oEPA
United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
DfRECTIVE NUMBER: 9650.15
TITLE: Procedures and Requirements for Codification of
Approved State UST Programs
APPROVAL DATE: September 22, 1994
EFFECTIVE DATE: September 22, 1994
ORIGINATING OFFICE: office of Underground Storage
Tanks (OUST)
03 FINAL
D DRAFT
STATUS:
REFERENCE (other documents):
OSWER Directive 9650.11 "State Program Approval Handbook1
OSWER Directive 9650.12 "Suggested Procedures for Review
of State UST Applications"
OSWER OSWER OSWER
VE DIRECTIVE DIRECTIVE Dl
-------
f/EPA
United States
Environmental Protection
Agencv
OHice of
Solid Waste and
Emergency Response
DfRECTIVE NUMBER: 9650.15
TITLE: Procedures and Requirements for Codification of
Approved State UST Programs
APPROVAL DATE: September 22, 1994
EFFECTIVE DATE: September 22, 1994
ORIGINATING OFFICE: Office of Underground Storage
Tanks (OUST)
Q FINAL
D DRAFT
STATUS:
REFERENCE (other documents):
OSWER Directive 9650.11 "State Program Approval Handbook"
OSWER Directive 9650.12 "Suggested Procedures for Review
of State UST Applications"
OSWER OSWER OSWER
'E DIRECTIVE DIRECTIVE
-------
_____ _ United States Environmental Protection Agency ,
A CDA Washington DC 20460
ocrM oSWER Directive Initiation Request
1. Directive Number
9650.15
2. Ortdnator Information
Name of Contact Person
Jerry Parker
Mel Coda Office
5401W OUST •
Telephone Cod*
703-308-8884
Hit* f
Procedures and Requirements for Codification of Approved State UST Programs
4. Summary of Directive (include brief statement of purpose)
Provides guidance for EPA Regions on how to codify approved state UST programs.
5. Keywords
Underground Storage Tanks, State
6a. Does This Directive Supersede Previous Directive
b. Does It Supplement Previous Directive^)?
Program Approval, Codification, incorporation by referen
[xjNo I | Yes What oVectlva (number. tWt)
| I No x YM What oVective (number. We)
9650.12
7 Draft Level ^__^ ^_^
A - Signed by AA/DAA |x ] B - Signed by Office Director C - For Review & Comment | | D - In Development
8. Document to be distributi
3d to States by Headquarters?
Yea |X|NO
This Request Me«ta OSWER Directives System Format Standards,
9. Signature of Lead Office Directives Coordinator A; / „ /7/7>»./ fa
<^£f1'MA<}'wV&~^' vxW'-FO'*'
Shushona Clark, OUST Directives Coordinator
10. Name and Title of Approving Official
Lisa Lund, Acting Director, OUST
>4 > ^ i
(7\Q0i Cnuj^L^
Date
Date
:e
EPA Form 1315-17 (Rev. 5-«7) Previous editions are obsolete.
OSWER OSWER OSWER 0
DIRECTIVE DIRECTIVE DIRECTIVE
-------
.OSWER Directive 9650.15
PROCEDURES AND REQUIREMENTS FOR
CODIFICATION OF APPROVED STATE UST
PROGRAMS
U.S. ENVIRONMENTAL PROTECTION AGENCY
OFFICE OF UNDERGROUND STORAGE TANKS
September 1994
3
-------
OSWER Directive 9650.15
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 reliejd 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.
1.1.
-------
OSWER Directive 9650.15
TABLE OP CONTENTS
/
Page f
I. BACKGROUND
II. STEPS IN THE CODIFICATION PROCESS
III. LEGALLY ENFORCEABLE STATUTES AND REGULATIONS
IV. QUALITY GUIDELINES FOR INCORPORATION BY REFERENCE
OF STATE STATUTES AND REGULATIONS
V. APPENDICES
Appendix A — Part 282 Framework Rule and
New Hampshire Codification Rule A-l
Appendix B — Vermont Codification Rule
("Stand-alone" rule) B-l
Appendix C — Federal Register Document
Requirements C-l
Appendix D — Guidance on Preparing and
Submitting Federal Register Documents D-l
Appendix E — Sample Transmittal Letters to the
Office of the Federal Register E-l
Appendix F — List of CFR Sections Reserved for
Approved State Programs F-l
Appendix G — Sample Incorporation by Reference
Binders (New Hampshire) G-l
i.i.i.
-------
OSWER Directive 9650.15
PROCEDURES AND REQUIREMENTS FOR CODIFICATION OF
APPROVED STATE UST PROGRAMS
//
I. Background
Codification is the process that identifies the elements of
approved State programs by placing them in the Code of Federal
Regulations (CFR). The codification of State programs is
designed to enhance the public's ability to discern the current
status of the approved State program and alert the public to the
specific State regulations that the Federal government can
enforce if necessary. This process will be particularly helpful
as States adopt additional Federal requirements or revise their
approved UST programs.
Appropriate provisions of state statutes and regulations are
"incorporated by reference". Other elements of the approved
state program, such as the Attorney General's Statement,
Memorandum of Agreement, Program Description, and Demonstration
of Procedures for Adequate Enforcement are merely ".referenced".
These documents are referenced by listing the title and date of
signature in the codification notice. It is important to
understand that while the state program itself is being codified
through publication in the CFR, it is the process of
incorporation by reference of applicable statutory and regulatory
elements that makes the state requirements th& federal law as
well.
The effect of incorporation by reference is that the
incorporated material has the same legal effect as if it were
published in full in the CFR. State enforcement authorities
contained in statutes and regulations are identified in the
codification rule but not incorporated by reference since EPA
uses its own authorities to enforce approved State requirements.
EPA enforces State regulations that are more stringent than
the Federal requirements, but not those that are broader in
scope. For example, EPA will enforce State regulations that
require reporting of all suspected releases, even though Federal
regulations require only that releases of greater than 25 gallons
be reported. However, EPA cannot enforce State regulations
against farm tanks excluded from regulations at the Federal
level. Therefore, the codification rule, which is published in
the Federal Register, must identify where the State is broader in
scope so that the public as well as the regulated community can
know that the Federal government will not be enforcing those
broader in scope program requirements.
-------
05WER Directive 9650.15
A. Authorization Generally
Subtitle I of the Resource Conservation and Recovery Act
(RCRA) establishes a system which ensures the proper use and
handling of underground storage tanks (USTs). To do this, RCRA
establishes a partnership between the federal government and the
states. Section 9004(d)(2) of RCRA provides, in part, that:
[once a State has submitted its program], [i]f the
Administrator determines that [the] 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 enforcement responsihllity with
respect to-requirements«o£ its program. [Emphasis added]
The effect of this provision is to allow the states to seek
authorization to enact and administer state laws and regulations
in place of the federal regulatory program found at 40 C.F.R.
Part 280. However, the state program must be no less stringent
than the federal program and it must provide for adequate
enforcement. Once a state is authorized for Subtitle I, the
state regulations provide the substantive requirements that must
be met at facilities located within the state. When the state
becomes authorized, the federal UST regulations are no longer
applicable in that state. As in states authorized under Subtitle
C of RCRA, both the federal government and the state exercise
enforcement authority.
B. State Regulations Which Are More Stringent or Broader in
Scope Than Their Federal Counterparts
As mentioned above, Section 9004(b)(1) does not allow
approval for a state whose laws are less stringent than the
federal requirements-. However, states may enact laws more
stringent than their federal counterparts. Section 9008 of RCRA.
In addition, states may enact laws broader in scope than their
federal counterparts; that is, the state laws have no counterpart
in the federal UST program. This authority is specifically
codified in 40 C.F.R. § 281.12(a)(3).
State program requirements that are broader in scope of
coverage than the federal program are not a part of the
federally-approved program, 40 C.F.R. S 281.12(a)(3)(ii). Since
that portion of the state program does not have a counterpart in
the federal program, it does not become a requirement of Subtitle
I, the violation of which EPA is entitled to enforce pursuant to
Section 9006(a). Therefore, EPA may not enforce that portion of
a states program which is broader in scope of coverage than a
federal program. Examples of regulations which are broader in
scope than the federal program include: the regulation of tanks
10
-------
OSWER Directive 9650.15
storing heating oil for consumptive use on the premises where
stored; the regulation of flow-through process tanks; and the
regulation of farm or residential tanks/of 1,100 gallons or less
capacity storing motor fuel for non-commercial purposes.
Consequently, EPA will not incorporate by reference states laws
which are broader in scope than the federal program.
While state provision which are broader in scope of coverage
generally do not have a counterpart in the federal program, the
subject matter of the more stringent state provisions is usually
covered in similar provisions of the federal program. Examples
of more stringent state provisions would include: a requirement
that not only must tanks be protected from corrosion, but that
tanks must be made solely of corrosion proof materials; that
notice of use of a new tank system must be made within 15 days
instead of the 30 days allowed by the federal program; or that
owners or operators of petroleum USTs demonstrate pre-occurrence
financial responsibility of at least $2 million instead of the $1
million or $500,000.00 required by the federal program.
Provisions in state programs which are more stringent than
their federal counterparts are, nevertheless, a part of the
approved state program, and are enforceable by EPA. Congress
intended this result when, in Section 9008, it specifically
permitted more stringent regulations, and, at the same time,
authorized EPA to enforce those provisions under Section
9006(a)(2). Thus, more stringent state provisions in an approved
program are, unlike those which have no counterpart in the
federal program, a part of the requirements of Subtitle I, which
EPA is required to enforce. Consequently, EPA will incorporate
by reference these laws which are more stringent than the federal
program.
C. State Enforcement Authorities
State enforcement authorities' do; not become part of the
authorized state program that EPA can enforce. Congress provided
EPA with the necessary authority to use federal procedures for
enforcement of all applicable UST rules and regulations, and it
intended that those procedures be used in the event of federal
enforcement of a state's UST laws. For example, Section
9006(a)(1) of RCRA authorizes the Administrator, in the event of
a violation of any requirement of Subtitle I, to issue an order
requiring compliance immediately or within a specified time.
Section 9006(a)(2) makes it clear that such orders may be issued
in states which are authorized to carry out the UST program under
Section 9004 (after notice to the affected state); and Section
9006(a)(3) provides for a penalty for non-compliance. Provisions
for public hearings on any order issued under this Section, and
authority for the Administrator to issue subpoenas are also
included in Section 9006(b). Section 9006(c) specifies the scope
-------
OSWER Directive 9650.15
and content of the compliance orders which may be issued under
this Section.
Congress provided a specific mechanism for federal
administrative enforcement proceedings, to be used in cases of
federal enforcement of state programs in lieu of any
administrative procedures contained in the laws and regulations
of the state in which the violation occurred. Thus, EPA will not
incorporate by reference state enforcement authorities.
D. Whv Codify?
The question has arisen as to why EPA must publish state
programs authorized pursuant to Section 9004 of RCRA, 42 U.S.C.
§ 6991c(d)(2), in the Code of Federal Regulations.
Codification is one- of two. necessary components f ,- final
approval of an authorized state UST program. Authorization, the
first step, provides the necessary EPA review and approval.
Codification, the second step, incorporates state law into the
federal scheme, thus supplanting the federal program for that
state. The authorized program then becomes the only program
enforceable by either the state or the federal government as it
applies to regulated entities. This interpretation is supported
by the language of section 9006(a) of RCRA, 42 U.S.C. §6991e(a)
which states,
. . . whenever . . . the Administrator determines that any
person is in violation of any requirement of this
subchapter, the Administrator may issue an order requiring
compliance within a reasonable specified time period or the
Administrator may commence a civil action in the Unites
States district court in which the violation occurred . . .
The key phrase is "of this subchapter". In order to become
requirements of this subchapter., the authorized state UST program
requirements must be made federal requirements.
Codification also serves to place regulated entities and
members of the public on notice of the requirements pertaining to
the operation of USTs. Under the Administrative Procedure Act
(APA), each agency must make available to the public certain
information.
Each agency shall separately state and currently
publish in the Federal Register for the guidance of the
public . . .
(D) substantive rules of general pplicability adopted
as authorized by law, and states its of general policy
or interpretations of general applicability formulated
and adopted by the agency; and,
-------
OSWER Directive 9650.15
(E) each amendment, revision, or repeal of the
foregoing.
Except to the extent that a person has actual and
timely notice of the terms thereof, a person may not in
any manner be required to resort to, or be adversely
affected by, a matter required to be published in the
Federal Register and not so published. For the purpose
of this paragraph, matter reasonable available to the
class of persons affected thereby is deemed published
in the Federal Register when incorporated by reference
therein with the approval of the Director of the
Federal Register.
5 u.s.c. S 552(a). The regulations on how to incorporate by
reference appear at 1 C.F.R. Part 51.
Therefore for the Federal government to be able to enforce
the provisions of state laws and regulations that have been
approved to operate in lieu of the federal program, those
requirements either have to be published in the Federal Register
or incorporated by reference therein. Only the substantive rules
must be published or incorporated by reference, because the
federal government uses its own enforcement authorities when
bringing actions for alleged violations of the authorized state
UST program. Thus, general enabling statutes that do not embody
specific requirements that would become enforceable by the
federal government pursuant to section 9006 of RCRA need not be
incorporated by reference, although they are, of course, part of
the approved state program.
Part 282 has been reserved for codification of approved
State UST programs (see Appendix A). Appendix F to this guidance
contains a list of the sections within Part 282 that have been
specifically reserved for each of the 56 States and Territories.
The Regions should use this list to identify the sections of Part
282 that should be included in their codification rules.
II. Steps in the Codification Process
Regions will be required to follow a number of standard
steps when codifying their approved state programs.
1) The major effort will be to write the Federal Register rule
signifying the codification of the state program. (As part
of this effort each Region should set up a docket, with a
new file and docket number, for all codification materials
and any public comments.) OUST Headquarters has developed a
model codification rule and will provide it to the Regions
electronically to facilitate the codification process (see
Appendix B).
/3
-------
OSWER Directive 9650.15
STEPS IN THE CODIFICATION PROCESS
State program Is approved/
Review SPA application to determine which statutory and
regulatory provisions are to 00 Incorporated by reference
Office of Regional Council (ORC) review* statute* and regulations
Hav* official
legally-enforceable
copies of proper quality
been obtained?
Obtain acceptable copla* of
statutes/regulation* from ttata
Prepare binder*
ORC review* rule
Prepare draft Federal
ReoJitif rule. 3« up docket
i
Prepare transmlttal tetter for Office
of the Federal Register (OFR)
Send Federal Register
typesetting requect form for
signature*
Prepare final Federal Register package
and obtain signature of the
Regional Administrator
Send final package to
Quality Assurance Officer
Return package to Region
for correction*
Send package to EPA Federal Register Uaieon McMe Reed)
Send package to OFH
Binders to remain at OFR
t
Final rule publlihed In Pea-- aeqjjrtef
t
Binders retained
at stat* offlce
Binder* retained at
Regional library
Binder* retained
at OUST docket
Binders retained at
OUST
-------
OSWER Directive 9650.15
2) The U.S. Government Printing Office (GPO) offers a 20
percent discount for Federal Register documents submitted
with a disk. Regions should therefore explore the
possibility of submitting their rvfles on disk. There are a
number of requirements, however, that must be met when
submitting electronic files for publication in the Federal
Register (see Appendix C).
3) As part of producing the codification notice, the Regions
will need to review the state program approval application
in order to determine what state materials are to be
incorporated by reference (i.e., relevant portions of state
statutes and regulations). These need to be clearly
identified in the notice and placed into binders for public
review.
4) After determining what materials-are needed for
incorporation by reference, the Region will need to ensure
that it has legally enforceable copies of all relevant
materials so they may assemble the binders. Two binders are
required. One binder will contain statutory provisions;
another will contain regulatory provisions. The statutes
and regulations must be of proper quality to meet OFR
standards (see sample binders in Appendix G).
5) A letter from EPA to OFR requesting the incorporation by
reference must be submitted at least 20 working days in
advance of the desired publication date (see Appendix E).
The letter should be accompanied by the binders, the Federal
Register rule, and note the section(s) of the CFR into which
the materials will be incorporated. This letter also must
include the name and phone number of the Regional
codification contact.
6) A transmittal memo to Vickie Reed, Headquarters Federal
Register liaison, must be prepared, as must a Federal
Register typesetting request form.
7) The entire package must then be submitted for review to the
Quality Assurance Officer at OPPE. Send the package c/o
Vickie Reed (mail code 2136).
8) The Quality Assurance Officer assesses the materials to
determine whether the documents submitted meet all
applicable OFR criteria. As part of this process, the table
of contents will be checked against the materials in the
binder and the listing to the appendix in the Federal
Register rule.
9) If the materials meet the criteria, all materials
(transmittal letters, binders, the rule, other forms,etc.)
are submitted to OFR through the Headquarters Federal
-------
OSWER Directive 9650.15
gggister liaison, if the materials do not meet the
criteria, any needed changes will be specified and the
materials will be returned to the Region for corrections.
10) OFR will publish a codification rile specifying the state
statutory and regulatory provisions that have been
incorporated by reference.
11) Copies of all incorporation by reference materials must be
made available for public review at a number of locations
following publication in the Federal Register, including the
state office, the Regional library, the OUST docket, and
OUST. OFR will also retain a copy of the materials.
See Appendix D for additional guidance on the procedures involved
in preparing and^.sufc-ittlng .Fe >ral Register notices.
III. Legally Enforceable statutes and Regulations
It is EPA's burden to ensure that the copies of statutes and
regulations submitted for incorporation by reference are the
legally enforceable copies in the state. The question of which
version is enforceable and when it is effective is to be
determined with reference to state law. There are three
categories of legally enforceable regulations:
1) Regulations that are published in the state register.
These regulations are not effective until they are
published in the state register.
2) Regulations that are immediately effective upon
adoption and signature by the Secretary of state.
These regulations have either an official stamp
denoting the date of adoption and signature or some
other forms of certification; that the material was
adopted by the state. This certification also needs to
be included in the binder of incorporated by reference
materials.
3) Regulations that are immediately effective (as above),
except that the state periodically publishes a
compilation of their regulations. The official version
in such states is the originally adopted version signed
by the Secretary of State.
Because states may submit different categories of applicable
regulations to EPA, the Regions will need to check with their
states in determining which is the legally enforceable copy.
In addition, the Region must obtain legally enforceable
versions of state statutes. This version may be either an
-------
OSWER Directive 9650.15
officially signed version or one published in the state code; the
Region will need to confirm with the state which is the legally
enforceable copy. /
If
An electronic copy of state statutes and regulations is not
a valid format for incorporation by reference materials submitted
to OFR, because it lacks certification that the materials have
been officially adopted by the state. The same holds true for
secondary sources such as the Bureau of National Affairs (BNA)
publication Environment Reporter. Additionally, documents being
submitted for approval should not be combined from different
sources or from volumes of different dates.
Regions codifying states that have incorporated the federal
UST regulations by reference would follow the procedures outlined
above when incorporating- by,reference the applicable state
provisions, provided that the state has devised an internal
numbering system for those regulations that distinguishes them
from the federal regulations. They would simply need to cite the
appropriate sections of the state regulations for incorporation
by reference.
There may be cases where an approved state has included
statutory and/or regulatory provisions in its application for
program approval that are not UST-specific but instead supplement
the UST provisions. In such cases, particularly if the
provisions are not cited in the Attorney General's statement as
authorities upon which the UST program relies, it is appropriate
to reference them in the codification notice. However, these
provisions should not be incorporated by reference. Only those
provisions that are applied to a specific aspect of the UST
program may need to be incorporated by reference.
IV. Quality Guidelines for. Incorporation by Reference of State
Statutes and Regulations
The Office of the Federal Register imposes a number of
requirements and prerequisites for incorporating materials by
reference in published Agency regulations. Incorporation by
reference is a mechanism that permits more efficient use of
resources by reducing the volume of material published in the
Federal Register and Code of Federal Regulations. Incorporation
by reference allows Federal agencies to comply with the
requirement to publish regulations in the Federal Register by
referring to materials already published elsewhere. The legal
effect of incorporation by reference is that the material is
treated as if it were published in the Federal Register. This
material, like any other properly issued regulation, has the
force and effect of law.
8
17
-------
OSEWR Directive 9650.15
The Director of the Federal Register is authorized to decide
when an agency may incorporate material by reference. The
Director may approve an incorporation ty reference if the
material meets the requirements of 1 CF,R Part 51. OFR has had
concerns regarding the format, quality, condition, and EPA's
location of materials to be incorporated by reference. Central
to OFR's concerns was the availability of legible materials for
public review. Before January 3, 1994, no approved State UST
programs had been codified due to a combination of confusion over
proper codification procedures and inferior quality and format of
the materials that were submitted to OFR by other EPA program
offices.
In order to obtain OFR's approval for the use of
incorporation by reference of material in its regulations, EPA
and OFR representatives met .to develop the following set of
quality guidelines for submitting-incorporation by reference
materials as part of the codification process.
1) The 40 CFR Part 55 incorporation by reference model would be
followed in developing a Part 282 for all materials to be
incorporated by reference, incorporation by reference
materials must be placed in binders, which must have a table
of contents. All pages should be numbered for easy
reference.
2) The materials must be inspected page by page to ensure that
they are clear, complete, and legible. The copies submitted
must be of a high enough quality to produce legible
photocopies. If high-quality copies are not available in
the Regional office, they should be obtained from the State.
No marred or disfigured pages may be included, and the
storage method must not obscure the text in any way (e.g.,
by hole punches). Experience has shown that it may be
difficult and/or expensive to get "acceptable" copies. The
Re'.gions, therefore^ may want to-require that the states
submit "acceptable" copies of their statutes and regulations
a« part of the official state program approval application.
3) AM documents should be inspected to be sure that they have
titles, dates, edition numbers, author/publisher, and
identification number (where applicable). If they do not,
the Region is responsible for obtaining copies of documents
that satisfy the criteria.
4) The Region should number consecutively in the lower right
hand corner all pages that are to be placed in the
incorporation by reference binder. These page numbers will
supersede any page numbers on the source documents and will
b(> used to create a table of contents for the binder. If
possible, the title page from the statute or regulation
-------
OSWER Directive 9650.15
should also be placed in the binder to indicate where the
excerpts come from.
5) A table of contents listing the materials included in the
binder and their page numbers must be developed and placed
at the front of the binder so that readers can quickly find
the provisions in which they are interested. The table of
contents should look very similar to the Appendix to the
Federal Register notice. Any words, phrases, sentences,
paragraphs or subsections that are "crossed-out" in the
binder materials need to be noted in both the Appendix to
the rule and the table of contents to each binder. (Please
refer to the New Hampshire binders in Appendix G of this
document for examples.)
6) If there ar& portions?;of statutes or regulations on a page
that are not to be incorporated by reference (e.g., an
incorporated section ends and an unrelated provision
immediately follows), it is acceptable to place them into
the binder and cross them out. This eliminates the need for
cutting and pasting. However, the Region needs to be very
clear about which of the statutory and regulatory provisions
are to be incorporated by reference and which are not.
7) Statutes and regulations will be placed in separate 8.5 x 11
binders. In order to avoid unnecessary photocopying, it is
acceptable to include a pre-printed and bound.booklet of
statutes or regulations that is not 8.5 x 11 if a press bar
binder is used to secure the document. For all binders
please place a label containing the binder title and CFR
number on both the front and spine of the binder.
8) The Memorandum of Agreement, Program Description, and
Demonstration of Adequate Enforcement Procedures will be
referenced in. the rulemaking, but copies of these documents
will not be placed into the binders.
9) While OFR has not mandated that binders from all states be
identical, the Regions should keep in mind that the goal is
to produce a binder that can be easily read and photocopied,
and will withstand repeated viewings. Thus, the binder
should be assembled so that loss of pages through use is
minimal.
10) Each statement of incorporation by reference must identify
where and how copies may be examined and obtained.
11) OFR will maintain a copy of the incorporation by reference
binders. EPA will also maintain a copy in the EPA OUST
docket, Room M 2616, 401 M Street, SW, Washington, DC 20460;
at OUST Headquarters (contact Jerry Parker); and in the
10
-------
OS.WER Directive 9650.15
library of the appropriate EPA Regional office. The state
alsso will maintain a copy of the binders.
12) Codification of revisions to approved state programs will
require publication of an amendment to the CFR in the
Federal Register and submittal of a separate binder with a
revision date on the cover page, with copies deposited in
all the above locations. The Director of the Federal
Register must be notified in writing that the incorporated
by reference materials are being updated, codification of
revisions is not a process of merely adding the changes to
the old binders.
An acceptable format consistently applied to all materials
submitted for incorporation by reference reduces the OFR
resources required for.~review^andi significantly decreases the
period of time"between 'submission and approval. In addition, a
consistent format affords maximum convenience to the public user.
Much of the work involved in assuring that all incorporation
by reference materials meet the quality requirements,
particularly that resulting from OFR rejection of inferior
quality documents, can be avoided if the Region communicates the
requirements to its states early in the state program approval
and codification process. If the states understand what is
required of the Regions, materials of an acceptable quality and
format can be submitted to the Region the first time, and re-
assembly of the materials will not be necessary.
11
2.0
-------
OSWER Directive 9650.15
APPENDIX A: PART 282 FRAMEWORK RULE AND NEW HAMPSHIRE
CODIFICATION RULE
-------
OSWER Directive 9650.15
Tuesday
November 2, 1993
Part III
Environmental
Protection Agency
40 CFR Part 282
Underground Storage Tank Program;
Approved Program for New Hampshire;
Rule
-------
OSWER Directive 9650.15
58624 Federal Register / Vol. 58, No. 210 / Tuesday, November 2, 1993 / Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 282
[FRL-4794-8]
Underground Storage Tank Program;
Approved State Program (or New
Hampshire
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Immediate final rule.
SUMMARY: The Resource Conservation
and Recovery Act of 1976, as amended
(RCRA). authorizes the U.S.
Environmental Protection Agency to
grant approval to states to operate their
underground storage tank programs in
lieu of the federal program. This action
establishes part 282 for codification of
the decision to approve a state program
and for incorporation by reference of
those provisions of state statutes and
regulations that will be subject to EPA's
inspection and enforcement authorities
under sections 9005 and 9006 of RCRA
subtitle I and other applicable statutory
and regulatory provisions. As part of
this initial action, part 282 codifies the
prior approval of New Hampshire's
underground storage tank program and
incorporates by reference appropriate
provisions of state statutes and
regulations.
DATES: This regulation is effective
January 3, 1994. unless EPA publishes
a prior Federal Register rule
withdrawing this immediate final rule.
All comments on this regulation must
be received by the close of business
December 2.1993. The incorporation by
reference of certain publications listed
in the regulations is approved by the
Director of the Federal Register, as of
January 3,1994, in accordance with 5
U.S.C 552(a).
ADDRESSES: Comments may be mailed to
the Docket Clerk (Docket No. UST 4-5),
Office of Underground Storage Tanks
(OS-305), U.S. Environmental
Protection Agency, 401 M Street. SW.,
Washington, DC 20460. Comments
received by EPA may be inspected in
the public docket, located in room 2616
(Mall), U.S. Environmental Protection
Agency, 401 M Street. SW., Washington.
DC 20460 from 9 a.m. to 4 p.m., Monday
through Friday, excluding Federal
holidays.
FOR FURTHER INFORMATION CONTACT:
RCRA Hotline, toll free at (800) 424-
9346 or in Washington. DC at (202) 382-
3000. For technical questions on the
part 282 rule, consult Jerry Parker, U.S.
EPA, Office of Underground Storage
Tanks, at (703) 308-8884. For technical
questions on the New Hampshire
codification, consult Susan Hanamoto.
Underground Storage Tank Program.
U.S. EPA Region I. JFK FederjJ/
Building. Boston, MA 02203-2211.
Phone: (617) 573-5748.
SUPPLEMENTARY INFORMATION:
Background
Section 9004 of the Resource
Conservation and Recovery Act of 1976,
as amended, (RCRA). 42 U.S.C 6991c.
allows the U.S. Environmental
Protection Agency (EPA) to approve
state underground storage tank
programs to operate in the state in lieu
of the federal underground storage tank
program. EPA published a Federal
Register rule announcing its decision to
grant approval to New Hampshire (56
FR 28089, June 19,1991). Approval was
effective on July 19,1991.
EPA will codify its approval of state
programs in a new 40 CFR part 282 and
incorporate by reference therein the
state statutes and regulations that will
be subject to EPA's inspection and
enforcement authorities under sections
9005 and 9006 of subtitle I of RCRA. 42
U.S.C. 6991d and 6991e. and other
applicable statutory and regulatory
provisions. Today's rule establishes part
282, reserves sections within part 282
for each state, and codifies EPA's
approval of the New Hampshire
underground storage tank program. This
codification reflects the state program in
effect at the time EPA granted New
Hampshire approval under section
9004(a). 42 U.S.C. 6991c(a). for its
underground storage tank program. The
establishment of part 282 is an Agency
procedure exempt from the notice and
comment requirements of 5 U.S.C. 553.
as is the codification of the New
Hampshire UST program. Notice and
opportunity for comment were provided
earlier on the Agency's decision to
approve the New Hampshire program,
and EPA is not now reopening that ,•
decision nor requesting comment on it
This effort provides clear notice to the
public of the scope of the approved
program in each state. By codifying the
approved New Hampshire program and
by amending the Code of Federal
Regulations whenever a new or different
set of requirements is approved in New
Hampshire, the status of federally
approved requirements of the New
Hampshire program will be readily
discernible. Only those provisions of the
New Hampshire underground storage
tank program for which approval has
been granted by EPA will be
incorporated by reference for
enforcement purposes.
To codify EPA's approval of New
Hampshire's underground storage tank
"program. EPA has added § 282.79 to title
40 of the CFR. Section 282.79
incorporates by reference for
enforcement purposes the State's
statutes and regulations. Section 282.79
also references the Attorney General's
Statement. Demonstration of Adequate
Enforcement Procedures, the Program
Description, and the Memorandum of
Agreement, which are approved as part
of the underground storage tank
program under subtitle I of RCRA.
The Agency retains the authority
under sections 9005 and 9006 of subtitle
I of RCRA, 42 U.S.C. 6991d and 6991e,
and other applicable statutory and
regulatory provisions to undertake
inspections and enforcement actions in
approved states. With respect to such an
enforcement action, the Agency will
rely on federal sanctions, federal
inspection authorities and federal
procedures, rather than the state
authorized analogs to these provisions.
Therefore, the approved New
Hampshire enforcement authorities will
not be incorporated by reference.
Section 282.79 lists those approved New
Hampshire authorities that fall into this
category.
The public also needs to be aware that
some provisions of the State's
underground storage tank program are
not part of the federally approved state
program. These non-approved
provisions are not part of the RCRA
subtitle I program because they are
"broader in scope" than subtitle I of
RCRA. See 40 CFR 281.12(a)(3)(ii). As a
result, state provisions which are
"broader in scope" than the federal
program are not incorporated by
reference for purposes of enforcement in
part 282. Section 282.79 simply lists for
reference and clarity the New
Hampshire statutory and regulatory
provisions which are "broader in scope"
than the federal program and which are
not. therefore, part of the approved
program being codified today. "Broader
in scope" provisions cannot be enforced
by EPA; the State, however, will
continue to enforce such provisions.
Certification Under the Regulatory
Flexibility Act
Pursuant to section 605(b) of the
Regulatory Flexibility Act, 5 U.S.C
605(b). the EPA hereby certifies that this
action will not have any economic
impact on any small entities. It
establishes a new part 282 in 40 CFR
and codifies the decision already made
to approve the New Hampshire
underground storage program and has
no separate effect on owners and
operators of underground storage tanks
-------
OSWER Directive 9650.15
Federal Register / Vol. 58, No. 210 / Tuesday, November 2, 1993 / Rules and Regulations 58625
or upon small entities. This rule.
therefore, does not require a regulatory
flexibility analysis.
Compliance With Executive Order
12291
This immediate final rule has been
submitted to OMB for review under
Executive Order 12291. The Agency has
determined that it is a non-major rule
because it will not 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, or
local government agencies, or
geographic regions; or (3) significant
adverse effects on competition,
employment, investment.- productivity.
innovation, or on the ability of United
States-based enterprises to compete
with foreign based enterprises in
domestic or export markets.
The Office of Management and Budget
has exempted individual state
codifications from the requirements of
section 3 of Executive Order 12291.
Paperwork Reduction Act
Under the Paperwork Reduction Act.
44 U.S.C. 3501 el seq., federal agencies
must consider the paperwork burden
imposed by any information request
contained in a proposed or final rule.
This rule will not impose any
information requirements upon the
regulated community.
List of Subjects in 40 CFR Part 282
Environmental protection. Hazardous
substances. Incorporation by reference.
Intergovernmental relations, State
program approval. Underground storage
tanks, Water pollution control.
Dated: OctoJier 13. 1993.
Carol M. Browner,
Administrator
For the reasons set forth in the
preamble, chapter I of title 40 of the
Code of Federal Regulations is amended
by adding a new part 282 to read as
follows:
PART 282-APPROVED UNDERGROUND
STORAGE TANK PROGRAMS
Subpart A—General Prevision*
Sec.
282.1 Purposa and scop*.
282.2 Incorporation by reference.
282.3-282.49 [Reserved)
Subput B—Approved State Programs
282.50-282.78 IReserved)
282.79-Nevr Hampshire.
282.80-282.10.S (Reserved)
Appendix A to Part 282—Slate
Requirement! Incorporated by Refereae* in
Part 282 of the Code of Federal Regulations
Authority: 42 U.S.C 6912. 6991C. 699ld.
and 6991o.
PART 282—APPROVED j
UNDERGROUND STORAGE TANK
PROGRAMS '
Subpart A—General Provisions
5 282.1 Purpose and scop*.
This part sets forth the applicable
state underground storage tank
programs under section 9004 of the
Resource Conservation and Recovery
Act (RCRA), 42 U.S.C. 6991c and 40
CFR part 281. "State" is defined in 42
U.S.C. 1004(31) as "any of the several
states, the District of Columbia, the
Commonwealth of Puerto Rico, the
Virgin Islands, Guam, American Samoa,
and the Commonwealth of the Northern
Mariana Islands."
$ 28&2 Incorporation by reference.
(a) Material listed as incorporated by
reference in part 282 was approved for
incorporation by reference by the
Director of the Federal Register in
accordance with 5 U.S.C 552(a) and 1
CFR part 51. Material is incorporated as
it exists on the date of the approval, and
notice of any change in the material will
be published In the Federal Register.
(b) Copies of materials incorporated
by reference may be inspected at the
Office of the Federal Register, 800 North
Capitol Street. NW.. suite 700.
Washington, DC Copies of materials
incorporated by reference may be
obtained or inspected at the EPA OUST
Docket. 401 M Street, SW., Washington.
DC 20460, and at the library of the
appropriate Regional Office listed
below:
(l) Region 1 (Connecticut, Maine,
Massachusetts. New Hampshire. Rhode
Island. Vermont): JFK Federal Building.
Boston. MA 02203-2211.
(2) Region 2 (New Jersey, N«w York,
Puerto Rico, Virgin Islands): Federal
Office Building. 26 Federal Plaza, New
York. NY 10278.
(3) Region 3 (Delaware. District of
Columbia. Maryland, Pennsylvania.
Virginia. West Virginia): 841 Chestnut
St. Building. Philadelphia. PA 19107.
(4) Region 4 (Alabama, Florida,
Georgia, Kentucky, Mississippi, North
Carolina. South Carolina, Tennessee):
345 Court land St.. NE. Atlanta, GA
30365.
(5) Region 5 (Illinois, Indiana,
Michigan, Minnesota, Ohio, Wisconsin):
77 West Jackson Boulevard. Chicago. IL
60604.
(6) Region 6 (Arkansas, Louisiana.
New Mexico. Oklahoma. Texas): 1445
Ross Avenue. Dallas. TX 7S202-2733.
(7) Region 7 (Iowa, Kansas, Missouri
Nebraska): 726 Minnesota Avenue.
Kansas City. KS 66101.
(8) Region 8 (Colorado. Montana,
North Dakota. South Dakota. Utah.
Wyoming): 999 18th Street. Denver. CO
80202-2405.
(9) Region 9 (Arizona. California.
Hawaii, Nevada, Guam, American
Samoa, Commonwealth of the Northern
Mariana Islands): 75 Hawthorne Street,
San Francisco, CA 94105.
(10) Region 10 (Alaska, Idaho, Oregon,
Washington): 1200 Sixth Avenue,
Seattle. WA 98101.
(c) For an informational listing of the
state and local requirements
incorporated in part 282, see appendix
A to this part.
§$282.3 through 282.49 [Reserved]
Subpart B—Approved State Programs
«282.50-282.78 [Reserved]
§ 282.79 New Hampshire.
(a) The State of New Hampshire is
approved to administer and enforce an
underground storage tank program in
lieu of the federal program under
subtitle I of the Resource Conservation
and Recovery Act of 1976 (RCRA). as
amended. 42 U.S.C. 6991 et seq. The
State's program, as administered by thd
New Hampshire Department of
Environmental Services, was approver
by EPA pursuant to 42 U.S.C. 6991c and
part 281 of this Chapter. EPA's approval
was effective on July 19. 1991.
(b) New Hampshire has primary
responsibility for enforcing its
underground storage tank program.
Hoxvever. EPA retains the authority to
exercise its enforcement authorities
under sections 9005 and 9006 of subtitle
I of RCRA. 42 U.S.C. 6991d and 69918.
as well as under other applicable
(statutory and regulatory provisions.
(c) To retain program approval. New
Hampshire must revise its approved
program to adopt changes to the federal
subtitle I program which make it more
stringent, in accordance with section
9004 of RCRA. 42 U.S.C 6991c, and 40
CFR part 281. subpart E. If New
Hampshire obtains approval for the
revised requirements pursuant to
section 9004 of RCRA. 42 U.S.C 6991C.
the newly approved statutory and
regulatory provisions will be added to
this section and notice of any change
will be published in the Federal
Register.
(d) New Hampshire has final approval
for the following elements submitted to
EPA in New Hampshire's program
application for final approval and
approved by EPA on June 19, 1991.
becoming effective on July 19. 1991.
-------
OSWER Directive 9650.15
58626 Federal Register / Vol. 53. No. 210 / Tuesday. November 2. 1993 / Rules and Regulations
Copies may be obtained from the
Underground Storage Tank Program.
New Hampshire Department of
Environmental Services, 6 Hazen Drive.N
Concord. NH 03302-0095.
(l) State statutes and regulations, (i)
The provisions cited in this paragraph
are incorporated by reference as part of
the underground storage tank program
under subtitle I of RCRA. 42 U.S.C. 6991
etseq.
(A) New Hampshire Statutory
Requirements Applicable to the
Underground Storage Tank Program.
1993.
(B) New Hampshire Regulatory
Requirements Applicable to the
Underground Storage Tank Program.
1993.
(ii) The following statutes and
regulations are part of the approved
state program, although not
incorporated by reference herein for
enforcement purposes.
(A) The statutory provisions includes
New Hampshire Revised Statutes
Annotated (Supplement 1968) Sections
146-C:9a. 146-QlO. and 146-QlOa; 147
A:l through 147-A.-13; 541-A:1 through
541-A.-10; 91-A:1 through 91-A:8.
(B) The regulatory provisions include:
New Hampshire Code of Administrative
Rules (1990) Part Env. C-602.08: Part
He-P 1905.
(iii) The following statutory and
regulatory provisions are broader in
scope than the federal program, are not
part of the approved program, and are
not Incorporated by reference herein for
enforcement purposes.
(A) The statutory provisions include:
New Hampshire Revised Statutes
Annotated (Supplement 1988) Section
146-Dl .XII. insofar as it refers to
heating oil for consumptive use on the
premises where stored.
(B) The regulatory provisions include:
New Hampshire Code of Administrative
Rules (1990) Sections Env-Ws 411.01
and 411.02, insofar as they refer to
hearing oil for consumptive use on the
premises where stored.
(2) Statement of legal authority, (i)
"Attorney General's Statement for Final
Approval", signed by the Attorney
General of New Hampshire on
November 1.1990, though not
incorporated by reference, is referenced
as part of the approved underground
storage tank program under subtitle I of
RCRA. 42 U.S.C 6991 et seq.
(ii) Letter from the Attorney General
of New Hampshire to EPA. November 1.
1990, though not incorporated by
reference, is referenced as part of the
approved underground storage tank
program under subtitle I of RCRA. 42
U.S.C 6991 et seq.
(3) Demonstration of procedures for
adequate enforcement. The
"Demonstration of Procedures For
Adequate Enforcement" submitted as
part of the original application In
December 1990, though not '
incorporated by reference, is referenced
as part of the approved underground
storage tank program under subtitle I of
RCRA. 42 U.S.C 6991 et seq.
(4) Program description. The program
description and any other material
submitted as part of the original
application in December 1990. though
not incorporated by reference, are
referenced as part of the approved
underground storage tank program
under subtitle I of RCRA. 42 U.S.C. 6991
et seq.
(5) Memorandum of agreement The
Memorandum of Agreement between
EPA Region I and the New Hampshire
Department of Environmental Services,
signed by the EPA Regional
Administrator on August 8.1991,
though not incorporated by reference, is
referenced as part of the approved
underground storage tank program
under subtitle I of RCRA. 42 U.S.C 6991
et seq.
§§282.80-282.105 [Reserved]
Appendix A to Part 282—State
Requirements Incorporated by
Reference in Part 282 of the Code of
Federal Regulations
The following Is an Informational listing of
the state requirements incorporated by
reference In pan 282 of the Code of Federal
Regulations:
Atew Hampshire
(a) The statutory provisions include New
Hampshire Revised Statutes Annotated 1955.
1990 Replacement Edition, and 1992
Cumulative Supplement. Chapter 146-C.
Underground Storage Facilities:
Section 146-C 1 Definition*, except for the
following word* in 146-Cl. XII.
"heating or."
Section 146-G2 Discharge* Prohibited.
Section 146-C3 Registration of
Underground Storage Facilities.
Section 146-O4 Underground Storage
Facility Permit Required-
Section 146-G5 Records Required:
Inspections.
Section 146-C6 Transfer of Ownership.
Section 146-C6-*. Exemption.
Section 146-G7 New Facilities.
Section 146-C8 Prohibition Against
Reusing Tanks.
Section 146-C9 Rukunaking.
Section 146-Gll Liability for Cleanup
Costs: Municipal Regulations.
Section 146-C 12 Federal Assistance and
Private Funds.
(b) The regulatory provisions include:
(1) New Hampshire Code of Administrative
Rules (November 1990) Part Env-Ws 411.
Control of Underground Storage Facilities:
Section 411.01 Purpose, except for the
following words, "heating oils."
Section 411.02 Applicability, except ft*
411.02(d).
Section 411.03 Definitions.
Section 411.04 Registration.
Section 411.05 Change in Use.
Section 411.06 Information Required for
Registration.
Section 411.07 Permit to Operate.
Section 411.08 Transfer of Facility
Ownership.
Section 411.10 Financial Responsibility.
Section 411.11 Inventory Monitoring.
Section 411.12 Regulated Substance
Transfers.
Section 411.13 Tightness Testing.
Section 411.14 Certification of Technicians
Performing Tightness Tests.
Section 411.15 Tightness Test Failures.
Section 411.16 Unusual Operating
Conditions.
Section 411.17 Temporary Closure.
Section 411.18 Permanent Closure.
Section 411.19 Prohibition Against Reusing
Tanks.
Section 411.20 Requirements for Approval
of Underground Storage Systems.
Section 411.21 Tank Standards for New
Underground Storage Systems.
Section 411.22 Piping Standards for New
Underground Storage Systems.
Section 411.23 Secondary Containment for
New Tanks.
Section 411.24 Secondary Containment for
New Pressurized Piping.
Section 411.25 Spill Containment and
Overfill P.-otection.
Section 411.26 Leak Monitoring for New
Tanks.
Section 411.27 Leak Monitoring for New
Underground Piping Systems.
Section 411.28 Installation of New
Underground Storage Systems.
Section 411.29 Release Detection for Tanks
Without Secondary Containment and
Leak Monitoring, except for the
following words in 411.29{a), "With the
exception of on premise use heating oil
systems."
Section 411.30 Release Detection for Piping,
Section 411.31 Operation of Leak
Monitoring Equipment
Section 411.32 Corrosion Protection for
Steel Tanks.
Section 411.33 Corrosion Protection for
Piping.
Section 411.34 Submission of Corrosion
Protection Plan.
Section 411.35 Reiining Steel Tanks.
Section 411.36 Repair of Fiberglass-
Reinforced Plastic Tanks.
Section 411.37 Repair and Replacement of
Piping Systems.
Section 411.38 Field Fabricated Tanks.
Section 411.39 Secondary Containment for
Hazardous Substance Systems.
Section 411.40 Waivers.
(2) New Hampshire Cod« of Administrative
Rules (November 1990) PartEnv-Wt 412.
Reporting and Remediation of Oil Discharges:
Section 412.01 Purpose.
Section 412.02 Applicability.
2-7
-------
OSWER Directive 9650.15
Federal Register / Vol. 58. No. 210 / Tuesday, November 2. 1993 / Rules and Regulations 58627
Section 412.03 Definitions. Section 412.09 Investigation Due to Section 412.12 Removal Action Plan.
Section 412.CJ4 Notification. Discovery of Discharge* from Unknown Section 412.13 Public Notification
Section 412.05 Initial Response Action. Source*. Section 412.14 Waivers
**!-°n2"ft7 p^S'^r1"*8-, Section 412.10 Site Investigation. |FR Doc, 9>
•££::>:!» iMtSSELtaL SeC"0""2-" Site .nvesti^ion Report. ^^
-------
OSWER Directive 9650.15
APPENDIX B: VERMONT CODIFICATION RULE ("STAND-ALONE" RULE)
/
-------
OSWER Directive 9650.15
ENVIRONMENTAL PROTECTION AGENCY /
!,•
40 CFR Fart 282
(FRL - )
Underground storage Tank Programs Approved state Program for
Vermont
AGENCY: Environmental Protection Agency (EPA).
ACTION: Immediate final rule.
SUMMARY: The Resource Conservation and Recovery Act of 1976, as
amended (RCRA), authorizes the U.S. Environmental Protection
Agency (EPA) to grant approval to states to operate their
underground storage tank programs in lieu of the federal program.
40 CFR part 282 codifies EPA's decision to approve state programs
and incorporates by reference those provisions of the state
statutes and regulations that will be subject to EPA's inspection
and enforcement authorities under sections 9005 and 9006 of RCRA
subtitle I and other applicable statutory and regulatory
provisions. This rule codifies in part 282 the prior approval of
Vermont's underground storage tank program and incorporates by
reference appropriate provisions of state statutes and
regulations.
DATES: This regulation is effective [insert date 60 days after
publication], unless EPA publishes a prior Federal Register
notice withdrawing this immediate final rule. All comments on
the codification of Vermont's underground storage tank program
*** DRAFT ***
-------
OSWER Directive 9650.15
must be received by the close of business [insert date 30 days
after publication]. The incorporation by reference of certain
public?itions listed in the regulations-' is approved by the
Director of the Federal Register , as of [insert date 60 days
after publication], in accordance with 5 U.S.C. 552(a).
ADDRESSES: comments may be mailed to the Docket Clerk (Docket
No. ), Underground Storage Tank Program, HPU-CAN7, U.S. EPA
Region 1, JFK Federal Building, Boston, MA 02203-2211. Comments
received by EPA may be inspected in the public docket, located in
the Waste Management Division Record Center, 90 Canal St.,
Boston, MA 02203 from 9 a.m. to 4 p.m., Monday through Friday,
excluding federal holidays.
FOR FURTHER INFORMATION CONTACT: Joan Coyle, Underground Storage
Tank Program, HPU-CAN7, U.S. EPA Region I, JFK Federal Building,
Boston, MA 02203-2211. Phone: (617) 573-9667.
SUPPLEMENTARY INFORMATION:
Background
Section 9004 of the Resource Conservation and Recovery Act
of 1976, as amended, (RCRA), 42 U.S.C. 6991c, allows the U.S.
Environmental Protection Agency to approve state underground
storage tank programs to operate in the state in lieu of the
federal underground storage tank program. EPA p\. -ished a
Federal Register document announcing its decision to grant
*** DRAFT *** 2
-------
OSWER Directive 9650.15
approval to Vermont. (57 FR 186, January 3, 1992). Approval was
effective on February 3, 1992. /
EPA codifies its approval of State programs in 40 CFR part
282 and incorporates by reference therein the state statutes and
regulations that will be subject to EPA's inspection and
enforcement authorities under sections 9005 and 9006 of subtitle
I of RCRA, 42 U.S.C. 699ld and 6991e, and other applicable
statutory and regulatory provisions.- Today's rulemaking codifies
EPA's approval of the Vermont underground storage tank program.
This codification reflects the state program in effect at the
time EPA granted Vermont approval under section 9004(a), 42
U.S.C. 6991c(a) for its underground storage tank program. Notice
and opportunity for comment were provided earlier on the Agency's
decision to approve the Vermont program, and EPA is not now
reopening that decision nor requesting comment on it.
This effort provides clear notice to the public of the scope
of the approved program in each state. By codifying the approved
Vermont program and by amending the Code of Federal Regulations
whenever a new or different set of requirements is approved in
Vermont, the status of federally approved requirements of the
Vermont program will be readily discernible. Only those
provisions of the Vermont underground storage tank program for
which approval has been granted by EPA will be incorporated by
reference for enforcement purposes.
*** DRAFT *** 3
-------
OSWER Directive 9650.15
To codify EPA's approval of Vermont's underground storage
tank program, EPA has added section 282^95 to title 40 of the
//'
CFR. flection 282.95 incorporates by reference for enforcement
purposes the State's statutes and regulations, section 282.95
also roferences the Attorney General's Statement, Demonstration
of Adequate Enforcement Procedures, the Program Description, and
the Memorandum of Agreement, which are approved as part of the
underground storage tank program under subtitle I of RCRA.
The Agency retains the authority under sections 9005 and
9006 of subtitle I of RCRA, 42 U.S.C. 6991d and 6991e, and other
applicable statutory and regulatory provisions to undertake
inspections and enforcement actions in approved states, with
respect to such an enforcement action, the Agency will rely on
federal sanctions, federal inspection authorities, and federal
procedures rather than the state authorized analogs to these
provisions. Therefore, the approved Vermont enforcement
authorities will not be incorporated.by reference. Section
282.95 lists those approved Vermont authorities that would fall
into this category.
The public also needs to be aware that some provisions of
the state's underground storage tank program are not part of the
federally approved state program. These non-approved provisions
are not part of the RCRA Subtitle I program because they are
"broader in scope" than Subtitle I of RCRA. See 40 CFR
*** DRAFT *** A
-------
OSWER Directive 9650.15
281.12(a)(3)(ii). As a result, state provisions which are
"broader in scope" than the federal program are not incorporated
f
by reference for purposes of enforcement in part 282. Section
282.95 of the codification simply lists for reference and clarity
the Vermont statutory and regulatory provisions which are
"broader in scope" than the federal program and which are not,
therefore, part of the approved program being codified today.
"Broader in scope" provisions cannot be enforced by EPA; the
State, however, will continue to enforce such provisions.
certification Under the Regulatory Flexibility Act
This rule codifies the decision already made (57 FR 186,
Jan. 3, 1992) to approve the Vermont underground storage tank
program and thus has no separate effect. Therefore, this rule
does not require a regulatory flexibility analysis. Thus,
pursuant to section 605(b) of the Regulatory Flexibility Act, 5
U.S.C. 605(b), I hereby certify that this rule will not have a
significant economic impact on a substantial number of small
entities.
Compliance With Executive Order 12866
The Office of Management and Budget has exempted this rule
from the requirements of Section 6 of Executive Order 12866.
Paperwork Reduction Act
*** DRAFT ***
-------
OSWER Directive
Approved State Program Fny Vermont— Pace 6 of 15
Under the Paperwork Reduction Act'i 44 U.S.C. 3501 et seg. ,
Federal agencies must consider the paperwork burden imposed by
any information request contained in a proposed or final rule.
This rule will not impose any information requirements upon the
regulated community.
List of Subjects in 40 CFR part 282
Environmental protection, Hazardous substances,
Incorporation by reference, Intergovernmental relations, state
program approval, Underground storage tanks, Water pollution
control .
Dated:
John DeViliars,
Regional Administrator
*** DRAFT ***
-------
OSWER Directive 9650.15
For the reasons set forth in the preamble, 40 CFR Part 282 is
proposed to be amended as follows: I
i'
PART 282 - APPROVED UNDERGROUND STORAGE TANK PROGRAMS
1. The authority citation for part 282 continues to read as
follows:
Authority: 42 U.S.C. 6912, 6991c, 6991d, and 6991e.
2. Subpart B is amended by adding § 282.95 to read as follows:
Subpart B - Approved State Programs
§282.95 - Vermont State-Administered Program.
(a) The State of Vermont is approved to administer and
enforce an underground storage tank program in lieu of the
federal program under Subtitle I of the Resource Conservation and
Recovery Act of 1976 (RCRA) , as amended, 42 U.S.C. 6991 efr seq.
The State's program, as administered .by the Vermont Department of
Environmental Conservation, was approved by EPA pursuant to 42
U.S.C. 6991c and part 281 of this Chapter. EPA approved the
Vermont program on January 3, 1992 and it was effective on
February 3, 1992.
(b) Vermont has primary responsibility for enforcing its
underground storage tank program. However, EPA retains the
authority to exercise its inspection and enforcement authorities
*** DRAFT *** 7
-------
OSWER Directive 9650.15
under sections 9005 and 9006 of subtitle I of RCRA, 42 U.S.C.
6991d and 6991e, as well as under other; statutory and regulatory
t
provisions.
(c) To retain program approval, Vermont must revise its
approved program to adopt new changes to the federal subtitle I
program which make it more stringent, in accordance with section
9004 of: RCRA, 42 U.S.C. 6991c, and 40 CFR part 281, subpart E.
If Vermont obtains approval-- for~th& revised requirements pursuant
to section 9004 of RCRA, 42 U.S.C. 6991c, the newly approved
statutory and regulatory provisions will be added to this subpart
and notice of any change will be published in the Federal
Register.
(d) Vermont has final approval for the following elements
submitted to EPA in Vermont's program application for final
approval and approved by EPA on January 3, 1992. Copies may be
obtained from .the.Underground-Storage Tank Program, Vermont
Department of Environmental Conservation, 103 South Main Street,
West Building, Waterbury, VT 05671-0404.
(1) State statutes and regulations. (i) The provisions
cited in this paragraph are incorporated by reference as part of
the underground storage tank program under subtitle I of RCRA, 42
U.S.C. 6991 e± seq.
*** DRAFT *** 8
•38
-------
OSWER Directive 9650.15 .
(A) Vermont Statutory Requirements Applicable to the
Underground Storage Tank/Program, 1994.
(B) Vermont Regulatory Requirements Applicable to the
Underground Storage Tank Program, 1994.
(ii) The following statutes and regulations are part of the
approved state program, although not incorporated by
reference "herein- "for ^enrorcement purposes.
(A) The statutory provisions include: Title 10
Vermont Statutes Annotated, Chapter 59, Sections
1932 through 1935.
(B) The regulatory provisions include: Vermont
Environmental Protection Rules, Chapter 8,
Sections 104 through 106.
(iii) The following statutory and regulatory provisions are
broader in scope than the federal program, are not part
of the approved program, and are not incorporated by
reference herein for enforcement purposes.
(A) Title 10 Vermont Statutes Annotated, Chapter 59,
Section 1929, insofar as it refers to registration
requirements for tanks greater than 1,100 gallons
*** DRAFT *** 9
-------
OSWER Directive 9650.15
containing heating oil consumed on the premises
where stored. ,;
//
(B) Vermont Environmental Protection Rules, Chapter 8,
Section 301, registration requirements, and
Section 605(2), permanent closure requirements,
insofar as they refer to tanks greater than 1,100
gallons containing heating oil consumed on the
premises where* stored^
G!) Statement of legal authority. (i) "Attorney
General's Statement for Final Approval", signed by the Attorney
Genera:, of Vermont on April 11, 1991, though not incorporated by
reference, is referenced as part of the approved underground
storage; tank program under Subtitle I of RCRA, 42 U.S.C. 6991
et seqr
(:.i) Letter, from the Attorney General of Vermont to EPA,
April 11, 1991, though not incorporated by reference,
is referenced as part of the approved underground
storage tank program under Subtitle I of RCRA, 42
U.S.C. 6991 g£ seq.
P) Demonstration of procedures for adequate enforcement.
The "Demonstration of Procedures for Adequate Enforcement"
submitted as part of the original application in May 1991, though
*** DRAFT *** 10
-------
OSWER Directive 9650.15
not incorporated by reference, is referenced as part of the
approved underground storage tank program under subtitle I of
RCRA, 42 U.S.C. 6991 et sea.
(4) Program Description. The program description and any
other material submitted as part of the original application in
May 1991, though not incorporated by reference, are referenced as
part of the approved underground storage tank program under
Subtitle I of RCRA, 42 U.S.C: 6991 e£ seq.
(5) Memorandum of Agreement. The Memorandum of Agreement
between EPA Region I and the Vermont Department of Environmental
Conservation, signed by the EPA Regional Administrator on March
2, 1992, though not incorporated by reference, is referenced as
part of the approved underground storage tank program under
subtitle I of RCRA, 42 U.S.C. 6991 et sea.
3. Appendix A .to Part..282- is amended, by adding in alphabetical
order "Vermont" and its listing.
*** DRAFT *** 11
-------
. OSWER Directive 9650.15
APPENDIX A TO PART 282 - state Requirements Incorporated by
Reference in part 282 of the code of Federal Regulations
*****
Vermont
(a) The statutory provisions include Vermont Statutes Annotated,
1992, Chapter 59. Underground Liquid Storage Tanks:
Section 1921
Stiction I922r
Section 1923
Section 1924
Saction 1925
Section 1926
Section 1927
Section 1928
Section 193a
Section 1931
Section 1936
Section 1938
Section 1939
Section 1940
Section 1941
Purpose.
Definitions;
Notice of New or Existing Underground
Storage Tank.
Integrity Report.
Notice in Land Records.
Unused and Abandoned Tanks.
Regulation of Category One Tanks.
Regulation of Large Farm and Residential
Motor Fuel Tanks.
Implementation; Coordination.
Inspections; Right of Entry;
Information.
Licensure of Tank Inspectors.
Underground storage Tank Trust Fund.
Risk Retention Pool.
Underground Storage Tank Incentive
Program.
Petroleum Cleanup Fund.
*** DRAFT ***
12
9-2.
-------
OSWER Directive 9650.15
Section 1942 Petroleum Distributor Licensing Fee.
Section 1943 Petroleum Tank/Assessment.
Section 1944 Underground Storage Tank Loan Assistance
Program.
(b) The regulatory provisions include State of Vermont, Agency
of Natural Resources, Underground Storage Tank Regulations,
February 1, 1991:
(1) Subchapter 1: General.
Section 8-101 Purpose.
Section 8-102 Applicability.
Section 8-103 Severability.
(2) Subchapter 2: Definitions.
Section 8-201 Definitions.
(3) Subchapter 3: Notification and Permits.
Section 8-301 Notification, except for the
following words in section 8-
301(1), "Notification is also
required for any tank used
exclusively for on-premises heating
that is greater than 1100 gallons
in size."
Section 8-302 Permits.
Section 8-303 Financial Responsibility
Requirements.
*** DRAFT *** 13
-------
OSWER Directive 9650.15
Section 8-304 Petroleum Tank Assessment.
Section 8-305 innovative Technology.
//
(4) Subchapter 4: Minimum Standards for New and
Replacements Tanks and Piping.
Section 8-401 General Requirements.
Section 8-402 Tanks - Design and Manufacturing
Standards.
Section 8-403 Tanks - Secondary Containment.
Section 8-404 Tanks•- Release Detection.
Section 8-405 Piping - Design and Construction.
Section 8-406 Compatibility.
Section 8-407 Spill and Overfill Prevention
Equipment.
Section 8-408 Installation.
(!•) Subchapter 5: Minimum Operating Standards for Existing
Tanks and Piping.
Section 8-501 General Requirements.
Section 8-502... Spill and Overfill Prevention.
Section 8-503 Corrosion Protection of Metallic
Components.
Section 8-504 Release Detection.
Section 8-505 Compatibility.
Section 8-506 Repairs.
(Ci) Subchapter 6: Reporting, Investigation, Corrective
Action and UST Closure.
*** DRAFT *** 14
-------
OSWER Directive 9650.15
Section 8-601 General Requirement, except for the
following} words, "Heating oil tanks
greater than 1100 gallons capacity
used exclusively for on-premise
heating purposes are subject to the
requirements for permanent closure
in accordance with subsection 8-
605(2)."
Section 8-60? Reporting.
Section 8-603 Release Investigation and
Confirmation.
Section 8-604 Corrective Action.
Section 8-605 Closure of USTs.
Appendix A Groundwater Monitoring Requirements.
Appendix B Inventory Monitoring Procedures.
Appendix C Procedures for Manual Tank Gauging.
Appendix D Installation Requirements Applicable to New and
Replacement UST Systems.
BILLING CODE (insert billing code number)
*** DRAFT *** 15
-------
- OSWER Directive 9650.15
APPENDIX C: FEDERAL REGISTER DOCUMENT REQUIREMENTS
-------
THE DOCUMENT
• Bond paper or legible • Margins as shown.
photocopy. • Double space text.
• 8>V xll*
• Typed name and title.
• Ink signature.
8l/a"
• Three originals or one
original and two certi-
fied copies.
r
Onginal
[Billing Coda 9999-90)
NATIONAL ARCHIVES AND RECORDS ADMINISTRATION
36 CFR Part 1200
Official Seal*
AGENCY: ' ' '
ACTION: ' ' '
SUMMARY: ' ' '
DATES: ' ' '
ADDRESSES: ' ' '
FOR FURTHER INFORMATION CONTACT: '
SUPPLEMENTARY INFORMATION: ' ' '
1*
Typed name
Title
r
Copy
t
certified to be a true
copy of the original doaunrat
Copy
certified to b« a true
copy of tha orifinal documant
62
-------
'f
OSWER Directive 9650.15
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON oc 20-560 Margaret Schneider
OSWER
^ OS-110 Rm. SE306K
MAY 1 7
MEMORANDUM
AOMINISTSATQP
SUBJECT: Identifying Federal Register Documents for Signature
TO: Assistant Administrators
General Counsel
Inspector General
Associate Administrators
Regional Administrators
Staff Office Directors
Recently a number of Federal Register documents have been
submitted for signature with a signature page that displays only a
signature block. Although the Office of Executive Secretariat (OEX)
normally returns such documents for correction, there have been
several that were so urgent that they bypassed the normal quality
control channels. It is obviously not in the Agency's interest to
have unidentified pages containing only the signature.
I am therefore implementing a new Agencywide policy that will
solve this potentially serious problem. Effective immediately, all
Federal Register documents for signature that will be transmitted to
the Federal Register Office should contain the following information
at th« top of the signature page, regardless of whether the page has
text ia addition to the signature line:
IDENTIFICATION OF DOCUMENT: (Insert document title from ie
Rule/Notice or CIP/SIP. ale j with
the page number)
EXAMPLE:
Please be sure that the title is specific so that it adequately
identifies the document to which it refers.
Both th« Office of Policy, Planning and Evaluation (OPPE) and OEX
will check each package to ensure the proper signature page
identification. For delegated signatures, the Federal Register
Liaison in OPPE will assure this information is in place. Documents
without appropriate identification will be returned for revision.
If you have questions regarding this procedure, please contact
Jane Stewart, chief of the Regulatory Development Branch, OPPE, at
(202) 260-6387.
Carol
Browner
So
-------
OSWER Directive 9650.15
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
'« o-O'^
/
JAi! 1 3 ft j
OFFCEOF
POLICY.PIANNING AND EVALUATION
MEMORANDUM
SUBJECT: Availability of Federal Register Typesetting Discount
for Disk Submission
FROM: Jane Stewart, Chie.
Regulatory Development Branch
v
TO: Steering Committee Representatives
Regional Regulatory Contacts
Funds Certifying Officers
Beginning January 1, 1993, the Government Printing Office
(GPO) is offering a new cost saving opportunity to Federal
Agencies. All Agency Federal Register documents submitted with
disks to the Office of the Federal Register prepared using either
WordPerfect or ASCII formats will qualify for a 20% discount on
the page rate for published text. This will reduce our cost from
$125 per column ($375 per page) to $100 per column ($300 per
page). This can amount to a substantial cost savings for a
lengthy document.
In order to receive the discount, offices submitting a disk
must provide the following information:
1. A disk (preferably a 3.5 high density) with a label
including the Agency, Filename and Format, such as':
WordPerfect or A5CTT7 Ir~yeu~ wishrtoTiave the disk
returned to your office submit a self addressed EPA
envelope and state on the disk label that the it should
be returned to EPA.
2. To ensure a discount all documents must contain the
appropriate Billing Code at the end of the document to
read as follows:
BILLING CODE 6560-50-P (WordPerfect disk)*
BILLING CODE 6560-50-U (.Unformatted, ASCII)
3. The Federal Register Typesetting Request form should
include, in the blank space at the bottom, the
following information:
Printed on Recycled Paper
SI
-------
OSWER Directive 9650.15
"This document was submitted with? a disk and is
eligible for the 20% typesetting discount."
3. A memo (example attached) should be submitted with the disk
verifying that the hard copy matches the disk. An original
and three hard copies are still required by OFR. The memo
verifying the disk should be from the person most familiar
with the document, such as the program office contact, in
most cases it is not the signing official who can verify the
document.
If substantial formatting changes are necessary to ensure
Federal Register requirements are met the disk will be returned
to the program office contact for the revisions to be made to the
disk. If minor changes are necessary these changes will be made
by the Federal Register Liaison in OPPE's Regulatory Development
Branch (RDB).
Additionally, the GPO will provide WordPerfect templates for
common types of Federal Register documents. Offices which submit
a disk using the template will increase their discount rate to
25% and a $94 column rate ($282 per page). The ROB is currently
exploring the use of templates with GPO, and we will advise you
on their availability and use as soon as we have clear guidance
and instructions from GPO. In the meantime, you may take
advantage of the 20% discount offered by simply submitting
documents on WordPerfect or ASCII.
If you have questions or want further information, please
contact Vickie Reed in RDB at 202-260-7204.
Attachment
cc: Regional OAR Division Directors
Regional OSWER Division Directors
Regional OW Division Directors
-T2-
-------
'• OSWER Directive 9650.15
APPENDIX D: GUIDANCE ON PREPARING AND SUBMITTING FEDERAL
REGISTER DOCUMENTS
-------
OSWER Directive 9650.15
GUIDANCE ON PREPARING PEPgRALyaEGISTER NOTICES
'/
This appendix provides guidance on publishing a document in the Federal
Register. In addition, the appendix contains model Federal Register notices
for State program approval. These models have been prepared in Federal
Register format for your convenience.
In preparing a document for publication in the Federal Register, the
author(s) must observe several important formatting and editing
specifications. The following sections outline and explain the most important
of these document guidelines.
I. Federal Register Checklist
Each Federal Register package must include a completed Federal Register
checklist. This two-page form consists of "yes" or "no" questions concerning
the document's compliance with the following format and content requirements:
Billing code information;
Headings (e.g., Agency name, CFR Part, subject);
Preamble requirements (e.g., summary of proposed action,
addresses for public comment, supplementary analysis);
Words of issuance;
Regulatory text;
Signature; and
Consecutive page numbers.
All submissions to the Federal Register must also fulfill the following
lay-out specifications:
Bond paper or legible photocopy (8-1/2* x 11");
Single-sided copies;
One-inch margins from top, bottom, and right sides; 1-1/2-
inch margin from left side;
Double-spaced text;
Typed naae and title of signing official, ink signature;
Deliver three originals with ink signatures; the signature
may not appear on a page by itself; and
Pag* numbers must be consecutive and appear at the bottom of
the page.
A sample Federal Register checklist is included in this appendix.
-------
OSWER Directive 9650.15
II. Typesetting Request /
This one-page form (EPA Form 2340-15) includes the financial data and
the approximate cost of typesetting a document submitted for publication in
the Federal Re'gister. The Management Division Director may require certain
signatures on this form. Data on the following items are also required:
Title of rule;
Number of manuscript pages;
Number of columns;
Estimated cost; and
Financial data.
The approximate cost is $125.00 per column and $375.00 per page in the
Federal Register. A sample typesetting request form is included in this
appendix along with instructions for completing the form.
III. Eirpedlted Printing Request
If a document must be published promptly in order to meet statutory
deadlines, the author(s) may submit an expedited printing request. This form
is a letter requesting publication of the document at the earliest possible
date or prior to a certain date, and must also justify the reason for the
request. The workgroup chairman should submit the letter to the Director of
the Executive Agencies Division at the Office of the Federal Register (Attn:
Martha Girard; The Office of the Federal Register; National Archives and
Records Services, GSA; Washington, D.C. 20408; (202) 523-5240).
-------
OSWER Directive 9650.15
REGISTER CHBCirT,TTr
NQTI^g, Ppnpnc?ED AND PT^AL RTT|,R nnrrTMflNTq
[Attach to all documents that are to be published in the Federa\
Register. Only complete the section thafc applies to the document to be
published. All of these questions can be answered through the Federal
Register Document Drafting Handbook (DDH)].
SECTION ONBt NOTICE DOCUMENTS
(This section applies to Notice of public hearings, meetings and/or
workshops, Correction Notices, Notices extending comment periods,
and Notices of Availability)
Yes No
i
I
1. Is your document classified correctly? If it is !
rule related, or a technical amendment it may be !
considered a proposed or final rule. (DDH 5-7) '
2. Does you document include the required preamble j
elements (optional for notices): Agency Action; i
Summary; Dates; Addresses; For Further Information I
Contact; Supplementary Information? (DDH 51-55) I
i
3. Does your summary answer the three required j
questions: What you're doing, Why you're doing
it, and the Intended Effect of your action? !
(DDH 53)
4. Is the signer's name and title printed below the <
signature? (DDH 61) \
5. Are the pages numbered consecutively?
6. Are the copies sharp, clear, and legible, especially
illustrations?
7. Are you submitting the original plus 3 copies? Do
your copies match? (DDH 62)
SIGNED
-------
OSWER Directive 9650.15
TWO t PROPOSED AND FINAL RULES
l. Does your document include the required
preamble elements: AGENCY, ACTION/; SUMMARY,
DATES, ADDRESSES, FOR FURTHER INFORMATION
CONTACT, .SUPPLEMENTARY INFORMATION? (DDH 12-18)
2. Does your Summary answer the three required
questions: What you're doing, Why you're doing
it, and the Intended Effect of your action? (DDH 14)
3 . Have you included your List of, Subjects (Thesaurus
Terms) at the end of Supplementary Information? (DDH 18)
4 . Is your Amendatory language clear and correctly
worded? (DDH 25-26)
5. Is your . Authority Citation your first amendment? (DDH 19)
6 . Did you use the most recent version of the CFR and
LSA? (DDH 26)
7. Have you included the Table of Contents for each
entire CFR part or subpart that you are adding or
amending? Do headings in the regulatory text match
those in the table of contents? (DDH 36)
8. Are all CFR paragraphs given a letter or number in
correct sequence? (a), (1), (i) , (A) (DDH 30)
9. Is text of regulation displayed correctly (include
all section headings, and place the asterisks
appropriately? (DDH 30)
10. Are the pages numbered consecutively?
11. Are your copies sharp, clear, and legible, especially
illustrations?
12. Is there a new OMB control number? If so, is it
mentioned in the amendatory language and set out
correctly? (DDH 36)
13. Is the signer's name and title printed below the
signature? (DDH 61)
14. Are you preparing a proposed and final rule? They
cannot be prepared in the same document; they must be
separate documents. (DDH 7)
15. Are you submitting the original plus 3 copies? Do
your copies match? (DDH 62)
SIGNED
SB
-------
OSWER Directive 9650.15
TYPESETTING REQUEST FORM
/
Item 1 - fill in the title of the Federal Register submission.
Item 2 - Include the type of submission (e.g., proposed rule, final rule).
Item 3 - Obtain number from the Agency Printing Officer. The number is
supplied by the Government Printing Office.
Item U - To be completed by the Office of the Federal Register.
Item 5 - To be completed by the Office of the Federal Register.
Item 6 - To be completed by the Office of the Federal Register.
Item 7 - Fill in the number of pages of your regulatory document.
Item 8 - To estimate the columns: two pages of double spaced text yields one
Federal Register column.
Item 9 - To estimate the cost: $125.00 per Federal Register column;
$375.00 per Federal Register page;
. A table or graph is considered as one page.
Item 10 - Financial data should be supplied by the committment clerk in OUST.
This data must include the document control number; the account code; the
object class code; and the dollar amount.
Item 11 - The program manager's signature.
Item 12 - The Federal Register designee's signature. The Federal Register
designee is located in the Office of the Assistant Administrator for OSWER.
Item 13 - The comnitaent clerk for OUST (or the committment clerk for the
office paying for the publication) should sign hert.
OSWER Requirements;
r-
The Offiet Director and the Assistant Administrator art also required to sign
all Federal Register typesetting requests.
-------
OSWEK Directive
FEDERAL REGISTER TYPESETTING REQUEST
j • 9. 10. 11. '7 i"0 >] • §•» •
J eo»» ««mo«f 7 «"O wo""* —i
mt HQ. *MOr«i •tgitif 0" st
2. SUiMlTTlNC ACT I VIT'
Ol«t« .t«m( ]. 4. J
!O
to
4. OMN
f. •«. LI NO COOt
«. POUWAMOie TO CfA.
IOATI
O'
t. IJTlMATtO NUMtIM 0*
eott
10. FINANCIAL DATA
(•I
US!
OOCUMIMT
CONTMOb NO.
(*)
ACCOUNT MO.
o*jicr
CLAtt
(•I
AMOUMT l
OOkkAHS
crj
a a
1J|13
14|tt 1C 17 IH lit I JO
91139IU MUM JTIM
4*IMlS1 I92>U'S4'SS S4
1 : I
10
I
el
i I
I
11. SlQNATUMI. (•)
13. SIONATUM: (•) •lOIIIAI. MIOItTtM OCSIOMM
tt) OATI
(•) TILI^NONI NUMMN
IK) OATI
(•I TILIPMONI NUMMM
3. *UNOS ANt AVAICAtCl 1C
This document was submitted with a disk and is eligible for the 20% typesetting
discount.
OUST Offlet Dlrtctor
OSWER Assistant Adainistrator
-------
underground Storage Tanks OS-420UF
703-308-8863
FOAM PUBLICATION. OR ISSUANCE NO.. AND TITLE OR DESCRIPTION
Federal Register Photo-prints (TVosets) Estimated Cost $28.00 ($14/set)
Uhderground Storage Tank Program; Approves State Program for New Hampshire
8. QUANTITY A/HO *Nn*t»*tr9**ll
2 Seta
t.« OVERTIME AUTHORIZED TO
MffT OCSWCO DCUVtKY OATt?
~ a
MO
7. DESIRED DELIVERY DATI
COMPOSITION AND PROOF
a. NUMBER Of PAGES SUBMITTED
MANUSCmPT
4
B.TYPI
12. ACTUAL IMAGE SBC
13. PROOF
D» D,
13a. GALLEY
N*Sm
136. PAGE
13c SEND PROOF TO
No.S«a HeUMvi
PKEStWOUK AND JINDEHY
14. NUMBER Of PIECES SUBMITTED
•.CAMERA COPY
d ILLUSTRATIONS
b. NEGATIVES
0) HALFTONE
e. OVERLAYS
(2)UNECUT
OHM«»U*
(3) OTHER
H
1 B. TEXT PAPER (Gr**. Color,
IB. COLOR INK
20.M*rgin«AfW
Trtm
21.00VER ST
22. COLOR INK
23. PERFORATEy^CORE PMM ID To»A^I.
OTHER:
.iA.fremTop/Lflli
31.APPROPRMTION
683/40108
28. ADDRESSING AND MAIUNO
tew
Nriwt BM BMd hi
D MMtn« Km D Buk MMb^ O Ad*min« Only
c OTHER MAILING tA/Ucft Ate* or feting*
». ALLOTMENT NO.
3BPC88F003
32.0CNNO.
TS0131
30. RETURN NEGATIVES. PLATES. COPY TO:
Lela Hagan-Bljou OS-420WF
703-308-8863
33- RESTRKTIONS ON OUANTnY(Cft»«* <*•«*
OlntemelUMOnlv Otaprint
D
II* en Mt front
34. DEUVEHTO;
38. APPROVED BY
Lela Hagan-Bij
•.QUANTITY
ROOM BLDG
36.1 concur in the publication of the attached material and certify that h complies with Agency Order No. 2200.4A
•.SIGNATURE
6.AA/RAFOR
tOATE
37. M this materiel te to to forwarded to the Office of External Affair*. Indfctte which of the foflowfno apply:
LJ HM poaey tmoflcrtenc *• p»r «tuch«d •*tUi*aon I—1
3B. APPROVED BY
. FOR THE OFFICE OF EXTERNAL AFFAIRS (Sfgn«unf
b.OATE
EPA Fo*m 2340-1 (4-B4| PUBUCAT10N REVIEW RECORD AND PRINTING REQUEST
Replace* EPA Forms T-60.2340-6. end the previous edition of 2340-1, which ere obsolete.
(,1
-------
OSWER Directive 9650.15
APPENDIX E: SAMPLE TRANSMITTAL LETTERS TO THE OFFICE OF THE
FEDERAL REGISTER
n
-------
OSWER Directive 9650.15
Martha L. Girard, Director
Office of the Federal Register
National Archives and Records Administration
Washington, DC 20408
Dear Ms. Girard:
Enclosed is a package containing a Federal Register notice
to codify approval of the underground storage tank program of the
State of Vermont. Also enclosed is a copy of the material to be
incorporated by reference. Our office requests that the Director
incorporate by reference the enclosed statutes and regulations of
the State of Vermont into 40 CFR Section 282.95. This
incorporation by reference will substantially reduce the volume
of material that will need to be published in the Federal
Register.
These materials are available to the public and copies may
be inspected at the U.S. EPA Region I Library, 1 Congress Street,
llth floor, Boston, MA 02203, the EPA OUST Docket at 401 M
Street, SW, Washington, DC 20460, the Office of the Federal
Register, 800 North Capitol Street, NW., Suite 700, Washington,
DC, or at the Underground Storage Tank Program, Vermont
Department of Environmental Conservation, 103 South Main Street,
West Building, Waterbury, VT 05676.
Any questions or comments regarding this incorporation by
reference should be addressed to Joan Coyle, U.S. EPA Region I,
(617) 573-9667.
Sincerely yours,
[Insert Name]
Division Director
Division of Solid Waste
U.S. EPA Region I
JFK Federal Building
Boston, MA 02203-2211
Enclosures
-------
OSWER Directive 9650.15
Ms. Martha Girard, Director
Office of the Federal Register
National Archives and Records Administration
Washington, DC 20408
Dear Mr*. Girard:
This letter is to certify that the disk furnished with
Underground Storage Tank Program; Approved State Program For New
Hampshire, FRL- , is a true copy of the original signed
document, and it should be used by GPO in preparing the document
for publication.
Thank you,
Jerry Parker
Environmental Protection Specialist
Office of Underground Storage Tanks
Phone (703) 308-8884
-------
OSWER Directive 9650.15
APPENDIX P - LIST OP CPR SECTIONS RESERVED FOR APPROVED
STATE PROGRAMS
-------
OSWER Directive 9650.15
Alabama - S282.50
Alaska - §282.51
Arizona - S282.52
Arkansas - §282.53
California - §282.54
Colorado - S282.55
Connecticut - §282.56
Delaware - §282.57
District of Columbia - §282.58
Florida - §282.59
Georgia - §282.60
Hawaii - §282.61
Idaho - §282.62
Illinois - §282.63
Indiana - §282.64
Iowa - §282.65
Kansas - §282.66
Kentucky - §282.67
Louisiana - §282.68
Maine - §282.69
Maryland - §282.70
Massachusetts - §282.71
Michigan - §282.72
Minnesota - §282.73
Mississippi - §282.74
Missouri - §282.75
Montana - §282.76
Nebraska - §282.77
-------
OSWER Directive 9650.15
Nevada - §282.78
New Hampshire - §282.79
//
New Jersey - §282.80 ,»'
New Mexico - §282.81
New York - §282.82
North Carolina - §282.83
North Dakota - §282.84
Ohio - §282.85
Oklahoma - §282.86
Oregon - §282.87
Pennsylvania - §282.88
Rhode Island - §282.89
South Carolina - §282.90
South Dakota - §282.91
Tennessee - §282.92
Texas - §282.93
Utah - §282.94
Vermont- §282.95
Virginia - §282.96
Washington - §282.97
West Virginia - §282.98
Wisconsin - §282.99
Wyoming - §282.100
Guam - §282.101
Puerto Rico - §282.102
Virgin Islands - §282.103
American Samoa - §282.104
Commonwealth of the Northern Mariana Islands - §282.105
-------
OSWER Directive 9650.15
APPENDIX 6: SAMPLE INCORPORATION BY REFERENCE BINDERS (NEW
HAMPSHIRE) ,
-------
OSWER Directive 9650.15
NEW HAMPSHIRE STATUTORY REQUIREMENTS
APPLICABLE TO THE UNDERGROUND STORAGE TANK PROGRAM, 1993
40 CFR 283.79
7:
-------
OSWER Directive 9650.15
TABLE OF CONTENTS
Statutory Provisions
H«v Ha»p«bire Revised statutes Annotated 1955, 1990 Replacement
Edition, and 1992 Cumulative Supplement, Chapter 146-C,
underground Storage Facilities
146-C:1 Definitions, except for the following words
in 146-C:i. XII, "heating or." 4, 17
146-C:2 Discharges Prohibited 6, 18
146-C:3 Registration of Underground Storage
Facilities. 6
146-C:4 Underground Storage Facility Permit Required... 8, 19
146-C:5 Records Required; Inspections 8, 20
146-C:6 Transfer of Ownership 9, 21
146-C: 6a Exemption 9
146-C:7 New Facilities 10, 21
146-C:8 Prohibition Against Reusing Tanks 10, 22
146-C:9 Rulemaking 10, 22
146-C:11 Liability for Cleanup Costs; Municipal
Regulations 13, 24
146-C: 12 Federal Assistance and Private Funds 14
-------
OSWER Directive 9650.15
NEW HAMPSHIRE
REVISED STATUTES
.ANNOTATED -
1955
1990 REPLACEMENT EDITION
Titles 10, 11
Chapters 125-152
PUBLISHED BY
PUBLISHING COMPANY
A DIVISION OF BUTTERWORTH LEGAL PUBLISHERS
ORFORD. NEW HAMPSHIRE 03777
77
-------
OSWER Directive 9650.15
CHAPTER
UNDERGROUND STORAGE FACILITIES
146-C:!
146-C:2
146-CJ
146-C4
146-C:5
146-C.-6
146-C:6-a
146-C:?
Definition!.
Discharges Prohibited.
Registration of Underground
Storage Facilities.
Underground Storage Facility
Permit Required.
Record* Required: Inspections.
Transfer of Ownership.
Exemption. ~
New Facilities.
146-C :3
Prohibition Against Reusing
Tanks.
Rulemaking.
Orders: Injunctions.
Penalty.
146-C:10-a Administrative Fines.
146-C:11 Liability for Cleanup Costs: Mu-
nicipal Regulations.
146-€:12 Federal Assistance and Private
Funds.
146-C.-9
146-C:9-a
146-C:10
CROSS REFERENCES
Oil discharge and disposal cleanup fund, see RSA 146-D.
Oil spillage in public waters, set RSA 146-A.
Petroleum inventories reporting, see RSA 339-D.
Sale of liquid fuels, see RSA 339-B.
LIBRARY REFERENCES
New Hampshire Code of Administrative
Rules
Rules of the Water Supply and Pollution
Control Commission. Ws 411.01 et seq.. New
Hampshire Code of Administrative Rules
Annotated.
West Key Numbtr
Health and Environment *• 25.5(5.5).
CJS
Health and Environment f 131.
ALR
Gasoline or other fuel storage tanks as
nuisance. 50 ALR3d 209.
Liability for pollution of subterranean
waters. 38 ALRZd 1265.
Maintainability in state court of class
action for relief against air and water pollu-
tion. 47 ALRSd 769.
Right to maintain action to enjoin public
nuisance as affected by existence of pollution
control agency. 60 ALRSd 668.
Standing to sue for violation of state
environmental regulatory statute. 66 ALR4th
685.
Validity and construction of anti-water
pollution statutes and ordinances. 32 ALR2d
215.
146-G:1 Definition!. In this chapter
I. "Division" means the New Hampshire division of water supply and
pollution control.
II. "Discharge* means the release or addition of any liquid to land.
groundwaters or surface waters.
HI. "Disposal" means deposit, discharge, injection, dumping, spilling,
leaking, leaching, or placing of oil into or on any land, groundwater or
surface water.
IV. "Existing facility" means a facility the construction or installation
of which began prior to September 17, 1985.
V. "Facility" means a system of tanks, pipes, pumps, vaults, fixed
containers, and appurtenant structures, singly or in any combination,
which are used or designed to be used for the storage, transmission, or
dispensing of oil or petroleum liquids, and which are within the size,
capacity, and other specifications prescribed by rules adopted by the
division pursuant to RSA 146-C:9, VI.
405
-------
OSWER Directive 9650.15
I,
146-C:1 PUBLIC HEALTH
VI. "Failure" means a condition which may or does allow the uncon-
trolled passage of liquid into or out of a facility, and includes, but is not
. limited to, a discharge to the waters of the state without a permit issued
pursuant to RSA 146-0:4.
VII. "Groundwaters" means all areas below the top of the water table,
including aquifers, wells, and other sources of groundwater.
VIII. "Life expectancy" means the time period within which a failure
is not expected to occur as determined by the division.
IX. "Liquid" means oil and petroleum liquids.
X. "New facility" means a facility the construction or installation of
which begins on or after September 17, 1985, including, but not limited
to, facilities which replace existing facilities, facilities which are moved
from one location to another, and facilities which are substantially mod.f^d
after September 17, 1985.
XI. "Nonresidential", when referring to a facility, means a facility which
serves any commercial, industrial, institutional, municipal, public, or other
building, including, but not limited to, service stations, hotels and motels,
hospitals, nursing homes, and correctional institutions, but not including
non-commercial residential buildings.
XII. "Oil" means petroleum products and their by-products of any kind
and in any form, including, but not limited to, petroleum, fuel, sludge,
crude, and all other liquid hydrocarbons regardless of specific gravity and
which are used as motor fuel, lubricating oil. or any oil used for JMrtn*
«* processing. The term "oil" shall not include natural gas, liquified
petroleum gas, or synthetic natural gas, regardless of derivation or source.
XIII. "Operator" means the person who has responsibility for the care,
custody, and control of the daily operation of a facility.
XIV. "Owner" means the person in possession of or having legal
ownership of a facility. In addition, for facilities no longer in use on
November 8,1984, "owner" includes the person having had legal ownership
of such facility immediately prior to discontinuance of its use.
XFV-a. "Person" means any individual, trust, firm, joint stock company,
corporation (including a government corporation), partnership, association,
state and agencies thereof, municipality, commission, political subdivision
of a state, interstate body, consortium, joint venture, commercial entity,
the United States government and agencies thereof, and any other legal
entity. The term "person" shall not include a person who, without
participating in the management or actual operation of the facility, and
otherwise not engaged in petroleum production, refining, or marketing,
holds indicia of ownership primarily to protect a mortgage on real property
on which a facility is located or a security interest in personal property
located at the facility.
XV. "Residential building" means any house, apartment, trailer,
manufactured housing, or other structure occupied by individuals as
domicile. ^
406
-------
OSWER Directive 9650.15
UNDERGROUND STORAGE FACILITIES 146-C:3
XVI. "Substantial modification" means the construction or installation
of any addition to a facility or any restoration or renovation of a facility
which: increases or decreases the on-site storage capacity of the facility;
significantly alters the physical configuration of the facility; or impairs or
improves the physical integrity of the facility or its monitoring systems.
On-site abandonment is specifically excluded as a "substantial modifica-
tion" of a facility. .
XVII. "Surface water" means streams, lakes, ponds, and tidal waters
within the jurisdiction of the state, including all streams, lakes, or ponds
bordering on the state, marshes, watercourses, and other bodies of water,
natural or artificial.
XVIII. "Underground storage facility" means a facility or facility
component that is 10 percent or more below the surface of the ground and
is not fully visible for inspection.
HISTORY
Source. 1986, 182:1. 1988, 249:1-3. eff. wuta or any constituent thereof may enter
June 29. 1988. surface or groundwater" thereafter.
An,endmenta-1988. Paragraph It Sub- M|^ -a
stituted "release or addition' for "disposal, «bd'™<»> preceding "who has
nddition. or injection" preceding "of any 'v.... _«_K YTV- n.i.t^ "«, Mi;»,v.r
liquid to", inserted "land" thereafter and J^ggS h JE ° £ !SJLP 2 £
deleted "from any designed conveyance »"ivwon P™"* » »"•*«»» « tin
system, including, but not limited to/pipe. ««* «ntw? Ki^jlfi! second Mntenct<
ditch, channel, tunnel, conduit well fissure. Paragraph XlV-a; Added.
container, or tank, as well as any designed Revision note. Substituted "division" for
l«achate disposal system" following "surface 'commission'' in pan. I and VIII and "divj-
witers". jion of water supply and pollution control"
Paragraph III: Inserted "spilling, leaking, for "water supply and pollution control
latching' preceding "or placing", "groundwa- commission" in par. I pursuant to 1986.
t«r" following "on any land", "surface" 2026. IL
preceding "water" and deleted "so that such
146-C:2 Discharges Prohibited. No owner or operator shall dis-
charge or dispose of any oil as defined in this chapter from any facility
into or onto land, groundwaters, or surface waters of the state.
HISTORY
Source. 1986. 182:1. 1988, 249:4. eff. deleted "to the surface waters or" preceding
June 29. 1988. "groundwaters" and inserted "or surface
Amendmenta-1988. Inserted "into or Wlt*n" thereafter.
onto land" following "from any facility",
CROSS
Liability for cleanup and restoration costs, se* V 146-O11.
146-C:3 Registration of Undergrc Storage Facilities.
I. The owner of each existing underg: .d storage facility shall register
the facility with the division on forms provided by the division and shall
Provide the following information:
(a) Facility name, location, and mailing address.
407
-------
OSWER Directive 9650.15
146-C:3 PUBLIC HEALT&
(b) Owner's name, mailing address, and telephone number.
(c) Contact person for this facility.
(d) Tank information: the size, age, type of tank material, location (on-
site), and oil product stored.
(e) Demonstrntic- ;: finance1 r-.sponsibility pursuant to rules adopted
under RSA 146-C:9, VII. Proof of eligibility for financial assistance under
RSA 146-0 shall satisfy the requirement of demonstration of financial
responsibility, under- this subparagraph. -
II. The owner of each existing underground storage facility shall
register the facility with the division on forms provided by the division,
and shall provide the following information to the extent that it may
reasonably be available to the owner
(a) Results of previous tank testings conducted in accordance with
division rules, including documentation of test results.
(b) All previous owners and lessees with names and current addresses.
(c) A detailed description of the facility; the size of tanks (physical
dimensions), number of fill boxes, number and type of fittings attached
to tanks, complete description of underground piping system, type of
cathodic protection, date each tank was manufactured, installed, relined,
and inspected, and tank manufacturer, and the date and results of the
latest tightness test of all underground tanks.
(d) The estimated life expectancy of all inground tanks and appurte-
nances.
(e) Description and date of past discharges or disposal of petroleum
based products, remedial actions, ground and surface water monitoring
results, and closure plans.
(f) Detailed site plan and layout
(g) Existing groundwater protection monitoring programs, if any.
III. The owner of a registered underground storage facility shall report
any changes in the information provided under paragraph I or II within
10 days of the change.
IV. The registration required under this section shall be renewed every
5 years. A registration need not be renewed if the division has received
written notice that the registered underground storage facility has been
closed by approved procedures according to rules adopted pursuant to RSA
146-C:9, II(i). Any notice of closure shall include the date of such closure.
V. The division shall forward information compiled under this section
to the federal Environmental Protection Agency pursuant to 42 U.S.C.
6991a(c).
HISTORY
Source. 1986. 182:1. 1988, 249:5. 6. eff. Revision not*. In tht introductory clauses
June 29, 1988. of pin. I and II. in par. II(t) and in tht
-,9M. P.r.,r.ph H.l:
Paragraph V: Added. 202:6- IL
408 '
5*1
-------
. OSWER Directive 9650.15
UNDERGROUND STORAGE FACILITIES 146-C:5
Contingent 1988 amendment. 1988. 249:21. eff. June 29, 1988. the amendment did
249:19 provided for amendment of thii not take effect
section. However, under the terms of 1988.
CROSS REFERENCES
Exempt facilities, see RSA 146-C:6-a,
146-C:4 Underground Storage Facility Permit Required.
I. No person shall own or operate an underground storage facility in this
state without a permit issued by the division. The division may revoke or
modify any permit following a hearing, upon a finding that just cause
exists for such action.
II. The division shall issue or deny a permit to all facilities registered
under RSA 146-C:3 within 90 days of the receipt of the complete
registration information. A permit issued under this section shall be
displayed on the premises of the underground storage facility at all times.
Permits shall be valid for a period of 5 years.
HISTORY
Source. 1986. 182:1. eft May 28. 1986. second sentence of that paragraph and in the
Reviaion nof. Rtference. to -water supply *
and pollution control commission" in the first P*""*"' to 198«- 202*- IL
sentence of par. I and to "commission" in the
CROSS REFERENCES
Exempt facilities, see RSA 146-C:6-a.
Penalty for operation of facility without permit, see RSA 146-C:10.
Transfer of ownership, set RSA 146-CA
146-C:5 Records Required; Inspections.
I. The operator of an underground storage facility shall keep and
reconcile accurate stock inventory records for the purpose of detecting
leaks. The records shall be maintained and made available for division
inspection and copying for a period of not less than 3 years.
IL For the purpose of developing or assisting in the development of any
rule, conducting any study, instituting any corrective measures, or
enforcing the provisions of this chapter, any owner or operator of a facility
subject to regulation under this chapter shall, upon request of any
employee or authorized representative of the division, furnish information
relating to such facility or its contents, conduct monitoring or testing,
permit such employee or authorized representative at all reasonable times
to have access to and to copy all records relating to such facility, and
permit such employee or authorized representative to have access to the
facility for corrective measures.
III. For the purpose of developing or assisting in the development of any
rule, conducting any study, instituting corrective measures, or enforcing
the provisions of this chapter, division employees or authorized represent-
atives may, upon the presentation of appropriate credentials:
409
-------
OSWER Directive 9650.15
146-C:6 PUBLIC HEALTH
(a) Enter at reasonable times any site phere a facility regulated under
this chapter is located.
(b) Inspect and obtain samples from any person of any regulated
substances in such facility.
(c) Conduct monitoring or testing of the tanks, associated equipment,
contents, or surrounding soils, air, surface water or groundwater.
(d) Institute corrective measures.
IV. Information obtained by the division under this chapter which, in
the judgment of the federal Environmental Protection Agency or the
division, constitutes a trade secret shall not be disclosed to the public
without notice to the owner of the trade secret and an opportunity for
hearing. The division may provide information relating to trade secrets to
the Environmental Protection Agency, provided that the Environmental
Protection Agency guarantees the same degree of confidentiality as does
the division.
HISTORY
Source. 1986. 182:1. 1988. 249:7. 8. eff. Paragraph IV: Added.
June 29. 1988. Revision note. In the second sentence of
Amendments—1988. Paragraph II: par. I and the first sentence of par. II.
Amended generally. substituted "division" for "commission"
Paragraph lit Added. pursuant to 1986, 202:6. IL
CROSS REFERENCES
Exempt facilities, see RSA 146-C:6-a.
Liability of owner fof recordkeeping. sec RSA 146-C:10.
•
146-C:6 Transfer of Ownership. Prior to the transfer of ownership
of an underground storage facility, the transferor shall notify the
transferee of the transferor's compliance with the rules of the division
relative to tank testing and replacement When a transfer of ownership
takes place, the new owner shall notify the division of the transfer and shall
assume the permit issued to the previous owner.
HISTORY
Source. 1986. 182:1. eff. May 28. 1986. following "notify the" in the second sentence
RevMon note. Reference to "commission" *»** to "divilion'' P"™"1 to l986' ***'
preceding "relative" in the first sentence and
CROSS REFERENCES
Exempt facilities, see RSA 146-C:6-a.
146-C:6-a Exemption. The provisions of RSA 146-C:3, 4. 5, I and 6
shall not apply to facilities no longer in use on January 1, 1974. The
provisions of RSA 146-C:4, 5, I and 6 shall not apply to facilities taken
out of use on or after January 1.1974, and closed according to rules adopted
under RSA 146*C:9, II(i).
HISTORY
Source. 1988. 2493, eff. June 29. 1988.
410
-------
OSWER Directive 9650.15
UNDERGROUND STORAGE /FACILITIES 146-C:9
146-C:7 New Facilities.
I. Prior to commencing construction or installation of a new facility or
substantial modification of an existing facility, an owner shall submit plans
and specifications to the division and obtain written approval of those
plans. Such plans shall be approved by an engineer licensed to practice
in the state of New Hampshire on forms provided by the division. Within
90 days of submission of completed plans, the division shall send the owner
written notice of approval or disapproval. Failure to send a notice shall
be deemed to be approval of the plans.
II. An owner shall not cause or allow any act which is not in accordance
with the approved plans and all terms and conditions of the division's
approval of those plans.
III. An owner shall demonstrate financial responsibility pursuant to
rules adopted under RSA 146-C:9, VII. Proof of eligibility for financial
assistance under RSA 146-D shall satisfy the requirement of demonstration
of financial responsibility under this paragraph. "-1
HISTORY
Source. 1986. 182:1. 1988. 249:10. eff. par. II changed to "division" and "division's".
June 29. 1988. respectively, pursuant to 1986, 202.-6. IL
Amendments— 1988. Paragraph III: Contingent 1988 amendment 1988.
Added. 249:20 provided for amendment of this
Revision note. Reference, to "commission"
throughout par. I and to "commission's" in uke effe.
CROSS REFERENCES
Issuance of permits, see RSA 146-C:4.
146-C:8 Prohibition Against Reusing Tanks. Tanks which are
amoved and do not meet the standards for new tanks shall not be
reinstalled for the purpose of petroleum storage. If a tank meets the
standards, it may be reinstalled for petroleum storage if after thorough
cleaning and inspection, internally and externally, it is found to be
structurally sound and free of pinholes, cracks, structural damage, or
excessive corrosion. Such tanks shall be reinstalled in accordance with
requirements of this chapter. A tank once used for petroleum shall not be
reused for a food product If a tank is to be disposed of as junk, it must
be retested for petroleum vapors, rendered vapor free if necessary, and
punched with holes to make it unfit for further use.
HISTORY
Source. 1986, 182:1. eft May 28. 1986.
146-C:9 Rulemaking. The division shall adopt rules, under RSA 541-
A, relative to:
I. Procedures, forms, and information required for registration of
underground storage facilities, as authorized by RSA 146-C:3.
411 10
-------
OSWER Directive 9650.15
146-0:9 PUBUC HEALTH
II. Procedures, forms, and criteria for issuing and renewing permits, as
authorized by RSA 146-C:4. Criteria for permits shall include, but not be
limited to:
(a) Minimum standards for repairing an underground steel tank.
(b) Tank replacement schedules.
(c) Tank testing schedules.
(d) Minimum standards for new underground tanks.
(e) Standards for fiberglass, fiberglass clad, and steel tanks.
(f) Standards for leak monitoring at underground storage facilities.
(g) Minimum standards for secondary containment for underground
storage facilities.-
(h) Minimum standards for piping systems at underground storage
facilities.
(i) Procedures for the temporary and permanent closure of under-
ground storage facilities.
0) Technical and procedural alternatives and exemptions.
III. Requirements for recordkeeping, as authorized by RSA 146-C:5, I.
IV. Procedures for conducting inspections, as authorized by RSA 146-
C:5, II.
V. Procedures, forms, and criteria for approving plans for new
underground storage facility construction and installation, as authorized
by RSA 146-C:7.
VI. Criteria for determining what constitutes a facility under this
chapter including, but not limited to, tank size and capacity.
VII. Criteria for demonstrating financial responsibility for ownership
and operation of underground storage facilities.
VIII. Acceptance and distribution of funds from the leaking under-
ground storage tank trust fund established pursuant to 26 U.S.C. section
9508.
HISTORY
Sourer 1986. 182:1. 1988. 249:11. eff. division of water supply and pollution control
Junt 29, 1988. shall not issue rule* pursuant to RSA 146-
Am.ndmtnU-1988. Paragraph VII: C*;.™ ".*»*& * ***** "of *"» •*
Added un . ' Environmental Protection
Pinmnh VIII- AdifeL Agency has issued its final roles relative to
Paragraph VIH. Added. financial responsibility tor ownership and
Revision note. In the introductory clause, operation of underground storage facilities.
substituted "division" for "commission" The division shall adopt such rule not later
pursuant to 1986. 2024. IL than 90 days after the issuance of such final
Adoption of rules relative to financial W*™1 "»'••• Tht ™j«« •*)JSd,& the
responsibility and federal funds. 1988. *JS«°» P«nuant to RSA 14944, VII and
249:17. eft June 29. 1988. provided: "Not- ]J1 *™\ no* ** mort «*nnf«« than the
withstanding any section of this act. the federal rules.
CROSS REFERENCES
Adoption of rules relating to administrative fines, see RSA 146-C:10-a.
412
-------
OSWER Directive 9650.15
UNDERGROUND STORAGE FACILITIES 146-C:10
/
LIBRARY REFERENCES
West Key Number CJS
Health and Environment *= 25.5. Health and Environment § 137.
v!46-C:9-a Orders; Injunctions.
The division is authorized to issue an administrative order directii
anyWner or operator to cease activity violating this chapter, to take action
necessary to comply with this chapter, or to institute corrective meaafres,
as defined under RSA 146-A:ll-a, III, in response to a discha/ge or
disposal.
II. Notwithstanding any other provision of this chapter, th/division.
upon receiptV information that the storage, transmission or dispensing
of oil at a facmtjr subject to this chapter may present an imminent and
substantial hazarito human health or to the environments/nay take action
as it determines necessary to protect human health or/uie environment
The action the division may take includes, but is ncVlimited to:
(a) Issuing an ord\r directing the facility owns/or operator to take
necessary steps to eliminate the hazard. The division may order the
permanent or temporary cassation of operations aca facility. Orders of the
division issued under this^section shall be effective immediately. Any
person to whom an order is ofrected shall immediately comply, but may
appeal the order in accordancVwith paragraph III of this section.
(b) Requesting the attorney general jobring an action for injunctive
relief, including a mandatory inju\ctic
III. Appeal of an order issued unq^r this section shall be governed by
RSA 21-0:7, IV.
llSTORY
Source. 1988. 249:12. eft. June 29./9S8.
146-C:10 Penalty.
I. Any person who awns' or operates an underground storage facility
without a permit as required by this chapter, w\o fails to comply with
a condition of that pecmit or of an order issued unHer RSA 146-C:9-a, or
who violates the rule/adopted under this chapter relative to underground
storage facilities shall be subject to a civil penalty of notWre than $10,000
for each violatiopr Each day of a continuing violation\hall count as a
separate violation. Such a violation may also be enjoined av the superior
court upon application of the attorney general.
II. All moneys collected under this section shall be paid \to the oil
pollutionyttntrol fund established under RSA 146-A:ll-a.
HISTORY
ce. 1986. 182:1. 1987. 377:9. 1988. -1988. Paragraph I: Deleted "or* pY
1989. 230:12, *ff. July 23. 1989. ing "who faiUT. inserted "or of an
I: Delet-
413 12
-------
OSWER Directive 9650.15
146-C:10-a PUBLIC HEALTH
Nil.000" following "penalty of not more than" -1987, Designated the existing provisio
anXdeleted "day or preceding "violation" in of the section as par. I. added "except wW
the not sentence, added the second sentence the owner controls the inventory" at thr end
and rewrote the fourth sentence. of that paragraph, and added par.
CROSS REFERENCES
AdministratiV fines, see RSA 146-C:10-a.
LIBRARY REFERENCES
West Key Number \ ALR
Health and Environment «= 28. 38. Validity of statyltatutory provision per-
Cjs - - >< mitting administrative agency to impose
u ... . - . ,\_. monetary penai««* for violation of environ-
Health and Environment 9 1^. mental pollujfin statute. 81 ALR3d 1258.
146-C:10-a Administrative Fines. The>commissioner of the depart-
ment of environmental servicesNfter notic/and hearing pursuant to RSA
541-A, may impose an administrative firfe not to exceed $2,000 for each
offense upon any person who viofera any provision of this chapter.
Rehearings and appeals from a deoisiooof the commissioner under this
section shall be in accordance with RSX 541. Any administrative fine
imposed under this section shaft not preclude the imposition of further
penalties under this chapter/The proceeds ortdministrative fines levied
pursuant to this section shall be deposited by th^commissioner in the oil
pollution control fund established under RSA 14(KA. The commissioner
shall adopt rules, unckr RSA 541-A, relative to:
I. A schedule of administrative fines which may be imposed under this
section for violation of this chapter, and
II. Procedures for notice and hearing prior to the imposition of an
administrative fine.
HISTORY
Source/ 1989. 230*. eff; July 23. 1989.
CROSS REFERENCES
Zivil penalty. SM RSA 146-C10.
146-C-.11 Liability for Cleanup Costs; Municipal Regulations.
I. Any owner or operator or other person who directly or indirectly
causes or suffers the discharge or disposal of oil into or onto any surface
water or groundwater of this state, or in a land area where oil has seeped
or may or will ultimately seep into any surface water or groundwater of
the state in violation of this chapter, or rules adopted under this chapter,
shall be strictly liable for costs directly or indirectly resulting from the
violation relating to:
(a) Containment of the discharged oil;
(b) Cleanup and restoration of the site and surrounding environment,
and corrective measures as defined under RSA 146-A:ll-a, III(a) and (b);
and
414 13
-------
OSWER Directive 9650.15
)RAG
UNDERGROUND STORAGE FACILITIES 146-C:12
(c) Removal of the oil.
I-a. The owner or operator of a facility shall immediately inform the
division of any discharge or disposal in violation of this chapter. Such
person shall take immediate action to mitigate damages from such
discharge consistent with any applicable rules of the division. If the owner
is not the operator of the facility, the operator shall immediately inform
the owner of any discharge or disposal in violation of this chapter.
II. Nothing in" this chapter shall be construed to prevent the party
strictly liable from instituting a legal action against any party responsible
for causing the spillage for costs incurred by the strictly liable party in
complying with this chapter.
III. Nothing in this chapter shall be construed to pre-empt local zoning
or other regulations, properly enacted under other statutes, which
reasonably regulate the location of underground storage facilities.
IV. The division shall immediately notify the governing body of a
municipality of any leaking underground storage tanks either within the
municipality or near the local water supply.
V. [Repealed.]
HISTORY
Source. 1986. 182:1. 1987. 377:4. 6. !46-A:ll-a, III(a) and (b)" following "environ-
1988. 249:14. 15. eff. June 29. 1988: 271:9. mem".
VII. eff. July 1. 1988. Paragraph V: Added.
Amendment*—1988. Paragraph I: Chap- Revision note. In par. I. substituted "sur-
ter 249 inserted "or disposal" following fac, water or groundwater" for 'surface or
"discharge" in the introductory paragraph, ground water" to conform terminology to
Paragraph I-a: Added by ch. 249. proper grammatical usage.
Paragraph V: Repealed by ch. 271. At the beginning of par. IV. substituted
-1987. Paragraph I(b): Inserted "and "division" for "commission" pursuant to 1986.
corrective measures as defined under RSA 20Z-'8- U*
CROSS REFERENCES
Liability for contamination by hazardous materials or toxic wastes of police, fin. emergency
preparedness or emergency response equipment set RSA 154:8-a.
146-C:12 Federal Assistance and Private Funds. To implement this
chapter, the division is authorized on behalf of the state, with the approval
of the governor and council, to apply for and accept any federal assistance
which may become available for the purpose of this chapter, whether in
the form of loan or grant or otherwise, to accept the provision of any federal
legislation for such assistance, to enter into, act, and implement contracts
in connection with such assistance, or to act as agent for the federal
government in connection with such assistance. The division shall adopt
r:les pursuant to RSA 541-A for accepting and distributing funds from
t.-; leaking underground storage tank trust fund established by 26 U.S.C.
r: ction 9508. Pending adoption of such rules, where federal assistance is
made available, the project shall be implemented in accordance with
applicable federal law, the regulations adopted under such law, and the
415
fr.
-------
OSWER Directive 9650.15
146-C:12 PUBLIC HEALTH
contract or contracts providing for federal assistance, notwithstanding any
contrary provision of state law. The division may also utilize any private
funds which may be made available for the purposes of this chapter.
HlSTOEY
Source 1986 182:1 1988 249:16. «ff. "in accordance* »nd "adopted under such
JuS 29 198R. l»w" '«• "thereunder" following "the regula-
June 29. 1MB. ^ fa
Amendmenti-1988. Rewrote the first
nserted -pending adoption 01 ««• »•« ~'^"v^.~ "VMR .jobi
preceding ^here federal" and substituted sion" pursuant to 1986. 202*.
-implemented" for "carried out" preceding
416 15
-------
OSWOl Directive 9650.15
NEW HAMPSHIRE
REVISED STATUTES
ANNOTATED
«*
TITLES 10,11
PUBLIC HEALTH
TO
HOSPITALS AND SANITARIA
Chapters 125 to 152
1992
CUMULATIVE SUPPLEMENT
For Use Until Publication of 1993 Cumulative Supplement
Cite Supplement aa RSA, with chapter and section,
followed by (supp), thus:
RSA 21:3 (supp)
Butterworth Legal Publishers
EQUITY PUBLISHING DIVISION
ORPORD, NEW HAMPSHIRE 03777-9797
1992
16
-------
OSWER Directive 9650.15
146-C.-1 PUBLIC HEALTH
CHAPTER 14S-C
UNDERGROUND STORAG/FACILITIES
[New Sictiom]
146-C:13 Penalty; Persons Strictly Liable.
CROSS REFERENCES
Groundwater Protection Act, see RSA 485-C.
146-C:! Definitions. In this chapter
[No change in paragraph L]
I-a. "Council" means the water supply and pollution control council estab-
lished under RSA 21-0:7. [Added 1991, 92:22, eff. May 13,1991.]
II. "Discharge" means the release or addition of any oil or hazardous sub-
stance to land, groundwater or surface water. [Amended 1990, 208:1. 1991,
92:23, eff. May 13,1991.]
III. "Disposal" means deposit, discharge, injection, dumping, spilling,
leaking, leaching, or placing of oil or hazardous substance into or on any
land, groundwater or surface water. [Amended 1990, 208:1, eft June 26,
1990.]
[No change in paragraph IV.]
V. "Facility" means an assemblage of tanks, pipes, pumps, vaults, fixed
containers, and appurtenant structures, singly or in any combination, which
are used or designed to be used for the storage, transmission, or dispensing
of oil or a hazardous substance, and which are within the size, capacity, and
other specifications prescribed by rules adopted by the division pursuant to
RSA 146-C:9, VI. [Amended 1990, 208:2. 1991, 92:25, eft May 13,1991.]
VI. "Failure" means a condition which may or does allow the uncontrolled
passage of oil or a hazardous substance into or out of a facility, and includes,
but is not limited to, a discharge to the groundwater or surface water of the
state without a permit issued pursuant to RSA 146-C:4. [Amended 1990,
208:2.1991,92:24, eft May 13,1991.]
VII. "Groundwater" means subsurface water that occurs beneath the wa-
ter table in soils and geologic formations. [Amended 1991,92:26, eff May 13,
1991.]
VH-a. "Hazardous substance" means material defined as a regulated sub-
stance under 42 U.S.C. 699K2XA) in addition to any material designated as a
hazardous substance pursuant to RSA 146-C:9, Vl-a. [Added 1990,208:3, eft
June 26,1990.]
[No change in paragraph VIII.]
IX. [Repealed 1990, 208:14, eft June 26,1990.]
[No change in paragraph X.]
XI. "Nonresidential," when referring to a facility, means a facility which
serves any commercial, industrial, institutional, municipal, public, or other
76 17
<=)/
-------
OSWER Directive 9650.15
UNDERGROUND STORAGE FACILITIES 146-C:2
building, including, but not limited to, service stations, hotels and motels,
hospitals, nursing homes, and correctional institutions, but not including
residential buildings. [Amended 1991, 92:27,feff. May 13, 1991.]
XII. "Oil" means "oil" as defined in RSA 146-A:2. [Amended 1991, 92:28,
eff. May 13,1991.]
[No change in paragraph XIII.]
XIV. "Owner" means the person in possession of or having legal owner-
ship of a facility. In addition, for facilities no longer in use, "owner" includes
the person having had legal ownership of such facility immediately prior to
discontinuance of its use. [Amended 1991, 92:29, eff. May 13, 1991.]
[No changes in paragraphs XIV-a-XVIIJ.]
HISTORY
Source. 1986, 182:1. 1988, 249:1-3. 1990, 208:1-3, 14. 1991, 92^2-29, eft May 13.
1991.
Amendment*—1990. Paragraph II: Substituted "oil or hazardous substance" for "liquid"
preceding "to land".
Paragraph III: Inserted "or hazardous substance" following "oil".
Paragraph V: Substituted "a hazardous substance" for "petroleum liquids" following "oil
or".
Paragraph VI: Substituted "oil or a hazardous substance" for "liquid" following "passage
of".
Paragraph Vll-a: Added.
Paragraph DC; Repealed.
—1991. Paragraph I-a: Added.
Paragraph II: Substituted "groundwatcr or surface water" for "groundwaten or surface
waters".
Paragraph V: Substituted "an assemblage" for "a system" preceding "of tanks".
Paragraph VI: Substituted "groundwatcr or surface water" for "waters" preceding "of the
state".
Paragraph VII: Amended generally.
Paragraph XI: Deleted "non-commercial" preceding "residential buildings".
Paragraph XII: Amended generally.
Paragraph XIV: Deleted "on November 8,1984" following "in use" in the second sentence.
146-C:2 Discharges Prohibited. No owner or operator or other person
responsible for the operation of a facility shall discharge or dispose of any oil
or hazardous substance as defined in this chapter from any facility into or
onto any land, groundwater, or .surface water of the state.
BISTORT
Source, 1986, 182:1. 1988, 249:4. }'JM, 208:4. 1991, 92:30, eft May 13, 1991.
Amendments—1990. Inserted "or huardous substance" following "oil".
—199L Inserted "or other person i* • t/msible for the operation of a facility" following "op-
erator* and "any" preceding "land" ud substituted "groundwater, or surface water" for
"groundwaten. or surface waters" thtrtaftar.
ANNOTATIONS
Cited
Cited in Mesiti v. Microdot, Inc.. :;& ~. Supp. 57 (D.N.H. 1990).
18
-------
OSWER Directive 9650.15
PUBLIC HEALTH
146-C.-3 Registration of Underground Storage Facilities.
I. The owner of each existing underground storage facility shall register
the facility with the division on forms provided by the division and shall
provide the following information:
[No changes in subparagraphs (aMc).]
(d) Tank information: the size, age, type of tank material, location (on-
site), and product stored. [Amended 1990, 208:5, eff. June 26, 1990.]
[No change in subparagraph (e).]
II. The owner of each existing underground storage facility shall register
the facility with the division on forms provided by the division, and shall
provide the following information to the extent that it may reasonably be
available to the owner:
[No changes in subparagraphs (a)-(d).]
(e) Description and date of past discharges or disposal, remedial ac-
tions, ground and surface water monitoring results, and closure plans.
[Amended 1990, 203:6, eff. June 26, 1990.]
[No changes in subparagraphs (f) and (g).]
[No change in paragraph III.]
IV. The registration required under this section shall be maintained for
the life of the facility. A registration need not be maintained* if the division
has received written notice that the registered underground storage facility
has been closed by approved procedures according to rules adopted pur-
suant to RSA 146-0:9, II(i). Any notice of closure shall include the date of
such closure. [Amended 1991, 92:31, eff. May 13, 1991.]
[No change in paragraph V.]
HISTORY
Source. 1986, 182:1. 1988. 249:5, 6. 1990, 208:5, 6. 1991. 92:31, ett May 13. 1991.
Amendment*— 1990. Deleted "oil" preceding "product" in par. I(d) and deleted "of petro-
leum based product!1* following "disposal" in par. IKe).
—1991. Paragraph IV: Substituted "maintained for the life of the facility" for "renewed
every 5 yean" following "shall be" in the first sentence and "maintained" for "renewed"
following "need not be" in the second sentence.
146-C:4 Underground Storage Facility Permit Required.
I. No person shall own or operate an underground storage facility in this
state without a permit issued by the division. The permit to operate may be
revoked for just cause, including, but not limited to, the operation or owner-
ship of an underground storage facility in violation of the division's rules. To
revoke a permit, the division shall issue a show cause order to an owner or
operator in violation of this chapter, or rules adopted under this chapter, but
said show cause order shall not take effect until the owner or operator has
had an opportunity to be heard by the council, provided such request is made
within 20 days of the issuance of the show cause order. Appeal of an order
revoking a permit to operate shall be governed by RSA 21-0:7, IV. Any
78 19
-------
OSWER Directive 9650.15
UNDERGROUND STORAGE FACILITIES 146-C:5
appeal brought pursuant to RSA 541 shall not day an order by the council
which revokes a permit [Amended 1991, 92:32/eff. May 13, 1991.]
II. The division shall issue or deny a permit to all facilities registered
under RSA 146-0:3 within 90 days of the receipt of the complete registration
information. A permit issued under this section shall be displayed on the
premises of the underground storage facility at all times. Permits shall be
valid for a period of 5 years, except as provided in paragraph III. [Amended
1990, 3:73, eft Feb. 20,1990.]
III. A permit fee of $70 per year shall be paid to the division by the owner
or operator of each permitted facility, except for facilities owned by state
and local governments, including counties, and school districts, in the man*
ruir described below. All fees shall be deposited with the state treasurer as
unrestricted revenue; Permit fees shall be calculated as follows:
(a) Facilities with existing permits in Hillsborough county shall have a
permit expiration date of April 30,1991. A fee of $70 for 1990 shall be paid to
the division on or before September 30,1990.
(b) Facilities with existing permits in Merrimack and Belknap counties
shall have a permit expiration date of April 30,1992. A fee of $140 for 1990
and 1991 shall be paid to the division on or before April 30,1991.
(c) Facilities with existing permits in Rockuigham county shall have a
permit expiration date of April 30,1993. A fee of $210 for 1990-1992 shall be
paid to the division on or before September 30,1991.
(d) Facilities with existing permits in Coos, Carroll, and Grafton coun-
ties shall have a permit expiration date of April 30,1994. A fee of $280 for
1990-1993 shall be paid to the division on or before April 30,1992.
(e) Facilities with existing permits in Cheshire, Sullivan, and Strafford
counties shall have a permit expiration date of September 30,1995. A fee of
$350 for 1990-1994 shall be paid to the division on or before September 30,
1993.
(f) For new facilities, the permit shall expire 5 years from the last day of
this month in which the permit was issued. A fee of $350 shall be paid upon
submission of the permit application. If for any reason the permit is denied,
the fee shall be returned or refunded.
(g) The fee for permit renewals shall be the same as the fee for new
permits. [Added 1990,3:73, eff Feb. 20,1990.]
HISTORY
Source 1986, 182:1. 1990. 3:73. 1991, 92:32, eft May 13. 1991.
Amendment*—.1990. Paragraph II: Added "except as provided in paragraph III" at the
end of the third sentence.
Paragraph III: Added.
-1991. Paragraph I: Rewrote the second sentence and added the third, fourth and fifth
sentences.
}.46-C:5 Records Required; Inspections.
[No change in paragraph I.]
79 . 20
-------
, OSWER Directive 9650.15
146-C:6 PUBLIC HEALTH
II. For the purpose of developing or assisting in the development of any
rule, conducting any study or investigation, insptuting any corrective or re-
medial measures, or enforcing the provisions of this chapter, any owner or
operator of a facility subject to regulation under this chapter shall, upon
request of any employee or authorized representative of the division, furnish
information relating to such facility or its contents, conduct monitoring or
testing, permit such employee or authorized representative at all reasonable
times to have access to and to copy all records relating to such facility, and
permit such employee or authorized representative to have access to the
facility for corrective or remedial measures. [Amended 1991,92:33, eff. May
13,1991.]
III. For the purpose of developing or assisting in the development of any
rule, conducting any study or investigation, instituting corrective or reme-
dial measures, or enforcing the provisions of this chapter, division employees
or authorized representatives may, upon the presentation of appropriate cre-
dentials: [Amended 1991, 92:34, eff. May 13,1991.]
[No changes in subparagraphs (aMc).]
(d) Institute corrective or remedial measures. [Amended 1991, 92:35,
eff. May 13, 1991.]
HISTORY
Source. 1986. 182:1. 1988. 249:7. 8. 1991, 92:33-35, eff. Miy 13. 1991.
Amendments—1991. Paragraph II: Inserted "or investigation" preceding "instituting any
corrective" and "or remedial" preceding "measures" in two places.
Paragraph III: Inserted "or investigation" preceding "instituting corrective" and "or reme-
dial" thereafter in the introductory paragraph, and inserted "or remedial" in subpar. (d).
146-C:6 Transfer of Ownership. Prior to the transfer of ownership of
an underground storage facility, the transferor shall notify the transferee of
the transferor's compliance with the rules of the division under this chapter.
When a transfer of ownership takes place, the new owner shall notify the
division of the transfer and shall assume the permit issued to the previous
owner.
HISTORY
Source. 1986, 182:1. 1991, 92:36, eft May 13, 1991.
Amendment—1991. Substituted "under this chapter" for "relative to tank testing and re-
placement" following "division" in the first sentence.
146-C:7 New Facilities.
[No change in paragraph I.]
I-a. Any person, except state and local governments, including counties,
and school districts, submitting plans and specifications for a new facility
shall pay to the division a fee of $100. Such fee shall be for reviewing such
plans and specifications and for making inspections during installation. The
fees shall be deposited with the state treasurer as unrestricted revenues.
[Added 1990, 3:74, eft Feb. 20,1990.]
80 « 21
-------
OSWER Directive 9650.15
UNDERGROUND STORAGE FACILITIES 146-C:9
II. An owner shall not cause or allow any construction or other activity
which is not in accordance with the approved £lans and all terms and condi-
tions of the division's approval of those plans. [Amended 1991, 92:37, eff.
May 13,1991.]
[No change in paragraph III.]
HISTORY
Source. 1988, 182:1. 1988, 249:10. 1990. 3:74. 1991, 92:37, eft May 13, 1991.
Amendments—1990. Paragraph I-* Added.
—1991. Paragraph II: Substituted "construction or other activity" for "act" following "al-
low any".
146-C:S Prohibition Against Reusing Tanks. Tanks which are re-
moved and do not meet the standards for new tanks shall not be reinstalled
for the purpose of oil or hazardous substance storage. If a tank meets the
standards, it may be reinstalled for oil or hazardous substance storage if
after thorough cleaning and inspection, internally and externally, it is found
to be structurally sound and free of pinholes, cracks, structural damage, or
excessive corrosion. Such tanks shall be reinstalled in accordance with re-
quirements of this chapter. A tank once used for oil or hazardous substance
shall not be reused for a food product. If a tank is to be disposed of as junk, it
must be retested for oil or hazardous substance vapors, rendered vapor free
if necessary, and punched with holes to make it unfit for further use.
HISTORY
Source. 1986, 182:1. 1990, 208:7, eff. June 26, 1990.
Amendments—1990. Substituted "oil or hazardous substance" for "petroleum" preceding
"storage" in the first and second sentences, preceding "shall" in the third sentence and pre-
ceding "vapors" in the fourth sentence.
146-C:9 Rulemaking. The division shall adopt rules, under RSA 541-A,
relative to:
[No changes in paragraphs MIL]
IV. Procedures for conducting inspections or investigations, as author*
ized by RSA 146-C:5, II. [Amended 1991, 92:38, eft May 13,1991.]
[No changes in paragraphs V and VI.]
Vl-a. Criteria for determining whether any material is a hazardous sub-
stance as defined in this chapter and procedures for such designation.
[Added 1990,208:8, eft June 26,1990.]
[No changes in paragraphs VII and VIIL]
DC Procedures for collection of fees under RSA 146-C:4, III. [Added
1990,3:75, eft Feb. 20,1990.]
X. Procedures and criteria for mitigation and prevention of damage due
to a discharge from an underground storage facility. [Added 1991,92:39, eft
May 13,1991.]
XI. Procedures and criteria for responding to and reporting a discharge
from an underground storage facility. [Added 1991,92:39, eft May 13,1991.]
81 22
-------
OSWER Directive 9650.15
146-C:9-a
PUBLIC HEAJ^H
XII. Procedures for conducting tank testing, including qualifications of
persons conducting tank testing. [Added 1991, 92:39, eff. May 13, 1991.]
HISTORY
Source. 19S6. 182:1. 1988, 249:11. 1990, 3:75; 208:8. 1991, 92:38, 39, eff. May 13.
1991.
Amendments—1990. Paragraph VI-»: Added by ch. 208.
Paragraph IX: Added by ch. 3.
—1991. Inserted "or investigations" following "inspections" in par. IV and added pan. X-
XII. "
U6-C:9-a Orders; Injunctions.
INThe division is authorized to issue an administrative order directs
any owner or operator or any other person who is strictly liable to cease/any
activityViolating this chapter, to take action necessary to comply wftfi this
chapter, and. to institute corrective and remedial measures, which/Mall in-
clude the
(a) ProvidW an interim water supply and establishing,* permanent
alternative waterxupply system to mitigate damage to the sod, groundwater
or surface water.
(b) Removal anoNabatement of contamination reciting from a dis-
charge from an underground storage facility.
(c) Reimbursement to\the state for all costs incurred by the state in
responding to a discharge oloil or a hazardous/substance from a leaking
underground storage facility. [Amended 1991.^2:40, eff. May 13,1991.]
II. Notwithstanding any other provision ofthis chapter, the division, upon
receipt of information that the storage, transmission or dispensing of oil or a
hazardous substance at a facility suoject to this chapter may present an
imminent and substantial hazard to Jnhnan health or to the environment,
may take action as it determines necessary to protect human health or the
environment The action the division may tafi^ includes, but is not limited to:
[Amended 1990,208:9, eff. Jun/26,1990.]
(a) Issuing an order directing the facility owner or operator or any per-
son who is strictly liable^onder RSA 146-0:11 to lake necessary steps to
eliminate the hazard. TXe division may order the permanent or temporary
cessation of operation* at a facility. Orders of the division issued under this
section shall be effective immediately. Any person to whom an order is di-
rected shall immediately comply, but may appeal the ordeK in accordance
with paragrapball ofthis section. [Amended 1991,92:41, eft Hay 13,1991.]
[No change in subparagraph (b).]
[No change in paragraph HI.]
HISTORY
Sojrfee. 1988. 249:11 1990. 208:9. 1991, 92:40, 41. eft May 13, 1991.
nendmenU—1990. Paragraph II: Inserted "or a hazardous substance" following "oil" i
Ife first sentence.
82
-------
OSWER Directive 9650.15
UNDERGROUND STORAGE FACILITIES 146-011
/
. Par-, aph I: Amended generally. '
aph liu); Inserted "or any person who U strictly liable under RSA 14fi-C:ir follj
^r" in the first sentence. ^
146-C:10
[No change in paragraph I.]
II. All moneys collected under this section which perCain to the discharge
of oil shall be paid into theXpollution control fjpdestablished under RSA
146-A:ll-a. All moneys colleoe>K7-B:3. [Amended 1991. 92:42. eft
May 13,1991.]
^
HISTORY
Source. 1986. 182:1. 1537^377:9. 1988, 249:13. 1989, 230:15*4991. 92:42, eft May 13,
1991.
Amendments--}^. Paragraph II: In.«erted "which pertain to the diacnVge of oil" follow-
ing "this seeUoXin the first sentence and added the second sentence.
CROSS REFERENCES
Jty for willful failure to comply, see RSA 14tf-C:13.
146-O11 Liability for Cleanup Costs; Municipal Regulations.
I. Any person who, without regard to fault, directly or indirectly causes or
suffers the discharge or disposal of oil or a hazardous substance into or onto
any surface water or groundwater of this state, or in a land area where it has
seeped or may or will ultimately seep into any surface water or groundwater
of the state in violation of this chapter, or rules adopted under this chapter.
shall be nctly liable for costs directly or indirectly resulting from the viola-
don rela..ng to: [Amended 1990, 208:10.1991, 92:43, eft May 13,1991.]
[No change in subparagraph (a).]
(b) Cleanup and restoration of the site and surrounding environment,
and corrective or remedial measures as defined under RSA 146-A:ll-a,
IIKa) and (b); and [Amended 1991, 92:43, eft May 13,1991.]
[No change in subparagraph (e).]
[No changes in paragraphs I-a-V.]
HISTORY
Source. 1986. 182:1. 1987, 377:4, 6. 1988. 249:14, 15; 271:9. VII. 1990, 208:10. 1991.
92:43, eft May 13, 1991.
Amendments—1990. Paragraph I: Inserted "or a hazardous substance" following "disposal
of oil" aod substituted "it" for "oil" preceding "has seeped".
—1991. Paragraph I: Deleted "owner or operator or other" preceding "person who", and
inserted "without regard to fault" thereafter and "water" following "surfactt" in two places in
the introductory paragraph and inserted "or remedial" following "corrective" in subpar. (b).
CROSS REFERENCES
Double recovery allowed, see RSA 146-CU3.
83
-------
OSWER Directive 9650.15
146-C:13
PUBLIC HEALTH
ANNOTATIONS .
^Prior owner'* liability /,
ection does not allow a private litigant to holdia prior owner strictly liable for coptfot
g and removing hazardous wastes from his property; paragraph/Tof this
section permh^the state to hold those who discharge oil strictly liable forctttvant costs,
while paragraphiHj-ecognizes that the party held strictly liable may majjrtain an action in
negligence against anXparty responsible for the spillage. Mesiti v.lflcrodot. Inc.. 739 F.
Supp. 57 (D.N.H. 1990).
146-C:13 Penalty; Persons Strictly LiabkXAny person who is found
to be strictly liable for a discharger spillage"©? oil, and who willfully fails to
comply with a division order requinlw^nvestigation, containment, cleanup,
removal, remedial measures, or cprfectr*emeasures, shall be liable to the
state in double the amount of>cfst recoveraoXfunds expended by the state
in undertaking investigative remedial, or corrective action at the site.
Source. 1991,
HISTORY
4, eft May 13, 1991.
CROSS REFERENCES
LiahjMfy for cleanup costs generally, see RSA U6-C:11.
nalty generally, see RSA 146-C:10.
84
25
-------
OSWER Directive 9650.15
NEW HAMPSHIRE REGULATORY REQUIREMENTS
APPLICABLE TO THE UNDERGROUND STORAGE TANK PROGRAM, 1993
40 CFR 282.79
/of
-------
OSWER Directive 9650.15
TABLE 07 CONTENTS
Regulatory Provision*:
(1) New Hampshire Code of Administrative Rules (November
1990) Part Env-Ws 411, Control of Underground Storage
Facilities:
Section 411.01 Purpose, except for the following
words, "heating oils." 5
Section 411.02 Applicability, except for 4ll.02(d). 5
Section 411.03 Definitions 6
Section 411.04 Registration 8
Section 411.05 Change in Use 8
Sectipn 411.06 Information Required for
Registration 8
Section 411.07 Permit to Operate 9
Section 411.08 Transfer of Facility Ownership 10
Section 411.10 Financial Responsibility 11
Section 411.11 Inventory Monitoring 11
Section 411.12 Regulated Substance Transfers 13
Section 411.13 Tightness Testing 14
Section 411.14 Certification of Technicians
Performing Tightness Tests 16
Section 411.15 Tightness Test Failures 17
Section 411.16 Unusual Operating Conditions 17
Section 411.17 Temporary Closure 17
Section 411.18 Permanent Closure 19
Section 411.19 Prohibition Against Reusing Tanks... 21
Section 411.20 Requirements for Approval of
Underground Storage Systems 21
Section 411.21 Tank Standards for New Underground
Storage Systems 21
Section 411.22 Piping Standards for New Underground
Storage Systems.. * 23
Section 411.23 Secondary Containment for New
Tanks 24
Section 411.24 Secondary Containment for New
Pressurized Piping 25
Section 411.25 Spill Containment and Overfill
Protection 25
Section 411.26 Leak Monitoring for New Tanks 26
Section 411.27 Leak Monitoring for New Underground
Piping Systems 26
Section 411.28 Installation of New Underground
Storage Systems 27
Section 411.29 Release Detection for Tanks Without
Secondary Containment and Leak
Monitoring, except for the following
words in 411.29 (a), "With the
exception of on premise use heating
oil systems." 28
-------
OSWER Directive 9650.15
Section. 411.30 Release Detection for Piping 30
Section 411.31 Operation of Leak Monitoring
Equipment 31
Section 411.32 Corrosion Protection for steel
Tanks i 32
Section 411.33 Corrosion Protection for Piping 32
Section 411.34 Submission of Corrosion Protection
Plan 32
Section 411.35 Relining steel Tanks 32
Section 411.36 Repair of Fiberglass-Reinforced
Plastic Tanks 33
Section 411.37 Repair and Replacement of Piping
Systems 34
Section 411.38 Field Fabricated Tanks 34
Section 411.39 Secondary Containment for Hazardous
Substance Systems 34
Sect 411.40 Waivers "54
(2) New pshire Code of Administrative Rules (November
19901. Part Env-Ws 412, Reporting and Remediation of Oil
Discharges:
Section 412.01 Purpose 37
Section 412.02 Applicability 37
Section 412.03 Definitions 37
Section 412.04 Notification 38
Section 412.05 Initial Response Action 38
Section 412.06 Abatement Measures 39
Section 412.07 Free Product Removal 39
Section 412.08 Initial Site Characterization 40
Section 412.09 Investigation Due to Discovery of
Discharges from Unknown Sources 41
Section 412.10 Site Investigation 41
Section 412.11 Site Investigation Report 42
Section 412.12 Remedial Action Plan 45
Section 412.13 Public Notification 47
Section 412.14 Waivers 47
/oy
-------
New Hampshire Code of Administrative Rules
Env-Ws 411
Control of Underground Storage Facilities
November 1990
N.H. Department of Environmental Services
-------
OSWER Directive 9650.15
PART ENV-WS 411 UNDERGROUND STORAGE AND HANDLING OF OIL AND PETROLEUM LIQUIDS
Statutory Authority: RSA 146-0:9 and RSA 146-A:ll-c
Env-Ws 411.01 Purpoae. The purpose of these rules is to set forth thj
requirements for underground storage facilities under RSA 146-C, and tl
minimize contamination of the waters ofi the State due to the storage and
handling of motor fuels, having aAlu, Rubricating oils, other petroleum and
petroleum contaminated liquids, and hazardous substances, by establishing
standards and criteria for the registration, permitting, design, installation,
operation, maintenance, and monitoring of such facilities.
Source. 03116, eff 9-17-85; ss by 04965,
eff 11-2-90
Env-Ws 411.02 Applicability. These rules apply to all underground
storage facilities having a total storage capacity of more than 110 gallons
which are used for Che storage of regulated substances, with the following
exclusions:
(a) Oil-transmission pipelines subject to the Natural Gas Pipeline
Safety Act of 1968 or the Hazardous Liquid Pipeline Safety Act of 1979;
(b) Wastewater treatment facilities including oil/water separators
regulated by the Clean Water Act Section 402 or 307 (b), and oil/water
separators at oil and gas production facilities;
(c) Underground storage facilities which are used solely for
residential or domestic heating use;
4tB — UuJergi-eund storage facilities having ne fcaali "i>h a a » a raft
cap*. city of me PC than It100 gallons and which age uaed selely for the ategagj
(e) Septic tank systems or floor drain collection tank systems that
collect waste for the purpose of segregating such waste from septic systems;
(f) Storm-water systems;
(g) Flow-through process systems which form an integral part of a
production process through which there is a steady, variable, recurring, or
intermittent flow of materials during the operation of the process.
Flov-through process systems shall not include tank* used for the storage of
materials prior to their introduction into the production process or for the
storage of finished products or by-products froa the production process.
(h) Any system which is located in an underground room or vault if
the system if totally above or upon the surface of the floor, and no portion
of any tank is covered, surrounded, or buried with soil or stone or other
material, and all system components can be visually inspected;
Env-Ws 411
5
-------
U-I.rev-c.LVc
(1) Systems where less than 101 of the total volume of the tank(s)
and associated piping is below the surface of the ground.
(j) Facilities containing radioactive material regulated under the
Atomic Energy Act of 1954;
(k) Emergency spill or overflow containment system* that are
immediately emptied after introduction of i regulated substance;
(1) Underground storage facilities which are used for the storage of
products containing concentrations of regulated substances which are less than
the allowable drinking water standard for the regulated substances or
hazardous constituents thereof; and
(m) Equipment or machinery that contains regulated substances for
operational purposes such as hydraulic lift tanks and electrical equipment
tanks.
Source. #3116, eff 9-17-85; ss by #4965,
eff 11-2-90
Env-Ws 411.03 Definitions.
(a) "API 1615" mean* American Petroleum Institute publication
"Installation of Underground Storage Tanks 1979".
(b) "Compatible" means the ability of two or more substances to
maintain their respective physical and chemical properties upon contact with
one another for the design life of the tank system under conditions likely to
be encountered in the underground storage system.
(c) "Connected piping" means all piping including valves, elbows,
joints, flanges, and flexible connectors attached to a tank or system through
which regulated substances flow.
(d) "Corrosion specialist" means an individual who is either
certified by the National Association of Corrosion Engineers or who is a
registered professional engineer with education and experience in corrosion
control of buried metal piping system* and tanks.
(e) "Division" means the Water Supply and Pollution Control Division
of the Department of Environmental Services.
(f) 'Tree product" means an oil or petroleum liquid that is present
as a non-aqueous phase liquid on groundwater, or surface water, or in soil or
bedrock.
(g) "Heating oil" means petroleum that is No. 1, No. 2, No.
4—light, No. 4—heavy. No. 5—light, No. 5—heavy, and No. 6 technical grades
of fuel oil, other residual fuel oils, including Navy Special Fuel Oil and
Bunker C, and other fuels when used as substitutes for one of these fuel oils.
Env-Ws 411
6
/en
-------
OSWER Directive 9650.15
(h) "Leak monitoring" means measurement for the presence of a
regulated substance before a release to the environment has occurred.
(i) "Lining" means a coating of a non-corrosive material bonded to
the interior surface of a tank.
(j) "Monthly" means at least one% every 30 days.
(k) "Motor fuel" means petroleum or a petroleum-based substance that
is motor gasoline, aviation gasoline, No. 1 or No. 2 diesel fuel, or any grade
of gasohol, and which is typically used in the operation of a motor engine.
(1) "NFPA 30" means National Fire Protection Association publication
number 30 entitled, "Flammable and Combustible Liquids Code", dated 1987.
(m) "NFPA _ 329" means National Fire Protection Association
publication number 329 entitled, "Underground Leakage of Flammable and
Combustible Liquids", dated 1987.
(n) "PBI/RP100-87" means Petroleum Equipment Institute Recommended
Practices for Installation of Underground Liquid Storage Systems, dated 1987.
(o) "Pipe" means an impermeable hollow cylinder or tubular conduit
that conveys or transports oil or liquid, or is used for venting, filling, or
removal of oil or liquids.
(p) "Reconcile" meana to compare volume of stored regulated
substance at the beginning of an inventory period with receipts, sales, and
other uses during the inventory period, and with volume stored at the end of
the inventory period, to determine whether there is any unexplained gain o/
loaa of regulated substance.
(q) "Regulated subatance" meana oil or a hazardoua substance.
(r) "Release detection" meana measurement for the presence of a
regulated substance which has been released to the environment.
(s) "System'* meana an underground storage tank(a) and all connected
piping, pumps, containment structures, monitors, or other equipment serving
the tank(s).
(t) "Tank" means a stationary device constructed of impermeable
materials and designed to contain or hold oil or liquids, which is a component
of an underground storage system.
t #3116, eff 9-17-85; ss by #4965,
eff 11-2-90
Env-W« *l
7
/c
-------
Env-W. 411.04 ..T«.tf.ti«». OSWER Wrective 9650.15
(a) The owner of an underground storage facility shall register the
facility by providing the information required by Env-Ws 411.06.
(b) Owners shall report in writing any change in information on the
form within 10 days of the change. /
(c) If facility ownership is disputed, the owner of the property on
which the facility is located shall register the facility by providing the
information required by Env-Ws 411.06.
(d) Any tank of unknown size shall be assumed to be of regulated
capacity, unless it can be determined by records or measurement that the tank
is not of regulated capacity.
(e) For new systems, or substantial modifications of existing
systems, a new or amended registration form, respectively, shall be filed with
the Division at the time of final inspection of the system.
(f) The facility registration shall be automatically renewed by the
Division every 5 years until all systems have been permanently closed in
accordance with the Division's rules.
(g) No person shall operate an underground storage facility which is
not registered with the Division.
#3116, eff 9-17-85; ss by 14965,
eff 11-2-90
Env-Ws 411.05 fflintlgfl il\ Vltft- The owner of any facility which would
become subject to regulation due to a change in the use of any system shall
register the facility at least 30 days prior to changing the use of the system
and shall comply with all applicable regulatory requirements before
instituting the changed vise.
#3116, eff 9-17-45; amd by #3160,
eff 12-16-85; ss by #4965, eff 11-2-90
Env— Ws 411.06 Information. Reouired for Registration.
(a) Registration of each underground storage facility shall contain
a complete and detailed description of each aystea of the underground storage
facility.
(b) Registration shall be completed in accordance with federal
regulation* 40 CFE PART 280.22.
#3116, eff 9-17-85; amd by #3160,
eff 12-16-85; ss by #4965, eff 11-2-90
Env-Ws 411
8
t&l
-------
,..„,„ . OSWER Directive 9650.15
Env-Wfl 411.07 Permit to
(a) No person shall operate an underground storage facility without
a perait issued by the Division.
(b) The owner of an underground storage facility shall apply to the
Division for a permit to operate, by providing the following information:
//•'
(1) The name, mailing address, and telephone number of the
facility.
(2) The name, mailing address and telephone number of the owner.
(3) A certification, signed by the owner, that the facility is
in compliance with all applicable statutory and regulatory
requirements .
(c) The Division shall issue a ~ permit to the owner of a new facility
upon approval of the facility plan in accordance with Env-Ws 411.20, and to
the owner of an existing facility pursuant to paragraph (j) below.
(d) A permit issued under this section shall be displayed on the
facility premises at all times.
(e) Unless otherwise specified in RSA 146-0:4, the permit shall be
valid for a period of 5 years.
(f) The permit shall apply to all underground storage systems at the
facility.
(g) If the Division determines that a facility is not in compliance
with applicable statutory and regulatory requirements, the Division shall
issue a notice of non-compliance and permit revocation to the owner, which
shall include:
(1) A listing of compliance deficiencies;
(2) A requirement for achieving compliance within 90 days of
receipt of the notice; and
(3) The date of permit revocation upon failure of the owner to
achieve compliance or request an opportunity for hearing.
(h) At least 180 days prior to the permit expiration date, the owner
shall apply for permit renewal by providing the information required by Env-Ws
411.07(b).
(i) If any system is not in compliance with these rules at the time
of application for permit renewal, the system shall be brought into compliance
no later than the permit expiration date. .. . _____ .. __
Env-Ws 411
9
/la
-------
NEW HAMPSHIRE CODE OF ABUNISTRATIVE RUUS
,,. „_ . OSWER Directive 9650.15'
(j) When a permit renewal application is received the Division shall
determine the compliance status of the system* at the facility and shall not
issue the renewal permit if all systems are not in compliance. If the
Division has not determined the compliance status of the facility's systems by
the permit expiration date and if the owner has applied to the Division in
accordance with Env-Ws 411.07(h), a renewal,; permit shall be issued.
(k) If a permit renewal is not requested, the operator shall .cease
operating the facility no later than the permit expiration date, and the owner
shall close all systems at the facility under Env-Ws 411.17 or Env-Ws 411.18.
(1) A permit issued before the adoption of these rules shall remain
valid until its expiration date as provided in RSA 146-C:4. When permits
issued before the adoption of these rules are renewed, the permit renewal
shall be subject to the requirements of these rules. ^
Source. #3116, eff 9-17-85; amd by #3160,
eff 12-16-85; ss by #4965, eff 11-2-90
Env-Ws 411.08 Tranafer 'of Facility Ownership.
(a) When a transfer of ownership of any underground storage tank,
facility, or system takes place, the new owner shall file an amended
registration form with the Division within 10 days of the transfer.
(b) The seller shall deliver to the buyer all documents and
information related to the tanks, facility, or system regarding:
(1) Inventory; -
(2) New installations;
(3) Testing;
(4) Closure or removals;
(5) Lining;
(6) Monitoring;
(7) Sampling and analysis;
(8) Site assessments;
(9) Equipment maintenance;
(10) Repairs; and
(11) Any other records required to be maintained by these rults.
Sourca. #3116, eff 9-17-85; amd by 13160.
eff 12-16-85; ss by #4965, eff 11-2-90
Env-Ws 411
10
-------
OSWER Directive 9650.15
Eav-Ws 411.09 RESERVED.
Source. #3116, eff 9-17-85; and by #3160,
eff 12-16-85; •• by #4965, eff 11-2-90
Eav-Ws 411.10 Financial R>moon«ihiuty -
(a) Owners of underground storage facilities for oil shall maintain
financial responsibility for costs associated with the cleanup of releases
from systems, the implementation of corrective measures, and compensation for
third party damages in the minimum amount of $1,000,000 per occurrence.
(b) The amount of financial responsibility required shall not limit
an owner's or operator's liability for damages caused by a release.
"^
(c) The requirement for financial responsibility may be satisfied by
strict compliance with all terms of these rules, so that the owner of a
facility is eligible for reimbursement of costs associated with cleanup of
releases from systems, under RSA 146-D.
Source. #3116, eff 9-17-85; ss by #4965,
eff 11-2-90
Env-Ws 411.11 Inventory Monitoring.
(a) The operator of an underground storage facility shall conduct
inventory monitoring of each underground storage tank, and shall maintain
separate records for each tank or interconnected system. The operator shall
certify the accuracy of the records by signing the records no less than
monthly. As an alternative to inventory monitoring, operators of on premise
use heating oil systems may perform annual tank gauging in accordance wittJ
paragraph (k), below.
(b) Operators of facilities not required to conduct inventory
monitoring under rules previously in effect shall begin conducting inventory
monitoring no later than October 1, 1991.
(c) The data maintained for inventory monitoring shall include:
(1) Tank registration number(s) of each system;
(2) Description of the type of substance being stored in each
tank;
(3) All bulk liquid receipta;
(4) All bulk liquid tales or uaes for each operating day;
Env-Ws 411
11
-------
. ,.OSWER Directive 9650.15
(5) Measurement of liquid stored a* follow*:
.a. For aystea* without secondary containment and leak
monitoring, measurement of liquid stored for each operating
day; or
b. For systems with/, secondary containment and leak
monitoring, monthly measurement of liquid stored; and
(6) Monthly measurement of water level in each tank.
(d) All records relating to inventory monitoring, including sales
receipts, shall be maintained for a period of 3 years.
(e) Measurement of liquid stored shall be taken by a gauge stick
which shall be capable of measuring the level of liquid in the tank to the
nearest 1/8 inch or by an automatic tank gauging device of equivalent or
better measuring accuracy.
(f) The tank contents shall be measured and recorded before and
after each bulk liquid delivery to the tank.
(g) The operator shall reconcile the inventory data by comparing the
sales or uses, receipts, and quantities of stored liquid as follows:
(1) For systems without secondary containment and leak
monitoring, daily reconcilation shall be performed; or
(2) For systems with secondary containment and leak monitoring,
monthly reconciliation shall be performed.
(h) If there is a change in water level of 2 inches or more in any
30-day period or less or a total water depth of 3 inches or more or if
reconciliation shows that, for any 30-day period or less, there is an
unexplained gain or lose of regulated substance greater than 1.0 percent of
sales or uses plus 130 gallons, the operator shall notify the Division within
7 days and submit all system inventory record* for the period and the previous
year to the Division within 5 days thereafter.
(i) A tightness test shall be performed, pursuant to Env-Ws 411.13,
on any system with an unexplained gain or loss) of regulated substance greater
than 1.0 percent of sales or uses plus 130 gallons in any 30 day period, or
with an unexplained change in water level of 2 inches or more, or total water
depth of 3 inches or more.
(j) An owner shall perform tank tightness testing of any underground
tank for which inventory monitoring is not performed in accordance with Env-Ws
411.1Kb), or for which records have not been maintained in accordance with
these rules.
Env-Ws
12
-------
UJ.iCVC.LVC
Operators of on premise use heating oil system* may perfora
annual tank gauging in accordance with the following requirements:
(1) The tank shall be filled;
(2) Tank oil and bottom water level measurements shall be
recorded at the beginning aftd ending of an idle period of at
least 30 days, during which/ no oil is added to or removed froo
the tank;
(3) All level measurements shall be based on an average of 2
consecutive level readings; and
(4) The equipment used shall be capable of measuring the level
of oil over the full range of the tank's height to the nearest
1/8 of an inch.
(5) If' the results of the manual tank gauging indicate a change
in water level of 2 inches or more, or a loaa or gain of oil,
the division shall be notified within 7 day*.
(6) Records of oil and water measurement data shall be
maintained for a period of 3 years.
(7) A tightness test shall be performed on any system with an
unexplained gain or loss of oil* or with an unexplained change
in water level of 2 inches or more.
(8) Underground storage system* which meet the requirements of
these rules for new systems shall not be subject to annual tank
gauging requirements.
*. #3116, eff 9-17-85; sa by #4965,
eff 11-2-90
Knv-Ws 411.12 Regulated.
(a) No transfer of regulated substances shall be made to facilities
which are not registered or for which there is not a valid permit to operate.
(b) Before the transfer of regulated substances into a tank, the
operator shall determine that the tank has sufficient receiving capacity to
hold the volume to be transferred.
(c) No transfer shall be made to a tank which is not equipped with
spill and overfill protection devices, as required under Env-Ws 411.25.
* #3116, eff 9-17-85; amd by #3160,
eff 12-16-85; ss by #4965, eff 11-2-90
Env-Ws 411
13
-------
fltw UAflfbaiKt LUi/t ur
Env-Ws 411.13 -Hhttu... T«.tiM. , OSWER Directive 9650.15
(a) All underground storage systems without iecondary containment
and leak monitoring which were required to be tightness tested under rules
previously in effect shall be tightness tested, if at least 1 test has not
been performed. ,
i \
//
(b) Underground storage systems without secondary containment and
leak monitoring which were not required to be tightness tested under rules
previously in effect shall be tightness tested by October 1, 1991.
(c) The tank tightness testing protocol or method shall be tested
and certified by an independent testing laboratory and shall be certified by
the laboratory to meet the leak rate detection criteria of Env-Ws 411. 13 (g).
A complete description of the method or protocol and a copy of the
certification shall be filed with the owner. The owner shall retain the
description and certification for the life of the facility.
(d) When a tightness test is conducted, the person conducting the
test shall send a tightness test report to the owner, the operator, and the
Division no later than 30 days after the date of the test.
(e) The tightness test report shall include:
(1) The facility and tank registration number;
(2) Location;
(3) Owner;
(4) Tank capacity;
(5) Age;
(6) Product stored;
(7) Location of each system tested;
(8) Copies of field records;
(9) Any other information to accurately identify each system;
(10) A statement specifying that the piping was also tested;
(11) A description of any piping, fittings, or connections that
were tightened or repaired;
(12) Waiting periods after product delivery, topping, or vapor
space disturbances;
10 ;^ Env-Ws 411
14
-------
OSWER Directive 9650.15
(13) Temperature measurement equipment and method;
(14) Releveling procedure;
(15) Date of last calibration and maintenance of equipment; ,
(16) Test duration time; antt
(17) Vapor pocket measurement and elimination procedure.
(e) The technician performing the test shall sign a test report
which certifies the validity, method, and accuracy of the test and certifies
that the test complies with requirements of these rules and that he or she is
qualified to perform the test.
(f) The tightness test shall be capable of detecting a system leak
rate of 0.05 gallon ger hour for tanks, of less than 20,000 gallons capacity,
or 0.10 gallon per hour for tanks of 20,000 gallons capacity or larger with a
probability of detection of 0.95 and a probability of false alarm of .05,
accounting for all variables including vapor pockets, thermal expansion of
product, temperature stratification, evaporation, pressure, end deflection,
water table, and tidal action.
(g) A leak or failure shall be indicated by a test result of 0.05
gallon per hour or greater for tanks of less than 20,000 gallons capacity, or
0.10 gallon per hour or greater for tanks of 20,000 gallons or more.
(h) Volumetric tightness tests shall conform to the following
requirements:
(1) There shall be a minimum waiting period of 8 hours after |
product delivery before a tightness test is started;
(2) There shall be a minimum waiting period of 4 hours after
the test equipment is set up and toppe before the tightness
test is started;
(3) There shall be a minimum of 4 hours after the vapor space
is disturbed before the tightness test is started on a
partially-filled tank;
(4) At least 5 temperature sensors or an averaging sensor over
the sane vertical range shall be used to measure product
temperature, or the product shall be circulated;
(5) The hydrostatic head during a precision tightness test
shall be held constant throughout the test;
(6) The level within a standpipe shall be adjusted by the
addition of very small product amounts at a time, the product
shall be at the same temperature as the product in the tank, and
the product shall be added at a location that will not affect
the temperature sensors;
11 ^ Env-Ws 4111
15
-------
.OSWER Directive 9650.15
(7) Precision tightness testing equipment shall be regularly
and accurately calibrated, and properly maintained and installed
in accordance with manufacturers specifications;
(8) The duration of a precision tightness test from actual
commencement of measurements^ and readings shall be at least 4
hours; and
(9) The tester shall experimentally determine the height to
volume conversion factor, shall determine if a volume of trapped
vapor exists which will interfere with test accuracy and shall
take steps to reduce any such volume as much as possible.
(i) The test report and other documents describing the type of test,
contractor, date, materials, all field data and ^any other information
pertinent to the work performed under this section shall be kept by the owner
for the life of the system.
(j) If information submitted to the Division causes the Division to
question the accuracy of the test, the person conducting tank tightness tests
shall provide the Division with information on all testing equipment and
protocols which have the potential to affect the accuracy of the test.
Source. 13116, eff 9-17-85; ss by #4965,
eff 11-2-90
Env— Ws 411.14 Certification of T^flfrry^fljane Performing Tightness Testa.
(a) Any person conducting tank tightness tests shall have an
understanding of the variables which affect the test, be trained in the
performance of the test, and be certified as qualified by the manufacturer of
the equipment used in the testing protocol or method. The technician shall
register with the Division by submitting a manufacturer's training certificate.
(b) Any person conducting tank tightness tests shall keep the
manufacturer's certification and registration with the Division current and
shall notify the Division of any change in employment status. Manufacturer's
certification of qualification shall be valid for 2 years from the date of
certification.
(c) No person shall conduct a tank tightness test to fulfill the
requirements of these rules who is not certified and registered under (a) and
(b) above.
#3116, eff 9-17-85
12 '. Env-Ws 411
16
111
-------
CODE OF
Env-W. 411.13 Ti.htn... Tf|t ,.«,..„.. OSWER Directive 9650.15
(a) The person conducting the tightness left stall notify the
Division and the facility owner and operator immediately of a system tightness.
test failure.
(b) A tightness test failure sha/11 be addressed as follows:
(1) The owner and operator of an underground storage system
shall report any failure to the Division within 24 hours of
receiving notice of the failure;
(2) The owner or operator shall perform an investigation into
the cause of the failure to determine if the system is leaking;
"^
(3) The investigation into the cause of an initial test failure
shall Be completed within 7 days and shall include the
performance of a second confirming tank tightness test;
(4) The owner shall submit a written report to the Division
within 30 days of the failure which describes the work
performedi the repairs made, and any other actions taken in
response to the test failure;
(5) Any underground storage system which fails a second,
confirming teat for tightness shall be completely emptied of
regulated substance within 24 hours of the second failure and
shall be repaired or closed within 30 days; and
(6) The owner may at any time elect to permanently close tha
system instead of conducting an investigation into the cause m
the failure.
(c) Any system which has been repaired after a second tightness test
failure shall be retested for tightness to confirm the effectiveness of the
repairs.
Source. #3116, eff 9-17-85 ; sa by #4963,
eff 11-2-90
Env— Ws 411.16 PBU4UAI Operating Conditions.
(a) The operator shall report any unusual system operating
conditions to the Division within 24 hours, unless the cause is immediately
determined and corrected* and the operator determines that the unusual
operating condition did not result in a release of a regulated substance.
(b) Unusual system operating conditions which require reporting
shall include:
(1) Erratic behavior of dispensing equipment;
13 « Env-ws 4in
17
-------
ft&N ttAftfSiilRfi CODE OF AO1INISTRAIIVE RUU-i
OSWER Directive 9650.15
(2) Unexplained loss of regulated substance or the presence of
regulated substance on the ground surface, surface water or
groundwater at or near the facility;
(3) An increase of 2 inches or more of water in a tank over any
30 day or shorter period or/a total water depth of 3 inches or
more; /
(4) Recorded substance losses indicated by inventory control
records on 18 operating days or more in any 30 day period;
(5) An indication by a leak monitor of a possible leak; and
(6) The presence near the facility of petroleum vapors or
vapors of a hazardous substance.
(c) The operator shall initiate an investigation into the cause of
any unusual system operating conditions within 7 days of the occurrence of the
condition and shall submit a written report to the Division delineating the
investigation and its conclusions. The investigation shall confirm any
suspected release of a regulated substance.
(d) If the Division determines* based on the written report, that a
release of a regulated substance could have occurred, the operator shall
conduct a tightness test of the affected system(s).
Source. #3116, eff 9-17-85; sa by #4965,
eff 11-2-90
Env—Ws 411.17 Temporary QlQimrC*
(a) Temporary closure of underground storage systems shall be
accomplished by removing all liquid regulated substances and tank bottoms,
without excavation of the system. All substances removed shall be disposed of
in accordance with applicable local, state, and federal rules*
(b) Within 30 days of temporary closure, the owner shall notify the
Division in writing that the system has been temporarily closed.
(c) An underground storage system which has been temporarily closed
for 1 year shall be permanently closed in accordance with Env-Wa 411.18 unless
the system meets all requirements of these rules for a new system or a system
with release detection.
(d) An underground storage system which is temporarily closed shall
not be. placed back in service, nor shall any regulated substance be introduced
into the ays tea* until the operator certifies to the Division that the system
is in compliance with applicable statutory and regulatory requirements.
Source #3116, eff 9-17-85; ss by #4965,
eff 11-2-90
14 V Env-Ws 411
18
-------
Env-Ws 411.18 P*""«"-Tir fllnilllT OSWER Directive 9650.15
(a) Steel underground storage systems without corrosion protection
•hall be permanently closed on or before 25 years after the year of
installation. When the year of installation is unknown, the system shall be
permanently closed by October 1, 1995.
(b) Steel underground storage systems without corrosion protection
for which groundwater or soil vapor monitoring devices were installed as an
alternative to permanent closure under rules previously in effect, shall be
permanently closed by October 1, 1995.
(c) The owner shall notify the Division at least 30 days prior to
any scheduled system removal or closure. The Division shall be notified of
emergency removals or closures as far in advance of the work as possible.
(d) Permanent closure shall be-accomplished as follows:
(1) All product, liquid and sludge shall be removed from the
8ystem(s) and disposed of in accordance with applicable state
and federal rules;
(2) All piping shall be disconnected and removed to the
greatest extent possible or permanently capped or plugged;
(3) The tank(s) shall be tested for hazardous or explosive
vapors and rendered free of vapors;
(4) The tank(s) shall be either removed or closed in-place by
filling the tank(s) to capacity with a solid inert material and
filling all voids within the tank(s);
(5) An assessment shall be performed to determine if any
contamination is present using one of the following sampling
methods for the assessment:
a. Test pits shall be excavated in the immediate vicinity
of the system, and representative soil or groundwater
samples shall be obtained; or
b. Soil or groundwater samples shall be obtained from the
exeavation(s) resulting froa the removal of the tank(s); or
e. Existing release detection devices or subsurface
monitoring locations shall be sampled; or
d. For tanks which will be closed in-place, soil samples
shall be obtained at representative locations from beneath
the tank, by cutting sampling access points through the
tank wall.
15 « Env-Ws
19
It-
-------
OSWER Directive 9650.15
e. Soil or groundvater samples shall also be taken at
locations adjacent to the .system piping.
(6) The soil or groundvater samples shall be screened for the
presence of contamination in the field, and submitted to an EPA
certified laboratory for analysis, as follows:
a. Field screening o^C samples shall include visual and
olfactory observation and headspace analysis performed with
a portable organic vapor meter (OVM) or portable gas
chromatograph (GG);
b. Laboratory analysis of samples shall include tests for
volatile organic compounds (VOC) and total petroleum
hydrocarbons (TPH) if the system stored motor fuel, or test
for total petroleum hydrocarbons (TPH) if the system stored
. heating oil or waste oil, or the appropriate EPA test
method for hazardous substances; and
(7) Results of the assessment performed under (5) above and the
laboratory analysis of samples performed under (6) above shall
be submitted to the Division within 30 days of the closure.
(e) If soil or groundwater contamination from the regulated
substance is detected by observation or analysis during closure of an
underground storage system, the Division shall be notified immediately. All
requirements of Part Env-Ws 412 shall be complied with.
(f) The excavation shall not be backfilled, nor shall the closed
tank be removed from the site until the Division baa inspected the site and
approved the closure. If the Division is unable to inspect the site within 7
daya, the Division shall grant permission for a consultant or other person
knowledgable in site assessments for contamination to inspect the site. When
such permission is granted, the person inspecting the site shall submit a
report to the Division. The report shall contain a detailed account of
inspection of soil and groundwater in the vicinity of the tank, and of an
inspection of the closed tank(s) for evidence of corrosion and leakage.
(g) Underground storage systems which have not been temporarily or
permanently closed shall be subject to all requirements of these rules.
(h) Documents pertaining to the closure of the tanks or system,
including contractor's invoices, manifests for disposal of materials, testing
and analytical reports, and any other documents generated from the closure
shall be kept by the owner for 10 years. These documents shall be transferred
to the new owner at the time of a transfer of facility ownership.
Source. #3116, eff 9-17-85; ss by #4965.
eff 11-2-90
16 Env-Ws 411
20
-------
OSWER Directive 9650,15
411.19
(a) Underground storage tank* which have been removed that do not
meet the standards for new tanks shall aot be reuaed aa underground storage
tankii for regulated substances. i
(b) A tank once used for regulated substances shall not be reused to
storti food producta or potable water. /
#3116, eff 9-17-85; ss by #4965,
eff 11-2-90
Unv-Ws 411.20 RequireaMta for Approval of Underground Storage Sva terns.
(a) At least 90 days prior to commencing construction or
installation of a new or replacement underground atorage system or of a
substantial modification of an underground storage system, the owner shall
submit plans and specifications to the Division. The plans shall be prepared
and • tamped by a registered professional engineer, licensed to practice in the
stats of New Hampshire.
(b) Within 90 days of submission of plans and specifications, the
Division shall approve plans which demonstrate compliance with the
requirements of these rules, or issue a notice of incompleteness or
disapproval for plans which do not demonstrate compliance with theae rules.
(c) An owner shall not cause or allow a change which is not in
accordance with the approved plans and all tens and conditions of the
Division's approval.
(d) An approval shall be valid for 1 year from the date
issuance. If construction of the installation is not completed within 1
the approval shall be void.
Sourea. *3116, eff 9-17-S ss by #4965,
eff 11-2-90
Env— Ws 411.21 TfflK S^aftdnrda for New Underground StPfag* ^fiBA*
(a) All glass fiber reinforced plastic undergrotr . storage ta .3
designed for storing regulated substances shall be manufactured in accordance
with standards of Underwriters Laboratories* Inc.* UL 1316, or Underwriters
Laboratories of Canada, CANA-S615-M83.
(b) All double-walled ateel underground storage tanka designed for
storing regulated substances shall be manufactured with outer jackets of a
minijmjm of 10 gauge in thickness.
(c) All__composite underground storage_ tanka designed for storing
"regulated substances— shaH — be— manufactured in " accordance with Underwriters
Laboratories Standard 1746, or the Association for Composite Tanks ACT-100.
17 ;. Env-Ws'41)
21
-------
ft&W HArtf SJiiA£ CODE OF ADMINISTRATIVE RULES
OSWER Directive 9650.15
(d) All underground storage tank* designed for itoring regulated
substances and constructed of steel clad, with fiberglass reinforced plastic
shall be manufactured in accordance with one of the following standards:
(1) Underwriters Laboratories of Canada, Inc. ULC-603, Standard
for Protected Steel Underground Tanks for Flammable and
Combustible Liquids; or /
(2) Underwriters Laboratories, Inc., USA, UL 58, Steel
Underground Tanks for Flammable and Combustible Liquids; or
(3) Code for Unfired Pressure Vessels; Section VIII, Division I
of the ASME Boiler and Pressure Vessel Code.
(e) All tanks shall provide secondary containment unless enclosed in
a vault. Secondary containment shall enclose at least the lower 300 degrees
of the inner tank.
(f) The secondary containment wall or envelope shall not be in
contact with the inner wall, such that a leak of the inner tank would not be
detected due to restriction of product flow to the monitoring sump.
(g) There shall be no penetrations of any kind through the jacket to
the tank except top entry fittings required for filling, venting, and
monitoring of the interstitial space.
(h) All new tanks shall have a wear plate constructed of steel or
glass fiber reinforced plastic installed under each tank opening covering an
area of at least 144 square inches, for purposes of protecting the tank wall
from abrasion or puncture.
(i) New underground storage tanks shall bear a stencil, label or
plate which contains the following information:
(1) The standard of design by which the tank was manufactured;
(2) The year in which the tank was manufactured;
(3) The dimensions and capacity of the tank; and
(4) The name of the manufacturer.
(j) A certificate which shows all of the information required above
and which also show* the date of installation and the regulated substances and
percentage* by volume of any additives which may be stored permanently and
compatibly within, shall be conspicuously displayed and permanently affixed at
the facility premises.
(k) Documents or copies of documents describing manufacturer's
warrantees, equipment items, contractor, equipment maintenance, repairs or
testing, and all other information pertinent to the tank installation and
system components shall be kept at the facility for the life of the
system(s). These records shall be transferred to the new owner(s) at the time
of a transfer of facility ownership.
18 - Env-Ws 411
22
-------
OF
OSWER Directive 9650.15
(1) Owner* and operators shall maintain records which show that new
tanks and their welds , seams, and connecting fittings were factory tested for
tightness using standard engineering practices. Records shall certify thaj
each tank is guaranteed by the manufacturer against leakage for a period of Ifl
years. ,• .
(ffl) The regulated substance stored shall be compatible with the
interior lining or wall of the tank, piping system, and all components,
gaskets, sealants, that will be in contact with the stored substance. If the
regulated substance stored is changed, and it is not listed as a substance
that is compatible with the tank, a written confirmation from the manufacturer
shall be obtained certifying the compatibility of the liquid with the system,
prior to the change.
f3116, eff" 9-17-85; ss by #4965,
eff li-2-90
Env— Ws 411.22 Piping Stflfldftrda for New Underground Storage. SYltCBJ-
(a) All new underground pipes, fittings* and connections shall be
constructed of fiberglass reinforced epoxy, galvanized steel, black iron,
stainless steel, or copper.
(b) Fiberglass reinforced epoxy piping shall meet ASTM Specification
D-2996-71, Standard Specification for Filament Wound RTRP, Underwriters
Laboratory Subject 971 "Listed non-metal pipe" or Underwriters Laboratories of
Canada Guide ULC-107 "Glass Fiber Reinforced Plastic Pipe Fittings for
Flammable Liquids". Ultimate sheer strength of adhesive and curing agent
shall be in compliance with ASIM D-2517-66T, as approved and supplied b]
manufacturer.
(c) Steel or iron piping shall be Schedule 40 or heavier and shall
have protective wrapping or di-electric coating and be cathodically protected
by impressed current or sacrificial anodes. Galvanized Steel shall meet
standards as in American Petroleum Institute Publication 1615 "Installation of
Underground Petroleum System";
(d) Copper tubing shall be contained in a non-metallic sleeve to
protect it from damage and corrosion.
(e) Underground metal piping and components routinely containing
regulated substances and in contact with the soil or other backfill material
shall have a cathodic protection system designed under the supervision of a
corrosion specialist accredited by the National Association of Corrosion
Engineers and the design shall be submitted as part of the plans required
under Env-Ws 411.20.
(f) Except when cathodic protection is provided by impressed
current, underground metal piping -stems shall have di-electric bushings
installed to electrically isolate piping system from the tank and the
dispcmser, or other end use point, and at any change in the metal type, such
as at: flexible connectors.
19 < Env-Ws 411
23
-------
dArtPSfllRE CODE OF ADMINISTRATIVE
OSWER Directive 9650.15
(f) If metal pipe if totally isolated from the toil via secondary
containment, cathodic protection of the piping shall not be required.
(h) Steel or iron fittings used with fiberglass piping shall be
thoroughly wrapped and sealed with a /dielectric material or shall be
cathodically protected. /.
(i) Stainless steel flexible connectors shall be thoroughly wrapped
or coated to completely isolate then from the soil and from metal piping to
the pump, or shall be cathodically protected.
(j) All new underground piping systems shall be designed,
constructed, and installed with access and isolation points to permit
independent pressure testing of the tank and piping without the need for
extensive excavation.
(k) With the exception of heating oil systems for on-premises use,
suction pump systems shall have only 1 check valve, placed as close to the
pump as possible.
(1) Pressure and Temperature Limitations shall meet ANSI B31,
American National Standard Code for Pressure Piping.
Source... #3116, eff 9-17-85; ss by #4965,
eff 11-2-90
Env— Ws 411.23 Secondary Con^*^r|"igpt fQr New
T '•
(a) Secondary containment shall be provided for all new tanks.
(b) A double-walled tank constructed in accordance with Env-Ws
411.21 shall satisfy the requirements of this section for tank secondary
containment.
(c) A concrete vault may be used for secondary containment of a
single wall tank and shall meet the following requirements:
(1) It shall be watertight, impervious to leakage of regulated
substances;
(2) It shall be able to withstand chemical deterioration and
structural stresses from internal and external causes;
(3) It shall be a continuous structure;
(4) It shall have no drain connections or other entries or
openings through the vault;
(5) It shall be constructed of continuously poured reinforced
concrete with chemical resistant water stops at any construction
joint;
20 < Env-Ws 411
24
-------
NEW HAMPSHIRE CODE OF ADMINISTRATIVE RULES
OSWER Directive 9650.15
(6) Top slabs shall be reinforctd;
(7) The interior shall be sealed with a material compatible.
with the stored product, or otherwise designed to make it(
impervious to leakage of the stored liquid or intrusion of
groundwater; .('
(8) It shall have only top openings, solely for tank entry
manholes* piping, or for monitoring and pumping of liquid from
the vault;
(9) All penetrations shall be sealed or otherwise designed to
prevent intrusion of precipitation or surface runoff.
(d) The tank shall be encased or bedded in the vault in accordance
with the manufacturer's requirements.
(e) All secondary containment access ports shall be conspicuously
marked or labeled and shall be secured.
5£nv-Ws 411.24 Secondary Confra.jnm.ent ^Qr New ?r
-------
OSWER Directive 9650.15
(d) Spill containment equipment shall prevent the release of product
to the environment when the transfer hose is detached from the fill pipe, and
•hall have a minimum capacity of 5 gallons.
(e) The overfill protection equipment shall alert the transfer
operator when the tank ia no more than 90% full by restricting the flow into
the :ank or by triggering a high level Audible alarm, or shall automatically
shut off flow into the tank when the tank'/ is no more than 951 full.
(f) All gauges, alarms, or automatic or mechanical devices
associated with spill containment and overfill protection shall be maintained
in good working order to perform their original design function.
Source. #4965, eff 11-2-90
Env-Ws 411.26 Leak Monitoring; for New T*"ki-
(a) Leak monitoring shall be installed and continuously operated for
all new tanks.
(b) Double-walled tanks shall have continuous monitoring of the
interstitial space for both the regulated substance and water.
(c) Single wall tanks shall have continuous monitoring of the
annular space between the tank and the secondary containment structure for
both the regulated substance and water.
(d) The leak monitoring device shall be able to detect the regulated
substance stored and its vapors if the substance ia volatile, as well as the
presence of water.
Sourea. #4965, eff 11-2-90
Env-Ws 411.27 Leak Monitoring for New Pnderrfl^ff1^ PlP&fl
(a) New underground piping systems) which operate under pressure
shall be equipped with leak monitoring.
(b) A UL-approved line leak detector shall be employed which shall
be capable of detecting a line leakage rate of at least 3 gallons per hour at
10 pounds per square inch, and shall shut-off, restrict product flow or
otherwise notify the operator if the leakage rate is exceeded.
(c) The interstitial space of the double wall piping or the annular
space between the primary piping and the secondary containment system shall be
continuously monitored to detect the presence of the regulated substance or
the vapors of the regulated substance.
(d) The piping collection sump and the submersible pump head
containment structure shall employ a leak monitor, activated -by liquid -or by
vapors of the regulated substance.
#4965, eff 11-2-90
22 . Env-Ws 411
26
/Z7
-------
OSWER Directive 9650.15
ilnv-Wi 411.28 InatalJntjpn Of N(M, UnHerg,round Storage SvflCenB.
(a) Tank and individual system component installations shall be
performed according to the manufacturer's requirements and national and
industry codes. Installation items not included in the manufacturer's
requirements shall be performed accordingyto PEI RP 100-87, API 1615, and API
1632. Safety and testing requirements According to NFPA 30 and NFPA 329,
shall, be complied with.
(b) For steel tanks, the tank coating shall be thoroughly inspected,
and any scratches, gouges, voids, or other discontinuities found in the
coating shall be repaired according to the manufacturer's requirements prior
to installation.
(c) Whenever an existing tank is removed prior to the installation
of t. new tank,, all. the requirements. of Env-Ws 411.18 shall be met. If
evidence of a discharge of regulated substance is discovered, the Division
shall be notified immediately. All requirements of Part Env-Ws 412 shall be
followed.
(d) Whenever an existing tank is removed prior to the installation
of t. new tank all system piping that does not meet the standards for new
underground storage systems as specified in Env-Ws 411.22 shall be removed.
(e) Systems shall not be installed in areas subject to flooding over
the top of the tank unless provisions are made to ensure that the tank shall
not float and its contents shall not escape during a flood. For areas where
the ground surface is below the 100 year flood elevation, special provisions
for tank anchoring and product containment shall be provided to the Division
with the plan required by Env-Ws 411.20.
(f) All new underground piping shall be laid out so as to minimize
crossovers and, within construction limits, shall run in a compact trench to
the ;?oint of use.
(g) Piping shall slope continuously towards the tank at a minimum of
1/8 inch per foot.
(h) The owner shall notify the Division of the completion of the
installation of a new system at least 7 days prior to final backfilling, to
arrange for an inspection.
(i) The Division shall inspect the system prior to backfilling, and
owners shall correct any discrepancies discovered by the Division between the
completed installation and approved plans, within 30 days and shall notify the
Division to arrange a follow-up inspection.
(j) The installer shall certify that the installation has bt«n
completed in accordance with approved plans -and - specifications *nd
manufacturer's requirements, in accordance with 40 CFR PART 280.22(f).
23 . Env-Wt
27
-------
Ji&w aAfuraauu. ^uwt u* AflMiNiSlKAiivc -.._..
OSWER Directive 9650.15
(k) The new system shall not be backfilled or placed into service
until final inspection has been performed by'the Division.
Source. #4965, eff 11-2-90
Env-Ws 411.29 Release Detection for Tanka Without Secondary Containment
and, Leak Monitoring- f*
V
(a) -With thu uiaepiluu e* en pi-eaise aac heating eil syateauit
underground storage tanks without secondary containment and leak monitoring
shall be equipped with release detection and/or be monitored for releases
according to the following schedule:
Installation Year peadline
Before 1966 or unknown Immediately
1966 - 1969 - - Dec. 22,-1990
1970 - 1974 Dec. 22. 1991
1975 - 1979 Dec. 22, 1992
1980 or after Dec. 22, 1993
(b) Owners of underground storage facilities without secondary
containment and leak monitoring shall conduct annual tightness testing,
automatic tank gauging, groundwater monitoring, or soil gas vapor monitoring
for release detection. Prior to initiating release detection, owners shall
submit a plan to the division which demonstrates that the release detection
method chosen meets the requirements of this section.
(c) When tightness testing is used for release detection, the system
shall be tested at least annually. Tightness testing shall not be used as a
release detection method after December 22, 1998.
(d) When automatic tank gauging is used for release detection, the
gauge shall provide at least one monthly test for tank leakage with a
detection limit of at least 0.2 gallons per hour. In-tank monitoring shall
operate in a leak detection mode for at leaat 2 hours during each 24 hour
period.
(e) When groundwater monitoring is used for release detection, the
release detection method shall conform to the following requirements:
(1) The stored substance shall be immiscible in water and have
a specific gravity of less than 1;
(2) The groundwater table shall be within 20 feet of the ground
surface;
(3) Monitoring wells shall be installed to intercept the tank
excavation zone which is the volume containing the tank system
and backfill material bounded by the ground surface, walls, and
floor of the pit or trenches into which the underground storage
tank system is placed at the time of installation;
24 Env-Ws 411
28
-------
LUt/C, Uf AJjOi^iaiRAiAVt RULA5
OSWER Directive 9650.15
If the requirements of paragraph (e)(3) above cannot be
met, monitoring wells shall be placed as close to the tank(s) as
technically feasible and the well screen of the monitoring well
shall completely intercept seasonal fluctuations in the wated
table; . '
(5) The hydraulic conductivity of the soil surrounding a
monitoring well and between a monitoring well and the tank shall
be greater than 0.01 centimeters per second;
(6) The slotted portion of the monitoring well casing shall be
designed to prevent migration of natural soils or filter pack
into the well but to allow entry of regulated substance on the
water table into the well under both high and low grade-water
conditions;
(7) Monitoring wells shall be seal from the ground surface to
the top of the filter pack;
(8) Monitoring wells shall be c. irly marked and secured to
avoid unauthorized access and tampering; and
(9) The device(s) or method(s) for monitoring shall provide at
least 1 monthly test of the groundwater for the presence of the
regulated substance stored in the system, and shall be able to
detect the presence of 1/8 inch or more free product on the
groundwater.
(f) When soil gas vapor monitoring is used for release detection,
the release detection method shall conform to the following requirements:
(1) The device(s) or sethod(s) for monitoring shall provide at
least 1 monthly test for "he presence of the regulated substance
stored in the tank;
(2) The stored liquid ir approved tracer additive shall be
sufficiently volatile :o provide a vapor level that is
detectable by the monitoring device(s) utilized;
(3) The measurement of vapors by the monitoring device shall
not be rendered inoperative by the groundwater, rainfall, or
soil moisture or other known interferences such that a release
could go undetected for more than 30 days.
(4) The monitoring device (s) shall be installed to intercept
tfie tank excavation zone, or shall be placed as close to the
tank(s) as possible;
25 * Env-Ws 411
29
-------
OSWER Directive 9650.15
(5) The subsurface materials and conditions surrounding the
monitoring device(s) and between the device(s) and tank, shall
be sufficiently porous in their in-situ condition to readily
allow diffusion of vapors from the tank to the device(s);
(6) The vapor monitors shall.be designed and operated to detect
any increase in concentration above background concentrations;
and
(7) Monitoring wells installed for soil gas vapor monitoring
shall meet the same requirements as wells installed for
groundwater monitoring, except the screened interval need not
intercept groundwater.
Source. #4965, eff .11-2-90
Env-Ws 411.30 Release Detection for Piping.
(a) Release detection for pressurized piping without secondary
containment and leak monitoring shall be installed and operational by December
22, 1990. Prior to initiating release detection, owners shall submit a plan
to the division which demonstrates that the release detection method chosen
meets the requirements of this section.
(b) Release detection for systems with pressurized piping shall be
equipped with an automatic line leak detector which shall restrict or stop the
flow of the stored substance, and which shall trigger an audible or visual
alarm upon detecting a leak at a rate of 3 gallon* per hour at a pressure of
10 pounds per square inch within 1 hour. Automatic line leak detectors shall
be tested annually to confirm that they are in good working order.
(c) Release detection for systems with pressurized piping shall
utilize one of the following:
(1) Groundwater monitoring in accordance with Ws 411.29(e); or
(2) Soil vapor monitoring in accordance with Ws 411.29(f).
(3) Annual line tightness testing.
(d) When annual line tightness testing is utilized, test results
shall be submitted to the Division. Pipe pressure tightness tests shall have
a detection limit of 0.1 gallon per hour at 1.5 times operating pressure.
(•) Release detection for system piping at facilities utilizing
suction piping or atmospheric piping shall be required on the same schedule as
release detection is required for tanks under Env-Ws 411.29(a).
(f) Release detection for systems with suction or atmospheric piping
shall be one of the following: .. — ~
(1) Performance of a line tightness test once every 3 years;
26 Env-Wt 411
30
i3>\
-------
(2) Groundwater monitoring in accordance with Env-Ws 411.29(e);
or
(3) Soil vapor monitoring in accordance with Env-W« 41i.29(f).
(g) Release detection shall not be required for suction or
atmospheric piping that is demonstrated,^ by division inspection or by plans
submitted by the owner, to be designed and constructed to meet the following
standards:
(1) The below grade piping operates at less than atmospheric
pressure;
(2) The below grade piping is sloped so that the contents of
the piping will drain back into the storage tank if the suction
is released;
(3) Only one check valve is included in each suction line; and
(4) The check valve is located directly below and as close as
practical to the suction pump.
x 04965, eff 11-2-90
Env-Ws All. 31 Operation of Leak Monitoring Equipment.
(a) Leak monitoring equipment and devices shall be maintained in
good working order at all times to continuously perform their original design
function and shall be tested annually for proper operation in accordance with
the manufacturer's requirements. All records pertaining to the equipment
manufacturer, warrantees, maintenance requirements* repairs, maintenance, anJ
testing shall be maintained for the life of the system and shall be stored o'
the facility premises.
(b) Leak monitoring devices shall not be shut off or deactivated at
any time. Any malfunction shall be repaired within IS working days. If the
device(s) cannot be repaired within 15 days, the affected system(s) shall be
temporarily closed until satisfactory repairs are made. Any deactivation of a
monitor shall be immediately reported to the Division by the operator.
(c) Leak monitors shall employ an audible alarm and visual
indicator, and shall be so located as to be readily heard and seen by the
operator or other personnel during normal working hours*
(d) All monitoring devices shall be conspicuously marked or labeled
as being monitoring devices and shall be secured against vandalism and
incidental damagw.
Source. 04965, eff 11-2-90
27 « Env-Ws 411
31
-------
NEW HAMPSHIRE CODE OF ADMINISTRATIVE RULES
Env-W. 411.32 rnmf^ Faction f«.»»~i T...I... °SWER Directive 9650.15
(a) All new underground storage tanks shall be protected froa
corrosion. Corrosion protection for new tanks shall comply with 40 CFR PART
280.20(a).
/'
(b) All existing steel underground storage tanks shall be protected
from corrosion no later than December 22, 1998. Corrosion protection for
existing steel tanks shall comply with 40 CFR PART 280.21(b)(2) or 40 CFR PART
280.21(b)(3).
(c) All new and existing cathodic protection systems shall be
equipped with an accessible test connection or monitor. Sacrificial anode
systems shall be tested within 6 months of installation and every 3 years
thereafter, by a qualified cathodic protection tester who has an understanding
of the principles and. measurements of all common types of techniques used to
prevent corrosion of a metal surface by making that surface the cathode of an
electrochemical cell as applied to buried or submerged metal piping and tank
systems. Monitors for impressed current systems shall be checked monthly.
Source. 04965, eff 11-2-90
Env-Ws 411.33 Corrosion Protection for Piping.
(a) All new piping that routinely contains regulated substances and
is in contact with the ground shall be protected from corrosion. Corrosion
protection for new piping shall comply with 40 CFR PART 280. 20 (b).
(b) All existing metal piping that routinely contains regulated
substances and is in contact with the ground shall be protected from corrosion
no later than December 22, 1998. Corrosion protection for existing metal
piping shall comply with 40 CFR PART 280. 21 (c).
04965, eff 11-2-90
Env— W§ 411.34 Submission of Corrosion Protecting flfln- At least 90 days
prior to retrofitting or field installing corrosion protection measures for
underground storage systems existing prior to October 1, 1990, an owner of an
underground storage system shall submit a corrosion protection plan to the
Division in accordance with Env-Ws 411.20.
#4965, eff 11-2-90
Env-Ws 411.35 Relininf Steel Tanks.
(a) A steel underground storage tank may be repaired by installing
an interior liner no more than once during the life of the tank, subject to
the following conditions:
(1) The tank has passed a tightness test conducted in
accordance with Env-Ws 411.13;
28 Env-Ws 411
32
-------
OSWER Directive 9650.15
(2) Inventory records have been maintained for the preceding
three years and do not show a loss of liquid, or an assessment
is performed which indicates that no contamination is present;
and
(3) The liner material is compatible with the regulated
substance stored. /
f
(b) Steel tank re lining shall be accomplished in accordance with
American Petroleum Institute Publication 1631, "Recommended Practices for the
Interior Lining of Existing Steel Underground Storage Tanks".
(c) Plans and specifications shall be submitted to the Division in
accordance with Env-Ws 411.20.
(d) The system shall be tightness tested in accordance with Env-Ws
411.13 after relining-of the tank is completed.
(e) The relining shall not be considered to affect any of the
requirements of these rules relative to the age of a tank.
(f) The lining shall be tested after 10 years* then every 5 years
thereafter for structural soundness, voids, detachment from the metal tank, or
other defects. If at any time the lining is determined not to be functioning
as originally intended and installed, the tank shall be permanently closed.
(g) Documents shall be retained for the life of the tank which
describe the lining manufacturer, contractor, date, warrantees, procedure,
materials, and any other information pertinent to the work.
#4965, eff 11-2-90
Env-Ws 411.36 Repair of Fiberf lass-Reinforced Elastic Tank*.
(a) An underground f iberglass-reir "orced plastic tank shall be
repaired only once during the life of the tank and such repairs shall be
subject to the following conditions:
(1) The tank has passed a precision tightness test conducted in
accordance with Env-Ws 411.13 and inventory records for the
preceding three years indicate no loss of stored liquid, or an
assessment is performed which indicates that no contamination is
present; and
(2) The repairs shall not be considered as affecting the age of
the tank for the purposes of these rules.
(b) Plans and specifications shall be submitted to the Division in
accordance with Env-Ws 411.20.
(c) Repairs shall be conducted in accordance with manufacturer's
requirements or nationally recognized codes and standards.
29 Env-Ws 411
33
-------
NEW HAMPSHIRE CODE OF ADMINISTRATIVE KUUS
OSWER Directive 9650.15
(d) Following completion of the, repair of the tank, and before
backfilling, the system shall be tightness tested in accordance with Env-Ws
411.13.
(e) Documents shall be maintained for the life of the tank which
describe the material(s) manufacturer^), contractor, date of repair,
warrantees, procedures, materials, and otjtter information pertinent to the work.
#4965, eff 11-2-90
Env-Ws 411.37 Repair and Replacement of Piping Systems.
(a) Piping systems which discharge or release liquid shall be
replaced by systems meeting the requirements of Env-Ws 411.22.
(b) When a tank is removed and replaced, all piping shall also be
replaced, unless" it meets the requirements of these rules for new piping.
Source. fA965, eff 11-2-90
Env-Ws 411.38 Field-Fabricated Tanks.
(a) Field-fabricated underground storage tanks shall not be used
unless the complete system is designed by a registered structural engineer.
(b) New field-fabricated tanks shall meet all requirements of these
rules for new installations.
(c) The design engineer shall certify that a field fabricated tank
is necessary because installation of a factory fabricated tank is not
feasible, and that the design plans and specifications meet all requirements
of these rules.
x #4965, eff 11-2-90
Env-Ws 411.39 Secondary Containment for Hazardous, Substapce Systems.
(a) All hazardous substance underground storage systems without
secondary containment and leak monitoring shall be closed by December 22, 1998.
(b) Approval of secondary containment system installations shall be
in accordance with Env-Ws 411.20.
x #4965, eff 11-2-90
Env-Wa 411.40 Waiver*.
(a) An owner may request a waiver of specific rules in this Part in
accordance with paragraph (b) below.
30 Env-Ws
34
-------
OSWER Directive 9650.15
(b) All request* for waivers shall be submitted in writing to the
Division and shall include the following information:
(1) A description of the facility to which the waiver request
relates, including the name, address, and registration number oH
the facility.
/, '
(2) A specific reference £o the section of the rule for which a
waiver is being sought;
(3) A full explanation of why a waiver is necessary;
A full explanation of the alternatives for which a waiver
is sought, with backup calculations and data for support; and
(5) A full explanation of how the grant of the waiver is
consistent with the intent of RSA 146-C.
(c) The Division shall approve a request for waiver upon finding
that:
(1) The alternatives proposed are at least equivalent to the
specific requirements contained in the rule; or
(2) If the alternatives proposed are not equivalent to the
requirements contained in the rule, they are adequate to ensure
that the intent of RSA 146-C is met.
(d) No waiver shall be granted which, in the judgment of the
Division, contravenes the intent of any rule.
(e) The Division shall issue a written response to a request for
waiver within 60 days of receipt of the request.
#4965, eff 11-2-90
31 Env-Ws
35
-------
New Hampshire Code of Administrative Rules
Env-Ws 412
Reporting and Remediation of Oil Discharges
November 1990
N.H. Department of Environmental Services
NHDES
-------
OSWER Directive 9650.15
PART Env-Ws 412 REPORTING AND REMEDIATION OF OIL DISCHARGES '
Statutory Authority: RSA 146-A:11-C
Env-Ws 412.01 Purpose. The purpose of these rules is to establish!
procedures and requirements for notification, reporting, response actions, and
investigations for sites where discharges Af oil have occurred.
Source. #4966, eff 11-2-90
Env-Ws 412.02 Applicability. Any responsible party or other person
having knowledge of a discharge of oil shall report such discharge to the
Division immediately, unless all of the following conditions are met:
(a) The discharge is less than 25 gallons;
"«%
(b) The discharge is immediately contained;
(c) The discharge and/or contamination is completely removed within
24 hours; and
(d) There is no impact or potential impact to groundwater or surface
water,
Source. #4966, eff 11-2-90
Env-Ws 412.03 Definitions.
(a) "Discharge" means a leak, spill, or release of oil to the
environment.
(b) "Contamination" or "contaminated" means the results of discharge
of oil into groundwater, surface water or soil.
(c) "Free Product" means oil which exists as a separate phase or
layer of greater than 1/8" thickness on water.
(d) "Responsible Party" means an operator or other person who is
strictly liable for a discharge of oil under RSA 146-A:3-a.
(e) "Receptor" means a living organism or an environmental medium
which is exposed to contamination from a discharge.
(f) "Site" means the place or location where a discharge is known or
suspected to have occurred.
#4966, eff 11-2-90
Env-Ws 412
37
-------
Env-Ws 412.04 Notification. OSWER Directive 9650.15
(a) Persons notifying Che Division of confirmed or suspected
discharges of oil shall provide the following information:
(1) The name and phone number of the person notifying the
Division; f
(2) The location of the discharge site;
(3) The date and time of the discharge; and
(4) The type and amount of oil discharged; and
(5) The name and phone number of the party potentially
responsible for the discharge.
(b) If the spill occurs during normal working hours, notification
shall be directly to the Division. If the reporting p?.rty is unable to
contact the Division, notification shall be to the State Pol^e.
Source. #4966, eff 11-2-90
Env-Ws 412.05 Initial Response Action. When a discharge occurs any
responsible party shall take the following actions immediately:
(a) Assess the situation and evaluate fire, health and safety
hazards;
exists;
(b) Stop the discharge;
(c) Contact the local fire department if a fire or safety hazard
(d) Notify the Division or State Police as required under Section
Env-Ws 412.04;
(e) Contain and remove all discharged oil and oil-contaminated
debris;
(f) Dispose of discharged oil and oil-contaminated debris la
accordance with all applicable local, state and federal rules;
(g) Monitor and mitigate fire, health and safety hazards posed by
vapors or free product; and
(h) Take any action necessary to prevent environmental damage tram
the discharge.
Source. #4966,-eff 11-2-90 -
Env-Ws MI
-------
NEW HAMPSHIRE CODE OF ADMINISTRATIVE RULIS
OSWER Directive 9650.15
£nv-Ws 412.06 Abatement Meiumrea. After initial response action,
responsible parties shall perform the following abatement measures:
(a) Ensure that fire, health and safety hazards posed by fresl
product or vapors continue to be monitored and mitigated;
(b) Remediate hazards posed tftf contaminated soils that have been
excavated or exposed as a result of the initial response action or site
characterization. In undertaking remediation, all applicable local, state,
and federal laws and regulations shall be complied with;
(c) Investigate to determine the possible presence of free product;
and
(d) If free product is present, begin free product removal as soon
as practicable in accordance with Env-Ws 412.07.
Source . #4966, eff 11-2-90
Env— Wa 412.07 Free Product
(a) At sites where free product is present, responsible parties
shall remove the free product in a manner that minimizes the spread of
contamination.
(b) Discharges and by-products from free product recovery and
disposal operations shall be treated or disposed of in compliance with
applicable local, state and federal regulations;
(c) Free product removal systems shall be designed to completelj
remove free product;
(d) Flammable products shall be handled in a safe and competent
manner to prevent fires or explosions; and
(e) Documentation of free product removal measures shall be
submitted to the Division with the initial site characterization report
required under Env-Ws 412.08 and shall contain the following information:
(1) The names of the per son (s) responsible for implementing the
free product removal measures;
(2) The estimated quantity, type, and thickness of free product
observed or measured;
(3) The type of free product recovery system used;
(4) Whether any discharge of treated water takes place on-site
or off-site during the recovery operation and where this
discharge is located; - ...........
Env-Ws 412
39
-------
NEW HAMPSHIRE CODE OF ADMINISTRATIVE RULES
OSWER Directive 9650.15
(5) The type of treatment applied to any contaminated water
pumped or extracted to effect free product removal;
(6) The step* that have been or are being taken to obtain
necessary permits for any discharge of treated water; and
(7) The disposition of the/ recovered free product.
#4966, eff 11-2-90
Env-Ws 412.08 Initial Site Characterization.
(a) Responsible parties shall conduct an initial site
characterization unless they conclusively demonstrate to the Division that the
discharge has not resulted in any contamination. The purpose of the initial
site characterization shall be to obtain information about the hydrogeology of
the site and Che nature of the discharge, and identify any receptors and
potential receptors.
(b) Responsible parties shall conduct field investigations to assess
the discharge in areas where contamination is most likely to be present at the
site. In selecting sample types, sample locations, and measurement methods,
responsible parties shall consider the nature of the discharged substance, the
type of initial alarm or cause for suspicion, the types of backfill around any
underground storage tanks, the distance to surface water and the depth to
groundwater.
(c) Responsible parties shall sample the environment most likely to
be contaminated by a confirmed or suspected discharge. Analysis of soil gas,
groundwater, surface water, or soils shall be used.
(d) Environmental samples collected at the site may be field
screened with an organic vapor analyzer and shall be analyzed at an EPA
certified laboratory.
(e) Within 30 days of the notification to the Division of a
discharge, responsible parties shall submit a Site Characterization Report to
the Division which shall include the following:
(1) Data on the nature, location, and estimated quantity of the
discharge;
(2) Data from available sources or other investigations
concerning:
a. Surrounding populations;
b. Water quality;
c. Use and approximate locations of drinking water
supplies potentially affected by the discharge;
Env-Ws 412
40
-------
NtW ttAnr&ttAKt COD£ Of AiWLNiSTRAIiVt RULES
d. Subsurface soil conditions; OSWER Directive 9650.15
e. Locations of underground utilities, drains, sewers; and
f. Land use.
(3) Documentation of free product removal;
i
(4) Information gained while conducting the abatement measures
in Env-Ws 412.06; and
(5) A preliminary assessment of receptors and potential
receptors.
Source. #4966, eff 11-2-90
Env— Ws 412.09 Investigation Due to p^geoverv of Discharges from Unknown
Sources. When a discharge from an unknown source is discovered, the owners
and operators of facilities near the location of the discovery shall conduct
an initial site characterization in accordance with Env-Ws 412.08 unless the
owner or operator can conclusively demonstrate that a discharge has not
occurred at the facility. The initial site characterization shall determine
if a discharge has occurred at the facility.
. 04966, eff 11-2-90
Env-Ws 412.10 Site Investigation.
(a) Upon completion of an initial site characterization, responsible
parties shall investigate the discharge, the discharge site, and the off-sitej
surrounding area possibly affected by the discharge unless the initial sitfl
characterization establishes that no free product is present, no contaminatea
soils are present, and there is no present or potential groundwater or surface
water impact from the discharge.
(b) The site investigation shall determine the location and full
extent of contamination and identify receptors and potential receptors.
(c) Free product identified at any stage of the investigation shall
be reported to tht Division immediately and removed as expeditiously as
possible. The presence of vapors which pose an imminent threat to public
safety shall also be reported immediately and corrective action implemented
without delay.
(d) A recoverable bench mark shall be established at the site and if
a U8GS bench mark is within 1,000 feet of the site, elevations at the site
shall be recorded using National Geodetic Vertical Datum (NGVD).
(e) Responsible parties shall submit a site investigation report in
accordance with Env-Ws 412.11 to the Division within 120 days of notification
to the Division of a discharge.
#4966, eff 11-2-90
Env-Ws
-------
. OSWER Directive 9650.15
Env-Ws 412.11 Site Investigation Report.'
(a) A lite investigation report shall define the nature, extent, and
magnitude of contamination and identify threats to public health, welfare and
to the environment.
it
(b) The site investigation report shall include the following
information:
(1) Location of the site, including address, phone number at
the site, tax map and lot number;
(2) History of site ownership and operation for at least the
last 50 years or since initial development, including the name,
current address and telephone number of~all current owners and
operators;
(3) A locus plan which is a photocopy of USGS topographic maps;
(4) A copy of the local tax map showing tha property on which
the site is located in relation to surrounding properties;
(5) A plot plan which neets the requirements of Env-Ws
(6) A groundwater contour map, consisting of the plot plan
overlayed with the groundwater contours and showing measured
water level elevations in piezometers and monitoring wells;
(7) A potential receptors map using the tax map as a base
showing:
a. Street names;
b. Adjacent properties;
c. Adjacent and nearby buildings;
d. Residences with basements;
e. Surface water bodies; and
f. Water supply wells within 1,000 feet of the site
location.
(8) Underground storage tank information, including:
a. Date of installation of all tanks on site, and date of
removal of all tanks previously located on the site; - ------
Env-Ws 412
42
-------
Uf AiXliMSTRATIVE RULES
OSWER Directive 9650.15
b. Size and construction.material of all tanks on site;
c. Substances presently and previously stored in all tanks;
d. Tank tightness test dates, methods, testers, an^
results, including data/and worksheets or calculations;
e. Type and location' of release detection and corrosion
protection for tanks and lines; and
f. Type or textural class of fill under and around tanks
and lines.
(9) A description of all known discharges of oil and other
contaminants on the site including:
a.- Date and description of the discharge, including the
quantities lost and recovered, and the location of the
discharge;
b. Date the discharge was reported to the division; and
c. Cleanup action taken and assessment of offsite impacts,
if any.
(10) Results of on-site inspection during any tank removal,
including:
a. Description and location of any corrosion, visible
leaks, or loose fittings;
b. The name, organization, address and telephone number of
the official observer such as the fire marshall, fire
department or division representative, present when tank(s)
were removed;
c. A description of conditions in area of the tank
excavation including contaminated soil volumes, odors,
sheens, visible product, bedrock, or tank anchors;
d. A description of sampling methodology and analytical
field screening measurements;
e. Photographs of removed tanks; and
f. Ultimate disposal of the tank(s) and contaminated soil.
(11) A list of previously completed investigations and reports
pertinent to the site.
(12) A summary of all governmental files reviewed.
Env-Ws 412
43
-------
" " "" OSWER Directive 9650.15
(13) A description of the geology of the site, including:
a. Soil types, thickness, classification, grain size, and
texture;
b. Test pit and boring log data including textural
description, drilling Methods, odors observed, blow counts,
and water table observation; and
c. Bedrock description, depth and characteristics.
(14) Groundwater elevation information including a table of
water level measurements, top of casing elevations relative to
an assumed datum depth of water table, and free product
thickness, if present.
(15) -Groundwater quality sampling information, including
locations, dates, sampling methodologies, and analytical results
for all groundwater quality samples obtained.
(16) Surface water information, including locations of points
or seeps within 500 feet of the site where the groundwater
discharges to surface water, and locations, dates, sampling
methodologies, and analytical results for any samples of surface
water suspected to be impacted.
(17) Conclusions and recommendations, including:
a. A summary description of the source or potential
source(s) of the contamination;
b. A description of the current extent of contamination in
the soil, surface water, groundwater, and the presence of
vapors;
c. Identification of potential receptors due to the
presence or potential migration of contaminants; and
d. Recommendation* for further investigation and
remediative measures.
(c) The plot plan required by Env-Ws 412.11(b)(5) shall be prepared
in accordance with the following:
(1) The plan shall be drawn to scale and the scale shall be
noted on the plan, including a graphic scale bar;
(2) A north arrow shall be included;
(3) At least one bench mark shall be shown and its elevation,
whether assumed datum or NGVD, and a brief identification
description shall be included; and
Env-Ws 412
44
/V
-------
CODE OF ADMINISTRATIVE RULES
contour. „, „, .pot
Buildings; /
Paved areas;
(3) Pr<>perty lines;
(V Above ground tanks and other structures;
(5) Surface water bodies;
*x
(6) Drainage swales;
V) Flood plains;
(8) Areas of identified releases;
(9) Areas of stressed or dead vegetation;
(10) Areas of stained or discolored soil;
(11) Underground tank, and associated piping;
(12) Former location, of underground storage tank.;
(13) Underground utilities;
(14) Subsurface drains;
(15) Septic systems and dry well.;
(16) Soil boring, and test pit.;
(17) Water supply wells; and
(18) Piezometers and monitoring well..
inch sheet.'? "^ ^ fUn *** b« **** on 8 1/2 * U inch „ n
#4966, eff 11-2-90
412'12
Env-W» 412
-------
Uf
i« £. i\v*.-u
OSWER Directive 9650.15
(b)
environment
OSWER Directve .
The plan shall provide for protection of human health and the
(c) The Division shall approve or disapprove the plan, based upon a
determination of conformance with the following remedial action plan criteria:
(1) The plan shall identify known technologies and alternative
remedial options which •' have the potential to achieve
contamination removal;
(2) The plan shall provide a time schedule for achieving
contamination removal;
(3) The plan shall identify any special requirements necessary
to prove the technical feasibility of the proposed remedial
action(s);
The plan shall recommend a method(s) for off-site disposal
of contaminated soils and/or water, if removal of contaminated
materials from the site is inclusive in the plan;
(5) The plan shall recommend short and long term site
monitoring requirements; and
(6) The plan shall recommend remediation alternatives, which
incorporate risk-based exposure assessments as applicable, to
mitigate contamination impacts to receptors.
(d) Upon approval of the remedial action plan by the division, based
on the criteria in paragraph (c) above, the responsible party shall implement
the plan.
(e) The results of implementing the plan, including an evaluation of
the effectiveness of the remediation, shall be submitted to the Division.
(f) Responsible parties may, in the interest of minimizing
contamination and promoting more effective remediation, begin remediation of
soil, groundwater and surface water before the remedial action plan is
approved by the Division, provided they:
(1) Notify the Division in writing of their intent to begin
remediation;
(2) Comply with any conditions imposed by the Division
including halting remediation or mitigating adverse consequences
from remediation activities;
(3) Incorporate these self-initated remediation measures into
the plan that is submitted to the Division for approval; and
10 ;< Env-Ws
46
-------
MAN nArtrinlKt, CUDt Uf AlflUmaiKAIIVE RULES
OSWER Directive 9650.15
(4) Comply with the requirements of all applicable local,
state, and federal rules and statutes.
Source.. #4966, eff 11-2-90
Env-Ws 412.13 Public Notification. /
(a) Responsible parties shall notify all owners of property within
100 feet of the property on which the site is located, all owners of drinking
water wells within 500 feet of the site, and the local selectmen or mayor as
appropriate, regarding the nature, extent, and magnitude of contamination and
the existence of threats to public health, welfare and the environment, if
any, and proposed remedial action.
(b) Public notification shall be provided upon completion of a site
investigation report and/or remedial action plan, completed in accordance with
these rules.
(c) Responsible parties shall report public notification to the
Division including copies of notices sent to abutters and local officials
which indicate the manner of delivery.
(d) If public notification is not made by responsible parties, the
Division shall do so and all costs of public notification shall be paid by
responsible parties.
Source. #4966, eff 11-2-90
Env-Ws 412.14
(a) The rules contained in this Fart are intended to apply to
variety of conditions and circumstances. It is recognized that strict
compliance with all rules prescribed herein may not fit every conceivable
situation. Responsible parties may request a waiver of specific rules
outlined in this Part in accordance with paragraph (b) below.
(b) All requests for waivers shall be submitted in writing to the
Division and shall include the following information:
(1) A description of the facility or site to which the waiver
request relates, including the name, address, and identification
number of the facility or site;
(2) A specific reference to the section of the rule for which a
waiver is being sought;
(3) A full explanation of why a waiver is necessary and
demonstration of hardship caused if the rule is adhered to;
(4) A full explanation of the alternatives for which a waiver
is sought, with backup data for support; and
11 < Env-Ws 412
47
IfB
-------
tuft or
OSWER Directive 9650.15
(5) A full explanation of how the alternatives for which a
waiver sought is consistent with the intent of RSA 146-A, would
have a just result, and would adequately protect human health
and the environment.
(c) The Division shall approve A request for a waiver upon finding *
that the alternatives proposed are at {feast equivalent to the requirements
contained in this rule, they are adequate to ensure that the provisions of RSA
146-A are met, and human health and the environment are protected.
(d) No waiver shall be granted which, in the judgment of the
Division, contravenes the intent of any rule.
(e) The Division shall issue a written response to a request for a
waiver within 60 days of receipt of the request.
#4966, eff 11-2-90
12 Env-Wg 41:
-------
Attachment XVI
Procedures for Planning and Implementing
Off-Site Response Actions under CERCLA
5/6/85
-------
UNITED STATES ENVIRONMENTAL PROTECTION
WASHINGTON. D.C. 20460
Mff 6B85 °Fnc£CF
SOLID WASTE A\D EMEPGf^C
MEMORANDUM
SUBJECT: Procedures for Planning and Implementing Off-site
Response Act'i'pns
l^ikj/- ':/' * //--<
FROM: ,1/ack V. MaGraw'
Acting Assistant Administrator
v/
TO: Regional Administrators
Regions I-X
This memorandum addresses procedures that must be observed
when a response action involving off-site storage, treatment or
disposal of hazardous substances is selected under the Compre-
hensive Environmental Response, Compensation, and Liability Act
of 1980 (CERCLA), and the Resource Conservation and Recovery Act
(RCRA). It prohibits use of 'a RCRA facility for off-site manage-
ment of Superfund hazardous substances if it has significant
RCRA violations^' or other environmental conditions that affect
the satisfactory operation of the facility. It also addresses
requirements for analyzing and selecting response actions that
involve permanent methods of managing hazardous substances.
In November of 1984, amendments to the Resource Conservation
and Recovery Act were enacted. These amendments impose new
requirements for the safe management of hazardous wastes. In
the case of land disposal facilities, the amendments require
that certain types of units (new, replacement and lateral exten-
sions) be double lined by May 9, 1985. The amendments impose
technical requirements to ensure that when land disposal facilities
are used they are used safely.
EPA intends to follow the direction established by Congress
in the RCRA amendments when undertaking on-site response
A signi fi cant violation includes a Class I violation as defined
by the RCRA Enforcement Response Policy (December 21, 1984).
This policy defines a Class I violation as a violation that
results in a release or a serious threat of release of hazardous
waste into the environment, or involves the failure to assure
that ground water will be protected, that proper closure and
post closure activities will be undertaken, or that hazardous
wastes will be destined for and delivered to RCRA permitted or
interim status facilities. The policy contains a list of
examples of violations which are Class I violations. Regions
should recognize that violations other than Class I violations
may be significant for purposes of these procedures, depending
on the situation at the facility.
-------
-2-
ind when response actions involve off-site management of hazardous
iubstances. This memorandum details how the Agency plans to
ichieve these goals.
Section I of this memorandum discusses background issues.
Section II A discusses the need to consider treatment, recycling
and reuse before off-site land disposal is used. Section II B
details procedures that must be followed in selecting any off-site
facility for management of hazardous substances. This section
also discusses the criteria to be used in making the selection.
For facilities in assessment monitoring, this part states that
conditions which lead to and result from being in assessment
monitoring may constitute conditions that render the facility
unsuitable for disposal of hazardous substances. Therefore,
when a facility is in assessment, the conditions which lead to
the required assessment, and any monitoring data, must be evalu-
ate-d to determine if the facility poses such conditions. .If so,
the facility may not be used unless the owner or operator commits
to correct the problems and the unit to be used for disposal
poses no problems.
Section III discusses RCRA manifest requirements. Section IV
discusses PCB disposal requirements. Finally, Section V details
how this policy will be implemented. Attachment A is a chart
summarizing the policy on use of off-site RCRA facilities. Th.i s
chart should be used in conjunction with the policy document, not
in lieu of i t .
These procedures are applicable to all response and enforce-
ment actions taken pursuant to CERCLA and section 7003 of RCRA.
This memorandum replaces guidance entitled "Requirements for
Selecting an Off-Site Option in a Superfund Response Action",
dated January 28, 1983. This policy is an interim one that the
Agency intends to publish as a notice in the Federal Register
in order to receive public comment on its provisions. After
reviewing these comments EPA will determine whether revisions
are necessary.
These revisions strengthen previous requirements in several
ways :
0 Coverage - This memorandum extends requirements to
enforcement actions under §106 of CERCLA and 57003.of RCRA,
and expands requirements for removal actions.
" Use of Treatment - These procedures require consideration
of treatment, recycling or reuse for all response and
-------
-3-
enforceraent actions, to foster the use of mo.e p^rma..ent
solutions, and, in the case of remedial actions, where
cost-effective. The Agency is not certain whether
sufficient capacity is available at this time to use
treatment in all cases where it is feasible. As more
information on capacity becomes available, the Agency
will re-examine requirements for treatment to determine
whether they can be strengthened. The previous procedures
'did not address use of treatment.
e Requirements for a treatment, storage or disposal facility
Previous guidance required inspection within 12 months
before contract award for storage, treatment or disposal.
The revisions require inspection within six months of
actual storage, treatment or disposal. It also stated
that if a facility had deficiences that resulted in unsound
treatment, storage or disposal practices it should not be
used. The guidance also required RCRA violations that
adversely affected facility performance to be corrected
prior to contract award. Under the revisions, a facility
that has significant RCRA violations or other environmental
conditions that affect its satisfactory operation may not
be used unless certain conditions are met. First, there
must be a compliance agreement in place to correct all
deficiencies at the facility; second, the unit that is
used must not cause or contribute to significant problems
at the facility. This provision recognizes that in some
situations it is infeasible to complete correction of all
violations.prior to using a facility (for example, it may
•take several years before pumping and treating of ground-
water is completed) and that there may be a unit at such
a facility that is sound.
0 Land Disposal Facilities - The 1984 RCRA amendments impose
new requirements on land disposal facilities. When use
of such facilities is contemplated, the policy requires that
the facility meet these minimum technical requirements.
I. BACKGROUND
Facilities that are not in compliance with RCRA requirements
may be unacceptable to use for treatment, storage or disposal of
hazardous substances from response actions. Facilities used for
management of substances in connection with response actions
should not pose a significant threat to public health, welfare or
the envi ronment.
CERCLA contains two references to off-site management of
hazardous substances. First, CERCLA section 104(c) requires, as
a condition of Fund-financed remedial response, that the State
assure the availability of an acceptable facility in compliance
with the requirements of subtitle C of RCRA for any off-site
management of hazardous substances. Second, where remedial
measures include off-site storage, treatment, destruction or
secure disposition, the statute also requires such measures to
be more cost-effective than other remedial measures, create new
disposal capacity in compliance with Subtitle C of RCRA or be
necessary to protect public health, welfare or the environment
-------
-4-
from a present or potential risk which may be created by further
exposure to substances. Section 300.65 (b)(6) of the National
Contingency Plan (40 CFR 300) states that when off-site action is
taken in connection with a removal action the facility used for
off-site management oust be in compliance with Subtitle C of
RCRA. This memorandum establishes procedures for implementing
these CERCLA and NCP provisions. '
These procedures apply to all removal, remedial, and enforce-
ment actions taken pursuant to CERCLA and section 7003 of RCRA.
Any other parties undertaking cleanup under other authorities
are urged to comply with these procedures. In the case of
Superfund-financed removal actions or enforcement actions taken
as a removal action in response to an immediate and significant
threat, compliance with these procedures is mandatory unless the
On-Scene Coordinator (OSC) determines that the exigencies of the
situation require off-site treatment, storage or disposal without
following the requirements. This exception may be used in cases
where the OSC believes that the immediacy of the threat posed .by
the substances makes it imperative to remove the substances and
there is insufficient time to observe these procedures without
endangering public health, welfare or the environment. In such
cases, the OSC should consider, to the extent possible, temporary
solutions (e.g., interim storage) in order that the feasibility
of using treatment can be evaluated prior to a decision to use
land disposal. Also, in such cases, the OSC must provide a
written explanation of his decision to the Regional Administrator.
This explanation should be provided within 60 days of taking
the action. In Regions in which authority to make removal deci-
sions has not been fully delegated by the Regional Administrator,
the decisions discussed above must be made by the Regional official
that is delegated removal decision making authority.
II. PROCEDURES FOR SELECTING HAZARDOUS WASTE MANAGEMENT FACILITIES
This section discusses in detail the requirements Regions
must follow in assessing and selecting an off-site RCRA facility
for management of Superfund hazardous substances. Part A requires
consideration of treatment, recycling or reuse for on-site and
off-site actions in order to foster the use of more permanent
methods of managing hazardous substances. These policies are
consistent with directions taken by Congress in the 1984 amend-
ments to the Resource Conservation and Recovery Act. Furthermore,
Part B of this section establishes procedures Regions must use
in selecting an off-site RCRA facility for management of hazardous
substances. Where off-site land disposal must be used, this Part
requires that disposal facilities be in compliance with the appli-
cable technical requirements of RCRA.
A. Treatment
It is EPA's policy to pursue response actions that use
treatment, reuse or recycling over land disposal to the greatest
-------
-5-
extent practicable, consistent with CERCLA requirements for
cost-effective remedial actions. EPA requires that such alterna-
tives be considered for all Fund-financed and private party
removal and remedial actions. For Fund-financed removals or
enforced actions in response to immediate and significant threats,
treatment, reuse or recycling must be considered, unless the OSC
determines that treatment, reuse or recycling methods are not
reasonably available considering the exigencies of the situation,
or they pose a significant environmental hazard.
When developing remedial alternatives, treatment, reuse or
recycling must be considered. Such alternatives should not be
screened out on the basis of cost alone. Section 300.68(h)(l) of
the NCP allows rejection of alternatives during the screening
stage based on cost, only when the cost of the alternative far
exceeds the cost of others (e.g., by an order of magnitude) and
does not provide substantially greater public health and environ-
mental benefi ts .
Detailed analysis of these alternatives should include
consideration of long-term effectiveness of treatment and compara-
tive long and short term costs of treatment as compared to other
remedial alternatives. Finally, when recommending and selecting
the appropriate remedial action, treatment, reuse or recycling
may be found more protective of public health and the environment
than land disposal. Such alternatives may be recommended as the
appropriate remedial action where the detailed analysis of
alternatives shows that the alternative is more cost-effective
than others in minimizing the damage to public health, welfare
or the environment. During the next six months, EPA will be
developing additional guidelines for evaluating the comparative
long-term costs of treatment and land disposal.
At this time, the Agency does not know the current and
projected treatment capacity available, nor the needs or capacity
that will be required for Superfund actions in the future. Over
the next several months, the Agency plans to undertake a study
of available treatment and interim storage capacity and needs.
Once completed, this analysis will provide information on treat-
ment facilities currently operating for Regions to use. Additional
information on capacity will be provided at a later date through
a more comprehensive capacity survey being undertaken in support
of the implementation of the 1984 RCRA amendments.
B. Requirements for selecting storage, treatment or disposal
facilities
Selection of an appropriate facility for off-site management
of hazardous substances requires that a judgment be made as
to the overall acceptability of the facility to receive the
substances and the acceptability of the unit that will receive
the hazardous substances. In making this judgment the following
steps must be observed:
1. The owner or operator of any hazardous waste management
facility under consideration for off-site storage, treatment or
-------
-6-
actions under CERCLA or section 7003 of RCRA must have an applic-
able RCRA permit or interim status.2
2. A RCRA compliance inspection must be performed at any
hazardous waste management facility before it can receive hazardous
substances from a response action. This inspection must assess
whether there are any significant violations or other environmental
conditions' that affect the satisfactory operation of the facility.
The RCRA compliance inspection must have taken place not more than
six months prior to the storage, treatment or disposal of the
hazardous substances from a response action. If the inspection
has not taken place or is not scheduled, REM/FIT contractor
personnel may conduct the inspection under the direction of the
Deputy Project Officer, working in cooperation with RCRA Regional
personnel. If Regions use contractor personnel, the Region should
ensure that such personnel are adequately trained to conduct
inspections. Further guidance on conducting inspections when a
facility is being considered for management of hazardous substances
will be issued in the near future. The FY 85 and FY 86 RCRA Imple-
mentation Plans establish compliance monitoring and enforcement
targets. For FY 85 the guidance requires Comprehensive Ground-
Water Monitoring Evaluations (CGMEs) at one third of the ground
water monitoring facilities. Top priorities for this type of
inspection are all facilities receiving wastes from Superfund
sites.
In States with Phase I or II interim authorization or final
authorization,.the inspection should -b'e conducted -in accordance
with State 'regulations or permit conditions. "EPA Regions
should always involve States when undertaking an inspection
at a RCRA facility that is likely to accept Superfund wastes.
Regions must use the results from the inspection, along
with other information, to determine whether the facility is an
acceptable one.
Both permitsand interim status apply to specific wastes and
specific storage, treatment or disposal processes. The Remedial
Project Manager (RPM) or OSC must determine that the facility's
permit or interim status includes the wastes that would be
transported to the facility and the type of process for which
wastes are being taken to the facility. Because of these
concerns, it is important that facility selection be coordinated
with RCRA personnel. However, not all CERCLA substances are
hazardous wastes under RCRA. Therefore, it is possible that a
particular permit may not cover a hazardous substance that may
be taken to the RCRA facility if it is not a hazardous waste.
Moreover, in some situations a hazardous substance under CERCLA
may trigger disposal requirements under other laws (for example,
PCBs and some radioactive substances). In such cases the
applicable requirements of these other laws must be observed.
-------
-7-
3. It is EPA's policy to minimize the use of land disposal in
accordance with the direction taken by Congress in amending RCRA.
Where land disposal is used, these amendments establish new tech-
nical standards for land disposal facilities. New disposal units,
lateral expansions and replacement units (defined as of November 8,
1984) of interim status landfills and surface impoundments oust
have at least two liners and a leachate detection, collection
and removal system above (in the case of landfills) and between
the liners, if they receive wastes after May 8, 1985. All Fund-
financed and enforced response actions (removal and remedial)
involving the off-site disposal of hazardous substances must involve
use of disposal facilities that are in compliance with applicable
RCRA minimum technical reqiurement s . This means that units first
receiving wastes after November 8, 1984 cannot receive wastes
after May 8, 1985 if not double lined. The RCRA statute does
allow continued use of existing units after that date. In consider-
ing whether to use an existing unit that does not meet the double
liner requirements, the Agency will consider the toxicity, persis-
tence and mobility of the hazardous substances and the ne.ed to
segregate these substances from others. Such a unit can be
used only if it is shown to adequately protect public health and
the envi ronment .
CERCLA hazardous substances which are not hazardous wastes
under RCRA may, in some circumstances, be disposed of in other
legal units. In such cases, disposal should take place in accordance
•wi th '-other " 1 egal requirements. Hazardous substances which are not
hazardous wastes may be .-taken to a RCRA unit under the terms out-
lined in the preceeding paragraph, or to a unit legal under other
statutory provisions (for example, PCBs may be disposed of in a
TSCA approved disposal facility and radiocative materials in a
radioactive materials disposal facility). This disposal must be
consistent with Section 104(c)(3) of CERCLA, when applicable.
4. Interim status land disposal facilities under considera-
tion for off-site disposal must have adequate ground water
monitoring data to assess whether the facility poses a threat to
ground water. 3 Due to the lack of compliance with RCRA ground
water requirements, available data may not be adequate to assess
the facility. Moreover, lack of evidence of contamination fror.
the monitoring data does not necessarily mean the facility is
secure. The monitoring data may be faulty. In addition, there
may be other problems at the facility such as air emissions or
surface run-off. Where doubt exists concerning the acceptability
of a facility, an on-site inspection should be undertaken to
specifically address these concerns. Where possible, this
on-site inspection should be part of the required RCRA compliance
inspection.
All remai ni ng land disposal permit applications will be
requested in FY 1985. These applications contain summaries
of ground water monitoring data obtained during the interim
status period, and are required to identify any plume
cont aminat i on .
-------
•8-
5. Using information gathered from the compliance inspection,
other data sources (e.g., RCRA facility permit data), any other
facility visits and all other relevant information, Regional
Offices must evaluate and make a judgment on the acceptability of
using the facility for storage, treatment or disposal of hazardous
substances. For the facility as a whole, this evaluation should
consider whether there are any RCRA violations or other environ-
mental conditions^ at the facility which affect its satisfactory
operation. This evaluation should include consideration of
facility operations as well as whether there are physi cal, condi -
tions at the facility that pose a significant threat to public
health, welfare or the environment. For facilities in assessment
monitoring, the conditions which lead to required assessment
monitoring, as well as resulting monitoring data, must be evaluated
The evaluation also should consider the nature and quantity of the
substances and whether it is feasible to treat the substances prior
to land dis'posal to mitigate any adverse effects.
No Superfund hazardous substances shall be taken off-site to
a RCRA facility if the Region determines that the facility has
significant RCRA violations or other environmental conditions that
affect the satisfactory operation of the facility, unless
both the following conditions are met:
- (1) The owner or operator must commit, through an enforce-
able agreement (i.e., consent order or decree), to
correct the ptoblem. The agreement must be signed •
before the facility may receive the hazardous
substances. In addition, the Regional Administrator
must determine that the agreement is likely to result
in correction of the problem and the owner or operator
of the facility is capable of compliance with the terms
of the agreement; and
(2) Disposal only occurs within the facility at a new or
existing unit that is in compliance with RCRA require-
ments. The new or existing unit must not contribute
in any significant way to adverse conditions at the
facility.
III. MANIFEST REQUIREMENTS
If an off-site option is chosen, a manifest for the transpor-
tation of the hazardous waste must be obtained. The manifest must
It Is recogni zed that the RCRA regulations may not at this
time cover all environmental conditions at a facility. Regional
offices may consider other environmental factors at a facility
under consideration Including other State and/or Federal
environmental laws. If a facility is in assessment monitor-
ing, the conditions which lead to assessment monitoring may
constitute environmental conditions that adversely affect
facility operations. In such cases, Regions should assess the
conditions at the facility prior to using the facility for
Superfund purposes.
-------
-9-
be in compliance with RCRA for the transportation of hazardous
wastes. The manifest must be a Uniform Hazardous Waste Manifest
in compliance with requirements at 40 CFR 262 (see 49 FR 10490,
March 20, 1984). The lead agency or other party undertaking
the cleanup oust ensure that the transporter properly notifies
under RCRA section 3010. Where the lead agency allows contractors
to fill out the manifest, the agency should ensure that the
manifest is properly filed.
IV. PCB DISPOSAL REQUIREMENTS
Requirements for the disposal of PCBs are established in
40 CFR 761.60. Generally, these regulations require that whenever
disposal of PCBs are undertaken, they must be incinerated, unless
the concentrations are less than 50 ppm. If the concentrations
are between 50 and 500 ppm, the rule provides for' certain excep-
tions that provide alternatives to the incineration requirements.
The principal alternative is disposal in an EPA approved landfill
for PCBs. Landfills used for PCB disposal must be inspected
within six months prior to disposal. Regions must determine the
acceptability of the facility based on the same- criteria used to
evaluate RCRA facilities in Section II. B.5.
V. IMPLEMENTATION
Beginning (30 days from date this document is signed) all
Records of Decision (RODs) and Enforcement Decision Documents
(EDDs) for Superfund-1ead and enforcement lead actions, respec-
tively, must include a discussion of compliance with these pro-
cedures for alternatives involving off-site management of Superfund
hazardous substances at RCRA facilities. Decision documents for
removal actions also should include discussion of compliance with
these procedures. It is recognized that actual offsite facility
information will not be available at the ROD stage. However, the
RI and FS should use actual off-site facilities in costing remedial
alternatives, In order to have cost figures that are as accurate
as possible.' It is recognized that additional facilities are
likely to be considered during the bidding process. Any facility
ultimately selected for disposal, treatment or storage must meet
the requirements of this policy.
Provisions requiring compliance with these procedures must be
included in any contracts for response, cooperative agreements
with States undertaking Superfund response and all enforcement
agreements. For ongoing projects, these provisions will be
implemented as follows:
RI/FS: The Regions shall immediately notify Agency contractors
and States that 1) alternatives for off-site management
of wastes must be evaluated pursuant to the provisions
of this policy, and 2) consistent with the policy on
other environmental laws, treatment alternatives
should not be dropped during the screening stage.
RD: The Regions shall Immediately notify Agency contractors,
the States, and the U.S. Army Corps of Engineers that
-------
-10-
all remedies chat include off-site disposal of hazardous
substances must comply with the provisions of this
policy pertaining to selection of an acceptable o.ff-site
facility.
RA: The Regions shall immediately assess the compliance
status of land disposal facilities receiving hazardous
wastes from ongoing projects. For a facility not in
compliance, the Region should take immediate steps
to bring the facility into compliance with the policy.
Enforcement: Actions currently under negotiation and all future
actions must comply with these procedures. Existing
agreements need not be amended. However, EPA reserves
the right to apply these procedures to existing
agreements, to the extent it is consistent with -the
release and reopener clauses in the settlement agree-
ment (See the Interim CERCLA Settlement Policy, Part
VII; Thomas, Price, Habicht; December 5, 1984).
If the response action is proceeding under a Federal-lead,
the Regions should work with the Corps of Engineers or EPA
Contracts Officer to negotiate a contracts modification to an
existing contract, if necessary. If the response action is
proceeding under a State-lead, the Regions should amend the
cooperative agreement. Exceptions for existing contracts and
cooperative agreements may be allowed on a case-by-case basis •
by the appropriate Headquarters Office Director.
All Regions must adopt procedures to implement and continual-
ly monitor compliance with these requirements. The procedures
must include designation of a management official who is respon-
sible for providing information on RCRA facilities in the Region
to other Regions. It is the responsibility of the Region in
which the RCRA offsite facility is located to assess the accept-
ability of the facility in consultation with the Region planning to
ship wastes to the facility. The names of these officials should
be provided to the Office of Waste Programs Enforcement by May
21, 1985. These names will then be forwarded to all Regions.
If you have any questions concerning these procedures, please
contact Sylvia K. Lowrance (FTS 382-4812).
Attachments
------- |