Underground Storage Tank Srant Guidelines Inspection
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
EPA510-R-07-004
April 2007
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Underground Storage Tank Srant Guidelines Inspection
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? 2
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) A-1
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) B-1
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Underground Storage Tank Srant Guidelines Inspection
Overview Of The Inspection Grant Guidelines
Why Is EPA Issuing These 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 to
determine compliance with Subtitle I and 40 CFR 280 requirements or
requirements or standards of a state program developed under Section 9004.
2. Periodic inspections - Section 9005(c)(2) requires that, 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.
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Underground Storage Tank Srant Guidelines Inspection
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 and June 8, 2006 memorandums. See Appendices A and B for copies.
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Underground Storage Tank Srant Guidelines Inspection
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, 2007 conduct an on-site inspection for each
underground storage tank that has not been inspected since December 22, 19981.
After completion of those inspections, each underground storage tank must be
inspected 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?
The purpose of the on-site inspection is to determine 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.
For purposes of these guidelines, an on-site inspection includes an inspection
conducted at the site of each underground storage tank, inspection of associated
equipment, and the review of applicable records. Review of applicable records and
other activities that can be accomplished off-site may be combined with activities
conducted at the site of the underground storage tank to fulfill the on-site inspection
requirement. Desk audits, self-certifications, information request letters, and any other
such activities are not sufficient by themselves to fulfill the on-site inspection
requirements. However, information obtained from such activities may be used in
conjunction with the on-site inspection to satisfy the on-site inspection requirement. At
a minimum, an on-site inspection must assess compliance with the following:
1 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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Underground Storage Tank Srant Guidelines Inspection
• Notification (failure to notify)
• Corrosion protection
- tanks and piping have appropriate corrosion protection
- 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
• Reporting suspected releases
• Records of tank and piping repairs
» Secondary containment where required
• Financial responsibility
» Temporary 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 individual performing the inspection 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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Underground Storage Tank Srant Guidelines Inspection
• 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 training program for
state inspectors.
• Third-party inspection programs must require private inspectors to 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;
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 programs must use an inspection report form developed
by the state that covers the requirements identified in the What Are The
Requirements For The On-Site Inspection? section on page 3 of these
guidelines. As previously indicated, not all required activities have to be
conducted at the site. Review of applicable records and other activities that can
be accomplished off-site may be combined with activities conducted at the site to
fulfill the on-site inspection requirement.
• 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. States must either require that private inspectors retain
inspection related documentation in a comparable manner to state inspectors or
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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Underground Storage Tank Srant Guidelines Inspection
submit the documentation to the state. The state must review each inspection
report and make a compliance determination for each site.
• Third-party inspection programs 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 sites that the
state determines warrant an on-site inspection. The state underground storage
tank agency or another duly designated state or local 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:
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Underground Storage Tank Srant Guidelines Inspection
• 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.
• 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 for
inspection and other underground storage tank compliance activities. EPA will also
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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Underground Storage Tank Srant Guidelines Inspection
For More Information About The
Inspection Grant Guidelines
Visit the EPA Office of Underground Storage Tank's Web site at
www.epa.gov/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 (titled 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 (LIST) program. These amendments significantly affect
federal and state underground storage tank programs, will require major changes to the programs, and are aimed at
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 (LUST) 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.qov/oust/fedlaws/nrq05 01 .htm
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Underground Storage Tank Srant Guidelines Inspection
Appendix A
STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
NOV 1 7 OTS
OFFICE OF
SOLID WftSTf AND EMERGENCY
MEMORANDUM RESPONSE
SUBJECT: Short-Term Recommendation About Inspections To Meet The Energy
Policy Act Of 2005 Requirements
FROM: Cliff Rothenstoin, Director
Office of Underground Storage iTanks
TO: 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 sifpiificantly affect federal and state programs.
EPA is currently working So 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,
! 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 of 2005. Title XV, Subtitle B of this Act (entitled the Underground Storage Tank
Compliance Act of 2005) contains amendments to Subtitle I of the Resource 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 states 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 (hat 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 slates, 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 te\t of this new legislation, see' Mfl?1l:fi1ttt*Ji4K' aicc'J.v.^.yjyy. cgjt
t5Jo^ee?di^^ to Title XV -
Etlunol And Motor Fuels, Subtitle B - Underground Storage Tank Compliance, on pages 500-
513)
Specifics About Continuing Inspections
Under Section 1 523 of the Energy Policy Act of 2005, EPA or states which receive
Subtitle 1 funding shall conduct on-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 thai receive Subtitle I funding shall conduct on-site inspections of all regulated tanks at
least once every three years,
We have established mi inspections workgroup, composed of EPA and state members, to
help develop guidance covering inspections. While we work on the guidance, 1 urge you to
continue performing on-site inspections at LIST facilities, I encourage you to focus your
inspections on facilities with USTs in place on or before December 22, 1 998 and m;bich 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), EPA, or
certified third-party inspector; and
* sufficient to determine compliance with federal UST requirements in Subtitle ! or
stale requirements thai arc part of a state UST program EPA has approved under the
slate program approval (SPA) procedures,
Nent Steps
EPA expects to publish final guidance on inspections by April. ! will continue to share
with you important information about the inspection requirements, as well 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 Art, If you have questions about the inspection
requirements, contact Jerry Parker at parkCTJerry|«]C{ja,i|OV or 703-603-71 67. For more
information about EPA's efforts to implement the law, contact Mark Barolo at
y or 703-603-7141,
cc; EPA UST Regional Branch Chiefs
fcPA UST Regional Program Managers
OUST Managers
Ol !ST Regional Liaisons
A-2
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Appendix B
jfll \ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
! WASHINGTON, D.C, 20460
*:/
JUN -a »
MEMORANDUM
omce OF
SOLID WASTE AND
EMERGENCY RESPONSE
SUBJECT: Inspection Requirements Of The Energy Policy Act; Determining Which
Underground Storage Tanks Have Undergone An Inspection Since December 22,
1998
FROM; Cliff Rothenstein, Director V*__>> I jp? /' |
Office of Underground Storage Tanks ' j
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 this 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.F.R. §§
280. tO(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(c)(I), USTs that have
not been inspected since December 22, 1998 must have an on-site inspection by August 8,2007.
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Underground Storage Tank Srant Guidelines Inspection
Determining Which Underground Storage Tanks Have Undergone Am Inspection Since
December 22,1998
In section 9005(c)(l), Coup-ess uses the term "inspection" in connection with
determining whether an UST had akeady undergone an inspection between December 22,1998
and August 8,2005. In contrast, however, further in section 9005{c)(l) and then in section
9005(c)(2), 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{c)(l), 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 900S(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, ] 998, have
not undergone an inspection under section 9005(c)(l) 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, S998, 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
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.
1 White not all such state activities meet EPA's definition of an inspection, based upon
information before Congress prior to enacting section 9005(c)(l), seen. 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.
B-2
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not required to have an on-site inspection by August 8,2007, under section 9005(cX 1).
Next Steps
This summer OUST expects to publish draft inspection grant guidelines to implement
section 9005(c) of SWDA Subtitle I as by the Energy Policy Act of 200S. These
guidelines will incorporate the determination made in this memorandum, and detail what
must eta to meet the on-site inspection requirements in 9
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