Underground Storage Tank Program Grant guidelines Delivery Prohibition
Grant Guidelines To States
For Implementing The
Delivery Prohibition Provision
Of The Energy Policy Act Of 2005
U.S. Environmental Protection Agency
Office of Underground Storage Tanks
Washington, DC
www. epa. gov/oust
EPA-510-R-06-003
August 2006
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Underground Storage Tank Program Grant Guidelines Delivery Prohibition
Contents
Overview Of The Delivery Prohibition Grant Guidelines.... 1
Why Is EPA Issuing These Guidelines? 1
What Is In These Guidelines? 1
When Do These Guidelines Take Effect? 1
Requirements For Delivery Prohibition ..2
What Is Delivery Prohibition?... 2
What Underground Storage Tanks Do These Guidelines Apply To? 2
What Definitions Are Used In These Guidelines? 2
Who Is Responsible For Complying With Delivery Prohibition Requirements? 3
Do These Guidelines Apply To Underground Storage Tanks Or To
Underground Storage Tank Facilities? 3
How Does A State Implement These Guidelines? 3
What Are The Criteria For Determining Which Underground Storage Tanks Are
Ineligible For Delivery, Deposit, Or Acceptance? 4
What Mechanisms May Be Used For Identifying Ineligible Underground
Storage Tanks? 5
What Must A State Do To Reclassify Ineligible Underground Storage Tanks As
Eligible? 6
What Are The Allowable Processes For Providing Adequate Notice To
Underground Storage Tank Owners/Operators And Product Deliverers? .... 6
How May States Apply Delivery Prohibition In Rural And Remote Areas? 7
What Do States Need To Report To EPA? 7
What Enforcement Authority Must States Have For Delivery Prohibition? 7
How Will States Demonstrate Compliance With These Guidelines? 7
How Will EPA Enforce States' Compliance With The Requirements In These
Guidelines? 8
For More Information About The Delivery Prohibition
Grant Guidelines 9
Background About The Energy Policy Act Of 2005 9
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Underground Storage Tank Program Grant Guidelines Delivery Prohibition
Overview Of The Delivery Prohibition Grant Guidelines
Why Is EPA Issuing These Guidelines?
U.S. Environmental Protection Agency (EPA), in consultation with states,
underground storage tank (LIST) owners, and the product delivery industry, developed
these grant guidelines to implement the delivery prohibition provision in Section 9012 of
the Solid Waste Disposal Act (SWDA), enacted by the Underground Storage Tank
Compliance Act, part of the Energy Policy Act of 2005 signed by President Bush on
August 8, 2005.
Subsection (a) of Section 1527 of the Energy Policy Act amends Subtitle I of the
Solid Waste Disposal Act by adding Section 9012, which includes a delivery prohibition
requirement for states receiving federal funds under Subtitle I. Section 9012 requires
EPA to develop and publish guidelines that describe the processes and procedures for
the delivery prohibition provision by August 8, 2006. The guidelines must address the
following five processes and procedures a state receiving Subtitle I funding (hereafter
referred to as "state") must follow to implement delivery prohibition:
The criteria for determining ineligible underground storage tanks;
The mechanisms for identifying ineligible underground storage tanks;
The process for reclassifying ineligible underground storage tanks as eligible;
The process(es) for providing adequate notice to underground storage tank
owners/operators and product deliverers; and,
The process for determining the specified geographic areas subject to the
rural and remote areas consideration.
EPA's Office of Underground Storage Tanks (OUST) is issuing these grant
guidelines to establish the minimum requirements states receiving Subtitle I funding
must meet in order to comply with the delivery prohibition provision of the Energy Policy
Act of 2005.
What Is In These Guidelines?
These guidelines describe the minimum requirements a state's delivery
prohibition program must contain in order for a state to comply with statutory
requirements for Subtitle I funding. These guidelines include definitions, criteria,
examples, options,-and requirements for states implementing the delivery prohibition
provision.
When Do These Guidelines Take Effect?
A state receiving Subtitle I funding must implement the delivery prohibition
requirements described in these guidelines by August 8, 2007.
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Underground Storage Tank Program Grant Guidelines Delivery Prohibition
Requirements For Delivery Prohibition
What Is Delivery Prohibition?
Delivery prohibition is prohibiting the delivery, deposit, or acceptance of product
to an underground storage tank that has been determined to be ineligible by EPA or a
state implementing agency1 for such delivery, deposit, or acceptance.
What Underground Storage Tanks Do These Guidelines Apply To?
For purposes of this document, the term "underground storage tank" means
those tanks that satisfy the definition of underground storage tank in 40 CFR 280.12,
except for those tanks identified in 40 CFR 280.10(b) and 280.10(c) as excluded or
deferred storage tanks. At a minimum, a state must apply these guidelines to petroleum
underground storage tanks. EPA recognizes that many states have the authority to
regulate underground storage tanks containing hazardous substances. States may
choose to apply delivery prohibition to hazardous substance underground storage tanks
in addition.to petroleum underground storage tanks.
What Definitions Are Used In These Guidelines?
Many terms used in these guidelines are defined in 40 CFR 280.12. Unless
otherwise noted, the definitions in 40 CFR 280.12 also apply to the terms in these
guidelines. For purposes of these guidelines, terms not defined in 40 CFR 280.12 are
defined as follows:
Green Tag: A document, device, tag, or other item identifying an underground
storage tank or underground storage tank facility as eligible to receive product.
Such item is generally affixed to the fill pipe or otherwise conspicuously displayed
at the underground storage tank facility.
Product Deliverer: Any person2 who delivers or deposits product into an
underground storage tank. This term may include major oil companies, jobbers,
petroleum transportation companies, or other product delivery entities.
Red Tag: A tag, device, or mechanism on the tank's fill pipes that clearly
identifies an underground storage tank as ineligible for product delivery. The tag
or device is easily visible to the product deliverer and clearly states and conveys
that it is unlawful to deliver to, deposit into, or accept product into the ineligible
underground storage tank. The tag, device, or mechanism is generally tamper
resistant.
1 The term "state" does not exclude local government implementing agencies.
2 "Person" has the same definition used in 40 CFR 280.12, which includes an individual, trust, firm, joint stock
company, consortium, joint venture, commercial entity, United States Government, federal agency, corporation, state,
municipality, commission, political subdivision of a state, or any interstate body.
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Underground Storage Tank Program Grant guidelines Delivery Prohibition
Who Is Responsible For Complying With Delivery Prohibition Requirements?
Underground storage tank owners/operators and product deliverers are
responsible for not delivering, depositing, or accepting product to an underground
storage tank identified by EPA or a state as ineligible to receive product.
Do These Guidelines Apply To Underground Storage Tanks Or To Underground
Storage Tank Facilities?
States may choose to prohibit delivery, deposit, or acceptance of product to an
individual underground storage tank or to every underground storage tank at a facility.
How Does A State Implement These Guidelines?
A state implements these guidelines by:
Having the authority to prohibit delivery, deposit, or acceptance of product
to an underground storage tank for both equipment and operational
violations; and
Developing processes and procedures for a delivery prohibition program
that, at a minimum, meet the requirements in these guidelines.
The state's delivery prohibition program must meet these guidelines by August 8,
2007. The sections that follow discuss the five categories3 of processes and
procedures required by the Energy Policy Act of 2005. States may choose to be more
stringent than these minimum requirements.
The state must clearly communicate to underground storage tank owners and
operators and product deliverers the state's:
Criteria for determining which underground storage tanks are ineligible for
delivery, deposit, or acceptance of product;
Mechanism(s) for identifying ineligible underground storage tanks;
Process for reclassifying ineligible underground storage tanks as eligible
for delivery, deposit, or acceptance of product;
Process(es) for providing adequate notice to underground storage tank
owners and operators and product deliverers that an underground storage
tank has been determined to be ineligible for delivery, deposit, or
acceptance of product; and
Delineation of a process for the application of delivery prohibition in rural
and remote areas. EPA recognizes that states with existing delivery
prohibition programs may already have communicated these requirements
to tank owners and operators and product deliverers.
States that have already communicated their requirements to tank owners and
operators and product deliverers are not required to communicate their requirements
3 Delineated in sections 9012(a)(2)(A)-(E) of the Solid Waste Disposal Act.
3
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Underground Storage Tank Program Srant Guidelines Delivery Prohibition
any further. However, states must adequately communicate any changes to their
existing delivery prohibition program.
What Are The Criteria For Determining Which Underground Storage Tanks Are
Ineligible For Delivery, Deposit, Or Acceptance?
The state must develop criteria and timeframes for prohibiting the delivery,
deposit, and acceptance of product, in accordance with the provisions below.4 A state
may authorize the delivery or deposit of product to an ineligible underground storage
tank if such activity is necessary to test or calibrate the underground storage tank or
dispenser system.
A state must classify an underground storage tank as ineligible for delivery,
deposit, or acceptance of product as soon as practicable after the state determines an
underground storage tank meets one or more of the following conditions:
Required spill prevention equipment is not installed;
Required overfill protection equipment is not installed;
Required leak detection equipment is not installed;
Required corrosion protection equipment is not installed;5 or
Other conditions a state deems appropriate.
The time allowed for a state to identify an underground storage tank as ineligible
for delivery, deposit, or acceptance of product for one or more of the above conditions is
intended to accommodate various state delivery prohibition procedures, not to provide
additional time for underground storage tank owners or operators to return to
compliance. Some states have the authority to prohibit delivery at the time of an
inspection.
A state retains the discretion to decide whether to identify an underground
storage tank as ineligible to deliver, deposit, or accept product based on whether the
prohibition is in the best interest of the public. In some cases, prohibition of delivery,
deposit, or acceptance of product to an underground storage tank is not in the best
interest of the public, even in the cases of significant and/or sustained noncompliance
(e.g., certain emergency generator underground storage tanks). In other cases, states
may choose to classify an underground storage tank as ineligible to receive product but
then authorize delivery in emergency situations.6
4 For certain severe situations at an underground storage tank facility, such as the presence of an on-going release, a
state should generally consider using other authorities granted to the state under applicable health and safety or fire
codes to immediately mitigate the risk instead of, or in addition to, a state's delivery prohibition authority.
5 A state is not required to but should generally prohibit the delivery, deposit, or acceptance of product for the failure
to have corrosion protection equipment on a buried metal flexible connector.
6 For example, California provides authority to local implementing agencies to remove red tags from emergency
generator tanks that provide power supply in the event of a commercial power failure, store petroleum, and are used
solely in connection with an emergency system, legally required standby system, or optional standby system, as
defined in Articles 700, 701, and 702 of the National Electric Code of the National Fire Protection Association. '
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Underground Storage Tank Program Grant guidelines Delivery Prohibition
A state should also classify an underground storage tank as ineligible for
delivery, deposit, or acceptance of product if the owner/operator of that tank has been
issued a written warning or citation (notice of violation or other form indicating a
violation) under any of the following circumstances and the owner/operator has failed to
take corrective action after a reasonable time frame that is determined by the state:
Failure to properly operate and/or maintain leak detection equipment;
Failure to properly operate and/or maintain spill, overfill, or corrosion
protection equipment;
Failure to maintain financial responsibility;
Failure to protect a buried metal flexible connector from corrosion; or
Other conditions a state deems appropriate.
What Mechanisms May Be Used For Identifying Ineligible Underground Storage
Tanks?
Tank owners and operators and product deliverers are responsible for ensuring
that product is not delivered, deposited, or accepted into an underground storage tank
identified as ineligible to receive product. Therefore, a state must use a clear, concise
mechanism or mechanisms for identifying ineligible underground storage tanks. The
mechanism(s) a state uses must adequately indicate to product deliverers and
underground storage tank owners/operators that an underground storage tank is
ineligible to receive product. For a state developing a mechanism or mechanisms to
use to identify ineligible underground storage tanks, the state should consult with
underground storage tank owners/operators and product delivery industries. A state
should also consider the ease of reclassifying an underground storage tank as eligible
when choosing the method(s) for identifying ineligible underground storage tanks.
Some examples of mechanisms for identifying ineligible underground storage
tanks include:
Red tags attached to each fill pipe of the ineligible underground storage
tank clearly identifying the tank as ineligible for delivery, deposit, or
acceptance of product;
Green tags attached to each fill pipe of the eligible underground storage
tank clearly identifying the tank as eligible for delivery, deposit, or
acceptance of product; or,
A certificate conspicuously displayed at the facility clearly identifying the
underground storage tank(s) at the facility as eligible for delivery, deposit,
or acceptance of product.
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Underground Storage Tank Program Sront Guidelines Delivery Prohibition
What Must A State Do To Reclassify Ineligible Underground Storage Tanks As
Eligible?
A state must reclassify an ineligible underground storage tank as eligible to
receive product as soon as practicable once the state determines that the underground
storage tank has been returned to compliance.
The state, after notification by the owner/operator that the violation(s) has/have
been corrected, must do the following as soon as practicable:
Confirm compliance. If any deficiencies that led to the delivery prohibition
remain, the state must notify the owner/operator.
Return the underground storage tank to being eligible to receive product7 if
the violation(s) has/have been corrected and confirmed by the state.
States that have used delivery prohibition programs in the past have been
responsive to the fact that when an underground storage tank has been classified as
ineligible to receive product, it must be reclassified as eligible to receive product as
soon as practicable once the owner/operator has corrected the violation(s). For
example, many states ensure that underground storage tanks can be reclassified within
five (5) business days and often reclassify within 24 hours of being notified of the
correction(s).
What Are The Allowable Processes For Providing Adequate Notice To
Underground Storage Tank Owners/Operators And Product Deliverers?
When an underground storage tank is determined to be ineligible for delivery,
deposit, or acceptance of product, the state must make a reasonable effort to notify tank
owners and/or operators in writing (e.g., field notification, mail, e-mail, or fax) prior to
prohibiting the delivery, deposit, or acceptance of product. If an owner or operator is not
present at the facility at the time the underground storage tank is identified as ineligible,
an employee8 at the facility at the time of identification (in lieu of the owner or operator)
may be notified in writing prior to prohibiting delivery.
In addition, a state must develop processes and procedures for notifying product
deliverers when an underground storage tank is ineligible for delivery, deposit, or
acceptance of product. The mechanism a state chooses for identifying eligible/ineligible
underground storage tanks (e.g., green tags, red tags) may provide adequate notice to
product deliverers.
7 After a state implementing agency confirms compliance, the state may authorize another party to reclassify an
underground storage tank as eligible for delivery, deposit, or acceptance of product. For example, upon confirming
compliance the state may provide written authorization to an owner or operator to remove the red tag from the
underground storage tank.
8 A state should generally make every effort to provide the notification to the employee in charge of the facility at the
time an underground storage tank is identified as ineligible for delivery, deposit, or acceptance of product.
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Underground Storage Tank Program Grant Guidelines Delivery Prohibition
How May States Apply Delivery Prohibition In Rural And Remote Areas?
A state may consider not treating an underground storage tank as ineligible for
delivery, deposit, or acceptance of product if such treatment would jeopardize the
availability of, or access to, motor fuel in any rural and remote areas. However, a state
may only defer application of delivery prohibition for up to 180 days after determining an
underground storage tank is ineligible for delivery, deposit, or acceptance of product.
This limitation only applies in situations requiring prohibition of delivery, deposit, or
acceptance of product, as described in the section entitled, "What Are The Criteria For
Determining Which Underground Storage Tanks Are Ineligible For Delivery, Deposit, Or
Acceptance?".
What Do States Need To Report To EPA?
Each state that "receives Subtitle I funding must report to EPA as part of its
quarterly or semi-annual performance report the number of underground storage tanks
(or underground storage tank facilities) identified as ineligible for delivery, deposit, or
acceptance of product during the reporting period.
What Enforcement Authority Must States Have For Delivery Prohibition?
States must, at a minimum, have the authority to impose civil penalties against
any person who delivers, deposits, or accepts product at an underground storage tank
identified as being ineligible for such delivery, deposit, or acceptance.
How Will States Demonstrate Compliance With These Guidelines?
After August 8, 2007, the effective date of the delivery prohibition requirements,
and before receiving future grant funding, states must provide one of the following to the
appropriate EPA Regional office:
For a state that has met the requirements for delivery prohibition, the state
must submit a certification indicating that the state meets the requirements in
the guidelines.
For a state that has not yet met the requirements for delivery prohibition, the
state must provide a document that describes the state's efforts to meet the
requirements. This document must include:
- A description of the state's activities to date to meet the requirements
in the guidelines;
- A description of the state's planned activities to meet the requirements;
and
- The date by which the state expects to meet the requirements.
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Underground Storage Tank Program Grant guidelines Delivery Prohibition
How Will EPA Enforce States' Compliance With The Requirements In These
Guidelines?
As a matter of law, each state that receives funding under Subtitle I, which would
include a Leaking Underground Storage Tank (LUST) Cooperative Agreement, must
comply with the underground storage tank requirements of the Energy Policy Act. EPA
anticipates State and Tribal Assistance Grants (STAG) funds will be available under the
2007 Appropriations Act for certain purposes authorized by the Energy Policy Act, and
EPA will condition STAG grants with compliance with these guidelines. Absent a
compelling reason to the contrary, EPA expects to address noncompliance with these
STAG grant conditions by utilizing EPA's grant enforcement authorities under 40 CFR
Part 31.43, as necessary and appropriate.
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Underground Storage Tank Program Grant guidelines Delivery Prohibition
For More Information About The
Delivery Prohibition Grant Guidelines
Visit the EPA Office of Underground Storage Tanks web site at www.epa.gov/oust or call 703-603-9900.
Background About The Energy Policy Act Of 2005
On August 8, 2005, President Bush signed the Energy Policy Act of 2005. Title XV, Subtitle B of this act (entitled the
Underground Storage Tank Compliance Act) contains amendments to Subtitle I of the Solid Waste Disposal Act-the
original legislation that created the underground storage tank (UST) program. This new law significantly affects
federal and state underground storage tank programs, will require major changes to the programs, and is aimed at
reducing underground storage tank releases to our environment.
The underground storage tank provisions of the Energy Policy Act focus on preventing releases. Among other things,
the Act expands eligible uses of the Leaking Underground Storage Tank (LUST) Trust Fund and includes provisions
regarding inspections, operator training, delivery prohibition, secondary containment and financial responsibility, and
cleanup of releases that contain oxygenated fuel additives.
Some of these provisions require implementation by August 2006; others will require implementation in subsequent
years. To implement the new law, EPA and states will work closely with tribes, other federal agencies, tank owners
and operators, and other stakeholders to bring about the mandated changes affecting underground storage tank
facilities.
To see the full text of this new legislation and for more information about EPA's work to implement the underground
storage tank provisions of the law, see: http://www.epa.gov/ousVfedlaws/nrQ05 01 .htm
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Underground Storage Tank Program UST Tribal Strategy
Strategy For An EPA/Tribal Partnership
To Implement
Section 1529 Of The Energy Policy Act Of 2005
U.S. Environmental Protection Agency
Office of Underground Storage Tanks
Washington, DC
www.epa.gov/oust
EPA-510-R-06-005
August 2006
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Underground Storage Tank Program UST Tribal Strategy
Contents
Introduction 1
Underground Storage Tank Challenges In Indian Country 3
Goals And Objectives Of The Strategy 4
Objective 1: Strengthening Relationships, Communication, And Collaboration 5
Objective 2: Improving Information Sharing 5
Objective 3: Implementing New UST Provisions Of The Energy Policy Act 6
Objective 4: Implementing UST Prevention Activities Through EPA and Tribal
UST Programs 7
Objective 5: Implementing LUST Cleanup Activities Through EPA and Tribal
LUST Programs 8
For More Information About The Tribal Strategy 10
Background About the Energy Policy Act of 2005 10
Appendix: List Of Related Executive Orders, Statutes, Documents,
Policies, And Guidance A-1
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Underground Storage Tank Program UST Tribal Strategy
Introduction
In the United States there are over 560 separate, federally-recognized tribal
governments, each with its own unique history, culture, and treaties. Of these tribes,
approximately 175 have federally-regulated underground storage tanks (USTs) on their
lands. This strategy was developed in coordination with Indian tribes, as required by
Section 9013 (a) of the Solid Waste Disposal Act (SWDA), and recognizes the number
and diversity of tribes and the need for flexibility in implementing the underground
storage tank program to address unique tribal issues. This strategy therefore is
intended to provide a basic framework that can be used as a foundation for discussing
the unique underground storage tank program implementation issues of different tribal
governments and provides a consistent method whereby the U.S. Environmental
Protection Agency (EPA) and each tribe can continue to cooperatively work on these
issues in the future.
EPA's Office of Underground Storage Tanks (OUST) is committed to protecting
human health and the environment in Indian Country while supporting tribes' self-
government, acting consistent with the federal trust responsibility, and strengthening the
government-to-government relationships between tribes and EPA. For more than 20
years, EPA has been fulfilling these commitments by providing financial and technical
assistance to tribal governments to prevent and clean up releases from underground
storage tanks, supporting tribal governments in building capacity to improve their tribal
underground storage tank programs, and directly implementing the underground
storage tank program in Indian Country.
Since 1995, OUST has implemented several EPA policies, including Office of
Solid Waste and Emergency Response (OSWER) Directive 9610.15A, Interim Final
National Policy Statement for Underground Storage Tank Program Implementation in
Indian Country, Guidance on the Enforcement Principles Outlined in the 1984 Indian
Policy, and, since 1990, OSWER Directive 9610.11, UST/LUST Enforcement
Procedures Guidance Manual. These policy statements have provided OUST with a
framework to implement the underground storage tank program in Indian Country and
have helped EPA and some tribes build underground storage tank programs throughout
Indian Country.
Tribes have also played a significant role in protecting human health and the
environment by preventing and cleaning up releases from underground storage tanks.
Some tribes have developed their own underground storage tank program authorities,
while others are working toward development of their own programs. Some tribal
underground storage tank programs are model programs that serve as excellent
examples of how an underground storage tank program should be run. Many tribal
members are well trained as underground storage tank inspectors and site managers of
underground storage tank cleanups.
In the Departments of Veterans Affairs and Housing and Urban Development,
and Independent Agencies Appropriations Act, 1999 (Public Law 105-276) Congress
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Underground Storage Tank Program UST Tribal Strategy
authorized EPA to enter into assistance agreements with federally-recognized Indian
tribes for development and implementation of programs to manage underground
storage tanks. In the same law, Congress also authorized EPA to use leaking
underground storage tank (LUST) Trust funds to enter into assistance agreements with
federally-recognized tribes for leaking underground storage tank cleanups in
accordance with SWDA, Section 9003(h)(7). These authorities have increased tribal
opportunities for involvement in the underground storage tank program and provided
funding and support for development of training programs, regulation development, and
tribal underground storage tank staff.
The passage of the Energy Policy Act of 2005 gives EPA new tools that may
provide greater opportunities for tribal involvement in the underground storage tank
program. As a result of the Energy Policy Act of 2005, EPA, together with tribal
representatives, has developed a new strategy to supplement the program's existing
strategy. Section 1529 of the Energy Policy Act of 2005 amends the SWDA by
establishing a new Section 9013 regarding underground storage tanks in Indian
Country.
Section 9013(a) requires EPA, in coordination with Indian tribes, to develop and
implement an underground storage tank program strategy in Indian Country and by
August 8, 2007, to report to Congress on the status of implementation and enforcement
of SWDA Subtitle I in Indian Country. Specifically, by August 8, 2006, SWDA Section
9013(a)(1) directs EPA to develop and implement, in coordination with Indian tribes, a
strategy:
"[G] iving priority to releases that present the greatest threat to human health or
the environment, and taking necessary corrective action in response to releases
from leaking underground storage tanks located wholly within the boundaries of
an Indian reservation or any other area under the jurisdiction of an Indian tribe;
and
[T] o implement and enforce requirements concerning underground storage tanks
located wholly within the boundaries of an Indian reservation or any other area
under the jurisdiction of an Indian tribe."
This strategy and OUST's existing strategy meet the requirements of SWDA,
Section 9013(a). The new strategy presented here is the result of substantial
involvement from representatives from 41 tribal nations, all EPA Regional offices with
federally-recognized tribes, and EPA headquarters. The result is a strategy that
specifically identifies key issues and actions for improving implementation of the
underground storage tank program in Indian Country.
In particular, this strategy identifies additional steps that EPA and tribes can take
to further the cleanup and compliance of underground storage tanks in Indian Country
by strengthening relationships between EPA and tribes, by improving information
sharing, and by building tribal capacity to improve the implementation of the
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Underground Storage Tank Program UST Tribal Strategy
underground storage tank prevention and cleanup programs. In addition, this strategy
provides an additional basis for a continuing dialogue between EPA and tribes to
implement the objectives contained in this document and for tribes to provide input and
recommendations to EPA through the continuation of work groups or other means.
Following issuance of this strategy, EPA plans to continue to work with tribes to develop
steps to implement the concepts presented here and to begin addressing questions that
may still need .to be answered.
This strategy, however, does not address other important issues, such as the
absence of authority under SWDA to treat tribes as states, above-ground storage tanks,
or issues regarding Indian Country jurisdictional boundaries, which can be better
addressed through other forums. Rather, it provides a framework that can be used as a
basis for continued discussion and for measuring progress in Indian Country.
Moreover, this strategy, and the subsequent actions for implementing the strategy,
should be viewed as living documents that are open to further refinement as priorities
and circumstances change.
Underground Storage Tank Challenges In Indian Country
Underground storage tanks within Indian Country, representing less than 1% of
the federally-regulated underground storage tanks nationally, are similar to those within
states and include facilities ranging from small "mom and pop" gas stations to large
ones owned by multi-national companies. Some of the tanks and facilities are tribally
owned. At the end of fiscal year 2005, there were approximately 2,500 active federally-
regulated underground storage tanks in Indian Country. Of the more than 560 federally-
recognized tribes, approximately 175 tribes have federally-regulated underground
storage tanks on their lands. Of the 175 tribes, about two-thirds have 10 or fewer active
underground storage tanks; only 12 tribes have 50 or more underground storage tanks.
The nature of tribal underground storage tank programs within Indian Country varies
widely, with robust programs for a few tribes, emerging programs for some tribes, and
no programs for other tribes. This diversity in tribal programs creates unique
implementation challenges for both tribes and EPA.
In addition to the active underground storage tanks, about 5,300 substandard
underground storage tanks in Indian Country have been closed. Since the inception of
the program through September 2005, there have been an estimated 1,065 releases
confirmed in Indian Country. Of the 1,065 confirmed releases, cleanups have been
initiated at approximately 975 and completed for 675. Although cleanups have been
initiated for the majority of the sites, there are approximately 400 (or 37% of all)
releases in Indian Country for which cleanups have not yet been completed. Nationally,
over 119,000 (26%) of cleanups remain to be completed.
There are many factors contributing to the cleanup challenges in Indian Country.
Cleanups can be very expensive, averaging about $125,000, and the liability for
cleanups lies with the owner and operator. A release with significant groundwater
contamination can cost more than $1 million to clean up. Owners and operators in
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Underground Storage Tank Program UST Tribal Strategy
Indian Country may find it difficult to initiate and complete cleanups. Additionally, for
leaking underground storage tank sites outside of Indian Country, states typically rely on
both LUST Trust funds and their own underground storage tank cleanup funds to
finance cleanups. However, state underground storage tank cleanup funds are not
always available for cleaning up leaking underground storage tank sites in Indian
Country. Federal LUST Trust funds are available for leaking underground storage tank
cleanups in Indian Country. In fact, since the early 1990s, EPA has been providing
LUST Trust funds to tribes for leaking underground storage tank oversight and to help
build leaking underground storage tank program capabilities; more recently, EPA has
provided LUST Trust funds to a few tribes to conduct cleanups.
With respect to compliance, rates of underground storage tank operational
compliance in Indian Country vary. Operational compliance is a measure of a facility's
compliance based on having the equipment required by current underground storage
tank regulations and performing the necessary operation and maintenance. In fiscal
year 2005, approximately 58% of active tanks in Indian Country met leak prevention
requirements; 53% met release detection standards; and 37% met all requirements.
The national averages were 78%, 73%, and 66% respectively. There are many factors
contributing to the lower compliance rates in Indian Country. In particular, some owners
and operators in Indian Country operate small facilities that lack the resources to
properly operate and maintain their underground storage tank systems. Additionally,
owners and operators may lack the resources to obtain the needed training to ensure
the underground storage tank systems are operated and maintained properly.
Goals And Objectives Of The Strategy
The primary goal of the tribal strategy is to improve human health and the
environment in Indian Country by working with tribes: to clean up releases from
underground storage tanks by giving priority to releases that present the greatest threat
to human health and the environment; to implement and enforce underground storage
tank leak prevention and detection requirements according to EPA's enforcement
principles outlined in the guidance listed on page 1; and to meet the underground
storage tank program's annual and long-term goals for cleanup and compliance.
Subject to the availability of appropriated funds, EPA and tribes intend to work toward
achieving these goals through five overarching objectives.
Objective 1: Strengthening Relationships, Communication, And Collaboration
Objective 2: Improving Information Sharing
Objective 3: Implementing New UST Provisions Of The Energy Policy Act
Objective 4: Implementing UST Prevention Activities Through EPA and Tribal UST
Programs
Objective 5: Implementing LUST Cleanup Activities Through EPA and Tribal LUST
Programs
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Underground Storage Tank Program UST Tribal Strategy
Objective 1: Strengthening Relationships, Communication, And Collaboration
In fulfilling EPA's commitment to protecting human health and the environment in
Indian Country, consistent with the federal trust responsibility, a major emphasis of this
strategy is to strengthen the relationship between EPA's Underground Storage Tank
program and tribal governments. Improving our mutual understanding of EPA and tribal
governments' responsibilities, needs, and constraints through more frequent and
meaningful communication is a key ingredient for better program performance. To that
end, this strategy includes the following actions that, as appropriate, EPA can use to
strengthen relationships, communication, and collaboration with tribal governments:
Consult with tribal governments during planning and decision-making if such
decisions affect the lands and resources of tribes;
Cooperate with affected tribes in assessing the impact of underground storage
tank plans, projects, programs, and activities in Indian Country;
Remove procedural impediments to work directly and effectively with tribal
governments;
Coordinate with other federal departments and encourage cooperation among
tribes, states, and local governments to resolve environmental issues of mutual
concern; and
Continue to provide a forum for meeting at least annually, at a national level, to
discuss key issues and proposed solutions and to increase awareness of EPA
and tribal needs, priorities, and resources, including expanding the role of tribal
governments at the underground storage tank national conference.
Objective 2: Improving Information Sharing
A key component in achieving the goals and objectives of this strategy is to
assure that relevant information is shared between EPA and tribes. Information on the
status of tank compliance and cleanups and the process for funding an underground
storage tank program is essential in developing a successful program. To further
information sharing, this strategy includes the following actions that EPA, as
appropriate, can use to improve information sharing with tribal governments:
Develop and implement a communication and outreach plan and an on-line
website to provide tribes with information on EPA underground storage tank
programs, including information on available funding and guidance on the
process for competing for Comprehensive Environmental Response,
Compensation, & Liability Act (CERCLA) 104(k) Brownfields grants and obtaining
allocations under the Brownfields State and Tribal Response Program grants
authorized by CERCLA 128 and which is consistent with all EPA policies
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including, but not limited to, those governing competition for assistance
agreements;
Maintain an inventory of sites in Indian Country to help evaluate progress toward
achieving the goals of this strategy. An inventory of underground storage tank
sites is important for setting priorities for compliance and cleanup (e.g., by
targeting facilities and releases in sensitive drinking water areas such as source
water areas). For example, inventories can be used to track regular on-site
inspections, implementation of closure requirements, and appropriate and timely
responses to releases and suspected releases. The inventory also can be
updated to reflect the installation of new tanks, the removal or closure of older
tanks, the locations of previously unknown tanks, and data errors;
Provide tribes with information from the federal facility and public record reports
required by SWDA sections 9007(b) and 9002(d) on the status of compliance of
government-owned tanks. These reports provide information on location,
ownership, compliance record, and cleanup status, if applicable (among other
items), and may provide a more complete picture of the universe of tank sites in
Indian Country;
To the extent consistent with Agency policies governing competition for
assistance agreements, share information about available funding sources, the
process for allocating these funds, and the process for competing for funds.
Such information sharing may enable tribes to provide more input on tribal
resource needs and potentially may assist tribes in acquiring more funds to
implement their underground storage tank programs;
Utilize national and regional tribal operations committees to disseminate
information; and
Conduct consultation with tribes on a government-to-government basis
consistent with existing EPA policy.
Objective 3: Implementing New UST Provisions Of The Energy Policy Act
There are key provisions of the new Energy Policy Act that apply to states
receiving federal funding but do not specify Indian Country. Nonetheless, EPA's goal is
to implement the objectives of these provisions in Indian Country as an important step in
achieving more consistent program results in release prevention and cleanup in Indian
Country. Both EPA and tribes recognize the importance of having policies that can help
to ensure parity in program implementation between states and in Indian Country.
Of particular importance are the Energy Policy Act provisions for leak prevention
and detection. One of the key components of the Energy Policy Act, which will help-
ensure parity in program implementation, is to inspect all underground storage tanks.
As discussed in Objective 4 of this strategy, EPA will work with tribes to inspect every
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Underground Storage Tank Program UST Tribal Strategy
underground storage tank every three years. In addition, this strategy includes the goal
of working with tribal governments to implement and enforce the underground storage
tank program in Indian Country and the objectives of the other provisions of the Energy
Policy Act, including fuel delivery prohibition, owner/operator training, and secondary
containment of tank systems near drinking water supplies.
EPA has responsibility for direct implementation of the underground storage tank
program in Indian Country and will work with tribal governments to explore appropriate
tools to meet the objectives in this strategy.
Objective 4: Implementing UST Prevention Activities Through EPA and Tribal
UST Programs
The Agency will continue its efforts to implement and enforce the underground
storage tank program in Indian Country and assist tribal governments in building tribal
capacity to implement and enforce their own underground storage tank programs. To
accomplish this, consistent with EPA's Indian Policy, the Agency will continue to "take
affirmative steps to encourage and assist tribes in assuming regulatory and program
management responsibilities for reservation lands."
Some tribes already have developed and implemented their own underground
storage tank programs. EPA and the tribes intend to continue to work together to
encourage the development of tribal underground storage tank programs for tribes
interested and capable of implementing a program. To that end, this strategy includes
the following actions that EPA, as appropriate, can use to help tribes build tribal
implementation and leak-prevention capacity by providing resources (consistent with
approved Agency budgets), training, federal credentials, or instituting Direct
Implementation Tribal Cooperative Agreements (DITCAs) to conduct inspections:
Provide resources for building capacity and for implementing underground
storage tank programs. Each year Congress appropriates grant funds for tribes
to develop and implement programs to manage underground storage tanks.
EPA has historically provided these funds directly to tribal governments to
support prevention activities and to tribal consortia as a means to reach multiple
tribes that may each only have a few underground storage tanks on their land.
Tribes receiving these grants are able to hire staff or continue employing staff
dedicated to the underground storage tank program. To the extent consistent
with approved Agency budgets, EPA intends to continue to provide these funds
to support these underground storage tank prevention activities;
Provide training to enable interested and capable tribes to build capacity for
developing and implementing their own underground storage tank programs.
EPA and tribes intend to continue to work together to identify training needs and
explore various approaches to providing training efficiently. Continuing education
and training are important for keeping tribes up to date on the latest compliance
measures required by the program, providing a forum for tribes to exchange
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ideas and concerns, and identifying information gaps that a tribe may have when
implementing an underground storage tank program. EPA and tribes intend to
explore the use of in-person and web-based training and the use of tribal
instructors as a means of providing underground storage tank inspector training,
as well as advanced training in underground storage tank inspections,
underground storage tank equipment standards, health and safety issues, and
other subjects, as needed;
Enable interested and capable tribes to conduct inspections and compliance
assistance. By August 8, 2007, EPA will work with tribes to conduct on-site
compliance inspections of all underground storage tanks that have not
undergone an inspection since December 22,1998, including inspections for
temporarily closed facilities. After completion of these inspections, EPA and
tribes, as appropriate, will conduct on-site inspections once every three years to
determine compliance. As the implementing authority, EPA enforces
underground storage tank requirements in Indian Country, as necessary and
appropriate.
Several tribes have well-trained and experienced underground storage tank
inspectors and can assist EPA's Regions in conducting inspections every three
years in Indian Country. SWDA enables EPA to authorize tribal government
representatives to conduct inspections on behalf of EPA. Authorizing tribal
inspectors can increase the geographic coverage and frequency of EPA
inspections in Indian Country-thus helping to ensure that inspections are
conducted every three years-and simultaneously increase the capabilities of
tribal inspectors to conduct inspections under tribal law. After assessing where
and when such authorizations are appropriate, EPA can work with tribes to enter
into a written agreement on inspections and provide federal credentials to
qualified tribal inspectors. DITCAs can serve as the written agreement as well as
outline other areas for tribes to assist EPA in other compliance assurance
activities. DITCAs and inspector credentials should be used, where appropriate,
and can be beneficial to both EPA and tribes.
Objective 5: Implementing LUST Cleanup Activities Through EPA and Tribal
LUST Programs
EPA's strategic plan establishes an annual goal of 30 Indian Country leaking
underground storage tank cleanups per year. Although almost two-thirds of all
underground storage tank releases in Indian Country have been cleaned up, 390
cleanups remain. To meet EPA's annual goal and keep on making progress on
cleanups, EPA will continue to give cleanup priority to those releases presenting the
greatest threat to human health or the environment. EPA also intends to work with
tribes to help them build their capacity to identify and address these high-priority leaking
underground storage tank sites. To that end, this strategy includes the following actions
that EPA, as appropriate, can use to help build tribal capacity to implement leaking
underground storage tank cleanup activities. Capacity building can be accomplished by
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clarifying the corrective action processes, providing adequate involvement to make sure
site cleanups move forward expeditiously, and providing an opportunity for tribes to
compete for grants (through the Brownfields competitive grant selection process) for
cleaning up contamination at abandoned brownfield sites with underground storage
tanks, and by providing resources for corrective action.
Each year, EPA allocates part of its LUST Trust Fund appropriation for tribes to
assess and clean up underground storage tanks in Indian Country. EPA has
successfully used these funds to initiate and clean up two-thirds of all leaking
underground storage tank releases in Indian Country. To the extent consistent
with approved Agency budgets, EPA intends to continue to provide these funds
to support leaking underground storage tank cleanup activities.
Implement corrective action plans that clarify the cleanup process and provide
the opportunity for meaningful involvement. EPA and tribes may generally
accomplish this in part through the following actions:
o Working with interested and capable tribes to effectively develop, adopt,
and administer tribal codes and cleanup standards and explore "site-
specific" EPA rulemaking;
o Finalizing EPA's cleanup guidance for Indian Country, which includes a
process for taking unique exposure patterns associated with tribal
traditions and cultural practices into account;
o Reviewing the corrective action process to identify ways to make it more
streamlined and to expedite cleanups (such as multi-site approaches and
pay for performance cleanups);
o Encouraging cooperation between tribes and states to address
underground storage tank sites adjacent to Indian Country;
o Promoting more DITCAs for cleanup to enable tribes to assist EPA in
conducting corrective action; and
o Sharing current and relevant information with tribes.
Each year, EPA provides Brownfields grants for petroleum sites (such as
Brownfields assessment, cleanup, and revolving loan fund grants) to states and
tribes based on a competitive grant proposal process. EPA will continue to inform
tribes of Brownfields meetings and the process for applying for Brownfields
grants.
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Underground Storage Tank Program UST Tribal Strategy
For More Information About The Tribal Strategy
Visit the EPA Office of Underground Storage Tanks web site at www.epa.gov/oust or
call 703-603-9900.
Background About The Energy Policy Act Of 2005
On August 8, 2005, President Bush signed the Energy Policy Act of 2005. Title XV, Subtitle B of this
act (entitled the Underground Storage Tank Compliance Act) contains amendments to Subtitle I of the
Solid Waste Disposal Act - the original legislation that created the underground storage tank (UST)
program. This new law significantly affects federal and state underground storage tank programs, will
require major changes to the programs, and is aimed at reducing underground storage tank releases to
our environment.
The underground storage tank provisions of the Energy Policy Act focus on preventing releases.
Among other things, the Act expands eligible uses of the Leaking Underground Storage Tank (LUST)
Trust Fund and includes provisions regarding inspections, operator training, delivery prohibition,
secondary containment and financial responsibility, and cleanup of releases that contain oxygenated
fuel additives.
Some of these provisions require implementation by August 2006; others will require implementation in
subsequent years. To implement the new law, EPA and states will work closely with tribes, other
federal agencies, tank owners and operators, and other stakeholders to bring about the mandated
changes affecting underground storage tank facilities.
To see the full text of this new legislation and for more information about EPA's work to implement the
underground storage tank provisions of the law, see: http://www.epa.gov/oust/fedlaws/nrg05 01 .htm
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Appendix: List of Related Executive Orders, Statutes, Documents,
Policies, and Guidance
Statutes
42 U.S.C. § 69911, Resource Conservation and Recovery Act, Section 9013, Tanks
on Tribal Lands
Regulations
40 CFR Part 280, Technical Standards and Corrective Action Requirements for
Owners and Operators of Underground Storage Tanks
40 CFR Part 281.12(a)(2), Approval of State Underground Storage Tank
ProgramsScope
Presidential Documents
George W. Bush's Indian Policy - Memorandum for the Heads of Executive
Departments and Agencies, Government-to-Government Relationship with Tribal
Governments (http://www.epa.gov/indian/pdfs/president-bush-indian.pdf)
Executive Order 13175 -- Consultation and Coordination with Indian Tribal
Governments (http://www.epa.gov/fedrgstr/eo/eo13175.htm)
EPA Policies and Initiatives
The 1984 EPA Indian Policy (http://www.epa.gov/indian/1984.htm)
Reaffirmation Memorandum of the 1984 EPA Indian Policy
(http://www.epa.gov/indian/pdfs/reaffirmation-indian-policv.pdf)
Interim Final National Policy Statement for Underground Storage Tank Program
Implementation in Indian Country (OSWER Directive 9610.15A)
(http://www.epa.gov/oust/directiv/d961015a.htm). October 23, 1995
EPA Guidance
Guidance on the Enforcement Principles Outlined in the 1984 Indian Policy,
(http://www.epa.gov/compliance/resources/policies/state/84indianpolicy.pdf),
January 17, 2001
Guidance for Issuing Federal EPA Inspector Credentials to Authorize Employees
of State/Tribal Governments to Conduct Inspections on Behalf of EPA
(http://www.epa.gov/compliance/resources/policies/monitoring/inspection/statetriba
lcredentials.pdf). September 30, 2004
Process for Requesting EPA Credentials for State/Tribal Inspectors Conducting
Inspections on EPA's Behalf, Memorandum from Michael S. Alushin, Director,
A-1
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Compliance Assessment and Media Programs Division, Office of Enforcement and
Compliance Assurance, August 5, 2005
Use of the LUST Trust Fund for UST Release Sites in Indian Country,
Memorandum from Cliff Rothenstein, Director, Office of Underground Storage
Tanks, and Susan Bromm, Director, Office of Site Remediation Enforcement,
February 24, 2005
UST/LUST Enforcement Procedures Guidance Manual, OSWER Directive
9610.11, May 1990
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