&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 ------- 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 ------- OSWER Directive 9650.9 SUGGESTED PROCEDURES FOR REVIEW OF STATE UST APPLICATIONS £7.5. ENVIRONMENTAL PROTECTION AGENCY OFFICE OF UNDERGROUND STORAGE TANKS March 1989 ------- 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 ------- PROCEDURES ------- 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 ------- 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. ------- 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. ------- 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. ------- 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 ------- 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 ------- 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. ------- 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. ------- 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 ------- 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. ------- 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 ------- 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: ------- 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 ------- 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. ------- APPENDICES ------- Guidance on Preparing £R Notices ------- OSWER Directive 9650.9 APPENDIX A GUIDANCE ON PREPARING FEDERAL REGISTER NOTICES ------- 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. ------- 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). ------- Model ER Notices ------- OSWER Directive 9650.9 APPENDIX B APPROVAL DETERMINATIONS ------- 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 ------- 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 ------- 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. ------- 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. ------- 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: ------- 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.) ------- 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.) ------- 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]. ------- 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. ------- 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: ------- Model Codification Notices ------- OSWER Directive 9650.9 APPENDIX C CODIFICATION OF APPROVED STATE PROGRAMS ------- 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 ------- 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 ------- 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.] ------- 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 ------- 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. ------- 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 ------- 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 ------- 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. ------- 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.] ------- 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 ------- 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 ------- 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 ------- 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 ------- 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. ------- 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 ------- 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. ------- 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 ------- 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 ------- 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. ------- 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. ------- 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. ------- 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 ------- 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 ------- 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 ------- 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 ------- 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 ------- 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 . ------- Checklist for Complete State Applications ------- OSWER Directive 9650.9 APPENDIX D CHECKLIST FOR COMPLETE STATE APPLICATIONS ------- D-l COMPLETE APPLICATION CHECKLIST :f^^CXv7JMv^''V^ *r*v\^PSS C4v^<3&0&&^ 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) ------- |