&EPA
United States
Environmental Protection
Agency
OHice of
Solid Waste and
Emergency Response
DIRECTIVE NUMBER: 9650.9
TITLE: Suggested Procedures for Review of
State UST Applications
APPROVAL DATE: 3/16/89
EFFECTIVE DATE: 3/16/89
ORIGINATING OFFICE: Office of Underground
0 FINAL Storage Tanks
D DRAFT
STATUS.
REFERENCE (other documents):
OS WE Ft OS WER O S WER
fE DIRECTIVE DIRECT/Vt
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united otates environmental protection Agency
Washington, DC 20460
OSWER Directive Initiation Request
1. Directive Number
9650.9
2. Originator Information
Name of Contact Person
Jerry Parker
Mail Code
OS-420
Office
OSWER/QUST
Telephone Code
475-7263
3. Title
Suggested Procedures for Review of State UST Applications
4. Summary of Directive (include brief statement of purpose)
This document proposes a set of suggested procedures for review of
individual State UST applications.
5. Keywords review process, State program approval review,, roles and responsibilities,
schedules ' •
6a. Does This Directive Supersede Previous Directive(s)?
b. Does It Supplement Previous Directive(s)?
No
No
Yes - What directive (number, title)
Yes What directive (number, title)
7. Draft Level
A - Signed by AA/DAA
B - Signed by Office Director
C - For Review & Comment . - - .'•'• b'- In Development
8. Document to be distributed to States by Headquarters?
Yes
XX
No
This Request Meets OSWER Directives System Format Standards. ' •• '"' '
9. Signature of Lead Office Directives Coordinator
(S^^t'J^l r/C^/)/H^?J
Beverly Thomas, Directives Coordinator, OUST
10. Name and Title of Approving Official ,S / j^- /\. _/£__
/{/~r~0"- — ^^•,^^e^-^r
Ronald Brand, Director, Office of Underground Storage Tanks
Date
3/^ln ,
Date
y*j/*?
EPA Form 1315-17 (Rev. 5-87) Previous editions are obsolete.
OSWER OSWER OSWER
VE DIRECTIVE DIRECTIVE
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OSWER Directive 9650.9
SUGGESTED PROCEDURES
FOR REVIEW OF
STATE UST APPLICATIONS
£7.5. ENVIRONMENTAL PROTECTION AGENCY
OFFICE OF UNDERGROUND STORAGE TANKS
March 1989
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OSWER Directive 9650.9
TABLE OF CONTENTS
I. INTRODUCTION 3
II. OVERVIEW AND APPROACH 3
III. ROLES AND RESPONSIBILITIES 4
Regional Review Team Members 5
State Applicant 8
Headquarters Offices 8
IV. REVIEW PROCESS 9
Phase 1: Acceptance of Application 11
Phase 2: Substantive Review and Tentative Determination 11
Phase 3: Review of Public Comments and Final Determination 13
V. SCHEDULE FOR'APPLICATION REVIEW PROCESS 14
Streamlined Interim and Final Approval Schedule 14
Extended Interim and Final Approval Schedule 16
VI. CODIFICATION OF APPROVED STATE PROGRAMS 17
VII. ADMINISTRATIVE RECORDS FOR STATE PROGRAM APPROVAL DECISIONS 18
Purpose of the Record 18
Content of the Record ' 18
APPENDIX A GUIDANCE ON PREPARING FEDERAL REGISTER NOTICES A-l
APPENDIX B APPROVAL DETERMINATIONS
Tentative Determination To Approve B-l
Final Determination To Approve B-6
APPENDIX C CODIFICATION OF APPROVED STATE PROGRAMS
Proposed/Final Codification Notice C-l
Immediate Final Codification Notice C-12
CFR Reference for Codification of State UST Programs C-23
APPENDIX D
Checklist for Complete State Applications D-l
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PROCEDURES
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OSWER Directive 9650.9
I. INTRODUCTION
This document proposes a set of procedures for review of individual
State UST applications. The review processes are designed for both the
Regions and Headquarters offices, although the Regions have the prerogative to
adopt alternative procedures to suit individual Regional organizations. The
procedures that govern the participation of Headquarters offices and their
role in the State program approval process are intended to remain more rigid.
The document is organized to explain the general approach of the Office
of Underground Storage Tanks (OUST) to State program approval; suggest the
roles and responsibilities of the Regions; describe the limited involvement of
certain Headquarters offices; suggest a schedule for ensuring that decisions
are made on State applications within 180 days, as required by Subtitle I of
RCRA; and provide information on codification of approved State programs and
administrative records for State program approval decisions.
II. OVERVIEW AND APPROACH
EPA has developed a State program approval process that will ensure that
existing and future State programs are approved to operate "in lieu of" the
Federal program with as little disruption and controversy as possible. As
stated in the final State program approval rule published in the Federal
Register on September 23, 1988, EPA's goal is to develop a flexible State
program approval process that will allow States to explore innovative
approaches in program development and implementation, while providing the
required level of stringency. A process that delegates major responsibility
for UST program implementation to the individual States makes sense because
the most effective response to UST problems is provided through State or local
programs which are closer to the UST facilities than the Federal government.
However, concepts, guidance, and training for program implementation are
developed by Headquarters and the Regions. The Regions then use these tools
to assist individual States in developing approvable UST programs and to
ensure that State programs fulfill the statutory requirements.
In the internal EPA process for State application approval, Headquarters
is responsible for establishing and maintaining national standards for program
consistency and quality. The Re'gions, who are most knowledgeable about the
quality and uniqueness of individual State programs, are responsible for
managing the review of applications, and for making the tentative and final
decisions to approve State programs. Such decision-making authority already
has been delegated to the Regional Administrators, with a limited consultation
role for OUST. This document suggests s>me procedures the Regions might use
in carrying out this important activity.
The UST State program approval process described here is designed to
streamline the formal decision-making process so that States meeting the
standard established by EPA will be approved in the shortest possible period
of time. The approval process is also designed to maximize interaction
between the Region and State. This interactive process should result in
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OSWER Directive 9650.9
faster removal of obstacles to approval because the Region is able to discuss
approval issues and public comments with the State early in the process. The
process also allows the State Agency Director an opportunity to effectively
defend the program, as necessary, before the Regional Administrator.
III. ROLES AND RESPONSIBILITIES
Overview
The Regional Review Team, which includes the UST Program Manager, staff
representatives from UST program, and a representative from the Office of
Regional Counsel, is responsible for reviewing State program approval
applications, working with the State to reach agreement on any outstanding
issues, and recommending approval decisions to the Regional Administrator,
through the appropriate Regional Division Director. Regions are not required
to consult with OUST on recommended decisions unless the Region is planning
not to approve a State program.
Review and discussion of States' laws regarding underground storage
tanks should begin as the State is developing its application. The Regional
Review Team will identify deficiencies in State laws as soon as possible so
that States will have adequate time to make necessary legislative
'modifications and still receive timely program approval. As the first step in
program approval, statutory and regulatory review assures the States of being
able to develop an official program approval application with confidence.
After review of the statutes and regulations the Region, following
consultation with the Office of Regional Counsel, should conduct a meeting
with the States' Attorney General (or staff) to discuss any deficiencies found
in the law. Some Regions may wish to have the Regional Counsels take the lead
in setting up such a meeting; this can be a Regional determination. Following
this meeting, the Regions should inform the State of the Agency's concerns
regarding unresolved issues.
As States proceed toward program approval, the Regions must provide on-
going assistance, working closely with the States to ensure adequacy and
completeness of the various components of the State's draft application for
program approval. A thorough review of the various components of the draft
application should begin in the Regions as soon as each is completed by the
State. These pre-application reviews should be timely, with written comments
forwarded to the State within three weeks from date of receipt. This process
alerts the State very early to issues which could later cause a delay in
review and approval of the official application.
Before the State application process begins, OUST is responsible for
determining national decision-making criteria for "no less stringent" and
"adequate enforcement". Other Headquarters offices, such as the Office of
General Counsel (OGC), the Office of Enforcement and Compliance Monitoring
(OECM), and the Office of Waste Programs Enforcement (OWPE), are responsible
for assisting OUST in this task. During the application review process, OUST
and OGC will serve as resources for the Regions to assist them upon request.
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OSWER Directive 9650.9
OUST will also examine the first few State applications to determine the
effectiveness of the national decision criteria for "no less stringent" and
"adequate enforcement", and will also observe the application review process
and suggest ways to improve it. These suggestions are meant to help the
Regions better understand the "no less stringent" requirements so as to be
able to come up with consistent interpretations. Headquarters offices may
make comments on applications but will not have a formal concurrence role with
respect to the Regional Review Team recommendation.
Exhibit 1 displays the interaction between the Regional Review Team and
the other participants in the review process. The following sections more
fully describe the roles suggested for each of the participants.
Regional Review Team Members
Composition of the Regional Review Team will likely vary from Region to
Region. Team members will necessarily reflect the UST staffing levels and
Regional needs and priorities. We suggest that the team be comprised, for
example, as follows: Regional UST Program Manager (Chairperson); Regional
person representing UST enforcement; Regional person representing LUST Trust
Fund policies; Regional person representing the UST prevention program; and a
Regional Counsel representative. Please note that in practice, one Regional
person may be wearing several hats, e.g., UST enforcement, LUST Trust Fund,
and UST prevention program. In many Regions, the UST staff is responsible for
UST enforcement. Some Regions may also wish to have a technical standards
expert on the Review Team.
The following elaboration of the roles of the Regional Review Team
members is meant to suggest one possible way in which the review process might
be handled. The Regions should adopt specific procedures which best suit
their particular organization.
n The Regional UST Program Manager
Attempts to resolve any issues before the State
application is formally submitted. Manages the
initial review to determine if the State application
is complete. If necessary, staff works with the State
to supply information missing from the application.
Notifies the State Program Contact when the
application is declared complete. Transmits complete
application to Regional Review Team and tracks review
cycle.
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ExfiMl
Participants in the State Program Approval Process
1
1 OGC
1
L
*
1
1
1
1
1
1
1
1
1
1
I _^
• T
1
* —
r^w~
1
. J
r~
I
— -*H
1
1
OUST
T
1
H
1
j
RA/DRA
h ,
|
1
t
Regional Review
Team
Regional
Counsel
Representative
Division
Director
\
Regional
*-
\
\
UST Program Manager
(Chairman)
Regional*
UST
Enforcement
Representative
-
.
.
State Agency
Director
State Program
Contact
'
Regional
LUST
Trust Fund
Representative
Regional
UST Prevention
Program
Representative
* In many Regions the enforcement representative works directly for the UST Coordinator, rather than in a separate enforcement office.
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OSWER Directive 9650.9
- - Chairs the Regional Review Team meetings.
Responsible for negotiating and resolving remaining
issues with the State Program Contact. Recommends an
approval decision (tentative and final) to the
Regional Division Director and the Regional
Administrator. Documents the final position of each
member of the Review Team, especially any reasons to
support a recommendation for disapproval, if any.
-- Manages the public comment process, and conducts a
public hearing if necessary. Sends copies of all
public comments to the Review Team and the State
Program Contact. Works with the State Program Contact
to respond to any issues raised by the commenters.
Regional Counsel Representative
-- The Regional Counsel representative will be most
heavily involved in reviewing the Attorney General's
Statement to determine the adequacy of the State's
legal authorities. Determination of a State's
capabilities, however, will be left to the Regional
UST Program Manager. The Regional Attorney may need
to meet with a representative from the State Attorney
General's Office to resolve outstanding issues.
Other Regional Team Members
-- Are responsible for reviewing the substance of the
State application and making approval recommendations
to the Regional UST Program Manager. Participate in
all Review Team meetings and also attend the briefing
for the Regional Administrator. Review public
comments and advise Regional UST Program Manager in
responding to any issues raised by the commenters.
State Applicant
• State Proeram Contact
-- Submits an official application, preferably using the standard
form developed by OUST. (The standard application form is
optional; States may tailor the application format to suit their
needs.) Responds to requests from the Regional UST Program
Manager for missing components or additional information needed to
complete the application. Discusses all potential issues with the
Regional UST Program Manager as they arise during the review of
the application. Attends the briefing for the Regional
Administrator on any outstanding issues, along with the State
Agency Director. Receives copies of any written public comments
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OSWER Directive 9650.9
from the UST Program Manager and works with the Program Manager to
respond to any issues raised by the commenters.
State Agency Director
-- Meets with the Regional Division Director or
Regional Administrator/Deputy Regional Administrator
to pursue negotiation of problems if the State Program
Contact cannot resolve major issues with the Regional
UST Program Manager.
Headquarters Offices
As described earlier, Headquarters offices have a major role to play in
developing national decision criteria (i.e., the criteria Regions apply when
evaluating State applications), but only a relatively minor role in
implementation of these decision criteria during the review of individual
State program applications.
n Office of Underground Storage Tanks
-- OUST will be available during the pre-application phase for
consultation and will review State program applications when
referred by the Regions.
-- OUST is responsible for reviewing the first few
State applications to validate the consistency of
application of the national decision criteria. OUST
will identify six to twelve early applications for
concurrent review. The Regional UST Program Managers
will send copies of those applications to OUST. OUST
will notify OGC that a State application is available
for review. In addition, OUST will observe the
Regional Review process in order to ascertain its
workability and to recommend improvements, if
necessary. This review provides Headquarters and the
Regions an opportunity to ensure that specific
approval issues are fully considered in light of
potential shortcomings that may be inherent in the
national decision criteria. This process will not
delay the Regional review. Finally, OUST must be
consulted if the Regional Administrator expects to
make a negative determination on a State's
application. (This consultation procedure is required
by the terms of the existing delegation of authority
from the Administrator to the Regional Administrator.)
- - OUST will follow up on the shortcomings identified
during this process and work with the Regions and
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OSWER Directive 9650.9
other Headquarters offices to revise the national
decision criteria as appropriate.
Office of General Counsel
-- OGC is available during the pre-application phase
for consultation and will review State program
applications when referred by the Regions through
OUST.
-- OGC may obtain a copy of the initial applications
from OUST and review them with regard to the
effectiveness of the national decision criteria. OGC
submits its comments to OUST.
-- The Regional Counsel representative on the Regional
Review Team may choose to consult with OGC as
necessary on any State application.
-- OUST will consult with OGC on an "exceptions" basis
as specific legal issues arise that affect more than
one State or Region.
IV. REVIEW PROCESS
The process we suggest for review of State applications is displayed in
Exhibit 2. Each step on the flow chart is numbered and explained below. As
stated earlier, these steps can be modified to meet Regional needs.
This process assumes substantial pre-application consultation and
cooperation with the State. Prior to the State application being formally
submitted, the Regional UST Program Manager works and negotiates with the
State Program Contact to resolve, wherever possible, outstanding issues.
Codification of State laws should be initiated during this pre-application
phase.
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ExhifiiT 2
Steps in the State Approval Review Process
Receive State
Application
Completeness
Determination
RRT
Meets -
Determine if
State Must Submit
Additional
Information
RRT Members
Request Additional
Information from
State Program
Contact
8
State Program
Contact
Interacts with UST
Program Manager
As Necessary
RRT Meets to
Discuss
Recommendations
for Approval Decision
There
Outstanding
Issues / No
14
Meeting with
State Director,
Division Director
and RA/DRA to
Resolve Issues *
15
Brief
Division Director
and RA/DRA
on Recommendation
16
17
RA Makes Decision
and Notifies State
Agency Director
Publish
Federal Register
Notice
If
Tentative
Public Comment
Period and
Public Hearing
If Necessary
(30-31 days)
j.
' Final
22
Are There
Adverse
Public
Comments
21
PROGRAM
APPROVAL
* The Region must consult with OUST prior to making a negative determination.
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11 OSWER Directive 9650.9
Phase 1: Acceptance of Application
1. The State submits an official application. (The standard form developed by
OUST is optional.)
2. Regional UST staff review the State's standard application form or other
application materials using a checklist or similar tool to determine if the
application is complete. This review is conducted as quickly as possible after
receipt of the State's application.
3. The UST Program Manager contacts the State Program Contact to request
missing components or additional information necessary to review the
application.
4. Once the application is declared complete and logged-in, Regional staff
make copies of the official application and distribute it to the Regional
Review Team and OUST in the cases where OUST has requested the application for
review. The Regional UST Program Manager notifies the State Program Contact
in writing that the application has been declared complete and that the 180-
day review process has begun.
Phase 2: Substantive Review and Tentative Determination
5. Once the application is complete, we recommend the Review Team take about
three weeks to review the application.
6. Around the beginning of the fourth week, the Review Team meets to discuss
any issues regarding the State's application. The purpose of this meeting is
to decide what issues require additional information or clarification by the
State.
7. The Regional UST Program Manager meets with the State Program Contact
during the fourth week to request any additional information and to negotiate
and resolve any outstanding issues in order to reach a tentative determination
on the application. (Some Regions may wish to maintain a written record of
this step.) At the same time, the Regional Counsel representative may wish to
meet with a representative from the State Attorney General's Office.
8. The State Program Contact submits additional information and interacts
with the Regional UST Program Manager to respond to questions raised by the
Regional Review Team.
9. The Regional UST Program Manager sends the revised State information to
the Review Team and OUST. The final review stage begins, which we recommend
take three weeks.
10. The Regional Review Team meets to discuss its recommendation for a
tentative determination. The function of this meeting is similar to a
workgroup closure meeting in the regulatory development process. Each member
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12 OSWER Directive 9650.9
of the Regional Review Team is given an opportunity to discuss issues with the
team and to state his or her recommendation for the tentative decision.
Review Team members should focus their comments on issues that are "stoppers".
"Stopper" issues are legal or policy issues that the Regional Administrator
would agree require disapproval of the State's application. The Regional UST
Program Manager is responsible for formulating an overall recommendation for
the Division Director and the Regional Administrator. This recommendation
should be accompanied by a discussion of any issues raised by the Regional
Review Team that are unresolved at the conclusion of its review.
11. The Regional UST Program Manager decides if there are any outstanding
issues regarding the State's application for program approval.
12. The Regional UST Program Manager briefs the Division Director and the
Regional Administrator or Deputy Regional Administrator on the outstanding
issues.
13. The Regional UST Program Manager notifies the State Program Contact of
the outstanding issues if upper management cannot resolve the issues.
14. The Regional UST Program Manager, Regional Attorney, State Agency
Director, State Program Contact, Regional Administrator, and Division Director
meet to resolve any remaining issues. Regional Review Team Members are
present at this briefing in order to provide additional explanation of the
issues, if needed. In the event the Regional Administrator intends to make a
negative determination following this meeting, OUST should be contacted prior
to the official notification of the State Agency Director in step 16.
15. If there are no outstanding issues at step 11, the Regional UST Program
Manager briefs the Division Director and the Regional Administrator or Deputy
Regional Administrator on an affirmative recommendation.
16. The Regional Administrator makes a tentative determination on the
application and notifies the Division Director, the Regional UST Program
Manager, the Regional Attorney, and the State Agency Director of his or her
decision.
17. The Regional UST staff draft the Federal Register notice of tentative
decision. (Model Federal Register notices are provided as examples in the
appendix to this document.) The Regional UST Program Manager obtains the
Regional Administrator's signature on the Federal Register notice and the
Federal Register notice is published.
18. If this is a notice of tentative decision, the process continues on to
step 19. If this is a notice of final determination, the process skips to
step 23 and ends with program approval, as described below.
19. The public comment period begins. A public hearing may be held at the
conclusion of the 30-day public comment period if requested or if there are
significant unfavorable comments. The notice of the public hearing may be
combined with notice of tentative decision.
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16 OSWER Directive 9650.9
143 Publish Federal Register Notice of Final Determination
EXTENDED INTERIM AND FINAL APPROVAL SCHEDULE
Calendar Days Approval Activities
1 Log and Transmit Complete Application To Review Team
21 Review Team Completes Initial Review of Application
24 Regional Review Team Meets with UST Program Manager To
Ascertain Need For Any Additional Information From the
State
25 UST Program Manager Contacts State Program Contact To
Discuss Additional Information (If Necessary)
39 State Program Contact Submits Additional Information
(If Necessary)
53 Review Team Completes Final Review
58 Review Team Closure Meeting To Discuss Recommendations
on the Application
65 UST Program Manager Formulates An Overall
Recommendation and Prepares Briefing For the Regional
Administrator and Division Director
67 UST Program Manager Briefs the Regional Administrator
and Division Director on Approval Issues
68 UST Program Manager Notifies the State Program Contact
of Outstanding Issues
69 UST Program Manager Briefs the Regional Administrator
and the Division Director Regarding Issues on the
Tentative Determination; Meets with the State Agency
Director and the State Program Contact As Necessary
76 Regional Administrator Makes Tentative Determination
and Notifies UST Program Manager and State Agency
Director
86 Regional Staff Complete Federal Register Notice of
Tentative Decision, and Obtain Regional
Administrator's Signature
93 Publish Federal Register Notice and Public Comment
Period Begins
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17 OSWER Directive 9650.9
123 Public Comment Period Closes
124 Public Hearing (If Necessary)
131 UST Program Manager Distributes Public Comments To the
Review Team and the State Program Contact
138 UST Program Manager Meets With State Program Contact
To Discuss Additional Information Needed to Respond To
Public Comments
145 Review Team Meets To Discuss and Draft Agency Response
To Public Comments
148 UST Program Manager Briefs Regional Administrator and
Division Director On Issues and Recommendations For
Final Determination; Meets With the State Agency
Director and State Program Contact As Necessary
156 Regional Administrator Makes Final Determination and
Notifies Division Director, UST Program Manager, and
State Agency Director
162 Regional Staff Complete Final Action Memo and Federal
Register Notice of Final Determination, and Obtain
Regional Administrator's Signature
169 Publish Federal Register Notice of Final Determination
VI. CODIFICATION OF APPROVED STATE PROGRAMS
Codification is the process of placing a rule in the Code of Federal
Regulations (CFR). EPA codifies approved State UST programs to identify the
specific elements of the State program that are RCRA Subtitle I requirements.
The codification of State programs should substantially enhance the public's
ability to discern the current status of the approved State program. This
will be particularly true as States adopt additional Federal requirements or
revise their approved UST programs,
Normally, the,' CFR publication requirements necessitate reprinting the
State statute and regulations that EPA has approved. Federal law, however,
allows EPA to meet these requirements by "incorporating by reference"
materials published elsewhere. 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 CF.l. The approved State laws and regulations, in
addition to being reference'.! in the CFR, are actually on file at the Office of
the Federal Register (OFR) and at EPA offices and are available to the public.
The entire approved State UST program is codified. The codified
elements are:
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18 OSWER Directive 9650.9
a State statute;
n State regulations;
n Attorney General's Statement;
a Memorandum of Agreement; and
D Program Description.
Although all of these elements are codified, only the State statute and
regulations are incorporated by reference. This is because EPA will only
enforce those statutes and regulations against the regulated community.
However, State enforcement authorities contained in those statutes and
regulations are codified but not incorporated by reference since EPA uses its
own authorities to enforce approved State requirements. The model
codification notices in Appendix C provide a clear example of this
distinction.
Codification of the State approval documents (other than statutes and
regulations) is accomplished by referencing each document's title, and date,
if it is a signed document.
Appendix C contains two model codification notices. Model A is
applicable to tentative and final determinations on initial State program
approval decisions. Model B is an immediate final rulemaking notice
applicable to revisions to approved State programs.
Headquarters has submitted a Federal Register notice to reserve Part 282
for codification of approved State UST programs. The Appendix C also 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 notices.
VII. ADMINISTRATIVE RECORDS FOR STATE PROGRAM APPROVAL DECISIONS
Purpose of the Record. The Regions must maintain an administrative
record for each State program approval decision. The administrative record is
simply a compilation of materials considered or relied upon by the Agency in
making an administrative decision, for example, a tentative or final state
program approval decision. The purpose of an administrative record is to
assist the Agency decision makers in considering the basis for proposed Agency
action, and to provide a basis upon which the Agency can defend, and a court
can review, the final administrative decision. The record also provides the
public with background information regarding the Agency's rulemaking.
Content of the Record. Internal communications, (for example, comments
received from within the Region, other Regional offices, or Headquarters), are
generally not part of the administrative record. However, formal guidance
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19 OSWER Directive 9650.9
documents or policy directives from Headquarters or memoranda providing
factual information upon which a decision is based may be part of the record.
Note that when EPA-generated information is part of the record, it generally
must be made available to the public as part of the tentative decision in
order to avoid notice-and-comment problems. Note that communications between
the State and EPA are not internal deliberations and should be treated as any
non-EPA comments. Draft documents are also generally not part of the record
unless they contain information that formed a basis for the state program
approval decision and are not superceded by a final document.
The administrative record for state program approval decisions should
contain all non-EPA comment's received during the public comment period. In
addition, the Regions should document any significant non-EPA comments,
whether or not received during the comment period, if they provide information
upon which state program approval decisions are based.
The following list of documents is provided as guidance in establishing
the administrative record:
• Pre-application materials: including correspondence
between EPA and the State relevant to the tentative
decision, and significant EPA comments to the State on
pre-application materials.
• The State program approval application and any
subsequent State submission for consideration in the
approval process.
• The Federal Register notice setting forth the
tentative decision and any supporting materials.
The items listed above constitute the administrative record for the tentative
decision and form the basis for public comment on -the proposed approval. The
following documents should be added to the Docket because they are part of the
Agency's administrative record on the State program approval.
n Public comments on the tentative decision, both
written and oral. Oral communications should be
documented for the record.
n EPA responses to public comments on the tentative
decision.
n The Federal Register notice setting forth the final
State program approval decision and any supporting
materials.
The Office of Regional Counsel can answer questions concerning what materials
should be included in the record for state program approval decisions.
Additional guidance on establishing an administrative record, also known as a
docket, can be found in the UST Regulatory Docket Procedures Manual.
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APPENDICES
-------
Guidance on Preparing £R
Notices
-------
OSWER Directive 9650.9
APPENDIX A
GUIDANCE ON PREPARING FEDERAL REGISTER NOTICES
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A-l OSWER Directive 9650.9
GUIDANCE ON PREPARING FEDERAL REGISTER 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 of 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 name and title of signing official, ink signature;
Deliver three originals with ink signatures; the signature
may not appear on a page by itself; and
Page numbers must be consecutive and appear at the bottom of
the page.
A sample Federal Register checklist is included in this appendix.
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A-2 OSWER Directive 9650.9
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 Register. 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. Expedited 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).
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Model ER Notices
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OSWER Directive 9650.9
APPENDIX B
APPROVAL DETERMINATIONS
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B-l OSWER Directive 9650.9
Tentative Determination To Approve
(Model Federal Register Notice)
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 281
(Insert name of State); Final Approval of State Underground Storage Tank
Program
AGENCY: Environmental Protection Agency
ACTION: Notice of Tentative Determination on Application of State X for
Final Approval, Public Hearing and Public Comment Period.
SUMMARY: State X has applied for final approval of its underground storage
tank program under Subtitle I of the Resource Conservation and Recovery Act
(RCRA). The Environmental Protection Agency (EPA) has reviewed State X's
application and has made the tentative decision that State X's underground
storage tank program satisfies all of the requirements necessary to qualify
for final approval. Thus, EPA intends to grant final approval to the State to
operate its program. State X's application for final approval is available
for public review and comment and a public hearing will be held to solicit
comments on the application, if requested.
DATES: A public hearing is scheduled for (insert date of hearing, at least 30
calendar days after date of publication in FR). State X will participate in
the public hearing held by EPA on this subject. All comments on State X's
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B-2 OSWER Directive 9650.9
final approval application must be received by the close of business on
(insert date at least 30 calendar days after date of publication in FR).
ADDRESSES: Copies of State X's final approval application are available
during (insert business hours) at the following addresses for inspection and
copying: (insert appropriate State addresses); U.S. EPA Headquarters Library,
PM 211A, 401 M Street, S.W., Washington, B.C. 20460, Phone: 202/382-5926; and
U.S. EPA Region (insert Region number), Library, (insert the address, phone
number, and contact). Written comments should be sent to (insert name,
address, and phone number of Regional contact). EPA will hold the public
•
hearing on (insert date, time, and location of hearing).
FOR FURTHER INFORMATION CONTACT: '(Insert name, address, and phone number of
the appropriate Regional contact.)
SUPPLEMENTARY INFORMATION:
A. Background
Section 9004 of the.Resource Conservation and Recovery Act (RCRA)
enables EPA to approve State underground storage tank programs to operate in
the State in lieu of the Federal underground storage tank (UST) program. Two
types of approval may be granted. The first type, known as "interim
approval", is a temporary approval which is granted if EPA determines that the
State program is "no less stringent" than the Federal program (Section
9004(b)(2), 42 U.S.C. 6991c(b)(2)) in the following elements: corrective
action; financial responsibility; and new tank standards. While operating
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B-3 OSWER Directive 9650.9
under interim approval, the State may complete development of "no less
stringent" standards for the following elements: release detection; release
•detection recordkeeping; reporting of releases and corrective action and tank
closure.
The second type of approval is a "final approval" that is granted by EPA
if the Agency finds that the State program: (1) is "no less stringent" than
the Federal program in all seven elements, and includes notification
requirements of section 9004(a)(8) 42 U.S.C. 6991c(a)(8); and (2) provides for
adequate enforcement of compliance with UST standards (Section 9004(a), 42
U.S.C. 6991(b)).
B. State X
(Insert paragraph briefly describing the State's approval history prior to
submission of the "official" application.)
On , State X submitted an official application for final approval.
Prior to its submission, State X provided an opportunity for public notice and
comment in the development of its underground storage tank program. This is
required under §281.50(b). EPA has reviewed State X's application, and has
tentatively determined that the State's program meets all of the requirenents
necessary to qualify for final approval. Consequently, EPA intends to giant
final approval to State X to operate its program.
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B-4 OSWER Directive 9650.9
In accordance with Section 9004 of RCRA 42 U.S.C. 6991c and 40 CFR
281.50(e), the Agency will hold a public hearing on its tentative decision on
(insert date of hearing, at least 30 calendar days after date of publication
in FR) at (insert time and location of hearing). The public may also submit
written comments on EPA's tentative determination until (insert date at least
30 calendar days after date of publication in FR). Copies of State X's
application are available for inspection and copying at the location indicated
in the "Addresses" section of this notice.
(You may wish to insert a paragraph here that directs the public's attention
to certain issues.)
EPA will consider all public comments on its tentative determination
received at the hearing or during the public comment period. Issues raised by
those comments ms.y be the basis for a decision to deny final approval to State
X. EPA expects to make a final decision on whether or not to approve State
X's program by [insert date 90 calendar days after date of publication in FR]
and will give notice of it in the FEDERAL REGISTER. The notice will include a
summary of the reasons for the final determination and a response to all major
comments.
COMPLIANCE WITH EXECUTIVE ORDER 12291: The Office of Management and Budget
has exempted this rule from the requirements of Section 3 of Executive Order
12291.
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B-5 OSWER Directive 9650.9
CERTIFICATION UNDER THE REGULATORY FLEXIBILITY ACT: Pursuant to the
provisions of 5 U.S.C. 605(b), I hereby certify that this approval will not
have a significant economic impact on a substantial number of small entities.
The approval effectively suspends the applicability of certain Federal
regulations in favor of State X's program, thereby eliminating duplicative
requirements for owners and operators of underground storage tanks in the
State. It does not impose any new burdens on small entities. This rule,
therefore, does not require a regulatory flexibility analysis.
LIST OF SUBJECTS IN 40 CFR PART 281: Administrative Practice and Procedure,
Hazardous Materials, State Program Approval, and Underground Storage Tanks.
AUTHORITY: This notice is issued under the authority of Sections 2002(a),
7004(b), and 9004 of the Solid Waste Disposal Act as amended 42 U.S.C.
6912(a), 6926, 6974(b).
Regional Administrator
Dated:
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B-6 OSWER Directive 9650.9
Final Determination To Approve
(Model Federal Register Notice)
ENVIRONMENTAL PROTECTION AGENCY
40 CFR PART 281
(Insert name of State); Final Approval of State Underground Storage Tank
Program
AGENCY: Environmental Protection Agency
ACTION: Notice of Final Determination on State X's Application for Final
Approval.
SUMMARY: State X has applied for final approval -of its underground storage
tank program under Subtitle I of the Resource Conservation and Recovery Act
(RCRA). Environmental Protection Agency (EPA) has reviewed State X's
application and has reached a final determination that State X's underground
storage tank program satisfies all of the requirements necessary to qualify
for final approval. Thus, EPA is granting final approval to State X to
operate its program.
EFFECTIVE DATE: Final approval for State X shall be effective at 1:00 pm on
[insert date 30 days after the date of publication in the FEDERAL REGISTER].
FOR FURTHER INFORMATION CONTACT: (Insert name, address, and phone number of
the appropriate Regional contact.)
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B-7 OSWER Directive 9650.9
SUPPLEMENTARY INFORMATION:
A. Background
Section 9004 of the Resource Conservation and Recovery Act (RCRA)
enables the 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. To qualify for final authorization, a
State's program must: (1) be "no less stringent" than the Federal program;
and (2) provide for adequate enforcement (Sections 9004(a) and 9004(b) of
RCRA, 42 U.S.C. 6991c(b)).
On (insert date), State X submitted an official application to obtain
final approval to administer the underground storage tank program. On (insert
date), EPA published a tentative decision announcing its intent to grant State
X final approval. Further background on the tentative decision to grant
approval appears at FR , (insert date).
Along with the tentative determination EPA announced the availability of
the application for public comment and the date of a public hearing on the
application. The public hearing was held on (insert date of public hearing).
(Insert discussion on public comments received and the response to those
comments. Additionally, in the case of a tentative decision requiring a State
to make changes in order to be approved, insert discussion of the needed
changes for approval and what the State agreed to do to be approved.)
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B-8 OSWER Directive' 9650.9
(Insert discussion of any different or additional procedural steps during the
approval process. For example, the State may have held an additional public
hearing on a portion of its program which was substantially modified
subsequent to the initial State public hearing.)
(Insert discussion which describes any major portions of the State's program
which are not part of the underground storage tank program; e.g., any major
State requirements that are broader in scope than Federal requirements.)
(Insert a discussion of any portion of the UST program that will continue to
be regulated by EPA as a result of partial program approval or unregulated
segments of the tank universe.)
(Insert a statement as to whether or not the State is being approved to
operate the underground storage tank program on Indian lands.)
B. Decision
After reviewing the public comments and the changes the State has made
to its application and program since the tentative decision, I conclude that
State; X's application for final approval meets all of the statutory and
regulatory requirements established by Subtitle I of RCRA. Accordingly, State
X is granted final approval to operate its underground storage tank program.
State X now his the responsibility for managing underground storage tank
facilities within its borders and carrying out all aspects of the UST program
except [note any areas where EPA will have continued regulatory authority].
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B-9 OSWER Directive 9650.9
State X also has primary enforcement responsibility, although EPA retains the
right to conduct inspections under Section 9005 of RCRA 42 U.S.C. 6991d and to
take enforcement actions under Section 9006 of RCRA 42 U.S.C. 6991e.
COMPLIANCE WITH EXECUTIVE ORDER 12291: The Office of Management and Budget
has exempted this rule from the requirements of Section 3 of Executive Order
12291.
CERTIFICATION UNDER THE REGULATORY FLEXIBILITY ACT: Pursuant to the
provisions of 5 U.S.C. 605(b), I hereby certify that this approval will not
have a significant economic impact on a substantial number of small entities.
This approval effectively suspends the applicability of certain Federal
regulations in favor of State X's program, thereby eliminating duplicative
requirements for owners and operators of underground storage tanks in the
State. It does not impose any new burdens on small entities. This rule,
therefore, does not require a regulatory flexibility analysis.
LIST OF SUBJECTS IN 40 CFR PART 281: Administrative Practice and Procedure,
Hazardous Materials, State Program Approval and Underground Storage Tanks.
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B-10 OSWER Directive 9650.9
AUTHORITY: This notice is issued under the authority of Section 2002(a),
7004(b), and 9004 of the Solid Waste Disposal Act as amended 42 U.S.C.
6912(a), 6974(b), and 6991(c).
Regional Administrator
Dated:
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Model Codification Notices
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OSWER Directive 9650.9
APPENDIX C
CODIFICATION OF APPROVED STATE PROGRAMS
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C-l OSWER Directive 9650.9
Proposed/Final Codification Notice
Codifying Initial Program Approvals
(Model Federal Register Notice)
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 282
UNDERGROUND STORAGE TANK PROGRAM: CODIFICATION OF APPROVED STATE UNDERGROUND
STORAGE TANK PROGRAM FOR [insert name of State]
AGENCY: Environmental Protection Agency
ACTION: Proposed/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 approval of State programs
and incorporates by reference those provisions of the State statutes and
regulations that EPA will enforce under Sections 7003, 9005, and 9006 of RCRA
42 U.S.C. 6973, 6991d, and 6991e. This [[proposal is to codify] or [rule
codifies]] the approved underground storage tank program of [insert name of
State] in Part 282.
DATES: [For proposed rule: Comments on the proposed codification of [insert
State name] approved program must be received by the close of business [insert
date 30 days after publication]]. [For final rule: The codification is
effective [insert date 30 days after publication]. The incorporation by
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C-2 OSWER Directive 9650.9
reference of certain statutes and regulations was approved by the Director of
the Federal Register in accordance with 5 U.S.C. 552(a).
[ADDRESSES: For proposed rule: Written comments should be sent to [insert
name, address, and telephone number of the appropriate Regional contact]].
FOR FURTHER INFORMATION CONTACT: [Insert name, address, and telephone number
of the appropriate Regional contact].
SUPPLEMENTARY INFORMATION:
Background
Section 9004 of the Resource Conservation and Recovery Act of 1976, as
amended, (RCRA), 42 U.S.C. 6991, 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. On [insert
date of final determination], EPA published a Federal Register notice
announcing its decision to grant approval to [insert State name]. (See
FR ) .
EPA codifies its approval of State programs in Part 282 of Title 40,
Code of Federal Regulations (CFR) and incorporates by reference therein the
State statutes and regulations that EPA will enforce under Sections 7003,
9005, and 9006 of RCRA 42 U.S.C. 6973, 6991d, and 6991e. Today's [proposed]
codification reflects the State program in effect at the time EPA grants
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C-3 OSWER Directive 9650.9
[insert State name] approval under Section 9004(a) 42 U.S.C. 6991c(a) for its
underground storage tank program.
This effort provides clear notice to the public of the scope of the
»
approved program in each State. Revisions to State underground storage tank
programs are necessary when Federal statutory or regulatory authority is
modified. By codifying the approved [insert State name] program and by
amending the Code of Federal Regulations whenever a new or different set of
requirements is approved in [insert State name], the status of Federally
approved requirements of the [insert State name] program will be readily
discernible.
The Agency will only codify for enforcement purposes those provisions, of
the [insert State name] underground storage tank program for which approval
has been granted by EPA.
To codify the [insert State name] approved underground storage tank
program, EPA [[proposes to add] or [has added]] Subpart [ ] to Part 282 of
Title 40 of the CFR. Subpart [ ] has previously been reserved for [insert
State name]. [[As proposed, section, or [Section]] 282. [[will codify for
enforcement purposes or [codifies for enforcement purposes]] the State
statutes and regulations. As proposed, Section, or [Section]] 282. [[will
codify or [codifies]] the Memorandum of Agreement, the Attorney General's
Statement and the Program Description which are approved as part of the
underground storage tank program under Subtitle I of RCRA.]
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C-4 OSWER Directive 9650.9
The Agency retains the authority under Sections 7003, 9005, and 9006 of
RCRA 42 U.S.C. 6973, 6991d, and 6991e, to undertake enforcement actions in
approved States. With respect to such an enforcement action, the Agency will
rely on Federal sanctions, Federal inspection authorities and the Federal
Administrative Procedure Act rather than the State approved analogs to these
requirements. Therefore, the Agency does not intend to codify for purposes of
enforcement such particular, approved [insert State name] enforcement
authorities. [Proposed] [S]ection 282 lists those approved [insert State
name] 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 §281.12(a)(3)(ii). As a result, State provisions which are "broader in
scope" than the Federal program are not codified for purposes of enforcement
in Part 282. Section 282. of the [proposed] codification simply lists for
reference and clarity the [insert State name] statutory and regulatory
provisions which are "broader in scope" than the Federal program and which are
not, therefore, part of the approved program [[proposed for codification] or
[being codified today]]. "Broader in scope" provisions will not be enforced
by EPA; the State, however, will continue to enforce such provisions.
[If the State is approved for a partial program, or does not have
authority to implement requirements for certain segments of the tank universe
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C-5 OSWER Directive 9650.9
(as discussed in the MOA), please add language here to indicate that fact and
state that EPA is responsible for those portions of the program that have not
been approved.]
The codification of approved State programs in the CFR should
substantially enhance the public's ability to discern the current status of
the approved State program and clarify the extent of Federal enforcement
authority. This will be particularly true as States revise their approved
programs or additional Federal requirements.
Certification Under the Regulatory Flexibility Act
Pursuant to the provisions of 5 U.S.C. 605(b), I hereby certify that
this action will not -have a significant economic impact on a substantial
number of small entities. It [[proposes to codify] or [codifies]] the
decision already made to approve the [insert State name] underground storage
program and has no separate effect on owners and operators of underground
storage tanks or upon small entities. This rule, therefore, does not require
a regulatory flexibility analysis.
Compliance With Executive Order 12291
The Office of Management and Budget has exempted this rule from the
requirements of Section 3 of Executive Order 12291.
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C-6 OSWER Directive 9650.9
Paperwork Reduction Act
Under the Paperwork Reduction Act, 44 U.S.C. 3501 et. 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
Administrative practice and procedure, Hazardous materials, Petroleum,
State program approval, and Underground storage tanks.
Dated:
Regional Administrator
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C-7 OSWER Directive 9650.9
For the reasons set forth in the preamble, 40 CFR Part 282 is [proposed to be]
revised as follows:
PART 282 - APPROVED UNDERGROUND STORAGE TANK PROGRAMS
1. The authority for Part 282 continues to read as follows:
Authority: Sections 2002, 9004, 9005, and 9006 of the Solid Waste
Disposal Act, as amended by the Resource Conservation and Recovery Act of
1976, as amended, 42 U.S.C. 6912, 6991(c), (d), and (e)).
2. The table of contents for Part 282 is revised to read as follows:
SUBPART [insert appropriate letter(s) and appropriate numbers] - State
name
282. State Approval
282. State-Administered Program
282. - 282. [Reserved]
3. 40 CFR Part 282, Subpart [insert appropriate letter and appropriate
numbers] is amended to read as follows:
t
282. State Approval
(a) The State of [insert State name] 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) , 42 U.S.C. 6991 et. sea.., subject to the
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C-8 OSWER Directive 9650.9
Hazardous and Solid Waste Amendments of 1984 (HSWA),
(P.L. 98-616, November 8, 1984), 42 U.S.C. 6991 (c),
(d), and (e)). The Federal program for which a State
may receive approval is defined in 40 CFR Part 281.
The State's program, as administered by the [insert
State lead agency] was approved by EPA pursuant to 42
U.S.C. 6991 (c) and Part 281 of this Chapter. EPA's
approval was effective on [insert appropriate Federal
Register reference].
(b) [Insert State name] has primary responsibility for
enforcing its underground storage tank program.
However, EPA retains the•authority to exercise its
enforcement authorities under Sections 9005 and 9006
of RCRA, 42 U.S.C. 6991c and 6991d, as well as under
other Federal laws and regulations.
(c) [Insert State name] must revise its approved program
to adopt new changes to the Federal Subtitle I program
in accordance with Section 9004 of RCRA 42 U.S.C.
6991c, and 40 CFR Part 281, Subpart E. If [insert
State name] obtains approval for the revised
requirements pursuant to Section 9004 42 U.S.C. 6991c,
the newly approved provisions will be listed in
§281. of this Subpart.
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C-9 OSWER Directive 9650.9
282. State-Administered Program: Final Approval Pursuant to
Section 9004 of RCRA, 42 U.S.C. 6991c:
[Insert State name] has final approval for the following elements
submitted to EPA in [insert State name] program application for final approval
and approved by EPA on [insert Federal Register date of final approval.]
(a) State Statute and Regulations. (1) The requirements
in the [insert State name] statutes and regulations
cited in this paragraph are incorporated by reference
and codified as part of the underground storage tank
program under Subtitle I of RCRA, 42 U.S.C. 6991 et.
seq. This incorporation by reference was approved by
the Director of the Federal Register in accordance
with 5 U.S.C. 552 (a).
(i) [Insert reference for statutory
authorities that are part of the approved
program under Subtitle I of RCRA.]
(ii) [Insert reference for underground storage
tank rules that are part of the approved
program under Subtitle I of RCRA.]
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C-10 OSWER Directive 9650.9
(2) The following statutes and regulations, although not
codified herein for enforcement purposes, are part of
the approved State program.
(i) [Insert reference for statutory
authorities that are not to be
incorporated by reference but are part of
the approved program.]
(ii) [Insert reference for regulations that are
not to be incorporated by reference but
are part of the approved program under
Subtitle I of RCRA.]
(3) The following statutory and regulatory provisions -are
broader in scope than the Federal program, are not
part of the approved program, and are not codified
herein for enforcement purposes.
(i) [Insert statutory provisions, if any, that
are broader in scope.]
(ii) [Insert regulatory provisions, if any,
that are broader in scope.]
(b) Memorandum of Agreement. The Memorandum of Agreement
between EPA Region and the [insert State lead
agency], signed by the EPA Regional Administrator on
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C-ll OSWER Directive 9650.9
[insert appropriate date] is codified as part of the
approved underground storage tank program under
Subtitle I of RCRA, 42 U.S.C. 6991 et. seq. [Insert
language describing any portions of the program which
•
EPA will retain authority, e.g., partial program or
uncovered segment of the tank universe.]
(c) Statement of Legal Authority. (1) "Attorney General's
Statement for Final Approval", signed by the Attorney
General of [insert State name] on [insert appropriate
date] is codified as part of the approved underground
storage tank program under Subtitle I of RCRA, 42
U.S.C. 6991 et. sea.
(2) Letter from the Attorney General of [insert State
name] to EPA, [insert appropriate date] is codified as
part of the approved underground storage tank program
under Subtitle I of RCRA, 42 U.S.C. 6991 et. seq.
(d) Program Description. The program description and any
other material submitted as part of the original
application or as supplements thereto are codified as
part of the approved underground storage tank program
under Subtitle I of RCRA, 42 U.S.C. 6991 et. seq.
282. - 282. Reserved
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C-12 OSWER Directive 9650.9
Immediate Final Codification Notice for Program Revisions
Codifying Program Revisions
(Model Federal Register Notice)
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 282
UNDERGROUND STORAGE TANK PROGRAM: CODIFICATION OF APPROVED STATE UNDERGROUND
STORAGE TANK PROGRAM FOR [insert name of State]
AGENCY: Environmental Protection Agency
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 prior approval of State
programs and incorporates by reference those provisions of the State statutes
and regulations that EPA will enforce under Sections 9005 and 9006 of RCRA 42
U.S.C. 6991d and 6991e. Thus, EPA intends to codify the approved underground
storage tank program of [insert name of State] in Part 282.
DATES: The codification of [insert State name] approved underground storage
tank program shall be effective [insert date 60 days after publication] unless
EPA publishes a prior Federal Register action withdrawing this immediate final
rule. All comments on the codification of approved program of [insert State
name] must be received by the close of business [insert date 30 days after
publication]. The incorporation by reference of certain statutes and
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C-13 OSWER Directive 9650.9
regulations was approved by the Director of the Federal Reeister in accordance
with 5 U.S.C. 552(a).
ADDRESSES: Written comments should be sent to [insert name, address, and
telephone number of the appropriate Regional contact].
FOR FURTHER INFORMATION CONTACT: [Insert name, address, and telephone number
of the appropriate Regional contact].
SUPPLEMENTARY INFORMATION:
Background
Section 9004 of the Resource Conservation and Recovery Act of 1976, as
amended, (RCRA), 42 U.S.C. 6991, 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. On [insert
date of final determination], EPA published a Federal Register notice
announcing its decision to grant approval to [insert State name]. (See
FR ) .
EPA codifies its approval of State programs in Part 282 of Title 40,
Code of Federal Regulations (CFR) and incorporates by reference therein the
State statutes and regulations that EPA will enforce under Sections 7003,
9005, and 9006 of RCRA 42 U.S.C. 6973, 6991d, and 6991e. The intended
codification reflects the State program in effect at the time EPA grants
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C-14 OSWER Directive 9650.9
[insert State name] approval under Section 9004(a) 42 U.S.C. 6991c(a) for its
underground storage tank programs.
This effort provides clear notice to the public of the scope of the
approved program in each State. Revisions to State underground storage tank
programs are necessary when Federal statutory or regulatory authority is
modified. By codifying the approved [insert State name] program and by
amending the Code of Federal Regulations whenever a new or different set of
requirements is approved in [insert State name], the status of Federally
approved requirements of the [insert State name] program will be readily
discernible.
The Agency will only codify for enforcement purposes those provisions of
the [insert State name] underground storage tank program for which approval
has been granted by EPA.
To codify the [insert State name] approved underground storage tank
program, EPA intends to add Subpart [ ] to Part 282 of Title 40 of the CFR.
Subpart [ ] has previously been reserved for [insert State name]. Section
282. intends to codify for enforcement purposes the State statutes 'and
regulations. Section 282. codifies the Memorandum of Agreement, the
Attorney General's Statement and the Program Description which are part of the
approved underground storage tank program under Subtitle I of RCRA.
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C-15 OSWER Directive 9650.9
The Agency retains the authority under Sections 7003, 9005, and 9006 pf
RCRA 42 U.S.C. 6973, 6991d, and 6991e to undertake enforcement actions in
approved States. With respect to such an enforcement action, the Agency will
rely on Federal sanctions, Federal inspection authorities and the Federal
Administrative Procedure Act rather than the State authorized analogs to these
requirements. Therefore, the Agency does not intend to codify for purposes of
enforcement such particular, approved [insert State name] enforcement
authorities. [Proposed] [S]ection 282 lists those approved [insert State
name] 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 §281.12(a)(3)(ii). As a result, State provisions which are "broader in
scope" than the Federal program are not codified for purposes of enforcement
in Part 282. Section 282. of the intended codification simply lists for
reference and clarity the [insert State name] 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. "Broader in
scope" provisions will not be enforced by EPA; the State, however, will
continue to enforce such provisions.
The codification of approved State programs in the CFR should
substantially enhance the public's ability to discern the current status of
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C-16 OSWER Directive 9650.9
the approved State program and clarify the extent of Federal enforcement
authority. This will be particularly true as States revise their approved
programs or adopt additional Federal requirements.
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C-17 OSWER Directive 9650.9
Certification Under the Regulatory Flexibility Act
Pursuant to the provisions of 5 U.S.C. 605(b), I hereby certify that
this action will not have a significant economic impact on a substantial
number of small entities. It intends to codify the decision already made to
authorize the [insert State name] program and has no separate effect on owners
and operators of underground storage tanks or upon small entities. This rule,
therefore, does not require a regulatory flexibility analysis.
Compliance With Executive Order 12291
The Office of Management and Budget has exempted this rule from the
requirements of Section 3 of Executive Order 12291.
Paperwork Reduction Act
Under the Paperwork Reduction Act., 44 U.S.C. 3501 et. 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
Administrative practice and procedure, Hazardous materials, Petroleum,
State program approval, and Underground storage tanks.
Dated:
Regional Administrator
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C-18 OSWER Directive 9650.9
For the reasons set forth in the preamble, 40 CFR Part 282 is [proposed to be]
revised as follows:
PART 282 - APPROVED UNDERGROUND STORAGE TANK PROGRAMS
1. The authority for Part 282 continues to read as follows:
Authority: Sections 2002, 9004, 9005, and 9006 of the Solid Waste
Disposal Act, as amended by the Resource Conservation and Recovery Act of
1976, as amended, 42 U.S.C. 6912, 6991(c), (d), and (e)).
2. The table of contents for Part 282 is revised to read as follows:
SUBPART [insert appropriate letter(s) and appropriate numbers] - State
name
282. State Approval
282. State-Administered Program
282. - 282. [Reserved]
3. 40 CFR Part 282, Subpart [insert appropriate letter and appropriate
numbers] is amended to read as follows:
282. State Approval
(a) The State of [insert State name] 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), 42 U.S.C. 6991 et. seq.. subject to the
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C-19 OSWER Directive 9650:9
Hazardous and Solid Waste Amendments of 1984 (HSWA),
(P.L. 98-616, November 8, 1984), 42 U.S.C. 6991 (c),
(d), and (e)). The Federal program for which a State
may receive approval is defined in 40 CFR Part 281.
The State's program, as administered by the [insert
State lead agency] was approved by EPA pursuant to 42
U.S.C. 6991 (c) and Part 281 of this Chapter. EPA's
approval was effective on [insert appropriate Federal
Register reference].
(b) [Insert State name] has primary responsibility for
enforcing its underground storage tank program.
However, EPA retains the authority to exercise its
enforcement authorities under Sections 9005 and 9006
of RCRA, 42 U.S.C. 6991d and 6991e, as well as under
other Federal laws and regulations.
(c) [Insert State name] must revise its approved program
to adopt new changes to the Federal Subtitle I program
in accordance with Section 9004 of RCRA 42 U.S.C.
6991c and 40 CFR Part 281, Subpart E. If [insert
State name] obtains approval for the revised
requirenents pursuant to Section 9004 42 U.S.C. 6991c,
the newly approved provisions will be listed in
§281. of this Subpart.
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C-20 OSWER Directive 9650.9
282. State-Administered Program: Final Approval Pursuant to
Section 9004 of RCRA, 42 U.S.C. 6991c.
[Insert State name] has final approval for the following elements
submitted to EPA in [insert State name] program application for final approval
»
and approved by EPA on [insert Federal Register date of final approval.]
(a) State Statute and Regulations. (1) The requirements
in the [insert State name] statutes and regulations
cited in this paragraph are incorporated by reference
and codified as part of the underground storage tank
program under Subtitle I of RCRA, 42 U.S.C. 6991 et.
seq. This incorporation by reference was approved by
the Director of the Federal Register in accordance
with 5 U.S.C. 552 (a).
(i) [Insert reference for statutory
authorities that are part of the approved
program under Subtitle I of RCRA.]
(ii) [Insert reference for underground storage
tank rules that are part of the approved
program under Subtitle I of RCRA.]
(2) The following statutes and regulations, although not
codified herein for enforcement purposes, are part of
the approved State program.
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C-21 OSWER Directive 9650.9
(i) [Insert reference for statutory
authorities that are not to be
incorporated by reference but are part of
the approved program.]
(ii) [Insert reference for regulations that are
not to be incorporated by reference but
are part of the approved program under
Subtitle I of RCRA.]
(3) The following statutory and regulatory provisions are
broader in scope than the Federal program, are not
part of the approved program, arvd are not codified
herein for enforcement purposes.
(i) [Insert statutory provisions, if any, that
are broader in scope.]
(ii) [Insert regulatory provisions, if any,
that are broader in scope.. ]
(b) Memorandum of Agreement. The Memorandum of Agreement
between EPA Region and the [insert State lead
agency], signed by the EPA Regional Administrator on
[insert appropriate date] is codified as part of the
approved underground storage tank program under
Subtitle I of RCRA, 42 U.S.C. 6991 et. seq.
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C-22 OSWER Directive 9650.9
(c) Statement of Legal Authority. (1) "Attorney General's
Statement for Final Approval", signed by the Attorney
General of [insert State name] on [insert appropriate
date] is codified as part of the approved underground
storage tank program under Subtitle I of RCRA, 42
U.S.C. 6991 et. seq.
(2) Letter from the Attorney General of [insert State
name] to EPA, [insert appropriate date] is codified as
part of the approved underground storage tank program
*
under Subtitle I of RCRA, 42 U.S.C. 6991 et. seq.
(d) Program Description. The program description and any
other material submitted as part of the original
application or as supplements thereto are codified as
part of the approved underground storage tank program
under Subtitle I of RCRA, 42 U.S.C. 6991 et. seq.
282. - 282. Reserved
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C-23 OSWER Directive 9650.9
CFR REFERENCE FOR CODIFICATION OF STATE UST PROGRAMS
PART 282
Subpart B - Alabama
282.59-282.99
Subpart C - Alaska
282.100-282-149
Subpart D - Arizona
282.150-282.199
Subpart E - Arkansas
282.200-282.249
Subpart F - California
282.250-282.299
Subpart G - Colorado
282.300-282.349
Subpart H - Connecticut
282.350-282.399
Subpart I - Delaware
282.400-282.449
Subpart J - District of Columbia
282.450-499
Subpart K - Florida
282.500-282.549
Subpart L - Georgia
282.550-599
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C-24 OSWER Directive 9650.9
Subpart M - Hawaii
282.600-282.649
Subpart N - Idaho
282.650-282.699
Subpart 0 - Illinois
282.700-282.749
Subpart P - Indiana
282.750-282.799
Subpart Q - Iowa
282.800-282.849
Subpart R - Kansas
282.850-282.899
Subpart S - Kentucky
282.900-282.949
Subpart T - Louisiana
282.950-282.999
Subpart U - Maine
282.1000-282.1049
Subpart V - Maryland
282.1050-282.1099
Subpart W - Massachusetts
282.1100-282.1149
Subpart X - Michigan
282.1150-282.1199
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C-25 OSWER Directive 9650.9
Subpart Y - Minnesota
282.1200-282.1249
Subpart Z - Mississippi
282.1250-282.1299
»
Subpart AA - Missouri
282.1300-1349
Subpart BB - Montana
282.1350-282.1399
Subpart CC - Nebraska
282.1400-282.1449
Subpart DD - Nevada
282.1450-282.1499
Subpart EE - New Hampshire
282.1500-282.1549
Subpart FF - New Jersey
282.1550-282.1599
Subpart GG - New Mexico
282.1600-282.1649
Subpart HH - New York
282.1650-282.1699
Subpart II - North Carolina
282.7000-282.1749
Subpart JJ - North Dakota
282.1750-282.1799
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C-26 OSWER Directive 9650.9
Subpart KK - Ohio
282.1800-282.1849
Subpart LL - Oklahoma
282.1850-282.1899
Subpart MM - Oregon
282.1900-282.1949
Subpart NN - Pennsylvania
282.1950-282.1999
Subpart 00 - Rhode Island
282.2000-282.2049
Subpart PP - South Carolina
282.2050-282.2099
Subpart QQ - South Dakota
282.2100-282.2149
Subpart RR - Tennessee
282.2150-282.2199
Subpart SS - Texas
282.2200-282.2249
Subpart TT - Utah
282.2250-282.2299
Subpart UU - Vermont
282.2300-282.2349
Subpart VV - Virginia
282.2350-282.2399
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C-27 OSWER Directive 9650.9
Subpart WW - Washington
282-2400-282.2449
Subpart XX - West Virginia
282.2450-282.2499
Subpart YY - Wisconsin
282.2500-282.2549
Subpart ZZ - Wyoming
282.2550-282.2599
Subpart AAA - Guam
282.2600-282.2649
Subpart BBB - Puerto Rico
282.2650-282.2699
Subpart CCC - Virgin Islands
282.2700-282.2749
Subpart DDD - American Samoa
282.2750-282.2799
Subpart EEE - Commonwealth of the Northern Mariana Islands
282.2800-282.2849 .
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Checklist for Complete State
Applications
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OSWER Directive 9650.9
APPENDIX D
CHECKLIST FOR COMPLETE STATE APPLICATIONS
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D-l
COMPLETE APPLICATION CHECKLIST
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1. Governor's Letter
2. Attorney's General Certification
3. Attorney's General Statement
(Demonstration of No Less Stringent Objectives and
Adequate Enforcement Authorities)
4. Demonstration of Adequate Enforcement Procedures .... II
5. Program Description
6. Memorandum of Agreement
7. State Statutes
8. State Regulations
9. Schedule for Interim Approval . .
(If Applying for Interim Approval)
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