allow
the use of the same release detection
methods that are allowed under the
federal technical standards. EPA has
deleted the original phrase and added a
second sentence that specifies the
factors that must be considered when
comparing other release detection
methods against the methods approved
in the federal technical standards. This
change alters the basic performance
goal that the state requirements on
release detection methods must achieve;
the new performance goal consists of a
comparison with the federally-allowed
methods. The federal technical
standards allow six methods of release
detection and also allow any other
methods that meet either of two more
general release detection requirements.
One of these requirements is a release
detection rate of 0.2 gallons per hour
(§ 280.43(hJ{i)). The alternative is a
comparison test of the effectiveness of
the proposed method against the first six
methods, which consists of a
demonstration by the owner and
operator for the implementing agency
(§ 280.43{h)(ii)). Therefore, the language
in the final release detection objective
for state program approval is intended
to allow the state to permit the use of
any of the federally-approved methods
as well as any methods that the state
determines are as effective as the
federally-approved methods.
Second, § 281.33(a){2) has been
revised to specify that all methods must
be properly calibrated in addition to
being designed, installed, operated, and
maintained to detect releases. This
minor change makes the objective
consistent with the approach in the final
technical standards. Third, wording has
been added that makes it clear that all
methods must be implemented in
accordance with the capabilities of the
method. This change reflects an
amendment to the technical standards
to clarify that a method not only has to
be capable of detecting small releases
but must also be operated in a manner
that will make use of those capabilities.
b. Phase-in of requirements
(§281.33(b)). As discussed in the
preamble to the December 23
Supplemental Notice, EPA has also
concluded that to be no less stringent, a
state program must ensure that release
detection is applied at all UST systems
' as rapidly as required under the federal
program. The Agency is convinced that
numerous existing UST systems are now
leaking and, therefore, an important
performance objective for state
programs is quick detection to enable
initiation of release response and
corrective action. The proposed
objective allowed states the flexibility
to complete this phase-in in different
ways providing that it is completed as
rapidly as under the federal technical
standards rule. Several commenters
supported this approach. Several others,
however, expressed the belief that EPA
should not permit any variation from the
proposed federal technical standards
with regard to phase-in dates for
purposes of state program approval.
These comraenters were concerned that
the proposed objective would allow any
.state phase-in method to be approved
and did not clearly identify evaluation
criteria for determining acceptable state
phase-in approaches.
In today's final technical standards
rule. EPA has decided to phase in
release detection over 1 to 5 years at all
UST systems following a specific .
schedule that is based on the age of the
UST system. This approach was
suggested by numerous commenters.
Although EPA recommends that a
similar approach be used by state
programs, the Agency has decided to
retain flexibility in the final objective to
continue to allow states to use other
phase-in approaches. EPA believes
numerous other reasonable approaches
are possible including the phase-in of
release detection sooner at UST systems
located near drinking water wells. The
key to meeting this federal objective is
to ensure that release detection is
scheduled to be completed at all UST
systems before the end of the 5-year
phase-in period.
In response to some commenters'
concern about the clarity of this
objective, the final objective has been
revised to mandate that states provide
"an orderly schedule that completes"
the phase-in within 5 years. Although
states do not have to use the criterion of
age to be no less stringent in
performance, they must provide a phase-
in schedule that results in significant
segments of the regulated community
using release detection methods well
before the end of the 5-year time period.
Approaches that allow a majority of the
regulated community to wait until the
end of the 5-year period would not be
accepted as an "orderly schedule."
Allowing the major portion of the
regulated community to wait until the
end of the period will result in serious
noncompliance because much of the
regulated community will wait until the
last minute to apply release detection. A
scarcity of release detection services
would then result when everybody
begins to demand these services-at the
same time, and releases will continue to
go undetected in the interim.
EPA has also clarified § 281.33{b)(2) to
require that each state's phase-in
approach mandate that either release
detection be applied or the system be
closed. The objective for release
detection'proposed on December 23 did
not include a conditional requirement to
close the UST system if the owner or
operator chose not to apply release
detection. One commenter argued that
the requirement to close is a powerful
incentive to ensure that release
detection takes place, and therefore, is
important to the achievement of the
objective. This commenter pointed out
that such a requirement was proposed in
the federal technical standards and is
important to ensure that facilities are
not allowed to operate in
noncompliance (without release
detection) after the phase-in period is
over EPA agrees with this commenter
and has revised this objective to include
this requirement.
The final objective has been changed
also by adding the requirement that
release detection methods that can
detect a release within an hour must be
applied at all pressurized underground
piping within 2 years of the effective
date of the federal requirements. This
change reflects the increased stringency
of the final technical standards
concerning release detection for
pressurized piping. EPA believes that an
important performance objective is that
state programs ensure that automatic
flow restrictors or shutoff equipment or
other hourly monitoring methods (such
as vapor monitoring) with alarms be
applied to all pressurized piping as
rapidly as is required under the
corresponding federal requirements. The
Agency has concluded that pressurized
piping without such release detection
equipment poses a serious threat to
human health and the environment.
c, Requirements.for petroleum tanks
(§ 281.33(c)). Another important aspect
of the proposed release detection
objective was for all release detection
methods to be applied at least monthly,
except that for 10 years, infrequent
tightness testing combined with monthly
inventory control could be used. As
discussed in the preamble to the
proposed technical standards, EPA
believes that repeated monitoring on a
frequent to continuous basis is the first
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Federal Register / Vol. 53. No. 185 / Friday. September 23. 1988 / Ruiea and Regulations 37229
step toward minimizing threats posed by
releases from UST systems, particularly
existing systems unprotected from
corrosion. EPA did not receive any
comments on this aspect of the release
detection objective except that one
commenter requested further
clarification of the proposed frequency
requirements. However, three important
changes in today's final technical
standards have resulted in a revision to
this provision of the final objective in
S 281.33(cj, and they are discussed
below.
First the final technical standards for
release detection have been revised to
allow tightness testing every 5 years
combined with monthly inventory
control for the first 10 years after the
tank is installed or upgraded, or until 10
years from the effective date of today's
requirements, whichever is later. The
final objective has been revised to
reflect these changes in $ 28133(c)(l).
After 10 years, monthly monitoring must
be conducted, even at protected
petroleum tanks equipped with spill and
overfill prevention devices. Again, this
change reflects the performance
requirements in EPA's final technical
standards.
Second, the final release detection
standards have been changed to require
either monthly monitoring or annual
tightness testing in combination with
monthly inventory control for all
existing petroleum tanks unprotected
from corrosion or not equipped with
spin and overfill prevention devices.
The final objective has been revised to
reflect these changes in § 281.33(c)(2).
Third, all the final release detection
technical standards have been
reorganized and the release detection
objective has been changed accordingly
to reflect this. Thus, today's final
objective highlights more clearly the
requirements for petroleum tanks by
featuring them in new § 281.33(c).
d. Requirements for petroleum piping
(§ 281.33(d)). Another important aspect
of the release detection objective is
monitoring of the underground piping
attached to the tank. In the proposed
objective (as well as the proposed
federal technical standards for release
detection), all underground piping had to
meet the same release detection
requirements as the tanks except that
new pressurized lines without
continuous monitoring had to use
automatic shutoff equipment Today's
final objective concerning release
detection for the piping reflects several
changes that are due to revisions made
to the final technical standards.
First to be consistent with the final
technical standards, the provision in the
objective pertaining to release detection-
for petroleum piping has been separated
from the one for the tanks. This change
is intended to clarify the different
performance objectives that must be
achieved for the piping. In addition.
monthly inventory control as a method
of release detection is not sufficient to
meet this requirement because it is not
as effective as any of those methods
allowed under the federal technical
standards (see $ 281 -33(a)(l)).
Second, a phrase has been added to
clarify that only underground piping that
routinely contains petroleum must have
release detection. State requirements do
not have to address release detection for
fill pipes .and vent pipes to be
considered no less stringent
Third, the objectives for pressurized
lines have been made clearer to indicate
that all such lines must be equipped
with release detection that is able to
detect a release within an hour by
restricting or shutting off flow or
sounding an alarm. In addition to hourly
release detection equipment monthly
monitoring must be applied to
pressurized piping or annual tightness
tests must be conducted. Reflecting
clarifications of the final technical
standards, these changes indicate the
Agency's increased concern about the
threats posed by pressurized piping.
Fourth, the objective for suction piping
has been changed to make clear that
these types of lines, as in the federal
technical standards, must be tightness
tested every three years. Two possible
exceptions exist Testing every three
years is not necessary if a monthly
method of release detection is in use, for
example, release detection that already
applies to the tank. The other possible
exception to testing every three years is
in the case where the suction piping
system is designed so that product
always drains back into the tank when
the suction is released and the design of
the piping is such that an inspector can
immediately determine the integrity of
the piping system. These types of piping
systems generally have an easily
accessible check valve near the
dispenser that an inspector can test to
identify if the system is working
correctly. Further discussion on the
technical aspects of the design of a
suction piping system may be found in
the preamble to the final technical
standards rule (section IV.D.) and in the
preamble to the proposed technical
standards rule (52 PR 12745).
e. Requirements for hazardous
substance- UST systems (§ 281.33(e)).
The final provision of the release
detection objective is release detection
for hazardous substance UST systems.
The proposed abjective specified that all
existing systems must meet the same
requirements as existing petroleum UST
systems, and that all new UST systems
must use secondary containment and
interstitial monitoring unless the state
approves another method. EPA is today
promulgating the final objective
substantially as proposed. The objective
has been reformatted, however, to add
clarity and to reflect the organization of
the final technical standards rule.
First the release detection objective
for hazardous substances for both new
and existing UST systems has been
consolidated into one two-part objective
The objective for existing hazardous
substance UST systems (5 281.33(e](l))
is followed by the objective for new
ones (§ 281.33(e)(2)}. The wording in the
objective for existing UST systems
refers back to the objectives for
petroleum UST systems for purposes of
simplicity, but the meaning of the
requirement is unchanged from the
proposal.
Second, a couple of minor wording
changes have been made to the
proposed language concerning the
objective for new UST systems in
9 281.33(e)(2). The deletion of the "no
less stringent" language and the
substitution of wording that holds
variance approvals only to methods that
an "as effective as" methods already
allowed under the state program is
intended to clarify that the performance
of the methods sought under a variance
must be judged relative to other
methods allowed by a state program.
In addition, an effective clean up
technology must be identified for the
hazardous substances being stored in
the tank. This language has been added*
to simply make the objective consistent
with the revisions to the variance
allowed in the federal technical
standards rule. This information on
clean up technologies will allow the
state to make a more informed decision
when, evaluating requests for a variance
from the secondary containment
requirement In some cases this may
lead the state to determine that existing
corrective action methods are
unsatisfactory even though release
detection technology for the hazardous
substance is available.
6. Release Reporting. Investigation, and
Confirmation (§ 281.34)
The objective of this program element
is to ensure that all suspected below
ground releases are promptly
investigated and all confirmed releases
are immediately reported, including all
spills and overfills that are not
contained and cleaned up. EPA will
consider the following points in
determining whether a state program is
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3723D Federal Register / Vol. 53. No. 185 / Friday, September 23. 1988 / Rules and Regulations
no less stringent than the corresponding
federal program requirements.
First, the state must require the
investigation of all suspected releases.
The final federal technical standards
allow the owner and operator to double-
check data and retest and repair release
detection equipment before determining
that an unusual condition or signal at
the site signifies a suspected release.
The discovery of released regulated
substances at the UST site or in the
surrounding area must, at a minimum,
be a trigger for investigating a suspected
release. EPA. notes that many different
methods are being used already to
investigate suspected releases and they
can be tailored to site-specific
conditions.
Another aspect of this objective is
that the state requirements will need to
establish how and when a suspected
release is determined to be a confirmed
release and corrective action must
begin, it is important that state
requirements for release investigation
be clear on this point Ambiguity on how
a suspected release must be investigated
and when it is confirmed may result in
delays on the part of the owner and
operator in initiating dean up actions.
Because such delays could increase the
threat to human health and the
environment, vague state requirements
would be less stringent that the federal
technical standards rule, which
establishes a failed tightness test or a
finding of significant contamination in
the bottom of the UST system
excavation zone as two separate ways
of confirming a release. A state program
must ensure that unintended delays in
reporting confirmed releases that may
occur as a result of uncertainty are
avoided.
Second, the state must require a
prompt investigation of all suspected
releases. The federal technical
standards specify completion of the
investigation within 7 days (or another
time period specified by the
implementing agency). In contrast, the
federal objective for state program
approval purposes simply requires
"prompt" investigation because EPA
believes the precise definition of what
constitutes a prompt investigation
should be left to the discretion of the
states within reason. EPA selected 7
days as a time limit in the final technical'
standards because the Agency believes
that the type of investigation (a
tightness test or initial site investigation)
that is being required at the federal level
can be arranged and carried out within
that time period. The ability to
investigate a site, however, can depend
on the site and on the availability of the
existing service community. Therefore, a
state that allows some additional time
for completing investigations may still
be considered no less stringent For
example, a state that requires more
intensive or complex investigations may
need more than 7 days to complete. EPA
intends to be flexible in interpreting the
promptness of a required state
investigation in consideration of these
factors. However. EPA also notes that if
a state program allown owners and
operators to carry out the same or
similar investigations as required by
EPA significantly beyond the 7 days (for
example, 30 days), that state program is
not likely to meet the objective with
regard to prompt investigation.
Third. EPA has concluded that spills
and overfills are generally identifiable
through visual observations and that
remedial action should be taken as soon
as possible after such a discovery. The
federal technical standard mandates
that all spills be contained and cleaned
up. and reported when they are not
cleaned up or when they are greater
than certain volumes (for example.
greater than 25 gallons for petroleum
releases). To meet the federal objective
in this area, the state must require that
spills and overfills be cleaned up. Those
spills and overfills that are not
completely cleaned up must also be
reported so that the state can ascertain
whether further corrective action is
necessary. The Agency is aware.
however, of states that have varying
levels for automatically reporting
aboveground releases Under today's
rule, a state with higher reporting levels
than those under the final EPA technical
standards (for example, Florida's
requirement for reporting of all spills or
overfills of petroleum greater than 100
gallons) can be considered n ' ;ss
stringent if two conditions ai- odtisfied:
(1) The state mandates that the
unreported spills be completely
contained and cleaned up: and (2) the
state has requirements that identify the
specific steps an owner and operator
must take to ensure unreported spills
and overfills are contained and cleaned
up in a manner thai will protect human
health and the environment (For
example, Florida has several
requirements in its regulations that will
result in complete containment and
removal of aU released product
including contaminated soils.)
EPA has chosen a reporting threshold
of 25 gallons because it feels that its
requirements are sufficient to guide
owner and operator activities for spills
under this amount but that spills larger
than.25 gallons must be reported so that
further and more specific guidance can
be obtained by the owner and operator.
However, if state regulations are more
specific than the federal regulations and
provide more extensive guidance for
how to carry out a clean-up at the sites
with larger spills or overfills, then EPA
believes that the state could allow a
larger reporting threshold and still be
considered no less stringent. Under the
above objective, for program approval
purposes, a state may decide to
specifically guide and direct spill
responses through regulations or
enforceable policies and procedures.
EPA believes the selection of an
approach in this area is a matter of
administrative discretion and is best left
to state decision-makers who must
choose how to effectively implement the
program-in their states.
7. Release Response and Corrective
Action (§ 281.35)
An important objective of the federal
program is that release response and
corrective action be taken as needed to
protect human health and the
environment at all sites with confirmed
releases. For purposes of determining
whether the state program will achieve
this objective as effectively as the
corresponding federal requirements, the
Agency proposed to evaluate the
stringency of a state release response
and corrective action program by
focusing on several key aspects. First
the state program must require that
confirmed releases from the UST system
are promptly stopped. Second, the state
program must require immediate steps
to stop migration of the release, and
ensure that health and safety hazards
are quickly mitigated. Third, the state
program must require that adverse
impacts to soil and ground water be
investigated, identified, and cleaned up
as necessary to protect human health
and the environment Fourth, the state
program must require timely reporting of
release responses and corrective actions
taken, including information necessary
to establish cleanup goals and to
monitor cleanup progress at the site.
As discussed in the preamble to the
April 17 proposal (52 FR12751), the
experiences of several state and local
UST programs indicate that no matter
what approach is taken in the
regulations, the actual work associated
with UST release response and
corrective action in the. field commonly
translates into two general phases: (1)
Immediate abatement actions that are
typically required at many UST sites (for
example, control of explosion threats
and free product removal), and (2) long-
term release response and corrective
action associated with soil and ground-
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Federal Register / Vol. 53, No. 185 / Friday. September 23, 1988 /Rules and Regulations "37231
water remediation. For purposes of state
program approval, EPA proposed that
state requirements could achieve the .
federal objectives for release response
and corrective action without being
identical to the federal technical
standards. In fact, many of the operating
state and local UST programs have
requirements that are more general than
the technical standards proposed by
EPA. As discussed previously in today's
preamble, when state requirements are
more general in nature, they tend to
place a greater burden on the state to
supply site-specific directions and to
oversee more closely corrective actions
taken. Recognizing the need for clear
technical direction at clean-up sites,
some states have established release
response and corrective action funds
that provide the state agency with the
capability to take over a significant part
of the responsibility for remedial action
after the owner or operator reports a
release.
Today's final technical requirements
for release response and corrective
action mandate that the owner and
operator conduct an initial site
investigation and promptly abate health
and safety threats. Free product must
also be recovered to prevent further
movement of the released product
within the soil or ground water.' Once
the initial abatement of hazards has
been completed, certain conditions may
require that a more detailed soil and
ground-water investigation be
undertaken. After each step in the
corrective action process, the owner is
required to report to the implementing
agency. In some cases the implementing
agency may require a corrective action
plan that specifies how further cleanup
will be conducted. At this point, further
corrective action of soil or ground water
proceeds on a site-specific basis.
Several commenters responded to the
Agency's request for input concerning
the proposed approach to the release
response and corrective action
objective. Most of them agreed with the
flexibility provided by the proposed
objective and stated that it not only
provided for adequate protection of
human health and the environment but
was also feasible for state agencies to
implement.
Another commenter expressed
concern with the proposed objective,
saying that it was too vague, and that
almost all the details of the proposed
federal corrective action standards had
been left out. This commenter also
pointed out that the objective omitted
requirements for reporting and public
participation, and requested that they be
included in the final objective.
After considering all the comments,
EPA agrees with the commenter who
suggested that more detail had to be
included in the objective for release
response and corrective action, and has
provided more specificity in the final
rule. In particular, the Agency has
clarified in the objective that when a
potential threat to human health exists,
such as the presence of free product in
the soil or ground water, a more
extensive investigation of contamination
must be conducted. The Agency also
agrees with this commenter that the
objective should be expanded to ensure
that state programs include
requirements for corrective action
reporting and public participation in the
corrective action process, and the final
objective includes such requirements.
In general, the Agency has concluded
that the states should be left with the
flexibility to choose whether to adopt
the federal corrective action approach or
to adopt an alternative approach that is
more suitable to the pattern of work and
procedures already used by the
implementing agency. Therefore, EPA
believes that the overall goal of the
federal requirements in the area of
release response and corrective action is
to ensure that the basic release response
and corrective action steps that may be
necessary at the site to protect human
health and the environment be carried
out at the site. In order to be no less
stringent than the federal release
response and corrective action program,
the state's approach must ensure that
the same basic work will get done in as
timely and effective a manner as is
required by the corresponding federal
technical requirements. This objective
can be met in a state that does not have
all of EPA's release response and
corrective action technical requirements
in state regulations. In the same manner
as the other objectives, EPA will require
state programs to meet the underlying
performance goals of the federal
program, rather than all the details
contained in the federal technical
regulations. The following discussion
addresses this final objective in greater
detail.
a. Assess and stop further releases
(§ 281.35(aJJ. EPA's final technical
standards require that all confirmed
releases are promptly investigated and
slopped {§ 280.61 in the final technical
rule). To demonstrate the state
program's stringency in comparison to
this provision of the federal objective,
the slate must provide requirements that
ensure that the owner and operator is
obligated to promptly take action to
assess and stop any ongoing releases at
the site. The actions appropriate to stop
a release will vary depending on how
. the release was confirmed (for example,
through a tightness test or presence of
fuel in nearby utility lines) as well as the
conditions at the site (such as a four-
tank gasoline station with pressurized
lines versus a one-tank operation with
suction lines). If the confirmation of the
release identifies the tank or piping
component responsible for the release,
then actions to prevent future releases
could include emptying the problem
tank or not using the suspect piping ran
until it is replaced or repaired. However,
if the location of the source is unknown,
then the entire UST system or systems
will need to be considered suspect and
addressed accordingly.
The use of the word "promptly" in the
objective is intended to mean that the
state must require that owners and
operators take such steps quickly to
minimize future releases. The less
prompt such actions are, the more likely
it is that future releases will not be
minimized and, therefore, the state's
requirement will not be considered no
less stringent by EPA. To provide
adequate enforcement of such a
requirement, the state must clearly
define, using a number, the time frame
within which an owner or operator is
expected to respond to this requirement.
General state requirements that are
further clarified by detailed technical
guidance or policies will be sufficient to
demonstrate that a state program is no
less stringent in this area.
b. Initial abatement activities
(§ 281.35(b)). EPA's final technical
standards require each site with a
confirmed release to be investigated and
addressed to ensure that any immediate
threats to health and safety are
identified and brought under control
(§ 280.62 in the final technical rule).
Under the federal program, some of the '
concerns that must be identified and
addressed at the site include: Explosive
gas levels or vapor threats that are due
to the exposure of contaminated soils;
the off-site impacts of free product (or
resulting vapors) on nearby water,
sewer lines, or in building basements;
and the location of any nearby ground-
water users who could be exposed to or
threatened by dissolved contaminants in
their drinking water. The objective
underlying these federal requirements is
to ensure that owners and operators
take action to identify, contain, and
mitigate any immediate health and
safety threats that are posed by a
release (such as mitigation of explosive
or other hazards posed by released gas
or vapors). Accordingly, a state is no
less stringent than the federal program if
its program contains such requirements.
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37232 Federal Register / Vol. 53, No. 185 / Friday, September 23. 1988 / Rules and Regulations
Tho actions taken to mitigate the effects
of tho release at a particular site will be
tailored to the nature of the release and
the sensitivity of the site and the
surrounding area. (See the discussion on
this subject provided in the preamble to
the final technical standards rule
published elsewhere in today's Federal
Register.) The state may decide to have
an inspector immediately conduct a
review of the site, or it may instruct the
owner and operator to do the review
and submit the information to the state.
The state program must clarify the
general actions that the owner and
operator are expected to perform to
identify, contain, and mitigate any
immediate health and safety hazards. In
addition, the state must require that the
site must be Investigated for free
product, and if present, begin free
product removal.
c. Investigation of impacts on soil and
ground water (§ 281.35(c))> Another
important aspect of the release response
and corrective action objective is the
investigation and identification of the
extent of adverse impacts on soil and
ground water at all sites with confirmed
releases. EPA's final technical standards
rule includes the requirement to
Investigate all sites to characterize the
presence of contamination in the area of
this site most likely to have been
impacted (e.g., below the excavation
zone; see 5 280.63 in the final technical
standards rule). A more detailed
investigation of the extent of soil and
ground water contamination (including
dissolved product) is required if free
product is present on or within the
aquifer, or if contaminated soil is in
contact with ground water (§ 260.65 in
the final technical rule). Even if these
conditions are not present, the
implementing agency can require the -
more detailed site investigation if a
potential threat to nearby surface or
ground water is believed to exist
To be no less stringent than these
federal technical standards, a state must
provide requirements that mandate an
initial investigation of every site with a
release to identify possible adverse
impacts on soil, ground water, and
nearby surface waters. The state
requirements could establish the need to
characterize the extent of ground-water .
contamination at all sites (which would
be more stringent than the federal
approach) or alternatively the state
could require that a more extensive
investigation be performed based on site
conditions identified during an initial
investigation. If the second approach is
used, the state must develop a method
or policy for determining when further
site investigation is required, and this
policy must include the existence of a
potential threat to human health and the
environment. Potential threats may
include evidence that drinking water
wells have been affected, that free
product is present on or within the
aquifer, or that contaminated soil is in
contact with the ground water. As with
the other aspects of the release response
and corrective action objective, more
detailed requirements concerning what
constitutes an initial versus a full site
investigation, and when a detailed
investigation must be conducted, can be
established by the state through the use
of guidelines, written policies, and
implementation protocols and
procedures as long as the owner and
operator will be required to undertake
the investigation when requested by the
implementing agency.
In response to a concern raised by one
commenter, this aspect of the overall
objective has been modified to require
investigation for nearby surface water
impacts. This amendment is consistent
with a change made to the final
technical standards in § 280.85(a)(4).
d. Soil and ground-water remediation
(§ 281.35(d)). Another objective for
release response and corrective action is
the cleanup of contaminated soil and
ground water identified at the site as
necessary to protect human health and
the environment For example, the
extent of remediation may be based on
a site-specific risk analysis that includes
potential human exposure.
Alternatively, a state may use statewide
numerical standards to establish
cleanup levels at a site. In evaluating
this aspect of the objective, the Agency
does not intend to distinguish between
the two approaches when determining
whether a program is no less stringent.
In either case, the state requirements
must ensure that remediation provides
adequate protection of human health
and the environment.
To be approved as no less stringent,
EPA will consider the following points
in evaluating whether the state program
provides for release response and
corrective action as necessary to protect
human health and the environment. The
state must have authority to require an
owner and operator to develop and
submit for approval information
concerning how remediation of
contaminated soil, ground water, and
nearby surface water at the site will be
conducted (§ 281.35(e)). In addition, the
state must be able to require the
implementation of steps for release
response and corrective action after
they have been identified. The release
response and corrective action steps
must consider the risk posed to human
health and the environment by
contamination at the site and address
potential routes of human exposure.
e. Reporting on corrective actions
taken (§281.35(e)j. Another objective of
federal release response and corrective
action requirements is to require the
owner and operator to report to the
implementing agency on corrective
actions taken in response to confirmed
releases. In today's final technical
standards rule, EPA requires the owner
or operator to submit status reports and
to report plans for future corrective
action activities, such as free product
removal or soil and ground-water
remediation (§§ 280.61 through 280.65 in
the final technical standards rule). The
proposed release response and
corrective action objective for
determining no less stringent state
programs inadvertently did not include
provisions for corrective action
reporting. EPA agrees with the
commenter who argued that this is an
important aspect of state corrective
action programs and that reporting must
be included in the final rule as a no-less-
stringent criterion. A certain amount of
reporting and recordkeeping on the part
of owners and operators is necessary for
adequate oversight by the implementing
agency and to ensure that owners and
operators properly carry out their
corrective action responsibilities. Thus,
today's final rule includes an added
objective that makes clear that states
must require timely and complete
reporting on corrective action steps
planned and taken (§ 281.35(e)). This
change makes the final objective fully
consistent with the corresponding
federal technical standards hi the final
rule, and responds to the concern raised
by public comment
In determining whether a state
program meets the' objective in the area
of corrective action reporting, EPA does
not require that states copy, the same
details as are required in the federal
standards. General reporting
requirements that obligate the owner
and operator to report on corrective
actions taken and planned should be
sufficient for a state to meet this
objective. EPA will examine the
following factors in determining whether
a state is no less stringent than this
aspect of the release response and
corrective action objective. The
reporting on corrective action plans
must result in the information being
made available to the state quickly to
ensure that steps are being taken to
prevent further contamination, and so
that technical direction can be provided
by the state. In addition, the level of
detail reported to the state should be
-------
sufficient to oversee the process of
corrective action and ensure technical
adequacy. The state should be able to
require reporting on all phases of
corrective action to ensure that
corrective action in fact is taking place
and is sufficient to protect human health
and the environment In addition,
information on the site and the
surrounding area should be reported so
that the corrective action can be tailored
to the specific conditions of the site and
the nature of the release. Initial
corrective action steps, results of
investigations of soils and ground water,
and plans and status reports on long-
term remediation of contamination at
the site are among the types of specific
information that the state might require
/. Public participation in release
response and corrective action
(§ 281.35(fl). To achieve this aspect of
the objective, the state must provide
opportunity for public participation
when a confirmed release requires a
corrective action plan. This provision
was not included in the objective
proposed in the December 23
Supplemental Notice. In order to
respond to concerns raised by public
comment on the proposal, and to remain
fully consistent with the final federal
technical standard (§ 280.67). a public
participation provision has been added
to the final release response and
corrective action objective.
Section 7004(b) of RCRA and long-
standing Agency policy indicate a need
to be open to the involvement of any
interested member of the public in site-
specific cleanup decisions. EPA does not
intend to prescribe the nature and
extent of the public involvement
procedures to be followed by the state.
Rather, EPA's intention is that a forum
be provided that is in keeping with the
state's administrative procedures for the
interested public to express its views on
the proposed corrective actions for
serious UST releases. To achieve this
aspect of the federal objective, the state
must ensure open access to information
pertaining to specific corrective actions
for those members of the public that are
potentially affected by the release or
any planned corrective action. EPA does
not expect this to be a significant
additional burden because many states
already have been involving the public
in the decisionmaking process for UST
cleanups for many yean. For example,
many states already allow for public
access to their site files and those most
affected by the release are usually kept
well informed through personal contacts
with the state response staff.
8. Out-of-Service UST Systems and
Closure (§ 281.36)
EPA has concluded that UST systems
temporarily or permanently closed can
pose a significant threat to human
health and the environment if they are
not managed properly. To be no less
stringent in this program element the
state must demonstrate that it can
satisfy two objectives: (1) Releases from
temporarily closed UST systems must be
minimized, and (2) future releases must
be prevented, and existing conditions
needing corrective action identified and
corrected at permanent closure. EPA
believes these goals can be met in
different ways.
To ensure that releases are minimized
from temporarily closed UST systems,
the state must mandate that the general
operating requirements continue to be
practiced (§ 281 J8(a)(l)J. For those
tanks where product remains in the UST
system, the release detection, corrosion
protection, reporting, and release
response and corrective action
requirements must be followed to
achieve these general operating
requirements A state may allow release
detection requirements to cease if all
product is removed from temporarily
closed UST systems (§ 281 -36(a)(2)).
Another aspect of the closure
objective states that each UST system
must be closed-off to outside access if it
is temporarily closed (§ 281J6(a)(3)).
Although this was not addressed in the
proposed objective, it is included in
today's final role in order to follow more
closely the intent of the corresponding
technical standards in this area. The
objective reflects the underlying concern
in the final technical standards that a
tank temporarily closed for extended
periods of time could (unknown to the
owner, and operator) be tampered with
or misused as a waste sump or storage
pit or otherwise become the source of
accidents during the period of temporary
closure. To be able to satisfy this aspect
of the objective, the state program must
specify when, a tank system is
considered to be temporarily closed due
to the fact that it has been removed from
service.
EPA's final technical standard
specifies that the tank must be closed-
off from outside access if the UST
system is temporarily closed for greater
than 3 months. The objective has been
written to allow some state
administrative discretion as to what
defines an "extended period of time" for
temporary closure. Thus, while this
means that states will not be held
strictly to the 90-day time period
specified in the final technical standards
for closing off outside access to the tanfc,
the state still must establish dearly
when temporary closure begins in order
to meet this objective. Also, the longer a
state allows for a definition of
"temporary", the less likely they will be
able to demonstrate that they are no less
stringent in this area.
EPA's final technical standards set a
maximum limit of 1 year for allowing
unprotected tanks to be closed
temporarily, unless the implementing
agency allows a longer time period on a
site-by-site basis. This time period
limitation is primarily to make sure that
permanent closure takes place, and the
casual temporary abandonment of
numerous unprotected USTs for
extended periods of time is thereby
avoided. Although this subject also was
not addressed in the proposed objective,
it is included in the final objective to
more closely reflect the intention of the
final technical standards. To meet this
objective, the state must ensure that
unprotected UST systems do not remain
out of service for more than one year. A
state may choose to allow extensions to
thfr one year limit in which case the
state must require that a site assessment
be conducted to make sure that a
release has not already occurred from
the UST system. The time limit for the
temporary closure of USTs has been set
at one year to ensure that owners and
operators of unprotected USTs that are
unused are held responsible for
protecting the UST system from
corrosion or permanently closing it. If
the unprotected UST system is new or
has been protected from corrosion, then
the tank may remain temporarily out of
service for an indefinite period of time
(although the other requirements for
temporary closure still apply).
Advene environmental and public
health impacts at all permanently closed
UST systems may be caused by future
releases as well as past releases. To
avoid these .impacts, the state must
mandate that regulated substances and
accumulated sludge be removed prior to
closure and that the site condition
around the UST system be assessed. To
determine if there are any present or
past releases at closure, the state should
ensure that the condition of the site
below the UST system is evaluated by
the owner and operator. This evaluation
can be done by any of the methods
allowed at the federal level or approved
by the state as protective of human
health and the environment The state
may choose to hold owners and
operators responsible for using
appropriate national codes of practice or
specify the particular steps needed to
ensure a tank is completely emptied and
cleaned.
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37234 Fedscal Register / Vol. 53. No. 185 / Friday. September 23. 1988 / Rules and Regulations
EPA'a tnchninal standard for closure
also mandates notification before
petsnment closure so that a state or
local inspector may choose to be
present For purposes of program
approval the state is only required to
have owners and operators report at the
tine of closure. EPA h«« gnnrfriA»f< prior
notification is not essential to achieving
the underlying objective in this area.
particularly if a state baa established a
different method of compliance
monitoring and has decided that notice
before do sore is unnecessary under that
approach. If the site assessment
confirms the existence of a release
requiring some corrective action, then
release response and corrective action
requirements must be followed.
S. Financial Responsibility (§ 281.37
Reserved)
An important objective of the federal
program la that owners and operators of
UST .systems containing petroleum have
fliflgfjiiate financial rpypnrraihility to
nn^prfaVo corrective flr-tion and "m^*
third-party liability claims. An abjective
for, financial responsibility was
proposed In the December 23.1987.
Supplemental Notice; Toe federal law
mandate* SI mfflinn per occurrence with
appropriate aggregate »monnt« as the
minimum level of assurance needed by
most owners and operators of petroleum
UST systems to meet nlnanup and
liability costs for a one-time release. The
final objective hi this area wfll be
provided at a later date when the final
technical requirements for financial
responsibility are promulgated by EPA.
States will need to be no leas stringent
in this area to be able to receive
program approval from EPA.
10. FfaancJal Responsibility for UST
Systems Obtaining Hazardous
Substances (i 28L38Reserved)
EPA is atao developing financial
responsibility requirements for USTs '
containing hazardous substances. These
regulations will require owners and
operators to maintain evidence that
funds are readily available hi the event
of a release from their USTs to pay for
ma costs of corrective action and third-
party Babttlty for yiopetty damage and
bodUy injury. On February 9.1968, EPA
issoed an Advance Notice of Proposed
Rulemalting for financial responsibility
leqmitetaeuU for USTs containing
hazardous substances (S3 FR 3818). In
this advance notice of proposed
rulemaking, EPA solicited comments
and information about the appvuaclteB
under consideration. The Agency
intends *o propose financial
responsibility reqairements for USTs
containing hazardous substances in the
near future, and at that time, a federal
objective for such requirements will also
be proposed for purposes of state
program approval.
Until these requirements are finalized.
EPA is reserving this section of today's
state program approval rule for this
federal objective. Fora state to receive
program approval, a state does not
currently need to have the authority to
write finarcid responsibility .
hazardou Tvhf*Tn-°t However, if a
state plans to regulate UST systems
containing hazardous substances in the
state program, then ti» state should
consider obtaining the necessary
authority in the near fiitura. When EPA
promulgates find requirements for
financial respoasibitity lor UST systems
contaiaing hazardous «uh^»a?^nt, each
state with aa approved program will
have to submit a ravisioo. thai
incorporates corresponding changes into
its state program.
D. Subpart DAdequate Enforcement of
Complkatee (§§28140 through 281.43)
In the April 17.1987 proposed rule, the
Agency set minimum requirements for
states seeking to demonstrate adequate
enforcement of compliance for program
approval. In the proposed §S 281.30
through 28132. the Agency set forth
three categories of requirements: (1)
Legal authorities and procedures for
COuBCuQlt ^pu y^flr^T^\ft^flfl ^flifl OQ TIH?
regulated community; (2) legal
authorities for enforcement that must be
available to the implementing agency:
and (3) options for either procedural
requirements or legal authorities for
public pai'lluiuatiiiu. Section 281.33 of
the proposed rule set requirements for
Immediately restrain violators or
potential violators by order or by suit;
sue in a court of competent jurisdiction:
and assess or sue to recover civil
penalties and procedures to implement
these authorities. Finally, a state must
provide for public participation in
enforcement proceedings by using one
of three public participation options:
Providing one of two types of authority
to allow citizen intervention in civil
actions: or moire general public
involvement procedures in compliance
monitoring and enforcement actions.
In the preamble to die proposed rule
(52 FR 12856). the Agency requested
comments on how H should evaluate
compliance monitoring «ml enforcement
procedural requirements in state
programs, for nvnmpin, in the form of
broad objectives or specific
requirements. Many commenters
expressed concern regarding the amount
of flexibility to be allowed in developing
state enforcement programs. Several
commenters requested that states only
be required to meet broad objectives in
the regulations or in guidance. One
commenter asked that enforcement
procedural lequiiuuieuls be dearly
outlined and defined.
In response to the comments, the
Agency is clarifying its expectations for
the requirements for adequate
Tcemern ot HfiowpnaiHje. in
sharing of information. The Agency
recexveo several cooiEients on this
subpart of the proposal and hi today
clarifying in me final rule its
expectations ot what cnnsutures
adequate enforcement of cumpnauue for
of state program approval The
nts are discussed in
detail in this section of the preamble.
fa summary, onder today's final rules
(51281.40 throvgh 281.43), states must
have adequate compliance monitoring
authority so that tank owners or
opeiatuis can be required by die state to
furnish information reiateu to their
tanks and condact monitoring or testing.
States moot also have authority to enter
and inspect any site subject to
regulation, fa addition, a state most
hwe procecMves for? Inspections?
> evaluation of records: recordkeeping;
enforcement agaJsst violators; and
encouraging ritrna reports of suspected
vsotatiotts. A state mwrt also have
enforcement authority sufficient to:
developing the requirements for
adequate enforcement the Agency
seeks to maintain flexibility in
approving a variety of state programs.
and encourages states to use innovative
approaches in monitoring compliance
and carrying out enforcement actions.
Consistent with that intent, today's
regulations do not mandate the details
of compliance «m««i*««ifr«fl and
enforcement procaduras for purposes of
program approval. Instead, the
fprnf^otirmm gfi\ forth certain authorities
and programs or procedural T«m° that
should enable a state program to
demonstrate adequate enforcement of
finmplTanrp with its technical
requirements.
(Note thni ^ho insertion of the no-less-
stringent criteria {in Subpart C S 2BL30
of the final rule) has caused the
adequate gnfnrcpmant n»qnirptt»»nta to
be reorganized into Subpart D, 55 281.40
to 231.43 of the final rule.)
1. Requirements for a Compliance
Monitoring Program (§ 281.40}
Q, Lugol ovthonUss for compliance
f§ 281.40 faf-fcj). Proposed S 281.30 (a)
and (b) required that state employees
have the authority to obtain from an
uwtier or opeiator any information on
their USTs utctasary to deten
-------
ZJ!ff!:-f,3l2^L^_/J^l:gy;_.^Plf^b^J^^8^,/. **ules and Regulations 37235
compliance. State employees must also
have the authority to require the owner
or operator to conduct monitoring or
testing, and the authority to enter the
site to conduct such testing themselves.
One commenter suggested that these
authorities, particularly the authority to
require the owner or operator to conduct
testing, will place unnecessary burdens
on the owner and operator. The Agency
believes that these authorities, which
are analogous to federal authorities
under Subtitle I, are necessary to ensure
that states have the means of monitoring
compliance, gathering necessary
information, and assessing the potential
risk to human health and the
environment. The Agency is
promulgating the language of these
sections substantially as proposed.
The Agency is clarifying today the
intent of this section by making two
changes. First, the term "employee of the
state" as it appeared in proposed
§ 281.30(a) has been replaced by the
language of Subtitle I, Section 9005,
which provides for such inspection
authority for "any officer, employee, or
representative or the Environmental
Protection Agency duly designated by
the Administrator * * * or any officer,
employee, or representative of a state
with an approved program." Since the
proposal, the Agency has become
concerned that the term in the statute
may be construed to be broader in scope
than "employee"; thus, for purposes of
the final rule, the Agency has
substituted the law's more inclusive
language. Because of the nature of the
regulated universe, many states are
likely to depend on personnel other than
state employees to inspect, monitor, and
test UST systems. For example, the
implementing agency may delegate such
responsibility to the local building
inspector or fire marshal. Because the
Agency did not intend to restrict the
original authority provided by the
statute to only employees of the state,
the term "employee" is being replaced
by "representative" in the final rule's
§ 281.40(a). The term "employees" is
being replaced by "representative" in
the final rule's § 281.40{b) for the same
reasons.
Second, in order to be consistent with
the terms and definitions found in 40
CFR 280.12, and the wording used in the
rest of the technical standards finalized
elsewhere today, the Agency is
replacing the phrases "his/her tanks,
tank contents, and associated
equipment" in proposed § 281.30 (a) and
(b) with the more concise term, "the
UST system", in the final rule's § 281.40
(a) and (b). This change does not alter
the substantive meaning of the
requirement. The phrases "underground
storage tank" and "underground storage
tank program" in § 281.30(b) of the
proposed rule were replaced with "UST
system" in the final rule's § 28140(c) for
the same reason.
b. Procedures for compliance
monitoring (§§ 201.40 (d) through (§)).
Proposed § 281.30 (c) through (g) set
requirements for compliance monitoring
programs, including inspections and
record reviews. Several commenlers
requested that the Agency clarify its
expectations regarding a compliance
monitoring program. These commenters
were primarily concerned that the
Agency may be restricting flexibility in
developing compliance monitoring
programs by requiring certain types and
numbers of inspections under these
programs. Furthermore, these
commenters were concerned that the
proposed regulatory language could be
interpreted as requiring resource-
intensive activities, such as a minimum
number of scheduled inspections and
comprehensive surveys of all UST
systems.
Although the proposed regulations set
general requirements for a compliance
monitoring program, the Agency did not
intend that states must develop a
"traditional" inspection and record
collection program for purposes of state
program approval. In particular, the
Agency has no intention of requiring
states to undertake a specific number of
inspections,-record reviews, or
enforcement actions. As discussed
above, the Agency's intention was and
still is to provide the states with
maximum flexibility consistent with
statutory requirements. Thus, the
Agency intends to approve programs
with innovative approaches to gathering
compliance data as long as they
adequately ensure compliance. Such
compliance monitoring and inspection
programs may range from programs that
target portions of the tank population, to
programs that use permitting. The
Agency is clarifying this intent in the
final rule by making several changes to
proposed §§ 281.30 (d)-(g). These
requirements and associated comments
are addressed in greater detail below.
Requirements for record collection
f§ 281.40(dJ}. Proposed § 281.30(c)
required states to have procedures for *
receiving, evaluating, and investigating
all records and reports and for
investigating failure to submit these
reports. The Agency is promulgating the
language of this sectionnow numbered
§ 281.40{d)substantially as proposed.
Comments on this section expressed a
general concern that the requirements
may be resource-intensive. One
commenter requested clarification on
how the proposed requirements would
be interpreted. Specifically, the
commenter asked how it might
determine if an owner or operator failed
to submit records, and what proportions
of those identified must be investigated.
The Agency believes that it is neither
desirable nor necessary to promulgate
additional requirements that specify
procedures for receipt and investigation
of required records and reports. The
general wording in the final rule was
retained in order to provide maximum
flexibility for states in developing these
programs. In response to the
commenters' concerns, it is the Agency's
intent to encourage states to develop a
potentially wide range of procedures
that allow the implementing agency to
identify owners and operators who have
not submitted required records and
reports.
Consistent with this approach, the
Agency has not specified procedures for
identifying noncompliance. Therefore, in
promulgating § 281.40(d), the Agency is
clarifying its intent by deleting the word
"all" from the language in the proposal.
Section 281.40(d), as promulgated,
requires states to develop procedures for
evaluating records and reports but does
not specify the number or percentage of
reports to be evaluated.
. For further clarification, the Agency is
also deleting the word "possible" from
the phrase "possible enforcement."
"Possible" was removed because it was
only needed where "all" records had to
be evaluated, but this final action does
not change the meaning. The Agency
believes that the discretion to undertake
an enforcement action is inherent in the
state's authority to run the program.
The proposal established that state
programs "must provide for
investigation for enforcement of failure
to submit these records and reports",
and today the Agency is removing the
phrase "for investigation" from the final
wording in § 281.40(d) to clarify its
intent not to limit specific means of
enforcement. Under the final rule, the
implementing agency must have a
program for investigating owners' or
operators' failure to submit records or
reports for purposes of determining
whether enforcement is warranted. The
Agency thus clarifies that the states
have discretion to determine whether,
when, and by what means such failure
warrants further investigation and
enforcement actions.
Requirements for inspection
procedures (§281.40 (e)(l) and (e)(2)).
The proposed § 281.30(d) required states
to have inspection and surveillance
procedures, including periodic
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37238
Federal Register / VoL 53. No. 185 / Friday, September 23. 1988 / Rules and Regulations
inspections, to ensure compliance with
program requirements. For clarification.
the proposed § 28130 (d) and (e) have
been renumbered, respectively, as
§ 281.40{eXl) and i 281.40{e){2).
The Agency received a number of
comments on these proposed
requirements, particularly the definition
of "shall Tnaint»fn a program for
periodic inspections." Many
commenters were concerned about the
resources that would be necessary to
implement a traditional inspection
program with respect to the UST
universe. One commenter requested that
the Agency specify the number of
inspections to be accomplished within a
given time period and the frequency of
inspections. The Agency agrees with the
commenters! that the requirements for
inspection and surveillance, as
proposed, conld suggest that a
traditional inspection program is
required for program approval, which
would be Impossibly resource-intensive
given the large UST universe. This was
not the Agency's intent Therefore, the
final role's requirements have changed
the wording of the proposed 12ffL30(d)
to clarify mat greater flexibility is
available in tins area for purpose of
approving state programs.
In promdgatmg i 281.40{eKl)todav'
the Agency has retained the general
requirement that the state has
inspection procedures, but has replaced
the description of "periodic" inspections
with "systematic" inspections. The
Agency has promulgated a requirement
for "systematic" inspections to clarify
its expectations with regard to state
inspection programs. The Agency
expects states to conduct inspections
but has chosen not to mandate a
ana within
a specified time period. Instead, the
Agency encourages states to develop a
matfu>d fn^fteterrmnfng whan tn rnrafact
inspections and encourages other, more
innovative methods of determining
compliance. Examples of systematic
inspection [miy«m» fn»-ln^i» targeting
inspections to certain tank group* or
tank activities (for example, at closure)
flUQ QfiYGcQQlflS iff 11
In the preamble to the propooed rule.
the Agency requested comment on the
need for reqouinsj enforcement
procedures. One comuiente noted that
states' legal, procedural, and
institutional processes and structures
are relevant to assessing adequate
enforcement The Agency agrees that an
adequate ecJoiceoKBt program must not
Agency has added to 5 281.40(e)(l). the
requirement that states provide for
enforcement of failure to comply with
program requirements. This requirement
is consistent with final $ 281.40{d),
which requires that states not only have
procedures for receipt of records and
reports but also provide for enforcement
of failure to submit such documents. In
addition, tiaia requirement will ensure
that the regulated community and the
public are provided with an opportunity
to learn what procedures will be in
effect in tha state.
Tha: proposed 128L30(e) set
requirements forme manner in which
compliance monitoring information will
be gathered. The purpose of these
requirements was to ensure that ail
types of state inspection procedures
were conducted in a manner that will
produce evidence admissible in court
States are expected to be well aware of
the need to conduct inspections properly
for these reasons, and should be easily
able to demonstrate compliance with
this requirement No comments were
received on this requirement and the
Agency a mating adjustments only to
1MMW««M aMM»M»I«M>»4 ^«!ll« *4»A ! .. - *_.
only BATB the legal authorities to carry
oat enforcement action*, bat also the
procedure* for exercising these
authorities. To clarify that intent the
rom«in r-nmimtc
thff jnspeufaup progtam requirement as
described above, and renumbering the
subsection to emphasize its purpose as
an addendum to the previous
requirement.
Raquirementa for public reporting
(§282.40(ftf. Section 281.30ff) of the
proposed rale requited states to develop
a program for encouraging and
processing public reports of violations.
The purpose of the proposed
requirement was to ensure that state
applicants' enacts to monitor
compliance were open to this) important
additional source of information
regarding compliance. Several
commenters, however, did not
understand the purpose and scope of
this requirement One commenter
requested clarification on what type of
citizen complaans had to be addressed
by the program. For example, would
speculation coacemmg possible
violation be considered a complaint that
mast be investigated?
The final requirements hare been
revised to ensure that states develop
programs mat respond to public reports
of both speculated or confirmed
violations. The purpose of this
requirement is to encourage citizens to
provide information to implementing
agenraesfor example, report a
suspected releeradiet may be crucial
to earfy response, investigation, and
coupBance efforts by Use inpiementing
agency. Such a program is particularly
crucial in light of the large UST universe.
and the unpracticality of large-scale
enforcement efforts. This clarification of
the scope of this requirement however.
is not intended by the Agency to require
states to develop a substantial public
outreach program. On the contrary,
providing a telephone line for citizens to
call if they suspect a leak or other
violations would be the basic kind of
program that will meet this requirement.
Accordingly, the Agency has reworded
§ 281.40(f) of the final rule to clarify that
state investigation procedures must
allow for follow-up on tips and other
reports and complaints to determine
their validity. The Agency, however, is
not promulgating specific requirements
concerning such a program, and states
are encouraged to adopt follow-up
procedures that are tailored to their
specific UST programs.
Requirements for monitoring
compliance over time (§ 2SL40fg)}.
Section 28UOtg) of the proposed rule
required states to maintain a "program
which is capable of making
comprehensive surveys of all facilities
and activities subject to regulations."
and that any resulting compilation.
index, or inventory of such facilities be
made available to EPA upon request
Many commenters objected to this
requirement because of the significant
resource demands it would impose on
the states. In particular, one commenter
was concerned about having to maintain
the capabilities to conduct
"comprehensive surveys of all faculties
and activities," and because this would
be extremely resource-intensive, the
commenter asked for more guidelines in
implementing this requirement Another
commenter questioned the requirement
for approvable states to provide EPA,
upon request an inventory or list of
facilities in violation of UST
requirements, because it would be
burdensome and unnecessary.
The primary purpose of this
requirement as proposed, was to ensure
that otates are able to assemble
information on die regulated community
that can be used to measure their
compliance status. This requirement is
based on section 9002 of Subtitle I.
which mandates the establishment of
state inventories, and the necessity of
such inventories for effective
compliance monitoring. The Agency
intended to allow states flexibility in
determining how extensive the survey
undertaking must be. provided that they
achieve the purpose of measuring
compliance. Id response to concerns of
the commeoters, and to clarify its intent,
the Agency has substantially altered
proposed i 28130(8) by deleting the first
sentence pertaining to a program for
-------
making "comprehensive surveys." The
final rule simply requires that a state
program must maintain the data
collected through inspections and
evaluation of records in a manner that
allows the implementing agency to
monitor over time the compliance status
of the regulated community.
Section 281.40(g) also requires that
states make any compilation, index or
inventory of such facilities and activities
available to EPA upon request. With
respect to the commenter who
questioned the necessity of using such
. inventories to oversee state actions, the
Agency wishes to clarify that this
requirement was not intended to be
used as an oversight tool Although the
Agency is promulgating this part of the
requirement as proposed, the Agency
does not intend to request submission of.
Qua information on a regular basis and
will negotiate specific reporting
requirements with the states as part of
the MOA and the annual state grant
process. The Agency prefers that
reporting of information on state
enforcement programs be managed
through the MOA between the state and
the EPA Regional Administrator. The
Regions will negotiate specific reporting
requirements with each of their states
and will incorporate those requirements
into the State Grant Workplan.
Requirements for updating of
notification. The preamble to the
proposed rule (52 FR12857) described
how the Agency considered and rejected
requiring states to include a requirement
for updating UST notification
information by owners and operators as
a condition of state program approval.
This issue was raised in the proposal in
the context of adequate enforcement of
compliance; however, the Agency
considers it to be primarily a no less
stringent issue. This issue is discussed
earlier in today's preamble in section
OZ
2. Requirements for Enforcement
Authority (§ 281.41)
The proposed 5 281.31 established
requirements for legal authorities for
enforcement The Agency proposed that
states demonstrate some specific
enforcement authorities as a condition
of program approval. This was to ensure
that states have sufficient authorities to
carry out an enforcement program in
lien of the federal program. The final
rule includes only a few changes to the
proposed requirements.
The proposed 1281.31(a) specified the
authorities necessary to implement
remedies for violations of state program
requirements. Section 281.31(a)(l)
required that states have the authority
to issue a temporary restraining order
that would prevent violators or potential
violators by order or by suit from
engaging in unauthorized activity that is
endangering or causing damage to
. public health or the environment One
commenter requested that the Agency
define "unauthorized activity". This
term is intended to include any activities
that result in noncompliance with the
regulations. The Agency is promulgating
this requirementnow numbered
§ 281.41(a)substantially as proposed.
Section 28L31(a)(2) in the proposed
rule required that states have authority
to roe in a court of competent
jurisdiction for a preliminary or
permanent injunction. The Agency
received no comments on this section
and is promulgating the requirement as
proposed. Both this section and
§ 28L31(a){l) in the proposed rulenow
numbered $ 281.41fa)(l) and (a)(2)are
standard legal authorities and are often
located in a general enforcement statute.
The Agency expects that most states
should be able to easily satisfy these
requirements.
Section 281 Jl(a)(3) of the proposed
rulaset the authorities that states were
required to have to recover civil
penalties. In this section, the Agency
required states to be able to recover
civil penalties for failure to notify or for
submitting false notification information
"up to at least $10.000 per tank." For
failure to comply with state
requirements or standards, the penalties
were required to be assessible "up to at
least SlOOOO" for each tank for each day
of violation.
The Agency received a number of
comments concerning the penalty
authorities, particularly regarding the
phrase "up to at least $10.000" for each
day of violation of state requirements.
Several commenter* interpreted the rule
to mean that EPA was dictating a
minimum civil penalty of $10000. These
commentera argued that the
determination of whether civil penalties
are necessary for effective
implementation should be made at the
state level
The Agency agrees with the
commentera that the proposed language
hi this section was unclear as written.
and is clarifying that the intent is to
require states to have authority to
assess a wide range of penalties either
for each violation or for eacn tank
system for each day of violation.
Therefore, the Agency is promulgating
this revised section as f 281.41(a)(3) of
the final rule to require that states "be
capable of aasnniring civil penalties up
to" the requisite amount per violation, or
for each tank for each day of violation.
One commenter requested that EPA
lower the limit for the penalty authority
from $10.000 to $5,000 for each tank for
each day of violation and suggested that
a $5,000 penalty level was sufficient to
promote compliance. The Agency agrees
with this commenter and has changed
the requirement for civil penalties
accordingly. The penalty level was
originally set at $10.000 for each tank for
each day of violation to reflect the
penalty authority that Congress
provided to EPA for enforcement of the
federal program. States, however, do not
necessarily have to have the same
penalty level authority to run an
adequate UST program. A high penalty
level is often used as ah incentive for
compliance, and generally states do not
actually ever exercise this authority to
the full amount. In addition, ranch of the
regulated community consists of small
businesses, therefore a $5,000 penalty
level is more than adequate to promote
compliance. EPA notes that most states
already have the authority to assess
$5.000 for each violation. The language
change in this section is also consistent
with the Agency's intent to allow states
flexibility in carrying out enforcement
actions. Under the promulgated
§ 281.41(a)(3}, states may determine
during specific enforcement actions that
a lower penalty may be sufficient to
ensure compliance, and similarly are not
restricted to $5,000 for each tank for
each day of violation as a mmrirnnnt
penalty if additional authority is
obtained. Thus. EPA expects that a state
wilt evaluate violations on a case-by-
case basis, and enforce fines according
to the severity of environmental hazard.
the intentions of the owner and
operator, a history of past violations, or
other extenuating circumstances.
The proposed § 281.31 (b) and (cj
now § 281.41 (b) and (c) in the final
rulerequired standard enforcement
authorities regarding burden of proof
and appropriateness of penalties sought
to violations detected. The Agency
received no comment on these
requirements and no changes have been
made since proposal
3. Requirements for Public Participation
(§281.42)
The proposed 5 281.32 set forth three
options that states may choose from to
ensure that the opportunity for public
participation in enforcement
proceedings is provided. The purpose of
providing public participation in the
dedaionmaking process is to promote
public involvement in implementation of
the UST program in the state. The first
option set in the proposed § 281.32 was
authority that allows intervention as of
right in any civil action to enforce UST
requirements. The second option was
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37238 Federal Register / Vol. 53. No. 185 / Friday. September 23. 1988 / Rules and Regulations
assurance that the implementing agency
will provide at least 30 days for public
comment on all proposed settlements:
will investigate and provide written
responses to all citizen complaints; and
will not oppose citizen intervention. The
third option was authority to allow
intervention analogous to Federal Rule
24 (a) (2). To fulfill this requirement.
states must comply with only one of the
three options.
The Agency received a number of
comments on the requirements for
public participation. It appears that
many commenters did not understand
that only one of the three options must
be met Several commenters expressed
the opinion that the Agency's
requirements were inappropriate for a
rule that emphasized flexibility in state
program development For example,
several commenters objected to EPA's
dictating the level of public participation
in enforcement proceedings. The
commenters argued that states and
localities have more expertise than the
federal government in identifying
circumstances in which public
participation is appropriate. Another
concern expressed by commenters is
that certain public participation
procedures may strain available
resources. In particular, commenters
objected to the requirement in the
proposed § 281.32(b)(2) that states
investigate all citizen complaints.
Commenters also objected to the
requirement that states provide 30 days
for public comment on all proposed
settlements of civil enforcement actions.
One commenter indicated that this
requirement would be a tremendous
burden on implementing agencies.
Conversely, one commenter objected to
the option approach, and stressed the
need for very specific public
participation requirements.
The Agency has retained the option
approach in the final rule because each
of the options separately provides an
adequate opportunity for public
participation, and requiring all three
options would be unnecessary. To
emphasize that the Agency is providing
options for this requirement the Agency
hat added the phrase "any one of the
following three options" to the first
sentence in § 281.42 of the final rule. The
Agency has also changed the order of
the requirements for clarification. The
option for the authority presented in the
proposed § 281.32(c) is promulgated as
the first option in § 281.42(a) of the final
rule. The Agency has presented this
authority first because it recognizes that
most states will already have an
authority analogous to Federal Rule
24{a)(2). Several commenters from state
agencies noted that they have this
authority. The other options for legal
authority proposed in 5 281.32 are
renumbered accordingly: Proposed
§ 281.32(a) is now § 281.42(b); proposed
§ 2B1.32lb) is now § 281.42(c).
Because the Agency received a
number of comments regarding the
specific requirements for the third
optionproposed as § 281.32(b)the
Agency has made several changes in
this requirement as § 281.42(c) of the
final rule. The Agency has revised the
requirement that states ensure "public
notice of and provide at least 30 days
for" public comment In the final rule,
the Agency has simply required that
states must "provide notice and
opportunity for" public comment These
changes will allow the state to develop
procedures for notification in methods
other than publishing (which implied
that states may have to publish all
notices in a newspaper). The Agency
has also deleted the requirement that
responses to ail citizen complaints must
be written. The Agency does not believe
that the specifics in the requirement are
necessary to ensure public participation;
given the nature of the universe,
responding in writing to all citizen
complaints would be an overwhelming
burden on state and local resources.
Many citizen complaints can be handled
effectively by telephone. In the final
requirement the method of response is
not specified and the word "all" is
deleted. The new language reflects the
need for flexibility in UST enforcement
due to the nature of the regulated
universe
4. Sharing of information (§ 281.43)
The proposed § 281.33(a) set forth
procedures for states to share with the
Agency information obtained or used in
the state program. Section 281.33(b) of
the proposed rule indicated that the
Agency will furnish approved states
with any information necessary for
administering the state program.
Information submitted to the Agency
under a claim of confidentiality subject
to the conditions in 40 CFR Part 2 will
not necessarily be treated as
confidential by the state unless the
owner and operator reapplies for
confidentiality. The Agency received no
comment on this section and is
promulgating it in the final rule in
§ 281.43.
E. Subpart EApproval Procedures
(§§ 281.50 through 281.52)
1. Approval Procedures for State
Programs (5 281.50)
States may submit an application for
approval on the date of promulgation of
the federal technical requirements.
Though states may apply to operate all
aspects of the UST program for both
petroleum and hazardous substance
tanks, approval uf state UST programs
may also occur in phases Section 9004 of
RCRA authorizes interim approval of
state programs for a brief time-period
and also authorizes approval of certain
types of partial programs (this is
discussed under the analysis of the
program description earlier in this
preamble). EPA regional offices will
review state applications to determine if
the application is complete. Section
281.40(c) of the proposed rule allowed
EPA It J days for review and approval
of complete state applications.
Commenters suggested that this time
period be shortened and that an
additional time period be established for
determination of the completeness of an
application. EPA has decided, however,
to promulgate this section substantially
as proposed because section 9004 of
RCRA establishes 180 days as the time
period for accepting and reviewing state
applications, and EPA does not believe
that it is possible to accommodate all
the required procedures in a shorter
period. For example, 30 of these 180
days are necessary for a public
comment period. EPA staff will be
available to states to work with them in
developing both their applications and
programs. Additionally, EPA encourages
states to participate in pre-application
reviews with the Agency's regional
offices in order to facilitate final
approval and ensure that applications
will be complete upon submittal.
Comments on other aspects of the
approval procedures were not received.
The Agency includes a brief description
of the process here for informational
purposes. As part of the application
review process, under § 281.50(e) of the
final rule, the EPA Regional
Administrator will make a tentative
recommendation on approval or
disapproval. EPA then will publish a
tentative determination in the Federal
Register and allow 30 days for public
notice and comment. EPA will hold a
public hearing if there is sufficient
public interest shown during the
comment period. Next under § 281.50(f)
of the final rule, the EPA Regional
Administrator will evaluate the public
comments and make a final decision on
approval or disapproval within the
statutorily mandated 180 days. EPA will
publish this decision in the Federal
Register.
2. Interim Approval (§ 281.91)
Section 281.51 of the final rule
establishes the procedures for approval
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Federal Register /
Friday. September 23, 1988 / Rules and Regulations 37239
of state revisions to interim programs.
Initially, state programs may be
approved for a period of 1 to 3 years
from the date of promulgation of the
federal technical standards, even if their
requirements are less stringent than
federal standards for: Release detection;
release reporting and investigation; and
out-of-service or closed UST systems.
States seeking interim approval are
required to submit a schedule (discussed
in section IV.B. of this preamble) that
outlines the major steps and milestones
for obtaining the additional statutory
and/or regulatory authorities necessary
for final program approval.
States applying for interim approval
must submit to EPA an amended
application with their completed
program revisions by the end of the
applicable time period. The amended
application need only cover changes in
the state program since the award of
interim approval. EPA must review this
amended application using the same
procedures applied to the original
application. The Regional Administrator
will publish the tentative determination
on the amended application in the
Federal Register, and will make a final
determination within 180 days. In the
April 17 proposal, the Agency proposed
in § 281.41(e) that the approved status of
the state's interim program would expire
automatically if EPA disapproves its
amended application. One commenter
expressed concern that this provision
does not allow for instances where a
program amendment is submitted and
disapproved early in the specified time
frame, when opportunity still exists to
correct the deficiencies and reapply.
EPA did not intend this situation to
occur and has added language to clarify
the situation. A state may re-submit an
application any time until the last day of
its allowed interim period. The state
program will revert to EPA only if the
state submission is disapproved and a
revised application is not submitted
before expiration of the interim period.
If a state application for final approval
is received at the end of the interim
period, EPA will evaluate the
submission after termination of the
interim period and will either determine
the state's program to be complete and
approvable, or will determine the
application to be unapprovable, in
which case the state program will .
automatically revert to EPA.
EPA interprets the interim period as
that period of time the state has to
submit an amended application. States
seeking interim and then final approval
are required to submit two separate
approval applications for interim and
final approval and undergo the 180-day
EPA review twice. States receiving
interim approval must submit a
complete application for final approval
by the end of the interim-period or
automatic expiration of approval will
occur. The expiration of interim
approval under Subtitle I does not
require EPA to terminate or withdraw
the program, because the approval .
terminates automatically under the
statute. State programs with expired
interim approval may,'through a
Memorandum of Understanding with
EPA, continue to implement parts of the
federal UST program until they apply for
and receive final approval.
3. Revision of Approved State Programs
(§ 281.52)
At some point in the future it may be
necessary for states to submit revisions
to approved programs for approval by
EPA. This need for revision may occur,
for example, when federal or state
authorities are changed by new
legislation or rulemaking. EPA will treat
revised applications in the same way as
amended applications in that only those
program areas affected by the change
will be subject to review by EPA;
however, the review process will be
streamlined. Instead of publishing a
tentative determination in the Federal
Register, EPA will publish a proposed
determination that may become final
immediately after 60 days. This
"immediate-final" rulemaking procedure
has been used in state program approval
under Subtitle C of RCRA, and for
approval of revisions to State
Implementation Plans under the Clean
Air Act.
One commenter asked whether the
meaning of "adverse comments" in
proposed § 281.42(c) referred to public
comments opposing EPA's decision or to
public comments supporting program
disapproval. In today's rulemaking the
Agency has clarified the meaning of that
section by explicitly referring to
"significant negative comment opposing
the proposed revision". If EPA receives
public comments that strongly oppose
the proposed revision and provide good
reasons for EPA to reconsider its
decision, the Agency may choose one of
two options. The Agency may publish a
notice in the Federal Register
withdrawing the immediate-final
decision and return to the procedures for
initial and amended applications (found
in § 281;50). Alternatively, the Agency
may publish a notice in the Federal
Register that responds to the significant
negative comments and describes the
Agency's final decision. In addition, if
EPA has reason to believe that a
particular revision will receive
significant negative comment, EPA may
choose to follow the usual review
procedures for program applications,
rather than begin with the immediate-
final rulemaking, process.
One commenter misunderstood EPA's
intent in .this last case. EPA will not
reject a revision simply because
negative public comment is anticipated
or received. Rather, the procedures for
publishing EPA's determination
regarding the state's application will
follow those procedures normally used
rather than the streamlined immediate-
final rulemaking procedures. This course
of action allows more time for the
consideration of public comment.
F. Subpart FWithdrawal of Approval
of State Programs (§§281,60 through
281.61)
No comments were received on this
part of the proposed regulations. EPA is
promulgating these sections
substantially as proposed. EPA has
designed two withdrawal procedures for
circumstances (1) when an approved
state voluntarily transfers program
responsibilities back to EPA, or (2) when
EPA initiates proceedings to determine
if approval of a state program should be
withdrawn. If EPA initiates withdrawal,
the proceedings are to be conducted in
accordance with adjudicatory hearing
proceedings as outlined in 40 CFR 271.23
(b) and (c) of the RCRA Subtitle C state
program approval regulation. EPA
considered, but has rejected at this time,
. an alternative to the Subtitle C approach
calling for withdrawal procedures by
regulation rather than an adjudicatory
hearing process. An example of this
alternative approach is found in 40 CFR
145.34, under the Underground Injection
Control (UIC) program. Subtitle I of
RCRA, covering the regulation of
underground storage tank systems, lacks
the explicit statutory direction provided
to the UIC program under the Safe
Drinking Water Act, and a precedent for
adjudicatory hearings in withdrawal
proceedings has been established for
RCRA under Subtitle C. (The Agency is,
however, re-evaluating the withdrawal
procedures found in 40 CFR 271.23 of the
Subtitle C state program approval
regulations. Since this rule incorporates
those procedures by reference, any final
Agency changes will automatically take
effect in §§ 281.60 through 281.61 of
today's rule.) No public comments were
received on this issue, so EPA has
chosen to incorporate the adjudicatory
hearing procedures.
In § 281;60(a) of today's final rule, the
Agency has clarified the criteria for
withdrawal of state program approval.
The criteria proposed on April 17,1987
required the Agency to consider whether
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37240 Federal Register / Vol. 53»-BIo..,-l65/Friday. September 23, 1988 / Rules and Regulations
t state fa taking timely and appropriate
enforcement action and to evaluate the
quality and number of state compliance
inspections. The Agency is promulgating
final criteria that are more consistent
with the requirements for adequate
enforcement as promulgated today, by
emphasizing its expectations for quality
enforcement actions rather than
quantitative successes. The final
withdrawal criteria require the Agency
to consider whether the state agency is
implementing an adequate enforcement
program by evaluating the quality of
state enforcement actions.
The criteria for withdrawal also
include failure to have adequate
statutory or regulatory authority. This
would include failure to submit an
application for program revision when
requested by EPA as a result of changes
to Subtitle I statutory authorities or
regulatory provisions. However, the
final rule contains no provisions setting
a timeframe for states to submit such
applications. The appropriate timeframe
for such revisions has been a difficult
issue in other state approval programs.
The Agency intends to provide a
timeframe for revisions of Subtitle I
stats programs each time a change in
federal statutory or regulatory
provisions is published in a notice in the
Federal Register.
Finally, the Agency is making one
change to i 281.60{a) to change "the
Administrator must" to "the
Administrator may" withdraw program
approval. This change now makes
i 281.TO(a) consistent with ! 271.22(a) of
the RCRA. Subtitle C regulations. It was
the Agency's intention to use the same
approach for withdrawing program
approval as the Subtitle C program, and
this correction has been made to reflect
that intention.
V. Relationship to Other EPA Programs
A, Leaking Underground Storage Tank
Petroleum Response Fund
The Superfund Amendments and
Reauthorization Act of 1988 amended
Subtitle I to establish a Leaking
Underground Storage Tank (LUST) Trust
Fund to provide funds for corrective
action and enforcement for releases
from USTs storing petroleum. The long-
term goals of the Trust Fund cleanup
program and UST prevention program
are to protect human health and the
environment, primarily from releases to
ground water caused by leaking USTs.
Cleaning up releases using the Trust
Fund is an immediate need, but by itself
Is * short-term and temporary solution.
The long-term solution is for states to
develop prevention programs, which
over time will result in fewer leaking
tanks needing cleanup responses. States
must also develop financial assurance
mechanisms that will provide funds for
future cleanups.
EPA. therefore, has made a link
between the LUST Trust Fund and UST
regulatory program to ensure that future
contamination is minimized. After the
effective date of today's final rule, a
state's success in making reasonable
progress toward submitting a completed
application for state program approval
may be grounds for increasing state
access to the Trust Fund in FY 90 and
thereafter. EPA realizes that
"reasonable progress" toward
submitting a complete application will
vary depending upon the status of the
individual state program. EPA intends to
develop criteria for measuring state
progress, and win evaluate progress for
each individual state during FY 89.
B. RCRA Hazardous Waste Program
State UST program requirements and
approval procedures will be treated
independently of state authorization
under other related EPA programs.
Federal UST legislation, under Subtitle I
of RCRA. was developed to address an
environmental problem not adequately
covered by existing EPA programs.
Regulations governing tanks storing
hazardous wastes have been
promulgated under Subtitle C (40 CFR
Parts 264 and 285, July 14,1986). These
regulations are only applicable to
hazardous wastes, the storage of which
is exempted from today's technical
standards under § 280.10. Approval of a
state UST program under Subtitle I of
RCRA does not entitle a state to
implement hazardous waste tank
requirements under Subtitle C of RCRA.
For additional information, see
"Relationship to Other EPA Programs"
discussed under the. promulgation of
federal UST technical standards.
published elsewhere in today's Federal
Register.
VL Economic and Regulatory Impacts
A Regulatory Impact Analysis
Under Executive Order 12291. EPA
must determine whether a new
regulation is a "major" rule and prepare
a Regulatory Impact Analysis (RIA) in
connection with a major rule. A "major"
rule is defined as one that is likely to
result in: (1) An annual effect on the
economy of $100 million or more: (2) a
major increase in costs or prices for
consumers, individual industries.
federal state, and local government
agencies or geographic regions; or (3)
significant advimut affects on
competition, employment, investment
productivity, innovation, or on the
ability of U.S.-based enterprises in
domestic or export markets. In the April
17 proposal, the Agency stated its belief
that an RIA was not needed for the Part
281 rulemaking.
Onecommenter requested that a
regulatory impact analysis be performed
for the Part 281 regulations, but EPA still
believes that this regulation will have
none of the above effects. The
requirements for state UST programs as
outlined in this proposal will not add
substantial costs beyond those imposed
under the federal UST regulations
proposed elsewhere in today's Federal
Register. Because this rulemaking does
not meet the definition of a major
regulation, the Agency has not
conducted a Regulatory Impact
Analysis. A Regulatory Impact Analysis,
however, has been prepared for the
federal technical requirements and the
results are described in the preamble to
that regulation, published elsewhere in
today's Federal Register. Today's
rulemaking was submitted to the Office
of Management and Budget (OMB) for ,
review as required by Executive Order
12291.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act (5
U.S.C. 601 et seq.) requires an agency to
prepare and make available for public
comment a regulatory flexibility
analysis that describes the impact of a
proposed or final rule on small entities
(i.e., small businesses, small
organizations, and small governmental
jurisdictions). No regulatory flexibility
analysis is required if the head of an
agency certifies the rule will not have
significant economic impact on a
substantial number of small entities.
This rule, in itself, will not have a
significant impact on a substantial
number of small entities, because
federal UST requirements will already
be in effect in all states seeking program
approval subsequent to promulgation of
federal UST requirements under Subtitle
I. Therefore, no regulatory flexibility
analysis has been prepared. EPA has
determined that the final rule for UST
technical standards under Subtitle I.
published elsewhere in today's Federal
Register, will have a significant
economic impact on a substantial
number of small entities based on the
analysis prepared for the final rule.
C. Paperwork Reduction Act
. The information collection
requirements in this rule have been
approved by the Office of Management
and Budget (OMB) under the Paperwork
Reduction Act, 44 U.S.C 3501 et seq.,
and have been assigned OMB Control
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Federal Register / Vol. 53, No. 185 / Friday, September 23. 1988 / Rules and Regulations
37241
Number 2050-0067. The one-tune
reporting and recordkeeping burden on
the public for this collection is estimated
at 15.272 total hours, or 1.632 hours for
the 6 respondents per year over nine
years (with an average of 272 hours per
response). These burden estimates
include all aspects of the collection
effort and may include time for
reviewing instructions, searching
existing data sources, gathering and
maintaining the data needed, completing
and reviewing the collection of
information, etc.
If you wish to submit comments
regarding any aspect of this collection of
information, including suggestions for
reducing the burden, or if you would like
a copy of the information collection
request (please reference IGF #1355),
contact Rick Westlund. Information
Policy Branch. PM-223. U.S.
Environmental Protection Agency, 401M
Street SW.. Washington. DC 20460 (202-
382-2745); and Marcus Peacock. Office
of Information and Regulatory Affairs.
Office of Management and Budget,
Washington, DC 20503. The final rule
will respond to any OMB or public
comments on the information collection
requirements contained in this proposal.
List of Subjects in 40 CFR Part 281
Administrative practice and
procedure, Hazardous materials.
Petroleum, State program approval.
Underground storage tanks.
Date: September 8. 1988.
Lee M. Thomas,
Administrator.
For reasons set out in the preamble.
Tide 40 of the Code of Federal
Regulations is amended by adding a
new Part 281 as follows:
PART 281APPROVAL OF STATE
UNDERGROUND STORAGE TANK
PROGRAMS
Subpart APurpose, General
Requirements and Scope
281.10 Purpose.
281.11 General requirements.
281.12 Scope and definitions.
Subpart BComponents of a Program
Application
281.20 Program application.
281.21 Description of state program.
281.22 Procedures for adequate
enforcement.
281.23 Schedule for interim approval.
281.24 Memorandum of agreement
281.25 Attorney General's statement
Subpart CCriteria for No Less Stringent
28130 New UST system design.
construction, installation, and
notification.
281.31 Upgrading existing UST systems.
281.32 General operating requirements.
281.33 Release detection.
281.34 Release reporting, investigation, and
confirmation.
28135 Release response and corrective
action.
28138 Out-of-service UST systems and
closure.
28137 Financial responsibility for USTs
containing petroleum. [Reserved]
28U8 Financial responsibility for USTs
containing hazardous substances.
[Reserved]
Subpart O Adequate Enforcement of
Compliance
281.40 Requirements for compliance
monitoring program and authority.
281.41 Requirements for enforcement
authority.
281.42 Requirements for public
participation.
281.43 Sharing of information.
Subpart E Approval Procedures
281 JO Approval procedures for state
programs.
281 Jl Amendment required at end of
interim period.
281.52 Revision of approved state programs.
Subpart F Withdrawal of Approval of State
.Programs .
281.80 Criteria for withdrawal of approval
of state programs.
281.61 Procedures for withdrawal of
approval of state programs.
Authority: Sections 2002. 9004. 9005. 9008 of
the Solid Waste Disposal Act as amended by
the Resource Conservation and Recovery Act
of 1976. as amended (42 U.S.C. 8912. 8991 (c).
Subpart A Purpose, General
Requirements and Scop*
§281.10 Purpose.
(a) This subpart specifies the
. requirements mat state programs must
meet for approval by the Administrator
under section 9004 of RCRA. and the
procedures EPA will follow in
approving, revising and withdrawing
approval of state programs.
(b) State submissions for program
approval must be in accordance with the
procedures set out in this part
(c) A state may apply for approval
under this subpart at any time after the
promulgation of release detection.
prevention, and correction regulations
under section 9003 of RCRA.
(d) Any state program approved by
the Administrator under this part shall
at all times be conducted in accordance
with the requirements of this part.
§281.11 -General requirements.
(a) State program elements. The
following substantive elements of a
state program must be addressed in a
state application for approval:
(1) Requirements for all existing and
new underground storage tanks:
(i) New UST systems (design.
construction, installation, and
notification):
(ii) Upgrading of existing UST
systems:
(Hi) General operating requirements:
(iv) Release detection:
(v) Release reporting, investigation.
and confirmation:
(vi) Out-of-service USTs and closure:
(vii) Release response and corrective
action: and
(viii) Financial responsibility for UST
systems containing petroleum.
(2) Provisions for adequate
enforcement of compliance with the
above program elements.
(b) Final approval. The state must
demonstrate that its requirements under
each state program element for existing
and new UST systems are no less
stringent than the corresponding federal
requirements as set forth in Subpart C of
this part except as provided in
paragraph (c) of this section. The siate
must also demonstrate that it has a
program that provides adequate
enforcement of compliance with these
requirements.
(c) Interim approval. (1) The
Administrator may approve state
programs with requirements less
stringent than the federal requirements
for a period of 1 to 3 years from
September 23.1988. Such interim
approval may be granted only if state
regulatory and/or legislative change is
required in order for the state program
to be no less stringent than the federal
requirements and standards under Part
280 for one or more of the following
program elements: Release detection at
existing UST systems: release reporting
and investigation: and out-of-service or
closed UST systems.
(2) A state program may receive
interim approval if it:
(i) Has requirements for three
elements:
(A) Release Detection:
(B) Release Reporting, Investigation.
and Confirmation; and
(C) Out-of-Senrice UST Systems and
Closure: and
(ii) Has requirements that are no less
stringent than the corresponding federal
requirements for five elements:
(A) New UST System Design.
Construction. Installation and
Notification:
(B) Upgrading Existing UST Systems;
(C) General Operating Requirements:
(D) Release Response and Corrective
Action; and
(E) Financial Responsibility for UST
systems containing petroleum: and
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37242 Federal Register / VoL 53. No. 185 /. Friday. September 23. 1988 / Rules and Regulations
(iii) Provides for adequate
enforcement of compliance with these
requirements.
(3) A state with a program that has
received interim approval must receive
final approval of an amended program
containing program elements that are no
less stringent than the corresponding
federal program elements under Subpart
C in accordance with the following
schedule:
(i) If only state regulatory action is
required, the state must submit an
amended program to EPA for approval
before September 23,1989.
(iij If only state legislative action is
required, the state must submit an
amended program to EPA for approval
before September 23,1990.
(ill) If both state legislative and
regulatory action are required, the state
must submit an amended program to
EPA for approval before September 23.
1991.
(d) States with programs approved
under this part are authorized to
administer the state program in lieu of
the federal program and will have
primary enforcement responsibility with
respect to the requirements of the
approved program. EPA retains
authority to take enforcement action in
approved states as necessary and will
notify the designated lead state agency
of any such intended action.
{2*1.12 Scop* and drt!n»ion«v
(a) Scope. (I] The Administrator may
approve either partial or complete state
programs. A "partial" state program
regulates either solely UST systems
containing petroleum or solely UST
systems containing hazardous
substances. If a "partial" state program
Is approved. EPA will administer the
remaining part of the program. A
"complete" state program regulates both
petroleum and hazardous substance
tanks.
(2}'EPA will administer the UST
program on Indian lands, except where
Congress has clearly expressed an
intention to grant a state authority to
regulate petroleum and hazardous
substance USTs on Indian lands. In
either case, this decision will not impair
a state's ability to obtain program
approval for petroleum and/or
hazardous substances on non-Indian
lands in accordance with this part.
(3) Nothing in this subpart precludes a
state from:
(i) Adopting or enforcing requirements
that are more stringent or more
extensive than those required under this
pare or
(ii) Operating a program with a
greater scope of coverage than that
required under this part Where an
approved state program has a greater
scope of coverage than required by
federal law, the additional coverage is
not part of the federally-approved
program.
(b) Definitions. (1) The definitions in
Part 280 apply to all subparts of this
part
(2) For the purpose of this part the
term "interim approval" means the
approval received by a state program
that meets the requirements in
§ 281.11(c) (1) and (2) for the time period
defined in 128Lll(c)(3).
(3) For the purposes of this part the
term "final approval" means the
approval received by a state program
that meets the requirements in
§ 281.11(b).
Subpart BComponents of Program
Application
§281.20 Program appHeatfon.
Any state that seeks to administer a
program under this part must submit an
application containing the following
parts:
(a) A transmittal letter from the
Governor of the state requesting
program approval;
(b) A description in accordance with
§ 281.21 of the state program and
operating procedures;
(c) A demonstration of the state's
procedures to ensure adequate
enforcement;
(d) A schedule for obtaining needed
authorities under interim approval.
where applicable;
(e) A Memorandum-of Agreement
outlining roles and responsibilities of
EPA and the implementing agency;
(f) An Attorney General's statement in
accordance with § 281.25 certifying to
applicable state authorities: and
(g) Copies of all applicable state
statutes and regulations.
Note EPA has designed an optional
application form that is available for use by
state applicants.
§211.21 Description of state program.
A state seeking to administer a
program under this part must submit a
description of the program it proposes to
administer under state law in lieu of the
federal program. The description of a
state's existing or planned program must
include:
(a) The scope of the state program:
(1) Whether the state program
regulates UST systems containing
petroleum or hazardous substances, or
both:
(2) Whether the state is applying for
interim or final approval;
(3) Whether the state program is more
stringent or broader in scope than the
federal program, and in what ways: and
(4) Whether the state has any existing
authority over Indian lands or has
existing agreements with Indian tribes
relevant to the regulation of
underground storage tanks.
(b) The organization and structure of
the state and local agencies with
responsibility for administering the
program. The jurisdiction and
responsibilities of all state and local
implementing agencies must be
delineated, appropriate procedures for
coordination set forth, and one state
agency designated as a "lead agency" to
facilitate communications-between EPA
and the state.
(c) Staff resources to carry out and
enforce the required state program
elements, both existing and planned,
including the number of employees,
agency where employees are located,
general duties of the employees, and
current limits or restrictions on hiring or
utilization of staff.
(d) An existing state funding
mechanism to meet the estimated costs
of administering and enforcing the
required state program elements, and
any restrictions or limitations upon this
funding.
§291.22 Prandura* tor adequate
A state must submit a description of
its compliance monitoring and
enforcement procedures, including
related state administrative or judicial
review procedures.
§281.23 Schedule for interim cpprovai
For a state program that must modify
its statutory or regulatory requirements
for release detection, release reporting
and investigation, and out-of-service or
closed UST systems in order to be no
less stringent than the federal
requirements, the plan must include a
schedule for making such changes and
for submitting an amendment to the
state application in accordance with
S 281.51.
§281.24 Memorandum of agreement
EPA and the approved state will
negotiate a Memorandum of Agreement
(MOA) containing proposed areas of
coordination and shared responsibilities
between the state and EPA and separate
EPA and state roles and responsibilities
in areas including, but not limited to:
Implementation of partial state
programs; enforcement; compliance
monitoring: EPA oversight; and snaring
and reporting of information. At the time
of approval the MOA must be signed by
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Federal Register / VoL 53. No. 185 / Friday. September 23. 1988 / Rules and Regulations 37243
the Regional Administrator and the
appropriate official of die state lead
agency.
§ 281.25 Attorney GtnacaTs statacnsnt
(a) A state must submit a written
demonstration from the Attorney
General that the laws and regulations of
the state provide adequate authority to
carry out the program described under
! 281.21 and to meet other requirements
of this part This statement may be
signed by independent legal counsel for
the state rather than the Attorney
General provided that such counsel has
full authority to independently represent
the state Agency in court on all matters
pertaining to the state program. This
statement most include citations to the
specific statutes, administrative
regulations, and where appropriate.
judicial decisions mat demonstrate
adequate authority to regulate and
enforce requirements for UST systems.
State statutes and regulations cited by
the state Attorney General must be fully
effective when the program is approved.
(b) If a state currently has authority
over underground storage tank activities
on Indian lands, the statement most
contain an appropriate analysis of the
state's authority.
Note The reporting requirements under this
section have been approved by the Office of
Management and Budget (OMB) and hare
been assigned OMB Control Number 2050-
0067.
Subpart CCriteria for No-L*ssr
SlflfKWfflt
§281.30 New UST system design,
conslfucUun. InitHatton. and noBtlcalion.
In order to be considered no less
stringent than the corresponding federal
requirements for new UST system
design, construction, installation, and
notification, the state must have
requirements that ensure all new
underground storage tanfc«, and the
attached piping in contact with the
ground and used to convey the regulated
substance stored in the tank, conform, to
thejollowing:
(a) Be designed, constructed, and
installed in a manner that will prevent
releases for their operating life due to
manufacturing defects, structural failure,
or corrosion.
Note Code* of practice developed by
national independent testing laboratories
may be used to demonstrate that the state
program requirements are no less stringent in
this area.
(b) Be provided with equipment to
prevent spills and tank overfills when
new *»nlf« are installed or existing t»«ir«
are upgraded, unless the tank does not
receive more than 25 gallons at one time.
(c) All UST system owners and
operators must notify the implementing
state agency of the existence of any new
UST system using a form designated by
the state agency.
§281.31 Upgrading existing UST systems.
In order to be considered no less
stringent than the corresponding federal
upgrading requirements, the state must
have requirements that ensure existing
UST systems will be replaced or
upgraded before December 22.199a to
prevent releases for their operating life
due to corrosion, and spills or overfills.
§281.32 General operating requirements.
In order to be considered no less
stringent than the corresponding federal
general operating requirements, the
state must have requirements that
ensure all new and existing UST
systems conform to the following:
(a) Prevent spills and overfills by
ensuring that the space in the tank is
sufficient to receive the volume to be
transferred and that the transfer
operation is monitored constantly;
(b) Where equipped with cathodic
protection, be operated and maintained
by a person with sufficient training and
experience in preventing corrosion, and
in a mannpr that ensures that no
releases occur during the operating life
of the UST system:
Note Codes of practice developed by
nationally-recognized organizations and
national independent testing laboratories
may be used to demonstrate the state
program requirements are no less stringent
(c) Be made of or lined with materials
that are compatible with the substance
stored;
(d) At the time of upgrade or repair, be
structurally sound and upgraded or
repaired in a manner that will prevent
releases due to structural failure or
corrosion dining their operating lives;
(e) Have records of monitoring,
testing, repairs, and closure maintained
that are sufficient to demonstrate recent
facility «n"pto"»»« status, except that
records demonstrating compliance with
repair and upgrading requirements must
be """"ftHTW* for tnc'remaining
operating life of the facility. These
records must be made readily available
when requested by the implementing
agency.
§28133
In order to be considered no less
stringent !bnn the corresponding federal
requirements for release detection, the
state most have requirements that at a
iniTiimnin ensure all UST systems are
provided with release detection that
conforms to the following:
(a) General methods. Release
detection requirements for owners and
operators must consist of a method, or
combination of methods, that is:
(1) Capable of detecting a release of
the regulated substance from any
portion of the UST system that routinely
contains regulated substancesas
effectively as any of the methods
allowed under the federal technical
standardsfor as long as the UST
system is in operation. In comparing
methods, the implementing agency shall
consider the size of release that the
method can detect and the speed and
reliability with which the release can be
detected.
(2) Designed, installed calibrated.
operated and maintained so that
releases will be detected in accordance
with the capabilities of the method.
(b) Phase-in of requirements. Release
detection requirements must at a
minimum, be scheduled to be applied at
all UST systems:
(1) Immediately when a new UST
system is installed:
(2) On an orderly schedule that
completes a phase-in of release
detection at all existing UST systems [cr
their closure) before December 21.1993.
except that release detection for the
piping attached to any existing UST that
conveys a regulated substance under
greater man atmospheric pressure must
be phased-in before December 22.1990.
(c) Requirements for petroleum tanks.
All petroleum tanks must be sampled.
tested, or checked for releases at least
monthly, except that:
(1) New or upgraded tanks (that is,
tanks and piping protected from releases
due to corrosion and equipped with both
spill and overfill prevention devices)
may temporarily use monthly inventory
control (or its equivalent) in
combination with tightness testing (or its
equivalent) conducted every 5 years for
the first 10 years after the tank is
installed or upgraded or until December
22,1996, whichever is later and
(2) Existing tanks unprotected from
releases due to corrosion or without
spill and overfill prevention devices may
use monthly inventory control (or its
equivalent) in combination with annual
tightness testing (or its equivalent) until
December 22.1998.
(d) Requirements for petroleum
piping. All underground piping attached
to the tank mat routinely conveys
petroleum must conform to the
following:
(1) If the petroleum is conveyed under
greater than atmospheric pressure:
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37244 Federal Regiater / Vol. 53. No. 185 / Friday. September 23. 1988 / Rules and Regulations
(i) The piping must be equipped with
release detection that detects a release
within an hour by restricting or shutting
off flow or sounding an alarm; and
(ii) The piping must have monthly
monitoring applied or annual tightness
teats conducted.
(2) If suction lines axe used:
(i) Tightness tests must be conducted
at least once every 3 years, unless a
monthly method of detection is applied
to this piping; or
(ii) The piping is designed to allow the
contents of the pipe to drain back into
the storage tank if the suction is
released and is also designed to allow
an inspector to immediately determine
the integrity of the piping system.
fe) Requirements for hazardous
substance UST systems. All UST
systems storing hazardous substances
must meet the following:
(1) All existing hazardous substance
UST systems must comply with all the
requirements for petroleum UST
systems in paragraphs (c) and (d) of this
section and after December 22,1993.
they must comply with the following
paragraph (e)[2) of this section.
(2) All new hazardous substance UST
systems must use interstitial monitoring
within secondary containment of the
tanks and the attached underground
piping that conveys the regulated
substance stored in the tank, unless the
owner and operator can demonstrate to
the state (or the state otherwise
determines) that another method will
* detect a release of the regulated
substance as effectively as other
methods allowed under the state
program for petroleum UST systems and
that effective corrective action
technology is available for the
hazardous substance being stored that
can be used to protect human health and
the environment.
§ 281.34 Rite*** reporting, Investigation,
and confirmation.
In order to be considered no less
stringent than the corresponding federal
requirements for release reporting,
investigation, and confirmation, the
state must have requirements that
ensure all owners and operators
conform with the following:
(a) Promptly investigate all suspected
releases, including:
(1) When unusual operating
conditions, release detection signals and
environmental conditions at the site
suggest a release of regulated
substances may have occurred: and
(2) When required by the
implementing agency to determine the
soutca of a release having an impact in
the surrounding area; and
(b) Promptly report ail confirmed
underground releases and any spills and
overfills that are not contained and
cleaned up.
(c) Ensure that ail owners and
operators contain and clean up
unreported spills and overfills in a
manner that will protect human health
and the environment
§281.35
action.
Release response and corrective
In order to be considered no less
stringent than the corresponding federal
requirements for release response and
corrective action, the state must have
requirements that ensure:
(a) All releases from UST systems are
promptly assessed and further releases
are stopped;
(b) Actions are taken to identify,
contain and mitigate any immediate
health and safety threats that are posed
by a release (such activities include
investigation and initiation of free
product removal if present):
(c) All releases from UST systems are
investigated to determine if there are
impacts on soil and ground water, and
any nearby surface waters. The extent
of soil and ground water contamination
must be delineated when a potential
threat to human health and the
environment exists.
(d) All releases from UST systems are
cleaned up through soil and ground
water remediation and any other steps,
as necessary to protect human health
and the environment;
(e) Adequate information is made
available to the state to demonstrate
that corrective actions are taken in
accordance with the requirements of
paragraphs (a) through (d) of this
section. This information must be
submitted in a timely manner that
demonstrates its technical adequacy to
protect human health and the
environment: and
(!) In accordance with % 28O87. the
state must notify the affected public of
all confirmed releases requiring a plan
for soil and ground water remediation.
and upon request provide or make
available information to inform the
interested public of the nature of the
release and the corrective measures
planned or taken.
§ 281.36 Out-of-«enrice UST systems and
closure.
In order to be considered no less
stringent than-the corresponding federal
requirements for temporarily closed
UST systems and permanent closure, the
state must have requirements that
ensure UST systems conform with the
following:
(a) Removal from service. All new and
existing UST systems temporarily closed
must:
(1) Continue to comply with general
operating requirements, release
reporting and investigation, and release
response and corrective action:-
(2) Continue to comply with release
detection requirements if regulated
substances are stored in the tank:
(3) Be closed off to outside access: and
(4) Be permanently closed if the UST
system has not been protected from
corrosion and has not been used in one
year, unless the state approves an
extension after the owner and operator
conducts a site assessment.
(b) Permanent closure of UST
systems. All tanks and piping must be
cleaned and permanently closed in a
manner that eliminates the potential for
safety hazards and any future releases.
The owner or operator must notify the
state of permanent UST system closures.
The site must also be assessed to
determine if there are any present or
were past releases, and if so, release
response and corrective action
requirements must be complied with.
(c) All UST systems taken out of
service before the effective date of the
federal regulations must permanently
close in accordance with paragraph (b)
of this section when directed by the
implementing agency.
§281.37 Financial responsibility for USTs
containing petroleum. EM [Reserved j
5281.38 Financial responsibility for UST«
containing hazardous substances.
[Reserved]
Subpart DAdequate Enforcement of
Compliance
§ 281.40 Requirements for compliance
monitoring program and authority.
(a) Any authorized representative of
the state engaged in compliance
inspections, monitoring, and testing
must have authority to obtain by request
any information from an owner or
operator with respect to the UST
system(s) that is necessary to determine
compliance with the regulations.
(b) Any authorized representative of
the .state must have authority to require
an owner or operator to conduct
monitoring or testing.
(c) Authorized representatives must
have the authority to enter any site or
premises subject to UST system
regulations or in which records relevant
to the operation of the UST system(s)
are kept, and to copy these records,
obtain samples of regulated substances.
and inspect or conduct the monitoring or
testing of UST system(s).
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Federal Register / Vol. 53, No. 185 / Friday. September 23. 1988 / Rules and Regulations 37245
(d) State programs must have
procedures for receipt, evaluation,
retention, and investigation of records
and reports required of owners or .
operators and must provide for
enforcement of failure to submit these
records and reports.
(e)(l) Stale programs must have
inspection procedures to determine,
independent of information supplied by
regulated persons, compliance with
program requirements, and must provide
for enforcement of failure to comply
with the program requirements. States
must maintain a program for systematic
inspections of facilities subject to
regulations in a manner designed to
determine compliance or non-
compliance, to verify accuracy of
information submitted by owners or
operators of regulated USTs, and to
verify adequacy of methods used by
owners or operators in developing that
information.
(2) When inspections are conducted,
samples taken, or other information
gathered, these procedures must be
conducted in a manner (for example,
using proper "chain of custody"
procedures) that will produce evidence
admissible in an enforcement
proceeding, or in court.
(f) Public effort in reporting violations
must be encouraged and the state
enforcement agency(ies) must make
available information on reporting
procedures. State programs must
maintain a program for investigating
information obtained from the public
about suspected violations of UST
program requirements.
(g) The state program must maintain
the data collected through inspections
and evaluation of records in such a
manner that the implementing agency
can monitor over time the compliance
status of the regulated community. Any
compilation, index, or inventory of such
facilities and activities shall be made
available to EPA upon request.
§ 281.41 Requirements for enforcement
authority.
(a) Any state agency administering a
program must have the authority to
implement the following remedies for
violations of state program
requirements:
(1) To restrain immediately and
effectively any person by order or by
suit in state court from engaging in any
unauthorized activity that is
endangering or causing damage to
public health or the environment;
(2) To sue in courts of competent
jurisdiction to enjoin any threatened or
continuing violation of any program
requirement;
(3) To assess or soe to recover in court
civil penalties as follows:
(i) Civil penalties for failure to notify
or for submitting false information
pursuant to tank notification
requirements must be capable of being
assessed up to S5.000 or more per
violation.
(ii) Civil penalties for failure to
comply with any state requirements or
stand.irds for existing or new tank
systems must be capable of being
assessed for each instance of violation,
up to $5.000 or more for each tank for
each day of violation. If the violation is
continuous, civil penalties shall be
capable of being assessed up to $5,000
or more for each day of violation.
(b) The burden of proof and degree of
knowledge or intent required under state
law for establishing violations under
paragraph (a)(3) of this section, must be
no grenter than the burden of proof or
degree of knowledge or intent that EPA
must provide when it brings an action
under Subtitle I of the Resource
Conservation and Recovery Act.
(c) A civil penalty assessed, sought, or
agreed upon by the state enforcement
agency(ies) under paragraph (a)(3) of
this section must be appropriate to the
violation.
§281.42 Requirements for public
participation.
Any state administering a program
must provide for public participation in
the state enforcement process by
providing any one of the following three
options:
(a) Authority that allows intervention
analogous to Federal Rule 24(a)(2), and
assurance by the appropriate slate
enforcement agency that it will not
oppose intervention under the state
analogue to Rule 24(a)(2) on the ground
that the applicant's interest is
adequately represented by the State.
(b) Authority that allows intervention
as of right in any civil action to obtain
the remedies specified in § 281.41 by any
citizen having an interest that is or may
be adversely affected; or
(c) Assurance by the appropriate state
agoncy that:
(1) It will provide notice and
opportunity for public comment on all
proposed settlements of civil
enforcement actions (except where
immediate action is necessary to
adequately protect human health and
the environment);
(2) It will investigate and provide
response* to citizen complaints about
violations; and
(3) It will not oppose citizen
intervention when permissive
intervention is allowed by statute, rule,
or regulation
§ a 1.43 Sharing of Information.
(a) Stales with approved programs
must furnish EPA, upon request, any
information in state files obtained or
used in the administration of the state
program. This information includes:
(1) Any information submitted to the
state under a claim of confidentiality.
The state must submit that claim to EPA
when providing such information. Any
information obtained from a state and
subject to a claim of confidentiality will
be treated in accordance with federal
regulations in 40 CFR Part 2; and
(2) Any information that is submitted
lo the state without a claim of
confidentiality. EPA may make this
information available to the public
without further notice.
(b) EPA must furnish to states with
approved programs, upon request, any
information in EPA files that the state
needs to administer its approved state
program. Such information includes:
(1) Any information that is submitted
to EPA without a claim of
confidentiality; and
(2) Any information submitted to EPA
under a claim of confidentiality, subject
to the conditions in 40 CFR Part 2.
Subpart EApproval Procedures
§ 281.50 Approval procedures for state
programs.
(a) The following procedures are
required for all applications, regardless
of whether the application is for a
partial or complete program, as defined
in § 281.12, or for interim or final
approval in accordance with § 281.11.
(b) Before submitting an application to
EPA for approval of a state program, the
state must provide an opportunity for
public notice and comment in the
development of its underground storage
tank program.
(c) When EPA receives a state
program application, EPA will examine
the application and notify the state
whether its application is complete, in
accordance with the application
components required in % 281.20. The
100-day statutory review period begins
only after EPA has determined that a
complete application has been received.
(d) The state and EPA may by mutual
agreement extend the review period.
(e) After receipt of a complete
program application, the Administrator
will tentatively determine approval or
disapproval of the state program. EPA
shall issue public notice of the tentative
determination in the Federal Register, in
enough of the largest newspapers in the
state to attract statewide attention; and
to persons on the state agency mailing
list and any other persons who the
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37246 Federal Register / Vol. 53. No. 185 / Friday. September 23. 1988 / Rules.and Regulations
agency has reason to believe are
interested. Notice of the tentative
determination must also:
(1) Afford the public 30 days after the
notice to comment on the state's
application and the Administrator's
tentative determination: and
(2) Include a general statement of the
areas of concern, if the Administrator
indicates the state program may not be
approved: and
(3) Note the availability for inspection
by the public of the state program
application: and
(4) Indicate that a public hearing will
ba held by EPA no earlier than 30 days
after notice of the tentative
determination unless insufficient public
interest is expressed, at which time the
Regional Administrator may cancel the
public hearing.
(f) Within 180 days of receipt of a
complete state program application, the
Administrator must make a final
determination whether to approve the
state program after review of all public
comments. EPA will give notice of its
determination in the Federal Register
and codify the approved state program.
The notice must include a statement of
the reasons for this determination and a
response to significant comments
received.
§ 251.51 Amendment required at end of
biterfcn period.
(a) Stat:i programs that meet the
requirements of section 281.11(c) (1) and
(2) may be approved for 1 to 3 years
from September 23,1988. States that
, receive such interim approval must
adopt requirements that are no less
stringent than the corresponding federal
requirements and standards within the
timeframes specified under
§ 281.11(c)(3). .
(b) By the end of the specified time
period, a state with interim approval
must submit to EPA an amendment to its
application that includes all modified
and new requirements for any of the
elements containing less stringent
requirements. Such amended
applications must also include a
modified program description, an
Attorney General's statement and a
Memorandum of Agreement that
incorporate the amended program
requirements, and copies of all
applicable state statutes and
regulations.
(c) Upon receipt of the application
amendment, the Administrator shall
follow the same review and approval
procedures as required in § 281.50.
(d) If a state fails to submit an
amendment within the specified
timeframe. the interim approval of the
state program expires upon the
applicable date established under
§ 281.11(c), and the Subtitle I program
automatically reverts to EPA.
(e) If a state submits an amendment to
the program application within the
timeframe specified under § 281.11(c)(3)
and the amendment is disapproved after
the end of the time period, the interim
approval of the state program expires
immediately upon disapproval and the
Subtitle I program automatically reverts
to EPA.
(f) If interim approval of the state
program expires. EPA must notify the
regulated community and the public of
the re-establishment of the federal
program through a notice in the Federal
Register.
§281.52 Revision of approved stata
(a] Either EPA or the approved state
may initiate program revision. Program
revision may be necessary when the
controlling federal or state statutory or
regulatory authority is changed or when
responsibility for the state program is
shifted to a new agency or agencies. The
state must inform EPA of any proposed
modifications to its basic statutory or
regulatory authority or change in
division of responsibility among state
agencies. EPA will determine in each
case whether a revision of the approved
program is required.
(b) Whenever the Administrator has
reason to believe that circumstances
have changed with respect to an
approved state program or the federal
program, the Administrator may request,
and the state must provide, a revised
application as prescribed by EPA.
(c) The Administrator wiU approve or
disapprove program revisions based on
the requirements of this Part and of
Subtitle I pursuant to the procedures
under this section, or under section
281.50 if EPA has reason to believe the
proposed revision will receive
significant negative comment from the
public.
(1) The Administrator must issue
public notice of planned approval or
disapproval of a state program revision
in the Federal Register in enough of the
largest newspapers in the state to
attract statewide attention: and by
mailing to persons on the state agency
mailing list and to any other persons
who the agency has reason to believe
are interested. The public notice must
summarize the state program revision,
indicate whether EPA intends to
approve or disapprove the revision, and
provide for an opportunity to comment
for a period of 30 days.
(2) The Administrator's decision on
the proposed revision becomes effective
80 days after the date of publication in
the Federal Register in accordance with
paragraph (c)(l) of this section, unless
significant negative comment opposing
the proposed revision is received during
the comment period. If significant
negative comment is received, EPA must
notify the state and within 60 days after
the date of publication, publish in the
Federal Register either:
(i) A withdrawal of the immediate
final decision, which will then be
treated as a tentative decision in
accordance with the applicable
procedures of § 281.50 (e) and (f}; or
(ii) A notice that contains a response
to significant negative comments and
affirms either that the immediate final
decision takes effect or reverses the
decision.
(d) Revised state programs that
receive approval must be codified in the
Federal Register.
Subpart FWithdrawal of Approval of
State Programs
§281.60 Criteria for withdrawal of
approval of state program*.
(a) The Administrator may withdraw
program approval when the Agency
determines that a state no longer has
adequate regulatory or statutory
authority or is not administering and
enforcing an approved program in
accordance with this part. The state
must have adequate capability to
administer and enforce the state
program. In evaluating whether such
capability exists, the Agency will
consider whether the state is
implementing an adequate enforcement
program by evaluating the quality of
compliance monitoring and enforcement
actions.
(b) Such withdrawal of approval will
occur only after the state fails to take
appropriate action within a reasonable
time, not to exceed 120 days after notice
from the Administrator that the state is
not administering and enforcing its
program in accordance with the
requirements of this part.
§281.61 Procedure* for withdrew*! of
approval of state programs.
(a) The following procedures apply
when a state with an approved program
voluntarily transfers to EPA those
program responsibilities required by
federal law.
(1) The state must give EPA notice of
the proposed transfer, and submit, at
least 90 days before the transfer, a plan
for the orderly transfer of all relevant
program information necessary for EPA
to administer the program.
(2) Within 30 days of receiving the
state's transfer plan, EPA must evaluate
. the plan and identify any additional
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Federal Register / Vol. 53. No. 185 / Friday. September 23. 1988 / Rules and Regulations 37247
information needed by the federal
government for program administration.
(3) At least 30 days before the transfer
is to occur. EPA must publish notice of
the transfer in the Federal Register in
enough of the largest newspapers in the
state to attract statewide attention; and
to persons on appropriate state mailing
lists.
(b) When EPA begins proceedings to
determine whether to withdraw
approval of a state program (either on
its own initiative or in response to a
petition from an interested person).
withdrawal proceedings must be
conducted in accordance with
procedures set out in 40 CFR 271.23 (b)
and (c). except for § 271^3(b)(8)(iii) to
the extent that it deviates from
requirements under § 281.60.
[FR Doc. 88-21159 Filed 9-22-68; 8:45 am)
BILLING CODE «5«0-50-*l
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OSWER Directive 9650.11
Preamble to Financial Responsibility Objective
(53 FR 43365)
B-3
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Federal Register / Vol. 53. No. 207 / Wednesday, October 26. 1988 / Rules and Regulations 43365
In response to the comment that Trust
Fund money should not be given to
stateo that do not have approved UST
regulatory programs, the Agency wants.
to emphasize that the negotiation of
state cooperative agreements for use of
the LUSTTnist Fund is proceeding on a
path separate from the approval of state
programs. However, EPA has decided to
make a link between the LUST Trust
Fund and UST regulatory program to
ensure that future contamination is
minimized. After the effective date of
today's final rule, a state's success in
making reasonable progress toward
submitting a completed application for
state program approval may be grounds
for increasing state access to the Trust
Fund in fiscal year 1990 and thereafter.
In response to the commenters urging
that the Trust Fund be made directly
available to local governments, EPA's
cooperative agreement process involves
states negotiating arrangements for
proper use, recovery, and accounting of
Trust Fund money with EPA. The
municipalities are not parties to these
negotiations and will need to rely on the
atate to implement a sound and effective
program for the use of the Trust Fund for
corrective action. The statute does not
provide for any direct EPA/municipality
arrangement.
Finally, as discussed in Section III.W
of this preamble, the Agency has
decided to defer promulgation of final
procedures for suspension of
enforcement. Until such procedures are
promulgated, the Agency does not
intend to exercise its discretionary
suspension of enforcement authority. At
that time, the Agency will address the
use of LUST Trust Fund monies to
respond to releases from tanks whose
owner or operator is a member of a
class which has been granted a
suspension of enforcement.
V. State Program Approval
A. Background
Section 9004 of RCRA allows any
state to submit an underground storage
tank regulatory program for review and
approval by EPA. An EPA-approved
state UST regulatory program will
operate "in lieu of the Federal program.
The Agency may approve the state
program if the state demonstrates that
its program (1) imposes requirements
that are "no less stringent" than the
Federal release detection, prevention,
correction, and financial responsibility
requirements, and (2) provides for
adequate enforcement of compliance
with such requirements.
B. Financial Responsibility Objective
(§281.37)
In its final State Program Approval
rule (53 FR 37212, September 23,1988),
EPA promulgated criteria for state
program approval in the form of
objectives for seven of the technical
program elements in the final technical
standards rule (53 FR 37082, September
23.1988): New UST system design,
construction, installation and
notification; upgrading existing UST
systems; general operating
requirements; release detection; release
reporting and investigation;o8rrective
action; and out-of-service and closed
UST systems. The eighth objective for
financial responsibility of owners and
operators of petroleum UST systems is
promulgated in today's rule.
These objectives represent the
Agency's expectations of what
constitutes a no-less-stringent state
program. By requiring the state to
achieve the objectives underlying the
detailed Federal requirements in each
element rather than match each
regulatory detail of the Federal
requirements, EPA provides a
performance-based measure for
evaluating programs and recognizes that
the precise details in the Federal
program are not the only feasible
approach to UST regulation. By
establishing these objectives, EPA also
provides a framework for approval that
guarantees that each state UST program
provides a minimum level of protection.
An important objective of the Federal
program is that owners and operators of
UST systems containing petroleum have
adequate financial responsibility to
undertake corrective action and meet
third-party liability claims. The Federal
law mandates $1 million per occurrence
with appropriate aggregate amounts as
the minimum level of assurance needed
by most owners and operators of
petroleum UST systems to meet cleanup
and liability costs. Today's Federal
financial responsibility rule allows an
exception for certain classes of owners
and operators who store small
quantities of petroleum for purposes
other than selling it as a product. More
specifically, owners and operators not
engaged in petroleum production,
refining, or marketing and who have a
throughput of 10,000 gallons or less per
month are required to have only
$500,000 per occurrence for corrective
action and third-party liability claims. In
addition, the financial responsibility rule
sets the aggregate amounts at $2 million
for owners and operators with more
than 100 UST systems, and $1 million for
tho.se who have 100 or fewer UST
systems. Finally, the financial' .
responsibility requirements will be
phased-in over a 24-month period from
the date of promulgation for different
groups of owners and operators. In order
to be no less stringent than the Federal
requirements for financial responsibility
for USTs containing petroleum, the state
must have requirements for owners and
operators to have financial assurance
and for the types of mechanisms .used to
provide that financial assurance.
The Agency received comments in
support of the holistic approach to
determining no less stringent state
programs, particularly because such an
approach would enable a state to trade-
off more stringent technical
requirements with less stringent '
financial requirements, for example,
lower amounts of financial
responsibility. While the Agency
understands that states may experience
difficulty in obtaining statutory or
regulatory authority to require $1 million
in coverage, that amount was
established by Congress in Subtitle I
and EPA believes it does not have the
flexibility to lower that level of coverage
as part of the Federal program or as part
of state program approval.
The first aspect of this objective
(§ 281.37(a)) concerns the amount of
financial assurance, both per occurrence
and in aggregate, that an owner or
operator must have. First, the state must
have a statute or regulations that require
an owner or operator to have at least $1
million or $500,000 per occurrence and
$1 million or $2 million in aggregate,
depending on the size and type of the
operation. This requirement follows
directly from the Federal financial
responsibility regulations for petroleum-
containing UST systems.
The Supplemental Notice published
on December 23,1987 (52 FR 48644)
included an objective for financial
responsibility; however, aggregate levels
were not included in the proposed
objective. To remain consistent with the
Federal requirements for financial
responsibility, the Agency today is
promulgating the final objective with a
requirement that the owner or operator
have financial assurance in appropriate
aggregate levels. Addition of the
aggregate is necessary to ensure that
approved states require an adequate
level of coverage. The aggregate level
varies depending on the number of tanks
owned or operated. Owners and
operators with 1 to 100 tanks must have
an aggregate level of coverage of $1
million and those with more than 100
tanks must have an aggregate level of
coverage of $2 million. The final
objective establishes the same levels of
coverage. Further discussion on pre-
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43366 Federal Register / Vol. 53. No. 207 / Wednesday, October 26, 1988 / Rules and Regulations
occurrence and aggregate levels of
coverage can be found in today's
preamble at Section III.D.
The second aspect of this objective
(§ 281,37(b}) concerns the phase-in
' compliance schedule for owners and
operators. The objective proposed on
December 23,1987 (52 FR 48844) did not
include a provision for a phase-in
schedule. This provision is being added
to be consistent with decisions made
following the Supplemental Notice to the
proposed rule for financial responsibility
for petroleum USTs that was published
in the Federal Register on March 31,
1988 (53 FR 10401). In today's final
financial responsibility rule, EPA has
decided to phase-in compliance over 24
months from the date of promulgation at
all UST systems following a schedule
based on net worth and the number of
tanks owned. Although EPA
recommends that a similar approach be
used by state programs, the Agency has
decided to allow flexibility in the
objective for states to use other phase-in
approaches provided that the schedule
is completed in 24 months. Approaches
that allow all of the regulated
community to wait until the end of the
24-month period would not be accepted
as an orderly schedule.
The third aspect of this objective
(§ 281.37(c)) concerns the variety of
financial mechanisms that may be used
by owners and operators to demonstrate
adequate financial responsibility. The
Federal financial responsibility rule
allows a wide variety of mechanisms
and combinations of mechanisms to be
used. The state may also allow a variety
of financial mechanisms to be used. To
determine whether state-allowed or
required mechanisms are no less
stringent than the Federal requirement,
general criteria have been established
that are applicable to all financial
mechanisms. By establishing these
criteria in the Federal objective, the
Agency believes that it is unnecessary
for the state to have detailed
requirements for each mechanism
affected by these criteria -for purposes of
state program approval. However, EPA
encourages states to adopt the-financial
responsibility regulation, especially the
language of each mechanism, since they
have been developed and tested to
ensure that adequate financial
responsibility will be available when
necessary. For example, the state will
not be expected to demonstrate that its
regulations require a surety company to
state in a bond that the bond cannot be
cancelled during a 120-day period
folio wing-notice-of cancellation of the
bond to the owner or operator The «tate
must, however, be able to draw on die
funds assured by the bond before
cancellation occurs. The state
regulations must ensure that the time
period before the effective cancellation
of the bond provides ample opportunity
for the state to assess the facility,
determine if a release has occurred, and,
if needed, draw funds from the
instrument In this way, the Federal
objectives for financial responsibility for
UST systems containing petroleum are
met.
Section 9004(c)(l) of Subtitle I allows
states to set up a fund that may be used
to meet the no less stringent requirement
for financial responsibility. The state
may choose to establish a state fund to
provide financial assurance for certain
classes of owners and.operators or for
all owners and operators. The general
criteria for state funds are represented
in the objective (§ 281.37(a) and (cj);
these criteria are essentially the same as
the requirements for state funds set out
in the Federal financial responsibility
rule in § 280.100. Further discussion on
state funds and their use in providing
financial assurance will be available in
guidance due to be issued this fall by
EPA. A briefer discussion can also be
found in EPA's State Program Approval
Handbook.
Some commenters expressed concern
that the requirement that states have a
financial responsibility program that is
no less stringent than the Federal
program in order to receive state
program approval will delay approval of
state programs. The commenters stated
that complex financial responsibility
requirements could discourage states
from submitting UST programs for
approval They urged that EPA
promulgate a simple financial
responsibility framework and provide
guidance to the states.
As explained above, the requirement
that an approved state program contain
financial responsibility requirements.
that are no less stringent than those
under the Federal program is required
by RCRA Section 9004. However, EPA
has developed an approach to state
program approval that provides states
as much latitude as possible consistent
with the statute in adopting approaches
to 'fulfill the requirement The Agency
recognizes the difficulties for states in
developing financial responsibility
programs and is preparing detailed
guidance and outreach assistance to
states to help them develop their
programs.
A more complete analysts of iasttee
regarding state program approval is
presented in the preamble to that rule
(53 FR 37212, September
VI. Compliance Monitoring and
Enforcement
Although not raised as an issue in the
proposal, implications of the proposed
rules for compliance monitoring and
enforcement activities received
considerable comment Many of the
comments were submitted by states.
In general, the comments note that
performing compliance monitoring and
enforcement for financial responsibility
rules will place a heavy resource burden
on the states. Moreover, some states are
currently understaffed while others
apparently have little experience with
the options for demonstrating financial
responsibility and would have difficulty
evaluating them. Also, the proposed
requirement for maintaining financial
responsibility for one year after tank
closure would be difficult to enforce,
especially if the business is sold, closes,
of goes bankrupt.
Some states noted that, if the states
will be responsible for implementation
of the financial responsibility program
and will not be provided funding, then
EPA should not have a strong oversight
role or stringent requirements for state
program approval. Another state
commenter reads the proposed section
on reporting, which requires owners or
operators to send evidence of financial
responsibility to the Regional
Administrator, to mean that EPA will
administer the entire financial
responsibility program.
A number of non-governmental
commenters also noted the enormous
burden that ensuring compliance for
such a large universe would entail, with
some offering approaches to enhance
compliance and enforcement. One
approach suggested by several
commenters is that EPA collect evidence
of financial responsibility from all
owners or operators through periodic
reporting; for example, using the Tank
Notification Program to provide the
basis for annual notification of
compliance with financial responsibility
requirements. Other commenters
suggested that proof of financial
responsibility be made a condition to
obtain an annual operating permit
Another suggested that enforcement
would be enhanced if the scope of these
complicated rules could be clarified
using the following techniques: (1)
Workshops, (2) fact sheets, (3) more
detailed summaries, and (4) condensed
versions of the regulations.
Virtually all of the comments evidence
bolh justifiable concern that performing
compliance monitoring and enforcement
for such an enormous regulated
community presents a formWabie
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OSWER Directive 9650.11
APPENDIX C
Tools for Implementing State Regulations
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OSWER Directive 9650.11
Tools for Implementing State Regulations
The following section describes various approaches that States have used
to implement their regulations and monitor Compliance. These examples are
provided here to assist States in developing their UST program or making it
work more effectively. The use of such approaches are merely suggestions for
interested States and are not necessary to receive State program approval
New UST System Design. Construction. Installation and Notification. To make
sure that installations of new UST systems are completed properly Maine
certifies installers. The certification involves a written test based on
nationally-recognized codes and a review of applicant's qualifications
(including apprenticeship and work experience) as an installer by the Board of
Underground Oil Storage Tank Installers.
Permitting is another way to ensure that new UST systems are soundly
designed, constructed, and installed. In one State, the permitting process
requires the owners to describe: (1) the UST characteristics, such as tank
capacity, contents, and material of construction, cathodic protection and
release detection methods, and (2) facility characteristics, including
property boundaries, the location of buildings at the site and in the
surrounding area, the location of the proposed tank system, and the
approximate location of public or private water wells and any surface water
bodies within 500 feet of the proposed UST. The permitting process in
Nebraska includes a review of shop drawings by the State Fire Marshal's Office
and an on-site inspection of the tank and piping systems during installation.
Upon notification, Florida provides each owner- or operator with a
registration sticker or a certificate that lists all of the registered USTs at
the facility. State regulations require that this proof of registration be
posted in plain view near the UST system so that fuel distributors can verify
the registration status of the UST before they make a delivery. If no proof
of registration is displayed, the distributor is prohibited from making a
delivery. Distributors are also required to make notification forms available
to any customers who may own USTs that need to be registered.
In addition to the Federally-required notification by owners and
operators of new and existing USTs, Connecticut requires notification in the
event of change in ownership or control of a new or existing UST system within
15 days of the change in status. Also, owners and operators must report any
changes in the information provided to the State for purposes of notification
within 30 days of the change(s) (for example, type of substance stored).
Upgrading Existing UST Systems. Vermont has an innovative approach that
helps to implement upgrading requirements. Vermont recently passed
legislation that sets forth an incentive program to encourage UST upgrading.
This program provides financial assistance to owners of retail gas stations
that sell less than 20,000 gallons of gasoline per month and that want to
replace their USTs in accordance with Vermont's regulations. Owners must fill
out an application providing the Vermont Agency of Environmental Conservation
with essential facility information. Grants up to $5,000 or the cost of
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OSWER Directive 9650.11
bringing the system into compliance (whichever is less) may be awarded to the
applicants. Priority is given to applicants from areas with a low density of
retail gasoline stations and fpr whom the expense of tank replacement is
likely to cause "termination of retail gasoline services." California is
considering the establishment of a similar program with financial assistance
in the form of a loan provided for UST system upgrades and repairs at small
businesses.
General Operating Requirements. Maryland has developed an innovative
approach to prevent operational problems that can cause overfills and spills.
In Maryland, drivers of tank trucks and transports must pass an examination to
demonstrate knowledge of the procedures used in the safe handling of oil, oil
spill control measures, and oil spill reporting requirements. Upon successful
completion of the exam, drivers receive an "Oil Vehicle Operator's
Certificate", which they must carry at all times while involved in the
transfer or transport of oil. Temporary (30 day) certificates are issued to
new drivers provided that the distributor instructs the driver regarding basic
procedures involved in safe handling of oil and oil spill reporting
requirements. Interstate drivers that transport petroleum products through
Maryland are not required to have an operator's certificate; however, all
drivers must follow a detailed set of product transfer requirements to make
sure that petroleum transfers are handled properly. These requirements
supplement the typical procedural requirements that appear in Maryland's
regulations and serve as a useful- program implementation tool.
To ensure that substances are delivered to USTs with which they are
compatible, some States require labeling of UST systems. Five States
(Delaware, Florida, New Hampshire, New York, and Vermont) have issued
requirements for labeling of tanks and fill ports to identify tank material
and regulated substance compatibility. Both Delaware and Florida have
provisions specifically for USTs made of fiberglass-reinforced plastic. In
these States, both the tank and the fill cap must be equipped with a label
that says: "Non-metallic Underground Tank for Petroleum Products, Alcohols,
and Alcohol-Gasoline Mixtures" or "Non-Metallic Underground Tank for Petroleum
Products Only".
To aid delivery personnel, some States require fill ports to be labeled
with the tank volume and substance stored (for example, color coding for
substance type in accordance with API 1637). In this way, delivery personnel
are provided with the essential information they need to gauge an UST system
accurately and to make the appropriate delivery of regulated substance. The
use of such labeling helps prevent overfills and spills.
. The Delaware Department of Natural Resources and Environmental Control
(DNREC) is drafting standardized methods for recordkeeping. Such
standardization will help UST owners and operators to determine what types of
information must be documented and in what form they must be recorded. The
resulting records should contain useful information that is consistent in
quality and presentation. These characteristics are helpful to the
implementing agency when trying to determine facility compliance. Maintenance
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OSWER Directive 9650.11
of clear and comprehensive records enhances DNREC's compliance monitoring
capabilities.
Release Reporting. Investigation, and Confirmation. Most States require
immediate reporting of all suspected or confirmed releases. Hotlines have
been established in many States in order to provide a fast, effective way of
contacting the emergency response unit. Typically, once a release is
reported, State officials advise UST owners as to what actions they must take.
In TANKLINE (September 1987), Oregon's newsletter for UST owners and
interested parties, a checklistswas presented to guide the actions of UST
owners in the event of a release. The checklist contains 10 major items,
three of which relate to release reporting and investigation, and seven of
which pertain to corrective action. The recommended actions relating to
release reporting and investigation are: (1) notify the DEQ through the
Oregon Accident Response Hotline; (2) determine if there is a fire danger (if
so, contact the fire department immediately); and (3) determine the source of
the release.
Florida has an innovative approach toward release reporting. The State
has instituted, an "Early Detection Incentive" program in which the UST owners
are required to report any UST releases, but have amnesty from clean-up costs
because the remedial actions are financed through a special State trust fund.
Petroleum UST owners are eligible provided that (1) they have complied with
the notification requirement by October 1, 1988; (2) the UST facility is not
owned by the Federal government; (3) State access to the facility for
inspection has not been or is not denied; and (4) the State determines that
the facility was not operated in a grossly negligent manner. (This last
provision gives UST owners an incentive to comply with release detection
monitoring requirements.) Once eligible, the owner or operator may choose to
have the State perform the cleanup, or perform it himself and receive
reimbursement from the State. The number of reports and cleanups this program
has motivated is impressive. The newsletter LUSTLINE (published by the New
England Interstate Water Pollution Control Commission) -, reports that as of
March 2, 1987, 477 sites had requested State cleanup and an additional 298
sites were being cleaned up by the responsible party and receiving
reimbursement from the State.
A different type of incentive for release reporting, abatement, and
hazard mitigation has been put forth in Missouri House Bill No. 528. This
legislation requires "any person having control over a hazardous substance"
who detects a release to notify the State and initiate cleanup. Should this
person fail to comply with these requirements, he is not only liable for the
associated cleanup cost, he is also liable for punitive damages up to three
times the cleanup cost amount. The "any person" language can refer to a
transporter making a product delivery as well as the owner or operator of an
UST system.
One State requires that any facility where one confirmed UST release has
occurred must have all other tanks at that facility inspected within 180 days
to determine whether other releases may exist.
C-3
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OSWER Directive.9650.11
Release Response and Corrective Action. Oregon's newsletter, TANKLINE
(September 1987), presents a checklist to provide guidance to UST owners and
operators in the event of a release. Seven items on this checklist direct
owners on how to clean up the release: (1) determine the extent of
contamination; (2) if product has moved off your property, notify affected
owners; (3) meet with DEQ to set up a cleanup standard and a schedule for the
cleanup; (4) write a remedial action plan to achieve the cleanup goals; (5)
submit your plan to DEQ for approval; (6) implement your plan and monitor
progress; and (7) report to DEQ on your success at meeting cleanup goals. By
posting the State requirements in a newsletter that is circulated to the UST
community, Oregon is using an innovative approach for informing UST owners and
operators of their responsibilities.
In addition to its basic corrective action requirements, Nebraska has
developed a detailed set of protocols for determining the need for and the
nature of ground water remedial action. A systematic flow chart provides
guidance in determining the type and extent of treatment needed. For releases
that have or may potentially impact ground water, a detailed site assessment
is required that must address the characteristics of the soil, hydrogeology,
contaminant, and site (for example, proximity to water supplies and land use)
as well as the background water and soil quality or use. A ground-water
classification scheme is used to determine the degree of hazard presented and
make decisions concerning remedial actions. Based on this assessment,
preliminary cleanup levels are defined and remedial actions proposed.
Florida's Department of Environmental Regulation (DER) has developed a
set of site cleanup criteria for petroleum contamination. The State has
provided criteria for evaluating: (1) the initial remedial action, (2) a
Quality Assurance Project Plan for collecting and analyzing samples, (3) a
contamination assessment and report, (4) a remedial action plan, (5) the
remedial action, and (6) the completion of site rehabilitation. Site
Rehabilitation Levels (SRLs) are allowable contaminant concentration limits
that must be met before the site cleanup can be deemed complete. The SRLs are
based on water quality standards. Alternative or less stringent SRLs may be
created if it can be demonstrated that site-specific factors (for example,
background contaminant levels) can justify their use.
In order to protect human health and the environment when an immediate
threat is perceived, some State agencies swiftly perform corrective action for
UST releases even before they are able to identify all the potentially
responsible parties (PRPs) . States like Maine and New York are able to do
this because they have created cleanup trust funds that allow them to incur
the cost of cleanup and seek PRP reimbursement later. This type of State
trust fund can be an effective tool in mitigating immediate hazards and
ensuring environmental restoration.
Out-of-Service UST Systems and Closure. UST owners or operators in
South Carolina who have temporarily removed their UST system(s) from service
within the past calendar year must submit a report, during January of each
year, to the Department of Health and Environmental Control that describes the
C-4
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OSWER Directive 9650.11
system's location, capacity, permit number, dates temporarily taken out of
operation, and method used to place the system temporarily out of operation.
This report helps South Carolina monitor the compliance qf these temporarily
out-of-service USTs.
For permanent UST closure, some States (FL, MA., and OR) require that the
person dismantling and removing the UST system be certified to ensure that
permanent UST closures are performed properly and safely by trained
professionals. In Maine, the UST owner or operator must notify appropriate
State and local agencies and receive written permission from the Maine
Department of Environmental Protection (DEP). By requiring notification and
written permission, the DEP is aware of planned tank closures and is able to
give UST owners guidance, when necessary, to ensure that appropriate
procedures are used to close the UST system. In Rhode Island, owners and
operators are required to obtain a certificate of closure. In this way, the
State can ensure that site assessments for past and present releases are
performed, and any necessary corrective actions implemented. The potential
dangers associated with UST closure should not be underestimated. To prevent
mishaps, the use of good closure practices is absolutely necessary. The
approaches described above also help States ensure that the UST closure is
performed safely and properly.
New Jersey's proposed regulations suggest another method of ensuring
that closures are performed safely and properly. Owners or operators in New
Jersey who plan to close their UST systems must submit a closure plan to the
Department of Environmental Protection (DEP) 60 days before the anticipated
closure date. This plan consists of a site assessment that incorporates the
following information: (1) three consecutive months of monitoring data from a
DEP-approved external monitoring system; or (2) a work plan for conducting
soil sampling and analysis. This work plan must provide: (1) the number and
location of soil samples; (2) soil sampling procedures (for which the DEP
provides some guidance) and analysis protocols that must be in accordance with
DEP-approved methods; (3) a plot plan clearly indicating all major structures,
including the tank itself (in use and closed), piping, dispensers and other
equipment; (4) a health and safety plan (may be required); (5) an
implementation schedule; and (6) a plan showing the installation of monitoring
wells (may be required). Based on the substance stored, the DEP provides
guidance as to what constituents must be looked for in the soil samples. The
owner or operator is required to implement the closure plan within 30 days
after obtaining all necessary Federal, State, and/or local approvals.
An essential part of permanent UST closure by removal is disposal of
tanks and any end products derived from tank cleaning. Massachusetts has an
innovative approach to address these matters. It requires USTs that are
undergoing removal to be emptied of stored product, purged of vapors, and
taken to a licensed or permitted tank dismantling yard. At the tank yard, the
UST must be logged in, cleaned of residue, and dismantled. The cleaning end
product must be treated as hazardous waste and removed by a hazardous waste or
waste oil transporter licensed by the Department of Environmental Quality
Engineering.
\
C-5
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OSWER Directive 9650.11
Maine makes provisions in the regulations for the proper disposal of
sludge and scale, as well as for recycling and disposal of USTs. Furthermore,
Maine mandates that the tank owner have a notice regarding permanent UST
abandonment attached to the property deed. Although such a requirement is not
needed for State program approval, this mechanism ensures that future property
owners will be informed about the tank's presence on their property. In
California, UST owners or operators choosing to close their USTs in place are
also required to place a notice on the property deed, describing the location
in detail of the closed UST, the regulated substance it contained and the
closure method.
C-6
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OSWER Directive 9650.11
APPENDIX D
Table of National Industry Codes and Standards
-------
-------
OSWER Directive 9650.11
Table of National Industry Codes and Standards
D-l
-------
TABLE 1. SELECTED NATIONAL COMSENSUS CODES AND RECOMMENDED PRACTICES FOR UST MANAGEMENT
MAJOR TECHNICAL TOPICS OF THE FINAL EPA UST RULE
DOCUMENT
NUMBER
DESIGN AND
CONSTRUCTION
CORROSION
PROTECTION
INSTALLATION
UST SYSTEM REPAIR
AND RETROFIT
OPERATING RELEASE RELEASE REPORTING
REQUIREMENT DETECTION AND CORRECTIVE ACTION
CLOSURE
A*arIcan National Standards Institute (ANSI)
ANSI B31.4 .x x
American Petroleum Institute (API)
API 5L
API 12F
API 650
API 1604
API 1615
API 1628
API 1631
API 1632
API 2202
American Society for Testing and Materials (ASTM)
ASTM (Steel
Piping, Tubing,
and Fittings) x
* ASTM A 53-87b x
ASTM A182/A182M-87 x
» ASTM D 4021-86 x
-------
TABLE I. SELECTED NATIONAL CONSENSUS CODES AND RECOMMENDED PRACTICES FOR UST MANAGEMENT (CONTINUED)
MAJOR TECHNICAL TOPICS Of THE FINAL EPA UST RULE
DOCUMENT DESIGN AND CORROSION
NUMBER CONSTRUCTION PROTECTION INSTALLATION
UST SYSTEM REPAIR OPERATING RELEASE
AND RETROFIT REQUIREMENT DETECTION
RELEASE REPORTING
AND CORRECTIVE ACTION
CLOSURE
Association of Composite Tanks (ACT)
» ACT 100 x x
Factory Mutual (FM)
FM 1920 x
National Association of Corrosion Engineers (NACE)
NACE RP-0169-83
NACE RP-0172-72
NACE RP-0184-84
NACE RP-0275-75
NACE RP-0285-85
NACE RP-0572-85
X
X
X
x
x
X
X
X
X
x x
X
X
X X
National Fire Protection Association (NFPA)
NFPA 30
« NFPA 321
» NFPA 327
* NFPA 328
» NFPA 329
» NFPA 385
National leak Prevention Association (NI.PA)
"» NII'A 651 x x
-------
TABLE 1. SELECTED RATIONAL CONSENSUS CODES AND RECOMMENDED PRACTICES FOR UST MANAGEMENT (CONTINUED)
MAJOR TECHNICAL TOPICS OF THE FINAL EPA UST RULE
DOCUMENT DESIGN ANDCORROSION:UST SYSTEM REPAIROPERATINGRELEASE
NUMBER CONSTRUCTION PROTECTION INSTALLATION AND RETROFIT REQUIREMENT DETECTION
RELEASE REPORTING
AND CORRECTIVE ACTION CLOSURE
Owens Corning (OC)
OC 3-PE-9632-A x
Petroleum Equipment Institute (PEI)
» PEI/RP100 x
Steel Tank Institute (STI)
STI (Installation
of Sti-P3)
STI (Interior x
Corrosion
Control)
STI (Exterior x
Corrosion
Protection)
STI (Dual Wall x
USTs)
Underwriters Laboratories (UL)
UL 58
UL 567
UL 1316
-------
TABLE I. SELECTED NATIONAL CONSENSUS CODES AND RECOMMENDED PRACTICES FOR UST MANAGEMENT (CONCLUDED)
MAJOR TECHNICAL TOPICS OF THE FINAL EPA UST RULE
DOCUMENT DESIGN AND CORROSION'UST SYSTEM REPAIR
NUMBER CONSTRUCTION PROTECTION INSTALLATION AND RETROFIT
Western Fire Chiefs Association
UFC 1985 xx
* Revised in 1987
" Drafted in 1987
x - There is a code or recommended practice.
x .
-------
-------
OSWER Directive 9650.11
APPENDIX E
Public Participation
-------
Federal Rule 24(a)(2)
RULES OF CIVIL PROCEDURE
Rule 24. Intervention
(a) Intervention of Right Upon timely applica-
tion anyone sha.i be permitted to intervene m an
action: (1) when a statute of the United States
confers an unconditional right to intervene; or (2)
when the applicant claims an interest relating to
the property or transaction which is the subject of
the action and the applicant is so situated that the
disposition of the action may as a practical matter
impair or impede the applicant's ability to protect
that interest, unless the applicant's interest is ade-
quately represented by existing parties.
(b) Permiuive Intervention. Upon timely ap-
plication anyone may be permitted to intervene in
an action: (1) when a statute of the United States
confers a conditional right to intervene; or (2)
when an applicant's claim or defense and the main
action have a question of law or fact in common.
When a party to an action relies for ground of
claim or defense upon any statute or executive
order administered by a federal or state govern-
mental officer or agency or upon any regulation,
order, requirement or agreement issued or made
pursuant to the statute or executive order, the
officer or agency upon timely application may be
permitted to intervene in the action. In exercising
Hs discretion the court shall consider whether the
intervention will unduly delay or prejudice the adju-
dication of the rights of the original parties.
(e) Procedure. A person desiring to intervene
shall serve a motion to intervene upon the parties
at provided in Rule 5. The motion shall state the
grounds therefor and shall be accompanied by a
pleading setting forth the claim or defense for
which intervention is sought. The same procedure
shall be followed when a statute of the United
States gives a right to intervene. When the consti-
tutionality of an act of Congress affecting the
public interest is drawn in question in any action to
which the United States or an officer, agency, or
employee thereof is not a party, the court shall
notify the Attorney General of the United States as
provided in Title 28. U.S.C. § 2403.
(As amendtd Dec. 27. 1946. eff. Mar. 19. 1948: Dec. 29.
1948. eff. Oct. 20. 1949: Jan. 21. 1963. eff. July 1. 1963:
Ftfa. 28. 1966. eff. July 1. 1966; Mar. 2. 1987. .eff. Aug. 1.
1907.)
-------
OSWER Directive 9650.11
APPENDIX F
Capabilities Matrices
-------
-------
UPGRADING:
STATE UST PROGRAM IMPLEMENTATION ACTIVITIES
INFORMING OWNERS AND OPERATORS
OF UPGRADING REQUIREMENTS
VALIDATING PROPER UPGRADING
TAKING ACTION AGAINST VIOLATORS OF
UPGRADING REQUIREMENTS
> State employs mass mailings of
information concerning the requirements
to the regulated community (e.g., "Musts
for USTs," State-developed materials, and
copies of the regulations).
- State inspectors distribute outreach
materials on-site.
State has local agencies (e.g., local fire
departments) distribute information to
owners and operators concerning the
upgrading requirements.
- State forms committee (including
members from local government,
industry, community groups) that relays
regulatory requirements and information
to oil industry and trade associations and
other interested parties.
- State staff deliver presentations at oil
industry and trade association meetings
and at seminars and conferences.
- State sponsors public service
announcements on radio and television.
- State requires jobbers to distribute
information on upgrading requirements.
- State conducts preventative inspections
to validate upgrading.
- State requires owners and operators to
notify agency of upgrade or repair.
- State agency or fire marshal's office
requires permits for upgrade or repair.
- Local fire departments inspect facilities.
- State conducts targeted inspections of
facilities in areas of greater sensitivity.
- State provides owners or operators with
self-audit forms for self-inspection.
State bars non-upgraded tanks from
receiving state funds for cleanup.
State conducts informal activities (e.g.,
letters, phone calls) to inform owners
and operators of non-compliance and
encourage compliance.
State issues warning letters and notices
of violation to facilities not in compliance..
State issues on-site expedited
administrative orders (e.g., "traffic
tickets").
State hold face-to-face compliance
meetings (e.g., a "show-cause" meeting)
with the violator in which the violator
must demonstrate why an administrative
order should not be issued.
State issues administrative or judicial
orders with penalties.
State revokes permit or does not reissue
permit of recalcitrant violators.
State locks delivery pipe of facilities not
in compliance.
State shuts down facilities of recalcitrant
violators.
-------
UPGRADING:
STATE UST PROGRAM IMPLEMENTATION ACTIVITIES
INFORMING OWNERS AND OPERATORS
OF UPGRADING REQUIREMENTS
VALIDATING PROPER UPGRADING
TAKING ACTION AGAINST VIOLATORS OF
UPGRADING REQUIREMENTS
State publicizes.violations of
requirements in local newspapers or
trade publications.
State includes information on upgrading
requirements as "statement stuffers' in
tank fee invoices
State holds an annual conference/trade
show with owners and operators to
share information.
State provides a telephone number to
owners and operators to call for
additional information on the upgrading
requirements
State holds press conferences on
regulatory requirements.
State has the ability to remove tanks
when the owner or operator is
recalcitrant.
State conducts hearings concerning the
violations before a citizen board. The
hearings are advertised in local
newspapers.
State publishes newspaper and journal
articles on violators and associated
enforcement actions.
State requires violators to publish a
public statement in a local newspaper
explaining the violation and pledging not
to repeat the offense.
-------
NEW UST SYSTEMS AND NOTIFICATION:
STATE UST PROGRAM IMPLEMENTATION ACTIVITIES
INFORMING OWNERS AND
OPERATORS OF NEW UST
SYSTEMS AND NOTIFICATION
REQUIREMENTS
VALIDATING PROPER
DESIGN, CONSTRUCTION,
INSTALLATION OF NEW UST
SYSTEMS
VALIDATING COMPLIANCE
WITH NOTIFICATION
REQUIREMENTS
TAKING ACTION AGAINST
VIOLATORS OF NEW UST
SYSTEMS AND NOTIFICATION
REQUIREMENTS
State employs mass mailings
of information concerning the
requirements to the
regulated community (e.g.,
Musts for USTs," State-
developed materials, and
copies of the regulations).
State inspectors distribute
outreach materials on-site.
State requires tank vendors
to distribute information on
notification requirements.
State has local agencies
(e.g., local fire departments)
distribute information to
owners and operators
concerning the new UST
system requirements.
State forms committee
(including members from
local government, industry,
community groups) that
relays regulatory
requirements and information
to oil industry and trade
associations and other
interested parties.
State certifies installers of
new UST systems to ensure
proper installation
procedures. Certification
requirements may include:
- secured coursework
- written tests
- review of applicants
qualifications by
independent board
State issues installation
permits for new UST systems
based on UST and facility
characteristics descriptions
or on-site UST system
inspections.
State requires all companies
offering UST services to
register with environmental
agency before commencing
work.
State requires prospective
owners and operators to
submit plot plans and
specifications to fire
marshal's office and receive
installation approval before
commencing work.
-State issues registration
sticker or certificate after
notification of existence of
new UST systems. State
requires that this tag be
placed on or near UST
system to enable fuel
distributors to verify
registration status of UST
system before making a
delivery. If tags are missing,
then distributor must notify
the state agency.
State develops and maintains
UST data base which tracks:
permit and closure deadlines
and upgrading dates.
State fire authority has local
engine companies drive
through their districts looking
for visible vent pipes to
identify unknown/unregistered
tanks.
State requirements prohibit
fuel distributors from
delivering to UST systems
that do not display
registration stickers or tags.
If tags are missing, then
distributor must notify the
state agency.
State conducts informal
activities (e.g., letters, phone
calls) to inform owners and
operators of non-compliance
and encourage compliance.
State issues warning letters
and notices of violation to
facilities not in compliance.
- State issues on-site
expedited administrative
orders (e.g., "traffic tickets").
State hold face-to-face
compliance meetings (e.g., a
"show-cause" meeting) with
the violator in which the
violator must demonstrate
why an administrative order
should not be issued.
-------
NEW UST SYSTEMS AND NOTIFICATION:
STATE UST PROGRAM IMPLEMENTATION ACTIVITIES
INFORMING OWNERS AND
OPERATORS OF NEW UST
SYSTEMS AND NOTIFICATION
REQUIREMENTS
VAUDATING PROPER
DESIGN, CONSTRUCTION,
INSTALLATION OF NEW UST
SYSTEMS
VAUDATING COMPLIANCE
WITH NOTIFICATION
REQUIREMENTS
TAKING ACTION AGAINST
VIOLATORS OF NEW UST
SYSTEMS AND NOTIFICATION
REQUIREMENTS
State staff deliver
presentations at oil industry
and trade association
meetings and at seminars
and conferences.
State sponsors public service
announcements on radio and
television.
State requires jobbers to
distribute information on new
UST system and notification
requirements.
State publicizes violations of
requirements in local
newspapers or trade
publications.
State includes information on
new UST system and
notification requirements as
"statement stutters" in tank
fee invoices
- State holds an annual
conference/trade show with
owners and operators to
share information.
State provides tank
installation videos to tank
installers.
State distributes information
on latest tank installation
techniques to tank installers.
State sends inspectors to all
installations.
State sends inspectors to a
selected number of
installations based on facility
criteria (e.g., proximity to
aquifers, compliance history,
previous experience of
contractor).
State requires owner or
operator to submit daily
inventory results for a
specified period immediately
following tank installation.
State conducts phone
surveys of potential UST
facilities to determine if
notification requirements have
been met.
-State reviews building
code/permit files to potential
UST facilities.
-State requires distributor to
submit lists of customers to
verify compliance with
notification requirements.
- State requires UST vendors
to submit lists of customers.
State issues administrative or
judicial orders with penalties.
- State revokes permit or fails
to reissue permit of
recalcitrant violators.
- State locks delivery pipe of
facilities not in compliance.
- State shuts down facilities of
recalcitrant violators.
- State has the ability to
remove tanks when the
owner or operator is
recalcitrant.
- State levies penalties or takes
other enforcement actions
against manufacturers that
sell USTs not authorized
under new UST standards.
- State conducts hearings
concerning the violations
before a citizen board. The
hearings are advertised in
local newspapers.
-------
NEW UST SYSTEMS AND NOTIFICATION:
STATE UST PROGRAM IMPLEMENTATION ACTIVITIES
INFORMING OWNERS AND
OPERATORS OF NEW UST
SYSTEMS AND NOTIFICATION
REQUIREMENTS
VALIDATING PROPER
DESIGN, CONSTRUCTION,
INSTALLATION OF NEW UST
SYSTEMS
VALIDATING COMPLIANCE
WITH NOTIFICATION
REQUIREMENTS
TAKING ACTION AGAINST
VIOLATORS OF NEW UST
SYSTEMS AND NOTIFICATION
REQUIREMENTS
State provides a telephone
number to owners and
operators to call for
additional information on the
new UST system and
notification requirements
State holds press
conferences on regulatory
requirements.
State publishes newspaper
and journal articles on
violators and associated
enforcement actions.
State require violators to
publish a public statement in
a local newspaper explaining
the violation and pledging
hot to repeat the offense.
-------
GENERAL OPERATING REQUIREMENTS:
STATE UST PROGRAM IMPLEMENTATION ACTIVITIES
INFORMING OWNERS AND OPERATORS
OF GENERAL OPERATING REGULATIONS
VALIDATING COMPLIANCE WITH
GENERAL OPERATING REGULATIONS
TAKING ACTION AGAINST VIOLATORS OF
GENERAL OPERATING REGULATIONS
State employs mass mailings of
information concerning the requirements
to the regulated community (e.g., "Musts
for USTS," State-developed materials,
and copies of the regulations).
State inspectors distribute outreach
materials on-site.
State has local agencies (e.g., local fire
departments) distribute information to
owners and operators concerning the
general operating requirements.
State forms committee (including
members from local government,
industry, community groups) that relays
regulatory requirements and information
to oil industry and trade associations and
other interested parties.
State staff deliver presentations at oil
Industry and trade association meetings
and at seminars and conferences.
- State sponsors public service
announcements on radio and television.
- State requires jobbers to distribute
information on general operating
requirements.
State requires labeling of tanks and fill
pipes to identify tank material and proper
regulated substance for tank.
State requires special compatibility
labeling of fiberglass-reinforced plastic
tanks.
State tests and licenses product
transporters in spill and overfill
prevention.
State certifies tank installers, closers,
testers, and supervisors according to
nationally recognized codes.
State requires owners or operators to
obtain permit before beginning repairs.
State requires that tanks have attached
label indicating volume to prevent
overfills.
State develops standardized format for
recordkeeping to aid owners and
operators and inspectors.
State requires owners and operators to
submit documentation on tank tests.
State requires that records be kept on-
site for out-of-service tanks.
State conducts informal activities (e.g.,
letters, phone calls) to Inform owners
and operators of non-compliance and
encourage compliance.
- State issues warning letters and notices
of violation to facilities not in compliance.
State issues on-site expedited
administrative orders (e.g., traffic
tickets").
State hold face-to-face compliance
meetings (e.g., a "show-cause" meeting)
with the violator in which the violator
must demonstrate why an administrative
order should not be issued.
State issues administrative or judicial
orders with penalties.
State revokes permit or does not reissue
permit of recalcitrant violators.
State locks delivery pipe of facilities not
in compliance.
State shuts down facilities of recalcitrant
violators.
State has the ability to remove tanks
when the owner or operator is
recalcitrant.
-------
GENERAL OPERATING REQUIREMENTS:
STATE UST PROGRAM IMPLEMENTATION ACTIVITIES
INFORMING OWNERS AND OPERATORS
OF GENERAL OPERATING REGULATIONS
VALIDATING COMPLIANCE WITH
GENERAL OPERATING REGULATIONS
TAKING ACTION AGAINST VIOLATORS OF
GENERAL OPERATING REGULATIONS
- State publicizes violations of
requirements in local newspapers or
trade publications.
- State includes information on general
operating requirements as "statement
stuffers" in tank fee invoices
State holds an annual conference/trade
show with owners and operators to
share information.
State provides a telephone number to
owners and operators to call for
additional information on the general
operating requirements
State holds press conferences on
regulatory requirements.
State requires tank testers to submit
documentation on tank tests.
State requires records of daily inventory
tests.
- State conducts hearings concerning the
violations before a citizen board. The
hearings are advertised in local
newspapers.
State publishes newspaper and journal
articles on violators and associated
enforcement actions.
State requires violators to publish a
public statement in a local newspaper
explaining the violation and pledging not
to repeat the offense.
-------
RELEASE DETECTION:
STATE UST PROGRAM IMPLEMENTATION ACTIVITIES
INFORMING OWNERS AND OPERATORS
OF THE RELEASE DETECTION
REQUIREMENTS
VALIDATING COMPLIANCE WITH
RELEASE DETECTION REQUIREMENTS
TAKING ACTION AGAINST VIOLATORS
OF RELEASE DETECTION
REQUIREMENTS
State employs mass mailings of
information concerning the
requirements to the regulated
community (e.g., "Musts for USTs,"
"Leak Lookout," State-developed
materials, and copies of the
regulations).
State inspectors distribute outreach
materials on-site.
State publishes articles or
announcements in newspaper and oil
industry and trade association
publications.
State forms committee (including
members from local government,
industry, community groups) that relays
regulatory requirements and information
to oil industry and trade associations
and other interested parties.
State has local agencies (e.g., local fire
departments) distribute information to
owners and operators concerning the
release detection requirements.
State or local agency conducts
inspections, or "spotchecks" at facilities
to determine compliance status.
State requires evidence of release
detection compliance at various times,
including:
- prior to issuing operating permits;
- on notification forms; or
- prior to delivering product.
State or local agency staff monitor leak
detection compliance by reviewing
written results of tank tightness tests,
and requiring owners or operators to
submit automatic tank gauging records.
State requires owners or operators to
self-certify that they have proper leak
detection at various times (e.g., during
permit renewal process).
State approves leak detection methods
to ensure that owners and operators
are using effective leak detection
methods.
State requires submittal of site plans
and reviews them with respect to leak
detection installation.
State conducts informal activities (e.g.,
letters, phone calls) to inform owners
and operators of non-compliance and
encourage compliance.
State issues warning letters and notices
of violation to facilities not in
compliance.
State issues on-site expedited
administrative orders (e.g., traffic
tickets').
State hold face-to-face compliance
meetings (e.g., a 'show-cause" meeting)
with the violator in which the violator
must demonstrate why an
administrative order should not be
issued.
State issues administrative or judicial
orders with penalties.
State revokes permit or does not
reissue permit of recalcitrant violators.
State locks delivery pipe of facilities not
in compliance.
State shuts down facilities of
recalcitrant violators.
-------
RELEASE DETECTION:
STATE UST PROGRAM IMPLEMENTATION ACTIVITIES
INFORMING OWNERS AND OPERATORS
OF THE RELEASE DETECTION
REQUIREMENTS
VALIDATING COMPLIANCE WITH
RELEASE DETECTION REQUIREMENTS
TAKING ACTION AGAINST VIOLATORS
OF RELEASE DETECTION
REQUIREMENTS
- State staff deliver presentations at oil
industry and trade association meetings
and at seminars and conferences.
- State sponsors public service
announcements on radio and television.
- State requires jobbers to distribute
information on release detection
requirements.
State publicizes violations of
requirements in local newspapers or
trade publications.
State includes information on release
detection requirements as "statement
stuffers" in tank fee invoices
State holds an annual conference/trade
show with owners and operators to
share information.
- State establishes training program for
local agencies on recognizing
noncompliance with release detection
requirements.
- State has the ability to remove tanks
when the owner or operator is
recalcitrant.
- State conducts hearings concerning the
violations before a citizen board. The
hearings are advertised in local
newspapers.
State publishes newspaper and journal
articles on violators and associated
enforcement actions.
State requires violators to publish a
public statement in a local newspaper
explaining the violation and pledging
not to repeat the offense.
-------
RELEASE DETECTION:
STATE UST PROGRAM IMPLEMENTATION ACTIVITIES
INFORMING OWNERS AND OPERATORS
OF THE RELEASE DETECTION
REQUIREMENTS
VALIDATING COMPLIANCE WITH
RELEASE DETECTION REQUIREMENTS
TAKING ACTION AGAINST VIOLATORS
OF RELEASE DETECTION
REQUIREMENTS
State provides a telephone number to
owners and operators to call for
additional information on the release
detection requirements
State holds press conferences on
regulatory requirements.
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RELEASE REPORTING, INVESTIGATION, AND CONFIRMATION:
STATE UST PROGRAM IMPLEMENTATION ACTIVITIES
INFORMING OWNERS AND OPERATORS
OF THE RELEASE REPORTING
REQUIREMENTS
ENCOURAGING PROMPT RELEASE
REPORTING, INVESTIGATION, AND
CONFIRMATION
TAKING ACTION AGAINST VIOLATORS
OF THE RELEASE REPORTING
REQUIREMENTS
- State distributes stickers that may be
placed on owner or operator's
telephone with release reporting
number.
- State produces signs for jobber's
trucks that advertise the release
reporting phone number.
- State requires commercial gas station
owners or operators to post sign on or
around gas pumps informing
customers on how to detect a release
'and report a release.
- State employs mass mailings of
information concerning the
. requirements to the regulated
community (e.g., "Oh No!," State -
developed materials, and copies of the
regulations).
State inspectors distribute outreach
materials on-site.
State has local agencies (e.g., local fire
departments) distribute information to
owners and operators concerning the
release reporting requirements.
- State requires disclosure of releases
during property transfer. Violators may
be fined for false statements.
- State staffs a 24-hour toll-free hotline
for reporting releases.
- Owners and operators may be
ineligible for reimbursement of cleanup
costs from a state fund if they fail to
report the release promptly to the
state.
- State provides information to jobbers
on detecting releases and encourages
jobbers to bring them to the owner or
operators attention when discovered.
State, when a leak is suspected, can
loan" product to tank owners who are
financially unable to fill tank completely,
thereby enabling tightness test to be
completed.
State provides incentive to closures
contractor to report releases during
closure.
- State conducts informal activities (e.g.,
letters, phone calls) to inform owners
and operators of non-compliance and
encourage compliance.
- State issues warning letters and notices
of violation to facilities not in
compliance.
- State issues on-site expedited
administrative orders (e.g., "traffic
tickets").
- State hold face-to-face compliance
meetings (e.g., a "show-cause" meeting)
with the violator in which the violator
must demonstrate why an
administrative order should not be
issued.
State issues administrative or judicial
orders with penalties.
State revokes permit or does not
reissue permit of recalcitrant violators.
State locks delivery pipe of facilities not
in compliance.
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RELEASE REPORTING, INVESTIGATION, AND CONFIRMATION:
STATE UST PROGRAM IMPLEMENTATION ACTIVITIES
INFORMING OWNERS AND OPERATORS
OF THE RELEASE REPORTING
REQUIREMENTS
ENCOURAGING PROMPT RELEASE
REPORTING, INVESTIGATION, AND
CONFIRMATION
TAKING ACTION AGAINST VIOLATORS
OF THE RELEASE REPORTING
REQUIREMENTS
State forms committee (including
members from local government,
industry, community groups) that relays
regulatory requirements and information
to oil industry and trade associations
and other interested parties.
State staff deliver presentations at oil
industry and trade association meetings
and at seminars and conferences.
State sponsors public service
announcements on radio and television.
State requires jobbers to distribute
information on release reporting
requirements.
State publishes articles or
announcements in newspapers and oil
industry and trade association
publications.
State publicizes violations of
requirements in local newspapers or
trade publications.
State includes information on release
reporting requirements as "statement
stutters" in tank fee invoices
State shuts down facilities of
recalcitrant violators.
State has the ability to remove tanks
when the owner or operator is
recalcitrant.
State conducts hearings concerning the
violations before a citizen board. The
hearings are advertised in local
newspapers.
State publishes newspaper and journal
articles on violators and associated
enforcement actions.
State requires violators to publish a
public statement in a local newspaper
explaining the violation and pledging
not to repeat the offense.
State orders the tank to be emptied
pending further investigation when an
owner or operator has not reported a
suspected release.
-------
RELEASE REPORTING, INVESTIGATION, AND CONFIRMATION:
STATE UST PROGRAM IMPLEMENTATION ACTIVITIES
INFORMING OWNERS AND OPERATORS
OF THE RELEASE REPORTING
REQUIREMENTS
ENCOURAGING PROMPT RELEASE
REPORTING, INVESTIGATION, AND
CONFIRMATION
TAKING ACTION AGAINST VIOLATORS
OF THE RELEASE REPORTING
REQUIREMENTS
- State holds an annual conference/trade
show with owners and operators to
share information.
State provides a telephone number to
owners and operators to call for
additional information on the release
reporting requirements
State holds press conferences on
regulatory requirements.
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RELEASE RESPONSE AND CORRECTIVE ACTION:
STATE UST PROGRAM IMPLEMENTATION ACTIVITIES
INFORMING OWNERS AND OPERATORS
OF THE CORRECTIVE ACTION
REQUIREMENTS
ENSURING ADEQUATE RELEASE
RESPONSE AND OVERSEEING
CORRECTIVE ACTIONS
TAKING ACTION AGAINST VIOLATORS OF
THE CORRECTIVE ACTION
REQUIREMENTS
State has written guidance for RPs
concerning their responsibilities for
responding to a release and penalties for
inaction.
State delivers presentations at oil
industry and trade association meetings.
State sponsors public service
announcements on radio and television.
State works with local agency staff to
distribute information to owners and
operators.
State employs mass mailings of
information concerning the requirements
to the regulated community (e.g., "Oh
No!," State-developed materials, and
copies of the regulations).
State inspectors distribute outreach
materials on-site.
State has local agencies (e.g., local fire
departments) distribute information to
owners and operators concerning the
corrective action requirements.
State conducts a "contractor day" where
cleanup consultants, engineers, tank
manufacturers, etc. receive information
on proper release response and
corrective action.
State develops satellite broadcasts that
owners and operators may watch for
information on proper release response
and corrective action.
State has a field manual that contains
guidelines for site assessments and
cleanup activities.
State has developed a workload tracking
system to follow site progress.
State co-sponsors corrective action
training workshops with a local university
or training center. Workshops cover
environmental assessment methodologies
and corrective action procedures.
State provides financial incentives for
proper cleanup (e.g., tax breaks to
encourage compliance, and a fund to
provide RPs reimbursement for cleanup
expenses when the RP demonstrates
cooperation during the initial
assessment).
State conducts informal activities (e.g.,
letters, phone calls) to inform owners
and operators of non-compliance and
encourage compliance.
State issues warning letters and notices
of violation to facilities not in compliance.
State issues on-site expedited
administrative orders (e.g., "traffic
tickets").
State hold face-to-face compliance
meetings (e.g., a "show-cause" meeting)
with the violator in which the violator
must demonstrate why an administrative
order should not be issued.
State issues administrative or judicial
orders with penalties.
State revokes permit or does not reissue
permit of recalcitrant violators.
State has established a system for
tracking state-lead cleanup costs and
recovering costs from RPs.
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RELEASE RESPONSE AND CORRECTIVE ACTION:
STATE UST PROGRAM IMPLEMENTATION ACTIVITIES
INFORMING OWNERS AND OPERATORS
OF THE CORRECTIVE ACTION
REQUIREMENTS
ENSURING ADEQUATE RELEASE
RESPONSE AND OVERSEEING
CORRECTIVE ACTIONS
TAKING ACTION AGAINST VIOLATORS OF
THE CORRECTIVE ACTION
REQUIREMENTS
- State forms committee (including
members from local government,
industry, community groups) that relays
regulatory requirements and information
to oil industry and trade associations and
other interested parties.
State staff deliver presentations at oil
industry and trade association meetings,
and at seminars and conferences.
State sponsors public service
announcements on radio and television.
State requires jobbers to distribute
information on corrective action ,
requirements.
State publishes articles or
announcements in newspapers and oil
industry and trade association
publications.
State publicizes violations of
requirements in local newspapers or
trade publications.
State includes information on corrective
action requirements as "statement
stuffers" in tank fee invoices
- State has an emergency spills hotline
with a recorded message that provides
information 24-hours a day. The
message informs owners and operators
how to get personal assistance if
necessary.
- State certifies contractors through
required training and certification tests.
- State distributes a list of certified
corrective action contractors. To be
eligible for state fund reimbursement, an
approved contractor must be used.
- State has written guidance for
contractors on preparing corrective
action plans.
- State sponsors training to inform
contractors of state cleanup requirements
and expectations.
State requires contractors to meet with
state staff and demonstrate that they are
capable of conducting corrective actions
appropriately before being placed on a
list that is given to owners and operators
who request a referral.
State conducts on-site inspections at
cleanup sites.
- State publicizes cost recovery cases to
inform owners and operators that RP-
lead cleanups are less costly to the
owner or operator than state-lead
cleanups.
- State locks delivery pipe of facilities not
in compliance.
State shuts down facilities of recalcitrant
violators.
State has the ability to remove tanks
when the owner or operator is "
recalcitrant.
State conducts hearings concerning the
violations before a citizen board. The
hearings are advertised in local
newspapers.
State publishes newspaper and journal
articles on violators and associated
enforcement actions.
State requires violators to publish a
public statement in a local newspaper
explaining the violation and pledging not
to repeat the offense.
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RELEASE RESPONSE AND CORRECTIVE ACTION:
STATE UST PROGRAM IMPLEMENTATION ACTIVITIES
INFORMING OWNERS AND OPERATORS
OF THE CORRECTIVE ACTION
REQUIREMENTS
ENSURING ADEQUATE RELEASE
RESPONSE AND OVERSEEING
CORRECTIVE.ACTIONS
TAKING ACTION AGAINST VIOLATORS OF
THE CORRECTIVE ACTION
REQUIREMENTS
State holds an annual conference/trade
show with owners and operators to
share information.
State provides a telephone number to
owners and operators to call for
additional information on the corrective
action requirements
State holds press conferences on
regulatory requirements.
State has developed expedited
procedures to issue air or water permits
required for corrective action.
State promotes a positive environment
for private insurers so that they will be
willing to offer coverage in the state and
funds for cleanup will be available in a
timely manner.
State has procedures whereby penalties
can be waived or negotiated provided
the RP signs and complies with the
terms of a settlement agreement.
State places a lien on RPs property if
state or federal funds have been used
for a cleanup and not repaid.
-------
CLOSURE:
STATE UST PROGRAM IMPLEMENTATION ACTIVITIES
INFORMING OWNERS AND OPERATORS
OF THE CLOSURE REQUIREMENTS
VALIDATING PROPER CLOSURE
TAKING ACTION AGAINST VIOLATORS
OF THE CLOSURE REQUIREMENTS
- State employs mass mailings of
information concerning the
requirements to the regulated
community (e.g., "Musts for USTs,"
State-developed materials, and copies
of the regulations).
- State publicizes violations in local
newspapers.
- State inspectors distribute outreach
materials on-site.
- State has local agencies (e.g., local fire
departments) distribute information to
owners and operators concerning the
closure requirements.
State forms committee (including
members from local government,
industry, community groups) that relays
regulatory requirements and information
to oil industry and trade associations
and other interested parties.
State staff deliver presentations at oil
industry and trade association meetings
and at seminars and conferences.
State sponsors public service
announcements on radio and television.
- State establishes policy for prioritizing
inspection of closure activities, based
on such factors as proximity to
vulnerable ground water and previous
experience with closure contractors.
- State inspectors oversee all closure
activities.
- Local agency staff (e.g., fire or health
department) monitor closure activities.
- State institutes certification program for
tank closure contractors.
- Closure permit is required for all
closures.
- Owners and operators must place a
notice on property deed, describing the
location of abandonment, method of
closure, and proof of closure
certification.
Retired engineers are hired to conduct
closure inspections on a case-by-case
basis.
State implements computerized system
for maintaining closure records (e.g.,
results of closure inspection,
enforcement, and certification).
- State establishes training program for
fire and police departments on
recognizing illegal closure activities.
- State conducts informal activities (e.g.,
letters, phone calls) to inform owners
and operators of non-compliance and
encourage compliance.
- State issues warning letters and notices
of violation to facilities not in
compliance.
- State issues on-site expedited
administrative orders (e.g., "traffic
tickets").
- State hold face-to-face compliance
meetings (e.g., a "show-cause" meeting)
with the violator in which the violator
must demonstrate why an
administrative order should not be
issued.
State issues administrative or judicial
orders with penalties.
State revokes permit or does not
reissue permit of recalcitrant violators.
State locks delivery pipe of facilities not
in compliance.
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CLOSURE:
STATE UST PROGRAM IMPLEMENTATION ACTIVITIES
INFORMING OWNERS AND OPERATORS
OF THE CLOSURE REQUIREMENTS
VAUDATING PROPER CLOSURE
TAKING ACTION AGAINST VIOLATORS
OF THE CLOSURE REQUIREMENTS
State requires jobbers to distribute
information on closure requirements.
State publishes articles or
announcements in newspapers and oil
industry and trade association
publications.
State publicizes violations of
requirements in local newspapers or
trade publications.
State includes information on closure
requirements as "statement Bluffers" in
tank fee invoices.
State holds an annual conference/trade
show with owners and operators to
share information.
State provides a telephone number to
owners and operators to call for
additional information on the closure
requirements
State holds press conferences on
regulatory requirements.
State responds to public reports of
nuisance, odors, unusual activity, etc.
State reviews tax records to identify
recent tank closures.
State requires a certificate of closure
before any transfer of property can
occur.
- State shuts down facilities of
recalcitrant violators.
-State conducts hearings concerning the
violations before a citizen board. The
hearings are advertised in local
newspapers.
- State publishes newspaper and journal
articles on violators and associated
enforcement actions.
- State requires violators to publish a
public statement in a local newspaper
explaining the violation and pledging
not to repeat the offense.
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FINANCIAL RESPONSIBILITY:
STATE UST PROGRAM IMPLEMENTATION ACTIVITIES
INFORMING OWNERS
AND OPERATORS OF
FINANCIAL
RESPONSIBILITY
REGULATIONS
STATE COMPLIANCE
ASSISTANCE PROGRAMS
PROMOTING AVAILABILITY
AND AFFORDABILITY OF
INSURANCE OR OTHER
MECHANISMS
COMPLIANCE MONITORING
AND ENFORCEMENT
State publishes monthly
newsletter with periodic
reminders of compliance
deadlines and updates
on availability of private
or state-run financial
responsibility
mechanisms.
State employs mass
mailings of information
concerning the
requirements to the
regulated community
(e.g., "Dollars and
Sense," State-developed
materials, and copies of
the regulations).
State inspectors
distribute outreach
materials on-site.
Some states have
developed financial
assurance funds which
help owners and operators
pay for cleanups and/or
third-party damages.
State provides grants or
low interest loans to rural
and small business tank
owners to upgrade tanks
(because tanks that have
been upgraded are more
likely to be covered by
private insurers).
- State promotes
development of risk
retention group that
provide UST coverage to
municipal or other large
groups of UST owners and
operators.
State promotes
communication with private
insurers to maximize their
participation in providing
financial responsibility.
State supplies insurance
companies with a list of
tank owners and operators
and tank characteristics so
that insurers can determine
whether they will provide
coverage.
State reinsures private
insurance carriers who
agree to provide coverage
to owners and operators
(i.e., the state protects
carriers from large claims).
State requires owners and
operators to certify that
they have financial
assurance on tank
notification forms.
State checks for
demonstration of financial
assurance during routine
inspections.
State requires owners and
operators to produce
copies of financial
assurance documents
during installation
inspections.
State requires UST
manufacturers or retailers
to ensure owners have
financial responsibility
before selling new USTs.
State requires installers to
verify financial
responsibility prior to
installation.
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FINANCIAL RESPONSIBILITY:
STATE UST PROGRAM IMPLEMENTATION ACTIVITIES
INFORMING OWNERS
AND OPERATORS OF
FINANCIAL
RESPONSIBILITY
REGULATIONS
STATE COMPLIANCE
ASSISTANCE PROGRAMS
PROMOTING AVAILABILITY
AND AFFORDABIUTY OF
INSURANCE OR OTHER
MECHANISMS
COMPLIANCE MONITORING
AND ENFORCEMENT
State has local agencies
(e.g., local fire
departments) distribute
information to owners
and operators.
concerning the financial
responsibility
requirements.
State forms committee
(including members from
local government,
industry, community
groups) that relays
regulatory requirements
and information to oil
industry and trade
associations and other
interested parties.
State staff deliver
presentations at oii
industry and trade
association meetings
and at seminars and
conferences.
State sponsors public
service announcements
on radio and television.
- State has developed a co-
payment program where it
pays a portion of fund
claims and a private
insurer pays the rest. The
proportions change over
time until the private
insurer takes over the
program.
State requires jobbers to
verify financial
responsibility before filling
tanks.
State conducts informal
activities (e.g., letters,
phone calls) to inform
owners and operators of
non-compliance and
encourage compliance.
State issues warning letters
and notices of violation to
facilities not in compliance.
State issues on-site
expedited administrative
orders (e.g., traffic
tickets").
State hold face-to-face
compliance meetings (e.g.,
a 'show-cause" meeting)
with the violator in which
the violator must
demonstrate why an
administrative order should
not be issued.
-------
FINANCIAL RESPONSIBILITY:
STATE UST PROGRAM IMPLEMENTATION ACTIVITIES
INFORMING OWNERS
AND OPERATORS OF
FINANCIAL
RESPONSIBILITY
REGULATIONS
STATE COMPLIANCE
ASSISTANCE PROGRAMS
PROMOTING AVAILABILITY
AND AFFORDABILITY OF
INSURANCE OR OTHER
MECHANISMS
COMPLIANCE MONITORING
AND ENFORCEMENT
State requires jobbers to
distribute information on
financial responsibility
requirements.
State publicizes
violations of
requirements in local
newspapers or trade
publications.
State includes
information on financial
responsibility
requirements as
"statement stuffers" in
tank fee invoices
State holds an annual
conference/trade show
with owners and
operators to share
information.
State issues administrative
or judicial orders with
penalties.
State revokes permit or
does not reissue permit of
recalcitrant violators.
State locks delivery pipe of
facilities not in compliance.
State shuts down facilities
of recalcitrant violators.
State has the ability to
remove tanks when the
owner or operator is
recalcitrant.
State conducts.hearings
concerning the violations
before a citizen board.
The hearings are
advertised in local
newspapers.
-------
FINANCIAL RESPONSIBILITY:
STATE UST PROGRAM IMPLEMENTATION ACTIVITIES
INFORMING OWNERS
AND OPERATORS OF
FINANCIAL
RESPONSIBILITY
REGULATIONS
STATE COMPLIANCE
ASSISTANCE PROGRAMS
PROMOTING AVAILABILITY
AND AFFORDABIUTY OF
INSURANCE OR OTHER
MECHANISMS
COMPLIANCE MONITORING
AND ENFORCEMENT
State provides a
telephone number to
owners and operators to
call for additional
information on the
financial responsibility
requirements
State holds press
conferences on
regulatory requirements.
State publishes newspaper
and journal articles on
violators and associated
enforcement actions.
State requires violators to
publish a public-statement
in a local newspaper
explaining the violation and
pledging not to repeat the
offense.
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OSWER Directive 9650.11
APPENDIX G
Host Commonly Asked Questions about State Program Approval Handbook
and Suggested Procedures Document
-------
OSWER Directive 9650.11
HOST COMMONLY ASKED QUESTIONS ABOUT THE STATE PROGRAM APPROVAL HANDBOOK AND
SUGGESTED PROCEDURES FOR REVIEW OF STATE UST APPLICATIONS
Users of the State Program Approval Handbook and Suggested Procedures
for the Review of State UST Applications have indicated that they have not
always been able to quickly find specific information or guidance when they
need it. In response to extensive feedback from State and Regional UST
personnel, we have developed the following list of subject areas and the
places within the two documents or the State Program Approval regulations
where information relating to each area can be found.
Q: What are the legally mandated steps in the State Program Approval
process?
A: See Final State Program Approval Rule §281.50 (53 FR 37245), and
Suggested Procedures for Review of State UST Applications, page 2.
Q: What are the minimum components of a complete State Program Approval
application?
A: See Chapter 3, State Program Approval Handbook, pages 11-15; Sample
State Program Approval Application, State Program Approval Handbook.
Appendix A; Checklist for Complete State Applications, Suggested
Procedures for Review of State UST Applications. Appendix E.
Q: What are the required components of the program description?
A: See State Program Approval Handbook, pages 14-15 and Appendix A, pages
A-19 through A-22; and §281.21 of the final State Program Approval rule
(53 FR 37242).
Q: What are the required components of a Federal Register notice?
A: See Suggested Procedures for Review of State UST Applications. Appendix
B, "Guidance on Preparing Federal Register Notices," and Appendix C,
"Approval Determinations."
Q: Exactly what steps must be followed in preparing a Federal Register
notice? A public notice?
A: See Suggested Procedures for Review of State UST Applications.
Appendix B.
G-l
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OSWER Directive 9,650.11
Q: How does a State codify its approved UST program?
A: See section on codification in Suggested Procedures for Review of State
UST Applications, pages 30-31.
Q: What should Regions be doing/looking for in ,the pre-application phase?
A: See Suggested Procedures for Review of State UST Applications. pages
2-15, including "Pre-Application Checklist11 and ".Diagnostic Checklist
for State Program Approval."
Q: What is the proper role of the Regional UST Attorney in State Program
Approval review?
A: See Suggested Procedures for Review of State UST Applications. page 19;
also, "Pre-Application Checklist,1' page 15.
Q: What is the proper role ,of State attorneys in State Program Approval
review?
A: See Suggested Procedures for Review of State UST Applications, page 20;
also, "Pre-Application Checklist," page 15.
Q: What role should OUST play in the State Program Approval process?
A: See Suggested Procedures for Review of State UST Applications.
page 21.
Q: Are there any examples of tState requirements -that were Different from
the Federal requirements yet met the objective?
A: See State Program Approval Handbook examples in Chapter 4, "Attorney
General's Statement.1"
Q: Are there any examples of State requirements that were different from
the Federal requirement and were determined to be less stringent?
A: See State Program Approval Handbook examples in Chapter 4, "Attorney
General's Statement."
G-2
-------
OSWER Directive 9650.11
Q: Are there any tools that can be used by States whose programs differ
from the Federal program, or,who have limited resources, in order to
make their programs approvable?
A: See State Program Approval Handbook. Appendix C, "Tools for Implementing
State Regulations" and Appendix F, "Capabilities Matrices."
Q: What should be the role of EPA (HQ and Regions) after State program
approval?
A: See State Program Approval Handbook. Chapter 6, "Memorandum of
Agreement"; also pages 5-6 and 10.
Q: What are the distinctions between scope and stringency?
A: See State Program Approval Handbook, pages 6-8; also, pages 65-68
(scope), and pages 16-18 (stringency).
Q: Where can I find examples of completed State Program Approval
applications, Federal Register notices, and other documents related to
the State Program Approval process?
A: See Appendices in Suggested Procedures for Review of State UST
Applications, or contact the SPA information clearinghouse (Jerry
Parker) at FTS 398-8884 / (703) 308-8884.
G-3
-------
OSWER Directive 9650.11
APPENDIX H
Final OUST Guidance on Reviewing State Funds for Financial Responsibility
-------
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
MEMORANDUM .
SUBJECT: Final Guidance for Reviewing State Funds for
Financial Responsibility
FROM: Ron Brand 4?
Director
Office of Underground Storage Tanks
TO: UST Regional Program Managers, Regions I-X
Attached are final guidance documents for your use in
reviewing State funds for financial responsibility. As a
result of comments at the Seattle RPMs meeting, we developed
two 'separate documents to assist in the review process:
"Phase 1 Helping Owners and Operators Comply with
the Federal Requirements"
"Phase 2 -- Meeting the State Program Approval Objective"
In response to your comments and those of the Office of
General Counsel, substantive changes have been made to the
"Coverage" section. In particular, a new subsection titled
"Methods of Payment" has been added, and the discussion of
reimbursement funds has been clarified. I believe the changes
were necessary to better communicate what we are looking for
in approvable fund designs. In addition, a new section has
been added regarding "sunset" provisions.
I urge you to share these documents with your Office of
Regional Counsel, since they play a key role in the State _fund
review process. If they have questions that you need assistance
in answering, please let us know.
.Since this issue is high on the list of many States'
concerns, arid it remains a somewhat complex topic, we plan
to offer "training" for the Regions on using the guidance
to review your State funds. As a first step, we will have a
conference call during the s last week of November to respond
to questions that you may have on the guidance, and to discuss
training needs. Dave Hamnett will be contacting you shortly
regarding arrangements.
-------
I want to thank all of those who contributed their efforts
over the past few months to these final guidance documents.
While it has taken some time to get to this stage, I feel
confident that the guidance now reflects decisions that we and
?he States can all live with. As you proceed with your reviews
of State funds, now and in the future, please do not hesitate
to contact OUST if we can assist you in any way.
Attachments
cc: Earl Salo, OGC
Kirsten Engel, OGC
Jim McCormick
Joe Retzer
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REVIEWING STATE FUNDS FOR FINANCIAL RESPONSIBILITY
Phase 2 Meeting the State Program Approval Objective
Many States are now developing comprehensive UST programs
which they intend to submit to EPA for state Program Approval.
If the State's UST program meets EPA's published "Objectives" for
approval, its program may be approved to operate in lieu of the
Federal program. Some States intend to submit assurance funds
and other mechanisms for EPA's review and approval as part of
this process, to satisfy the financial responsibility objective.
This document will help EPA reviewers understand what to look for
as they evaluate these submissions of State funds as part of
State Program Approval. It will also serve as a guide as you
review and comment on State funds as they are being developed.
Keep in mind that the submission of funds to EPA is totally
at the State's discretion. However, a State must submit its
fund to EPA if it is using the fund to satisfy the financial
responsibility objective as part of the state Program Approval
process.
I. Basic Purpose of Financial Responsibility
The basic purpose of financial responsibility is simply to
establish reasonable assurance that someone has the funds to pay
for the costs of corrective action and third-party liability
resulting from an UST release. This means that someone (or
combination of persons) is ready to pay from the "first dollar
of costs incurred up to the maximum amount required by the
Federal regulations.
II. Identifying the Specific Purpose of KPA'S Review
EPA staff may be asked to review a State fund for three
different reasons.
1. The State may be looking for general advice and comment
on its proposed program to provide money to assist in
cleanup.
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2. The State may be seeking an official decision that tank
owners and operators in the State may use the Fund as a
mechanism for complying with the Federal' financial
responsibility requirements. (Section 280.101) This
option is discussed in detail in the companion document
"Phase 1 Helping Owners and Operators Comply with
the Federal Requirements."
3 The State may be seeking EPA approval to operate a
State UST program in lieu of the Federal program. In
this event the State fund may be part of the State s
financial responsibility package that will be examined
by the Regional Office to determine if it is no less
stringent than the Federal requirements. (Section
281.37)
If the State is looking for general advice on its proposed
fund (described in 1, above) there are no formal review criteria.
However, the EPA reviewer should ask the State if it intends to
submit it as part of the State Program Approval package to
meet all or part of the financial responsibility obiective
(described in 3, above). If the State intends to use its fund for
this purpose, you should include the elements of review outlined
in this document as part of your comments so the State can make
the appropriate modifications during the development phase of its
fund.
If the review is part of State Program Approval the State
fund must satisfy the Federal financial responsibility obiective
(Section 281.37). When used for this purpose, the fund must
provide coverage to all owners or operators in the full amount
required by the Federal objective, or the State law or
regulations must require owners or operators to supplement the
coverage provided by the fund with another acceptable financial
assurance mechanism (see discussion of Partial Coverage, below).
Remember that States do not necessarily need a fund to meet
the federal objective for financial responsibility. Statutory or
regulatory provisions that contain the federal coverage
requirements are sufficient for State Program Approval, without
use of a fund. In this situation, EPA does not review and
approve the State's fund. Instead, it is up to the State to
determine what mechanisms it will allow owners and operators to
use to satisfy the state's financial responsibility requirements,
and to oversee compliance.
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III. Four Main Elements of State Fund Review
EPA's review of State funds as part of State Program
Approval includes four main elements:
o Funding Source
o Amount of Fund
o Coverage Provided
o Eligibility for Use of the Fund
A. Funding Source
To assure that funds will be available to pay for cleanup
and third-party damages, money must be reasonably certain and
available. The State fund may need to rely on a definite funding
source (e.g., tank fees) to make sure that funds will be
available to owners and operators. A State fund that relies only
on yearly appropriations out of general revenues from its
legislature would not adequately assure that funds would be
certain and available. The Federal LUST Trust Fund may not be
relied on for this purpose either.
Many different sources can be used to finance a State fund,
such as petroleum taxes, licensing or tank fees, bond issues, and
risk-based premiums. The funding sources can be used alone or in
combination.
The State fund need not be reserved for use solely on
underground, storage tanks.' For example, it may include monies to
respond to above ground tank releases or surface spills, as long
as adequate amounts are available for UST releases.
B. Amount of Fund
There is no magic number for approving the amount of the
fund. Instead, think of the fund as a "bank account" with money
being "deposited" and money being "spent" as it is needed. The
goal here is to reasonably assure that the projected flow of
revenues into the fund is sufficient to keep pace with the
anticipated rate of expenditures from the fund.
An exact amount is not given here because the demand for
funds will fluctuate over time. When reviewing this feature of a
State fund, remember that not all leaks will be discovered at the
same time and, more importantly, not all corrective actions (at
all sites) can be performed at the same time. Furthermore, some
State fund programs are designed to first look to the owner or
operator to undertake and pay for corrective action and third
party claims. Where the owner or operator is unable-or unwilling
to do so, the State will usually have to assign priorities to
such sites for responses using its fund. Factors such as the
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number of State staff, procurement practices, and contractor
availability will affect how quickly these sites can be
addressed. Thus, the amount of the State fund should reflect the
ovSat? design of the State's cleanup and enforcement program as
well as the ability of the State to expend monies from the fund.
A State may want to consider various approaches that may be
helpful in dealing with the uncertainty of expenditures described
above. For example, a triggering provision could allow the
funding source to be activated once the level of the fund has
reached some bottom limit and, likewise- .be deact £ated when the
level of the fund has reached an upper limit. A State may also
want to think about adding a Provision to trigger additional
collection of funds when a State expects that a large release
Sill £e Tsignif icant drain on the State fund. Another Provision
that a State may want to consider, if it uses fees to support its
fund, iS to allow for a modification of the fee structure.
C. Coverage Provided r
State funds can be developed to provide either full or
partial coverage to help the State meet the financial
responsibility objective for State program approval.
1. Full Coverage
If the State desires to satisfy the financial responsibility
objective for State Program Approval by using its fund, a full
fund can be used, to meet the entire ob} ective ...
coverage u ,
Assuming the fund is approved by EPA as part of State Program
Approval, the State does not need to separately require t hat
owners and operators demonstrate financial respons J-bjlitY ^eca use
the State fund provides all owners and operators in the State
with the appropriate amounts of coverage.
A full coverage fund assures that for all owners and
onerators in the State money will be available to pay for
Corrective action and third-party liability costs in the amounts
required by the Federal objective:
Per occurrence requirements:
o $500,000 per occurrence for non-marketers
who pump 10,000 gallons or less each month; and
o $1 million per occurrence for everyone else.
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Aggregate requirements:
o $1 million aggregate for those with 100 tanks or less;
o $2 million aggregate for those with more than 100 tanks.
The State fund does not necessarily need to prescribe
specified limits of coverage. Limits in a State fund set maximum
coverage amounts that the State fund will provide to an
owner/operator for single or multiple releases occurring in a
year. Without such limits, the State fund is able to cover an
owner/operator for all releases in a year. On the other hand, if
the State wishes to limit the coverage that it will provide for a
particular release to an individual owner/operator in any given
year, it may choose to establish per occurrence or aggregate
limits of coverage. However, the limits must be no less than the
Federal limits above.
First Dollar Coverage
A State fund can be considered a full coverage fund even if
it has a deductible amount that the owner or operator is
responsible for paying, as long as it provides for "first dollar
coverage" by the-State. First dollar coverage simply means that
if owners and operators do not meet the deductible requirement,
the State can still pay for corrective action and third party
claims, including the deductible amount, by using its fund. In
this instance, the State may want to consider pursuing cost
recovery against the owner or operator for the deductible amount,
although this would be at the State's discretion.
2. Partial Coverage
A State fund may be approved as providing only partial
coverage if:
o Coverage will be provided for only a portion of the
dollar amounts or types of coverage (corrective action
and third-party liability) required by the Federal
objective? or
o Coverage will be provided for only some owners or
operators in the State. (See the "eligibility" section
below for additional discussion of this choice.)
When the State uses a partial coverage fund to satisfy a
portion of the financial responsibility objective for State
Program Approval, the State must also reguire. by statute or
regulation, that:
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o Owners and operators demonstrate responsibility for the
amounts of corrective action and third-party liability
costs that are not covered by the State fund; and
o Owners and operators not covered by the fund demonstrate
financial responsibility for at least the full amounts
required by the Federal objective.
The rationale behind this is that for State Program
Approval, the State's program must "stand alone" to fully meet
the financial responsibility objective. In this case, the
State's total program (partial coverage fund + State
statute/regs.) can be approved as fully satisfying the financial
responsibility objective.
For example, a partial coverage fund might only cover from
$10,000 to $1 million in corrective action costs. The State must
require that owners and operators find another mechanism to
demonstrate coverage for the $10,000 deductible for corrective
action (unless the State fund provides "first dollar coverage" as
described above). In this example, the State must also require
owners and operators to demonstrate, through another assurance
mechanism, coverage of third-party liability costs.
To help owners and operators comply with deductible
requirements, EPA is allowing States to establish their own
financial test of self-insurance for deductible amounts. The
Federal test of self-insurance (either $10 million or $20 million
net worth) is inappropriate when insuring for deductible amounts,
which are often in the $5000 to $50,000 range. In establishing
their test, States may want to consider requiring that the
owner's or operator's minimum net worth be a specific multiple of
the deductible amount.
3. Methods of Payment
Under any State fund, the State must provide reasonable
assurance that it will pay full or partial coverage of cleanup
and third party liability costs of an eligible owner or operator.
The State can make this assurance in several ways. First, the
State may undertake corrective action at the site and pay for
cleanup and third party costs directly. EPA expects that most
States will do so only if the owner or operator is unable or
unwilling to pay these costs.
More frequently, State funds are designed assuming that a
responsible party (RP) - lead cleanup will occur, either
voluntarily or pursuant to a State administrative or judicial
order. Acceptable methods of payment under this fund design
include, but are not limited to:
o direct payment to a RP's contractor
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o direct payment to a RP based on invoices received from
his contractor
o joint payment to a RP and his contractor
These payments typically take place periodically as work
progresses, based on invoices received ("costs-incurred" basis).
In addition, these same methods of payment are acceptable for
satisfying third party claims, settlements, and judgements.
In the situations above, the owner or operator takes the
lead on the cleanup and handling third party claims, but once he
has paid the deductible, the State fund becomes the source of
payment, thus providing financial assurance.
4."Assurance" Provided by Reimbursement Funds
Some State funds, however, operate primarily as
reimbursement funds, paying out costs only after the owner or
operator has paid for the cleanup and/or any third party
liability claims. The owner or operator then applies to the
State for reimbursement of these costs, supported by proof that
he has already paid them. With this fund design, EPA is
concerned that where an owner or operator lacks the funding to
pay for the cleanup or satisfy third party claims (despite the
promise of reimbursement), the site will remain unaddressed.
Therefore, a reimbursement-only fund (even one that provides for
interim reimbursements) is not, by itself, approvable. It must
also be structured to provide State payment (as described in
"Methods of Payment") of the costs it purports to cover in the
event that the owner or operator is incapable of, or unwilling
to, cover these costs prior to being reimbursed.
Specifically, if the State intends to provide full coverage.
the fund must be structured to provide payment of costs by the
State from the "first dollar" of cleanup costs incurred. If the
State intends to provide partial coverage (e.g., above a
deductible amount), the fund must be structured to provide
payment of costs by the State after the owner or operator has
satisfied the deductible. For example, a State fund that assures
all owners and operators within the State that it will reimburse
all corrective action costs above $10,000 is approvable (as a
partial coverage mechanism) but only if it also provides for
State payment (as described in "Methods of Payment") of the costs
above $10,000 should the owner or operator be unable or unwilling
to pay them prior to reimbursement.
The exact nature of the State statutory or administrative
provisions governing the fund necessary to demonstrate the
State's commitment to pay these costs should be carefully
evaluated by the Region on a State-by-State basis. -The approach
and language employed by States to demonstrate their commitment
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need not be uniform, and may vary between States. In
particular, some State funds that use the term "reimbursement"
are designed to be implemented using one of the acceptable
payment methods described previously, and thus, could be
approvable. The Region must determine whether the provisions of
the fund are legally sufficient to satisfy EPA's policy
objectives and must, as with other issues involved in approving
State funds, be reviewed by the Office of Regional Counsel.
D. Eligibility for Use of the Fund
State funds can provide either unlimited or limited
eligibility for use of the funds.
1. Unlimited Eligibility
State funds that cover all owners and operators in the State
would have unlimited eligibility.
Some States have designed their funds to require that owners
and operators pay a yearly tank fee in order to be eligible for
fund coverage. We do not view a fee requirement as limiting
eligibility because this provision is open to all owners and
operators in the State and, in most cases, they are required to
pay these fees.
2. Limited Eligibility
A State could set "entrance" requirements that limit the
eligibility of owners and operators to use the fund. For
example, a State may require that owners or operators perform a
tank tightness test before being eligible for coverage by the
fund. If a State limits the eligibility of owners and operators
to use a State fund, the State must require, by statute or
regulation, that these owners and operators demonstrate financial
responsibility for at least the full amount required by the
federal objective.
3. NOTE; A Caution About Post-Release
Eligibility Determinations
To provide incentives for owners and operators to engage in
good tank management practices, many States limit their fund
coverage by using "substantial compliance" or other clauses.
These provisions often limit eligibility to owners and operators
who are in "substantial compliance" with the technical
requirements of the Federal and State UST regulations at the time
of the release. After the release occurs, the State evaluates
eligibility for fund coverage. This provision may be considered
similar to private insurance, where UST owners and operators are
required to comply with certain terms and conditions of the
policy. Otherwise, the insurance company may elect to deny
coverage after a leak occurs.
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Our concern with this approach is that owners and operators
who are out of compliance with some aspect of the UST regulations
may believe they were covered by a State fund, only to find out
at the time of the release that they were no longer eligible for
coverage. In this situation, the State fund would not provide
money for cleaning up the release, and it is highly unlikely that
owners and operators would have obtained separate assurance
mechanisms. We have concluded, however, that the same situation
may occur with private insurance and, thus, states should not be
precluded from having similar provisions.
EPA reviewers of State funds with these provisions should
recommend to the State that eligibility criteria, particularly
those which are evaluated after a release occurs, be as specific
as possible so that owners and operators know ahead of time what
they are expected to do to qualify for coverage, in addition,
EPA reviewers should strongly urge the State not to bar itself
from using the fund to respond to releases, even if questions
about eligibility arise. The state should allow itself access to
the fund in such circumstances, perhaps followed by cost
recovery. This approach assures that money would be available
if needed, to clean up the release.
E- "Sunset* Provisions in State. Funds
State funds may provide for the expiration of the fund (or
revenue mechanism) at a designated time in the future. While
many States may choose to reauthorize their funds to continue
after this time, there is no guarantee of this occurring.
Therefore, we recommend that approval of State programs with
funds containing "sunset" provisions be limited to the time for
which the fund is currently authorized, or until it ceases to
provide the required levels of coverage.
Regions should consider using the following language in
approving programs with funds that contain sunset provisions:
"Approval of this Program is effective until such time as
the financial assurance funding mechanism expires, unless
the State solicits and receives written authorization by the
U.S. EPA that the Fund balance is sufficient to provide
continued coverage in the amounts provided in the
legislation."
In addition, at least sixty days prior to the termination of
fund coverage, the State must notify all covered owners and
operators that coverage is terminating, and advise them that they
must obtain other mechanisms to satisfy their financial
responsibility obligation.
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