oEPA
United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
DIRECTIVE NUMBER
9650.6
TITLE' Guidelines for LIST Trust Fund Cooperative
Agreements
APPROVAL DATE:
EFFECTIVE DATE:
April 02, 1987
April 02, 1987
ORIGINATING OFFICE: Office of Underground Storage
Tanks (OUST)
OI FINAL
D DRAFT
STATUS:
REFERENCE (other documents):
OSWER OSWER OSWER
VE DIRECTIVE DIRECTIVE Dl
-------
United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
oEPA
DIRECTIVE NUMBER: 9650.6
TITLE1 Guidelines for LIST Trust Fund Cooperative
Agreements
APPROVAL DATE:
EFFECTIVE DATE:
April 02, 1987
April 02, 1987
ORIGINATING OFFICE: Office of Underground Storage
Tanks (OUST)
O FINAL
D DRAFT
STATUS:
REFERENCE (other documents):
OS WER OS WER OS WER
'E DIRECTIVE DIRECTIVE Dl
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United States Environmental Protection Agency
^ _ _ Washington. DC 20460
OEPA OSWER Directive Initiation Reauc
Name of Contact Person
John Heffelfinger
3. Title
2. Originator Information
Mail Code Office
WH 562A OUST .
1. Directive Number
A 9650.6
JSt
Telephone Number
382-2199
4. Summary of Directive (Include brief statement of purpose)
This guidance provides the information necessary for States to apply to EPA
Regional offices for initial cooperative agreements under the LIST Trust Fund.
5. Keywords
Cooperative Aareements. States. Reaional offices
6a. Does this Directive Supersede Previous Directives)? | | Yes j[j£j No What directive (number, title)
b. Does It Supplement Previous Directive(s)? Q Yes 0 No What Directive (number, title)
7.. Draft Level
DA — Signed by AA/DAA D B — Signed by Office Director D C — For Review &
*
Comment LJ In Development
This Request Meets OSWER Directives System Format
. Signature of Lead Office Directives Coordinator _,
Betty Arnold, Managment Analyst c.-z&e&T rft^nt^JL-
9. Name and Title of Approving Official i^ ^
Ronald Brand, Director JT^j^^i- /2-^^JL —
Office of Underground Storage Tanks
Date
May 7, 1987
Date
May 7, 1987 .
OS WER OS WER OS WER
DIRECTIVE DIRECTIVE
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OSWER DIR. 9650.6
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
APR 2887
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
MEMORANDUM
SUBJECT: Guidelines for UST Trust Fund Cooperative Agreements
FROM: Ronald Brand, Director
Office of Underground Storage Tanks
TO: Addressees
Attached is the final version of the State Application Guide-
lines for Cooperative Agreements under the Underground Storage
Tank (UST) Trust Fund. The purpose of these guidelines is to
provide the information necessary for States to apply to EPA
Regional offices for initial cooperative agreements under the
UST Trust Fund. The Regions will .he responsible for negotiating, •-.
awarding, and overseeing the cooperative agreements with the States.
It is the Agency's intent that the initial cooperative agreements
be negotiated and approved quickly in order to facilitate early
distribution of Trust Fund monies to ensure rapid program develop-
ment and initation of corrective action and enforcement activities.
A final draft of the guidelines was distributed to all
Regional UST Coordinators on March 18 at the meeting of the
Coordinators in Dallas. At that time, the Regions were provided
with a complete State Application Package for Cooperative Agree-
ments. The package included the guidelines, application and
certification forms, copies of relevant parts of the Code of
Federal Regulations, and background materials on the Trust Fund
program. As a result of discussions with the Regional Coordinators,
Section II.E. of these final guidelines, Federal Oversight, has
been revised to require reporting of broad program activities
from States during the initial phase of the program. The revised
guidelines also identify specific areas where more detailed
reporting Is expected in the future.
As the program evolves, we will continue to examine such
issues as fund utilization, fund distribution, priority setting,
enforcement, and corrective action in order to determine ways to
manage Trust Fund monies to better protect human health and the
environment. In the meantime, I encourage each Region to continue
negotiations with its States in order to award Trust Fund coopera-
tive agreements as soon as possible.
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OSWER DIR. 9650.6
-2-
I want to express my appreciation to the Headquarters and
Regional staffs from many offices whose time and energies resulted
in the development of the comprehensive guidelines package. The
Regional UST Coordinators, in particular, will be key to successful
implementation of the Tru'st Fund program.
At tachment
Addressees
Hazardous Waste Division Directors,
Water Management Division Director,
Regional UST Coordinators
Regions I-X
Region IV
cc: J. Winston Porter
Jack McGraw
Maryann Froehlich
Work Group Members
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OSWER DIR. 9650.6
March 27, 1987
STATE APPLICATION GUIDELINES FOR INITIAL
UST TRUST FUND COOPERATIVE AGREEMENTS
I. OVERVIEW
A. INTRODUCTION
In October 1986, Congress amended Subtitle I of the Resource Conservation
and Recovery Act (RCRA) to provide a Federal Trust Fund to finance the cleanup
of petroleum releases from underground storage tanks (USTs). The Environmental
Protection Agency (EPA) intends to make available Trust Fund monies through
cooperative agreements with States having acceptable plans for using Fund
resources.
The purpose of these guidelines is to provide the information necessary for
States to apply to EPA Regional offices for initial cooperative agreements
under the UST Trust Fund. This will support our objective of making monies
available to States to begin cleanups and other corrective action and
enforcement activities as soon as possible. These guidelines set out eligible
uses of Trust Fund resources, the respective roles and responsibilities of EPA
and the States, basic program and administrative requirements, and guidance on
addressing the program requirements. These guidelines may be revised in the
future, as EPA and the States gain experience in utilizing the UST Trust Fund.
EPA intends to examine such issues as priority setting, enforcement, and
corrective action in order to determine the ways in which it can manage Trust
Fund monies to best protect human health and the environment. During the
initial phase of the program, however, these guidelines will serve the purpose
of encouraging as many States as possible to apply for cooperative agreements
by allowing, where necessary, for the development under the cooperative
agreement of State program capabilities to respond to releases, do cleanups,
and take enforcement and cost recovery actions.
Cooperative agreements between individual States and EPA are the key to
implementing the UST Trust Fund program. States are expected to play the
primary role in Trust Fund cleanups. State officials are expected to be closer
to the local situation and generally know more than Federal officials about the
underground storage tanks and site conditions in their jurisdictions. The
cooperative agreements will enable States to draw on the Trust Fund resources
for cleanups and certain associated program and directly-related administrative
expenses. Consolidated letter of credit procedures will be utilized with each
State, allowing the State to draw down monies as costs are incurred.
To ensure the State-centered character of the UST Trust Fund program,
States will have responsibility for: (1) establishing site priorities;
(2) investigating sites and conducting exposure assessments; (3) pursuing and
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OSWER DIR. 9650.6
ordering corrective action by responsible owners/operators of leaking USTs;
(4) determining appropriate technologies for effective corrective action;
(5) conducting cleanups; and (6) pursuing cost recovery.
It is EPA's intent that the initial cooperative agreement be negotiated and
approved quickly in order to facilitate early distribution of Trust Fund
resources and to ensure rapid program development, initiation of cleanups and
other corrective action, and enforcement activity. As such, the initial
cooperative agreement should aim more to enable the State's program rather than
to "approve" it. The approval of State programs will occur in mid-1988 or
later under the provisions of Section 9004 of RCRA, which contains requirements
for comprehensive review of State program authorities and capabilities in all
UST management areas, including corrective action. This approval process will
begin only after EPA publishes final regulations in 1988.
The current cooperative agreement should focus more on the description of
general program capabilities, plans, and outputs, rather than the detailed
analysis of procedures and requirements envisioned under Section 9004. Above
all, EPA intends that the current agreement process be flexible to account for
the widely varying State capabilities, authorities, and nature of the UST
problem and potential impacts, and that cleanups begin as soon as possible.
B. BACKGROUND
The UST Trust Fund Is financed through an excise tax of 1/10 of one cent
per gallon on motor-fuels; which will raise $500 "million over the next five
years. The RCRA amendments of October 1986 gave EPA, and States with
cooporatlve agreements, authority to undertake cleanups using money from the
Trust: Fund. The Agency intends to make Trust Fund monies available for
cleanups as soon as possible to States with acceptable plans for using the Fund.
The 1986 amendments to Subtitle I of RCRA give the States operating under
cooperative agreements new enforcement and corrective action authorities for
responding to releases from petroleum USTs. States may undertake any of the
following actions, or direct tank owners and operators to do so:
• Test tanks for leaks when a leak is suspected;
• Investigate a site to evaluate the source and extent of petroleum
contamination;
• Assess how many individuals may have been exposed to petroleum
contaminants and the seriousness of exposure, and estimate
resulting health risks;
• Clean up contaminated soil and water;
• Provide safe drinking water to residents at the site of a tank
leak; and
• Provide for temporary or permanent relocation of residents.
When a leak or spill Is discovered, the States first should seek to
identify the tank's owner or operator and direct him to perform the cleanup at
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OSWER DIR. 9650.6
his expense. They will rely on the Trust Fund for cleanup when they cannot
Identify an owner or operator of the tank whom they determine will undertake
action properly and promptly. Where the Trust Fund Is used, tank owners or
operators are liable to the State for costs incurred, and are subject to cost
recovery actions.
Under the 1986 Subtitle I amendments, Congress also established minimum
requirements for tank owners and operators to maintain evidence of financial
responsibility — that is, the ability to pay for cleanups and associated
damages if necessary. Congress set minimum coverage at $1 million per release
occurrence for facilities engaged in petroleum production, refining, or
marketing, and facilities handling large quantities of petroleum. EPA plans to
publish final Regulations on Financial Responsibility in March of 1988, after
soliciting comments from the public and industry. The regulations will cover
in detail the mechanisms that tank owners or operators can use to demonstrate
their financial capability to respond to a leak or spill.
However, use of the Trust Fund to clean up tank releases, either before or
after the establishment of financial responsibility regulations, does not
change the tank owner's or operator's liability, nor does bankruptcy or
transfer of ownership.
The amendments impose greater restriction on the uses of the Fund after
financial responsibility and corrective action regulations are issued. After
the regulations go into effect, the Trust Fund may be used only for cleanups
where: : • "
• Costs exceed coverage requirements of the financially responsible
party; or
• The owner or operator refuses to comply with a corrective action
order; or
• A solvent owner or operator cannot be found; or
• An emergency situation exists.
These guidelines pertain to cooperative agreements entered into prior to the
development of the regulations noted above.
C. COOPERATIVE AGREEMENTS
A State-Specific Document
The cooperative agreement 1s an assistance instrument which establishes the
respective responsibilities of an individual State for implementation, and EPA
for both oversight and technical assistance under the Trust Fund corrective
action program.
The cooperative agreements will describe general State program capabilities
and outputs, EPA technical assistance required, and procedures for reporting
and oversight. They will also incorporate requirements under EPA's general
assistance and procurement regulations (40 CFR, Parts 30 and 33). Negotiation
is intended to result in an agreement that maximizes State flexibility under
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OSWER DIR. 9650.6
the law yet enables effective Regional oversight and audits. It is the
responsibility of the Regional LIST Coordinators to negotiate the cooperative
agreements and to oversee and evaluate State success in meeting commitments.
State Capabilities
The legislation establishing the UST Trust Fund requires that in order for
States to participate in the program, EPA must determine that they have "the
capabilities to carry out effective corrective action and enforcement
activities" to protect human health and the environment (Section
9003(h)(7)(A)(i)).
EPA Regions will evaluate State capabilities as part of the cooperative
agreement negotiating process. EPA's intent is to be flexible in its
determination of capability. States must certify or provide evidence that they
have the authority to carry out enforcement activities, corrective actions, and
cost recovery or provide a schedule and plans for obtaining the necessary
authority. The Regions will evaluate the States' existing or potential
capabilities in these and other relevant areas. States are not required to
have a full range of such capabilities in place as a pre-condition to award of
the cooperative agreement. Rather, States may be allowed to develop specified
capabilities as part of the cooperative agreement. Given the widely varying
level of development of State UST cleanup programs, the capabilities that will
be expected immediately versus those that can be developed over time will vary
from State to State.
D. FUND UTILIZATION
Eligible Activities
The Subtitle I Amendments provide that Trust Fund monies may be used for
the following general activities (Section 9003(h)):
• Enforcement activities;
• Exposure assessments;
• Corrective action;
• Provision of water supplies;
• Relocation of residents; and
• Cost recovery.
Theso general categories include the following specific eligible activities,
remedies, or costs:
1. Emergency response and initial site hazard mitigation;
2. Investigation of suspected leaks and source identification up to
the time that a leak is determined to come from an unregulated
source;
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OSWER DIR. 9650.6
3. Exposure assessments to determine potential health effects of a
leak and the establishment of corrective action priorities;
4. Development, issuance, and oversight of enforcement actions
directed to responsible owners/operators;
5. Provision of alternative temporary or permanent water supplies;
6. Temporary or permanent relocation of affected residents;
7. Cleanup of releases;
8. Recovery of costs from liable tank owners or operators; and
9. Reasonable and necessary administrative and planning expenses
directly related to these activities.
Ineligible Activities
Eligible activities are limited to actions in response to an existing or
suspected release of petroleum from an UST. Thus, an inspection and
investigation to assess the site of a reported leak would be an eligible
activity, but an inspection conducted as part of a routine or random inspection
scheme would not be eligible. As noted in the Conference Report to the 1986
Subtitle I Amendments, staff or activities which enhance the general technical
or legal capabilities of a State that are not directly related to leaking
petroleum USTs are not eligible.
Costs Incurred by States prior to the award of the cooperative agreement
with EPA will not be covered by the Trust Fund and are not eligible for
reimbursement.
State Cost Share
Until EPA issues final regulations for corrective action and financial
responsibility, currently anticipated in March 1988, there is no requirement
for States to provide a cost share when Trust Fund monies are used. After the
effective date of the regulation (June 1988), States must pay a 10 percent
share of the cost of total program expenditures covered by the cooperative
agreement. State cooperative agreement work plans subsequent to that time
should reflect a total program budget, 10 percent of which will be contributed
by the State.
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OSWER DIR. 9650.6
II. PROGRAM REQUIREMENTS AND GUIDANCE
This section summarizes the basic program requirements that must be
addressed 1n State cooperative agreement applications for use of UST Trust Fund
resources. The section also provides guidance to assist States in fulfilling
these requirements. States must meet the basic program requirements now, or
commit to a plan or schedule to fulfill the requirements as part of the
cooperative agreement. The requirements discussed in this section are:
Priority System;
Enforcement;
Corrective Actions;
Cost Recovery;
Federal Oversight;
Public Participation;
Quality Assurance; and
State Nork Plan.
A discussion of administrative requirements for State cooperative agreement
applications follows this section.
A. PRIORITY SYSTEM
Requirement
The State will ensure that a priority system for addressing UST petroleum
release sites 1s established and maintained which Incorporates the two
priorities set forth 1n Section 9003(h) of RCRA. This system will ensure that
high priority 1s given to (1) releases which pose the greatest threat to human
health and the environment, and (2) sites where the State cannot identify a
solvent owner or operator of the tank who will undertake action properly. The
cooperative agreement will Include a description of this system or a schedule,
with milestones, for developing one.
Guidance
The purpose of the State priority system requirement is to ensure that
sites addressed with Trust Fund monies provide the greatest impact on
protection of human health and the environment and respond where private sector
resources are inadequate. The system does not have to be extensive, complex or
numerical in nature. Instead, 1t can use readily available information to
establish broad, general classes of priority. States may address the "threat
to human health and environment" criteria by considering factors such as total
population exposed, proportion of the population affected in a community,
number of drinking water wells contaminated, proximity to a major aquifer, or
impact on sensitive populations or environmental areas. States also should
develop methods for establishing capability and solvency of owner/operators.
"his requirement does not necessarily presume the need to rank all UST
releases in the State. Rather, it is a priority system or scheme that should
be uced as a screening device to assure that sites considered to be addressed
with Trust Fund monies are within the higher priority classes established by
the State.
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OSWER DIR. 9650.6
B. ENFORCEMENT
Requirement
The State must have the "capabilities to carry out effective... enforcement
activities" (Section 9003(h) of RCRA) to protect human health and the
environment. The State must have or obtain both the authority to carry out
enforcement activities, as well as the capability to pursue such activities.
The State must also establish an enforcement policy and procedures that can be
applied consistently to actions taken in response to known or suspected
releases.
Guidance
Enforcement activities include the Issuance of corrective action orders as
specified in Section 9003(h)(4), and pursuit of those activities necessary to
assure compliance with the order by an owner or operator. The cooperative
agreement should contain a certification or evidence from the State that it has
the legal authority to carry out enforcement activities, or a plan, together
with a schedule and milestones, for obtaining such authorities. In the absence
of specific State authority to undertake enforcement actions for releases from
petroleum USTs, the State may certify that it has the ability to use broad
State authorities, under nuisance or health and safety provisions, for example,
to undertake LIST enforcement actions. Such broad State authorities may be
enhanced by the enforcement provisions 1n Section 9003(h) of RCRA. The State
certification should be from an official authorized to provide such
certification on behalf of the State. The official does not necessarily need
to be the State Attorney General.
To demonstrate Its enforcement capabilities, the State should describe its
existing capabilities in this area, or a plan for obtaining such capabilities.
The description should include, at a minimum, identification of existing or
potential staff capabilities, technical as well as legal, to pursue enforcement
activities, and previous experience in UST-related enforcement activities.
The State should have a set of clearly defined enforcement policies and
procedures for addressing releases from petroleum USTs, or a plan for
developing such policies and procedures. The policy and procedures should
reflect the underlying philosophy of the Trust Fund provisions of first seeking
corrective action from the responsible party, prior to use of Trust Fund money
for cleanup, unless there 1s an imminent and substantial endangerment of human
health and the environment. EPA will consider items such as proper
identification of releases and responsible parties, proper documentation of
enforcement actions, and timely and appropriate enforcement activity, in
evaluating the State enforcement policy and procedures.
The State may use Its best professional judgment and enforcement discretion
as long as they result in an effective enforcement program.
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OSWER DIR. 9650.6
C. CORRECTIVE ACTION
Requirement
The State must have or obtain both the authority and capability to carry
out effective corrective actions (Section 9003(h) of RCRA) to protect human
health and the environment. The State must establish corrective action
policies and procedures that can be applied to known or suspected releases.
Guidance
Corrective action refers to a range of activities that typically begins at
the report or suspicion of a leak, through final site cleanup. The cooperative
agreement should Include a certification or evidence that the State has the
legal authority to conduct such activities, or a plan for obtaining the
necessary authorities. This State certification should be from an official
authorized to provide such certification on behalf of the State. The official
does not necessarily need be the State Attorney General.
The State should describe its existing corrective action capabilities, or a
plan for establishing such capabilities. The description should include, at a
minimum, the identification of existing or potential staff capabilities, and
ownership of or access to necessary equipment or facilities. The description
may include capabilities such as:
Emergency response and hazard mitigation;
Investigation of suspected leaks and identification of the source;
Comprehensive site investigations;
Exposure assessments to determine potential health effects;
Provision of alternative water supplies;
Temporary or permanent relocation of residents;
Development of corrective action plans; and
Site cleanup, including removal, treatment, and disposal of
surface and subsurface contamination.
Corrective actions are often carried out by contractors, at the direction
of the State. As part of its capability discussion, where applicable, the
State should describe its plan for securing the services of such contracting
firms, 1n terms of types of activities, estimated funding, and time frame for
obtaining contractor services.
The State should describe Its corrective action policies and procedures, or
plans, with milestones, for developing such policies and procedures. This may
include such items as a generic response plan or decision making framework for
corrective action, criteria for provision of alternative water supplies or
relocation of residents, exposure assessment procedures, procedures for
evaluation and selection of remedies, and any cleanup standards that the State
may wish to Impose. The State's corrective action policy should consider the
relationship between corrective actions that may be taken and the need to
protect human health and the environment.
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OSWER DIR. 9650.6
D. COST RECOVERY
Requirement
Section 9003(h)(6) provides that whenever Trust Fund monies have been used
"for undertaking corrective action or enforcement action with respect to the
release of petroleum from an underground storage tank, the owner or operator of
such tank shall be liable to the ... State for such costs." The State must
have or obtain the authority to recover costs from liable owners and operators,
as well as the capability to pursue such activities. The State must establish
policies and procedures governing such activities for petroleum LIST sites. The
Conference Report to the 1986 Subtitle I amendments specifies that to encourage
aggressive cost recovery by the States, EPA may, in its discretion, make
available additional funds for corrective action to those States that
demonstrate an effective cost recovery program. EPA currently is investigating
how this can be accomplished.
Guidance
The State is responsible for recovering costs from liable owners and
operators, and will make a reasonable effort to recover costs, where
appropriate, at viable sites. The cooperative agreement should contain a
certification or evidence from the State that it has the legal authority to
carry out cost recovery actions, specifically for releases from petroleum USTs
and where Trust Fund monies are involved. The State certification should be
from an official authorized to provide such certification on behalf of the
State. The official does not necessarily need to be the State Attorney
General. In the absence of current cost recovery authority, the cooperative
agreement should include the State's plan, together with a schedule and
milestones, for obtaining such authority.
To demonstrate its cost recovery capabilities, the State should describe
its existing capability in this area, or a plan for establishing such
capability. The description should include, at a minimum, identification of
existing or potential staff to pursue cost recovery, and previous UST-related
cost recovery experience.
The State should establish cost recovery policies and procedures that can
be applied consistently in making cost recovery determinations, or commit to a
plan for developing such policies and procedures. The policies should include
criteria for determining at what sites cost recovery is appropriate, and for
assigning priorities within this class of sites. The policy should also
describe those circumstances under which it would be unlikely to pursue cost
recovery. In establishing its policies, the State may want to consider EPA's
philosophy that the primary purpose of cost recovery in the petroleum UST
cleanup program is to stimulate compliance with enforcement orders by
responsible owners and operators, particularly those who may be reluctant to
comply. The procedures should describe activities for tracking site-related
costs, preparing cases, and documenting cost recovery efforts.
The selection of cases for cost recovery as well as settlement amounts is
left to State discretion, on a case-by-case basis, but should be conducted in
accordance with the State's policies and procedures. Upon request of the
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OSWER DIR. 9650.6
State, EPA may provide some assistance to the State in the design and
implementation of a cost recovery program.
E. FEDERAL OVERSIGHT
EPA will oversee State programs, both formally and informally, in order to:
• Ensure adequate environmental protection through sound
administration and use of the Trust Fund;
• Enhance State capabilities through effective communication,
evaluation and support; and
• Describe and analyze the progress of programs on a regional and
national scale.
EPA's Regional staff will have the primary responsibility for oversight of
State programs. Regions and States should maintain a continuous dialogue so
that States can communicate problems encountered 1n meeting their commitments
and Regions can be responsive to State needs.
The Regions will formally review State programs at least once a year. They
will rely on required reports, State records and visits to the States to
identify the successes and problems encountered 1n State programs. Formal
program reviews should focus an overall performance rather than individual
actions. To the greatest possible extent, reviews should be based on objective
measures, standards, and expectations that are agreed to in advance through the
cooperative agreement.
Effective oversight entails the joint analysis of Identified problems to
determine their nature, causes, and appropriate solutions. It also requires
that the Regions Identify and facilitate the transfer of successful approaches
to other States and Regions. Finally, Information and insights gathered in
oversight activities should be used to refine subsequent cooperative agreements.
Requirements
States are required to submit three types of reports to EPA Regional
offices:
• Quarterly progress reports;
• Exception reporting as needed; and
• Financial status reports required by 40 CFR Part 30. EPA is
examining the need for additional fiscal reporting requirements.
tn progress reports for the first cooperative agreements, EPA is requesting
that each State submit data on activities which are supported by Trust Fund
monies as well as comparable information on the accomplishments of the State's
program as a whole. This will convey a more realistic picture of the
contributions of the Trust Fund to building State programs and provide EPA with
the data necessary to forecast long-term demand for Trust Fund monies.
Therefore, progress reports should contain, to the extent it is available, the
data for all petroleum UST actions in the State. Whenever possible, the States
should provide an aggregate breakout of activities and sites where UST Trust
10
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OSWER DIR. 9650.6
Fund dollars are spent, with a primary focus on cleanups and other site-related
activities. Quarterly progress reports must contain the following data:
1. Number of site investigations completed.
2. Number of emergency responses taken.
3. Total number of sites where cleanup actions are:
a. Underway—by responsible parties;
b. Completed—by responsible parties;
c. Underway—by the State and/or Its contractor; and
d. Completed—by the State and/or its contractor.
4. Number of sites where enforcement actions have been taken to
compel cleanup.
5. Number of sites where cost recovery action has been initiated.
Progress reports should also include a summary of Trust Fund monies spent
in each of the following broad categories of activities:
• Site responses (emergency responses, site investigations, and
cleanups);
• Enforcement activities (including-responsible party searches);
• Cost recovery; and
• Administrative and other costs.
Comparable data (or estimates) on the State's entire UST program would help
the Agency track total UST-related expenditures. EPA requests a similar
breakdown of resources from each State.
Exception reports will be made by the State to keep EPA informed of
unusual site remedies and uses of the Trust Fund. The State will notify the
Regional UST Coordinator when the State plans to:
• Spend UST Trust Fund dollars in excess of $100,000 at a single
site;
• Use Innovative or experimental technology at a site;
• Provide a permanent alternative water supply; or
• Permanently relocate residents.
The State will adhere to the reporting and recordkeeping requirements
described in 40 CFR Part 30 and maintain accurate and complete records of each
assistance award received. EPA is examining the need for additional fiscal
reporting requirements.
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OSWER DIR. 9650.6
The State will develop a plan for organizing and maintaining site-specific
information on activities and costs for sites where Trust Fund monies are used,
and will implement that plan as expeditiously as possible, given the State's
capabilities, authorities, and resources. This information will support
program and fiscal reviews by EPA and should include:
• Site location and description;
Results of site investigations (including identification of
responsible parties);
• Enforcement actions taken;
• Results of any exposure assessments conducted;
• Corrective action and other site-specific plans;
• Documentation of responses taken and timeframes;
• Documentation of costs, identifying Trust Fund monies expended;
and
• Cost recovery efforts and costs recovered.
Guidance
The Office of Underground Storage Tanks is in the process of developing
more detailed guidance to assist States in meeting requirements for reporting
and recordkeeping. A workgroup of State and EPA staff will develop necessary
definitions, reporting forms and procedures, and set criteria and procedures
for program reviews. More specific definitions and procedures for fiscal
recordkeeping and reporting will be issued as a result of this work.
The Agency expects that States should be able to submit more detailed
Information as State programs mature and their capabilities improve. For
example, tracking progress in identifying responsible parties and determining
solvency will help EPA and the States predict long-term demands on enforcement
and cleanup programs. One possible approach would be to ask for the following
data:
• Number of sites with confirmed releases where:
a. A solvent owner/operator has been identified;
b. Owner/operator is insolvent;
c. A search for responsible parties has been unsuccessful (i.e.,
abandoned or "orphaned" sites); and
d. A responsible party search has not been completed.
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OSW'ER DIR. 9650.6
EPA expects also to request the following data on successful cost recovery
actions:
• Number of sites where cost recovery has been successful; and
• Total dollar amounts recovered.
Work is continuing to refine possible reporting requirements in several
areas, which may include:
• Identifying responsible party cleanups that are voluntary and those
that follow from various types of enforcement actions; and
• Determining whether more precise identification of activities financed
by the Trust Fund is warranted.
States are encouraged to maintain a dialogue with the Regional offices,
identifying problems in meeting reporting requirements and suggesting solutions
and alternatives. EPA will continue to consult with States as it evaluates new
requirements and further defines reporting procedures.
F. PUBLIC PARTICIPATION
Requirement
Section 7004(b)(l) of RCRA requires that public participation be provided
for and encouraged by the State. In accordance with this requirement, the
State will take lead responsibility for public notices, public meetings, and
other public participation activities undertaken in the cooperative agreement.
The State also will have or will develop a public participation policy for the
State Trust Fund program. The cooperative agreement will include a statement
of this policy or a schedule for developing one.
Guidance
The purpose of the requirement for public participation is to promote
two-way communication between the implementing agency and the affected public
by:
• Facilitating public understanding of State response procedures
and actions; and
• Encouraging public input into State response decisions and
schedules.
It is EPA policy that public participation activities be appropriate to the
circumstances of a release.
The States may address the public participation requirement by developing a
policy for public involvement that recognizes the nature of the Trust Fund
program, that is, relatively numerous, short-term and small-scale responses.
This is in contrast to programs involving far more complex facilities and
decision making such as the RCRA Subtitle C permitting program for hazardous
waste facilities, or the Superfund remedial action program. Also, the State
should consider the public's willingness to allow emergency actions without
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OSWER DIR. 9650.6
prior consultation, but understand that the public may demand Information on
and Input Into long-term responses to health threats. Thus, a State's public
participation policy should be based on the severity of the threat to human
health and the environment posed by a release, the scale and duration of the
response, and the level of public interest.
G. QUALITY ASSURANCE
Requirement
The State will develop and implement a data quality assurance program in
accordance with the EPA General Assistance Regulation (40 CFR Part 30).
Section 30.503 of that regulation requires the development and implementation
of quality assurance practices that "will produce data of quality adequate to
meet project objectives and will minimize loss of data." Section 30.503
further requires the State to develop and Implement a quality assurance program
and submit a quality assurance plan which are acceptable to the EPA awarding
official (I.e., the EPA Regional Administrator). In accordance with the
regulation, the cooperative agreement will Include a State quality assurance
plan, or a schedule, with milestones, for developing an acceptable plan. This
quality assurance plan, as specified by Section 30.503(e), must address the
following areas:
1. Name of principal Investigator(s) and quality assurance officer;
2. Background, purpose, and scope -of the quality assurance plan;
3. Quality assurance policy statement;
4. Quality assurance management plan;
5. Personnel qualifications;
6. Facilities, equipment, and services;
7. Data generation and general quality assurance requirements;
8. Data processing (e.g., reduction, validation, reporting);
9. Data quality assessment;
10. Corrective action for out-of-control situations;
11. Development of Individual quality assurance project plans and
standard operating procedures, if required in the program plan;
and
12. Implementation requirements and schedule.
Guidance
The purpose of a quality assurance program is to ensure that procedures for
data collection and analysis are appropriate for the uses of that data, and, in
particular, to provide data which are scientifically valid, defensible, and of
adequate and known precision and accuracy.
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OSWER DIR. 9650.6
Since the underground storage tank program deals with a known substance
(petroleum), quality assurance procedures and methodologies normally should not
have to be as extensive or as complex as those for a program where the
pollutants can be of many types, often initially unknown. In the vast majority
of situations, as opposed to the Superfund remedial action program, LIST
cleanups will deal with known petroleum materials and established procedures
for corrective action. For this reason, a generic quality assurance plan can
be developed to ensure the necessary documentation to produce data of quality
adequate to meet State program objectives. The details of the QA plan should
be appropriate to the circumstances of the releases for which the QA procedures
will be applied.
States may consider submission of existing quality assurance plans with
modifications 1f appropriate, to satisfy this requirement. Additional guidance
on quality assurance plans 1s provided in EPA document QAMS-004/80, "Guidelines
and Specifications for Preparing Quality Assurance Program Plans" (EPA
600/8-83-024, available from the National Technical Information Service, NTIS
PB 83-219667).
H. STATE PROGRAM WORK PLAN
States are to submit a program work plan to EPA, which is commensurate with
the level of development of the State's corrective action program for petroleum
USTs. The work plan shall include a budget and a description of proposed
activities and outputs to be accomplished with Trust Fund monies during the
State's cooperative agreement period. The budget should-include a breakdown of
associated costs of each planned activity and output. A proposed schedule for
accomplishing each activity should be Included. Activities may Include, but
are not limited to the following:
1. Core Program
Where certain basic program items do not currently exist, the cooperative
agreement may provide for their development. Examples include:
Develop a system for assigning priorities to sites;
Establish enforcement policies and procedures;
Secure contractor services to perform corrective action;
Establish cost recovery policies and procedures;
Establish a slte-by-slte tracking system for activities,
decisions, and site-specific costs;
Develop public participation procedures; and
Develop a quality assurance plan.
2. Site Specific Activities
The cooperative agreement should Include a description and associated
budget of those activities that States plan to undertake at sites. It may
include an estimate of the number of sites at which the State intends to
undertake the various specific activities, and/or identification of individual
sites at which specific work is contemplated. Examples of site-specific
activities include:
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OSWER DIR. 9650.6
Emergency response;
Source identification;
Site Investigation;
Exposure assessment;
Soil and ground-water remediation;
Alternate water supplies;
Resident relocation (temporary or permanent);
Treatment, storage, and/or disposal of wastes and recovered
materials; and
Oversight of cleanups, Including those performed by responsible
parties.
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OSWER DIR. 9650.6
III. ADMINISTRATIVE REQUIREMENTS
This section summarizes the basic administrative requirements for a State
cooperative agreement application. The regulations discussed in this section
are:
• Nondiscrimination in EPA Assistance Programs - 40 CFR Part 7;
• Intergovernmental Review - 40 CFR Part 29;
• EPA's General Assistance Regulation - 40 CFR Part 30;
• Debarment and Suspension under EPA Assistance Programs - 40 CFR
Part 32; and
• Procurement under Assistance Agreements - 40 CFR Part 33.
The discussion that follows provides a brief description of the requirements
contained in each of the above regulations that are most pertinent to Trust
Fund cooperative agreements. For additional guidance and a comprehensive
review of EPA's administrative requirements for assistance under a cooperative
agreement, refer to EPA's Assistance Administration Manual (available through
the EPA Grants Administration Division).
A. NONDISCRIMINATION IN EPA ASSISTANCE PROGRAMS - 40 CFR PART 7
Prohibits discrimination based on race, color, sex, or handicap. Requires
applicants to submit an assurance of non-discrimination (compliance with Part
7) with a cooperative agreement application. The current Part 7 has
incorporated the requirements previously under Part 12 (The Clean Water Act).
B. INTERGOVERNMENTAL REVIEW - 40 CFR PART 29
Gives States the option of setting up a State process to review and comment
upon applications for Federal assistance. May Involve comment by State,
areawlde, or local governmental units. EPA must respond to comments. Requires
60 day comment period before award. Part 29 Implements Executive Order 12372.
C. EPA'S GENERAL ASSISTANCE REGULATION - 40 CFR PART 30
Provides numerous basic requirements concerning application for and award
and management of assistance agreements. The most relevant of these, at this
stage of program development are:
30.308 Costs incurred prior to award are not allowable.
30.400(b) Discusses methods of making payments to recipients (Section
30.400(b)(l) addresses letter of credit).
30.410(a) References OMB Circular A-87 which describes what administrative
criteria apply for determining costs allowable under an
assistance award. Also discusses direct and indirect cost
categories.
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OSWER DIR. 9650.6
.30.500 Provides general standards for keeping records: funds received
and expended, pYoject cost, property purchased; Section
30.500(a)(6) requires "documentation of compliance with
appropriate statutes and regulations."
30.503 Data, scientific measurements, etc. must meet appropriate
standards; recipient must have procedures, practices, etc. to
assure same; assistance application must include a quality
assurance plan acceptable to the award official (EPA's Regional
Administrator 1n this case).
30.505 Basic requirements for reports. For programmatic reporting, the
cooperative agreement must specify what is required. Reports may
be required no more frequently than quarterly, per OMB Circular.
Both interim and final reports may be required.
Standard forms for Financial Status Reports (SF-269) must be
submitted to EPA within 90 days after either the end of a budget
period or after project completion.
30.510 Provides requirements for financial accountability. Provides
further details to Section 30.500 for records (for funds).
Requirements include: accurate, current, and complete
accounting; documentation for the source and application of all
project funds; comparison of actual vs. budget amounts; audits,
etc. ...
30.1001 Provides procedures for requesting an exception (deviation) to
assistance-related regulations. Deviations may not be given for
statutorily-required provisions.
D. DEBARMENT AND SUSPENSION UNDER EPA ASSISTANCE PROGRAMS - 40 CFR
PART 32
Provides rules for suspension and debarment of contractors from utilization
under EPA assistance (also direct procurement). If a contractor is suspended
or debarred, he may not participate in an EPA assistance program. EPA's Grants
Administration Division maintains a 11st of such contractors.
E. PROCUREMENT UNDER ASSISTANCE AGREEMENTS - 40 CFR PART 33
Sets forth EPA's rule for awarding contracts under assistance (grants and
cooparative agreements). Strong preference for maximizing competition,
exceptions possible 1f appropriate. Applicants either must certify their own
procurement system 1s equivalent to Part 33 requirements or must follow Part 33
Itself. Of special note 1s Section 33.240 which describes EPA's policy
requiring recipients to take affirmative steps to assure participation of
small, minority, and women's businesses in providing supplies, construction,
and services under assistance agreements.
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OSWER DIR. 9650.6
30.500 Provides general standards for keeping records: funds received
and expended, pYoject cost, property purchased; Section
30.500(a)(6) requires "documentation of compliance with
appropriate statutes and regulations."
30.503 Data, scientific measurements, etc. must meet appropriate
standards; recipient must have procedures, practices, etc. to
assure same; assistance application must include a quality
assurance plan acceptable to the award official (EPA's Regional
Administrator in this case).
30.505 Basic requirements for reports. For programmatic reporting, the
cooperative agreement must specify what is required. Reports may
be required no more frequently than quarterly, per OMB Circular.
Both interim and final reports may be required.
Standard forms for Financial Status Reports (SF-269) must be
submitted to EPA within 90 days after either the end of a budget
period or after project completion.
30.510 Provides requirements for financial accountability. Provides
further details to Section 30.500 for records (for funds).
Requirements include: accurate, current, and complete
accounting; documentation for the source and application of all
project funds; comparison of actual vs. budget amounts; audits,
etc.
30.1001 Provides procedures for requesting an exception (deviation) to
assistance-related regulations. Deviations may not be given for
statutorily-required provisions.
D. DEBARMENT AND SUSPENSION UNDER EPA ASSISTANCE PROGRAMS - 40 CFR
PART 32
Provides rules for suspension and debarment of contractors from utilization
under EPA assistance (also direct procurement). If a contractor is suspended
or debarred, he may not participate in an EPA assistance program. EPA's Grants
Administration Division maintains a list of such contractors.
E. PROCUREMENT UNDER ASSISTANCE AGREEMENTS - 40 CFR PART 33
Sets forth EPA's rule for awarding contracts under assistance (grants and
cooperative agreements). Strong preference for maximizing competition,
exceptions possible if appropriate. Applicants either must certify their own
procurement system is equivalent to Part 33 requirements or must follow Part 33
itself. Of special note is Section 33.240 which describes EPA's policy
requiring recipients to take affirmative steps to assure participation of
small, minority, and women's businesses in providing supplies, construction,
and services under assistance agreements.
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