510D06006
Subject
Draft Inspection Grant Guidelines Implementing UST Provisions Of The Energy Policy Act
To: EPA Regions, States, Tribes, And Other UST Partners
I am writing to notify you that the draft Grant Guidelines To States For Implementing
The Inspection Provisions Of The Energy Policy Act Of 2005 (EPA 510-D-06-006, November
2006) is now available on EPA's web site. Go to:
http://www.epa.gov/oust/fedlaws/epact_05.htm#Drafts to view the draft guidelines and obtain
details about how and where to submit comments. We will accept comments on the draft
guidelines beginning November 22, 2006 for 30 days, ending December 22, 2006.
EPA, in conjunction with states and other stakeholders, developed the draft inspection
grant guidelines for state underground storage tank programs. After receiving comments, EPA
will develop final guidelines and incorporate them in grant agreements between EPA and states.
EPA developed the guidelines according to Title XV, Subtitle B of the Energy Policy Act of
2005, which focuses on preventing underground storage tank releases.
Please address any questions regarding the draft guidelines to Tim Smith of my staff at
sniith.timr(q),epa.gov or 703-603-7158.
Cliff Rothenstein, Director
EPA's Office of Underground Storage Tanks
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Underground Storage Tank Grant Guidelines Inspection
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Grant Guidelines To States
For Implementing The
Inspection Provisions
Of The Energy Policy Act Of 2005
U.S. Environmental Protection Agency
Office Of Underground Storage Tanks
Washington, D.C. 20460
www. epa.gov/oust
EPA 510-D-06-006
November 2006
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Contents
Overview Of The Inspection Grant Guidelines 1
Why Is EPA Issuing These Guidelines? 1
What Is In These Guidelines? 1
When Do These Guidelines Take Effect? 1
Requirements For On-Site Inspections 3
Which Underground Storage Tanks Require An On-Site Inspection? 3
When Must Underground Storage Tanks Be Inspected?.... 3
What Are The Requirements For The On-Site Inspection? 3
Who May Perform The On-Site Inspection? 4
What Are The Reporting Requirements To EPA? 6
How Will States Demonstrate Compliance With These Guidelines? 6
How Will EPA Enforce States' Compliance With The
Requirements In These Guidelines? 7
For More Information About The Inspection Grant Guidelines 8
Background About The Energy Policy Act of 2005 8
Appendices
Appendix A - Short-Term Recommendation About Inspections
To Meet The Energy Policy Act Of 2005 Requirements
(November 17, 2005 Memorandum)
Appendix B - Inspection Requirements Of The Energy Policy
Act: Determining Which Underground Storage Tanks
Have Undergone An Inspection Since
December 22,1998 (June 8, 2006 Memorandum)
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Overview Of The Inspection Grant Guidelines
Why Is EPA Issuing Those Guidelines?
The U.S. Environmental Protection Agency (EPA), in consultation with states,
developed these grant guidelines to implement the inspection provisions in Sections
9005(c)(1) and 9005(c)(2) of the Solid Waste Disposal Act (SWDA), enacted by the
Underground Storage Tank Compliance Act, part of the Energy Policy Act of 2005
signed by President Bush on August 8,2005,
Section 1523 of the Energy Policy Act amends Section 9005 in Subtitle I of the
Solid Waste Disposal Act to add requirements for underground storage tank (UST)
system inspections for states receiving Subtitle I funding as follows:
1. Uninspected underground storage tanks - Section 9005(c)(1) requires that
underground storage tanks that have not been inspected since December 22,
1998 must have an on-site inspection conducted not later than August 8, 2007.
2. Periodic inspections - After all underground storage tanks required by Section
9005(c)(1) have been inspected, on-site inspections of each underground
storage tank identified in these guidelines must be conducted at least once every
three years to determine compliance with Subtitle I and 40 CFR 280
requirements or requirements or standards of a state program developed under
Section 9004.
EPA's Office of Underground Storage Tanks (OUST) is issuing these grant
guidelines to establish the minimum requirements states receiving Subtitle I funding
must meet in order to comply with the inspection provisions of Subtitle I enacted by the
Energy Policy Act.
What Is In These Guidelines?
These guidelines describe the minimum requirements a state's on-site inspection
program must contain under Section 9005(c) of Subtitle I in order for a state to comply
with statutory requirements for Subtitle I funding. These guidelines include:
identification of which underground storage tanks require an on-site inspection;
requirements for the on-site inspection; who can perform the on-site inspection; and
what information needs to be reported to EPA.
When Do These Guidelines Take Effect?
These guidelines are effective August 8, 2007. Until August 8, 2007, states may
continue to follow the interim guidance on inspections issued in OUST's November 17,
2005 memorandum. See Appendix A for a copy of the memorandum - Short-Term
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Recommendation About Inspections To Meet The Energy Policy Act Of 2005
Requirements,
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Requirements For On-Site Inspections
A state receiving Subtitle I funding must conduct on-site inspections of each
underground storage tank in accordance with these guidelines.
Which Underground Storage Tanks Require An On-Site Inspection?
For purposes of these guidelines, the term "underground storage tank" means
those tanks that satisfy the definition of underground storage tank in 40 CFR 280.12,
except for those tanks identified in 40 CFR 280.10(b) and 280.10(c) as excluded or
deferred tanks. These guidelines apply to underground storage tanks that have not
been permanently closed or undergone a change in service In accordance with 40 CFR
280.71 or requirements or standards of a state program approved under Section 9004.
An on-site inspection is not required for underground storage tanks that have been
determined by the state to be abandoned.
When Must Underground Storage Tanks Be Inspected?
States must by August 8, 20071 conduct an on-site inspection for each
underground storage tank that has not been inspected since December 22,1998. After
completion of those inspections, states must inspect each underground storage tank by
August 8, 2010 (EPA has the authority to extend this date until August 8, 2011 if a state
demonstrates insufficient resources to conduct inspections) and at least once every
three years thereafter.
What Are The Requirements For The On-Site Inspection?
For purposes of these guidelines, an on-site inspection includes an inspection of
each underground storage tank, associated equipment, and records. Desk audits, self
certifications, information request letters, and any other such activities are not sufficient
by themselves to fulfill the on-site inspection requirements.
An on-site inspection must be conducted for the purpose of determining
compliance with Subtitle I and 40 CFR 280 requirements or in the case of a state with a
program approved under Section 9004 of Subtitle I, compliance with the requirements of
that program. At a minimum, an on-site inspection must include the following areas:
Notification
Corrosion protection
- tanks and piping have appropriate corrosion protection
' On June 8,2006, OUST issued a memorandum in order to identify which underground storage tanks
need to have an on-site inspection before August 8, 2007. See Appendix B for a copy of the
memorandum - Inspection Requirements Of The Energy Policy Act Determining Which Underground
Storage Tanks Have Undergone An Inspection Since December 22,1998.
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- documentation available including testing, inspections, and other records
Overfill prevention in place and operational
Spill prevention in place and operational
Tank and piping release detection
- appropriate method and appropriate equipment or procedures in place
- documentation of proper monitoring and testing
Tank and piping repairs
Secondary containment where appropriate
Release response, reporting, and investigation
Financial responsibility
Closure
- temporary closure
- permanent closure
A state does not need to make a compliance determination at the time of the
inspection in order for the inspection to qualify as an on-site inspection under these
grant guidelines. However, the inspector or the state underground storage tank
implementing agency must request from the owner or operator all information needed to
make a compliance determination. EPA encourages states to make a compliance
determination in a timely manner. States should generally continue to conduct
enforcement activities as appropriate to address any noncompliance with applicable
underground storage tank program requirements; however, these guidelines do not
address the nature or scope of such enforcement activities.
Who May Perform The On-Site Inspection?
An on-site inspection of an underground storage tank must be conducted by one
of the following:
EPA inspector.
A state underground storage tank implementing agency inspector.
Other state or local agency inspector the state underground storage tank
implementing agency has duly designated, in accordance with state procedures,
to conduct underground storage tank inspections.
* A contractor EPA or a state underground storage tank implementing agency has
duly designated to conduct underground storage tank inspections.
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A private underground storage tank inspector2 (private inspector) operating under
a third-party inspection program as described below.
Solely for the purposes of these grant guidelines, a third-party inspection
program is a state program in which a state-authorized private inspector is paid by the
owner or operator of an underground storage tank to perform an on-site inspection. At
a minimum, states choosing to implement a third-party inspection program must meet
the following requirements:
Private inspectors must be certified, licensed, or registered by the state to
perform on-site inspections. At a minimum, private inspectors must meet the
following requirements:
- be trained in the state-specific inspection protocols and procedures, and
perform inspections pursuant to such protocols and procedures.
- successfully complete the state's required training program. The training
program for private inspectors must be comparable to the state inspector's
training program.
Third-party inspection program must require the private inspector meet conflict of
interest requirements developed by the state. At a minimum, private inspectors
must not be: the owner or operator of the underground storage tank or an
employee of the owner or operator of the underground storage tank; or a person
having daily on-site responsibility for the operation and maintenance of the
underground storage tank.
Third-party inspection program must use an inspection report form developed by
the state and covers the requirements identified in the What Are The
Requirements For The On-Site Inspection? section on page 3 of these
guidelines.
Private inspectors must complete and submit the inspection report to the state
underground storage tank implementing agency in the manner and time frame
established by the state. Private inspectors must retain documentation
associated with the on-site inspection in a comparable manner to state
inspectors. The state must review each inspection report and make a compliance
determination for the facility.
2 In light of certain practical considerations relating to the underground storage tank regulated universe
and specific features of Subtitle I grant funding, EPA believes that it is appropriate, solely for the purpose
of these grant guidelines, to allow states the option of using a third-party inspection program to meet the
on-site inspection requirement In particular, Subtitle I requires states, as a condition of funding, or EPA
as appropriate, to inspect all underground storage tanks every three years. EPA recognizes that a
flexible approach is necessary in order to assist states in meeting the three-year inspection requirement
given the large number of underground storage tanks, the varied distribution of such underground storage
tanks from state to state, and because fulfilling the inspection requirement is a condition of a state's
Subtitle I funding.
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Third-party inspection program must contain an audit program, developed by the
state, to monitor private inspectors on a routine basis. The audit program must
include a sufficient number of on-site inspections to effectively assess inspector
performance.
States must retain the capability to conduct: audits of inspections conducted by
private inspectors; for-cause inspections (e.g., inspections conducted as a result
of a complaint); and inspections of other underground storage tank facilities that
the state determines warrant an on-site inspection. The state underground
storage tank agency or another duly designated state or focal agency must
perform a sufficient number of these inspections so the state retains the capacity
to perform on-site inspections and maintains the integrity of the third-party
inspection program.
If a private inspector fails to demonstrate to the state adequate competence and
proficiency to perform underground storage tank inspections, or the state
otherwise determines it is not appropriate for the private inspector to conduct on-
site inspections as part of a third-party inspection program, the state must take
appropriate action against the private inspector. Appropriate action should
generally be defined by the state in its third-party inspection program and may
include enforcement mechanisms such as: temporary suspension or permanent
revocation of the private inspector's certification, license, or registration; fines,
penalties, retraining, and examination; or any other action the state deems
appropriate to include as an enforcement mechanism against the private
inspector.
States implementing a third-party inspection program as of the published date of
these guidelines in the Federal Register have until August 8,2010 to meet the third-
party inspection program requirements described above. States that implement a third-
party inspection program after the published date of these guidelines in the Federal
Register must meet the requirements at the time the program is implemented.
What Are The Reporting Requirements To EPA?
Each state that receives Subtitle I funding must report to EPA the number of on-
site inspections conducted during the reporting period as part of its quarterly or semi-
annual performance report.
How Will States Demonstrate Compliance With These Guidelines?
After August 8,2007, and before receiving future grant funding, states must
provide one of the following to EPA:
For a state that has met the inspection requirements, the state must submit a
certification indicating that the state meets the requirements in these guidelines.
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For a state that has not yet met the requirements for inspections, the state must
provide a document that describes the state's efforts to meet the requirements.
This document must include:
- A description of the state's activities to date to meet the requirements in these
guidelines;
- A description of the state's planned activities to meet the requirements; and
- The date by which the state expects to meet the requirements.
EPA may verify state certifications of compliance through site visits, record
reviews, or audits as authorized by 40 CFR Part 31.
How Will EPA Enforce States' Compliance With The Requirements In These
Guidelines?
As a matter of law, each state that receives funding under Subtitle I, which would
include a Leaking Underground Storage Tank (LUST) Cooperative Agreement, must
comply with certain underground storage tank requirements of Subtitle I. EPA
anticipates State and Tribal Assistance Grants (STAG) funds will be available under the
2007 Appropriations Act for certain purposes authorized by the Energy Policy Act, and
EPA will condition STAG grants with compliance with these guidelines. Absent a
compelling reason to the contrary, EPA expects to address noncompliance with these
STAG grant conditions by utilizing EPA's grant enforcement authorities under 40 CFR
Part 31.43, as necessary and appropriate.
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For More information About The
Inspection Grant Guidelines
Visit the EPA Office of Underground Storage Tank's web site at vyww.epa.cjov/oust or
call 703-603-9900.
Background About The Energy Policy Act Of 2005
On August 8,2005, President Bush signed the Energy Policy Act of 2005. Title XV, Subtitle B of this
act (entitled the Underground Storage Tank Compliance Act) contains amendments to Subtitle I of
the Solid Waste Disposal Act - the original legislation that created the underground storage tank
(UST) program. These amendments significantly affect federal and state underground storage tank
programs, will require major changes to the programs, and are aimed at further reducing
underground storage tank releases to our environment
The amendments focus on preventing releases. Among other things, they expand eligible uses of
the Leaking Underground Storage Tank (LUSp Trust Fund and include provisions regarding
inspections, operator training, delivery prohibition, secondary containment and financial
responsibility, and cleanup of releases that contain oxygenated fuel additives.
Some of these provisions require implementation by August 2006; others will require implementation
in subsequent years. To implement the new law, EPA and states will work closely with tribes, other
federal agencies, tank owners and operators, and other stakeholders to bring about the mandated
changes affecting underground storage tank facilities.
To see the full text of this new legislation and for more information about EPA's work to implement
the underground storage tank provisions of the law, see:
http://www.epa.gov/oust/fedlaws/nrq05 01 .htm
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Appendix A
Short-Term Recommendation About
Inspections To Meet The
Energy Policy Act Of 2005 Requirements
(November 17, 2005 Memorandum)
* See Following Pages *
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PAGE INTENTIONALLY LEFT BLANK
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JWQl*
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C, 20460
7 :::;
MEMORANDUM
SUBJECT;
FROM:
TO:
OFFICE OF
SC» ID WASTF AND EMSHGENCY
RESPONSE
Short-Term Recommendation About Inspections To Meet The Energy
Policy Act Of 2005 Requirements
Cliff Rothenstehi, Director
Office of Underground Storage Tanks
State UST Managers
EPA UST Regional Division Directors
I am writing to update you about implementing the Energy Policy Act of 2005, provide a
short-term recommendation about site inspections, and give a brief overview of the Act's
underground storage tank (UST) provisions which significantly affect federal and slate programs.
EPA is currently working to develop guidance on implementing the various UST provisions in
the Act, and we expect to complete the guidance on inspections by April 2006. In the meantime,
1 encourage state UST programs to continue conducting on-site inspections as discussed below.
Brief Overview Of The Energy Policy Act
As you know, President Bush on August 8,2005 signed Public Law 109-58, the Energy
Policy Act of2005. Title XV, Subtitle B of this Act (entitled the Underground Storage Tank
Compliance Act of 2005) contains amendments to Subtitle I of Ihc Resouicc Conservation
Recovery Act - the original legislation that created the federal UST program. This new law
significantly affects state and federal underground storage tank programs and will require major
changes in them. Additionally, gas station owners and operators, as well as non-marketers who
own or operate USTs, will be impacted by the changes stales and EPA make in their tank
programs.
The Underground Storage Tank Compliance Act focuses on preventing releases. Among
other things, the Act expands eligible uses of the Leaking Underground Storage Tank (LUST)
Trust Fund, extends the LUST Trust Fund tax through 2011, and includes provisions regarding
inspections, operator training, delivery prohibition., secondary containment and financial
responsibility, and cleanup of releases thai contain oxygenated fuel additives.
Some of these provisions require implementation by August 2006; others will require
implementation in subsequent years, EPA is working closely with stales, tribes, other federal
agencies, tank owners and operators, and other stakeholders to implement these mandated
changes affecting underground storage tank facilities.
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To view the full text of this new legislation., see: h^ilp;^fhveb^atc.acccss.ttpQtgov/e8l;
bin/getdoc.cffl?dbnan3c=109 cona public taws&docid-ftfiubtO58.109.pdf (scroll to TMe XV -
Ethanol And Motor Fuels, Subtitle B -Underground Storage Tank Compliance, on pages 500-
513).
Specifics About Continuing Inspections
Under Section 1523 of the Energy Policy Act of 2005, EPA or states which receive
Subtitle 1 funding shall conduct en-site inspections by August 8,2007 of all tanks which have
not undergone inspection since December 22,1998. Following the completion of this task, EPA
or states that receive Subtitle I funding shall conduct on-site inspections of all regulated tanks at
least once every three years.
We ha%>e established an inspections workgroup, composed of EPA and state members, to
help develop guidance covering inspections. While we work on the guidance, I urge you to
continue performing on-site inspections at UST facilities. I encourage you to focus your
inspections on facilities with USTs in place on or before December 22,1998 and which have not
been inspected since December 22,1998, For inspections conducted in the period from
August 8,2005 to the date of the publication of our guidance, we will consider any on-site
inspection as meeting the new inspection requirements as long as the inspection is:
* conducted by a state, local (when contracted or delegated by a state), BP A» or
certified third-party inspector, and
sufficient to determine compliance with federal UST requirements in Subtitle I or
state requirements that are part of a stale UST program EPA has approved under the
state program approval (SPA) procedures.
Next Steps
EPA expects to publish final guidance on inspections by April. I will continue to share
with you important information aboul the inspection requirements, as welt as other requirements
in the Underground Storage Tank Compliance Act, as we move forward with implementation.
My staff and I look forward to working with you to implement this important provision
of the Underground Storage Tank Compliance Act, If you have questions about the inspection
requirements, contact Jerry Parker at parker.icrry^gpa,gQv or 703-603-7167. For more
information abotK EPA's efforts to implement rtie law, contact Mark Barolo at
barolo.maifcj@qHi.t8Qy or 703-603-7141,
cc: EPA UST Regional Branch Chiefs
EPA UST Regional Program Managers
OUST Managers
OUST Regional Liaisons
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Appendix B
inspection Requirements Of The
Energy Policy Act: Determining Which
Underground Storage Tanks Have
Undergone An Inspection Since
December 22,1998
(June 8, 2006 Memorandum)
* See Following Pages *
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JB \ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
^jjjfc. i WASHINGTON, D.C. 20460
K^"*^^
\m*r
JUN -8 2006
OFFICE OF
SOUD WASTE AND
EMERGENCY RESPONSE
MEMORANDUM
SUBJECT: Infection Requirements Of The Energy Policy Act: Determining Which
Underground Storage Tanks Have Undergone An Inspection Since December 22,
1998
FROM: Cliff Rothenstein, Director
Office of Underground Storage Tanks '
TO: EPA Regional UST Division Directors
State UST Program Managers
I am writing to share with you the Agency's determination on how to interpret a key
provision of the Energy Policy Act, that is, the requirement to inspect all underground storage
tanks (USTs) that have not undergone an inspection since December 22,1998, To implement
this provision, states that receive Solid Waste Disposal Act (SWDA) Subtitle I funding must
determine which USTs have undergone an inspection in the relevant time frame. As described
more fully below, USTs that have undergone a compliance monitoring activity since December
22,1998, do not need to have an on-site inspection by August 8,2007.
This document applies to USTs regulated under Subtitle I in operation on or before
December 22,1998. As used in mis document, USTs means those tanks that satisfy the
definition of "UST" in 40 C.F.R. § 280.12, except for those tanks identified in 40 C.FJR, §§
280.10(b) and 280.10(c) as excluded or deferred USTs. This document does not apply to USTs
installed after December 22,1998, because such USTs are not subject to the two-year inspection
requirement
Energy Policy Act Inspection Requirements
The UST provisions in the Energy Policy Act of 2005 contain amendments to Subtitle I
of SWDA. Section 1523 of the Energy Policy Act amends section 9005 of SWDA by requiring
periodic on-site inspections for USTs. In particular, under section 9005(cXl), USTs that have
not been inspected since December 22,1998 must have an on-site inspection by August 8,2007.
Internet Mdrmi (URL)
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Determining Which Underground Storage Tanks Have Undergone An Inspection Since
December 22,1998
In section 9005(cXl), Congress uses the term Inspection" in connection with
determining whether an UST had already undergone an inspection between December 22,1998
and August 8,2005. In contrast, however, further in section 9005(c)(l) and then in section
900S(cX2), Congress uses the term "on-site inspection" (emphasis added) in connection with
subsequent inspections that EPA or states must conduct within, respectively, a 2-year or 3-year
timetable. When enacting section 9005(0X1), Congress was aware that the states and EPA were
using a variety of compliance monitoring activities to determine an owner/operator's compliance
with Subtitle I and its implementing regulations or a requirement or standard of a state program
developed under Subtitle I.' The use of the term 'Inspection" without the modifier "on-site*' in
section 9005(c)(l) reflects Congress' understanding of the variety of state and federal activities
that had been used prior to the enactment of the Energy Policy Act to determine an
owner/operator's compliance with the applicable UST regulations and is limited to the context of
this provision in this legislation. By enacting section 9005(c)(2), Congress made a deliberate
choice to alter both the frequency of inspections, as well as the variety of existing activities used
to determine an owner/operator's compliance, by legislating that EPA or a state conduct on-site
inspections of all USTs every three years.
Therefore, solely for purposes of implementing the requirements of section 9005(c)( 1),
USTs that have not undergone a compliance monitoring activity since December 22,1998, have
not undergone an inspection under section 9005(cXl) and thusmust have an on-site inspection
by August 8,2007. For the limited purpose of determining which USTs have undergone a
compliance monitoring activity since December 22,1998, the state agency responsible for
implementing the UST regulatory program may count any of the activities that the state, or an
entity on behalf of the state, was using from December 22,1998, through August 8,2005, to
reasonably monitor, evaluate, or determine an owner/operator's compliance with the federal UST
regulations or the regulations of a state approved under section 9004.2 Any UST that had
undergone such a state or federal activity from December 22,1998, through August 8,2005, is
1 For instance, the Government Accountability Office (GAO) issued a Report to
Congress in May 2001 describing the breadth of UST inspection programs which included the
use of tank owners' self-certification that their tanks were in compliance as one activity used to
determine UST compliance. The Report also included inspections. EPA considers an inspection
to be a visit to a facility or site for the purpose of gathering information, including direct
observations, to determine compliance with a statutory requirement, regulation, or other legal
obligation.
2 While not all such state activities meet EPA's definition of an inspection, based upon
information before Congress prior to enacting section 9005(cXl), see n. I, above, such activities
were described to Congress as ways in which some states determine an owner/operator's
compliance with the applicable UST regulations.
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not required to have an on-site inspection by August 8,2007, under section 9005(cXl )
Next Steps
This summer OUST expects to publish draft inspection grant guidelines to implement
section 9005(c) of SWDA Subtitle I as amended by the Energy Policy Act of 2005. These
guidelines will incorporate the determination made in this memorandum, and detail what states
must do to meet the on-site inspection requirements in 9005(c). If you have questions or
comments about this memorandum or the inspection requirements contained in the Energy
Policy Act, please contact Tim Smiln of my office at smith.timr@epa.gov or 703-603-7158.
cc: EPA Regional UST Branch Chiefs
EPA Regional UST Program Managers
OUST Managers
OUST Regional Liaisons
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