sogranConp’ 1P
U.S. Environmental Protection Agency
Office of Underground Storage Tanks
March 1 91
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
t J WASHINGTON, D.C. 20460
ILPRQIt ’
WR 11995
OFFICE OF
SOLE WASTE AND EMERGENCY
RESPONSE
M ORANDUX
SUBJECT: Use of Risk—Based Decision—
Action Programs
PROM:
TO: Regional
Regions I-X
1 am pleased to provide the attached copy of OSWER Directive
9610.17, which encourages the use of risk-based decision-making
in underground storage tank (UST) corrective action programs. A
risk-based approach is consistent with the Administrator’s
efforts to ensure that our environmental cleanup programs are
based on the application of sound science and common sense and
are flexible and cost-effective.
EPA’s regulations for the UST corrective action program
already give States latitude to tailor their programs. They do
specify cleanup levels or administrative procedures that
States must follow. They simply provide that State or local
cleanup programs must be protective of human health and the
environment.
In other words, EPA’s regulations allow States to make
choices about how they will design and conduct their corrective
action programs. OSWER has long recognized and accepted the
responsibility of helping States build corrective programs based
on these general principles. That was the impetus for a
directive on corrective action streamlining issued two years ago
and is the impetus for the directive on risk-based decis ion—
making. These directives are tools that Regional Offices can use
to help States build flexibility into their UST corrective action
programs.
As presented in this policy statement, the use of risk-based
decision—making in UST cotrective action programs is conceptually
and operationally compatible with the CERCLA remedial and RCRA
corrective action programs, EPA’s guidance on development of
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OSWER Directi
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comprehensive State ground water protection programs, and the
environmental justice and brownfields initiatives.
OSWER’s Office of Underground Storage Tanks (OUST) has been
working with Regional Offices and State and local UST programs
for some time to promote the use of risk—based decision—making.
With the issuance of this directive, the Regional Offices now
have tangible evidence of EPA’S support of this approach and
therefore should be able to promote it more effectively. In
addition, OUST will be working with the Regional Offices to help
them use risk-based decision-making in UST corrective action
activities on Indian lands.
The policy statement includes a description of our strategy
for helping State and local UST programs implement risk-based
decision-making. In cooperation with a committee of the American
Society for esting and Materials (ASTI!), a group whose
membership includes both OUST and Regional Office staff is
planning a training program; a number of States have already
requested the training.
The use of risk-based decision-making could help State and
local UST programs deal with UST releases more quickly and
efficiently. Given that 34,000 UST releases were reported in
1994 alone, the need to speed up the corrective action process is
obvious. I hope I can count on your support of OSWER’s ongoing
efforts to help State and local agencies streamline their
corrective action programs and introduce the use of risk—based
decision-making.
Attachment
cc: lIST/LUST Regional Program Directors
lIST/LUST Regional Branch Chiefs
Regional Division Directors
ORC contacts
OSWER Office Directors
Assistant General Counsel, Superfund Branch
OUST Management Team

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United Siiies Office of
Environmental Pr isciu Solid Waite and
Agency En(ergency Reuponse
&E PA DIRECTIVE NUMBER: 9610.17
TITLE: Use of Risk—Based Decision—Making in UST Corrective
Action Programs
APPROVAL DATE: ‘ 1995
EFFECTIVE DATE: MAR I 1995
ORIGINATING OFFICE: ff ice of Underground Storage
2 FINAL
o DRAFT
STATUS:
REFERENCE (other documents):
OSWER OSWER OSWER
DIRECTIVE DIRECTIVE Di

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OSWER Directive 9610.17
March 1, 1995
USE OF RISK-BASED DECISION-MAKING
IN UST CORRECTiVE ACTION PROGRAMS
INTRODUCTION AND STATEMFNT OF PURPOSE
As applied o cor ectjye action at UST i. 1 e sites, risk-based decision-making is a
process that utilizes risk and exposure methodology to help UST implementing
agencies make determinations about the lent and urgency of corrective action and about the
scope and int ty of their oversight of corrective action by us’r owners and operators.
The primary purpose of this policy st nIm1t is to encourage the use of risk-based
decision-making as an integral part of the corrective action process at sites where leaking
undet 5 ound storage tank (tYSi) systems have rnlmaed petroleum products into the
environment and thus created riaka to human health and the environment. In addition, this
policy statement provides guidelines to help UST impleim. ithig agencies develop and use
risk-based decision-making in a man consistent with the federal law and regulations
applicable to.UST coirective action. Some Stite and 1ocaPIJST implementing agencies have
already tak ’i steps to initiate the use of risk-based decision-making in their corrective action
programs. EPA plans to begin using risk-based decision-making where it implements such
programs-primarily on Indian lands—and expects to work with State and local agencies to
help more of them initiate or improve risk-based processes .
Where risk-based decision-making is incorporated into the UST coucctive action
process, the result is usually called risk-based corrective action (RBCA). The American
Society for Testing and Materials (ASTM) recently issued an emergency standard for risk-
based corrective action; the ASTM standard provides a defailed scientific and technical
framework that can be adapted by UST implementing agencies for use in their corrective
action programs. Thus, the ASTM standard constitutes one possible starting point for
development of a process ua’ng the risk-based ____described in this policy statement.
Additional information about the ASTM standard appears later in this document.
Risk-based decision-making is consistent with EPA policies and regulations governing
UST corrective action and with the approaches being tak i by other EPA programs involved
in protection of ground water and cleanup of environmental contamination.
• EPA’s regulations dealing with UST corrective action [ 40 CFR Part 280] are
aimed at protecting hnm2n health and the environment. Under the regulations, UST
implementing agencies, including EPA, are expected to establish goals for cleanup of UST
releases based on consideration of factors that could influence human and environmental
exposure to contamination. Where UST releases affect ground water being used as public or
private drinking water sources, EPA.generally recommends that cleanup goals be based on
health-based drinking water standards; even in such cases , however, risk-based decision-
making can be employed to focus corrective action and guide UST implementing agencies’
oversight activities.

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OSWER Directive 9610.17
March 1,1995
• EPA’s gmdancc on the development of Comprehensive State Ground Water
Protection Programs (issued November 1992) urges States to take current and pro ective
uses of ground water, as well as relative risks to human health and the environment, into
consideration when establiihing goals for the ren ediation of contaminatad ground water.
Within this framework EPA recommended that States use health-based drinking water
standards as the zemediafion goal for ground water that isalleady used, or could reasonably
be expected to be used, for drinking water. In all other cases , States can set ckanup goals
based on aquifer pnority and other site-apecific considerations.
• In the Superfund program, risk-based decision-making plays an integral role in
determining whether a hazardous waste site belongs on the National Priorities List. Once a
site is listed, qualitative and quantitative risk as easments are used as the basis for
establiching the need for action and determining remedial alternatives. To simplify and
accelerate baseline risk assea’ments at Superfund sites, EPA has developed generic soil
screening guidance that can be used to help distinguish between contamination levels that
generally present no hmith concerns and those that generally require further evaluation.
• The Resource Conservation and Recovery Act (RCRA) Corrective Action program
also uses risk-based decision-making to set priorities for cleanup so that high-risk sites
receive attention as quickly as possible; to assist in the determination of cleanup standards;
and to prescribe management requirements for reniediation of wastes.
BACKGROIJND
In the 1980s, to cahcfy the need to start corrective action programs quickly, many
UST implementing agencies decided to utilize regulatory cleanup standards developed for
other purposes and apply them uniformly to UST infraie sites to establish cleanup
requirements. With experience, however, it has become increasingly apparent that applying
such standards without consideration of the extetit of actual or potential human and
environmental exposure is an iMfficient means of providing adequate protection ag2in t the
risks associated with UST rnleases . Similarly, UST implementing agencies have found that
applying identical reporting and review procedures to the planning and conduct of all
corrective actions is indficient for them and for UST owners and operators. These problems
have become increasingly serious as the number of UST r ase sites has multiplied.
As of October 31, 1994, more than 270,000 r leases had been reported nationwide.
In 1994, 34,000 confirmed r Jeases were newly reported. The upcoming 1998 deadline for
upgrading, replacing, or dosing UST systems likely will increase that number as owners
and operators look at their tank systems to decide whether to upgrade, replace, or close
thpin , they often will discover contamination not previously identified.
Though the number of releases is, and will continue to be, daunting, regulators have
made tremendous progress over the last six years. All States and territories, as well as a
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OSWER Directive 9610.17
March 1,1995
number of local governments, have corrective action programs employing a total of about
1,500 technical staff. Nearly all corrective actions are ii*rtak n by UST owners and
operators with State and local oversight C nups have been initi2h”d at more than 209,000
sites (of the more than 270,000 at which r i ases have been reported) and completed at more
than 107,000 of them. In spite of this progress, UST implementing agencies face the
challenges posed by the more than 163,000 d nups still underway.
Forty-six States have eitablished State financial assurance funds to help owners and
operators iicfy the Federal statutory requirement for evidence of ability to pay the costs of
corrective action. These funds serve as both a mechanism for satisfying the Federal financial
responsibility requirements and a source of fin2n ia1 assistance to help UST owners pay for
corrective actions. While these funds together collect more than $1 billion dollars a year,
many are beginning to face solvency issues as reimbursement requests increase. Currently,
claims waiting to be paid exceed $1.3 billion. Unfortunately, when reimbursement is not
immediately available, corrective actions tend to slow down.
To help UST implementing agencies deal with these challenges, EPA provides support
for streamlining (i.e., simplifying and acceler2ting) administrative and field investigation
processes; promotes the use of cle’nup technologies that offer alternatives to traditional
excavation and landfllling (for soils) and pump-and-treat (for groundwater); and assists
StaICs in building str g State assurance funds. EPA believes that risk-based corrective
action processes are another tool that can f i1itate UST implementing agencies’ efforts to
move all sites forward expeditiously while still assuring protection of human health and the
environment. Taking risk into account is not a new i - In November 1992, in its
gmdance on streamlining of corrective action prucec es (OSWER Directive No. 9650.13:
Streamlined implementation of U Corrective Action Requiremenar), EPA described four
situations in which risk factors could be t lr n into account in corrective action decision-
making. This policy statement builds on concepts articulated in that document.
WHAT IS RISK-BASED DECISION-MAKING?
Risk-based decision-making is a process UST implementing agencies can use to make
determinations about the extent and urgency of corrective action and about the scope and
intensity of their oversight of corEective action by UST owners and operators.
The real value of risk-based decision-making lies in its potential to help UST
implementing agencies and UST owners and operators oversee/manage cleanups of UST
releases based on relative risks to human health and the environment. In addition, risk-based
decision-making can provide a coherent decision-making framework to help keep transaction
costs under control. Thus, while risk-based decision-making can be as protective of human
health and the environment as other approaches, it offers a scientifically sound and
administratively effective way to respond to the pressures for tinidy action at large numbers
of sites and efficient use of both public and private resources. it is important to recognize
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OSWER Directive 9610.17
March 1, 1995
that risk-based decision-making is not intended to be primarily a money-saving tool, even
though its use may save money in many cases . At high-risk sites (which account for only 20
to 30 percent of all sites), risk-based cleanups could cost more than those based on other
procedures for establiihing .Ie nup goals.
Risk-based decision-making is a mechanism for identifying necessary and appropriate
action throughout the corrective action process. Depending on known or antidpated risks to
human health and the environment, appropriate action may include site closure, monitoring
and data collection, active or passive remediaiicn, cantainni it, or institutional controls. In
all cases , the objective is the , i.e., to ensure that adequate protection of human health
and the environment is provided. The availability of options such as allowing contamination
to remain in place or n ’ng institutional controls to prevent exposure will depend on
applicable State and local laws and regulations.
WHAT RISK-BASED DECISION-MAKING IS NOT
There are a number of common misconceptions about risk-based der icion -making.
This section attempts to deal with several of them .
• Rink-based decision-making in not just a means of identifying sites requiring no
further action. Once an UST ralease is confirmed, the key decision to be made at all stages
of the corrective action process is what action is required in order to protect human health
and environmental quality. Only when it can be determined that all necessary risk-reduction
action has been completed or alternative measures have been tak can a site be closed out.
• Rink-based decision-making in not just a means of IILIIIIIJIDg sites at which
corrective action can be deferred. EPA encourages UST implementing agencies to
categorize sites for the purposes of identifying appropriate initial responses and providing
guidance to UST owners and operators on steps that will lead to timely completion of
cleanup. EPA does not support the use of risk-based decision-making to prioritize sites, if
priontimtion implies that some sites would receive altentkm/action while others are ignored.
EPA encourages UST implementing agencies to ensure that UST owners and operators take
action as promptly as possible at all UST release sites and to concentrate their own resources
on conducting oversight of correCtive actions at sites posing the highest risks. Prompt action
at low-risk sites may include determinations that monitoring or interim actions are necessary
or that no active cleanup is nece wy ; a risk-based decision-making process can help make
such determinations defensible.
• Risk-based decision-making does not supplant the Initial steps specifically
required by EPA regulations to define site characteristics, contaminant levels, and actual or
potential exposures; indeed , in a risk-based process, these steps are critical. Likewise, action
to mitigate immediate threats to human health or the environment is required, and a risk-
based process can help UST implementing agencies make timely determinations of the need
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OSWER Directive 9610.17
March 1, 1995
for such action. In addition, when establishing monitoring and reporting requirements,
reniedJation goals, and identifying alterna ves to active remediation, a risk-based process can
provide more flexibility than aditional one-standard-for-all-sites approaches.
U Risk-based dec on-mak1ng does not require imiltiple studies of site
characteristies, elPsniip options, or other factors at all sites. In all cases , data collection
and analysis need not be more elaborate or extensive than is necessary to provide
scientificaliy and technically sound answers to the questions at hand-to perform an initial site
assec- rn n ; to provide data needed for exposure assesament ; to provide a basis for
establishing cleanup goals. For example, expedited site assessment involving the use of field
measurements and geophysical techniques ii consistent with risk-based decimon-nialthig, as
long as it provides the data that UST hnplementing age”c’ have determined are necessary
to categorize sites pr take other steps in the process.
RELATIONsHIP TO ASTM STANDARD ON RISK-BASU) CORRECTIVE ACTION
This policy statement lays out broad guidelines for the use of risk-based decision-
making in UST corrective action programs. A detailed framework for taking risk factors
into account in making corrective action decisions has been developed by ASTM and issued
as an emergency standard entitled Guide for Risk-Based Correcdw Action Applied at
Pesrolewn Release Sites 1F -38-94J. The ASTM standard is an example of how risk-based
decision-making can be incorporated into the lIST corrective action process in a manner
consistent with this policy statement. EPA supported and participated in developing
ES-38-94 and believes that its technical content is sound.
UST implementing agencies need not use ES-38-94 in its entirety, but it may be a
good starting point for the development of a risk-based process tailored to applicable State
and local laws and regulatory practices. One limitation that UST implementing agencies
must take into account when using ES-38-94 is that it deals exclusively with human health
risks; there will, of course, be cases in which ecological risks have to be considered in
establishing cleanup goals.
With support from EPA and other organi’ tions, the ASTM Subcommittee E50.0l on
Storage Tanks, which developed ES-38-94, is also developing tools and a training program to
help UST implementing agencies understand the concepts of risk-based decision-making and
the ASTM standard. Tools being developed include a set of step-by-step worksheets,
generic training materials, and an ASTM program to certify instructors who are qualified to
provide training. EPA is committed to ensuring that quality training is available to UST
implementing agencies interested in considering the adoption of a risk-based approach.
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OSWER Directive 9610.17
March 1,1995
WHERE AND HOW IN THE CORRECTIVE ACTION PROCFSS
CAN RISK-BASE]) DECISION-MAKING BE USED?
Wherever there is a confirmed UST release, owners and operators must take action to
prevent further r 1 eases , control emergency conditions (e.g., fire and explosion hazards),
remove free product, if any, and perform a site assesvncnt . UST imp1e ncnting agencies
should ensure that field n 1mr ’ts and/or laboratory analysis to determine the eAtent of
contamination are appropriately used. Thnely collection of appropriate data during the site
assessment is critical to successful uti1i ation of risk-based decision-making. After the site
_____is completed, risk-based decision-making comes into play. The prindpal-but not
necessarily the only--uses of risk-based decision-making are described here.
S To categorize or Ia Ify sites: Comparison of contaminant levels at UST raleaae
sites with risk-based criteria can be used to place sites into categories for which there are
prescribed initial response actions and/or subsequent steps in the corrective action process.
For each category, UST implementing agencies could direct owners and operators to proceed
with ‘ieanup according to an acceptable ndanli, d approach. Thus, at low-risk sites, UST
owners and operators often would not have to develop site-specific corrective action plans
and often could take the prescribed steps without constant oversight by UST implementing
agencies. At high-risk sites, UST implementing agencies’ policies regarding submittal of
corrective action plans and oversight of UST owners’ and operators’ activities can be
incorporated into the steps specified for that category. Such a process could make it possible
for appropriate action to be taken in timely fiahion at all sites. EPA is not prescribing or
recommending any particular gorizafion scheme. UST implementing agencies choosing
to take this approach will need to develop their own. The one included in the ASTM
standard is a potential starting point
• To aid In abIWiing &almp goaIn Risk-based r-lennup goals can be eitlw
generic or site-Specific. Generic goals based on conservative assumptions about factors that
may influence human and environmental exposures can be developed for contaminants
generally present at UST r ’e sites. Such generic elennup goals can be designed to
provide adequate protection of human health and the environment in the great majority of
corrective action cases . Their use generally will cut down on site-specific data collection and
analysis and thus expedite corrective action. There are sites where it will be more cost-
effective to gather site-specific data and set site-specif IC cleanup goals based on exposure and
risk assetcment methodology. Where conditions are similar to those used to establish the
applicable generic cleanup goals, site-specific goals may not be significantly different, and
the costs of the additional data collection and analysis may negate any savings associated with
site-specific goals. UST implementing agencies also should consider the administrative costs
of negotiating and overseeing the implementation of site-specific goals as they design and
develop a risk-based process . EPA believes that a balance can be achieved between the costs
and benefits of employing such a process.
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OSWER Directive 9610.17
March 1, 1995
U To decide on levels of oversight of UST owners and operators: Where allowed
by State and/or Federal law, both the reporting requirements imposed on UST owners and
operators and the extent of oversight by the regulatory agency can be varied in accordance
with varying risk levels. Categorizing sites based on risk levels can facilitate such
differential oversight. Both the frequency and content of reporting by UST owners and
operators can differ based on site categorization. Similafly, whether and how often
corrective action sites are inspected, and whether and how UST implementing agencies
review technical reports coming from UST owners and operators can be linkrd to
categorization. Thus, regulatory agencies can focus the bulk of their compliance inspection
and evaluation resources on those sites where human health and environmental risks are
IMPLEMENTATION OF RISK-BASED DECISION-MAKING
EPA believes that UST implementing agenr ies should have flexibility to implement,
or experiment with, risk-based decision-making in various ways reflecting their differing
regulatory mand2tPs. Risk-based decision-making can be phased-in to allow time for needed
statutory or regulatory changes. Also, it can be implemented initially through pilot projects
to test or demonstrate its effectiv iess.
EPA is willing to provide advice and assistance, as explained later in this policy
statement, but decisions on whether and how to proceed are solely within the province of
UST implementing agencies. In all cases , of course, the process must provide adequate
protection of human health and the environment This section provides general advice on
ways to prepare for risk-based decision-making imp1 m ’taticn.
• Buildhig internal and external support: UST regulators, tank owners and
operators, consultants, lending institutions, and environmental and community interest groups
all may have concerns about the use of risk-based d on-making in corrective action
programs. For example, where a risk-based process might lead to a decision to leave some
contaniinaiion in place, there may be concerns about liability for the consequences of
possible future exposure to such contamination. To enlist the support of interested groups,
UST implementing agencies should explain their reasons for wanting to move toward risk-
based decision-making and addres s concerns that such groups may have. Involving such
groups in deciding whether and how to use risk-based decision-making win be very valuable
in ensuring the long-term success of this approach.
• Up-front decidoas: Decisions will need to be made about a range of scientific and
technieal, regulatory, and organizational issues. For example, UST implementing agencies
will have to define the criteria (or screening levels) and data requirements for categorizing or
classifying sites; decide which risk assessment, fate and transport, and exposure models can
be used in performing analyses; delineate procedures to be used in deciding upon cleanup
requirements; and identify the circumstances, if any, under which UST owners and operators
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OSWER Directive 9610.17
March 1,1995
will be allowed to use institutional controls or alternative compliance points. UST
implementing agencies will also have to make decisions do program management issues, such
as where and when oversight and review will occur and how intensive they will be.
Coordination with State funds may be a critical issue.
• Slmnl f : After deaigning a risk-based decision-making process, UST
implementing agencies may find it beneficial to run several representative sites through the
process. Such simulations-preferably uling sites that have already gone through corrective
action-may help UST implementing agencies identify problenu that were not foreseen when
the process was being d igned and antici questions that US’!’ owners and operators,
consultants, and contractors may ask.
• Training; Before implementing a risk-based decision-making process, and
periodically thereafter, UST implementing agencies will have to train their own staff
members, as well as consultants and contractors frequently involved in corrective action, to
ensure that they thoroughly understand the risk-based decision-making process and how it
affects their work Basic training in risk and exposure assc ment and in the use of fate and
transport models, and in other sci.ntlflc and technical areas may also be necessary. Such
training, as well as participation in dry-runs of the risk-based decision-making process will
be extremely useful not only for UST regulatory staff, but also for consultants, contractors,
lenders, and other stakeholders. Tank owners and operators may not need in-depth training,
but an overview of the risk-based decision-making process may be beneficial; among other
things, it may help them oversee and interact with the consultants and contractors they hire to
undertake corrective action at their facilities.
• Evahiaflon With implementation of risk-based decision-making, as with all
improvement efforts, it is important to be able to document and a ess results. For this
purpose, UST implementing agen ’es should identify up-front the ways in which they will
measure the impacts of risk-based decision-making and ensure that appropriate data are
collected. Developing such measures in advance and collecting real-time data usually will
make evaluations less costly and more useful than they otherwise would be and may enable
UST implementing agencies to identify opportunities for continuing improvements.
ENVIRONMENTAL JUSTICE CONSII)ERATIONS
Residents of low-income and minority neighborhoods may have disproportionately
high health risks from environmental pollution-often because many manufacturing and
processing, waste treatment and disposal, and other commercial and industrial facilities are
located in and around such neighborhoods. EPA urges UST implementing agencies to ensure
that the cumulative health risks to people living in such areas are bk i into consideration in
determining the extent and urgency of needed cleanups of r 1 ea es from UST systems. A
risk-based approach should allow for- consideration of these factors at appropriate points in
the corrective action process.
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OSWER Directive 9610.17
March 1,1995
REDEVELOPMENT OF CONTAMINATED SiTES
Many former conunercial and industrial sites containing old or abandoned USTs are
being shunned by industries and developers. Their reluctance to use such sites is due in part
to uncertainty about their potential liability for cleanup of c thInin2tion and the perceived
imbalance between the value of such prcperties and potential cleanup costs. Such sites often
are called brownflelds-reflecting the appearance of vacant lots where lack of interest in
cleaning up or reusing contsniinat d land has contributed to the general deterioration of urban
areas.
Within EPA’s Office of Solid Waste and Emergency Response (OSWER), a strategy
is being developed that will include actions dealing with UST-related brownfield sites. This
strategy will outline measures to prevent sites where UST fadlities are located from
becoming brownflelds and to f2dlitate assessment, cleanup, and reuse of sites already
contaminated by UST releases . Prevention measures will include efforts to encourage
compliance with the upgrading, replacement, or closure requirements that take effect in
December 1998 and promulgation of a regulation dealing with lender liability for cleanup of
contaminated sites.
UST implementing agencies can expedite assesunent and cleanup of UST release sites
through streamlining of corrective action processes, development of strong State assurance
funds, and use of risk-based decision-making. By using a nsk-based process that provides
for categorization of UST release sites, allows consideration of site-specific factors, where
appropriate, and focuses atteation on the highest risk sites, States can deal with brownflelds
sites in a timely fachion and thus encourage economic redevelopment. EPA will work with
other UST implementing agencies to carry out this strategy.
EXAMPLES OF STATES’ USE OF RISK-BASED DECISION-MAKING PROCESSES
Attached to this policy stnt ’t is a descvipdon of several examples of risk-based
processes already being used by State and local governments. While those described here
were developed independent of the ASTM standard, they are cimilar to it in many respects.
Some companies in the private sector also have developed such processes for their own use.
HOW EPA CAN HKLP UST IMPLEMENTING AGENCIES
EPA’S Office of UndeLground Storage Tank (OUST) and Regional Offices (ROs)
will play an active role in promoting the development and implementation of risk-based
decision-making processes through information chaTing and technical assistance. EPA
expects to offer support by funding peer matches through the Association of State and
Territorial Solid Waste Management Officials (ASTSWMO); coordinating training programs
with ASTM and the American Petroleum Institute (API); preparing and circulating write-ups
of State and local experiences with risk-based decision-making; providing forums for
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OSWER Directive 9610.17
March 1,1995
discussions of risk-based d IIon-m2fring at our national conferences; and providing targeted
assistance imiIir to that being provided for corrective action stre ni1ining. Regional Offices
will play a role in this effort by negotiating State Improvement Prqjects; coordinating and
partJcip ting in training programs and targeted assistance prqjects. State and local UST
managers should contact EPA Regional Office UST program staff for answers to specific
questions about risk-based decision -m2king or to determine who to contact for the answers.
In implementing the UST program on lndi2n i s , the Regional Offices will move
toward incorporating risk-based decision -m2lring into their corrective action processes.
Doing so will enable the Regional Offices to use their iesoumes more efficiently and gain
experience that will improve their ability to help other UST implementing agencies design
and implem it risk-based iincisinn -m2lring proc ’ s .
CONCLUSION
Cleaning up contamination from Ie iking UST systems poses tremendous
jnjstrative, fin2nd2l , and technical ch 11enges for UST regulators. To cope with these
cii2lleiiges and succeed in protecting huni2n health and the environment, UST implementing
agencies, including EPA, will have to employ a broad range of traditional and innovative
approaches. This policy st tem 1t builds on our experience with correcth,e action at 1 king
UST sites and continues EPA’s support of innovative approaches by encouraging regulators
to adopt risk-based decision -m2lthig as an integral part of the corrective action process. EPA
believes that risk-based decision -making will enable UST implementing agencies tosiznplify
and expedite their corrective action programs.
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OSWER Directive 9610.17
March 1,1995
AI7ACHMENT A
EXAMPLES OF STATES’ USE OF RISK-BASED DECISION-MAKING
IN lIST CORRECTIVE ACTION PROGRAMS
Texas
Texas recently modified its corrective action program; its now risk-based in its
approach to prionti ing and ieme liating leaking UST tank sites. In Texas, risk-based
corrective action refers to a case.by-case consideration of the actual or reasonable potential
for public and environmental exposure to contaminants in the det&..Jnatk,n of the dining,
type, and degree of site reinediation. To implement the new risk-baied corrective action
program, the Texas Natural Resource Conservation Commission created a new site
‘lassification system and site assessment protocol, and adopted new procedures for
developing risk-based nup levels. In addition, the Commission contracted for the
development of a guidance document on ftte and transport modthng to support its review of
risk assettm Its reports .
Texas began the ansition to a risk-baied program by developing a new site
cla&mflcation system. Site classification is based upon site cimilarity to specific exposure
scenarios. Sites ll into one of four classes. Clarns 1 sites represent an actual or probable
impact to public h 1th and safety and may require emergency abatement action or interim
containment measures. Class 4 sites pose no threat to the public or the environment. Class
2 and 3 sites pose intermediate threats to public health and safety and the environment.
Site classification is t jinined by ucing the new Timitad Site im it (LSA)
protocol. The purpose of the LSA is not to define the full lateral and vertical extent of the
contaminant-affected area but to evaluate the degree of contamination at the site, identify the
media affected, determine critical hydrogeologic properties, and identify receptors potentially
affected by the release . Decisions on the urgency of subsequent corrective actions are based
on site classification.
Site cleanup levels are determined by the responsible party uaing one of two
established procedures. Plan A is a conservative approach based on established default
exposure assumptions and risk___ ___L considerations. Plan A generally requires less
rigorous assessment and regulatory review; UST owners and operators therefore may be able
to start site cleanup quicker. Plan B is a site-specific risk assessment procedure which
incorporates less d fauIt conservatism and allows for more site-specific considerations. Plan
B typically involves more rigorous assessment and regulatory review than Plan A, but it may
result in a more focused cleanup effort. However, proceeding under Plan B may require
institutional controls (e.g., land use restrictions, deed certifications) to ensure that exposure
conditions do not change. Plan A and Plan B are analogous to Tier I and Tier II in ASTM
ES-38.
Al

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OSWER Directive 9610.17
March 1,1995
Ohio
Ohio has developed corrective action rules that include a Site Feature Scoring System
(SFSS) and risk-based action levels to assess corrective action sites. Ohio developed a risk-
based approach which uses four tiers of risk asseQ n1ent . The complexity of risk assr m 1t
increases from Tier I through ‘11cr IV. The process initially uses conservative scenarios and
assumptions; less conservative assumptions are introduced as additional site-specific data are
provided to justify them.
Based on data collected during an initial site check or as e in it , the responsible
party completes an SF55 form , which determines whether or not additional corrective actions
are necessary. If contamination is present at or below the action level, further zemMiaticjn is
not required at that time. If the action levels are exceeded, additional corrective actions are
necessary.
As an alternative to Tier I (the SFSS action levels), Ohio also allows owners and
operators to conduct risk ass sm its to determine whether clean-ups are necessary and to
develop site-specific target cleanup levels. 11cr II, a basrline risk assessment, uses
conservative assumptions about pathways and chemicals . ‘11cr In is a more detailed risk
asseccm 1t and, if sufficient data exist, specific pathways (e.g., groundwater ingestion) may
be eiin inate4 in this tier. Tier l v consists of a risk asse m it with Monte Carlo Sensitivity
Analysis. This tier requires additional site-specific information to justify less conservative
assumptions about pathways and eh micaI .
Illinois
On September 13, 1993, illinois enacted new legislation governing UST corrective
actions. The goals of the l ghIation are to protect human health and the environment at the
lowest possible cost, lower *anup cost and reduce delays in reimbursement, provide for
timely review and response, and niiminata delay in remediatinn due to lack of funds.
illinois’ revised program incorporates risk in the site priorih’ation and review processes and
in the development of site-specific cfranup levels.
Site c1a t ’fi *fion follows early corrective action activities; data obtained as part of
early action can be used to iau1?y sites. Sites are cI mfied as high priority, low priority,
or no further action based on five triggering’ criteria: 1. physical soil ci fication; 2.
sethack zone distance; 3. migratory pathways; 4. ( iaa III groundwater distance; and, 5.
surface water impact. If a site passes on all five criteria, it is classified a no further action
site. Ifasitefailsoncritcriaf2throughl5,itisclassifledahighpnontysite. Ifasite
fails on criteria #1, it can be da Lvfied as either a high or low priority site depending on the
results of groundwater monitoring.
A licensed professional engineer must evaluate all five criteria. UST owners and
operators can bypass site classification by performing complete cleanup during the early
action phase; however, cleanup costs beyond the early action minimum are not reimbursable
A2

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OSWER Directive 9610.17
March 1, 1995
wil sc approved by the Illinois EPA. Based on an early sampling of site dascific2tion
approvals, the Illinois EPA expects that 15-20 percent of reported incidents will be high
priority sites, 65-70 percent will be no further action site, and the remainder will be low
priority sites.
Regulations implein iiting the new 1egi lation were effective September 23, 1994.
These new regulations include remediation objectives for groundwater and soil.
Groundwater objectives apply to potable resource groundwater and are equal to Federal
Maximum Contaminant Levels (MCLS). Soil d nup objectives are based on a three-tier
system with the goal of protecting groundwater. Tier I includes a Look-up Table that
contains bas.iine nunwical clemup levels for six indicator contaminants. 11cr II nup
levels arc &terminnd based on equations nung site-specific parameters. Tier III cleanup
levels are based on of risk asse tments uaing formal methodologies (like the
ASTM methodology set forth in ES-38) or common sense methods for situations where there
are physical limitations (such as permanent buildings and/or highways).
HawaII
Hawaii offers owners and operators three options for cleaning up contaminated soil
and groundwater to levels that are protective of human health and the environment. Option 1
allows owners and operators to clean up soil and groundwater to levels established by the
Department of Wealth . Option 2 allows owners and operators to propose alternative cleanup
levels based on risk asseauneat . Option 3 allows owners and operators to select exposure
prevention mahagement to eliminate existing exposure pathways.
Of the three available cl”anup options, Option 1 is the simplest and most direct. The
Department of TI lth has eat2hlished cleanup levels for soil and groundwater with protection
of human health and the environment as the ultimate goal. The Department has attempted to
establish protective levels that cao be practically achieved by owners and operators at many
UST releace sites. In cases where these criteria are impractical, the risk assessment option
and the exposure management option are available to owners and operators.
Where owners and opuators propose to leave contamination in soil and water above
the recommended cleanup criteria and where complete exposure pathways do exist, the levels
of the contaminants left in-place must be supported by a site-specific, quantitative risk
ass tcment. The risk assessment must conclusively demonstrate that the levels of
contaminant left in place do not pose a threat to human health and the environment. Because
the preparation of a risk assr Tnent involves numerous complex and time-consuming tatk ,
the Department recommends that owners and operators not enter into this process without
fully considering all alternatives, including application of alternative types of technology to
meet the recommended cleanup standards.
The Department offers owners and operators a third option, exposure prevention
management, which relies on recognition of the lack of exposure pathways inherent to a site,
or alternatively, recognizes and relies upon the construction of man-made barriers (such as
A3
II

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OSWER Directive 9610.17
March 1,1995
asphalt or concrete pavements) to effectively 1imin2t existing exposure pathways. This
option is viewed as a temporary (non-permancnt) cI nup option since the potential does exist
for the evolution of exposure pathways in the future and because barriers to exposure
pathways are not permanent.
Mnssathesetts
Massachusetts redesigned its Waste Site Cleanup Program to streamline and accelerate
d nup of r l of oil and hazardous material to the aivironnient. The previous program
relied heavily on direct oversight of privalely-fimdedassesi’neait and cleanup actions. The
rede-i’gred program allows the private sector to take more responsibility for timely site
‘seisment and cleanup and allows the Department of Environmental Protection to focus its
resources on responding to emergency spills and on n iiqg the worst hazardous waste sites
and getting th in c1 ned up.
A-cornerstone of the new program is Ith2nce on Licensed Site Professionals (LSPs),
experts in asse t meat and cleanup, who are 1icen d by an independent state regulatory
board. LSPs are employed by UST owners and operators to oversee site assessment and
remediation and to ensure that such actions are performed in compliance with the
Massachusetts Contingency Plan (MCP). By hiring an LSP, lIST owners and operators can
proceed at most sites on their own and at their own pace.
In the redesigned program, the Department receives notification of r .I ases and
threats of rd áses that exceed specific thresholds. Releases that have not been d n d up
within one year of notification must be scored uiing the Numerical Ranking System (NRS).
The NRS ranks sites u i’ig specific criteria and a scoring system based on the existing and
potential risks posed by the site to public health, natural resources, and environmental
receptors. Generally, sites that score below 350 are Tier II sites. Assessment and cleanup
actions can proceed at th ie sites n’ the oversight of an LSP and without a Waste Site
C 1 anup permit or approval. Sites that score 350 or above, as well as sites that are located
within certain groundwater resource areas, are Tier I disposal sites. These sites require a
p imit to proceed with further response actions.
Response actions are complete when a condition of ‘flO iignifi nt risk’ of harm to
health, safety, public welfare, or the environment exists or has been achieved. This standard
requires consideration of both current and reasonably foreseeable uses of a site and its
surrounding area. The MCP provides three options for defining a level of ‘no significant
risk’ or ‘how clean is Cl n enough. Method 1 uses clear numeric standards for more than
100 common chemic2h in soil and groundwater. Method 2 allow for some adjustments in
these standards to reflect site-specific conditions. Method 3 allows cleanup requirement
goals to be defluted on the basis of a site-specific risk asse ’n’ ’t . With some limits, lIST
owners and operators can choose among these methods.
At the conclusion of response activities, a Response Action Outcome Statement must
be filed with the Department to document the achievement of a permanent or temporary
A4

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OSWER Directive 9610.17
March 1,1995
solution. Where it is not fe iih1e to achieve a permanent solution, the MCP recognizes
where a temporary solution-a major milestone indicating that risks have been reduced, but a
‘flO significant risk’ level cannot be maintained—can be achieved. The MCP also establishes
an ‘activity and use limitation’ requiring deed restrictions or deed notices to inform future
property owners and users of certain limits on activities at a site, untn additional response
actions are conducted.
New Jersey
New Jersey applies risk-based decision-mabing-based on assessments of current and
potential future risk-at sites where discharges of hasardous substances have occurred. The
process allows UST owners and operators to move forward in an expeditious mann with
minimal State oversight.
After the State receives the results of an initial site investigation or remedial
investigation, sites are ranked n-mng the Remedial Priority Scoring (RPS) system. The RPS
takes into account actual and potential exposure through air, surface water, ground water,
and direct contact, as well as fire and explosion hazards, biothreat, and subsurface migration
of contaminants. It reflects consideration of receptor distances, population density,
contaminant levels, toxicity, waste quantity, soil type, and aquifer usage. UST cases axe
asstgned prionty rankinga baser ! on RPS scores .
The State’s technical regulations specify the minimum requirements for conducting
investigations and remedial actions; they also prescribe reporting formats. UST owners and
operators are allowed to use field screening methods for soil and groundwater and to
undertake aingin -pha- ’d remedial actions (le., UST removals) at non-complex sites-instead
of sequentially performing a preliminary assessment, site investigation, remedial
investigation, and remedial action. By following the technical regulations, UST owners and
operators receive a level of assurance that the work conducted without State oversight will be_
accepted.
Combining the Iechnieal regulations with the State’s cl nup criteria and Groundwater
Quality Standards (GWQS) allows UST owners and operators to complete a consistent
baseline deiin tion of contamination to appropriate levels without having to develop site-
specific cleanup numbers. Soil (i anup Criteria have been developed for 107 compounds;
most have iesi4 nbal and non-residential direct contact and impact-to-groundwater numbers.
The soil cIe nup criteria were derived from Superfund risk asse sn1mit guidance and other
State and EPA data. Soil with contamination below re.cid ilia1 levels is considered
acceptable for unrestricted direct contact use.
Since most groundwater in New Jersey is classified as potable aquifers, groundwater
delineation to the GWQS is required. In areas not classified as ‘potable aquifers,’
delineation has to be conducted only to check for possible impairment of existing
groundwater uses, violations of surface water quality standards, Inleases of pollutants to
ground surface or buildings, and contaminant migration to potable aquifers.
AS

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OSWER Directive 9610.17
March 1, 1995
Once soil and groundwater d 1ineation are completed, a risk-based decision is n de
on the need for active or passive reniediation. This decision is based on the extent of
conl2min2tion, proximity of receptors , and nature of exposure pathways. In many instances,
natural r t ’ 1 ”on of p n’4n d groundwater is acceptable following source
removal (including any free product), w e no receptors are at risk and conditions are
conducive to natural aii iuaXjun . Where soil amt2nhination c eedt cjd?ntjal and non-
residential direct contact d nup criteria, cont2Inin nts may reniiin if appropriate
institutional and engineering controls are applied to prevent current and future direct contact
The levels of contaminants that can i ’naln are delermh on a site-by-site basis.
UST owners and operators have the option of conducting a risk assessment in
accordance with EPA guidance. UST owners and operators conducting de’nups with their
own funds have the option of completing dennups to unrestricted levels to avoid the use of
institutional controls.
Rderence Documents
Risk-Based Corrective Action for L ’nIriiig Storage Tank Sites. RG-36, Texas Natural
Resource Conservation Commission, January 1994.
Risk As ment Gui’isnce Document For Risk Assessors and Project Managers—DRAFT.
Ohio Department of Commerce, Division of State Fire Marshal, Bureau of Undeiground
Storage Tank Regulations, July 28, 1994.
Technical Guidance Manual for Underground Storage Tank Closure and Release Response.
State of Hawaii Department of 1T a1th, Environmental Management Division, August 1992.
The 1993 Massachusetts Contingency Plan - A New Clesnup Approach To ( !lnaning Up
Disposal Sites. Department of Environmental Protection, August 12, 1993.
The flilnois Len1 ing Underground Storage Tank Program: A Summary of Recent
Developments, flilnois Environmental Protection Agency, October 1994.
New Jersey Technical Reauirements for Site Rem diation . NJAC 7:26E ( Technical
Regulations).
New Jersey Soil Clennup Criteria. In the April 1994 Site Ren e4iaticn News.
Oversight of the Remediation of Cont inin Sites in New Jersey. NJAC 7:26C.
A6

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FINANCIAL RESPONSIBILITY
Guidance

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e S a es “•ce f
Cec 0’ So’a WasTe a”c
E—e’ e’cv Resoo. e
EPA
TITLE: ‘onitorin; the Financial Soundness of
Approved State Assurance Funds
APPROVALDATE: 121993
EFFECTIVE DATE: I 2 (993
ORIGINATING OFFICE; Office of Underground
Storage Tanks
CFINAL
o DRAFT
STATUS:
REFERENCE (other documents):
SWER OSWER OSWER
DIRECTIVE_DIRECTIVE U
UST/FR/G/93—1

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Jniteø States !r’iiro e ai Protection AgerCy I I Directive moer
Washington DC 20460
&EPA OSWER Directive Initiation Request
2. OriQinator Information
Name of Cc tact Person Mail Coce Ctf ce Tele ncne code
I 0. 4lL’ .r 703 305—
. ..
t:e
Ionitocir CI I rLnarlcial . oundness cE Ap roved tata ssurance Eurids.
4 Summary :1 Direct . e ir :rief statement :t ;roosei
The purpose of this directive is to provide ;uidance to EP..\ E e ional
Offices regarding monitoring state assurance funds that have been
approved by EPA to act as financial responsibility compliance
atechanisms for owners and operators of underzround storage tanks.
5. v(eywords -
State assurance funds .egions, financial responsibility
6 Does This Directive Supersece Previous irectIve sJ
No Yes What directive (number. tale)
b Does it Supplement Previous DirectIve(s)
No Yes What directive (number, title)
7 Craft Level
A — Signed by &A1DAA S - Signed by Office Director C - For Review & Comment 0 - In OeveIo ,
I
8. Document to be distributed to States by Headquarters? E No
Thl Request Nects OSWER Oirsctlvss System Format Standards.
9. Signature of Lead Office Oirect,ves Coordinator
Beverly Thomas,
.
10 Names d tIeofA provingO c Sr r
David Zie2ele .. Dir ,nr . C)
EPA Form 1315-17 (Rev. 5-Il) Previous editions are obso’ete.
Oats
7/1L/dl3
Oa t J ,
T nkc
OSWER OSWER OSWER 0
FE
DIRECTIVE
DIRECTIVE
DIRECTIVE

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5r 1 ,.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
_____ WASHiNGTON DC 2 t O
993
CF CE F
SOLID WASTE .D E
RE S PC ‘ SE
OSWER Directive 9650.14
MEMORANDtJM
SUBJECT: Final Guidance Entitled: Monitoring the Financial
Soundness of Approved S(t te Assu ance Funds
FROM: David Ziegele, Directo 1 1 \LL LiA . L.Lt1
Office of Underground Si±rage Tanks
TO: tJST Regional Program Managers
Regions I - X
The purpose of this letter is to distribute the final
version of the guidance entitled, “Monitoring the Financial
Soundness of Approved State Assurance Funds.” In addition, this
package provides a brief overview of the comments received by our
office as well as our response to those comments.
The purpose of the guidance is essentially two-fold: first,
to help identify problems in approved funds, and second, perhaps
even more importantly, to describe a process which will help
resolve those problems. Flexibility has been purposefully
incorporated into this guidance to encourage EPA Regions and
states to work together to effectively solve state fund solvency
problems. Only if the problems were so severe if the process
and solutions that the Region and state have negotiated and
developed together to solve those problems failed to the point
that no options remained, would EPA consider withdrawing approval
of a state fund.
I would once again like to reiterate EPA’S principal
interest in monitoring the financial soundness of approved state
assurance funds. EPA’S principal interest is in ensuring that
state funds remain viable financial responsibility mechanisms for
owners and operators of underground storage tanks (USTs). It is
also important to re-state that EPA’S interest in monitoring
state funds is only applicable with regard to compliance with the
financial responsibility requirements. In other words,
withdrawal of EPA approval from a State fund means that the fund
no longer qualifies as a Federal financial responsibility
compliance mechanism. A state fund could continue to exist,
however, as a cleanup mechanism.

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OSWER Directive 9650.14
We received a total of thirteen comments on the draft
guidance from a variety of respondents including state UST
programs, EPA Regions, state assurance funds, and a petroleum
marketers’ association. A discussion of those comments and our
response is attached.
If you have any additional questions, please do not hesitate
to contact Sammy Mg at 703 308-8882 or Andrea Osborne 703 308-
8883 of my office.
Attachments
cc: UST/LUST Regional Branch Chiefs
OUST Management Team
OUST Desk Officers
State UST/LUST Program Managers
State Fund Administrators

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OSWER Directive 9650.14
Attachment 1
COMMENT AND RESPONSE DOCUMENT
Comment 1 : Measures of financial soundness need to be more
specific.
Several commenters expressed concern that the measures of
financial soundness are not sufficiently specific. One
commenter suggested a standardized approach across all
Regions with regard to certain measures. Another expressed
concern that some measures may not reflect actual fund
operations. Other commenters suggested that additional
measures, such as average cleanup cost and average claim
frequency by type of tank be included in the guidance.
Another commenter requested draft quantitative criteria in
the .form of specific examples.
Response :
OUST believes that the high degree of variation among state
funds necessitates a flexible approach to measurement of
financial soundness. Since no two funds are exactly alike,
this guidance purposefully encourages Regions and states to
develop and use measures which are meaningful to individual
states and which accurately reflect a fund’s operations.
The list of measures in the guidance is intended to be
illustrative and nbt necessarily prescriptive. In some
cases, Regions and states may decide to add additional
measures and/or replace suggested measures from this
guidance. Region V , for example, recently inst with its
state fund administrators and agreed to consider adding
additional measures which reflect not only the structure of
the fund (i.e. eligibility criteria, deductible), but also
intangibles such as legislative or industry support for the
fund. It is also important to note that the measures are
intended to be cumulative. A state with a low fund balance,
for example, may be able to either explain the reason for
the problem or compensate for the low balance by
demonstrating strength in other measures. Finally, in
response to the commenter requesting specific examples, OUST
plans to complete three short case studies using fictional
data to assist with implementation of this guidance.
Comment 2 : Measures are inappropriately weighted.
One cominenter felt that little weight should be given to the
measure of cash balance because a large balance could invite
raids on the funds.

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2 OSWER Directive 9650.1.4
ResponSe :
Again, OUST stresses that the measures included in the
guidance can be weighted as appropriate in different states
and Regions. For example, a low fund balance in an
otherwise stable fund is not necessarily an indication of a
problem if the state explains the low fund balance in terms
of its concern about a raid on the fund by other state
agencies. Measures should be evaluated in terms of trends
over time. Communication between Regions and states is a
key element in explaining discrepancies, addressing
concerns, and solving problems.
Comment 3 : EPA should require an independent actuarial
determination of fund soundness.
One commenter argued that a statistical determination of
fund soundness shculd be performed to monitor the financial
soundness of states funds.
Response :
OUST believes that actuarial studies are n necessary to
assess fund soundness. If a region and state want to do a
study to confirm their findings, or to satisfy state audit
requirements, they would be able to do so on their own.
However, OUST believes that the measures listed in the
guidance can give an overall indication of fund solvency
without the added cost of an actuarial study. In addition,
it is important to realize that discovering a problem is
only the first objective of the guidance. Even more
importantly, the guidance intends to create a process to
address solvency problems. An actuarial study might not
assist with this second important component of the guidance.
Comment 4 : The guidance should consider that corrective
action requirements (e.g. method of remediation selected at
a site) affect the solvency of state funds.
Response :
OUST acknowledges that the cost of cleanup is an important
factor with regard to fund solvency. States, however,
currently set their own cleanup levels for soil and
groundwater and determine the appropriate remediation
technique to be used at particular sites. EPA through
training assistance and technical information transfer
continues to promote the use of better, cheaper and faster
technologies, but believes that this issue is beyond the
scope of this guidance.

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3 OSWER Directive 9650.14
Comment 5 : The guidance may hinder the ability of states to
protect human health and the environment if a fund decides
to reduce fund eligibility to improve solvency.
Response :
State assurance funds individually decide what to reimburse
and whether to provide coverage to a particular owner or
operator. Reducing the number of eligible owners or
operators able to participate in a fund (e.g. due to
technical non-compliance) is essentially a state decision
which could reduce claims on a fund. It should be noted,
however, that an owner or operator would still be required
to pay for a cleanup using another financial responsibility
mechanism if state fund coverage were not available.
Comment 6 : General clarifications.
One commenter asked why a region would require additional
information about a particular soundness measure. Another
commenter requested clarification on the effect of a
reduction in fund coverage with regard to financial
responsibility compliance.
Response :
A Region would ask for additional information to explain a
sudden change in the data, it received or to clarify a
possible problem area. For example, an amnesty period or
short-term reduction in a deductible amount could explain a
short-term change in overall data trends.
If a fund decided to reduce eligibility (i.e. not provide
coverage to owners with more than $20 million in net worth)
those owners and operators would be required to supplement
their coverage with one of the other allowable Federal
financial responsibility mechanisms (i.e. private insurance,
letter or credit, etc.) in order to obtain full coverage.
OUST notes that financial responsibility mechanisms can be
combined; that is, a state fund could provide coverage up to
a certain amount, with the remaining coverage obtained
through private insurance.
Comment 7 : Guidance is acceptable.
Two coiniuenters stated that the reporting requirements were
acceptable and that the data could be obtained with no great
difficulty, since it is already required by some state
legislatures. Four commenters agreed with the intent of the
guidance, stating that the guidance contained the essential
components necessary to determine financial soundness.

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4 OSWER Directive 9650.14
Response :
OUST appreciates the comments and support.
Comment 8 : The reporting requirements are overly
burdensome.
Two cominenters felt the guidance imposed excessive reporting
burdens. One felt the six-month requirement was too time
consuming. Another asked for additional information on the
proposed reporting time frames.
Response :
OUST emphasizes that the reporting time frames referred to
in the guidance are suggested time frames, subject to
negotiation between the Regions and states. Six month time
frames may make sense, for example, when the reporting is
combined with a Region’s semi-annual review of the tank
program. In other cases, an annual review may be more
appropriate. In states with solvency problems, more
frequent data collection may be needed. This flexibility
has been clarified in the guidance document.
Data collection and reporting should balance the need for
timely collection of information (so that a problem can be
solved before it becomes unworkable) with the level of
effort required by the state to report the information.
Comment 9 : Solvency of state funds is not a federal
concern. Several commenters questioned EPA’S authority to
withdraw approval of a fund.
Response :
EPA approves state assurance funds for use as acceptable
Federal financial responsibility compliance mechanisms (40
CFR 280.101). Since the Agency approves state funds, it is
incumbent upon EPA to withdraw its approval for funds which
no longer provide the requisite Federal financial
responsibility coverage. OUST notes that withdrawal of fund
approval refers only to the ability of that fund to act as a
Federal financial responsibility mechanism; the fund,
however, could continue to operate as a cleanup mechanism in
a state.
Comment 10 : This guidance appears to conflict with the 1989
state fund approval guidance, entitled “Reviewing State
Funds for Financial Responsibility.” Two commenters also
requested clarification on whether the guidance applies to
states that have received state program approval.

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5 OSWER Directive 9650.14
Response :
The 1939 guidance is still used to determine whether a fund
which has been submitted to EPA could be approved as a
Federal financial responsibility compliance mechanism.
Today’s guidance for monitoring the financial soundness of
approved state funds would be required only for funds that
have already received EPA approval. Therefore, funds which
have been submitted and not yet approved would not be
required to submit data to EPA.
In response to the second comment, the Agency notes that
today’s guidance is also flp.. required for funds in states
which have received state program approval under 40 CFR 281.
For States with program approval, EPA would monitor any
changes in state assurance funds in terms of whether the
program remains at least as stringent as the Federal
requirements.
OUST strongly recommends, however, that today’s guidance be
implemented voluntarily as a sound fund management practice
in states with funds which have not yet been approved or in
states which have been delegated the program under state
program approval.
Comment 11 : One commenter believed that the document should
focus on a risk-based approach to cleanups in order to avoid
costly remediation in properties that pose no risk to human
health and the environment. Another commenter suggested use
of a prioritization system which pays the worst sites first
as a way of ensuring the adequacy of state funds.
Response :
OUST agrees that cost control and reductions in the overall
costs of remediation at leaking underground storage tanks
sites is a key component to the success of not only state
assurance funds, but the UST program in general. For this
reason, EPA has been actively promoting the use of improved
technologies and administrative streamlining. A risk-based
approach to clean—ups is not at all precluded by this
guidance.
A prioritized reimbursement system ensuring that the worst
sites are cleaned up first is also a workable option under
this solvency guidance. States with prioritization
schedules may want to work with a region to modify the
guidance accordingly. For example, a state may argue that
the measure of time required to pay a claim should be
different for high versus low priority sites.

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Attachment 2 OSWER Directive 9650.14
MONITORING THE FINANCIAL SOUNDNESS OF APPROVED STATE
ASSURANCE FUNDS
Introduction and Summary
The purpose of this guidance is to provide staff in EPA
Regional Underground Storage Tank (UST) programs with criteria
and procedures for monitoring the financial soundness of approved
State financial assurance funds. EPA’s principle interest in
monitoring the financial soundness of approved State assurance
funds is to ensure that they remain viable mechanisms for
complying with the financial responsibility requirements.
EPA believes that State funds play a vital role in the UST
program. They provide tank owners and operators with an
affordable financial responsibility compliance mechanism and they
provide large sums of money for UST cleanups; money that would
not be available otherwise. Therefore, it is in the interest of
not only EPA, but States, tank owners and operators, and the
environment that these funds remain financially viable. This
guidance is intended to help EPA work with State assurance funds
to help them identify deficiencies over time and to work to
remedy deficiencies. The guidance is particularly relevant
given the financial pressures that many State funds are under, as
the number of claims outpaces the amount of funding available.
In addition, by issuing this guidance, we hope to foster
consistency between Regions in the monitoring of approved State
funds.
If the financial soundness of a State fund is so
questionable that it no longer is a viable financial
responsibility compliance mechanism, Regions may be required to
withdraw fund approval. This guidance will help describe those
circumstances under which fund approval must be withdrawn.
Withdrawal of EPA approval of a State fund means that the fund no
longer qualifies as a Federal financial responsibility compliance
mechanism. A State fund could continue to exist, however, as a
cleanup mechanism.
Previously-issued guidance (November 17, 1989) enabled
Regional staff to evaluate the appropriateness of State funds
submitted to EPA for approval as equivalent financial assurance
mechanisms. The 1989 guidance contained the following fund
evaluation criteria: funding source, amount of fund, coverage
provided, fund eligibility, and method of payment to tank owners
• and operators.
This guidance differs from the 1989 guidance in that it
focuses strictly on the availability of funds for corrective

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OSWER Directive 9650.14
action and third party claims. In addition, the guidance
provides an array of solvency measures which can be tailored to
each State fund. Applying these measures should not burden
Regional staff or States, but should provide Regions with an
oversight mechanism for identifying potential problems in
sufficient time to work with States to take appropriate steps to
address weaknesses. By providing step-by—step monitoring and
remedial measures, the guidance should provide a vehicle for
assuring the viability of funds. This guidance should also
provide States and the regulated community with information on
how they should assess their State funds.
Background
In promulgating financial responsibility requirements for
owners and operators of underground storage tanks (UST5), EPA
attempted to assure adequate and reliable financial assurance for
the costs of UST releases while als o allowing flexibility to the
regulated community. Accordingly, the financial responsibility
requirements permitted a wide array of compliance mechanisms,
including State assurance funds, insurance, risk retention group
coverage, financial tests of self insurance, guarantees, letters
of credit, surety bonds, fully-funded trust funds, and state-
required mechanisms (40 CFR Part 280.94). However, since the
financial responsibility regulations took effect on January 24,
1989, State assurance funds have become the most available and
lowest cost financial responsibility compliance mechanism for
tank owners and operators. For some segments of the regulated
community, State funds constitute the only feasible compliance
mechanism currently available.
To date, 43 States have passed legislation to establish
funds to assist tank owners and operators in complying with the
financial responsibility requirements. Although all of these
funds are designed to assist tank owners in meeting Federal
requirements, no two funds are identical. These funds vary in
the amounts and types of coverage they provide, in their-
eligibility requirements, in the amount of funding, funding
source, method of payment, and program implementation. Even the
responsibility for implementing the fund can vary; the agency
administering the fund could be the Department of Environment,
Commerce or Insurance. In a few States, all or part of the fund
implementation has been contracted out to private third party
administrators.
This diversity is expected since States are not required by
law or the financial responsibility rule to establish assurance
funds. Rather, States that have chosen to establish funds have
- done so to provide assistance to tank owners and operators in
complying with the Federal financial responsibility requirements,
cleaning up releases from tanks, and, in some cases, paying for
third party damages associated with releases from USTS.

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3 OSWER Directive 9650.14
As States have gained experience in the implementation of
funds, many have modified their programs, either by statute,
regulation, or operating procedures. Some have, streamlined
claims administration procedures, increased funding, limited
activities that the fund will pay for, or established reasonable
cost guidelines. In other cases, States have experienced an
unanticipated demand for reimbursement. State financial crises
have sometimes impacted funding and administrative resources, and
threaten to compromise the ability of those State funds to
consistently achieve their dedicated purpose.
There are currently no independent State agencies with
clear-cut responsibility for oversight of these assurance funds.
In general, when creating these funds, the States did not assign
responsibility for overseeing the soundness of these funds to
State entities similar to those that were created to regulate
insurance, sureties and other equivalent mechanisms that owners
and operators might use to satisfy financial responsibility
requirements. Even if a State agency does have an oversight
role, EPA has no control over how well that function is
exercised. While many assurance funds have Fund Boards or
Advisory Committees (composed of members of the regulated
community, officials from State Departments of Environment or
Insurance), these Boards main functions are to approve or
disapprove claims for reimbursements, and recommend changes to
fee structures.
EPA’s Role
In terms of assuring that a State fund is established on
sound financial footing, the financial responsibility regulations
establish a well—defined role for EPA. A State must submit its
fund to EPA for formal approval if the fund is to qualify as an
equivalent financial assurance mechanism for use by its UST
owners and operators in meeting the Federal financial
responsibility requirements in whole or in part (40 CFR Part
280.101). On November 17, 1989, EPA issued a document entitled
“Final Guidance for Reviewing State Funds for Financial
Responsibility” to help EPA reviewers understand what to look for
as they evaluate submissions of State funds as financial
assurance compliance mechanisms. The review of a State fund
includes the following elements: funding source, amount of fund,
coverage provided, fund eligibility, and method of payment to
tank owners and operators. In examining these elements of State
funds, reviewers were to ascertain that money would be reasonably
certain and available to pay for cleanup and third-party damages.
It should be emphasized that this solvency guidance doesn’t
replace the 1989 guidance with regard to the initial review and
approval of a submitted fund.
To date, 30 funds have been approved by EPA Regional
Administrators to serve as Federal financial responsibility

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4 OSWER Directive 9650.14
compliance r echartisms. Once approved, tank owners and operators
in these States are deemed to be in compliance with the financial
responsibility requirements for the types and amounts of coverage
provided by the State funds. In addition, seven funds have been
submitted to EPA Regional Administrators for approval. Owners
and operators in these seven States are also deemed to be in
compliance with the financial responsibility requirements until a
final determination is made by EPA. This guidance is only
intended to help monitor approved State funds, and is not
applicable to those funds that have only been submitted.
The 1989 guidance did not establish absolute levels of
funding as a prerequisite to approval, but instructed reviewers
to consider the amount in the State fund in terms of the overall
design of the State’s cleanup and enforcement program, as well as
the ability of the State to expend monies from the fund. This -
pragmatic approach recognized that a fund could be approvable if
adequate funds would be reasonably available over time, although
fluctuating demand could result in temporary periods when funding
might not be keeping pace with expenditures.
Once a fund is approved, neither the 1989 guidance nor the
financial responsibility regulations impose specific requirements
for continuing oversight of fund soundness, either on the State
or EPA. Nor do the approval guidance or the regulations set
forth criteria for revoking approval. The regulations contain
procedures for addressing the effect of bankruptcy, disability on
the part of a guarantor, and other situations where a provider of
financial assurance is unable to assure funding for corrective
action or third-party damages, but do not specify what should be
done when a State fund’s ability to provide assurance is
questionable. If, as EPA’s research indicates, financial
assurance funds do not receive the same oversight as insurance
companies, sureties, risk retention groups, or similar
enterprises, EPA needs to scrutinize the ability of a fund to
provide financial assurance that is equivalent to other approved
mechanisms. This guidance fills the need for explicit procedures
for EPA review of the on-going soundness of approved State funds.
Once a State has an approved UST program, EPA will continue
to monitor overall program performance, including the financial
soundness of State assurance funds, but only as it relates to the
overall stringency of the UST program as a whole. Therefore,
there will be no additional monitoring of the financial soundness
of funds above and beyond the routine oversight of approved State
programs. While use of this solvency guidance is not mandatory
in States with approved programs, or in States with submitted
funds, EPA recommends that these States voluntarily collect data
to assess fund soundness as part of routine fund management.

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5 OSWER Directive 9650.14
purpose of Guidance
This guidance is intended to provide staff in EPA Regional
UST programs with specific procedures for monitoring the
financial soundness of approved State assurance funds. The
purpose of the guidance is to ensure that each approved State
fund provides reasonable assurance that funds are available to
pay for the costs of corrective action and third party damages.
In satisfying this purpose, EPA will ensure that approved State
assurance funds provide financial assurance that is equivalent to
the other compliance mechanisms allowed by the Federal financial
responsibility regulations.
This guidance builds on the previously-issued guidance for
evaluating the overall viability of State funds. The additional
tools contained in this guidance should enable Regional staff to
assure that these funds continueto provide reasonable assurance
that monies will be available for corrective action and third
party claims. The guidance provides flexible measures which
should minimize the burden on Regional staff and on States, but
will provide a mechanism for identifying potential problems in
ample time to work with States to take appropriate steps. A
primary objective of this guidance is to provide a vehicle f or
improving the solvency of funds rather than necessitating drastic
action, such as withdrawing fund approval. In addition, we hope
that this guidance serves as a tool to help States identify fund
weaknesses and provides them with a framework for improving these
deficiencies. This guidance can also serve to bolster a fund
board’s recommendation f or a tax or fee increase.
Definition of Financial Soundness
The definition of financial soundness provided in this
guidance is built upon the functional definition of soundness
provided in the State fund approval guidance. A State assurance
fund is financially sound if it provides reasonable assurance
that funds are available to pay for the costs of corrective
action and third party damages. “Reasonable assurance” would be
evident, for instance, if the fund assets are greater than
liabilities or there are sufficient funds to meet current
demands, that is, the normal timing of payment of claims is not
significantly delaying cleanups. If funding levels or claim
processing time has a negative impact on the cleanup of releases
from USTs (i.e., causing undue delays in cleaning up releases
therefore harming human health and the environment), then EPA is
concerned about the financial soundness of the fund. The
reviewer should look for evidence that reasonable assurance is
provided, but other parties such as cleanup contractors, fund
administrators, other State officials, and tank owners and
operators should also have reason to believe that the funds are
reasonably available.

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6 OSWER Directive 9650.14
In the following section, this guidance will provide
Regional reviewers and States with indicators with which to track
and evaluate the viability and financial soundness of approved
State assurance funds. Finding the appropriate evidence and
correctly interpreting it is by no means a precise or mechanical
exercise. EPA has researched the approaches to oversight used by
well-established institutions, such as insurance commissions,
State and Federal bank regulators, and the U.S. Department of the
Treasury. While the experience of these institutions is too
specific to the businesses regulated for direct application to
UST fund guidance, their general approach is helpful. They allow
regulators considerable discretion in defining and evaluating
measures of soundness, and in acting on signals provided by these
measures. These institutions explain that oversight must be
conducted with great care and sensitivity because overzealous
intervention could have a profound impact on regulated
enterprises or on the public that relies on the enterprise.
Similarly, State assurance funds meet a critical need for
demonstrating financial assurance as well as providing another
source of funds for response to releases.
Measures of Fund Soundness
There are a number of potentially useful measures of the
financial soundness of State.assurance funds:
(a) Fund Balance
(b) Rate of Collection
(C) Rate of Disbursement
(d) Collections Projected for Next Reporting Period
(e) Disbursements Projected for Next Reporting Period
(f) Number or Dollar Amount of Pending Claims
(g) Number of Days Between Claim Submittal, Approval, and
Payment
(h) Major or Pending Changes to Fund
Each of these measures is discussed in more detail in
Appendix A.
In using a measure, a reviewer needs to clearly define the
time period over which the data is collected, whether calendar or
working days are intended, whether a term like “payment” means
issuance of a reimbursement check or transfer of approval to the
accounts payable department. The time frame, therefore, is
critical for comparison of measures.
We do not believe that any one measure will indicate
whether or not a fund is financially sound. Obtaining data on
all the measures is also not necessary to develop a reliable
picture of a fund’s soundness. Each Region should select from
among the measures those that the Region can obtain with relative
ease, that have inherent meaning for the fund under review, and

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7 OSWER Directive 9650.14
that provide a meaningful indicator over time. Combinations of
measures could be used, or certain measures or ratios could be
used to trigger analysis of other measures. As discussed
earlier, State funds exhibit great diversity in design and
implementation, and oversight should take into consideration the
unique characteristics of each fund. Regions will be accorded
broad discretion in selecting and applying measures. However,
since this area is a novel one for many Regional staff, EPA has
some suggested procedures that could be used.
Procedures
The following procedures present one logical approach to
using the measures to establish a monitoring methodology and
apply it over time. Even for those funds that are currently
experiencing financial difficulties, it is important that Regions
follow these procedures to establish a baseline of information
and to allow the State to discuss fund problems and, perhaps, to
begin to remedy the problems.
(1) Establish baseline measures. Begin by selecting the
most useful set of measures for the State. Since each State fund
will differ even from other funds in the Region, measures should
be tailored to each State fund on a state-by-state basis. As
noted above, each measure will need to be clearly defined.
Although a measure could have different meaning for different
States, the purpose is to establish a baseline for each State
fund, evaluate soundness at the start, and compare performance
based on uniform measures over time. When selecting measures,
Regions and States should also consider factors such as ease of
reporting by a State, whether the measures are stable or can be
expected to fluctuate dramatically, and whether a measure already
indicates a problem.
In developing this guidance other approaches were considered
and rejected. The Federal Reserve looks at banks as peer groups
based on common characteristics such as size and location. In
the case of State financial assurance funds, the small number of
States with approved funds and the diversity of these funds
undercut the ability to create meaningful peer groups.
(2) Estimate baselin, soundness. What do the baseline
measures tell you about current soundness? At this early stage
in measuring soundness, this determination cannot be conclusive.
Instead, discretion should be used to decide what indicators will
be most helpful. This guidance does not propose absolute
measures for determining soundness. The Federal Reserve and
other bank and insurance regulators designate absolute levels of
capitalization or liquidity as a measure of an institution’s
soundness. Without greater experience, we cannot accurately
determine what would be comparable benchmarks for State funds.

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8 OSWER Directive 9650.14
While absolute values are not available, some relationships
between measures should prove helpful. For example, if the
current rate of disbursement is several times larger than the
rate of contribution, a reviewer should examine other measures
and track these rates over time. If the dollar amount of the
pending claims is several times larger than the fund balance,
then the fund’s soundness could be compromised. Again, there may
be simple explanations for why these measures are not threatening
the fund’s soundness or delaying cleanups. The persistence of
measurement gaps over time, however, will provide a better
indication of the problem.
(3) Check for explanations for current status. EPA research
into the approaches to oversight taken by other financial
institutions shows that indicators are used as screens to
identify the need for action, but that early action usually means
further exploration of apparent problems. If a measure indicates
a potential problem, discussions with State staff would be
appropriate. There may, for example, be a simple explanation for
the problem. More importantly, these measures might not threaten
the fund’s soundness or delay cleanups. The persistence of a
measurement gap over time will provide a better indication of the
problem.
(4) Monitor trends over time. State funds are like bank
accounts that can fluctuate over time without threatening the
account’s stability or solvency. However, increasing disparities
between income and disbursements over time could indicate
underlying weakness. Similarly, the time interval between
submittal of an invoice for a cleanup action and payment could be
several months without affecting the willingness of contractors
or owners to undertake response to releases. If the interval is
increasing over time, delays might begin to impact cleanup and
should trigger the need to investigate other measures or factors
to determine the effect of payment delay on release response.
We recommend in this guidance that States which are
experiencing financial difficulties with their funds should
report data on each applicable measure to EPA Regions at the
frequency that the State currently generates such information,
but no less frequent than six month intervals. There is no
readily adaptable experience from other oversight programs for
setting response times. Banks report financial data quarterly,
but that frequency is consistent with other events that occur on
a quarterly basis in the financial community. Semi-annual
reporting is a compromise between setting an interval that does
not allow enough time to encompass important events (e.g.,
periodic replenishment of funding or average time periods for
administration of claims) and setting an interval that is too
long to catch serious erosion in soundness. This frequency also
will afford EPA greater opportunity to provide timely assistance
before more serious intervention becomes necessary.

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9 OSWER Directive 9650.14
(5) Use discretion. At this stage in the evolution of the
UST financial assurance program, there is no perfect guidance for
oversight. The measures provided and steps suggested are
imprecise instruments for monitoring soundness. At any step,
oversight should be tempered with discretion. Explanations
should be sought, discussions held, and assistance offered to
remedy problems. Despite any measure, the important criterion is
whether funds are reasonably available for cleanup and third
party claims. This determination will continue to require a
considerable amount of subjective judgement on the part of EPA
Regions.
EPA Regional ResPonse
This section elaborates on the steps described above by
focusing specifically on the Regional action required to
implement the monitoring process. The suggested process is
displayed in Appendix B.
After the State and Region have identified and defined the
key performance measures that will be used to monitor the
soundness of the State’s assurance fund, the State should report
those measures to the Region. Once the Region has received the
baseline data from the State and the Region has reviewed the
data, the Region should ask the State any questions it has
regarding the information. The Region can then make an initial
determination about the financial soundness of the fund.
If the Region is uncertain about what the financial measures
reported by the State indicate, the Region may consider asking
the State to do more in-depth analysis.
As a result of the initial assessment of fund soundness, the
Region may determine that the fund is basically sound. If this
is the case, the Region can determine how frequently the State
should provide information on the financial status of the fund.
Aa a rule, the Region should ask the State for a financial status
report during its semi-annual review of the program.
If, after the initial assessment of fund soundness, the
Region determines that the financial status of the fund is
questionable, data could be collected from the State more
frequently, as deemed necessary by the Region and the State.
When the next set of data is sent, the Region should review and
compare it to the prior data that was submitted by the State.
The Region should pay particular attention to any trends
indicated by the data. If the data show a negative trend, (e.g.
the amount of time to reimburse a claim increases), the Region
should verbally inform the State of its concern and ask the Stat 2
to explain why the time has increased. At this time, the Region
should also inform EPA Headquarters about its concerns. If cla :-
processing time is the problem, for example, perhaps the increa
in processing time resulted from the State assurance fund losir.:

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10 OSWER Directive 9650.14
key staff. The Region can then ask the State about its plans for
filling those fund positions and encourage the State to proceed
with plans to fill those positions. The Region should, of
course, continue to monitor the financial status of the fund.
If the downward trend persists, the Region should write a
formal letter to the State requesting a meeting to discuss EPA’s
concerns and possible remedies. The letter should be sent to the
State official who originally requested formal approval of the
fund. (The appropriate addressee may vary by State, and can be
left to the discretion of the Region.) At the meeting, the
Region should ask the State to develop a plan that addresses the
identified deficiencies and a schedule for implementing the plan.
It might be helpful to think of this step as analogous to
requiring a tank owner or operator to develop a compliance plan.
After receiving the plan, the Region should monitor the progress
of the plan’s implementation by the State. EPA Headquarters
should also be notified when the letter is sent, when the State
meeting is scheduled, and when the plan is submitted to the
Region.
If the State fails to implement the plan in a timely fashion
or if the implemented remedies haven’t resulted in any
improvements in the downward trend, and EPA makes a judgement
that the fund is no longer a viable financial responsibility
mechanism, the Region should write a formal letter to the head of
the Agency that is responsible for implementing the State fund.
In this letter, the State will be notified that EPA may withdraw
approval of the State fund, in which case, it can no longer be
used by tank owners and operators to comply with the Federal
financial responsibility requirements. The State will then be
required to send a notice to the tank owners and operators that
are covered by the State fund, informing them that their coverage
under the State fund will no longer be acceptable as a mechanism
for complying with the financial responsibility requirements as
of 60 days after receipt of the notice(40 CFR 280.105). Within
30 days after receipt of this notification, owners or operator
must obtain alternate financial assurance provided that the owner
or operator is required to comply with the financial
responsibility requirements. (40 CFR 280.110)]
It is our hope that both the tiered Regional Response
process that has been outlined and the reliance on monitoring and
evaluating trends over time will serve to alert States as early
as possible in the review process about potential fund
deficiencies. If appropriate, this communication will also put
stakeholders on notice that there is a problem with a fund and
that their involvement may be required to remedy the situation.
It is important to stress that EPA does not want to precipitate
crisis; EPA recognizes that solutions to identified weaknesses
will be State-specific and may require months or years to
implement. By alerting affected/interested parties of EPA’S

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11 OSWER Directive 9650.14
concerns regarding the financial soundness of funds, adequate
time will be given to discuss the reasons for the fund
weaknesses, identify possible remedies to improve the weaknesses,
and agree on appropriate and reasonable time frames for States to
implement remedies.
Possible Remedies
When establishing deadlines for remedial action, Regions
should acknowledge that some remedies may take varying amounts of
time to implement. When evaluating fund weaknesses and
negotiating possible solutions with States, Regions must consider
the amount of time necessary to implement the remedies. Possible
remedies might include:
o Raising additional revenues. This would help a fund
keep up with claim demand.
o Modifying the coverage provided by the fund. By
reducing the coverage that the fund provides to tank
owners the amount of funding required to pay claims in
a timely fashion might be reduced. In addition, by
reducing the coverage that the fund provides, existing
funding could be adequate to process claims in a timely
fashion.
o Streamlining the administrative processes of the fund.
This might help speed up the processing of claims.
o Hiring additional fund staff. This remedy could also
help speed up the processing of claims, or have other
positive effects depending on the weaknesses
identified.
o Limiting fund eligibility (e.g. requiring tank owners
and operators to be in “substantial compliance” with
State regulations.) This could also conserve fund
monies; fewer tank owners would be eligible to submit
claims to the State fund.
Implementation of these remedies may require statutory
changes which, depending on the length and timing of the
legislative sessions in States, may take up to two years to
implement. Other possible remedies would require program policy
changes that also might require a significant amount of time to
implement. Regions need to keep these timing issues in mind when
working with the State on remedies.
EPA Headquarters Response
During the collection of baseline information and throughout
the monitoring process, EPA Headquarters will be available to

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12 OSWER Directive 9650.14
informally discuss and evaluate the fund data at the request of
the Region. Headquarters can provide comments concerning the
evaluation of the fund data and will provide other technical
assistance necessary to help Regions implement the monitoring
process. For instance, if the Region is unable to evaluate the
measures provided by the State and believes that further analysis
is required, EPA Headquarters can provide support (technical,
financial, etc.) to the Region. At the request of the Region,
EPA Headquarters will also be available to provide written
comments on any formal letters that the Region sends to States
regarding the financial soundness of the fund. Finally, if the
Region has concerns about the financial soundness of the fund and
discusses those concerns with the State verbally, EPA
Headquarters should be notified. EPA Headquarters should also be
informed about the plan that a State develops to address the
identifi’ed deficiencies and the schedule for implementing the
plan.
If a Region determines that fund approval must be withdrawn,
Headquarters must be consulted and must concur on the Regions
withdrawal determination for a number of reasons. First, EPA
Headquarters has an obligation to ensure National consistency and
uniformity in fund withdrawal decisions. Headquarter’s
involvement at this time will also lend support to the withdrawal
action.

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OSWER Directive 9650.14
APPENDIX A
PROPOSED DEFINITIONS OF MEASURES OF
SOUNDNESS FOR STATE FUNDS
Fund Balance
There are several potential measures of fund balance. The least conservative is the cash-basis
definition: the fund balance is defined as the amount of cash currently in the state fund (or in the
account maintained by the state treasurer for the fund), minus any outstanding checks for
reimbursement under the fund. Under this definition, the fund balance would exclude as-yet
unprocessed claims against the fund or any recognition of future claims likely to be submitted for
known releases.
Fund Balance = Cash in Fund - Claims Processed
A slightly more conservative definition would require the region or state to acknowledge
claims received against the fund but not yet processed. Using this definition, the state would start
with the cash in the fund and subtract the sum of all claims submitted for reimbursement by owners
and operators, including those not yet processed.
Fund Balance = Cash in Fund - All Claims Received (Processed + not yet Processed)
The most conservative definition would adopt modified accrual standards typically required
under government accounting standards, in which liabilities are recognized as soon as they can be
reasonably measured, but income is not recognized until received. Under this definition, the state
would estimate the total potential liability associated with all known releases and subtract it from the
amount of cash currently in the fund. Because most state funds have adopted some version of a pay-
as-you-go system, in which revenues are set to correspond with anticipated cash payments for
corrective action and third-party liability expenses, this definition would likely show most funds in a
deficit position, even though future revenues to the fund would increase the cash available for
payment of these future claims.
Fund Balance = Cash in Fund - All Potential Liabilities
The above three measures for determining the size of the fund balance reflect different
management philosophies. For most funds, the second definition of the fund balance would be
adequate. When using the fund balance in conjunction with other measures, however, the least
conservative measure may be selected as the most appropriate measure to use. If the fund balance
decreases dramatically, some states and regions may opt to change to a more conservative definition
of the fund balance. The three choices outlined in the fund balance definition give the states and
regions more measurement flexibility. ft is important to note, however, that changes in fund balance
cannot be compared with earlier fund balance estimates if different definitions were used. EPA hopes
that regions and states will work together in selecting a fund balance measure that meets the specific
needs of both parties.

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OSWER Directive 9650.
Rats of Co .CtIOl
The rate of collection is the amount of money collected for use by the fund over a specified
period. The period should correspond to the fee collection mechanism. For example, many funds
collect annual tank fees; consequently, the appropriate period is one year, corresponding to payments
of the fees. Other funds, especially those funded through per.gallon fees on petroleum products, may
have more frequent requirements for payments (e.g., monthly or quarterly), and thus allow for a
shorter period for estimating the rate of collection. For the purpose of tracking fund solvency, the
rate of collection on a semi-annual (six month) basis probably provides a reasonable balance between
the information collection burden and the amount of information obtained.
Rate of Collection = Amount of Money Collected I Reporting Period
The rate of collection can be used in at least two ways. First, decreasing trends in the rate of
collection may indicate that tanks are being taken Out of operation, reducing the amount of revenue
available to the fund because closed tanks do not pay fees. In comparing period-to-period collections,
however, it may be important to consider any significant seasonal patterns. For example, gasoline
sales are generally higher in the summer, so that fund revenues may show a decrease from summer to
winter months.
Second, the rate of collection should be compared to the rate of disbursement as a means of
anticipating potential future shortfalls in the fund. If the rate of collection exceeds the rate of
disbursement, then fund balances will increase over time and the fund will become increasingly more
solvent. If the rate of collection is less than the rate of disbursement, then fund balances will
decrease and the fund will become less solvent.
Rate of Disbursement
The rate of disbursement is the amount of money spent by the fund (in actual payments) over
a set time period. As discussed wider rate of collection, the appropriate time period may vary
between states depending on their different fiscal cycles. In general, disbursements per period should
provide a time period long enough to smooth out the effects of single, large disbursements, but short
enough to provide timely identification of significant increases or decreases in the rate of
disbursements. The period used for rate of disbursement should correspond to the period used for the
rate of collection.
Rate of Disbursement = Actual Payments / Reporting Period
Collections Prc ected for Next Reporting Peilod
Collections projected for the next reporting period is the state’s estimate of the dollar amount
of funds that will be collected for use by the fund at any time during the next state fund solvency
reporting period. This measure is similar to the rate of collection, but, rather than calculating current
collections over time, the measure projects total collections over a future time period. The measure is
intended to estimate additions to the fund for use in paying existing and projected future claims
against the fund, and should not be confused with fund balance. The state must rely on its judgement
in estimating future collections. The state should make a reasonable judgement of funds that it
believes will be available for disbursement to pay claims made against the fund, rather than either a
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CSWER DLrectjve 9650.14
liberal or conservative estimate. . The estimate should account for other relevant information, such ai
past rates of collection and major or pending changes to the fund.
Collections Projected = Estimated Amount of Money to be Collected in a Reporting Period
As in the case of the race of collection, the reporting period should be as short as possible
subject to constraints imposed by the fee collection mechanism. In many states, frnancial information
is commonly reported on a quarterly basis for fiscal purposes, consequently, quarterly projections
should provide reasonably accurate data without unduly burdening the state. Semi.annual reporting
would also be appropriate if no appreciable collections would be received in some quarters, the
estimate would be misleading or unreliable, or rates of collections are fairly constant.
The projection of collections, while speculative, may be used as an early indicator of potential
solvency problems. First, the projection of collections may be compared with the projection of
disbursements as a means of drawwg attention to potential future shortfalls in the fund. Second, the
projections of collections and disbursements could be combined with the backlog and fund balance to
determine whether the current backlog will grow or contract.
Disbursements Projected for Next Reporthig Penod
Disbursements projected for the next reporting period is the state’s estimate of the dollar
amount of anticipated disbursements from the fund to pay claims for the next hill reporting period.
En projecting disbursements, the state should make a reasonable estimate of the costs of claims it
expects will be submitted and require payment during the reporting period. This measure of
disbursements projected from the fund will be compared with the measure of collections projected
into the fund in order to establish an early indicator of potential problems with fund solvency.
Consequently, when developing estimates for disbursements projected and collections projected, the
assumptions and reporting period used should be consistent (e.g., if the state has a six month
reporting period and is accounting for a pending change to the fund when determining collections
projected, it must also have a six month reporting period for the disbursements projected and account
for the same pending change in the fund). Although projecting disbursements requires speculation by
the state, the projection should account for past patterns of claims received and the current numb of
claims flied but not paid, and reflect pending or major changes to the fund that are likely to affeet
disbursements.
Disbursements Projected = Estimated Dollar Amount of Disbursements to be Paid in a
Reporting Period
Number or Dola, Amount of P.rdng Claims
The number of pending claims is defined as the total number of claims against the fund that
have been received but that have not been approved for payment at the close of the reporting period.
Similarly, the dollar amount of pending claims is the dollar amount of received claims that have not
been approved for payment at the close of the reporting period. These measures are intended to
provide the state and region with a firm estimate of claims against the fund that are likely to be
realized as disbursements at a later date, even though processing is not complete.
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OSWER Directive 9650.1 ”
Number of Pending Claims = Number of Claims Received but not yet Processed
or
Dollar Amount of Pending Claims = Dollar Amount of Claims Received but not yet Processed
The region may request that the state report either the number or the doUar amount of
pending claims in order to track a rise or fall in either measure over time. The state or region might
find that the dollar amount of pending claims is a more direct indicator of the fund’s future liabilities
than number of claims, because it can be compared to the fund balance and rate of collection to
provide a measure of solvency. In contrast, collecting data on the numbers of claims permits
observation of the trend in claims without bias introduced by individual large claims.
Number of Days Between aaim Submittal, Approval, and Payment
The number of days to process claims is only a partial indicator of fund solvency. Even a
relatively long period for processing may not indicate solvency problems, as long as owners and
operators and corrective action contractors continue to clean up sites. An increasing period, however,
may indicate that the state fund has inadequate staff or administrative procedures to process claims on
a consistent schedule. A decreasing period probably reflects reduced demands on the fund, or
improved administrative procedures.
Measure = Number of Days between First Receipt and Payment
or
Measure = Number of Days between Receipt of Complete Package and Payment
The start date for each part of the approval process must be clearly defined. In some cases,
there may be a significant lag (up to several months) between the time a claim is first submitted and
the time the owner and operator finally supplies all necessary information (for example, complete
invoices, documentation of types of costs covered by the invoices). As a consistent measure, the first
date the claim is submitted is probably best. A lengthy period may suggest that states need to
streamline their guidance for claims and/or improve their outreach to consultants and contractors so
that they know what must be submitted. In addition, the date used as the date of approval may vary
between funds. In some states, the technical staff reviewing claims have the authority to approve
payment, based on their review. In other states, an independent board or agency must ratify the
decisions of the technical staff. The appropriate date is the date that all necessary approvals and
reviews have been met. The date of payment should be the date the check is written by the state
treasury to the owner or operator (or cleanup contractor in states that allow direct payment).
Significant lengths of time between approval and payment may indicate that disbursements are held up
to prevent overdrawing accounts.
Major or Pen ng Chang.s to the Fimd
Major or pending changes to the fund could be either economic or administrative, positive or
negative. Impending negative impacts could include legislative expansion of fund coverage to include
a larger universe of tanks or facilities without additional funding. Regulatory amendments that either
lowered or raised the costs of corrective action are respective examples of potentially positive or
negative impacts. Direct effects on staffing levels or productivity, such as hiring freezes, would be
included here. Finally, the most obvious major change to be considered would be one that will likely
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OSWER Directive 965O.: .
have a direct effect on a fund’s finances, for example, the reportuig of an extraordinarily large
release.
Besides the measures listed above, another important factor in assessing the financial
soundness of a fund is gauging the degree to which cleanups are being delayed due to fund-related
issues. One approach to getting such qualitative information is to monitor the complaints made by the
regulated community and/or cleanup contractors to the state or EPA about the cleanup delays that are
being caused by slow fund payments. There may also be other ways to obtain this information.
Obviously, the reasons for delays in fund payments may not always be financial. For instance, the
delays could be caused by lack of staff to process claims. Reviewers should use complaints as a
starting point for further analysis rather than as a financial determination of a fund’s financial
condition.
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OSWER Directive 9650.1.4
Illustrative Representations of Trends in
Measures of Soundness for State Funds
Fund Balance
Number of Days Between
Submittal and Payment
C l )
— ._._._. — •
Nurnberor Dollar Amount of
Pending Claims
> . Collections Projected
— . —
Disbursements Projected
Rate of COOCIIOn
Rat. of Disbursement
Period

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OSWER Directive 9650.14
APPENDIX B
ILLUSTRATIVE PROCESS FOR MONITORING STATE FUND SOLVENCY
Gob 2
Gob 12

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O S) 4 .
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
_____ WASHINGTON, D.C. 20460
t PQOItC
t Jr: I IT1qS
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
MEMO RAN DUN
SUBJECT: Final Guidance for Reviewing State Funds for
Financial Responsibility
FROM: Ron Brand
Director
Office of Underground Storage Tanks
TO: UST Regional Program Managers, Regions I-X
Attached are final guidance documents for your use in
reviewing State funds for financial responsibility. As a
result of comments at the Seattle RPMs meeting, we developed
two separate documents to assist in the review process:
“Phase 1 -- Helping Owners and Operators Comply with
the Federal Requirements”
“Phase 2 -- Meeting the State Program Approval Objective”
In response to your comments and those of the Office of
General Counsel, substantive changes have been made to the
“Coverage” section. In particular, a new subsection titled
“Methods of Payment” has been added, and the discussion of
reimbursement funds has been clarified. I believe the changes
were necessary to better communicate what we are looking for
in approvable fund designs. In addition, a new section has
been added regarding “sunset” provisions.
I urge you to share these documents with your Office of
Regional Counsel, since they play a key role in the State fund
review process. If they have questions that you need assistance
in answering, please let us know.
Since this issue is high on the list of many States’
concerns, and it remains a somewhat complex topic, we plan
to offer “training” for the Regions on using the guidance
to review your State funds. As a first step, we will have a
conference call during the last week of November. to respond
to questions that you may have on the guidance, and to discuss
training needs. Dave Hamnett will be contacting you shortly
regarding arrangements.
UST/FR/C/89-1

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2
I want to thar k all of those who contributed their efforts
over the past few months to these final guidance documents.
While it has taken some time to get to this stage, I feel
confident that the guidance now reflects decisions that we and
the States can all live with. As you proceed wi th your reviews
of State funds, now and in the future, please do not hesitate
to contact OUST if we can assist you in any way.
Attachments
CC: Earl Salo, OGC
Kirsten Engel, 0CC
Jim McCormick
Joe Retzer

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REVIEWING STATE FUNDS FOR FINANCIAL RESPONSIBILITY
Phase 1 —— Helping Owners and Operators Comply with
the Federal Requirements
States are now submitting assurance funds and other
mechanisms for EPA’s review and approval. This document will
help EPA reviewers understand what to look for as they evaluate
these submissions of State funds as financial assurance
mechanisms . It will also serve as a guide as you review and
comment on State funds as they are being developed.
Keep in mind that the submission of funds to EPA is totally
at the State’s discretion. However, a State must submit its
fund to EPA if it wants formal approval of the fund as an
alternative financial assurance mechanism for use by its UST
owners and operators, to assist them in meeting the Federal
financial responsibility requirements. States are particularly
interested in assisting owners and operators who must comply with
the Federal requirements by October 1989, April 1990, and October
1990.
I. Basic Purpose of Financial Responsibility
The basic purpose of financial responsibility is simply to
establish reasonable assurance that someone has the funds to pay
for the costs of corrective action and third-party liability
resulting from an UST release. This means that someone (or
combination of persons) is ready to pay from the “first dollar”
of costs incurred up to the maximum amount required by the
Federal regulations.
II. Identifying the Specific Pu ose of EPA’S Review
EPA staff may be asked to review a State fund for three
different reasons.
1. The St.ate may be looking for general advice and comment
on its proposed program to provide money to assist in
cleanup.
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2. The State may be seeking an official decision that tank
owners and operators in the State may use the Fund as a
mechanism for complying with the Federal financial
responsibility requirements. (Section 280. 101)
3. The State may be seeking EPA approval to operate a
State UST program in lieu of the Federal program. In
this event the State fund may be part of the State’s
financial responsibility package that will be examined
by the Regional Office to determine if it is no less
stringent than the Federal requirements. (Section
281.37) This option is discussed in detail in the
companion document “Phase 2 -- Meeting the State
Program Approval Objective.”
If the State is looking for general advice on its proposed
fund (described in 1, above) there are no formal review criteria.
However, the EPA reviewer should ask the State if it intends to
allow the fund to be used by its owners and operators to comply-
with the Federal financial responsibility requirements (described
in 2, above). If the State intends to use its fund for this
purpose, you should include the elements of review outlined in
this document as part of your comments so the State can make the
appropriate modifications during the development phase of its
fund.
EPA’s review of State funds as a financial assurance
mechanism will take place only where EPA is administering the
financial responsibility requirements during the transition
period before State Program Approval , and only when requested by
the State. -
III. Four Main Elements of State Fund Review
EPA’S review of State funds as financial assurance
mechanisms includes four main elements:
o Funding Source
o Amount of Fund
o Coverage Provided
o Eligibility for Use of the Fund
A. Funding Source
To assure that funds will be available to pay for c1eanup
and third-party damages, money must be reasonably certain and
available . The State fund may need to rely on a definite funding
source (e.g., tank fees) to make sure that funds will be
available to owners and operators. A State fund that relies only
on yearly appropriations out of general revenues from its
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legislature would not adequately assure that funds would be
certain and available. The Federal LUST Trust Fund may not be
relied on for this purpose either.
Many different sources can be used to finance a State fund,
such as petroleum taxes, licensing or tank fees, bond issues, and
risk-based premiums. The funding sources can be used alone or in
combination.
The State fund need not be reserved for use solely on
underground storage tanks. For example, it may include monies to
respond to above ground tank releases or surface spills, as long
as adequate amounts are available for UST releases.
B. Amount of Fund
There is no magic number for approving the amount of the
fund. Instead, think of the fund as a “bank account” with money
being “deposited” and money being “spent” as it is needed. The
goal here is to reasonably assure that the projected flow of
revenues into the fund is sufficient to keep pace with the
anticipated rate of expenditures from the fund.
An exact amount is not given here because the demand for
funds will fluctuate over time. When reviewing this feature of a
State fund, remember that not all leaks will be discovered at the
same time and, more importantly, not all corrective actions (at
all sites) can be performed at the same time. Furthermore, some
State fund programs are designed to first look to the owner or
operator to undertake and pay for corrective action and third
party claims. Where the owner or operator is unable or unwilling
to do so, the State will usually have to assign priorities to
such sites for responses using its fund. Factors such as the
number of State staff, procurement practices, and contractor
availability will affect how quickly these sites can be
addressed. Thus, the amount of the State fund should reflect the
overall design of the State’s cleanup and enforcement program, as
well as the ability of the State to expend monies from the fund.
A State may want to consider various approaches’ hat may be
helpful in dealing with the uncertainty of expenditures described
above. For example, a triggering provision could allow the
funding source to be activated once the level of the fund has
reached some bottom limit and, likewise, be deactivated when the
level of the fund has reached an upper limit. A State may also
want to think about adding a provision to trigger additional
collection of funds when a State expects that a large release
will be a significant drain on the State fund. Another provision
that a State may want to consider, if it uses fees to support its
fund, is to allow for a modification of the fee structure.
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C. Coverage Provided
State funds can be developed to prc vide either full or
partial coverage to help owners and operators meet the Federal
financial responsibility requirements.
1. Full Coverage
A full coverage fund enables owners and operators to meet
the entire Federal financial responsibility reauirement (Section
280.93) by relying exclusively on the State fund for coverage.
A full coverage fund assures that for all owners and operators in
the State money will be available to pay for corrective action
and third—party liability costs in the amounts required by the
Federal regulation, as follows:
Per occurrence requirements:
o $500,000 per occurrence for non-marketers
who pump 10,000 gallons or less each month; and
o $1 million per occurrence for everyone else.
Aggregate requirements:
o $1 million aggregate for those with 100 tanks or less;
o $2 million aggregate for those with more than 100 tanks.
The State fund does not necessarily need to prescribe
specified limits of coverage. Limits in a State fund set maximum
coverage amounts that the State fund will provide to an
owner/operator for single or multiple releases occurring in a
year. Without such limits, the State fund is able to cover an
owner/operator for all releases in a year. On the other hand, if
the State wishes to limit the coverage that it will provide for a
particular release or to an individual owner/operator in any
given year, it may choose to establish per occurrence or
aggregate limits of coverage. However, the limits must be no
less than the Federal limits above.
First Dollar Coverage
A State fund can be considered a full coverage fund even if
it has a deductible amount that the owner or operator is
responsible for paying, as long as it provides for “ first dollar
coverage ” by the State. First dollar coverage simply means that
if owners and operators do not meet the deductible requirement,
the State can still pay for corrective action and third party_
claims, including the deductible amount, by using its fund. In
this instance, the State may want to consider pursuing cost
recovery against the owner or operator for the deductible amount,
although this would be at the State’s discretion.
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2. artia1 Coverag
A State fund may be pproved as providing o i1y partial
coverage if:
o Coverage will be provided for only a portion of the
dollar amounts or types of coverage (corrective action
and third-party iiability) required by the Federal
financial responsibility regulations; or
o Coverage will b provided for only some owners or
operators in the State. (See the “eligibility” section
below for addit nal discussion of this choice.)
For the amounts that the State fund does not assure, or for
owners and operators not covered by the fund, owners and
operators are required to demonstrate financial responsibility by
securing some other mechanism (such as insurance, financial test
of self—insurance, letter of credit, surety bond, and guarantee)
to “fill the gaps” in the State-provided coverage.
For example, a partial coverage fund might only cover from
$10,000 to $1 million in corrective action costs. Owners and
operators would need to find another mechanism to demonstrate
coverage for the $10,000 deductible for corrective action (unless
the State fund provides “ 7 irst dollar coverage” as described
above). In this example, owners and operators must also
demonstrate, through another assurance mechanism, coverage of
third-party liability costs.
To help owners and perators comply with deductible
requirements, EPA is a1l wing States to establish their own
financial test of self u,surance for deductible amounts. The
Federal test of self—insurance (either $10 million or $20 million
net worth) is inappropriate when insuring for deductible amounts,
which are often in the $5000 to $50,000 range. In establishing
their test, States may want to consider requiring that the
owner’s or operator’s minimum net worth be a specific multiple of
the deductible amount.
3. Methods of Payment
Under any State func the State must provide reasonable
assurance that it will p full or partial coverage of cleanup
and third party liabilit costs of an eligible owner or operator.
The State can make this - ;surance in several ways. First, the
State may undertake c&- - - ei-tive action at the site and pay for
cleanup and third ocr - -its directly. EPA expects that most
States will do so ;r .y the owner or operator is unable or
unwilling to pay the: ‘ ‘ zs.
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More frequently, State funds are designed assuming that a
responsible party (RP) — lead cleanup will occur, either
voluntarily or pursuant to a State administrative or judicial
order. Acceptable methods of payment under this fund design
include, but are not limited to:
o direct payment to a RP’s contractor
o direct payment to a RP based on invoices received from
his contractor
o joint payment to a RP and his contractor
These payments typically take place periodically as work
progresses, based on invoices received (“costs—incurred” basis).
In addition, these same methods of payment are acceptable for
satisfying third party claims, settlements, and judgements.
In the situatioris above, the owner or operator takes the
lead on the cleanup and handling third party claims, but once he
has paid the deductible, the State fund becomes the source of
payment, thus providing financial assurance.
4.”Assurance” Provided by Reimbursement Funds
Some State funds, however, operate primarily as
reimbursement funds, paying out costs only after the owner or
operator has paid for the cleanup and/or any third party
liability claims. The owner or operator then applies to the
State for reimbursement of these costs, supported by proof that
he has already paid them. With this fund design, EPA is
concerned that where an owner or operator lacks the funding to
pay for the cleanup or satisfy third party claims (despite the
promise of reimbursement), the site will remain unaddressed.
Therefore, a reimbursement-only fund (even one that provides for
interim reimbursements) is n , by itself, approvable. It must
also be structured to provide State payment (as described in
“Methods of Payment”) of the costs it purports to cover in the
event that the owner or operator is incapable of, or unwilling
to, cover these costs prior to being reimbursed.
Specifically, if the State intends to provide full coverage ,
the fund must be structured to provide payment of costs by the
State from the “first dollar” of cleanup costs incurred. If the
State intends to provide Dartial coverage (e.g., above a
deductible amount), the fund must be structured to provide
payment of costs by the State after the owner or operator has
satisfied the deductible. For example, a State fund that assures
all owners and operators within the State that it wi-li reimburse
all corrective action costs above $10,000 is approvabie (as a
partial coverage mechanism) but only if it also provides for
State payment (as described in “Methods of Payment”) of the costs
above $10,000 should the owner or operator be unable or unwilling
to pay them prior to reimbursement.
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The exact nature of the State statutory or administrative
provisions governing the fund necessary to demonstrate the
State’s commitment to pay these costs should be carefully
evaluated by the Region on a State—by-State basis. The approach
and language employed by States to demonstrate their commitment
need not be uniform, and may vary between States. In particular,
some State funds that use the term “reimbursement” are designed
to be implemented using one of the acceptable payment methods
described previously, and thus, could be approvable. The Region
must determine whether the provisions of the fund are legally
sufficient to satisfy EPA’s policy objectives and must, as with
other issues involved in approving State funds, be reviewed by
the Office of Regional Counsel.
D. Eligibility for Use of the Fund
State funds can provide either unlimited or limited
eligibility for use of the funds.
1. Unlimited Eligibility
State funds that cover all owners and operators in the State
would have unlimited eligibility.
Some States have designed their funds to require that owners
and operators pay a yearly tank fee in order to be eligible for
fund coverage. We do not view a fee requirement as limiting
eligibility because this provision is open to all owners and
operators in the State and, in most cases, they are required to
pay these fees.
2. Limited Eligibility
A State could set “entrance” requirements that limit the
eligibility of owners and operators to use the fund. For
example, a State may require that owners or operators perform a
tank tightness test before being eligible for coverage by the
fund. If States limit the eligibility of owners and operators to
use State funds, the State should advise these owner and
operators in advance that they are not eligible, and thus, must
use other mechanisms to meet their financial responsibilities.
3. NOTE : A Caution About Post-Release
Eligibility Determinations
To provide incentives for owners and operators to engage in
good tank management practices, many States limit their fund
coverage by using “substantial compliance” or other clauses.
These provisions often limit eligibility to owners and operators
7

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who are in “substantial compliance” with the technical
requirements of the Federal and State UST regulations at the time
of the release . After the release occurs, the State evaluates
eligibility for fund coverage. This provision may be considered
similar to private insurance, where UST owners and operators are
required to comply with certain terms and conditions of the
policy. Otherwise, the insurance company may elect to deny
coverage after a leak occurs.
Our concern with this approach is that owners and operators
who are out of compliance with some aspect of the UST regulations
may believe they were covered by a State fund, only to find out
at the time of the release that they were no longer eligible for
coverage. In this situation, the State fund would not provide
money for cleaning up the release, and it is highly unlikely that
owners and operators would have obtained separate assurance
mechanisms. We have concluded, however, that the same situation
may occur with private insurance and, thus, States should not be
precluded from having similar provisions.
EPA reviewers of State funds with these provisions should
recommend to the State that eligibility criteria, particularly
those which are evaluated after a release occurs, be as specific
as possible so that owners and operators know ahead of time what
they are expected to do to qualify for coverage. In addition,
EPA reviewers should strongly urge the State not to bar itself
from using the fund to respond to releases, even if questions
about eligibility arise. The State should allow itself access to
the fund in such circumstances, perhaps followed by cost
recovery. This approach assures that money would be available,
if needed, to clean up the release.
E. “ Sunset” Provisions in State Funds
State funds may provide for the expiration of the fund (or
revenue mechanism) at a designated time in the future. While
many States may choose to reauthorize their funds to continue
after this time, there is no guarantee of this occurring.
Therefore, we recommend that approval of funds with “sunset”
provisions be limited to the time for which the fund”is currently
authorized, or until it ceases to provide the required levels of
coverage.
Regions should consider using the following language in
approving funds that contain sunset provisions:
“Approval of this Fund is effective until such time as the
funding mechanism expires, unless the State solicits and
receives written authorization by the U.S. EPA that the Fund
balance is sufficient to provide continued coverage in the
amounts provided in the legislation.”
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In addition, at least sixty days prior to the termination of
fund coverage, the State must notify all covered owners and
operators that coverage is terminating, and advise them that they
must obtain other mechanisms to satisfy their financial
responsibility obligation.
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APPENDIX
What the Rule Says (40 CFR Part 280.101)
Owners and operators can satisfy the Federal financial
responsibility requirements if their State assures a State fund
or other assurance mechanism exists to cover the corrective
action and/or third-party liability costs established in the
Federal regulations.
A State’s fund or other assurance mechanism must be reviewed by
the Regional Administrator only if EPA is administering the
financial responsibility requirements (i.e., during the
transition period before State Program Approval) n4 the State
requests such review. In this case, the Regional Administrator
must review the submitted mechanism to make sure that it:
o Assures the availability of funds for taking
corrective action and/or for compensating third parties;
o Establishes the amount of funds that will be made
available; and
o Identifies the types of costs covered.
The State must submit to the Regional Administrator a description
of the assurance mechanism and a list of the classes of UST5 to
which it applies.
The rule contains no deadline for review of a State’s fund by the
Regional Administrator. Pending EPA’s determination, owners and
operators are automatically considered to be in compliance with
the financial responsibility requirements for the amounts and
types of costs covered by the State fund.
Within 60 days after the Regional Administrator notifies a State
that its assurance mechanism is acceptable, the State must
provide each owner or operator for which it is assuming financial
responsibility with notification that indicates:
o The facility’s name and address; and
o The amount of funds assured by the State for corrective
action and/or third—party liability.
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NOTE : The purpose of the notification requirement is to ensure
that owners and operators understand what they are required to do
to comply with the financial responsibility regulations. It is
especially important for owners and operators to know what
coverage the State fund will provide and what coverage the owner
or operator must obtain by securing another mechanism (e.g.,
insurance policy, State test of self-insurance, etc.). The
State may decide the appropriate way to notify owners and
operators of the amount of funds assured by the State for
corrective action and/or third-party liability.
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REVIEWING STATE FUNDS FOR FINANCIAL RESPONSIBILITY
Phase 2 -— Meeting the State Program Approval Objective
Many States are now developing comprehensive UST programs
which they intend to submit to EPA for State Program Approval .
If the State’s UST program meets EPA’S published “Objectives” for
approval, its program may be approved to operate in lieu of the
Federal program. Some States intend to submit assurance funds
and other mechanisms for EPA’s review and approval as part of
this process, to satisfy the financial responsibility objective.
This document will help EPA reviewers understand what to look for
as they evaluate these submissions of State funds as part of
State Program Approval . It will also serve as a guide as you
review and comment on State funds as they are being developed.
Keep in mind that the submission of funds to EPA is totally
at the State’s discretion. However, a State must submit its
fund to EPA if it is using the fund to satisfy the financial
responsibility objective as part of the State Program Approval
process.
I. Basic Purpose of Financial Responsibility
The basic purpose of financial responsibility is simply to
establish reasonable assurance that someone has the funds to pay
for the costs of corrective action and third-party liability
resulting from an UST release. This means that someone (or
combination of persons) is ready to pay from the “first dollar”
of costs incurred up to the maximum amount required by the
Federal regulations.
II. Identifying the Specific Purpose of EPA’s Review
EPA staff may be asked to review a State fund for three
different reasons;
1. The State may be looking for general advice and comment
on its proposed program to provide money to assist in
cleanup.
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2. The State may be seeking an offic 4 al decision that tank
owners and operators in the State may use the Fund as a
mechanism for complying with the lederal financial
responsibility requirements. (Section 280.101) This
option is discussed in detail in the companion document
“Phase 1 -- Helping Owners and Operators Comply with
the Federal Requirements.”
3. The State may be seeking EPA approval to operate a
State UST program in lieu of the Federal program. In
this event the State fund may be part of the State’s
financial responsibility package that will be examined
by the Regional Office to determine if it is no less
stringent than the Federal requirements. (Section
281. 37)
If the State is-looking for general advice on its proposed
fund (described in 1, above) there are no formal review criteria.
However, the EPA reviewer should ask the State if it intends to
submit it as part of the State Program Approval package to
meet all or part of the financial responsibility oblective
(described in 3, above). If the State intends to use its fund for
this purpose, you should include the elements of review outlined
in this document as part of your comments so the State can make
the appropriate modifications during the development phase of its
fund.
If the review is part of State Proaram A roval the State
fund must satisfy the Federal financial responsibility obiective
(Section 281.37). When used for this purpose, the fund must
provide coverage to all owners or operators in the full amount
required by the Federal objective, or the State law or
regulations must require owners or operators to supplement the
coverage provided by the fund with another acceptable financial
assurance mechanism (see discussion of Partial Coverage, below).
Remember that States do not necessarily need a fund to meet
the federal objective for financial responsibility. Statutory or
regulatory provisions that contain the federal coverage
requirements are sufficient for State Program Approval , ,. without
use of a fund. In this situation, EPA does review and
approve the State’s fund. Instead, it is up to the State to
determine what mechanisms it will allow owners and operators to
use to satisfy the State’s financial responsibility requirements,
and to oversee compliance.
2

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III. Four Main Elements of State Fund Review
EPA’s review of State funds as part of State Proaram
Approval includes four main elements:
o Funding Source
o Amount of Fund
o Coverage Provided
o Eligibility for Use of the Fund
A. Funding Source
To assure that funds will be available to pay for cleanup
and third-party damages, money must be reasonably certain and
available . The State fund may need to rely on a definite funding
source (e.g., tank fees) to make sure that funds will be
available to owners and operators. A State fund that relies only
on yearly appropriations out of general revenues from its
legislature would i: adequately assure that funds would be
certain and available. The Federal LUST Trust Fund may not be
relied on for this purpose either.
Many different sources can be used to finance a State fund,
such as petroleum taxes, licensing or tank fees, bond issues, and
risk-based premiums. The funding sources can be used alone or in
combination.
The State fund need not be reserved for use solely on
underground storage tanks. For example, it may include monies to
respond to above ground tank releases or surface spills, as long
as adequate amounts are available for UST releases.
B. Amount of Fund
There is no magic number for approving the amount of the
fund. Instead, think of the fund as a “bank account” with money
being “deposited” and money being “spent” as it is needed. The
goal here is to reasonably assure that the projected flow of
revenues into the fund is sufficient to keep pace with the
anticipated rate of expenditures from the fund.
An exact amount is not given here because the demand for
funds will fluctuate over time. When reviewing this feature of a
State fund, remember that not all leaks will be discovered at the
same time and, more importantly, not all corrective actions (at
all sites) can be performed at the same time. Furthermore, some
State fund programs are designed to first look to the owner o
operator to undertake and pay for corrective action and third
party claims. Where the owner or operator i unable or unwilling
to do so, the State will usually have to assign priorities to
such sites for responses using its fund. Factors such as the
3

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number of State staff, procurement practices, and contractor
availability will affect how quickly these sites can be
addressed. Thus, the amount of the State fund should reflect the
overall design of the State’s cleanup and enforcement program, as
well as the ability of the State to expend monies from the fund.
A State may want to consider various approaches that may be
helpful in dealing with the uncertainty of expenditures described
above. For example, a triggering provision could allow the
funding source to be activated once the level of the fund has
reached some bottom limit and, likewise, be deactivated when the
level of the fund has reached an upper limit. A State may also
want to think about adding a provision to trigger additional
collection of funds when a State expects that a large release
will be a significant drain on the State fund. Another provision
that a State may want to consider, if it uses fees to support its
fund, is to allow for a modification of the fee structure.
C. Coverage Provided
State funds can be developed to provide either full or
partial coverage o help the State meet the financial
responsibility objective for State program approval.
1. Full Coverage
If the State desires to satisfy the financial responsibility
ob-jective for State Program Approval by using its fund, a full
coverage fund can be used to meet the entire objective.
Assuming the fund is approved by EPA as part of State Program
Approval, the State does not need to separately require that
owners and operators demonstrate financial responsibility because
the State fund provides all owners and operators in the State
with the appropriate amounts of coverage.
A full coverage fund assures that for all owners and
operators in the State money will be available to pay for
corrective action and third-party liability costs in the amounts
required by the Federal objective:
Per occurrence requirements:
o $500,000 per occurrence for non-marketers
who pump 10,000 gallons or less each month: and
o $1 million per occurrence for everyone else.
4

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Aggregate requirements:
o $1 million aggregate for those with 100 tanks or less;
o $2 million aggregate for those with more than 100 tanks.
The State fund does not necessarily need to prescribe
specified limits of coverage. Limits in a State fund set maximum
coverage amounts that the State fund will provide to an
owner/operator for single or multiple releases occurring in a
year. Without such limits, the State fund is able to cover an
owner/operator for all releases in a year. On the other hand, if
the State wishes to limit the coverage that it will provide for a
particular release to an individual owner/operator in any given
year, it may choose to establish per occurrence or aggregate -
limits of coverage. -However, the limits must be no less than the
Federal limits above.
First Dollar Coverage
A State fund can be considered a full coverage fund even if
it has a deductible amount that the owner or operator is
responsible for paying, as long as it provides for “ first dollar
coverage ” by the State. First dollar coverage simply means that
if owners and operators do not meet the deductible requirement,
the State can still pay for corrective action and third party
claims, including the deductible amount, by using its fund. In
this instance, the State may want to consider pursuing cost
recovery against the owner or operator for the deductible amount,
although this would be at the State’s discretion.
2. Partial Coveraae
A State fund may be approved as providing only partial
coverage if:
o Coverage will be provided for only a portion of the
dollar amounts or types of coverage (corrective action
and third—party liability) required by the Federal
objective; or
o Coverage will be provided for only some owners or
operators in the State. (See the “eligibility” section
below for additional discussion of this choice.)
When the State uses a partial coverage fund tosatisfy a
portion of the financial responsibility objective for State -
Program Approval, the State must also recuire. by statute or
regulation , that:
5

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o Owners and operators demonstrate responsibility for the
amounts of corrective action and third—party liability
costs that are not covered by the State fund; and
o Owners and operators not covered by the fund demonstrate
financial responsibility for at least the full amounts
required by the Federal objective.
The rationale behind this is that for State Program
Approval, the State’s program must “stand alone” to fully meet
the financial responsibility objective. In this case, the
State’s total program (partial coverage fund + State
statute/regs.) can be approved as fully satisfying the financial
responsibility objective.
For example, a partial coverage fund might only cover from
$10,000 to $1 million in corrective action costs. The State must
require that owners and operators find another mechanism to
demonstrate coverage for the $10,000 deductible for corrective
action (unless the State fund provides “first dollar coverage” as
described above). In this example, the State must also require
owners and operators to demonstrate, through another assurance
mechanism, coverage of third-party liability costs.
To help owners and operators comply with deductible
requirements, EPA is allowing States to establish their own
financial test of self-insurance for deductible amounts. The
Federal test of self—insurance (either $10 million or $20 million
net worth) is inappropriate when insuring for deductible amounts,
which are often in the $5000 to $50,000 range. In establishing
their test, States may want to consider requiring that the
owner’s or operator’s minimum net worth be a specific multiple of
the deductible amount.
3. Methods of Payment
Under any State fund, the State must provide reasonable
assurance that it will pay full or partial coverage of cleanup
and third party liability costs of an eligible owner or operator.
The State can make this assurance in several ways. First, the
State may undertake corrective action at the site and pay for
cleanup and third party costs directly. EPA expects that most
States will do so only if the owner or operator is unable or
unwilling to pay these costs.
More frequently, State funds are designed assuming that a
responsible party (RP) - lead cleanup will occur, either
voluntarily or pursuant to a State administrative or judicial
order. Acceptable methods of payment under this fund design
include, but are not limited to:
o direct payment to a RP’s contractor
6

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Unted Staies Office of
Enyronmencal Protect,jn Sold Waste and
Agency Emergency Response
DIRECTIVE NUMBER: 9650.15
TITLE: Procedures and Requirements for Codification of
Approved State UST Programs
APPROVAL DATE: September 22, 1994
EFFECTIVE DATE: September 22, 1994
ORIGINATING OFFICE: Office of Underground Storage
Tanks (OUST)
D FINAL
o DRAFT
STATUS:
REFERENCE (other documents):
OSWER Directive 9650.11 “State Program Approval Handbook”
OSWER Directive 9650.12 “Suggested Procedures for Review
of State UST Applications”
a -L Ie L4- 1
A ‘ - c: &io a
.SA 2 4 , o” 4 ’ -1 [ 4 ’ “ ‘ °.z.
OSWER OSWER OSWER
DIRECTIVE DIRECTIVE DI

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United States Environmental Protection Agency
Washington. OC 20460
&EPA OSWER Directive Initiation Request
1. DirectIve Nun —
9650.15
2. Ort Inator Information.
Name of Contact Person Mail Code lOffic.
Jerry Parker I 5401W I OUST
Telephone Code
703—308—8884
3 Title
Procedures and Requirements for Codification of Approved State UST Programs
4 Summary of Directive (include bnef statement of purpose)
Provides guidance for EPA Regions on how to codify approved state tJST programs.
. i eywords
Underground Storage Tanks. State Program Approval, Codification, incorporation by referer
6a. Does Thus Directive Supersede Previous Directive(s)? r—i
No Yes What directive (number, title)
b Does It Supplement Previous Directive(s)? No Yes What directive (number, title)
9650.12
1 Draft Level
A - Signed by MJDI’A B - Signed by Office Director C - For Review & Comment 0-In Development
[ ;.Document to be distributed to States by Headquarters? No
This Request Meets OSWER Directives System Format Standards.
9 Signature of Lead Office Directives Coordinator
Shushona Clark, OUST Directives Coordinator
Date ,/
10 Name and Title of Approving Official
Lisa Lund, Acting Director, OUST
Date
EPA Form 1315-17 (Rev. 5-87) Previous editions are obsoiete.
e
OSWER . OSWER OSWER 0
VE
DIRECTIVE
DIRECTIVE
DIRECTIVE

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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON D C. 20460
- : fl
SEP 2 2 i99
1’’
L I .i ‘i
OFFICE OF
SOLID WASTE AND EMERGENCY
RESPONSE
MEMOR 1IDUM
SUBJECT: Procedures and Requirements for Codification
of Approved State UST Programs
FROM: Lisa Lund, Acting Director
Office of Underground Storage Tanks
TO: UST/LUST Regional Program Managers
The Office of Underground Storage Tanks (OUST) is today
issuing as OSWER Directive 9650.15 guidance for the codification
of approved state LIST programs. This guidance contains the
procedures Regions should follow in codifying their approved
state programs and the rules which must be followed to gain
Office of the Federal Register approval. This document has
received concurrences from the Office of General Counsel and the
Office of Enforcement and Compliance Assurance.
Regions should begin the process of codifying states which
have already been approved. For those states which have not yet
received final approval, Regions should publish the immediate
final codification rule in the Federal Register the same day as
the final state program approval rule is published. In order for
the two rules to be effective simultaneously, Regions will need
to change the effective date for final state program approvals
from .Q days following publication in the Federal Register to .Q
days following publication.
one new procedure needs to be followed in rulemakings
involving both state program approvals and codifications. A
recent change in the Delegations Manual requires that for
Regional Administrators to certify compliance with the Regulatory
Flexibility Act, they must first consult with the Associate
Administrator for Regional Operations and State/Local Relations
and with the Asbestos and Small Business Ombudsman or their
designees. OUST has contacted both of those offices, explaining
how state program approvals and codifications do not have an
impact upon small entities. Thug, for Regions to satisfy this
consultation requirement all you need to do is to send, prior to
promulgation, a copy of the Federal Register rule to each of
these offices:
Qji Recycled/Recyclable
Printed with SaylCinol. Ink on piper that
COnt ne It least 50% recycled fiber

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Rand Snell
Director of State Relations
Mailcode 1501
Office of Regional Operations and State/Local Relations
U.S. Environmental Protection Agency
401 M Street, SW
Washington, DC 20460
Karen Brown
Asbestos and Small Business Ombudsman
Mailcode 1230 C
Office of Small and Disadvantaged Business Utilization
U.S. Environmental Protection Agency
401 M Street, SW
Washington, DC 20460
Please contact Jerry Parker of my staff (703 308-8884) with
any questions or for assistance.
Attachments
cc: UST/LUST Regional Branch Chiefs
Regional UST Attorneys
Lee Tyner, OGC
Joan Olmstead, OECA
OUST Management Team
OUST Desk Officers

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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
1 ’ILPROIt
JUN 2 994
OFFICE CF
ADMINISTRATION
AND RESOURCES
MAGEME_NT
MEMORANDUM
SUBJECT: Approval of Delegation of Authority for Certification
Under the Regulatory Flexibility Act--DECISION
FROM:
TO:
THRU:
ISSUE
The Office of Policy, Planning and Evaluation (OPPE) has
proposed a revision to the existing delegation of authority to
certify that proposed and final regulations will not have a
significant economic impact on a substantial number of small
entities and that a Regulatory Flexibility Analysis (RFA) is
unnecessary, pursuant to Section 605(b) of the Regulatory
Flexibility Act.
BACKGROUND
Currently, Delegation 15-1 authorizes delegation f or RFA
certification only for rules specifically listed in the
delegation itself. OPPE discovered that there are other
rulemakings which have been delegated by the Administrator, but
which are not listed in Delegation 15-1. The Office of General
Counsel (OGC) advised OPPE that in any such cases, there are two
options for effecting an RFA certification: (1) the rule’s
certification should be sent to you for signature; or, (2) the
Delegations Manual should be revised to delegate RFA
certification for that specific rule. Either situation presents
the potential for future delay of rulemakings and inefficient use
of Agency zesources in resolving individual cases. After review
and consultation with the Off ic of General Counsel, it was
decided that it would be more efficient and in keeping with
current streamlining efforts to revise the existing delegation so
that it covered all rulemaking situations.
1j ’ R.cyclsdfRecyclable
‘LJc7 75% NC7OSd
The Administrator
AX

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REVIEW AND ANALYSIS
The proposed delegation was circulated under green border
review to the offices listed on the attached approval record.
All concurred without comment, with the exception of the Offices
of prevention, Pesticides and Toxic Substances; Solid Waste and
Emergency Response; Regional Operations and State/Local
Relations; and Region I. All made comments which have been
resolved and/or incorporated in the final delegation. The
Asbestos and Small Business Ombudsman, who originally non—
concurred, has retracted the non—concurrence and, based on
changes that were made, concurs with the final delegation.
RECOMMENDATION
I believe this delegation is appropriate in meeting the
Agency’s need for implementation of Section 605(b) of the
Regulatory Flexibility Act. I recommend that you approve it by
signing below.
Approved:
Attachments
Tab A: Approval Recor&
Tab B: Proposed Delegation
arol
Date
N. Browner
fl4L

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DELEGATIONS MANUAL 1200 TN 356
7/13/94
REGULATORY FLEXIBILITY ACT
15-1. Certification Under the RequlatorV Flexibility Act
1. AUTHORITY . To certify that proposed and final rules will not
have a signifi...ant economic impact on a substantial number of small
entities and that a regulatory flexibility analysis is unnecessary,
pursuant to Section 605 (b) of the Regulatory Flexibility Act (RFA).
2. TO WHOM DELEGATED . The Assistant Administrator or Regional
Administrator to whom signature authority is delegated for that
proposed or final rule.
3. LIMITATIONS . Before exercising authority under this
delegation, Assistant Administrators, Regional Administrators, or
their redelegatees must consult with the Associate Administrator
for Regional Operations and State/Local Relations and the Asbestos
and Small.Business Ombudsman, or their designees.
4. REDELEGATION AUTHORITY .
a. If the authority to sign the rule may not be redelegated
below the Assistant Administrator or Regional Administrator level,
the authority for certifying pursuant to the RFA also may not be
redelegated.
b. If the authority to sign the rule is redelegated below the
Assistant Administrator or Regional Administrator level, the
authority to certify pursuant to the RFA may be redelegated but to
no lower than the Office Director level in Headquarters and the
Division Director level in the Regions.
c. In no case may the authority to certify under the RFA be
redelegated lower than to the individual with authority to sign the
applicable proposed or final rule.
5. ADDITIONAL REFERENCES . Refer to EPA’s Guidelines for
Implementing the Regulatory Flexibility Act as revised April 9,
1992; Section 605(b) of the Regulatory Flexibility Act; and the
Delegations Manual for the statute-specific delegations addressing
the authority to sign the rules.

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United States Office of
En u,onmentaI Protecton Sold Waste and
Agency Emergency Response
r&E PA DIRECTIVE NUMBER: 9650.15
TITLE: Procedures and Requirements for Codification of
Approved State UST Programs
APPROVAL DATE: September 22, 1994
EFFECTIVE DATE: September 22, 1994
ORIGINATING OFFICE: Office of Underground Storage
Tanks (OUST)
( FINAL
o DRAFT
STATUS:
REFERENCE (other documents):
OSWER Directive 9650.11 “State Program Approval Handbook”
OSWER Directive 9650.12 “Suggested Procedures for Review
of State UST Applications”
OSWER OSWER OSWER
‘F DIRECTIVE DIRECTIVE DI

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OSWER Directive 9650.15
PROCEDURES AND REQUIREMENTS FOR
CODIFICATION OF APPROVED STATE UST
PROGRAMS
U.S. ENVIRONMENTAL PROTECTION AGENCY
OFFICE OF UNDERGROUND STORAGE TANKS
September 1994

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OSWER Directive 9650.15
The policies and procedures set out in this document are
intended solely for the guidance of Government personnel. They
are not intended, nor can they be relied upon, to create any
rights, substantive or procedural, enforceable by any party in
litigation with the United States. The Agency reserves the right
to act at variance with these policies and procedures and to
change them at any time without public notice.
i. i.

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OSWER Directive 9650.15
1
5
7
8
A-i
B—i
C-.’
D- 1
E- 1
F-i
G-l
TABLE OP CONTENTS
Page
I. BACKGROUND
II. STEPS IN THE CODIFICATION PROCESS
III. LEGALLY ENFORCEABLE STATUTES AND REGULATIONS
IV. QUALITY GUIDELINES FOR INCORPORATION BY REFERENCE
OF STATE STATUTES AND REGULATIONS
V. APPENDICES
Appendix A -- Part 282 Framework Rule and
New Hampshire Codification Rule
Appendix B -- Vermont Codification Rule
(“Stand—alone” rule)
Appendix C -- Federal Register Document
Requirements
Appendix D -- Guidance on Preparing and
Submitting Federal Register Documents
Appendix E -- Sample Transmittal Letters to the
Office of the Federal Register
Appendix F -- List of CFR Sections Reserved for
Approved State Programs
Appendix G -— Sample Incorporation by Reference
Binders (New Hampshire)
i.i.i.

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OSWER Directive 9650.15
PROCEDURES AND REQUIREMENTS FOR CODIFICATION OF
APPROVED STATE UST PROGRAMS
I. Background
Codification is the process that identifies the elements of
approved State programs by placing them in the Code of Federal
Regulations (CFR). The codification of State programs is
designed to enhance the public’s ability to discern the current
status of the approved State program and alert the public to the
specific State regulations that the Federal government can
enforce if necessary. This process will be particularly helpful
as States adopt additional Federal requirements or revise their
approved UST programs.
Appropriate provisions of state statutes and regulations are
“incorporated by reference”. Other elements of the approved
state program, such as the Attorney General’s Statement,
Memorandum of Agreement, Program Description, and Demonstration
of Procedures for Adequate Enforcement are merely “referenced”.
These documents are referenced by listing the title and date of
signature in the codification notice. It is important to
understand that while the state program itself is being codified
through publication in the CFR, it is the process of
incorporation by reference of applicable statutory and regulatory
elements that makes the state requirements the federal law as
well.
The effect of incorporation by reference is that the
incorporated material has the same legal effect as if it were
published in full in the CFR. State enforcement authorities
contained in statutes and regulations are identified in the
codification rule but not incorporated by reference since EPA
uses its own authorities to enforce approved State requirements.
EPA enforces State regulations that are more stringent than
the Federal requirements, but not those that are broader in
scope. For example, EPA will enforce State regulations that
require reporting of jJ. suspected releases, even though Federal
regulations require only that releases of greater than 25 gallons
be reported. However, EPA cannot enforce State regulations
against farm tanks excluded from regulations at the Federal
level. Therefore, the codification rule, which is published in
the Federal Register , must identify where the State is broader in
scope so that the public as well as the regulated community can
know that the Federal government will not be enforcing those
broader in scope program requirements.
1

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OSWER Directive 9650.15
A. Authorization Generally
Subtitle I of the Resource Conservation and Recovery Act
(RCRA) establishes a system which ensures the proper use and
handling of underground storage tanks (USTs). To do this, RCRA
establishes a partnership between the federal government and the
states. Section 9004(d) (2) of RCRA provides, in part, that:
(once a State has submitted its program), [ i]f the
Administrator determines that (the] State program complies
with the provisions of this section and provides for
adequate enforcement of compliance with the requirements and
standards adopted pursuant to this section, he shall approve
the State program in lieu of the Federal program and the
State shall have primary enforcement responsibility with
respect to requirements of its program. (Emphasis added]
The effect of this provision is to allow the states to seek
authorization to enact and administer state laws and regulations
in place of the federal regulatory program found at 40 C.F.R.
Part 280. However, the state program must be no less stringent
than the federal program and it must provide for adequate
enforcement. Once a state is authorized for Subtitle I, the
state regulations provide the subs antive requirements that must
be met at facilities located within the state. When the state
becomes authorized, the federal UST regulations are no longer
applicable in that state. As in states authorized under Subtitle
C of RCRA, both the federal government and the state exercise
enforcement authority.
B. State Regulations Which Are More Stringent or Broader in
Scope Than Their Federal Counterparts
As mentioned above, Section 9004(b) (1) does not allow
approval for a state whose laws are less stringent than the
federal requirements. However, states may enact laws more
stringent than their federal counterparts. Section 9008 of RCRA.
In addition, states may enact laws broader in scope than their
federal counterparts; that is, the state laws have no counterpart
in the federal UST program. This authority is specifically
codified in 40 C.F.R. § 281.12(a) (3).
State program requirements that are broader in scope of
coverage than the federal program are not a part of the
federally—approved program, 40 C.F.R. § 281.12(a)(3)(ii). Since
that portion of the state program does not have a counterpart in
the federal program, it does not become a requirement of Subtitle
I, the violation of which EPA is entitled to enforce pursuant to
Section 9006(a). Therefore, EPA may not enforce that portion of
a state program which is broader in scope of coverage than a
federal program. Examples of regulations which are broader in
scope than the federal program include: the regulation of tanks
2

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OSWER Directive 9650.15
storing heating oil for consumptive use on the premises where
stored; the regulation of flow-through process tanks; and the
regulation of farm or residential tanks of 1,100 gallons or less
capacity storing motor fuel for non—commercial purposes.
consequently, EPA will not incorporate by reference states laws
which are broader in scope than the federal program.
While state provision which are broader in scope of coverage
generally do not have a counterpart in the federal program, the
subject matter of the more tringent state provisions is usually
covered in similar provisions of the federal program. Examples
of more stringent state provisions would include: a requirement
that not only must tanks be protected from corrosion, but that
tanks must be made solely of corrosion proof materials; that
notice of use of a new tank system must be made within 15 days
instead of the 30 days allowed by the federal program; or that
owners or operators of -petroleum USTs demonstrate pre—occurrence
financial responsibility of at least $2 million instead of the $1
million or $500,000.00 required by the federal program.
Provisions in state programs which are more stringent than
their federal counterparts are, nevertheless, a part of the
approved state program, and are enfprceable by EPA. Congress
intended this result when, in Section 9008, it specifically
permitted more stringent regulations, and, at the same time,
authorized EPA to enforce those provisions under Section
9006(a)(2). Thus, more stringent state provisions in an approved
program are, unlike those which have no counterpart in the
federal program, a part of the requirements of Subtitle I, which
EPA is required to enforce. Consequently, EPA will incorporate
by reference these laws which are more stringent than the federal
program.
C. State Enforcement Authorities
State enforcement authorities do not become part of the
authorized state program that EPA can enforce. Congress provided
EPA with the necessary authority to use federal procedures for
enforcement of all applicable UST rules and regulations, and it
intended that those procedures be used in the event of federal
enforcement of a state’s UST laws. For example, Section
9006(a) (1) of RCRA authorizes the Administrator, in the event of
a violation of any requirement of Subtitle I, to issue an order
requiring compliance immediately or within a specified time.
Section 9006(a) (2) makes it clear that such orders may be issued
in states which are authorized to carry out the UST program under
Section 9004 (after notice to the affected state); and Section
9006(a) (3) provides for a penalty for non—compliance. - Provisions
for public hearings on any order issued under this Section, and
authority for the Administrator to issue subpoenas are also
included in Section 9006(b). Section 9006(c) specifies the scope
3

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OSWER Directive 9650.15
and content of the compliance orders which may be issued under
this Section.
Congress provided a specific mechanism for federal
administrative enforcement proceedings, to be used in cases of
federal enforcement of state programs in lieu of any
administrative procedures contained in the laws and regulations
of the state in which the violation occurred. Thus, EPA will not
incorporate by reference state enforcement authorities.
D. Why codify ?
The question has arisen as to why EPA must publish state
programs authorized pursuant to Section 9004 of RCRA, 42 U.$.C.
§ 699 lc(d) (2), in the Code of Federal Regulations.
Codification is one of two necessary components for final
approval of an authorized state UST program. Authorization, the
first step, provides the necessary EPA review and approval.
Codification, the second step, incorporates state law into the
federal scheme, thus supplanting the federal program for that
state. The authorized program then becomes the only program
enforceable by either the state or the federal government as it
applies to regulated entities. This interpretation is supported
by the language of section 9006(a) of RCRA, 42 U.S.C. S6991e(a)
which states,
whenever . . . the Administrator determines that any
person is in violation of any requirement of this
subchapter, the Administrator may issue an order requiring
compliance within a reasonable specified time period or the
Administrator may commence a civil action in the Unites
States district court in which the violation occurred .
The key phrase is “of this subchapter”. In order to become
requirements of this subchapter, the authorized state UST program
requirements must be made federal requirements.
Codification also serves to place regulated entities and
members of the public on notice of the requirements pertaining to
the operation of USTs. Under the Administrative Procedure Act
(APA), each agency must make available to the public certain
information.
Each agency shall separately state and currently
publish in the Federal Register for the guidance of the
public . .
(D) substantive rules of general applicability adopted
as authorized by law, and statements of general policy
or interpretations of general applicability formulated
and adopted by the agency; and,
4

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OSWER Directive 9650.15
(E) each amendment, revision, or repeal of the
foregoing.
Except to the extent that a person has actual and
timely notice of the terms ther of, a person may not in
any manner be required to resort to, or be adversely
affected by, a matter required to be published in the
Federal Register and not so published. For the purpose
of this paragraph, matter reasonable available to the
class of persons affected thereby is deemed published
in the Federal Register when incorporated by reference
therein with the approval of the Director of the
Federal Register.
5 U.S.C. § 552(a). The regulations on how to incorporate by
reference appear at 1 C.F.R. Part 51.
Therefore for the Federal government to be able to enforce
the provisions of state laws and regulations that have been
approved to operate in lieu of the federal program, those
requirements either have to be published in the Federal Register
or incorporated by reference therein. Only the substantive rules
must be published or incorporated by reference, because the
federal government uses its own enforcement authorities when
bringing actions for alleged violations of the authorized state
UST program. Thus, general enabling statutes that do not embody
specific requirements that would become enforceable by the
federal government pursuant to section 9006 of RCRA need not be
incorporated by reference, although they are, of course, part of
the approved state program.
Part 282 has been reserved for codification of approved
State UST programs (see Appendix A). Appendix F to this guidance
contains a list of the sections within Part 282 that have been
specifically reserved for each of the 56 States and Territories.
The Regions should use this list to identify the sections of Part
282 that should be included in their codification rules.
II. Steps in the Codification Process
Regions will be required to follow a number of standard
steps when codifying their approved state programs.
1) The major effort will be to write the Federal Re ister rule
signifying the codification of the state program. (As part
of this effort each Region should set up a docket, with a
new file and docket number, for all codification materials
and any public comments.) OUST Headquarters has developed a
model codification rule and will provide it to the Reqions
electronically to facilitate the codification process (see
Appendix B).
5

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OSWER Directive 9650.15
STEPS IN THE CODIFICATION PROCESS
State program is
Review SPA appltaation to determine wtilch statutoiy end
regutatoly provisions are to be Incorporated by reference
r rs wL
Prepare bsnsznittai letter for Office
of the Federal Register (OFF
Send package to OFR Binders to remain at OFR
I
Final rule publIshed In Federal Realeter
Binders retained
at OUST docket
Binders retained at
OUST
Office of RegIonal Council (ORC) reviews statutes and regulations
I __
I Obtain acceptable copka of I
ga -enforceabe’ -
N statutas/regulauona from state I
Prepare draft
Pact star rule. Set up dodret.
N
package to EPA Federal Reclster Liaison ICka Reed)
Binders retained
at state office
I Binders retained at
Regional library

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OSWER Directive 9650.15
2) The U.S. Government Printing Office (GPO) offers a 20
percent discount for Federal Register documents submitted
with a disk. Regions should therefore explore the
possibility of submitting their rules on disk. There are a
number of requirements, however, that must be met when
submitting electronic files for publication in the Federal
Register (see Appendix C).
3) As part of producing the codification notice, the Regions
will need to review the state program approval application
in order to determine what state materials are to be
incorporated by reference (i.e., relevant portions of state
statutes and regulations). These need to be clearly
identified in the notice and placed into binders for public
review.
4) After determining what materials are needed for
incorporation by reference, the Region will need to ensure
that it has legally enforceable copies of all relevant
materials so they may assemble the binders. Two binders are
required. One binder will contain statutory provisions;
another will contain regulatory provisions. The statutes
and regulations must be of proper quality to meet OFR
standards (see sample binders in Appendix ).
5) A letter from EPA to OFR requesting the incorporation by
reference must be submitted at least 20 working days in
advance of the desired publication date (see Appendix E).
The letter should be accompanied by the binders, the Federal
Register rule, and note the section(s) of the CFR into which
the materials will be incorporated. This letter also must
include the name and phone number of the Regional
codification contact.
6) A transmittal memo to Vickie Reed, Headquarters Federal
Register liaison, must be prepared, as must a Federal
Register typesetting request form.
7) The entire package must then be submitted for review to the
Quality Assurance Officer at OPPE. Send the package c/o
Vickie Reed (mail code 2136).
8) The Quality Assurance Officer assesses the materials to
determine whether the documents submitted meet all
applicable OFR criteria. As part of this process, the table
of contents will be checked against the materials in the
binder and the listing to the appendix in the Federal
Register rule.
9) If the materials meet the criteria, all materials
(transmittal letters, binders, the rule, other forms,etc.)
are submitted to OFR through the Headquarters Federal
6

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OSWER Directive 9650.15
Register liaison. If the materials do not meet the
criteria, any needed changes will be specified and the
materials will be returned to the Region for corrections.
10) OFR will publish a codification rule specifying the state
statutory and regulatory provisions that have been
incorporated by reference.
11) copies of all incorporation by reference materials must be
made available for public review at a number of locations
following publication in the Federal Register , including the
state office, the Regional library, the OUST docket, and
OUST. OFR will also retain a copy of the materials.
See Appendix D for additional guidance on the procedures involved
in preparing and submitting Federal Register notices.
III. Legally Enforceable Statutes and Regulations
It Is EPA’S burden to ensure that the copies of statutes and
regulations submitted for incorporation by reference are the
legally enforceable copies in the state. The question of which
version is enforceable and when it is effective is to be
determined with reference to state law. There are three
categories of legally enforceable regulations:
1) Regulations that are published in the state register.
These regulations are not effective until they are
published in the state register.
2) Regulations that are immediately effective upon
adoption and .signature by the Secretary of State.
These regulations have either an official stamp
denoting the date of adoption and signature or some
other form of certification that the material was
adopted by the state. This certification also needs to
be included in the binder of incorporated by reference
materials.
3) Regulations that are immediately effective (as above),
except that the state periodically publishes a
compilation of their regulations. The official version
in such states is the originally adopted version signed
by the Secretary of State.
Because states may submit different categories of applicable
regulations to EPA, the Regions will need to check with their
states in determining which is the legally enforceable copy.
In addition, the Region must obtain legally enforceable
versions of state statutes. This version may be either an
7

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OSWER Directive 9650.15
officially signed version or one published in the state code; the
Region will need to confirm with the state which is the legally
enforceable copy.
An electronic copy of state statutes and regulations is
a valid format for incorporation by reference materials submitted
to OFR, because it lacks certification that the materials have
been officially adopted by the state. The same holds true for
secondary sources such as the Bureau of National Affairs (BNA)
publication Environment Reporter . Additionally, documents being
submitted for approval should not be combined from different
sources or from volumes of different dates.
Regions codifying states that have incorporated the federal
UST regulations by reference would follow the procedures outlined
above when incorporating by reference the applicable state
provisions, provided that the state has devised an internal
numbering system for those regulations that distinguishes them
from the federal regulations. They would simply need to cite the
appropriate sections of the state regulations for incorporation
by reference.
There may be cases where an approved state has included
statutory and/or regulatory provisions in its application for
program approval that are not UST—specific but instead supplement
the UST provisions. In such cases, particularly if the
provisions are not cited in the Attorney General’s statement as
authorities upon which the UST program relies, it is appropriate
to reference them in the codification notice. However, these
provisions should not be incorporated by reference. Only those
provisions that are applied to a specific aspect of the UST
program may need to be incorporated by reference.
IV. Quality Guidelines for Incorporation by Reference of State
Statutes and Regulations
The Office of the Federal Register imposes a number of
requirements and prerequisites for incorporating materials by
reference in published Agency regulations. Incorporation by
reference is a mechanism that permits more efficient use of
resources by reducing the volume of material published in the
Federal Register and Code of Federal Regulations . Incorporation
by reference allows Federal agencies to comply with the
requirement to publish regulations in the Federal Register by
referring tà materials already published elsewhere. The legal
effect of incorporation by reference is that the material is
treated as if it were published in the Federal Register . This
material, like any other properly issued regulation, has the
force and effect of law.
8

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OSEWR Directive 9650.15
The Director of the Federal Register is authorized to decide
when an agency may incorporate material by reference. The
Director may approve an incorporation by reference if the
material meets the requirements of 1 CFR Part 51. OFR has had
concerns regarding the format, quality, condition, and EPA’S
location of materials to be incorporated by reference. Central
to OFR’s concerns was the availability of legible materials for
public review. Before January 3, 1994, no approved State UST
programs had been codified due to a combination of confusion over
proper codification procedures and inferior quality and format of
the materials that were submitted to OFR by other EPA program
offices.
In order to obtain OFR’s approval for the use of
incorporation by reference of material in its regulations, EPA
and OFR representatives met to develop the following set of
quality guidelines for submitting incorporation by reference
materials as part of the codification process.
1) The 40 CFR Part 55 incorporation by reference model would be
followed in developing a Part 282 for all materials to be
incorporated by reference. Incorporation by reference
materials must be placed in binders, which must have a table
of contents. All pages should be numbered for easy
reference.
2) The materials must be inspected page by page to ensure that
they are clear, complete, and legible. The copies submitted
must be of a high enough quality to produce legible
photocopies. If high-quality copies are not available in
the Regional office, they should be obtained from the State.
No marred or disfigured pages may be included, and the
storage method must not obscure the text in any way (e.g.,
by hole punches). Experience has shown that it may be
difficult and/or expensive to get “acceptable” copies. The
Regions, therefore, may want to require that the states
submit “acceptable” copies of their statutes and regulations
as part of the official state program approval application.
3) All documents should be inspected to be sure that they have
titles, dates, edition numbers, author/publisher, and
identification number (where applicable). If they do not,
the Region is responsible for obtaining copies of documents
that satisfy the criteria.
4) The Region should number consecutively in the lower right
hand corner all pages that are to be placed in the
incorporation by reference binder. These page numbers will
supersede any page numbers on the source documents and will
be used to create a table of contents for the binder. If
possible, the title page from the statute or regulation
9

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OSWER Directive 9650.15
should also be placed in the binder to indicate where the
excerpts come from.
5) A table of contents listing the materials included in the
binder and their page numbers must be developed and placed
at the front of the binder so that readers can quickly find
the provisions in which they are interested. The table of
contents should look very similar to the Appendix to the
Federal Register notice. Any words, phrases, sentences,
paragraphs or subsections that are “crossed—out” in the
binder materials need to be noted in both the Appendix to
the rule and the table of contents to each binder. (Please
refer to the New Hampshire binders in Appendix G of this
document for examples.)
6) If there are portions of statutes or regulations on a page
that are not to be incorporated by reference (e.g., an
incorporated section ends and an unrelated provision
immediately follows), it is acceptable to place them into
the binder and cross them out. This eliminates the need for
cutting and pasting. However, the Region needs to be very
clear about which of the statutory and regulatory provisions
are to be incorporated by reference and which are not.
7) Statutes and regulations will be placed in separate 8.5 x 11
binders. In order to avoid unnecessary photocopying, it is
acceptable to include a pre-printed and bound booklet of
statutes or regulations that is not 8.5 x 1]. if a press bar
binder is used to secure the document. For all binders
please place a label containing the binder title and CFR
number on both the front j 4 spine of the binder.
8) The Memorandum of Agreement, Program Description, and
Demonstration of Adequate Enforcement Procedures will be
referenced in the rulemaking, but copies of these documents
will not be placed into the binders.
9) While OFR has not mandated that binders from all states be
identical, the Regions should keep in mind that the goal is
to produce a binder that can be easily read and photocopied,
and will withstand repeated viewings. Thus, the binder
should be assembled so that loss of pages through use is
minimal.
10) Each statement of incorporation by reference must identify
where and how copies may be examined and obtained.
11) OFR will maintain a copy of the incorporation by reference
binders. EPA will also maintain a copy in the EPA OUST
docket, Room M 2616, 401 M Street, SW, Washington, DC 20460;
at OUST Headquarters (contact Jerry Parker); and in the
10

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OSWER Directive 9650.15
library of the appropriate EPA Regional office. The state
also will maintain a copy of the binders.
12) Codification of revisions to approved state programs will
require publication of an amendment to the CFR in the
Federal Register and submittal of a separate binder with a
revision date on the cover page, with copies deposited in
all the above locations. The Director of the Federal
Register must be notified in writing that the incorporated
by reference materials are being updated. Codification of
revisions is not a process of merely adding the changes to
the old binders.
An acceptable format consistently applied to all materials
submitted for incorporation by reference reduces the OFR
resources required for review and significantly decreases the
period of time between, submission and approval. In addition, a
consistent format affords maximum convenience to the public user.
Much of the work involved in assuring that all incorporation
by reference materials meet the quality requirements,
particularly that resulting from OFR rejection of inferior
quality documents, can be avoided if the Region communicates the
requirements to its states early iii the state program approval
and codification process. If the states understand what is
required of the Regions, materials of an acceptable quality and
format can be submitted to the Region the first time, and re-
assembly of the materials will not be necessary.
11,

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OSWER Directive 9650.15
APPENDIX A: PART 282 FRAMEWORK RULE AND NEW HAMPSHIRE
CODIFICATION RULE

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OSWER Directive 9650.15
Tuesday
November 2, 1993
Part HI
Environmental
Protection Agency
40 CFR Part 282
Underground Storage Tank Program;
Approved Program for New Hampshire;
Rule
_ — —
I

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OSWER Directive 9650.15
58624 Federal Register I Vol. 58, No. 210 / Tuesday. November 2. 1993 / Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
4OCFR Part 282
(FRL—4794-8 )
Underground Storage Tank Program;
Approved State Program for New
HampshIre
AGENCY: Environmental Protection
Agency (EPA)
ACTION: Immediate final rule.
SUMMARY: The Resource Conservation
and Recovery Act of 1976, as amended
(RCRA). authorizes the U S
Environmental Protection Agency to
grant approval to states to operate their
underground storage tank programs in
lieu of the federal program. This action
establishes part 282 for codification of
the decision to approve a state program
and for incorporation by reference of
those provisions of state statutes and
regulations that will be subject to EPA’s
inspection and enforcement authorities
under sections 9005 and 9006 of RCRA
subtitle I and other applicable statutory
and regulatory provisions. As part of
this initial action, part 282 codifies the
prior approval of New Hampshire’s
underground storage tank program and
incorporates by reference appropriate
provisions of state statutes and
regulations
DATES: This regulation is effective
January 3. 1994, unless EPA publishes
a prior Federal Register rule
%sithdrawing this immediate final rule
All comments on this regulation must
be received by the close of business
December 2. 1993 The incorporation by
reference of certain publications listed
in the regulations is approved by the
Director of the Federal Register. as of
January 3. 1994. in accordance with 5
U S C. 552(a).
ADDRESSES; Comments may be mailed to
the Docket Clerk (Docket No. UST 4—5).
Office of Underground Storage Tanks
(OS—305). U.S Environmental
Protection Agency, 401 M Street. SW.
Washington. DC 20460. Comments
received by EPA may be inspected in
the public docket, located in room 2616
(Mall). U S. Environmental Protection
Agency. 401 M Street. SW.. Washington.
DC 20460 from 9am to4pm.. Monday
through Fnday. excluding Federal
holidays.
FOR FURThER INFORMATION CONTACT:
RcRA Hotline, toll free at (800) 424—
9346 or in Washington. DC at (202) 382—
3000 For technical questions on the
part 282 rule, consult Jerry Parker. U S.
EPA. Office of Underground Storage
Tanks, at (703) 308—8884. For technical
questions on the New Hampshire
codification, consult Susan Hanamoto.
Underground Storage Tank Program.
U.S EPA Region I. JFK Federal
Building. Boston. MA 02203—2211
Phone (617) 573—5748
SUPPLEMENTARY INFORMATION:
Background
Section 9004 of the Resource
Conservation and Recovery Act of 1976,
as amended, (RCRA), 42 U S C. 6991c.
allows the U.S Environmental
Protection Agency (EPA) to approve
state underground storage tank
programs to operate in the state in lieu
of the federal underground storage tank
program EPA published a Federal
Register rule announcing its decision to
grant approval to New Hampshire (56
FR 28089. June 19, 1991). Approval was
effective on July 19. 1991.
EPA will codify its approval of state
programs in a new 40 CFR part 282 and
incorporate by reference therein the
state statutes and regulations that will
be subject to EPA’s inspection and
enforcement authorities under sections
9005 and 9006 of subtitle I of RCRA. 42
U.S.C. 6991d and 6991e. and other
applicable statutory and regulatory
provisions. Today’s rule establishes part
282. reserves sections within part 282
for each state, and codifies EPA’s
approval of the New Hampshire
underground storage tank program. This
codification reflects the state program in
effect at the time EPA granted New
Hampshire approval under section
9004(a). 42 U S C 6991c(a), for its
underground storage tank program The
establishment of part 282 is an Agency
procedure exempt from the notice and
comment requirements of 5 U SC. 553.
as is the codification of the New
Hampshire UST program Notice and
opportunity for comment were provided
earlier on the Agency’s decision to
approve the New Hampshire program.
and EPA is not now reopening that
decision nor requesting comment on it.
This effort provides clear notice to the
public of the scope of the approved
program in each state. By codifying the
approved New Hampshire program and
by amending the Code of Federal
Regulations whenever a new or different
set of requirements is approved in Now
Hampshire. the status of federally
approved requirements of the New
Hampshire program will be readily
discernible. Only those provisions of the
New Hampshire underground storage
tank program for which approval has
been granted by EPA will be
incorporated by reference for
enforcement purposes
To c.odify EPA’s approval of New
Hampshire’s underground storage tank
program. EPA has added § 282 79 Ia title
40 of the CFR. Section 282 79
incorporates by reference for
enforrement purposes the State’s
statutes and regulations Section 282 79
also references the Attorney General’s
Statement. Demonstration of Adequate
Enforcement Procedures, the Program
Description, and the Memorandum or
Agreement, which are approved as part
of the underground storage tank
program under subtitle I of RCRA
The Agency retains the authority
under sections 9005 and 9006 of subtitle
IoIRCRA,42 U.S C. 6991d and 6991e.
and other applicable statutory and
regulatory provisions to undertake
inspections and enforcement actions in
approved states. With respect to such an
enforcement action, the Agency will
rely on federal sanctions, federal
inspection authorities and federal
procedures. rather than the state
authorized analogs to these provisions
Therefore, the approved New
Hampshire enforcement authorities will
not be incorporated by reference.
Section 282.79 lists those approved New
Hampshire authorities that fall into this
category.
The public also needs to be aware that
some provisions of the State’s
underground storage tank program are
not part of the federally approved state
program These non-approved
provisions are not part of the RCRA
subtitle I program because they are
“broader in scope” than subtitle I of
RCRA See 40 CFR 281 12(a)(3)(ii) As a
result, state provisions which are
“broader in scope” than the federal
program are not incorporated by
reference for purposes of enforcement in
part 282 Section 282 79 simply lists for
reference and clarity the New
Hampshire statutory and regulatory
provisions which are “broader in scope
than the federal program and which are
not, therefore, part of the approved
program being codified today. “Broader
in scope” provisions cannot be enforced
by EPA. the State. however, will
continue to enforce such provisions
Certification Under the Regulatory
Flexibility Act
Pursuant to section 605(b) of the
Regulatory Flexibility Act, 5 U S.C.
605(b). the EPA hereby certifies that this
action will not have any economic
impact on any small entities. It
establishes a new part 282 in 40 CFR
and codifies the decision already made
to approve the New Hampshire
underground storage program and has
no separate effect on owners and
operators of underground storage tanks

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OSWER Directive 9650.15
Federal Register / Vol. 58, No. 210 I Tuesday. November 2. 1993 I Rules and Regulations 58625
or upon small entities. This rule.
therefore, does not require a regulatory
flexibility analysis
Compliance With Executive Order
32291
This immediate final rule has been
submitted to 0MB for review under
Executive Order 12291 The Agency has
determined that it isa non-major rule
because it will not result in. (1) An
annual effect on the economy of $100
million or more, (2) a major increase in
costs or prices for consumers.
individual industries, federal, state, or
local government agencies, or
geographic regions. or (3) significant
adverse effects on competition,
employment, investment, productivity,
innovation, or on the ability of United
States-based enterprises to compete
with foreign based enterprises in
domestic or export markets.
The Office of Management and Budget
has exempted individual state
codifications from the requirements of
section 3 of Executive Order 12291.
Paperwork Reduction Act
Under the Paperwork Reduction Act.
44 U.S.C. 3501 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
Environmental protection. Hazardous
substances, Incorporation by reference,
Intergovernmental relations, State
program approval. Underground storage
tanks, Water pollution control.
Dated October 13. 1993
Carol M. Browner,
Administrator
For the reasons set forth in the
preamble, chapter 1 of title 40 of the
Code of Federal Regulations is amended
by adding a new part 282 to read as
follows.
PART 282—APPROVED UNDERGROUND
STORAGE TANK PROGRAMS
Subpart A—General Provisions
Se
2821 Purposcand scope
282 2 tncorporation by rcfcrcnce
282 3—282 49 IReservedl
Subpart B—Approved State Programs
282 50—282 78 IReserved)
282 79-New i-Iampshire
252 80—282.105 IReservedi
Appendix A to Pail 282—State
Requirements Incorporated by Reference En
Part 282 of the Code of Federal Regulations
Authority: 42 U SC 6912. 6991c, 6991d
and 6991a
PART 282—APPROVED
UNDERGROUND STORAGE TANK
PROGRAMS
Subpart A—General Provisions
§ 282 1 Purpose and scope.
This part sets forth the applicable
state underground storage tank
programs under section 9004 of the
Resource Conservation and Recovery
Act (RCR.A), 42 U SC 6991c and 40
CFR part 281 “State” is defined in 42
USC 1004(31) as “any of the several
states, the District of Columbia. the
Commonwealth of Puerto Rico, the
Virgin Islands, Guam, American Samoa,
and the Commonwealth of the Northern
Mariana Islands”
4282.2 incorporatIon by reference
(a) Material listed as incorporated by
reference in part 282 was approved for
incorporation by reference by the
Director of the Federal Register in
accordance with 5 U SC 552(a) and I
CFR part 51 Matenal is incorporated as
it exists on the date of the approval, and
notice of any change in the matenal will
be published in the Federal Register
(b) Copies of materials incorporated
by reference may be inspected at the
Office of the Federal Register. 800 North
Capitol Street. NW suite 700,
Washington. DC Copies of materials
incorporated by reference may be
obtained or inspected at the EPA OUST
Docket, 401 M Street, SW . Washington.
DC 20460, and at the library of the
appropriate Regional Office listed
below
(1) Region 1 (Connecticut. Maine.
Massachusetts, New Hampshire. Rhode
Island, Vermont) JFK Federal Building,
Boston, MA 02203—2211
(2) Region 2 (New Jersey, New York,
Puerto Rico, Virgin Islands) Federal
Office Building. 26 Federal Plaza. New
York, NY 10278.
(3) Region 3 (Delaware. District of
Columbia, Maryland. Pennsylvania.
Virginia, West Virginia) 841 Chestnut
St Building. Philadelphia. PA 19107
(4) Region 4 (Alabama, Florida,
Georgia, Kentucky, Mississippi, North
Carolina, South Carolina. Tennessee)
345 Courtland St , NE, Atlanta, GA
30365
(5) Region 5 (Illinois. Indiana.
Michigan, Minnesota, Ohio. Wisconsin)
77 West Jackson Boulevard. Chicago. IL
60604
(6) Region 6 (Arkansas, Louisiana,
New Mexico. Oklahoma. Texas) 1445
Ross Avenue. Dallas, TX 7b202—2733
(7) Region 7 (Iowa. Kansas, Missouri
Nebraska) 726 Minnesota Avenue.
Kansas City. KS 6610
(8) Region B (Colorado. Montana.
North Dakota. South Dakota. Utah,
Wyoming) 999 lath Street. Denver, CO
80202—2405
(9) Region 9 (Arizona. California.
Hawaii, Nevada, Guam, American
Samoa. Commonwealth of the Northern
Martana Islands) 75 Hawthorne Street,
San Francisco, CA 94105
(10) Region 10 (Alaska, Idaho. Oregon.
Washington) 1200 Sixth Avenue.
Seattle. WA 98101
(c) For an informational listing of the
state and local requirements
incorporated in part 282, see appendix
A to th is pail
§5282 3 through 282.49 (Reserved)
Subpart B—Approved State Programs
§4282.50—282.78 (Reserved)
§ 282.79 New Hampshire.
(a) The State of New Hampshire is
approved to administer and enforce an
underground storage tank program in
lieu of the federal program under
subtitle I of the Resource Conservation
and Recovery Act of 1976 (RCRA). as
amended. 42 U SC 6991 et seq The
State’s program. as administered hy the
New Hampshire Department of
Environmental Services, was approved
by EPA pursuant to 42 U SC 6991c and
p irt 281 of this Chapter EPA’s approval
was effective on July 19. 1991
(bI New Hampshire 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 suhtiilo
I of RCRA. 42 U SC 6991d and 6991e.
as sell as under othi:r applicable
staiutory and regulatory provisi’ns
(c) To retain program approval. New
Hampshire must revise its approved
program to adopt changes to the federal
subtitle I program which make it more
stringent, in accordance with section
9004 of RCRA. 42 U S C. 6991c, and 40
CFR part 281. subpart E. If New
Hampshire obtains approval for the
revised requirements pursuant to
section 9004 of RCRA. 42 U S C 699 Ic.
the newly approved statutory and
regulatory provisions will be added to
this section and notice of any change
will be published in the Federal
Register
(d) New Hampshire has final approval
for the following elements submitted to
EPA in New Hampshire’s program
application for final approval and
approved by EPA on June 19. 1991,
becoming effective on July 19. 1991

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OSWER Directive 9650.15
58626 Federal Register / Vol. 58. No. 210 I Tuesday. November 2. 1993 / Rules and Regulations
Copies may be obtained from the
Underground Storage Tank Program.
New Hampshire Department of
Environmental Services. 6 Hazen Dnve.’
Concord. NH 03302-0095
(1) State statutes and regu’atIons (i)
The provisions cited in this paragraph
are incorporated by reference as part of
the underground storage tank program
under subtitle! of RCRA. 42 U S C 6991
et seq
(A) New Hampshire Statutory
Requirements Applicable to the
Underground Storage Tank Program.
1993.
(B) New Hampshire Regulatory
Requirements Applicable to the
Underground Storage Tank Program.
1993.
(ii) The following statutes and
regulations are part of the approved
state program, although not
incorporated by reference herein for
enforcement purposes.
(A) The statutory provisions include
New Hampshire Revised Statutes
Annotated (Supplement 1988) Sections
146—C’9a, 146-C:10, and 146-C:lOa; 147
Al through 147—k13. 541—A I through
541—k 10; 91—A:l through 91—AS.
ifi) The regulatory provisions include.
New Hampshire Code of Administrative
Rules (1990) Part Env. C—602.08; Pail
He-P 1905
(iii) The following statutury and
regulatory provisions are broader in
scope than the federal program. are not
part of the approved program. and are
not Incorporated by reference herein for
enforcement purposes
(A) The statutory provisions include’
New Hampshire Revised Statutes
Annotated (Supplement 1988) Section
146—C I XI I. insofar as it refers to
heating oil for consumptive use on the
premises where stored
(B) The regulatory provisions indude
New Hampshire Code of Administrative
Rules (1990) Sections Env—Ws 411 01
and 411 02, insofar as they refer to
heating oil for consumptive use on the
premises where stored.
(2) Statement of legal authority (i)
‘Attorney General’s Statement for Final
Approval”, signed by the Attorney
General of New Hampshire on
November 1, 1990. though riot
incorporated by reference, Is referenced
as part of the approved underground
storage tank program under subtitle [ of
RCRA. 42 USC. 6991 etseq
(ii) Letter from the Attorney General
of New Hampshire to EPA. November 1.
1990. though not incorporated by
reference, is referenced as part of the
approved underground storage tank
program under subtitle I of RCRA. 42
U.S.C. 6991 et seq
(3) Demonstration of procedures for
adequate enforcement. The
“Demonstration of Procedures For
Adequate Enforcement” submitted as
part of the original application in
December 1990, though not
incorporated by reference, is referenced
as part of the approved underground
storage tank program under subtitle I of
RCRA,42 USC. 6991 et seq
(4) Program description. The program
description and any other material
submitted as part of the original
application in December 1990, though
not incorporated by reference, are
referenced as part of the approved
underground storage tank program
under subtitle! of RCRA. 42 U.S.C. 6991
et seq
(5) Memorandum of agreement. The
Memorandum of Agreement between
EPA Region I and the New Hampshire
Department of Environmental Services.
signed by the EPA Regional
Administrator on August 8. 1991.
though not Incorporated by reference. is
referenced as part of the approved
underground storage tank program
under subtitle! of R A. 42 U.S C 6991
et seq
§4282 80-282.105 (Reserved)
Appendix A to Part 282—State
Requirements Incorporated by
Reference in Part 282 of the Code of
Federal Regulations
The following Is an Informational listing of
the slate requirements incorporated by
reference In part 282 oF the Code of Pederal
Rrgul tlons
New. Horn pchire
(at The statutory previsions indude New
Hampshire Revised Statutes Annotated 1955.
1990 Replacement Edition, and 1992
Cumulative Supplement. Chapter 146—C.
Underground Storage Facilities.
Sect .on 146-C .1 Definitions. except for the
following words in 146—Cl Xli.
heating or”
Section 146-C.2 Discharges Prohibited
Section 146-C.) Registration of
Underground Storage Facilities
Sect.on 146-C.4 Underground Storage
Facility Permit Required.
Section 148-C 5 Records Required.
Inspections.
Section 146—C6 Transfer of Ownership
Section t46—C -e Exemption.
Section 146—C.7 New Facilities.
Section 146-C-.8 Prohibition Against
Reusing Tanks.
Section 146-Cl Rulemaking.
Section 14&-C.li Liability forCloanup
Costs. Municipal RegulatIons.
Section 146-C.12 Federal Mslstanca and
Pr1v te Funds.
fbi The regulatory provisions include
(I) New Hampshhe Code of Adninistiative
Rules (November 1990) Part Env.Ws 411,
Control of Underground Storage Facilities.
Section 411.01 Purpose. except For the
following words. “beating oils.”
Section 411 02 Applicability. eeccpt fw
411 02(d)
Section 411 03 DefinitIons
Section 411 04 Registration.
Section 411.05 Change in Use
Section 411 06 Information Required for
Registration.
Section 411.07 Permit to Operate
Section 411.08 Transfer of Facility
Ownership
Section 411 10 Financial Responsibility
Section 411 11 Inventory Monitoring
Section 411.12 Regulated Substance
Transfers
Section 411.13 Tightness Testing
Section 411.14 CertifIcation of Technicians
Perfonziing Tightness Tests.
Section 411.15 Tightness Test Failures.
SectIon 411.16 Unusual Operating
Conditions.
Section 411.17 Temporary Qosure.
Section 411.18 Permanent Closure.
Section 411 19 ProhIbition Against Rauxtag
Tanks
Section 411.20 RequIrements for Approval
of Underground Storage Systems.
SectIon 41121 TankStandardsforNew
Underground Storage Systems.
Section 411.22 Piping Standards for New
Underground Storage Systems.
Section 411 23 Secondary Containment for
Naw Tanks.
SectIon 411 24 Secondary Containment For
New Pressurized Piping
Section 411.25 Spill Containment and
Overfill Protection
Suction 411 26 Leak Monitortn for New
Tanks
Section 411 27 Leak Monitoring for New
Underground Piping Systems
Section 411 28 Installation of I 4 e
Underground Storage Systems
Section 411 29 Release Detection for Tanks
Without Secondary Containment and
Leak Monitoring, except for the
follos ing words in 411 29(al. ‘With the
exception of on premise use heating oil
s ,stems
Section 411.30 Release Detection for Piping
Section 41131 Operationof Leak
Monitoring EquipmenL
SectIon 411 32 Corrosion Protection for
Steel Tanks.
Section 411 33 Corrosion Protection for
Piping.
SectIon 411 34 Subntiss&onofCorrosloii
Protection Plan
Section 411 35 ReliningSteelTanks
Section 411 36 Repair of Fiberglass-
Reinforced Plastic Tanks.
Section 411 37 Repair and Replacement of
Piping Systems.
Section 411 38 Field Fabricated Tanks.
Section 411.39 Secondary Containment for
Hazardous Substance Systems.
Section 411 40 Waivers.
(2) New Hampshire Code of Administrative
Ru lea (November 1990) Part Env-W 412.
Reporting and Rexnediation of Oil Discharges.
SectIon 412.01 Purpose
Section 412.02 ApplicabilIty

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OSWER Directive 9650.15
Federal Register I Vol. 58. No. 210 / Tuesday. November 2, 1993 / Rules and Regulations 58627
Section 41203
Section 412.04
Section 412.05
Section 412 06
Section 412 07
Section 412 08
Definitions.
Notification.
Initial Response Action.
Abatement Measures
Free Product RemovaL
Initial Site Characterization.
Section 412.09 Investigation Due to
Discovery of Discharges from Unknown
Sources
Section 412 10 Site Investigation.
Section 412.11 Site Investigation Repoit
Section 412 12 Remedial Action Plan
Section 412 13 Public Notification
Section 412 14 Waivers
IFR Doc. 93—26409 Filed 11-01—93 845 ami
o coos

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OSWER Directive 9650.15
APPENDIX B: VERMONT CODIFICATION RULE (“STAND-ALONE” RULE)

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OSWER Directive 9650.15
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 282
(FRL- )
Underground Btorage Tank Program: Approved State Program for
Vermont
AGENCY: Environmental Protection Agency (EPA).
ACTION: Immediate final rule.
SUMI(ARY: The Resource Conservation and Recovery Act of 1976, as
amended (RCRA), authorizes the U.S. Environmental Protection
Agency (EPA) to grant approval to states to operate their
underground storage tank programs in lieu of the federal program.
40 CFR part 282 codifies EPA’S decision to approve state programs
and incorporates by reference those provisions of the state
statutes and regulations that will be subject to EPA’s inspection
and enforcement authorities under sections 9005 and 9006 of RCRA
subtitle I and other applicable statutory and regulatory
provisions. This rule codifies in part 282 the prior approval of
Vermont’s underground storage tank program and incorporates by
reference appropriate provisions of state statutes and
regulations.
DATES: This regulation is effective (insert date 60 days after
publication], unless EPA publishes a prior Federal Register
notice withdrawing this immediate final rule. All comments on
the codification of Vermont’s underground storage tank program
*** DRAFT ***

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OSWER Directive 9650.15
must be received by the close of business [ insert date 30 days
after publication]. The incorporation by reference of certain
publications listed in the regulations is approved by the
Director of the Federal Register , as of [ insert date 60 days
after publication], in accordance with 5 U.S.C. 552(a).
ADDRESSES: Comments may be mailed to the Docket Clerk (Docket
No. ), Underground Storage Tank Program, HPU—CAN7, U.S. EPA
Region 1, JFK ederal Building, Boston, MA 02203—2211. Comments
received by EPA may be inspected in the public docket, located in
the Waste Management Division Record Center, 90 Canal St.,
Boston, MA 02203 from 9 a.m. to 4 p.m., Monday through Friday,
excluding federal holidays.
FOR FURTHER INPORMATION CONTACT: Joan Coyle, Underground Storage
Tank Program, HPU-CAN7, U.S. EPA Region I, JFK Federal Building,
Boston, MA 02203—2211. Phone: (617) 573—9667.
SUPPLEMENTARY INFORMATION:
Background
Section 9004 of the Resource Conservation and Recovery Act
of 1976, as amended, (RCRA), 42 U.S.C. 6991c, allows the U.S.
Environmental Protection Agency to approve state underground
storage tank programs to operate in the state in lieu of the
federal underground storage tank program. EPA published a
Federal Register document announcing its decision to grant
*** DRAFT *** 2

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OSWER Directive 9650.15
approval to Vermont. (57 F R 186, January 3, 1992). Approval was
effective on February 3, 1992.
EPA codifies its approval of State programs in 40 CFR part
282 and incorporates by reference therein the state statutes and
regulations that will be subject to EPA’S inspection and
enforcement authorities under sections 9005 and 9006 of subtitle
I of RCRA, 42 U.S.C. 6991.d and 6991e, and other applicable
statutory and regulatory provisions. Today’s rulemaking codifies
EPA’s approval of the Vermont underground storage tank program.
This codification reflects the state program in effect at the
time EPA granted Vermont approval under section 9004(a), 42
U.S.C. 6991c(a) for its underground storage tank program. Notice
and opportunity for comment were provided earlier on the Agency’s
decision to approve the Vermont program, and EPA is not now
reopening that decision nor requesting comment on it.
This effort provides clear notice to the public of the scope
of the approved program in each state. By codifying the approved
Vermont program and by amending the Code of Federal Regulations
whenever a new or different set of requirements is approved in
Vermont, the status of federally approved requirements of the
Vermont program will be readily discernible. Only those
provisions of the Vermont underground storage tank program for
which approval has been granted by EPA will be incorporated by
reference for enforcement purposes.
DRAFT 3

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OSWER Directive 9650.15
To codify EPA’s approval of Vermont’s underground storage
tank program, EPA has added section 282.95 to title 40 of the
CFR. Section 282.95 incorporates by reference for enforcement
purposes the State’s statutes and regulations. Section 282.95
also references the Attorney General’s Statement, Demonstration
of Adequate Enforcement Procedures, the Program Description, and
the Memorandum of Agreement, which are approved as part of the
underground storage tank program under subtitle I of RCRA.
The Agency retains the authority under sections 9005 and
9006 of subtitle I of RCRA, 42 U.S.C. 6991d and 6991e, and other
applicable statutory and regulatory provisions to undertake
inspections and enforcement actions in approved states. With
respect to such an enforcement action, the Agency will rely on
federal sanctions, federal inspection authorities, and federal
procedures rather than the state authorized analogs to these
provisions. Therefore, the approved Vermont enforcement
authorities will not be incorporated by reference. Section
282.95 lists those approved Vermont authorities that would fall
into this category.
The public also needs to be aware that some provisions of
the State’s underground storage tank program are not part of the
federally approved state program. These non-approved provisions
are not part of the RCRA Subtitle I program because they are
“broader in scope” than Subtitle I of RCRA. See 40 CFR
*** DRAFT *** 4

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OSWER Directive 9650.15
281.12(a)(3)(ii). As a result, state provisions which are
“broader in scope” than the federal program are not incorporated
by reference for purposes of enforcement in part 282. Section
282.95 of the codification simply lists for reference and clarity
the Vermont statutory and regulatory provisions which are
“broader in scope” than the federal program and which are not,
therefore, part of the approved program being codified today.
“Broader in scope” provisions cannot be enforced by EPA; the
State, however, will continue to enforce such provisions.
Certification Under the Re ulatorv Flexibility Act
This rule codifies the decision already made (57 FR 186,
Jan. 3, 1992) to approve the Vermont underground storage tank
program and thus has no separate effect. Therefore, this rule
does not require a regulatory flexibility analysis. Thus,
pursuant to section 605(b) of the Regulatory Flexibility Act, 5
U.S.C. 605(b), I hereby certify that this rule will not have a
significant economic impact on a substantial number of small
entities.
Compliance With Executive Order 12866
The Office of Management and Budget has exempted this rule
from the requirements of Section 6 of Executive Order 12866.
Paperwork Reduction Act
k** DRAFT *** 5

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OSWER Directive 9650.15
Approved State Program For Vermont--Page 6 of 15
Under the Paperwork Reduction Act, 44 U.S.C. 3501
Federal agencies must consider the paperwork burden imposed by
any information request contained in a proposed or final rule.
This rule will not impose any information requirements upon the
regulated community.
List of Subjects In 40.CFR part 282
Environmental protection, Hazardous substances,
Incorporation by reference, Intergovernmental relations, State
program approval, Underground storage tanks, Water pollution
control.
Dated:
John DeVillars,
Regional Administrator
*** DP ,r *** 6

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OSWER Directive 9650.15
For the reasons set forth in the preamble, 40 CFR Part 282 is
proposed to be amended as follows:
PART 282 - APPROVED UNDERGROUND STORAGE TANX PROGRAMS
1. The authority citation for part 282 continues to read as
follows:
Authority : 42 U.S.C. 6912, 6991c, 6991d, and 6991e.
2. Subpart B is amended by adding § 282.95 to read as follows:
Subpart B — Approved State Programs
§282.95 — Vermont State-Administered Program.
(a) The State of Vermont is approved to administer and
enforce an underground storage tank program in lieu of the
federal program under Subtitle I of the Resource Conservation and
Recovery Act of 1976 (RCRA), as amended, 42 U.S.C. 6991 g
The State’s program, as administered by the Vermont Department of
Environmental Conservation, was approved by EPA pursuant to 42
U.S.C. 6991c and part 281 of this Chapter. EPA approved the
Vermont program on January 3, 1992 and it was effective on
February 3, 1992.
(b) Vermont has primary responsibility for enforcing its
underground storage tank program. However, EPA retains the
authority to exercise its inspection and enforcement authorities
*** DRAFT *** 7

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OSWER Directive 9650.15
under sections 9005 and 9006 of subtitle I of RCRA, 42 U.s.c.
6991d and 6991e, as well as under other statutory and regulatory
provisions.
(c) To retain program approval, Vermont must revise its
approved program to adopt new changes to the federal subtitle I
program which make it more stringent, in accordance with section
9004 of RCRA, 42 U.S.C. 6991c, and 40 CFR part 281, subpart E.
If Vermont obtains approval for the revised requirements pur.;uant
to section 9004 of RCRA, 42 U.S.C. 6991c, the newly approved
statutory and regulatory provisions will be added to this subpart
and notice of any change will be published in the Federal
Register .
(d) Vermont has final approval for the following elements
submitted to EPA in Vermont’s program application for final
approval and approved by EPA on January 3, 1992. Copies may be
obtained from -the Underground Storage Tank Program, Vermont
Department of Environmental Conservation, 103 South Main Street,
West Building, Waterbury, VT 05671-0404.
(1) State statutes and regulations . (i) The provisions
cited in this paragraph are incorporated by reference as part of
the underground storage tank program under subtitle I of RCRA, 42
U.s.c. 6991
*** DRAFT *** 8

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OSWER Directive 9650.15
(A) Vermont Statutory Requirements Applicable to the
Underground Storage Tank Program, 1994.
(B) Vermont Regulatory Requirements Applicable to the
Underground Storage Tank Program, 1994.
(ii) The following statutes and regulations are part of the
approved state program, although not incorporated by
reference herein for enforcement purposes.
(A) The statutory provisions include: Title 10
Vermont Statutes Annotated, Chapter 59, Sections
1932 through 1935.
(B) The regulatory provisions include: Vermont
Environmental Protection Rules, Chapter 8,
Sections L04 through 106.
(iii) The following statutory and regulatory provisions are
broader in scope than the federal program, are not part
of the approved program, and are not incorporated by
reference herein for enforcement purposes.
(A) Title 10 Vermont Statutes Annotated, Chapter 59,
Section 1929, insofar as it refers to registration
requirements for tanks greater than 1,100 gallons
*** DRAPT *** 9

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OSWER Directive 9650.15
containing heating oil consumed on the premises
where stored.
(B) Vermont Environmental Protection Rules, Chapter 8,
Section 301, registration requirements, and
Section 605(2), permanent closure requirements,
insofar as they refer to tanks greater than 1,100
gallons containing heating oil consumed on the
p :emises where stored.
(2) Statement of leaal authority . (i) “Attorney
General’s Statement for Final Approval”, signed by the Attorney
General of Vermont on April 11, 1991, though not incorporated by
reference, is referenced as part of the approved underground
storage tank program under Subtitle I of RCRA, 42 U.S.C. 6991
et seq .
(ii) Letter from the Attorney General of Vermont to EPA,
April 11, 1991, though not incorporated by reference,
is referenced as part of the approved underground
storage tank program under Subtitle I of RCRA, 42
U.S.C. 6991 g
(3) Demonstration of procedures for adeguate enforcement .
The “Demonstration of Procedures for Adequate Enforcement”
submitted as part of the original application in May 1991, though
*** DRAFT *** 10

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OSWER Directive 9650.15
not incorporated by reference, is referenced as part of the
approved underground storage tank program under subtitle I of
RCRA, 42 U.S.C. 6991 et seq .
(4) Program Description . The program description and any
other material submitted as part of the original application in
May 1991, though not incorporated by reference, are referenced as
part of the approved underground storage tank program under
Subtitle I of RCRA, 42 U.S.C. 6991
(5) Memorandum of Agreement . The Memorandum of Agreement
between EPA Region I and the Vermont Department of Environmental
Conservation, signed by the EPA Regional Administrator on March
2, 1992, though not incorporated by reference, is referenced as
part of the approved underground storage tank program under
subtitle I of RCRA, 42 U.S.C. 6991 et seq .
3. Appendix A to Part 282 is amended by adding in alphabetical
order “Vermont” and its listing.
*** DRAFT *** 11

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OSWER Directive 9650.15
APPENDIX A TO PART 282 - State Requirements Incorporated by
Reference in part 282 of the Code of Federal Regulations
Vermont
(a) The statutory provisions include Vermont Statutes Annotated,
1992, Chapter 59. Underground Liquid Storage Tanks:
Section 1921
Section 1922
Section 1923
Purpose.
Definitions.
Notice of New or Existing Underground
Storage Tank.
Integrity Report.
Notice in Land Records.
Unused and Abandoned Tanks.
Regulation of Category One Tanks.
Regulation of Large Farm and Residential
Motor Fuel Tanks.
Implementation; Coordination.
Inspections; Right of Entry;
Information.
Licensure of Tank Inspectors.
Underground Storage Tank Trust Fund.
Risk Retention Pool.
Underground Storage Tank Incentive
Program.
Petroleum Cleanup Fund.
Section
Section
Section
Section
Section
Section
Section
Sect ion
Section
Section
Section
1924
1925
1926
1927
1928
1930
1931
1936
1938
1939
1940
Section 1941
*** DRAFT ***
12

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OSWER Directive 9650.15
Section 1942 Petroleum Distributor Licensing Fee.
Section 1943 Petroleum Tank Assessment.
Section 1944 Underground Storage Tank Loan Assistance
Program.
(b) The regulatory provisions include State of Vermont, Agency
of Natural Resources, Underground Storage Tank Regulations,
February 1, 1991:
(1) Subchapter 1: General.
Section 8-101 Purpose.
Section 8-102 Applicability.
Section 8—103 Severability.
(2) Subchapter 2: Definitions.
Section 8-201 Definitions.
(3) Subchapter 3: Notification and Permits.
Section 8-301. Notification, except for the
following words in section 8-
301(1), “Notification is also
required for any tank used
exclusively for on-premises heating
that is greater than 1100 gallons
in size.”
Section 8—302 Permits.
Section 8-303 Financial Responsibility
Requirements.
*** DRAFT *** 13

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OSWER Directive 9650.15
Section 8—304
Section 8-305
(4) Subchapter 4:
Replacements Tanks
Section 8—401
Section 8—4 02
Section 8—408
Subchapter 5:
and Piping.
Section 8—501
Section 8—502
Section 8—503
petroleum Tank Assessment.
Innovative Technology.
Minimum Standards for New and
and Piping.
General Requirements.
Tanks — Design and Manufacturing
Standards.
Tanks — Secondary Containment.
Tanks — Release Detection.
Piping - Design and Construction.
Compatibility.
Spill and Overfill Prevention
Equipment.
Installation.
Minimum Operating Standards for Existing
General Requirements.
Spill and Overfill Prevention.
Corrosion Protection of Metallic
Components.
Release Detection.
Compatibility.
Section
Section
Section
Section
Section
8—4 03
8—4 04
8—4 05
8—4 06
8—4 07
(5)
Tanks
Section 8—504
Section 8—505
Section 8—506 Repairs.
(6) Subchapter 6: Reporting, Investigation, Corrective
Action and UST Closure.
*** DRAPT ***
14

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OSWER Directive 9650.15
Section 8—601 General Requirement, except for the
following words, “Heating oil tanks
greater than 1100 gallons capacity
used exclusively for on—premise
heating purposes are subject to the
requirements for permanent closure
in accordance with subsection 8-
605(2) •1I
Section 8-602 Reporting.
Section 8-603 Release Investigation and
Confirmation.
Section 8-604 Corrective Action.
Section 8-605 Closure of USTs.
Appendix A Groundwater Monitoring Requirements.
Appendix B Inventory Monitoring Procedures.
Appendix C Procedures for Manual Tank Gauging.
Appendix D Installation Requirements Applicable to New and
Replacement UST Systems.
BILLING CODE (insert billing code number)
*** DRAFT *** 15

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OSWER Directive 9650.15
APPENDIX C: FEDERAL REGISTER DOCUMENT REQUIREMENTS

-------
U$W1 J( Directive bDU.J.)
THE DOCUMENT
• Typed name and title.
• Ink signature.
•1
• Three originals or one
original and two certi-
fied copies.
S
•
Bond paper or legible • Margins as shown.
photocopy. • Double space text.
x 11
I ’ 8½”
1
82

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OSWER Directive 9650.15
—
UNITED STATES ENViRONMENTAL PROTECTION AGENCY
WAS.-I’:G TON D Margaret Schneider
c .ao’ OSWER
OS—liD Rm. SE3O6K
MAY 17 3
MEMORANDUM ri-IE AOM NIST ATO
SUBJECT: Identifying Federal Register Documents for Signature
TO: Assistant Administrators
General Counsel
Inspector General
Associate Administrators
Regional Administrators
Staff Off i’ce Directors
Recently a number of Federal Register documents have been
submitted for signature with a signature page that displays only a
signature block. Although the Office of Executive Secretariat (OEX)
normally returns such documents for correction, there have been
several that were so urgent that they bypassed the normal quality
control channels. It is obviously not in the Agency’s interest to
have unidentified pages containing only the signature.
I am therefore implementing a new Agencywide policy that will
solve this potentially serious problem. Effective immediately, jJ
Federal Register documents for signature that will be transmitted to
the Federal Register Office should contain the following information
at the of the signature page, regardless of whether the page has
text in addition to the signature line:
IDENTIFICATION OF DOCUMENT: (Insert document title from the
Rule/Notice or CIP/SIP . along with
the page number)
EXAMPLE: gnviror mental Protection Rule—’-Page 10 of 130
Please be sure that the title is specific so that it adequately
identifies the document to which it refers.
Both the Office of Policy, Planning and Evaluation (OPPE) and CEX
will check each package to ensure the proper signature page
identification. For delegated signatures, the Federal Register
Liaison in OPPE will assure this information is in place. Documents
without appropriate identification will be returned for revision.
If you have questions regarding this procedure, please contact
Jane Stewart, Chief of the Regulatory Development Branch, OPPE, at
(202) 260—6387.
Carol . Browner

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OSWER Directive 9650.15
—
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
. 4, ’ WASHINGTON.’D C 20460
JA 3
Of F E Of
POUCY.Pt.ANNING AND EVALUATION
MEMOR.ANDUM
SUBJECT: Availability of Federal Register Typesetting Discount
for Disk Submission
FROM: Jane Stewart, Chie
Regulatory Develop / t Branch
TO: Steering Committee Representatives
Regional Regulatory Contacts
Funds Certifying Officers
Beginning January 1, 1993, the Government Printing Office
(GPO) is offering a new cost saving opportunity to Federal
Agencies. All Agency Federal Register documents submitted with
disks to the Office of the Federal Register prepared using either
WordPerfect or ASCII formats will qualify for a 20% discount on
the page rate for published text. This will reduce our cost from
$125 per column ($375 per page) to $100 per column ($300 per
page). This can amount to a substantial cost savings for a
lengthy document.
In order to receive the discount, offices submitting a disk
must provide the following information:
1. A disk (preferably a 3.5 high density) with a label
including the gency, Filename and Format, such as
WordPerfect or XSC T7 I!y T wish to ave the disk
returned to your office submit a self addressed EPA
envelope and state on the disk label that the it should
be returned to EPA.
2. To ensure a discount all documents must contain the
appropriate Billing Code at the end of the document to
read as follows:
BILLING CODE 6560—50-P (WordPerfect disk)
BILLING CODE 6560—50-U (Unformatted, ASCII)
3. The Federal Register Typesetting Request form should
include, in the blank space at the bottom, the
following information:
Pnri d i Recycled Paper

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OSWER Directive 9650.15
a
“This document was submitted with a disk and is
eligible for the 20% typesetting discount.”
3. A memo (example attached) should be submitted with the disk
verifying that the hard copy matches the disk. An original
and three hard copies are still required by OFR. The memo
verifying the disk should be from the person most familiar
with the document, such as the program office contact. In
most cases it is not the signing official who can verify the
document.
If substantial formatting changes are necessary to ensure
Federal Register requirements are met the disk will be returned
to the program office contact for the revisions to be made to the
disk. If minor changes are necessary these changes will be made
by the Federal Register Liaison in OPPE’s Regulatory Development
Branch (RDB).
Additionally, the GPO will provide WordPerfect templates for
common types of Federal Register documents. Offices which submit
a disk using the template will increase their discount rate to
25% and a $94 column rate ($282 per page). The RDB is currently
exploring the use of templates with GPO, and we will advise you
on their availability and use as soon as we have clear guidance
and instructions from GPO. In the meantime, you may take
advantage of the 20% discount offered by simply submitting
documents on WordPerfect or ASCII.
If you have questions or want further information, please
contact Vickie Reed in RDB at 202—260—7204.
Attachment
cc: Regional OAR Division Directors
Regional OSWER Division Directors
Regional OW Division Directors

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OSWER Directive 9650.15
APPENDIX D: GUIDANCE ON PREPARING AND SUBMITTING FEDERAL
REGISTER DOCUMENTS

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OSWER Directive 9650.15
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 Reaister 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., su=ary of proposed action,
addresses for public comment, supplementary analysis);
- Words of issuance;
- Regulatory text;
-. Signature; and
- - Consecutive page numbers.
All submissions to the Federal Resister must also fulfill the following
lay-out specifications:
-- Bond paper or legible photocopy (8-1/2” x 11”);
-. Single-sided copies;
- - One-inch margins from top, bottom, and right sides; 1-1/2-
inch margin from left side;
- - Double-spaced text;
-- Typed name and title of signing official, ink signature;
- - Deliver three originals with ink signatures; the signature
may not appear on a page by itself; and
- - Page numbers must be consecutive and appear at the bottom of
the page.
A sample Federal Register checklist is included in this appendix.

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OSWER DirectiVe 9650.15
II. Typesetting Request
This one-page form (EPA Form 2340-15) includes the financial data and
the approximate cost of typesetting a document submitted for publication in
the Federal Register . The Management Division Director may require certain
signatures on this form. Data on the following items are also required:
- - Title of rule;
-- Number of manuscript pages;
- - Number of columns;
- - Estimated cost; and
- - Financial data.
The approximate cost is $125.00 per column and $375.00 per page in the
Federal Register . A sample typesetting request form is included in this
appendix along with instructions for completing the form.
III. Expedited Printing Request
If a document must be published promptly in order to meet statutory
deadlines, the author(s) may submit an expedited printing request. This form
is a letter requesting publication of the document at the earliest possible
date or prior to a certain date, and must also justify the reason for the
request. The workgroup chairman should submit the letter to the Director of
the Executive Agencies Division at the Office of the Federal Register (Attn:
Martha Girard; The Office of the Federal Register; National Archives and
Records Services, GSA; Washington. D.C. 20408; (202) 523-5240).

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OSWER Directive 9650.15
FEDERAL REGISTER CHECKLIST.FOR
NOTICES. PROPOSED AND FINAL RULE DOCUMENTS
[ Attach to all documents that are to be published in the Federal
Register . Only Complete the section that applies to the document to be
published. All of these questions can be answered through the Federal
Register Docuxr eflt Drafting Handbook (DDH)].
SECTION ONE: NOTICE DOCUMENTS
(This section applies to Notice of public hearings, meetings and/or
workshops, Correction Notices, Notices extending comment periods,
and Notices of Availability)
Yes r o
1. Is your document classified correctly? If it is
rule related, or a technical amendment it may be
considered a proposed or final rule. (DDH 5-7)
2. Does you document include the required preamble
elements (optional for notices): Agency Action;
Summary; Dates; Addresses; For Further Information
Contact; Supplementary Information? (DDH 51-55)
3. Does your suz unary answer the three required
questions: What you’re doing, you’re doing
it, and the Intended Effect of your action?
(DDH 53)
4. Is the signer’s na.me and title printed below the
signature? (DDH 61)
5. Are the pages numbered consecutively?
6. Are the copies sharp, clear, and legible, especially
illustrations?
7. Are you submitting the original plus 3 copies? Do
your copies match? (DDH 62)
SIGNED

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OSWER Directive 9650.15
SECTION TWO : PROPOSED AND FINAL RULES
2
1. Does your document include the required
preamble elements: AGENCY, ACTION, SUMMARY,
DATES, ADDRESSES, FOR FURTHER INFORMATION
CONTACT, SUPPLEMENTARY INFORMATION? (DDH 12-18)
2. Does your Summary answer the three required
questions: What you’re doing, i ’fli you’re doing
it, and the Intended Effect of your action? (DDH 14)
3. Have you included your List of Sublects (Thesaurus
Terms) at the end of Supplementary Information? (DDH 18)
4. Is your Amendatory language clear and correctly
worded? (DDH 25-26)
5. Is your Authority Citation your first amendment? (DDH 19)
6. Did you use the most recent version of the and
LSA? (DDH 26)
7. Have you included the Table of Contents for each
entire CFR. part or subpart that you are adding or
amending? Do headings in the regulatory text match
those in the table of contents? (DDH 36)
8. Are all CFR paragraphs given a letter or number in
correct sequence? (a), (1), (i), (A) (DDH 30)
9. Is text of regulation displayed correctly (include
all section headings, and place the asterisks
appropriately? (DDH 30)
10. Are the pages numbered consecutively?
11. Are your copies sharp, clear, and legible, especially
illustrations?
12. Is there a new 0MB control number? If so, is it
mentioned in the amendatory language and set out
correctly? (DDH 36)
13. Is the signer’s name and title printed below the
signature? (DDH 61)
14. Are you preparing a proposed and final rule? They
cannot be prepared in the same document; they must be
separate documents. (DDH 7)
15. Are you submitting the original plus 3 copies? Do
your copies match? (DDH 62)
SIGNED _____

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OSWER Directive 9650.15
TYPESE [ NG REQUEST FORM
Item 1 - Fill in the title of :he Federal Re iscer suomission.
Item 2 - Include the type of submLsslon (e.g., proposed rule, final rule)
Item 3 - Obtain number from the Agency Printing Officer. The number LS
supplied by the Government Printing Office.
Item 1 - To be completed by the Office of the Federal Register.
Item 5 - To be completed by the Office of the Federal Register.
ttem 6 - To be completed by the Office of the Federal Register.
Item 7 - Fill in the number of pages of your regulatory document.
Item 8 - To estimate the columns: two pages of double spaced text yields one
Federal Register column.
Item 9 - To estimate the cost: $125.00 per Federal Register column;
$375.00 per Federal Register page;
A table or graph Is considered as one page.
Item 10 - Financial data should be supplied by the conmuttment clerk in OUST.
This data must include the document control number; the account code; the
object class code; and the dollar amount.
Item 11 - The program manager’s signature.
Item 12 - The Federal Register designee’s signature. The Federal Register
designee is located in the Office of the Assistant Administrator for OSWER.
Item 13 - The co itment clerk for OUST (or the co ittment clerk for the
office paying for the publication) should sign here.
OSWER Requirements :
The Office Director and the Assistant Administrator are also required to sign
all Federal Register typesetting requests.

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.j j •O iT
U tII L)LrectiVe 1bDU.1D
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4 POmwaaOEO TO GSA NAmS - SIGNAIUaS
I
NUMSE 0 MANUSCaIPT PAGES 4 ESTIMATED P1UMSI OP COLuMNS 4 IS1IMATED COST
10. FINANCIAL DATA
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13 PUHOSAaEAVAIl.AUl.E IC4nW4.I J —
This document was submitted with a disk and is eligible for the 20% typesetting
discount.
I TITLE
FEDERAL REGISTER TYPESETTING REQUEST
Co”o.,. ... —
4 9 I0 I I 13 e d 13 -
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— OIIS4 CS ...TPI •‘InwIC’.OI 0o
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coo, nwmo.r I end 140 1.T OCICS
10 IIQ P.,n?InQ Uanaq n .n,
OUST Office Director
OSWER Assistant Administrator

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1. CONTACT (program non ’ .. nisfi codt flM ’ .. a icvi . nsa W)
Office of Underground Storage Tanks OS-42 JF
Le].a Kagan-Bijou 703-308-8863
2.OFF i4Ttive 9560.1
FORM. PU8UCATION. OR ISSUANCE NO.. AND TI1tE OR DESCRIPTION
Federal RF€ister Photo-prints (‘I osets) Estimated Cost $28.00 ($14/set)
Underground Storage Tank ProgrNn; Approves State Progr n for New Hampshire
S. OUANTTTY iVs s dIiiiañ.d ru I
2 Sets
6. IS OVERtiME AUTHORIZED TO
MWD€S IREDONERYDATV N
17. DESIRED O€LNERY DATE
COMPOP
ON A D PROOF
8. *84W OF PAGES SUBMITTED
9. TYPE
10. FACE
11
MANUSCRIPT
4
12.ACTUALIMAGESIZE
13.P ROOF
11 ri
LJy.s LJmio
13a GALLEY I 13b PAGE
No S. ’ . Hold Dsy4 No Si’. Hold Dsp,
I
I3cSEr4DPROOFTO

PRESSWORK AND BINDERY
14. NUMBER OF P1
ECES SUBMITTED
15. SIZE finches) IL
Tnmm.d P.qs
a. CAMERA COPY
d. ILLUSTRATIONS
b. NEGATIVES
(I) HALFTONE
16. RUN (Chock am)
0 uS. w L 0 Pm.d Mud
OOsSd, ONS.disRIVu OHudluNos
17 Fonis Ui
R istor
OVERLAYS
(2) UNECUT —
13)OT14ER
18. TEXT PAPER (Grad.. Color, and Weight,
19 COLOR INK
Msrg.ns *sisj 5I L u
- a — I
5 i im
21 OVER ST
U Self S.p.rsts (Spscu
22. COLOR INk
23. PERFORATE/SCORE Parallel Top/Left — ut from Top/Left
OTHER
24. PUNO4 3-Rung Binder 0
lTop/U s I UAccoFut.nv
21. ADDRESSING AND MAIUNG
e. 0 MIsting keya 0 hA Milling 0 M Ing Olily
•. 0 s. So u coiner SUt 0 s. 0 Assemble
0 SeTh Stitch U PsstsIold 0 psiqes hind 0 land W i Bust
a. ri . omtn MAIUNG Mn& 1M. or Nsti )
27. Use separate sheet if needed for additional upedfuc.t!ons or rsmarits
3 11/UNOS AflE AV____ 39 ALLOTMENT NO
tW # r ” S 3BP( 8FOO3
31 OPRLATION 32 DCNNO
30. RETURN NEGATIVES. PlATES. COPY TO:
Lela Hagan-Bijou OS-420WF
703-308-8863
683/40108 TSO131
33. RESTRICTiONS ON QUANTflY Check an,
o W arTII U.. Only 0 R.pret 0 Cnerrisl oiweuaicn
o Wr’.an ‘.gronl son Ills from elont upçi d mitunal rsqulslbonu

a. QUANTITY
34. DELIVER TO:
b. AGENCY/DMSION ROOM BLDG
36. 1 concur in the publication of the attached material and certify that it complies with Agency Order No. 2200.4*
a. S3NATUNE b. AuRA FOR
c. DATE
37. If this material Ii to be forwarded to the Offucu at’ External Affairs. Indicate which of the followIng .c 1 r -
9 Ku po6cy stiona. as psr .ttadi.d uplanatlan U Peno cal as defined by 0MB Circular A-S. or other Item rsquW .d
to be rs 1sd to 0MB.
- 38. APPROVED IV
s. FOR ThE OFFICE OF EXTERNAL AFF4IJRS (S,gnetit.)
b. DATE
EPA Form 2340.1 (4-84) PUBUCATION REVIEW RECORD AND PRINTING REQUEST
Replaces EPA Forms T-OO. 2340-6. and the previous edition of 2340-1 • whucIt are obsolete
an%j . ,.e.......#s

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OSWER Directive 9650.15
APPENDIX G: SAMPLE INCORPORATION BY REFERENCE BINDERS (NEW
HAMPSHIRE)

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OSWER Directive 9650.15
NEW HAMPSHIRE STATUTORY REQUIREMENTS
APPLICABLE TO THE UNDERGROUND STORAGE TANK PROGRAM, 1993
40 CFR 282.79
1

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OSWER DirectiVe 9650.15
TABLE OF CONTENTS
statutory Provisions
Nov ampehir. Revised Statutes Annotated 1955, 1990 Replacement
Edition, and 1992 Cumulative Supplement, Chapter 146—C,
Underground Storage Facilities
146-C:1 Definitions, except for the following words
in146—C:j.xII, “heatingor.” ......... 4,17
146—C:2 Discharges Prohibited .......... 6,18
146-C:3 Registration of Underground Storage
Facilities_ 6
146—C:4 Underground Storage Facility Permit Required... 8, 19
146—C:5 Records Required; Inspections.... ..... 8, 20
146—C:6 Transferofownership.......................... 9,21
146—C:6a Exemption 9
146—C:7 NewFacilities . 10,21
146—C:8 Prohibition Against Reusing Tanks.............. 10, 22
146—C:9 Rulemaking 10,22
146—C:11 Liability for Cleanup Costs; Municipal
- Regulations 13, 24
146—C:12 Federal Assistance and Private Funds........... 14
2

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OSWER Directive 9650.15
NEW HAMPSHIRE
REVISED STATUTES
ANNOTATED
1955
1990 REPLACEMENT EDITION
Titles 10, 11
Chapters 125—152
PUBLISHED BY
E I2JY
PUBLISHING COMPANY
A DIVISION OF BUTrERWORTH LEGAL PUBLISHERS
ORFORD. NEW HAMPSHIRE 03777
3

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OSWER Directive 965O.1
CHAPTER 146-C
UNDERGROUND STORAGE FACILITIES
Definitions,
Discharges Prohibited.
Registration of Underground
Storage Facilities.
146-C:4 Underground Storage Facility
Permit Required.
146-C.5 Records Required: Inspections.
146-C6 Transfer of Ownership.
146-C:64 Exemption.
146-C;? New Facilities.
146-C:8 Prohibition Against Reusing
Tanks.
146-C9 Rulemaking.
146-C:9-a Orders: Injunctions.
146C:10 Penalty.
146-C:10-i Administrative Fines.
14 :11 Liability for Cleanup Costs: Mu-
nicipal Regulations.
146-6:12 Federal Assistance and Private
Funds.
Caoss REFERENCES
Oil discharge and disposal cleanup fund, see RSA 146 ’D.
Oil spillage in public waters. see RSA 146-A.
Petroleum inventories reporting, see RSA 339-D.
Sale of liquid fuels, see RSA 339-B.
LIBRARY REFERENcES
New Hampshire Code of Administrative
Rules
Rules of the Water Supply and Pollution
Control Commission. Ws 411.01 et seq.. New
Hampshire Code of Administrative Rules
Annotated.
West Key Number
Health and Environment 25.5(5.5).
CJS
Health and Environment 121.
All
Gasoline or other fuel storage tanks as
nuisance. 50 ALR3d 209.
Liability for pollution of subterranean
waters. 38 ALR2d 1265.
Maintainability in state court of class
action for relief against air and water pollu-
tion. 47 ALR3d 769.
Right to maintain action to enjoin public
nuisance as affected by existence of pollution
control agency. 60 ALR3d 665.
Standing to sue for violation of state
environmental regulatory statute. 66 ALR4th
685.
Validity and construction of anti-water
pollution statutes and ordinances. 32 ALR2d
215.
146.C:1 Definitions. In this chapter
I. “Division” means the New Hampshire division of water supply and
pollution control.
11. “Discharge” means
groundwaters or surface
III. “Disposal” means deposit, discharge, injection, dumping, spilling,
leaking, leaching, or placing of oil into or on any land, groundwater or
surface water,
IV. “Existing facility”
of which began prior to
V. “Facility” means a system of tanks, pipes, pumps, vaults, fixed
containers, and appurtenant structures, singly or in any combination,
which are used or designed to be used for the storage, transmission, or
dispensing of oil or petroleum liquids, and which are within the size,
capacity, and other specifications prescribed by rules adopted by the
division pursuant to RSA 146-C:9, VI.
146-C. 1
146-C2
146-C.3
the release or addition of any liquid to land,
waters.
means a facility the construction or installation
September 17, 1985.
405
4.

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OSWER Directive 9650.15
146-C:1 PUBLIC HEALTH
VI. “Failure” means a condition which may or does allow the uncon•
trolled passage of liquid into or out of a facility, and includes, but is not
limited to 1 a discharge to the waters of the state without a permit issued
pursuant to RSA 146-C:4.
VII. “Groundwaters” means all areas below the top of the water table.
including aquifers, wells, and other sources of groundwater.
VIII. “Life expectancy” means the time period within which a failure
is not expected to occur as determined by the division.
IX. “Liquid” means oil and petroleum liquids.
X. “New facility” means a facility the construction or installation of
which begins on or after September 17, 1985, including, but not limited
to, facilities which replace existing facilities, facilities which are moved
from one location to another, and facilities which are substantially mo
after September 17, 1985.
XI. “Nonresidential”, when referring to a facility, means a facility which
serves any commercial, industrial, institutional, municipal, public, or other
building, including, but not limited to, service stations, hotels and motels,
hospitals, nursing homes, and correctional institutions, but not including
non-commercial residential buildings.
XII. “Oil” means petroleum products and their by-products of any kind
and in any form, including, but not limited to. petroleum, fuel, sludge,
crude, and all other liquid hydrocarbons regardless of specific gravity and
which are used as motor fuel, lubricating oil, or any oil used for ’ c.thr
,e processing. The term “oil” shall not include natural gas, liquified
petroleum gas, or synthetic natural gas, regardless of derivation or source.
XIII. “Operator” means the person who has responsibility for the care,
custody, and control of the daily operation of a facility.
XIV. “Owner” means the person in possession of or having legal
ownership of a facility. In addition, for facilities no longer in use on
November 8, 1984, “owner” includes the person having had legal ownership
of such facility immediately prior to discontinuance of its use.
XIV-a. “Person” means any individual, trust, firm, joint stock company,
corporation (including a government corporation), partnership, association.
state and agencies thereof, municipality, commission, political subdivision
of a state, interstate body, consortium, joint venture, commercial entity,
the United States government and agencies thereof, and any other legal
entity. The term “person” shall not include a person who, without
participating in the management or actual operation of the facility, and
otherwise not engaged in petroleum production, refining, or arket1h1g,
holds indicia of ownership primarily to protect a mortgage on real proPertY
on which a facility is located or a security interest in personal proper
located at the facility.
XV. “Residential building” means any house, apartrnent trailer.
manufactured housing, or other structure occupied by individuals 3 5
domicile.
406 S

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OSWER Directive 9650.15
UNDERGROUND STORAGE FACILITIES 146-C:3
XVI. “Substantial modification” means the construction or installation
of any addition to a facility or any restoration or renovition of a facility
which: Increases or decreases the on-site storage capacity of the facility;
significantly alters the physical configuration of the facility; or impairs or
improves the physical integrity of the facility or its monitoring systems.
On-site abandonment is specifically excluded as a “substantial modifica-
tion” of a facility.
XVII. “Surface water” means streams, lakes, ponds, and tidal waters
within the jurisdiction of the state, including all streams, lakes, or ponds
bordering on the state, marshes, watercourses, and other bodies of water,
natural or artificial.
XVIII. “Underground storage facility” means a facility or facility
component that is 10 percent or more below the surface of the ground and
is not fully visible for inspection.
His’roav
146-C:2 Discharges Prohibited. No owner or operator shall dis-
charge or dispose of any oil as defined in this chapter from any facility
into or onto land, groundwaters, or surface waters of the state.
Hisroay
Source. 1986, 182:1. 1988. 249:4. eff. deleted “to the surface waters or” preceding
June 29, 1988. “groundwaters” and inserted “or surface
waters” thereafter.
Amendmentg—1988. Inserted “into or
Olito land” following “from any facility”,
Source. 1986. 182:1. 1988. 249:1—3. eff.
June 29. 1988.
Amendments—1988. Paragraph II: Sub.
stituted “release or addition” for “disposal.
addition, or injection” preceding “of any
liquid to”. inserted land” thereafter and
deleted “from any designed conveyance
system, including, but not limited to. pipe.
ditch, channel, tunnel, conduit, well, fissure,
container, or tank, as well as any designed
leichate disposal system’ following “surface
waters”.
Paragraph III: Inserted “spilling, leaking.
leaching’ preceding “or placing”. “groundwa-
ter” following “on any land”. “surface”
preceding “water” and deleted ‘so that such
waste or any constituent thereof may enter
surface or groundwater’ thereafter.
Paragraph XIII: Deleted “or political
subdivision” preceding “who has responsibil.
ity”.
Paragraph XIV: Deleted uor political
subdivision” preceding “in possession” in the
first sentence and added the second sentence.
Paragraph XIV.a Added.
Revision note. Substituted ‘division’ for
•commission” in pars. I and VIII and “divi-
sion of water supply and pollution control”
for “water supply and pollution control
commission” in par. I pursuant to 1986.
202:6, II.
CROSS REFERENCES
Liability for cleanup and restoration costs. see RSA 146-C.11.
146-C:3 Registration of Underground Storage Facilities.
I. The owner of each existing underground storage facility shall register
the facility with the division on forms provided by the division and shall
Provide the following information:
(a) Facility name, location, and mailing address.
407
6

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OSWER Directive 9650.15
146-C:3 PUBLIC HEALTH
(b) Owner’s name, mailing address, and telephone number.
(c) Contact person for this facility.
(d) Tank information: the size 1 age, type of tank material, location (on-
site), and oil product stored.
(e) Demons it c .’ •f financ : 1 r ponsibility pursuant to rules adopted
under RSA 146•C:9, VII. Proof of ei.gibility for financial assistance under
RSA 146-D shall satisfy the requirement of demonstration of financial
responsibility under. this subparagraph. -
II. The owner of each existing underground storage facility shall
register the facility with the division on forms provided by the division,
and shall provide the following information to the extent that it may
reasonably be available to the owner:
(a) Results of previous tank testings conducted in accordance with
division rules, including documentation of test results.
(b) All previous owners and lessees with names and current addresses.
(c) A detailed description of the facility; the size of tanks (physical
dimensions), number of fill boxes, number and type of fittings attached
to tanks, complete description of underground piping system, type of
cathodic protection, date each tank was manufactured, installed, relined,
and inspected, and tank manufacturer, and the date and results of the
latest tightness test of all underground tanks.
(d) The estimated life expectancy of all inground tanks and appurte-
nances.
(e) Description and date of past discharges or disposal of petroleum
based products, remedial actions, ground and surface water monitoring
results, and closure plans.
(f) Detailed site plan and layout.
(g) Existing groundwater protection monitoring programs, if any.
III. The owner of a registered underground storage facility shall report
any changes in the information provided under paragraph I or II within
10 days of the change.
IV. The registration required under this section shall be renewed every
5 years. A registration need not be renewed if the division has received
written notice that the registered underground storage facility has been
closed by approved procedures according to rules adopted pursuant to RSA
146-C:9, 11(i). Any notice of closure shall include the date of such closure.
V. The division shall forward information compiled under this section
to the federal Environmental Protection Agency pursuant to 42 U.s.c.
6991a(c).
HISTORY
Sourve. 1986. 1821. 1988, 249:5, 6. eff. Revision note. In the introductory clauses
June 29, 1988. of pars. I and II. in par. 11(a) and in the
1988. Paragraph 1(e): !o.n s.e te e0f )at_ IV,:ul s t 8 e l
Paragraph V: Added. 202-6. 11.
408

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OSWER Directive %5O.15
UNDERGROUND STORAGE FACILITIES 146-C:5
Contnipnt 1988 amendment. 1988. 249:21. eff. June 29. 1988. the amendment did
249:19 provided for amendment of this not take effect
section. However, under the terms of 1988.
Caoss REFERENCES
Exempt faciliti , see RSA 146 ”C:G-a.
146-C:4 Underground Storage Facility Permit Required.
I. No person shall own or operate an underground storage facility in this
state without a permit issued by the division. The division may revoke or
modify any permit following a hearing, upon a finding that just cause
exists for such action.
II. The division shall issue or deny a permit to all facilities registered
under RSA 146-C:3 within 90 days of the receipt of the complete
registration information. A permit issued under this section shall be
displayed on the premises of the underground storage facility at all times.
Permits shall be valid for a period of 5 years.
Hisroa
Source. 1986. 182:1, off. May 28. 1986. second sentence of that paragraph and in the
Revision note. References to “water supply (hit sentence of par. II chanted to “division”
and pollution control commission” in the first pursuant to 1986. 202.6. U.
sentence of par. I and to “commi,.aion in the
Caoss REFERENCES
Exempt facilities, see RSA 146-C.6-a.
Penalty for operat300 of facility without permit, see REA 146-C:1O.
Transfer of ownership, see RSA 146C6.
146-C:5 Records ‘Required; Inspections.
I. The operator of an underground storage facility shall keep and
reconcile accurate stock inventory records for the purpose of detecting
leaks. The records shall be maintained and made available for division
inspection and copying for a period of not less than 3 years.
II. For the purpose of developing or assisting in the development of any
rule, conducting any study, instituting any corrective measures, or
enforcing the provisions of this chapter, any owner or operator of a faciHty
subject to regulation under this chapter shall, upon request of any
employee or authorized representative of the division, furnish information
relating to such facility or its contents, conduct monitoring or testing,
permit such employee or authorized representative at all reasonable times
to have access to and to copy all records relating to such facility, and
permit such employee or authorized representative to have access to the
facility for corrective measures.
Ill. For the purpose of developing or assisting in the development of any
rule, conducting any study. instituting corrective measures, or enforcing
the provisions of this chapter, division employees or authorized represent
atives may, upon the presentation of appropriate credentials:
409 8

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OSWER Directive 9650.15
146-C:6 PUBLIC HEALTH
(a) Enter at reasonable times any site where a facility regulated under
this chapter is located.
(b) Inspect and obtain samples from any person of any regulated
substances in such facility.
(c) Conduct monitoring or testing of the tanks, associated equipment,
contents, or surrounding soils, air, surface water or groundwater.
(d) Institute corrective measures.
IV. Information obtained by the division under this chapter which, in
the judgment of the federal Environmental Protection Agency or the
division, constitutes a trade secret shill not be disclosed to the public
without notice to the owner of the trade secret and an opportunity for
hearing. The division may provide information relating to trade secrets to
the Environmental Protec on Agency, provide f that the Environmental
Protection Agency guarar.tees the same degree of confidentiality as does
the division.
HISTORY
Source. 1986. 182:1. 1988. 249:7. 8. eff. Paragraph IV: Added.
June 29. 1988. Revision note. In the second sentence of
Amendments—1988. Paragraph II: par. I and the first sentence of par. II,
Amended generally, substituted “division” for “commission”
Paragraph III: Added. pursuant to 1986, 202:6, II.
Cnoss REFERENCES
Exempt facilities, see RSA 146-C:6-a.
Liability of owiter (of recordkeeping, see RSA 146-C:10.
146-C:6 Transfer of Ownership. Prior to the transfer of ownership
of an underground storage facility, the transferor shall notify the
transferee of the transferor’s compliance with the rules of the division
relative to tank testing and replacement When a transfer of ownership
takes place, the new owner shall notify the division of the transfer and shall
assume the permit issued to the previous owner.
HISTORY
Source. 1986, 182:1, eff. May 28. 1986. following “notify ihe” in the second sentence
Revision note. Reference to “commission” changed to “division” pursuant to 1986, 202:6.
preceding “relative” in the first sentence and
Caoss REFERENCES
Exempt facilities, see RSA 146 ’C:6 ’a.
146-C:6-a Exemption. The provisions of RSA 146-C:3, 4, 5, 1 and 6
shall not apply to facilities no longer in use on January 1, 1974. The
provisions of RSA 146-C:4, 5, 1 and 6 shall not appLy to facilities taken
out of use on or after January 1, 1974, and closed according to rules adopted
under RSA 146-C:9, 11(i).
HISTORY
Source. 1988, 24 . eff. June 29, 1988.
410 9

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OSWER Directive 9650.15
UNDERGROUND STORAGE FACILITIES 146-C:9
146-C:7 New Facilities.
I. Prior to commencing construction or installation of a new facility or
substantial modification of an existing facility, an owner shall submit plans
and specifications to the division and obtain written approval of those
plans. Such plans shall be approved by an engineer licensed to practice
in the state of New Hampshire on forms provided by the division. Within
90 days of submission of completed plans. the division shall send the owner
written notice of approval or disapproval. Failure to send a notice shall
be deemed to be approval of the plans.
II. An owner shall not cause or allow any act which is not in accordance
with the approved plans and all terms and conditions of the division’s
approval of those plans.
III. An owner shall demonstrate financial responsibility pursuant to
rules adopted under RSA 146-C:9, VII. Proof of eligibility for financial
assistance under RSA 146-D shall satisfy the requirement of demonstration
of financial responsibility under this paragraph.
Hisroay
Source. 1986. 182:1. 1988. 249:10. eff. par. II changed to “division” and “divisions”.
June 29. 1988. respectively, pursuant to 1986, 202:6. II.
Amendment.s—1988. Paragraph 111: Contingent 1988 amendment. 1988.
Added. 249:20 provided for amendment of this
Revision note. References to “commissIon”
throughout par. I and to commission not talce effect.
CROSS REFERENCES
Issuance of permits, see RSA 146-C:4.
146-C:S Prohibition Against Reusing Tanks. Tanks which are
removed and do not meet the standards for new tanks shall not be
reinstalled for the purpose of petroleum storage. If a tank meets the
standards, it may be reinstalled for petroleum storage if after thorough
cleaning and inspection, internally and externally, it is found to be
structurally sound and free of pinholes, cracks, structural damage, or
excessive corrosion. Such tanks shall be reinstalled in accordance with
requirements of this chapter. A tank once used for petroleum shall not be
reused for a food product, If a tank is to be disposed of as junk, it must
be retested for petroleum vapors, rendered vapor free if necessary, and
punched with holes to make it unfit for further use.
Source. 1986, 182:1, eff. May 28. 1986.
146-C:9 Rulemaking. The division shall adopt rules, under RSA 541-
A, relative to:
I. Procedures, forms, and information required for registration of
underground storage facilities, as authorized by RSA 146-C:3.
411 10

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OSWER Directive 9650.15
146-C:9 PUBLIC HEALTH
II. Procedures, forms, and criteria for issuing and renewing permits, as
authorized by RSA 146-C:4. Criteria for permits shall include, but not be
limited to:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
storage
(h)
facilities.
(1) Procedures for the temporary and permanent closure of under-
ground storage facilities.
(j) Technical and procedural alternatives and exemptions.
III. Requirements for recordkeeping, as authorized by RSA 146-C:5, I.
IV. Procedures for conducting inspections, as authorized by RSA 146-
C:5, II.
V. Procedures, forms, and criteria for approving plans for new
underground storage facility construction and installation, as authorized
by RSA 146-C:7.
VI. Criteria for determining what constitutes a facility under this
chapter including, but not limited to, tank size and capacity.
VII. Criteria for demonstrating financial responsibility for ownership
and operation of underground storage facilities.
VIII. Acceptance and distribution of funds from the leaking under-
ground storage tank trust fund established pursuant to 26 U.S.C. section
9508.
H sToav
Source. 1986. 182:1. 1988, 249:11, eff. division of water supply and pollution control
June 29. 1988. shall not issue rules pursuant to RSA 146-
Amendments—1988. Paragraph VI I: C:9. VII as inserted by section 11 of this act
Added. until the U.S. Environmental Protection
Paragraph VIII: Added. AgenCy has issued its final rules relative to
financial responsibility for ownership and
Revision note. In the introductory clause, operation of underground storage facilities.
substituted “division” for “commission” The division shall adopt such rules not later
pursuant to 1986. 202.-6, II. than 90 days after the issuance of such final
Adoption of rules relative to financial federal rules. The rules adopted by the
responsibility and federal funds. 1988. division pursuant to P.SA 149-C:9. VU and
249:17. eff. June 29. 1988. provided: “Not- VIII shall not be more stringent than the
withstanding any section of this act, the federal rules.”
Caoss REFERENCES
Adoption of rules relating to admir trative fines, see RSA 146-C:10-a.
Minimum standards for repairing an underground steel tank.
Tank replacement schedules.
Tank testing schedules.
Minimum standards for new underground tanks.
Standards for fiberglass, fiberglass clad, and steel tanks.
Standards for leak monitoring at underground storage facilities.
Minimum standards for secondary containment for underground
facilities. -
Minimum standards for piping systems at underground storage
412
11

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WER Directive 9650.15
UNDERGROUND STORAGE FACILITIES 146-C:1O
LIBRARY REFERENCES
West Key Number CJS
Health and Environment 25$ Health and Environment 4137.
\146-C:9-a Orders; Injunctions.
The division is authorized to issue an administrative order directi
any wner or operator to cease activity violating this chapter, to take ac n
neces ry to comply with this chapter. or to institute corrective me res,
as defi d under RSA 146-A:11.a, III, in response to a disch e or
disposal. -
II. Notwi standing any other provision of this chapter, t division.
upon receipt f information that the storage, transmission o dispensing
of oil at a faci ty subject to this chapter may present an minent and
substantial haza to human health or to the environment. ay take action
as it determines n essary to protect human health or e environment
The action the divis n may take includes, but is no imited to:
(a) Issuing an or directing the facility own or operator to take
necessary steps to eli ate the hazard. The ision may order the
permanent or temporary ssation of Qperations a facility. Orders of the
division issued under this ection shall be ective immediately. Any
person to whom an order is rected shall i ediately comply, but may
appeal the order in accordanc with para ph III of this section.
(b) Requesting the attorney eneral bring an action for injunctive
relief, including a mandatory inju cti
IlL Appeal of an order issued un this section shall be governed by
RSA 21-0:7, IV.
ISTORY
Source. 1988. 249:12. eff. June 29. 988.
146-C:1O Penalty.
I. Any person who ow or operates an un rground storage facility
without a permit as re ired by this chapter, o fails to comply with
a condition of that pe it or of an order issued un er RSA 146-C:9-a, or
who violates the nil adopted under this chapter rel ive to underground
storage facilities s 1 be subject to a civil penalty of not ore than $10,000
for each violatfo . Each day of a continuing violation hail count as a
separate violat’ n. Such a violation may also be enjoined the superior
court upon a lication of the attorney general.
IL All neys collected under this section shall be paid to the oil
pollution ontrol fund established under RSA 146-A:11-a.
His7oa
So cc. 1986. 182:1. 1987. 377:9. 1988. —1988. Paragraph I: Deleted “or” p ed
249: . 1989. 230:12. eff. July 23. 1989. ing who tails”, inserted “or of an o er
mendrnents—1989. Paragraph I: Delet’ for
413 12

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OSWER Directive 9650.15
146-C:10-a PUBLIC HEALTH
1.000” following “penalty of not more than” —1987. Designated the existing provlsiop/’
an deleted “day or preceding “violation” in of the section as par. I. added “except w d’re
the t sentence, added the second sentence the owner controls the inventory” at ttjend
and re rote the fourth sentence, of that paragraph, and added par
CROSS REFERENCES
Administrati fines, see RSA 146 ’C:lO-a.
Lza RY REFERENCES
West Key Number ALR
Health and Environme 28. 38. Validity of state tatutory provision per-
cjs - mittuig admini ative agency to impose
H monetary pen ies for violation of environ-
ealth and Environment § mental pollu n statute. 81 ALR3d 1258.
146-C:1O-a Administrati Fines. The ommissioner of the depart-
ment of environmental services, ter noti and hearing pursuant to RSA
541-A, may impose an administra ‘ye f’ e not to exceed $2,000 for each
offense upon any person who via s any provision of this chapter.
Rehearings and appeals from a de si of the commissioner under this
section shall be in accordance h RS 541. Any administrative fine
imposed under this section sh not rec e the imposition of further
penalties under this chapter. he proceeds o dministrative fines levied
pursuant to this section sh be deposited by th commissioner in the oil
pollution control fund e blished under RSA 14 . The commissioner
shall adopt rules, und RSA 541-A, relative to:
I. A schedule of ministrative fines which may be i ed under this
section for violat’ of this chapter, and
II. Procedur for notice and hearing prior to the imp ‘tion of an
administrati fine.
HISTORY
Sourc 1989. 230’J, eff. july 23. 1989.
Caoss REFERENCES
ivil penalty, see RSA 146-C:10.
146-C:11 Liability for Cleanup Costs; Municipal Regulations.
I. Any owner or operator or other person who directly or indirectly
causes or suffers the discharge or disposal of oil into or onto any surface
water or groundwater of this state, or in a land area where oil has seeped
or may or will ultimately seep into any surface water or groundwater of
the state in violation of this chapter, or rules adopted under this chapter,
shall be strictly liable for costs directly or indirectly resulting from the
violation relating to:
(a) Containment of the discharged oil: -
(b) Cleanup and restoration of the site and surrounding environment,
and corrective measures as defined under RSA 146-A:11-a, 111(a) and (b);
and
414
13

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OSWER Directive 9650.15
UNDERGROUND STORAGE FACILITIES 146-C:12
(c) Removal of the oil.
I-a. The owner or operator of a facility shall immediately inform the
division of any discharge or disposal in violation of this chapter. Such
person shall take immediate action to mitigate damages from such
discharge consistent with any applicable rules of the division. If the owner
is not the operator of the facility, the operator shall immediately inform
the owner of any discharge or disposal in violation of this chapter.
U. Nothing in this chapter shall be construed to prevent the party
strictly liable from instituting a legal action against any party responsible
for causing the spillage for costs incurred by the strictly liable party in
complying with this chapter.
III. Nothing in this chapter shall be construed to pre-empt local zoning
or other regulations, properly enacted under other statutes. which
reasonably regulate the location of underground storage facilities.
IV. The division shall immediately notify the governing body of a
municipality of any leaking underground storage tanks either within the
municipality or near the local water supply.
V. [ Repealed.]
HISTORY
Source. 1986. 182:1. 1987. 377:4. 6. 146 .A:11.a. 111(a) and (bY’ following “environ
1988. 249:14. 15. eff. June 29. 1988; 271:9. ment.
VII. eff. July 1. 1988. Paragraph V: Added.
Amendments—1988. Paragraph I: Chap- Revision note. In par. I. substituted “sur•
ter 249 inserted “or disposal” following face water or groundwater” for ‘surface or
“discharge in the introductory paragraph. ground water” to conform terminology to
Paragraph I.L Added by ch. 249. proper grammatical usage.
Paragraph V: Repealed by ch. 211. At the beginning of par. IV. substituted
—1987. Paragraph 1(b): Inserted “and division ” for “commission pursuant to 1986,
corrective measures as defined under RSA 202:6. II.
CROSS REFERENCES
Liability for contamination by hazardous materials or toxic wastes of police, fire, emergency
preparedness or emergency response equipment. see RSA 154:8.a.
146.C:12 Federal Assistance and Private Funds. To implement this
chapter. the division is authorized on behalf of the state, with the approval
of the governor and council, to apply for and accept any federal assistance
which may become available for the purpose of this chapter. whether in
the form of loan or grant or otherwise, to accept the provision of any federal
legislation for such assistance, to enter into, act, and implement contracts
in connection with such assistance, or to act as agent for the federal
government in connection with such assistance. The division shall adopt
rules pursuant to RSA 541-A for accepting and distributing funds from
the leaking underground storage tank trust fund established by 26 U.S.C.
section 9508. Pending adoption of such rules, where federal assistance is
made available, the project shall be implen.ented in accordance with
applicable federal law, the regulations adopted under such law, and the
415
14-

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OSWER Directive 9650.15
146-C:12 PUBLIC HEALTH
contract or contracts providing for federal assistance, notwithstanding any
contrary provision of state law. The division may also utilize any private
funds which may be made available for the purposes of this chapter.
HISTORY
Source. 1986. 182:1. 1988. 249:16. eff. “in accordance” and “adopted under iuch
June 29. 1988. law” for “thereunder” following “the regula-
Amendments—1988. Rewrote the first tioliS in the third sentence.
sentence, added the second sentence and Revision note. In the first and third
inserted “pending adoption of such rules” sentences, substituted “division” for “commis-
preceding “where federal” and substituted sion” pursuant to 1986. 20t6. II.
“implemented” for “carried our : ‘eceding
416

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OSWER Directive 9650.15
NEW HAMPSHIRE
REVISED STATUTES
ANNOTATED
TITLES 10, 11
PUBLIC HEALTH
TO
HOSPITALS AND SANITARL4
Chapters 125 to 152
1992
CUMULATIVE SUPPLE MENT
For Use Until Publication of 1993 Cumulative Supplement
Cite Supplement as RSA., with chapter and section,
followed by (supp), thus:
RSA 21:3 (supp)
Butterworth Legal Publishers
EQUITY PUBLISHING DIVISION
ORPORD. NEW HAMPSHIRE 03777.9797
1992
16

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OSWER Directive 9650.15
146-C:1 PUBLIC HEALTH
CHAPTER 146-C
UNDERGROUND STORAGE FACILITIES
(New Sections)
146-C:13 Penalty; Persons Strictly Liable.
CRoss REFERENCES
Groundwater Protection Act, see RSA 485-C.
146-C:1 Definitions. In this chapter:
(No change in paragraph I.]
I-a. “CouRcil” means the water supply and pollution control council estab-
lished under RSA 21-0:7. (Added 1991. 92:22, eff. May 13, 1991.]
II. “Disci. :ge” means the release or .. didon of any oil or hazardous sub-
stance to lar groundwater or surfacc ;ater. (Amended 1990, 2C 1 1991,
92:23, eff. May 13, 1991.]
III. “Disposal” means deposit, disc . irge, injection, dumping, pilling,
leaking, leaching, or placing of oil or hazardous substance into or on any
land, groundwater or surface water. (Amended 1990, 208:1, eft June 26,
1990.]
[ No change in paragraph IV.]
V. “Facility” means an assemblage of tanks, pipes, pumps, vaults, fixed
containers, and appurtenant structures, singly or in any combination, which
are used or designed to be used for the storage, transmission, or dispensing
of oil or a hazardous substance, and which are within the size, capacity, and
other specifications prescribed by rules adopted by the division pursuant to
RSA 146-C:9, VI. [ Amended 1990, 208:2. 1991, 92:25, eff. May 13, 1991.]
Vi. “Failure” means a condition which may or does allow the uncontrolled
passage of oil or a hazardous substance into or out of a facility, and includes,
but is not limited to, a discharge to the groundwater or surface water of the
state without a permit issued pursuant to RSA 146-C:4. (Amended 1990,
208:2. 1991, 92:24, eff. May 13, 1991.]
VII. “Groundwater” means subsurface water that occurs beneath the wa-
ter table in soils and geologic formations. (Amended 1991, 92:26, eff. May 13,
1991.1
WI-a. “Hazardous substance” means material defined as a regulated sub-
stance under 42 U.S.C. 6991(2)(A) in addition to any material designated as a
hazardous substance pursuant to RSA 146-C:9, VT-a. (Added 1990,208:3, efL
June 26, 1990.]
(No change in paragraph VIII.]
IX. [ Repealed 1990, 208:14, eff. June 26, 1990.]
(No change in paragraph X.]
XI. “Nonresidential,” when referring to a faciUty, means a facility which
serves any commercial, industrial, in tjtutiOn&l, municipal, public, or other
76 17

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OSWE Directive 9650.15
UNDERGROUND STORAGE FACILITIES 146.C:2
building, including, but not limited to, service stations, hotels and motels,
hospitals, nursing homes, and correctional institutions, but not including
residential buildings. [ Amended 1991, 92:27, eff. May 13, 1991.]
XII. “Oil” means “oil” as defined in RSA 146-A:2. (Amended 1991, 92:28,
eff. May 13, 1991.1
[ No change in paragraph XIII.]
XIV. “Owner” means the person in possession of or having legal owner-
ship of a facility. In addition, for facilities no longer in use, “owner” includes
the person having had legal ownership of such facility immediately prior to
discontinuance of its use. (Amended 1991, 92:29, eff. May 13, 1991.]
(No changes in paragraphs XIV-a—XVII}.]
HisroaY
Source. 1986. 182:1. 1988, 249:1—3. 1990, 208:1—3, 14. 1991, 92:22—29, eff. May 13.
1991.
Amendments—1990. Paragraph II: .Substituted “oil or hazardous substance” for “liquid”
preceding “to land”.
Paragraph III: Inserted “or hazardt,us substance” following “oil”.
Paragraph V: Substituted “a hazarduus substance” for “per.roleum liquids” following “oil
or”.
‘Paragraph V I: Substituted “oil or i hazardous substance” for liquid” following “passage
of”.
Paragraph VII.a: Added.
Paragraph IX; Repealed.
—1991. Paragraph I-a: Added.
Paragraph II: Substituted “groundwater or surface water” for “groundwaters or surface
waters”.
Paragraph V: Substituted “an assemblage” for “a system” preceding “of tanks”.
Paragraph VI: Substituted “groundwater or surface water” for “waters” preceding “of the
state”.
Paragraph VII: Amended generally.
Paragraph XI: Deleted “non-comm’:rcial” preceding “residential buildings”.
Paragraph XII: Amended .generally.
Paragraph XIV Deleted “on Novemk tr 8. 1984” following ‘In use” in the second sentence.
146-C:2 Discharges Prohibited. No owner or operator or other person
responsible for the operation of facility shall discharge or dispose of any oil
or hazardous substance as defined in this chapter from any facility into or
onto any land, groundwater, or urface water of the state.
Hisi oaY
Source. 1986, 182:1. 1988, 219:1. !‘.#JO, 208:4. 1991, 92:30, eff May 18. 1991.
Amcndments—1990. Inserted “or ?.azardous substance” following “oil”.
—1991. Inserted “or other person r ’ r ’insible for the operation of a facility” following “op-
crater” and “any” preceding “land id substituted “groundwater, or surface water” for
“groundwaters. or surface waters” t ”-’after.
: 4OTAT1ONS
Cited
Cited in Mesiti v. Microdot, Inc.. “ ‘: .Supp. 57 (D.N.H. 1990).
18

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OSWER Directive 9650.15
146C:3 PUBLIC HEALTH
146-C:3 Registration of Underground Storage Facilities.
I. The owner of each existing underground storage facility shall register
the facility with the division on forms provided by the division and shall
provide the following information:
(No changes in subparagraphs (a)—(c).]
(d) Tank information: the size, age, type of tank material, location (on-
site), and product stored. (Amended 1990, 208:5, eff. June 26, 1990.]
(No change in subparagraph (e).J
II. The owner of each existing underground storage facility shall register
the facility with the division on forms provided by the division, and shall
provide the Tollowfhg information to the extent that it may reasonably be
available to the owner:
No changes in subparagraphs (a)—(d).]
e) Description and data of past discharges or aisposal, remedial ac-
tio .., ground and surface water monitoring results, and closure plans.
(Amended 1990, 208:6, eff. June 26, 1990.]
(No changes in subparagraphs (f) and (g).]
[ No change in paragraph III.]
W. The registration required under this section shall be maintained for
the life of the facility. A registration need not be maintained if the division
has received written notice that the registered underground storage facility
has been closed by approved procedures according to ziiles adopted pur-
suant to RSA 146-C:9, 1 1(1). Any notice of closure shall include the date of
such closure. [ Amended 1991, 92:31, eff. May 13, 1991.]
(No change in paragraph V.]
HISTORY
Source. 1986, 182:1. 1988, 249:5, 6. 1990, 208:5, 6. 1991, 9231, efL May 13, 1991.
Amendmenta—1990. Deleted “oil” preceding “product” in par. 1(d) and deleted “of petru-
leuni based products” following “disposal” in par. 11(e).
—1991. Paragraph IV Substituted “maintained for the life of the facility” for “renewed
every 5 years” following “shall be” in the first sentence and “maintained” for “renewed”
following “need not be” in the second sentence.
146-C:4 Underground Storage Facility Permit Required.
I. No person shall own or operate an underground storage facility in this
state without a permit issued by the division. The permit to operate may be
revoked for just cause, including, but not limited to, the operation or owner-
ship of an underground storage facility in violation of the division’s rules. To
revoke a permit, the division shall issue a show cause order to an owner or
operator in violation of this chapter, or rules adopted under this chapter, but
said show cause order shall not take effect until the owner or operator has
had an opportunity to be heard by the council, provided such request is made
within 20 days of the issuance of the show cause order. Appeal of an order
revoking a permit to operate shall be governed by RSA 21-0:7, IV. Any
78 19

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OSWER Directive 9650.15
UNDERGROUND STORAGE FACILITIES 146.C:5
appeal brought pursuant to RSA 541 shall not stay an order by the council
which revokes a permit. (Amended 1991, 92:32, eff. May 13, 1991.]
II. The division shall issue or deny a permit to all facilities registered
under RSA 146-C:3 within 90 days of the receipt of the complete registration
information. A permit issued under this section shall be displayed on the
premises of the underground storage facility at all times. Permits shall be
valid for a period of 5 years, except as provided in paragraph III. (Amended
1990, 3:73, eff. Feb. 20, 1990.1
III. A permit fee of $70 per year shall he paid to the division by the owner
or operator or each ermitted facility, except for facilities owned by state
and local governments, including counties, and school districts, in the man-
ner described below. Al] fees shall be deposited with the state treasurer as
unrestricted revenue. Permit fees shall be calculated as follows:
(a) Facilities with existing permits in Hillsborough county shall have a
permit expiration date of April 30, 1991. A fee of $70 for 1990 shall be paid to
the division on or before September 30, 1990.
(b) Facilities with existing permits in Merrimack and Belknap counties
shall have a permit expiration date of April 30, 1992. A fee of $140 for 1990
and 1991 shall be paid to the division on or before April 30, 1991.
(c) Facilities with e.’dsting permits in Rockingham county shall have a
permit expiration date of April 30, 1993. A fee of $210 for 1990—1992 shall be
paid to the dvision on or before September 30, 1991.
(d) Facilities with existing permits in Coos, Carroll, and Grafton coun-
ties shall have a permit expiration date of AprIl 30, 1994. A fee of $280 for
1990—1993 shall be paid to the division on or before April 30, 1992.
(e) Facilities with existing permits in Cheshire, Sullivan, and Strafford
counties shall have a permit expiration date of September 30, 1995. A fee of
$350 for 1990—1994 shall be paid to the division on or before September 30,
1993.
(1) For new facilities, the permit shall expire 5 years from the last day of
the month in which the permit was issued. A fee of $350 shall be paid upon
submission of the permit application. If for any reason the permit is denied,
the fee shall be returned or refunded.
(g) The fee for permit renewals shall be the same as the fee for new
permits. [ Added 1990, 3:73, eff. Feb. 20, 1990.]
HISTORY
Souzee. 1986, 182:1. 1990, 3:73. 1991. 92:32. elf. May 13, 1991.
Amendments—1990. Paragraph II: Mded “except as provided in paragraph II I” at the
end of the third sentence.
Paragraph III: Added.
—1991. Paragraph I: Rewrote the second sentence and added the third, fourth and fifth
sentences.
146-C:5 Records Required Inspections.
[ No change in paragraph 1.1
79 20

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OSWER Directive 9650.15
146 -C:6 PUBLIC HEALTH
II. For the purpose cf developing or assisting in the development of any
rule, conducting any study or investigation, instituting any corrective or re-
medial measures, or enforcing the provisions of this chapter, any owner or
operator of a facility subject to regulation under this chapter shall, upon
request of any employee or authorized representative of the division, furnish
information relating to such facility or its contents, conduct monitoring or
testing, permit such employee or authorized representative at all reasonable
times to have access to and to copy all records relating to such facility, and
permit such employee or authorized representative to have access to the
facility for corrective or remedial measures. (Amended 1991, 92:33, eff. May
13, 1991.] -
III. For the purpose of developing or assisting in the development of any
rule, conducting any study or investigation, instituting corrective or reme-
dial measures, or enforcing the provisions of this chapt r, division employees
or authorized representatives may, upon the presentat on of appropriate cre-
dentials: (Amended 1991, 92:34, eff. May 13, 1991.]
(No changes in subparagraphs (a)—(c).)
(d) Institute corrective or remedial measures. [ Amended 1991, 92:35,
eff. May 13, 1991.]
HIsToRY
Source. 1986. 182:1. 1983, 249:7, 8. 1991, 92:33—35, eff. May 13, 1991.
Amendments—1991. Paragraph I I: Inserted “or investigation” preceding “insututing any
corrective” and “or remedial” preceding “measures” in two places.
Paragraph III: Inserted “or investigation” preceding “instituting corrective” and “or reme-
dial” thereafter in the introductory paragraph. and inserted “or remedial” in subpar. (d).
146-C:6 Transfer of Ownership. Prior to the transfer of ownership of
an underground storage facility, the transferor shall notify the transferee of
the transferor’s compliance with the rules of the division under this chapter.
When a transfer of ownership takes place, the new owner shall notify the
division of the transfer and shall assume the permit issued to the previous
owner.
HisToRy
Source. 1986, 182:1. 1991, 92:36, eff. May 13, 1991.
Amendnient—1991 , Substituted “under this chapter” for “relative to tank testing and re-
placement” following “division” in the first sentence.
146.C:7 New Facilities.
(No change in paragraph I.]
I-a. Any person, except state and local governments, including counties,
and school districts, submitting plans and specifications for a new facility
shall pay to the division a fee of $100. Such fee shall be for reviewing such
plans and specifications and for making inspections during installation. The
fees shall be deposited with the state treasurer as unrestricted revenues.
(Added 1990, 3:74, eff. Feb. 20, 1990.]
80 21

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OSWER Directive 9650.15
UNDERGROUND STORAGE FACILITIES 146-C:9
II. An owner shall no cause or allow any construction or other activity
which is not in accordance with the approved plans and all terms and condi-
tions of the division’s approval of those plans. (Amended 1991, 92:37, eff.
May 13, 1991.]
[ No change in paragraph III .]
HISTORY
Source. 1986, 182:1. 1988. 249:10. 1990, 3:74. 1991, 92:37, efL May 13, 1991.
Amendmenta.—1990. Paragraph I.a: Added.
—1991. Paragraph II: Substituted “construction or other activity” for “act” following “*1-
low any”.
146-C:S Prohibition Against Reusing Tanks. Tanks which are re-
moved and do not meet the standards for new tanks shall not be reinstalled
for the purpose of oil or hazardous substance storage. If a tank meets the
standards, it may be ‘reinstalled for oil or hazardous substance storage if
after thorough cleaning and inspection, internally and externally, it is found
to be structurally sound and free of pinholes, cracks, structural damage, or
excessive corrosion. Such tanks shall be reinstalled in accordance with re-
quirements of this chapter. A tank once used for oil or hazardous substance
shall not be reused for a food product. If a tank is to be disposed of as junk, it
must be retested for oil or hazardous substance vapors, rendered vapor free
if necessary, and punched with holes to make it unfit for further use.
HISTORY
Source. 1986, 182:1. 1990, 208:7, efL June 26, 1990.
Axnendmenta—1990. Substituted “oil or hazardous substance” for “ le ” preceding
“storage” in the first and second sentences, preceding “shall” In the third sentence and pre-
ceding “vapors” in the fourth sentence.
146-C:9 Rulemaking. The division shall adopt rules, under RSA 541-A,
relative to:
(No changes in paragraphs I—Ill.]
IV. Procedures for conducting inspections or investigations, as author-
ized by RSA 146-C:5, II. [ Amended 1991, 92:38, eff. May 13, 1991.]
[ No changes in paragraphs V and VI.]
VI-a. Criteria for determining whether any material is a hazardous sub-
stance as defined in this chapter and procedures for such designation.
(Added 1990, 208:8, eff. June 26, 1990.]
[ No changes in paragraphs VII and VIII.]
IX. Procedures for collection of fees under RSA 146-C:4, III. [ Added
1990, 3:75, eft Feb. 20, 1990.]
X. Procedures and criteria for mitigation and prevention of damage due
to a discharge from an underground storage facility. (Added 1991, 92:39, efL
May 13, 1991.]
XI, Procedures and criteria for responding to and reporting a discharge
from an underground storage facility. [ Added 1991, 92:39, efL May 13, 1991.]
81 22

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OSWER DirectiVe 9650.15
146-C:9a PUBLIC HEALTH
XII. Procedures for conducting tank testing, including qualifications of
persons conducting tank testing. [ Added 1991, 92:39, eff. May 13, 1991.]
HISTORY
Source. 19S6. 182:1. 1988, 249:11. 1990, 3:75; 208:8. 1991, 92:38, 39, elf. May 13,
1991.
Amendments—I 990. Paragraph VI.a: Added by eb. 208.
Paragraph IX: Added by ch. 3.
—1991. Inserted ‘or Investigations” following “inspections” in pat IV a d added pars. X—
XII. - -
\k46.C:9.a Orders; Injunctions.
I\ ’he division is authorized to issue an administrative order directi
any o’ q er or operator or any other person who is strictly liable to ceas fly
activity 4olating this chapter, to take action necessary to comply wi this
chapter, aM to institute corrective and remedial measures, which all in-
clude the fofl ing
(a) Provid’ an interim water supply and establishing permanent
alternative water\upply system to mitigate damage to the s , groundwater
or surface water. \
(b) Removal and\ batement of contamination iting from a dis-
charge from an undergr znd storage facility.
(c) Reimbursement t he state for all costs curred by the state in
responding to a discharge o’f oil or a hazardo ubstance from a leaking
underground storage facility. (amended 1991, :40, eff May 13, 1991.]
II. Notwithstanding any other ovision o is chapter, the division, upon
receipt of information that the stora e, tr smission or dispensing of oil or a
hazardous substance at a facility su t to this chapter may present an
imminent and substantial hazard to u an health or to the environment,
may take action as it determines n ess to protect human health or the
environment. The action the divi n may includes, but is not limited to:
[ Amended 1990, 208:9, eff. Ju 26, 1990.]
(a) Issuing an order dir cting the facility o r or operator or any per-
son who is strictly liable nder RSA 146-C:11 to ke necessary steps to
eliminate the hazard. e division may order the pe anent or temporary
cessation of operatio at a facifity. Orders of the divisi issued under this
section shall be ctive immediately. Any person to wh an order is di-
rected shall m i diately comply, but may appeal the orde in accordance
with paragrap II of this section. (Amended 1991, 92:41, eff. 113, 1991.]
[ No ch ge in subparagraph (b).1
[ No ch ge in paragraph III.]
HISTORY
So cc. 1988, 249:12. 1990, 20S:9. 1991. 92:40, 41, eff. May 13, 1991.
mend ments—1990. Paragraph II: Inserted “or a hazardous substance” folIo ring “oil”
e first sentence.
82
23

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OSWER Directive 9650.15
UNDERGROUND STORAGE FACILITIES 146-C:11
‘ %ç 1991. Paragraph I: Amended generally.
P aph 11(a). Inserted “or any person who is strictly liable under RSA 146-C:1l ” toll
ing “ope r” in the first sentence.
146-C:IO alty.
[ No change in p graph I.]
II. All moneys collec under this section which p n to the discharge
of oil shall be paid into the pollution control f established under RSA
.146-A:11-a. All moneys collec under this ction which pertain to dis-
charge of a hazardous substance all paid to the hazardous waste
cleanup fund established under RS 7-B:3. [ Amended 1991, 92:42, eff.
May 13, 1991.]
HISTORY
Source. 1986. 182:1. 19 • 377.9. 1988, 249:13. 1989. 230.I_. 991. 92:42, eff May 13,
1991.
Amendments— 1. Paragraph II: 1n erted “which pertain to the that e otuti” follow-
ing “this secti in the first sentence and added the second sentence.
CROSS REFERENCES
nalty (or willful failure to comply; see RSA 146-C:13.
146-C:11 Liability for Cleanup Costs; Municipal Regulations.
I. Any person who, without regard to fault, directly or indirectly causes or
suffers the discharge or disposal of oil or a hazardous substance into or onto
any surface water or groundwater of this state, or in a land area where it has
seeped or may or will ultimately seep into any surface water or groundwater
of the state in violation of this chapter, or rules adopted under this chapter.
shall be strictly liable for costs directly or indirectly resulting from the viola-
tion relating to: (Amended 1990, 208:10. 1991, 92:43, eff. May 13, 1991.]
(No change in subparagraph (a).]
(b) Cleanup and restoration of the site and surrounding environment,
and corrective or remedial measures as defined under RSA 146-ku-a,
111(a) and (b); and (Amended 1991, 92:43, eff. May 13, 1991.]
(No change in subparagraph (c).]
(No changes in paragraphs I-a—V.]
HIsTORY
Source. 1986. 182 1. 1987, 377:4, 6. 1988, 249:14, 15; 271:9, Vii. 1990, 208:10. 1991,
92:43, eff. May 13, 1991.
Amendments—1990. Paragraph I: Inserted “or a hazardous substance” foUowing “disposal
of oil” and substituted “it” for “oil” preceding “has seeped”.
—1991. Paragraph I: Deleted “owner or operator or other” preceding “person who”, &nd
inserted “without regard to fault” thereafter and “water” following ‘surfa e’ in two places it.
the introductory paragraph and inserted “or remedial” follo’ving “corrective” in subpar. (hi.
CROsS REFERENCES
Double recovery allowed, see RSA 146-C:13
83 24

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OSWER Directive 9650.15
146.C: PUBLIC HEAL
ANNOTATIONS
Prior ner liability
T ecuon does not allow a private litigant to hold a prior owner strictly liable for c of
contarnin clearing and removing hazardous wastes from his property; paragrap of this
secuon perm the state to hold those who discharge oil strictly liable for vant Costs.
while paragraph ecognizes that the party held strictly Liable may m - n an action in
arty responsible for the spillage. Mesiti v. crodot. Inc.. 739 F.
146 .C:13 Penalty; P2r 5 Strictly Liabi Any person who is found
to be strictly liable for a dischar or spilla of oil, and who willfully fails to
comply with a division order requiri vestigation, containment, cleanup,
removal, remedial measures, or c ect measures, shall be liable to the
state in double the amount Is expended by the state
in undertaking action at the site.
Source. 1991,
HISTORY
eff. May 13, 1991.
CROSS REFERENCES
for cleanup costs generally, see RSA 146-C:11.
generally, see RSA 146-C:1O.
84
25

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OSWER Directive 9650.15
NEW HA14PSHIRE REGULATORY REQUIREMENTS
APPLICABLE TO THE UNDERGROUND STORAGE TANK PROGRAM, 1993
40 CFR 282.79
1

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OSWER Directive 9650.15
Regulatory Provisions:
TABLE Op CONTEIITS
(1) New Hampshire Code of Administrative Rules (November
1990) Part Env-Ws 411, Control of Underground Storage
Facilities:
Section 411.21
Section 411.22
Section 411.23
Section 411.24
Section 411.25
Section 411.26
Section 411.27
Section 411.28
Section 411.29
Purpose, except for the following
words, “heatingoils.”. 5
Applicability, except for 411.02(d). 5
Definitions. . . . . . . . . . . . . . . . . . . . . . . . . 6
Registration 8
Change mUse 8
Information Required for
Registration. . . . . . . . . . . . . . . . . . . . . . . . 8
Permit to Operate 9
Transfer of Facility Ownership...... 10
Financial Responsibility...... ...... 11
Inventory Monitoring................ 11
Regulated Substance Transfers....... 13
Tightness Testing 14
Certification of Technicians
Performing Tightness Tests 16
Tightness Test Failures... .17
Unusual Operating Conditions 17
Temporary Closure...... .... ... . ..... 17
Permanent Closure 19
Prohibition Against Reusing Tanks... 21
Requirements for Approval of
Underground Storage Systems......... 21
Tank Standards for New Underground
Storage Systems 21
Piping Standards for New Underground
Storage Systems. . ... . .. . . . ... . . ..... 23
Secondary Containment for New
Tanks . . 24
Secondary Containment for New
Pressurized Piping... . . . .. .......... 25
Spill Containment and Overfill
Protection 25
Leak Monitoring for New Tanks 26
Leak Monitoring for New Underground
Piping Systems............. 26
Installation of New Underground
Storage Systems.. 27
Release Detection for Tanks Without
Secondary Containment and Leak
Monitoring, except for the following
words in 411.29 (a), “With the
exception of on premise use heating
oil systems.”... . . . . . . . . ... 28
Section 411.01
Section
Section
Section
Sect ion
Section
Section
Section
Section
Section
Section
Section
Section
Section
Section
Section
Section
Section
Section
411.02
411.03
411.04
411.05
411. 06
411.07
411.08
411.10
411.11
411.12
411.13
411.14
411.15
411.16
411.17
411.18
411.19
411.20
2

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Section 411.30
Section 411.31
Section 411.32
Section 411.33
Section 411.34
Section 411.35
Section 411.36
Section 411.37
Section
Section
Section
Section
Section
Section
Section
Section
Section
Section
Section
Section
Section
Section
412.01
412.02
412.03
412.04
412.05
412.06
412.07
412.08
412.09
412.10
412.11
412.12
412.13
412.14
OSWER Directive 9650.15
Release Detection for Piping......... 30
operation of Leak Monitoring
Equipment. . . . . . . . . . . . . . . . . . . . . . . 31
corrosion Protection for Steel
Tartks....................... 32
Corrosion Protection for Piping 32
Submission of Corrosion Protection
. 32
Relining Steel Tanks 32
Repair of Fiberglass-Reinforced
Plastic Tanks. . . , . , , , • . • , • , • 33
Repair and Replacement of Piping
34
Field Fabricated Tanks............... 34
Secondary Containment for Hazardous
Substance Systems...... . ............. 34
Waivers 34
37
37
37
38
38
39
39
40
41
41
42
45
47
47
Section
Section
411.38
411.39
Section 411.40
(2) New Hampshire Code of Administrative Rules (November
1990) Part Env-Ws 412, Reporting and Remediation of Oil
Discharges:
Purpose
Applicability
Definitions. . . . . . . . . . . . . . . . . . . . . . . . .
Notification. . . . . . . . . . . . . . . . . . . . . . .
Initial Response Action.
Abatement Measures
Free Product Removal..........
Initial Site Characterization...
Investigation Due to Discovery of
Discharges from Unknown Sources......
Site Investigation...................
Site Investigation Report.......
Remedial Action Plan.................
Public Notification..................
Waivers.. . . . . . . . . . . . . . . . . . . . . . . . . . . .
3

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New Hampshire
Code of Administrative Rules
Env Ws 411
Control of Underground Storage Facilities
November 1990
*
N.H. Department of Environmental Services
NI DE
4

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OSWER Directive 9650.15
PART V—WS 411 UNDERGROUND STORAGE AND HANDLING OF OIL AND PETROLEUM LIQUIDS
Statutory Authority: RSA 146—C:9 and RSA l 464 :ll—c
Env—Ws 411.01 Purpose . The purpose of these rules is to set forth the
requirements for widerground storage facilities under RSA 146—c, and to
minimize contamination of the waters of the State due to the storage and
handling of motor fuels, lubricating oils, other petroleum and
petroleum contaminated liquids, and hazardous substances, by establishing
standards and criteria for the registration, permitting, design, installation,
operation, maintenance, and monitoring of such facilities.
Source . #3116, eff 9—17—85; es by #4965,
eff 11—2—90
Env—Ws 411.02 Applicability . These rules apply to all underground
storage facilities having a total storage capacity of more than 110 gallons
which are used for the storage of regulated substances, with the following
exclusions:
(a) Oil—tranrsmission pipelines subject to the Natural Gas Pipeline
Safety Act of 1968 or the Hazardous Liquid Pipeline Safety Act of 1979;
(b) Wastewater treatment facilities including oil/water separators
regulated by the Clean Water Act Section 402 or 307(b), and oil/water
separators at oil and gas production facilities;
(c) Underground storage facilities which are used solely for
residential or domestic heating use;
U..da&e& . _ .d sto ..ge fa Llities haTing as tans wLtk a aterage’
oz more than 1,100 gallons and vhieh are used solely fer the s ornro
JILF heating oil for on prcmisco uoe-
Ce) Septic tank systems or floor drain collection tank systems that
collect waste for the purpose of segregating such waste from septic systems;
(f) Storm—water systems;
(g) Flow—through process systems which form an integral part of a
production process through which there is a steady, variable, recurring, or
intermittent flow of materials during the operation of the process.
Flow—through process systems shall not include tanks used for the storage of
materials prior to their introduction into the production process or fnr the
storage of finished products or by—products from the production process.
(h) Any system which Is located in an underground room or vault if
the system is totally above or upon the surface of the floor, and no portion
of any tank is covered, surrounded, or buried with soil or stone or other
material, and all system components can be visually inspected;
1 Env4Js tell
5

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OSWER Directive 9650.15
(i) Systems where less than lO of the total volume of the tank(s)
and associated piping is below the surface of the ground.
(j) Facilities containing radioactive material regulated under the
Atomic Energy Act of 1954;
(1) Emergency spill or overflow containment systems that are
jimnediately emptied after introduction of a regulated substance;
(1) Underground storage facilities which are used for the storage of
products containing concentrations of regulated substances which are less tiian
the allowable drinking water standard for the regulated substances or
hazardous constituents thereof; and
Cm) Equipment or machinery that contains regulated substances for
operational purposes such as hydraulic lift tanks and electrical equipment
tanks.
Source . #3116, eff 9—17—85; ss by 4965,
eff 11—2—90
Env—Ws 411.03 Definitions .
(a) “API 1615” means American Petroleum Institute publication
“Installation of Underground Storage Tanks 1979”.
(b) “Compatible” means the ability of two or more substances to
maintain their respective physical and chemical properties upon contact with
one another for the design life of the tank system wider conditions likely to
be encountered in the underground storage system.
(c) “Connected piping” means all piping including valves, elbows,
joints, flanges, and flexible connectors attached to a tank or system through
which regulated substances flow.
Cd) “Corrosion specialist” means an individual who is either
certified by the National Association of Corrosion Engineers or who is a
registered professional engineer with education and experience in corrosion
control of buried metal piping systems and tanks.
Ce) “Division” means the Water Supply and Pollution Control Division
of the Department of Environmental Services.
(f) “Tree product” means an oil or petroleum liquid that is present
as a non—aqueous phase liquid on groundwater, or surface water, or in soil or
bedrock.
(g) “Heating oil” means petroleum that is No. 1, No. 2, No.
4—light, No. 4—heavy, No. 5—light, No. 5—heavy, and No. 6 technical grades
of fuel oil, other residual fuel oils, including Navy Special Fuel Oil and
Bunker C, and other fuels when used as substitutes for one ot these fuel oils.
2 Env—Ws 411
&

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OSWER Directive 9650.15
(h) “Leak monitoring” means measurement for the presence of a
regulated substance before a release to the environment has occurred.
( ) “Lining” means a coating of a non—corrosive material bonded to
the interior surface of a tank.
(j) “Monthly” means at least once every 30 days.
(k) “Motor fuel” means petroleum or a petroleum—based substance that
is motor gasoline, aviation gasoline, No. 1. or No. 2 diesel fuel, or any grade
of gasohol, and which is typically used in the operation of a motor engine.
(1) “NFPA 30” means National Fire Protection Association publkation
number 30 entitled, “Flamable and Combustible Liquids Code”, dated 1987.
(in) “NFPA 329” means National Fire Protection Association
publication number 329 entitled, “Underground Leakage of Fla nable and
Combustible Liquids”, dated 1987.
(n) “PEI/RP100—87” means Petroleum Equipment Institute Reconmiended
Practices for Installation of Underground Liquid Storage Systems, dated 1987.
(o) “Pipe” means an iinperuieable hollow cylinder or tubular conduit
that conveys or transports oil or liquid, or is used for venting, filling, or
removal of oil or liquids.
(p) “Reconcile’ means to compare volume of stored regulated
substance at the beginning of an inventory period with receipts, sales, and
other uses during the inventory period, and with volume stored at the end of
the inventory period, to determine whether there is any unexplained gain or
loss of regulated substance.
(q) “Regulated substance” means oil or a hazardous substance.
Cr) “Release detection” means measurement for the presence of a
regulated substance which has been released to the environment.
Cs) “System” means an underground storage tank(s) and all connected
piping, pumps, containment structures, monitors, or other equipment serving
the tank(s).
(t) “Tank” means a stationary device constructed of Impermeable
materials and designed to contain or hold oil or liquids, which is a cnmponent
of an underground storage system.
Source . #3116, eff 9—17—85; as by #496 ,,
eff 11—2—90
3 Env-Ws l1
7

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1 h. fl £A S £ 4 S — t . —.. a —
OSWER Directive 9650.15
Env—Ws 411.04 Registration .
(a) The owner of an underground storage facility shall register the
facility by providing the information required by Env—Ws 411.06.
(b) Owners shall report in writing any change in information on the
form within 10 days of the change.
(c) If facility ownership is disputed, the owner of the property on
which the facility is located shall register the facility by providing the
information required by Env—Ws 411.06.
(d) Any tank of unknown size shall be assuned to be of regulated
capacity, unless it can be determined by records or measurement that the tank
is not of regulated capacity.
(e) For new systems, or substantial modifications of existing
systems, a new or amended registration form, respectively, shall be filed with
the Division at the time of final inspection of the system.
(f) The facility registration skdl be auto ically renewed by the
Division every 5 years until all syatenla have been )ermanently closec in
accordance with the Division’s rules.
(g) No person shall operate an underground storage facility which is
not registered with the Division.
Source . #3116, eff 9—17—85; as by #4965,
eff 11—2—90
Env—Ws 411.05 Change in Use . The owner of any facility which would
become subject to regulation due to a change in the use of any system shall
register the facility at least 30 days prior to changing the use of the system
and shall comply with all applicable regulatory requirements before
instituting the changed use.
Source . #3116, eff 9—17—85; amd by #3160,
eff 12—16—85; sa by #4965, eff 11—2—90
Env—Ws 411.06 Information Required for Registration .
(a) Registration of each underground storage facility shall contain
a complete and detailed description of each system of the underground storage
facility.
(b) Registration shall be completed in accordance with federal
regulations 40 CFR PART 280.22.
Source . #3116, eff 9—17—85; amd by #3160,
eff 12—16—85; as by #4965, eff 11—2—90
4 Env—Ws 411
8

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Env—Ws 411.07 Permit to Operate . OSWER Directive 9650.15
(a) No person shall operate an mderground storage facility without
a permit issued by the Division.
(b) The owner of an underground storage facility shall apply to the
Division for a permit to operate, by providing the following information:
(1) The name, mailing address, and telephone number of the
facility.
(2) The name, mailing address and telephone number of the owner.
(3) A certification, signed by the owner, that the facility is
in compliance with all applicable statutory and regulatory
requirements.
(c) The Divi ion shall issue apermit to the owner of a new facility
upon approval of the facility plan in accordance with Env—Ws 411.20, and to
the owner of an existing facility pursuant to paragraph (j) below.
(d) A permit issued under this section shall be displayed on the
facility premises at all times.
Ce) Unless otherwise specified in RSA 146—C:4, the permit shall be
valid for a period of 5 years.
(f) The permit shall apply to all underground storage systems at the
facility.
(g) If the Division determines that a facility is not in compliance
with applicable statutory and regulatory requirements, the Division shall
Issue a notice of non—compliance end permit revocation to the owner, which
shall include:
(1) A listing of compliance deficiencies;
(2) A requirement for achieving compliance within 90 days of
receipt of the notice; and
(3) The date of permit revocation upon failure of the owner to
achieve compliance or request an opportunity for hearing.
(h) At least 180 days prior to the permit expiration date, the owner
shall apply for permit renewal by providing the information required by Env—Ws
411.07(b).
(I) If any system is not in compliance with these rules at the time
of application for permit renewal, the system shall be brought into compliance
no later than the permit expiration date.
5 Env—Ws 411
9

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NEW RAMPSRIRE CODE OF ADtIINISTRATIVE RULES
OSWER Directive 9650.15
(j) When a permit renewal application is received the Division shall
determine the compliance status of the systems at the facility and shall not
issue the renewal permit if all systems are not in compliance. If the
Division has not determined the compliance status of the facility’s systems by
the permit expiration date and if the owner has applied to the Division ir
accordance with Env—Ws 411.07(h), a renewal permit shall be issued.
(k) If a permit renewal is not requested, the operator shall cease
operating the facility no later than the permit expiration date, and the owner
shall close all systems at the facility under Env—Ws 411.17 or Env—Ws 411.18.
(1) A permit issued before the adoption of these rules shall remain
valid until its expiration date as provided in RSA l46—C:4. When permits
issued before the adoption of these rules are renewed, the permit renewal
shall be subject to the requirements of these rules.
Source. #3116, eff 9—17—85; amd by #3160,
eff 12—16—85; sa by #4965, eff 11—2—90
Env—Ws 411.08 Transfer of Facility Ownership .
(a) When a transfer of ownership of any underground storage tank,
facility, or system takes place, the new owner shall, file an amended
registration form with the Division within 10 days of the transfer.
(b) The seller shall deliver to the buyer all documents and
information related to the tanks, facility, or system regarding:
(1) Inventory;
(2) New installations;
(3) Testing;
(4) Closure or removals;
(5) Lining;
(6) Monitoring;
(7) Sampling and analysis;
(8) Site assessments;
(9) Equipment maintenance;
(10) Repairs; and
(11) Any other records required to be maintained by these rules.
Source . #3116, eff 9—17—85; amd by #3160,
eff 12—16—85; as by #4965, eff 11—2—90
6 Env—Ws 411

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OSWER Directive 9650.15
Env—Ws 411.09 RESERVED.
Source . #3116, eff 9—17—85; amd by #3160,
eff 12—16—85; is by 04965, eff 11—2—90
Env—Ws 411.10 Financial Responsibility .
(a) Owners of underground storage facilities for oil shall maintain
financial responsibility for coats associated with the cleanup of releases
from systems, the implementation of corrective measures, and compensation for
third party damages in the minimum amount of $1,000,000 per occurrence.
(b) The amount of financial responsibility required shall not limit
an owner’s or operator’s liability for damages caused by a release.
Cc) The requirement for financial responsibility may be satisfied by
strict compliance with all terms of these rules, so that the owner of a
facility is eligible for reimbursement of costs associated with cleanup of
releases from systems, under RSA 146—D.
Source . #3116, eff 9—17—85; ss by #4965,
eff 11—2—90
Env—Wa 411.11 Inventory Monitoring .
(a) The operator of an underground storage facility shall conduct
inventory monitoring of each underground storage tank, and shall maintain
separate records for each tank or interconnected system. The operator shall
certify the accuracy of the records by signing the records no less than
monthly. As an alternative to inventory monitoring, operators of on premise
use heating oil systems may perform annual tank gauging in accordance with
paragraph (k), below.
(b) Operators of facilities not required to conduct inventory
monitoring under rules previously in effect shall begin conducting inventory
monitoring no later than0ctober 1, 1991.
(c) The data maintained for inventory monitoring shall include:
(1) Tank registration number(s) of each system;
(2) Description of the type of substance being stored in each
tank;
(3) All bulk liquid receipts;
(4) All bulk liquid sales or uses for each operating day;
7 Env—Ws 411
11

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OSWER Directive 9650.15
(5) Measurement of liquid stored as follows:
a. For systems without secondary Containment and leak
monitoring, measurement of liquid stored for each operating
day; or
b. For systems with secondary containment and leak
monitoring, monthly measurement of liquid stored; and
(6) Monthly measurement of water level in each tank.
(d) All records relating to inventory monitoring, including sales
receipts, shall be maintained for a period of 3 years.
(e) Measurement of liquid stored shall be taken by a gauge stick
which shall be capable of measuring the level of liquid in the tank to the
nearest 1/8 inch or by an automatic tank gauging device of equivalent or
better measuring accuracy.
(f The tank contents shall be measured and recorded before and
after each lk liquid delivery to the tank.
(g) The operator shall reconcile the inventory data by comparing the
sales or uses, receipts, and quantities of stored liquid as follows:
(1) For systems without secondary containment and leak
monitoring, daily reconcilation shall be performed; or
(2) For systems with secondary containment and leak monitoring,
monthly reconciliation shall be performed.
(a) If there is a change In water level of 2 inches or more in any
30—day period or less or a total water depth of 3 inches or more or if
reconciliation shows that, for any 30—day period or less, there is an
unexplained gain or loss of regulated substance greater than 1.0 percent of
sales or uses plus 130 gallons, the operator shall notify the Division within
7 days and submit all system inventory records for the period and the previous
year to the Division within 5 days thereafter.
(i) A tightness test shall be performed, pursuant to Env—Ws 411.13,
on any system with an unexplained gain or loss of regulated substance greater
than 1.0 percent of sales or uses plus 130 gallons in any 30 day period, or
with an unexplained change in water level of 2 inches or more, or total water
depth of 3 inches or more.
(j) An owner shall perform tank tightness testing of any underground
tank f or which Inventory monitoring is not performed in accordance with Env-Ws
411.11(b), or for which records have not been maintained in accordance with
these rules.
8 Env—Ws 411
12

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OSWER Directive 9b O.15
(k) Operators of on premise use heating oil systems may perform
annual tank gauging in accordance with the following requirements:
(I) The tank shall be filled;
(2) Tank oil and bottom water level measurements shall be
recorded at the beginning and ending of an idle period of at
least 30 days, during which no oil is added to or removed fr
the tank;
(3) All level measurements shall be based on an average of 2
consecutive level readings; and
(4) The equipment used shall be capable of measuring the level
of oil over the full range of the tank’s height to the nearest
1/8 of an inch.
(5) Ifthe results of the manual tank gauging indicate a change
in water level of 2 inches or more, or a loss or gain of oil,
the division shall be notified within 7 days.
(6) Records of oil and water measurement data shall be
maintained for a period of 3 years.
(7) A tightness test shall be performed on any system with an
wiexplained gain or loss of oil, or with an tmexplained change
in water level of 2 inches or wore.
(8) Undergroimd storage systems which meet the requirements of
these rules for new systems shall not be subject to annual tank
gauging requirements.
Source . #3116, eff 9—17-85; ss by 04965,
eff 11—2—90
Env—Ws 411.12 Regulated Substance Transfers .
(a) No transfer of regulated substances shall be made to facilities
which are not registered or for which there is not a valid permit to operate.
(b) Before the transfer of regulated substances into a tank, the
operator shall determine that the tank has sufficient receiving capacity to
hold the vol mze to be transferred.
Cc) No transfer shall be made to a tank which is not equipped with
spill and overfill protection devices, as required imder Env—Wa 411.2.5.
Source . #3116, eff 9—17—85; amd by #3160,
eff 12—16—85; as by #4965, eff 11—2—90
9 Env—Ws 411
L3

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NEW HAMPSHIRE CODE OF AIZI1INISTRATIVE RULES
Env-Ws 411.13 Tightness Testing . 0SWU Dir tive 9650.15
(a) All underground storage systems without secondary containment
and leak monitoring which were required to be tightnc a tested under rule
previously in effect shall be tightness tested, if at least I test has nc
been performed.
(b) Underground storage systems without secondary containmei t and
leak monitoring which were not required to be tightness tested under rules
previously in effect shall be tightness tested by October 1, 1991.
(c) The tank tightness testing protocol or method shall be tested
and certified by an independent testing laboratory and shall be certified by
the laboratory to meet the leak rate detection criteria of Env—Ws 4 l 1 .l3(g).
A complete description of the method or protocol and a copy of the
certification shall be filed with the owner. The owner shall retain the
description and certification for the life of the facility.
(d) When a tightness test is conducted, the person conducting the
test shall send a tightness test report to the owner, the operator, and the
Division no later than 30 days after the date of the test.
(e) The tightness test report shall include:
(1) The facility and tank registration number;
(2) Location;
(3) Owner;
(4) Tank capacity;
(3) Age;
(6) Product stored;
(7) Location of each system tested;
(8) Copies of field records;
(9) Any other information to accurately identify each system;
(10) A statement specifying that the piping was also tested;
(11) A description of any piping, fittings, or connections that
were tightened or repaired;
(12) Waiting periods after product delivery, topping, or vapor
space disturbances;
10 Env-Ws 411
14

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OSWER Directive 9650.15
(13) Temperature measurement equipment and method;
(14) Releveling procedure;
(15) Date of last calibration and maintenance of equipment;
(16) Teat duration time; and
(17) Vapor pocket measurement and elimination procedure.
(e) The technician performing the test shall sign a test report
which certifies the validity 1 method, and accuracy of the test and certifies
that the test complies with requirements of these rules and that he or she is
qualified to perform the test.
(f) The tightness test shall be capable of detecting a system leak
rate of 0.05 gallon per hour for tanks• of less than 20,000 gallons capacity,
or 0.10 gallon per hour for tanks of 20,000 gallons capacity or larger with a
probability of detection of 0.95 and a probability of false alarm of .05,
accounting for all variables including vapor pockets, thermal expansion of
product, temperature stratification, evaporation, pressure, end deflection,
water table, and tidal action.
(g) A leak or failure shall be indicated by a test result of 0.05
gallon per hour or greater for tanks of less than 20,000 gallons capacity, or
0.10 gallon per hour or greater for tanks of 20,000 gallons or more.
(h) Volumetric tightness tests shall conform to the following
requirements:
(1) There shall be a minimum waiting period of 8 hours after a
product delivery before a tightness test is started;
(2) There shall be a minimum waiting period of 4 hours after
the test equipment is set up and topped before the tightness
test is started;
(3) There shall be a minimum of 4 hours after the vapor space
is disturbed before the tightness test is started on a
partially—filled tank;
(4) At least 5 temperature sensors or an averaging sensor over
the same vertical range shall be used to measure product
temperature, or the product shall be circulated;
(5) The hydrostatic head during a precision tightness test
shall be held constant throughout the teat;
(6) The level within a standpipe shall be adjusted by the
addition of very small product amounts at a time, the product
shall be at the same temperature as the product in the tank, and
the product shall be added at a location that will not affect
the temperature sensors;
11 Env—Ws 411
15

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VUC. yr ? LZ41bLKA LLV
OSWER Directive 9650.15
(7) Precision tightness testing equipment shall be regularly
and accurately calibrated, and properly maintained and installed
in accordance with manufacturers specifications;
(8) The duration of a precision tightness test from actu.a.iT
coomencement of measurements and readings shall be at least 4
hours; and
(9) The tester shall experimentally determine the height to
volume conversion factor, shall determine if a volume of trapped
vapor exists which will interfere with test accuracy and shall
take steps to reduce any such volume as much as possible.
(i) The test report and other documents describing the type of test,
contractor, date, materials, all field data and any other information
pertinent to the work, performed wider this section shall be kept by the owner
for the life of the system.
(j) If information submitted to the Division causes the Division to
question the accuracy of the test, the person conducting tank tightness tests
shall provide the Division with information on all testing equipment and
protocols which have the potential to affect the accuracy of the test.
Source . #3116, eff 9—17—85; as by #4965,
eff 11—2—90
Env—Ws 411.14 Certification of Technicians Performing Tightness Tests .
(a) Any person conducting tank tightness tests shall have a
widerstanding of the variables which affect the test, be trained in th
performance of the test, and be certified as qualified by the manufacturer of
the equipment used in the testing protocol or method. The technician shall
register with the Division by submitting a manufacturer’s training certificate.
(b) Any person conducting tank tightness tests shall keep the
manufacturer’s certification and registration with the Division current and
shall notify the Division of any change in employment status. Manufacturer’s
certification of qualification shall be valid for 2 years from the date of
certification.
Cc) No person shall conduct a tank tightness test to fulfill the
requirements of these rules who is not certified and registered wider (a) and
(b) above.
Source . #3116, eff 9—17—85
12 Env—Ws 411
16

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NEW HAMPSHIRE CODE OF ADtII]JISThATIVE RULES
Env—Ws 411.15 Tightness Test Failures . OSWER Directive 9650.15
(a) The person conducting the tightness test shall notify the
Division and the facility owner and operator i iediately of a system tightness
test failure.
(b) A tightness test failure shall be addressed as follows:
(1) The owner and operator of an underground storage system
shall report any failure to the Division within 24 hours of
receiving notice of the failure;
(2) The owner or operator shall perform an investigation into
the cause of the failure to determine if the system is leaking;
(3) The investigation into the cause of an initial test failure
shall be completed within 7 days and shall include the
performance of a second confirming tank tightness test;
(4) The owner shall submit a written report to the DIvision
within 30 days of the failure which describes the work
performed, the repairs made, and any other actions taken in
response to the teat failure;
(5) Any underground storage system which fails a second,
confirming test for tightness shall be completely emptied of
regulated substance within 24 hours of the second failure and
shall be repaired or closed within 30 days; and
(6) The owner may at any time elect to permanently close the
system instead of conducting an investigation into the t:ause of
the failure.
(c) Any system which has been repaired after a second tightness teit
failure shall be retested for tightness to confirm the effectiveness of the
repairs.
Source . #3116, eff 9—17—85; as by #4965,
eff 11—2—90
Env—Ws 411.16 Unusual Operating Conditions .
(a) The operator shall report any unusual system ,peratthg
conditions to the Division within 24 hours, unless the cause is ininediatsly
determined and corrected, and the operator determines that the unusual
operating condition did not result in a release of a regulated subatan.e.
(b) Unusual system operating conditions which require reporting
shall include:
(1) Erratic behavior of dispensing equipment;
13 Enw-W. 4U
17

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NEW HAMPSHIRE CODE OF AIZIII4ISTPATIVE RULES
OSWER Directive 9650.15
(2) Unexplained loss of regulated substance or the presence of
regulated substance on the ground surface, surface water or
groundwater at or near the facility;
(3) An increase of 2 inches or more of water in a tank over an
30 day or shorter period or a total water depth of 3 inches or
more;
(4) Recorded substance losses indicated by inventory control
records on 18 operating days or more in any 30 day period;
(5) An indication by a leak monitor of a possible leak; and
(6) The presence near the facility of petroleum vapors or
vapors of a hazardous substance.
(c) The operator shall initiate an investigation into the cause of
any unusual system operating conditions within 7 days of the occurrence of the
condition and shall submit a written report to the Division delineating the
investigation and its conclusions. The investigation shall confirm any
suspected release of a regulated substance.
(d) If the Division determines, based on the written report, that a
release of a regulated substance could have occurred, the operator shall
conduct a tightness test of the affected system(s).
Source . #3116, eff 9—17—85; as by #4965,
eff 11—2—90
Env—Ws 411.17 Temporary Closure .
(a) Temporary closure of underground storage systems shall be
accomplished by removing all liquid regulated substances and tank bottoms,
without excavation of the system. All substances removed shall be disposed of
in accordance with applicable local, state, and federal rules.
(b) Within 30 days of temporary closure, the owner shall notify the
Division in writing that the system baa been temporarily closed.
(c) An underground storage system which has been temporarily closed
for 1 year shall be permanently closed in accordance with Env—Ws 411.18 unless
the system meets all requirements of these rules for a new system or a system
with release detection.
(d) An underground storage system which is temporarily closed shall
not be. placed back in service, nor shall any regulated substance be introduced
into the .ystei until the operator certifies to the Division that the system
is in compliance with applicable statutory and regulatory requirements.
Source . #3116, eff 9—17—85; as by #4965,
eff 11—2—90
14 Env-Ws 411
18

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UUt UZ L1LI Lø.LrJtLLVr.
EnVW S 411.18 Z at 1Qaj.Lr . OSWER Directive 9650.15
(a) Steel underground storage systems without corrosion protection
be permanently closed on or before 25 years after the year of
installation. When the year of installation is unknown, the system shall be
permanently closed by October 1, 1995.
(b) Steel underground storage systems without corrosion protection
for which groundwater or soil vapor monitoring devices were installed as an
alternative to permanent closure under rules previously in effect, shall be
permanently closed by October 1, 1995.
(c) The owner shall notify the Division at least 30 days prior to
any scheduled system removal or closure. The Division shall be notified of
emergency removals or closures as far in advance of the work as possible.
Cd) Permanen.t closure shall be-accomplished as follows:
(1) All product, liquid and sludge shall be removed from the
system(s) and disposed of in accordance with applicable state
and federal rules;
(2) All piping shall be disconnected and removed to the
greatest extent possible or permanently capped or plugged;
(3) The tank(s) shall be tested for hazardous or explosive
vapors and rendered free of vapors;
(4) The tank(s) shall be either removed or closed in—place by
filling the tank(s) to capacity with a solid inert material and
filling all voids within the tank(s);
(5) An assessment shall be performed to determine if any
contamination is present using one of the following sampling
methods for the assessment:
a. Test pits shall be excavated in the iediate vicinity
of the system, and representative soil or groundwater
samples shall be obtained; or
b. Soil or groundwater samples shall be obtained from the
excavation(s) resulting from the removal of the tank(s); or
c. F xisting release detection devices or subsurface
monitoring locations shall be sampled; or
d. For tanks which will be closed in—place, soil samples
shall be obtained at representative locations from beneath
the tank, by cutting sampling access points through the
tank wall.
15 Env—Ws 411
19

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-- j 4ER Directive 9650.15
e. Soil or groundwater samples shall also be taken at
locations adjacent to the system piping.
(6) The soil or groundwater samples shall be screened for the
presence of contamination in the field, and submitted to an El
certified laboratory for analysis, as follows:
a. Field screening of samples shall include visual and
olfactory observation and headspace analysis performed with
a portable organic vapor meter (OVN) or portable gas
chromatograph (GC);
b. Laboratory analysis of samples shall include tests for
volatile organic compounds (Voc) and total petrole
hydrocarbons (TPH) if the system stored motor fuel, or test
for total petroleum hydrocarbons (TPH) if the system stored
heating oil or waste oil, or the appropriate EPA test
method for hazardous substances; and
(7) Results of the assessment perfor d under (5) above and the
laboratory analysis of samples perfor ed under (6) above .shall
be submitted to the Division within 30 days of the closure.
(e) If soil or groundwater contamination from the regulated
substance is detected by observation or analysis during closure of an
underground storage system, the Division shall be notified inznediately. All
requirements of Part Env—Ws 412 shall be complied with.
(f) The excavation shall not be backfilled, nor shall the closed
tank be removed from the site until the Division has inspected the site and
approved the closure. If the Division is unable to inspect the site within
days, the Division shall grant permission for a consultant or other person
knowledgable in site assessments for contamination to inspect the site. When
such permission is granted, the person inspecting the site shall submit a
report to the Division. The report shall contain a detailed account of
inspection of soil and groundwater in the vicinity of the tank, and of an
inspection of the closed tank(s) for evidence of corrosion and leakage.
(g) Underground storage systems which have not been temporarily or
permanently closed shall be subject to all requirements of these rules.
(h) Documents pertaining to the closure of the tanks or system,
including contractor’s invoices, manifests for disposal of materials, testing
and analytical reports, and any other documents generated from the closure
shall be kept by the owner for 10 years. These documents shall be transferred
to the new owner at the time of a transfer of facility ownership.
Source . #3116, eff 9—17—85; as by #4965,
eff 11—2—90
16 Env—W. 61L
20

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OSWER Directive 9650.15
APPENDIX E: SAMPLE TRANSMITTAL LETTERS TO THE OFFICE OF THE
FEDERAL REGISTER

-------
OSWER Directive 9650.15
Martha L. Girard, Director
Office of the Federal Register
National Archives and Records Administration
Washington, DC 20408
Dear Ms. Girard:
Enclosed is a package containing a Federal Register notice
to codify approval of the underground storage tank program of the
State of Vermont. Also enclosed is a copy of the material to be
incorporated by reference. Our office requests that the Director
incorporate by reference the enclosed statutes and regulations of
the State of Vermont into 40 CFR Section 282.95. This
incorporation by reference will substantially reduce the volume
of material that will need to be published in the Federal
Register .
These materials are available to the public and copies may
be inspected at the U.S. EPA Region I Library, 1 Congress Street,
11th floor, Boston, MA 02203, the EPA OUST Docket at 401 M
Street, SW, Washington, DC 20460, the Office of the Federal
Register, 800 North Capitol Street, NW., Suite 700, Washington,
DC, or at the Underground Storage Tank Program, Vermont
Department of Environmental Conservation, 103 South Main Street,
West Building, Waterbury, VT 05676.
Any questions or comments regarding this incorporation by
reference should be addressed to Joan Coyle, U.S. EPA Region I,
(617) 573—9667.
Sincerely yours,
[ Insert Name]
Division Director
Division of Solid Waste
U.S. EPA Region I
JFK Federal Building
Boston, MA 02203—2211
Enclosures

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OSWER Directive 9650.15
Ms. Martha Girard, Director
Office of the Federal Register
National Archives and Records Administration
Washington, DC 20408
Dear Ms. Girard:
This letter is to certify that the disk furnished with
Underground Storage Tank Program; Approved State Program For New
Hampshire, FRL- , is a true copy of the original signed
document, and it should be used by GPO in preparing the document
for publication.
Thank you,
Jerry Parker
Environmental Protection Specialist
Office of Underground Storage Tanks
Phone (703) 308—8884

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OSWER Directive 9650.15
APPENDIX F — LIST OF CFR SECTIONS RESERVED FOR APPROVED
STATE PROGRAMS

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OSWER Directive 9650.15
Alabama — §282.50
Alaska — §282.51
Arizona — §282.52
Arkansas — §282.53
California — §282.54
Colorado — §282.55
Connecticut - §282.56
Delaware — §282.57
District of Columbia - §282.58
Florida — §2E 59
Georgia — §282.60
Hawaii — §282.61
Idaho — §282.62
Illinois — §282.63
Indiana — §282.64
Iowa — §282.65
Kansas - §282.66
Kentucky - §282.67
Louisiana — §282.68
Maine — §282.69
Maryland — §282.70
Massachusetts — §282.71
Michigan — §282.72
Minnesota — §282.73
Mississippi — S282.74
Missouri — §282.75
Montana - §282.76
Nebraska — §282.77

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OSWER Directive 9650:15
Nevada - §282.78
New Hampshire - §282.79
New Jersey — §282.80
New Mexico - §282.81
New York — §282.82
North Carolina — S282.83
North Dakota - §282.84
Ohio — §282.85
Oklahoma — §282.86
Oregon - S282.87
Pennsylvania - §282.88
Rhode Island — §282.89
South Carolina — §282.90
South Dakota - S282.91
Tennessee - §282.92
Texas — §282.93
Utah — §282.94
Vermont— §282.95
Virginia — §282.96
Washington — §282.97
West Virginia — §282.98
Wisconsin — §282.99
Wyoming — §282.100
Guam — §282.101
Puerto Rico - §282.102
Virgin Islands — §282.103
American Samoa — §282.104
Commonwealth of the Northern Mariana Islands - §282.105

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NEW HAN ’SH1RL CODE OF A 1th1b1XAIIVt KUL. S
OSWER Directive 9650.15
Env—Ws 1411.19 Prohibition Against Reusing Tanks .
(a) Underground storage tanks which have been removed that do not
meet the standards for new tanks shall not be reused as underground storaF’
tanks for regulated substances.
(b) A tank once used for regulated substances shall not be reused to
store food products or potable water.
Source. #3116, eff 9—17—85; as by #4965,
eff 11—2—90
Env—Ws 411.20 Requirements for Approval of Underground Storage Systems .
(a) At least 90 days prior to co miencing construction or
installation of a new or replacement underground storage system or of a
substantial modification of an underground storage system, the owner shall
submit plans and specifications to the Division. The plans shall be prepared
and stamped by a registered professional engineer, licensed to practice in the
state of New Hampshire.
(b) Within 90 days of submission of plans and specifications, the
Division shall approve plans which demonstrate compliance with the
requirements of these rules, or issue a notice of incompleteness or
disapproval for plans which do not demonstrate compliance with these rules.
(c) An owner shall not ciuse or allow a change which is not in
accordance with the approved plans and all terms and conditions of th
Division’s approval.
(d) An approval shall be valid for 1 year from the date o
issuance. If construction of the installation is not completed within 1 year,
the approval shall be void.
Source . #3116, eff 9—17—85; as by #4965,
eff 11—2—90
Env—Ws 411.21 Tank Standards for New Underground Storage Systems .
(a) All glass fiber reinforced plastic underground storage tanks
designed for storing regulated substances shall be manufactured in accordance
with standards of Underwriters Laboratories, Inc., UL 1316, or Underwriters
Laboratories of Canada, CANA—S615--M83.
(b) All double—walled steel underground storage tanks designed for
storing regulated substances shall be manufactured with outer jackets of a
minim of 10 giuge in thickness.
(c) All composite underground etorage tanks designed for storing
regulated substances—shall——be—manufactured in c iance with Underwriters -
Laboratories Standard 1746, or the Association for Composite Tanks ACT—lOO.
17 Env—Ws 411 -
21

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NEW RANPSEIRE CODE OF AEIIINISTRATIVE RULES
OSWER Directive 9650.15
(d) All underground storage tanks designed for storing regulated
substances and constructed of steel clad with fiberglass reinforced plastic
shall be manufactured in accordance with one of the following standards:
(I) Underwriters Laboratories of Canada, Inc. ULC-603, Standard
for Protected Steel Underground Tanks for F1R.n!ngble and
Combustible Liquids; or
(2) Underwriters Laboratories, Inc., USA, UL 58, Steel
Underground Tanks for Flaimnable and Combustible Liquids; or
(3) Code for Unfired Pressure Vessels; Section VIII, Division I
of the ASME Boiler and Pressure Vessel Code.
(e) All tanks shall provide secondary contai{pllent unless enclosed in
a vault. Secondary containment shall enclose at least the lower 300 degrees
of the inner tank.
(f) The secondary containment wall or envelope shall not be in
contact with the inner wall, SUCh that a leak of the inner tank would not be
detected due to restriction of product flow to the monitoring sump.
(g) There shall be no penetrations of any kind through the jacket to
the tank except top entry fittings required for filling, venting, and
monitoring of the interstitial space.
(h) All new tanks shall have a wear plate constructed of steel or
glass fiber reinforced plastic installed under each tank opening covering an
area of at least 144 square inches, for purposes of protecting the tank wall
from abrasion or puncture.
(i) New underground storage tanks shall bear a stencil, label or
plate which contains the following information:
Cl) The standard of design by which the tank was manufactured;
(2) The year in which the tank was manufactured;
(3) The dimensions and capacity of the tank; and
(4) The name of the manufacturer.
(J) A certificate which shows all of the information required above
and which also shows the date of installation and the regulated substances and
percentages by volume of any additives which may be stored permanently and
compatibly within, shall be conspicuously displayed and permanently affixed at
the facility premises.
(k) Documents or copies of documents describing manufacturer’s
warrantees, equipment items, contractor, equipment maintenance, repairs or
testing, and all other information pertinent to the tank installation and
system components shall be kept at the facility for the life of the
system(s). These records shall be transferred to the new owner(s) at the time
of a transfer of facility ownership.
18 Env—Ws 411
22

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, vuc. yr at*•i iu i VC. AU1..&
OSWER Directive 9650.15
(1) Owners and operators shall maintain records which show that new
tanks and their welds, seams, and connecting fittings were factory tested for
tightness using standard engineering practices. Records shall certify tb1
each tank is guaranteed by the manufacturer against leakage for a period of
years.
(m) The regulated substance stored shall be compatible with the
interior lining or wall of the tank, piping system, and all components,
gaskets, sealant., that will be in contact with the stored substance. If the
regulated substance stored is changed, and it is not listed as a substance
that is compatible with the tank, a written confirmation from the manufacturer
shall be obtained certifying the compatibility of the liquid with the system,
prior to the change.
Source . #3116, eff’ 9—17—85; 55 by #4965,
eff 11—2—90
Env—Ws 411.22 Piping St.Lldards for New Underground Storage Systems .
(a) All new mde ;rowid pipes, fittings, and connections shall be
constructed of fiberglass :einforced epoxy, galvanized steel, black iron,
stainless steel, or copper.
(b) Fiberglass reinforced epoxy piping shall meet ASTh Specification
D—2996—71, Standard Specification for Filament Wound RTR.P, Underwriters
Laboratory Subject 971 “Listed non—metal pipe” or Underwriters Laboratories of
Canada Guide ULC—107 “Glass Fiber Reinforced Plastic Pipe Fittings fo:
Fl i v ,u ’ble Liquids”. Ultimate sheer strength of adhesive and curing agen
shall be in compliance with AS1) D—2517—66T, as approved and supplied b:
manufacturer.
(c) Steel or iron piping shall be Schedule 40 or heavier and shall
have protective wrapping or di—electric coating and be cathodically protected
by impressed current or sacrificial anodes. Galvanized Steel shall meet
standards as in American Petroleum Institute Publication 1615 “Installation of
Underground Petroleum System”;
(4) Copper tubing shall be contained in a non—metallic sleeve to
protect it from damage and corrosion.
(e) Underground metal piping and component. routinely containing
regulated substances and in contact with the soil or other backfill material
shall have a cathodic protection system designed wider the supervision of a
corrosion specialist accredited by the National Association of Corrosion
Engineers and the design shall be submitted as part of the plans required
wider Env-41s 4lr.20.
(f) Except when cathodic protection is provided by impressed
current, imdergrrnmd_metal piping systems shall have di—electric bushings
installed to electrically isolate the piping system from the tank and the
dispenser, or other end use point, and at any change in the metal type, such
as at flexible connectors.
19 Env—Ws 411
23

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NEW EANPSHIRE CODE OF AaIINISTRATIVE RULES
OSWER Directive 9650.15
(g) If metal pipe ii totally isolated from the soil via secondary
containment, cathodic protection of the piping shall not be required.
(h) Steel or iron fittings used with fiberglass piping shall be
thoroughly wrapped and sealed with a dielectric material or shall be
cathodically protected.
Ci) Stainless steel flexible connectors shall be thoroughly wrapped
or coated to completely isolate them from the soil and from metal piping to
the pump, or shall be cathodically protected.
(j) All new undergro*md piping systems shall be designed,
constructed, and installed with access and isolation points to permit
independent pressure testing of the tank and piping without the need for
extensive excavation. -
(k) With the exception of heating oil systems for on—premises use,
suction pump systems shall have only I check valve, placed as close to the
pump as possible.
(1) Pressure and Temperature Limitations shall meet ANSI 831,
American National Standard Code for Pressure Piping.
Source . #3116, eff 9—17—85; as by #4965,
eff 11—2—90
Env—Ws 411.23 Secondary Containment for New Tanks .
(a) Secondary containment shall be provided for all new tanks.
(b) A double—walled tank constructed in accordance with Env-Ws
411.21 shall satisfy the requirements of this section for tank secondary
containment.
(c) A concretb vault may be used for secondary containment of a
single wall tank and shall meet the following requirements:
(1) It shall be watertight, impervious to leakage of regulated
substances;
(2) It shall be able to withstand chemical deterioration and
structural stresses from internal and external causes;
(3) It shall be a continuous structure;
(4) It shall have no drain connections or other entries or
openings through the vault;
(5) It shall be constructed of continuously poured reinforced
concrete with chemical resistant water stops at any construction
joint;
20 Env—Ws 411
24

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NEW RAZIPSHIRE CODE OF AD .1I1IISTRATIVE RULES
OSWER Directive 9650.15
(6) Top slabs shall be reinforced;
(7) The interior all be sealed with a material compatible
with the stored - : duct, or otherwise designed to make
impervious to leakage of the stored liquid or intrusion c —
groundwater;
(8) It shall have only top openings, solely for tank entry
manholes, piping, or for monitoring and pumping of liquid from
the vault;
(9) All penetrations shall be sealed or otherwise designed to
prevent intrusion of precipitation or surface runoff.
(d) The tank shall be encased or bedded in the vault in accordance
with the manufacturer’s requirements. -
(e) All secondary containment access ports shall be conspicuously
marked or labeled and shall be secured.
Env—Ws 411.24 Secondary Containment for New Pressurized Piping .
(a) All new underground storage pressurized piping and heating oil
system return piping shall have secondary containment by utilizing double vail
piping or a piping trench liner system.
(b) Piping systems with secondary containment shall continuously
slope to direct any leakage from the primary piping to a collection sum
monitor. The collection sump(s) shall be physically located at the tank(s).
Cc) Piping trench liner systems for single wall piping shall include
monitoring sumps installed in accordance with the manufacturer’s requirements.
Cd) The submersible pump head of all new pressurized piping systems
shall be surrounded by a containment structure.
Source . #4965, eff 11—2—90
Env—Ws 411.2.5 Spill Containment and Overfill Protection .
(a) All new underground storage tanks shall be equipped with spill
containment and overfill protection devices at installation.
(b) All underground storage tanks required to be equipped with spill
containment and overfill protection under rules previously in effect, shall
comply with this section by October 1, 1991.
Cc) All underground storage tanks not subject to rules previously in
effect, shall be equipped with spill containment and overfill protection by
-October 1,-- 1992.
21 Env —Ws 411
25

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— OSWER Directive 9650.15
Cd) Spill containment equipment shall prevent the release of product
to the environment when the transfer hose is detached from the fill pipe, and
aji have a minimum capacity of 5 gallons.
(e) The overfill protection equipment shall alert the transfer
operator when the tank is no more than 9O full by restricting the flow into
the :ank or by triggering a high level audible alarm, or shall automatically
shut off flow into the tank when the tank is no more than 95 full.
(f) All gauges, alarms, or automatic or mechanical devices
associated with spill containment and overfill protection shall be maintained
in good working order to perform their original design function.
Source . #4965, eff 11—2—90
Env—Ws 411.26 Leak Monitoring for New Tanks .
(a) Leak monitoring shall be installed and continuously operated for
all new tanks.
(b) Double_walled tanks shall have continuous monitoring of the
interstitial space for both the regulated substance and water.
Cc) Single wall tanks shall have continuous monitoring of the
annular space between the tank and the secondary containment structure for
both the regulated substance and water.
(d) The leak monitoring device shall be able to detect the regulated
substance stored and its vapors if the substance is volatile, as well as the
presence of water.
Source . #4965, eff 11—2—90
Env—Ws 411.27 Leak Monitoring for New Underground Piping Systems .
(a) New underground piping systems which operate under pressure
shall be equipped with leak monitoring.
(b) A UL—approved line leak detector shall be employed which shall
be capable of detecting a line leakage rate of at least 3 gallons per hour at
10 pounds per square inch, and shall shut—off, restrict product flow or
otherwise notify the operator if the leakage rate is exceeded.
Cc) The interstitial space of the double wall piping or the annular
space between the primary piping and the secondary containment system shall be
continuously monitored to detect the presence of the regulated substance or
the vapors of the regulated substance.
(d) The piping collection aump and the submersible pump head
containment structure shall employ a leak monitpr activated—by-liquid-or by
vapors of the regulated substance.
Source . #4965, eff 11—2—90
22 Env—Wa 411
26

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4ht. a • . ea aais ,,VM4. fl&A aaa a.J ae a a.
OSWER Directive 9650.15
Env—Ws 411.28 Installation of New Underground Storage Systems .
(a) Tank and individual system COmpo ent installations shall b ’
performed according to the manufacturer’s requirements and national ar
industry codes. Installation items not included in the manufacturer’s—”
requirements shall be performed according to PEI RP 100—87, API 1615, and API
1632. Safety and testing requirements according to NFPA 30 and NFPA 329,
shall be complied with.
(b) For steel tanks, ‘the tank coating shall be thoroughly inspected,
and any scratches, gouges, voids, or other discontinuities found in the
coating shall be repaired according to the manufacturer’s requirements prior
to installation.
(c) Whenever an existing tank is removed prior to the installation
of a new tank,. a11 the requirementsof Env—Ws 411.18 shall be met. If
evidence of a discharge of re u1ated substance is discovered, the Division
shall be notified immediately. All requirements of Part Env—Ws 412 shall be
followed.
(d) Whenever an exi .:±ng tank is removed prior to the installation
of a new tank all system piping that does not meet the standards for new
underground storage systems as specified in Env—Ws 411.22 shall be removed.
(e) Systems shall not be installed in areas subject to flooding over
the top of the tank unless provisions are made to ensure that the tank shall
not float and its contents shall not escape during a flood. For areas wher
the ground surface is below the 100 year flood elevation, special provision
for tank anchoring and product containment shall be provided to the Divisio
with the plan required by Env—Ws 411.20.
(f) All new underground piping shall be laid out so as to minimize
crossovers and, within construction limits, shall run in a compact trench to
the point of use.
(g) Piping shall slope continuously towards the tank at a minim of
1/8 inch per foot.
(h) The owner shall notify the Division of the completion of the
installation of a new system at least 7 days prior to final backfilling , to
arrange for an inspection.
Ci) The Division shall inspect the system prior to backfilling, and
owners shall correct any discrepancies discovered by the Division between the
completed installation and approved plans, within 30 days and shall notify the
Division to arrange a follow—up inspection.
(j) The installer shall certify that the installation has been
completed in accordance with approved plans -and - specifications and
manufacturer’s requirements, in accordance with 40 CFR PART 280.22(f).
23 Env—Ws 4
27

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NEW EANPSHIRE CODE OF ADMINISTRATIVE RULES
OSWER Directive 9650.15
(k) The new system shall not be backfilled or placed into service
until final inspection has been performed by the Division.
Source #4965, eff 11—2—90
Env—Ws 411.29 Release Detection for Tanks Without Secondary Containment
and Leak Monitoring .
(a) - With the e eeptten e€ en premise use heating eu system. - ,
underground storage tanks without secondary containment and leak monitoring
shall be equipped with release detection and/or be monitored for releases
according to the following schedule:
Installation Year Deadline
Before 1966 or unknown Immediately
1966 — 1969 Dec. 22, -1990
1970 — 1976 Dec. 22, 1991
1975 — 1979 Dec. 22, 1992
1980 or after Dec. 22, 1993
(b) Owners of underground storage facilities without secondary
containment and leak monitoring shall conduct annual tightness testing,
automatic tank gauging, groundwater monitoring, or soil gas vapor monitoring
for release detection. Prior to initiating release detection, owners shall
submit a plan to the division which demonstrates that the release detection
method chosen meets the requirements of this section.
(c) When tightness testing is used for release detection, the system
shall be tested at least annually. Tightness testing shall not be used as a
release detection method after December 22, 1998.
(d) When automatic tank gauging is used for release detection, the
gauge shall provide at least one monthly test for tank leakage with a
detection limit of at least 0.2 gallons per hour. In—tank monitoring shall
operate in a leak detection mode for at least 2 hours during each 24 hour
period.
(e) When groundwater monitoring is used for release detection, the
release detection method shall conform to the following requirements:
(1) The stored substance shall be 1 iscib1e in water and have
a specific gravity of less than 1;
(2) The groundwater table shall be within 20 feet of the ground
surface;
dtoring wells shall be installed to intercept the tank
excavation zone which is the vol mie containing the tank system
and backfill material bounded by the ground surface, walls, and
floor of the pit or trenches into which the underground storage
tank system is placed at the time of installation;
24 Env-41s 411
28

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•, uI M L% I..V&l Vt
OSWER Directive 9650.15
(4) If the requirements of paragraph (e)(3) above cannot be
met, monitoring wells shall be laced as close to the tank(s) as
technically feasible and the . l screen of the monitoring weJ
shall completely intercept s :.onal fluctuations in the wati
table;
(5) The hydraulic conductivitY of the soil surrounding a
monitoring well and between a monitoring well and the tank shall
be greater than 0.01 centimeterS per second;
(6) The slotted portion of the monitoring well casing shall be
designed to prevent migration of natural soils or filter pack
into the well but to allow entry of regulated substance on the
water table into the well under both high and low grade—water
conditions;
(7) Monitoring wells shall be sealed from the ground surface to
the top of the filter pack;
(8) Monitoring wells shall be clearly marked and secured to
avoid unauthorized access and tampering; and
(9) The device(s) or method(s) for monitoring shall provide at
least I monthly test of the groundwater for the presence of the
regulated substance stored in the system, and shall be able to
detect the presence of 1/8 inch or more free product on the
groundwater.
(f) When soil gas vapor monitoring is used for release detection
the release detection method shall conform to the following requirements:
(1) The device(s) or method(s) for monitoring shall provide at
least 1 monthly test for the presence of the regulated substance
stored in the tank;
(2) The stored liquid or approved tracer additive shall be
su.fficiently volatile to provide a vapor level that is
detectable by the monitoring device(s) utilized;
(3) The measurement of vapors by the monitoring device shall
not be rendered inoperative by the groundwater, rainfall, or
soil moisture or other known interferences such that a release
could go undetected for more than 30 days.
(4) The monitoring device(s) shall be installed to intercept
the tank excavation zone, or shall be placed as close to the
tank(s) as possible;
25 Env—Ws 411
29

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i e aFaJz Duts. .uuc. J A1LZU3L1UtLiv
0SWE1 Directive 9650.15
(5) The subsurface materials and conditions surro inding the
monitoring device(s) and between the device(s) and tank, shall
be sufficiently porous in their in—situ condition to readily
allow diffusion of vapors from the tank to the device(s);
(6) The vapor monitors shall be designed and operated to detect
any increase in concentration above background concentrations;
and
(7) Monitoring wells installed for soil gas vapor monitoring
shall meet the same requirements as wells installed for
groundwater monitoring, except the screened interval need not
intercept groundwater.
Source . #4965, eff 11—2—90
Env—Ws 411.30 Release Detection for Piping .
(a) Release detection for pressurized piping without secondary
containment and leak monitoring shall be installed and operational by December
22, 1990. Prior to initiating release detection, owners shall submit a plan
to the division which demonstrates that the release detection method chosen
meets the requirements of this section.
(b) Release detection for systems with pressurized piping shall be
equipped with an automatic line leak detector which shall restrict or stop the
flow of the stored substance, and which shall trigger an audible or visual
alarm upon detecting a leak at a rate of 3 gallons per hour at a pressure of
10 pounds per square inch within 1 hour. Automatic line leak detectors shall
be tested annually to confiz that they are in good working order.
(c) Release detection for systems with pressurized piping shall
utilize one of the following:
(1) Groundwater monitoring in accordance with Wa 411.29(e); or
(2) Soil vapor monitoring in accordance with Vs 411.29(f).
(3) Annual line tightness testing.
(d) When annual line tightness testing is utilized, test results
shall be submitted to the Division. Pipe pressure tightness tests shall hive
a detection limit of 0.1 gallon per hour at 1.5 times operating pressure.
(a) Release detection for system piping at facilities utilizing
suction piping or atmospheric piping shall be required on the same schedule as
release detection is required for tanks under Env—Ws 411.29(a).
(f) Release detection for systems with suction or atmospheric piping
shall be one of the following: -
(1) Performance of a line tightness test once every 3 years;
26 Env—Ws isii

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rir.w rb ikth CODE OF A 11NISTRAI1VE RULES UJWLA ALe’L.. .VC UJU.LJ
(2) Groundwater monitoring in accordance with Env—Ws 411.29(e);
or
(3) Soil vapor monitorir; in accordance with Env—Ws 411.29(f).
(g) Release detection shall not be required for suction or
atmospheric piping that is demonstrated, by division inspection or by plans
submitted by the owner, to be designed and COnstructed to meet the following
standards:
(1) The below grade piping operates at less than atmospheric
pressure;
(2) The below grade piping is sloped so that the contents of
the piping will drain back into the storage tank if the suction
is released;
(3) Only one check valve is included in each suction line; and
(4) The check valve is located directly below and as close as
practical to the suction pump.
Source . #4965, eff 11—2—90
Env—Ws 411.31 Operation of Leak Monitoring Equipment .
(a) Leak monitoring equipuent and devices shall be maintained in
good working order at all times to continuously perform their original design
function and shall be tested annually for proper operation in accordance witb
the manufacturer’s requirements. All records pertaining to the equipmen
manufacturer, warrantees, maintenance requirements, repairs, maintenance, ana
testing shall be maintained for the life of the system and shall be stored on
the facility premises.
(b) Leak monitoring devices shall not be shut off or deactivated at
any time. Any malfunction shall be repaired within 15 working days. If the
device(s) cannot be repaired within 15 days, the affected system(s) shall be
temporarily closed until satisfactory repairs are made. Any deactivation of a
monitor shall be i ediately reported to the Division by the operator.
(c) Leak monitors shall employ an audible alarm and visual
indicator, and shall be so located as to be readily heard and seen by the
operator or other personnel during normal working hours.
(d) All monitoring devices shall be conspicuously marked or labeled
as being monitoring devices and shall be secured against vandalism and
incidental damage.
Source . #4965, eff 11—2—90
27 Env—Ws 411
31

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NEW EAMPSRIRE CODE OF ALtIINISTRATIVE RULES
Env—Ws 411.32 Corrosion Protection for Steel Tanks . OSWER Directive 9650.15
(a) All new underground storage tanks shall be protected fro
corrosion. Corrosion protection for new tanks shall comply with 40 CFR PART
280.20(a).
(b) All existing steel underground storage tanks shall be protected
from corrosion no later than December 22, 1998. Corrosion protection for
existing steel tanks shall comply with 40 CFR PART 280.2l(b)(2) or 40 CFR PART
280 . 21 (b) (3)
(c) All new and existing cathodic protection systems shall be
equipped with an accessible test connection or monitor. Sacrificial anode
systems shall be tested within 6 months of installation and every 3 years
thereafter, by a qualified cathodic protection tester who has an understanding
of the principles ari4 measurements of l1 co non types of techniques used to
prevent corrosion of a metal surface by making that surface the cathode of an
electrochemical cell as applied to buried or submerged metal piping and tank
systems. Monitors for impressed current systems shall be checked monthly.
Source . #4965, eff 11—2—90
Env—Ws 411.33 Corrosion Protection for Piping .
(a) All new piping that routinely contains regulated substances and
is in contact with the ground shall be protected from corrosion. Corrosion
protection for new piping shall comply with 40 CFR PART 280.20(b).
(b) All existing metal piping that routinely contains regulated
substances and is in contact with the ground shall be protected from corrosion
no later than December 22, .1998. Corrosion protection for existing metal
piping shall comply with 40 CFR PART 280.21(c).
Source . #4965, eff 11—2—90
Env—Ws 411.34 5ubmission of Corrosion Protection Plan . At least 90 days
prior to retrofitting or field installing corrosion protection measures for
underground storage systems existing prior to October 1, 1990, an owner of an
underground storage system shall submit a corrosion protection plan to the
Division in accordance with Env—Ws 411.20.
Source . #6965, eff 11—2—90
Env—Ws 411.35 Relining Steel Tanks .
(a) A steel underground storage tank way be repaired by instdlling
an interior liner no more than once during the life of the tank, subject to
the following conditions:
(1) The tank has passed a tightness test conducted in
accordance with Env—Ws 611.13;
28 Env—Ws 411
32

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£LC. LL(L LUQt utiive . ftUL.
OSWER Directive 9650.15
(2) Inventory records have been maintained for th5 preceding
three years and do not show a loss of liquid, or an assessment
is performed which indicates that no contamination is present;
and
(3) The liner material is compatible with the regulated
substance stored.
(b) Steel tank relining shall be accomplished in accordance with
American Petroleum Institute Publication 1631, “Recoimnended Practices for the
Interior Lining of Existing Steel Underground Storage Tanks”.
(c) Plans and specifications shall be submitted to the Division in
accordance with Env—Ws 411.20.
(d) The system shall be tightness tested in accordance with Env—Ws
611.13 after rel1ning of the tank is completed.
(e) The relining shall not be considered to affect any of the
requirements of these rules relative to the age of a tank.
(f) The lining shall be tested after 10 years, then every 5 years
thereafter for structural soundness, voids, detachment from the metal tank, or
other defects. If at any time the lining is determined not to be functioning
as originally intended and installed, the tank shall be permanently closed.
(g) Documents shall be retained for the life of the tank which
describe the lining manufacturer, contractor, date, warrantees, procedure,
materials, and any other information pertinent to the work.
Source . #4965, eff 11—2—90
Env—Ws 411.36 Repair of Fiberglass—Reinforced Plastic Tanks .
(a) An underground fiberglass—reinforced plastic tank shall be
repaired only once during the life of the tank and such repairs shall be
subject to the following conditions:
(1) The tank has passed a precision tightness test conducted in
accordance with Env—Ws 411.13 and inventory records for the
preceding three years indicate no loss of stored liquid, or an
assessment is performed which indicates that no contamination is
present; and
(2) The repairs shall not be considered as affecting the age of
the tank for the purposes of these rules.
(b) Plans and specifications shall be submitted to the Division in
accordance with Env—Ws 411.20.
(c) Repairs shall be conducted in accordance with manufacturer’s
requirements or nationally recognized codes and standards.
29 Env—Ws 411
33

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NEW HAMPSHIRE CODE OF ADMINISTRATIVE RULES
EWER Directive 9650.15
Cd) Following completion of the repair of the tank, and before
backfilling, the system shall be tightness tested j accordance with Env—Ws
411.13.
(e) Documents shall be maintained for the life of the tank which
describe the material(s) manufacturer(s), contractor, date of repair,
warrantees, procedures, materials, and other information pertinent to the work.
Source . #4965, eff 11—2—90
Env—Ws 411.37 Repair and Replacement of Piping Systems .
(a) Piping systems which discharge or release liquid shall be
replaced by systems meeting the requirements of Env—Ws 411.22.
(b) When a tank is removed and replaced, all piping shall also be
replaced, wiles it meets the requiremeifts of these rules for new piping.
Source . #4965, eff 11—2—90
Env—Ws 411.38 Field—Fabricated Tanks .
(a) Field—fabricated underground storage tanks shall not be used
unless the complete system is designed by a registered structural engineer.
(b) New field—fabricated tanks shall meet all requirements of these
rules for new installations.
(c) The design engineer shall certify that a field fabricated tank
is necessary because installation of a factory fabricated tank is not
feasible, and that the design plans and specifications meet all requirements
of these rules.
Source . #4965, eff 11—2—90
Env—Ws 411.39 Secondary Containment for Hazardous Substance Systems .
(a) All hazardous substance underground storage systems without
secondary containment and leak monitoring shall be closed by December 22, 1998.
(b) Approval of secondary containment system installations shall be
in accordance with Env—Ws 411.20.
Source . #4965, eff 11—2—90
Env—Wa 411.40 Waivers .
(a) An owner may request a waiver of specific rules in this Part in
accordance with paragraph (b) below.
30 Env—Ws 411
34

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OSWER Directive 9650.15
(b) All requests for waivers shall be submitted in writing to the
Division and shall include the following inforination
(1) A description of the facility to which the waiver request
relates, including the name, address, and registration number
the facility.
(2) A specific reference to the section of the rule for which a
waiver is being sought;
(3) A full explanation of why a waiver is necessary;
(4) A full explanation of the alternatives for which a waiver
is sought, with backup calculations and data for support; and
(5) A full explanation of how the grant of the waiver is
consistent with the intent of RSA 146—C.
(c) The Division shall approve a request for waiver upon finding
that:
(1) The alternatives proposed are at least equivalent to the
specific requirements contained in the rule; or
(2) If the alternatives proposed are not equivalent to the
requirements contained in the rule, they are adequate to ensure
that the intent of RSA 146-C is met.
(d) No waiver shall be granted which, in the judgment of ti
Division, contravenes the intent of any nile.
(e) The Division shall issue a written response to a request for a
waiver within 60 days of receipt of the request.
Source . #4965, eff 11—2—90
31 Env—Ws 4l
35

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OSWER Directive 9b U.1
New Hampshire Code of Administrative Rules
Env-Ws 412
Reporting and Remediation of Oil
November 1990
Discharges
N.H. Department of Environmental Services
ES
a’

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— .—. . — . , . LtIj
0SWE Directive 9650.15
PART Env—Ws 412 REPORTING AND R 1EDIATION OF OIL DISCHARGES
Statutory Authority: RSA 146—A:Il—C
Env—Ws 412.01 Pnroose . The purpose of these rules is to establi
procedures and requirements for notification, reporting, response actions, a
investigations for sites where discharges of oil have occurred.
Source #4966, eff 11—2—90
Env—Ws 412.02 Applicability . Any responsible party or other person
having knowledge of a discharge of oil shall report such discharge to the
Division inmiediately, unless all of the following conditions are met:
(a) The discharge is less than 25 gallons;
(b) The discharge is immediately contained;
(c) The discharge and/or contamination is completely removed within
24 hours; anc
(d) There is no impact or potential impact to groundwater or surface
water.
Source . #4966, eff 11—2—90
Env—Ws 412.03 Definitions .
(a) “Discharge” means a leak, spill, or release of oil to the
environment.
(b) “Contamination” or “contaminated” means the results of discharge
of oil into groundwater, surface water or soil.
(c) “Free Product” means oil which exists as a separate phase or
layer of greater than 1/8” thickness on water.
(d) “Responsible Party” means an operator or other person who is
strictly liable for a discharge of oil under RSA 146—A:3—a.
(e) “Receptor” means a living organism or an environmental medi
which is exposed to contamination from a discharge.
(f) “Site” means the place or location where a discharge is known or
suspected to have occurred.
Source . #4966, eff 11—2—90
1 Env-Ws 412
37

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i .w .II. . .dL
Env—Ws 412.04 Notification . OSWER Directive 9650.15
(a) Per8ons notifying the Division of confirmed or suspected
discharges of oil shall provide the following information:
(1) The name and phone number of the person notifying the
Division;
(2) The location of the discharge site;
(3) The date and time of the discharge; and
(4) The type and amount of oil discharged; and
(5) The name and phone number of the party potentially
responsible for the discharge.
(b) If the spill occurs during normal working hours, notification
shall be directly to the Division. If the reporting p -ty is unable to
contact the Division, notification shall be to the State Pol e.
Source . #4966, eff 11—2—90
£nv—Ws 412.05 Initial Response Action . When a discharge occurs any
responsible party shall take the following actions imediately:
(a) Assess the situation and evaluate fire, health and safety
hazards;
(b) Stop the discharge;
Cc) Contact the, local fire department if a fire or safety hazard
exists;
(d) Notify the Division or State Police as required wider Section
Env—Ws 412.04;
(e) Contain and remove all discharged oil and oil—contaminated
debris;
(f) Dispose of discharged oil and oil—contaminated debris In
accordance with all applicable local, state and federal rules;
(g) Monitor and mitigate fire, health and safety hazards posed by
vapors or free product; and
(Ii) Take any action necessary to prevent environmental damage fro.
the discharge.
Source . #4966,-eff 11—2—90
2 Env—Ws ‘1
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NEW HAMPSHIRE CODE OF ADMINISTRATIVE RULES
OSWE Directive 9650.15
Env—Ws 412.06 Abatement Measures . After initial response action,
responsible parties shall perform the following abatement measures:
(a) Ensure that fire, health and safety hazards posed by fr
product or vapors continue to be monitored and mitigated;
(b) Remediate hazards posed by contaminated soils that have been
excavated or exposed as a result of the initial response action or site
characterization. In undertaking remediatiOfl, all applicable local, state,
and federal laws and regulations shall be complied with;
(c) Investigate to detezinine the possible presence of free product;
and
(d) If free product is present, begin free product removal as soon
as practicable in accordance with Env—Ws 412.07.
Source . #4966, eff 11—2—90
Env—Ws 412.07 Free Product Removal .
(a) At sites where free product is present, responsible parties
shall remove the free product in a manner that minimizes the spread of
contamination.
(b) Discharges and by—products from free product recovery and
disposal operations shall be treated or disposed of in compliance with
applicable local, state and federal regulations;
(c) Free product removal systems shall be designed to complete:
remove free product;
(d) Fi”v”able products shall be handled in a safe and competent
manner to prevent fires or explosions; and
(e) Documentation of free product removal measures shall be
submitted to the Division with the initial site characterization report
required under Env—Ws 412.08 and shall contain the following information:
(1) The names of the person(s) responsible for implementing the
free product removal measures;
(2) The estimated quantity, type, and thickness of free product
observed or measured;
(3) The type of free product recovery system used;
(4) Whether any discharge of treated water takes place on—site
or off—site during the recovery operation and where this
discharge is located;
3 Env—Ws 412
39

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NEW HAMPSHIRE CODE OF ADMINISTRATIVE RULES
OSWER Directive 9650.15
(5) The type of treatment applied to any contaminated water
pumped or extracted to effect free product removal;
(6) The steps that have been or are being taken to obtain
necessary permits for any discharge of treated water; and
(7) The disposition of the recovered free product.
source . #4966, eff 11—2—90
Env—Ws 412.08 Initial Site Characterization .
(a) Responsible parties shall conduct an initial site
characterization unless they conclusively demonstrate to the Division that the
discharge has not resulted in any contamination. The purpose of the initial
site characterization shall be to obtain information about the hydrogeology of
the site and the niture of the discharge, and identify any receptors and
potential receptors.
(b) Responsible parties shall conduct field investigations to assess
the discharge in areas where contamination is most likely to be present at the
site. In selecting sample types, sample locations, and measurement methods,
responsible parties shall consider the nature of the discharged substance, the
type of initial alarm or cause for suspicion, the types of backfill around any
underground storage tanks, the distance to surface water and the depth to
groundwater.
(c) Responsible parties shall sample the environment most likely to
be contaminated by a confirmed or suspected discharge. Analysis of soil gas,
groundwater, surface water, or soils shall be used.
(d) Environmental samples collected at the site may be field
screened with an organic vapor analyzer and shall be analyzed at an EPA
certified laboratory.
(e) Within 30 days of the notification to the Division of a
discharge, responsible parties shall submit a Site Characterization Report to
the Division which shall include the following:
(1) Data on the nature, location, and estimated quantity of the
discharge;
(2) Data from available sources or other investigations
concerning:
a. Surrounding populations;
b. Water quality;
c. Use and approximate locations of drinking water
supplies potentially affected by the discharge;
4 Env—Ws 412
40

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NEW HAN2SaIRE CODE OF ALtIINISTRATIVE RULES
d. Subsurface soil conditions; OSWER Directive 9650.15
e. Locations of underground utilities, drains, sewers; and
f. Land use.
(3) Documentation of free product removal;
(4) Information gained while conducting the abatement measures
in Env—Ws 412.06; and
(5) A preliminary assessment of receptors and potential
receptors.
Source . #4966, eff 11—2—90
Env—Ws 412.09 I Ivestigation Due to Discovery of Discharges from Unknown
Sources . When a discharge from an unknown source is discovered, the owners
and operators of facilities near the location of the discovery shall conduct
an initial site characterization in accordance with Env—Wa 412.08 unless the
owner or operator can conclusively demonstrate that a discharge has not
occurred at the facility. The initial site characterization shall determine
if a discharge has occurred at the facility.
Source . #4966, elf 11—2—90
Env—Ws 1.12.10 Site Investigation .
(a) Upon completion of an initial site characterization, responsib
parties shall investigate the discharge, the discharge site, and the off—si
surrounding area possibly affected by the discharge unless the initial si
characterization establishes that no free product is present, no contaminated
soils are present, and there is no present or potential groundwater or surface
water impact from the discharge.
(b) The site investigation shall determine the location and full
extent of contamination and identify receptors and potential receptors.
(c) Tree product identified at any stage of the investigation shall
be reported to the Division iediately and removed as expeditiously as
possible. The presence of vapors which pose an in inent threat to public
safety shall also be reported inxnediately and corrective action implemented
without delay.
Cd) A recoverable bench mark shall be established at the site and if
a USGS bench mark is within 1,000 feet of the site, elevations at the site
shall be recorded using National Geodetic Vertical Datum (NCVD).
(e) Responsible parties shall submit a site investigation report in
accordance with Env—Ws 412.11 to the Division within 120 days of notification
to the Division of a discharge.
Source . #4966, eff 11—2—90
5 Env—Ws 412
41

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•. — . —. . ... . — . d #I.. V C A £ AAI A A All £ £
OSWER Directive 9650.15
Env—Ws 412.11 Site Investigation Report .
(a) A site investigation report shall define the nature, extent, and
magnitude of Contamination and identify threats to public health, welfare and
to the environment.
(b) The site investigation report shall include the following
information:
(1) Location of the site, including address, phone number at
the site, tax map and lot number;
(2) History of site ownership and operation for at least the
last 50 years or since Initial development, including the name,
current address and telephone number of a1l current owners and
operators;
(3) A locus plan which is a photocopy of USGS topographic maps;
(4) A copy of the local tax map showing the property on which
the site is located in relation to surrounding properties;
(5) A plot plan which r’eets the requirements of Env—Ws
412.11(c);
(6) A groundwater contour map, consisting of the plot plan
overlayed with the groundwater contours and showing measured
water level elevations in piezometers and monitoring wells;
(7) A potential receptors map using the tax map as a base
showing:
a. Street names;
b. Adjacent properties;
c. Adjacent and nearby b dldings;
d. Residences with basements;
e. Surface water bodies; and
f. Water supply wells within 1,000 feet of the site
location.
(8) Underground storage tank information, including:
a. Date of installation of all tanks on site, and date of
removal of all tanks previously located on the site;
6 Env—Ws 412
42

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NEW 1 AL1PSHIRE CODE OF AEtIINISTRATIVE RULES
OSWER Directive 9650.15
b. Size and construction material of all tanks on site;
c. Substances presently and previously stored in all tanks;
d. Tank tightness test dates, methods, testers, au
results, including data and worksheets or calculations;
e. Type and location of release detection and corrosion
protection for tanks and lines; and
f. Type or textural class of fill under and around tanks
and lines.
(9) A description of all known discharges of oil and other
contaminants on the site including:
a.- Date and description of the discharge, including the
quantities lost and recovered, and the location of the
discharge;
b. Date the discharge was reported to the division; and
c. Cleanup action taken and assessment of offsite impacts,
if any.
(10) Results of on—site inspection during any tank removal,
including:
a. Description and location of any corrosion, visib1
leaks, or loose fittings;
b. The name, organization, address and telephone number of
the official observer such as the fire marshall, fire
department or division representative, present when tank(s)
were removed;
c. A description of conditions in area of the tank
excavation including contaminated soil volumes, odors,
sheens, visible product, bedrock, or tank anchors;
d. A description of sampling methodology and analytical
field screening measurements;
e. Photographs of removed tanks; and
f. Ultimate disposal of the tank(s) and contaminated soil.
(11) A list of previously completed investigations and reports
pertinent to the site.
(12) A suary of all governmental files reviewed.
Env—Ws 412
43

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• ...——..——‘,—,— “ L ’J&. l
OSWE Directive 9650.15
(13) A description of the geology of the site, including:
a. Soil types, thickness, classification, grain size, and
texture;
b. Test pit and boring log data including textural
description, drilling methods, odors observed, blow counts,
and water table observation; and
c. Bedrock description, depth and characteristics.
(14) Groundwater elevation information including a table of
water level measurements, top of casing elevations relative to
an assumed datum depth of water table, and free product
thickness, if present.
(15) Groundwater quality sampling information, including
locations, dates, sampling methodologies, and analytical results
for all groundwater quality samples obtained.
(16) Surface water information, including locations of points
or seeps within 500 feet of the site where the groundwater
discharges to surface water, and locations, dates, sampling
methodologies, and analytical results for any samples of surface
water suspected to be impacted.
(17) Conclusions and reconmiendations, including:
a. A sunmary description of the source or potential
source(s) of the contamination;
b. A description of the current extent of contamination in
the soil, surface water, groundwater, and the presence of
vapors;
c. Identification of potential receptors due to the
presence or potential migration of contaminants; and
d. Reconinendations for further investigation and
remediative measures.
(c) The plot plan required by Env—Ws 412.ll(b)(5) shall be prepared
in accordance with the following:
(1) The plan shall be drawn to scale and the scale shall be
noted on the plan, including a graphic scale bar;
(2) A north arrow shall be included;
(3) At least one bench mark shall be shown and its elevation,
whether assumed datum or NGVD, and a brief identification
description shall be included; and
8 Env—Ws 412
44

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NEW HAMPSHIRE CODE OF ADMINISTRATIVE RULES
OSWER Directive 9650.15
(4) Surface contours and any spot elevations obtained shall be
shown.
(d) The plot plan required by Env—Ws 412.ll(b)(5) shall show t
following features and attributes if applicable:
(1) BuildIngs;
(2) Paved areas;
(3) Property lines;
(4) Above ground tanks and other structures;
(5) Surface water bodies;
(6) Driinage swales;
(7) Flood plains;
(8) Areas of identified rele: es;
(9) Areas of stressed or dead vegetation;
(10) Areas of stained or discolored soil;
(11) Underground tanks and associated piping;
(12) Former locations of underground storage tanks;
(13) Underground utilities;
(14) Subsurface drains;
(15) Septic systems and dry wells;
(16) Soil borings and test pits;
(17) Water supply wells; and
(18) Piezometers and monitoring wells.
(e) Maps and plans shall be printed on 8 1/2 X 11. inch or 11 X 17
inch sheets.
Source . #4966, eff 11—2—90
Env—Ws 412.12 Remedial Action Plan .
(a) Responsible parties required to conduct a site investigation
under Env—Ws 412.10 shall submit a remedial action plan for responding to and
reinediating contamination.
9 Env—Ws 12

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! .W MANI’S 11th (UUt OF ADMjNisrRAflv . KUL .S
OSWER Directive 9650.15
(b) The plan shall provide for protection of human health and the
environflient.
(c) The Division shall approve or disapprove the plan, based upon a
determination of conformance with the following remedial action plan criteria:
(1) The plan shall identify known technologies and alt rnative
remedial options which have the potential to achieve
contamination removal;
(2) The plan shall provide a time schedule for achieving
contamination removal;
(3) The plan shall identify any special requirements necessary
to prove the technical feasibility of the proposed remedial
action(s);
(4) The plan shall recommend a method(s) for off—site disposal
of contaminated soils and/or water, if removal of contaminated
materials from the site is inclusive in the plan;
(5) The plan shall recoainend short and long term site
monitoring requirements; and
(6) The plan shall recommend remediatlon alternatives, which
incorporate risk—based exposure assessments as applicable, to
mitigate contamination impacts to receptors.
(d) Upon approval of the remedial action plan by the division, based
on the criteria in paragraph Cc) above, the responsible party shall implement
the plan.
Ce) The results of implementing the plan, including an evaluation of
the effectiveness of the remediation, shall be submitted to the Division.
(f) Responsible parties may, in the interest of minimizing
contamination and promoting more effective remediation, begin reinediation of
soil, gro mdwater and surface water before the remedial action plan is
approved by the Division, provided they:
(1) Notify the Division in writing of their intent to begin
remediation;
(2) Comply with any conditions imposed by the Division
including halting remediation or mitigating adverse consequences
from remediation activities;
(3) Incorporate these self—initated remediation measures into
the plan that is submitted to the Division for approval; and
10 Env—Ws 412
46

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N .W flALI±bHIRE COL) Uk MX11r 1SIRATIVE RULES
OSWU Directive 9650.15
(4) Comply with the requirements of all applicable local,
state, and federal rules and statutes.
Source #4966, eff 11—2—90
Env—Ws 412.13 Public Notification .
(a) Responsible parties shall notify all owners of property within
100 feet of the property on which the site is located, all owners of drinking
water wells within 500 feet of the site, and the local selectmen or mayor as
appropriate, regarding the nature, extent, and magnitude of contamination and
the existence of threats to public health, welfare and the environment, if
any, and proposed remedial action.
(b) Public notification shall be provided upon completion of a site
investigation report and/or remedial action plan, completed in accordance with
these rules.
(c) Responsible parties shall report public notification to the
Division including copies of notices sent to abutters and local officials
which indicate the mani er of delivery.
(d) If public notification is not made by responsible parties, the
Division shall do so and all costs of public notification shall be paid by
responsible parties.
Source . #4966, eff 11—2—90
Env—Ws 412.14 Waivers .
(a) The rules contained in this Part are intended to apply to
variety of conditions and circumstances. It is recognized that strict
compliance with all rules prescribed herein may not fit every conceivable
situation. Responsible parties may request a waiver of specific rules
outlined in this Part in accordance with paragraph (b) below.
(b) All requests for waivers shall be submitted in writing to the
Division and shall include the following information:
(1) A description of the facility or site to which the waiver
request relates, including the name, address, and identification
number of the facility or site;
(2) A specific reference to the section of the rule for which a
waiver is being sought;
(3) A full explanation of why a waiver is necessary and
demonstration of hardship caused if the rule is adhered to;
(4) A full explanation of the alternatives for which a waiver
is sought, with backup data for support; and
11 Env—Ws 412
47

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“ N’lZ A4ZtZ. r it LA Lh(JeLJV . LtUL
OSWE Directive 965ti.15
(5) A full explanation of how the alternatives for which a
waiver sought is consistent with the intent of RSA 146—A, would
have a just result, and would adeq’tately protect human health
and the environment.
Cc) The Division shall approve a request for a waiver upon finding
that the alternatives proposed are at least equivalent to Lhe requirements
contained in this rule, they are adequate to ensure that the provisions of RSA
146—A are met, and human health and the environment are protected.
Cd) No waiver shall be granted which, in the judgment of the
Division, contravenes the intent of any rule.
Ce) The Division shall issue a written response to a request for a
waiver within 60 days of receipt of the request.
Sour j,. #6966, eff 11—2—90
L2 Env—Ws
48

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OSWER Directive 9650.8
STATE PROGRAM APPROVAL
HANDBOOK
U.S. ENI’7RONMENTAL PROTECTION AGENCY
OFFICE OF UNDERGROUND STORAGE TANKS
March 1989 - ‘r
UST/SPA/G/89—2

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OSWER Directive 9650.8
TABLE OF CONTENTS
1. INTRODUCTION 3
A. Purpose of This Handbook 3
B. The Goals of This Handbook 3
C. How This Handbook Can Help You 4
D. EPA’s Approach to Regulating UST Systems 6
E. EPA’s Approach for Implementing the UST Program 10
2. ATE PROGRAM APPROVAL PROCESS 11
A. Purpose of State Program Approval 11
B. Approval Criteria 12
C. Application Process for Approval 14
3. COMPONENTS OF THE STATE PROGRAM APPROVAL APPLICATION 18
A. Introduction 18
B. Components of the Application 18
1. Governor’s Letter 18
2. Attorney General’s Certification a nd Statement 19
3. Demonstration of “Adequate Enforcement” Procedures 23
4. Memorandum of Agreement 23
5. Program Description 23
6. Interim Approval Schedule 24
7. State Statutes and Regulations 25
4. ATTORNEY GENERAL’S STATEMENT: DEMONSTRATION OF “NO LESS
STRINGENT” OBJECTIVES AND “ADEQUATE ENFORCEMENT” AUTHORITIES 27
A. Introduction 27
B. Objectives of the Federal Technical Requirements 27
1. New UST Systems and Notification 30
2. Upgrading Existing UST Systems 35
3. General Operating Requirements 39
4. Release Detection 45
5. Release Reporting, Investigation and Confirmation 54
6. Release Response and Corrective Action 58
7. Out-of-Service UST Systems and Closure 67
8. Financial Responsibility for lISTs Containing
Petroleum 72
C. Adequate Enforcement Authorities 78
D. Scope of the State Program 85
5. DEMONSTRATION OF ADEQUATE ENFORCEMENT PROCEDURES 88
A. Introduction 88
B. Procedures for Compliance Monitoring 89
1. Identifying the Regulated Community 90
2. Record Review 92
3. Inspections 95
4. Public Reporting 97
5. Data Maintenance 97

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OSWER Directive 9650.8
C. Procedures for Enforcement Response 98
1. Informal Means of Encouraging Voluntary Compliance 100
2. Formal Enforcement Responses 102
3. Enforcement Outreach 103
6. MEMORANDUM OF AGREEMENT 104
A. Explanation 104
1. Who Signs 104
2. Federal/State Partnership 104
3. State Program Appraisal Process 105
4. Compliance Monitoring ar -’ Enforcement 107
5. Scope of the UST Program. 107
6. Variances. 108
B. Sample Memorandum of Agreement 110
7. PROGRAM DESCRIPTION 119
A. Introduction 119
B. Local Implementation 120
C. Program Description Questions 121
1. General Questions 121
2. Program Scope 122
3. Organization and Structure of Program 125
4. Resource Information 127
5. State Funds for Financial Responsibility. 128
APPENDICES
Appendix A Sample Application A-i
Appendix B Federal Subtitle I Program B-i
Appendix C Statutory Checklist C-i
Appendix D Tools for Implementing State Programs D-l
Appendix E Table of National Industry Codes E-1
Appendix F Public Participation F-i
Appendix G Definitions of Terms in the Federal Technical Rule C-i

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OSWER Directive 9650.8
3
CHAPTER 1. INTRODUCTION
A. Purpose of This Handbook
This handbook “as developed for State and EPA officials who are building
and evaluating State UST programs to be approved to operate in lieu of the
Federal IJST program. As provided in Subtitle I of the Hazardous and Solid
Waste Amendments of 1984, States may be approved by EPA to administer and
enforce their UST programs if their technical requirements are no less
stringent than the corresponding Federal requirements, and if they provide
adequate enforcement of these requirements. EPA has promulgated regulations
for State program approval (53 FR 37212 - 53 FR 37247) that were published in
the September 23, 1988, Federal ReEister (40 CFR Part 281). This handbook
provides further explanation and discussion to increase the States’
understanding of how EPA intends to implement these regulations.
B. The Goals of This Handbook
The goals for this handbook are:
• To encourage State applications by making the application
process as easy and straightforward as possible;
• To clearly describe EPA’s expectations and criteria for an
approvable State program. Clear expectations will help
States with existing UST programs anticipate any legislative
or regulatory changes that may be necessary for approval,
and may help other States in designing approvable programs.
Clear expectations will also promote consistency in the
approach tr at EPA Regional offices use to review State
programs; and

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OSWER Directive 9650.8
4
. To encourage a wide range of State UST programs. EPA
recognizes that there are many different ways to design an
UST program that can meet the basic environmental and public
health goals of the Federal regulations, while also
reflecting the unique environmental characteristics and
governmental institutions of each State.
C. How This Handbook Can Help You
The handbook is written for two audiences: State ager.. ies and EPA
Regional offices. This document should assist States as they design their UST
programs and assemble applications for program approval. In addition, it
should assist EPA Regional offices as they work with States before
applications for program approval are submitted, and as the Regional offices
review the official State applications.
Because not all the material presented here will be useful for every
situation, the reader need not feel obligated to read the handbook from cover
to cover. The handbook is divided into seven chapters and Appendices as
follows:
Chapter 2 discusses the State program approval process and defines EPA’s
goal of allowing approved State programs to operate “in lieu of” the Federal
program. This chapter also describes the criteria that will be used to
determine a State program’s suitability for approval, and outlines the steps
in the application process.
Chapter 3 provides a brief description and explanation of each component
of the State program approval application. Sample letters and other forms are
included in some sections of this chapter to aid States in developing their
own application package. More detailed discussions of some of these

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OSWER Directive 9650.8
5
components are provided in the subsequent chapters. Finally, the procedure of
interim approval is explained for States that choose to use it. (However, EPA
does not expecc many States to use this procedure.)
Chapter 4 discusses the Attorney General’s statement that the statutes
and regulations of the State provide adequate authority to carry out the “no
less stringent” technical requirements, and ensure adequate enforcement of the
State’s UST program. A worksheet and examples are provided for each of the
“no less stringent” objectives to help States interpret these Federal
objectives.
Chapter 5 explains the requirements for compliance monitoring and
enforcement procedures, and includes detailed discussions to aid States in
describing how their own programs demonstrate “adequate enforcement”
procedures.
Chapter 6 describes the purpose of the Memorandum of Agreement (MOA)
that the State may provide to EPA. This MOA, to be negotiated with EPA,
describes the coordination and shared responsibilities of the State and EPA
A sample MOA is also provided in this chapter to aid States in preparing their
own applications.
Chapter 7 provides additional guidance for completing the Program
Description section of the State program approval application. The guidance
covers the five major areas of the Program Description including: general
questions, program scope, organization and structure of the program, resource
information, and State funds for financial responsibility.
The Appendices contain a sample program approval application, the
applicable Federal statute and regulations, other regulatory and statutory
tools, and a list of codes and standards written by nationally-recognized
organizations and national independent testing laboratories.

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OSWER Directive 9650.8
6
D. EPA’s Approach to Regulating lIST Systems
EPA ’s approach to the regulation of underground storage tank systems on
a national scale must be different from that undertaken by most of its other
regulatory programs because the UST problem is significantly different This
difference is mainly a result of three factors: the large number of
facilites to be regulated; the nature of the regulted community; and the
nature of the regulatory work.
1. Large size of regulated community .
The most significant problem is the sheer size of the regulated
community. Nationally, over 700,000 UST facilities account for about 2
million UST systems. Estimates indicate that roughly 75 percent of existing
UST systems are unprotected from corrosion (and thus, present a serious
environmental risk). A relatively high proportion of UST facilities (10-30
percent) have already had a leak, and soon others will leak unless measures
are taken to upgrade them.
The amount of activity it takes to properly manage an UST system
throughout its operating life has led EPA to conclude that the national UST
program is most effectively carried out at State and local levels of
government. For example, a. small city with about 700 facilities and 2,000 UST
systems within its jurisdiction can run a manageable regulatory program. If
each of those 700 facilities installs one new tank during the next five years,
that would be an average of 140 installations per year, or three per week. If
that small city requires a city inspector to be present at each installation,
an inspector would have to be in the field three times a week just for
installations of new USTs. This estimate does not include “spot” inspections
that might be needed for periodic tank testings, closures, upgrading or
retrofit and cleanups. This task would be challenging, but the city could

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OSWER Directive 9650.8
7
probably manage to oversee at least its small percentage of the national
regulated community. However, if the above figures are multiplied by the
number of cities across the country, the idea of a Federally-implemented
program that would oversee all of these facilities becomes practically and
effectively impossible.
A consideration of the large numbers “f UST owners and liST systems also
led EPA to design the Federal UST regulations with a phase-in period for
certain requirements on existing UST systems. while all Federal requirements
are in effect immediately for new TJST systems, owners have until December 22,
1998, or ten years, to upgrade existing liST systems to the corrosion
protection standard for new UST systems, and 1 to 5 years to install release
detection equipment for existing liST systems. These phased-in requirements
are a recognition of the fact that there are some limitations on the
capability of 700,000 liST owners and supporting service and manufacturing
industries to respond immediately to new regulations. The experience of
States that have been operating UST regulatory programs shows that it takes
several years for most owners of existing UST systems to understançi and
respond to new regulations that require significant changes in the day-to-day
management of their businesses.
2. Nature of the regulated community .
Many UST facilities are owned and operated as small local businesses:
“Mom and Pop” gasoline service stations and convenience stores. These small
entrepreneurs, who are used to operating their businesses with minimal
regulation, will be significantly affected by environmental regulations for
UST systems.
The experience of State and local agencies with UST programs shows that
large businesses that own USTs are generally willing and have already begun to

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OSWER Directive 9650.8
8
comply with UST requirements, but that small owners, with limited resources
and knowledge of Federal regulations, often need more direct attention and
immediate assistance to bring them into compliance and to maintain that
compliance. Given the nature of this particular regulated community, EPA
believes this regulatory program often will be most effectively carried out by
the level of government nearest o the problem. State and local governments
know their regulated communities and are best able to respond quickly and
effectively to their individual problems.
3. Nature of the regulatory work .
The problem of releases from USTs is multi-faceted. There are three
major sources of release incidents: product delivery piping failures;
corrosion of unprotected tanks and piping; and spills and overfills.
Environmental regulations for UST systems must be aimed at preventing these
different types of petroleum and hazardous substance releases as well as
increasing the ability to quickly detect and minimize the contamination of
soil and ground water caused by such releases, and ensuring adequate cleanup
of contamination. To do this, UST regulatory requirements must address every
phase of the lifecycle of a storage tank system: selection of the UST system,
installation, operation and maintenance, closure, financial responsibility,
and cleanup of the site where releases have occurrea. Many State and local
governments have found that a great deal of visible, on-site monitoring and a
constant enforcement “presence” is needed to effectively ensure many owners’
compliance with requirements at each stage of the life of the UST system.
Therefore, a regulatory program will be most successful in achieving this
compliance (and thus preventing environmental contamination and ensuring
cleanups of contamination) if it can be implemented by the level of government

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OSWER Directive 9650.8
9
most capable of performing these close and constant checks on the regulated
community.
4. State and local UST programs needed .
While the task of regulating liSTs poses unique problems, it also
presents opportunities that are not available to some other environmental
regulatory programs. Fi t, over 30 States already have begun to dev lop UST
regulatory programs, and a number of local programs are also in operation.
These State and local programs provide a range of existing program designs and
experiences that can be useful models for the remaining States and localities
as they design and implement their new programs. Second, in many instances,
the large number of petroleum liST facilities to be regulated could provide an
opportunity for States and localities to impose fees or taxes that may raise
enough revenue to support a successful UST regulatory program. Finally, State
and local governments may have a number of effective regulatory mechanisms and
informal enforcement tools that can be applied to underground storage tank
systems that are not available to the Federal government. For example, some
State and local agencies may be able to require installation permits for UST
systems and regulate petroleum distributors, while local enforcement actions
may include the revocation of a facility’s business license.
The task of regulating liSTs presents EPA with both the need and the
opportunity to work with States to encourage the development of State and
local UST programs. The “national” UST program will continue to be primarily
a network of State and local programs, with EPA providing leadership and
assistance, and enforcement backup as necessary. This approachis based on
substantial evidence that, in the long run, UST systems will be most
successfully regulated by State and local governments. EPA’s focus is on the
achievement of long-range goals and the need to build a relationship with

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OSWER Directive 9650.8
10
State and local governments so that we can work together to improve the
implementation of the UST program over the next decade.
E. EPA’s Approach for Implementing the UST Program
OUST has adopted the franchise model as its implementation approach in
managing the national UST program. It should be noted here that the franchise
approach is simply a model of organizing and administering a service
organization. While the main goal of businesses is to make a profit, EPA’s
goal is to protect human r ealth and the environment, and this difference is
reflected in how the model is used. The State, as franchisee, operates
independently, under a signed agreement with EPA, to operate the UST program.
Regions serve as the field representatives or liaisons between EPA
Headquarters and the States to relay ideas, needs, and information between the
EPA and the States. This model permits both uniformity and distinction in
management styles. Headquarters provides general operating guidelines to
ensure that all of the States are achieving the same basic objectives in
managing underground stor : ;e tanks. Simultaneously, the Sc es run their
programs using a management style that is tailored to meet the specific needs
and demands of their own regulated community. The demand for service and
support varies in each State, and is affected by such factors as UST
population, ground-water usage, weather and climate conditions, and financial
conditions of owners and operators. The aim of State program approval is to
develop the State-Federal partnership that will allow both parties to focus on
preventing leaking USTs from causing further environmental contamination.

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11
CHAPTER 2. STATE PROGRAM APPROVAL PROCESS
As an important step toward achieving the long-range goal of developing
a network of effective State and local programs, EPA is encouraging States to
apply for formal approval of State IJST programs to operate “in lieu of” the
Federal program. EPA plans to approve acceptable State JJST programs as
quickly as possible, and follow up with activities that provide continual
assistance to States and localities for improving their capability and
performance.
A. Purpose of State Program Approval
Subtitle I of RCRA allows State UST programs approved by EPA to operate
in lieu of the Federal program if such programs contain requirements for UST
systems that are “no less stringent” than the Federal requirements and for
which there is “adequate enforcement” of compliance. The requirements and
procedures for approval of State programs are contained in the Federal
regulations at 40 CFR Part 281 and are described in further detail elsewhere
in this handbook.
Approval by EPA of a State program means that the requirements in the
State’s laws and regulations will be in effect rather than the Federal
requirements. Program approval ensures that a single set of requirements (the
State’s) will be enforced in that State, thus eliminating the duplication and
confusion that would result from having separate State and Federal
requirements. Once a State program is approved, the State program will
operate under an agreement with EPA that clearly delineates EPA’s limited role
in an approved State, and assures the State of its lead role in administering
and enforcing the UST program.

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OSWER Directive 9650.8
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Approval of a State program also means that the basic environmental
protection afforded by the Federal program is contained in the State program
as well. The primary focus of EPA’s approval review will be on basic State
authorities (laws and regulations) needed to achieve the underlying objectives
of the Federal regulations covering the prevention, detection, and cleanup of
liST releases.
S. Approval Criteria
Subtitle I allows EPA to authorize States to operate their own program
in lieu of the Federal program j certain conditions are met. The State
program must address the same UST system universe and include requirements for
each of the elements in the Federal program. Those requirements must be “no
less stringent” than corresponding Federal requirements and the State must
provide for adequate enforcement of the requirements.
Over half the States are recently developing and beginning to implement
their own comprehensive UST programs. EPA has encouraged these developments
and believes that States must continue to have the flexibility to develop and
carry out “homegrown” initiatives. EPA wishes to allow States to develop UST
programs that best suit their own needs; it does not want tQ create arbitrary
requirements defining program size (for example, number of staff members), or
the amount of detail to be included in an application’s description of the
roles of State and local governments. EPA just wants to know that all States
have a complete program. For example, if States demonstrate that local
governments and agencies contribute to a complete State UST program, then that
level of detail will be appropriate for inclusion in the application, and will
be judged accordingly. States should gauge their own needs and use their own
judgment in developing their individual liST programs. EPA intends for its

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OSWER Directive 9650.8
13
approval criteria to result in as little unnecessary disruption of these
ongoing initiatives as possible. A State should not have to go back and make
revisions to its program to receive EPA’s approval unless those revisions are
necessary to meet Federal objectives designed to protect human health and the
environment.
EPA’s determination of whether State programs are no less stringent will
be based on a comparison of the State’s technical requirements with the
Federal objectives for each of these program elements. Chapter 4 of this
handbook discusses the Federal objectives in detail. The specific Federal
requirements in the Agency’s technical regulations for UST systems do not
provide the only definitive approach for protection of human health and the
environment. In developing the Federal requirements, EPA recognized that
there could be other approaches that would meet EPA’s overall performance
objectives. The Federal Technical Standards are by necessity more detailed
and specific than the objectives they are designed to meet, because the
Federal regulations must be complied with by the regulated community ahd must
be enforceable in those States without approved State programs. The
individual requirements set forth in the Federal regulations should not be
interpreted as to preclude States from developing other approaches that will
still achieve the overall objectives of performance specified for State
program approval.
The Federal objectives presented in Chapter 4 represent the Agency’s
expectations of what will constitute an approvable State program. Federal
objectives have been identified for the following program elements: (1) new
UST system design, construction, installation and notification; (2) upgrading
of existing UST systems; (3) general operating requirements; (4) release
detection; (5) release reporting, investigation, and confirmation; (6)

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OSWER Directive 9650.8
14
corrective action; (7) out-of-service or closed UST systems; and (8) financial
responsibility. To satisfy the “no less stringent” requirements using this
approach, the State must have requirements for all UST systems that meet these
objectives.
EPA’s criteria for “adequate enforcement” of compliance require that a
State have in place adeq”3te legal authorities for inspection and co ’ :liance
monitoring, enforcement, and public participation, plus appropriate written
procedures for implementing those authorities. Chapter 4 provides guidance on
the enforcement authorities, and Chapter 5 contains guidance on these
enforcement procedures. EPA seeks to maintain its flexibility to approve a
variety of State programs, and to encourage States to use innovative as well
as traditional approaches in achieving compliance.
C. Application Process for Approval
EPA has two goals for the approval process: to make the application
process as simple and easy to understand as possible; and to develop a close
working relationship between EPA Regional offices and the States long before
official applications are received, so that all major problems can be resolved
ahead of time.
Federal regulations require that a State application contain the
following components:
(1) A letter from the Governor requesting approval of the State
program;
(2) A certification and statement from the State Attorney General (or
the attorney for those State or interstate agencies which have
independent legal counsel) demonstrating that the laws of the
State or compact achieve the “no less stringent” objectives of the

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OSWER Directive 9650.8
15
Federal UST program, and provide legal authorities for adequate
enforcement;
(3) A description of the compliance monitoring and enforcement
procedures that demonstrate the State’s basis for adequate
enforcement of compliance;
(4) A draft Memorandum of Agreement (MOA) that outlines the
responsibilities of EPA and the State’s implementing agency(ies)
(the MOA becomes final at the time the State’s program takes
effect);
(5) A program description that provides background information on the
State’s organization and resources for implementing its program;
(6) A schedule for developing additional authorities under interim
approval, if applicable; and
(7) Copies of all applicable State statutes and regulations, including
those governing State administrative procedures and compacts, if
relied upon.
Detailed guidance on each of these elements is included in the following
chapters. A suggested application form, that the State can tear out and fill
in, is provided in Appendix A of this handbook. If a State prefers to use a
different format, that choice will not hinder program approval.
Approval authority has been delegated to the Regional Administrators.
Headquarters will be involved in this process only on a limited, consultative
basis. First, Headquarters will assist with the initial applications to
ensure that the approval criteria work well and that the Regions apply these
criteria consistent with OUST philosophy and with each other. After this
initial period, Regions may choose to discuss approval issues with

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OSWER Directive 9650.8
16
Headquarters, but will be required to r only when a tentative
determination is made to disapprove a igram.
A great deal of informal contact should be occurring between the State
and EPA’s Regional offices well before the clock starts running on the 180-day
period set by statute for the review of, and decision on, a State’s
application for approval. As the State begins developing its application, the
State and the Region, working together, will identify as soon as possible any
legislative modifications that need to be made in order to satisfy the “no
less stringent” and “acequate enforcement” ..equirements in tI. regulations.
The State Attorney General or other legal representative may also be consulted
during these early statutory and regulatory reviews so that later conflicts
may be avoided. In addition, the Region will work closely with the State to
ensure the completeness of the various other components of the State’s draft
application (for example, the program description).
In general, the Region should relay comments back to the State as
quickly as possible. This process will alert the State very early to issues
that otherwise could cause a delay in the review and approval of the final
application. OUST considers these pre-application reviews to be invaluable
and stresses their importance because they will assure the State of being able
to develop an official program approval application with confidence and
timeliness.
Within two and one-half months following submission of the final
application, and following consultations between State and Regional staff, the
Regional Administrator will make a tentative determination of approval or
disapproval and notify the State Agency Director. This tentative
determination is then published in the Federal Resister to provide an
opportunity for public comment. A final determination on the State’s program

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OSWER Directive 9650.8
17
will be made by the Regional Administrator within 180 days of submission of
the State’s application. (These procedures are described in greater detail in
a companion document entitled Suggested Procedures for Review of State UST
Applications. )
After a State program is approved, it is codified for publication in the
Federal Regulations (CFR). EPA codifies the entire approved State UST
program (including more stringent but not broader in scope) to identify the
specific elements of the State program that a e RCRA Subtitle I requirements.
The codification of State programs also enables the public to discern the
current status of the approved State program. This will be of particular
importance as States adopt additional Federal requirements or revise their
approved UST programs.
After a State program is approved, the State may need to submit certain
program revisions to EPA for approval. Such a need may arise if: (1) Federal
authorities or requirements are changed by new legislation or rulemaking; (2)
State authorities or requirements are revised; or (3) local authorities or
requirements that are part of the approved State program change. EPA will
treat revised applications by reviewing those program areas specifically
affected by the change. The process will be streamlined; instead of
publishing a tentative determination in the Federal Register , EPA will publish
a proposed determination that may become final immediately after 60 days.
Additional discussion on the process of revising approved State programs may
be found in the preamble to the State Program Approval Rule (53 FR 37239).

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OSWER Directive 9650.8
18
cRAP’rEa 3. COMPONENTS OF THE STATE PROGRAX APPROVAL APPLICATION
A. Introduction
In order to qualify for program approval, a State must submit an
official application to its Regional office. This packet must contain various
components, including letters and certifications, descriptions of relevant
State regulations, descriptions of the program, a Memorandum of Agreement, and
actual copies of State statutes and regulations. This chapter briefly
describes each of these components, and in some cases, provides sample forms
that may aid States in developing their own applications. More detailed
discussions of the various sections of the program approval application appear
in separate chapters of this handbook.
B. Components of the Application
1. Governor’s Letter .
A letter from the Governor transmits the State’s application for
approval of its underground storage tank program and acts as a formal request
for EPA approval. The letter to EPA should include a reference to the Federal
statute, a request for approval of the State program, and the Governor’s
signature. The letter is a formal tool to designate the responsible lead
State agency.

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OSWER Directive 9650.8
19
Sainole Letter
Ms. Jane Jones
Regional Administrator
Region XI, U.S. Environmental Protection Agency
Street Address
City, State
Dear Ms. Jones:
In accordance with Section 9004 of Subtitle I of the Resource
Conservation and Recovery Act as amended on November 8, 1984, I am forwarding
an application for approval of the Underground Storage Tank Program of
( State ) . I believe you will find it contains the provisions necessary
to implement an effective Underground Storage Tank Program.
Should you require further information, please contact ( Director )
of ( Lead Agency ) . Thank you for your assistance.
Sincerely,
Jane Smith
Governor
2. Attorney General’s Certification and Statement .
States applying for program approval must submit an Attorney General’s
Statement that certifies that the statutes and regulations of the state
provide adequate authority to carry out the technical requirements in a “no
less stringent” manner and for “adequate enforcement” of these requirements.
All statutes and regulations cited by the Attorney General must be fully
effective by the time the program is approved. In addition, if the State has
any authority over Indian lands, or agreements with a tribe or tribes to do
so, this must be described here. The Attorney General’s Statement certifies
to State authorities only. The requirement that the State have the authority
to carry out the technical requirements and enforce those requirements does
not change if certain aspects of the State program are implemented by local
government agencies. The Attorney General’s Statement must be signed by the

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OSWER Directive 9650.8
20
State Attorney General or the attorney for those State or interstate agencies
that have independent legal counsel. This provision allows the following
persons to sign the Attorney’s General’s Statement: (1) the State Attorney
General or an attorney in his/her office who is authorized to sign for the
Attorney General; or, (2) a Deputy or Assistant Attorney General if authorized
to do so. Authorization should be in writing, case law, or statute. An
independent counsel for the State may submit the “no less stringent”
certification in place of the Attorney General, provided that the independent
counsel has full authority to represent independently the State agency in
court on all matters pertaining to the State program.
Where a State has incorporated by reference any Federal regulation, the
Attorney General should demonstrate the authority to adopt State regulations
in this manner. The Attorney General should cite the State statutes and
regulations, listing the comparable CFR cite and date of incorporation. If
the State’s incorporation is intended to include any EPA revisions that may
occur in the future, then the Attorney General should cite State authority
both to promulgate and to enforce regulations in this manner. The State
should note that the Attorney General’s Statement includes a certification
that State statutes and regulations shall be fully effective by the time the
program is approved.
Samile Attorney General’s Certification . Following is a suggested
format for the State Attorney General’s certification. The certification
consists of two parts: (1) the Attorney General’s letter of certification and
(2) the Attorney General’s Statement. A form letter that certifies to the
State’s complete authorities is provided below.

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OSWER Directive 9650.8
21
Samvle Letter
Ms. Jane Jones
Regional Administrator
Region X I, U.S. Environmental Protection Agency
Street Addiess
City, State, Zip code
Dear Ms. Jones:
I hereby certify pursuant to my authority as [ insert official title] and
in accordance with Section 9004 of the Solid Waste Disposal Act, as
amended by the Resource Conservation and Recovery Act and the Superfund
Amendments and Reauthorization Act of 1986, and 40 CFR Part 281 that in
my opinion the laws of the ( State ) provide adequate authority to (1)
carry out the “no less stringent” technical requirements submitted by the
( Lead A encv ) , (2) adequately enforce compliance with such program, and (3)
regulate, at a minimum, the same UST universe as the Federal program. I
hereby certify, to the best of my knowledge, that the application submitted by
( Date ) is legally accurate. The specific authorities provided are
contained in statutes or regulations lawfully adopted at the time this
Statement is signed and which will be effective by the time the program is
approved, [ or are provided by judicial decisions issued at the time this
Statement is signed].
Seal of Office
Signature
In addition, a sample form of the Attorney General’s Statement is
presented in Appendix A, following the Governor’s letter. The State may use
this sample format to cite and explain its authorities for each objective.
Please note that EPA personnel responsible for approving the State program
will not be familiar with all the State’s laws; therefore, the Attorney
General’s Statement should specify and analyze relevant State legal authority.
Clarity is necessary because: (1) the Attorney General’s Statement will be
subject to review and comment by the public through its inclusion in the
administrative record to the Federal State program approval process; (2) the
Attorney General’s Statement will comprise the administrative record upon
which could hinge interpretations for future lawsuits challenging the
implementing agency actions during an enforcement proceeding taken under the

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OSWER Directive 9650.8
22
State program; (3) the laws and regulations submitted in the application will
form the basis of the codified program. Finally, in the event that EPA would
take enforcement action in the State after the State program is approved, EPA
would rely on the Attorney General’s Statement for a basic understanding of
State law since EPA would be enforcing the State law in lieu of the Federal
law. The approved Stat’ program operates “in lieu of” the Federal prrgram
under Section 9004(d). Since EPA retains the right to enforce under Section
9006, it enforces the codified State regulations.
The purpose of these requests is not to “second guess” the State
Attorney General on matters of State law, but to assure that he has not
overlooked major legal issues in arriving at his opinion. Most importantly,
EPA must have a sound legal record for authorizing the State program. For
example, if the State Attorney General provides a general opinion that a State
statute allows the State to regulate all UST systems, but the statute appears
to exempt compressed oil tank systems, EPA would bring this issue to his
attention and ask him to address it. EPA would ask the State Attorney General
to reconcile the difference in coverage. Once he has specifically addressed
an issue requiring an interpretation of State law, however, EPA would defer to
his opinion where it is supported by a plausible argument.
EPA does not defer to a State Attorney General on matters of Federal
law, including the issue of whether a State program (as interpreted by th&
State Attorney General) meets applicable Federal regulations. In the example,
EPA attorneys would accept the conclusion that State law provides authority to
regulate compressed oil tank systems but would draw on their own conclusions
about whether the State authority is adequate to meet EPA requirements for
program approval.

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OSWER Directive 9650.8
23
3. Demonstr&tion of “Adequate Enforcement” Procedures .
To ensure that States have adequate enforcement, EPA requires that
States have certain compliance monitoring and enforcement procedures, in
addition to the legal authorities discussed above. These procedures are
necessary to ensure compliance with the technical and financial responsibility
requirements for underground storage tanks. The procedural requirements cover
the following program areas:
• Compliance Monitoring;
• Enforcement Response; and
• UST Inventory.
Chapter 5 provides a detailed discussion of these procedural requirements.
4. Memorandum of Agreement .
The appropriate official of the State’s lead agency must negotiate a
Memorandum of Agreement (MOA) with the Regional Administrator before the State
program is approved. The MOA describes the coordination and shared
responsibilities between the State and EPA in areas including, but not limited
to: implementation of partial State programs and other program scope issues;
compliance monitoring and enforcement; EPA appraisal of State programs; and
reporting of information. Chapter 6 provides a detailed discussion of the MOA
requirement and includes a sample agreement.
5. Program DescriDtion .
This section provides an overview of the State’s program for managing
underground storage tanks. Information requested includes the scope of the
State program, the organization and structure of the implementing agencies,
and staff resources for implementation. There is also a segment requesting
information on the State trust fund for corrective action and third-party
liability, if appropriate. This information will be used to inform the

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OSWER Directive 9650.8
24
general public about the approved State program and will serve as a baseline
for EPA to work with the State over the long term. The information in the
Program Description will only rarely be used to judge a State program for
approval or disapproval. Chapter 7 contains additional guidance on the
questions in the Program Description.
£.......Jpterim Approval Schedule .
Interim approval, while an available option, is not expected to be used
by States A State may be granted interim approval following promulgation of
the Fede:- ;l regulations if the State authorities are o less stringent in the
following program areas:
• New UST standards;
• Notification;
• Corrective action; and
• Financial responsibility.
States applying for interim approval may find it useful to complete the
worksheets that outline these four “no less stringent” program areas required
for interim approval. The remaining worksheets may be helpful to these States
in later fulfilling the remaining requirements for final approval.
Interim approval is a process Congress provided to allow greater
flexibility for the States. Although the State program is required to have no
less stringent requirements in the four areas listed above, they are required
only to have requirements in the remaining four areas (leak detection,
prevention recordkeeping, reporting, and closure); these requirements do not
need to be no less stringent for the State to receive interim approval and
thus to operate in lieu of the Federal program for a limited period of time.
Before final approval may be granted to a State that has received interim
approval, States are required to have program requirements that are “rio less

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OSWER Directive 9650.8
25
stringent” than all eight elements of the Federal program. The timeframe for
developing the authorities needed for final approval ranges from 1 to 3 years
depending on whether the State needs additional statutory or regulatory
authority, or both. The State must submit a schedule according to which the
State will finalize its legislation and regulations in these areas in
preparing for final approval of its entire lIST program.
Sample Schedule
Program Element Schedule
1. Release Prevention and Detection
A. Statutory Authority
- Revising of Legislation as necessary during XX, XX, XX
the grace period
- Submission to the legislature
- Consideration in the legislature
- Final passage into law
R. Regulatory Authority
- Revision of regulations XX, XX, XX
- Formal regulation approval procedures including
public notice and comment
- Effective date
C. Application for Approval
- Draft application XX, XX, XX
- Formal public notice and comment
- Submittal to EPA
7. State Statutes and Regulations .
Integral to the State program approval application are the copies of all
applicable State statutes and regulations which must be submitted by a State.
These include those statutes and regulation governing State administrative
procedures and interstate compacts, if relied upon. These documents should
also include any general statutes that are used by the State to establish UST

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OSWER Directive 9650.8
26
program authorities. This information will help EPA to establish a record of
the State laws and regulations regarding USTs in approved States. The Agency
will codify State programs by incorporating State laws and regulations by
reference as part of its final approval of the State piogram. If the Fedetal
government were ever to pursue an enforcement action within a particular
State, it would use that State’s own UST statutes and regulations to do so.
For that reason, the Federal government must be able to easily locate and
implement all State UST standards and requirements that would be effective in
that State for purposes of Federal enforcement. This section of the
application is self-contained, and may be attached to the rest of the packet.
This application requirement is not discussed elsewhere in this handbook.

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OS ER Directive 9650.8
27
p’ ’E 4. ATTORNEY GENERAL’ S STATEMENT: DEMONSTRATION OF “NO LESS
STRINGENT” OBJECTIVES AND “ADEQUATE ENFORCEMENT” AUTHORITIES
A. Introduction
Under Subtitle I, a State must demonstrate that its requirements and
standards for existing and new IJSTs are “no less stringent” than the Federal
requirements and standar. s in 40 CFR Part 280 and provide for adequat..
enforcement. The State’s demonstration that its authorities are “no less
stringent” and allow for adequate enforcement will be provided with the
Attorney General’s Statement. This chapter describes and explains the
criteria States must meet in order to be “no less stringent” in the technical
program areas and how the State Attorney General will certify their legal
authority. Chapter 5 provides an explanation of the adequate enforcement
procedures.
B. Objectives of the Federal Technical Requirements
Since an introduction to the purpose and requirements for the Attorney
General’s Statement is provided in the preamble to the State Program Approval
Rule, it is not repeated here. If you are not familiar with this material, we
recommend that you read it now before proceeding.
This section is organized by objective. For each objective, there is a
worksheet, notes on fulfilling the objective, and some examples of State
requirements that do or do not meet the objective. The worksheet is organized
so that citations can be written in where the State has a requirement that
corresponds to each subsection of the objective. The State should cite all
relevant statutes and regulations, if more than one is applicable. The
worksheets are intended to be used by both the State and the EPA Regional
Office, but only the Regional EPA Office can make the judgment of whether the

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OSWER Directive 9650.8
28
State’s reqdirecient is no less stringent than the Federal objective. The
State is strongly encouraged to provide additional explanation on the back of
the worksheets or on extra pages to describe how their regulations meet the
objective in cases when the State’s regulations are organized differently from
the Federal approach. The State should also consider attaching relevant
policies and pr’ cedures that may influence the interpretati rt of statutes or
regulations. The notes on fulfilling the objective provide some key data for
interpreting the objective and the last note for each objective references the
page in the September 23, 1988 Federal Rezister where further information may
be found. Finally, Appendix E includes a section called Tools for
Implementing State Regulations, which describes certain approaches that
several States have used to implement their laws and that other States might
wish to consider in developing or improving their own programs.
Please note that great effort was expended to make these examples as
“true to life” as possible. Readers are asked to remember that these examples
are simply a means by which EPA can more clearly demonstrate how the States
should examine their technical requirements in terms of the Federal
objectives. Thus, States should not take the evaluations provided in the
examples as the last word on State program approval for that given program
element. Please remember that these examples also serve as samples of the
type of thinking and documentation that should be included in the explanation
sections that follow the regulatory citations in the Attorney General’s
Statement. EPA is concerned that some readers will infer from these examples
that if their State regulations are not identical to the example given that
their State program is not approvable. Such an inference would be mistaken.
Ey providing these examples, EPA is suggesting simply one interpretation out
of many possibilities. Regional EPA Offices will be making the actual

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OSWER Directive 9650.8
29
decisions as to what is “no less stringent” when reviewing the State program
application. If a State has specific questions on whether their regulations
meet the objectives, they should ask the Regional EPA Office for assistance
and advice.
As an alternative to developing new, or revising existing, State UST
regulations, States may choose to adopt or incorporate by reference the
Federal Technical Standards. Obviously those States that do so can be
considered no less stringent. The Federal Technical Standards are written
with the intention that some States will choose to adopt them. Therefore,
some language was added to several sections to allow the State some
flexibility to substitute their own procedural and administrative requirements
for those set forth in the Federal requirements. A discussion of this
additional decision-making authority for State agencies can be found in the
preamble to the Federal Technical Standards (53 FR 37186). It is EPA’s intent
to allow States a significant amount of discretion in this matter, as long as
States can demonstrate that overall program performance in each element will
not be adversely affected by their use of differing administrative practices
and procedures. An example of the flexible language is §280.50 under Release
Reporting, Investigation, and Confirmation: “Owners and operators of UST
systems must report to the implementing agency within 24 hours, or another
reasonable time period specified by the implementing agency.. .“ The State
should be aware that when adopting or copying this language, if the State does
not specify another time period in the requirement, then the Federally-
specified time period (the 24-hour time period in the example) is
automatically in effect. An alternative time period must be specified in the
State requirement in place of the Federally-specified time period in order for
the State to exercise the decision-making flexibility allowed in the Federal
Rule.

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30
NEW UST SYSTEMS AND NOTIFICATION
OBJECTIVE § 281.30
The State must have requirements that Cite
ensure that all new lIST systems conform Regulation Statute
with the following:
(a) Be designed, constructed, and installed in
a manner that will prevent releases for their
operating life due to manufacturing defects,
structural failure, or corrosion. [ Note:
Codes of practice developed by nationally-
recognized organizations may be used to
demonstrate that the State program
requirements are no less stringent in this
area.]
(b) Be provided with equipment to prevent spills
and tank overf ills when new tanks are in-
stalled or existing tanks are upgraded,
unless the tank does not receive more than
25 gallons at one time.
(c) All UST system owners and operators must
notify the implementing State agency of
the existence of any new UST system using
a form designated by the State agency.
NOTES ON FULFILLING THE OBJECTIVE
1. Codes of practice developed by nationally-recognized organizations
and national independent testing laboratories may be used to
demonstrate that the State program requirements are no less
stringent in the area of design, construction, installation, and
corrosion protection.
2. Currently available equipment to provide spill and tank overfill
protection includes small catchment basins for spills, alarms,
automatic flow restrictors, or shut off devices for overfill
prevention.
3. Under RCRA 9002, notification was required for existing UST
systems nationwide. State programs that only require owners and
operators of new UST systems to notify the State agency may be
approved because notification by owners of existing USTs was
already required after Subtitle I was enacted.

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OSWER Directive 9650.8
31
NEW UST SYSTEMS AND NOTIFICATION
(CONTINUED)
OBJECTIVE § 281.30
4. The Federal notification form has been revised to require updated
notifications from ow’ers and operators of new TJSTs; however,
States may use their discretion as to whether or not they collect
this information.
5. More discussion on new UST systems may be found in the preamble to
the final State Program Approval Rule (53 FR 37224) and in the
preamble to the final Federal Technical Standards Rule (53 FR
37125).
***

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OSWER Directive 9650.8
32
State ExamDles for New UST System Design. Construction. Installation, and
Not i ficat ion
Standards for Design and Installation . The following requirements of
State A demonstrate one way to fulfill the design criteria of subsection (a)
of this objective. In general, State A requires the use of national standards
for the design, construction, and installation of all UST systems. For
example, the State requires that tanks be built according to the following
recognized engineering standards: UL 58 and API 650 for steel tanks, and UL
1316-83 and ASTM D402l-81 for fiberglass tanks. Steel tanks must be coated
with a non-corrosive, impermeable material other than asphalt paint and be
equipped with sacrificial anode or impressed current cathodic protection.
Cathodic protection must be designed and installed using one or a combination
of these 4 standards: API 1632, UL of Canada SGO3.lM, STI-P3, or NACE RP-02-
85. Both sacrificial anode and impressed current systems must be designed
with test stations so that routine operation checks can be performed. Because
EPA believes that the design, construction, and installation of a new UST
system according to any code of practice of a nationally-recognized
organization or testing laboratory will prevent releases during the operating
life of an UST, these State requirements fulfill the proper tank design
criteria of subsection (a) of this objective. State A could have met the
criteria in subse tion (a) by adopting just one of these codes of practices.
Some aspects of the State’s standards, while showing excellent forethought,
are not necessary to meet the objective, such as the requFrement that anode
and current systems must be designed so routine checks can be performed.
This State’s requirements also demonstrate one way to fulfill the proper
tank installation criteria of subsection (a). The State mandates that
installers follow practices outlined in PEt RP 100-86, API 1615, and the

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OSWER Directive 9650.8
33
manufacturer’s instructions that come with the tank. All fittings must be
wrapped or coated using a manufacturer-approved method. The State also
requires that defects in the tank’s coating that occur during shipping must be
repaired according to the manufacturer’s instructions. The State lists the
specifications for backfilling the UST system, which are derived from NFPA 30;
additional requir ments are specified by the State for anchor 4 ng USTs that are
in areas with high water tables. Again not all of these requirements may be
necessary to achieve subsection (a) of this objective.
Because piping is part of the UST system, the State’s requirements for
the design, construction, and installation of piping must also meet subsection
(a) of this objective. State A demonstrates one way of meeting the objective,
again by specifying the codes to be used for designing and installing new
underground piping. All new underground pipes in this State must be made of
fiberglass reinforced plastic or cathodically protected, coated, iron or steel
and must be designed using one of the recognized standards such as NACE RP-02-
85, UL, and API 1632. The use of galvanized piping for product lines is
prohibited. State regulations specify how the piping must be installed in
terms of backfill thickness, product line slope, and the strength of unions
and fittings (250 pounds or 300 pounds with metal seats). On UST systems
using sacrificial anodes where electrical isolation is essential for adequate
corrosion protection, the State requires all underground piping to be isolated
from the tanks and dispensing units by means of non-donductive bushings and
fittings, which are to be designed and installed in accordance with NACE
RP-0285, API 1632, or Sti-P3. In addition, vent and fill lines must be coated
but need not be cathodically protected. As part of the installation, all
product piping must be tested for tightness. These State requirements for the
design and installation of piping in combination with corresponding State

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OSWER Directive 9650.8
34
requirements for tanks demonstrate one way that a State could fulfill
subsection (a) of this objective.
Spill and Overfill Protection . State B al1ow two options for spill
and overfill protection. The first option consists of an in-tank product
level sensor that is equipped with an audible or visual alarm and is triggered
when the tank is 95 percent full, and a spill catchment basin of at least 15
gallon capacity. The second option consists of a device designed to restrict
the flow of the regulated substance into the tank when the tank is 95 percent
full, and a spill catchment basin of at least 5 gallon capacity. The State’s
explanation for the difference in the capacity of the spill catchment basin is
that the sensor only triggers an alarm in the first option as opposed to a
flow restrictor in the second option. [ . PA notes that the flow restriccor,
unless it is an automatic shut-off device, does not actually shut off inflow
completely, which means that both options require the operator to quickly shut
off the hose used to fill the tank.] Although EPA believes the distinction
the State makes between alarms and restrictors is somewhat artificial (because
both approaches similarly rely on rapid action by the person filling the tank
to avoid overfilling when the filling operation approaches the tank’s
capacity), the above State B requirements demonstrate one way to fulfill
subsection (b) of this objective.
Although the Federal Technical Standards require that flow restrictors
or alarms be triggered when the tank is 90 percent full. State B’s
requirements, however, can still be considered no less stringent. They still
accomplish the Agency’.s main goal: getting equipment and devices to prevent
spills and overfills on all new and upgraded liSTs.

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OSWER Directive 9650.8
35
UPGRADING EXISTING UST SYSTEMS
OBJECTIVE § 281.31
The State must have requirements that ensure Cite
existing UST systems viii be replaced or Regulation Statute
upgraded before December 22, 1998, to prevent
releases for their operating life due to
corrosion, and spills or overf ills.
NOTES ON FULFILLING THE OBJECTIVE
1. Within 10 years all existing UST systems must meet essentially the
same standards of release prevention as new UST systems, which
includes corrosion protection and spill and overfill equipment.
2. The 10-year schedule cannot include phase-in of leak detection
requirements, which must be completed within 5 years (see
Objective 281.33(b) on Release Detection).
3. The State may develop a phase-in schedule that will bring all
existing USTs into compliance incrementally during the 10-year
period or the State may establish a deadline without specifying a
schedule.
4. Commonly accepted practices for protecting a structurally sound
existing steel tank from failure due to corrosion consist of
internal lining, retrofitting with a cathodic protection system,
or both. EPA believes all of these methods are protective of
human health and environment.
5. The proposed objective for upgrading existing UST systems included
a provision that allowed States to demonstrate in their
application how other State requirements will achieve this Federal
goal without an explicit 10-year deadline. This provision
been deleted in the final State Program Approval Rule. EPA was
concerned that the provision in the proposed objective would lead
States to believe that a time period greater than 10 years for
upgrading was allowable. In addition, it was unclear what
information would provide an adequate demonstration. Therefore,
States must .require existing UST systems to be replaced or
upgraded before December 22, 1998.
6. More discussion on upgrading existing UST systems may be found in
the preamble to the final State Program Approval Rule (53 FR
37225) and in the preamble to the final Federal Technical
Standards (53 FR 37130).
***

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OSWER Directive 9650.8
36
State Exanrnles for Upgrading Existing UST Systems
Defi.ning When a Tank Needs To Be UDgraded . The following example shows
State requirements that do not meet the Federal objective for upgrading
existing UST systems. State C requires owners and operators to explicitly
determine how long each tank will last without developing a leak. This
regulatorily-defined lifetime is considered to be the tank’s life expectancy.
When the end of the life expectancy is reached, the UST system must be
replaced, upgraded, or closed, whether or not a leak has occurred. Life
expectancy of the lIST system is calculated using the tank’s age, the tank
manufacturers guarantee, and the type of corrosion protection in use on the
tank. If the tank’s age is unknown, the calculation is more complicated and
requires the assistance of a corrosion expert. Once the life expectancy of
the tank is defined, the tank will fall into one of two groups as defined by
the State. If the life expectancy ends after November 1, 1988, the UST system
may be used for up to five years beyond the calculated life expectancy. If
the life expectancy ends before November 1, 1988, the UST system may be used
until November 1, 1988 or up to five years beyond the calculated life
expectancy, whichever is later.
Under the State’s current approach, State C’s requirements cannot be
approved as no less stringent for two reasons. First, to properly upgrade an
UST system under this objective, spill and overfill equipment must be added.
State C does not require that existing USTs be retrofitted with this
equipment. Second, under this objective. J. unprotected lISTs in the State
must be upgraded by 1998. While the State requirements for USTs with life
expectancies that end before November 1, 1988, will fulfill the objective, the
State’s requirements will allow some USTs with life expectancies that end
after that date to be upgraded sometime after 1998. Hypothetically, if a

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OSWER Directive 9650.8
37
tank without corrosion protection was installed in April 1985 (before interim
prohibition) and the life expectancy was determined to be 10 years (April
1995), the tank may be operated until April 2000 before it is upgraded,
replaced or closed, according to State law. State C could meet the objective
by revising their requirement so that all USTs must be brought into compliance
by the time their life exr ectancy is reached or by December 22, 1998,
whichever is earlier; and by requiring the addition of overfill and spill
protection equipment on upgraded USTs.
Defining What Upgrade Consists Of . State E takes another approach to
this objective by requiring scheduled closure of UST systems that are not
corrosion resistant. The State prohibits the use and operation of all non-
conforming UST systems (all bare steel tanks, asphalt coated steel tanks and
other unprotected steel tanks and piping) after October 1, 1997. Replacement
USTs are subject to the new UST system standards, and existing USTs cannot be
upgraded. Thus, all non-conforming tanks and piping must be closed within the
remaining 9 years of the State’s mandatory closure period according to a
phase-in schedule based on UST system age and location. If the tank’s age is
unknown, it is presumed to be 20 years old on October 1, 1989. The State
requirements cannot be considered no less stringent because existing
corrosion-protected USTs without spill and overfill equipment are not required
to be retrofitted with that equipment.
State D fulfills the Federal upgrading objective of §281.31 by requiring
both corrosion protection and overfill and spill protection systems to be
present on existing UST systems by 1998. [ State D, however, also considers
the addition of leak detection equipment to be part of ar UST system upgrade.
In other words, release detection is also phased-in over a 10-year period, and
therefore, the State program does not meet the release detection objective

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OSWER Directive 9650.8
38
found at §281.33 (see examples pertaining to the release detection
objective). }

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OSWER Directive 9650.8
39
GENERAL OPERATING REQUIREMENTS
OBJECTIVE § 281.32
The State must have requirements that ensure Cite
all new and existing UST systems conform to Regulation Statute
the following:
(a) Prevent spills and overf ills by ensuring th .
the space in the tank is sufficient to receive
the volume to be transferred and that the
transfer operation is monitored constantly;
(b) Where equipped with cathodic protection, be
operated and maintained by a person with
sufficient training and experience in prevent-
ing corrosion, and in a manner that ensures
that no releases occur during the operating
life of the UST system [ Note: Codes of
practice developed by nationally-recognized
organizations and national independent
testing laboratories may be used to
demonstrate the State program requirements
are no less stringent.];
(c) Be made of or lined with materials that are
compatible with the substance stored;
(d) At the time of upgrade or repair, be
structurally sound and upgraded or repaired
in a manner that will prevent releases due
to structural failure or corrosion during
their operating lives;
(e) ilave records of monitoring, testing, repairs,
and closure maintained that are sufficient
to de nstrate recent facility compliance
status, except that records demonstrating
compliance with repair and upgrading require-
ments must be maintained for the remaining
operating life of the facility. These
records must be made readily available when
requested by the Implementing agency.

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OSWER Directive 9650.8
40
GENERAL OPERATING REQUIREMENTS
(CONTINUED)
OBJECTIVE § 281.32
NOTES ON FULFILLING THE OBJECTIVE
1. Codes of practice developed by nationally recognized organizations
and national independent testing laboratories may be used to
demonstrate that the State requirements are no less stringent in
the areas of: repairing and relining tanks; operation and
maintenance of corrosion protection; and compatibili€y.
2. Under the Federal Technical Standards, cathodic protection systems
must be tested within 6 months of installation and every 3 years
there,after; and impressed current systems must be inspected every
60 days to ensure that the equipment is turned on. Each State
- must require that cathodic protection systems be periodically
tested and that such tests include the checking of impressed
current systems.
3. Compatibility is an issue for concern primarily when high-
ethanol/methanol content fuels are stored in certain fiberglass
tanks.
4. National codes of practices and warranties from tank lining
companies generally require that internal inspections be conducted
with 10 years after lining, and every 5 years after that.
5. A national code for the repair of fiberglass reinforced plastic
tanks is currently being developed. Until there is a national
code that is accepted by industry, the only people who know how to
repair FRP tanks are usually authorized representatives of tank
manufacturers. These repairs are generally done under warranty.
More discussion on the repair of FRP tanks may be found beginning
at the bottom of the third column on page 53 FR 37139.
6. More discussion on upgrading existing UST systems may be found in
the preamble to the final State Program Approval Rule (53 FR
37225) and in the preamble to the final Federal Technical
Standards (53 FR 37130).
***

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OSWER Directive 9650.8
41
State Exam 1es for General ODerating Requirements
Defining Product Transfer Practic6s . State F meets the first subsection
of this objective because it requires that API-recommended practices
concerning product deliveries to underground storage tanks be followed at all
UST systems in the State. A different approach, which also fulfills this part
of the objective, is used in State C. The State’s regulations hold both the
carrier (or transporter) and the operator responsible for employing practices
to prevent spills and overfills. The carrier and the operator must be trained
in the mechanics of proper transfer and emergency response procedures. Before
transfer, the operator must determine that the tank has enough receiving
capacity to accommodate the volume of petroleum to be transferred. During the
transfer, the carrier must be at the controls to monitor the delivery
operation.
Maintaining Corrosion Protection . State H’s requirements demonstrate
one way to satisfy subsection (b) of this objective concerning the operation
and maintenance of corrosion protection by qualified people. The State
requires that IJST systems protected by galvanic cathodic protection systems
(also known as sacrificial anodes) have an accurate structure-to-soil
potential reading performed by a qualified person upon installation and
annually thereafter. In addition, when underground work is performed at the
site, the State requires the cathodic protection system to be monitored 6 to
12 weeks after the work has been completed to ensure that the system is still
functioning properly. liST systems protected by impressed current systems are
required by State regulations to have their rectifier meter inspected monthly
and the readings recorded in a log book; and a perso— who is qualified (by
training and experience) to measure the structure-to-soil and structure-to-
structure potentials, the rectifier voltage, and current output must conduct

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OSWER Directive 9650.8
42
an onsite test and inspection at least once a year. Finally, State H provides
a list of procedures detailing how the cathodic protection system must be
monitored, which includes following practices recommended by the National
Association of Corrosion Engineers (Recommended Practice 0285).
Ensuring Proper Repairs and Upgrades . State I’s regulations provide an
example of requirements hat satisfies subsection (d) of this objecr ’ie, which
concerns the repair and upgrade of UST systems. The State mandates that a
determination must be made by fire department officials on whether the tank or
its components may be repaired must be removed and replaced. The only form
of repair allowed by the State is lining the tank. Before a steel tank can be
repaired by lining, the tank must be physically inspected and a local fire
department official must determine whether the tank meets all of the following
conditions:
• Has not experienced a leak as a result of corrosion;
• Possesses a minimum design shell thickness of 0.18
inch (7 gauge);
• Has no open seam or split;
• Contains less than 10 holes after removal of thin
metal by reaming, with none larger than 1/2 inch in
diameter and no more than 2 holes within a 1-foot
radius; and
• Satisfies all standards of the lining manufacturer for
structural soundness.
These requirements are no less stringent in the area of determining structural
integrity before lining a tank. The State also requires that any tank
replacement or repair as well as piping repairs must be performed: (1) by a
State-approved tank lining company and in accordance with API 1631 (if the
repair consists of tank lining), (2) by qualified technicians, and (3) in
accordance with manufacturers’ instructions. If a leaking tank is repaired,

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OSWER Directive 9650.8
43
the State requires that it be tank tightness tested at 2-year intervals for 10
years and annually thereafter.
EPA would recommend that the State consider a requirement specifying the
design life of a lined tank. Unless a cathodic protection system is applied
when the tank is lined or within 10 years, the tank must be internally
inspected perio Lcally after the initial 10 year life of th€ lining to make
sur that tank’s structural integrity will continue for the remainder of its
op& .cing life. Tank lining company warranties and the codes neral1y
req .ire that internal inspections be conducted after 10 years, rid then every
five years thereafter, because the tank relining is expected to prevent
releases only for the first 10 years.
Defining Adequate Recordkeeping . State J has developed recordkeeping
requirements that satisfy subsection (e) of this Federal objective. The State
mandates the on-site maintenance of written records of all monitoring
activities for at least 3 years from when the monitoring was performed. In
addition, the State requirements enable local implementing agencies to mandate
the owner or operator to provide the local agency with monitoring cords or a
monitoring summary on a routine basis. Monitoring records must inclu de:
• Date and time of all monitoring and sampling;
• Monitoring equipment calibration and maintenance
records;
• Results of any visual observations;
• Results of all sample analysis performed in the
laboratory or in the field, including laboratory data
sheets;
• Logs of all readings of gauges or other monitoring
equipment, ground-water elevations, or other test
results; and
• Results of inventory readings and reconciliations.

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OSWER Directive 9650.8
44
Another recordkeeping provision in this State program requires that UST
system permits be renewed every five years. To get a permit renewed, an UST
inspection must have been performed within the 3 previous years, and the UST
system must have been found to be in compliance with applicable regulations
for design, construction, and monitoring. Thus, the UST must be upgraded and
have rprords that show the upgrade has taken place h fore the permit can be
renewed. In this way, the State is aware of and can, if it chooses, maintain
its own records relating to UST system repair, upgrade, and replacement. For
UST closure by removal, State J requires the owner or operator to completely
describe all disposal and recycling procedures used for all UST system
components. When an UST system is closed, the owner or operator must
demonstrate to the satisfaction of the State that no release has occurred.
These State requirements clearly fulfill subsection (e) of this objective.

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OSWER Directive 9650.8
45
RELEASE DETECTION
OBJECTIVE § 281.33
(a) Release detection requirements for Cite
owners and operators must consist of Regulation Statute
a method, or combination of methods,
that is:
(1) capable of detecting a release
of the regulated substance from
any portion of the UST system
that routinely, contains regulated
substances - - as effectively as
any of the methods allowed under
the Federal Technical Standards
- - for as long as the TJST system
is in operation. In comparing
methods, the implementing agency
shall consider the size of release
that the method can detect and
the speed and reliability with
which the release can be detected.
(2) designed, installed, calibrated,
operated and maintained so that
releases will be detected in
accordance with the capabilities
of the method;
(b) Release detection requirements must, at
a minimum, be scheduled to be applied
at all UST systems:
(1) immediately when a new UST system
is Installed:
(2) on an orderly schedule that completes
a phase-in of release detection at
all existing UST systems (or their
closure) before December 22, 1993,
except that release detection for
the piping attached to any existing
UST that conveys a regulated
substance under greater than
atmospheric pressure must be
phased-in before December 22, 1990.

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OSWER Directive 9650.8
46
RELEASE DETECTION
(CONTINUED)
OBJECTIVE § 281.33
(c) All petroleum tanks must be sampled, tested, Cite
or checked for releases at least monthly, Regulation Statute
except that:
(1) new or upgraded tanks (that is,
tanks and piping protected from
releases due to corrosion and
equipped with both spill and overfill
prevention devices) may temporarily use
monthly inventory control (or its
equivalent) in combination with
tightness testing (or its equivalent)
conducted every 5 years for the first
10 years after the tank is installed
or upgraded, or until December 22,
1998, whichever is later; and
(2) existing tanks unprotected from releases
due to corrosion or without spill and
overfill prevention devices may use
monthly inventory control (or its
equivalent) in combination with annual
tightness testing (or its equivalent)
until December 22, 1998.
(d) All underground piping attached to the
tank that routinely conveys petroleum
must conform to the following:
(1) if the petroleum is conveyed under greater
than atmospheric pressure:
(I) the piping must be equipped with
release detection that detects a
release within an hour by
restricting or shutting off flow
or sounding an alarm; and
(ii) the piping must have monthly
monitoring applied or annual
tightness tests conducted.
(2) if suction lines are used:
(I) tightness tests must be conducted
at least once every 3 years. unless
a monthly method of detection is
applied to this piping; or

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OSWER Directive 9650.8
47
RELEASE DETECTION
(CONTINUED)
OBJECTIVE § 281.33
Cite
Regulation Statute
(ii) the p ’ing is designed to allow
the contents of the pipe to drain
back into the storage tank if the
suction is released and is also
designed to allow an inspector to
immediately determine the integrity
of the piping system.
(e) All UST systems storing hazardous substances
must meet the following:
(1) all, existing hazardous substance UST
systems must comply with all the
requirements for petroleum UST systems
in sections 281.33(c) and (d) above, and
after December 22. 1998, they must comply
with the following subsection (e)(2).
(2) all new hazardous substance UST systems
must use interstitial monitoring within
secondary containment of the tanks and
the attached underground piping that
conveys the regulated substance stored
in the tank, unless the owner and operator
can demonstrate to the State (or the
State otherwise determines) that another
method will detect a release of the
regulated substance as effectively as
other methods allowed under the State
program for petroleum UST systems and
that effective corrective action
technology is available for the
hazardous substance being stored that
can be used to protect human health
and the environment.
NOTES ON FULFILLING THE OBJECTIVE
1. In comparing methods of release detection, the implementing agency
must consider the size of release that the method can detect and
the speed and reliability with which the release can be detected.

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OSWER Directive 9650.8
48
RELEASE DETECTION
(CONTINUED)
OBJECTIVE § 281.33
2. The Federal Technical Standards allow six specific methods of
release detection. These are: in-tank monitors or tank gauging,
interstitial monitoring within a secondary barrier, ground-water
moniioring, vapor monitoring, and periodic tank tightness tests
combined with monthly inventory control. The Federal Technical
Standards also allow any method that achieves a release detection
rate of 0.2 gallons per hour (280.43(h)(ii)). Finally, in a
manner similar to the release detection objective in paragraph
(a)(l), the Federal Technical Standards allow the use of a release
detection method that the owner or operator demonstrates is as
effective as any of the listed methods
4. State requirements for release detection on piping do not have to
address release detection for fill pipes and vent pipes to be
considered no less stringent, as release detection is required
only for piping that routinely conveys petroleum.
5. Discussion on European-style design of a suction piping system may
be found in the preamble to the proposed Federal Technical
Standards (52 FR 12744), in the preamble to the final Federal
Technical Standards (53 Fr 37154), and the preamble to the final
State Program Approval Rule (53 FR 37227).
6. Discussion on release detection methods may be found in the
preamble to the final Federal Technical Standards (53 FR 37145).
***

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OSWER Directive 9650.8
9
State Examples for Release Detection
Defining the General Methods . State K’s regulations may fulfill
subsection (a) of the release detection objective. Release detection has
already been mandated for all UST sites in this State. State K has allowed
owners and operators of existing UST systems containing petroleum to choose
from amnng eight release detection alternatives (one is a three-year interim
alternative):
• Monthly tank tightness testing;
• Daily/continuous vadose monitoring, semi-annual
ground-water monitoring, and one-time soil testing;
• Weekly static inventory control and annual tank
testing (which is limited to small tanks that do not
have frequent inputs or withdrawals and where the
liquid level in the tank can be measured to the
accuracy of ÷ or - 5 gallons); and
• Daily inventory reconciliation or daily or weekly
gauging, and annual tank testing (three-year interim
alternative).
• Daily inventory reconciliation, continuous pipeline
release detection attached to either audible/visual
alarm or automatic flow restrictor, and annual tank
testing; or
• Same as above with less stringent accuracy limits and
the addition of variable frequency vadose and ground-
water monitoring that must be performed at least semi-
annually.
As illustrated above, most of the methods involve a primary release detection
system combined with at least one backup system, except that no backups are
required for monthly tank tightness testing and monthly ground-water
monitoring. To determine whether each alternative is acceptable it is
necessary to decide if it can detect “ a release. . . as effectively as any
method allowed under the Federal Technical Standards ( 280.40) . . .“ State K’s
first alternative, monthly tank testing, would be acceptable as long as
tightness tests were required, at a minimum, to reliably detect a 0.2 gallon

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OSWER Directive 9650.8
50
per hour release. This determination is based on the standard for “other
methods” in §280.43(h). The second alternative is also acceptable as long as
the vadose monitoring meets the standards for vapor monitoring described in
§280.43(e). The third method would be acceptable for tanks under 2000 gallons
until 1998 and for tanks under 550 gallons after 1998 as long as the static
inventory control and tank testing methods were as effective as those
described in §280.43(b) and (c) respectively. The fourth method is acceptable
except that the weekly gauging alternative may only be applied to tanks under
2000 gallons. Once again, this assumes the methods described are as effective
as the corresponding ones in the Federal standards. The fifth method will be
good enough until 1998, but will not fulfill subsection (c) of this objective
after 1998. The sixth alternative would also be acceptable until 1998. After
1998, the method would be acceptable only if the vadose or groundwater
monitoring were performed at least monthly and that these methods were as
effective as those in the Federal Standards. Any of the last five
alternatives could also be approved if State K could demonstrate that the
combination of methods met the performance standard for other methods in
§280.43(h). In addition, most of these methods do not appear strict enough on
piping to meet the objectiye.
Defining the Phase-In Schedule . State K’s program requires that release
detection systems be in place at all new and existing UST systems by July 1,
1985. Thus, the State program has already completed phase-in of release
detection and is an example of one way to satisfy subsection (b) of this
objective.
While State L’s regulations show another approach to this objective,
their regulations cannot be considered no less stringent. The State requires
that release detection be phased-in at existing lIST systems based on the
following schedule:

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OSWER Directive 9650.8
51
• USTs with no corrosion control need to have release
detection applied by September 1990;
• USTs with corrosion control need to have release
detection applied by September 1991; and
• Federally-regulated agricultural USTs rm .lst have
release detection applied by 1998.
(By the term, “Federally-regulated agricultural USTs”, the State is referring
to those farm tanks not exempted from the final EPA technical standards; that
is, farms tanks with a capacity of more than 1,100 gallons used for storing
motor fuel for commercial purposes.) These State criteria for phasing-in
release detection are based on the presence of corrosion protection and on the
type of UST owner (agricultural vs. non agricultural), whereas EPA’s phase-in
criteria are based on the age of the UST system. State L generally has an
earlier phase-in deadline for release detection than that found in the
objective, with the exception of the phase-in for “agricultural USTs”. State
L’s phase-in for release detection will be completed for most USTs by
September 1991, and for “agricultural USTs” by 1998. To meet the objective,
however, release detection thust be phased in at all existing UST systems by
1993. Because one segment of the tank universe (Federally-regulated
agricultural tanks) will not have release detection until 1998, the State
cannot be considered no less stringent for this category of USTs, although it
is no less stringent for the other USTs discussed.
Defining Release Detection for Pining . State K’s regulations provide an
example of requirements for piping that do not achieve subsection (d) of this
objective. Owners and operators are required by the State to:
• Monitor all pressurized piping with an automatic on-
line pressure loss detector and flow restriction
device; the detector must be connected to an
audible/visual alarm system unless it provides for at
least a 50 percent reduction from the normal flow
rates; and

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OSWER Directive 9650.8
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Monitor suction lines daily for indications of
possible leaks.
These State requirements meet the first part of subsection (d), which
addresses the problem of identifying major piping failures within an hour.
These State requirements do not go far enough, however, because under the
objective, pressurized pioing must also have monthly monitoring or annual
tightness tests performed to check for very small slow releases. The State’s
requirement for suction piping may or may not be sufficient to meet the
objective and further clarification from the State probably would be needed
for the EPA Regional Office to make a decision. If by “monitoring suction
lines daily” the State means that the owner or operator must do a visual
inspection every day, this requirement would not replace the need to do a
pressurized line test every three years. However, if the State can produce
evidence that the State’s method is as reliable as monthly leak detection,
then it probably would be acceptable as no less stringent. Alternatively, the
State could demonstrate that the State’s design standards for suction piping
only allow the use of European style piping in which the contents of the pipe
drain back into the storage tank if the suction is released and the check
valve on the piping system can be inspected. In this case, the State’s
requirements for suction piping could be considered no less stringent than
subsection (d) of this objective.
Defining Release Detection for Hazardous USTs . State K’s requirements
demonstrate one way to address subsection (e) of this objective, but they do
not fulfill the objective. The State requires that all new (petroleum and
hazardous substance) USTs have secondary containment and interstitial
monitoring. However, State K does not require existing hazardous substance
USTs to be upgraded with secondary containment and interstitial monitoring.

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To fulfill subsection (e) of this objective, State K will need to require that
within 10 years all’ existing hazardous substance USTs use interstitial
monitoring within secondary containment of tanks and attached underground
piping, unless the State chooses to allow variances. The State may allow
variances only if the owner and operator demonstrates to the State (or the
State otherwise 1etermines) that (1) another method will dete t a release of
the regulated substance as effectively as other methods allowed under the
state program for petroleum UST systems, and (2) effective corrective action
technology is available for the hazardous substance being stored that can be
used to protect human health and the environment.

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OSWER Directive 9650.8
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RELEASE REPORTING, INVESTIGATION AND
CONFIRMATION
OBJECTIVE § 281.34
All owners and operators must conform with Cite
the following: Regulation Statute
(a) Promptly investigate all suspected releases,
including:
(1) when unusual operating conditions,
release detect ion signals and environ-
mental conditions at the site suggest
a release of regulated substances may
have occurred; and
(2) when required by the implementing agency
to determine the source of a release
having an impact in the surrounding
area; and
(b) Promptly report all confirmed underground
releases and any spills and overfills
that are not contained and cleaned up.
(c) Ensure that all owners and operators contain
and clean up unreported spills and overf ills
in a manner that will protect human health-
and the environment.
NOTES ON FULFILLING THE OBJECTIVES
1. State requirements will need to establish how and when a suspected
release is determined to be a confirmed release and corrective
action must begin. It is important that State requirements for
release investigation be clear on this point. Ambiguity on how a
suspected release must be investigated and when it is confirmed
may result in delays on t he part of the owner and operator in
initiating clean-up actions.
2. The Federal objective requires “prompt” investigation because EPA
believes the precise definition of what constitutes a prompt
investigation should be left to the discretion of the States
within reason. The ability to investigate a site can depend on the
site and on the availability of the existing service community.
However, if a State program allows owners and operators to carry
out the same or similar investigations as required by EPA

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OSWER Directive 9650.8
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RELEASE REPORTING, INVESTIGATION AND
CONFIRMATION
(CONTINUED)
OBJECTIVE § 281.34
significantly beyond 7 days, that State program is not likely to
meet the objective.
3. A State with reporting levels for spills and overfills greater
than 25 gallons can be considered no less stringent if two
conditions are satisfied:
(a) The State mandates that the unreported spill be completely
contained and cleaned up; and
(b) The State has requirements that identify the specific steps
an owner and operator must take to ensure unreported spills
and overfills are contained and cleaned up in a manner that
will protect human health and the environment.
4. A spill or overfill of a hazardous substance that results in a
release to the environment that equals or exceeds its reportable
quantity under CERCLA (40 CFR Part 302) must be reported
IMMEDIATELY to the National Response Center and to appropriate
State and local authorities.
5. More discussion on release reporting, investigation, and
confirmation methodology may be found in the preamble to the final
State Program Approval Rule (53 FR 37229) and in the preamble to
the final Federal Technical Standards (53 FR 37169).
***

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OSWER Directive 9650.8
56
State Examples for Release Reporting. Investigation, and Confirmation
Defining a “suspected” release and confirming it . State M’s
requirements demonstrate one way to fulfill, subsection (a) of this objective
for release investigation and confirmation. The State mandates that owners
and operators complete an investigation within 7 days of identifying a
“suspected” release. This requires prompt reporting of releases and is also
the same as EPA’s technical standards for investigation.
As part of the investigation process, State M requires the owner or
operator to do some immediate double-checking of equipment and other site
check activities at all sites where the owner or operator suspects a release
may be occurring. The State, however, may need to clarify for the EPA
Regional Office as to whether or not the State has the authority required in
(a)(2) of this objective. The question that needs to be answered is: when
the State has reason to believe that a release is having an impact in the
surrounding area and that the source needs to be determined, can the State
require a nearby owner or operator to investigate his tanks and site for the
source of the release? Is a potential off-site impact a suspected release
that the State can require a nearby UST owner to investigate his site? The
State must have this authority to fulfill subsection (a)(2) of this objective,
however, such authority does not have to appear in the regulations and may
instead be present under enforcement authorities; this is the reason a
clarification might be necessary.
Defining a “confirmed” release and reoorting it . The following example
of State criteria for confirming and reporting a release demonstrates one way
to fulfill subsection (b) of this objective. According to regulations in
State M, a release is confirmed when any of the following conditions exists:
(1) test, sampling or monitoring results from a leak or discharge detection

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OSWER Directive 9650.8
57
‘nethod that indicate a release has occurred when the monitoring equipment has
been checked and found to be operational; (2) test results from a precision
test of the UST and piping, conducted separately, which is performed after the
top of the tank is excavated and all loose fittings, vent pipes or other
equipment is checked, replaced or tightened, and which indicate that a release
may have occurred; (3) re ilts from a closure plan indicate the presere of
contamination in excess of State standards and indicate that a release has
occurred; and (4) any other method, including visual inspection, that confirms
that a release ha. occurred. Once the release is con: rmed, the State
mandates that “any person” must inunediatelv report the release to the State
hotline and to any local agencies, if required by local regulations. The term
“any person” includes but is not limited to, the owner or operator of an UST
system or contractor hired to install, remove or test an UST system.
Reporting on Spills . State M’s regulations illustrate one possible
approach for reporting and cleaning up spills that will fulfill subsections
(b) and (c) of this objective. State M, like many other States, does not
distinguish between aboveground and belowground releases in their reporting
and corrective action requirements. The State requires that all confirmed
releases be reported, and that all confirmed releases be contained and cleaned
up in a manner that protects human health and the environment. The State does
not set a limit for reporting spills, which means all spills must be reported.
The State chooses to direct owners and operators on how to contain and clean
up all spills.

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OSWER Directive 9650.8
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RELEASE RESPONSE AND CORRECTIVE ACTION
OBJECTIVE § 281.35
The State must have requirements that ensure: Cite
Regulation Statute
(a) All releases from UST systems are promptly
assessed md further releases are stopped;
(b) Actions are taken to identify, contain and
mitigate any immediate health and safety
threats that are posed by a release (such
activittes include investigation and
initiation of free product removal, if
present);
(c) All releases from UST systems are
investigated to determine if there are
impacts on soil and ground water, and
any nearby surface waters. The extent
of soil and ground-water contamination
must be delineated when a potential
threat to human health and the
environment exists.
(d) All releases from UST systems are cleaned
up through soil and ground water remediation
and any other steps, as necessary to
protect human health and the environment;
(e) Adequate information is made available to the
State to demonstrate that corrective actions
are taken in accordance with the requirements
of (a) through (d) of this section. This
information must be submitted in a timely
manner that demonstrates its technical
adequacy to protect human health and the
environment; and
(f) In accordance with section 280.61, the State
must notify the affected public of all
confirmed releases requiring a plan for
soil and ground water remediation, and
upon request provide or make available
information to inform the interested
public of the nature of the release and the
corrective measures planned or taken.

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OSWER Directive 9650.8
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RELEASE RESPONSE AND CORRECTIVE ACTION
(coNTINuED)
OBJECTIVE § 281.35
NOTES ON FULFILLING THE OBJECTIVE
1. Actions appropriate to stop a release will vary depending on how
the release was confirmed as well as the conditions at the site.
If the confirmation of the release identifies the tank or piping
component responsible for the release, then actions to prevent
future releases could include emptying the problem tank or not
using the suspect piping until it is replaced or repaired.
2. The use of the word “promptly in the objective is intended to mean
that the State must require that owners and operators take such
steps quickly to minimize future releases. To provide adequate
enforcement of such a requirement, the State must clearly define,
using a number, the time frame within which an owner or operator
is expected to respond to this requirement.
3. The immediate threats to health and safety that normally are a
concern at release sites include: explosive gas levels or vapor
threats due to the exposure of contaminated soils; the off-site
impacts of free product or resulting vapors on nearby water, sewer
lines, or building basements; and the location of any nearby
ground-water users who could be exposed to or threatened by
dissolved contaminants in their drinking water.
4. Extent of cleanup of contaminated soil and ground water may be
based on a site-specific risk analysis that includes potential
human exposure or on State-wide numerical standards that establish
clean-up levels at every site.
5. Reporting on corrective action plans must result in information
being made available to the State quickly to ensure that steps are
being taken to prevent further contamination, and so that
technical direction can be provided by the State.
6. Information on the site and surrounding areas should be reported
so that the corrective action can be tailored to the specific
conditions of the site and nature of the release.
7. Initial corrective action steps, results of investigation of soils
and ground water, and plans and status reports on long-term
remediation of contamination at the site are among the types of
specific information that the State might require.

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OSWER Directive 9650.8
60
RELEASE RESPONSE AND CORRECTIVE ACTION
(CONTINUED)
OBJECTIVE § 281.35
8. Under the Federal Technical Standards (280.66(b)), in making a
determination that a corrective action plan will adequately
protect human health, safety, and the environment, the State
implementing agency s .ould consider the following factors as
appropriate:
The physical and chemical characteristics of the regulated
substance, including its toxicity, persistence, and
potential for migration;
The hydrogeologic characteristics of the facility and the
surrounding area;
The proximity, quality, and current and future uses of
nearby surface water and ground water;
The potential effects of residual contamination on nearby
surface water and ground water;
An exposure assessment; and
Any information assembled in compliance with the State
corrective action requirements.
9. More discussion on release response and corrective action may be
found in the preamble to the final State Program Approval Rule (53
FR 37230) and in the preamble to the final Federal Technical
Standards (53 FR 37173).
***

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OSWER Directive 9650 8
61
State Examples for Release Response and Corrective Action
Prompt Assessment and Stopping of Releases . State 0 requires that
“where a confirmed tank failure has occurred,” the owner or operator must
empty the UST system within 5 days. The term “tank failure” in this State
requirement may be too narrow to meet the objective because it could be
interpreted to not to include piping failures or spills and overfills. The
regulation does not specify the circumstances for when this requirement
applies. If this is the State’s only requirement to ensure prompt action be
taken to stop a confirmed release of a regulated substance, then this
requirement will be considered less stringent than the objective because 5
days is not necessarily prompt enough for all circumstances. For example,
action must be taken within a shorter period of time than in five days if a
large release is suspected, and can only be stopped by rapid (if not
immediate) removal of the product. EPA also notes that emptying the tank, as
is required by this State, may not always be necessary. In the case of a
piping failure, merely preventing continued use of the suspect piping run
until it was repaired would be sufficient to stop further releases of
regulated substances from the UST system.
Finally, State 0 does not require that the site of the “confirmed tank
failure” be assessed to determine if and how cleanup should begin. The State
will need to clarify how its regulations address this subject or revise its
regulations in order to be considered no less stringent in meeting this aspect
of the objective.
Defining the Steps Needed to Mitigate Hazards and Investigate Impacts .
State P’s regulations show one approach to satisfying subsection (b) of the
Federal objective, which addresses mitigation of immediate health and safety
hazards including the investigation and recovery of free product. The State

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OSWER Directive 9650.8
62
requires that UST owners and operators: (1) mitigate any fire, safety, or
health hazard, including hazards from combustible vapor or vapor inhalation
and the removal of ignition sources; and (2) conduct a visual inspection to
detect any above-ground discharge, and where any above-ground discharge is
evident, mitigate the effects of the discharge. In addition, the State
requires that the owner or operator must: (3) remove free product from the
water table or any aquifer material; (14) remove or decontaminate contaminated
soil, storing contaminated soil if necessary in such a manner that provides
complete isolation of the soil from the environment, and any hazardous
substances in the soil must be prevented from coming into contact with or
being released into the environment; and (5) repair, replace, or close the UST
system. These requirements satisfy aspect (b) of the objective.
Defininz Investigative Actions . State P’s regulations also demonstrate
one way to fulfill subsection (c) of this objective. The State requires that
every owner or operator collect the following information about the release:
(1) the anticipated migration route of the regulated substance; (2)
characteristics of the surrounding soil including composition, geology,
hydrogeology, and climate; (3) the results of any monitoring or sampling
conducted in connection with the discharge that has been collected and
analyzed in accordance with State procedures; (4) the proximity of the
discharge to potable water supplies, surface water bodies, and populated
areas; (5) a detailed description of corrective actions taken and any planned;
and (6) any other relevant information requested by the State. These State
requirements fulfill subsection (c) of this Federal objective. It should be
noted, however, that subsection (e) of this objective requires timely
reporting of the activities completed in each phase of the cleanup in order to
determine its technical adequacy. State P does not identify in its

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OSWER Directive 9650.8
63
regulations when the information (collected during the investigations listed
above) must be submitted. The EPA Regional Office may ask the State
additional questions to make sure that subsection (e) of the objective is met.
For example, can the State ask for the site assessment information at any time
before the cleanup is completed? Does the State have access to enough
information regarding each release site to determine that each cleanup
operation will protect human health and the environment? In the site-specific
approach to cleaning up UST releases, reporting is important because the
consideration accorded to some factors, such as aquifer resource value and its
current and potential use, is largely left to State (or local) policy. Given
the number of releases that are expected to be detected in the near future,
EPA acknowledges that there is potential for delayed cleanups under this
approach if the State is unable to review all the reported information in a
timely manner. The act of reporting information does not necessarily have to
be formal, however, and the State may choose to accept information over the
telephone or through personal interviews on site. Alternatively, the State
may use previously collected information to categorize separately those
releases that need to have more extensive reporting than others. In order to
be no less stringent overall than this objective, State P may need to clarify
the specifics as to when the information gathered under these State
regulations must be reported to ensure that the need for prompt action and
timely reporting is fulfilled.
Defining “Clean Un” . State Q has requirements for corrective action
that consist of requiring the owner or operator to repair damage caused by the
release and restore the environment to a condition and quality acceptable to
the State agency. This requirement is not sufficient to fulfill subsection
(d) of this objective because the State does not define the criteria that will

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OSWER Directive 9650.8
64
be used to determine what “acceptable to the State” is. The State must
elaborate on what the criteria or basis will be for deciding when to continue
and when to stop clean up. To make this requirement no less stringent, the
State must at a minimum, require that the release be cleaned up as necessary
to protect human health and the environment. Although this is a fairly
general criteria, several States already have opted for such general
requirements in their regulations because it gives them the authority to
oversee all aspects of the corrective action effort while at the same time,
providing them with flexibility to tailor State requirements for corrective
action to each site. However, this type of regulatory language also places a
greater burden on the State program because it must be prepared to
individually oversee every action on every site. To avoid the tasks of such
close oversight, a State that employs a general standard in its regulations
(for example, “as necessary to protect human health and the environment”)
could issue basic guidelines for corrective action that would alleviate some
of the responsibilities of such site-specific direction.
Reporting On Corrective Actions Taken . The following requirements of
State P illustrate one approach to subsection (e) of the objective, which does
not clearly fulfill the objective. The State may need to make some changes or
provide some clarification to the EPA Regional Office. State P requires
owners and operators, in an initial notification of a confirmed release, to
provide information on the type and quantity of the substance released, the
location of the release, and the actions beir.g taken to clean up the release.
In addition, the State requires owners and operators to submit a corrective
action plan (with an implementation schedule) within 120 days of release
confirmation date, and to implement the plan in accordance with the schedule.
The implementation schedule must include target dates to carry out the

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OSWER Directive 9650.8
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following: (1) soil, surface and ground water sampling; (2) monitor well
installation; (3) the staging and/or disposal of soils; (4) the construction
of soil or ground-water treatment systems; (5) the provision of alternate
water supplies; and 6) the periodic re-evaluation of the effectiveness of
clean-up measures instituted. The release confirmation notification and the
corrective action plan submission make up the entire body of reporting
requirements in this State; thus the reporting on the initial actions taken
and the upfront release assessment steps, as well as the corrective action
plan, must be provided at 120 days. To be considered no less stringent in
subsection (e) of the objective, the State must require that the owner or
operator provide information concerning the immediate corrective action steps
required in subsections (b) and (c) (such as the abatement of fire hazards and
the investigation and removal of free product) well before 120 days have
passed. Provided that the owner and operator has mitigated any immediate
health and environmental threats posed by the site and has provided this
information to the Stace,’the information required by State P in steps 3, 4,
5, and 6 focus on long-term corrective actions and reporting at 120 days is
sufficient.
Using a different approach, State R shows another way to fulfill
subsection (e) of this objective. State R provides a corrective action manual
to owners and operators of leaking liSTs that presents detailed technical
guidance and instructions on reporting information in terms of: (1) invest-
igating suspected or known leaks for underground fuel storage sites; (2)
assessing risk to human health and the environment when leaks have occurred;
(3) determining cleanup levels in soil, ground water, and air for contaminated
sites; (4) screening out sites that represent an acceptable degree of risk
from further study; and (5) taking remedial action. This manual is an example

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OSWER Directive 9650.8
66
of guidance material that is used to support relatively general State
regulations; it provides specific direction to the regulated community on what
is expected from them, what actions they must take and when they must report.
As long as the procedures outlined in this guidance are enforceable, this
approach can be considered no less stringent than subsection (e), as well as
subsections (a), (b), (c), and (d) of this Federal objective.
Providing Public Notice . State S does not adequately fulfill subsection
(f) of this objective. In major corrective action cases, where ground-water
recovery and treatment are involved, State S issues a permit for treatment of
contaminated water and discharge of the treate.d waters. Before a permit is
issued, the public is notified. The Federal objective, however, requires that
the public must be notified when any long-term cleanup is undertaken.
Generally, issuing a water treatment permit requires a public hearing because
of concerns about discharges into surface water, and this hearing or meeting
serves an entirely different purpose than that of notifying the public of
long-term cleanups of petroleum releases. EPA believes that this requii.i t
is not an onerous burden, as a public hearing or meeting, or even formal
response to comments, is not necessary to fulfill this objective. L- . roblem
with State S’s approach is that not all long-term cleanups require a water
treatment permit and so there will be instances under this State program when
the affected public is not notified when they should be notified.
State T’s policy, however, is a good example of a State approach that
does meet subsection (f) of this objective. The State requires a press
release to be issued for all releases affecting ground water and all other
releases involving corrective action. The press release must describe the
location, the nature of the release, and announce that cleanup will be
performed. This State will hold a public meeting if it appears warranted and
allows public access to its files.

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OSWER Directive 9650.8
67
OUT-OF-SERVICE UST SYSTEMS AND CLOSURE
OBJECTIVE § 281.36
The State must have requirements that ensure Cite
UST systems conform with the follovfng: Regulation Statute
(a) All new and existing UST systems
temporarily closed must:
(1) continue to comply with general
operating requirements, release
reporting and investigation, and
release response and corrective action;
(2) continue to comply with release
detection requirements if regulated
substances are stored in the tank;
(3) be closed ff to outside access; and
(4) be permanently closed if the UST
system has not been protected from
corrosion and has not been used in
one year, unless the State approves
an extension after the ow er and
operator conducts a site assessment.
(b) All tanks and piping must be cleaned and
permanently closed in a manner that
eliminates the potential for safety
hazards and future releases.
The owner or operator must notify the State
of permanent UST system closures.
The site must also be assessed to determine
if there are any present or were past
releases, and if so, release response
and corrective action requirements must
be complied with.
(c) All UST systems taken out of service before
December 22, 1988, must permanently close
in accordance with paragraph (b) of this
section’ when directed by the State.

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OSWER Directive 9650.8
68
OUT-OF-SERVICE UST SYSTEMS AND CLOSURE
(CONTINUED)
OBJECTIVE § 281.36
NOTES ON FULFILLING THE OBJECTIVE
1. The State program must specify when a tank system is considered to
be temporarily out-of-service due to the fact that it has been
removed from service.
2. The time limit for the temporary closure of UST systems has been
set at one year to ensure that owners and operators of unprotected
USTs that are unused are held responsible for protecting the UST
system from corrosion or permanently closing it. (See part (4) in
subsection (a)).
3. Assessing the site at closure is not necessary if an external
release detection method was in operation at the time of closure
and it indicates no release has occurred.
4. More discussion on out-of-service IJST systems and closure may be
found in the preamble to the final State Program Approval Rule (53
FR 37233) and in the preamble to the final Federal Technical
Standards (53 FR 37181).
***

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OSWER Directive 9650.8
69
State Exanrnles For Out-of-Service USTs and Closure
Defining Tenmorarily Out-of-Service . State U’s regulations do not
fulfill the criteria for temporary closure set out in subsection (a) of this
objective. State U requires owners and operators of UST systems containing
regulated substances that are temporarily out of service for 90 days or less
to continue to comply with all provisions of the State’s regulations (for
example, release detection and corrective action). UST systems containing
regulated substances that are out of service for an extended period of time,
that is 3 months to 2 years, are required to comply with the following
additional requirements: (1) leave vent lines open and functioning; and
(2) cap and, secure all other lines, pumps, manways, and ancillary equipment.
Owners or operators of temporarily or extended out-of-service UST systems that
have been emptied and do not contain a regulated substance are required by the
State to maintain cathodic protection. Finally, the State requires UST
systems that have been removed from service for a period of 2 years or more to
be permanently closed. State U’s requirements do fulfill the objective for
USTs that are temporarily out-of-service one year or less. However, these
requirements are less stringent concerning USTs closed for more than 1 year.
To be considered no less stringent than aspect (a) of this objective, State
U’s requirement needs to be changed to mandate that an UST system that does
not have corrosion protection and has’been removed from service for one year
or longer must permanently close, unless the State allows an extension based
on the results of a site assessment.
Defining Permanent Closure . The following examples illustrate two
different States’ approaches to the issue of permanent tank closure. The
first, State V, has regulations that do not fulfill subsection (b) of this
objective. State V requires that all UST systems being permanently closed be

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70
removed (the State must be notified 10 days in advance). The State allows
abandonment in place only if it is not physically possible or practicable to
remove the UST system (the State lists instances of when this would be
allowed). For both methods of closure, the State provides detailed lists of
procedures that must be followed to avoid causing safety hazards and future
releases, including emptying and cleaning out the tanks. These regulations,
however, are less stringent than subsection (b) of EPA’s closure objective
only because they do not specify that a site assessment must be performed at
permanent closure to identify any past or on-going releases. The State
program must require a site assessment to satisfy this objective.
State W uses a different approach to permanent closure. In addition,
the State’s requirements do fulfill the objective. The State requires that
procedures for permanent closure include: (1) removal of all residual liquid,
solids, or sludges from the tank and appurtenant piping by draining, pumping,
or in-tank cleaning; (2) discharging such material in accordance with all
applicable Federal, State, and/or local regulatiois; and (3) purging all
flammable vapors. The State further requires tha: closure be performed in
accordance with the State’s Uniform Construction Code; American Petroleum
Institute Standard 1604, “Recommended Practices for Abandonment and Removal of
Used Underground Storage Tanks;” and any standard or device that the State
determines to be protective of human health and the environment. In addition,
the State requires owners or operators to submit a closure plan to the State
agency that includes provisions for performing a site assessment. This report
triggers release response and corrective action requirements if.it is
determined that an on-going or past release has occurred at the site. The
above State requirements fulfill subsection (b) of EPA’s Federal objective.

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Reciuiring Retroactive Closure . State Y’s regulations illustrate one way
to fulfill subsection (c) of this objective. State Y mandates that all USTs
that have been taken out of service for more than 1 year be properly closed by
the owner or operator of the liST system or, if the owner or operator is
unknown, by the current owner of the property where the liST is located.
Because no date is specified, this requirement allows the State to go far back
in time, even prior to the effective date of the State regulations, and
requires owners, operators, or property owners to properly close abandoned
tanks. For example, State Y can require a property owner that has a 20-year-
old abandoned liST system to close the tank properly. This requirement
satisfies subsection (c) of this objective.

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OSWER Directive 9650.8
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FINANCIAL RESPONSIBILITY FOR USTs
CONTAINING PETROLEUM
OBJECTIVE § 281.37
(a) State requirements for financial Cite
responsibility must ensure that: Regulation Statute
(1) owners and operators have $1 million
per occurrence for corrective action
and third-party claims in a timely
manner to protect human health and
the environment;
(2) owners and operators not engaged in
petroleum production, refining, and
marketing and who handle a throughput
of 10,000 gallons of petroleum per
month or less have $500,000 per
occurrence for corrective action and
third-party claims in a timely manner to
protect human health and the environment;
(3) owners and operators of 1 to 100
petroleum USTs must have an annual
aggregate of $1 million; and
(4) owners and operators of 101 or more
petroleum USTs must have an annual
aggregate of $2 million.
(b) Phase-in requirements. Financial
responsibility requirements for petroleum
UST systems mustat a minimum, be scheduled
to be applied to all UST systems on an
orderly schedule that completes a phase-in
of the financial responsibility
requirements within 18 months (see Note 2)
after the effective date of the Federal regulations.
Cc) States may allow the use of a wide variety of
financial assurance mechanisms to meet this
requirement. Each financial mechanism must
meet the following criteria: be valid and
enforceable; be issued by a provider that
is qualified or licensed in the State; not
permit cancellation without allowing the
State to draw funds; ensure that funds will
only and directly be used for corrective
action and third-party liability costs;

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FINANCIAL RESPONSIBILITY FOR USTs
CONTAINING PETROLEUM (CONTINUED)
OBJECTIVE § 281.37
Cite
Regulation Statute
and require that the provider notify the owner
or operator of any circumstance that would
impair or suspend coverage.
(d) States must require owners and operators to
maintain records and demonstrate compliance
with the State financial responsibility
requirements, and these records must be
made readily available when requested by
the implementing agency.
NOTES ON FULFILLING THE OBJECTIVE
1. States may establish a fund to provide financial assurance for
certain classes of owners and operators or for all owners and
operators. The general criteria for State funds are identified in
paragraphs (a) and (c) above.
2. There is an error in the Federal Register printing of
the financial responsibility phase-in schedule. The
18-month timeframe is incorrect; the correct time
period for phasing in the requirements is October 26,
1990, or 21 months after the effective date of the
Federal regulations. This error was corrected in a
supplemental notice to the Federal Register on
December 21, 1988 (53 FR 51273).
3. More discussion on financial responsibility for UST
owners and operators may be found in the preamble to
the Federal financial responsibility requirements (53
FR 43365), and in the preamble to the State Program -
Approval Financial Responsibility objective (53 FR
43382).
***

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OSWER Directive 9650.8
74
Discussion of Financial ResDonsibility Requirements for States
The objective for financial responsibility for lISTs containing petroleum
was published separately from the rest of the State Program Approval Rule.
The objective appeared in the Federal Register on October 26, 1988 (53 FR
43382) with the Federal Financial Responsibility Requirements for Petroleum
lISTs (Part 280, Subpart H).
While many States have developed and are implementing technical
standards for lISTs, few States have financial responsibility statutes or
regulations in place. Many States delayed development of that portion of
their program until they had an opportunity to see the final Federal Financial
Responsibility Rule.
There are two basic approaches that a State can follow to meet the
objective for Federal Financial Responsibility for Petroleum lISTs:
• Adopt the standards described in the objective; and/or
• Develop a State fund that provides the full coverage required or
that meets the full coverage required when combined with another
mechanism.
A State does not have to create a fund to meet the financial
responsibility objective. A State could have a statute requiring owners and
operators in their State to have the required amounts of per occurrence and
aggregate coverage tocover corrective action costs and third party damages.
In addition, a State could phase-in the financial responsibility requirements
on an orderly schedule within 21 months of the effective date of the Federal
regulations. In order for a State to be no less stringent than the Federal
requirement, there must be more than one group being phased-in between now and
October 26, 1990. Of these, at least one must be required to comply by no
later than July, 1990. For example, State A might require some owners and

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OSWER Directive 9650.8
75
operators in the State to comply by April, 1990, and the remainder by October,
1990.
States may allow the use of a variety-of financial assurance mechanisms
to meet the requirements. These mechanisms must:
• Be valid and enforceable;
• Be issued by a provider that is qualified or licensed in the
- State;
• Permit cancellation without allowing the State to draw funds if
the mechanism is a guarantee, surety bond, or letter of credit;
• Ensure that funds will only and directly be used for corrective
action and third-party liability costs;
• Require that the provider notify the owner or operator of any
circumstance that would impair or suspend cov’erage, (i.e.,
bankruptcy of provider).
The mechanisms cited in the Federal financial responsibility regulation meet
the above criteria.
Finally, States must require owners and operators to maintain records
and demonstrate compliance with the State financial responsibility
requirements. These records must be made readily available when requested by
the State implementing agency.
With one exception, States developing financial responsibility programs
have been focusing on the feasibility of using State trust funds to provide
financial assurance. A number of States have either proposed or passed
statutes creating State assurance funds to help owners and operators of
petroleum USTs in their State comply with financial responsibility
requirements. So far, two basic types of funds have been considered:
insurance funds and guarantee funds (clean-up funds). The variety of
approaches that States are using, including these two basic types, can be
illustrated by the following examples. No assessment is made of whether the

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OSWER Directive 9650.8
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various programs mentioned meet the objective for financial responsibility by
being “no less stringent”.
In the area of insurance-type funds, Vermont has passed a statute
authorizing the formation of an UST insurance pool with the Banking and
Insurance Commissioner’s approval. Oregon has proposed a State insurance fund
that provides the authority to establish a fee-supported fund covering
financial assurance requirements for corrective action and third-party
liability.
In t e area of guarantee-type funds, Georgia as passed a statute
establish g a fund in which the owner/operator pays the first $10,000 and
then after cleanup submits eligible corrective action costs for reimbursement.
Georgia w{ll establish reimbursement criteria. Delaware’s fund covers
corrective action costs over $2,500 for releases reported by December 1988,
after which time, corrective action costs will be covered up to $1 million
after a $100,000 deductible. The fund covers third-party claims from $300,000
to $1 million per occurrence per facility. Finally, Iowa has proposed a
minimum fund of $5 million 1 o cover corrective action and third-party
liability costs of up to $1 million after a $20,000 deductible.
It is important to note that, due to limitations in their coverage, the
Georgia, Delaware, and Iowa trust funds cannot function as an owner’s or
operator’s sole financial assurance mechanism. Section 281.37, the financial
responsibility State program approval regulation, requires that an owner or
operator has $1 million of coverage ($500,0000 for petroleum non-marketers)
per occurrence for taking corrective action and compensating third parties for
bodily injury and property damage caused by a release. Where a State trust
fund does not cover either corrective action or some aspect of third party
liability, the owner or operator must obtain the full amount of required

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OSWER Directive 9650.8
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coverage through another financial assurance mechanism. This same principle
applies to State trust funds, such as those of Georgia, Iowa, arid Delaware,
that do not cover the full dollar amount of required coverage, because the
fund has a deductible. Those owners and operators using the trust fund
created by these States must obtain financial assurance that covers corrective
action and third party liability for the amount of the deductible. Some
States may wish to develop a financial test for the amount of the deductible
and submit a description of the test along with a description of the State
fund to the appropriate Regional Administrator for approval of the two
combined as a “State-required mechanism” under §280.100.
These examples demonstrate the types of possible approaches that are
available to States. The reader is cautioned that EPA has not determined that
each State approach described here is considered no less stringent than the
Federal program. That evaluation is made by the EPA Regional Administrator on
a State-by-State basis. EPA has developed a Handbook (September, 1988),
entitled Financial Assurance Programs: A Handbook for States , that will
assist States in developing financial assurance programs. This handbook
contains a summary of approaches that are being used by the States, and the
information provided above is taken from that summary.
Readers should note that there is an error in the Federal Register
printing of the financial responsibility objective under §281.37(b), which
concerns the phase-in of requirements. The language in the objective says
that “financial responsibility requirements for petroleum USTs must be
scheduled to be applied at all UST systems on an orderly schedule that
completes a phase-in of the financial responsibility requirements within 18
months after the effective date of the Federal regulations.” The 18 months is
incorrect. The correct time period for phasing in the requirements is October

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OSWER Directive 9650 8
78
26, 1990 or 21 months after the effective date of the Federal regulations.
This error was corrected in a supplemental notice to the Federal Register ,
published on December 21, 1988 (53 FR 51273).
C. Adequate Enforcement Authorities
In the Attorney General’s Statement, the State must demonstrate that its
enforcement authorities meet the criteria specified in Subpart D of the State
Program Approval Rule which requires legal authorities for: (1) compliance
monitoring; (2) enforcement response; and (3) public participation. These
authorities are the minimum necessary for a program to provide “adequate
enforcement.” Although a State may use local agencies to implement certain
aspects of its compliance monitoring and enforcement program, the application
for program approval must demonstrate that the State has adequate legal
authorities to enforce its requirements; the State cannot rely on local
authorities in its demonstration of adequate enforcement. Worksheets
outlining and explaining the specific requirements of the compliance
monitoring and enforcement response authorities are provided below. The
regulatory requirements for public participation in enforcement proceedings
include options for both legal authorities and procedural requirements.
However, the handbook discussion of public participation in enforcement
proceedings is located in this chapter (rather than Chapter 5) because EPA
believes most States will probably choose one of the authority options. A
worksheet is also provided for the public participation in enforcement
proceedings requirement. Additional information on this subject is available
in the preamble to the State Program Approval Rule (53 FR 37234).

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OSWER Directive 9650.8
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LEGAL AUTHORITIES FOR COMPLIANCE
MONITORING
( 281,40)
The State must have the following Cite
specific compliance monitoring authorities: Regulation Statute
(a) Any authorized representative of
the State engaged in compliance
inspections, monitoring, and testing
must have authority to obtain by request
any information from an owner or operator
with respect to the UST system(s) that is
necessary to determine compliance with
the regulations.
(b) Any authorized representative of the State
must have authority to require an owner or
operator to conduct monitoring or testing.
(c) Authorized representatives must have the
authority to enter any site or premises subject
to UST system regulations or in which records
relevant to the operation of the UST system(s)
are kept, and to copy these records, obtain
samples of regulated substances, and inspect or
conduct the monitoring or testing of UST
system(s).
NOTES ON FULFILLING THE REQUIREMENTS
1. The proposed rule limited inspection authority solely to
“employees of the State.” However, EPA believes that States may
also wish to delegate implementation responsibility to individuals
such as the local building inspector or fire marshall. Thus, in
order to broaden the scope of this authority to include such
persons, the Agency has in the final rule substituted the word
“employee” with “representative,” as provided for in Subtitle I,
Section 9005 of RCRA.
2. More discussion on legal authorities for compliance monitoring may
be found in the preamble to the final State Program Approval Rule
(53 FR 37234).
***

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OSWER Directive 9650.8
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LEGAL AUTHORITIES FOR ENFORCEMENT RESPONSE
( 281.41)
The State must have the following specific Cite
enforcement response authorities for State Regulation Statute
program approval:
(a) Any State agency administering a program must
have the authority to implement the following
remedies for violations of State program
requirements:
(1) To restrain immediately and effectively
any person by order or by suit in State
court from engaging in any unauthorized
activity that is endangering or causing
damage to public health or the environment;
(2) To sue in courts of competent jurisdiction
to enjoin any threatened or continuing
violation of any program requirement;
(3) To assess or sue to recover in court
civil penalties as follows:
(1) Civil penalties for failure to
notify or for submitting false
information purs iant to tank
notification requirements must be
capable of being assessed up to
$5,000 or more per violation.
(ii) Civil penalties for failure to
comply with any State requirements
or standards for existing or new
tank systems must be capable of
being assessed for each instance
of violation, up to $5,000 or more
for each tank for each day of
violation. If the violation is
continuous, civil penalties shall
capable of being assessed up to
$5,000 or more for each day
of violation.

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OSWER Directive 9650.8
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LEGAL AUTHORITIES FOR ENFORCEMENT RESPONSE
(CONTINUED)
(* 281.41)
NOTES ON FULFILLING THE REQUIREMENTS
1. “Unauthorized activity” is considered to include any activity by
an UST owner or operator that results in noncompliance with a
State’s UST regulations.
2. States may find these standard legal authorities in general
enforcement statutes and not necessarily in UST-specific statutes.
3. More discussion on legal authorities for compliance monitoring may
be found in the preamble to the final State Program Approval Rule
(53 FR 37237).
***

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OSWER Directive 9650.8
82
PUBLIC PARTICIPATION IN ENFORCEMENT
PROCEEDINGS
( 281.42)
Any State administering a program must Cite
provide for public participation in Regulation Statute
the State enforcement process by providing
any one of the following three options:
(a) Authority that allows intervention analogous
to Federal Rule 24(a)(2), and assurance by
the appropriate State enforcement agency that
it will not oppose intervention under the State
analogue to Rule 24(a)(2) on the ground that
the applicant’s interest is adequately
represented by the State.
(b) Authority that allows intervention as of right
in any civil action to obtain the remedies
specified in 281.41 by any citizen having an
interest that is or may be adversely affected; or
(c) Assurance by the appropriate State agency that:
(1) It will provide notice and opportunity
for public comment on all proposed
settlements of civil enforcement actions
(except where immediate action is
necessary to adequately protect human
health and the environment);
(2) It will investigate and provide responses
to citizen complaints about violations; and
(3) It will not oppose citizen intervention
when permissive intervention is allowed
by statute, rule, or regulation.
NOTES ON FULFILLING THE REQUIREMENTS
1. These requirements are separate from the public participation
requirement under the corrective action objective on page 58 of
this chapter.

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OSWER Directive 9650.8
83
PUBLIC PARTICIPATION IN ENFORCEMENT
PROCEEDINGS (CONTINUED)
( 281.42)
2. EPA expects that States will not have difficulty in fulfilling one
of the three options presented here, particularly because most
States already have an authority analogous to Federal Rule
24(a)(2) as a result of involvement in the RCRA hazardous waste
management program. Federal Rule 24(a)(2) is presented in
Appendix E.
3. The “right of intervention” required in the second option is
considered to he the right of a citizen, having an interest that
is or may be adversely affected by an UST system that is in
violation of the State’s requirements, to intervene in a civil
action brought by the State against the owner or operator. The
citizen has all the rights of an intervenor, including the right
to submit a statement, the right to notice, and the right to
receive motions for arguments filed by other parties to the
action.
***

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OSWER Directive 9650.8
84
Additional Explanation of the Public Paricjpatjon Reciuirements
The purpose of providing public participation in the enforcement
decision-making process is to meet the Federal statutory requirement,
reflected in Section 7004 of RCRA, that the public be provided with a
reasonable opportunity to participate in the implementition of the program.
The final State program approval regulations (U8l.42) require that States
allow opportunities for the public to be informed and participate in the
enforcement decision-making process. To provide such public participation,
States may choose one of three options. The first two of t e options allow
States co obtain legal authorities that permit public parci Dation in the
enforcement process. The third option allows States to develop procedures
that assure that the implementing agency will respond to citizen input.
States that choose not to obtain either of the two legal authorities,
however, must develop procedures that assure public participation in
enforcement proceedings. States choosing this option are required to provide
opportunity for public comments on all proposed enforcement settlements and to
respond to citizen complaints about violations. States have the flexibility
to determine whether the citizen complaint is valid and to provide the
appropriate response depending on the significance of the violation. To
inform the public of proposed settlements for minor violations, for example,
States may consider submitting to a local newspaper a public notice of the
plan for returning to compliance. Public hearings may be held if enough
public interest is expressed. To handle citizen complaints, States may
determine the most appropriate follow-up action, depending upon the validity
of the complaint.

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OSWER Directive 9650.8
85
D. Scope of the State Program
A State has the option to develop an UST program to regulate either all
petroleum tanks, all hazardous substance tanks, or both. Depending upon which
of these options a State chooses, the State must have jurisdiction over at
least the same categories of tanks as the Federal program. For this reason,
the Attorney General must certify that the State UST program covers the same
scope of jurisdiction within each option as the Federal program, and does not
exclude any part of the UST universe regulated under the Federal rule. Those
categories of USTs that EPA had proposed to defer but now regulates in the
final Technical Standards must be included within the scope of the State
program. For example, used oil USTs need to be regulated under State
programs.
Certain UST systems are currently deferred from regulation in the final
Federal rule because EPA has insufficient information to regulate these USTs.
However, these deferred systems are subject to interim prohibition and the
corrective action requirements under the Federal Technical Standards. UST
systems storing fuel for emergency generators are subject to all but the
release detection requirements. Thus, the EPA and the State must agree on how
to oversee compliance of the regulatory requirements applicable to any
deferred USTs in the Memorandum of Agreement (explained in Chapter 6). States
should consider including the list of deferred USTs within their statutory
authority from the start to avoid the necessity for future changes to expand
their jurisdiction when complete Federal regulations for the deferred.systems
are published.
EPA has exempted by regulation certain other categories of UST systems
entirely, and States will not need to include these systems within their
jurisdictions in order to have adequate program scope for approval.

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OSWER Directive 9650.8
86
States are free to implement a State program that is broader in scope
than the Federal program ( 281.l2(a)(3)). A State program, for example, may
regulate all heating oil tanks, although tanks used for storing heating oil
for consumptive use on the premises where stored are excluded from the
Federal UST program. In such cases, the additional scope of coverage is not
reviewed by EPA as part of the State program approval process. In addition,
if EPA were asked to provide enforcement assistance, EPA cannot enforce the
States’ requirements against the tanks within the additional scope of
coverage.
The following checklist contains the categories of tanks that are
exempted from the Federal Technical Standards. State programs must have the
authority to regulate all categories of UST systems except for those IJST
systems contained in this checklist. (As noted above, Federally-deferred
tanks are only subject to the interim prohibition and corrective action
requirements.) If the State exempts or defers any category of UST systems
that are in the jurisdiction of the Federal program, a discussion must be
provided in the Memorandum Qf Agreement on how those tanks will be covered
along with a schedule for expanding the State’s jurisdiction. Additional
discussion on the State program scope and universe may be found in the
preamble to the State Program Approval Rule (53 FR 37219).

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OSWER Directive 9650.8
87
SCOPE OF THE STATE PROGRAM
The State must have authority to regulate all liST systems except those
UST systems outside the jurisdiction of the Federal program, listed as
follows:
Excluded by Congress
1. Farm or residential tanks of 1,100 gallons or less capacity storing
motor fuel for non-commercial purposes;
2. Tanks storing heating oil for consumptive use on the premises where
stored;
3. Septic tanks;
4. Pipeline facilities (including gathering lines) regulated under the
National Gas Pipeline Safety Act of 1968, the Hazardous Liquid Pipe-
line Act of 1979, or State laws comparable to these Acts;
5. Surface impoundments, pits, ponds, or lagoons;
6. Storm-water or waste-water collection systems;
7. Flow-through process tanks;
8. Liquid traps or associated gathering lines directly related to
oil or gas production and gathering operations; and
9. Storage tanks situated on or above the floor of underground areas,
such as basements or cellars.
Excluded by EPA
1. Any UST system holding hazardous wastes listed or identified
under Subtitle C of the Solid Waste Disposal Act, or a mixture
of such hazardous waste and other Subtitle I regulated substances;
2. Any waste-water treatment tank system that is part of a waste-water
treatment facility regulated under section 402 or 307(b) of the
Clean Water Act;
3. Equipment or machinery that contains regulated substances for
operational purposes such as hydraulic lift tanks and electrical
equipment tanks;
4. Any UST system whose capacity is 110 gallons or less;
5. Any UST system that contains a de minimis concentration of regulated
substances; and
6. Any emergency spill or overflow containment liST system that is
expeditiously emptied after use.

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OSWER Directive 9650.8
88
CHAPTER 5. DEMONSTRATION OF ADEQUATE ENFORCEMENT PROCEDURES
A. Introduction
To ensure that States have adequate enforcemenc, EPA requires that
States have certain compliance monitoring and enforcement procedures in
addition to the legal authorities discussed in the previous chapter. These
procedures are necessary to ensure compliance with all UST requirements in
both the technical and financial responsibility rules. Furthermore, EPA
expects that any State program that incorporates these required procedures
will also have the ability to carry them out. That is, EPA will not approve
an apparent “paper” program. Beyond this, EPA will not set any numerical
resource minimums to determine a State’s enforcement capability.
Under §281.22 of the regulations, States seeking program approval are
required to submit descriptions of their compliance monitoring and enforcement
program in their application. In general, EPA considers a comprehensive
enforcement program to include procedures for the following areas:
• Compliance monitoring and data collection; and
• Enforcement responses.
As discussed in more detail below, § 281.40(d) - (g) set forth the procedural
requirements for compliance monitoring and enforcement. In developing these
requirements, EPA seeks to maintain the flexibility to approve a variety of
State programs, and encourages States to use innovative approaches to
monitoring compliance and taking enforcement actions. For that reason, the
final regulations for State program approval do not specify details of
compliance monitoring and enforcement procedures, but rather describe general
procedural areas that are necessary for program approval.

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OSWER Directive 9650.8
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To provide guidance on fulfilling these procedural requirements, this
chapter reiterates the overall purpose of each requirement and provides
examples of compliance monitoring and enforcement procedures that may
accomplish these purposes. Some of these procedures are currently being used
in existing State programs. It should be noted, however, that none of the
actual compliance monitoring and enforcement procedures described represent an
“ideal” or unique lIST enforcement program, but serve only as examples of
methods that fulfill the purpose of the particular requirement. Further
detail on these examples .and additional information on State compliance
monitoring and enforcement techniques can be found in the EPA handbook on
Building State Comtliance Programs (August, 1988).
B. Procedures for Compliance Monitoring
An important purpose of the Federal requirements for adequate
enforcement is that States be able to identify violators and bring them into
compliance. The final State program approval regulations for adequate
enforcement require that States develop certain sets of procedures for
collecting and maintaining data on violators. In addition, the State
implementing agency must maintain data on the compliance status of the
regulated community to monitor the effectiveness of the compliance program and
ensure that violations are not repeated.

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OSWER Directive 9650.8
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Specifically, States are required to develop procedures in each of the
following four areas:
1. Record Review : Procedures to receive, evaluate, retain, and
investigate records and reports that owners and operators are
required to submit to the implementing agency, and procedures to
enforce against failure to submit such mandatory reports
( 281.40(d));
2. Inspections : Systematic inspection procedures to determine
compliance with program requirements, independent of information
supplied by the regulated community, and to provide for
enforcement of failure to comply with program requirements
( 281.40(e));
3. Public Reporting : Programs to encourage public effort in
reporting violations and to investigate information obtained
from the public about suspected violations ( 281.40(f)); and
4. Data Maintenance : Procedures for maintaining the data collected
through inspections and record reviews so that the implementing
agency can monitor over time the compliance status of the
regulated community ( 2 8 l. 4 O(g)).
In addition, for any compliance monitoring program to be effective, a State
should also be able to identify and characterize the regulated community.
Thus, procedures for developing an UST inventory are also fundamental to a
State’s ability to ensure compliance with the regulations.
Guidance for each requirement and examples of compliance monitoring
procedure and techniques that fulfill the requirements in each of these areas
are described below. Enforcement procedures that fulfill the requirements in
§ 28l.40(d) and (e) are discussed in Section C of this chapter.
1. Identifying the Regulated Community .
To structure an effective compliance monitoring program, a State
implementing agency must have a thorough awareness of its regulated community.
Examples are provided below of some optional procedures that have been
developed for identifying and characterizing UST systems and for keeping track

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OSWER Directive 9650.8
91
of changes in facility status over time. These are only examples, however,
and it is assumed that States do have other procedures that may be perfectly
acceptable.
Registration and Permitting . One customary and versatile method for
keeping inventory is to require that every facility in the regulated community
obtain a registration or permit. Registration and permitting programs vary in
the level of information required from the owners and operators, the means of
enforcing the program, and the consequences of noncompliance. In general,
registration programs rec;iire that liST owners and operators obtain an annual
license to operate their LiST system. In doing so, owners and operators will
supply the implementing agency with little more detailed data than that
required for notification. For example, the registration programs in Rhode
Island and Texas merely require that owners and operators notify the State of
changes in the status of the liST system. Permit programs also serve to
provide inventory data, although they are usually developed primarily to
monitor compliance (as discussed in the following section on Record Review)
and thus provide more detailed liST information.
Another means of identifying liSTs is to require certain actions from the
owner or operator. For example, a State may require that when property
containing an liST system is sold, the seller notify the purchaser of State
notification and reporting requirements applicable to the liST system. This
requirement would not only help keep the data updated, but also would ensure
• that information is passed on to the next owner or operator.
Alternative Means of Identification . To supplement their data on the
regulated community, States may rely upon other State or local government
agencies, such as building inspectors or fire departments, to identify liST
systems. For example, some State and county agencies incorporate liST

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OSWER Directive 9650.8
92
requirements into local construction standards by requiring building permits
for IJST system installation, alteration, or removal, much like any other
construction activity. The State or county typically requires these other
agencies to submit their observations and information to the UST implementing
agency.
States have also used commercial activities to help identify UST
systems. For example, Iowa requires that for all property transfers, real
estate agents must file a “Real Estate Ground-Water Hazards Statement,” in
which the agent must note if the property involved contains any UST systems.
This statement is filed with the County Recorders Office and can be compared
with information submitted by the owners and operators to verify the accuracy
of their reports.
2. Record Review .
Under §281.40(d) of the final State program approval regulations, States
must develop procedures for collecting and analyzing data submitted by UST
system owners and operators. Although owners and operators will be required
to submit certain information under State and Federal regulations (for
example, reporting releases), States may require additional information as a
means of expanding compliance monitoring efforts. By developing a program
that encourages owners and operators to submit accurate data on their
compliance status, States can reduce the need for resource-intensive
inspections. Several techniques for incorporating record reviews into a
compliance monitoring program are described below. Compliance outreach, which
can enhance the effectiveness of a reporting program, is also discussed.
Permit Programs . Some State programs have reduced their need for
resource-intensive inspections by implementing comprehensive permit programs
that provide data on compliance. Many States and counties require that all

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UST systems obtain annual permits as a condition of operation. To obtain
these permits, UST system owners and operators must demonstrate by independent
means that their UST systems have passed performance standards. States can
verify compliance in several ways, such as by inspecting the facility prior to
issuing the permit, or by requiring the owner or operator to submit results of
tank tightness tests. Once an initial inspection is conducted, States can
rely more heavily on periodic reports submitted by owners and operators with
permitted systems. States can also reduce the number of comprehensive
inspections conducted by increasing the time between major inspections at
permitted facilities.
California has developed a comprehensive permit program that is
implemented at the county level (and delegated to certain cities). The permit
requirements vary from county to county but are generally extensive. In San
Mateo County, for example, owners and operators applying for a permit must
complete a number of requirements, including conducting a precision test,
undergoing an inspection by the county, and installing leak detection
equipment. All UST systems in the State require permits for operation, and
any tank system that does not pass its county’s requirements is taken out of
service.
Self-certification . States may also reduce the need for extensive
inspections by allowing some owners and operators to certify that they are in
compliance. Such self-certification programs have been used in the
Occupational Safety and Health Administration for large, independent business
chains. In these programs, companies that demonstrate an understanding of the
regulations and a good compliance record are given the freedom to self-inspect
and submit results to the iñiplementing agency. (This would reduce the number

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and frequency of inspections that the agency would have to conduct at these
facilities.)
Effective use of such a program would require that the State have
significant penalties for false certification. C]early, the State would also
need to conduct additional inspections at facilities that have not
demonstrated a good compliance record. Although this method would not be
sufficient for determining the compliance status of the entire regulated
community, its use for a certain portion of the UST population may enable a
State to reduce some of its resource needs for inspections.
Compliance Outreach . The effectiveness of reporting by the regulated
community can be enhanced by developing a compliance outreach program. Given
the large size of the regulated universe and the limited resources available
for compliance monitoring and inspections, the State UST programs will have to
rely heavily on voluntary compliance, and outreach is an effective tool for
encouraging compliance. States have developed a number of methods to inform
the regulated community of its obligations under the State UST program. A
common means of reaching the regulated community is to identify certain
industry groups as representative of the regulated community and then develop
relationships with these groups. For example, Minnesota and Texas have
established ongoing communication with the Independent Service Station
Organization and the Texas Oil Marketer’s Association, respectively.
To reach a wider audience, some State programs use standard
communication techniques, such as press releases, public service
announcements, and mass mailings. The Maryland Department of Environment has
established an advisory committee comprising members from local government,
industry, and community groups to aid in communicating UST issues and to
encourage the exchange of ideas. The State of Oregon sends a newsletter

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“Tankline” to all persons in the State who may be connected to the UST
community. This newsletter discusses State regulations along with UST
technology and practices,
3. Insoections .
Although the final State program approval regulations ( 28l.40(e))
require States to develop an inspection program, States should be aware that
the requirements do not mandate a State to develop “traditional” programs that
have specific inspection schedules and a required number of inspections and
subsequent enforcement actions. EPA realizes that resource constraints in
most States will make it difficult for them to develop the traditional “bean
counting” inspection program. Currently, some States do not have sufficient
resources to do much more than conduct inspections in response to potential or
known violations or releases. Although these States are expected to develop
the capability to conduct systematic inspections to detect non-compliance, EPA
recognizes that alternative approaches to gathering inspection data may help
meet the overall performance goal of ensuring compliance. Several alternative
approaches to an inspection .program are described below.
Targeted Inspections . One alternative to periodic, random inspections
is to develop inspection priorities, taking into account factors such as: (1)
the nature and magnitude of the threat; (2) the availability of resources for
preventative action; and (3) the results of past leak incidents. For example,
some States have targeted their inspections to groups of 1JST systems that
potentially pose greater risk to human health and the environment. Examples
of such UST populations include: aging UST systems, which have a greater
chance of leaking; UST systems located near sources of drinking water or
ground water; and UST systems whose owners or operators have a history of
significant violations.

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Alternatively, some States have targeted UST-related activities, such as
installation or closure, for inspections. For example, in Rhode Island, an
inspector must be present at every UST system closure to ensure that no
releases have occurred. In San Diego County, California, the UST staff has
inspected all new IJST system installations and UST system removals since the
program was established in 1984. In these types of targeted inspections,
compliance is driven by the certainty that at least during one critical event,
all UST systems will be examined.
Alternative Inspectors . States can also supplement their basic
inspection programs by delegating certain compliance monitoring
responsibilities to other governmental entities or to private parties through
certification. A number of governmental programs, ranging from fire safety to
consumer affairs, require the presence of governmental personnel at UST system
sites. Some State and local agencies have incorporated their inspection needs
into the inspection programs of these agencies. Specifically, many agencies
rely on fire marshals or plumbing inspectors to conduct technical UST
inspections when at a facility.
Several States delegate elements of their UST inspections to private
parties. New York and Maine, for example, certify UST installers who then
must verify that UST system installations meet State requirements. Florida
has set up a licensing program for UST installers, testers, and removers.
Rhode Island certifies the tank testing procedure developed by companies
providing that service, and gives the testing company the responsibility for
approving their testers. These approaches reduce the need for the presence of
a State inspector at each UST system installation or testing event. Thus,
these States can limit their direct involvement to follow-up inspections and
possible enforcement actions if an UST system fails the test.

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! ublic Reporting .
Under the Federal requirements for adequate enforcement ( 28l.40(f)),
States must encourage the public to report violations and must provide the
public with information about reporting procedures. In addition to the
compliance outreach procedures for the regulated community described above,
States are encouraged to develop basic outreach procedures designed to reach
the general public. However, this requirement does not mandate States to
develop comprehensive outreach prc rams. Instead, procedures for encouraging
communication with the public may e as simple as providing a telephone “hot-
line” service for citizens to report observations and suspected violations.
Some States use mechanisms such as public notices, newspaper articles, press
releases, and mass mailings to inform the public about the UST program. In
particular, publicity that focuses on the State’s enforcement response to a
particular violation may draw public attention to the program. (Publicity of
enforcement actions is described in Part C of this chapter).
5 Data Maintenance .
The final State program approval regulations for adequate enforcement
( 28l.4O(g)) require States to develop procedures for maintaining the data
collected through inspections and record reviews so that the implementing
agency can monitor over time the compliance status of the regulated community.
Any such compilation of compliance data must be made available to EPA upon
request. This requirement is based on Section 9002 of Subtitle I, which
mandates the establishment of State inventories, and emphasizes the necessity
of such inventories for effective compliance monitoring.
The Agency intends to limit these requests as much as possible and will
negotiate specific reporting requirements with the States as part of the
annual State grant process.

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C. Procedures for Enforcement Response
The final State program approval regulations require State agencies to
have certain legal authorities for enforcement. The specific requirements and
guidance for these enforcement authorities were addressed in Chapter 4 on the
Attorney General’s statement. However, in order to receive program approval,
States must also demonstrate that they have enforcement response procedures
for exercising these legal authorities. The purpose of enforcement response
is to take action against violators, bring them into compliance, and deter
other violators. Although the requirements for adequate enforcement do not
provide specific details on the requirements for enforcement procedures,
§ 28l.4O(d) and (e) require that States have procedures for enforcing against
noncompliance. EPA will evaluate the adequacy of a State’s enforcement
response procedures as a whole and not based on one type of procedure.
( 281.40)
(d)
State programs must have procedures for receipt, evaluation,
retention, and investigation of records and reports required of
owners or operators and must provide for enforcement of failure
to submit these records and reports.
(e)(l)
State programs must have inspection procedures to determine,
independent of information supplied by regulated persons,
compliance with program requirements, and must provide for
enforcement of failure to comply with the program requirements.
States must maintain a program for systematic inspections of
facilities subject to regulations in a manner designed to
determine compliance or non-compliance, to verify accuracy of
information submitted by owners or operators or regulated USTs,
and to verify adequacy of methods used by. owners or operators
in developing that information.
(e)(2)
When inspections are conducted, samples taken, or other
information gathered, these procedures must be conducted
in a manner (for example, using proper “chain of custody”
procedures) that will produce evidence admissible in an
enforcement proceeding, or in court.

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States seeking program approval are not restricted to “traditional”
formal enforcement programs, but instead may prefer to use a combination of
formal and informal enforcement techniques. Formal enforcement is considered
to include any actions taken under the authority contained in a statute, such
as issuing a formal notice of violation or compliance order. In general, two
types of compliance orders can be levied: administrative orders and judicial
orders, both of which may have accompanying civil penalties. In States that
do not have administrative order authority, or where the order is not heeded
by the owner or operator, judicial orders and civil penalties typically are
sought. Informal enforcement programs include any other actions taken to
achieve compliance, such as the issuance of warning letters or undertaking
other means of encouraging voluntary compliance.
Although formal enforcement techniques are necessary for an effective
enforcement program, EPA recognizes that it may not be reasonable or
appropriate for State agencies to carry out formal enforcement responses in
all situations. States may often encounter violations that are not
significant enough to require formal orders and high penalties. In addition,
States may lack the legal staff or funds necessary to carry out such responses
in all situations. Thus, a broad range of enforcement tools may be necessary.
By having a variety of formal and informal enforcement procedures, a
State can determine which type of response is most appropriate in a particular
situation, depending upon the threat to human health or the environment, the
willingness of the violator to cooperate, or a violator’s history of
noncompliance. A State may want to develop procedures for issuing some of the
more formal orders (for example, notice of violation) as an informal response
when violations are minor and compliance is expected. For example, in cases
of minor violations, a State inspector may issue a simple warning notice or

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on-site complaint, informing the owner or operator of the requirements and
specifying actions necessary to bring the UST system(s) into compliance.
Warning notices and on-site complaints may describe potential penalties, but
States typically do not have administrative authority to assess a penalty
through such notices. However, the threat of more stringent enforcement
actions and penalties remains an important factor in the success of using
informal notices.
Examples of some informal and formal enforcement techniques that may be
appropriate for use in UST programs are discussed below.
1. Informal Means of Encouraging Voluntary Compliance .
The type of enforcement response used by a State generally will depend
upon the cooperation of the violator and the severity of the violation.
Unless a violation is significant or the violator is recalcitrant, States may
prefer to negotiate informally with the violator as a first step in obtaining
compliance. This is less resource-intensive than more formal actions and
encourages a cooperative relationship on the part of the regulated community.
Some States have developed procedures for notifying violators and
encouraging their cooperation in correcting a violation without having to
obtain compliance orders. Such notices are typically used when the violation
appears to have resulted from the violator’s unfamiliarity with the
regulations. Most of these informal notices, such as Maryland’s Warning
Notice” and Rhode Island’s “Letter of Noncompliance,” require the violator to
bring the lIST system(s) into compliance. The notice may indicate the
potential penalty if actions are not taken, but generally does not have the
force of law for imposing penalties.
A State may also take advantage of a permit program to convince
violators to remedy major violations. As mentioned previously, the

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implementing agency in any California county can threaten to revoke permits or
threaten to remove an UST system completely if major or repeated violations
occur. Other States enforce their permit requirements through commercial
vendors. In Iowa and Florida, for example, it is illegal for fuel vendors to
fill an unregistered UST system. UST programs that encourage participation of
local agencies such as fire departments may be able to employ the enforcement
authorities of that agency to encourage compliance. For example, in Baltimore
County, Maryland, the enforcement responses are tied to building permits. An
UST system found to be leaking is considered to have violated the building
permit, and the permit is subsequently revoked. Without a permit, the UST
system cannot be operated, and its contents must be pumped out until a
replacement permit is obtained (after corrective action).
For violations or releases that require cleanups, States may develop
techniques that encourage the owner or operator to take responsibility for
remedying releases. For example, Minnesota has a program that encourages
voluntary cleanup from responsible parties without having to use traditional
enforcement techniques. To provide an incentive, the State has a trust fund
that reimburses costs to responsible parties who are in compliance when a
release is discovered, as long as they cooperate with the State in achieving
an agreed-upon level of cleanup. The “hammer” for encouraging voluntary
compliance is an aggressive State cleanup and cost recovery program
supplemented by penalties for unresponsive owners and operators. Florida has
implemented a similar program that provides amnesty from cleanup costs as long
as the owners have complied with certain requirements and have been
cooperative. In addition to cost recovery programs that provide reimbursement
or amnesty to cooperative owners or operators, some States provide no-cost
oversight of corrective action if the responsible party cooperates.

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2. Formal Enforcement Responses .
For an effective program, a State must have procedures for carrying out
formal enforcement actions in certain situations. These enforcement actions
may be needed to compel compliance with regulatory requirements, to compel
corrective action, or to compel cost recovery. Formal enforcement responses
generally include authority to issue civil administrative compliance orders or
penalties. Although administrative authority is not required for program
approval, EPA encourages States to obtain such authority (including penalty
authority) as a cost-effective enforcement mechanism. In addition, judicial
authorities, which are required for program approval, will be needed to
address certain violations (e.g., a certain degree of environmental harm), and
to back up other enforcement responses if compliance has not been achieved.
For UST programs, States can undertake to make “traditional” authorities
an effective part of their UST program. For example, a State may want to
develop streamlined administrative hearing procedures for minor violations, or
to develop judicial case strategies or priorities with the Attorney General.
However, since these traditional approaches may be resource-intensive, States
may consider developing expedited formal enforcement procedures such as field
citations and other alternative means of obtaining compliance. In general,
field citations are modified administrative orders issued on site by
inspectors when violations are discovered. Using the citations, inspectors
typically assess a low to moderate penalty at the site and require that
violators correct the violation within a short time period. For States that
have the necessary statutory authority, cease-and-desist orders re also an
effective and efficient alternative to administrative orders for compelling
compliance. Such orders may require violators to cease operation of their UST
systems, may revoke the operating permit, or may require that tanks be pumped

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until empty, or closed, if necessary. These cease-and-desist orders do not
necessarily include a penalty, but are effective in reducing the environmental
threat caused by the violation. The advantage of these less formal procedures
is that they allow for tailored on-site settlement of the violation without
requiring extensive administrative resources.
3. Enforcement Outreach .
As a supplement to compliance outreach, enforcement outreach can be a
useful tool for encouraging compliance in any enforcement program. States can
encourage compliance by publicizing enforcement responses. For example, the
implementing agency could publicize violations in local or national
newspapers. Currently, some State programs use press releases of patterns of
violations to encourage marketers to assess their compliance status. For
example, Rhode Island has had considerable success in influencing compliance
efforts through adverse publicity stimulated by press releases accompanying
violations. Alabama required a violator to place a statement in the Alabama
Oilmen’s Newsletter in which he admitted that he had violated the regulations
and was taking actions to return to compliance.
If a State finds a pattern of violations among a chain of outlets of one
owner or operator, the State could require that violator to initiate a self-
auditing program in lieu of a highly-publicized, intensive State inspection.
This type of enforcement outreach has been used in numerous enforcement
settlements under the Toxic Substances Control Act, the Clean Air Act, and the
Resource Conservation and Recovery Act.

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ChAPTER 6. MEMORANDUM OF AGREEMENT
A. Explanation
The MOA specifies the roles and responsibilities of EPA and the State
after approval of the State’s program to operate in lieu of the Federal
program. The EPA Regional Office (the Region) will discuss the details of
particular components with the individual State to tailor the Agreement to the
specific needs and aspects of the State program. The MOA is a vehicle for
communicating the respective roles of the State and EPA, and clearly spelling
out the purpose and limitations of that role.
1. Who Signs .
Generally, the MOA is negotiated between the State Director and the
Regional Administrator and is drafted either by the State or the Region.
(Each Region may decide this question for itself.) In cases in which two or
more State agencies share considerable responsibilities for the functions
described in the MOA, the director of the lead agency should sign the MOA with
EPA. The lead agency may execute a Memorandum of Understanding (MOU) with the
other implementing agencies. The MOA describes the coordination and
implementation of those provisions of the MOA that concern more than one State
agency. Agreements with local units of government need not be included in the
MOA.
2. Federal/State Partnershiv .
EPA will maintain communication and provide support in order to assist
the State in achieving its program objectives. The Regional role in this
partnership includes: providing information and guidance regarding the Federal
UST regulations; communicating national and Regional priorities; providing
information on other successful State programs; and collecting information to

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assess the nation’s progress in the implementation of the underground storage
tank program. EPA must maintain reliable national data on underground storage
tanks which will be used to advise the President, the Congress, and the public
on the status of the Subtitle I UST program, and to support EPA’s regulatory
development efforts. EPA will first seek to obtain this data from the States
when it decides what information is needed.
Perhaps the most important function described above is to provide
technical guidance to the State, including information on alternative and
effective UST technologies or corrective action approaches used in other
States. The Regions will inform Headquarters of specific State needs as well.
Headquarters will assemble this information for use in updating national
program policies and priorities.
Approved States have primary responsibility for implementing and
enforcing the UST program. They will work with the Regions in determining
specific State priorities and goals on an annual basis under the grant
negotiation process. The States are responsible for collecting and reporting
information regarding the size of their UST population and compliance
monitoring data. States also will provide input to the Regions with regard to
further development of national program policy and future regulatory
development.
3. State Program ADDraisal Process .
OUST’s program appraisal process has three objectives:
• Identify the levels of performance in key program areas;
• Assist and support States in improving their
performance where needed; and
• Disseminate information on successful approaches to
other States.

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Regional offices, in particular the UST Program Managers, will have the
primary responsibility for balancing the service and evaluation functions that
are part of this process. They will use reporting information, on-site
program reviews, service visits, self appraisals by States and other tools to
determine the most pressing needs of the States for improvement and
assistance. The Regional UST program staff work with other offices within the
Region (for example, Grants, Financial Management, and Regional Counsel) to
appraise performance in relevant program areas and to provide technical, legal
and other assistance to the States. State visits and reviews by other
Regional office staff should be coordinated with UST program reviews wheneve
possible in order to minimize the disruption of normal program activities in
the States. At a minimum, UST Program Managers and the States should know of
such visits far enough in advance to allow for adequate preparation by the
States.
OUST’s program appraisal process recognizes that State programs will be
using a variety of approaches to meet the Federal program objectives.
Therefore, expectations regarding State performance negotiated under grant
workplans and cooperative agreements will be tailored as much as possible to
reflect State-specific program implementation strategies. Reporting data on
UST system ownership, releases, and clean-up action contributes to a
comprehensive picture on the implementation of the UST program. In addition,
such data may assist EPA in further rulemaking efforts. The appraisal process
will rely on quantitative as well as qualitative assessments. The Regions
will negotiate specific reporting requirements with each of their States and
incorporate those requirements into the State grant workplans and cooperative
agreements.

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4. Compliance Monitorinz and Enforcement .
State programs operate “in lieu of” the Federal government; consequently
approved States have primary enforcement responsibility in the State. When
requested, the Regions will be able to assist the States by providing legal
and technical expertise, compliance outreach, and formal enforcement of the
State’ s requirements.
The criteria for “adequate enforcement have been designed to reflect
the significant differences that may exist in the UST universe across the
States. The goals of the tJST enforcement program reflect an emphasis on
promoting compliance within the UST universe.
The MOA is an appropriate vehicle for establishing the relationship
between EPA and the State with respect to the State’s enforcement program.
The agreement provides performance expectations for the State to use as goals
for achievements. The agreement enables the Region to evaluate the success of
State enforcement programs without relying solely on more traditional measures
of performance, for example, the number of enforcement actions taken in a
given year.
5. Scope of the UST Program .
To receive program approval, a State program must include within its
jurisdiction all of the major categories of UST systems that are addressed
within the scope of the Federal program for either petroleum tanks or
hazardous substance tanks or both. While it is not encouraged, the Regions
may in a few exceptional cases, approve a State program where the State does
not have immediate jurisdiction over all categories of tanks. The Agreement
will also spell out EPA’s interim enforcement responsibilities with regard to
those unregulated segments of the IJST universe.

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6. Variances .
State programs using variances may be approved under certain conditions.
The objectives laid out in the State Program Approval Rule do not allow
approval of State programs with standards less stringent than those at the
Federal level. Ground-water area variances (for example, those that allow
less stringent release detection in remote or low groundwater table areas) are
prohibited, as well as nx other variance that affords less stringent
protection of human health and the environment. For example, the rule does
not allow approval of State programs that allow less stringent requirements
(such as less frequent release detection) in ground-water areas that are
described or classified as less vulnerable, whether these variances are
applied on a case-by-case or class basis.
A State program with a variance procedure may be approved if the State’s
eligibility criteria and procedures for reviewing site-specific or equivalent
technology-type variances requests will result in no less stringent
prevention, detection, and responses to releases. The State must not have any
provisions in its program that allow less stringent variances to be granted.
Furthermore, in the MOA, the State must agree to issue variances only in a
manner that is no less stringent than the Federal program in protecting human
health and the environment. More discussion of the general subject of
variances and EPA’s response to public comments on this aspect of the rule can
be found in the preamble to the State Program Approval Rule (53 FR 37223).
Although no State program that includes a risk-based variance procedure
can be approved (for example, a variance procedure that allows less stringent
requirements in “less risky” situations), the Agency did approve the use of
technology-based variances, and may approve State programs with such
variances. Two examples of technology-based variances may be helpful. First,

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a State that allows owners and operators to use an alternative technology
example, different release detection methods) may be no less stringent if eac&
particular method can be shown to achieve the same level of performance as the
methods allowed under the Federal program. The State may identify the
approved methods in regulation or the State may decide instead simply to make
provisions (in the form of a variance) to allow for the use of alternatives as
they are developed in the future and determined by the State to perform as
well as the Federally-allowed methods. This variance could allow the use of
any particular method in accordance with the conditions that are necessary to
ensure that the requisite level of performance of that method is attained.
A second type of variance is the site-specific variance, where the State
approves a variance from its regulations for a particular IJST system based on
site-specific circumstances. An instance in which a State could choose to.
allow such variances that would be no less stringent, for example, would be
cases where the State has determined that the nature of the soil at a
particular site or type of site is sufficiently non-corrosive, such that the
bare steel tanks or piping at that site will not leak due to corrosion during
its operating life. As stated above, the terms of agreement on how variances
will be issued by the State must be specified in the MOA.

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B. Sample Memorandum of Agreement
MEMORANDUM OF AGREEMENT
BETWEEN
The State of New Columbia
and
The United States Environni nta1 Protection Agency
Region III
I. GENERAL
This Memorandum of Agreement (hereinafter “Agreement”) establishes policies,
responsibilities, and procedures pursuant to 40 CFR 281 for the State of New
Columbia’s Underground Storage Tank Program (hereinafter “State Program”)
approved under Section 9004 of Subtitle I of the Resource Conservation and
Recovery Act (hereinafter “RCRA” or “the Act”) of 1976 (Public Law 98.616, USC
§6901 et as amended, and the United States Environmental Protection
Agency (hereinafter “EPA”) Regional office for Region III. This Agreement
further sets forth the manner in which the State and EPA will coordinate in
the State’s administration of the State program.
This Agreement is entered into by the Director [ or other title as appropriate]
of _ FState Agencvl (hereinafter NDirector or “the State”) and the
Regional Administrator, EPA Region III (hereinafter “Regional Administrator”
or “EPA”). [ Where State program responsibility is shared among two or more
agencies, each of the agencies is to be identified here as a party of the
Agreement and the Agreement must identify which of the agencies is responsible
for each provision of the Agreement.]

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OSWER Directive 9650.8
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For administrative purposes the IState Agencvl will serve as lead
agency to simplify coordination and communication between the State and EPA.
[ This provision need not be included in the MOA where there is only one
responsible State agency.]
Nothing in this Agreement shall be construed to restrict in any way EPA’s
authority to fulfill its oversight and enforcement responsibilities under
Subtitle I of RCRA. Nothing in this Agreement shall be construed to
contravene any provisior f 40 CFR Parts 280 and 281.
The parties will review the Agreement jointly at least once a year. This
Agreement may be modified upon the initiative of either party in order to
ensure consistency with State program modifications made or for other purposes
mutually agreed upon. Any revisions or modifications must be in writing and
must be signed by the State and the Regional Administrator.
This Agreement will remain in effect until such time as State program approval
is withdrawn by or is voluntarily transferred to EPA according to the criteria
and procedures established in 40 CFR Part 281.
This Agreement shall be executed by the State and the Regional Administrator
and shall become effective at the time the State’s approval takes effect,
which shall be the effective date of the approval as specified in the Federal
Resister notice announcing EPA’s final decision to grant approval to the
State.

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OSWER Directive 9650 E
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II POLICY STATEMENT
Each of the parties to this Agreement is responsible for ensuring that its
obligations under Subtitle I of RCRA are met Upon award of (interim) final
approval by EPA, the State assumes primary responsibility for implementing the
Subtitle I Underground Storage Tank Program within its boundaries. [ Insert
discussion of deadlines for State to apply for final approval, if
appropriate.] EPA retains its responsibility to ensure full and faithful
execution of the requirements of Subtitle I of RCRA, including direct
implementation in the event the State is unable to act. The State and the
Regional Administrator agree to maintain a high level of cooperation and
coordination between their respective staffs in a partnership to assure
successful and effective administration of the State program.
[ Insert discussion on Regional and State roles and responsibilities with
regard to partial approved State programs. Provide details on how the
pe vieun cr nazarc _ bsranc . ._1 . -
State.
EPA assumes a management role upon granting [ interimi final approval to the
State. EPA will review the State program in order to assist the State ir.
implementing its program, to allow EPA to report to the President, the
Congress, and the public on the achievements of the undergrour.d storage tank
program, and to encourage the State ard EPA to agree on desirable technical
support and targets for Joint efforts to • . ert a e iti ate enviror.ter.ta.
problems associated -:ith itproper management of nce:g:our.d storage tanks
Management wii te a co! ’p1ished by EPA thro_;h wri::e : e :: ing : ç_ire cns.
co .iance and erfot:errenc overview, arc. ann. aL re ’i t e St €s program

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OSWER Directive 9650 8
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III. STATE PROGRAM REVIEW
The Regional Administrator will assess the State administration and
enforcement of the underground storage tank program on a continuing basis for
stringency with Subtitle I requirements, with this Agreement, and with all
applicable Federal requirements and policies and for adequacy of enforcement
This assessment will be accomplished by EPA review of information submitted by
the State in accordance with this Agreement and annual review of State program
activities. The Regional Administrator may also consider, as part of this
regular assessment, written comments about the State’s program administration
and enforcement that are received from regulated persons, the public, and
Federal, State, and local agencies. Copies of any such comments received by
the Regional Administrator will be provided to the State.
To ensure effective program review, the State agrees to allow EPA access to
all files and other information requested by the Regional Administrator and
deemed necessary for reviewing State program administration and enforcement
Review of [ State agency] files may be scheduled at quarterly intervals.
Program review meetings between the State and the Regional Administrator or
their assignees will be scheduled at reasonable intervals not less than
annually to review specific operating procedures and schedules, to resolve
problems and to discuss mutual program concerns. These meetings will be
scheduled at least 15 days in advance unless agreed to differently. A
tentative agenda for the meeting will be prepared by EPA.

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OStJER Directive 96 5O 8
114
IV. INFORMATION SHARING
A. General
As the national underground storage tank program matures, the respective roles
and responsibilities in this State/Federal partnership will become more clear
As the respective information needs of the State and EPA evolve, changes to
this section of the Agreement may be appropriate. During the annual review of
this agreement, the State and Regional Administrator will carefully examine
the following information sharing provisions for necessary revisions.
B. EPA
1. EPA will keep the State informed of the content and
meaning of Federal statutes, regulations, guidelines,
standards, policy decisions, directives, and any other
factors that affect the State program. EPA will also
provide general technical guidance to the State. EPA
will share with the States any r.ational reports
developed by EPA from the data submitted cnrough State
reporting requirements.
2. EPA will make available to the State other relevant
information as requested that the State needs to
implement its approved program.
C. State
1. The State agrees to inform the Regional Adniinistrator
of any proposed o: adc :ed prog: m changes :1 ’at would
affect the State’s abi.ity to itplemcnz the apprcved
program P:oErar. changes of concern i’c1ud

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OSWER Directive 9650.8
115
modification of the State’s legal authorities (for
example, statutes, regulations, and judicial or
legislative actions affecting those authorities),
modifications of memoranda of agreement or
understanding with other agencies, and modifications
of resource levels (for example, available or budgeted
personnel and funds). The State recognizes that
program revisions must be made in accordance with the
provisions of 40 CFR Part 281
2. The State will provide compliance monitoring and
enforcement information to the Regional Administrator,
as specified in the annual grant guidance, on a
quarterly basis. The State agrees to provide EPA with
copies of reports on data resulting from any
compliance inspection and subsequent enforcement
actions, if EPA requests such copies.
D. National Data
EPA is responsible for maintaining reliable national data on underground
storage tanks. This data is used to report to the President, the Congress.
and the public on the achievements of the underground storage tank program and
to support EPA’s regulatory development efforts. Whenever EPA determines that
it needs to obtain certain information, ELA will first seek to obtain this
information from the States. The State agrees to supply the Regional
Administrator with this information if readily available and as resources
allow. If the State is unable to provide the information or if it is

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OSWER Directive 9650 8
116
necessary to supplement the State information, EPA may conduct a special
survey or perform information collection site visits after notifying the
State. EPA will share with the State any national reports developed by EPA as
a result of such information collection.
E. Confidentiality
Any information obtained or used in the administration of the State program
shall be available to EPA upon request without restriction. If the
information has been submitted to the State under a claim of confidentiality.
the State must submit that claim to EPA when providing the information. Any
information obtainet from a State and subject to a claim of confidentiality
will be treated in accordance with the regulations in 60 CFR Part 2.
V. COMPLIANCE MONITORING AND ENFORCEMENT
A. EPA
Nothing in this agreement shall restrict EPA’s right to inspect any
underground storage tank facility or bring enforcement action against any
person believed to be in violation of the approved State underground storage
tank program. Before conducting an inspection of a facility, the Regional
Administrator will normally give the State at least 7 days notice of the
intent to inspect. [ The Regional Administrator and State may agree on a
longer period of time in order to allow the State the opportunity to conduct
the inspection.] If the State performs a cospliance inspection and submits a
report and relevant data thereto within that time to EPA, no EPA inspection
will be made, unless the Regional Administrator deems the State report and
data to be inadequate. In case of an imminent hazard to human health or the

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OSWER Directive 9650 8
117
environment, the Regional Administrator may shorten or waive the notice
period.
The Regional Administrator may take enforcement action against any person
determined to be in violation of Subtitle I of RCRA in accordance with section
9006. EPA also retains its right to issue orders and bring actions under
Section 9003(h) or 9006 of Subtitle I of RCRA and any other applicable Federal
statute. With regard to Federal enforcement, it is EPA’s policy not to take
such action where a State has taken appropriate enforcement action. Before
issuing a compliance order under Section 9006, EPA will give notice to the
State.
B. State
The State agrees to carry out an ffective program for monitoring the
compliance by owners and operators of facilities with applicable program
requirements. As part of this program, the State will conduct compliance
inspections and use other mechanisms to assess compliance with underground
storage tank standards, compliance schedules, and all other program
requirements.
The State agrees to develop an appropriate enforcement response against all
persons in violation of underground storage tank standards (including
notification requirements), compliance schedules, and all other program
requirements, including violations detected by State compliance inspections.
The State will maintain procedures for receiving and ensuring proper
consideration of information about violations submitted by the public.

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OSWER Directive 9650 8
118
The State agrees to retain all records for at least 3 years unless there is an
enforcement action pending. In that case all records will be retained until
such action is resolved.
STATE OF __________________ U.S. ENVIRONMENTAL PROTECTION AGENCY
AGENCY ____________________ REGION
BY: ________________________ BY: —
DATE: ______________________ DATE:

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OSWER Directive 9650 8
119
CHAPTER 7. PROGRAM DESCRIPTION
A. Introduction
This section of the application describes the scope and organization of
the State UST program and the resources Chat are available to run it. This
information is needed to enhance the Agency’s and the public’s understanding
of the State program, and to ensure that a basic program exists. EPA expects
that the information requested in these questions will rarely be used as
grounds for program approval or disapproval.
The questions covered in the Program Description are grouped into five
major categories: general information; program scope; program, organization
and structure; resource information: and State funds for financial
responsibility. The first two sections request information regarding the
range of the State’s jurisdiction over USTs and whether the State program is a
“partial” or “complete” program. For example, a State may regulate an UST
universe that is broader in scope than the Federal program. (Program scope is
also covered in Chapter 4 on the Attorney General’s Statement.) These
questions also inquire about the extent of the State’s authority to regulate
Indian lands.
The third category in the Program Description as cs for information
regarding the organization and structure of any State and local implementing
agencies adn’inistering the UST program within a State. A State should
identify the major jurisdictional respc’ isibiiities, prog:EcI operation roles,
and lines of communication and authority of these i1rpi IILenting agencies. It
should also provide an organizational chart depicting the role and
responsibility of each State agency that is involved in UST implementa:ion.

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OSWER Directive 9650.8
120
The fourth and fifth sections of the Program Description ask the State
to describe its staff and funding resources with any existing restrictions on
the utilization of either. In addition, the State should provide estimates of
various administrative and implementation costs involved in running a State
UST program. Some of these questions also request information regarding a
State fund that may be used to help owners and operators to implement the
financial responsibility requirements.
The purpose of the Program Description is two-fold. First, the
information provided by the State in these sections will enhance EPA’s and the
general public’s understanding and knowledge of the content and structure of
that particular program. The overall success of a nationwide UST program
depends heavily on the sharing of such in formation among States in order that
they may draw from one another’s experiences in developing and improving their
own programs.
Second, EPA can use this information as a yardstick by which to measure
the nature and scope of future improvements made in State UST programs. The
data that the States provide in their Program Descriptions will describe an
initial Thaseline” UST program that the Agency can compare with future
programs.
B. Local Implementation
Although EPA gives States the primary responsibility to implement and
enforce their UST programs, the Agency strongly encourages States to involve
local agencies in this process. If a State chooses to involve local agencies
in the implementation of its UST program, it may do so in one of two possible
ways.

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OSWER Directive 9650 8
121
First, a State may request assistance from local agencies and allow them
to conduct activities under State authorities and requirements . In such
instances, States are not required to provide detailed discussion of local
agency implementation assistance in their applications. If the State program
has already been approved, the State can inform the EPA Regional Office of the
nature of the local involvement in its implementation and enforcement
programs. In summary, if local implementation activities supplement State
activities but do not replace State authorities and requirements, no formal
approval is required by EPA..
Second, a State develops an approvable program. Within the context of
an approvable program, the State may also permit local governments to develop
their own authorities and procedures as long as those requirements are no less
stringent than the approved State program. In thfs case, the State agency
retains the ultimate responsibility for ensuring that the IJST program
implemented in the State is no less stringent in all areas of the Federal
program and provides for adequate enforcement. In this example, EPA interacts
with the State agency regarding its approved program. It is the State’s
responsibility to interact with local governments.
Chapter 2 of this Handbook provides additional discussion of the program
revision process, as does the preamble to the State Program Approval Rule (53
FR 37329).
C. Program Description Questions
1. Gereral questions
a. Questions
1. Type of approval requested:
a. Final or Interim

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OSWER Directive 9650.8
122
b. Complete (Petroleum & Hazardous Substances)_____
or Partial (Petroleum) ___________
or Partial (Hazardous Substances) __________
2. Does the State have any existing agreements with Indian
tribes related to jurisdiction on Indian lands for
environmental programs? If so, attach agreements and
briefly describe.
b Explanation
States may ‘:hoose to apply for final or interim pprovai of a program
that regulates either petroleum or hazardous substances or both. Approval of
a partial program authorizes a State to run the program only for the specific
type of substance indicated.
The information in question 2 is necessary so that EPA can identify
Indian lands in the State that it has responsibility for. EPA does not expect
States without authorities or agreements for Indian lands to secure these
authorities and agreements in order to receive approval. Pursuant to Federal
law, EPA cannot approve a State’s assertion of jurisdiction over Indian lands
absent a clear and unambiguous expression of intent to confer State
jurisdiction through either a Federal statute or an applicable treaty with an
affected tribe. (Note that RCRA itself cannot be deemed such an expression of
intent.) In the absence of such a Federal statute or treaty, EPA has
exclusive jurisdiction over Indian lands.
2. Program Scone.
a. Questions
3. Describe the scope of the UST universe covered by the State
program. Include the estimated number of petroleum UST systems.
hazardous substance UST systems, and any other information
affecting the State’s regulation of this universe.

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OSWER Directive 9650.8
123
b. Ex ñanation
By “liST universe”, EPA means all of the categories or types of liST
systems including those not currently regulated under Subtitle I. The USTs
regulated under Subtitle I are a subset of the tanks in the UST universe.
What tanks are included in this subset, or the “scope” of the Federal liST
program, is defined by those tanks that are excluded from the program by
statute or through EPA regulations. In other words, if the type of tank in
question is not listed as one of those that is excluded, then it is within the
jurisdiction of the Federal program. Although deferred tanks are within the
jurisdiction of the Federal program, they are subject only to the requirements
of Subparts A (interim prohibition) and F (corrective action) of the Federal
Technical Standards. Exhibit 1 lists those UST systens that are outside the
scope of the Federal UST program.
In the program description, the State must describe the scope of the
State UST program and provide the information requested on the estimated size
of the universe This information does not duplicate :he çrogram scope
section required in the Attorney General’s Statement The Attorney General
certifies that the State has authority to regulate those tanks within the
scope of the State program and that it includes all those tanks regulated
under the Federal program. The program description provides a more useful
description of what the scope of the State program is in terms of its size and
categories of tanks.
In the program description, States must also identify those areas where
their UST programs are broader in scope than the Federal program. For
example, a State’s statutes and laws may cover a larger regulated UST
community (for example, heating oil tanks) than is addressed by the Federal
program, and should be clearly identified in response to Question 4.

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124
EXHIBIT 1
UST Systems Outside the
Scope of the Federal UST Universe
Exclusions
Excluded by Congress through the definitio’n of LIST
farm liSTs 1100 gallons stormwater and wastewater collection systems
heating oil USTs flow-thru process tanks
septic tank systems oil and gas production facilities
pipelines USTs In underground areas
Impoundments, pits, ponds, and lagoons
Excluded by EPA through applicab-ility section 281.10(b)
hazardous waste USTs USTs 110 gallons
wastewater treatment tanks under the Clean Water Act de minimus concentration USTs
equipment and machinery tanks emergency overflow liSTs
Deferrals
Only Interim Prohibition and Corrective Action Standards Apply
waste water treatment tanks not under the Clean Water Act
radioactive material USTs
emergency generator UST5 at nuclear power plants
airport hydrant fuel systems
field-constructed liSTs
Release Detection Standards are Deferred.
All Other Standards Apply
emergency generator USTs

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OSWER Directive 9650 8
125
3. Organization and Structure of ProEram.
a. Questions
4. Indicate the lead agency for facilitating communications between
EPA and the State. If there is a separate agency for coordinating
Trust Fund activities, indicate that here also.
5. Include a simple chart that describes the organizational
structure of the complete State underground storage tank
program, including all implementing agencies.
6. Describe the procedures for coordinating the State
implementing agencies.
b Explanation
The program description should include ar explanation of the
organization and structure of the State agencies -dth responsibility for
administering the program. •The jurisdiction a-d responsibilities of State
implementing agencies should be delineated, appropriate procedures for
coordination set forth, and one State agency designated as a “lead agenc’.” to
facilitate communications between EPA and the State. The identification of
the lead agency is intended to simplify coordination and communication between
the State and EPA. The “lead agency” will be :ne agency that other State
agencies and EPA contact when an issue cor:erns one or rr’ore State agencies or
when it is unclear which State agency sho .d be contacted concerning a
particular issue.
The organizational structure chart (see sample in Exhibit 2) should
include each agency involved in the implementation of the State UST program.
and describe the relationship and overall responsibilities of each State and
local agency that is involved in UST implementation. For example, if the
State UST program relies heavily on local programs, the State should include a
description of those organizations in questions 5 and 6.

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Sample State UST Program Organization
Health Department
•1
Fire Department
• Emergency Response
• Oversee Clean ups
Designated Lead
Agency
S Trust Fund Disbursement
Compliance Monitoring
and Enforcement
• Budget • Conduct Inspections
• Planning • Issue Compliance Orders
• Overhead • Assess Corrective Action
________ Needs
I
• Develop Legislation
• Develop Regulations
• Apply for AuthorIzation
• Health Impacts
• Exposure to Contaminants
I
1
Water Resources
Board
• Risk Assessment

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OSWER Directive 9650.8
127
All of the information requested in this section will be used to inform
the public about the State underground storage tank program. in addition,
this information will assist EPA in working with the States to implement their
UST programs.
4. Resource Information.
a. Questions
7. For each State implementing agency with responsibilities for
developing, regulating, enforcing, or administering the
underground storage tank program, please estimate the total dollar
budget and number of staff assigned to the underground storage
tank program.
8 Please provide an estimate of the administrative and implementa-
tion costs of the State’s underground storage tank program on a&
annual basis.
9. Indicate current Federal, State and local funding sources, with
approximate amounts for each. Please explain any restrictions or
limitations regarding these funding sources.
b Explanation
If a State is formally delegating authority to local agencies, the State
should include information on local resources, staffing, and budget in the
program description. States should note that local resource estimates are
not required as a condition of approval. However, if the State uses local
agencies to help implement its program and feels that a description of those
agencies is necessary for a complete understanding of the entire liST program
organization, the State may include information regarding local government
participation in response to Questions 7, 8, and 9. The resource estimates
provided in response to the questions in this section will not be judged with
any upper or lower bounds for approval or disapproval. LPA merely wants to
ensure that some funding and staffing plans exist.

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OSWER Directive 9650.8
128
Implementation costs are the direct costs incurred in developing and
implementing State programs. Some examples include the cost of conducting
inspections, writing field citations, issuing permits, reviewing tank test
results, working with the State legislature, preparing program approval
applications, and similar activities. Administrative costs, on the other
hand, include indirect program expenses such as the following examples:
developing a budget, providing clerical support, negotiating State grants and
cooperative agreements, testifying to State legislatures on program
accomplishments, maintaining supplies, etc.
5. State Funds for Financial Responsibility.
a. Questions
10. What amount of capital does the fund currently have? What
are the sources of money for the fund (for example,
registration fees, general appropriations, petroleum taxes)?
11. Does the fund cover corrective action costs? If so, in what
amounts? Does the fund cover third-party compensation costs?
If so, in what amounts?
12. Does the fund pay for costs first and then seek reimbursement?
If the fund guarantees to reimburse owners and operators, can the
fund pay for costs if the necessary actions are not taken (for
example, the owner or operator is unwilling or unable to pay)?
13. What class of UST systems does the fund cover (for example, all
UST systems in the State, only those UST systems that have paid
registration fees, only UST systems in a particular industry)?
b. Explanation
This section of the program description includes questions regarding a
State fund that may be used to help owners and operators meet the financial
responsibility requirements. State funds are not necessary elements of a
State UST program. If a State does not have a State fund to fulfill the
financial responsibility objective, then this section should be disregarded.

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OSWER Directive 9650 8
129
The above summary on the State fund is useful for both EPA and the public in
understanding the State program. Funds will be reviewed as part of the State
Program Approval Application to determine if the fund is no less stringent
than the Federal financial responsibility objective.

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OSWER Directive 9650.8
APPENDIX A
Sample Application
for Approval of State Underground Storage Tank Program

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A-i OSWER Directive 9650.8
GOVERNOR’S LETTER AND ATTORNEY GENERAL’S STATEMENT
[ Insert Governor’s letter and the Attorney General’s certification here ut that
order

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A-2 OSWER Directive 9550.8
NEW UST SYSTEMS AND NOTIFICATION
OBJECTIVE § 281.30
The State must have requirements that Cite
ensure that all new UST systems conform Regulation Statute
with the following:
(a) Be designed, constructed, and installed in
a manner that will prevent releases for their
operating life due to manufacturing defects,
structural failure, or corrosion. [ Note:
Codes of practice developed by nationally-
recognized organizations may be used to
demonstrate that the State program
requirements are no less stringent in this
area.]
S
(b) Be provided with equipment to prevent spills
and tank overfills when new tanks are in-
stalled or existing tanks are upgraded,
unless the tank does not receive more than
25 gallons at one time.
(c) All UST system owners and operators must
notify the implementing State agency of
the existence of any new UST system using
a form designated by the State agency.
Please put explanations of how State requirements
meet this objective on a separate page.

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A-3 OSWER Directive 9650.8
UPGRADING EXISTING UST SYSTEMS
OBJECTIVE § 281.31
The State must have requirements that ensure Cite
existing UST systems will be replaced or Regulation Statute
upgraded before December 22. 1998, to prevent
releases for their operating life due to
corrosion, and spills or overf ills.
Please put explanations of how State requirements
meet this objective on a separate page.

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A-4 OSWER Directive 9650.8
GENERAL OPERATING REQUIREMENTS
OBJECTIVE § 281.32
The State must have requirements that ensure Cite
all new and existing UST systems conform to Regulation Statute
the following:
(a) Prevent spills and overf ills by ensuring that
the space in the tank is sufficient to receive
the volume to be transferred and that the
transfer operation is monitored constantly;
(b) Where equipped with cathodic protection, be
operated and maintained by a person with
sufficient training and experience in prevent-
ing corrosion, and in a manner that ensures
that no releases occur during the operating
life of the UST system [ Note: Codes of practice
developed by nationally-recognized organizations
and national independent testing laboratories
may be used to demonstrate the State program
requirements are no less stringent.];
(c) Be made of or lined with materials that are
compatible with the substance stored;
(d) At the time of upgrade or repair, be
structurally sound and upgraded or repaired
in a manner that will prevent releases due
to structural failure or corrosion during
their operating lives;
(e) Have records of monitoring, testing, repairs,
and closure maintained that are sufficient
to demonstrate recent facility compliance
status, except that records demonstrating
compliance with repair and upgrading require-
ments must be maintained for the remaining
operating life of the facility. These
records must be made readily available when
requested by the implementing agency.
Please put explanations of how State requirements
meet this objective on a separate page.

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A-5 OSWER Directive 9650,8
RELEASE DETECTION
OBJECTIVE § 281.33
(a) Release detection requirements for Cite
owners and operators must consist of Regulation Statute
a method, or combination of methods,
that is:
(1) capable of detecting a release
of the regulated substance from
any portion of the UST system
that routinely contains regulated
substances -- as effectively as
any of the methods allowed under
the Federal Technical Standards
-- for as long as the UST system
is in operation. In comparing
methods, the implementing agency
shall consider the size of release
that the method can detect and
the speed and reliability with
which the release can be detected.
(2) designed, installed, calibrated,
operated and maintained so that
releases will be detected in
accordance with the capabilities
of the method;
(b) Release detection requirements must, at
a minimum, be scheduled to be applied
at all UST systems:
(1) immediately when a new UST system
is installed:
(2) on an orderly schedule that completes
a phase-in of release detection at
all existing UST systems (or their
closure) before December 22, 1993,
except that release detection for
the piping attached to any existing
UST that conveys a regulated
substance under greater than
atmospheric pressure must be
phased-in before December 22, 1990.

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A-6 OSWER Directive 9650.8
RELEASE DETECTION
(CONTINUED)
OBJECTIVE § 281.33
(c) All petroleum tanks must be sampled, tested, Cite
or checked for releases at least monthly, Regulation Statute
except that:
(1) new or upgraded tanks (that is,
tanks and piping protected from
releases due to corrosion and
equipped with both spill and overfill
prevention devices) may temporarily use
monthly inventory control (or its
equivalent) in combination with
tightness testing (or its equivalent)
conducted every 5 years for the first
10 years after the tank is install’ed
or upgraded, or until December 22,
1998, whichever is later; and
(2) existing tanks unprotected from releases
due to corrosion or without spill and
overfill prevention devices may use
monthly inventory control (or its
equivalent) in combination with annual
tightness testing (or its equivalent)
until December 22, 1998.
(d) All underground piping attached to the
tank that routinely conveys petroleum
must conform to the followir.g:
(1) if the petroleum is conveyed under greater
than atmospheric pressure:
(i) the piping must be equipped with
release detection that detects a
release within an hour by
restricting or shutting off flow
or sounding an alarm; and
(ii) the piping must have monthly
monitoring applied or annual
tightness tests conducted.
(2) if suction lines are used:
(i) tightness tests must be conducted
at least once every 3 years, unless
a monthly method of detection is
applied to this piping; or

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A-7 OSWF.R Directive 9650.8
RELEASE DETECTION
(CONTINUED)
OBJECTIVE § 281.33
Cite
Regulation Statute
(ii) the piping is designed to allow
the contents of the pipe to drain
back into the storage tank if the
suction is released and is also
designed to allow an inspector to
immediately determine the integrity
of the piping system.
(e) All UST systems storing hazardous substances
must meet the following:
(1) all existing hazardous substance UST
systems must comply with all the
requirements for petroleum UST systems
in sections 281.33(c) and (d) above, and
after December 22, 1998, they must comply
with the following subsection (e)(2).
(2) all nev hazardous substance UST systems
must use interstitial monitoring within
secondary containment of the tanks and
the attached underground piping that
conveys the regulated substance stored
in the tank, unless the owner and operator
can demonstrate to the State (or the
State otherwise determines) that another
method will detect a release of the
regulated substance as effectively as
other methods allowed under the State
program for petroleum UST systems and
that effective corrective action
technology is available for the
hazardous substance being stored that
can be used to protect human health
and the environment.
Please put explanations of how State requirements
meet this objective on a separate page.

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A-8 OSWER Directive 9650.8
RELEASE REPORTING, INVESTIGATION, AND
CONFIRMATION
OBJECTIVE § 281.34
All owners and operators must conform with Cite
the following: Regulation Statute
(a) Promptly investigate all suspected releases,
including:
(1) when unusual operating conditions,
release detection signals and environ-
mental conditions at the site suggest
a release of regulated substances may
have occurred; and
(2) when required by the implementing agency
to determine the source of a releas
having an impact in the surrounding
area; and
(b) Promptly report all confirmed underground
releases and any spills and overfills
that are not contained and cleaned up.
(c) Ensure that all owners and operators contain
and clean up unreported spills and overf ills
in a manner that will protect human health
and the environment.
Please put explanations of how State requirements
meet this objective on a separate page.

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A-9 OSWER Directive 9650.8
RELEASE RESPONSE AND CORRECTIVE ACTION
OBJECTIVE § 281.35
The State must have requirements that ensure: Cite
Regulation Statute
(a) All releases from UST systems are promptly
assessed and further releases are stopped;
(b) Actions are taken to identify, contain and
mitigate any immediate health and safety
threats that are posed by a release (such
activities include investigation and
initiation of free product removal, if
present);
(c) All releases from UST systems are
investigated to determine if there are
impacts on soil and ground water, and
any nearby surface waters. The extent
of soil and ground-water contamination
must be delineated when a potential
threat to human health and the
environment exists.
(d) All releases from TJST systems are cleaned
up through soil and ground water remediation
arid any other steps, as necessary to
protect human health and the environment;
(e) Adequate information is made available to the
State to demonstrate that corrective actions
are taken in accordance with the requirements
of (a) through (d) of this section. This
information must be submitted in a timely
manner that demonstrates its technical
adequacy to protect human health and the
environment; and
(f) In accordance with section 280.67, the State
must notify the affected public of all
confirmed releases requiring a plan for
soil and ground water remediation, and
upon request provide or make available
information to inform the interested
public of the nature of the release and the
corrective measures planned or taken.
Please put explanations of how State requirements
meet this objective on a separate page.

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A-b OSWER Directive 9650.8
OUT-OF-SERVICE UST SYSTEMS AND CLOSURE
OBJECTIVE § 281.36
The State must have requirements that ensure Cite
UST systems conform with the following: Regulation Statute
(a) All new and existing UST systems
temporarily closed must:
(1) continue to comply with general
operating requirements, release
reporting and investigation, and
release response and corrective action;
(2) continue to comply with release
detection requirements if regulated
substances are stored in the tank;
(3) be closed off to outside access; aid
(4> be permanently closed if the U T
system has not been protected from
corrosion and has not been used in
one year, unless the State approves
an extension after the owner and
operator conducts a site assessment.
(b) All tanks and piping must be cleaned and
permanently closed in a manner that
eliminates the potential for safety
hazards and future releases.
The owner or operator must notify the State
of permanent UST system closures.
The site must also be assessed to determine
if there are any present or were past
releases, and if so, release response
and corrective action requirements must
be complied with.
(c) All UST systems taken out of service before
December 22, 1988, must permanently close
in accordance with paragraph (b) of this
section when directed by the State.
Please put explanations of how State requirements
meet this objective on a separate page.

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A-Il OSWER Directive 9650.8
FINANCIAL RESPONSIBILITY FOR USTs CONTAINING
PETROLEUM
OBJECTIVE § 281.37
(a) State requirements for financial Cite
responsibility must ensure that: Regulation Statute
(1) owners and operators have $1 million
per occurrence for corrective action
and third-party claims in a timely
manner to protect human health and
the environment;
(2) owners and operators not engaged in
petroleum production, refining, and
marketing and who handle a throughput
of 10,000 gallons of petroleum per
month or less have $500,000 per .
occurrence for corrective action and
third-party claims in a timely manner to
protect human health and the environment;
(3) owners and operators of I. to 100
petroleum USTs must have an annual
aggregate of $1 million; and
(4) owners and operators of 101 or more
petroleum USTs must have an annual
aggregate of $2 million.
(b) Phase-in requirements. Financial
responsibility requirements f or petroleum
UST systems must,at a minimum, be scheduled
to be applied to all US? systems on an
orderly schedule that completes a phase-in
of the financial responsibility
requirements within 18 months (see Note 2,
page 72) after the effective date of
the Federal regulations.

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A-12 OSWER Directive 9650.8
FINANCIAL RESPONSIBILITY FOR USTs CONTAINING
PETROLEUM (CONTINUED)
OBJECTIVE § 281.37
Cite
Regulation Statute
(c) States may allow the use of a wide variety of
financial assurance mechanisms to meet this
requirement. Each financial mechanism must
meet the following criteria: be valid and
enforceable; be issued by a provider that
is qualified or licensed in the State; not
permit cancellation without allowing the
State to draw funds; ensure that funds will
only and directly be used for corrective
action and third-party liability costs;
and require that the provider notify the’ owner
or operator of any circumstance that would
impair or suspend coverage.
(d) States must require owners and operators to
maintain records and demonstrate compliance
with the State financial responsibility
requirements, and these records must be
made readily available when requested by
the implementing agency.
Please put explanations of how State requirements
meet this objective on a separate page.

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A-13 OSWER Directive 9650.8
PROGRAN SCOPE
[ Insert Program Scope discussion here

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A-14 OSW’ER Directive 9650.8
LEGAL AUTHORITIES FOR COMPLIANCE MONITORING
( 281.40)
The State must have the following Cite
specific compliance monitoring authorities Regulation Statute
(a) Any authorized representative of
the State engaged in compliance
inspections, monitoring, and testing
must have authority to obtain by request
any information from an owner or operator
with respect to the UST system(s) that is
necessary to determine compliance with
the regulations.
(b) Any authorize representative of the State
must have authority to te . uire an owner or
operator to conduct monitoring or testin
(c) Authorized representatives must have the
authority to enter any site or premises subject
to UST system regulations or in which records
relevant to the operation of the UST system(s)
are kept, and to copy these records, obtain
samples of regulated substances, and inspect or
conduct the monitoring or testing of UST
system(s).
Please put explanations of how State authorities meet
these requirements on a separate sheet of paper.

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A-15 OSWER Directive 9650.8
LEGAL AUTHORITIES FOR ENFORCEMENT RESPONSE
( 281.41)
The State must have the following specific Cite
enforcement response authorities for State Regulation Statute
program approval:
(a) Any State agency administering a program must
have the authority to implement the following
remedies for violations of State program
requirements:
(1) To restrain immediately and effectively
any person by order or by suit in State
court from engaging in any unauthorized
activity that is endangering or causing
damage to public health or the environment;
(2) To sue in courts of competent jurisdiction
to enjoin any threatened or continuing
violation of any program requirement;
(3) To assess or sue to recover in court
civil penalties as follows:
(i) Civil penalties for failure to
notify or for submitting false
information pursuant to tank
notification requirements must be
capable of being assessed up to
$5,000 or more per violation.
(ii) Civil penalties for failure to
comply with any State requirements
or standards for existing or new
tank systems must be capable of
being assessed for each instance
of violation, up to $5,000 or more
for each tank for each day of
violation. If the violation is
continuous, civil penalties shall
capable of being assessed up to
$5,000 or more for each day
of violation.
Please put explanations of how State authorities meet
these requirements on a separate sheet of paper.

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A-16 OSWER Directive 9650.8
PUBLIC PARTICIPATION IN ENFORCEMENT
PROCEEDINGS
( 281.42)
Any State administering a program must Cite
provide for public participation in Regulation Statute
the State enforcement process by providing
any one of the following three options:
(a) Authority that allows intervention analogous
to Federal Rule 24(a)(2), and assurance by
the appropriate State enforcement agency that
it will not oppose intervention under the State
analogue to Rule 24(a)(2) on the ground that
the applicant’s interest is adequately
represented by the State.
(b) Authority that allows intervention as of, right
in any civil action to obtain the remedies
specified in 281.41 by any citizen having an
interest that is or may be adversely affected; or
(c) Assurance by the appropriate State agency that:
(1) It will provide notice and opportunity
for public coent on all proposed
settlements of civil enforcement actions
(except where Immediate action is
necessary to adequately protect human
health and the environment);
(2) It will investigate and provide responses
to citizen complaints about violations; and
(3) It will not oppose citizen intervention
when permissive intervention is allowed
by statute, rule, or regulation.
Please put explanations of how State authorities meet
these requirements on a separate sheet of paper.

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A-l7 OSWER Directive 65O.8
DEMONSTRATION OF PROCEDURES FOR ADEQUATE ENFORCEMENT
I. COMPLIANCE MONITORING
A. Purpose
The implementing agency must have compliance monitoring procedures for
collecting and maintaining data on violators and monitoring their and the
rest of the regulated community’s compliance status over tLme
Specifically, States must develop procedures in each of the following four
areas: record review; inspections; public reporting; and data maintenance
B. Explanation

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A-18 OSWER Directive 9650.8
II. ENFORCEMENT RESPONSE
A. Purpose
The implementing agency must have procedures to exercise legal
enforcement authorities against violators, bring them into compliance,
and deter other potential violators.
B. Explanation

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A-19 OSWER Directive 9650 8
PROGRAM DESCRIPTION
General
1. Type of approval requested:
(check one) (check one)
Interim _____ Complete
Final Partial (Petroleum) _____
Partial (Hazardous Substances)
2 Does the State have any exi ing agreements with Indian tribes? I so.
attach agreements and brief describe.

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A-20 OSWER Directive 9650.8
Program Scope
3. Describe the UST universe covered by the State program Include the
estimated number of petroleum UST systems, hazardous substance liST
systems, and any other information affecting the State’s regulation of
this universe.
Organization and Structure of State Program
4 Indicate the lead agency for facilitating communications between EPA and
the State. If there is a separate agency for coordinating Trust Fund
activities, indicate that here also.
5 Include a simple chart that describes the organizational structure of
the complete State underground storage tank program, including all
implementing agencies.

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A-21 OSWER Directive 9650.8
6 Describe the procedures for coordinating the State implementing
agencies.
Resource Information
7. For each State implementing agency with responsibilities for developing,
regulating, enforcing, or administering the underground storage tank
program, please estimate the total dollar budget and number of staff
assigned to the underground storage tank program

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A-22 OSWER Directive 9650.8
8. Please provide an estimate of the administrative and implementation
costs of the State’s underground storage tank program on an annual
basis.
9. Indicate current Federal, State, and local funding sources, with
approximate amounts for each Please explain any restrictions or
limitations regarding these funding sources
State Funds for Financial Responsibility
10 What amount of capital does the fund currently have? What are the
sources of money for the fund (for example, registration fees, general
appropriations, petroleum taxes)?
11. Does the fund cover corrective action costs 7 If so, in what amounts?
Does the fund cover third-party compensation costs? If so, in what
amounts?

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A-23 OSWER Directive 9650.8
12. Does the fund pay for costs first and then seek reimbursement? If the
fund guarantees to reimburse owners and operators, can the fund pay for
costs if the necessary actions are not taken (for example, the owner or
operator is unwilling or unable to pay)?
13 What class of UST systems does the fund cover (for example, all UST
systems in the State, only those UST systems that have paLd registra 1oL
fees, only UST systems in a particular industry)?

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APPENDIX B
Federal Subtitle I Program
OSWER Directive 9650.8

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8-1 OSWEB. Directive 9650.8
RCRA Subtitle I

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RESOURCE RECOVERY ACT
s - i ,- ’
1 3163
Subtitle 1—Regulation of Underground Storage Tanks
ISublitte I Sections 9001 throu2h 9010 .idded b P1 98-
6161
“D TNTTIOt S AND D(P11ONS
‘Sec 9001 For the purpose. of this subtitle—
11) The term underground storage tank’ means any one or
combination of tanks includang underground pipes connected
thereto) which is used to contain an accumulation of regulated
substances, and the volume of which including the volume of
the underground pipes connected thereto) is 10 per centum or
more beneath the surface of the ground Such term does not
include any—
(A) farm or restdental tank of 1.100 gallons or less
capacity used for storing motor fuel for noncommercial
purposes.
“(B) tank used for storing heating oil for consumptive use
on the premise. where stored.
“ (C) septic’ tank.
“ID) pipeline facthty including gathering lines) regulated
i an er ii) the Natural Gas PtpeLne Safety Act of :96S 49
USC App 1671. etseqi.
lu) the Hazardous Liquid P ’peltne Safety Act of 19 ’ 9
(49 U SC App 0’) et seq ). or
‘(ui) which u an u t-aszae pipeline iac ty regulated
tinder State laws comparable to the pro isi, rJ of law
referred to in iau.se ii or •u of this suboe.rlgrapn.
El surface impour.drt ’ient p:t, oond. or agoon,
F’istorrn water or waste ‘ E.er :ol:ettton system
G) flow-through process ar..k.
‘HI liquid trap r’ ssoc’ste 3ther.ng ines d revt y
related to oil or gas pr - ’_ . on an gather-og opers: on.s. or
‘ID storage tank situatso n an unne ground area s ii
as a basement. cetlar trtewo k ing. drt t shaft tunreit
if the storage tan.x is situa’.ed apon or above the su’face of
the floor
The term ‘underground storage shall not induce any
pipes connected to any tank whico a deact-bed in 3et pax-a.
graphs (A) through 1)
12) The term ‘reçilated substance means—
“(A) any substance de0neci in ection ‘)1i14) ot toe Com—
prehec.si e Envirunmenta Response. C noenaattocz. a..- d
Liability Act of 1980 bt.t ooc LnclI..dixtg any
regulated as a iazardous waste under subtitle C and
tB) petroleum
‘( 1) 0 1 13 r,, S Pt
“i3) The term ‘owner means—
“(A) in the case of ar .Lnderground storage tans in ae OF,
the date of enactment of :t’e Hazardous and Solic Wesr,p
-kmendments c 1984. or b-ought into use after ‘ at dais.
any person who owns an underground storage tan ‘.ised for
the storage, use, or dis,ensu,g of regulated sustau . od
13) in the se of any underground storage tank in
before the date of enactoteoc of the Hazardous and Solid
Waste Amendments of 1984. but no longer in use on the
date of enactment of such Amendments, any person whc
owned such tank immediately before the discontinuation of
its use.
“(4 The term operator’ means any person in control of. or
having responsibuity for, the daily operation of the under.
ground storage tank.
15) The term release’ mesas any spilling, leaking, emitting.
discharg ng, escaping, leaching, or disposing from an under.
ground storage tank into ground water, surfam water or subsur’
face soils.
“(6) The term ‘person’ has the same meaning as provided in
section 1004L.15) eacept that such term includes a consortium, a
joint venture, and a ccrnsnercial entity, and the United States
Government.
“(7) The term roiioperational storage t.ank’ mean.. any under-
ground storage tank in which regulated substances will not be
deposited or from which regulated substances will not be dis-
pensed after the date of the enactment of the Hazardous and
SoLid Waste Amendments of 1984.
‘ I ) Tho tcrnl peirLIcurn meJn% petr ii uin. in Iuding
rude oil iw in’ tr,ictiun th rcijl “ h’.h i li 4 uid ii
‘Liflijird undiuon ul t mNr.1ture .ir rc ur IblI
Ucurec s Fjhr nhi’it md 4 puund’. rc- ‘i, u.Ir , rii.j
(4001 .,ddcd bt Pt 99.4’ I
“ I7tWTCAt1ON
“StE 9002 (a) U racaoL’ND S -mLace Ts.,vu —J ii W-thin 1:
months after the date of enactment of the Hazardous and Solid
Waste Amendments ot 1984. each owner of in underground storage
tank shall notify thr State or local agency or oepar.rnent uesu, na
pursuant t,, subsection bit) of the existence of such tank specifyuig
the age. size, type location, and uses of such tank.
“(2 Al For each underground storage tank taken out of Deratiori
after january 1, 1974, the owner of such tank ha.1l within i tteen
month.. a.ier the date of enactment of the Hazardous sr.d Solid
Waste Amendments of 1984, notify the State or local agency or
department designated pursuant to subsection o II of the existence
of s..ch & ‘1cs “injees the owner knows the tank subeequentiy -was
removed ‘I’Otfl the ground) The owner of a tank ta. en OW. Of
ooeratton on or before January 1. 1974. shaU oot be requirso to
otify t’ie oLna or local agency under this subsection
‘B) “oti under subp-zg-raph Al shail specify, to ‘he ezu’nt
to the owner—
‘‘ithe dare the rank was taken out of opeation.
u the age of the tank on the date taken out of operm’
size type and location of the tank, and
“vi the vpe and 4uantitY of substances left stored in such
tank c”t t 1 ’le date taken out o(-’teratton
“3t owner Nruch ‘or’.ng, -tto use an underg”ound storage
tarik i:t ‘. rut a -iotifcat’on period specifed ur’ler paracrapn
s’r,ai -ot.fy designatecs State or local agency o” oeoar merit
within .‘iirt; dovi of the existence of such tank, spectfrrg the age
s .,te, ‘ ‘o -ocaton a”d uses of such tan,
- . ?ir c”oo ts ‘ throu 3) of this cubsecton sham! not snol” ‘o
‘anks ‘ o” “i’C i ‘ce ‘10 ‘ -! ‘ oursuant to eecion ‘.1’! c’ jf
C C 5t’ Ec : ‘“- ‘ F’e oorrse. Cooopecsation ard L.abil
ity Act cf . SU
5- 3ei ’torung thirty ua s after the Administrator prescr ’bea the
of ‘iottce ouramczc to subsection b’2) and or eighteen months
tl’ierea.fter art-’ per ,n w ’i ‘iou.oeits regulated substances .n an
. icdergroLnd storage tank s.-iaiL reasonanly notify the owner r
operator of su.o tank of .ne owner a notification requirements
pursiisnc t.o this su ect.on
‘5 e nrtt-ig aa s after the °4rzsinstrator issues new
tank performance stancdrlis pursuant to section t ’I)u3IeI of this
:uot lt!e. &‘ii person who sells a tank intended to be used as an
ur’cergo-,u”td storage tank shah noctfy the purc)’aser of such tank of
the owner s norification requirement. pursuant to this subsection
‘ibi AGa:;c’f DeSIGNATION —1) Wtthi one hundred and eighty
days alter the enactment of the Hacardous and Solid Waste Amend-
ments of 1984. the Governor, of each State.,shall designate the
appropriate State agency or department or local agencies or depart-
merits to rece.ve the notifications under subsection a l (11. ‘2), or 131
‘(2J W thin ?wejve months after the date of enactment of the
Hazardous itnd Solid Waste Amendments of 1984. the Administra ’
tar, ux consultation with State and local officials designated pursu’
ant o su’ ectiori (bi 1). arid after notice and opportunity “or oublic
com.’ne -. nall rescnbe the form of the notice and the information
to be included in the notifications under subsection al I II. 2), or 3)
In prescribing the torm of such notice, the Administrator shall take
11-28-86
PuoI.sried by THE BUREAU OF NATIONAL AFFAIRS ‘NC Wasnng on DC 20037
17

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71 3164
into sceOW the effect 00 small b s d ,her
opera iOrL
‘(c) State Insefltofles — Each State shall make 2
5 eparate insentoric ’ of all underground storage Links in
such State ntm reguI 1t d substances One in en-
tort 5 halI be nude with respect to petroleum and
one with respect to other regulated substances In mak-
ing 5 uch ifl flti.” ’ th State shall utilize and a gre-
gate the dat.i in n0til1 itI J forms submittec pursu-
, nt io ,ub’ectlL ns a) and I bi ol this section Each State
5 hjll submit suLh .i rce ,ited data to the \dmin’strator
not l.iter th.ifl das .itter the enactment 01 the
Superlund \mendnients and Reauthorization \ct 01’
19O02( .J added b PL 99-499J
“RELEASE OrrECTiON, pRIv ’flON. A D CORRECTION R ULATION3
On3l .t(.t and i amended b% PL 99-499J
5) requirements for the closure of tanks to prevent future
releases of regulated substances into the environment; and
“U ) requirements br maintaining evidence of tinan-
ial responsibulits ‘or taking corrective action and corn-
pensating third parties br bodul injur and property
damage a cd bs sudden and nonsudden accidental
releases arising ircin operating an underground storage
tank
j 9 003ciIt’) added b% PL 99-4991
“(d) FINANCIAl. REspoNslslu ’rY.—
“(I) Financial responsibility required b this siibse
lion ma be established in accordance with regulations
promulgated b the Administrator b> an one, or an
combination, of the following insurance, guarantee,
suret) bond, letter of credit, qualification as a self-
insurer or jn other method satisl’aetor to the \diiiinis.
trawr In promulgating requirements under this subsec-
lion ihe \dministrator is authorized to speubs Olk.\ ‘r
other contractual terms. conditions, or defenses which
arc neeessar% or are unacceptable in establishine such
e idence of tinancial responsibility in order to eIl ’ei ,tu.tte
the purposes of this subtitle
IFormer 9003(d)(2) amended and redesieriated js I)
b PL 99-4991
“ 2) In an case where the owner or operator is ii
bankruptcy. reorganization, or arrangement pursuant to
the Federal Bankruptc Code or-where with rcason,ible
diligence jurisdiction in an% State court of the Federal
Courts cannot be obtained over an owner or iiper.itor
likcl to be solvent at the time of judgment .ifl 5 dairn
arising from conduct for which esidence ol Iinan..ial
responsibilit must be provided under this subsection
ma be asserted directls a2ainst the guarantor pr. iding
such esidence of financial responsibilit In the La e ot
an action pursuant to this paragraph such guarantor
shall be entitled to insoke all rights and defenses w hi ’
would have been available to the owner or operator
an action had been brought against the owner o
operator by the claimant and which would hasc been
available to the guarantor if an action had been brought
against the guarantor b the owner or operator
“(31 The total liabiliR of an guarantor shill be
limited to the aggregate amount which the guarantor
has prosided as evidence of financial responsibilii’ to the
owner or operator under this section \othing in this
subsection shall be construed to limit an other State or
Federal statutor . contractual or common law liabilit ol
a guarantor to its owner or operator including, but not
limited to. the liability of such guarantor for bad latch
either in negotiating or in failing to negotiate the settle-
ment of any claim \othing in this subsection shall be
construed to diminish the liabilit} of any person under
section 107 or Ill of the Comprehensi e Enuronmenul
Response. Compensation and Liability \ct 0) ll4t O or
other applicable law
“(4), For the purpose of this subsection, the term
‘guarantor’ means an person, other than the owner or
operator. who pros ides esidence of financial responsibil-
ity for an owner or operator under this subsection
“(S)(A) The Administrator, in promulgating flnancial
responsibilit , regulations under this section, mas estab-
FEDERAL LAWS
“SEC 9003 :ai REGtTLATTONS —The Administrator, after notice and
opportunity for public comment, and at least three months before
the effective dates specified to subsection fl. shall promulgate re-
lease detection, prevention, and correction regulations applicaole to
all owners arid operatori of underground storage aniu. as may be
necessary to protect human health and the env ronrnerit,
“ibi Dts’r iNc’rsoNs : i Rtcut.*rtoivs —In prornulgatu’.g regulations
under this section, the Administrator may disting’.ash between
types. classes. and ages of uneerground storage ta.nas In making
such distinctions, the Administrator may take Into :orisideration
factors ncluding, but not limited to location of the tanks, sod and
clirna:e concitions. uses of :he tanks, history of maintenance, age of
the tanks, current industry recnmmended practices, national con-
se us codes, hydrogeology. water table, size of the tanks. quantity
ot regulated substances periodically deposited in or dispensed from
the tank, the tachnicai capability of the owners and aperators. and
the compatibility or’ the regulated substance and the matenals of
which the tank is fabricated
“IC) Rrqti iIrML.rrs —The regulations promulgated pursuant to
this section shall include, but need riot be limited to. the following
requirements respectirg all underground storage tanks—
‘ill requirements for maintaining a leak detect on system, an
inventory control s>stem together with tank testing, or a com-
parable stem r method designed to identify releases in a
manner consistent with the protection of human health and the
environment.
‘2, requirements for maintaining records of any mnonitonng
or leak detection 3 stem or inventory control system or tank
testing or comparable system,
‘i3) requirements for reporting of releases and correcttve
action taken in response to a release from an underground
storage tank.
‘141 requirements for taking corrective action in response to a
release from an underground storage tank;
Enwronment Reporter
118

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RESOURCE RECOVERY ACT
lush an amount of coverage for particular classes or
categories of underground storage tanks containing pe-
troleum hich shall satisf ’ such regulations and which
h ll not be less than SL000 .000 for each occurrence
uth an appropriate aggregate requirement
B) The \dmini trator mj set amount’ Io ier than
the amounts required b ubparagra ih ( l of ihi para-
graph for underground tOr .i e tan’s ’ COntJinIn petrole-
urn hich are at la ilitk not :ngagcd in petroleum
production. retinin or m . rKeting and nich are not
u cd to handle ub tanti.iI . uantitic of petroleum
In o cablishing Li e and ategorie’ for pur-
pose’ of thus paragraph the \dministrator mas consider
the lollos ing iacior
“(if The si,’e. t pc. locaton toraee and andlIn2
Lap.itIt of underground wragc tanks n t!’e class or
aLegor and the oumc of petroleum handled b such
t ’ nk
• lii) The likelihood of release and the po:ental extent
ol damage from •in rclea e from urderground storage
inks in the cla or catceor’
(riut The economic •mpuc: ,ai rh :r,i: on the o ners
a ’d operator’ iejeh su h or . :caors p ir.. ulark
to :he maIl bu ine s egrnent c 1 ‘e tnoleuin
rn ’rkcting nJu tr
The j jilabilits or methods of r.i.1r la e’ponsi.
bilit in amounts greater than the amount establ hed bs
th paragraph
Such otner lactoN .i , the •\dminiszrutor deems
crtineit
tDt T)’e \dmiri ,trator na suspefld ciforcement o’
1c nanc’al resoonsibiiiL requirernent for a particular
cas or :aiegor - of underground stor3g :a or a
tc lar State. if the dmvistrator makes a deerrri-
flation iha methods cf rlnancal espo i iiit otIsf%ira
‘e -.:i iiirements f t’ic UNec;Ofl oi erer !.
a:1abie or urdc raund torigc :anks ii’ ti-at c ss or
caegor ’. and —
iii steps are betn taker to form a risk nerenlion
-our or such class of :artks or
i .i) such State is tak r. steps to cstablish a fund
ur oant to seCtion 9004(cH I I of this \ t tO D c ubmt-
ted a, e idence of hnancial respcnsubiIit
\ suspension bs the \dministrator pursuant to this
paragraph shall extend for a period not to etceed ISO
dasa A determination to suspend may be made with
respect to the same class or category or for the same
State at the end of such period, but only if substantial
progress has been made in establishing a risk retention
eroup. or the owners or operators in the class or category
Qemonstrate. and the Administrator finds. that the for-
mation of such a group is not possible and that the State
is unable or unwilling to establish such a fund pursuant
to clause (ii)
(9OO3(dI ( ) added b’ PL 99.499J
S-74
71 3165
“Ce) Ntw T*rix PLIt,OiIMANCZ STANDAJICI —The Adm
shall. not later h n three months pnor to the effective date speci-
fled in subsection (0. issue performance standards for undergTound
storage tanks brought into use on or after the effective date of such
standards The performance standards for new underground storage
tanks shaLl uiclude. but need not be limited to. design, construction,
installation, release detection- and compatibdity standards
(f) Eyytc’rzve D*i’ss —‘1) Regulations issued pursuant to subeec-
tion ( C l and (di of this section. and standards issued pursuant to
subsection (ei of this section. for underground storage tanks contain-
ing regulated substances de”ined in section 9001’25B) ‘petroleum,
including crude oil or any fraction thereof which is liquid at stand-
ard condjtions of temperature and pressure’ shall be etTec:ive not
later than thirty months after the date of enactment of the Hazard-
ous and Solid Waste Amendments of 1984
“12) Standards issued pursuant to subsection el of thas section
(entitled 4ew Tank Performance Standards) for underground
Storage tanks containing regulated substances defined in sect:o,
90Ol(2 A) shall be effecttve not later than thlt -5L months after
the date of enactment of the Hazazdous and Soi d Wa Aena-
ients of 198- I
13) Regulations issued oursuant to subsectori c of ti’L 5 Sect’:l
‘entitled Requirements) anc starida.ros .ssued pura..aa.nc to : -sec
tion d) of this section entitled F nanc.a Resoor.si ui,t :r
derground stors e tanks ontaiiir.g reç_ aed substances de i -c
section 9OO1i2 A, shall be etTect ,se not ‘ater t’ian Iortv-eii-’t — - ‘-.s
aiter the date of enactrte- t of the Hsza-oou.s ana 5. , .
Amendments of 1984
‘gi I ”fltR:M PRoxIs:rcs — ) !.r:.i “-‘ “ee d3:e
staroards promulgatea : e ln.stat r arCe Su c:-
and Biter cne nundreo inc e ’g tt :a s 3 er - tate - c13 t
mene of th.e Hazardous arc So d Waste e ’ c—’en .a if • 4
p. rson -nay install an anoergroi.nd szcr-a e t irn or ‘e :Lrs se
storing regulated subst. r.ces unless such .an’s wnether of irig
doubie wall construction —
1A) will pre%ent releases due to corrosion c stractar%j 1-
‘are for the operational life of the ar ’c
‘ B) is cathodicaii protected a atrst :,r—os’on ctr —. .te ii
noncorrosi’ .e materal, steel c Isc —.:n a ‘cricar-cai-e
or designed ui a manre’ to --e%ent the -elease ar : --- -
-elease of any stored substa -ce and
IC ) the aterta1 _s ri tne cc 3t”iction or ILflL -
tank a cornpac.oie w th e suastanc oe tored
‘2) Notwthsta.noirg oara spri I so l tests cor —
accordance .with ASTM tL—cta-d G57- :r a e Lter stan,-’
proved by the Admin ,strat r snow that sci’ -esist - ‘ c in a:
!ocataon :2.000 cr -flo - a — .ess a -itore i:’- —.iv-:
standard is prascnbed by the Administrator av —alei a stcra - ‘a
without cor1 ion protectiuri may be instai ed n : : .uc -i n
during the period referTed toinparagrapoti)
th) EP\ Response P- gra -— icr l et’o,curr —
( OO3(h) addec bs 99.aQ )]
1 Before regulations — Be:ore the etfecti e date
of regulat on under subsection (ci the \dmIni?tr :or
(or a State pursuant to paragraph t ’i) is authcr’icd
to—
“(A) require the owner or operator of an underground
storage tank to undertake correctise action with re’ n’ect
to an% release of petroleum when the Adminstr ’:jr (or
the State) determines that such corrective action Ii be
done propcrl) and promptly by the owner or operator at
the underground storage tank from which the rdejse
occurs, or
“(B) undertake corrective action with respect to ins
Published Dy THE BUREAU OF NATIONAL AFFAIRS INC Washin ton 0 C 20037
iTS

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71 3166
FEDERAL LAWS
release of petroleum unto the environment from in Un.
derground storage tank if such action is necessar). in the
judgment of the Administrator (or the State). to protect
human health and the environment
The currecti e action undertaken or required under this
para rnph shall be such as ma be necessar’ to protect
humdn health and the ens ironment The Administrator
shall use funds in the Leaking Lnderground Storage
Tank Trust Fund for payment of costs incurred for
Corrective action under subparagraph tB). enforcement
action under subpara rar’h ( \). and cost recoser ) under
p.iragraph (6) of this subsection Subject to the priorit>
requirements of paragraph (3). the dministrator (or
the State) sh lI gise priorit) in undertaking such actions
under subparagraph (B) to eases where the Admunistra.
br (or the State) cannot identity a solvent owner or
operator of the tank who will undertake action properly
I2 Alter regulations —Following the effective date of
rciu 1 .ttions under subsection (c). all actiorm or orders of
the \dmunistrator (or a State pursuant to paragraph
(7) ) ckscribed in paragraph I of this subsection shall
be in intormit with such regulations Following such
eircctise date, the Administrator (or the State) may
undertake correctise action with respect to an% release of
petroleum into the entironment from an underground
storage tank onR if such action is necessary. in the
judgment ol the Administrator or the State). to protect
human he.ilth and the en ironment and one or more of
the following situations C lsts
• ( \) \o person can be found, within 90 dabs or such
shorter period as ma be necessary to protect human
health and the environment, who is—
ii) an owner or operator of the tank concerned.
‘ (ii) subject to such correctise action regulations. and
“1 iii) capable 01 carr%ing out such correctise action
properl
‘(B) A situation exists which requires prompt action
h the \dministrator (Or the State) under this para-
raph iu protect human health and the environment
‘i( 1 (orrecti e action COsts at a facilit exceed the
.tmount oI coserage required b the Administrator pur.
su.int to the pros isions of subsections (c) and (d)(5) of
ihis e tion and, considering the class or category of
underground storage tank from which the release oc-
urrcd e penditurcs from the Leaking Underground
toraec Tank Trust Fund are necessary to assure an
etleetise correcti e action
‘ID) The owner or operator of the tank has failed or
relused to conipl with .in order of the Administrator
under this subs tion or section 9006 or with the order of
a St,ite under this subsection to comply with the correc-
iRe action reuulations
t ) Priorii 01 corrective actions —The Adminustra-
tor (or a State pursuant to paragraph I’ )) shjl) ise
priorit in undertaking correetise actions under this
sUb sC ctiOfl, and in issUing orders requiring owners or
Operators to underiak such actions to rele.ises ol petro.
leuni lrom undereround storage tanks which pOse the
rc.Iicst thre.it to human health and the ens ironment
“I 4) ( urrectisc .uc1u fl orders —The \dniinistr,it ir s
.u thuri ed to issuC or cr to the ow ncr or Operator ot .
underground storage tank to Carry out subparagraph i i
p,tragraph (I) ,r to c.Irry out rc uLitions issued und r
subsection )s)( 4 ) \ ‘SiatC .ictifl pursuant to r ir gr.iph
) o) this sU bseci urn u a u I horiied to c.i rry out ‘u bpa r.-
graph ( \) ot paragr.iph II onk until the Stale rro-
gram is a pprss ed bs the ii ‘ni fist ra tor under SCLt ii fl
of this subi,tle such .irders shall be issued .ind
enforced in the s,uiflc tilanner and subject to the s. n e
requirements as order under section 901)b
(5) Allowable orrcctise actions —The c rrec1i e
Lions undertaken b ftc \dminustr itor (or a St itc r L rsu.
.int to paragraph I — Li under paragraph I ) or 2 i ii i ’
include tempo ir ,r pirmanent relocation uui rc’ dLr.iS
and alternatis e househuild water supplies In conncui. fl
with the perform.ince of any eurrectise . t. ’fl u i r
par raph (I) or (2) the dministr.itur may und rt.L
an exposure assessment js defined in paragraph i
tftus subsection or pros ide for such an .issessmcnt in
cooperatRe agreement with a State pursuant to para-
eraph )7) of this su bsection The cOsts Ot .Lfl UCh
asscssfllcfli ma be treated Js correctise action or pur-
poses of paragraph (6) relating to cost recu’er\
“(6) Recovery of Costs —
“( \) In general — V henever Costs have been incurred
by the Administrator, or by a State pursuant to para-
graph (7). for undertaking corrective action or eniorce.
ment action with respect to the release of petroleum
from ,in undergrut nd storage tank, the owner or opera-
tor of such tank shall be liable to the - dmmnistr.itor or
the State for such COStS The liability under this para-
graph shall be construed to be the standard of’ liabilit
which obtains under section 311 of the Federal V ater
Pollution Control Act
“(B) Recover) — In determining the equities t’or
seeking the recovery of COStS under subparagraph ( \).
the Administrator (or a State pursuant to paragraph
of thus subsection) may consider the amount of linanci.ml
responsibility required to be maintained under subsec-
Lions (c) and (d)(5) of this section and the factors
considered in establishing such amount under subsection
(d)(5)
“(C) Effect on liability —
“ti \o transfers of liability — \o undemniticatiun
hold harmless, or similar agreement or conveyance shall
be effective to transfer from the owner or operator iii
Env ronmenI Repo’ eer
120

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RESOURCE RECOVERY ACT
S—774
71 3167
n underground storage tank or from an person who
na be liable for a release or threat of release under this
subsection, to an other person the liJbilit ) imposed
under this subsection Nothing in this subsection shall
bar an agreement to insure, hold harmlc ’s. or indemni-
a parts to such agreement for any liabilit) under this
section
(it) \ti bar to cause. of action — \othing in this
subsection, including the pro isIofls of clause 1i Ut this
‘ubparagraph. shall bar a cause of’ action that an owner
or operator or an other person subject to liabilit) under
this section, or a guarantor has or would have. b) reason
of’ subrogation or otherwise against an person
“(D) Facilit) — For purposes f this paragraph. the
term ‘facilit)’ means. with respect to an) owner or
operator. ,jll underground storage tanks used for the
storage of petroleum which are owned or operated by
such owner or operator and located on a single parcel of
propert) (or on an) contiguous or adjacent propert))
“(7) State authorities —
“( \) General — ‘ State ma exercise the authorities
in paragraphs (I) and (2) of this subsection, subject to
the terms and conditions of paragraphs (3), (5). (9),
(10). and (II). and including the authorities of para-
graphs (4), (6). and (8) of this subsection if—
“(i) the Administrator determines that the State has
the capabilities to carr) out effective corrective actions
and enforcement activities, and
“(ii) the Administrator enters into a cooperative agree-
iient with the State setting out the actions to be under-
taken b the State
The Administrator may provide funds from the Leaking
Underground Storage Tank Trust Fund for the reason-
able costs of the State’s actions under the cooperative
agreement
“( B) Cost share — Following the effective date of the
regulations under subsection (c) of this section, the State
shall pay lOper centum of the cost of corrective actions
undertaken either by the Administrator or by the State
under a cooperative agreement, except that the Adminis-
trator may take corrective action at a facility where
immediate action is necessary to respond to an imminent
and substantial endangerment to’ human health or the
environment if the State fails to pay the cost share.
“(8) Emergenc) procurement powers. — Notwith-
standing any other provision of law, the Administrator
may authorize the use of such emergency procurement
powers as he deems necessary.
“(9) Definition of owner — As used in this subsection,
the term ‘owner’ does not include any person who.
without participating in the management of an under.
ground storage tank and otherwise not engaged in petro-
leum production. refining, and marketing, holds indicia
of ownership primaril to protect the owner s ccurit
interest in the tank
‘(10) Detinition of exposure assessment — As used in
this subsection. the term ‘exposure assessment’ means an
assessment to determine the extent of exposure of, or
potential for exposure of. individuals to petroleum from
a release from an underground storage tank based on
such factors as the nature and extent of contamination
and the existence of or potential for puthwa s of’ human
exposure (including ground or surface water contamina-
tion, air emissions, and food chain contamination), the
si7C of the communit ) within the likel> pathwa s of’
Cxposure, and the comparison of expected human expo-
sure levels to the short-term and long-term health etreet
associated with identified contaminants and an .i ail-
able recommended exposure or tolerance limits t’or such
contaminants Such assessment shall not dcLi correctise
action to abate immediate hazards or reduce exposure
“(1 I ) Facilities without financial responsibilit —
an) facility where the owner or operator has failed to
maintain evidence of financial responsibilit) in amounts
at least equal to the amounts established b) subsection
(d)(5)(A) of this section (or a lesser amount if such
amount is applicable to such facilit) as a result of
subsection (d)(5)(B) of this section) for whatever reason
the Administrator shall expend no monies from the
Leaking Underground Storage Tank Trust Fund to
clean up releases at such facility pursuant to the provi-
sions of paragraph (I) or (2) of this subsection At such
facilities the Administrator shall use the authorities
provided in subparagraph (A) of paragraph (I) and
paragraph (4) of this subsection and section 9006 of this
subtitle to order corrective action to clean up such
releases States acting pursuant to paragraph (7) of this
subsection shall se the authorities provided in subpara-
graph (A) of paragrapn ( I) and paragraph (4) of this
subsection to order corrective action to clean up such
relcases. Notwithstanding the provisions of this para-
graph, the Administrator may use monies from the fund
to take the corrective actions authorized by paragraph
(5) of this subsection to protect human health at such
facilities and shall seek full recovery of the costs of all
such actions pursuant to the provisions of paragraph
(6)(A) of this subsection and without consideration of
the factors in paragraph(6)(B) of this subsection. Noth-
ing in this paragraph shall prevent the Administrator (or
a State pursuant to paragraph (7) of this subsection)
from taking corrective action at a facility where there is
no solvent owner or operator or where immediate action
is necessary to respond to an imminent and substantial
endangerment of human health or the environment
[ Editor’s note Section 205(h) of PL 99-499 provides
“(h) Pollution Liability Insurance.—
1l-2 -86
Published by THE BUREAU OF NATIONAL AFFAIRS INC WashingtOn DC 20037
‘21

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71 3168
FEDERAL LAWS
(I) Studs — The Comptroller General shall conduct
.1 studs of the asailabilitY of pollution liability insurance.
leak insurance and contamination insurance for owners
and operators of pctrOk 11t storage and distribution
facilities The Iud) shall ..ssess the current and project.
cd extent to hi h private insurance can contribute to
the Financial responsibiliR of owners and operators of
underground wr.igC tjnks and the ability of o flcrS and
operators of underground iorage tanks to maintain
hnjnLi.Il re .ponsibilit’ through other methods The
study ha!l consider the espcrience of osiners and opera-
tors of marine ss ls in getting insurance for their
lijbilitics under the Federal V ater Pollution Control
ct and the operation of the Water Quality Insurance
Syndicate
12) Report — The Comptroller General shall report
the rindings under this subsection to the Congress ‘ ithin
I months after the enactment of this subsection Such
report shall include recommefld1ti0fl5 for legislative or
administratise changes that will enable owners and oper-
ators of underground storage tanks to maintain nanctal
responsibility surlicient to provide all clean.up costs and
dani.iges that may result from reasonably foreseeable
releases and e’ ents •)
“A.PPZOVAL O S STAT! PROGSAMI
“Sec. 9004 (a) Ez.zssvns or Stars P5OCRAM.—B. .giPH ITIg 31)
months after the data of enactment an
Waste Amendments of 1984. any State may. submit an underground
storage tank release detection. prevention. and correction program
for review asid approval by the Administrator. The program may
cover tanks to store regulated substances referred to La
9001(2) (A) or (B) or both. A State program may be a roved by the
Admuzilatratot under this section only it the State demonstrates that
the State program includes the following requirements and
standards and providse ( r adequate enforcement of compliance with
such requirements and standards—
“(1) requirements for maintaining a leak detection system, an
inventory control system together with tank tasting, or a com-
parable system or method designed to identify releases in a
manner consistent with the protection of human health and the
environment;
“(2) requirements f ar maintainIr g records of any momtoring
or leak detection system or inventory control system or sank
testing system; ______
“(3) requirements for reporting of any releases and corrective
action taken in r poase to a release from an underground
age tenk
(4) requirements for taking corrective action in response to a
release from an underground storage tank;
“(5) requirements for the closure of tanks to prevent future
releases of regulated substances into lb. environment;
“(6) requirements for mas&—”( evidence of financial re-
sponaibthty for taking corrective action and cocepenseting third
parties for bodily injury and property 1 ”ege caused by sudden
and nonaudden accidental releases arising (roes operating an
underground storage tank;
“(7) standards performance for new underground storage
tanks: and
“(8) requirements—
(A) for notifying the appropriate State agency or depart.
meat (or local agency or department) designated according
to section 90021b1 1) of the emstence of any
non’operauonal underground storage tank; an? or
‘18) for providing the information required on the form
issued pursuant to section 90021bX2).
“(hI Fwwz. Swuaiwe.—41) A State program submitted under
this section may be approved only if the requirements under pare-
graphs (1) through (7) of subsection (a) are no lees stringent than the
me ’ Po@ding requirements standards promulgated by the Mi,ii,u ,
trator ps&nuant to section 9003(a).
“ (2 A) A State program may be approved without regard to
whether or not the requirements referred to in paragraphs U), (2).
(3). and(S) of subsection (a) are less stringent than the corresponding
standards under section 9003(a) during the one-year period corn-
menang on the data of promulgation of regulations under section
9 003(a) if State regulatory action but no State legislative action is
required in order to adopt a State program.
(B)!! such State legislative action is required, the State program
may be approved without regard to whether or not the requirements
referred to in paragraphs iii. i2. (3). and 5) of subsection ta) are less
stringent than the corresponding standards under section 9 003(ap
during the two.yea period commencing on the data of promulgation
of regulations under section 9003 (ai ‘and during an additional ens
year period after such legislative action if regulations are required
to be promulgated by the State pursuant to such legislative action i
tel Financial Responsibility — I I C trre tr .e iCtiOr ’
.irid compensation programs administered by State or
ue.tl agencies or departments mac be submitted t
.ipprocal under subsection (alIbI as ecidence 01 tinjnc .
rc spons tbilit
[ 9004(c)(l) amended b PL 9 .499J
‘(2) Financial responstbiIit required bc this subse.L, ’r
mj be established in accordance csith reguLition ‘r •
Tulgated by the \dministrator bc an one. or ,i-c
Lombinjilon of the follocs ing insurance gu rinte
‘urely bond, letter oi credit. qu liFic tion as a
r urer or any other method satisfactors to the \emini
tr. tor In promulgating requirements under this subs c
liOn the ‘ dministrator is authorized to specily poIic Or
other contractual terms including the amount et cocer-
ge required for ‘ .arious classes and categories ol und
ground storage tanks pursuant to section 900- 1 1ui
conditions, or defences c hich are necessarc or ire
eptable in establishing such ecidence 01 rinarici.’
sponsibulit in order to effectuate the purposes
subtitle
[ 9004(e)(2) amended b PL 99- 99I
“(3) In any case where the owner or operator is in bankruptcy.
reorganization, or arrangement pursuant to the Federal Bankruptcy
Code or where with reasonable diligence jurisdiction in any State
court of the Federal courts cannot be obtained over an owner or
operator likely to be solvent at the time of judgment, any claim
arising from conduct for which evidence of rinancini responsibility
must be provided under this subsection may be asserted directly
against the guarantor providing such evidence of financial reaponsi-
bthty In the case of any action pursuant to this paragraph such
guarantor shall be entitled to invoke all rights and defense, which
would have been available to the owner or operator if any action
had been brought against the owner or operator by the claimant and
which would have been available to the guarantor if an action had
been brought .gainst the guarantor by the owner or operator
“(4) Th. total liability of any guarantor shall be limited to the
aggregate amount which the guarantor has provided as evidence of
financial responsibility to the owner or operator under this section
Nothing in this subsection shall be construed so limit any other
State or Federal statutory, contractual or common law liability of a
guarantor to its owner or operator including, but not limited so, the
liability of such guarantor for bad faith either in negotiating or in
failing to negotiate the settlement of any claim. Nothing in this
subsection shall be construed to diminish the liability of any person
under section 107 or lii of the Comprehensive Environmental
Response, Compensation and Liability Mt of 1980 or other applica-
ble law.
“(5) For the purpose of this subsection, the term ‘guarantor’
means any person. other than the owner or operator, who provides
Env,ronment Regoner
‘22

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RESOURCE RECOVERY ACT
evidence of tmanctai sporuibility or an owner or operator under
this subsection.
“(d) EPA DrTxa)nr,ATTON.—41) Within 0 1 i n and eighty
days of the date of receipt of s p posed stat. program. the Adminia.
trator shall, after nones and opportunity for public comment, make
a determination whether the State’s D?omwm complie with the
provisions of tiuc section and pro,i4es adequate enfOrcement of
compliance with the requirements and standards adopted porsuant
to this section.
:‘(2) if the Admin trator determines that a State pr em comrn
plies with the provisions of is section and provides for adequate
enforcement of compliaz with the requirements end standards
adopted pui,uant to this section. he shall approve the State program
in lieu of the Federal program and the State shall have primely
enforcement responsibility with 1 pect to requirements of its
program.
“(e) WITHDIIAWAL 0? AumoamAlsore.—WherteveT the Mminutm.
tor determines after public hearing that a State is not administering
and enforcing a program authorized under this subtitle in accord
ance with the provisions of hi section, he shall so notify the Stat..
If appropriate action is not taken within a reasonable time, not to
exceed one hundred and twenty days after such notification, the
Adrsinistrator shall withdraw approval of such program and rees
t,ak..bah the Federal program pursuant to thi, subtitle.
“Inspections. Monitoring. Testing and
Corrective Action
[ 9005 head amended by PL 99-499J
900 (a) Furnishing Information —For the
purposes ot deieloptng or assisting in the deselopment of
.in regul3 llon. conducting any study. taking any correc-
ti e action or enforcing the provisions of this subtitle.
.in oi ner or operator of an underground storage tank
(or an tank subject to studs under section 9009 that is
used tor storing regulated substances) shall, upon re-
quest ol an olhccr employee or rcpresentatise of the
Eniironmentjl Protection gency. duly designated by
the dminiscraior. or upon request of any dul designat-
cd officer. employee, or representative of a State acting
pursuant to subsection (h) (7) of cctlon 9003 or with an
.ippro ed proi r.Lm furnish information relating to such
i.inks their .i ’ sotijted equipmcnt. their contents. con-
dii i monitoring or testing. permit such officer at all
rc.tsunablc Inlcs to hase uccess to. and ‘to copy all
recorcis relating to such tanks and permit such officer to
h ,i c .iCCCss for corrccti%e action For the purposes of
deicloping or assisting in the de elopmcnt of any regula-
tion conducting any study. taking corrective action, or
c.ilurcing the protisions of this subtitle, such officers.
cm ploy Ces or representatives ire authori?ed—
“(1) so enter at reasonable times any establialunent or other
place where an underground storage tank is located;
“(2) to inspect and obtain samples from any person of any
regulated substances contained in such tank
‘(3) to conduct monitoring or testing of the tarn tociat.d
equipment, contents, or surrounding soils, air. surface water or
ground water: and
Each such Inspection shall be aimmen sad completed with i
sonable prompinees.
4) to take corrective action.
[ 9005(a) amended by P1 99-499j
71 3169
“(b) C0NTTDEr(nALLTT.— 41 ) Any records, reports, or information
obtained from any persona under this section shall be ava JabLe to
the public, except that upon a showing satisfactory to the Mn .n.a .
tPatOF (or the State. as the case may be, by any person that
report., or information, or a particular part thereof, to which the
Administrator (or the State. as the case may be yr 5fly officer,
employee, or representative thereof has access code” this section if
made public, would divulge information entitled to protection under
Section 1905 of title 15 of the United States Code, such info tio
or particular portion thereof shall be considered confidential in
accordance with the purposes of that section, except that such
record, report, document, or information may be disclosed to other
officers, employees. or authorized reprtseritali’.es of the United
States concerned with carrying out this Act, or when relevent in any
proceeding under this Act.
“(2) Any person not subject to the provisions of section 1905 of
title 18 of the United States Code who knowingly and wulfully
divulges or discloses any information entitled to protection under
this subsection shall, upon conviction, be subject to a fine of not
more than 85,000 or to unpnsoncsent not to eaceed one year, or
“(3) In submitting data under this subtitle, a person required to
provide such data may—
“(A) designate the data which such person believes is entitled
to under this subsection. nd
‘(B) submit such designated data separately from other data
submitted under this subtitle.
A designation under this paragraph shall be made in writing and in
such manner as the Administrator may prescribe
“(4) Notwithstanding any lurutation contained in this section or
any other provision of law, all information reported to. or otherwise
obtained, by the Administrator ‘or any representative of the Adznin.
istrator) under this Act shall be made available, upon written
request of any duly authorized committee of the Congress. to such
committee ‘including records, reports, or information obtained by
representatives of the Evironmental Protection Agency)
“rIDE Ai . IPORC 1.VT
“Sec 9006. (a) COMPLiANCe Oaons ‘—41) Except as provided in
paragraph (2), whenever on the basis of any information, the Admin’
istrator determines that any person is in violation of any
requirement of this subtitle, the Administrator may issue sit order
requiring compliance within a reasonable specified time period r
the Administrator may commence a civil action in the Cnitec Sc.ates
district court in which the violation occurred for appropriate rehe .
including a temporary or permanent injunction.
In the case of a violation of any requirement of this subtitle
where such violation occurs iii a State with a program approved
under section 9004. the Administrator shall g’.ve notice to the State
in which such violation has occurred prior to issuing an order or
commencing a civil action under this section
“(3) If a violator fails to comply with an order under this subsec-
tion within the time specified in the order, he shall be Liable for a
,:ivij penalty of not more than 525.000 for each day of continued
noncompliance
‘(b, Pxocznuar.—Any order issued under this section shall
become final unless. no later than thirty days alter the order is
served, the person or persons named therein request a public hear.
ing. Upon such request the Administrator shail promptly conduct a
public hearing. In connection with any proceeding under this section
the Administrator may issue subpoenas for the attendance and
testimony of witnesses and the production of relevar,t papers, book.s.
and documents, and may promulgate rules for discovery procedures.
“(C) CONTeN’TI 0? Oanca.—Any order issued under this section
shall state with reasonable specificity the nature of the violation,
specify a reasonable time for compliance, and assess a penalty, if
any, which the Admuustrator determines is reasonable taking into
armunt the seriousness of the violation and any good faith efforts to
osaply with the applicable requirements.
“(d) Civis. PmlAi ,Trm —4l) Any owner who knowingly fails to
notify or aubmits false information pursuant to section 900 a) shall
be subject to a civil penalty not to exceed 810.000 for each tank for
it -28-66
PubI,sfleø by THE BUREAU OF NATIONAL AFFAIRS INC Wash.ngtQfl DC 20037
‘23

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713170
which notification is not given or false info maDO i i Pibtfllttld .
“i2) Any owner or operator of an unde!1ro storage tank whe
fails to comply with—
(A) any requirement or standard p amuipted bI’ the Adm1fl
istrator under section 9003:
fl(S) any requirement or standard of a Stat. program ap’
proved pursuant to section 9004. or
“(C) the provisions ‘if section 9OO3( ) (eatitled ‘Interim
Prohibition’)
shall be subject to a civil penalty not to eXC d 110.000 for each tank
for each day of violation.
“FEDIIAL ,ACXLITTai
‘Sec. 9007. ‘a APPLICATION SL!BTTTLL—EaCh department,
agency. and instrumentaLity of the executive. legislative, and judi-
cial branches of the Federal Government having jurisdiction over
any underground storage tank shall be subjeCt tø and comply with
all Federal. State. Inter s tate, and local requirements, applicable to
suc’a tank, both substantive and procedural. in the same manner,
and to the same extent, as any other person I i subje. ’t to such
requirement.s, including payment of reasonable service charges. Nea-
ther the United States, nor any agent, employee, or officer thereof,
shall be immune or exempt from any p _$ or sanction of any
State or Fed.ral court with re p ct the enforcement of any such
injunctive relief
‘:b) P mc?crlAl , xs p p —The President may exempt any
underground storage tanks of any department agency, or iiiitru-
mentality iii the executive branch from compliance with such a
requirement if he detarmjnp It be in the paramount interest of
tie United States to do so No such exemption shall be granted due
to lack of appropriation unless the president shall have specifically
requested ucn apprnpnation as a part of the budgetary pro and
the Congress shall have failed to make available such requested
apprOPflatlOfls Any exemption shall be for a period not in ez of
one year. but additional exemptions may be granted for perious not
te ecceed one year upon the President’s making a new det.ermina.
non The President shall report each January to the Congresa all
exemptions from the requirements of this section granted during the
preceding calendar year, together with his reason for panting each
such exemption.
“STATE AUThORiTY
C )Ol \othing in chi subtitle shall preclude or
d . -i .in right 0,’ .in S.ue or political subdivision
ihcrcul u idupt r cnt’ori.e reguLition. requirement.
pcrforinan e rc.peuing underground stor-
. t,ink’. th.it is more strini nt thin a regulation.
tir i,ind.ird ot pcrlorm.ini,c in effect under
s’ib it(c o ” iii inpo’.C ,iddiiionjl lubilIL with
i i ihc rclc.i c ol’ rcizuLitcd ‘.ub’.tjnces uuithun ‘ .uch
‘ Si ii . .‘r poht is..i I ubdi stun
()t)$ .imcridcd b PL 99.499
‘SnOT 0? UND G OUND syosaca TAKU
Sec. 9009 (a) Peraourvis TANX5.—Not later than twelve months
after the date of enactment of the Hazardous and Solid Waste
kmecdmenta of 1984, the Administrator shall complete a study of
underground storage tanks used for the storage of regulated sub’
stdaees defined in section 900Lt2XB).
“‘a Or -r a T.u u —Not later than thirty-aix months after the
date of enactment of the Hazardous and Solid Waite Amendment.
of 1984, the Administrator shall complete a study of all other
underground r.3rage tanks.
“ Ic, Ei,. n’s w Srimms —The studies under subsections ta) and
b) ,hall include an a.’ aessment of the ages, types (including methods
FEDERAL LAWS
of manufacture, protectoR Systems, the compatibility of
the construction materials and the installation meth dfa and loca-
tions (including the climate of the locations) of such ranks: soil
conditions, waxer tables, and the hydrogeolo of tank locations: the
relationship between the foregoing factors and the Likelihood of
releases from underground storage tanks. the effectiven and cosr
of inventory systems. tank testing, and leak detection systems, and
such other factors as the Mmtntatrator deems aoorooriate.
“(d) F**se Hs. ruic On. Tmxzs.—Not later than thirty.szx
months alter the date of enactment of the Hazardous and Solid
Waste Amendment. of 1984, the Administrator shall conduct a
study regarding the tanks referred to in section 900h1 iA) and(S)
Such study shall include estimates of the number and location of
such tanks and an analysis of the extent to which there may be
releases or threatened releases from such tanks into the environ.
meat,
“(e) Rssoin.—Upoft completion of the studies authorized by this
section, the Administrator shall submit reports to the President and
to the Congress containing the results of the studies and recommen.
dations respecting whether or not such tanks should be subject to
the preceding provisions of this subtitle.
“(I) RwaLJifl IT.—(D If any owner or operator excepting an
agency, department, or instrumentality of the United States Gov.
erament, a State or a political subdivision thereofl shall incur costs,
Including the loes of business opportunity. due to the closure or
interruption of operation of an underground storage rank solely for
the purpose of conducting studies authorized by this section. the
A 1 ,, ,,,u trator shall provide such person fair and equitable reim-
bursement for such costa,
“(2) All claims for reimbursement shell be filed with the Admu ...
trator not later than ninety days after the closure or interruption
which gives rise to the claim.
“(3) Reimbursements made under this section shall be from funds
appropriated by the Congr pursuant to the authorization con-
tained in section 2007(g).
“(4) For purposes of judicial review, a deternunat ion by the Ad-
ministrator under this subsection shall be considered ñnal agency
action.
‘AU’fltORZZATtOi ’ 0? APPROPRIATIONS
“Sac. 9010. For authorization of appropriations to carry out this
subtitle, see section 2001(g).
solid ‘Aaste (.leanup on Federal Land’. in lasLi
Sec 3 IRepcated b% PL 96-4S
Sec 4 (a) In order to demon’.trate g’IfCLII’C m .in
01 dealing uith .oniarninalton 01 publti. uatcr \upplle .
b% leaLha le Irom wandoned or other ljiidli(l , ihc \d•
miniscrator 01 the En ironmerital Proteuton i
authoriied to pro%lde teLhl’iLal and rInaliLlal a’.’.i iun c
br a research program to control ka hate from ihe
Llangolkn Landlill In Ne u Castle Counc’ . Oela are
(b) The re carLh program auihorizcd b Ihh SeLilon
shall be de igried b the Ne u ( a’.tIe Counts area u dc
uasle Ireatnient management progiam. in Lo .)peratlon
uith the En ironmental Protection - gen. . 10 de’elop
methods br controlling Ica hate onLamination Ironi
abandoned and other landtills that may be applied at
the Llangollen Landfill and at other landtill ’ .
throuuhoui the Nation SULh re’ .earLli program hall
in estigate all alternati e solutioii or corruxti%e i tion .
includlnQ—
(I) h%drogeoIo Il. i ’ .olacion 0, the Iandtill ornbined
uith the ollection and t’eatment ot lea hace.
Envionmeni ReDone,
‘24

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Final State Program Approval Rule
OSWER Directive 9650.8

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372.12 Federal Register I Vol. 53 No. 185k Friday , September 23, 1988 I Rules and Regulations
exas (EPA Form). Underground Storage
Tank Program. Texas Water Comius.mn,
P.O. Box 13087. Austin. Texas 78711
Utah (EPA Form). DMaion of Eavirormantal
Ifealth. P.O. Box 45508. Sail Lake City.
Utah 84145-OS 3
Vermont (State Form . Underground Storage
Tank Program. Vermont AECjWaate
Management Division. State Office
Building. Montpelier. Vermont 05602.8031
8 -3395
Virginia (EPA Form). Virginia Water Cootel
Board. P.O. Box 11143. Virginia
23220-1143. 8o4tZ57- 85
Virgin Islands (EPA Form). 20501
Coordinator. Division of Natural Resources
Management. 14 F BuIlding 112. WaZerguL
Homes. Christianstead. St Croix, Virgin
Islands 00630
Washington (State Form). Underground
Storage Tank Notification. Solid and
Hazardona Waste Pru i@w . Department of
Ecology M/S PV-!L Olympia. Washington
98501-871!. 2081459-6311
West Virginia (EPA Farm). AttrntIot UST
Notification. Solid and Hazardous Waste,
Ground WaterBranth. We,? Virginia
Department of Natural 120!
Greenbriar Street Charleston. West
Virginia 25311
Wisconsin (State Farm). Bazean of Pefroleimz
Inspection. P.O. Box 7861, Madison.
Wisconsin 5370 ’. e0e 20O-.78O5
Wyoming (EPA Form). Water Quality
Division. Department of Environmental
Quality. Hersth!er B lkEu . 4th Floor West.
1 West 25th Street ( icy uu5. Wywuw 5
8200Z 3O7Ffl7-7781.
Appendix II lalemeet for Skipping
Tickets and Invoices
Note -A Federal law (tin Resource
Conseniatice and Recovery Act (R A). as
amended (Pub. L 98-1161) reqiaves owusre of
certain underground stesog. anks to notify
deagnated State cr kant agasnes by Map 8.
1988. of the existence of thas tanks.
Notificatioun icr tanks bcught mm use sites
May 8.1986. must be made within 30 days.
Consult EPAs regulabous. iesuad ma
November 8.1985(40 CFR Past ZOO) to
determine if you are affected by thin hiw.
[ FR Doe. 88-22153 Filed 8-22-8t aSS am)
awun coer 5560- 50-M
4OCFR Part 28t
(FRL-33854I
Underground Storage Tanki State
program Appioval
AOENCY Envirtminental P t tion
Agency (EPA).
ACTION: Final rule.
lieu of the federal program. These
regulations were flrstpropc sed on April
17, 19W (52 FR 22853) and were further
developed i xa subsequent
Supplemental Notice published on
December 23. 198T (52 FR 48638).
Subtitle I of the Resource
Conservation andRecavery Act (RCR.A)
establishes a federal program foe the
regulation of underground storage tanks
(U!fs) S.btitle tel RCRA also allcw
EPA to appsu e state programs to
operate in place of the federal UST
requireu iwts if those state programs
have standards that are no lena staingent
thee the federal requkemanta and
provide adequate enforcement of
compliance with those standards. States
with api ,vu 4 UST program. will have
p ary enforcement re ,p .blity with
respect to LIST program requirements In
their states. Today’s role establishes
final reqwi mnents for approval of state
UST programs and for stroemitnpd
procedures to be used in suhmstting and
evaluating stats applicntioea
DATES The.. regulations wilt bew . e
efflictive our December 22, 1908.
aooimo The publf docket for this
rulemaking is avafTahTa f public
inspection from 9.00 a.nt to 4. O0 p.m..
Monday thremaji Friday, excluding
holidays at: Office of Underground
Storage Tanks (WH-5&2AJ, Docket Nn.
UST 4. US. Environmental Protection
Agency. 401 M Street SW.. Washzzgton.
DC 20468. Cafl (202) 475-9720 to make
an appoirdnient with docket clerk.
FOR FURTHER II ORMATIO5 ceNTACF.
RCP.A/SUPERFUND Hothos. (800)424-
9340. or in Wthln 5 tme. DC. (202) 382-
3008.
SUPPLEMEIIIARY INVO. e ATTOtC The
contents of todays preamble are listed
in the following outlinec
I. Auth..ir*y
IL Background
A. Subtitle tel RCRA ( Sect n IflS )
B. Sniitti .ilry of IbsAL17Proti—
C. S-.—y 01 0ippLr ’ i Notice
a —- , of hbhcr m_.
IL L t i .& IrAl. .oQ7o4a1s Rule
ilL Summary of Today’s Ride
A. S—’-—y of Todays Rule
9. SIZaHW lou Sta Program Approval
IV. Analysis of Tectays Rate
A. Subpart A-Pwpono. General
R. enisota end S .rnpt-
2 5222)
B. Subpart B—Comp ”ta oi a Program
Application (6 28L20-2&1.25)
C. Subpes% C -Csiteria for 1’4 Lees
I 288.30-285.38)
D.Rubport D—Adeqiuare E01orc of
r _ j.h .ica (I I 281.40-211.43)
E. Subpart Fa—Appeovek Pro wes
(*1285.58-281.52)
F. Subpart P—Withdrawal of Approval of
S
V. Ralatimasbip to Other EPA Programa
A. Leaking Underground Storage Tank
Petroleum Response Fund
B. RCRA Hazardous Waste Program
VI. Econonac end Regulatory Impact.
A. Regulatory Impact Analysis
B. Regulatory Fleththty Act
C. Paperwork Reduction Act
I. Authority
These regulations are prnmalgated
under sections 9004.9006. 9000 and 2002
of the Solid Waite Disposal Act. u
amended.
IL Sadcgxound
A. Subtitle I of RCRA (sectlon gyM’!
The Hazardous. and Solid Waste
Amendments of 1984 added Subtitle Ito
the Resource Conservation and
Recovery Act (RCRAI. Subtitle I
establishes a federal progra11 for the
regetation of underground storage tanks
and has the following components.
R. atkat 9002 requires each owner of
art underground storage tank (UST) in
, Uon after 1973 to notify the
designated state agency of the existence
of the tank and the tank age, size type.
loestion. and use. This notification was
due on May 8.1960. or within 30 days
after an owner b L a new LIST into
use.
Section 9003(a) requires EPA to
promulgate standards and requi wents
for new and existing lISTs covering
detection. prevention, and correction of
releases. These regulations are set forth
in the final LIST technical standards
published elsewbere hi today’s Fedora)
Register.
Section 9003(g establishes a
prohibition on the installation of certain
LISTs from May 8.1985 untiL the
effective date of EPA’s new tank
performance standards established
under section 9003(e). Section 9003 (h ),
added to Subtitle I under section 205 of
the Supevfund Amendments arid
Reauthorization Act of 1980. establishes
a program for cleanup of petroleum from
leaking USTs.
Section YOGI provides a procedure by
wb slates may admmtater and
enforce state LIST programs in lieu of
the federal program established tinder
section 9003. Under section 9001. states
may submit their programs to EPA and
will be approved by EPA if the state
program meeta,the requirements for
notification found under section 9002.
provides for adequate enforcement of
compliance with alt program
requirements. and includes reqnwesnents
that are no lees stringent than the
corresponding federal LIST technical
standards for Leak defection and
prevention, recoedkeepuig for leak
detection. reporting of releasee and
SUMMARY The Env wrnueutaf Protection
Agency (EPA) today finalizes
regulations [ or approval of states to run
underground storage tank programs in

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Federal Register I VoL 53, No. 185 I Friday, September 23. 1988 I Rules and Regulations 37213
corrective action, corrective action.
closure. finanmal responsibility. and
new tank standards. Section 9004
specifies that a state program ,nhmitted
to EPA for approval may cover
petroleum substances, hazardous
substances (not including hazardous
wastes), or both.
Under Subtitle I. a state with an
approved UST program has primary
enforcement responsibility for the
requirements of its program. EPA retains
authority to take enforcement action in
approved states a, necessary and will
notify the designated lead state agency
of any such Intended action in
accordance with procedures contained
in a memorandum of agreement
execeted with EPA and section
9006(a)(2) of RCRA. In this rulemaking.
EPA establishes requirements that a
state UST program must meet in order
for EPA to approve the program under
section 9004. These regulations are
codified in Part 281 of the Code of
Federal Regulations.
In section 9004. Congress clearly
provided EPA the authority to authorize
state UST programs to operate in lieu of
the federal program. Congressional
intent that Subtitle I be implemented at
the state level is supported by its
legislative history. In introducing the
Subtitle I legislation in 1984. its sponsor
stateth “The purpose of this amendment
is to establish a constructive federal role
to aid the states in establishing
programs to safeguard their water
supplies. Passage of this program will
help to ensure consistency between
state programs and tank standards and
measured progress toward our goal of
protecting ground water from this
ubiquitous source of contaminRtiou.” 130
Cong. Rac. 9164 (daily ed. July 25. 1984)
(statement of Senator Durenberger).
Accordingly, EPA believes that
Congress intended EPA to play an
important leadership role by
establishing UST criteria, and that.
consistent with statutory requirements,
the state and local governments should
carry out the program wherever
possible. This Congressional intent has
been influential in shaping today’s final
rule for state UST program approval.
B. Summwy of the April 17 Proposal
The April 17, 198 ’7 proposal (52 FR
12853) solicited public comments on
several topics concerning requirements
and procedures for approving state UST
programs to operate in place of federal
UST regulations . In the proposal. EPA
discussed the two criteria for approval
that are required under section 9004 of
RCRA. EPA described requirements for
ensuring “adequate enforcement of
compliance”. including the specific legal
authorities that mint be available to the
state enforcement agency. The proposal
also pres nt d three possible
approaches that could be used to
determine whether state tenhnu’!nI and
program requirements are ‘no less
stringent” than the federal standards.
In a’Id 4 tf n , the proposal contained a
number of procedural and
aIinlni trative requirements. The
proposal outlined the components of a
standard application for approval. These
components Indade: A program
description; an Attorney General’s
stat n t an implementation plan that
includes a Memorandum of Agreement:
and copies of all applicable state laws
and regulations. Furthermore, the
proposal su ested procedures that EPA
will follow when evaluating state
applications for approval or when
withdrawing approval of state programs.
The procedures for reviewing a state
application for approval must be
completed within 180 days, according to
.section 9004. and the proposal provided
details on how the review should
proceeth (1) Cnnflrm that an application
is coinplet f 2) review the application:
(3) peh1i ih a tentative decision in the
Fqdr’ I Regizter (4) consider public
comtn. nts and hold public hearings if
ne veaiy and (5) publish a final
decision in the Federal Register.
Finally. the proposal reflected the
provision in section 9004 that, in cases
when a state program has requirements
that are less stringent in certain areas
than corresponding federal
requirements, EPA could approve these
programs on an interim basis. The
proposal clarified the requirements and
procedures concerning the content and
review of a state application for such
interim approvals.
C. Summary of Supplemental Notice
EPA published a SuppIPn1Rn aI Notice
on December 23,1W (52 FR 48538) that
requested public comments on some
aspects of state program approval that
EPA believed needed further
clarification. The two parts of this
supplemental notice that dealt
specifically with state program approval
are summarized below.
One part of the supplemental notice
addressed the “no Less stringent ’ Issue
and provided further details for public
review and commant on how the
Agency intended to impI cn nt its
proposed approach to state program
approvali A comparison of each of the
tel’!hnired p u ruw elements of the state
progrum to the federal objectives for the
corresponding prvp-..m elements. For
example. a state’s regulations for release
detection ass whole would be
compared to the federal objectives for
release detection. As long as the state
program’s overall requirements for
release detection were “no less
stringent” than the federal objectives for
release detection. then EPA could
approve that state program element. An
essential part of this process was the
identification in the supplemental notice
of federal objectives for each of the
eight program elements. These federal
objectives were proposed to clarify
what constitutes acceptable “no less
stringent” requirements in state
programs.
The other part of the supplemental
notice concerning the issue of state
program approval requested comment
on providing additional flexibility to
implementing agencies by changing the
wording of several sections of the
technical standards proposed on April
17. These proposed wording changes
were intended to allow state
implementing agencies to substitute
their own procedural and administranve
requii-t nents for those detailed in the
federal technical st r.dards for US’!’s.
D. Summary of Public Comments
EPA received many comments
regarding both the April 17 proposed
rule for state program approval and the
December 23 supplemental notice. Fou
major issues were identified by public
comment Implementation by states anc
localities; adequate enforcement: no-
less..stringent criteria; and federal
funding. These issues are briefly
highlighted below and discussed in more
detail in section IV of today’s preamble.
• Implementation by states and
localities. Many commenters expressed
concern about the potential for a lack of
national consistency, which they
believed would be an inherent result of
the proposed rule for state program
approval They recommended that EPA
not approve state regulations that would
be different and perhaps more stringent
than the federal rule. In addition.
several other commenters were
concerned that implementation of the
UST program by local govermnents.
specifically those with different
technical regulations, would cause
confusion for the regulated community.
EPA received other comments
concerning implementation by local
governments. Generally, these
commenters requested that EPA’s final
approval rule require that states
negotiate with localities and include
them in plans for UST program
implementation.
• Adequate enforcement criteria. 1
defining what constitutes “adequate
enforcement”, commenters particularly
wanted clarification of EPA’s policy

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37214 Federal Register I Vol. 53. No. 185 / Friday. September 23, 1988 I Rules and Regulations
egarding enforcement Some
orninenters requested that broad
ibjectives be developed as a means of
approval in the federal rule, and some
suggested such objectives should be part
of the regulations. Others thought that
guidance alone would be appropriate.
Commenters also objected to the
requirements for inspections and
surveys, and wanted clarification of
EPA’s expectations. Regarding legal
authorities required for enforcement.
many commenters felt that states must
be allowed to evaluate their own
penalties and devise their own
approaches on a case-by-case basis, and
that EPA could require, at a minimum,
general categories of authorities without
dictating their terms. Finally, many
commenters expressed concern about
EPA ’s public participation requirements
for state program approvals. Some
commenters suggested that states
should be allowed to assess the degree
of participation necessary for each
individual case, while others questioned
the statutory authority for requiring
specific levels of participation as criteria
for approval,
• No less stringent criter/a. In the
April 17 preamble, EPA had considered
three options for determining whether
state programs meet the no-less-
stringent criteria. Some commenters
supported EPA’s proposed approach
(option 3), which compares the state and
federal programs element-by-element, as
the most flexible and implementable. An
“element”, was one of the paragraphs
(1) through (8) in section 9004(a). Each
paragraph defined an element, for
example, release detection. Others
claimed that only the holistic approach
of option 1 that evaluates the overall
results of a program gave states
sufficient flexibility. These commenters
also stressed that effectiveness in
meeting the environmental goals should
be considered first In approving states
rather than the ability to meet specific
Individual legal requirements. A few
commenters supported the line-by-line
approach of option 2. believing that the
flexibility of the other options could lead
to the approval of inadequate programs.
Many comments were received on
EPA’s proposed approach to
Implementing state program approval.
Most commentere agreed with the use of
objectives for determining the
stringency of state programs and liked
the objectives that EPA outlined in the
December 23 supplemental notice. In
general. they believed the objectives
would facilitate state program approval
by allowing state programs the
necessary room to develop regulations
appropriate to the individual state’s
geographical characteristics and
regulated communities. For the same
reason, these commenter, also liked
EPA’s proposal to provide states
additional decisionmakjng authority
within the technical and financial
responsibility regulations.
Some commenters, however, did
express reservations about EPA’s
proposed approach to provide states
with flexibility. Most of these
commentate felt that while flexibility
was an admirable goal, consistency was
also Important These conimenters
argued that the proposed regulations,
particularly the additional state
deasionmii lng authority in the
technical standards, allowed too much
flexibility to the states without
providing assurances that such
flexibility was necessary to protect
human health and the environment A
few commenters disagreed completely
with the objectives approach and stated
that objectives were not a substitute for
detailed technical requirements.
Pedemifiwding. Some commenters
raised the issue of the high cost of
developing state UST programs
compared to the small amount of federal
funding available to assist state program
development They protested that EPA
wanted states to run a program without
sharing sufficient funds to make it
possible and they urged the Federal
Government to provide more grant
money.
E. Important Influences on Today’s Rule
In developing today’s final rule for
state program approval, the Agency has
taken into consideration several
characteristics of the UST system
universe that are associated with any
attempt to regulate LJST system
management The following sections
identify and discuss the influence of
specific features of the LIST system
universe on the approval of state
programs.
1. Leaking USTs Present a Unique
Regulatory Challenge
EPA ’s approach to the regulation of
UST systems on a national scale must
be different from that undertaken by
most of its other regulatory programs
because the UST problem is
significantly different This difference is
mainly due to Iwo factors: The large
number of facilities to be regulated and
the nature of the regulated community.
The most significant problem is the
sheer size of the regulated community.
Nationally, over 700,000 UST facilities
account for about 2 million LIST
systems. Estimates indicate that roughly
75 percent of existing LIST systems are
unprotected from corrosion (and thus
present a serious environmental risk). A
relatively high proportion of LIST
facilities (10 to 30 percent) already have
had a leak, and soon others will leak
unless measures are taken to upgrade
them
Another problem arises from the
nature of the regulated community. A
large proportion of UST. are owned by
small businesses with $500,000 or less in
total assets. For example, 72 percent of
all retail motor fuel outlets are owned
by small businesses. These small
entrepreneurs, who are used to
operating their businesses under
m inimnl regulation, will be significantly
affected by environmental regulations
for LIST systems. In the promulgation of
the technical standards elsewhere in
today’s Federal Register, EPA has
attempted to minimi?e the regulatory
impact on small businesses without
compromising the statutory
requirements to protect human health
and the environment.
In addition, the problem of releases
from LISTs is multi-faceted. There are
three major sources of release Incidents:
Product delivery piping failures;
corrosion of unprotected tanks; and
spills and overfills. Environmental
regulations for UST systems must be
aimed at preventing these different
types of petroleum and hazardous
substance releases as well as Increasing
the ability to quickly detect and
minimi7e the contamination of soil and
ground water by such releases, and
ensuring adequate deanup of
contamination. To do this. LIST
regulatory requirements must address
every phase of the life cycle of a storage
tank system: Selection of the tank
system: installatlon operation and
maintenance: financial responsibility
closure: and cleanup of the site where
releases have occurred.
In summary, the size of this regulated
community, the predominance of small
business ownership of the UST systems,
and the need for comprehensive
management of an UST so that releases
are minimi d during its operating life
present a unique regulatory challenge.
‘This challenge calls for the
consideration of new approaches from
federal, state, and local regulators. Some
existing state and local UST programs
already provide effective LIST
management through a variety of
different approaches. In developing a
strategy for approval of state LIST
programs, EPA has been guided by a
realization that there is often more than
one way to ensure sound LIST
management using different regulatory
approaches.

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Federal Register I Vol. 53, No. 185 I Friday. September 23, 1988 I Rules and Regulations 37215
2. Challenge, for Compliance and
Enforcement
The experience of state and local
agencies that are currently implementing
UST programs demonairates two
realities. First, large businesses are
generally willing and have already
begun to comply with UST requirements.
Second. small business owners, with
limited resources and knowledge of
federal regulations, often need. more
direct attpntinn and technical assistance
to ensure compliance. Given the unique
nature of this regulated community. EPA
believes the UST regulatory program
will be most effectively carried out by
those who are closest to the problem.
who can respond quickly, and who can
create a visible presence. that is, the
state and local governments.
In niLilEin . successful implementation
of this program depends a great deal on
the regulated commuruty’s voluntary
compliance with the requirements
because, ultimately, they are responsible
for conducting the work under this new
program. Also. the large number of
facilities and the numerous types of
activities that take place on-site
preclude the implementing agency from
being present to ensure that tank
management activities are perlormed
properly. Compliance is best prompted
by owners and operators who are
clearly inicrned of the regulations and
in close contact with the regulators.
Interaction between regulators and UST
system owners during the development
of a regulatory program and during
program unplementatioi’. can be used to
gain acceptance within the regulated
community. and may be most effective
at the state and local level. Another
incentive for voluntary compliance can
be the type of regulations developed at
the state level. For example, the federal
technical requirements. where possible.
rely on familiar industry codes and build
on recognized trends developing in the
field of UST management.
Because much of the environmental
improvement from the UST program will
come from the regulated community’s
voluntary compliance, the process of
approving state programs should
recognize that regulatory approaches
developed in response to the specific
needs of different local areas may be
more appropriate and thus better
understood by the regulated community
3. State and Local UST Programs Are
Already Underway
Many states and localities have
already begun to address the ground-
water contamination threat and cleanup
problems posed by leaking USTs. At
least-IS states have developed UST
programs that. at a minimum, regulate
the basic elements of proper UST
system management Although all of
these programs address petroleum UST
systems. only a few currently include
hazardous substance USTa within their
scope. Other states have enacted
legislation and are developing a
regulatory program. Because many of
these states plan to use EPA’s rules to
guide their own regulatory decisions.
EPA expects state progress in
developing regulations to proceed
rapidly with the appearance of today’s
final rule on the technical standards.
This high level of state activity has
taken many routes. Some state programs
have established stringent release
detection for existing USTs (California
and Florida), and others emphasize
.state-of.the-art prevention technologies
for new USTs (New York. California.
and New Hampshire). Some are phasing
in the upgrading or repbu s’ment of
existing substandard systems (Florida,
Connecticut. and Delaware). Others
have attempted to tailor their st niinrd-
setting based on proximity to sensitive
grounLi-water locations (Maine and
South Carolina). EPA has closely
studied these state regulatory program
approaches and found that diversity on
mportant technical issues is often the
rule rather than the exception.. EPA
helieves that its approach toward the
approval of state programs must
accommodate these differences where
such initiatives are no less sthr.ge nt
then the federal program.
Many county ai d municipal
governments aLso axe already
tmplemennng UST programs. Over 100
ma;or ciues in the U.S. have developed
1 ocal UST ordinarces and programs.
Some programs are operated
independently of the state; others are
part of a wider state regulatory program.
The implementation role of local
agencies in the UST regulatory effort is
being encouraged in many states in
hopes of making use of available local
manpower (such as fire marshals and
building code officials) and thus
improving overall enforcement and
administrative capabilities. Three of the
leading state UST programs—New York.
Florida, and California—have begun to
work out solid working relationships
with local UST programs within the
state, a policy that is believed to be
critical to the success of the state
program. In several of the eastern urban
counties of New York. the state has
delegated authority to the county
governments, allowing the state agency
to focus its efforts on implementing the
UST program in the less urban counties
where local UST programs are less
developed. In Florida. Dade and
Broward counties have been given
authority to implement the UST program
in their jurisdictions. Several other
counties In the state are reported to be
considering local UST programs.
California has given responsibility for
administering and enforcing the state
UST program to over 100 local county
and city agencies.
In order to protect vulnerable ground-
Water supplies or in response to a series
of local incidents. some local
governments have issued their own
ordiniinc . , regulations or by-laws. even
in the absence of any state regulatory
action. In some cases. these local
controls predate the corresponding state
regulations and may be more stringent
than their state counterparts. Savannah.
Georgia. New Orleans. Louisiana: and
San Antonio and Austin, Texas are
examples of localities that have created
their own UST regulations. In
Massachusetts. at least 78 communitieq
have enacted some level of UST
controls. EPA has noted over the past
three years that these independent
actions at the local level often are the
precursors to the development of an
UST program for the entire state (as
occurred in California. Florida. and New
York).
EPA believes the high level of local
TJST program activity nationwide will
increase with todays promu gatiun of
the federal technical standards arid as
numerous state programs begin to
develop or revise their own regulatory
standards in response. Also, as other
states begin to wrestle with the reality
of how to implement their UST programs
and as the dangers posed by existing
LIST systems become more widely
known. local UST programs and
involvement should increase
significantly over current levels.
4. EPA’s National UST Program Strategy
and State Program Approval
The factors discussed above led EPA
to conclude that the approach taken in
today’s final rule is the most effective
way to implement this approval
program. First, the state program
approval language of section 9004 of
RCRA. as well as its legislative history
indicates that Congress intended state
and local UST programs to have a
pivotal role in the national LIST
program. At the same time, however, it
is clear that Congress intended EPA to
lead in establishing and supporting
standards necessary to protect human
health and the environment nationwic
The “no less stringent and “adequate
enforcement” criteria must be met to
ensure protection of the nation’s ground

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372j6 Federal Register I Vol. 53. No. 185 I Friday, September 23, 1988 / Rules and Regulations
water. Second. the nature of the
problem. the regulated community, and
the work involved in implementing the
regulatory program dictate that the
actual day-to-day work take place at the
state and local level. EPA has concluded
that much of the environmental
improvement to be gained under-this
program will be made through
supporting and building the
implementation efforts of state and local
LIST programs. Third, substantial
activity is already occurring in states
and localities, and EPA’s approval
process should work to build, rather
than disrupt, this established network.
The Agency’s role In approval, therefore,
must focus on encouraging the state and
local governments to carry out their own
unique programs. The approval of state
programs. however, is just one step in a
long-term strategy to develop a national
LIST program. EPA must look ahead to
the actual Implementation of the
program after approval has been given.
In facing the implementation
challenge that today confronts the
national LIST program. EPA has
concluded that the approval approach
established today is necessary to
address the realities of the LIST
regulatory program. First, as more state
and local governments become involved.
the work of the UST program must be
routinely repeated In thousands of
jurisdictions nationwide. Several
operating state and local UST programs
already report that they are quite busy
“ rnnning the store,” and express
surprise at the size of the regulated
community and how fairly simple tasks
must be routinely repeated numerous
times for the implementing agency to be
successful in bringing LIST systems Into,
and maint rning, compliance.
Second. visits to several state and
local UST program offices have shown
that they have developed their own
unique requirements and operate
differently even though they are geared
towards solving similar technical
problems. They need the flexibility to
continue to improve upon their own
approaches. They have common
implementation problems. however, and
have expressed the need for better
technical aids, such as data
management tools.
Third, many state and local
governments that already implement
LIST programs report a significant effort
to provide visible on-site monitoring.
which means a constant “regulatory
presence” is needed to effectively
ensure the regulated community’s
compliance with LIST requirements. A
significant environmental gain is
achieved through the implementation at
the local level by these individual LIST
programs- Thus, improving their
performance will produce maximum
environmental benefits and ensure the
success of the LIST program nationwide.
Accordingly, EPA believes its
Implementation efforts should be
focused on serving the network of state
and local programs through listening to
their concerns and helping them solve
implementation problems with tools that
improve theirprograms’ effectiveness.
Approval of state programs thus
becomes a basic competence test to
ensure that the work associated with the
implementation of regulatory controls
by the state program will, in fact. cause
the needed level of improvement in UST
system management by the regulated
community. A requisite level of
enforcement authority and technical
standards must be ensured, and
therefore must be the focus for approval
by EPA. Other program performance
and Implementation capability concerns
are less of a focus for state program
approval and more of a question of
improving implementation of the
national LIST program over time after
states have received program approvaL
EPA recognizes that the nature of the
problem and the work involved in
effective direct implementation of the
regulation by EPA will overwhelm the
Agency’s capabilities and resources.
Accordingly, the strategy for state
program approval must focus on
ensuring that a bottom-line level of
protection is maintained, but at the
same time must avoid setting
requirements that would prevent or
discourage the development of sound
state and local UST programs that
should be approved to operate “in lieu
of” the federal program. The aim of state
program approval is to develop the
state-federal partnership that will allow
both parties to focus on preventing
leaking LISTs from causing further
environmental contamination.
IlL Todays Rule
A. Summary of Today’s Rule
EPA is promulgating today a final
regulation for approval of state
underground storage tank programs
under section 9004 of RCRA, to be
codified at 40 CFR Part 281. This
regulation establishes criteria for state
programs in the areas of “no less
stringent” and “adequate enforcement”
of compliance. The major elements of
today’s rule are outlined below.
In defining “no less stringent.” EPA is
promulgating criteria in the form of
objectives. These ubjeccives are
established for seven of the eight
technical program elements: New UST
systems design. construction, and
installation: release detection. general
operating requirements: upgrading of
existing USTs; release reporting.
investigation and confirmation: out-of-
service LISTs and closure: and release
response and corrective action. The
objective for the element of financial
responsibility will be provided by EPA
when the final technical requirements in
this area are provided at a later date.
These objectives represent the minimum
standard that the state program must
achieve in order to be considered “no
less stringent” than the federal
requirements. Through these objectives,
EPA Intends to provide the states with
the flexibility to develop an
administrative approach that best suits
the needs of the state while ensuring
that an adequate level of performance is
achieved in protecting human health and
the environment in all states
In determining “adequate
enforcement”. EPA has defined the
minimum authorities and procedures a
state must have. The state must have
authority to inspect records, inspect
sites, and require monitoring and testing
by the owner. The state must also have
procedures for inspecting sites and
reviewing records. The state must have
legal authority to obtain a temporary
restraining order and a preliminary
injunction, and to assess or sue to
recover penalties. In addition, the state
must allow opportunity for public
participation in enforcement actions.
Finally, the components of a state
application for program approval are
described in the regulation. These
components include: A Governor’s
transmittal letter, a description of the
state program: a description of
compliance monitoring and enforcement
procedures: where interim approval is
sought, a schedule for final approval: a
Memorandum of Agreement. which
defines the roles and responsibilities of
EPA and the approved state: an
Attorney General’s statement, which
certifies to the state’s authorities for the
eight technical program elements and
for enforcement and compliance
monitoring; and copies of the applicable
state statutes and regulations. EPA
believes that the above requirements
ensure that approved state programs
meet the requirements set out in RCRA
section 9004.
B. Strategy for State Program Approval
In the April 17 preamble. EPA
proposed three options for evaluating
whether a state program is “no less
stringent.” As stated in the proposal,
EPA’s preferred approach was to
compare the state and federal programs

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Federal Register / VoL 53, No. 185 I Friday, September 23, 1988 / Rules and Regulations
37217
element-by-element. (Section 9004(a) of
RCRA establishes those elements that
must be included In a state program in
order to receive EPA approval; under
today’s rule an element is a discrete
segment of a comprehensive UST
management program that has an
Identifiable objective.) EPA believed
this option gave the best combination of
flexibility and ease of implementation.
On December 23. 1987. EPA requested
public comment on certain general
objectives provided as the criteria for
determining the stringency of each
program element Today, the Agency is
promulgating these criteria substantially
as presented in the December23 notice
(although the objective for financial
responsibility will be promulgated at a
later date with its associated technical
rules), except that they do reflect the
points of departure made to the
proposed underlying technical standards
(discussed elsewhere in today’s Federal
Register) and public comments on the
supplemental notice.
As discussed in the December 23
notice. EPA does not believe that the
specific federal requirements in the Part
280 regulations provide the only
definitive and protective approach for
LIST regulation, In developing the
federal technical standards, EPA
recognized that other approaches would
meet EPA ’s overall performance
objectives. These f3deral technical
standards are by necessity more
detailed and specific than the objectives
they are designed to meet because the
federal regulations must be able to be
implemented by the regulated
community and must be enforceable in
those states without approved state
programs. As Indicated in today’s rule.
EPA does not believe that the individual
requirements set forth within the federal
program elements should necessarily
preclude states from developing other
approaches that will achieve the overall
objectives of performance identified for
purposes of state program approvaL
The objectives in Subpart C of today’s
final rule identify the performance
standards for each element that the
federal requirements are intended to
meet and that a state program must
meet in order to be as stringent as the
federal program. They ensure that state
programs meet the basic standards
established by the federal program but,
at the same time, do not dictate the
methods the states can use in reaching
these standards. EPA believes this
approach to state program approval will
provide the states with significant
flexibility, permit alternative methods of
implementation, and still ensure that
state UST programs achieve the same
resultin protecting 1 ianhealthand
the environment as th federal program.
Under section 9004. EPA also must
ensure that state programs demonstrate
“adequate enforcement” of compliance
with program requuements , EPA
proposed that states demonstrate
compliance monitoring and enforcement
authorities and basic compliance
monitoring procedures, In addition. EPA
solicited comment on whether it should
require a demonstration of enforcement
response procedures. As a result of
public comments the Agency is
promulgating regulations for adequate
enforcement that require state programs
to demonstrate compliance monitoring
and enforcement authorities and
procedures for implementing those
authorities (except In the area of public
participation. where EPA will allow the
state to choose between specific
authorities or procedures). As explained
above. EPA seeks to approve a variety
of state programs and to encourage
states to use innovative approaches in
all program areas. including monitoring
compliance and undertaking
enforcement actions. In the near future,
EPA will be issuing additional guidance
on “adequate enforcement” that will
provide examples of acceptable
compliance monitoring and enforcement
programs currently being used by
3everal states.
Today EPA Is also clarifying the issue
of program scope. In evaluating the
states program scope. EPA considered
requiring states to include all the
junsdictional definitions listed in the
federal technical standards nile. EPA
concluded, however, that this would ce
both burdensome and unnecessary.
Instead, the state must describe its
jurisdiction and regulated population In
the program description to show that its
program includes the LIST population
that is covered by the federal program.
Broad state authorities are sufficient d
under state law, they cover the same or
a greater universe than the federal
program. States may, of course, choose
to adopt any of the terms that are
Included in the list of definitions In the
federal regulations at 40 CFR 280.12.
N. Analysis of Today’s Rule
The following sections of this
preamble include disi.’useioi. of the
major Issues and address the public
comments received In response to the
April 17 proposed rule and December 23
supplemental notice.
EPA has reorganized the proposed
rule for two reason& First. the Agency is
incorporating as Subpart C of today’s
rule the criteria for “no less stringent” as
proposed on December 23, 1987(52 FR
48638), except for th. criterion for
financial responsibility which will be
promulgated at a later date along with
its supporting technical rules. Second.
the Agency has darifled the
requirements for adequate enforcement
as a component of the state’s
application. Previously, the adequate
enforcement demonstration was
proposed to be part of the program
description. Today, the Agency is
promulgating the adequate enforcement
requirements in a separate subpart of
the rule. Further explanation of this
change can be found later in this
preamble (section NJ.). For ease of
reference, the following preamble
discussion is organized to address each
subpart of the rule separately.
A. &ibpart A— .Pwpose, General
Requuement& and Scope ( ff 281.10
through 281.12)
Section 9004 of RCRA sets forth a
number of requirements for state UST
program approval. Section 9004(a)
establishes the elements that must be
included in a state program in order to
receive EPA appruval. in order to
correspond with the technical
requirements promulgated elsewhere in
today’s Federal Register (or to be
promulgated later, In the case of the
financial responsibility standards), EPA
refers to these program elements as new
UST systems; upgrading of existing tIST
systems: general operating
requirements: release c teotioz ease
reportv g, investigation and
coc.iirmation; release :e pcnse
-c ,’.iva action: out-of.ser, ce UST
y ’itcms and closure; and flnanc.nl
responsibility. Section 9004(b) requires
that each of the state pr gram elemer.ts
be no less stringent than the
corresponding federal program elements
for final approval. (A discussion of the
Agency’s approach to determining “no
less stringent” is provided in Subpart C
of this section of the preamble.) Under
sectIon 9004(b) state program. may
receive Interim approval as long as
certain (but not all) requirements are no
less stringent than the corresponding
federal standards. In the preamble to the
April 17 proposal. EPA solid ted
comments on the requirement that a
state seeking interim approval must
have each program element present in
some form ‘oefore interim approvaL No
comments were received on this issue,
however. The proposed regulatory
koguage sitnoly provided that a state
znust have requirements in all the
program elements. Including the less
stringent ones, as a condition of
receiving interim approvaL The
proposed rule did not specify the type of
requirements the states must have for

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37218 Federal Register I Vol. 53. No. 185 / Friday , September 23. 1988 / Rult ti and Regulations
these other less stringent elements.
Therefore. the Agency is clarifying that
a state must have at least general
statutory authority for the less stringent
elements.
EPA received many comments
regarding the program elements
necessary for interim approval. Many
commenters expressed concern that
some of the most difficult program
elements to achieve were reqmred to be
“no less stringent” at the time of
application in order for a state to qualify
for interim approvaL The onuimenters
suggested that EPA change this in the
final rule. The Agency agrees with these
cowmenters that the program element
requirements required to be no less
stringent at the time of application. such
as financial responsibility. may be the
most difficult to develop. The Agency.
however, has promulgated these no less
stringent requirements substantially as
proposed because they are set forth by
statute and cannot be changed through
rulemaking.
In the proposal. the elements of a
state program that must be immediately
no less stringent were listed as
corrective action.
responsibility. notification. and new
tank performance standards. Those
elements that could be less stringent
were listed as leak detection and
prevention. recordkeepLng for teak
detection, reporting of releases and
corrective action, and closure. Since the
April 17 proposal. the elements of a
program have been reorganized to
parallel the order in the technical
standards. and the new tank
performance standards have been
divided into standards for upgrading
existing UST systems and general
operating requirements as well as
standards for new tank design.
construction. installation and
notification.
In order to be no less stringent than
the federal program, a state must have
requirements for upgrading of existing
UST systems and for general operating
requirements. For pi poses of interim
approval of state programs. these
elements are considered to be part of
the new tank performance standards.
Therefore. a state applying for interim
approval must have requirements that
meet the federal objectives for the
following elements: New tank design.
construction. installation, and
notificatioir. upgrading existing UST
systems: general operating
requirements: release response and
corrective action: and financial
responsibility.
If a state chooses to apply for interim
approval. It is accepting the limitations
associated with it. It must upgrade all
less stringent authorities within the
federal laws established timefrarnes.
EPA acknowledges that this limitation
will make interim approval less
attractive to states, and will discourage
states from applying for interim
approvaL Today’s rule, however,
provides procedures for both final and
interim approval, including the
automatic expiration of intenm approval
when a state with interim approval does
not submit a program revision within the
prescribed time periods.
Under sections 9004 (a) and (d). the
state UST program must also provide for
adequate enforcement of complianc-
The Agency proposed. and today is
finalizing, requirements m nrIAtinp
certain state legal authorities and
procedures for compliance monitoring
and enforcement. These regulatory
requirements are found in 281.40
through 281.43 and are discussed in
greater detail later in this preamble.
The following section of the preamble
explains the parts of the state’s
spplication that must be provided to
demonstrate coverage of all of these
requirements.
B. Subpart B—Components of a Program
Application ( 281.20 through 281.25)
Today’s regulation identifies the
components that must be included in the
state program application package
submitted to EPA. Many commenters
requested that the Agency keep the
application process as flexible and
streamlined as possible. The Agenc j
atteniptiid to do this. and has siinphfie:’
jhe’process even further by de gning a
standard state application form that will
be provided in a State Program
Approval HandLook to be issued before
the effective date of this rule. The use of
this application form is optional and the
state may submit whatever application
form that it prefers as long as it meets
the regulatory requirements. As outlined
in § 281.20 (a) through (g). the state’s
application must at least contain the
following basic parts: (1) A transmittal
letter from the Governor of the state; (2)
a description of the current state
program: (3) a description of compliance
molutonng and enforcement procedures:
(4) a schedule for interim approval.
where appiicable; (5) a M t ,randum cii
Agreement (6) a statems ;t from he
state Attorney General: and (7) copIes of
all applicable state laws and
regulations. Although for purposes of
clarity today’s nulemaking separately
addressee the Attorney General’s
statement and the demonstration of
adequate enforcement. the state may
join the two into one document in the
application package.
The Agency had originally proposed
that states submit an implementation
plan as part of the application for
program approval. The proposed
implementation plan uicludeth a long
term unplementation strategy’, a
schedule for interim approval; and a
Memorandum of Agreement (MOA).
One commenter expressed concern
that the implementation plan (proposed
§ Z8T.2ZJ was redundant and therefore
burdensome to require both a program
description and an implementation plan.
This commenter questioned the purpose
of a long term implementation strategy,
interpreting it to suggest that EPA would
conduct detailed oversight of approved
state programs. The commenter asked
whether the Agency would disapprove a
state that did not achieve the goals laid
out in the long-term implementation
strategy.
The Agency’s intention is to conduct
oversight in a manner that allows for
changing circumstances. The original
intent of the long-term implementation
strategy was to provide a starting point
that the Agency could use to determine
the amount of assistance the state
needed to Improve its LIST program.
EPA expects that a significant amount of
this improvement will occur after state
program approval. As a result the
information provided by the pLan can
and should be satisfied apart from the
approval process. and thus the proposed
long-term implementation strategy is
unnecessary. Because EPA believes that
the implementation plan is no longer
-iecessary for approval, and to be
cors sr.ent v.ith its efforts to streamline
the application package. EPA has
deleted the proposed requirement for an
implementation plan. The schedule for
interim approval and the MOA are now
separate application components.
A brief description of each of the
reorganized components in the final rule
is provided below.
1. Trni mittal Letter (*281.20(a))
A transmittal letter signed by the
Governor of the state must accompany
the original state application. This letter
serves to transmit the state’s formal
request fat- UST program approval, and
indicates that the Governor has
approved the designated lead state
agency for implementation of the UST
program.
2. Program Description (I 281.21)
The program description is intended
to provide EPA and the public with
basic information on the extent of the
state’s effort to manage UST systems.
During the formal 180-day application
review period. EPA must issue a public

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Federal Register I VoL 53, No. 185 I Friday, September 23. 1988 I Rules and Regulations 37219
notice of the tentative decision to
approve or disapprove a state program
application. As part of that notice EPA
must note the availability for Inspection
by the public of the state program
application. The information in the
program description is necessary to
ensure that the public is informed of (1)
the state’s scope and jurisdiction, and
(2) the state’s plans for implementing an
UST regulatory program in lieu of the
federal program. Many commentera
asked how EPA would use the resource
information In the program description.
In particular, they were concerned that
specific staffing and funding figures
would be set by EPA in determining
state approval or disapproval. EPA
notes that states have been receiving
federal grant funds for program
development since 1988. These grants,
which require matching state funds.
have enabled states to develop
notification systems, obtain necessary
legislation, write regulations and
policies, and hire and train staff. In
addition, most states now have LUST
Trust Fund cooperative agreements that
provide funds for corrective action. staff
hiring and training, and enforcement
and cleanup activities. Through the
grants and cooperative agreements. and
matching state funds, most states have
demonstrated sufficient staffing and
management capability for purposes of
state program approvaL
The program description must address
several subjects. First, the scope of the
state’s UST program is described.
including the extent of the states
jurisdiction and whether the state
program is a “partial” or “complete”
program. Knowledge of program scope is
important for approval because the
approved state program is formally
designated to operate In lieu of the
federal program. Thus, the state program
must regulate at least the same
categories of UST systems and
substances as the federal program to
avoid non-regulation by states of
categories of UST systems that Congress
Intended to be regulated under the
national UST program. The program
description also indicates whether the
state’s authority extends to Indian
lands. For those states that do not have
authority over their Indian lands, EPA
will Implement an UST program on
those lands.
Although the Agency received no
comments on program scope, EPA Is
providing further clarification of its
requirements in this area with regard to
partial and complete programs. To
demonstrate that the state program
covers the same universe as the federal
program, the state definitions will be
compared to the following six basic
terms. defined in Subtitle I, that EPA
believes are essential in defining the
scope of the federal UST universe.
Those six terms, which are defined in
Section 9001 of Subtitle I. arm operator.
person, release, regulated substances.
petroleum, underground storage tank.
(Of course, the state may incorporate
any of the other terms that are included
in the list of definitions in the federal
regulations at 40 CFR 280.12.) The
Agency does not require the state to use
the exact definitions of these terms
promulgated in the federal regulations.
Broadly written state authorities will be
sufficient, although the Agency may ask
for a clarification if it is not clear that a
state definition includes the same
jurisdiction as the federal program. For
example, rather than defining
“underground storage tank.” a statute
that could regulate any facility with
potential for release into air, soil or
ground water would be sufficient,
Section 281.12(a) allows the
Adn’inktrator to approve either partial
or complete state programs as specthed
m section 9004(a) The definition of a
“partial” state program is one that
regulates either petroleum tanks only or
hazardous substance tanks only. To
receive program approvaL a partial state
program must include within its
jurisdiction all of the major categories of
UST systems that are addressed within
the scope of the federal program for
either petroleum tanks or hazardous
substance tanks. For instance, a state
program only covering petroleum tanks
will not be approved if it does not cover
retail motor fuel UST systems. The state,
however, does not have to have
immediate jurisdiction over all
categories of petroleum tanks. To be
approved in such cases, the state must
reach an agreement with EPA in the
Memorandum of Agreement on how
those tanks not in the state scope will be
regulated, and the state also must
provide a schedule showing its plan for
expending its jurisdiction so that these
tanks will be regulated by the state,
A “complete” state program regulates
both petroleum and hazardous
substance tanks, and the state must
have jurisdiction over at least the same
categories of tanks as the federal
program, As discussed above, the state
may indicate in the MOA how any tank
not in its jurisdiction will be covered as
long as it provides a schedule for
expanding Its jurisdiction Those
categories of USTs that EPA had
proposed to defer but now regulates in
the final technical standards must be
Included within the scope of the state
program. For example, used oil USTs
need to be regulated under state
programs.
Today’. final technical rules do not
cover certain UST systems. Because the
Agency currently has insufficient
information to decide whether to
regulate these deferred USTs, the
question of what (if any) standards are
appropriate will be considered In the
future. Deferred UST systems, however,
are subject to interim prohibition and
the release response and corrective
action requirements under the federal
program. UST systems storing fuel for
emergency generators are subject to all
but the release detection requirements.
Thus, EPA and the state must agree on
how to oversee compliance of the
regulatory requirements applicable to
any deferred USTS in the MOA. States
may want to consider Including the list
of deferred USTs within their statutory
authority from the start to avoid the
necessity for future changes to expand
their jurisdiction when and if federal
regulations for the deferred systems are
eventually published.
EPA has exempted by regulation
certain other categories of UST systems
entirely, and states will not need to
include these systems within their
jurisdictions in order to have adequate
program scope for approval. The
categories of USTs that are deferred and
exempted are described elsewhere in
today’s Federal Register.
Today’s rulemaking does not hinder
states from implementing a state
program that is broader in scope than
the federal program (I 281,1Z(a)(3)). A
state program, for example, may
regulate all heating oil tanks, although
tanks used for storing heating oil for
consumptive use on the premises where
stored are excluded from the federal
UST program. In such cases, the
additional scope of coverage is not
reviewed by EPA as part of the state
program approval process. In addition, if
EPA were asked to provide enforcement
assistance, EPA cannot enforce these
additional state requirements. On the
other hand, In approved states with
requirements (such as release detection)
that are more stringent than the
corresponding federal requirements, the
more stringent requirements are part of
the approved program and are federally
enforceable ( 281.12(a)(311.
Second, this program description will
also describe the organizational
structure of any state and local
implementing agencies administering the
UST program within a state. The
program description must generally
identify the major jurisdictional
responsibilities, program operation
role., and lines of communication and

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37 O Federal Register / Vol. 53. No. 185 I Friday, September 23. 1988 / Rules and Regulations
authority of these implementing
agencies. Copies of any Memoranda of
Understanding (MOUs) or written
agreements for coordination of intra-
state responsibilities should be
provided.
In addition, the program description
should Identify the number of persons
currently Involved in UST program
operations. their general functions, and
the staff expected to be employed in the
near future (if available). State
applications should also explain any
limitations on hiring or the utilization of
existing staff. This Information Is
requested so that the public will be
Informed of operating constraints when
the approval application is made
available to the public through the
formal review process. This Information
would rarely be a determining factor in
assessing the adequacy of the state’s
program for regulating the UST system
universe. In their response to the
proposal, many states commented on
their current resource problems. The
Agency will not dictate staffing levels
for purposes of state program approval.
Third, the program description should
explain any plans the state program has
for meeting the estimated future costs of
administering the program. There will be
no minimnm base number used by EPA
in approving state programs. All states
must have some source of funding
Independent of federal grant monies.
The Subtitle I federal grants are
provided by Congress as seed money for
use by states to initiate program
development among other things. EPA
received many comments about the hi&i
costs of implementing UST programs in
the states. EPA will not expect states to
have all necessary funds available at
the time of application for approval. As
with staffing. EPA will approve states
that need to develop additional funding
sources, and believes that funding is a
longer-term issue that is largely separate
and apart from the state program
approval process.
In conclusion, EPA does not expect
the resource Information required in the
program description to result in the
disapproval of state programs. Only in
the unlikely situation where a state
clearly has insufficient staff or hinds to
implement its program will EPA
disapprove the state because of
inadequate resource levels. The program
description, in general. will be used by
EPA and the public as background
information that will help to ensure that
a viable state program does exist.
Additional guidance on the program
description and the otherparta of the
application is being made available to
states in the form of a Stat. Program
Approval Handbook,, which EPA has
developed to help states implement
today’s rule.
In the April 17 proposal, EPA required
states to include a description of their
compliance monitoring and enforcement
procedures in the program descriptios.
In reorgarn2ing the proposal. EPA is now
including compliance monitoring and
enforcement as separate parts of the
application. The Attorney Generals
statement (I 281.25) should include the
state s authorities for compliance
monitoring and enforcement. The state’s
demonstration of adequate enforcement
(I 281.22) will ensure that the state has
appropriate procedures for
implementing these authorities. EPA’.
criteria for evaluating the adequacy of
the state’s authorities and procedures
are explained under Subpart D of this
preamble.
3. DescriptIon of Compliance Monitoring
and Enforcement Procedures ( 281.22)
The description of compliance
monitoring end enforcement procedures
mast include information on the state’s
procedures for UST population
identification, general compliance
monitoring, and general enforcement
response. More specifically, the
implementing agency must have systems
forr Updating and maintan g an
inventory of the UST population;
collecting and maintaining data on
violators and monitoring their
subsequent compliance status over tiine
and exercising legal authorities to take
enforcement actions against violators.
bring them into compliance, and deter
other potential violators.
4. Schedule for Interim Approval
( 281.23)
States applying for interim approval
must include a schedule to propose.
finalize, and change the necessary
regulations and legislation. The schedule
should address major milestones in the
program development process. for
example. submission of draft legislation,
proposal of regulation, and promulgation
of final regulations.
5. Attorney General’s Statement
(U81 25)
A fifth component of the state UST
program application is a statement from
the state Attorney General certifying
that state laws and regulations provide
adequate authority to implement the
reqwred elements of an approved
program. The Attorney General’s
statement is the foundation for ensuring
that the state UST program is no less
stringent than the Federal program. The
Attorney GeneraL or an independent
legal counsel for the state, must certify
that the state laws and regulations
provide authority to implement the
program described in the application
and has Legal authorities For compliance
monitoring and enforcement that meet
the requirements of H 281.40 through
281.43.
6. Memorandum of Agreement (1281.24)
The MOA explains EPA’s and the
lead state agency’s respective
responmbthties for US’!’ program
administration and enforcement. The
state staff will develop the draft MOA In
close consultation with EPA staff. The
MOA will be particularly important if a
state is applying for approval of only a
partial UST program. In addition, if the
state program does not cover the same
universe of undei raund storage tanks
as the federal program. the MOA should
Include an agreement between the state
and EPA with regard to bow those tank
systems not covered by the state
program will be regulated.
EPA received comments suggesting
that local agencies be allowed to sign
the MOA. The MOA. however, is signe ’l
only by EPA and the lead state agency
because it is important to have all U3T
program issues within the state
coordinated hy one lead state agency.
The need for coordination makes it
impractical for other participating state
agencies and all the local authorities to
sigu the MOA. In addition. EPA is only
authorized to approve states.
7. Copies of All Applicable State Laws
and Regulations (I 281.20)
Copies of all applicable state laws
and regulations are essential for EPA to
evaluate the state programs scope and
technical requirements. This information
will also serve as the basis for
establishing a record of the state laws
and regulations regarding USTs in
approved states. EPA will codify state
programs by incorporating state laws
and regulations by reference as part of
its final approval of the state program.
Codification will enable all interested
parties to receive notice of which state
laws and regulations comprise the
Subtitle I program in approved states.
Another reason the Agency codifies
state laws and regulations is to clarify
the requirements that are effective in
that state for purposes of federal
enforcement. Once the state program is
approved, it operates in lieu of the
federal UST program. Therefore, if EPA
were to take an enforcement action in
an approved state, it would do so using
federal authorities but citing violations
of state law or regulations.

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Federal Register I Vol. 53, No:IJ&/ FMay, Septemi e 1 -.23: ig / Rules andLRegulatlnrls
37721
C Subpart C—Criteria for “No Less
Stringent” (15281.30 through 282.361
1. Background
a. Summary of public comments. In
the preamble to the April17 proposal (52
FR 12858). EPA solicited c”” ”ts on
three options for determining whether
technical requirements in states seeking
approval are no less stringent than the
corresponding federal standards.
Several states commpnted on the
Importance of two goals: Establi*hiug
flexible criteria for approval of state
programs, and clearly identifying the
minimum state program requirements In
the final state program approval
regulation. EPA recognizes that these
two goals may often be in tension, and
today’s final rule attempts to strike a
balance between them through the
establishment of clear baseline criteria
that will accommodate effective existing
state UST programs to the greatest
extent possible consistent with the
statute.
The Agency’s preferred option
consisted of comparing the overall
requirements within each technical
program element of the state program to
the federal objective for that element.
Whether the state pruxjam element was
no less stringent would be determined
by its performance in meeting the
overall federal objectives for that
element. The two rejected options
included (1) a holistic evaluation that
would compare the overall stringency of
the total state program to the total
federal program, which would allow
trade.offs between program elements
(for example, balancing less stringent
financial responsibility with more
stringent release detection
requirements). and (2) a line-by-line
comparison of specific state and federal
requirements. In the second of these two
options. all the federal requirements
would be matched by Identical or
closely similar state requirements for
purposes of state program approvaL
Many comments were received on
these options for defining “no less
stringent.” Some commn!iter . felt that
only the holistic approach would allow
states sufficient flexibility. Some
commenters believed that only a line-
by-line review would result in no less
stringent state programs. Other
commenters agreed with the Agency’s
preference for the element-by-element
approach as a balance between
flexibility and certainty. EPA carefully
reviewed these comments and still
prefers the element.by-elenient
approach. This decision was based on
EPA’s intention (1) to develop a state
program approval process that will
allow states to use alternative
approaches in program development
and Implementation, and (2) to ensure-
that state programs meet the baseline
standard. established in the federal
program to protect human health and
the environment.
In the preamble to the AprIl 17
proposal. EPA requested comment on
whether to Include state approval
criteria in regulation or guidance. Many
commPnters wrote, and the Agency
agrees. that Including the criteria in
regulation would ensure needed
cosaistency and clarity in approving
state programs. Subpart C of today’s
final rule provides the oritetia all states
must meet before receiving approval.
and that EPA will use in judging each
state application.
In it. supplemental Fedetal’Register
notice of December 23,1987. EPA
proposed criteria for state program
approval in the form of objectives for
each of the eight technical program
elements: New UST system design.
construction, installation and
notification: upgrading existing UST
systems; general operating
requirements: release aetectioxu release
reporting and investigation: corrective
action: out-ofervice and closed UST
systems; and financial responsibility.
Through the process of identifying the
underlying purpose of the federal
technical requirements in each program
element. EPA developed the proposed
federal objectives. The Agency’s own
interpretation oi administrative and
procedural details that were in the
technical rule were intentionally left out
of the federal objectives.
These objectives represented the
Agency’s expectations of what
constitutes a no-less-stringent state
program. By requiring the state to
achieve the objectives underlying the
detailed federal requirements in each
element rather than match each
regulatory detail of the federal
requirements. EPA provide, a
performance-based measure for
evaluating programs and recognizes that
the precise details in the federal
program are not the only feasible
approach to UST regulation. By
establishing these objectives, EPA also
provides a framework for approval that
guarantee . that each state UST program
provides a minimum level of protection.
Many comments were received on
EPA’s proposal to use the objectives as
criteria for state program approval.
Many cotnl!innters agreed with the
objectives approach and felt that
objectives would allow development of
regulatIons appropriate to the
geographical characteristics and the
profile of the regulated commnmty of
each individual state. Some commenters
agreed with the objectives approach, but
they suggested that the objectives
n i4.d to be more specific in several
areas. The Agency has reviewed each of
the objective. and provided greater
specificity for several of them. More
detail. and gnMan’ e are included in
today’s premnhl In the section-by-
section discussion of the objectives for
each program element Other
commentate expressed concern that the
objective, not be confused with
regulations and emph i ed that the
objectives should be viewed by the
states as no less stringent review
criteria, but not as the model to be
copied into state regulations. EPA
agree. with these commenters and. in
the following section. has provided
further guidance on how states should
develop regulations that will meet the
performance goals set out in the
objectives. Further ore, the Agency has
developed a Handbook for State
Program Approval that will give more
guidance and clarification on meeting
the objectives.
One commenter d cussed the legality
of the federal objectives approach. This
cammenter argued that the approach
was illegal, saying that Congress did not
authorize EPA to create a subset of the
federal requirements that would be used
to assess the adequacy of state
programs. However, EPA does not agree
with the -uiwuentar who argued that the
federal objectives and element-by-
element approach promulgated today
are inconsistent with Congressional
Incent First under today’s rule. EPA is
not, contrary to the coinmenter’s
suggestion. picking and choosing a
subset of federal requirements by which
to judge the stringency of state UST
programs. Instead, the federal objectives
and the element-by-element approach
are designed to identify, on a holistic
basis, the environmental performance
standards to be achieved by the
technical requirements in each program
area. Stats programa will be required to
achieve the performance standard for
each program area rather than match
each detail in the federal rule. EPA does
not believe that the environmental
objective, approach set out in today’s
rule will result in the approval of state
UST programs that are less stringent
than the federal UST program.
Second. the language of section 9004
Is consistent with the federal objectives
and eImn iit-by -element approach
promulgated in today’s rule. Section
9004(b) require. EPA to judge tha
stringency of state programs by
comparing the state requirements m
seven program areas to the

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37 Federal Register / Vol. 53. No. 185 I Friday . September 23. 1988 / Rules and Regulations
corresponding federal standards.
Nothing in the statutory language
suggests that a line-by-line comparison
must be made between individual state
requirements and corresponding federal
regulations. Rather, paragraphs (a) and
(b) of section 9004. when read together.
strongly suggest that the relevant
comparison is to the standard set in
each federal program area.
Consistency among state programs
was an objection raised by many
coinmenters who are concerned that
UST programs that vary from state to
state will create an excessive
compliance burden on those members of
the regulated community operating in
more than one state. These commenters
believe some flexibility for states is
useful, but that uniformity and
consistency are equally important Some
coinmenters pointed out that the federal
technical rule is the result of extensive
research and analysis. and they
suggested that states should be
encouraged to adopt the federal
standards.
EPA does not believe, however, that
the specific federal requirements ui the
technical rule provide the only definitive
approach for protection of human health
and the environment. Many of the
specific details of the federal regulations
are necessary to establish requlre.nents
that the regulated community can follow
and that the Agency can enforce. State
regulations must accomplish the same
underlying goals that the federal
requirements aim to achieve If a state
chooses to accomplish them using
different methods or admuiistrative
procedures than the federal government.
however. EPA does not believe that that
choice should preclude program
approval.
b. The technical standards rule and
stale program appro vol. The details
provided in the technical rule had to be
included so that the regulated
community could understand
specifically what had to be done to
comply with federal requirements. and
so that the regulations could be
enforceable by EPA. Given the nature of
the state program approval process. EPA
is aware that state program reviews will
inevitably entail some comparison of
specific federal and state technical
requirements because EPA’s technical.
requirements provide a model against
which the state program can be
measured. The Agency is concerned that
requiring such a line-by-line review of
state programs would result in delays
that would be due to issues having little
to do with that actual stringency of the
state program or its overall
performance. Thus, in order to establish
the federal objectives for each program
element, EPA distinguished between
those requirements in its technical
standards that are substantive baseline
environmental standards from those
procedural and administrative
requirements that are necessary to
protect human health and the
environment but are not the only
approach for doing so. The former only
are the basis for state program approval
under the “no less stringent” standard.
The latter may also be advised through
a variety of approaches established by
the implementing agency in states that
have not yet received program approval.
In the Supplemental Notice, EPA
requested comment on whether changes
were needed in several provisions of the
proposed-UST technical standards to
ensure the intended flexibility was
available for the approval of states that
are no less stringent. These changes
would allow states to substitute their
own procedural and administrative
requirements for those set forth by EPA
in the federal technical standards. Many
commenters supported allowing states
additional latitude in this exercise of
administrative discretion, specifically as
pertains to the development of
administrative and procedural
requirements. In considering this issue.
EPA noted that several state and local
programs are already implementing
varying procedural and administrative
requirements that appear to be effective.
For the above reasons, EPA has decided
to integrate this additional decision-
making authonty into the final technical
rule. (See the preamble discussion in
support of that rule elsewhere in today’s
Federal Register notice.)
c. Achieving the objective. In
developing a state liST program. EPA
believes all states will have the same
problem the Agency had in defining
sufficiently clear requirements so that
the regulated community will
understand their responsibilities under
the-rules and can be held to comply with
them. UST system owners and
operators, the interested public, and
state inspectors will need to know and
be able to understand the minimum
state requirements that apply to the
complete operation (from installation to
closure) 3f all UST Lystems. However,
the final objectives promulgated in
todays state program approval
regulations do not, and were not n ant
to. restrict states to all the specific
details of the federal program. EPA
intends to allow states to choose a
number of methods that will establish
liST programs with clear.
understandable requirements. The three
major methods are discussed below.
First, a state may adopt or incorporate
by reference today’s final technical
regulations. EPA already has some
indications that several states plan to do
this, These technical requirements have
been developed with the thought that
state programs may use them as the
model for their state UST regulations.
This approach is the simplest and takes
advantage of the effort made by EPA to
develop linpiementable and
environmentally protective regulations.
Second, a state may develop a
different regulatory approach that is,
however, analogous to the federal
program because it satisfies the
performance objectives for each
program element EPA ’s final technical
requirements reflect administrative and
technical decisions that do not always
have to be duplicated for a state
program to be no less stringent in
performance. For example, the federal
requirements for new liST system
installations mandate the use of
nationally accepted codes. The same
performance objective (sound
installations at all new liSTs) may be
achieved if the state simply requires
owners and operators to use certified
installers and the state has a system of
licensing or certifying installers that
includes adherence to these same codes.
If a state uses another approach or
requires a different method than that
specified under the federal program, the
state must demonstrate that it has
achieved the federal objective within
that program element to be accepted to
operate “in lieu of” the federal program.
In adopting this second approach. the
state may develop different regulations
that provide as specific and clear
directions for the owners and operators
as do the federal requirements. One
advantage of this method of rulemaking
that the regulated communities will
understand their responsibilities and
can be held to comply with them.
Alternatively, a state may choose to
promulgate regulations that are more
general and then supplement these with
detailed policies and guidelines to
instruct the regulated community and
the public of Its requirements and
procedures for implementing the
regulations. These general requirements
must at least provide the state with
authority to hold all UST system owners
and operators responsible for achieving
the overall performance goals provided
in the objectives, even if the state
regulations do not specify exactly how
to meet each performance goal. This
method of rulemaking, however, has a
significant disadvantage in that it may
increase the state’s Implementation
burden because, to be enforceable, any

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Federal Register / Vol. 53, No. 185 I Friday, September 23, 1988 I Rules and Regulations 37223
such general requirements must be
supplemented by other state actions that
ensure adequate clarification of how, at
a minimum, to achieve the performance
goal. Supportive actions could consist of
state administrative policies, technical
interpretations, procedures, or
guidelines that more clearly establish
how the general requirements can be
met. For example, if the slate regulations
require the use of only approved
methods of release detection, then some
system for review and approval of
release detection methods must be
developed by the state that will not
result in approval of methods less
stringent than those allowed wider the
federal program.
Several cominenters on the December
23 supplemental notice expressed
concerns about this type of state
approach and whether stats guidelines
should be sufficient for program
approval as opposed to detailed state
regulatory requirements. Several other
commenters felt that procedures and
guidelines would be adequate to
demonstrate the adequacy of a state
program and that this could significantly
expedite program approvals, thus
allowing the state to concentrate its
resources on deanups and other
necessary activities. Two commenters
objected to allowing state guidelines or
procedures to replace state regulations
for given requirements. One of these
commenters wrote that regulations and
statutes should be required in order to
eliminate the possibility of an informal
change in policy or of enforcement
problems. The other conimeuter felt that,
in order to provide fair notice and
clarity of state methods, such guidelines
or procedures must be submitted for
public notice and comment.
In response to those conhmenters who
expressed concerns over whether state
guidelines should be sufficient for
purposes of program approval. EPA is
clarifying that guidelines are not a
substitute for regulations. Guidance
documents and written policies are not
generally enforceabte. while regulations
do have the force of law. However,
because EPA’s Subtitle I program
approval process focuses on whether a
state program meets federal
performance objectives, an approvable
program will not need to have the same
level of detail and specificity in
regulations that would be required if the
approach to program approval involved
a comparison of individual state
requirements with the federal standards.
State requirements that meet the
underlying federal objectives are
sufficient for approval in terms of
meeting the no less stringent criteria,
irrespective of whether or not they are
supplemented with additional guidance
or procedures. However, if the state
does not provide specific enough
direction to the regulated community
and public on how to implement the
state regulations, the state may not
receive approval for their LIST program.
General regulations are difficult to
enforce because the vagueness and lack
of specificity may confuse owners and
operators who will then be less likely to
try and comply with them. Without the
ability to provide adequate enforcement
through clear direction, the state
program will not be approvable. One of
the criteria for withdrawing approval of
state programs (* 281.60(1)) Is the lack of
ability to enforce state regulations; thus.
it is also a criterion for approval. An
instance of where clear direction might
be needed occurs in the objective for
release investigation, confirmation and
reporting, which says that a state must
have standards that require prompt
reporting of confirmed releases. The
state should define what “prompt” is
using a number so that the owners and
operators have a clear direction on
when such reporting must be done and
so that the state has the ability to
determine and then to enforce a
violation of this reporting requirement
Therefore, where specific state
standards are not embodied In statute or
regulations, the Agency will consider
policies or guidance documents
submitted with the state application for
approval if they are used to support
applicable general state regulations.
Third, a state can use. for example, a
combination of the above approaches
that copies some elements of the federal
program in some elements, and uses a
different regulatory approach in other
program elements. The state program
will have met the no less stringent
criteria for state program approval if the
regulations within each element achieve
the performance objectives for those
elements.
d. State approaches to ground-water
classification. EPA recognizes that
releases from LIST systems located in
certain sensitive areas could pose a
greater risk to human health and the
environment than other areas. In
developing the technical regulations, the
Agency considered and requested
comments on a federal classification
approach under which a class or classes
of UST systems Located in higher-risk
areas would be subject to more stringent
requirements than LIST systems located
in less sensitive areas. After careful
consideration of this issue. EPA rejected
the concept of a federal ground-water
dassification scheme ci promulgating
the final technical regulations for
underground storage tank ,. (This Is
discussed in more detail In the technical
staniL.rd , rule, published eIsewhei in
todays Federal Register.) The Agency
strongly believes that the dassificatlon
of ground water must be based on highly
localized hydrogeological circumstances
and therefore, that classification should
be a state or locally initiated activity.
The Agency has also concluded that
criteria for a national scheme of
classification (that Is, one that could
encompass all the conditions across the
country) could not be developed and
feasibly applied to the national UST
program.
A classification approach to
regulating LIST systems at state or local
levels, however, where local
environmental conditions are better
known. may be feasible and
appropriats; such a classification
approach could result in improved
environmental management. For
example, several states have karat or
limestone areas where contamination.
once release is nearly impossible to
contain. In such areas. the state Is free
to consider whether secondary
containment with interstitial monitoring
could provide enhanced leak detection
and better prevent releases in these
sensitive areas. Under today’s approach
to program approval, the Agency allows,
but does not require. states to develop a
classification approach for use ci
determining whether more stringent leak
detection and containment standards
should apply to UST systems being
located in sensitive or high-risk areas.
States that have already developed a
classification system may decide to use
it to regulate USTs. Under todays final
rule for state program approval, the
federal objectives must be the minimum
requirements in all areas of the state for
the program to be determined “no less
stringent” than the federal program:
however, states could use a
classification scheme to establish
standards for certain areas that are
more stringent than those under the
federal program.
e. The use of state variances in
oppro ved programs. The Agency
solicited comment on the use of
technology- and risk-based variances in
the preamble to the proposed EPA
technical standards rule (52 FR 12739
and 48841). Technology-based variances
are included in the federal technical
regulations (published elsewhere in
today’s Federal Register). For example.
the release detection standards allow
owners or operators to use non-specified
methods of release detection if they can
demonstrate to the implementing

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37224 Federal Register / Vol. 53, No. 185 I Friday, September 23. 1988 I Rules and Regulations
agency, or if the Implementing agency
otherwise determines, that the
alternative method will achieve
performance that is as effective as the
allowed methods. Risk-based variances
would allow less frequent or alternative
approaches to release detection of
protected tanks in areas where the risk
to human health and the environment is
believed to be lower (for example,
where ground water is deep and not
vulnerable to contamination). The
Agency has decided not to include risk-
based variances in the federal technical
standards rule because it is the
Agency’s experience that variances
based on site characteristics are
generally difficult to justify and
implement. In a regulated community
the size of the nauonal US? community.
such a provision would be practically
impossible for EPA to implement
throughout the nation. Instead, the
Agency has developed national
standards that set a baseline of
protection in all areas.
This subject also arises in connection
with state program approval. In the
December 23. 1987 Supplemental Notice
(52 FR 48645), the Agency solicited
comments on whether state programs
should be approved if they had a
variance procedure for owners and
operators of petroleum US? systems
that allowed alternative and less
stringent release monitoring methods in
lower risk areas (for example, a state
could prospectively classify such lower
risk areas). The Agency received some
comments In favor and some in
opposition to this approach. In
reviewing these comments, the Agency
has decided not to allow approval of
state programs that do not maintain the
minimum federal objectives in all areas
of the state. An important reason for not
accepting the use of less stringent
release detection in “lower risk areas” is
the difficulty in clearly establishing
what constitutes a lower risk. Several
state officials commented that they
would not be allowed by the public to
“write-off” less vulnerable areas.
Another commenter questioned the
judgement of classifying lower risk
areas based on ground water because a
safety and health hazard (explosive or
toxic gases) could be present at any site
with a release. EPA agrees that the final
technical standards for release detection
have been developed to enable the early
detection and minimilRiofl of all
releases to ensure that present and
future ground water uses are protected
at all sites and that all health and safety
threats are avoided. The state
requirements can do no less if they are
to be considered no less stringent For
this reason, today’s final state program
approval objectives for no less stringent
programs do not allow approval of
states if these states permit less
stringent release detection in areas that
are desmibed or classified as less
vulnerable, whether on a case-by-case
or class basis.
If a state program includes a variance
procedure, it can still be approved if the
state can demonstrate that its eligibility
criteria and procedures for reviewing
site-specific or more general technology-
type variance requests will ensure no
less stringent protection of human
health and the environment. However, if
a state allow, variances, it must agree to
issue them only in a manner that is no
less stringent in protecting human health
and the environment as the federal
program. Terms of this agreement will
he specified in the MOA included in the
state program application.
Following is a more detailed
explanation of the objectives associated
with approval of no-less-stringent state
program elements.
2. New US? Systems and Notification
( 1281.30)
EPA has concluded that an important
objective of the national US? program is
for all new US? systems to be designed.
constructed. installed, and protected
from corrosion in a manner that will
prevent releases during their operating
life. Also, certain notification
requirements should be met when new
USTs are installed. States can achieve
this objective in several ways: Adopt
the same new UST system requirements
found in the federal technical standards:
require new US? systems to be built and
Installed In accordance with nationally
recognized industry designs and
standards by incorporating the
applicable national codes and practices
directly into state requirements: or
adopt such codes by reference into state
regulation. The proposed federal
objective for new US? systems has been
revised somewhat to reflect changes
made in the final technical standards
and public comment received on the
proposed objective. The objectives for
design and construction have been
merged with the Installation objective to
emphasize the common reliance on
established codes In today’s final
technical standards rule.
Some commenters were concerned
that a general dependence on current
national consensus codes would not be
protective of the human health and the
environment As discussed in the
preamble to the technical standards
rule, published elsewhere in today’s
Federal Register. EPA does not agree.
The Agency’s analysis of these Industry
codes and practices, public comments
on the proposal, and new information on
the causes of releases from US? systems
has led to the conclusion that
implementation of these nationally
recognized codes will protect human
health and the environment EPA notes
that several of these codes for new UST
system design, construction, and
installation have been revised and
improved since the publication of EPA’s
proposed technical requirements on
April 17. 1987.
Another commenter was concerned
that state requirements adopting current
industry codes will not reflect future
improvements in technology when they
occur. The Agency believes the current
industry code. and standards are
already protective of human health and
the environment. If a state adopts
current codes and those codes are later
updated and improved in response ‘n
new knowledge and technological
developments, the state may decide to
adopt the revised code. but it will not
generally be required to do so for
purposes of program approval. They
may need to submit program revisions in
the future, however, if the federal
technical standards are revised based
on a new code.
One commenter suggested that EPA
specify which industry standards were
acceptable. The commenter believed
that EPA should not assume that all
standards developed by all national
groups were adequate. For each elernen’
in which codes have been developed.
the final federal technical standards !ist
the appropriate codes that may be used
for purposes of compliance.
The federal objective concerning spill
and overfill equipment (I 281.30(b))
requires that the state program ensure
that all owners and operators of new
UST systems install equipment to
prevent spills and tank overfihls. In
addition, when tanks are upgraded. such
equipment must be Installed as part of
the upgrade. The proposed objective
(I 281.32(b)) was modified to reflect
changes in the final technical rule. The
federal requirement for spill and overfill
equipment was originally contained in
Subpart C. General Operating
Requirements. In today’s final technical
standards rule. this requirement for
equipment has been moved to Subpart
B. UST System Design, Construction,
Installation and Notification. To remain
consistent with this formatting change in
the federal technical standards rule, the
final objective for spill and overfill
equipment has been included with the
objectives for New UST Systems in the
state program approval rule
(I 281.30(b)).

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Federal Register I Vol. 53, No. 185 / Friday, September 23, 1988.! Rules and ’Regulatlons 37225
- To be no less stringent in this area.
the state must have requirements that
all new tanks must have spill and
overfill equipment (except as noted
below). Equipment to provide such
protection Includes small catchment
basins for spills, and alarms, automatic
flow restrictors. or shutoff devices for
overfill prevention. A provision has
been added to clarify that states do not
have to require spill and overfill
equipment on tanks that are manually
filled through the addition of less than
25 gallons of product at a time (for
example, used oil storage collection
tanks at service stations that are
manually filled In small volumes). This
change recognizes the limited equipment
exemption that has been added to the
final EPA technical standard concerning
spill and overfill equipment.
The proposal allowed state
substitution of requirements on
transporters in lieu of spill and overfill
equipment. Several comnienters were
concerned that this provision could
interfere with current regulations set
forth by the U.S. Department of
Transportation, and that they would
also not provide sufficient spill and
overfill protection. EPA agrees that this
problem cannot be adequately solved by
procedures required on the transporters
alone and that requiring UST preventive
equipment Is more protective. Therefore.
the final objective has been revised to
no longer allow for substitution of
procedural requirements on transporters
in lieu of spill and overfill equipment on
the UST system.
The federal objective concerning the
notification requirement ( 281.30(c)) is
that the state program ensures that all
owners of new IJST systems notify the
implementing agency of the UST’s
existence. Under section 9002 of RCRA,
this notification requirement already has
been implemented nationally for
existing UST systems. Owners of
existing and new US ’I’ systems were
required to notify the designated state
agency of the existence. age. size. type,
use and location of their USTs beginning
May 1988. Therefore, states may be
approved if they only require owners
and operators of new UST systems to
notify the state agency because
notifications of existing USTs have
already taken place under existing
federal authorities.
Although it was not included as a
requirement for state program approval,
the April17 proposal solicited comment
on whether approved states must
require updated notifications from
owners and operators of existing USTs
(52 FR 12857). Updates of existing
notifications, however, are not
mandated by federal law and are not
part of the final federal technical
requirements. In general, cominenters
concurred with the decision not to
include updatix as a state program
approval requirement, although several
pointed out that such updated
information may be useful to the state.
A few coinnienters expressed their
belief that states should be required to
update existing tank notification
precisely because this data Is useful to
the state for enforcement purposes.
Although some state. may choose to
have notification updates as part of their
program. EPA is not requiring collection
of this Information for purposes of state
program approval because it is not
required under the federal program.
Another commenter pointed out that
the federal notification form was
proposed (on AprIl 17) to be revised to
Include a new compliance status section
that must be filled out by new UST
system owners and operators. The
commenter questioned why this
additional information was not Included
in the objective for new UST systems in
approved state programs. While this
Information will be useful to the
implementing agency, EPA is not
convinced that suck a requirement is
necessary to achieve the federal
objective for new UST systems. The
new UST system compliance checklist is
to assist In compliance monitoring, and
will not act as a substantive
performance standard, Because the
additienal information is an
enforcement tool rather than a new UST
system standard, it is not required as
part of the objective for new UST
systems. Thus, states will be left with
the discretion as to whether or not they
desire to use the notification form to
collect this additional information on
new UST installations for purposes of
compliance monitoring
3. Upgrading Existing UST Systems
(I 281.31)
An Important national objectIve I. to
ensure that unprotected steel UST
systems are either upgraded or replaced
within 10 years. This phase-in of
protected tank systems is expected to
prevent numerous leaks that would
otherwise occur In the future due to
corrosion of unprotected stoel. The
upgrading of existing UST systems
ensures that existing USTs meet
essentially the same standards of
protection as new UST systems. Thus,
by 1998, all UST systems must prevent
releases due to corrosion. and spills or
overfills. This 10-year schedule,
however, does not include Installation of
release detection devices, which must
be completed wIthin 5 years according
to the release detection objective at
1281.33 (b).
ThIs 10-year goal maybe achieved in
two general ways. First, the state may
develop a phase-in schedule that will
bring all the USTs Into compliance
Incrementally during the 10-year period.
The phase-in schedule could be based
on the age of the tank, ground-water
sensitivity, county, zip code or any other
factor chosen by the state. Secon the
state may establish the same baseline
goal as the federal requirements (1998),
without specifying a detailed phase-in
schedule.
The proposed objective for upgrading
existing UST systems induded a
provision that allowed states to
demonstrate in the state program
approval application how other state
reawrements will achieve this federal
goal without an explicit 10-year
deadline. In the Supplemental Notice,
EPA described what such a
demonstration might consist of and
requested comments on this approach.
While severaL commenters encouraged
the use of this more flexible approach,
other commenters objected that the 10-
year deadline was not simply a goal to
work toward but that it was a
requirement that must be achieved. The
language in the proposed objective
created confusion on this point, The
discussion of thi, objective in the
Supplemental Notice further raised
commenters’ concerns because it said
that states could establish other
requirements that might reasonably
achieve the same general objective by
prompting most unprotected tanks to be
upgraded, One commenter asked for a
definition of “most tanks.” Mother
commenter argued that if EPA ’s best
judgment dictates that tanks should be
upgraded wIthin 10 year. (as required In
the federal technical standards), then a
state program that does not accomplish
thi, is not as stringent as the federal
program.
The Agency has considered these
arguments and has deleted the provision
that allows a demonstration of how
upgrading will be achieved without a 10.
year deadline. An Important goal In the
federal technical standards rule Is for all
existing UST systems storing regulated
substance . to be required either to
upgrade to new tank standards within
10 years through retrofit or replacement.
or be permanently closed. Most
commenters to the proposed technical
standards rule supported this
requirement (for further diacusaion, see
the Preamble to the final federal
technical standards rule elsewhere in
today’s Federal Register). The Agency
was concerned that the provision in the

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j 2 fndntel Register vul. s -z . i8s4 &ia . SOPtenIbeL . i 8& 1 Rules and Regulations
proposed objective would lead states to
believe that a time period greater than
10 years for upgrading was allowable. In
addidon. it was unclear what
information would provide an adequate
demonstration. The Agency was
concerned that the lntlq,utations
would vasy widely on what was
suffi ent for the state program to be
approved and guidance on the subject
has proved difficult to provide. For all
these reasons. the Agency has deleted
the prupused pruv sion that allowed the
state to demonstrate how the goal of
upgrading existing USTs w ithui 10 years
would be achieved without a deadline.
4. General Operating Requirements
(I 281.32)
An thtportant objective of the final
EPA technical sI ’ds is the
prevention of releases through the
proper operation and maintenance of
the UST system. EPA has concluded that
the improper operation of UST systema
can result in ig iificant releases into the
envüonment To achieve the obiectwe of
the -.ding federal requirements
in this W in element. a state program
neede to demwlrate that the risk of
operation-related releases is mm mi c I
This objective c ists of five different
provisions: (1) The ion of procedures to
prevent averfills anti spiiis dunog
transfer (2j the maintenance of
corrosion protection i3)
ensuring the conbnued cocipatibthty of
the regulated substance stored with the
UST systems: (4) enawing only sound
upgrades and repairs. which are
pmfwnied in accordance with
nationally-recognized practices: and (5)
maint ” ” of recordkeeping
necemaay to dmnrmstrate recent facility
compliance-
The final t&inkal standards requite
that spills and ovethlla be prevented
through the use of proper procedures
during product transfer (* 28L32 afl. In
response to one commenter’s concern
that the proposed objective in this area
was not specific enough regarding
proper tranafer procedures. the final rule
now requires that steps be taken to
ensure that the space in the tank is
sufficient to receive the volume being
transferred and that the transfer
operation is snoiutored constaiuly. This
change it clearer that the
Agency’s intent in this aspect of the
objective is consistent with the final
technieni standards.
The objective rnnrPrfliflg the
operation and maietPrn ce of corrosion
protection has been modified in
response to con lTtPflt 5’ concerns
( 281 32Lb)J. One cnznmenter correctly
pointh at out that the proposed objective.
which stated that UST systems must “be
operated and maintnin d to prevent
releases dee to corrosion for the
operating life of the UST systems if they
have been equipped with corrosion
protection”, was not p.e .fie enough to
ensure that states achieved the same
perfor nnn goals as the corresponding
EPA tei ’ hnia 1 standards, Thus, the
revisions to the final wording of the
provision clarify EPA’s intent that
procedures for operation and
maint w e of corrosion protection be
carried out by someons knowledgeable
and trained in coeroswn protection. The
goal is to emure that the necessary
prt ”cn is in place and operating
properly. A onto has been added for
further gu tlan e to sa eet that state
re ige a this area build on
several e i1ing aa i”aal codes (such as
thoesve& hIi pd bythe National
Association of Cemosion Engineers).
State progrems must hold owners and
operators for
compatibility between tank systems and
th stzxed substa (* 281 32(c)).
EPA has coacleded that bi ’mp”tibthty
can result In releases due to structural
detenoration of tanks or piping. EPA
reconuna die use of emtain industry
codes for —. .ng the compatibility of
alcohol-b’ ” ”d fuels with fiberglass
tanks. For poses of program
a vvaI. a eraI stain requirement in
this area would be sufficient (os it is in
EPA’s final technical standard in
§ 280
The general ating objective
includes a 1 pwv , ,Ofl that addresses UST
system upgrading and repairs
(I 281.32(d)). An additional requirement
that has been added to this objective is
that the system be found structurally
sound before upgrades or iepau ’s can
take place. EPA has concluded that such
an asasmesit is an important
performance objective because all repair
and upgrade tedmologies depend on the
structural soundness of the existing
system. Today’s final technical
standaith for upgrading and repairs
emphasize this Initial assessment of
tank system soundness before a repair
or upgrading. The change to the federal
objective similarly reflects this
clarification of the corresponding
federal requirements. This change also
is made to respond to toltcerns raised
by some comnientere on the December
23 Supplemental Notice that the
proposed objective appeared to ignore
the emphasis on an initial assessment
that was included In the proposed (and
now flnal tethni’ al standard
concerning repairs.
To clarify the proposed objective. EPA
has revised the language for the final
rule to ensure that states mandate that
SUCh a se 11w 11I are conducted. There
are several approaches for det rmining
the structural integrity of I ank2 , for
example. internal inspections. vacuum
tests. and tighteess testing. To meet this
objective, a state may allow several
approaches. mandate a specific test
technology, or simply require that a
general pesformance Level be achieved.
This objective also ensures that
upgrades and repairs are conducted in a
manner that wall prevent future releases
for the reniainmg operating life of the
LJST system. Under today’s final
technical rules, a steel tank that is
structurally sound may be upgraded or
repaired by use of an internal lining
alone (without cathodic protection), by
retrofitting with a cathodic protection
system. or both. FRP tanks must be
repaired by the tack manufacturers
authorized representative or in
accordance with national codes EPA’s
final technfr aI standards require the use
of applicable national codes and
standards to ensure sound repairs and
upgrading practices- Thus, the
stringency of the stats requirement will
be considered in li 3 ht of these existing
na’ fly recognized practices.
The final provision of the general
operating objective establishes that
state programs must require UST
owners and operators to maintain
records of monitoring. testings, repairs
and closure sufficient to demonstrate
recent facility compk i e status, except
that repair and upgrading records must
be kept for the operating life of the
facility (I Rt22_(efl. As dia ,.ja ed Ln
greater detail in the preamble to the
linni teehvir a 1 standards rule (elsewhere
in today’s Federal Rogister). the Agency
has concluded that some recozdkeeping
requirements are necessary to establish
the recent compliance status of this
large regulated community because
regular reporting and frequent and
routine inspections at all sites are not
feasible- One rnn 1enWr requested that
EPA specify extensive recordkeepung
requirements for state programs.
including site plane and tank tests. EPA
encourages states to require that owners
and operators keep site plans on file as
they could be usefuL However. EPA will
leave this administrative requirement.
as well as other specifics of
recordkeeping. to the discretion of the
state according to the needs of its
particular UST program.
In evaluating whether a state program
is no less stringent in this area, the
Agency will consider four points
pertaining to the state’s recordkeeping
requiremantQ- First . the state must
require records addressing the same
areas of the program that are mandated

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Federal Regi5ter / Vol. 53, No. 185 / Friday, September 23. 1988 / Rules and Regulations
37227
under the federal technical standards.
These areas are listed in the objective
and include release detection
monitoring, corrosion protection testing.
testing and certifications for repairs and
upgraded UST systems. and site
assessments at closure. Second. the
state program must require records to be
retained long enough to demonstrate
recent facility compliance. EPA has
designed the final technical standards to
represent a minimum paperwork burden
that will still enable an inspector to
assess current facility compliance
during an on-site inspection. These
requirements in the technical standards
rule may provide a guide for states to
follow in developing their own
requirements.
Third. the state’s requirements must
ensure that documentation of
compliance is sufficiently detailed to
enable an inspector to evaluate
compliance in the areas mentioned
above. For example. site assessment test
results that demonstrate the condition of
the site at closure must be avatlable.
Finally, the state program must require
that all on-site records be made
immediately available when requested
by representatives of the state agency.
or provided promptly to the inspector
when they are stored off-site. If a state
requires routine reporting. or collects
and maintains this information itself,
then an owner and operator may not
need to maintain records on-site in order
for the state program to meet this
objective.
5. Release Detection (1 281.33)
The detection of releases from new
and existing UST systems is an
important objective in the federal
program. In the preamble to the
December 23 Supplemental Notice (52
FR 48645). EPA discussed five major
provisions of the performance objective
for release detection. These provisions
included requirements for: (1) The
phase-in of release detection
requirements; (2) new petroleum tank
systems; (3) the applicability of release
detection to both tanks and piping, and
the capability of detection methods
used; (4) new hazardous substance UST
systems; and (5) all existing UST
systems.
EPA received numerous comments on
these proposed objectives, as well as the
April 17 proposed technical
requirements for release detection. The
comments related to the proposed
objective are addressed below, while
the commeiits on the federal technical
standards for release detection are
discussed in the preamble to the federal
technical standards rule published
elsewhere in today’s Federal Register.
The final technical standards for release
detection have been revised to reflect
public comment as well as new
information available to the Agency
since proposal regarding the causes of
releases from UST systems. These
changes in the federal technical rule are
summarized in Section IV.D. of the
preamble to that final rule package.
First, more frequent tank tightness
testing (annual) of unprotected tanks is
required during the 10-year upgrading
period. Second. less frequent monitoring
of new and upgraded tanks is allowed
for 10 years from installation or upgrade,
or by 1998 if it is later, at which point
release monitoring must become more
frequent. Third. the schedule for phase-
in of release detection over I to 5 years
at existing tanks will be based on age:
and fourth, release detection is phased-
in sooner on pressurized piping systems
(within 2 years).
EPA has modified the substance and
organization of the proposed release
detection objective in today’s final rule
as a result of these changes and the
reformatting of the final technical
standards. The changes in the format for
the final release detection objective
resulted in a section for: General
methods. phase-in of the requirements.
requirements for petroleum tanks and
piping. and requirements for hazardous
substance USTs. The following
discussion addresses the changes to the
federal objective for release detection in
greater detail.
a. Genera! methods ( 281.33(a)). An
important provision of the release
detection objective is for state programs
to ensure that only those methods are
used that can detect releases from UST
systems as effectively as methods
allowed under the federal programS The
technical standards for release detection
specify general performance and design
requirements for several different
detection methods to ensure reliable
detection of releases. Accordingly, the
proposed objective for state programs
generally required the use of methods
that are as effective as the methods
allowed under the federal standards.
and that the method be designed.
installed. operated and maintained so
that releases are detected.
A few cominenters expressed concern
that this provision of the proposed
objective was vague and should include
some of the details from the proposed
technical standards concerning
allowable methods. For example. one
commeriter expressed concern that the
wording of the proposed objective
would allow states to use different types
of interstitial monitoring, and that such
flexibility would place an undue burden
of oversight and evaluation on the state
implementing agency.
EPA does not agree that the objective
must include the same details contained
in the final federal technical standards.
As stated earlier, state programs do not
have to mandate exactly the seine
requirements as the corresponding
federal standards in order to be no less
stringent, The state program must have
an approach. however, that will ensure
at least an equivalent level of
performance as the federally-allowed
methods. EPA plans to issue guides soon
concerning the performance and correct
use of various generic methods of
release detection that should assist
states In developing their own
guidelines and evaluations of release
detection methods
The provision of the proposed
objective regarding general methods has
been revised to reflect changes made in
the final release detection technical
standards. First, wording has been
added to § 281 33(a)(1) clarifying that
release detection methods must be able
to detect releases from any portion of
the UST system “that routinely contains
the regulated substance.” EPA interprets
this phrase to include all underground
delivery piping and the tank vessel itself
(except for the very top of the tank,
which is protected by overfill prevention
requirements). This clarification ensures
that several viable methods of release
detection are not disallowed (for
example. in-tank level gauges that
cannot detect releases due to loose bung
hole covers, or double-walled tanks that
do not cover the full 360-degree
circumference of the tank).
The proposed objective for release
detection specified that, in general, the
method of release detection chosen must
be capable of detecting a release of
regulated substances before it migrates
beyond the excavation area. This
phrase. “before it migrates beyond the
excavation area.” was intended to be
the performance goal that the state
requirements must meet. The Agency
requested comments on this language in
the Supplemental Notice, specifically on
what types of state requirements would
ensure a similar level of performance as
the federally-allowed methods. The
Supplemental Notice discussed the
placement of ground-water monitoring
wells as an example of possible
flexibility in specific requirements. EPA
noted that state regulations permitting
ground-water monitoring wells to be
located outside the excavation zone
might be acceptable if another method
was combined with the wells. One
commenter pointed to a contradiction
between this example and the

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37228 Federal Register I Vol. 53. No. 185 I Friday . September 23. 1988 I Rules and Regulations
performance requirement, and asked for
clarification.
The phrase ‘before at migrates beyond
the excavation area” has been deleted
in the final objective for release
detection because it precludes the use of
some acceptable out-of-tank methods of
release detection that are sometimes
installed just beyond the excavation
zone. such as ground-water monitoring
wells. The state should be able to allow
the use of the same release detection
methods that are allowed under the
federal technical standards. EPA has
deleted the original phrase and added a
second sentence that specifies the
factors that must be considered when
comparing other release detection
methods against the methods approved
in the federal technical standards. This
change alters the basic performance
goal that the state requirements on
release detection methods must achieve;
the new performance goal consists of a
comparison with the federally-allowed
methods. The federal technical
standards allow six methods of release
detection and also allow any other
methods that meet either of two more
general release detection requirements.
One of these reqwrements is a release
detection rate of 0.2 gallons per hour
( 280.43(hJ(i)). The alternative is a
comparison test of the effectiveness of
the proposed method against the first six
methods, which consists of a
demonstration by the owner and
operator for the implementing agency
(I 280.43(li)(ll)). Therefore, the language
in the final release detection objective
for state program approval is intended
to allow the state to permit the use of
any of the federally-approved methods
as wall as any methods that the state
determines are as effective as the
federally-approved methods.
Second. 4 28L33(a)(2J has been
revised to specify that all methods must
be properly calibrated in addition to
being designed. installed, operated. and
maintained to detect releases. This
minor change makes the objective
consistent with the approach in the final
te 4 ln al standards. Third. wording has
been added that makes it clear that all
methods must be implemented In
accordance with the capabilities of the
method. This change reflects an
amendment to the technical standards
to clarify that a method not only has to
be capable of detecting small releases
but must also be operated in a manner
that will make use of those capabilities.
b Phase-ce of reqwreinents
( 2S1.33(b1J. As discussed in the
preamble to the Deomiber 23
Supplemental Notice. EPA has also
concluded that to be no less stringent, a
state program must ensure that release
detection is applied at all UST systems
as rapidly as required under the federal
program. The Agency is convinced that
numerous existing UST systems are now
leaking and, therefore, an important
performance objective for state
programs is quick detection to enable
initiation of release response and
corrective action. The proposed
objective allowed states the flexibility
to complete this phase-in in different
ways providing that it is completed as
rapidly as under the federal technical
standards rule. Several commenters
supported this approach. Several others.
however, expwsaed the belief that EPA
should not permit any variation from the
proposed federal technical standards
with regard to phase-in dates for
purposes of stats program approvaL
These commentor’s were concerned that
the proposed objective would allow any
state phase-ia method to be approved
and did not dearly identify evaluation
criteria for determming acceptable state
phase-tn approaches.
In today’s final technical standards
rule. EPA has decided to phase in
release detection over I to $ years at all
UST systems following a specific
sc hiI that is based on the age of the
UST system.. This approach was
5ti atcd by numerous coinnienters.
Although EPA recommends that a
similar approach be used by state
programs, the Agency has decided to
retain flexibility in the final objective to
can ue to allow states to use other
phase-an approaches. EPA believes
n rous other reasonable approaches
are possible including the phase-rn of
release detection sooner at UST systems
located near drinking water wells. The
key to meeting this federal objective is
to ensure that release detection is
scheduled to be completed at all UST
systems before the end of the 5-year
phase-in period.
In response to some commenters’
concern about the clarity of this
objective, the final objective has been
revised to mandate that states provide
“an orderly schedule that completes”
the phase-in within 5 years. Although
states do not have to use the criterion of
age to be no less stringent in
peiformance. they must provide a phase-
in schedule that results in significant
se nts of the regulated commumty
using release detection methods well
before the end of the 5-year time period.
Approaches that allow a majority of the
regulated comnmusuty to wait until the
end of the 5-year period would not be
ameptcd as an “orderly schedule.”
Allowing the major portion of the
regulated community to wait until the
end of the period will result in serious
noncompliance because much of the
regulated community will wait until the
last minute to apply release detection. A
scarcity of release detection services
would then result when everybody
begins to demand these services at the
same time, and releases will continue to
go undetected in the interim,
EPA has also clarified § 281.33(b)(2) to
require that each state’s phase-in
approach mandate that either release
detection be applied or the system be
closed. The objective for release
detection proposed on December 23 did
not include a conditional requirement to
close the UST system if the owner or
operator chose not to apply release
detection. One comnienter argued that
the requirement to close is a powerful
incentive to ensure that release
detection takes place, and therefore, is
important to the achievement of the
objective. l’his coinmenter pointed out
that such a requirement was propc sed
he federal technical standards ann is
important to ensure that facilities are
not allowed to opelate in
noncompliance (without release
detection) after the phase-in period is
over EPA agrees with this coxnmeoter
and.has revised this objective to include
this requirement.
The final objective has been changed
also by adding the requirement that
release detection methods that can
detect a release within an hour must be
applied at all pressurized undergrounci
piping within 2 years of the effective
date of the federal requirements This
change reflects the increased stringency
of the final technical standards
concerning release detection for
pressurized piping. EPA believes that art
important performance objective is that
state programs ensure that automatic
flow restrictore or shutoff equipment or
other hourly monitoring methods (such
as vapor monitoring) with alarms be
applied to all pressurized piping as
rapidly as is required under the
corresponding federal requirements. The
A acy has concluded that pressurized
piping without such release detection
equipment poses a serious threat to
human health and the environment.
c. Requirements for petroleum tanks
ffi 28? XJ(c)). Another important aspect
of the proposed release detection
objective was for all release detection
methods to be applied at least monthly.
except that for 10 years. infrequent
tightness testing combined with monthly
inventory control could be used. As
discussed in the preamble to the
proposed technical standards. EPA
believes that repeated monitoring on a
frequent to continuous basis is the first

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Federal Register I Vol. 53, No. 185 / Friday. September 23, 1988 / Rules and Regulations 37229
step toward nunimiving threats posed by
releases from UST systems. particularly
existing systems unprotected from
corrosion. EPA did not receive any
comments on this aspect of the release
detection objective except that one
comnienter requested further
clarification of the proposed frequency
requirements. However, three important
changes in today’s final technical
standards have resulted in a revision to
this provision of the final objective in
§ 281.33(c), and they are discussed
below.
First, the final technical standards for
release detection have been revised to
allow tightness testing every 5 years
combined with monthly inventory
control for the first 10 years after the
tank is installed or upgraded. or until 10
years from the effective date of today’s
requirements. whichever is later. The
final objective has been revised to
reflect these changes in § 281 33(c)(1).
After 10 years. monthly monitoring must
be conducted, even at protected
petroleum tanks equipped with spill and
overfill prevention devices. Again, this
change reflects the performance
requirements in EPA’s final technical
standards.
Second. the final release detection -
standards have been changed to require
either monthly monitoring or annual
tightness testing in combination with
monthly inventory control for all
existing petroleum tanks unprotected
from corrosion or not equipped with
spill arid overfill prevention devices.
The final objective has been revised to
reflect these changes in § 281.33(c)(Z).
Third, all the final release detection
technical standards have been
reorganized and the release detection
objective has been changed accordingly
to reflect this. Thus. today’s final
objective highlights more clearly the
requirements for petroleum tanks by
featuring them in new § 281.33(c).
d. Requirements for petroleum piping
( c 282.33(d)). Another important aspect
of the release detection objective is
monitoring of the underground piping
attached to the tank. in the proposed
objective (as well as the proposed
federal technical standards for release
detection). all underground piping had to
meet the same release detection
requirements as the tanks except that
new pressurized lines without
continuous monitoring had to use
automatic shutoff equipment. Today’s
final objective concerning release
detection for the piping reflects several
changes that are due to revisions made
to the final technical standards.
First. to be consistent with the final
technical standards, the provision iii the
objective pertaining to release detection
for petroleum piping has been separated
from the one for the tanks. This change
is intended to clarify the different
performance objectives that must be
achieved for the piping. In addition.
monthly inventory control as a method
of release detection Is not sufficient to
meet this requirement because it Is not
as effective as any of those methods
allowed under the federal technical
standards (see I 281.33(a)(1)J.
Second. a phrase has been added to
clarify that only underground piping that
routinely contains petroleum must have
release detection. State requirements do
not have to address release detection for
fill pipes and vent pipes to be
considered no less stringent.
Third, the objectives for pressurized
lines have been made clearer to indicate
that all such lines must be equipped
with release detection that is able to
detect a release within an hour by
restricting or shutting off flow or
sounding an alarm. In addition to hourly
release detection equipment. monthly
monitoring must be applied to
pressurized piping or annual tightness
tests must be conducted. Reflecting
clarifications of the final technical
standards, these changes indicate the
Agency’s increased concern about the
threats posed by pressurized piping.
Fourth. the objective for suction piping
has been changed to make clear that
these types of lines, as in the federal
technical standards, must be tightness
tested every three years. Two possible
exceptions e dsL Testing every three
years is not necessary if a monthly
method of release detection is in use. for
example, release detection that already
applies to the tank. The other possible
exception to testing every three years is
in the case where the suction piping
system is designed so that product
always drains back into the tank when
the suction is released and the design of
the piping is such that an inspector can
immediately determine the integrity of
the piping system. These types of piping
systems generally have an easily
accessible check valve near the
dispenser that an inspector can test to
identify if the system is working
correctly. Further discussion on the
technical aspects of the design of a
suction piping system may be found in
the preamble to the final technical
standards rule (section IV.D.) and in the
preamble to the proposed technical
standards rule (52 FR 12745).
e. Req inrernents for hazardous
substance’ USTsystems (p281.33(e)).
The final provision of the release
detection objective is release detection
for hazardous substance UST systems.
The proposed objective specified that all
existing systems must meet the same
requirements as existing petroleum UST
systems, and that all new UST systems
must use secondary containment and
interstitial monitoring unless the state
approves another method. EPA is today
promulgating the final objective
substantially as proposed. The objective
ha. been reformatted, however, to add
clarity and to reflect the organization of
the final technical standards rule.
First, the release detection objective
for hazardous substances for both new
and existing UST systems has been
consolidated into one two.part objective
The objective for existing hazardous
substance UST systems (I 281.33(e)(1))
Is followed by the objective for new
ones (I Z81.33(e)(2fl. The wording in the
objective for existing UST systems
refers back to the objectives for
petroleum UST systems for purposes of
simplicity, but the meaning of the
requirement is unchanged from the
proposal.
Second, a couple of minor wording
changes have been made to the
proposed language concerning the
objective for new UST systems in
§ 281.33(e)(2). The deletion of the “no
less stringent” language and the
substitution of wording that holds
variance approvals only to methods that
are “as effective as” methods already
allowed under the state program is
intended to clarify that the performance
of the methods sought under a variance
must be judged relative to other
methods allowed by a state program.
In addition. an effective clean up -
technology must be identified for the
hazardous substances being stored in
the tank. This language has been added
to simply make the objective consistent
with the revisions to the variance
allowed in the federal technical
standards rule. This information on
clean up technologies will allow the
state to make a more informed decision
when evaluating requests fore variance
from the secondary containment
requirement. In some cases this may
lead the state to determine that existing
corrective action methods are
unsatisfactory even though release
detection technology for the hazardous
substance is available.
6. Release Reporting. Investigation, arid
Confirmation (I 281.34)
The objective of this program element
is to ensure that all suspected below
ground releases are promptly
investigated and all confirmed releases
are immediately reported, including all
spills arid overfills that are not
contained and cleaned up. EPA will
consider the following points in
determining whether a state program is

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37230 Federal Register / Vol. 53. No. 185 I Friday , September 23. 1988 I Rules and Regulations
less stringent than the corresponding
ideral program requirements.
First. the state must require the
investigation of all suspected releases.
The final federal technical standards
allow the owner and operator to double.
check data and retest and repair release
detection equipment before determining
that an unusual condition or signal at
the site signifies a suspected release.
The discovery of released regulated
substances at the UST site or in the
surrounding area must, at a minimum.
be a trigger for investigating a suspected
release. EPA notes that many different
methods are being used already to
investigate suspected releases and they
can be tailored to site-specific
conditions.
Another aspect of this objective is
that the state requirements will need to
establish how and when a suspected
release is determined to be a confirmed
release and corrective action must
begin. It is important that state
requirements for release investigation
be clear on this point. Ambiguity on how
a suspected release must be investigated
and when it is confirmed may result in
delays on the part of the owner and
operator in initiating clean up actions.
Because such delays could increase the
threat to human health and the
environment, vague state requirements
would be less stringent that the federal
technical standards rule, which
establishes a failed tightness test or a
finding of significant contamination in
the bottom of the UST system
excavation zone as two separate ways
of confirming a release. A state program
must ensure that unintended delays in
reporting confirmed releases that may
occur as a result of uncertainty are
avoided.
Second, the state must require a
prompt investigation of all suspected
releases. The federal technical
standards specify completion of the
investigation within 7 days (or another
time period specified by the
implementing agency). In contrast. the
federal objective for state program
approval purposes simply requires
“prompt’ investigation because EPA
believes the precise definition of what
constitutes a prompt investigation
should be left to the discretion of the
states within reason. EPA selected 7
days as a time limit in the final technical
standards because the Agency believes
that the type of investigation (a
tightness test or initial site investigation)
that is being required at the federal level
can be arranged and earned out within
that time period. The ability to
investigate a site. however, can depend
on the site and on the availability of the
existing service community. Therefore, a
state that allows some additional time
for completing investigations may still
be considered no lees stringent. For
example, a state that requires more
intensive or complex investigations may
need more than 7 days to complete. EPA
intends to be flexible in interpreting the
promptness of a required state
investigation in consideration of these
factors. However. EPA also notes that if
a state program allows owners and
operators to carry out the same or
similar investigations as required by
EPA significantly beyond the 7 days (for
example. 30 days), that state program is
not likely to meet the objective with
regard to prompt investigation.
Third. EPA has concluded that spills
and overfihls are generally identifiable
through visual observations and that
remedial action should be taken as soon
as possible after such a discovery. The
federal technical standard mandates
that all spills be contained and cleaned
up. and reported when they are not
cleaned up or when they are greater
than certain volumes (for example.
greater than 25 gallons for petroleum
releases). To meet the federal objective
in this area, the state must require that
spills and overfills be cleaned up. Those
spills and overfills that are not
completely cleaned up must also be
reported so that the state can ascertain
whether further corrective action IS
necessary. The Agency is aware,
however, of states that have varying
levels for automatically reporting
aboveground releases Under toda s
rule, a state with higher reporting leveis
than those under the final EPA technical
standards (for example. Florida’s
requirement for reporting of all spills or
overfiUs of petroleum greater than 100
gallons) can be considered n ss
stringent if.two conditions ai,.. ,atisfied:
(1) The state mandates that the
unreported spills be completely
contained and cleaned up; and (2) the
state has requirements that identify the
specific steps an owner and operator
must take to ensure unreported spills
and overfills are contained and cleaned
up in a manner that will protect human
health and the environment. (For
example. Florida has several
requirements in its reg.i ‘ is that will
result in complete containmcnt and
removal of all released product.
including contaminated soils.)
EPA has chosen a reporting threshold
of 25 gallons because it feels that its
requirements are sufficient to guide
owner and operator activities for spills
under this amount, but that spills larger
than 25 gallons must be reported so that
further and more specific guidance can
be obtained by the owner and operator.
However. if state regulations are more
specific than the federal regulations and
provide more extensive guidance for
how to carry out a dean-up at the sites
with larger spills or overfihls. then EPA
believes that the state could allow a
larger reporting threshold and still be
considered no less stringent. Under the
above objective, for program approval
purposes, a state may decide to
specifically guide and direct api 11
responses through regulations or
enforceable policies and procedures.
EPA believes the selection of an
approach in this area is a matter of
administrative discretion and is best left
to state decision-makers who must
choose how to effectively implement the
program in their states.
7. Release Response and Corrective
Action (I 281.35)
An important objective of the federal
program is that release response and
corrective action be taken as needed to
protect human health and the
environment at all sites with confirmed
releases. For purposes of determining
whether the state program will achieve
this objective as effectively as the
corresponding federal requirements. the
Agency proposed to evaluate the
stringency of a state release response
and corrective action program by
focusing on several key aspects. First.
the slate program must require that
confirmed releases from the UST system
are promptly 3topped. Second. the state
program must require immediate steps
to stop migration of the release. and
ensure that health and safety hazards
are quickly mitigated. Third, the state
program must require that adverse
impacts to soil and ground water be
investigated, identified. and cleaned up
as necessary to protect human health
and the environment. Fourth. the state
program must require timely reporting of
release responses and corrective actions
taken, including information necessary
to establish cleanup goals and to
monitor cleanup progress at the site.
As discussed in the preamble to the
April 17 proposal (52 FR 12751), the
experiences of several state and local
UST programs indicate that no matter
what approach is taken in the
regulations, the actual work associated
with UST release response and
corrective action in the field commonly
translates into two general phases: (1)
Immediate abatement actions that are
typically required at many UST sites (for
example, control of explosion threats
and free product removal), and (2) long-
term release response and corrective
action associated with soil and ground-

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Federal Register I Vol. 53. No. 185:1 Friddy. September 23. 1988 1 Rules and Regulations
37231
water remediatlon. For purposes of state
program approval. EPA proposed that
state requirements could achieve the
federal objectives for release response
and corrective action without being
identical to the federal technical
standards. in fact, many of the operating
state and local IJST programs have
requirements that are more general than
the technical standards proposed by
EPA As discussed previously in today’s
preamble, when state requirements are
more general in nature, they tend to
place a greater burden on the state to
supply site-specific directions and to
oversee more closely corrective actions
taken. Recog i ing the need for clear
technical direction at dean-up sites.
some states have established release
response and co ct ,e action funds,
that provide the state - ency with the
capability to take o - a significant part
of the responsibility ice remedial action
after the owner or operator reports a
release.
Today’s final technical requirements
for release response and corrective
action mandate that the owner and
operator conduct an initial site
investigation and promptly abate health
and safety threats. Free product must
also be recovered to prevent further
movement of the released product
within the soil or ground water. Once
the initial abatement of hazards has
been completed. certain conditions may
require that a more detailed soil and
ground-water investigation be
undertaken. After each step in the
corrective action process, the owner is
required to report to the implementing
agency. In some cases the implementing
agency may require a corrective action
plan that specifies how further cleanup
will be conducted. At this point, further
corrective action of soil or ground water
proceeds on a site-specific basis.
Several commenters responded to the
Agency’s request for input concerning
the proposed approach to the release
response and corrective action
objective. Most of them agreed with the
flexibility provided by the proposed
objective and stated that it not only
provided for adequate protection of
human health and the environment but
was also feasible for state agencies to
implement.
Another commenter expressed
concern with the proposed objective.
saying that it was too vague, and that
almost all the details of the proposed
federal corrective action standards had
been left out. This commenter also
pointed out that the objective omitted
requirements for reporting and public
participation. and requested that they be
included in the final objective.
After considering eli the comments.
EPA agrees with the coinmenter who
su ested that more detail had to be
included in the objective for release
response and corrective action, and has
provided more specificity in the final
rule. In particular, the Agency has
clarified in the objective that when a
potential threat to human health exists.
such as the presence of free product in
the soil or ground water, a more
extensive investigation of cont2mmntion
must be conducted. The Agency also
agrees with this commenter that the
objective should be expanded to ensure
that state programs include
reqiurements for corrective action
reporting and public participation in the
corrective action process, and the final
objective includes such requirements.
In general, the Agency has concluded
that the states should be left with the
flexibility to choose whether to adopt
the federal corrective action approach or
to adopt an alternative approach that is
more suitable to the pattern of work and
procedures already used by the
implementing agency. Therefore, EPA
believes that the overall goal of the
federal requirements in the area of
release response and corrective action is
to ensure that the basic release response
and corrective action steps that may be
necessary at the site to protect human
health and the environment be carried
out at the site. In order to be no less
stringent than the federal release
response and corrective action program.
the state’s approach must ensure that
the same basic work will get done in as
.timely and effective a manner as is
required by the corresponding federal
technical requirements. This objective
can be net in a state that does not have
all of EPA’s release response and
corrective action technical requirements
in state regulations. In the same manner
as the other objective.. EPA will require
state programs to meet the underlying
performance goals of the federal
program. rather than all the details
contained in the federal technical
regulations. The following discussion
addresses this final objective in greater
detail.
a. Assess and slop further releases
(p281.35(o)). EPA’s final technical
standards require that all confirmed
releases are promptly investigated and
stopped ( 280.61 in the final technical
rule). To demonstrate the state
programs stringency in comparison to
this provision of the federal objective.
the state must provide requirements that
ensure that the owner and operator is
obligated to promptly take action to
assess and stop any ongoing releases at
the site. The actions appropriate to stop
a release will vary depending on how
the release was confirmed (for exainplr
through a tightness test or presence of
fuel in nearby utility lines) as well as the
conditions at the site (such as a four-
tank gasoline station with pressurized
lines versus a one-tank operation with
suction line.). If the confirmation of the
release identifies the tank or piping
component responsible for the release.
then actions to prevent future releases
could include emptying the problem
tank or not using the suspect piping run
until it is replaced or repaired. However.
if the location of the source is unknown.
then the entire IJST system or systems
will need to be considered suspect and
addressed accordingly.
The use of the word ‘ 4 promptly” In the
objective is intended to mean that the
state must require that owners and
operators take such steps quickly to
mmlmw9 future releases. The less
prompt such actions are, the more likely
it is that future releases will not be
minimized and, therefore, the state’s
requirement will not be considered no
less stringent by EPA. To provide
adequate enforcement of such a
requirement, the state must dearly
define, using a number, the time frame
within which an owner or operator is
expected to respond to this regiuremer
General state requirements that are
further clarified by detailed technical
guidance or policies will be sufficient to
demonstrate that a state program is no
less stringent in this area.
b. Inidol abatement octivi ies
( 281.35(b)). EPA’s final technical
standards require each site with a
confirmed release to be investigated and
addressed to ensure that any immediate
threats to health and safety are
identified and brought under control
( 280.82 in the final technical rule).
Under the federal program, some of the
concerns that must be identified and .
addressed at the site include: Explosive
gas levels or vapor threats that are due
to the exposure of contaminated soils:
the off-site impacts of free product (or
resulting vapors) on nearby water.
sewer lines, or in building basements:
and the location of any nearby ground-
water users who could be exposed to or
threatened by dissolved contaminants in
their drinking water. The objective
underlying these federal requirements is
to ensure that owners and operators
take action to identify, contain, and
mitigate any immediate health and
safety threats that are posed by a
release (such as mitigation of explosiv
or other hazards posed by released gr
or vapors). Accordingly, a state is no
less stringent than the federal prograL.
its program contains such requirements.

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37232 Federal Register / Vol. 53,No. 185 I Friday , September 23. 1988 I Rules and Regulations
he actions taken to mitigate the effects
of the release at a particular site will be
tailored to the nature of the release and
the sensitivity of the site and the
surrounding area. (See the discussion on
this subject provided in the preamble to
the final technical standards rule
published elsewhere in todays Federal
Register.) The state may decide to have
an inspector immediately conduct a
review of the site, or it may instruct the
owner and operator to do the review
and submit the information to the state.
The state program must clarify the
general actions that the owner and
operator are expected to perform to
identify, contain, and mitigate any
immediate health and safety hazards. In
addition, the state must require that the
site must be investigated for free
product. and if present, begin free
product removaL
c Investigation of impacts on soil and
ground water ( 28 1.35(c)). Another
important aspect of the release response
and corrective action objective is the
investigation and identification of the
extent of adverse impacts on soil and
ground water at all sites with confirmed
releases. EPA’s final technical standards
rule Includes the requirement to
Investigate all sites to characterize the
presence of conthminntion in the area of
this site most likely to have been
Impacted (e.g.. below the excavation
zone: see 280.83 Lu the final technical
standards rule). A more detailed
investigation of the extent of soil and
ground water contamination (including
dissolved product) is required if free
product is present on or within the
aquifer, or if contaminated soil is in
contact with ground water ( 280.65 In
the final technical rule). Even if these
conditions are not present. the
implementing agency can require the
more detailed site Investigation if a
potential threat to nearby surface or
ground water is believed to exist.
To be no less stringent than these
federal technical standards. a state must
provide requirements that mandate an
Initial investigation of every site with a
release to identify possible adverse
Impacts on soil, ground water, and
nearby surface waters. The state
requirements could establish the need to
characterize the extent of ground-water
contamination at all sites (which would
be more stringent than the federal
approach) or alternatively the state
could require that a more extensive
investigation be performed based on site
conditions identified during an initial
investigation. If the second approach is
used, the state must develop a method
or policy for determinu g when further
site investigation is required, and this
policy must Include the existence of a
potential threat to human health and the
environment. Potential threats may
Include evidence that drinking water
wells have been affected, that free
product is present on or within the
aquifer, or that containin ited soil is in
contact with the ground water. As with
the other aspects of the release response
and corrective action objective, more
detailed requirements concerning what
constitutes an initial versus a full site
investigation, and when a detailed
investigation must be conducted, can be
established by the state through the use
of guidelines, written policies, and
Implementation protocols and
procedures as long as the owner and
operator will be required to undertake
the Investigation when requested by the
Implementing agency.
In response to a concern raised by one
commenter, this aspect of the overall
objective has been modified to require
investigation for nearby surface water
impacts. This amendment is consistent
with a change made to the final
technical standards in 280.65(a)(4).
d. Soil and ground-water remediation
( 281.35(d)). Another objective for
release response and corrective action is
the cleanup of contaminated soil and
ground water Identified at the site as
necessary to protect human health and
the environment. For example, the
extent of remediation may be based on
a site-specific risk analysis that includes
potential human exposure.
Alternatively, a state may use statewide
numerical standards to establish
cleanup levels at a site. In evaluating
this aspect of the objective, the Agency
does not intend to distinguish between
the two approaches when determining
whether a program is no less stringent.
In either case, the state requirements
must ensure that remedistion provides
adequate protection of human health
and the environment.
To be approved as no less stringent,
EPA will consider the following points
In evaluating whether the state program
provides for release response and
corrective action as necessary to protect
human health and the environment The
state must have authority to require an
owner and operator to develop and
submit for approval information
concerning how remediation of
contaminated soil, ground water, and
nearby surface water at the site will be
conducted ( 281.35(e)). In addition, the
state must be able to require the
implementation of steps for release
response and corrective action after
they have been identified. The release
response and corrective action steps
must consider the risk posed to human
health and the environment by
contamination at the site and address
potential routes of human exposure.
e. Reporting on corrective actions
taken (f 281.35(e)). Another objective of
federal release response and corrective
action requirements is to require the
owner and operator to report to the
implementing agency on corrective
actions taken in response to confirmed
releases. In today’s final technical
standards rule. EPA reqiures the owner
or operator to submit status reports and
to report plans for future corrective
action activities, such as free product
removal or 3011 and ground-water
remediatlon (H 280.81 through 280.65 in
the final technical standards rule). The
proposed release response and
corrective action objective for
determining no less stringent state
programs inadvertently did not include
provisions for corrective action
reporting. EPA agrees with the
comrnenter who argued that this is an
important aspect of state corrective
action programs and that reporting must
be included in the fInal rule as a no-less-
stringent criterion. A certain amount of
reporting and recordkeeping on the part
of owners and operators is necessary for
adequate oversight by the Implementing
agency and to ensure that owners and
operators properly carry out their
corrective action responsibilities. Thus.
today’s final rule includes an added
objective that makes clear that states
must require timely and complete
reporting on corrective action steps
planned and taken ( 281.35(e)). This
change makes the final objective fully
consistent with the corresponding
federal technical standards in the final
rule, and responds to the concern raisi d
by public comment.
In determining whether a state
program meets the objective in the area
of corrective action reporting. EPA does
not require that states copy the same
details as are required in the federal
standards. General reporting
reqwrements that obligate the owner
and operator to report on corrective
actions taken and planned should be
sufficient for a state to meet this
objective. EPA will examine the
following factors in determining whether
a state is no less stringent than this
aspect of the release response and
corrective action objective. The
reporting on corrective action plans
must result in the information being
made available to the state quickly to
ensure that steps are being taken to
prevent further contamination, and so
that technical direction can be provided
by the state. In addition, the level of
detail reported to the state should be

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Federal Register / Vol 53, No. 185 I F iday, September 23, 1D88 I Rules and -Regulations
37 33
sufficient to oversee the process of
corrective action and ensure technical
adequacy. The state should be able to
require reporting on all phases of
corrective action to ensure that
corrective action in fact is tAking place
and Is sufficient to protect human health
and the environment In addition,
Information on the site and the
surrounding area should be reported so
that the corrective action can be tailored
to the specific conditions of the site and
the nature of the release. Initial
corrective action steps, results of
investigations of soils and ground water.
and plans and status reports on long-
term remediation of contaniinz tion at
the- site are among the types of specific
information that the state might require
f. Public participation in release
response and corrective action
281.35(f)). To achieve this aspect of
the objective, the state must provide
opportunity for public participation
when a confirmed release requires a
corrective action plan. This provision
was not included in the objective
proposed in the December23
Supplemental Notice. In order to
respond to concerns raised by public
comment on the proposal, and to remain
fully consistent with the final federal
technical standard ( 280.67). a public
participation provision has been added
to the final release response and
corrective action objective.
Section 7004(b) of RCRA and long-
standing Agency policy indicate a need
to be open to the involvement of any
interested member of the public in site--
specific cleanup decisions. EPA does not
intend to prescribe the nature and
extent of the public involvement
procedures to be followed by the state.
Rather, EPA’s intention is that a forum
be provided that is in keeping with the
state’s administrative procedures for the
interested public to express its views on
the proposed corrective actions for
serious UST releases. To achieve this
aspect of the federal objective, the state
must ensure open access to Information
pertaining to specific corrective actions
for those members of the public that are
potentially affected by the release or
any planned corrective action. EPA does
not expect this to be a significant
additional burden because many states
already have been involving the public
in the decisionmaking process for UST
cleanups for many years. For example.
many states already allow for public
access to their site files and those most
affected by the release are usually kept
well Informed through personal contacts
with the state response staff.
& Out-of-Service US? Systems and
Closure ( 281.30)
EPA has concluded that US? systems
temporarily or permanently closed can
pose a significant threat to human
health and the environment if they are
not managed properly. To be no less
stringent In this program element, the
state must demonstrate that it can
satisfy two objectives: (1) Releases from
temporarily closed US? systems must be
minimi2ed. and (2) future releases must
be prevented, and existing conditions
needing corrective action identified and
corrected at permanent closure. EPA
believes these goals can be met in
different ways.
To ensure that releases are minimi ed
from temporarily closed US? systems.
the state must mandate that the general
operating requirements continue to be
practiced ( 281.30(a)(1)). For those
tanks where product remains in the US?
system. the release detection, corrosion
protection, reporting, and release
response and corrective action
requirements must be followed to
achieve these general operating
requirements A state may allow release
detection requirements to cease if all
product is removed from temporarily
closed UST systems (* 281.38(a)(Z)).
Another aspect of the closure
objective states that each US? system
must be closed—off to outside access if it
is temporarily closed ( 28L36(a)(3fl.
Although this was not addressed in the
proposed objective, it is included in
today’s final rule in order to fcillow more
closely the Intent of the corresponding
technical standards in this area. The
objective reflects the underlying concern
in the final technical standards that a
tank temporarily closed for extended
periods of time could (unknown to the
owner and operator) be tampered with
or misused as a waste sump or storage
pit or otherwise become the source of
accidents during the period of temporary
closure. To be able to satisfy this aspect
of the objective, the state program must
specify when a tank system is
considered to be temporarily closed due
to the fact that it has been removed from
service.
EPA’s final technical standard
specifies that the tank must be closed--
off from outside access if the UST
system is temporarily closed br greater
than 3 months. The objective has been
written to allow some state
administrative discretion as to what
defines an “extended period of time” for
temporary closure. Thus, while this
means that states will not be held
strictly to the 90.day time period
specified in the final technical standards
for closing off outside access to the tank,
the state still must establish clearly
when temporary closure begins in order
to meet this objective. Also, the longer a
state allows for a definition of -
“temporary”, the less likely they will be
able to demonstrate that they are no less
stringent in this area.
EPA’s final technical standards set a
ma,dmum limit of 1 year for allowing
unprotected tanks to be closed
temporarily, unless the Implementing
agency allows a longer time period on a
site-by-site basis. This time period
(Imitation Is primarily to make sure that
permanent closure takes place, and the
casual temporary abandonment of
numerous unprotected USTs for
extended periods of time is thereby
avoided. Although this subject also was
not addressed In the proposed objective,
it is included in the final objective to
more closely reflect the intention of the
final technical standards. To meet this
objective, the state must ensure that
unprotected US? systems do not remain
out of service for more than one year. A
state may choose to allow extensions to
this one year limit, in which case the
state must require that a site assessment
be conducted to make sure that a
release has not already occurred from
the US? system. The tune limit for the
temporary closure of USTs has been set
at one year to ensure that owners and
operators of unprotected USTs that are
unused are held responsible for
protecting the UST system from
corrosion or permanently closing it. If
the unprotected US? system is new or
haa been protected from corrosion, then
the tank may remain temporarily out of
service for an indefinite period of time
(although the other requirements for
temporary closure still apply).
Adverse environmental and public
health Impacts at all permanently closed
US? systems may be caused by future
releases as well as past releases. To
avoid these impacts, the state must
mandate that regulated substances and
accumulated sludge be removed prior to
closure and that the site condition
around the US? system be assessed. To
determine if there are any present or
past releases at closure, the state should
ensure that the condition of the site
below the US? system is evaluated by
the owner and operatOr. This evaluation
can be done by any of the methods
dilowed at the federal level or approved
by the state as protective of human
health and the environment The state
may choose to hold owners and
operators responsible for using
appropriate national codes of practice or
specify the particular steps needed to
ensure a tank is completely emptied and
cleaned.

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37234 Federal Register / Vol. 53. No. 185 I Friday. September 23. 1988 I Rules and Regulations
EPA’s tadmical standard for closure
.d.o mandates notification before
nt closme so that a state or
local insp or may choose to be
pze t. For pwposes of program
approval the state is only required to
have owners and ojxsators report at the
time of dosnre EPA has concluded prior
notification is not essential to aclneving
the underlying ob eciive in this area.
parlicularly if a state has established a
different methed of compliance
monitoring and has decided that notice
before closure is unneceesury under that
apçroach. if the site assessment
confirms the existence of a release
requiring some corrective acbon. then
release response and corrective action
reqiur nLs mesi be foilowed.
9. Financial Responsibility ( 281.37—
Reserved)
An important objective oi the federal
program is that owners and operators of
UST systems corItainmg petroleum have
adequate finanmal responsibility to
undertake corrective action and meet
third-party liability claims. An objecuve
for financial respnnsiliility was
proposed in the December 23. 1987
Suppleicenlal Notice. The federal law
mandates SI million per occurrence with
appropriate aggregate amounts as the
minimum level of assurance needed by
most owners and operatars of petroleum
UST systems to meet cleanup and
liability costs For a or.e-tLzne re eare. The
final objective in this area will be
provided at a later dale when the final
technical requirements for flranc aI
responsibility are promulgated by EPA
States will need to be no less stringent
in this area to be able to receive
program approval from EPA.
10. Fina a1 Responsibility for LIST
Systems Conlauung H ardous
Substance. ( 2BL3& .—Reservedl
EPA is also demoping financial
responsibility requirements for USTs
contauimg hasardons substances. These
regulations wifl requite owners and
operator. to maintain evidence that
funds me readily available in the event
ofareteaoefroaiiheirUSTstopay for
the costs of corrective action and third-
party liability for property damage and
bodily injury. On February 9.1988. EPA
issued an Advance Notice of Proposed
Rulemaking 1 or financial responsibility
requirements for USTs containing
hazardous substances (53 FR 3818J. in
this advance notice of proposed
rulemaking. EPA solicited coilerierns
and information about the approaches
wider consideration. The Agency
intends to propose financial
sp .eibllity requirements for USTs
containing hazardous substances in the
near future. and at that time, a federal
objective for such requirements will also
be proposed for pwpoeee of state
pru am approvaL
Until these requirements are finalized.
EPA is reserving this section of todays
state progrem approval rule for this
federal ob ecZive. For a state to receive
program approval. a state does not
cw!zently need to have the authority to
write flAan l respcmsibility
requirements for USTs containing
hazardous ia h 5 thn, 0 j , However, if a
state pl to regulate LIST systems
containing hazardous substances in the
state program. then the state should
consider obtaining the necessary
authority in the near future. When EPA
promulgates fired reQuirements for
fm.ru’t I ms o thihty fo r LIST systems
coQtalaing hazardous substances, each
state with an ippreved progr will
have to mii revision that
incorporates corresponding changes into
:tS state program..
0. Subo ort 0—Adequate Enf ’ort ement of
.‘ompiitirior ( 5Z8L4() thrnu ’h 281.43)
In the AprIl 17, ‘ G 7 prpposed nile. the
Agency set mithmun requirements for
states seeking to demonstrate adequate
enforcement of compUanee for program
approval. In the proposed l 281.30
thro igh 281.32. the Agency set forth
three categories cf requ Irements: (1)
L gaI auihcri as and procedures for
collectug and mr.ntainir. data on the
regulated con iuinity [ 2 !egsl
authorme.t ftr en rcement that muat Se
available to the tir p!e ner.:rtg agency;
and ¶3) opt ’,ns far either procedural
requrremeuts or tegal authorities for
p kc carnctp.:tior.. Section 281.33 of
the p. ouc sed r’ et reqmrmnents for
sharing of mfarmation. The Agency
re *ied several —oinmnerts .,n this
subpart of the proposal and is today
clarifying in the fnral rule its
expectations of what constitutes
adequate enforcement of compliance for
p.up e5 of state program approval. The
final era discussed in
detail in this section of the preamble.
In suam ary, under today’s final rules
( 281.40 throaglm 281.43), states must
have adequate co p1 ance inorutoring
author;ty so the’. :.ink owncra or
opere es . ran be ‘-.itztred w the state t
fizrnjsh infoina i’ ..i’ -&( ‘ ‘f ’
tanks and comioct niomtorrng or te t nS.
States must alio have authority to e ter
and inspect anmy site subject to
regulation, hi addition, a state must
have procedures for hiepel.dons
evaluation of receidsi recorukeeping;
enforcement against violatces; and
encouraging citizen reports of suspected
violations. A state must also have
enforcenrentsuthciity sufficient to:
Immediately restrain violators or
potential violator. by order or by suit;
sue in a court of cont 1 ictect jurisdiction:
and assess or sus to recover civil
penalties and procedures to implement
these authorities. Finally, a state must
provide for public participation in
enforcement proceedings by rising one
of three public participation options:
Providing one of twn types of authority
to allow citismi intervention in civil
a nsi or more general public
involvement procedures in ciznphance
monitoring and enforcement actions.
Inthe preamble to the proposed rule
(52 FR 12856j. the Agency requested
comments on how it should evaluate
compliance mouttoring and enforcement
procedural requirements in state
programs. for ex mpi in the form of
broad objectives or specific
requirements. Many commenters -
expressed concern regarding the amoult
of flexibility to be allowed in developing
state enforcement programs. Several
comnienters requested that states only
be required to meet broad objectives in
the regulations or in guidance. One
commenter asked that enforcement
procedural requirements be clearly
outlined and defined.
In response to the comments, the
Agency is clarifying its expectations for
therequtreinents for adequate
enf .- .u sut of compliance. in
developing the requirements For
adequate enforcement, the Agency
seeks to maintain fleuibuity in
appr vIng a variety of stave prograruc,
a id encourages states to misc ,nnof,atrve
aoproad es in msiiitoning comp iaace
and carrying Omit enforcement actions.
Consistent with that intent, today’s
regulations do not msi dete the detamle
of compliance monitoring and
en1orc ,n ni pcocedzwes Lot purposes of
program approval. Instead, the
re iLattons set forth certain authorities
and programs or procedural areas that
should enable a state program to
demonstrate adequate enforcement of
compliance with its technical
requirements.
(Note that the insertion of the no-less-
stringent criteria (in Subpart C § 281.30
of the final rule) has caused the
alequat’r enforcement requ1rc!1iP-nt to
be reorganiiad into Subpart D. § 281.40
to 281.43 of the final nile.)
1. Req’.uremeats for a Compliance
Mimitorrag Program (t L4O)
a. Legal aethorilies f ar compliance
( 28L4O(aHcJ). Proposed § 281.30 (a)
and (b) required that state employees
have the authority to obtain from an
owner or operator any information on
their USTs necessary to determine

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Federal Register I Vol. 53, No. 185 I Friday , Siptember 23. 1988 / Rules and Regulations
37235
compliance. State employees must also
have the authority to require the owner
or operator to conduct monitoring or
testing, and the authority to enter the
site to conduct such testing themselves.
One coinmenter suggested that these
authorities, particularly the authority to
require the owner or operator to conduct
testing. will place unnecessary burdens
on the owner and operator. The Agency
believes that these authorities, which
are analogous to federal authorities
under Subtitle I. are necessary to ensure
that states have the means of monitoring
compliance, gathering necessary
information, and assessing the potential
risk to human health and the
environment. The Agency is
promulgating the language of these
sections substantially as proposed.
The Agency is clarifying today the
intent of this section by making two
changes, First, the term “employee of the
state” as it appeared in proposed
§ 281.30(a) has been replaced by the
language of Subtitle I, Section 9005.
which provides for such inspection
authority for “any officer. employee, or
representative or the Environmental
Protection Agency duly designated by
the Administrator ‘ or any officer,
employee, or representative of a state
with an approved program.” Since the
proposal. the Agency has become
concerned that the term in the statute
may be construed to be broader in scope
than “employee”; thus, for purposes of
the final rule, the Agency has
substituted the law’s more inclusive
language. Because of the nature of the
regulated universe, many states are
likely to depend on personnel other than
state employees to inspect, monitor, and
test UST systems. For example, the
implementing agency may delegate such
responsibility to the local building
inspector or fire marshal. Because the
Agency did not intend to restrict the
original authority provided by the
statute to only employees of the state,
the term “employee” is being replaced
by “representative” in the final rule’s
§ 281.40(a). The term “employees” Is
being replaced by “representative” in
the final rule’s § 281.40(b) for the same
reasons.
Second, in order to be consistent with
the terms and definitions found in 40
CFR 280.12, and the wording used in the
rest of the technical standards finalized
elsewhere today, the Agency is
replacing the phrases “his/her tanks,
tank contents, and associated
equipment” in proposed § 281.30 (a) and
(b) with the more concise term, “the
UST system”, in the final rule’s § 281.40
(a) and (b). This change does not alter
the substantive meaning of the
requirement. The phrases “underground
storage tank” and “underground storage
tank program” in § 281.30(b) of the
proposed rule were replaced with “UST
system” in the final rule’s § 281 40(c) for
the same reason.
b. Procedures for compliance
monitoring ( 281.40(d) through (gfl.
Proposed § 281.30 (c) through (g) set
requirements for compliance monitoring
programs, including inspections and
record reviews. Several commenters
requested that the Agency clarify its
expectations regarding a compliance
monitoring program. These commentere
were primarily concerned that the
Agency may be restricting flexibility in
developing compliance monitoring
programs by requiring certain types and
numbers of inspections under these
programs. Furthermore, these
- commenters were concerned that the
proposed regulatory language could be
interpreted as requiring resource-
intensive activities, such as a minimum
number of scheduled inspections and
comprehensive surveys of all UST
systems.
Although the proposed regulations set
general requirements for a compliance
monitoring program, the Agency did not
intend that states must develop a
“traditional” inspection and record
collection program for purposes of state
program approval. in particular, the
Agency has no intention of requiring
states to undertake a specific number of
inspections, record reviews, or
enforcement actions. As discussed
above, the Agency’s intention was and
still is to provide the states with
maximum flexibility consistent with
statutory requirements: Thus, the
Agency intends to approve programs
with innovative approaches to gathering
compliance data as long as they
adequately ensure compliance. Such
compliance momtoriz.g and Inspection
programs may range from programs that
target portions of the tank population, to
programs that use permitting. The
Agency is clarifying this intent in the
final rule by making several changes to
proposed § § 281.30 (d)—(g). These
requirements and associated comments
are addressed in greater detail below.
Requirements for record collection
( 28i.40(dfl. Proposed § 281.30(c)
required states to have procedures for
receiving, evaluating, and investigating
all records and reports and for
investigating failure to submit these
reports. The Agency is promulgating the
language of this secuon—now numbered
§ 281.40(d)—substantially as proposed.
Comments on this section expressed a
general concern that the requirements
may be resource-intensive. One
commenter requested clarification on
how the proposed requirements would
be interpreted. Specifically, the
commenter asked how it might
determine if an owner or operator failed
to submit records, and what proportions
of those identified must be investigated.
The Agency believes that it is neither
desirable nor necessary to promulgate
additional requirements that specify
procedures for receipt and investigation
of required records and reports. The
general wording in the final rule was
retained in order to provide maximum
flexibility for states in developing these
programs. In response to the
comnienteri’ concerns, it is the Agency’s
intent to encourage states to develop a
potentially wide range of procedures
that allow the implementing agency tu
Identify owners and operators who have
not submitted required records and
reports.
Consistent with this approach, the
Agency has not specified procedures for
tdentifying noncompliance. Therefore. ii’.
promulgating § 281 40(d), the Agency is
clarifying its intent oy deleting the word
“all” from the language in the proposal.
Section 281.40(d). as promulgated,
requires states to develop procedures ior
evaluating records and reports but does
not specify the number or percentage c
reports to be evaluated.
For further clanflcation, the Agency
also deleting the word “possible” from
the phrase “possible enforcement.”
“Possible” was removed because it was
only needed where “all” records had to
be evaluated, but this final action does
not change the meaning. The Agency
believes that the discretion to undertake
an enforcement action is inherent in the
state’s authority to run the program.
The proposal established that state
programs “must provide for
investigation for enforcement of failure
to submit these records and reports”,
and today the Agency is removing the
phrase “for investigation” from the final
wording in § 281.40(d) to clanfy its
intent not to limit specific means of
enforcement Under the final rule, the
implementing agency must have a
program for investigating owners’ or
operators’ failure to submit records or
reports for purposes of determining
whether enforcement is warranted. The
Agency thus clarifies that the states
have discrelian to determine whether,
when, and by what means such failure
warrants further investigation and
enforcement actions.
• Requirements for inspection
procedures ( 281.4O (e)(1) and(e)(2))
The proposed § 281.30(d) required sta
to have inspection and surveillance
procedures. including periodic

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3? 8 Federal Ragi itnr / VoL 53. No. 185 I Friday , September 23. 1988 I Rules and Regulations
inspections, to ensure compliance with
program requirements. For darification.
the propOsed 201.30(d) and (e) have
been renumbered. respectively, as
§ 281.40(eXl) and I 281.40(eK2).
The Agency received a number of
cnv Ivl.,%t on these proposed
requirements. particularly the definition
of “shall maintain a program for
periodic Inspections.’ Many
commenters were concerned about the
resources that would be necessary to
implement a traditional inspection
program with respect to the UST
universe. One cominenter requested that
the Agency specify the number of
inspectio ns to be acoomplishad within a
given time period and the frequency of
inspac* 4 o . .. The Agency agrees with the
commentera that the requir nts for
inspection and surveillance, as
proposed, could su est that a
traditional inspection program is
required for pw 5m approval, which
would be impossibly resource-intensive
given the large UST universe. This was
not the Agency’s intent. Therefore, the
final rule’s requiranerats have r hmiged
the wczdingoftheproposed 281.30(d)
to clarify that greeter flexibility is
available In this area for purpose of
a vwiug state programs.
In promulgating § 281.40(e)(1) today.
the Agency has retained the general
requirement that the state has
insp..cfinn procedures. but has replaced
the description of “periodIc” inspections
with sy.teznatic” inspections. The
Agency he. piunulgated a requirement
for”systematic” inspections to clarify
its expectations with regard to state
inspection programs. The Agency
expects states to conduct inspections
but has chosen not to mandate a
partimlar n.m .Ii r of inspections within
a specified time period. Instead, the
Agency enmeragen states to develop a
method for de mining when to conduct
bsb and encourage. other, mare
innovative methods of determining
compliance. Examples of systematic
inspection programs 1 ” 4 ” targeting
inspectiom to certain tank groups or
tank activities (for example, at closure)
and developing permitting programs.
In the preamble to the proposed rule.
the Agency requested comment on the
need for reqairbig enforcement
procedures. One conanenter noted that
state.’ legal. procedural. and
institutional piu esses and structures
are relevant In assessing adequate
enforcement. The Agency agrees that an
adequate enforcement program must not
only have the legal- authorities to carry
out enfonmmerit actions. but also the
procedure. for exercising these
authorities. To clarify that intent, the
Agency has added to § 281.40(e)(1), the
reqinrement that states provide for
enforcement of failure to comply with
rocam req iirements. This requirement
is consistent with final § 281.40(d).
which requires that states not only have
procedure, for re t of records and
reports but also provide for enforcement
of failure to summit such documents. In
addition, this requirement will ensure
that the regulated mi ’rnnity and the
public are provided with an opportunity
to learn whet procedures will be in
effect is the stale.
The proposed * 281.*e) set
requirements for the manner in which
compliance monitoring information will
be gathered. The purpose of these
re e Is was to en e that all
type. of state inspection procedure.
were conducted ice ‘ er that will
produce evidence admissible in court
States are expected to be well aware of
the need to ciseduct inspections properly
for these reasoos. and should be easily
able to demonstrate compliance with
this reqmresnenL No comments were
received on this requirement. and the
Agency is n*k g adjustments only to
remain Nm tent with the changes to
tha inspection program requirement. as
described above, and renumbering the
subsection to . mp&u .c P its purpose as
an addendum to the previous
requirement.
Requirements for public reporting
( 28L4( / J Section 281.30(1) of the
proposed rule required states to develop
a program for encouraging and
processing public reports of violations.
The purpose of the proposed
requirement was to comae that state
applicants efforts to monitor
compliance were open to this Important
additional source of information
regarding compliance. Several
commenters. however, did not
understand the purpose and scope of
this requirement. One commenter
requested clardicadom on what type of
citizen complaints had to be addressed
by the pro m . For example, would
speculation concerning a possible
violation be considered a complaint that
must be Investigated?
The final requirements have been
revised to comae that states develop
programs that respond to public reports
of both speculated cv confirmed
violations. The purpose of this
requirement Is to encourage citizens to
provide Information to implementing
agencies—for example, report a
suspected release—that may be crucial
to early response. investigation, and
compliance efforts by the implementing
agency. Such a 1 ,ai , .m is particularly
crucial in light of the large UST universe
and the impracticality of large-scale
enforcement effort.. This darification of
the scope of this requirement however.
is not intended by the Agency to require
states to develop a substantial public
outreach program. On the contrary,
providing a telephone line for citizens to
call If they suspect a leak or other
violations would be the basic kind of
program that will meet this requirement.
Accordingly, the Agency has reworded
§281.40(1) of the final rule to clarify that
state investigation procedures must
allow for follow-up on tips and other
report. and complaints to determine
their validity. The Agency, however, is
not promulgating specific requirements
concerning such a program, and states
are encouraged to adopt foUow-up
procedures that are tailored to their
specific UST programs.
• Reqwrements for monitoring
compliance over time ( 28L4O(g)).
Section 281.30(g) of the proposed rule
required states to maintain a “program
which is capable of making
comprehensive surveys of all facilities
and activities sub ect to regulations,”
and that any resulting compilation.
index or inventory of such facilities be
made available to EPA upon request.
Many commenters objected to this
requirement because of the significant
resource demands it would impose on
the states. In particular, one commenter
was concerned about having to maintain
the capabilities to conduct
‘comprehensive surveys of all facilities
and activities,” and because this would
be extremely resource-intensive, the
cominenta asked for more guidelines in
implementing this requirement. Another
commeuter questioned the requirement
for approvable states to provide EPA.
upon request, an inventory or list of
facilities in violation of UST
requirements, because it would be
burdensome and wineceseary.
The primary purpose of this
requirement, as proposed. was to ensure
that state. are able to assemble
information on the regulated commuinty
that can be used to measure their
compliance status. This requirement is
based on sectIon 9002 of Subtitle I.
which mandates the establishment of
stats inventories, and the necessity of
such inventories for effective
compliance monitoring. The Agency
intended to allow states flexibility in
determining how extensive the survey
undertaking must be, provided that they
achieve the purpose of measuring
compliance. hi response to concerns of
the coninienters. and to clarify its intent.
the Agency has substantially altered
proposed *281.30(g) by deleting the first
sentence pertaining to a program for

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Federal Register I Vol. 53. No. 185 / Friday . September 23. 1988 I Rules and Regulations
37237
making “comprehensive surveys.” The
final rule simply requires that a state
program must maintain the data
collected through inspections and
evaluation of records in a manner that
allows the implementing agency to
monitor over time the compliance status
of the regulated community.
Section 281.40(g) also requires that
states make any compilation. index, or
mventory of such facilities and activities
available to EPA upon request. With
respect to the commenter who
questioned the necessity of using such
inventories to oversee state actions, the
Agency wishes to c1 azify that this
requirement was not intended to be
used as an oversight tooL Although the
Agency is promulgating this part of the
requirement as proposed, the Agency
does not intend to request submission of
this information on a regular basis and
will negotiate specific reporting
requirements with the states as part of
the MOA and the annual state grant
process. The Agency prefers that
reporting of infoimation on state
enforcement programs be managed
through the MOA between the state and
the EPA Regional AdininiMrator. The
Regions will negotiate specific reporting
requirements with each of their states
and will incorporate those requirements
into the State Grant Workplan..
Requirements for updating of
notification. The preamble to the
proposed rule (52 FR 12857) described
how the Agency considered and rejected
requiring states to include a requirement
for updating UST notifIcation
information by owners and operators as
a condition of state program approval.
This issue was raised in the proposal in
the context of adequate enforcement of
compliance; however, the Agency
considers it to be primarily a no less
stringent issue. This issue is discussed
earlier in today’s preamble in section
C.2.
2. Requirements for Enforcement
Authority (* 281.41)
The proposed 1281.31 established
requirements for legal authorities for
enforcement The Agency proposed that
states demonstrate some specific
enforcement authorities as a condition
of program approval. This was to ensure
that states have sufficient authorities to
carry out an enforcement program in
lieu of the federal program. The final
rule includes only a few changes to the
proposed requirements.
The proposed I 281.31 a) specified the
authorities necessary to implement
remedies for violations of state program
requirements. Section 281.31(a)(1)
required that states have the authority
to issue a temporary restraining order
that would prevent violators or potential
violators by order or by suit from
engaging in unauthorized activity that is
endangering or causing damage to
public health or the environment One
comnienter requested that the Agency
define “unauthorized activity”. This
term is intended to include any activities
that result in noncompliance with the
regulations. The Agency is promulgating
this requirement—now numbered
§ 281.41(a)—substantially as proposed.
Se ion 28L31(a)(2) in the proposed
rule required that states have authority
to sue ins cow’t of competent
jurisdiction for a preliminary or
per’e nPnt injn’wtkm The Agency
received no com nts on this section
and Is promulgating the requirement as
proposed. Both this section and
§ 28L31(aXl) in the proposed nile—now
numbered § 28L41(a)(1) and (a](2)—are
standard legal authorities and are often
located in a general enforcement statute.
The Agency expects that most states
should be able to easily satisfy these
requirements.
S ion 281.31(a)(3) of the proposed
rule set the authorities that states were
required to have to recover civil
penalties. In this section. the Agency
required states to be able to recover
civil penalties for failure to notify or for
submitting false notification information
“up to at least $10000 per tank.” For
failure to cdmply with state
requirements or standards, the penalties
were required to be aseessthle”up to at
least $10000’ for each tank for each day
of violation.
The Agency received a number of
comments concerning the penalty
authorities, particularly regarding the
phrase “up to at least $10000” for each
day of violation of state requirements.
Several commenters interpreted the rule
to mean that EPA was dictating a
minimum civil penalty of $10000. These
commenters argued that the
determination of whether civil penalties
are necessary for effective
implementation should be made at the
state leveL
The Agency agree. with the
commenters that the proposed language
In this section was unclear as written,
and is clarifying that the intent is to
require states to have authority to
assess a wide range of penalties either
for each violation or for eacn tank
system for each day of violation.
Therefore, the Agency is promulgating
this revised section as § 281.41(a)(3) of
the final rule to require that states “be
capable of assessing civil penalties up
to” the requisite amount per violation or
for each tank for each day of violation.
One commenter requested that EPA
lower the limit for the penalty authority
from $10,000 to $5,000 for each tank for
each day of violation and suggested that
a $5,000 penalty level was sufficient to
promote compliance. The Agency agrees
with this commenter and has changed
the requirement for civil penalties
accordingly. The penalty level was
originally set at $10000 for each tank for
each day of violation to reflect the
penalty authority that Congress
provided to EPA for enforcement of the
federal program, Slates, however, do not
necessarily have to have the same
penalty level authority to run an
adequate UST program. A high penalty
level is often used as an incentive for
compliance, and generally states do not
actually ever exerase this authority to
the full amount In addition, much of the
regulated community consists of small
businesses, therefore a $5,000 penalty
level Is more than adequate to promote
compliance. EPA notes that most states
already have the authority to assess
$5,000 for each violation. The language
change in this section is also consistent
with the Agency’s intent to allow states
flexibility in carrying out enforcement
actions. Under the promulgated
§ 28L41(a)(3). states may determine
during specific enforcement actions that
a lower penalty may be sufficient to
ensure compliance, and similarly are not
restricted to $5,000 for each tank for
each day of violation as a maximum
penalty if additional authority Is
obtained. Thus. EPA expects that a state
will evaluate violations on a case’by-
case basis. and enforce fines according
to the severity of environmental hazard,
the intentions of the owner and
operator, a history of past violations, or
other extenuating circumstances.
The proposed I 28131 (b) and (c}—
now § 281.41 (b) and (c) in the final
rule—required standard enforcement
authorities regarding burden of proof
and appropriateness of penalties sought
to violations detected. The Agency
received no comment on these
requirements and no changes have been
made since proposaL
3. Requirements for Public Participation
( 1281.42)
The proposed §281.32 set forth three
options that states may choose from to
ensure that the opportunity for public
participation in enforcement
proceedings is provided. The purpose of
providing public participation in the
decisiorm h,g process is to promote
public involvement In implementation of
the UST program in the state. The first
option set in the proposed § 281.32 was
authority that allows Intervention as of
right in any civil action to enforce UST
requirements. The second option was

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37238 Federal Register I Vol. 53, No. 185 / Friday , September 23. 1988 I Rules and Regulations
assurance that the implementing agency
will provide at least 30 days for public
comment on all proposed settlements;
will investigate and provide written
responses to all citizen complaints: and
will not oppose citizen intervention. The
third option was authority to allow
intervention analogous to Federal Rule
24(a)(2). To fulfill this requirement.
states must comply with only one of the
three options.
The Agency received a number of
comments an the requirements for
public participation. It appears that
many commenters did not understand
thEt only one of the three options must
be met. Several commenters expressed
the opinion that the Agency’s
requirements were inappropriate for a
rule that emphasized flexibility in state
program development. For example.
several conunenters objected to EPA’s
dictating the level of public participation
in enforcement proceedings. The
commenters argued that states and
localities have more expertise than the
federal government in identifying
circumstances in which public
participation is appropriate. Another
concern expressed by commenters is
that certain public participation
procedures may strain available
resources. In particular. commenters
objected to the requirement in the
proposed § 281.32(b)(2) that states
investigate all citizen complaints.
Commenters also objected to the
requirement that states provide 30 days
for public comment on all proposed
settlements of civil enforcement actions.
One commenter indicated that this
requirement would be a tremendous
burden on implementing agencies.
Conversely, one cominenter objected to
the option approach. and stressed the
need for very specific public
participation requirements.
The Agency has retained the option
approach in the final rule because each
of the options separately provides an
adequate opportunity for public
participation. and requiring all three
options would be unnecessary. To
emphasize that the Agency is providing
options for this requirement. the Agency
has added the phrase “any one of the
following three options” to the first
sentence in § 281.42 of the final rule. The
Agency has also changed the order of
the requirements for clarification. The
option for the authority presented in the
proposed § 281.32(c) is promulgated as
the first option in § 281.42(a) of the final
nile. The Agency has presented this
authority first because it recognizes that
most states will already have an
authority analogous to Federal Rule
24(a)(2). Several commenters from state
agencies noted that they have this
authority. The other options for legal
authority proposed in § 281.32 are
renumbered accordingly: Proposed
§ 281.32(a) is now § 281.42(b); proposed
§ 281.32(b) is now § 281.42(c).
Because the Agency received a
number of comments regarding the
specific requirements for the third
option—proposed as § 281.32(b)—the
Agency has made several changes in
this requirement as § 281.42(c) of the
final rule. The Agency has revised the
requirement that states ensure “public
notice of and provide at Least 30 days
for” public comment. In the final rule,
the Agency has simply required that
states must “provide notice and
opportunity for” public comment. These
changes will allow the state to develop
procedures for notification in methods
other than publishing (which implied
that states may have to publish all
notices in a newspaper). The Agency
has also deleted the requirement that
responses to all citizen complaints must
be written. The Agency does not believe
that the specifics in the requirement are
necessary to ensure public participation;
given the nature of the universe.
responding in writing to all citizen
complaints would be an overwhelming
burden on state and local resources.
Many citizen complaints can be handled
effectively by telephone. In the final
requirement, the method of response is
not specified. and the word “all” is
deleted. The new language reflects the
need for flexibility in 1.1ST enforcement
due to the nature of the regulated
universe
4. Sharing of information ( 281.43)
The proposed * 281.33(a) set forth
procedures for states to share with the
Agency information obtained or used in
the state program. Section 281.33(b) of
the proposed rule indicated that the
Agency will furnish approved states
with any information necessary for
administenng the state program.
Information submitted to the Agency
under a claim of confidentiality subject
to the conditions in 40 CFR Part 2 will
not necessanly be treated as
confidential by the state unless the
owner and operator reapplies for
confidentiality. The Agency received no
comment on this section and is
promulgating it in the final rule in
§ 281.43.
H. Subpart H—ApprovaiProcedures
( 281.50 through 281.52)
1. Approval Procedures for State
Programs (* 281.50)
States may submit an application for
approval on the date of promulgation of
the federal technical requirements.
Though states may apply to operate all
aspects of the UST program for both
petroleum and hazardous substance
tanks, approval uf state UST programs
may also occur in phases Section of
RCRA authorizes interim approval of
state programs for a brief time-period
and also authorizes approval of certain
types of partial programs (this is
discussed under the analysis of the
program description earlier in this
preamble). EPA regional offices will
review state applications to deterinme if
the application is complete. Section
281.40(c) of the proposed rule allowed
EPA 180 days for review and approval
of complete state applications.
Commenters suggested that this time
period be shortened and that an
additional time period be established for
determination of the completeness of an
application. EPA has decided, however.
to promulgate this section substantially
as proposed because section 9004 of
RCRA establishes 180 days as the time
period for accepting and reviewing state
applications, and EPA does not believe
that it is possible to accommodate all
the required procedures in a shorter
period. For example, 30 of these 180
days are necessary for a public
comment period. EPA staff will be
available tostates to work with them in
developing both their applications and
programs. Additionally. EPA encourages
states to participate in pre-application
reviews with the Agency’s regional
offices in order to facilitate final
approval and ensure that applications
will be complete upon submittal.
Comments on other aspects of the
approval procedures were not received.
The Agency includes a brief description
of the process here for informational
purposes. As part of the application
review process, under § 281.50(e) of the
final rule, the EPA Regional
Administrator will make a tentative
recommendation on approval or
disapproval. EPA then will publish a
tentative determination in the Federal
Register and allow 30 days for public
notice and comment. EPA will hold a
public hearing if there is sufficient
public interest shown during the
comment period. Next, under § 281.50(I)
of the final rule, the EPA Regional
Administrator will evaluate the public
comments and make a final decision on
approval or disapproval within the
statutorily mandated 180 days. EPA will
publish this decision in the Federal
Register.
2. Interim Approval (* 281.51)
Section 281.51 of the final rule
establishes the procedures for approval

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Federal Register I Vol. 53. No. 185 / Friday. September 23, 1988 / Rules and Regulations
37239
of state revisions to Interim programs.
Tnifi Ily , state programs may be
approved for a period oft to 3 years
from the date of pro lrnIgMionof the
federal technical standards. even if their
requirements are less stringent than
federal standards for. Release detection;
release reporting and investigation and
out-of-service or dosed UST systems.
States seeking interim approval are
required to submit a schedule (discussed
in section W.B. of this preamble) that
outlines the major steps and milestones
for obthining the additional statutory
and/or regulatory authorities necessary
for final program approvaL
States applying for interim approval
must submit to EPA an amended
application with their completed
program revisions by the end of the
applicable time period. The amended
application need only cover changes in
the state program since the award of
interim approvaL EPA must review this
amended application using the same
procedures applied to the original
application. The Regional Admini txator
will publish the tentative determination
on the amended application in the
Federal Register. and will make a final
determination within 180 days. In the
April 17 proposal, the Agency proposed
in 281.41(e) that the approved status of
the state’s interim program would expire
automatically if EPA disapproves its
amended application. One coinmenter
expressed concern that this provision
does not allow for instances where a
program amendment is submitted and
disapproved early in the specified time
frame, when opportunity still exists to
correct the deficiencies and reapply.
EPA did not intend this situation to
occur and has added language to clarify
the situation. A state may re-submit an
application any time until the last day of
its allowed interim period. The state
program will revert to EPA only if the
state submission is disapproved and a
revised apphcation is not submitted
before expiration of the interim period.
If a state application for final approval
is received at the end of the interim
period. EPA will evaluate the
submission after termination of the
interim period and will either determine
the state’s program to be complete and
approvable. or will determine the
application to be unapprovable. in
which case the state program will
automatically revert to EPA.
EPA interprets the interim period as
that period of time the state has to
submit an amended application. States
seáing interim and then final approval
are required to submit two separate
approval applications for interim and
final approval and undergo the 180-day
EPA review twice. States receiving
interim approval must submit a
complete application for final approval
by the end of the interim period or
automatic expiration of approval will
occar. The expiration of interim
approval under Subtitle 1 does not
require EPA to terminate or withdraw
the program. because the approval
terinmates autosnatismily under the
• statute. State programs with expired
interim approval may, through a
Memorandum of Understanding with
EPA. continue to implement parts of the
federal UST program until they apply for
and receive final approvaL
3. Revision of Approved State Programs
(I 281.52)
At some point in the future it may be
necessary for states to submit revisions
to approved programs for approval by
EPA. This need for revision may occur.
for example, when federal or state
authorities are changed by new
legislation or rulemaking. EPA will treat
revised applications in the same way as
amended applications in that only those
program areas affected by the change
will be subject to review by EPA.
however, the review process will be
streamlined. Instead of publishing a
tentative determination in the Federal
Register. EPA will publish a proposed
determination that may become final
immediately after 80 days. This
“immediate-final” rulemaking procedure
has been used in state program approval
under Subtitle C of RCRA. and for
approval of revisions to State
Implementation Plans under the Clean
Air Act.
One cominenter asked whether the
meaning of “adverse comrn -nts’ in
proposed 281.42(c) referred to public
comments opposing EPA’s dedsion or to
public comments supporting program
disapproval. In today’s rulemaking the
Agency has clarified the meaning of that
section by explicitly referring to
“significant negative comment opposing
the proposed revision”. If EPA receives
public comments that strongly oppose
the proposed revision and provide good
reasons for EPA to reconsider its
decision, the Agency may choose one of
two options. The Agency may publish a
notice in the Federal Register
withdrawing the Immediate-final
decision and return to the procedures for
initial and amended applications (found
in 281.50). Alternatively, the Agency
may publIsh a notice in the Federal
Register that responds to the significant
negative comments and describes the
Agency’s final decision. In addition, if
EPA has reason to believe that a
particular revision will receive
significant negative onunnent. EPA may
choose to follow the usual review
procedures for program applications,
rather than begin with the immediate-
final rulemaking process.
One commenter misunderstood EPA’s
intent in this last case. EPA will not
reject a revision simply because
negative public comment is anticipated
or received. Rather, the procedures for
publishing EPA’s determination
regarding the state’s application wilt
follow those procedures normally used
rather than the streamlined immediate.
final rulemaking procedures. This course
of action allows more time for the
consideration of public comment.
F. &thpart F—Withdnrwa! of Appwvui
of State Pmgrums (f 28l.5O through
281.61)
No comments were race. ‘d on this
part of the proposed regul; • ns. EPA is
promulgating these sectior’.
substantially as proposed. EPA has
designed two withdrawal procedures for
circumstances (1) when an approved
state voluntarily transfers program
responsibilities back to EPA, or (21 when
EPA initiates proceedings to determine
if approval of a state program should be
withdrawn. If EPA initiates withdrawal.
the proceedings are to be conducted in
accordance with adjudicatory hearing
proceedings as outlined itt 40 CFR 271.23
(b) and (c) of the RCRA Subtitle C state
program approval regulation. EPA
considered. but has rejected at this time.
an alternative to the Subtitle C approach
calling for withdrawal procedures by
regulation rather than an adjudicatory
hearing process. An example of this
alternative approach is found in 40 CFR
145.34. under the Underground Injection
Control (U1C) program. Subtitle I of
RCRA. covering the regulation of
underground storage tank systems, lacks
the explicit statutory direction provided
to the UIC program under the Safe
Drinking Water Act, and a precedent for
adjudicatory hearings in withdrawal
proceedings has been established for
RCRA under Subtitle C. (The Agency is,
however, re-evaluating the withdrawal
procedures found hi 40 CFR 27123 of the
Subtitle C state program approval
regulations. Since this rule incorporates
those procedures by reference, any final
Agency changes will automatically take
effect in 231.60 through 281.61 of
today’s rule.) No public comments were
received on this issue, so EPA has
chosen to incorporate the adjudicatory
hearing procedures.
In 281.60(a) of today’s final rule, the
Agency has clarified the criteria for
withdrawal of state program approval.
The criteria proposed on April 17, 1987
required the Agency to consider whether

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37240 FederaL Regisjnr I Vol. 53,-No. 185 / Friday, September 23, 1988 I Rules and Regulations
a state is thlthig timely and appropriate
enforcement action and to evaluate the
quality and number of state compliance
inspections. The Agency Is promulgating
final criteria that are more consistent
with the requirements for adequate
enforcement as promulgated today, by
emphasizing its expectations for quality
enforcement actions rather than
quantitative successes. The final
withdrawal criteria require the Agency
to consider whether the state agency is
implementing an adequate enforcement
program by evaluating the quality of
state enforcement actions.
The criteria for withdrawal also
Include failure to have adequate
statutory or regulatory authority. This
would Include failure to submit an
application for program revision when
requested by EPA as a result of changes
to Subtitle I statutory authorities or
regulatory provisions. However, the
final rule contains no provisions setting
a tlmeframe for states to submit such
applications. The appropriate timeframe
for such revisions has been a difficult
issue In other state approval programs.
The Agency intends to provide a
timeframe for revisions of Subtitle I
state programs each time a change in
federal statutory or regulatory
provisions is published in a notice in the
Federal Register.
Finally, the Agency is making one
change to 281.60(a) to change “the
Adndrn trator must” to “the
Administrator may” withdraw program
approval This change now makes
§ 281.60(a) consistent with * 271.22(a) of
the RCRA Subtitle C regulations. It was
the Agency’s intention to use the same
approach for withdrawing program
approval as the Subtitle C program. and
this correction has been made to reflect
that intention.
V. Relationship to Other EPA Programs
A. Leaking Underground Storage Tank
Petroleum Response Fund
The Superfund Amendments and
Reauthorization Act of 1986 amended
Subtitle Ito establish a Leaking
Underground Storage Tank (LUST) Trust
Fund to provide funds for corrective
action and enforcement for releases
from USTs storing petroleum. The long-
term goals of the Trust Fund cleanup
program and UST prevention program
are to protect human health and the
environment, primarily from releases to
ground water caused by leaking USTs.
Cleaning up releases using the Trust
Fund is an immediate need. but by itself
is a short.terin and temporary solution.
The long-term solution is for states to
develop prevention programs. which
over time will result in fewer leaking
tanks needing cleanup responses. States
must also develop financial assurance
mechanisms that will provide funds for
future cleanups.
EPA. therefore, has made a link
between the LUST Trust Fund and UST
regulatory program to ensure that future
contamination is minimi? After the
effective date of today’s final rule, a
state s success in maidng reasonable
progress toward submitting a completed
application for state program approval
may be grounds for increasing state
access to theTrust Fund inFY9O and
thereafter. EPA realizes that
“reasonable progress” toward
submitting a complete application will
vary depending upon the status of the
individual state program. EPA intends to
develop criteria for measuring state
progress. and will evaluate progress for
each individual state during FY89.
B. RCRA Hasardous Waste Program
State UST program requirements and
approval procedures will be treated
independently of state authorization
under other related EPA programs.
Federal UST legislation, under Subtitle I
of RCRA. was developed to address an
environmental problem not adequately
covered by existing EPA programs.
Regulations governing tanks storing
hazardous wastes have been
promulgated under Subtitle C (40 CFR
Parts 264 and 265, July 14, 1986). These
regulations are only applicable to
hazardous wastes. the storage of which
Is exempted from today’s technical
standards under 280.10. Approval of a
state UST program under Subtitle I of
kCRA does not entitle a state to
Implement hazardous waste tank
requirements under Subtitle C of RCRA.
For additional information. see
“Relationship to Other EPA Programs”
discussed under the promulgation of
federal UST technical standards.
published elsewhere in today’s Federal
Register.
VI. Economic and Regulatory Impacts
A. Regulatory impact Analysis
Under Executive Order 12291, EPA
must determine whether a new
regulation is a “major” rule and prepare
a Regulatory Impact Analysis (R1A) in
connection with a major rule. A “major”
rule is defined as one that Is likely to
result in: (1) An annual effect on the
economy of $100 million or more; (2) a
major increase in costs or prices for
consumers. individual industries.
federal, state, and local government
agencies or geographic regions; or (3)
significant adverse effects on
competition, employment. Investment.
productivity. Innovation, or on the
ability of U.S..based enterprises in
domestic or export markets. In the April
17 proposal. the Agency stated its belief
that an RIA was not needed for the Part
281 rulemaking.
One commenter requested that a
regulatory impact analysis be performed
for the Part 281 regulations, but EPA still
believes that this regulation will have
none of the above effects. The
requirements for state UST programs as
outlined in this proposal will not add
substantial costs beyond those imposed
under the federal UST regulations
proposed elsewhere in today’s Federal
Register. Because this rulemaking does
not meet the definition of a major
regulation, the Agency has not
conducted a Regulatory Impact
Analysis. A Regulatory Impact Analysis,
however, has been prepared for the
federal technical requirements and the
results are described in the preamble to
that regulation. published elsewhere in
today’s Federal Register. Today’s
rulemaking was submitted to the Office
of Management and Budget (0MB) for
review as required by Executive Order
12291.
a Regulatory Flexibility Act
The Regulatory Flexibility Act (5
U.S.C. 601 et seq.) requires an agency to
prepare and make available for public
comment a regulatory flexibility
analysis that describes the impact of a
proposed or final rule on small entities
(i.e., small businesses, small
organizations. and small governmental
jurisdictions). No regulatory flexibility
analysis is required if the head of an
agency certifies the rule will not have
significant economic impact on a
substantial number of small entities.
This rule, in itself, will not have a
significant impact on a substantial
number of small entities, because
federal UST requirements will already
be In effect in all states seeking program
approval subsequent to promulgation of
federal UST requirements under Subtitle
L Therefore, no regulatory flexibility
analysis has been prepared. EPA has
determined that the final rule for UST
technical standards under Subtitle I.
published elsewhere in today’s Federal
Register. will have a significant
economic impact on a substantial
number of small entities based on the
analysis prepared for the final rule.
C Paperwork Reduction Act
The information collection
requirements in this rule have been
approved by the Office of Management
and Budget (0MB) under the Paperwork
Reduction Act. 44 U.S.C. 3501 et seq..
and have been assigned 0MB Control

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Federal Register I VoL 53, No. 185 / Friday, September 23, 1988 / Rules and Regulations
37241
Number 2050-0067. The one-time
reporting and recordkeeping burden on
the public for this collection is estimated
at 15,272 total hours, or 1.032 hours for
the 8 respondents per year over nine
years (with an average of 272 hours per
response). These burden estimates
include all aspects of the collection
effort and may include time for
reviewing instructions, searching
existing data sources, gathering and
maintaining the data needed. completing
and reviewing the collection of
information. etc.
If you wish to submit comments
regarding any aspect of this collection of
information. Including suggestions for
reducing the burden. or if you would like
a copy of the information collection
request (please reference ICF #1355).
contact Rick Westlund. Information
Policy Branch. PM—223. U.S.
Environmental Protection Agency. 401 M
Street SW.. Washington, DC 20480(202-
382—2745); and Marcus Peacock. Office
of Information and Regulatory Affairs.
Office of Management and Budget
Washington. DC 205O3. The final rule
will respond to any 0MB or public
comments on the information collection
requirements contained in this proposal.
List of Subjects In 40 CFR Part 231
Administrative practice and
procedure, Hazardous materials.
Petroleum. State program approval.
Underground storage tanks.
Date: September & 1986.
Lee M. Thomas.
Administrator.
For reasons set out in the preamble.
Title 40 of the Code of Federal
Regulations is amended by adding a
new Part 281 as follows:
PART 281—APPROVAL OF STATE
UNDERGROUND STORAGE TANK
PROGRAMS
Subpart A—Purpose. General
Requirements and Scope
Purpose.
General requirements.
Scope and definitions.
Subpart 8—Components of a Program
Application
281.20 Program application.
281.21 DescriptIon of state program.
281.32 Procedures for adequate
enforcement.
281.23 Schedule for interim approval.
281.24 Memorandum of agreement.
281.25 Attorney Generals statement.
Subpart C—Criteria for No Less Stringent
281.30 New UST system design.
construction. installation, and
notification.
281.31 UpgradIng existing Uñaystems.
281.32 General operating requirements.
281.33 Release detection.
281.34 Release reporting, investigation, and
confirmation.
281.35 Release response and corrective
action.
281.36 Out-of-servIce UST systems and
closure.
281.37 Financial responsibility for liSTs
containing petroleum. (Reserved)
281.38 Financial responsibility for USTs
containing hazardous substances.
(Reserved)
Subpart 0—Adequate Enforcement of
Co c.
281.40 RequIrements for compliance
moeitoring program and authority.
281.41 Requirements for enforcement
authority.
281.42 Requirements for public
participation.
281.43 Sharing of information.
Subpart E—Approval Procedures
281.50 Approval procedures for stale
programs.
281.51 Amendment required at end of
interim period.
281.52 Revision of approved stale programs.
Subpart F WIthdrawal of Approval of State
281.80 CriterIa for withdrawal of approval
of state programs.
281.81 Procedures for withdrawal of
approval of state programs.
Autborlty SectIons 2002.9004.9005,9000 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 (cJ.
(d), (a)).
Subpart A—Purpose, General
Requirements and Scope
§ 281.10 Purpose.
(a) This subpart specifies the
requirements that state programs must
meet for approval by the Administrator
under section 9004 of RCRA. and the
procedures EPA will follow in
approving, revising and withdrawing
approval of state programs.
(b) State submissions for program
approval must be in accordance with the
procedures set out In this part.
(c) A state may apply for approval
under this subpart at any time after the
promulgation of release detection.
prevention, and correction regulations
under section 8003 of RCRt
(d) Any state program approved by
the Administrator under this part shail
at all times be conducted in accordance
with the requirements of this part.
§ 281.11 General requIrements.
(a) State progmrn elements. The
following substantive elements of a
state program must be addressed in a
state application for approval:
(1) Requirements for all existing and
new underground storage tanks:
(i) New liST systems (design.
construction, installation, and
notification);
(ii) Upgrading of existing UST
systems;
(iii) General operating requirements:
(iv) Release detection;
(v) Release reporting, investigation.
and conflrmation
(vi) Out-of-service USTs and closure;
(vii) Release response and corrective
action. and
(viii) Financial responsibility for UST
systems containing petroleum.
(2) Provisions for adequate
enforcement of compliance with the
above program elements.
(b) Final approval. The state must
demonstrate that its requirements under
each state program element for existing
and new UST systems are no less
stringent than the corresponding federal
requirements as set forth in Subpart C of
this part. except as provided in
paragraph (c) of this section. The state
must also demonstrate that it has a
program that provides adequate
enforcement of compliance with these
requirements.
(c) Interim approval. (1) The
Administrator may approve state
programs with requirements less
stringent than the federal requirements
for a period of 1 to 3 years from
September 23. 1988. Such interim
approval may be granted only if state
regulatory and/or legislative change is
required in order for the state program
to be no less stringent than the federal
requirements and standards under Part
280 for one or more of the following
program elements: Release detection at
existing UST systems; release reporting
and investigation; and out-of-service or
closed liST systems.
(2) A state program may receive
interim approval if It:
(I) Has requirements for three
elements:
(A) Release Detection;
(B) Release Reporting, Investigation.
and Confirmation. and
(C) Out-of-Service UST Systems and
Closure; and
(Ii) Has requirements that are no less
stringent then the corresponding federal
requirements for five elements:
(A) New UST System Design.
Construction, Installation and
Notification:
(B) Upgrading Existing (1ST Systems;
(C) General Operating Requirements:
(D) Release Response and Corrective
Action; and
(E) Financial Responsibility for liST
systems containing petroleum: and
Se
281.10
281.11
281.12

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37242 Federal Register I Vol. 53, No. 185 / Friday . September 23. 1988 I Rules and Regulations
(iii) Provides for adequate
enforcement of compliance with these
requirements.
(3) A state with a program that has
received interim approval must receive
final approval of an amended program
containing program elements that are no
less stringent than the corresponding
federal program elements under Subpart
C In accordance with the following
schedule:
(i) If only state regulatory action is
required, the state must submit an
amended program to EPA for approval
before September 23, 1989.
(Ii) If only state legislative action is
required. the state must submit an
amended program to EPA for approval
before September 23. 1990.
(iii) If both state legislative and
regulatory action are required, the state
must submit an amended program to
EPA for approval before September 23,
1991.
(d) States with programs approved
under this part are authorized to
administer the state program in lieu of
the federal program and will have
primary enforcement responsibility with
respect to the requirements of the
approved program. EPA retains
authority to take enforcement action in
approved states as necessary and will
notify the designated lead state agency
of any such intended action.
§281.12 Scopeand definitions.
(a) Scope. (1) The Administrator may
approve either partial or complete state
programs. A “partial” state program
regulates either solely UST systems
containing petroleum or solely LIST
systems containing hazardous
substances. if a “partial” state program
is approved. EPA will administer the
remaining part of the program. A
“complete” state program regulates both
petroleum and hazardous substance
tanks.
(2) EPA will administer the LIST
program on Indian lands. except where
Congress has clearly expressed an
intention to grant a state authority to
regulate petroleum and hazardous
substance USTS on Indian lands. In
either case. this decision will not impair
a state’s ability to obtain program
approval for petroleum and/or
hazardous substances on non-Indian
lands in accordance with this part.
(i) Nothing in this subpart precludes a
state from:
(I) Adopting or enforcing requirements
that are more stringent or more
extensive than those required under this
pari or
(ii) Operating a program with a
greater scope of coverage than that
required under this part. Where an
approved state program has a greater
scope of coverage than required by,
federal law, the additional coverage is
not part of the federally-approved
program.
(b) Definitions. (1) The definitions in
Part 280 apply to all subparts of this
part.
(2) For the purpose of this part, the
term “in jm approval” means the
approval received by a state program
that meets the requirements in
§ 281.11(c) (1) and (2) for the time period
defined in 281.11(c)(3).
(3) For the purposes of this part the
term “final approval” means the
approval received by a state program
that meets the requirements in
§ 281.11(b).
Subpart B—Components of a Program
Application
§ 281.20 Program application.
Any state that seeks to administer a
program under this part must submit an
application containing the following
parts:
(a) A triniinuttal letter from the
Governor of the state requesting
program approval;
(b) A description in accordance with
§ 281.21 of the stale program and
operating procedures;
(c) A demonstration of the state’s
procedures to ensure adequate
enforcement
(d) A schedule for obtaining needed
authorities under interim approval.
where applicable;
(e) A Memorandum of Agreement
outlining roles and responsibilities of
EPA and the implementing agency
(f) An Attorney General’s statement in
accordance with § 281.25 certifying to
applicable state authorities; and
(g) Copies of all applicable state
statutes and regulations.
Note EPA has designed an optional
application form that is available for use by
state apphcants.
§ 281.21 DescriptIon of state program.
A state seeking to administer a
program under this part must submit a
description of the program it proposes to
administer under state law ir. lie of the
federal program. The descnpnon of a
state’s existing or planned program mus.
include:
(a) The scope of the state program:
(1) Whether the state program
regulates LIST systems containing
petroleum or hazardous substances. or
both
(2) Whether the stats is applying for
interim or final approval;
(3) Whether the state program is more
stringent or broader in scope than the
federal program. and in what ways; and
(4) Whether the state has any existing
authority over Indian lands or has
existing agreements with Indian tribes
relevant to the regulation of
underground storage tanks.
(b) The organization and structure of
the state and local agencies with
responsibility for administering the
program. The jurisdiction and
responsibilities of all state and local
implementing agencies must be
delineated. appropriate procedures for
coordination set forth. and one state
agency designated as a “lead agency” to
facilitate communications between EPA
and the state.
(c) Staff resources to carry out and
enforce the required state program
elements. both existing and planned.
including the number of employees,
agency where employees are located,
general duties of the employees, and
current limits or restrictions on hiring or
utilization of staff.
(d) An existing state funding
mechanism to meet the estimated costs
of administering and enforcing the
required state program elements, and
any restrictions or limitations upon this
funding.
§ 281.22 Procedures for adequate
enforcement.
A state must submit a description of
its compliance monitoring and
enfor’emen; procedures. including
related state administrative or judicial
review procedures.
§ 281.23 Schedule for Interim approval.
For a state program that must modify
its statutory or regulatory requirements
for release detection, release reporting
and investigation, and out-of-service or
closed LIST systems in order to be no
less stringent than the federal
requirements. the plan must Include a
schedule for making such changes and
for submitting an amendment to the
state application in accordance with
§ 281.51.
§ 281.24 Memorandum of agreement.
EPA and the approved state will
negotiate a Memorandum of Agreement
(MOA) containing proposed areas of
coordination and shared responsibilities
between the state and EPA and separate
EPA and state roles end responsibilities,
in areas including, but not limited to:
Implementation of partial state
programs; enforcement: compliance
monitoring: EPA oversight; and sharing
and reporting of information. At the time
of approval, the MOA must be signed by

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Federal Register / Vol 53, No. 185 1 Friday, September 23, 1988 I Rules and Regulations
37243
the Regional Administrator and the
appropriate official of the state lead
agency.
§ 28125 Attuiney General’s atatsmerd .
(a) A state must submit a written
demonstration from the Attorney
General that the laws and regulations of
the state provide adequate authority to
carry out the program described under
§ 281.21 and to meet other requirements
of this part. This statement may be
signed by independent legal counsel for
the state rather than the Attorney
CeneraL provided that such counsel has
full authority to independently represent
the state Agency in court on all matters
pertaining to the state program. This
statement must include citations to the
specific statutes, administrative
regulations, and where appropriate.
judicial decisions that demonstrate
adequate authority to regulate and
enforce requirements for UST systems.
State statutes and regulations cited by
the state Attorney General must be fully
effective when the program is approved.
(b) if a state currently has authority
over underground storage tank activities
on Indian Lands, the statement must
contain an appropriate analysis of the
state’s authority.
Note: The reporting requirements under this
section have been approved by the Office of
Management and Budget (0MB) and have
been assigned 0MB Control Number 2050-
Xe,.
Subpart C—Criteria for No.Less-
Stringent
§ 281.30 New UST system design,
construction, installation, and notification.
In order to be considered no less
stringent than the corresponding federal
requirements for new UST system
design, construction, installation, and
notification, the state must have
requirements that ensure all new
underground storage tanks, and the
attached piping in contact with the
ground and used to convey the regulated
substance stored in the tank, conform to
the.following:
(a) Be designed. constructed, and
installed in a manner that will prevent
releases for their operating life due to
manufacturing defects, structural failure,
or corrosion.
Note: Codes of practice developed by
nationally-recognized organizations and
national independent testing laboratones
may be used to demonstrate that the state
program requirements are no less stringent in
this area.
(b) Be provided with equipment to
prevent spills and tank overfills when
new tanks are installed or existing tanks
are upgraded, unless the tank does not
receive more than 25 gallons at one time.
(c) All UST system owners and
operators must notify the implementing
state agency of the existence of any new
UST system using a form designated by
the state agency.
§ 281.31 Up adIng existing UST systems.
In order to be considered no less
stringent than the corresponding federal
upgrading requirements, the state must
have requirements that ensure existing
us’r systems will be replaced or
upgraded before December zz. i e to
prevent releases for their operating life
due to corrosion, and spills or overfills.
§ 281.32 General operating requirements.
In order to be considered no less
stringent than the corresponding federal
general operating requirements, the
state must have requirements that
ensure all new and existing UST
systems conform to the following:
(a) Prevent spills and overfills by
ensuring that the space in the tank is
sufficient to receive the volume to be
transferred and that the transfer
operation is monitored constantly;
(b) Where equipped with cathodic
protection, be operated and maintained
by a person with sufficient training and
experience in preventing corrosion, and
in a manner that ensures that no
releases occur during the operating Life
of the UST system:
Note: Codes of practice developed by
nationally-recognized organizations and
national independent testing laboratories
may be used to demonstrate the state
program requirements are no less stringent.
(c) Be made of or lined with materials
that are compatible with the substance
store±
(d) At the tune of upgrade or repair, be
structurally sound and upgraded or
repaired in a mariner that will prevent
releases due to structural failure or
corrosion during their operating livee:
(e) Have records of monitoring.
testing. repairs. and closure maintained
that are sufficient to demonstrate recent
facility compliance status, except that
records demonstrating compliance with
repair and upgrading requirements must
be maintained for the remaining
operating life of the facility. These
records must be made readily available
when requested by the implementing
agency.
§ 281.33 Release detection.
En order to be considered no less
stringent than the corresponding federal
requirements for release detection, the
state must have requirements that at a
minimum ensure all UST systems are
provided with release detection that
conforms to the following
(a) Cenem! methods. Release
detection requirements for owners and
operators must Consist of a method, or
combination of methods, that is:
(1) Capable of detecting a release of
the regulated substance from any
portion of the UST system that routinely
contains regulated substances—as
effectively as any of the methods
allowed under the federal technical
standards—for as long as the UST
system is in operation. In comparing
methods, the implementing agency shall
consider the size of release that the
method can detect and the speed and
reliability with which the release can be
detected.
(2) Designed. installed, calibrated.
operated and maintained so that
releases will be detected in accordance
with the capabilities of the method.
(b) Phase-in of reqwrement,c. Release
detection requirements must. at a
minimum, be scheduled to be applied at
all UST systems:
• (1) Immediately when a new UST
ystem is installed:
(2) On an orderly schedule that
completes a phase-in of release
detection at all existing UST systems (or
their closure) before December 21. 993.
except that release detection for the
piping attached to any existing UST that
conveys a regulated substance under
greater than atmospheric pressure must
be phased-in before December 22. 1990.
(c) Reouirements for petro! um tanks.
All petroleum tanks must be sampled.
tested, or checked for releases a! least
monthly except that:
(1) New or upgraded tanks (that is.
tanks and piping protected from releases
due to corrosion and equipped with both
spill and overfill prevention devices)
may temporarily use monthly inventory
control (or its equivalent) in
combination with tightness testing (or its
equivalent) conducted every 5 years for
the first 10 years after the tank is
installed or upgraded or until December
22. 1998, whichever is later and
(2) Existing tanks unprotected from
releases due to corrosion or without
spill and overfill prevention devices may
use monthly inventory control (or its
equivalent) iii combination with annual
tightness testing (or its equivalent) until
December 22, 1998.
(d) Requirements for petroleum
piping. All underground piping attached
to the tank that routinely conveys
petroleum must conform to the
following:
(1) If the petroleum is conveyed under
greater than atmospheric pressure:

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37244 Federal Register I Vol. 53. No. 185 I Friday. September 23. 1988 / Rules and Regulations
(i) The piping must be equipped with
release detection that detects a release
within an hour by restricting or shutting
off flow or sounding an alarm; and
(ii) The piping must have monthly
monitoring applied or annual tightness
tests conducted.
(2) If suction lines are usedi
(1) Tightness tests must be conducted
at least once every 3 years. unless a
monthly method of detection is applied
to this piping; or
(ii) The piping is designed to allow the
contents of the pipe to drain back into
the storage tank If the suction is
released and is also designed to allow
an inspector to immediately determine
the integrity of the piping system.
(e) Requirements for hazardous
substance USTsystems Ali UST
systems stonng hazardous substances
must meet the following:
(1) All existing hazardous substance
UST systems must comply with all the
requirements for petroleum UST
systems in paragraphs (c) and (d) of this
section and after December 22. 1998,
they must comply with the following
paragraph (e)(2J of this section.
(2) All new hazardous substance UST
systems must use interstitial monitoring
within secondary containment of the
tanks and the attached underground
piping that conveys the regulated
substance stored in the tank, unless the
owner and operator can demonstrate to
the state (or the state otherwise
determines) that another method will
detect a release of the regulated
substance as effectively as other
methods allowed under the state
program for petroleum UST systems and
that effective corrective action
technology is available for the
hazardous substance being stored that
can be used to protect human health and
the environment.
§ 281.34 Release reporting, InvestIgatIon.
and confirmation.
In order to be considered no less
stringent than the corresponding federal
requirements for release reporting.
investigation, and confirmation, the
state must have requirements that
ensure all owners and operators
conform with the following:
(a) Promptly investigate all suspected
releases, including:
(1) When unusual operating
conditions, release detection signals and
environmental conditions at the site
suggest a release of regulated
substances may have occurred: and
(2) When required by the
implementing agency to determine the
source of a release having an impact in
the surrounding area: and
(b) Promptly report all confirmed
underground releases and any spills and
overfills that are not contained and
cleaned up.
(c) Ensure that all owners and
operators contain and clean up
unreported spills and overfilla in a
manner that will protect human health
and the environment
f 281.35 Releas response and corrective
In order to be considered no less
stringent than the corresponding federal
requirements for release response and
corrective action, the state must have
requirements that ensurei
(a) All releases from UST systems are
promptly assessed and further releases
are stepped:
(b) Actions are taken to Identify,
• contain and mitigate any immediate
health and safety threats that are posed
by a release (such activities include
investigation and initiation of free
product removal, if present):
(c) All releases from UST systems are
investigated to determine if there are
impacts on soil and ground water, and
any nearby surface waters. The extent
of soil and pound water contamination
must be delineated when a potential
threat to human health and the
environment exists.
(d) All releases from UST systems are
cleaned up through soil and ground
water remediation and any other steps.
as necessary to protect human health
and the environment
(e) Adequate information is made
available to the state to demonstrate
that corrective actions are taken in
accordance with the requirements of
paragraphs (a) through (d) of this
section. This information must be
submitted in a timely manner that
demonstrates its technical adequacy to
protect human health and the
environment; and
(Q In accordance with 280.87, the
state must notify the affected public of
all confirmed releases requiring a plan
for soil and ground water remediatlon.
and upon request provide or make
available information to inform the
interested public of the nature of the
release and the corrective measures
planned or taken.
§ 281.36 Out-of service UST systems and
closure.
In order to be considered no less
stringent than the corresponding federal
requirements for temporarily closed
UST systems and permanent closure, the
state must have requirements that
ensure UST systems conform with the
following:
(a) Removal from service. All new and
existing UST systems temporarily closed
must;
(1) Continue to comply with general
operating requirements, release
reporting and investigation, and release
response and corrective action:
(2) Continue to comply with release
detection requirements if regulated
substances are stored in the tank.
(3) Be dosed off to outside access: and
(4) Be permanently closed if the UST
system has not been protected from
corrosion and has not been used in one
year. unless the state approves an
extension after the owner and operator
conducts a site assessment
(b) Permiinpnt closure of liST
systems. All tanks and piping must be
cleaned and permanently closed in a
manner that eliminates the potential for
safety hazards and any future releases.
The owner or operator must notify the
state of permanent UST system closures.
The site must also be assessed to
determine if there are any present or
were past releases, and if so. release
response and corrective action
requirements must be complied with.
(c) All liST systems taken out of
service before the effective date of the
federal regulations must permanently
close in accordance with paragraph (b)
of this section when directed by the
implementing agency.
§ 281.37 FInancial responsibility for USTs
containing petroleum. EM (Reserved I
* 281.38 FInancial responsibility for USTs
containing hazardous substances.
(Reserved I
Subpart 0—Adequate Enforcement of
Compliance
§ 211.40 RequIrements for compliance
monItorIng progress and authortty.
(a) Any authorized representative of
the state engaged in compliance
inspections, monitoring, and testing
must have authority to obtain by request
any information from an owner or
operator with respect to the liST
system(s) that is necessary to determine
compliance with the regulations.
(b) Any authorized representative of
the state must have authority to require
an owner or operator to conduct
monitoring or testing.
(c) Authorized representatives must
have the authority to enter any site or
premises subject to UST system
regulations or in which records relevant
to the operation of the liST system(s)
are kept. and to copy these records.
obtain samples of regulated substances,
and inspect or conduct the monitoring or
testing of UST system(s).

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Federal Register / Vol. 53, No. 185 I Friday. September 23. 1988 / Rules and Regulations 37245
(d) State programs must have
procedures for receipt, evaluation.
retention, and investigation of records
and reports required of owners or
operators and must provide for
enforcement of failure to submit these
records and reports.
(eKI) State programs must have
inspection procedures to determine.
independent of information supplied by
regulated persons. compliance with
program requirements, and must provide
for enforcement of failure to comply
with the program requirements. States
must maintain a program for systematic
inspections of facilities subject to
regulations in a manner designed to
determine compliance or non.
compliance, to verify accuracy of
information submitted by owners or
operators of regulated USTs. and to
verify adequacy of methods used by
owners or operators in developing that
information.
(2) When inspections are conducted.
samples taken, or other information
gathered. these procedures must be
conducted in a manner (for example.
using proper “chain of custody”
procedures) that will produce evidence
admissible in an enforcement
proceeding, or in court.
(I) Public effort in reporting violations
must be encouraged and the state
enforcement agency(ies) must make
available information on reporting
procedures. State programs must
mauitaLn a program for investigating
information obtained from the public
about suspected violations of UST
program requirements.
(g) The state program must maintain
the data collected through inspections
and evaluation of records in such a
manner that the implementing agency
can monitor over time the compliance
states of the regulated community. Any
compilation. index, or mventory of such
facilities and acthritiea shall be made
available to EPA upon request
§ 281.41 Requirements for enforcement
a—.
(a) Any state agency administering a
program must have the authority to
implement the following remedies for
violations of state program
requirements:
(1) To restr iin immediately and
effectively any person by order or by
suit in state court from engaging in any
unauthorized activity that is
endangering or causing damage to
public health or the environment:
(2) To sue in courts of competent
jurisdiction to enjoin any threatened or
continuing violation of any program
requirement:
(3) To assess or sue to recover in court
civil penalties as follows:
(1) Civil penalties for failure to notify
or for submitting false information
pursuant to tank notification
requirements must be capable of being
assessed up to $5,000 or more per
violation.
(ii) Civil penalties for failure to
comply with any state requirements or
standards for existing or new tank
systems must be capable of being
assessed for each instance of violation.
up to $5000 or more for each tank for
each day of violation. If the violation is
continuous, civil penalties shall be
capable of being assessed up to $5,000
or more for each day of violation.
(b) The burden of proof and degree of
knowledge or intent required under state
law for eafAllIilhiug violations under
paragraph (a)(3) of this section. must be
no greater than the burden of proof or
degree of knowledge or intent that EPA
must provide when it brings an action
under Subtitle I of the Resource
Conservation and Recovery Act.
(c)A civil penalty assessed, sought, or
agreed upon by the state qnfcrcement
agency(ies) under paragraph (a)(3) of
this section must be appropriate to the
violation.
§ 281.42 Requirements for public
part Icipation.
Any state administering a program
must provide for public participation in
the state enforcement process by
providing any one of the following three
options:
(a) Authority that allows mtervention
analogous to Federal Rule 24(a)(2). and
assurance by the appropriate state
enforcement agency that it will not
oppose intervention under the state
analogue to Rule 24(a)(2) on the ground
that the applicant’s interest is
adequately represented by the State.
(bJ Authority that allows intervention
as of right in any civil action to obtain
the remedies specified in § 281.41 by any
citizen having an interest that is or may
be adversely affectethor
(c) A wuuce by the appropriate state
agency thati
(1) It will provide notice and
opportunity for public coninient on all
proposed settlements of civil
enforcement actions (e,cPo w 1 re
• immediate action is necesouty to
adequately protect human hetlth and
the environment):
(2) It will investigate and provide
response. to citizen complaints about
violations: and
(3) It will not oppoec ntizen
intervention when permissive
intervention is allowed by statute, rule,
or regulation
§ 281.43 Shasb g of kifOiThatlOfl.
(a) States with approved programs
must furnish EPA. upon request, any
information in state files obtained or
used in the aclmi iWation of the state
program. This information includes:
(1) Any information submitted to the
stats under a claim of confidentiality.
The state must submit that claim to EPA
when providing such information. Any
information obtained from a state and
subject to a claim of confidentiality will
be treated in accordance with federal
regulations in 40 CFR Part 2: and
(2) Any information that Is submitted
to the state without a claim of
confidentiality. EPA may make this
information available to the public
without further notice.
(b) EPA must furnish to states with
approved programs. upon request. any
information in EPA files that the state
needs to administer its approved state
program. Such information includes:
(1) Any information that is submitted
to EPA without a claim of
confidentiality: and
(2) Any information submitted to EPA
under a claim of confidentiality, subject
to the conditions in 40 CFR Part 2.
Subpart E—Approval Procedures
§ 281.50 Appi’ovsl procedures for slate
programs.
(a) The following procedures are
required for all applications, regardless
of whether the application is for a
partial or complete program, as defined
in § 281.12. or for interim or final
approval in accordance with § 281.11.
(b) Before submitting en application to
EPA for approval of a state program. the
state must provide an opportunity for
public notice and comment in the
development of its underground storage
tank program.
(cJ When EPA receives a state
program application. EPA will examine
the application and notify the state
whether its application is complete, in
accordance with the application
component . required in § 281.20. The
180 .day statutory review period begins
only after EPA has determined that a
complete application has been received.
(d) The state and EPA may by mutual
agreement extend the review period.
(e] After receipt of a complete
program application. the Administrator
will tentatively determine approval or
disapproval of the state program. EPA
shall issue public nouce of the tentative
determination in the Federal Regieter in
enough of the largest newspapers in the
state to attract statewide attention: and
to pomona on the state agency mailing
list and any other person. who the

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37246 Federal Register I Vol. 53. No. 165 / Friday. September 23. 1988 / Rules and Regulauonj
agency has reason to believe are
interested. Notice of the tentative
determination must also:
(1) Afford the public 30 days after the
notice to comment on the state’s
application and the Administrator’s
tentative determination; and
(2) Include a general statement of the
areas of concern, if the Administrator
indicates the state program may not be
approved: and
(3) Note the availability for inspection
by the public of the state program
application; and
(4) Indicate that a public hearing will
be held by EPA no earlier than 30 days
after notice of the tentative
determination unless insufficient public
interest is expressed, at which time the
Regional Administrator may cancel the
public hearing.
(f) Within 180 days of receipt of a
complete state program application, the
Administrator must make a final
determination whether to approve the
state program after review of all public
comments, EPA will give notice of its
determination in the Federal Register
and codify the approved state program.
The notice must include a statement of
the reasons for this determination and a
response to significant comments
received.
§ 281.51 Amendment required at end of
Interim period,
(a) State programs that meet the
requirements oi section 281.11(c) (1) and
[ 2) may be approved for I to 3 years
from September 23, 1988. States that
receive such interim approval must
adopt requirements that are no less
stringent than the corresponding federal
requirements and standards within the
timefrarnes specified under
§ 281.11(c)(3).
(b) By the end of the specified time
period, a state with intenm approval
must submit to EPA an amendment to its
application that includes all modified
and new requirements for any of the
elements containing Less stringent
requirements. Such amended
applications must also include a
modified program description, an
Attorney General’s statement and a
Memorandum of Agreement that
incorporate the amended program
requirements. and copies of all
applicable state statutes and
regulations.
(c) Upon receipt of the application
amendment, the Administrator shall
follow the same review and approval
procedures as required in § 281.50.
(d) 11 a state fails to submit an
amendment within the specified
timeframe, the interim approval of the
state program expires upon the
applicable date established under
§ 281.11(c), and the Subtitle I program
automatically reverts to EPA.
(e) If a state submits an amendment to
the program application within the
timeframe specified under § 281.11(c)(3)
and the amendinant is disapproved after
the end of the time period, the interun
approval of the state program expires
immediately upon disapproval and the
Subtitle I program automatically reverts
to EPA.
(I) If interim approval of the state
program expires EPA must notify the
regulated community and the public of
the re-establishment of the federal
program through a notice in the Federal
Register.
§ 28132 RevisIon of approved state
(a) Either EPA or the approved state
may Initiate program revision. Program
revision may be necessary when the
controlling federal or state statutory or
regulatory authority is changed or when
responsibility for the state program is
shifted to a new agency or agencies. The
state must Inform EPA of any proposed
modifications to its basic statutory or
regulatory authority or chango in
division of responsibility among state
agencies. EPA will determine in each
case whether a revision of the approved
program is required.
(b) Whenever the Administrator has
reason to believe that circumstances
have changed with respect to an
approved state program or the federal
program, the Administrator may request,
and the state must provide, a revised
application as prescribed by EPA.
(c) The Administrator will approve or
disapprove program revisions based on
the requirements of this Part and of
Subtitle I pursuant to the procedures
under this section, or under section
281.50 if EPA has reason to believe the
proposed revision will receive
significant negative comment from the
public.
(1) The Administrator must issue
public notice of planned approval or
disapproval of a state program revision
in the Federal Register in enough of the
largest newspapers in the state to
attract statewide attention: and by
mailing to persons on the state agency
mailing list and to any other persons
who the agency has reason to believe
are interested. The public notice must
summarize the state program revision,
indicate whether EPA intends to
approve or disapprove the revision, and
provide for an opportunity to comment
for a period of 30 days.
(2) The Administrator’s decision on
the proposed revision becomes effective
60 days after the date of publication in
the Federal Register in accordance with
paragraph (c)(1) of this section. unless
significant negative comment opposing
the proposed revision is received during
the comment period. If significant
negative comment is received. EPA must
notify the state and within 60 days after
the date of publication, publish in the
Federal Register eitheri
(i) A withdrawal of the immediate
final decision. which will then be
treated as a tentative decision in
accordance with the applicable
procedures of § 281.50(e) and (I); or
(ii) A notice that contains a response
to significant negative comments and
affirms either that the immediate final
decision takes effect or reverses the
decision.
(d) Revised state programs that
receive approval must be codified in the
Federal Register.
Subpart F—Withdrawal of Approval of
State Programs
§ 281.60 CriterIa 10, withdrawal of
approval of state programs.
[ a) The Administrator may withdraw
program approval when the Agency
determines that a state no longer has
adequate regulatory or statutory
authority or is not administering and
enforcing an approved program in
accordance with this part. The state
must have adequate capability to
administer and enforce the state
program. In evaluating whether such
capability exists, the Agency will
consider whether the state is
implementing an adequate enforcement
program by evaluating the quality of
compliance monitoring and enforcement
actions.
(b) Such withdrawal of approval will
occur only after the state fails to take
appropriate action within a reasonable
time, not to exceed 120 days after notice
from the Administrator that the state is
not administering and enforcing its
program in accordance with the
requirements of this part.
§ 281.61 Procedures for wIthdrawal of
approval of state programs.
(a) The following procedures apply
when a state with an approved program
voluntarily transfers to EPA those
program responsibilities required by
federal law.
(1) The state must give EPA notice of
the proposed transfer, and submit, at
least 90 days before the transfer, a plan
for the orderly transfer of all relevant
program information necessary for EPA
to administer the program.
(2) Within 30 days of receiving the
state’s transfer plan, EPA must evaluate
the plan and identify any additional

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Federal Register I Vol. 53. No. 185 / Friday. September 23. 1988 / Rules and Regulations 37247
information needed by the federal
government for program administration.
(3) At least 30 days before the transfer
is to occur. EPA must publish notice of
the transfer in the Federal RegiMen in
enough of the largest newspapers in the
state to attract statewide attention: and
to persons on appropriate state mailing
lists.
(b) When EPA begins proceedings to
determine whether to withdraw
approval of a state program (either on
its own initiative or in response to a
petition from an interested person).
withdrawal proceedings must be
conducted in accordance with
procedures set out in 40 CFR 271.23 (b)
and (c). except for § 271.23(b)(8)(iii) to
the extent that it deviates from
requirements under § 281.60.
(FR Doc. 88—21159 Filed 9—22—88 8.45 aml
BILLING COOS I56O4O-

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B-3 OSW’ER. Directivd 965C.8
Preamble to Financial Responsibility Objective
(53 43365)

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Federal Register I Vol. 53. No. 207 I Wednesday . October 26. 1988 / Rules and Regulations 43365
In response to the comment that Trust
Fund money should not be given to
states that do not have approved liST
regulatory programs, the Agency wants
to emphasize that the negotiation of
state cooperative agreements for u e of
the LUST Trust Fund is proceeding on a
path separate from the approval of state
programs. However. EPA has decided to
make a link between the LUST Trust
Fund and liST regulatory program to
ensure that future contamination is
minimized. After the effective date of
today’s final rule, a state’s success in
making reasonable progress toward
submitting a completed application for
state program approval may be grounds
for increasing state access to the Trust
Fund In fiscal year 1990 and thereafter.
In response to the commenters urging
that the Trust Fund be made directly
available to local governments, EPA’s
cooperative agreement process involves
states negotiating arrangements for
proper use, recovery, and accounting of
Trust Fund money with EPA. The
municipalities are not parties to these
negotiations and will need to rely on the
state to implement a sound and effective
program for the use of the Trust Fund for
corrective action. The statute does not
provide for any direct EPA/municipality
arrangement.
Finally, as discussed in Section Ill.W
of this preamble, the Agency has
decided to defer promulgation of final
procedures for suspension of
enforcement. Until such procedures are
promulgated, the Agency does not
intend to exercise its discretionary
suspension of enforcement authority. At
that time, the Agency will address the
use of LUST Trust Fund monies to
respond to releases from tanks whose
owner or operator is a member of a
class which has been granted a
suspension of enforcement.
V. Slate Program Approval
A. Background
Section 9004 of RCRA allows any
state to submit an underground storage
tank regulatory program for review and
approval by EPA. An EPA-approved
state liST regulatory program will
operate “in lieu of’ the Federal program.
The Agency may approve the state
program if the state demonstrates that
its program (1) imposes requirements
that are “no less stringent” than the
Federal release detection, prevention,
correction, and financial responsibility
requirements, arid (2) provides for
adequate enforcement of compliance
with such requirements.
B. P’nanc,aI Respons,b,l:iy ObjecLrie
( 28137)
In its final State Program Approval
rule (53 FR 37212, September 23. 1988).
EPA promulgated criteria for state
program approval in the form of
objectives for seven of the technical
program elements in the final technical
standards rule (53 FR 37082, September
23.1988): New liST system design.
construction, installation and
notification; upgrading existing UST
systems; general operating
requirements; release detection; release
reporting and investigation; corrective
action; and out-of-service and closed
UST systems. The eighth objective for
financial responsibility of owners and
operators of petroleum UST systems is
promulgated in today’s nile.
These objectives represent the
Agency’s expectations of what
constitutes a no-less-stringent state
program. By requiring the state to
achieve the objectives underlying the
detailed Federal requirements In each
element rather than match each
regulatory detail of the Federal
requirements. EPA provides a
performance-based measure for
evaluating jirograms and recognizes that
the precise details in the Federal
program are not the only feasible
approach to liST regulation. By
establishing these objectives. EPA also
provides a framework for approval that
guarantees that each state liST program
provides a minimum level of protection.
An important objective of the Federal
program is that owners and operators .r
UST systems containing petroleum have
adequate financial responsibility to
undertake corrective action and meet
third-party liability claims. The Federal
law mandates $1 million per occurrence
with appropriate aggregate amounts as
the minimum level of assurance needed
by most owners and operators of
petroleum UST systems to meet cleanup
and liabIlity costs. Today’s Federal
financial responsibility rule allows an
exception for certain classes of owners
and operators who store small
quantities of petroleum for purposes
other than selling it as a product. More
specifically, owners and operators not
engaged in petroleum production.
refining, or marketing and who have a
throughput of 10.000 gallons or less per
month are required to have only
$500,000 per occurrence for corrective
action and third-party liability claims. In
addition, the financial responsibility rule
sets the aggregate amounts at $2 million
for owners and operators with more
than 100 UST systems, and $1 million for
those who have 100 or fewer liST
systems. Finally, the financial
responsibility requirements will be
phased.in over a 24-month penod from
the date of promulgation for different
groups of owners and operators. In order
to be no less stringent than the Federal
requirements for financial responsibility
for liSTs containing petroleum, the state
must have requirements for owners and
operators to have financial assurance
and for the types of mechanisms used to
provide that financial assurance.
The Agency received comments in
support of the holistic approach to
determining no less stringent state
programs, particularly because such an
approach would enable a state to trade-
off more stringent technical
requirements with less stringent
financial requirements, for example.
lower amounts of financial
responsibility. While the Agency
understands that states may experience
difficulty in obtaining statutory or
regulatory authority to require $1 million
in coverage, that amount was
established by Congress in Subtitle I
and EPA believes it does not have the
flexibility to lower that level of coverage
as part of the Federal program or as part
of state program approval.
The first aspect of this objective
( 281.37(a)) concerns the amount of
financial assurance, both per occurrence
and in aggregate, that an owner or
operator must have. First, the state must
have a statute or regulations that require
an owner or operator to have at least Si
million or $500,000 per occurrence and
Si million or $2 million iii aggregate.
depending on the size and type of the
operation. This requirement follows
directly from the Federal financial
responsibility regulations for petroleum-
containing liST systems.
The Supplemental Notice published
on December 23, 1987 (52 FR 48644)
included an objective for financial
responsibility: however, aggregate levels
were not included in the proposed
objective. To remain consistent with the
Federal requirements for financial
responsibility, the Agency today is
promulgating the final objective with a
requirement that the owner or operator
have financial assurance in appropriate
aggregate levels. Addition of the
aggregate is necessary to ensure that
approved states require an adequate
level of coverage. The aggregate level
vanes depending on the number of tanks
owned or operated. Owners and
operators with I to 100 tanks must have
an aggregate level of coverage of Si
million and those with more than 100
tanks must have an aggregate level of
coverage of $2 million. The final
objective establishes the same levels of
coverage. Further discussion on pre-

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43366 Federal Register / Vol. 53, No. 207 I Wednesday. October 26. 1988 1 Rules and Regulations
occurrence and aggregate levels of
coverage can be found in today’s
preamble at Section UI D.
The second aspect of this objective
( 281.37(b)) concerns the phase-in
compliance schedule for owners and
operators. The objective proposed on
December 23.1987 (52 FR 48644) did not
include a provision for a phase-in
schedule. This provision is being added
to be consistent with decisions made
following the Supplemental Notice to the
proposed rule for financial responsibility
for petroleum liSTs that was published
in the Federal Register on March 31,
1988 (53 FR 10401). In today’s final
financial responsibility rule. EPA has
decided to phase-in compliance over 24
months from the date of promulgation at
all liST systems following a schedule
based on net worth and the number of
tanks owned. Although EPA
recommends that a similar approach be
used by state programs, the Agency has
decided to allow flexibility in the
objective for states to use other phase-in
approaches provided that the schedule
is completed in 24 months. Approaches
that allow all of the regulated
community to wait until the end of the
24.month period would not be accepted
as an orderly schedule.
The third aspect of this objective
( 281.37(c)) concerns the variety of
financial mechanisms that may be used
by owners and operators to demonstrate
adequate financial responsibility. The
Federal financial responsibility rule
allows a wide variety of mechanisms
and combinations of mechanisms to be
used. The state may also allow a variety
of financial mechanisms to be used. To
determine whether state-allowed or
required mechanisma are no less
stringent than the Federal requirement.
general criteria have been established
that are applicable to all financial
mechanisms. By establishing these
criteria in the Federal objective, the
Agency believes that IL is unnecessary
for the state to have detailed
requirements for each mechanism
affected by these criteria for purposes of
state program approval. However. EPA
encourages states to adopt the financial
responsibility regulation, especially the
language of each mechanism, since they
have been developed and tested to
ensure that adequate financial
responsibility will be available when
necessary. For examp!e, the state will
not be expected to demonstrate that its
regulations require a surety company to
state in a bond that the bond cannot be
cancelled during a 120-day penod
following notice of cancellation of the
bond to the owner or operator. The state
musi. however, be able to draw on the
funds assured by the bond before
cancellation occurs. The state
regulations must ensure that the time
period before the effective cancellation
of the bond provides ample opportunity
for the state to assess the facility,
determine if a release has occurred, and.
if needed, draw funds from the
instrument. In this way, the Federal
objectives for financial responsibility for
UST systems containing petroleum are
met.
Section 9004(c)(1) of Subtitle I allows
states to set up a fund that may be used
to meet the no less stringent requirement
for financial responsibility. The state
may choose to establish a state fund to
provide financial assurance for certain
classes of owners and operators or for
all owners and operators. The general
criteria for state funds are represented
in the objective ( 281.37(a) and (cfl
these criteria are essentially the same as
the requirements for state funds set out
in the Federal financial responsibility
rule in § 280.100. Further discussion on
state funds and their use in providing
financial assurance will be available in
guidance due to be issued this fall by
EPA. A briefer discussion can also be
found in EPA’s State P ’ogmm Approval
Handbook.
Some commenters expressed concern
that the requirement that states have a
financial responsibility program that is
no less stringent than the Federal
program in order to receive state
program approval will delay approval of
state programs. The commente s stated
that complex financial responsibility
requirements could discourage states
from submitting UST programs for
approval. They urged thai EPA
promulgate a simple financial
responsibility framework and provide
guidance to the states
As explained above, the requirement
that an approved state program contain
financial respoombility requirements
that are no less stringent than those
under the Federal program is required
by RCRA Section 9004. However. EPA
has developed an approach to state
program approval that provides states
as much latitude as possible consistent
with the statute in adopting approaches
to fulfill the requirement. The Agency
recugiu es the difficulties for states in
developing financial responsibility
progidms and is preparing detailed
guidance and outreach assistance to
stales to help them develop their
p rogr .I Ins
A more complete .inaiysis of issues
rcgurdinp, state program approval is
presented in the preamble to th .t rule
(53 FR 37212. September 23, 19B8).
Vi. Compliance Monitoring and
Enforcement
Although not raised as an issue in the
proposal, implications of the proposed
rules for compliance monitonng and
enforcement activities received
considerable comment. Many of the
comments were submitted by states.
En general. the co.mments note that
performing compliance monitoring and
enforcement for financial responsibility
rules will place a heavy resource burden
on the states. Moreover, some states are
currently understaffed while others
apparently have little experience with
the options for demonstrating financial
responsibility and would have difficulty
evaluating them. Also, the proposed
requirement for maintaining financial
responsibility for one year after tank
closure would be difficult to enforce,
especially if the business is sold, closes.
or goes bankrupt.
Some states noted that, if the states
will be responsible for implementation
of the financial responsibility program
and will not be provided funding, then
EPA should not have a strong oversight
role or stringent requirements for state
program approval. Another state
coinmenter reads the proposed section
on reporting, which requires owners or
operators to send evidence of financial
responsibility to the Regional
Administrator, to mean that EPA will
administer the entire financial
responsibility program.
A number of non-governmental
commenters also noted the enormous
burden that ensuring compliance for
such a large universe would entail, with
some offering approaches to enhance
compliance and enforcement One
approach suggested by several
commenteis is that EPA collect evidence
of financial responsibility from all
owners or operators through periodic
reporting; for example, using the Tank
Notification Program to provide the
basis for annual notification of
compliance with financial responsibility
requirements. Other commenters
suggested that proof of financial
responsibility be made a condition to
obtain an annual operating permit.
Another suggested that enforcement
would be enhanced if the scope of these
complicated rules could be clarified
using the following techniques (I)
Workshops. (2) fact sheets. (3) more
detailed summaries, and (4) condensed
vprsioqs of the regul.itior.s
Virtu ,illy all of the conlmentb evidcnrc
both jiistifiabk concern tri it performing
complidnee monitoring and en fori .ement
for such an enormous regtul,ited
community presents a formid,ihle

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OSWER Directive 9650.8
APPENDIX C
Tools for Implementing State Regulations

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C-i OSW’ER Directive 9650.8
Tools for Implementing State Regulations
The following section describes various approaches that States have used
to implement their regulations and monitor compliance. These examples are
provided here to assist States in developing their UST program or making it
work more effectively. The use of such approaches are merely suggestions for
interested States and are necessary to receive State program approval.
New UST System Design. Construction. Installation and Notification . To
make sure that installations of new UST systems are completed properly, Maine
certifies installers. The certification involves a written test based on
nationally-recognized codes and a review of applicant’s qualifications
(including apprenticeship and work experience) as an installer by the Board of
Underground Oil Storage Tank Installers.
Permitting is another way to ensure that new UST systems are soundly
designed, constructed, and installed. In one State, the permitting process
requires the owners to describe: (1) the UST characteristics, such as tank
capacity, contents, and material of construction, cathodic protection and
release detection methods, and (2) facility characteristics, including
property boundaries, the location of buildings at the site and in the
surrounding area, the location of the proposed tank system, and the
approximate location of public or private water wells and any surface water
bodies within 500 feet of the proposed UST. The permitting process in
Nebraska includes a review of shop drawings by the State Fire Marshal’s Office
and an on-site inspection of the tank and piping systems during installation.
Upon notification, Florida provides each owner or operator with a
registration sticker or a certificate that lists all of the registered USTs at
the facility. State regulations require that this proof of registration be

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C-2 OSWER Directive 9650.8
posted in plain view near the UST system so that fuel distributors can verify
the registration status of the UST before they make a delivery. If no proof
of registration is displayed, the distributor is prohibited from making a
delivery. Distributors are also required to make notification forms available
to any customers who may own USTs that need to be registered.
In addition to the Federally-required notification by owners and
operators of new and existing USTs, Connecticut requires notification in the
event of change in ownership or control of a new or existing UST system within
15 days of the change in status. Also, owners and operators must report any
changes in the information provided to the State for purposes of notification
within 30 days of the change(s) (for example, type of substance stored)
Upgrading Existing UST Systems . Vermont has an innovative approacn that
helps to implement upgrading requirements. Vermont recently passed
legislation that sets forth an incentive program to encourage UST upgrading
This program provides financial assistance to owners of retail gas stations
that sell less than 20,000 gallons of gasoline per month and that want to
replace their USTs in accordance with Vermont’s regulations Owners must fill
out an application providing the Vermont Agency of Environmental Conservation
with essential facility information. Grants up to $5,000 or the cost of
bringing the system into compliance (whichever is less) may be awarded to the
applicants. Priority is given to applicants from areas with a low density of
retail gasoline stations and for whom the expense of tank replacement is
likely to cause “termination of retail gasoline services.” California is
considering the establishment of a similar program with financial assistance
in the form of a loan provided for UST system upgrades and repairs at small
businesses.

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C-3 OSWER Directive 9650.8
General Oierating Reciuirements . Maryland has developed an innovative
approach to prevent operational problems that can cause overfills and spills.
In Maryland, drivers of tank trucks and transports must pass an examination to
demonstrate knowledge of the procedures used in the safe handling of oil, oil
spill control measures, and oil spill reporting requirements. Upon successful
completion of the exam, drivers receive an “Oil Vehicle Operator’s
Certificate”, which they must carry at all times while involved in the
transfer or transport of oil. Temporary (30 day) certificates are issued to
new drivers provided that the distributor instructs the driver regarding basic
procedures involved in safe handling of oil and oil spill reporting
requirements. Interstate drivers that transport petroleum products through
Maryland are not required to have an operator’s certificate; however, all
drivers must follow a detailed set of product transfer requirements to make
sure that petroleum transfers are handled properly. These requirements
supplement the typical procedural requirements that appear in Maryland’s
regulations and serve as a useful program implementation tool.
To ensure that substances are delivered to USTs with which they are
compatible, some States require labeling of UST systems. Five States
(Delaware, Florida, New Hampshire, New York, and Vermont) have issued
requirements for labeling of tanks and fill ports to identify tank material
and regulated substance compatibility. Both Delaware and Florida have
provisions specifically for USTs made of fiberglass-reinforced plastic. In
these States, both the tank and the fill cap must be equipped with a label
that says: “Non-metallic Underground Tank for Petroleum Products, Alcohols,
and Alcohol-Gasoline Mixtures” or “Non-Metallic Underground Tank for Petroleum
Products Only”.

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C-4 OSWER DIrective 9650.8
To aid delivery personnel, some States require fill ports to be labeled
with the tank volume and substance stored (for example, color coding for
substance type in accordance with API 1637). In this way, delivery personnel
are provided with the essential information they need to gauge an UST system
accurately and to make the appropriate delivery of regulated substance. The
use of such labeling helps prevent overfills and spills.
The Delaware Department of Natural Resources and Environmental Control
(DNREC) is drafting standardized methods for recordkeeping. Such
standardization will help. liST owners and operators to determine what types of
information must be documented and in what form they must be recorded. The
resulting records should contain useful information that is consistent in
quality and presentation These characteristics are helpful to the
implementing agency when trying to determine facility compliance. Maintenance
of clear and comprehensive records enhances DNREC’s compliance monitoring
capabilities.
Release Reporting. Investigation, and Confirmation . Most States require
immediate reporting of all suspected or confirmed releases. Hotlines have
been established in many States in order to provide a fast, effective way of
contacting the emergency response unit. Typically, once a release is
reported, State officials advise liST owners as to what actions they must take.
In TANKLINE (September 1987), Oregon’s newsletter for liST owners and
interested parties, a checklist was presented to guide the actions of liST
owners in the event of a release. The checklist contains 10 major items,
three of which relate to release reporting and investigation, and seven of
which pertain to corrective action The recommended actions relating to
release reporting and investigation are: (1) notify the DEQ through the

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C-5 OSW!R Directive 9650.8
Oregon Accident Response Hotline; (2) determine if there is a fire danger (if
so, contact the fire department immediately); and (3) determine the source of
the release.
Florida has an innovative approach toward release reporting. The State
has instituted an “Early Detection Incentive” program in which the UST owners
are required to report any UST releases, but have amnesty from clean-up costs
because the remedial actions are financed through a special State trust fund.
Petroleum UST owners are eligible provided that (1) they have complied with
the notification requirement by October 1, 1988; (2) the UST facility is not
owned by the Federal government; (3) State access to the facility for
inspection has not been or is not denied; and (4) the State determines that
the facility was not operated in a grossly negligent manner. (This last
provision gives UST owners an incentive to comply with release detection
monitoring requirements.) Once eligible, the owner or operator may choose to
have the State perform the cleanup, or perform it himself and receive
reimbursement from the State. The number of reports and cleanups this program
has motivated is impressive. The newsletter LUSTLINE (published by the New
England Interstate Water Pollution Control Commission), reports that as of
March 2, 1987, 477 sites had requested State cleanup and an additional 298
sites were being cleaned up by the responsible party and receiving
reimbursement from the State.
A different type of incentive for release reporting, abatement, and
hazard mitigation has been put forth in Missouri House Bill No. 528. This
legislation requires “any person having cont’o1 over a hazardous substance”
who detects a release to notify the State and initiate cleanup. Should this
person fail to comply with these requirements, he is not only liable for the

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C-6 OSW’ER Directive 9650.8
associated cleanup cost, he is also liable for punitive damages up to three
times the cleanup cost amount. The “any person” language can refer to a
transporter making a product delivery as well as the owner or operator of an
UST system.
One State requires that any facility where one confirmed UST release has
occurred must have all other tanks at that facility inspected within 180 days
to determine whether other releases may exist.
Release Response and Corrective Action . Oregon’s newsletter, TANKLINE
(September 1987), presents a checklist to provide guidance to UST owners and
operators in the event of a release. Seven items on this checklist direct
owners on how to clean up the release: (1) determine the extent of
contamination; (2) if product has moved off your property, notify affected
owners; (3) meet with DEQ to set up a cleanup standard and a schedule for the
cleanup; (4) write a remedial action plan to achieve the cleanup goals; (5)
submit your plan to DEQ for approval; (6) implement your plan and monitor
progress; and (7) report to DEQ on your success at meeting cleanup goals. By
posting the State requirements in a newsletter that is circulated to the UST
community, Oregon is using an innovative approach for informing UST owners and
operators of their responsibilities.
In addition to its basic corrective action requirements, Nebraska has
developed a detailed set of protocols for determining the need for and the
nature of ground water remedial action. A systematic flow chart provides
guidance in determining the type and extent of treatment needed. For releases
that have or may potentially impact ground water, a detailed site assessment
is required that must address the characteristics of the soil, hydrogeology,
contaminant, and site (for example, proximity to water supplies and land use)

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C-7 OSWER Directive 9650.8
as well as the background water and soil quality or use. A ground-water
classification scheme is used to determine the degree of hazard presented and
make decisions concerning remedial actions. Based on this assessment,
preliminary cleanup levels are defined and remedial actions proposed.
Florida’s Department of Environmental Regulation (DER) has developed a
set of site cleanup criteria for petroleum contamination. The State has
provided criteria for evaluating: (1) the initial remedial action, (2) a
Quality Assurance Project Plan for collecting and analyzing samples, (3) a
contamination assessment and report, (4) a remedial action plan, (5) the
remedial action, and (6) the completion of site rehabilitation. Site
Rehabilitation Levels (SRLs) are allowable contaminant concentration limits
that must be met before the site cleanup can be deemed complete The SRLs are
based on water quality standards. Alternative or less stringent SRLs may be
created if it can be demonstrated that site-specific factors (for example,
background contaminant levels) can justify their use.
In order to protect human health and the environment when an immediate
threat is perceived, some State agencies swiftly perform corrective action for
UST releases even before they are able to identify all the potentially
responsible parties (PRPs). States like Maine and New York are able to do
this because they have created cleanup trust funds that allow them to incur
the cost of cleanup and seek PRP reimbursement later. This type of State
trust fund can be an effective tool in mitigating immediate hazards and
ensuring environmental restoration.
Out-of-Service UST Systems and Closure . UST owners or operators in
South Carolina who have temporarily removed their UST system(s) from service
within the past calendar year must submit a report, during January of each

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C-8 OSWER Directive 9650.8
year, to the Department of Health and Environmental Control that describes the
system’s location, capacity, permit number, dates temporarily taken out of
operation, and method used to place the system temporarily out of operation.
This report helps South Carolina monitor the compliance of these temporarily
out-of-service USTs -
For permanent UST closure, some States (FL, MA, and OR) require that the
person dismantling and removing the UST system be certified to ensure that
permanent UST closures are performed properly and safely by trained
professionals. In Maine, the UST owner or operator must notify appropriate
State and local agencies and receive written permission from the Maine
Department of Environmental Protection (DEP) y requiring notification and
written perniission, the DEP is aware of planned tank closures and is able to
give UST owners guidance, when necessary, to ensure that appropriate
procedures are used to close the UST system. In Rhode Island, owners and
operators are required to obtain a certificate of closure In this way, the
State can ensure that site assessments for past and present releases are
performed, and any necessary corrective actions implemented. The potential
dangers associated with UST closure should not be underestimated. To prevent
mishaps, the use of good closure practices is absolutely necessary. The
approaches described above also help States ensure that the UST closure is
performed safely and properly.
New Jersey’s proposed regulations suggest another method of ensuring
that closures are performed safely and properly. Owners or operators in New
Jersey who plan to close their UST systemr nust submit a closure plan to the
Department of Environmental Protection (DEP) 60 days before the anticipated
closure date. This plan consists of a site assessment that incorporates the

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C-9 OSWER Directive 9650.8
following information: (1) three consecutive months of monitoring data from a
DEP-approved external monitoring system; or (2) a work plan for conducting
soil sampling and analysis. This work plan must provide: (1) the number and
location of soil samples; (2) soil sampling procedures (for which the DEP
provides some guidance) and analysis protocols that must be in accordance with
DEP-approved methods; (3) a plot plan clearly indicating all major structures,
including the tank itself (in use and closed), piping, dispensers and other
equipment; (4) a health and safety plan (may be required); (5) an
implementation schedule; and (6) a plan showing the installation of monitoring
wells (may be required). ased on the substance stored, the DEP provides
guidance as to what constituents must be looked for in the soil samples The
owner or operator is required to implement the closure plan within 30 days
after obtaining all necessary Federal, State, and/or local approvals.
An essential part of permanent UST closure by removal is disposal of
tanks and any end products derived from tank cleaning. Massachusetts has an
innovative approach to address these matters. It requires USTs that are
undergoing removal to be emptied of stored product, purged of vapors, and
taken to a licensed or permitted tank dismantling yard. At the tank yard, the
UST must be logged in, cleaned of residue, and dismantled. The cleaning end
product must be treated as hazardous waste and removed by a hazardous waste or
waste oil transporter licensed by the Department of Environmental Quality
Engineering.
Maine makes provisions in the regulations for the proper disposal of
sludge and scale, as well as for recycling and disposal of USTs. Furthermore,
Maine mandates that the tank owner have a notice regarding permanent UST
abandonment attached to the property deed. Although such a requirement is not

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c-b OSW’ER Directive 9650.8
needed for State program approval, this mechanism ensures that future property
owners will be informed about the tank’s presence on their property. In
California, UST owners or operators choosing to close their USTs in place are
also required to place a notice on the property deed, describing the location
in detail of the closed UST, the regulated substance it contained and the
closure method.

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APPENDIX D
Table of National Industry Codes and Standards

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TABLE 1. SELECTED NATIONAL CONSENSUS CODES AND RECOQ4ENDED PRACTICES FOR UST MANAGEMENT
DOCUMENT
DESIGN
AND
CORROSION
MAJOR TECHNICAL
UST SYSTEM
TOPICS OF THE FINAL
REPAIR OPERATING
EPA
UST RULE
RELEASE
RELEASE
REPORTING
NUMBER
CONSTRUCTION
PROTECTION
INSTALLATION
AND RETROFIT
REQUIREMENT
DET [ CTION
AND CORRECTIVE ACTION CLOSURE
American National Standards Institute (ANSI)
ANSI B31.4 x x x x x x
American Petroleum Institute (API)
• API 5L x
• API 12F x
API 650 x
API 1604
• API 1615 x x x x
API 1628 X x
* API 1631 x x x x
API 1632 x x x x
API 2202 x
American Society for Testing and Materials (ASTM)
ASTM (Steel
Pipings Tubing,
end Fittings) x
• ASTM A 53—87b x
* ASTM A182/A182M-87 x
* ASTM 0 4021-86 x

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TABLE 1. SELECTED NATIONAL CONSENSUS CODES AND RECONMENDED PRACTICES FOR UST MANAGEMENT (CONTINUED)
MAJOR TECHNICAL
TOPICS OF THE FINAL
EPA
UST RULE
DOCUMENT
DESIGN
AND
CORROSION
UST SYSTEM
REPAIR
OPERATING
RELEASE
RELEASE
REPORTING
NUMBER
CONSTRUCTION
PROTECTION
INSTALLATION
AND RETROFIT
REQUIREMENT
DETECTION
AND CORRECTIVE ACTION CLOSURE
Association of Ccniposite Tanks (ACT)
* ACT100 x x x x
Factory Mutu I (FM)
FM 1920 x
National Association of Corrosion Engineers (NACE)
NACE RP—0169-83 x x x x x
NACE RP-0172-72 x x
NACE RP-0184-84 x x
NACE RP—0275—75 x x
NACE RP-0285-85 x x x x x
NACE RP-0572-85 x X
Nation I Fire Protection Association (NFPA)
NFPA3O x x x x
NFPA 321 x K
* NFPA 321 K
* NFPA32B x K
* NFPA329 K K K
NIPA 385 K
National leak Prevention Association (NIPA)
‘NLPA63I x K

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TABLE 1. SELECTED NATIONAL CONSENSUS CODES AND RECOMMENDED PRACTICES FOR UST MANAGEMENT (CONTINUED)
DOCUMENT
DESIGN
AND
CORROSION
MAJOR TECHNICAL
UST SYSTEM
TOPICS OF THE FINAL
REPAIR OPERATING
EPA
UST RULE
RELEASE
RELEASE
REPORTING
NUMBER
CONSTRUCTION
PROTECTION
INSTALLATION
AND RETROFIT
REQUIREMENT
DETECTION
AND CORRECTIVE ACTION CLOSURE
Owens Corning (OC)
OC 3-PE-9632-A
Petroleum Equipment Institute (PEI)
* PEI/RPIOO x x x x x x
Steel Tank Institute (STI)
STI (Installation X
of Sti—P3)
STI (Interior x x x x
Corrosion
Control)
STI (Exterior x x x
Corrosion
Protection)
STI (Dual W all x x x
USTs)
Underwriters Laboratories (UL)
ULS8 x
UL 567 x x
UL 1316 x x

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TABLE . SELECTED NATIONAL CONSENSUS CODES AND RECOMMENDED PRACTICES FOR UST MANAGEMENT (CONCLUDED)
DOCUMENT
DESIGN
AND
CORROSION
MAJOR TECHNICAL
UST SYSTEM
TOPICS OF THE FINAL
REPAIR OPERATING
EPA
UST RULE
RELEASE
RELEASE REPORTING
NUMBER
CONSTRUCTION
PROTECTION
INSTALLATION
AND RETROFIT
REQUIREMENT
DETECTION
AND CORRECTIVE ACTION CLOSURE
Western Fire Chiefs Association
* UFC1985 I C IC IC IC IC IC
* Revised in 1987
“ Drafted in 1987
x — There is a code or recommended practice.

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OSWER Directive 9650.8
APPENDIX E
Pubi ic Participation

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£- 1
Federal Rule 24(a)(2)
RULES OF CIVIL PROCEDURE
Rule 24. intervention
(a) Intervention of Right Upon timely applica-
uda anyone sha be permitted to intervene in an
action. (1) when a statute of the United States
confers an uncor.cnuonal right to intervene; or (2)
when tne applicant claims an interest relating to
the property or transaction wnich is the subject of
the action and tne applicant is so situated that the
disposition of the action may as a practical matter
impair or impede the applicant’s ability to protect
that interest, unless the applicant’s interest is ade-
quately represented by existing parties.
b) Perirnuive interventIon. Upon timely ap.
plication anyone may be permitted to intervene in
an action: Ii) wnen a statute of the United States
confers a conditional right to intervene: or (2)
when an applicant’s claim or defense and the main
action have a question of law or fact in common.
When a party to an action relies for ground of
claim or defense upon any statute or executive
order administered by a federal or state govern-
mental officer or agency or upon any regulation.
order. requirement or agreement issued or made
pursuant to the statute or executive order. the
officer or agency upon timely application may be
permitted to intervene in the action. in exercising
its discretion the court shall consider whether the
intervention will unduly delay or prejudice the adju-
dica on of the rights of the original parties.
(C) Procedure. A person desiring to intervene
shall serve a motion to intervene upon the parties
u provided in Rule 5. The motion shall state the
grounds therefor and shall be accompanied by a
pleading setung forth the claim or defense for
which intervention is sought The same procedure
shall be followed when a statute of the United
States gives a right to Intervene. When the consti-
tu onality of an act of Congress affecting the
public interest is drawn in question in any action to
which the United States or an officer, agency. or
employee thereof is not a party, the court shall
notify the Attorney General of the United States as
provided in Title 28. U.S.C. § 2403.
(As amended Dec. V. 1946. eli Mu. 19. 1948: Dec 29.
1948. eli Oct. 20. 1949. Jan. 21. 1963. eff. July 1. 1963.
Feb. 28. 1966, eff. July 1. 1966. Mar. 2, 1987. eli. Aug 1,
1987.)

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APPENDIX F
Definitions of Terms in the Federal Technical Rule

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F-i OSWER Directive 9650.8
Definition of Terms in the Federal Technical Rule
Operator - - any person in control of, or having responsibility for, the daily
operation of the UST system.
Person -- an individual, trust, firm, joint stock company, federal agency,
corporation, state, municipality, commission, political subdivision of state
or any interstate body. “Person” also includes a consortium, a joint venture,
a commercial entity, and the United States Government.
Regulated Substance - - (a) any substance defined in Section 101(14) of CERCLA
(but not including any substance regulated as a hazardous waste under Subtitle
C); and (b) petroleum, including crude oil or any fraction thereof which is
liquid at standard conditions of temperature and pressure (60 degrees
Fahrenheit and 14.7 pounds per square inch absolute). Section 101(14) of
CERCLA reads as follows:
“The term ‘hazardous substance’ means (A) any substance designated
pursuant to section 311(b)(2)(A) of the Federal Water Pollution Control
Act, (B) any element, compound, mixture, solution, or substance
designated pursuant to section 102 of this Act, (C) any hazardous waste
having the characteristics identified under or listed pursuant to
section 3001 of the Solid Waste Disposal Act (but not including any
waste the regulation of which under the Solid Waste Disposal Act has
been suspended by Act of Congress), (D) any toxic pollutant listed under
section 307(a) of the Federal Water Pollution Control Act, (E) any
hazardous air pollutant listed under section 112 of the Clean Air Act,
and (F) any imminently hazardous chemical substance or mixture with
respect to which the Administrator has taken action pursuant to section
7 of the Toxic Substances Control Act. The term does not include
petroleum, including crude oil or any fraction thereof which is not
otherwise specifically listed or designated as a hazardous substance
under subparagraphs (A) through (F) of this paragraph, and the term does
not include natural gas, natural gas liquids, liquefied natural gas, or
synthetic gas usable for fuel (or mixtures of natural gas and such
synthetic gas).

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F-2 OSWER Directive 9650.8
Release -- any spilling, leaking, emitting, discharging, escaping, leaching or
disposing from an underground storage tank into groundwater, surface water or
subsurface soils.
Petrolei Substances -- crude oil, crude oil fractions, and refined petroleum
fractions, including gasoline, kerosene, and diesel fuels.
Underground Storage Tank - - any one or combination of tanks (including
underground pipes connected thereto) that is used to contain an accumulation
of regulated substances, and the volume of which (including the volume of
underground pipes connected thereto) is 10 percent or more beneath the surface
of the ground.

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3EPA
EnVIronH,e, ai rfUL L .n
Agency
3 UIc JL
Washington. D.C. 20460
Suggested Procedures for Review
of State UST Applications
US Ti S PA/C! 89-1

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United States Q I l ce 01
Environmental Protect,on Sotid Waste arid
Agency Emergency Response
i&EPA DIRECTIVENUMBER: 9650.9
TITLE: Suggested Procedures for Review of
State UST Applications
APPROVAL DATE: 3/16/8 9
EFFECTIVE DATE: 3/16/8 9
ORIGINATING OFFICE: Office of Underground
Storage Tanks
FINAL
DRAFT
STATUS:
REFERENCE (other documents):
Os
WER
Os
WER
OSWER
‘E
DIREC
TIVE
DIREC
TIVE
D i

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Unite
&EPA OSWER Di
d States Environmental Protection Agency
Washington DC 20460
rective Initiation Request
I Directive Number
9650.9
2. OrigInator Information
Name of Contact Person
Jerry Parker
Mail Code Office Telephone Code
I OS—420 OSWER/OIJST I 475—7263
3 Title
.
Suggested Procedure
s for Review of State UST Applications
4 Summary of Directive (include bnef stateme
nt of purpose)
This document proposes a s
et of suggested procedures for review of
individual State LiST applications.
5.Keywords review process, St
ate program approval review, roles and responsibilities,
schedules
6a Does This Directive Supersede Previous
urective(s) No Yes What directive (number, title)
b Does It Supplement Previous Directive(sY’
No [ ] Yes What directive (number, title)
7 Draft Level
A - Signed by AA 1 D&A
B — Signed by Office Director C — For Review & Comment D — In Development
8. Document to be dis
tributed to States by Headquarters? Yes No
This Request Meets OSWER Directives Sy
stem Format Standards.
9 Signature of 7 d O tives Coordin
4 .t)
Beverly Thomas, Directives
ator
Coordinator, OUST
Date
3/ / 7
10 Name and Title of Approving Official
Date
Ronald Brand, Director, Of
fice of Underground Storage Tanks
EPA Form 1315-17 (Rev. 5-87) Previous editions are obsolete
OSWER OSWER
OSWER
0
VE
DIRECTIVE DIRECTIVE DIRECTIVE

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OSWER Directive 9650.9
TABLE OF CONTENTS
I. INTRODUCTION 3
II. OVERVIEW AND APPROACH 3
III. ROLES AND RESPONSIBILITIES 4
Regional Review Team Members 5
State Applicant 8
Headquarters Offices 8
IV. REVIEW PROCESS 9
Phase 1: Acceptance of Application 11
Phase 2’ Substantive Review and Tentative Determination 1].
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-i
APPENDIX B APPROVAL DETERMINATIONS
Tentative Determination To Approve B-l
Final Determination To Approve 8-6
APPENDIX C CODIFICATION OF APPROVED STATE PROGRAMS
Proposed/Final Codification Notice C-l
Immediate Final Codification Notice C-12
CFR Reference for Codification of State UST Programs C-23
APPENDIX D
Checklist for Complete State Applications D.l

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OSWER Directive 9650.9
SUGGESTED PROCEDURES
FOR REVIEW OF
STATE UST APPLICATIONS
U.S. E?MRONMEWTAL PROTECTION AGENCY
OFFICE OF UNDERGROUND STORAGE TANKS
March 1989

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3 OSWER Directive 9650.9
I. INTRODUCTION
This document proposes a set of procedures for review of individual
State IJST 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
RCP.A; 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 goverruiient.
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 Regions, 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 some procedures the Regions might use
in carrying out this important activity.
The UST State program approval process described here is designed to
streamline the formal decision-making process so that States meeting the
standard established by EPA will be approved in the shortest possible period
of time. The approval process is also designed to maximize interaction
between the Region and State. This interactive process should result in

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4 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
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 mak ’ 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 tha 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 (0CC), 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 0CC will serve as resources for the Regions to assist them upon request.

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5 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., IJST 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.
The Rezional UST Program Manager
- - Attempts to resolve any issues before the State
application is formally submitted. Manages the
initial review to determine if the State application
is complete. If necessary, staff works with the State
to supply information missing from the application.
Notifies the State Program Contact when the
application is declared complete. Transmits complete
application to Regional Review Team and tracks review
cycle.

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Exhw,: I
Participants in the State Program Approval Process
r - r -i
I I I I
I 0CC I -———-ø’l OUST l ie— —
I I I I
L i L
I Regional Review
I Team
L_
RA/DRA
I
Division
Director
0%
$
I I I I
I-
Regional
UST Program Manager
(Chairman)
Regional
Counsel
Representative
Regional
UST
Enforcement
Representative
Regional
LUST
Trust Fund
Representative
Regional
UST Prevention
Program
Representative
‘In many Regions the enforcement representative works directly for the liST’ Coordinator, rather than in a separate enforcement office.

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7 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
tJST Program Manager. The Regional Attorney may need
to meet with a representative from the State Attorney
General’s Office to resolve outstanding issues.
• Other Rezional Team Members
- - Are responsible for reviewing the substance of the
State application a- 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 coinmenters.
State Av licant
• State Program Contact
• - Submits an official application, preferably using the standard
form developed by OUST. (The standard application form is
optional; States may tailor the application format to suit their
needs.) Responds to requests from the Regional UST Program
Manager for missing components or additional information needed to
complete the application. Discusses all potential issues with the
Regional UST Program Manager as they arise during the review of
the application. Attends the briefing for the Regional
Administrator on any outstanding issues, along with the State
Agency Director. Receives copies of any written public comments

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8 OSWER Directive 9650.9
fr.. i 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.
Headcuarters Offices
As described earlier, .ieadquarters offices have 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.
• 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 s1 c to twelve early applications for
concurrent review. The Regional UST Program Managers
will send copies of those applications to OUST. OUST
will notify 0CC that a State application is available
for review. In addition, OUST will observe the
Regional Review process in order to ascertain its
workability and to recommend improvements, if
necessary. This review provides Headquarters and the
Regions an opportunity to ensure that specific
approval issues are fully considered in light of
potential shortcomings that may be inherent in the
national decision criteria. This process will not
delay the Regional review. Finally, OUST must be
consulted if the Regional Administrator expects to
make a negative determination on a State’s
application. (This consultation procedure is required
by the terms of the existing delegation of authority
from the Administrator to the Regional Administrator.)
- - OUST will follow up on the shortcomings identified
during this process and work with the Regions and

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9 OSWER Directive 9650.9
other Headquarters offices to revise the national
decision criteria as appropriate.
• Office of General Counsel
• - 0CC is available during the pre-application phase
for consultation and will review State program
applications when referred by the Regions through
OUST.
- - 0CC may obtain a copy of the initial applications
from OUST and review them with regard to the
effectiveness of the national decision criteria. 0CC
submits its comments to OUST.
-. The Regional Counsel representative on the Regional
Review Team may choose to consult with 0CC as
necessary on any State application.
- - OUST will consult with 0CC on an “exceptions” basis
as specific legal issues arise that affect more than
one State or Region.
IV. REVIEW PROCESS
The process we suggest for review of State applications is displayed in
Exhibit 2. Each step on the flow chart is numbered and explained below. As
stated earlier, these steps can be modified to meet Regional needs.
This process assumes substantial pre-application consultation and
cooperation with the State. Prior to the State application being formally
submitted, the Regional UST Program Manager works and negotiates with the
State Program Contact to resolve, wherever possible, outstanding issues.
Codification of State laws should be initiated during this pre-application
phase.

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Exhibit 2
Steps in the State Approval Review Process
3
16
7
10
20
I
14
0
• The Regk st consult with OUST prior t making a negative determI

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11 OSWER Directive 9650.9
Phase 1 Acceptance of AD lication
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.) Ac the same time, the Regional Counsel representative may wish to
meet with a representative from the State Attorney General’s Office
8. The State Program Contact submits additional information and interacts
with the Regional UST Program Manager to respond to questions raised by the
Regional Review Team.
9. The Regional UST Program Manager sends the revised State information to
the Review Team and OUST. The final review stage begins, which we recommend
take three weeks.
10. The Regional Review Team meets to discuss its recommendation for a
tentative determination. The function of this meeting is similar to a
workgroup closure meeting in the regulatory development process Each member

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12 OSWER Directive 9650.9
of the Regional Review Team is given an opportunity to discuss issues with the
team and to state his or her recommendation for the tentative decisioi 1
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 IJST 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 Rezister notice of tentative
decision. (Model Federal ReEister 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 Re ister notice and the
Federal Register notice is published.
18. If this is a notice of tentative decision, the process continues on to
step 19. If this is a notice of final determination, the process skips to
step 23 and ends with program approval, as described below.
19. The public comment period begins. A public hearing may be held at the
conclusion of the 30.day public comment period if requested or if there are
significant unfavorable comments. The notice of the public hearing may be
combined with notice of tentative decision.

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13 OSWER Directive 9650.9
Phase 3: Review of Public Comments and Final Determination
20. As soon as possible after the close of the public comment period, the
Regional UST Program Manager, together with the Regional Counsel
representative, ascertains if any of the public comments are unfavorable or
raise significant issues. The Regional Counsel representative should have the
opportunity to review all comments and make sure that we respond to all
significant issues.
21. [ f unfavorable comments .have been received, the Regional UST Program
Manager sends copies of the public comments to the Regional Review Team. The
Regional UST Program Manager notifies the State Program Contact of the adverse
public comments.
• The Regional Review Team meets to discuss the public
comments and recommend an Agency response. The State
Program Contact is consulted as necessary to provide
the Agency with the additional information it needs to
respond to the public comments.
• The Regional UST Program Manager is responsible for
making an overall recommendation to the Division
Director and the Regional Administrator regarding the
Agency’s response to the public comments. The
Regional UST Program Manager prepares a briefing for
the Regional Administrator to present his or her
recommendations for final determination on the State’s
application.
• The Division Director, Regional Review Team, the State
Agency Director, and the State Program Contact attend
a meeting with the Regional Administrator if there are
unresolved issues. The Regional UST Program Manager
presents his or her recommendation and addresses
outstanding issues regarding the recommended final
determination.
• The Regional Administrator makes a decision on the
final determination and directs the Regional UST
Program Manager to prepare the . Resister notice
of final Agency decision. The Region must consult with
OUST prior to making a negative determination.
22. If no adverse public coumants are received, the Regional UST Program
Manager briefs Regional management and makes a recommendation. The Regional
Administrator makes a final determination on the application and notifies the
Division Director, the Regional UST Program Manager and the State Agency
Director of his decision. Regional UST staff prepare the l Register
notice of final determination which responds to all significant public

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14 OSWER Directive 9650.9
comments, obtain the Regional Admini :ator’s signature on the notice, and
submit it to the Office of the Federal Register.
23. The Office of the Federal Register publishes the Federal Resister notice,
and the Agency’s decision is final.
V. SCHEDULE FOR APPLICATION REVIEW PROCESS
Subtitle I requires that the Regional Administrator make a final
determination on the application within 180 days from receipt of a complete
application (Section 9004(d)). This section presents two proposed schedules
for getting final approval: tone for a streamlined process; and one for a more
extended process within the allowable time period of 180 days. Note that even
a streamlined schedule is estimated to take’ about 140 days. The dates in the
schedules Drovided here are suggestions to the Regions for meeting the 180-day
deadline . Regions are encouraged to shorten this schedule whenever possible.
A streamlined schedule for interim and final approval is shown on pages
14 and 15. This schedule assumes that:
• The State has submitted its statute and regulations
for optional pre-application review. The Region has
generally determined that State requirements are “no.
less stringent” than the Federal objectives.
• The Review Team does not require any additional
information in order to evaluate the State’s
application. There are no major issues to be resolved
with the State prior to approval.
• There is no request for a public hearing.
• There are no public comments, or the comments are
minor and unrelated to substantive issues in the
State’s program.
• The Region makes an affirmative determination;
therefore no consultation with OUST is required.
A second schedule, provided on pages 15 and 16, displays the approval
process over a longer period of time as a result of outstanding issues and
public comments. This schedule still meets the 180-day deadline.
STREA INED Itim IX AND FINAL APPROVAL SCHEDULE
Calendar Days A rova1 Activ . -j e
1 Log and Transmit Complete Application

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15 OSWER Directive 9650.9
Review Team Completes Initial Review of Application
Review Team Closure Meeting To Discuss Recommendations
on the Application
UST Program Manager Formulates An Overall
Recommendation and Prepares Briefing For the Regional
Administrator and Division Director
UST Program Manager Briefs Regional Administrator and
Division Director on Approval Issues
UST Program Manager Notifies the State Program Contact
of Outstanding Issues
UST Program Manager Meets With the Regional
Administrator and the Division Director Regarding the
Tentative Determination; Meets with the State Agency
Director and State Program Contact As Necessary
Regional Administrator Makes Tentative Determination
and Notifies UST Program Manager and State Agency
Director
Regional Staff Complete Federal RegLster Notice of
Tentative Decision and Obtain RegionaL Administrator’s
Concurrence
Publish Federal Register Notice and Public Comment
Period Begins
Public Comment Period Closes
UST Program Manager Distributes Public Comments To the
Review Team and State Program Contact
Review Team Meets To Discuss Response To Public
Comments
UST Program Manager Briefs Regional Administrator and
Division Director On Issues and Meets With the State
Agency Director and State Program Contact If Necessary
Regional Administrator Makes Final Determination and
Notifies Division Director, UST Program Manager and
State Agency Director
Regional Staff Complete Final Action Memo and Federal
Register Notice of Final Determination, Obtain
Regional Administrator’s Signature

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16 OSWER Directive 9650.9
143 Publish Federal Reaister Notice of Final Determination
EXTENDED INTERIM AND FINAL APPROVAL SCHEDULE
Calendar Days An roval Activities
I 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 nd State Agency
Director
86 Regional Staff Complete Federal Register Notice of
Tentative Decision, and Obtain Regional
Administrator’s Signature
93 Publish Federal Register Notice and Public Comment
Period Begins

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17 OSWER Directive 9650.9
123 Public Comment Period Closes
124 Public Hearing (If Necessary)
131 UST Program Manager Distributes Public Comments To the
Review Team and the State Program Contact
138 UST Program Manager Meets With State Program Contact
To Discuss Additional Information Needed to Respond To
Public Comments
145 Review Team Meets To Discuss and Draft Agency Response
To Public Comments
148 UST Program Manager Briefs Regional Administrator and
Division Director On Issues and Recommendations For
Final Determination; Meets With the State Agency
Director and State Program Contact As Necessary
156 Regional Administrator Makes Final Determination and
Notifies Division Director, UST Program Manager, and
State Agency Director
162 Regional Staff Complete Final Action Memo and Federal
Register Notice of Final Determination, and Obtain
Regional Administrator’s Signature
169 Publish Federal Register Notice of Final Determination
VI. CODIFICATION OF APPROVED STATE PROGRAMS
Codification is the process of placing a rule in the Code Federal
Rezulations (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 IJST 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 CFR. The approved State laws and regulations, in
addition to being referenced in the CFR, are actually on file at the Office of
the Federal Register (OFR) and at EPA offices and are available to the public.
The entire approved State UST program is codified. The codified
elements are:

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18 OSWER Directive 9650.9
• State statute;
• State regulations;
• Attorney General’s Statement;
• Memorandum of Agreement; and
• 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 bnt not incorporated by reference since EPA uses it
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 Resister 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
Purtose of the Record . The Regions must maintain an administrative
record for each State program approval decision. The administrative record is
simply a compilation of materials considered or relied upon by the Agency in
making an administrative decision, for example, a tentative or final state
program approval decision. The purpose of an administrative record is to
assist the Agency decision makers in considering the basis for proposed Agency
action, and to provide a basis upon which the Agency can defend; and a court
can review, the final administrative decision. The record also provides the
public with background information regarding the Agency’s rulemaking.
Content of the Record . Internal communications, (for example, comments
received from within the Region, other Regional offices, or Headquarters), are
generally not part of the administrative record. However, formal guidance

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19 OSWER Directive 9650.9
documents or policy directives from Headquarters or memoranda providing
factual information upon which a decision is based may be part of the record.
Note that when EPA-generated informatioi 1 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 n 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 comments 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.
• Public comments on the tentative decision, both
written and oral. Oral communications should be
documented for the record.
• EPA responses to public comments on the tentative
decision.
The Federal Register notice setting forth the LLnal
State program approval decision and any supporting
materials.
The Office of Regional Counsel can answer questions concerning what materials
should be included in the record for state program approval decisions.
Additional guidance on establishing an administrative record, also known as a
docket, can be found in the UST Regulatory Docket Procedures Manual.

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OSWER Directive 9650.9
APPENDIX A
GUIDANCE ON PREPARING FEDERAL REGISTER NOTICES

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A-i 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, Rezister , the
author(s) must observe several important formatting and editing
specifications. The following sections outline and explain the most important
of these document guidelines.
I. Federal Register Checklist
Each Federal Register package must include a completed Federal Register
checklist. This two-page form consists of “yes” or “no” questions concerning
the document’s compliance with the following format and content requirements:
- - Billing code information;
-- Headings (e.g., Agency name, CFR Part, subject);
- - Preamble requirements (e g. , summary of proposed action,
addresses for public comment, supplementary analysis);
- - Words of issuance;
- - Regulatory text;
- - Signature; and
- - Consecutive page numbers.
All submissions to the Federal Register must also fulfill the following
lay-out specifications:
-- Bond paper of legible photocopy (8-1/2” x 11”);
- - Single-sided copies;
-- One-inch margins from top, bottom, and right sides; 1-1/2-
inch margin from left side;
- - Double-spaced text;
-- Typed name and title of signing official, ink signature;
-- Deliver three originals with ink signatures; the signature
may not appear on a page by itself; and
- - Page numbers must be consecutive and appear at the bottom of
the page.
A sample Federal Register checklist is included in this appendix.

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A-2 OSWER Directive 9650.9
II. Typesetting Request
This one-page form (EPA Form 2340-15) includes the financial data and
the approximate cost of typesetting a document submitted for publication in
the Federal Register . The Management Division Director may require certain
signatures on this form. Data on the following items are also required:
• - Title of rule;
-- Number of manuscript pages;
-- Number of columns;
-- Estimated cost; and
- - Financial data.
The approximate cost is $125.00 per column and $375.00 per page in the
Federal Rezister . 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 (Accn:
Martha Girard; The Office of the Federal Register; National Archives and
Records Services, GSA; Washington, D.C. 20408;. (202) 523-5240).

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OSWER Directive 9650.9
APPENDIX B
APPROVAL DETERMINATIONS

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B-i OSWER Directive 9650.9
Tentative Determination To Approve
(Model Federal Register Notice)
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 281
(Itisert name of State); Final Approval of State Underground Storage Tank
Program
AGENCY: Environmental Protection Agency
ACTIONS 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
appiLcation and has made the tentative decision that State X’s underground
storage tank program satisfies all of the requirements necessary to qualify
for final approval. Thus, EPA intends to grant final approval to the State to
operate its program. State X’s application for final approval is available
for public review and comment and a public hearing will be held to solicit
comments on the application, if requested.
DATES: A public hearing is scheduled for (insert date of hearing, at least 30
calendar days after date of publication in FR). State X will participate in
the public hearing held by EPA on this subject. All comments on State X’s

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B-2 OSWER Directive 9650.9
final approval application must be received by the close of business on
(insert date at least 30 calendar days after date of publication in FR).
ADDRESSES: Copies of State X’s final approval application are available
during (insert business hours) at the following addresses for inspection and
copying: (insert appropriate State addresses); U.S. EPA Headquarters Library,
PM 2llA, 401 K Street, S.W., Washington, D.C. 20460, Phone: 202/382.5926; and
U.S. EPA Region (insert Region number), Library, (insert the address, phone
number, and contact). Written comments should be sent to (insert name,
address, and phone number of Regional contact). EPA will hold the public
hearing on (insert date, time, and location of hearing).
FOR FURTHER INFORMATION CONTACT: (Insert name, address, and phone number of
the appropriate Regional contact.)
SUPPLEMENTARY INFORMATION:
A. background
Section 9004 of the Resource Conservation and Recovery Act (RCRA)
enables EPA to approve State underground storage tank programs to operate in
the State in lieu of the Federal underground storage tank (UST) program. Two
types of approval may be granted. The first type, known as “interim
approval”, is a temporary approval which is granted if EPA determines that the
State program is “no less stringent” than the Federal program (Section
9004(b)(2), 42 U.S.C. 6991c(b)(2)) in the following elements: corrective
action; financial responsibility; and new tank standards. While operating

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B-3 OSWER. Directive 9650.9
under interim approval, the State may complete development of “no less
string nt” standards for the followLng 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. 699lc(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 requirements
necessary to qualify for final approval, Consequently, EPA intends to grant
final approval to State X to operate its program.

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B-4 OSWER Directive 9650.9
In accordance with Section 9004 of RCRA 42 U.S.C. 6991c and 40 CFR
281.50(e), the Agency will hold a public hearing on its tentative decision On
(insert date of hearing, at least 30 calendar days after date of publication
in FR) at (insert time and location of hearing). The public may also submit
written comments on EPA’s tentative determination until (insert date at least
30 calendar days after date of publication in FR). Copies of State X’s
application are available for inspection and copying at the location indicated
in the “Addresses” section of this notice.
(You may wish to insert a paragraph here that directs the publics 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 may be the basis for a decision to deny final approval to State
X. EPA expects to make a final decision on whether or not to approve State
X’s program by [ insert date 90 calendar days after date of publication in FR]
and will give notice of it in the FEDERAL REGISTER. The notice will include a
summary of the reasons for the final determination and a response to all major
comments.
COMPLIANCE WITH EXECUTIVE ORDER 12291: The Office of Management and Budget
has exempted this rule from the requirements of Section 3 of Executive Order
12291.

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6-5 OSWER Directive 9650.9
CERTIFICATION UNDER THE REGULATORY FLEXIBILITY ACT: Pursuant to the
provisions of 5 U.S.C. 605(b), I hereby certify that this approval will not
have a significant economic impact on a substantial number of small entities.
The approval effectively suspends the applicability of certain Federal
regulations in favor of State X’s program, thereby eliminating duplicative
requirements for owners and operators of underground storage tanks in the
State. It does not impose any new burdens on small entities. This rule,
therefore, does not require a regulatory flexibility analysis.
LIST OF SUBJECTS IN 40 CFR PART 281: Administrative Practice and Procedure,
Hazardous Materials, State Program Approval, and Underground Storage Tanks.
AUTHORITY: This notice is issued under the authority of Sections 2002(a),
7004(b), and 9004 of the Solid Waste Disposal Act as amended 42 U.s.c.
6912(a), 6926, 6974(b).
Regional Administrator
Dated:

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B-6 OSWER Directive 9650.9
Final Determination To ADorove
(Model Federal Resister 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 REGISTERI.
FOR FURTHER INFORMATION CONTACT: (Insert name, address, and phone number of
the appropriate Regional contact.)

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B-7 OSWER Directive 9650.9
SUPPLEMENTARY INFORMATION:
A. Backiround
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), gPA published a tentative decision announcing its intent to grant State
X final approval. Further background on the tentative decision to grant
approval appears at — FR —, (insert date).
Along with the tentative determination EPA announced the availability of
the application for public comment and the date of a public hearing on the
application. The public hearing was held on (insert date of public hearing).
(Insert discussion on public comments received and the response to those
comments. Additionally, in the case of a tentative decision requiring a State
to make changes in order to be approved, insert discussion of the needed
changes for approval and what the State agreed to do to be approved.)

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B-8 SWER Directive 9650.9
(Insert discussion of any different or additional procedural steps during the
approval process. For example, the State may have held an additionai. 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 part of the underground storage tank program; e.g., any major
State requirements that ar 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 has 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 authorityl

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8-9 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 RECUL.ATORY FLEXIBILITY ACT: Pursuant to the
provisions of 5 U.S.C. 605(b), I hereby certify that this approval will not
have a significant economic impact on a substantial number of small entities.
This approval effectively suspends the applicability of certain Federal
regulations in favor of State X’s program, thereby eliminating duplicative
requirements for owners and operators of underground storage tanks in the
State. It does not impose any new burdens on small entities. This rule,
therefore, does not require a regulatory flexibility analysis.
LIST OF SUBJECTS IN 40 CFR PART 281: Administrative Practice and Procedure,
Hazardous Materials, State Program Approval and Underground Storage Tanks

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B-lO OSWER Directive 9650.9
AUTHORITY: This notice is issued under the authority of Section 2002(a),
7004(b), and 9004 of the Solid Waste Disposal Act as amended 42 U.S.C.
6912(a), 6974(b), and 6991(c).
Regional Administrator
Dated:

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OSWER Directive 9650.9
APPENDIX C
CODIFICATION OF APPROVED STATE PROGRANS

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C-i OSWER Directive 9650.9
Proposed/Final Codification Notice
Codifying Initi ’l 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
codifiesj] the approved underground storage tank program of [ insert name of
State] in Part 282.
DATES: [ For proposed rule: Comments on the proposed codification of [ insert
State name] approved program must be received by the close of business [ insert
date 30 days after publication)]. (For final rule: The codification is
effective [ insert date 30 days after publication) . The incorporation by

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C-2 OSWER Directive 9650.9
reference of certain statutes and regulations was approved by the Director of
the Federal Register in accordance with 5 U.S.C. 552(a).
[ ADDRESSES: For proposed rule: Written comments should be sent to [ insert
name, address, and telephone number of the appropriate Regional contact]].
FOR FURTHER INFORMATION CONTACT: (Insert name, address, and telephone number
of the appropriate Regional contact].
SUPPLEMENTARY INFORMATION:
3ack round
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 ____
__).
EPA codifies its approval of State programs in Part 282 of Title 40,
Code of Federal Regulations (CFR) and incorporates by reference therein the
State statutes and regulations that EPA will enforce under Sections 7003,
9005, and 9006 of RCRA 42 U.S.C. 6973, 6991d, and 6991e. Today’s (proposed]
codification reflects the State program in effect at the time EPA grants

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C-3 OSWER Directive 9650.9
[ insert State name) approval under Section 90 04(a) 42 U.S.C. 699lc(a) for its
underground storage ta tk 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, [ Section]] 282. ___ [ [ will codify for
enforcement purposes [ codifies for enforcement purposes]] the State
statutes and regulations. As proposed, Section, (Section]] 282. ___ [ (will
codify [ codifies]] the Memorandum of Agreement, the Attorney General’s
Statement and the Program Description which are approved as part of the
underground storage tank program under Subtitle I of RCRA.]

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C-4 OSWER Directive 9650.9
The Agency retains the authority under Sections 7003, 9005, and 9006 of
RCRA 42 U.S.C. 6973, 6991d, and 69 91e, 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 I 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 provision s 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
nor, therefore, part of the approved program ((proposed for codification) or
(being codified today] J. “Broader in scope” provisions will nor be enforced
by EPA; the State, however, will continue to enforce such provisions
(If the State is approved for a partial program, or does not have
authority to implement requirements for certain segments of the tank universe

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C.5 OSWER Directive 9650.9
(as discussed in the MOA), please add language here to indicate that fact and
state .hat 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), 1 hereby certify that
this action will not have a significant economic impact on a substantial
number of small entities. It [ [ proposes to codify] [ codifies]) the
decision already made to approve the [ insert State name] underground storage
program and has no separate effect on owners and operators of underground
storage tanks or upon small entities. This rule, therefore, does not require
a regulatory flexibility analysis.
Compliance With Executive Order 12291
The Office of Management and Budget has exempted this rule from the
requirements of Section 3 of Executive Order 12291.

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C-6 OSWER Directive 9650.9
Paperwork Reduction Act
Under the Paperwork Reduction Act, 44 U.S.C. 3501 . , Federal
agencies must consider the paperwork burden imposed by any information request
contained in a proposed or final rule. This rule will not impose any
information requirements upon the regulated community.
List of Subjects In 40 CFR Part 282
Administrative practice and procedure, Hazardous materials, Petroleum,
State program approval, and Underground storage tanks.
Dated
Regional Administrator

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C-7 OS 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
SUSPART (insert appropriate letter(s) and appropriate numbers] - State
name
282. _____ State Approval
282. _____ State-Administered Program
282. _____ 282. _____ [ Reservedl
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 . .g., subject to the

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C-8 OSWER Directive 9650.9
Hazardous and Solid Waste Amendments of 1984 (HSWA),
(P.L.. 98-616, November 8, 1984), 42 U.S.C. 6991 (c),
(d), and (e)). The Federal program for which a State
may receive approval is defined in 40 CFR Part 281.
The State’s program, as administered by the (insert
State lead agency] was approved by EPA pursuant to 42
U.S.C. 6991 (c) and Part 281 of this Chapter. EPA’s
approval was effective on [ insert appropriate Federal
Register reference].
(b) [ Insert State name) has primary responsibility for
enforcing its underground storage tank program.
However, EPA retains the authority to exercise its
enforcement authorities under Sections 9005 and 9006
of RCRA, 42 U.S.C. 6991c and 6991d, as weLl as under
other Federal laws and regulations.
(c) (Insert State name] must revise its approved program
to adopt new changes to the Federal Subtitle I program
in accordance with Section 9004 of RCRA 42 U.S C.
6991c, and 40 CFR Part 281., Subpart E. If (insert
State name] obtains approval for the revised
requirements pursuant to Section 9004 42 U.S.C. 6991c,
the newly approved provisions will be listed in
§281. ____ of this Subpart.

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C-9 OSWER Directive 9650.9
282. ______ State-Administered Program: Final Approval Pursuant to
Section 9004 of RCRA, 42 U.S.C. 6991c:
[ Insert State name) has final approval for the following elements
submitted to EPA in (insert State name) program application for final approval
and approved by EPA on (insert Federal Register date of final approval.)
(a) State Statute and Regulations . (1) The requirements
in the (insert State name] statutes and regulations
cited in this paragraph are incorporated by reference
and codified as part of the underground storage tank
program under Subtitle I of RCRA, 42 U.S.C. 6991 et.
. This incorporation by reference was approved by
the Director of the Federal Register in accordance
with 5 U.S.C. 552 (a).
(i) [ Insert reference for statutory
authorities that are part of the approved
program under Subtitle I of RCRA.]
(ii) [ Insert reference for underground storage
tank rules that are part of the approved
program under Subtitle I of RCRA.]

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C-lO OSWER Directive 9650.9
(2) The following statutes and regulations, although not
codified herein for enforcement purposes, are part of
the approved State program.
(i) [ Insert reference for statutory
authorities that are not to be
incorporated by reference but are part of
the approved program.]
(ii) [ Insert reference for regulations that are
not to be incorporated by reference but
are part of the approved program under
Subtitle I of RCRA.]
(3) The following statutory and regulatory provisions are
broader in scope than the Federal program, are not
part of the approved program, and are not codified
herein for enforcement purposes.
(i) [ Insert statutory provisions, if any, that
are broader in scope.]
(ii) [ Insert regulatory provisions, if any,
that are broader in scope.]
(b) Memorandum of Agreement . The Memorandum of Agreement
between EPA Region ____ and the (insert State lead
agency], signed by the EPA Regional Administrator on

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C-li. 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 . (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 Leg al 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 RCR.A, 42
U.S.C. 6991 .
(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.
(d) Proaram 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 .
282. - 282. Reserved

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C-12 OSWER Directive 9650.9
Immediate Final Codification Notice for Program Revisions
Codifying Program Revisions
(Model Federal Resister 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
ACTIONS 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 699le. Thus, EPA intends to codify the approved underground
storage tank program of (insert name of State] in Part 282.
DATES: The codification of (insert State name] approved underground storage
tank program shall be effective (insert date 60 days after publication] unless
EPA publishes a prior Federal Register action withdrawing this immediate final
rule. All comments on the codification of approved program of (insert State
name] must be received by the close of business [ insert date 30 days after
publication). The incorporation by reference of certain statutes and

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C-13 OSWER Directive 9650.9
regulations was approved by the Director of the Federal Resister in accordance
with 5 U.S.C. 552(a).
ADDRESSES: Written continents 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 Re ister notice
announcing its decision to grant approval to [ insert State name]. (See _____
__).
EPA codifies its approval of State programs in Part 282 of Title 40,
Code of Federal Regulations (CFR) and incorporates by reference therein the
State statutes and regulations that EPA will enforce under Sections 7003,
9005, and 9006 of RCRA 42 U.S.C. 6973, 6991d, and 6991e. The intended
codification reflects the State program in effect at the time EPA grants

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C-14 OSWER Directive 9650.9
[ insert State name] approval under Section 9004(a) 42 U.S.C. 699 1c(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 ( I to Part 282 of Title 40 of the CFR.
Subpart [ ] has previously been reserved for [ insert State name]. Section
282. ____ intends to codify for enforcement purposes the State statutes and
regulations. Section 282. ____ codifies the Memorandum of Agreement, the
Attorney General’s Statement and the Program Description which are part of the
approved underground storage tank program under Subtitle I of RCRA.

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C-15 OSWER Directive 9650 9
The Agency retains the authority under Sections 7003, 9005, and 9006 pf
RCRA 42 U.S.C. 6973, 6991d, and 6991e to undertake enforcement actions in
approved States. With respect to such an enforcement action, the Agency will
rely on Federal sanctions, Federal inspection authorities and the Federal
Administrative Procedure Act rather than the State authorized analogs to these
requirements. Therefore, the Agency does not intend to codify for purposes of
enforcement such particular, approved [ insert State name] enforcement
authorities. [ Proposed] [ S]ection 282 lists those approved [ insert State
name] authorities that would fall into this category.
The public also needs to be aware that some provisions of the State’s
underground storage tank program are not part of the Federally approved State
program. These non-approved provisions are not part of the RCRA Subtitle I
program because they are “broader in scope” than Subtitle I of RCRA. See 40
CFR §281.12(a)(3)(ii). As a result, State provisions which are “broader in
scope” than the Federal program are not codified for purposes of enforcement
in Part 282. Section 282. ____ of the intended codification simply lists for
reference and clarity the (insert State name] statutory and regulatory
provisions which are “broader in scope” than the Federal program and which are
not, therefore, part of the approved program being codified. “Broader in
scope” provisions will not be enforced by EPA; the State, however, will
continue to enforce such provisions.
The codification of approved State programs in the CFR should
substantially enhance the public’s ability to discern the current status of

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C-16 OSWER Directive 9650.9
the approved State program and clarify the extent of Federal enforcement
authority. This will be particularly true as States revise their approved
programs or adopt additional Federal requirements.

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C- 17 OSWER Directive 9650.9
Certification Under the Regulatory Flexibility Act
Pursuant to the provisions of 5 U.S.C. 605(b), I hereby certify that
this action will not have a significant economic impact on a substantial
number of small entities. It intends to codify the decision already made to
authorize the [ insert State name] program and has no separate effect on owners
and operators of underground storage tanks or upon small entities. This rule,
therefore, does not require a regulatory flexibility analysis.
Compliance With Executive Order 12291
The Office of Management and Budget has exempted this rule from the
requirements of Section 3 of Executive Order 12291.
PaDerwork Reduction Act
Under the Paperwork Reduction Act., 44 U.S.C. 3501 . Federal
agencies must consider the paperwork burden imposed by any information request
contained in a proposed or final rule. This rule will not impose any
information requirements upon the regulated community.
List of Subjects In 40 CFR Part 282
Administrative practice and procedure, Hazardous materials, Petroleum,
State program approval, and Underground storage tanks.
Dated:
Regional Administrator

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C-18 OSWER Directive 9650.9
For the reasons set forth in the preamble, 40 CFR Part 282 is (proposed to be]
revised as follows:
PART 282 - APPROVED UNDERGROUND STORAGE TANK PROGRAMS
1. The authority for Part 282 continues to read as follows:
Authority : Sections 2002, 9004, 9005, and 9006 of the Solid Waste
Disposal Act, as amended by the Resource Conservation and Recovery Act of
1976, as amended, 42 U.S.C. 6912, 6991(c), (d), and (e)).
2. The table of contents for Part 282 is revised to read as follows:
SUBPART (insert appropriate letter(s) and appropriate numbers) - State
name
282. _____ State Approval
282. _____ State-Administered Program
282. _____ 282. _____ [ Reserved]
3. 40 CFR Part 282, Subpart [ insert appropriate letter and appropriate
numbers) is amended to read as follows:
282. _____ State Approval
(a) The State of [ insert State name] is approved to
administer and enforce an underground storage. tank
program in lieu of the Federal program under Subtitle
I of the Resource Conservation and Recovery Act of
1976 (RCRA), 42 U.S.C. 6991 . subject to the

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C-].9 OSWER Directive 9650.9
Hazardous and Solid Waste Amendments of 1984 (HSWA),
(P.L. 96-616, 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 LeO 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 eff :tive 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
requirements pursuant to Section 9004 42 U.S.C. 6991c,
the newly approved provisions will be listed in
§281. _____ of this Subpart.

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C-20 OSWER Directive 9650.9
282. _____ StaceAdministered 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 Reaister 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 .
. 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. I
(ii) [ Insert reference for underground storage
tank rules that are part of the approved
program under Subtitle I of RCRA.]
(2) The following statutes and regulations, although not
codified herein for enforcement purposes, are part of
the approved State program.

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C-21 OSWER Directive 9650.9
(i) (Insert reference for statutory
authorities that are not to be
incorporated by reference but are part of
the approved program.]
(ii) [ Insert reference for regulations that are
not to be incorporated by reference but
are part of the approved program under
Subtitle I of RCRA.]
(3) The following statutory and regulatory provisions are
broader in scope than the Federal program, are not
part of the approved program, 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
(insert appropriate date] is codified as part of the
approved underground storage tank program under
Subtitle I of RCRA, 42 U.S.C. 6991 . L .

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C-22 OSWER Directive 9650.9
(c) Statement of Lezal 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 .
(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 .
(d) Prog ram DescriDtion . 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
282. _____ - 282. ______ Reserved

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C-23 OSWER Directive 9650.9
CFR REFERENCE FOR CODIFICATION OF STATE UST PROGR.A}IS
PART 282
Subpart B - Alabama
282.59-282.99
Subpart C - Alaska
282.100-282-149
Subpart D - Arizona
282.150-282.199
Subpart E - Arkansas
282.200-282.249
Subpart F - California
282.250-282.299
Subpart G - Colorado
282 300-282 349
Subpart H - Connecticut
282.350-282.399
Subpart I - Delaware
282.400-282.449
Subpart J - District of Columbia
282.450-499
Subpart K - Florida
282.500-282.549
Subpart L - Georgia
282.550-599

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C-24 OSWER Directive 9650.9
Subpart 11 - 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 V - Massachusetts
282.1100-282.1149
Subpart X - Michigan
282.1150-282. 1199

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C-25 OSWER Directive 9650.9
Subpart Y - Minnesota
282. 1200-282.1249
Subpart Z - Mississippi
282.1250-282.1299
Subpart AA - Missouri
282.1300-1349
Subpart BB - Montana
282.1350-282.1399
Subpart CC - Nebraska
282.1400-282.1449
Subpart DD - Nevada
282.1450-282.1499
Subpart EE - New Hampshire
282.1500-282.1549
Subpart F! - New Jersey
282.1550-282.1599
Subpart CC - New Mexico
282.1600-282.1649
Subpart HH - New York
282.1650-282.1699
Subpart II - North Carolina
282.7000-282.1749
Subpart JJ - North Dakota
282.1750-282.1799

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C-26 OSWER Directive 9650 9
Subpart K1C - Ohio
282.1800.282.1849
Subpart LL - Oklahoma
282.1850-282.1899
Subpart - 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-?82.2349
Subpart VV - Virginia
282.2350-282.2399

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C-27 OSWER Directive 9650.9
Subpart WV - Washington
282-2400-282.2449
Subpart DC - West Virginia
282.2450-282.2499
Subpart YY - Wisconsin
282.2500-282.2549
Subpart ZZ - Wyoming
282.2550-282.2599
Subpart AM - Guam
282.2600-282.2649
Subpart BBS - 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 Ilariana Islands
282.2800-282.2849

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OSWER Directive 9650.9
APPENDIX D
CHECKLIST FOR COMPLETE STATE APPLICATIONS

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D-1
COMPLETE APPLICATION CHECKLIST
1. Governor’s Letter S ‘ S S S I
2. Attorney’s General Certification S ‘ S S I
3. Attorney’s General Statement. . . . . . . . . . .
(Demonstration of No Less Stringent Objectives and ____
Adequate Enforcement Authorities)
4. Demonstration of Adequate Enforcement Procedures . . . . I I
. .....•............ I
. ............... I
7. State Statutes. . . . . I I
8.StateRegulations . ..................I I
9. Schedule for Interim Approval . . . . . . . . . . . .
(If Applying for Interim Approval)
r.

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S7i 1 .
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
_____ WASHINGTON, 0 C 20460
pq0
MAY j 0 OFFICE OF
SOLID WASTE AND EMERGENC?
RESPONSE
MEMORANDUM
SUBJECT: Removing Obstacles to State Program Approval
.
FROM: Lisa C. Lund, Acting Director- .j r”
Office of Underground Storag a ks
TO: UST/LUST Regional Program Managers
In response to the final report of the State Program
Approval Workgroup and suggestions from a number of States and
Regional Offices, OUST has taken the following steps aimed at
removing obstacles to State program approval:
1. An analysis of the statutes and regulations of several
non—approved States is underway. The purpose is to determine
whether there are common problems that make it difficult for
States with good programs from qualifying for EPA approval under
the existing regulations. If there are such problems, and if
they could be overcome by modifying Part 281, OUST will consider
doing that. With assistance from ICF, OUST is examining the
statutes and regulations of Florida, Pennsylvania, South
Carolina, Wisconsin, Michigan, New York, New Jersey, Kentucky,
and Colorado. Information from Regional Offices’ analyses of
other States also will be taken into account. OUST is
coordinating this work with the Office of General Counsel (OGC)
and will seek the assistance of Offices of Regional Counsel.
RPMs will have an opportunity to review the results--likely in
mid—July--before any decisions are made. Jerry Parker is
managing this project; please ca’l him at 703-603—7167 if you
have any questions.
2. OUST is also looking at State assurance funds in the f?w
States that do not have financial responsibility regulations but
have State assurance funds. Where the State funds cover all UST
facilities without requiring any. action by owners or operators,
where they provide coverage for both corrective action and injury
to third parties, and where they appear to be solvent, OUST
believes that States may qualify for State program approval even
if they do not have financial responsibility regulations. If
Inks on 100% Recyded Paper (40% Poslconsumer)

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i °
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
_____ WASH!NGTON, D C 20460

UAV “ 7 1006 OFFICE OF
I iru ‘ SO lID WASTE AND EMERGENCY
RESPONSE
MEMORANDUM
SUBJECT: State Progr Assistance is Needed
FROM: Elliott P.
Assistant Adm;
TO: Regional Adm:
I am writing to enlist your assistance in a renewed effort
to help additional States qualify for EPA approval to operate
their own underground storage tank (UST) programs in lieu of the
Federal program.
According to States’ 1994 reports to EPA under Sec. 305(b)
of the Clean Water Act, UST5 are the most common source of ground
water contamination and petroleum is the most common contaminant.
It makes sense to give States every opportunity to deal with such
contamination in accordance with their own statutes and
regulations. I therefore believe that each of us should be doing
all that we can to remove impediments to EPA approval of State
UST programs.
Twenty-two States already have EPA-approved UST programs.
Among them are the States in Regions 1 and 6. I congratulate
those two Regional Offices on their success. A number of other
States have submitted State program approval applications, some
of which have been the subjects of give-and-take between the
States and Regional Offices for sev ral years. Still others have
never formally applied. In some instances, it appears that State
officials’ reluctance is related in part to their perception that
the approval process is too demanding and that there is no
advantage to having EPA approval. I will address the latter
issue below.
It is apparent to me that EPA needs to make the State
program approval process less difficult. While I am pleased to
see that 22 States are now approved, I note that it took nearly
eight years to get to this point. I believe we need to inject
Recycledfflecyc lab le . Pnnled witl Vegetable DI Based Inks on 1OC% Rccyocc Pa ’ NO }‘OS COr1Sufl1C’

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renewed momentum into EPA’s efforts to help States apply and
qualify.
I therefore request that Regional Offices serving any non-
approved States promptly begin working with OSWER’s Office of
Underground Storage Tanks (OUST) to identify systematically the
steps that would have to be taken to get those States to apply
and to help them overcome barriers to EPA approval. By working
with OUST in examining State statutes and regulations and sharing
the results with States even before they formally apply for EPA
approval, Regional Offices could expedite the process.
OUST and the Office of General Counsel have already taken
one step to help the Regional Offices. They are jointly sending -
you a memorandum about the flexibility that is inherent in the
State program approval regulations and on ways to expedite the
review and approval process. I want to reiterate one very
important point made in the OGC-OUST memo, i.e., that State
programs must be evaluated on whether they satisfy the -
regulations dealing with State program approval (40 CFR Part
281), not on whether all their technical and other requirements
match the corresponding EPA requirements (40 CFR Part 280).
OUST also intends to undertake--with contractor support——an
analysis of UST—related statutes and re gulations in several
States not already examined by Regional Offices. This project is
intended both to provide support to the Regional Offices and to
determine where modifications to Part 281 might overcome barriers
to State program approval without compromising on environmental
protection. OUST has been working with your UST program managers
to select the States to be included in this project and will
continue to work with them as the analyses are conducted.
Please ask your UST Program Manager and the Regional Counsel
to work with each other and with OUST toward the goal of EPA
approval of all States. With its responsibility for examining
State statutes and regulations, the Office of Regional Counsel
has a major role in, and can significantly expedite, the State
program approval process.
In addition, I urge you to encourage environmental program
directors and other senior officials in non-approved States to
seek EPA approval. Having EPA approval is worthwhile for States
for several reasons. To begin with, EPAapproval to run a State
program in lieu of the Federal program enables States to
eliminate much of the overlap and extra work sometimes associated
with operating under both State and Federal laws and regulations.
Moreover, it gives UST owners and operators greater certainty
about the requirements that apply to their facilities. EPA
approval also should mean reduced EPA oversight and reduced State
reporting. Finally, with State legislatures struggling with
2

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budget constraints, UST programs may be better able to survive if
they are run entirely under State laws and regulations.
I believe these advantages are important now and will be
even more important if EPA’S day-to-day involvement in the UST
program ultimately is reduced. I therefore urge you to place
renewed emphasis on getting all States that have not already
applied for, or received, EPA approval to take steps in that
direction as promptly as possible.
cc: Deputy Regional Administrators
Regional Counsels
Assistant Administrator for Enforcement and
Compliance Assurance
1.1ST/LUST Regional Program Managers
UST/LUST Branch Chiefs and Division Directors
Acting Director, Office of Underground Storage Tanks
OUST Program Directions Team
OUST Desk Officers
3

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ç O S i : 41 .
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
_____ WASHINGTON, D C 20460
FpO1
MAY ID 1996 OFFICE OF
SCUD WASTE AND EMERGENCY
RESPONSE
MEMORANDUM
SUBJECT: State Program Approval
FROM: Lisa Lund, Acting
Off ice of Underground Storage Tanks
Office of Solid Waste and Emergency Response
Earl Salo, Assistant General Counse g4(
Solid Waste and Emergency Response DTT ’isio -
Office of General Counsel
TO: UST/LUST Regional Program Managers
UST/LUST Regional Attorneys
State program approval has been and still is a high priority
in the underground storage tank (UST) program. Twenty-two States
have already received EPA’S approval to operate their own
programs in lieu of the Federal program. The Office of
Underground Storage Tanks (OUST) believes that this number
represents substantial progress, but it also means that more than
half the States, including some whose UST programs have exemplary
records of performance, remain unapproved. In some cases, they
have not even applied.
This memorandum identifies the flexibility EPA has on
several issues that can arise in the State program approval
process. Much of what is covered in this memorandum is also
included in OSWER Directive 9650.11, issued May 1992 and entitled
State Pro ram Ao roval Handbook .
1. Whether a State program c;ualifies for EPA approval
depends on whether it satisfies the requirements in Part 281.
State laws and regulations do not have to match the UST technical
standards in Part 280 for a State program to qualify for EPA
approval. States are allowed to differ from the Federal
technical regulations as long as they meet the performance
objectives set forth in 7art 281.
2. State programs can be approved where a State chooses to
promulgate regulations that are general and then supplement these
with detailed policies and guidelines to instruct the regulated
community and the public of its requirements and procedures for
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implementing the regulations in such a way as to meet Part 281
requirements. The general requirements must at least provide the
State with authority to hold all UST system owners and operators
responsible for achieving the overall performance goals provided
in the objectives.
3. State laws and regulations other than those applicable
specifically to USTs can be considered in determining whether a
State satisfies Part 281. For example, a State whose
requirements for cleanup of ground water contamination are
included in laws or regulations applicable to multiple sources of
such contamination, including USTs, is eligible for EPA approval.
In such cases, State officials should be expected to bring the
relevant laws and regulations to EPA’S attention; Regional Office
staff should not have to do their own search.
4. Whether a State program is approvable depends, of
course, on how the State’s legal authorities are interpreted.
Where a Regional Office has doubts about the adequacy of a
State’s legal authority, it should seek clarification from the
State. The State may be able to resolve the issues by including
in its Attorney General’s statement an analysis showing that
State laws do, in fact, meet the Federal requirements.
5. EPA requires that States have not only the authority to
enforce their UST regulations but also procedures for assuring
compliance monitoring and enforcement; see §281.40(d) through
(g). In order to have the latitude to approve a variety of
approaches, and to encourage States to use innovative approaches,
these sections of the regulations do not prescribe the details of
procedures States must use. While States must have procedures
for taking enforcement action, EPA evaluates the adequacy of a
State’s procedures and their implementation as a whole ( Handbook ,
page 69ff].
6. There is no single right way to satisfy the Federal
requirements. States may choose among a range of alternatives.
To help Regional Offices work with States in developing the
capabilities needed for EPA approval and to provide a guide for
Regional Office review of State applications for EPA approval,
the SPA Handbook includes a set of capabilities matrices .
7. The Memorandum of Agreement 3etween the Regiona.L Office
and the State is a vehicle that can be used in a flexible manner
to clarify how the State will implement its program, following
State program approval.

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If you have questions about the policies described in this
memorandum, please call Lisa Lund at 703-603-7163 or Jerry Parker
at 703—603—7167. If you have questions about legal issues,
please call Earl Salo at 202—260—7703 or Kathy Nam at 202—260—
2737.
cc: Regional Administrators
Deputy Regional Administrators
Regional Counsels
UST/LUST Regional Branch Chiefs and Division Directors
OSWER Assistant Administrator
OSWER Deputy Assistant Administrators
General Counsel
Associate General Counsel
Solid Waste & Emergency Response Division
Director, RCRA Enforcement Division
Office of Enforcement and Coiripliance Assurance
OUST Program Directions Team
OUST Desk Officers

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FINAL REPORT
OF THE
NATIONAL STATE PROGRAM APPROVAL WORKGROUP
I. Introduction
The following is the Final Report of the National State Program Approval
Workgroup (the report) The report contains the proposals and recommendations of the
National State Program Approval Workgroup (the workgroup) The workgroup
developed the report for the purpose of assisting the EPA Office of Underground Storage
Tanks (OUST) make the state program approval (SPA) process easier and quicker
without compromising environmental protection in order to approve the remaining states
currently without SPA As developed by the workgroup, its mission is as follows
The mission of the National SPA Workgroup is to identify real problems
that prevent State UST Programs from achieving UST program approval
and to develop alternatives to these problems that will allow State UST
Programs to obtain program approval without compromising
environmental protection
During the planning stage, the workgroup separated into two (2) subcommittees
Subcommittee #1 reviewed the federal UST authorities, le, the UST statutes and
regulations Subcommittee #2 reviewed the SPA process, j. , EPA guidance, policies and
procedures Subcommittee #1’s findings disclosed that the legal barriers preventing SPA
fall into three (3) groups, ie, financial responsibility barriers, corrective action barriers
and scope/definitional barriers Subcommittee #2’s findings disclosed that the process
barriers preventing SPA fall into two (2) basic categories, ie, states’ lack of incentive to
obtain SPA and ineffectiveness of the regional process Moreover, Subcommittee #2
considered whether some legal barriers may be resolved by process changes
As can be seen from the attached map, attached hereto and marked as Attachment
#1, twenty-one (21) States’ have obtained and thirty-one (32) States have not obtained
SPA. Approximately thirty-three percentum (33%) of the nation’s USTs are in states with
SPA and sixty-seven percentum (67%) are in states without SPA. 2 Out of the States that
have not obtained SPA, eighteen (18) have applied for SPA with thirteen (13) of these
States experiencing barriers to SPA, eight (8) States have no barriers and are in the
process of re:eving SPA Thirteen (13) States hay nc applied for SPA and lack
incentive or have encountered certain barriers (legal or process) which have prevented
As used in this report, the term “States” includes the fifty (50) States, the Distnct of Columbia. and the
territories of Puerto Rico and the Virgin Islands. In developing this report, the workgroup considered a
total universe of fifty (53) geographic entries including the fifty (50) states, the District of Columbia. and
the territories of Puerto Rico and the Virgin Islands The other three (3) temtones of the United Slates
were not considered because of their extremely small tank universe
2 The sixty-seven percentum (67%) amount includes the USTs in the eight (8) states without barners to
SPA and arc in the process of obtaining SPA Itis anticipated that these states will obtain SPA in the
near futurc As these slates obtain SPA, this percenturu amount will change

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2
submittal of an application Of the States without SPA, ten (10) States are experiencing
legal barriers preventing SPA and three (3) States have other barriers preventing SPA
H. Proposed Goal
The workgroup has examined the thirty-two (32) States without SPA From a
cursory examination, it appears that many of these programs are substantially
environmentally protective Although each State has its own separate barrier(s) to
obtaining SPA, there appear opportunities for many of the States to obtain SPA if EPA
makes specific changes The workgroup believes that SPA is important to a State
program and has many advantages SPA assures owners and operators that they need
only comply with one set of requirements, .c., the State’s UST requirements SPA also
limits political involvement in State program authorities. That is, a state legislature may be
reluctant to make statutory changes if the changes jeopardize a program’s approval For
that reason, the workgroup recommends certain EPA policy and program changes in
order to enable these States to obtain SPA. For these States seeking SPA, the workgroup
recommends that EPA establish a goal of January, 1998 by which SPA will be achieved
For the remaining States that do not apply for SPA, negative incentives, including a
stronger EPA inspection and enforcement presence, should be considered in these States
HI. Proposed Options
The workgroup supports the view stated in the preamble to 40 C F.R § 28l that
the specific federal requirements at 40 C F.R § 280 do not provide the only definitive
approach to protection of human health and the environment Many of the specific details
of the federal regulations are necessary to establish requirements that the regulated
community can follow and that the Agency can enforce. State regulations must
accomplish the same underlying goals that the federal requirements aim to achieve If a
State chooses to accomplish them using different methods or administrative procedures
than the federal government, however, EPA does not believe that this choice should
preclude program approval as long as the 40 C.F.R § 281 requirements are met. Indeed,
many States have chosen to regulate USTs using different methods and procedures than
the federal requirements Although certain programs may be environmentally protective,
these differenc’ s are creating barriers that prevent these States from obtaining SPA. The
workgroup believes that many of these barriers can be overcome by changes EPA could
make. The following report consists of different approaches to the present SPA process
that the workgroup encourages EPA to consider. These different approaches are listed
below and are entitled Proposed Options
As a result of its findings, the workgroup discovered that the proposed changes to
the SPA process fall into two (2) basic categories. The categories are: (1) Regulatory
Revisions to 40 C.F.R § 281 and (2) Process Changes The following are the options
proposed by the workgroup
152 Fed Reg 12662. April 17. 1987

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3
A Regulatory Revisions to 40 C.F.R. § 281
1. Holistic Approach
The holistic approach was first recommended as a SPA option in the agency’s
proposed rule. 52 Fed Reg 12662. at 12858. April 17, 1987 In this approach, the
stringency of the total State program is compared tc the overall stringency of the federal
requirements Individual State program elements, .g.., financial responsibility or
corrective action, would be allowed to be less stringent than the corresponding federal
requirements provided the total State program was determined to be no less stringent than
the overall federal program For example, less stringent leak detection could be balanced
with more stringent tank standards, etc
This approach has several advantages First, it ensures that each State program
meets the same level of overall environmental protection as the federal program. Also, it
allows for differences in the technical requirements while providing maximum flexibility in
the SPA process This option provides the most flexible method for a State to obtain
SPA
However, this option has many disadvantages First, this approach presents legal
concerns, i e, it appears that the statutory language of RCRA § 9004 provides that State
requirements be no less stringent for each of the corresponding federal requirements and
standards Another disadvantage is the potential for substantial inconsistencies between
various State programs This broad variability among State programs would not provide
consistent requirements for UST owners and operators nationwide Moreover, it is likely
that the evaluation of the remaining State programs would be more difficult and time
consuming because EPA staff would not be familiar with this new review process, ie, an
analysis to determine stringency by comparing the overall State program to the federal
requirements
2. Performance-Based Approval
In this approach, the stringency provided by the State program’s overall
performance is compared to the stringency of the 4 ’?’ eral requirements Individual State
program elements, g .., financial responsibility or corrective action, would be allowed to
be less stringent than the corresponding federal requirements provided the total State
program performance was determined to be no less stringent than the overall federal
program,, as protective of human health and the environment as the federal
requirements. For example, less stringent leak detection could be balanced by greater
numbers of tank inspections to disclose releases
This approach has several advantages First, this approach allows SPA for
programs that are environmentafly protective yet do not meet the stringency test for each
corresponding federal requirement It allows for differences in the technical requirements
while providing maximum flexibility in the SPA process Second, this approach is

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4
distinguishable from the holistic approach because it is fact-based (i e, a state program’s
past performance) rather than a mere review of the state program’s legal authorities. That
is, the program’s performance is measured and thus, specific levels of environmental
protection are known Third, it ensures that each State program meets the same level of
overall environmental protection as the federal program
However, this option has many disadvantages Like the holistic and partial
program approval options, this approach presents legal concerns, ie, the statutory
language of RCRA § 9004 provides that State requirements be no less stringent than each
of the corresponding federal requirements A major disadvantage is the time and
resources necessary to develop the criteria on which to base a decision as to what
constitutes “as protective of human health and the environment as the federal
requirements” MOreover, it is likely that the evaluation of the remaining State programs
would be more difficult and time-consuming because EPA staff would not be familiar with
this new review process, Ic, an analysis to determine stringency by comparing the overall
performance of the State program to the federal requirements Another disadvantage is
the potential for substantial inconsistencies among various State programs This broad
variability among State programs would not provide consistent requirements for UST
owners and operators nationwide
3. Legislative-Based Approval
In this approach, the stringency provided by the State program is compared to the
federal statutory requirements rather than comparing the State’s program to the federal
regulatory requirements Although this approach appears to be the most flexible of the
proposed options, this approach presents substantial legal concerns, j , the statutory
language of RCRA § 9004 provides that State requirements be no less stringent in each of
the corresponding requirements and standards developed pursuant to regulations, j , the
40 C.F.R. § 280 technical rules with the flexibility provided by the 40 C F.R. § 281.
Moreover, it is likely that the evaluation of the remaining State programs would be more
difficult and time-consuming because EPA staff would not be familiar with this new
review process, L ... an analysis to determine the overall stringency of the State program
compared to the federal statute rather than the Part 281 regulations. Although the
workgroup recognizes that there will be differencec among state UST prpgrams, under
this approach there is the potential for substantial inconsistencies among various State
programs. This broad variability among State programs would not provide consistent
requirements for UST owners and operators nati .rnwide
4. State Fund As An Equivalent To Financial Responsibility
The information gathered by the workgroup disclosed that a significant barrier to
SPA was meeting the financial responsibility (FR) requirement If this barrier could be
resolved or lessened, more States could obtain SPA. Data indicate that many of the States
have state ftinds that assist UST owners and operators with corrective action and provide
third party compensation although these States may not meet the other FR requirements

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5
The workgroup believes that under 40 C.F R § 281100, the Regional
Administrator may examine a State-required fund to determine whether it meets the
federal FR specific requirements In order to satisfy the federal FR requirements, the
State fund would have to 1) provide universal coverage, 2) provide full coverage and 3)
be mandatory and solvent Following upon this, a more flexible alternative would require
a regulatory change that provides that a State fund that is addressing all UST releases in
the State is deemed equivalent to the FR requirements even without it being a state-
required fund, ft. the FR requirements would not apply to the individual owners or
operators for his/her USTs, but rather the State would be responsible for all USTs within
that State
This approach has one significant advantage of ensuring that State programs with
State funds but without specific FR requirements can obtain SPA However, this option
has several disadvantages First, this approach presents legal concerns, i.e, the language
of RCRA § 9004 and 40 C F R § 281 37 may require that the States have specific FR
requirements for owners and operators Second, it is likely that the evaluation of State
funds would be more difficult and more time consuming than the normal SPA evaluation
since EPA would need to assess the solvency of each State fund Moreover, EPA would
have to periodically reevaluate State ftrnds to determine continued solvency
5. Partial Program Approval
In this approach, a State may obtain SPA without meeting all of the SPA
requirements and standards This approach could also be applied to scope andlor
definitional differences between the State and federal programs For example, a State
program may not regulate waste oil tanks. The State program could be approved without
requiring the State to regulate waste oil tanks under a partial program approval status
EPA would retain the authority to regulate waste oil tanks. This approach could also be
applied to program elements. For example, if a State program does not have corrective
action or financial responsibility element. The State program could be approved without
requiring the State to meet the corrective action or financial responsibility requirements.
EPA would retain the authority to regulate corrective action or financial responsibility in
that State -
This approach has one significant advantage. This approach has the potential for
providing, the avenue for the most number of States i obtain SPA. However, this
approach has many disadvantages First, like the holistic approach, this approach presents
In making this determination, the Regional Administrator, according to 40 C.F R. § 280.100, would
evaluate the:
“.. [ Clertainty of the availability of funds for taking corrective action and/or fbr compensating
third parties; the amount of funds that will be made available: and the types of costs covered
The Regional Administrator may also consider olher factors ax is necessary.”
Some Regions already apply this type of review and determination It is the understanding of the
workgroup that some Regions require a State to meet the federal FR requirements notwithstanding the
existence of a State financial assurance fund

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6
legal concerns, ie, that the statutory language of RCRA § 9004 indicates provides that
State requirements be no less stringent in each of the corresponding federal requirements
and standards, the hill/partial approval distinction applies to groups of tanks rather than
individual program elements The scope and definition areas present the areas most
capable of application Programs without program elements such as corrective action or
financial responsibility create greater legal issues Second, this approach creates the
potential for substantial inconsistencies among various State programs This broad
variability among State programs would not provide consistent requirements for UST
owners and operators nationwide Moreover, this approach seems unfair to the many
States with SPA that put substantial time and resources into developing an UST program
that meets the requirements of RCRA § 9004 and may even decrease the incentive to
obtain SPA. Finally, this approach allows for substantial gaps in State programs that EPA
will be required to administer This approach will fl.irther complicate the UST regulatory
scheme because owners and operators will not know who is regulating them, j ., the
federal or State government
6. Conditional Program Approval
In this approach, a State may obtain SPA without having to meet all of the SPA
requirements and standards prior to SPA SPA would be conditioned upon the State
meeting the SPA requirements within a certain time period. For example, a State program
may not have corrective action or financial responsibility requirements The State program
could be approved conditionally without requiring the State to meet the corrective action
or financial responsibility requirements In order to receive SPA, however, the State must
meet the lacking portions of the SPA requirements within an agreed upon time period
EPA would retain the authority to regulate these requirements until the condition is met by
the State. If the State does not fulfill its agreement, SPA would be withdrawn
There are advantages to this approach First, like the partial program approval
option, this approach would provide a mechanism for many States presently without SPA
to obtain SPA. Second, this approach enhances opportunities to make changes to a
State’s program that does not meet all the federal requirements and provides the incentive
to make necessary changes within a certain time.
There are also several disadvantages to this approach. First, like the holistic and
partial program approval options, this approach presents legal concerns, j , whether
RCRA § 900 requires a State to meet the SPA req rci:.ents prior to program approval
or whether a State may meet the SPA requirements piecemeal. Also, this approach may
invite citizen suits against EPA or the State.
7. SPA By Default
In this approach, if a Region does not determ . ie to approve or deny a State’s SPA
application within the required one hundred eighty (180) day time period set forth in
RCRA § 9004, the State’s SPA application is automatically approved. Although this will

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7
expedite the SPA process, this approach presents many legal concerns including potential
citizen suits Moreover, this approach may result in SPA for State programs that are not
environmentally protective Although this approach is proposed as an option, the
workgroup understands the potential problems that exist in its implementation
B. Process Changes
1. Early Regional Evaluation of Statutes and Regulations
One significant factor considered by a State in its determination to apply for SPA
is the time and resources necessary to apply An early Regional evaluation, prior to
the submission of a draft or final SPA application, will assist the State in recognizing its
barriers to SPA and to determine the time and resources necessary to resolve these
barriers In addition to time and resources, many States’ seiiior management are uncertain
about the benefits of SPA By knowing early in the process the barriers to SPA, the
State’s program management can better advise their senior management to the likelihood
of obtaining SPA. In effect, the program management can better “sell” their senior
management on obtaining SPA The workgroup recognizes that most regional offices are
reluctant to put substantial time and resources into something that may not happen
Notwithstanding this commitment of scarce time and resources, the workgroup believes
that an early evaluation will make SPA easier and quicker for a number of States
Moreover, it will provide the incentive necessary for a State to apply that may not
otherwise have applied for SPA At a minimum, this approach could be voluntary and
stressed by OUST in policy memoranda.
2. Targeted Assistance
In this approach, OUST provides assistance to a State or a Region to ensure the
SPA process is easier and quicker. Many different types of assistance are available
Specific contractor support to develop the State’s SPA application is one type Training
of Regional/State staff in reviewing/developing the SPA applications is another type of
assistance.
Targeted assistance has many advantages TI’ 3 approach provides the State with
the resources necessary to complete the SPA application which will, in turn, expedite the
SPA process. This approach will also assist in identiiiing barriers earlier in the process.
Moreover, this has proven to be a successftil approach to states obtaining SPA in past
instances.
This approach has some disadvantages. The lack of agency resources (personnel
or funds) to fund contractors or to train staff is a significant problem especially in this
“budget cutting” climate. Moreover, some regions have not ftilly supported past attempts
by OUST to target assistanci. This lack of regional support may continue.

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8
3. Clarification of EPA/State Roles After SPA
Information gathered by the workgroup discloses that many States are uncertain of
the specific roles of EPA and/or the State after obtaining SPA It is believed by the States
that EPA’s role will be substantially deminished after SPA when, in reality, EPA’s role is
sometimes increased
This approach has many advantages Clarifying roles before SPA will provide the
incentive to many States that may not have otherwise applied for SPA Moreover, it will
provide for ifiture expectations, including planning and establishing goals, between EPA
and the State programs Among the disadvantages, this approach will require a separate
workgroup or other persons to develop the specific program roles and EPA’s policy
requirement of continued oversight of approved programs indicates some continued
invohement by EPA
4. Changes In Delegation
Presently, the decision to approve or deny a State’s SPA application is delegated
by the Administrator to the Regional Administrator of each EPA Region The workgroup
believes that it may be helpful for the Administrator to retain some authority to intercede
ir the SPA process The workgroup believes that the Administrator should have the
ability to make independent decisions whenever necessary to assure consistent and timely
SPA determinations This option could be achieved thrdugh a change in the current
delegation or by emphasizing the language that exists in the current delegations in which
the Regional Administrator must consult with the OSWER Assistant Administrator
This approach has several advantages As mentioned earlier, it will assure
consistent and timely SPA determinations Moreover, this approach (L . the threat of
delegation withdrawal) may provide the necessary incentive to Regional programs to
assure more timely reviews The workgroup believes that this approach may spur Regions
to be more innovative in resolving SPA issues with State programs. For example, often a
Region may require an Office of General Counsel (OGC) written opinion in order to
resolve an issue. In most instances, the Region has the delegated authority to decide the
issue without written opinion from OGC. Altho’ ,,I this rrocess is the safest, most
conservation decision-making method, it substantially lengthens the SPA process.
Another example is a Region’s reliance on requiring a State Attorney General (AG)
opinion to resolve outstanding issues Like OGC opinions, AG opinions substantially
lengthen the SPA process The workgroup recognizes that there are instances when OGC
or AG opinions are necessary but the workgroup also believes that Regional staff may
consider this method a standard way of resolving issues. This approach may provide the
incentive to Regional staff to be more innovative and accountable when resolving issues
and making decisions. In any case, this approach will remove Regional “bottlenecks”
thereby expeQiting the SPA process

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9
This approach has several disadvantages In some instances, this approach may
actually slow the SPA process if OUST cannot immediately devote the necessary time
and resources to make the SPA determination. Moreover, this approach requires that
OUST expend more time and resources in order to become familiar with the State’s
program 6 Finally, the Regions will be less likely to embrace a SPA determination that
was made with little or no Regional participation
5. Require a Mandatory Part 281 Review
The workgroup believes that many SPA reviews have been conducted by applying
a 40 C F.R § 280 “line-by-line” review rather than a review pursuant to 40 C F R § 281
which allows more flexibility in a state program The workgroup believes that all reviews
should be performed according to the provisions of 40 C F R § 281 In the event a
Region reftises to apply a Part 281 review and allow the flexibility provided such a review,
Option #4 is available to the Administrator to retain authority or to withdraw delegation of
authority from the Regional Administrator and to apply a Part 281 review This threat
may provide incentive to Regional staff to apply a Part 281 review
This approach has several advantages. As stated in the footnote, a Part 28 I review
will expedite the SPA proc ss Moreover, it assures that the flexibility provided by Part
281 is consistently applied to all SPA applications The disadvantages are that it requires
Regional staff to put more thought into the review than is required by a Part 280 “line-by-
line” review and it requires senior management (Regional and Headquarters) buy-in to
ensure its implementation.
6. OUST as a Partner in the Review Process
It appears that OUST is often excluded from Regional SPA reviews and
determinations The workgroup believes that this exclusion lengthens and complicates the
SPA process. OUST has many skills and abilities that Regions should use as a resource in
conducting reviews and making SPA determinations. The workgroup encourages the
Regions to avail itself of these resources A system should be developed whereby OUST
is made a partner in the review and decision-making process If this system cannot occur
voluntr ly, OUST should require its participati ’ in the review and decision-making
process.
6 Regional staff are often more familiar with a particular State’s UST program than OUST and are in a
better position to make SPA decisions quicker than OUST The time necessaiy to familiarize OUST with
the State’s program so as to make knowledgeable SPA decisions may slow the process.
By the term “40 C.F.R. § 280 review,” the workgroup means that the Regional staff compare a State’s
program to the requirements of 40 C.F R. § 280 rather than the requirements of 40 C F.R. 281. This type
of a review often results in a line-by-line review of a State’s program EPA regulations and policy do not
provide for a line-by-line review Although this type of review is easier than determining flexibility
provided by 40 C.F.R. § 28!, this often results in a Slate’s program being required to conform to the
requirements of 40 C.F.R § 280 rather than 40 C F.R § 281 This type of review oftcn places significant
burdens on a Slate and requires substanLial time and resources to comply thereby substantially lengthening
the SPA process

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Li)
This approach has several advantages Clearly, it adds experienced resources to
the SPA process Moreover, OUST has a proven track record of timely, consistent and
flexible decision-making The disadvantages are that it removes Regional autonomy and,
if OUST participation is mandatory, it will require a change in the delegation of the SPA
determination without Regional support Moreover, it adds another layer to the decision-
making process that may prolong the overall SPA determination Also, this approach
may result in a stalemate between the Region and OUST thereby lengthening the SPA
process Ideally, a system should be developed whereby the Region retains as much
autonomy as possible without the stalemate possibility, yet OUST is included in the review
and decision-making process to the maximum extent possible
7. Use of Negative Incenives
In this approach, EPA would use negative incentives to encourage States (that
would not have otheRvise applied for SPA) to apply for SPA Negative incentives include
reduction of grant monies or other funding and increased activity ( .g.., inspections and
enforcement) in the State
This approach has several advantages First, this approach is fair across the board
States that have committed the tinie and resources to obtain SPA are rewarded and those
that have not do not receive such rewards Moreover, this type of approach has a proven
track record and seems to be the only incentive that appears to be working One serious
disadvantage is that a reduction in funding may result in weaker environmental protection
if the State is unable to fill such funding reductions Moreover, in this atmosphere of
budget cuts, reduced funding may be a hollow threat Also, increased activity by EPA
means a commitment of time and resources Moreover, a Region may not have the time
and the resources to commit to these activities thereby making this a hollow threat
Finally, there may be a backlash from State governments and citizen groups from such
negative incentives
8. Increased SPA Training
In reviewing the present situation, the workgroup believes that there is a need for
additional training of State and agency staff Any ar unt of training in the SPA process is
beneficial In the past, OUST has conducted SPA training The workgroup encourages
OUST to continue its training efforts in the SPA proc - ss. One group that appears n need
training is the Regional staff, j ., program staff and t torneys, who conduct the basi t A
application reviews Another group in particular need is the State attorneys OUST
could sponsor a new UST Attorney orientation similar to-the one provided for
B EPA may want to use these finds (i e. normally allotted to s’ate LiST programs) for increased inspection
and enforcement in the states without SPA
States are expecting a reduction in federal funding. For that reason, threats to reduce federal funding
may not have a subsiantial impact on the State’s decision to obtain SPA. ie. there is little or no pie to
slice

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II
CERCLAJRCRA attorneys This attorney training should be open to State attorneys as
well as agency attorneys
This approach has several advantages This approach tills a definite need and will,
hopeflully, produce consistent SPA reviews and determinations One disadvantage is that
increased training may not be greatly effective for some of the staff Moreover, trainini
requires a substantial commitment of time and resources that may be better used
elsewhere
9. OUST High-level Communication
Information gathered by the workgroup indicates that some States, Regions and
EPA Offices do not place a priority on obtaining SPA In this approach, OUST would
conduct a series of high-level communications with senior management stakeholders
including State, regional and headquarters staff For example, some Regions may not
place a high priority on achieving SPA for its regional States OUST should commur icate
with Regional senior management, including division directors and regional counsels, and
encourage that greater priority be placed on UST SPA reviews Moreover, OUST should
also communicate with the various headquarter offices, g, Office of Enforcement and
Compliance Assurance and OGC, so that EPA headquarters and the regions all agree to
make SPA reviews and determinations a top priority These high-level communications
may also foster the necessary support to assure more regional accountability and
flexibility
There are advantages to this approach First, these high-level communications
emphasizes SPA as a national priority and establishes clear agency goals They also assure
that agency senior management is aware of and focuses on SPA Moreover, this is a very
timely message and is an excellent way of measuring effectiveness
Although disadvantages to this approach are minimal, there are a few First, this
approach has not proven completely effective in the past Moreover, in the context of all
the competing initiatives and other priority issues which are currently emphasized, SPA
may become lost in the initiative morass and may even suffer due to “initiative burnout”
IV. Recommendations
The vorkgroup decided not to make specifi commendations regarding the
options proposed herein The workgroup believes that all the proposed options warrant
consideration For that reason, the workgroup did not recommend one option over
another or to otherwise rank or prioritize the proposed options in any particular order.
The workgroup has several general recommendations regarding the proposed options that
are as follows
The workgroup believes that all of the process changes are good and
implementable with little or no difficulty Therefore, the workgroup recommends

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12
that OUST consider the process changes for implementation immediately (or at
least as soon as possible) except that the proposed “changes in delegation” option
should be held in reserve and used as an option of last resort if other options fail
2 Although implementation of the process changes should be given priority,
the workgroup recommends that OUST consider implementation of one or more
of the regulatory revisions despite the difficulties of implementation ‘° There are
concerns whether the regulatory changes can legally be made consistent with the
statutory language If this threshold issue can be resolved, OUST should then
carefully review the regulatory revision(s) that would generate the most results and
devote time and resources accordingly In any event, available time and resources
should first be devoted to the implementation of the process changes
V. Summary
The workgroup believes that it has completed its mission It identified real
problems that prevent state UST programs from achieving SPA More importantly, it
developed alternatives to these problems that it believes, if implemented, will allow more
state UST programs to obtain SPA without compromising environmental protection As
can be seen in this report, most of the alternatives are changes or improvements to the
present SPA process Several regulatory revisions are also presented as proposed options
Although all of the proposed options warrant consideration, OUST should consider
immediate implementation of the proposed process changes except as above noted
Notwithstanding the difficulties associated with the regulatory revisions, the workgroup
recommends that OUST also consider one or more of the regulatory revisions if time and
resources allow
°The workgroup recognizes that there are concerns and issues requiring resolution before
the regulatory revisions can be implemented. Notwithstanding implementation of all the
proposed options, the workgroup recognizes that some states may never obtain SPA. For
these reasons, OUST may v mt to consider the practical impact of any regulatory revision
before its implementation For example, OUST should determine how many states will
achieve SPA as a result of a revision compared to the time and resources necessary to
implement the revision

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pproval
- Obstacles -
D.C. ff J
\‘irgii Island
Puerto Rico
State Prograni
NEW
EFMCNT
C ONN
NEW JERSEY
C L.A i, .RE
9,&WA1
Approved State Program Deficiency In State Program
No Obstacle To SPA

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S ’iAjE PROGRAM APPROVAL
Tips

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Sr 4 ,.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
‘i’i 28 1992 OF ICEOF
SOLID WASTE AND EMERGENCY RESPONSE
MEMOR NDUM
SUBJECT: FY 1991 Regional State Imp vement Projects
Compendium -
FROM: David W. Ziegele, Director 4
Off ice of Underground Storage Tanks
TO: tJST/LUST Regional Program Managers
Attached is a copy for you and one for each of your
staff of the Regional State Improvement Projects (formerly
called TIPs) Compendium for Fl 1991.
As you recall, the TIPS Compendium included project
information through FY 1990. If a decision was made to fund
a project in FY 1991 regardless of when the work was com-
pleted (and in some cases is still uncompleted), then the
project is listed in the Fl 1991 Compendium. We tried to
assure that we have included all Fl 1991 projects (including
those that were deferred or reprogrammed) and that the
information is accurate. However, if you find errors or
omissions, please notify your Desk Officer. We will make any
neceèsary changes and send updated sheets. In addition, we
changed the format for the Fl 1991 project sheets and instead
of listing improvements achieved or barriers encountered we
are asking that you contact the Regional Work Assignment
Manager if you need that information.
We are also finalizing the Fl 1992 Regional State
Improvement project sheets. We hope to have that information
available prior to the August RPM meeting. If you have any
comments or questions about the Compendium, please feel free
to contact your Desk Officer.
Attachments
cc: Regional Branch Chiefs (without attachment)
OUST Management Team
OUST Desk Officers
UST/SPA/T/92-2
PriRsed on Reqcled Paper

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FY 1991 Regional State
Improvement Projects
Compendium
EPA
U.S. Environmental Protection Agency
Office of Underground Storage Tanks
Washington, D.C.

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1991 REGION.- L STATE IMPROVEMENT PROJECTS
Co I P E D IL \I
INDEX
PRIORITY AREA CODES
CA: Corrective Action
LD: Leak Detection Enforcement
SPA: State Program Approval
MS: Miscellaneous
Region I
CA Sueamlining the New Hampshire and Vermont Corrective Action Programs
LD Conversion of State Main Frame Regisnation System to EPA ’s PC-based
liST Database Management System (Connecticut and Maine)
MS Targeted Improvement Projects for States in Region 1
Region 2
CA New Jersey SmartMap Software for Corrective Action Prioritizadon
Puerto Rico Corrective Action (CA) S eamlining
LD New York Leak Detection Enforcement Project
New York Tank Survey
SPA Puerto Rico State Program Approval (SPA) Support
Virgin Islands DPNR Financial Responsibility Assistance
MS Regulatory Compliance Training for New Jersey UST Inspectors
Puerto Rico EQB and Virgin Islands PNR LUST Tracking System

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Region 3
CA Implerrientauon of Field Measurement Techmques and Application of New
Tream ent Technologies for Pe oleum Contaminated Soils (all States)
Consultants Day Serrdnar for the Cornmon ealth of Virginia
De elopment of Correcn e Action (CA) Guidance (all States)
Seminars for UST/LUST Procedures Manual (Virgtnia)
LD Leak Detecuon Campaign (District of Columbia)
Seminars in :he Specifics of Daily Inventory and Monthly Reconciliation for
the State of ‘.!. ryIand (project was extended to include seminars in Delaware
and \Vest Vu .nia)
SPA Development of D C. UST Regulanons
Region 4
CA Soil Vapor Survey Workshop (all States)
Evaluation of Pump and Treat Systems (North Carolina)
CA/LD Improvement Projects to Streamline the North Carolina Corrective Action
Process
SPA State Program Approval Support (Alabama)
MS Mass Mailing (Georgia Compliance)
Region S
MS Michigan Compliance Guidebook
Michigan UST Registration and Recordkeeping
University of Wisconsin Newsletter
Region 6
CA Streamlining Louisiana’s LUST Corrective Action Process
LD Leak Detection Enforcement Campaign (Texas)

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Region 6 (con’ t )
LD Leak De ec:ion S stems Serrurars iTexasi
S PA State Program Assistance Re iew (all States)
MS Arkaisas Program De elopment
New Mexico Field Citation Docket
Region 7
CA Priority Ranking System for the Cleanups of LUSTs (Iowa)
Streamline and Improve M.DNIRs Correcuve Action Process Utilizing the
LUST Trust Fund (Missouri)
S PA Assistance to Region 7 Kansas State Fund
Region 8
CA LUST Site Assessment and Corrective Action Workshop (all States)
Streamlining Montana’s Corrective Action Process
Streamlining Utah’s Corrective Action Process
LD South Dakota Field Citation Program
SPA SPA Assistance for South Dakota
MS TIPs -- Tank Installation and Removal Training Course (Montana)
TIPs -- Tank Installation and Removal Training Course (North Dakota)
Region 9
CA Hawaii Risk Assessment
Fair Market Value of Nevada Cleanup Costs
Streamlining County’s Corrective Action Process (San Diego County)
LD Hawaii Leak Detection Enforcement

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Region 9 (co
MS OSHA Health ar.d Sa ty 40 Hour Tratr. ng (Arizona)
UST Inspector Tratning Arizor.a)
State’. ide UST/LUST Conference tCaliforriia)
Prototype Priority System for Hawaii
Nevada LST Database Management System
Nevada Claims Tracking System
Region 10
CA Corrective Action S earrthning (Alaska)
Washington Consultants Day
TIPs -- Washington Site Asses ment
LD Leak Detection Monitoring and Compliance Training (Washington)
MS Compliance Tracking System Development (Oregon)

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1991 Regional State Improvement Project
National Priority Area: Correcti e Action
Region 1 - New Hampshire, Vermont
Project: S eamhning the New Hampshire and Vermont Corrective Action Pro ams
Purpose was: To assist NH and VT in identifying, quantifying, and eliminating waste
in their corrective action work process and to document improvements.
Scope of Work: Conducted presentations in each State on basic concepts of TQM arid
the s eamlining process, flowcharted existing practice, identified opportumdes for
improvements, assisted States in selecting, implementing, and measuring improvements in
performance.
Product(s): Flow charts and summary reports.
Improvements and Barriers: For information about improvements this project
achieved or bamers encountered, contact the Regional Work Assignment Manager listed
below.
Regional Work Assignment Manager: Joan Coyle, (617) 573-9667
Contractor Work Assignment Manager: MRI; Al Nugent, (703) 671-0400
Work Assignment No. 30
Level of Effort: Hours 1000 for NH
667 for VT
Dollars $99,994
Period of Performance: 4/8/91 - 9/30/91

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1991 Regional State lmpro%ement Project (Deferred)
ational Priority Area: Leak Detection Enforcement
(CST Data Management S)stem)
Region 1 - Connecticut, Maine
Project: Con ’ersion of State Main Frame Registration System to EPA ’s PC-based UST
Database Management System.
Purpose was : To provide a database management system (UST DMS) which
Connecticut and Maine can use to conduct leak detection implementation and enforcement
activities.
Scope of Work: Demonstrated UST DMS to State staff and senior managers in
Hartford and Augusta. Evaluated conversion of existing State database systems to UST
DMS. Implemented database conversion for Connecticut and developed routine reminders
for leak detecnon compliance deadlines.
Product(s): Demonstrations, conversion to DMS, leak detection deadline reports,
mailing to 5,000 owners and operators reminding them of upcoming deadlines.
Improvements and Barriers: For information about improvements this project
achieved or bamers encountered, contact the Regional Work Assignment Manager listed
below.
Regional Work Assignment Manager: Jon Walker, (617) 573-9602
Contractor Work Assignment Manager: ICF, Inc., Susan Hughes, (703) 934-3069
Work Assignment No. 93
Level of Effort: Hours 321
Dollars $25,000
Period of Performance: 3/5/91 - 5/24/92

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1991 Regional State Impro ement Project
National Priority Area: Miscellaneous
(Compliance MonitoringiData Management)
Region 1 - Connecticut, Rhode Island, Massachusetts
Project: Targeted Improvement Projects for States in Region I
Purpose was: To facilitate Regional assistance to States for development and
implementation of their own UST programs.
Scope of Work: 1) Campaign to encourage voluntary compliance (Connecticut DEP
Compliance Monitoring and Enforcement Follow-up; 2) preparation of user documentation
and u aining (Rhode Island DEM Computer System Documentation); 3) effort to assess
status of program implementation State side (Massachusetts DPS and State Fire Marshals
Office Compliance Assistance to Local Fire Departments).
Product(s): As related to individual projects.
Improvements and Barriers: For inforr ation about improvements this project
achieved or barriers encountered, contact the Regional Work Assignment Manager listed
below.
Regional Work Assignment Manager: William Torrey, (617) 573-9604
Contractor Work Assignment Manager: ICF, Inc., Walter Gawlak,
(703) 934-3071
Work Assignment No. 26
Level of Effort: Hours 875
Dollars $49,995
Period of Performance: 6/21/90 - 5/24/91

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1991 Regional State Impro ement Project (Deferred)
National Priority Area: Correctke Action
(Data Management - SmartMap Software)
Region 2 • New Jersey
Project: New Sersey SmartMap Software for Co ecttve Action Priondzation
Purpose: See above
Scope of Work: To develop software package.
Product(s): SmartMap Software
Improvements and Barriers: For information about improvements this project
achieved or barriers encountered, contact Bill Foskect at Headquarters, (703) 308-8525.
Regional Work Assignment Manager: N.A.
Contractor Work Assignment Manager: N.A.
Purchase Order dated 2/21/92
Document Control No. TC0009
Level of Effort: Hours N.A.
Dollars $ 50.000
Period of Performance: N.A.

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1991 Regional State Improsement Project (Deferred)
National Priority .. rea: Correcti’,e Action Streamlining
Region 2 - Puerto Rico
Project: Puerto Rico Corrective Action (CA) Stieamlining
Purpose is: To assist the Puerto Rico Water Quality Conool (WQC) in identifying and
quantifying the waste in its LUST corrective action work process, to identify po sibIe
causes for the waste, and opportunities for improvement.
Scope of Work: Identify and document existing process, establish baseline
performance, identify opportunities for improvement, and summanze results.
Product(s): Draft and final flowcharts, final list of measures used to establish baseline
performance, final data summary showing baseline performance, final list of improvement
opportunities, draft list of potential improvement projects, and draft summary report.
Improvements and Barriers: For information about improvements this project
achieved or barriers encountered, contact the Regional Work Assignment Manager listed
below.
Regional Work Assignment Manager: Derval Thomas, (212) 264-1829
Contractor Work Assignment Manager: MRI; Al Nugent, (703) 671-0400
Work Assignment No. 64
Level of Effort: Hours 400
Dollars $28,446
Period of Performance: 6/4/92 - 2/28/93

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1991 Regional State 1mpro ement Project (Reprogrammed)
National Priority Area: Leak Detection Enforcement
Region 2 - New York
Project: New York Leak Detection Enforcement Project
Purpose was: To provide attorney services to evaluate approaches to site inspection
follow-up for documented violations of New York’s regulations.
Scope of Work: As described in purpose.
Product(s): N.A.
Improvements and Barriers: For information about improvements this project
achieved or barriers encountered, contact the Regional Work Assignment Manager listed
below.
Regional Work Assignment Manager: Dit Cheung, (212) 264-3384
Contractor Work Assignment Manager: NA.
Change Request dated 12/30/90
Level of Effort: Hours NA.
Dollars $20,000
Period of Performance: N.A.

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1991 Regional State Improvement Project (Reprogrammed)
National Priority Area: Leak Detection Enforcement
Region 2 • New York
Project: New York Tank Survey
Purpose is: To allow the State to complete a tank survey for the purpose of determining
the level of compliance.
Scope of Work: NA.
Product(s): N.A.
Improvements and Barriers: For information about improvements this project
achieved or barriers encountered, contact the Regional Work Assignment Manager Listed
below.
Regional Work Assignment Manager: Dit Cheung, (212) 264-3384
Contractor Work Assignment Manager: N.A.
Change Request dated 3/6/92
Level of Effort: Hours NA.
Dollars $8,000
Period of Performance: N.A.

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1991 Regional State Improvement Project
National Priority Area: State Program Approval
Region 2 - Puerto Rico
Project: Puerto Rico State Program Approval (SPA) Support
Purpose was: To assist Puerto Rico in developing its State Program Approval
documents for the UST program.
Scope of Work: Developed diaft SPA package, reviewed program capabilities,
identified and described any potennal issues that may affect app oval of the application,
attempted to resolve issues, completed draft materials for application package, conducted
capability assessment, and pro .:ed final SPA applicanori.
Product(s): Draft and final application package, capability assessment, list of potential
issues.
Improvements and Barriers: For information about improvements this project
achieved or barriers encountered, contact the Regional Work Assignment Manager listed
below.
Regional Work Assignment Manager: Ben Singh, (212) 264-5166
Contractor Work Assignment Manager: ICF, Inc., Susan Hughes (703) 934-3069
Work Assignment No. 83, including Modifications 1 and 2
Level of Effort: Hours 330
Dollars $21,003
Period of Performance: 9/27/91 - [ 1/30/91

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1991 Regional State Improvement Project
National Priority Area: State Program Approval
(Financial Responsibility - TIPs Project)
Region 2 • Virgin Islands
Project: VDPNR Financial Responsibihty .Assistance
Purpose was: To assist VEin selecting and establishing a funding program which
satisfies the Subtitle I financial responsibility requirements and is tailored to the needs of
the Virgin Islands.
Scope of Work: Collected background information on mechanisms being used by other
States, developed survey instruments, conducted interviews of government arid indusny
representatives implementing programs, and prepared detailed memoranda including an
annotated list of insurance carriers of UST insurance.
Product(s): Memoranda and list of insurance carriers of UST insurance.
Improvements and Barriers: For information about improvements this project
achieved or barriers encountered, contact the Regional Work Assignment Manager listed
below.
Regional Work Assignment Manager: Susan Osofsky, (212) 264-9638
Contractor Work Assignment Manager: ICF, Inc., Steven Senior (201) 603-3706
Work Assignment No. 44
Level of Effort: Hours 200
Dollars $12,186
Period of Performance: 1/14/91 - 5/24191

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1991 Regional State Improvement Project
National Priority Area: Miscellaneous
(Compliance - TIPS Project)
Region 2 - New Jersey
Project: Regulator Compliance Training for New Jersey UST Inspectors
Purpose was: To provide a ‘hands on” field aining for New Jersey inspectors for the
purpose of increasing owner/operator cornphance.
Scope of Work: Designed training and prepared training materials including a field
reference guide, presented two-day training at Edison Laboratory unlizing the UST tank
testing apparatus, provided summary of course evaluation.
Product(s): Two-day framing seminar, reference guide.
Improvements and Barriers: For information about improvements this project
achieved or barriers encountered, contact the Regional Work Assignment Manager listed
below.
Regional Work Assignment Manager: Derval Thomas, (212) 264-1829
Contractor Work Assignment Manager: ICF, Inc., Steven Senior, (201) 603-3706
Work Assignment Nos. 38 and 78
Level of Effort: Hours 290 125
Dollars $15,001 $14,437
Period of Performance: 8/8/90 - 5/24/191 5122 /91 - 7/31/91

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1991 Regional State Impro ement Project
National Priority Area: Miscellaneous
(Data Management - TIPs Carryover Project)
Region 2 - Puerto Rico/Virgin Islands
Project: Puerto Rico EQB and Virgin Islands PNR LUST Tracking System
Purpose was: To gain access to the LUST Trust Fund for cleanup of leaking tanks in
Puerto Rico and the Virgin Islands.
Scope of Work: Provided the generic LUST Trust Fund computer tracking system
originally created by Region 3. Tasks: preparing system training including a manual
version for VI, installing the system in PR, providing training to both staffs, providing
consulting services, and preparing project summary.
Product(s): Installation of software program, development of manual version, and staff
training.
Improvements and Barriers: For information about improvements this project
achieved or barriers encountered, contact the Regional Work Assignment Manager listed
below.
Regional Work Assignment Manager: Susan Osofsky, (212) 264-9638
Contractor Work Assignment Manager: ICF, Inc.; Steven Senior, (201) 603-3706;
Sheila Conway, (201) 603-3768
Work Assignment No. 37
Level of Effort: Hours 120
Dollars $9,941
Period of Performance: 10/17/90 - 4130/91

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1991 Regional State 1mpro ement Project
ational Priority Area: Correcti’ e Action
Region 3
Project: Implementation of Field Measurement Techniques and Application of New
Treatrer.t Technologtes for Peu oleum Contaminated Soils
Purpose ssas: To provide uniform, up-to-date resource documents to enhance the
capabilities of State technical staffs in field measurement and soil u ea rient technologies.
Scope of Work: Assisted Region 3 in formatting and facilitating workgroup to develop
comprehensive summary of field screening techniques currently available including the
experience of State technical staff with these technologies. Developed a list, categorized by
Region 3 States, of existing soil eatment technologies, the frequency each is used, the
vendors providing these technologies, and the regulatory cDnditions imposed on these
technologies.
Product(s): List of candidate field measurement techniques, workgroup kickoff meeting
notes, summary of conference calls with each Region 3 State, summary of three States’
corrective acuon processes for soils.
Improvements and Barriers: For information about improvements this project
achieved or barriers encountered, contact the Regional Work Assignment Manager listed
below.
Regional Work Assignment Manager: Jack Hwang, (215) 597-7354
Contractor Work Assignment Manager: MRI; Al Nugent, (703) 671-0400
Work Assignment No. 39
Level of Effort: Hours 380
Dollars $28,675
Period of Performance: 7/30/91 - 2/22/92

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1991 Regional State Improvement Project
National Priority Area: Correcti%e Action
Region 3 . Virginia
Project: Consultants’ Day Seminar for the Commonwealth of Virginia
Purpose s as: To provide clear communication through a Consultant’s Day seminar of
Virginia’s LST corrective action requirements to consultants performing this work in the
Common ealth.
Scope of Work: Conducted kickoff meeting with Virginia Water Conuol Board
(VWCB), developed full day presentation, developed notebook/handout, conducted dry
run, made all logistical arrangements, compiled evaluation forms, and conducted seminar.
Product(s): Detailed outlines of presentations, handouts for each presentation, and
summary of evaluation forms.
Improvements and Barriers: For information about improvements this project
achieved or barriers encountered, contact the Regional Work Assignment Manager listed
below.
Regional. Work Assignment Manager: Jack Hwang, (215) 597-7354
Contractor Work Assignment Manager: MRI; Al Nugent, (703) 671-0400
Work Assignment No. 32
Level of Effort: Hours 361
DoUars $25,993
Period of Performance: 7/30/91 - 2/23/92

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1991 Regional State Improvement Project
National Priority .Area: Corrective Action
Region 3
Project: Development of Correcn e Action (CA) Guidance
Purpose s%as: To facilitate and impro e State and Regional CA enforcement processes.
The guidance is intended to provide a technical framework which can be used to develop
site-specific schedules of compliance in a corrective action order.
Scope of Work: Gathered information to determine availability of CA guidance on
specific areas, prepared correcdve action guidance document and modified final document
to incorporate State-specific requirements for each of Region 3’s States participanng in the
project.
Product(s): Summary of data, draft guidance, final guidance document.
Improvements and Barriers: For information about improvements this project
achieved or barriers encountered, contact the Regional Work Assignment Manager listed
below.
Regional Work Assignment Manager: Jack Hwang, (215) 597-7354
Contractor Work Assignment Manager: MRI; Al Nugent, (703) 671-0400
Work Assignment No. 17
Level of Effort: Hours 471
Dollars $28,194
Period of Performance: 7/10/90 - 6/30/91

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1991 Regional State Impro%ement Project
National Priority Area: Correcti e .4ction
Region 3 Virginia
Project: Seminars for UST/LUST Procedures Manual
Purpuse ss as: To familiarize Virginia Water Conn o1 Board (VWCB) staff with the
LUST portion of the UST/LUST Guidance Manual focusing on the intent of the new
procedures. (Note. the Guidance Manual was developed under Work Assignment No. 11,
Conn act No. 68-WO-0015.)
Scope of Work: Developed and presented two 2-day workshops to VWCB staff and
provided logistical support.
Product(s): Outline of presentation, presentation in Richmond, presentation in Roanoke,
completion of logistics.
Improvements and Barriers: For information about improvements this project
achieved or barriers encountered, contact the Regional Work Assignment Manager listed
below.
Regional Work Assignment Manager: Jack Hwang, (215) 597-7354
Contractor Work Assignment Manager: MRI; Al Nugent, (703) 671-0400
Work Assignment No. 28 (1991); Work Assignment No. 52 (1992)
Level of Effort: Hours 125 (1991) 95 (1992)
Dollars $10,922 (1992) $9,173 (1992)
Period of Performance: 7/10/91 8/31/92 (inclusive)

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1991 Regional State Improvement Project
National Priority Area: Leak Detection Enforcement
Region 3 District of Columbia
Project: Leak Detection Campaign
Purpose s%as: To review and evaluate various notification forms provided by facility
owners as verification of compliance ith leak detection requirements for underground
storage tanks. Forms received from facility owners were in response to a leak dececnon
compliance letter wnting campaign conducted for those tanks between the ages of 20-25
years.
Scope of Work: Reviewed information supplied by 30 facility owners to verify that
data was correct and that testing was conducted in accordance with indusny protocol.
Assisted in preparing Notices of Violations (NOVs) for those facilities not in compliance
and provided technical assistance in evaluating responses.
Product(s): Report of findings.
Improvements and Barriers: For information about improvements this project
achieved or barriers encountered, contact the Regional Work Assignment Manager listed
below.
Regional Work Assignment Manager: Renee Gruber. (215) 597-7354
Contractor Work Assignment Manager: ICF, Inc., Walter Gawlak,
(703) 934-3071
Work Assignment No. 87, including Modification 1
Level of Effort: Hours 190
Dollars $12,102
Period of Performance: 8/29/91 - 5/1/92

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1991 Regional State 1mpro ement Project
National Priority Area: Leak Detection Enforcement
Region 3 Maryland, Delaware, West Virginia
Project: Seminars in the Specifics of Daily In’ientory and Monthly Reconciliation for the
State of Maryland Project was extended to include seminars it t Delaware and West
Vir ’jiia)
Purpose was: To provide seminars on technical specifics of daily inventory and
monthly reconcdianon to help increase compliance with Federal leak detection
requirements.
Scope of Work: Conducted seminars in three States to familiarize private owners and
perators, municipal, county, State, arid Federal operators of USTs with inventory
procedures, problems, requirements, and record.keeping. Acdvities included advertising
the seminars to potential targeted audiences and doing pre.tests and post-tests during
seminars.
Product(s): Seminars, pre-cests and post-tests.
Improvements and Barriers: For information about improvements this project
achieved or barriers encountered, contact the Regional Work Assignment Manager listed
below.
Regional Work Assignment Manager: Jack Hwang, (215) 597-7354
Contractor Work Assignment Manager: MRI; Al Nugent, (703) 671-0400
Work Assignment 29, including Modification 1
Level of Effort: Hours 357
Dollars $57,999
Period of Performance: 3/27/91 - 2/29/92

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1991 Regional State Impro ment Project
National Priority Area: State Program Approval
Region 3 - District of Columbia
Project: Developrr nc of D C. UST Regulations
Purpose % as: To assist District of Columbia in developing regulations based on
proposed UST legislation.
Scope of Work: Did regulatory research, drafted regulations, assisted in developing
final regulations, including review of comments and final revisions.
Product(s): Final D C. UST regulations
Improvements and Barriers: For information about improvements this project
achieved or barriers encountered, contact the Regional Work Assignment Manager listed
below.
Regional Work Assignment Manager: Rose Nino, (215) 597-0270
Contractor Work Assignment Manager: ICF, Inc.; Walter Gawlak, (703)
934-3071; David Splitt
Work Assignment No. 27
Level of Effort: Hours 200
Dollars $16,793
Period of Performance: 9/4/90 - 4/30/91

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1991 Regional State Improvement Project
National Priority Area: Corrective .. ction
Region 8
Project: LUST Site Assessment and Correcti’ e Action Workshop
Purpose was: To improve State staff capabilities in successfully requesting. reviewing.
and approving site assessment reports and corrective action plans.
Scope of Work: Developed agenda and presented a LUST site assessment and
corrective action workshop for State, county, and municipal staff. (Site assessment
u aining was condensed from two-day to a one-day seminar; corrective action ‘aining was
developed previously.) -
Product(s): Revised agenda; student notebook, visuals, and course delivery.
Improvements and Barriers: For information about improvements this project
achieved or barriers encountered, contact the Regional Work Assignment Manager listed
below.
Regional Work Assignment Manager: Maureen Doughtie, (303) 293-1825
Contractor Work Assignment Manager: MRI; Al Nugent, (703) 671-0400
Work Assignment No. 35
Level of Effort: Hours 230
Dollars $15,998
Period of Performance: 5/31/91 - 9/30/91

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1991 Regional State Improvement Project
National Priority Area: State Program Approval
(State Fund Solvency)
Region 7 Kansas
Project: .Assistarce to Region 7 •- K.insas State Fund
Purpose s as: To pro ide information for EPA Region 7 and the State to make a
determination of solvency of the Kansas State Fund for the purpose of State Pro am
Approval.
Scope of Work: Met with EPA and State staff to clarify State’s needs, explained
ana1y cal methodology, discussed data needs, and collected available informadon.
Projected number and se.venty of releases, estimated cleanup costs of releases in Kansas,
evaluated third-party liability costs, evaluated financial soundness of the fund, forecasted
funding requirements, performed sensitivity analyses, and delivered presentation and
written report.
Product(s): Final report and presentation.
Improvements and Barriers: For information about improvements this project
achieved or barriers encountered, contact the Regional Work Assignment Manager listed
below.
Regional Work Assignment Manager: Alma Moreno, (913) 551-7055
Contractor Work Assignment Manager: ICF, Inc., Jim Dickson, (703) 934-3617
Work Assignment No. 14
Level of Effort: Hours 500
Dollars $29,999
Period of Performance: 5/31/91 - 7/31/91

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1991 Regional State Improvement Project
National Priority rea: Correcti e .kction
Region 7 Missouri
Project: Streamline and Improve LDNRs Correcn e Acnon Process Udlizing the LUST
Trust Fund
Purpose was: To assist Missouri in identitying, quantifying, and eliminating waste in
its corrective action work process and to document improvements.
Scope of Work: Flowcharted existing practices, identified opportunities for
improvement, assisted State in developing and implementing CA process improvements,
determined measures of quality and performance.
Product(s): Flow charts, documentation of file searches, summary of opportunities for
improvements, and final summary report.
Improvements and Barriers: For information about improvements this project
achieved or barriers encountered, contact the Regional Work Assignment Manager listed
below.
Regional Work Assignment Manager: James Clemenson, (913) 551-7055
Contractor Work Assignment Manager: MRI; Al Nugent, (703) 671.0400
Work Assignment No. 26
Level of Effort: Hours 833
Dollars $49,989
Period of Performance: 3/5/91 - 9/30/91

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1991 Regional State Improsement Project
National Priority Area: Corrective Action
Region 7 - Iowa
Project: Priority Ranking System for the Cleanup of LUSTs
Purpose is: To assist [ DNR in developing a new priority ranking system which
appropriately reflects the recent changes in lowas UST legislanon, and which adequately
differentiates between sites.
Scope of Work: Develop understanding of State needs, identify priority ranking system
criteria, develop draft modified ranking system, review and test draft system, modify and
reassess priority ranking system. Also includes automation and documentation of the
priority ranking system.
Product(s): Priority ranking criteria, ranking system, automation and documentation of
ranking system.
Improvements and Barriers: For information about improvements this project
achieved or barriers encountered, contact the Regional Work Assignment Manager listed
below.
Regional Work Assignment Manager: Lee Daniels, (913) 551-7256
Contractor Work Assignment Manager: ICF, Inc., Jim Dickson (703) 934-3617
Work Assignment Nos. 16 (1991) and 26 (1992)
Level of Effort: Hours 254
Dollars $25,296
Period of Performance: 9/23/9 1 - 9/30/92

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1991 Regional State Impro ement Project
National Priority Area: Miscellaneous
(Compliance Enforcement)
Region 6
Project: New Mexico Field Citation Docket
Purpose vvas: To assist Region 6 and New Mexico in streamlining and increasing the
efficiency of the State’s expedited enforcement (Field Citanon) program.
Scope of Work: Conducted a management study of the organization and functions of
the New Mexico’s UST Bureau database support staff and developed a docket system to
track and document UST field citations and penalty monies received.
Product(s): Report of findings, field citation docket system.
Improvements and Barriers: For information about improvements this project
achieved or barriers encountered, contact the Regional Work Assignment Manager listed
below.
Regional Work Assignment Manager: Jim Duck, (214) 655-6755
Contractor Work Assignment Manager: ICF, Inc., Susan Hughes, (703) 934-3069
Work Assignment No. 60, including Modification 1
Level of Effort: Hours 385
Dollars $24,926
Period of Performance: 7/30/91 - 5/24/92

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1991 Regional State Improvement Project
National Priority Area: Miscellaneous
(Data Management/Program Development)
Region 6 Arkansas
Project: Arkansas Program Development
Purpose was: To evaluate the Arkansas UST database and to provide recommendations
on needed i.mprovements.
Scope of Work: Evaluated existing data management system which resides on a DEC
VAX computer; presented findings and range of potential improvement options; reviewed
report to determine which recommendations to implement.
Product(s): Evaluation findings document; interim and final reports.
Improvements and Barriers: For information about improvements this project
achieved or barriers encountered, contact the Regional Work Assignment Manager listed
below.
Regional Work Assignment Manager: John Cernero, (214) 655-6755
Contractor Work Assignment Manager: ICF, Inc., Susan Hughes, (703) 934-3069
Work Assignment No. 79, including Modification 1
Level of Effort: Hours 235
Dollars $18,339
Period of Performance: 6/10/91 5/24/92

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1991 Regional State Improvement Project
National Priority Area: State Program Approval
Region 6
Project: State Program Assistance Review
Purpose as: To assist Region 6 in conducting a technical analysis of the UST
regi.ilauons in all Region 6 States in order to augment the quality and assurance of State
Program Approval applications.
Scope of Work: Compared Region 6 State’s UST technical regulations to the
corresponding Federal regulations found in 40 CFR Part 280, Subparts A through 0,
Sections 280.10 through 280.74., Summarized findings.
Product(s): Written memorandum summarizing results of comparison study.
Improvements and Barriers: For information about improvements this project
achieved or barriers encountered, contact the Regional Work Assignment Manager listed
below.
Regional Work Assignment Manager: Jim Duck. (214) 655-6755
Contractor Work Assignment Manager: ICF, Inc., Jennie DeVeaux,
(703) 934.3683
Work Assignment No. 59, including Modification 1
Level of Effort: Hours 180
Dollars $10,937
Period of Performance: 5125/91 - 12/31/91

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1991 Regional State lmpro’ement Project
National Priorit’v .‘ rea: Leak Detection Enforcement
Region 6 - Texas
Project: Leak Detection Systems Seminars
Purpose s%as: To provide uaining in leak detection systems to Texas Water Commission
(TWC) UST personnel for the purpose of lrlcreasLng and improving their knowledge of
leak detection systems and to better focus theu efforts on compliance, including leak
detecnon enforcement.
Scope of Work: Conducted two 1-day seminars for T\VC personnel. Activities
included managing logistics for seminars and doing pre-tests and post-tests during
seminars.
Product(s): Training seminars, pre-tests and post-tests.
Improvements and Barriers: For information about improvements this project
achieved or barriers encountered, contact the Regional Work Assignment Manager listed
below.
Regional Work Assignment Manager: Joe Womack, (214) 655-6755
Contractor Work Assignment Manager: MRI; Al Nugent, (703) 671-0400
Work Assignment No. 45
Level of Effort: Hours 100
Dollars $10,144
Period of Performance: 10/28/91 - 2/28/92

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1991 Regional State Impro%ement Project
National Priority Area: Leak Detection Enforcement
Region 6 Texas
Project: Leak Detection Enforcement Campaign
Purpose cas: To assist the Texas Water Commission (TV/C) Petroleum Storage Tank
Division (PSTD) in upgrading its leak detection enforcement program by conducting
mailings and related follow-up activities, and in obtaining OSHA health and safety training
for personnel involved in on-site activities.
Scope of Work: Conducted leak detection enforcement mailings to facilities having
USTs installed before 1964 and between 1965-69; reviewed results; conducted follow-up
mailing; conducted two OSHA health and safety training seminars.
Product(s): Initial letter, follow-up letter, enforcement documents, OSHA health and
safety training seminars.
Improvements and Barriers: For information about improvements this project
achieved or barriers encountered, contact the Regional Work Assignment Manager listed
below.
Regional Work Assignment Manager: Joe Womack, (214) 655-6755
Contractor Work Assignment Manager: ICF, Inc., Walter Gawlak,
(703) 934-3071
Work Assignment No. 89 Note: Work is being completed under Work
Assignment No. 114 with a Level of Effort of 227 Hours and a period of performance
from 6/1/92 to 8131/92. This information sheet covers work completed under WA 89 only.
Level of Effort: Hours 600
Dollars $37,180
Period of Performance: 10/18/91 - 5/24/92

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1991 Regional State Improvement Project
National Priority Area: Corrective Action Streamlining
Region 6 • Louisiana
Project: Su eamluiing Louisianas LUST Corrective Action Process
Purpose was: To assist Louisiana in sa eamlining corrective action (CA) activities which
included identifying and quantifying waste in the States process; identifying various
causes for the waste and potential solutions (or impro emetic projects) which could lead to
an improved CA process.
Scope of Work: Delivered presentation of basic TQM principles to State staff,
flowcharted existing process, established baseline performance, iden fied improvement
opportunities, and provided draft summary report of results.
Product(s): Final flowchart, final list of measures used to establish baseline
performance, summary of baseline performance data, list of problems, list of potential
improvements, draft summary report of results.
Improvements and Barriers: For information about improvements this project
achieved or barriers encountered, contact the Regional Work Assignment Manager listed
below.
Regional Work Assignment Manager: Lynn Dail, (214) 655-6755
Contractor Work Assignment Manager: MRI; Al Nugent, (703) 671-0400
Work Assignment No. 41
Level of Effort: Hours 540
Dollars $37,163
Period of Performance: 8/5/91 - 2/28/92

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1991 Regional State Improvement Project (Reprogrammed)
National Priority Area: Miscellaneous
(Communications)
Region 5 - Wisconsin
Project: University of Wisconsin Technical Newsletter
Purpose was: To provide funds to the University of Wisconsin School of Engineering
for publishing a technical UST newsletter.
Scope of Work: N.A.
Product(s): Newsletter
Improvements and Barriers: For information about improvements this project
achieved or barriers encountered, contact the Regional Work Assignment Manager listed
below.
Regional Work Assignment Manager: Gerry Phillips, (312) 886-6159
Contractor Work Assignment Manager: N.A.
Change Request dated 7/23/91
Level of Effort: Hours
Dollars $40,000
Period of Performance: N.A.

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1991 Regional State Impro ement Project
National Priority Area: Miscellaneous
(Data Management - TIPS Project)
Region 5 - Michigan
Project: Michigan UST Regisuauon and Recordkeeping
Purpose s%as: To assist the State n updating its UST regisu-ation database and to
support its response to release reports and associated recordkeeping.
Scope of Work: Comparison review of paper registration forms with database,
telephone follow-up with owners/operators repornng suspected releases, handling of 30-
day notice activity, arid checking of accuracy of site assessment reports.
Product(s): None
Improvements and Barriers: For infor!:nation about improvements this project
achieved or barriers encountered, contact the Regional Work Assignment Manager listed
below.
Regional Work Assignment Manager: Arturo Cisneros, (312) 886-6159
Contractor Work Assignment Manager: ICF, Inc.; Walter Gawlak,
(703) 934-3071
Work Assignment No. 17, including Modification 1
Level of Effort: Hours 700
Dollars S 14,540
Period of Performance: 6/5/90 - 12/31/90

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1991 Regional State Improvement Project
National Priority Area: Miscellaneous
(UST Compliance for 0/Os)
Region 5 Michigan
Project: Michigan Compliance Guidebook
Purpose sas: To produce a compliance guidebook for owners and operators of UST
systems in Michigan.
Scope of Work: Designed, edited, and formatted guidebook and produced a brochure
based on text of the guidebook.
Product(s): Compliance guidebook and companion brochure.
Improvements and Barriers: For information about improvements this project
achieved or barriers encountered, contact the Regional Work Assignment Manager listed
below.
Regional Work Assignment Manager: Arturo Cisneros, (312) 886-6159
Contractor Work Assignment Manager: ICF, Inc.; Susan Hughes, (703) 934-3069
Work Assignment No. 32
Level of Effort: Hours 280
Dollars $15,285
Period of Performance: 9/4/90 - 12/31/90

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1991 Regional State [ mpro ement Project (Reprogrammed)
National Priority Area: Miscellaneous
(Compliance)
Region 4 Georgia
Project: Mass Nlailtng
Purpose was: To asstst State tn converting its UST-DMS in order to conduct a mass
mailing to 6100 tank facilines regarding nonñcation of compliance deadlines.
Scope of Work: See above
Product(s): Mass mailing
Improvements and Barriers: For information about improvements this project
achieved or barriers encountered, contact the Regional Work Assignment Manager listed
below.
Regional Work Assignment Manager: John Mason, (404) 347-3866
Contractor Work Assignment Manager: r4.A.
Change Request dated 6/14/9 1
Level of Effort: Hours N.A.
Dollars $20,000
Period of Performance: 1991

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1991 Regional State Improvement Project
National Priority Area: State Program Approval
Region 4 Alabama
Project: State Program Approval Support
Purpose s: To assist Alabama in developing its State Program Approval documents
for the US program (regulatory package and a draft approval package).
Scope of Work: Written support to the State of draft approval package consistent with
requirements in 40 CFR Part 281 20 including drafts of technical language for the elements
specified in 40 CFR Parts 281-21 through 281.25.
Product(s): Draft regulatory package and State Program Approval application package
arid list of issues that could hinder timely approval of the State UST program.
Improvements and Barriers: For information about improvements this project
a hieved or barriers encountered, contact the Regional Work Assignment Manager listed
below.
Regional Work Assignment Manager: Helen Lunsford, (404) 347-3866
Contractor Work Assignment Manager: ICF, Inc., Susan Hughes, (703) 934-3069
Work Assignment Nos. 48; 68, including Modifications 1 and 2
Level of Effort: Hours 350
Dollars $21,959
Period of Performance: 3/28/9 1 - 5/24/92

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1991 Regional State Impro%ement Project
National Priority Area: Corrective Action/Leak Detection
Region 4 - North Carolina
Project: Improvement Projects to Streamline the North CaroLina Corrective Action
Process
Purpose was: To assist NC in identifying its initial corrective acuon work process and
associated performance and to document improvements.
Scope of Work: 1) Streamlined corrective action initial response, evaluated costs and
benefits of continued use of the States computer system (SIPS) versus conversion to an
UST specific software (Revelation), and 2) presented two-day workshop on leak detection
for State inspectors.
Product(s): Flow charts, cost benefit analysis report, workshop agenda, student
handbook, workshop, evaluation.
Improvements and Barriers: For information about improvements this project
achieved or barriers encountered, contact the Regional Work Assignment Manager listed
below.
Regional Work Assignment Manager: Jon IsbeU, (404) 347-3866
Contractor Work Assignment Manager: MRI; Al r4ugent, (703) 671-0400
Work Assignment No. 38 (1991); Work Assignment No. 47 (1992)
Level of Effort: Hours 272 (1991) 500 (1992)
D llars $18,884 (1991) $33,176 (1992)
Period of Performance: 7/30/91 - 2/28/93 (inclusive)

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1991 Regional State lmpro%ement Project (Reprogrammed)
National Priority Area: Correcti%e Action
Region 4 North Carolina
Project: Evaluation of Pump and Treat Systems
Purpose is: To assist North Carolina in determining when, where, and to what cleanup
levels pump and treat technology is appropriate and if other methods may be more cost
effective.
Scope of Work: Gather information on the expected time to remediate a typical gasoline
release by the pump and treat method and on the life cycle costs for this technology.
Information will be used to identify the most environmentally sound and cost effecdve
methods for remediation of hydrocarbon contaminated groundwater.
Product(s): Background survey, statistical analysis, criteria, cost estimates, preliminary
risk assessment, and a final report.
Improvements and Barriers: For information about improvements this project
achieved or barriers encountered, contact the Regional Work Assignment Manager listed
below.
Regional Work Assignment Manager: Jon Isbell, (404) 347-3866
Contractor Work Assignment Manager: Robert C. Borden, North Carolina State
University, (919) 515-7665
Change Request dated 4/28/92
Level of Effort: Hours
Dollars $20,000
Period of Performance: N.A.

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1991 Regional State Improvement Project
National Priority Area: Corrective Action
- Region 4
Project: Soil Vapor Sur ey Workshop
Purpose as: To gi’ e staff in Region 4 States knowledge in the techniques of soil
vapor surveying so they can rapidly evaluate a contaminated site, investigate the site, and
monitor and nack remediation effectiveness.
Scope of Work: Assisted Region 4 in conducting workshop for selected employees
from eight State UST program offices. Delivered previously developed five-day workshop
and provided logistical support.
Product(s): Training presentation, course outline, agenda, student notebook, soil vapor
collection kits, evaluation.
Improvements and Barriers: For information about improvements this project
achieved or barriers encountered, contact the Regional Work Assignment Manager listed
below.
Regional Work Assignment Manager: John Mason, (404) 347-3866
Contractor Work Assignment Manager: MRI; Al Nugent, (703) 671-0400
Work Assignment No. 37
Level of Effort: Hours 218
Dollars $28,585
Period of Performance: 7/3/91 - 2/28/92

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1991 Regional State 1mpro ement Project
National Priority Area: Corrective Action
Region 8 Montana
Project: Streamlining Montana’s Corrective Action Process
Purpose s as: To streamline the Staes corrective action process by helping to identify,
quantify, and eL rninae waste in its process.
Scope of Work: Flowcharted existing process, identified opportunities for
improvement, implemented lmpro’dements and presented improvements at a Contractor’s
Day event. Also provided logistics for this event. Improved 1 .1ST data management
system.
Product(s): Flow charts, Contractor’s Day, and modification of data management
system.
Improvements and Barriers: For information about improvements this project
achieved or barriers encountered, contact the Regional Work Assignment Manager listed
below,
Regional Work Assignment Manager: Richard Blodnick, (406) 449-5414
Contractor Work Assignment Manager: ICF, Inc.; Susan Hughes, (703) 934-3069
Work Assignment Nos. 51 and 85 (including Modifications 1 and 2)
Level of Effort: Hours 70 240
Dollars $4,262 $15,938
Period of Performance: 4/30/91 5/24/92

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1991 Regional State lmpro’ ement Project
National Priority Area: Correcthe Action
Region 8 - Utah
Project: S eamlinirg L”tahs Corec::ve Action Process
Purpose s%as: To assist State in developing flow charts of its corrective action (CA)
process hich could be used in a variety of efforts to sti eamline the process. Also assisted
Utah in preparing for a Consultant’s Day’ during which State staff conveyed CA program
requirements and procedures to owners/operators and conu’actors who perform activities
required in Utah’s process.
Scope of Work: Flowcharied existing processes, identified opportunities for
improvements, assisted State in developing Consultant’s Day presentation and provided
logistical support.
Product(s): Summary of meetings, draft and final flow charts, comments on presenters’
outlines, invitations to consultants, camera-ready presentation materials.
Improvements and Barriers: For information about improvements this project
achieved or barriers encountered, contact the Regional Work Assignment Manager Listed
be low.
Regional Work Assignment Manager: Debbie Ehlert, (303) 293-1514
Contractor Work Assignment Manager: MRI; Al Nugent, (703) 671-0400
Work Assignment No. 24
Level of Effort: Hours 400
Dollars $25,202
Period of Performance: 7/31/91 - 2/29/92

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1991 Regional State Improvement Project
National Priorit Area: Leak Detection Enforcement
Region S South Dakota
Project: South Dakota Field Cttatton Program
Purpose: To assLst the State ifl developing an enforcement program using a form of field
citation.
Scope of Work: Developed a standard operating procedures manual for conducting
inspections which include warning tickets. Manual defines types of violations to be
ticketed and includes a nacking System to follow up on inspecuons and rickets. Developed
and produced a “camera ready warning ticket.
Product(s): Standard Operating Procedures Manual, warning ticket.
Improvements and Barriers: For inforrriation about improvements this project
achieved or barriers encountered, contact the Regional Work Assignment Manager listed
below.
Regional Work Assignment Manager: Leslie Zawacki, (303) 293-1665
Contractor Work Assignment Manager: ICF, Inc., Walter Gawlak
(703) 934-3071
Work Assignment No. 81
Level of Effort: Hours 230
Dollars $12,691
Period of Performance: 9/16/91 - 2/29/92

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1991 Regional State Impro ement Project
National Priority Area: State Program Approval
Region 8 South Dakota
Project: SPA Assistance for South Dakota
Purpose was: To pros ide analvucal support to South Dakota in developir g a final draft
SPA package for submission to Region 8.
Scope of Work: Assured consistency with 40 CFR Part 281 20 and 281.21 through
.25, complenon of rrussing program requirements; e g. written enforcement procedures.
Product(s): Draft regulatory package and SPA application package.
Improvements and Barriers: For information about improvements this project
achieved or bamers encountered, contact the Regional Work Assignment Manager listed
be row
Regional Work Assignment Manager: Maureen Doughtie, (303) 293-1514
Contractor Work Assignment Manager: ICF, mc.; Susan Hughes, (703) 934-3069
Work Assignment No. 12
Level of Effort: Hours 300
Dollars $18,613
Period of Performance: 6/19/90 - 4/30/91

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199 [ Regional State Improvement Project
National Priority Area: Miscellaneous
(Inst ilation I Re mc v a I)
Region 8 Montana
Project: TIPs -- Tank Installation and Removal Training Course
Purpose was: To train UST installers and removers to meet State criteria for licensing.
Scope of Work: Conducted four 1-1/2 day uaining courses on correct installation and
removal procedures in four cities in Montana: Billings, Glasgow, Helena, and Missoula.
Product(s): Training seminars.
Improvements and Barriers: For information about improvements this project
achieved or barriers encountered, contact the Regional Work Assignment Manager listed
below.
Regional Work Assignment Manager: Debbie Ehlert, (303) 293-1514
Contractor Work Assignment Manager: ICF, Inc.; Susan Hughes, (703) 934-3069
Work Assignment No. 35
Level of Effort: Hours 110
DoLlars $15,749
Period of Performance: 8/6/90 - 5/24/9 1
1991 Regional State Improvement Project

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ationaI Priority Area: Miscellaneous
(Installation Removal)
Region 8 - North Dakota
Project: TIPs --Tank Enstallation arid Rerno al Training Course
Purpose sas: To tram UST installers and removers to enable them to participate in a
volunteer certification program.
Scope of Work: Conducted four 1-1/2 day training courses on correct installation and
removal procedures in four cities in North Dakota. Bismarck, \Villistori, Devil’s Lake, and
Fargo.
Product(s): Training seminars.
Improvements and Barriers: For information about improvements this project
achieved or barriers encountered, contact the Regional Work Assignment Manager listed
below.
Regional Work Assignment Manager: Debbie Ehlert, (303) 293-1514
Contractor Work Assignment Manager: [ CF. Inc.; Susan Hughes, (703) 934-3069
Work Assignment No. 36
Level of Effort: Hours [ 10
Dollars $15,956
Period of Performance: 8/6/90 - 5/24/91

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1991 Regional State Impro ement Project
National Priority Area: Correctise Action
Region 9 - Hawaii
Project: Hawaii Risk Assessment
Purpose is: To assist the State in idenuf ing low-risk LUST sites and enable Hawaii to
reorganize its current priority ran.k ng system.
Scope of Work: Develop protection margins within a designated area of southeastern
Oahu; perform generalized risk assessment; develop spreadsheet which generates cleanup
levels for the identified sites, write final report.
Product(s): Protection margin model, risk assessment, spreadsheet, final report.
Improvements and Barriers: For information about improvements this project
achieved or bamers encountered, contact the Regional Work Assignment Manager listed
below.
Regional Work Assignment Manager: Larry Woods, (415) 744-2078
Contractor Work Assignment Manager: ICF. Inc., Susan Hughes (703) 934-3069
Work Assignment No. 110
Level of Effort: Hours 350
Dollars $25,000
Period of Performance: 5/22/92 - 3/1/93

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1991 Regional State Impro ement Project
ational Priorit . rea: Leak Detection Enforcement
Region 9 - Ha saii
Project: Ha au Leak Detection Er forcement
Purpose s%as: To pro ide assistar e ii procunng contractor support to enable the State
to respond to self certification forms completed by the regulated community listing methods
being used to detec leaks
Scope of Work: Entered response data into data base, prepared arid mailed follow-up
correspondence to non-respondents, those with incomplete submissions, and potential
violators of leak detection requuements.
Product(s): An accounting system to track 1,000 forms mailed, a review and analysis of
compliance status of returned forms, an identification of non-responders, an update of
forms in data base, management of follow-up effort.
Improvements and Barriers: For information about improvements this project
achieved or barriers encountered, contact the Regional Work Assignment Manager listed
below.
Regional Work Assignment Manager: Larry Woods, (415) 744-2079
Contractor Work Assignment Manager: ICF, Inc.; Walter Gawlak,
(703) 934-3071
Work Assignment Nos. 46 and 53 (including Modification 1)
Level of Effort: Hours 400 190
Dollars $17,949 $6,415
Period of Performance: 3/8/91 - 9/30/91

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1991 Regional State Impro%ement Project
National Priorit’ Area: Correctj e Action
Region 9 - San Diego County
Project: Streamlining County s Coi ecti e .A uon Process
Purpose %%as: To assist San Diego County in identif>ing its corrective action process
and associated performance and :. find opportunities for streamlining the process.
Scope of Work: One-day presentation to County and State staff on basic concepts of
total quality management and co -ective act:on streamlining; documentadon of existing
process; establishment of baseline performance; idenuticanon of improvement
opportunities; and, summary of results
Product(s): Flow charts, list of measures used to establish baseline performance, data
summary showing baseline performance, list of improvement opportunides and their
causes, draft list of potential improvement projects, draft summary report.
Improvements and Barriers: For inforrriauon about improvements this project
achieved or barriers encountered, contact the Regional Work Assignment Manager listed
below.
Regional Work Assignment Manager: Kim Savage, (415) 744-2075
Contractor Work Assignment Manager: MRI; Al N ugenc, (703) 671-0400
Work Assignment No. 36
Level of Effort: Hours 420
Dollars 530,270
Period of Performance: 7/30/92 - 1/31/92

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1991 Regij al State lmpro%ement Project
National Priority Area: Corrective Action
Region 9 Ne%ada
Project: Fair Market Value of Ne ada Cleanup Costs
Purpose s as: To create a unit price list to be used in making estimates of costs for
cleanups
Scope of Work: Data collection of cost estimates on contaminated soil removal, in-situ
contaminated soil ueatmenc, free product removal, dissolved product removal, and in-situ
dissolved product u-eacment. Estimate of the price per cubic yard of soil removal and
development of the unit price list.
Product(s): C’ t Price List
Improvements and Barriers: For information about improvements this project
achieved or barriers encountered, contact the Regional Work Assignment Manager listed
below.
Regional Work Assignment Manager: Larry Woods, (415) 744-2079
Contractor Work Assignment Manager: ICF, Inc.; Susan Mayer, (703) 934-3782
Work Assignment 4o. 34
Level of Effort: Hours 200
Dollars $12,339
Period of Performance: 7/18/90 - 5/24/91

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1991 Regional State Improvement Project
National Priority Area: Miscellaneous
Health and Safety Training)
Region 9 - Arizona
Project: OS I-L.A Health and Safety 40 Hour Training
Purpose as: To provide 40 hour OSHA Health and Safety course for UST inspectors
in Arizona, May 13-17, 1991.
Scope of Work: Oversight of training seminar, provision of all logistical arnngements
including audiovisual equipment, personal protec ve equipment and monitoring equipment.
Product(s): Training seminar delivered by Derrick Johnson of the Environmental
Training rnsuwte (ETI), sudent health and safety notebook.
Improvements and Barriers: For information about improvements this project
achieved or bamers encountered, contact the Regional Work Assignment Manager listed
below.
Regional Work Assignment Manager: Pat Ekiund, (415) 744.2079
Contractor Work Assignment Manager: ICF, Inc.; Susan Hughes, (703) 934.3069
Work Assignment Nos. 47 and 54
Level of Effort: Hours 137 130
Dollars $10,000 $9,301
Period of Performance: 3/26/91 - 5/24/91

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1991 Regional State Impro ement Project
\ational Priority Area: \liscellaneous
(Compliance Inspections)
Region 9 Arizona
Project: UST. Inspector Training
Purpose s as: To prepare Arizona saff to inspect UST systems for corrosion
protection, spill and o ert ll protection, proper installation, leak detection, upgrades, and
owner/operator record.keeping.
Scope of Work: Developed and presented three day Inspector Workshop for newly
hired UST inspectors in Arizona.
Product(s): Draft outline of workshop agenda, inspector notebook, presentation of
training, evaluation form.
Improvements and Barriers: For information about improvements this project
achieved or barriers encountered, contact the Regional Work Assignment Manager listed
below.
Regional Work Assignment Manager: Trish Komari, (415) 744-2076
Contractor Work Assignment Manager: MRI; Al Nugent, (703) 671-0400
Work Assignment No. 33
Level of Effort: Hours 160
Dollars $15,362
Period of Performance: 5/9/91 - 6/28/91

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1991 Regional State 1mpro ement Project
ationaI Priority Area: Miscellaneous
(LSTLLST State Conference)
Region 9 California
Project: Sta : e LST/LUST Conference
Purpose %as: To assist EPA Reg:on arid the State of California in organizing and
conducdng a state s ide conference on UST/LUST issues
Scope of Work: Conference support including managing exhibition, regisuacion,
logisucs, program booklet, and post-conference follow-up
Product(s): Conference, program booklet.
Improvements and Barriers: For information about improvements this project
achieved or barriers encountered, contact the Regional Work Assignment Manager listed
below.
Regional Work Assignment Manager: M. Kim Savage, (415) 744-2075
Contractor Work Assignment Manager: LCF, Inc.; Susan Hughes, (703) 934-3069
Work Assignment No. 55 (including Modification 1)
Level of Effort: Hours 275
Dollars $17,485
Period of Performance: 5/24/91 - 1/31/92

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1991 Regional State Impro ement Project
National Priority Area: Miscellaneous
I Inspections)
Region 9 Ha aii
Project: Prototype P or.tv S siem for Ha aii
Purpose was: To .issist Ha’. au in de elop ng a system for setting priorities for UST
inspections, based on combinations of tank and site location risk factors for each site.
Scope of Work: Developed computer program for facility inspection priority ranking
using UST DMS; developed groundv ater resource related overlays for 7 5 minute USGS
quad maps of Hawaii.
Product(s): Facility inspection priority ranking computer program; 7.5 minute USGS
quad maps of Hawaii
Improvements and Barriers: For information about improvements this project
achieved or barriers encountered, contact the Regional Work Assignment Manager listed
below.
Regional Work Assignment Manager: Pat Eklund, (415) 744-2079
Contractor Work Assignment Manager: [ CF, Inc., Barry Galef, (703) 934-3064
Work Assignment Nor. 39 and 82
Level of Effort: Hours 180 33
Dollars S1l,837 $2,044
Period of Performance: 9/12/90 - 5124/91 and 7/16/91 - 10/31/91

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1991 Regional State 1mpro ement Project
\ational Priority Area: Miscellaneous
(Database \lanagement)
Region 9 - e ada
Project: Nevada UST Database Management System
Purpose as: To provide technical support and training to the State on the UST-DMS.
Scope of Work: Entered backlog, updated records, developed written
telecommunications procedures for ‘Carbon Copy, developed module “Petroleum
Insurance Fund’ for database master menu.
Product(s): Printouts, telecommunications procedures, telecommunications software:
“Carbon Copy,” training sessions for Petroleum Insurance Fund module and Carbon
Copy.
Improvements and Barriers: For information about improvements this project
achieved or barriers encountered, contact the Regional Work Assignment Manager listed
below.
Regional Work Assignment Manager: Bonnie Binkley, (415) 744-2094
Contractor Work Assignment Manager: [ CF, Inc., Susan Hughes, (703) 934-3069
Work Assignment No. 52
Level of Effort: Hours 367
DolLars $15,000
Period of Performance: 5/25191 - 5/24/92

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1991 Regional State lmpro ement Project
National Priority Area: Miscellaneous
(State Fund Tracking)
Region 9 Nesada
Project: Nevada Cinms Tracking Sv tem
Purpose was: To modify a claims acking system developed by the State of Louisiana
for use in Nevada.
Scope of Work: Modified procedures for entering and updating claims data, provided
database for ‘preapproved” sites, modified data enn y for background informadon, revised
roudnes to create and print reports, managed information, and prepared documentation.
Product(s): Draft version of system, draft documentation, final documentation, and final
version of system.
Improvements and Barriers: For information about improvements this project
achieved or barriers encountered, contact the Regional Work Assignment Manager listed
below.
Regional Work Assignment Manager: Larry Woods, (415) 744-2078
Contractor Work Assignment Manager: ICF, Inc., Susan Hughes, (703) 934-3069
Work Assignment No. 17
Level of Effort: Hours 400
Dollars $24,993
Period of Performance: 7/18/90 - 5/24/9 1

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1991 Regional State 1mpro ement Project
National Priority Area: Corrective Action
Region 10 - laska
Project: Corrective Acnon S u eamlining
Purpose was: To assist State in identifying opportunities for improving its corrective
action (CA) program and provide information to agency personnel regarding effectiveness
of CA technologies in the Alaskan clLrrlate so chat proposed technologies could be better
evaluated.
Scope of Work: Flowcharted present CA process, identified opportunities for
improvement and assessed cleanup methodologies including effecnveness in cold climates.
Product(s): Flowcharts and other meetirg documentation, report of proposed improve-
ments, and report assessing cleanup methodologies.
Improvements and Barriers: For information about improvements this project
achieved or barriers encountered, contact the Regional Work Assignment Manager listed
below.
Regional Work Assignment Manager: Joan Cabreza, (206) 553-1643
Contractor Work Assignment Manager: MRI; Al Nugent, (703) 671-0400
Work Assignment No. 31
Level of Effort: Hours 945
Dollars $69,937
Period of Performance: 5/8/91 - 2/28/92
1991 Regional State Improvement Project (Reprogrammed)

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1991 Regional State 1mpro ement Project
National Priority Area: Correcti’ ,e Action
Region 10 . Washington
Project: \Vashi g on CQnSUit2.flt Day
Purpose as: To ist in presert ng and di errnnating guidance documents on the
States tecr n:cal tandards and cLeanup ruies ir.c uding a con actor certificatton pro am,
assistance program for rural areas, and tar k permitting system.
Scope of Work: Meeting arrangements (logistics), agenda, publicity/regisuation,
conduct of Consultants Day.
Product(s): As related to the event.
Improvements and Barriers: For information about improvements this project
achieved or bamers encountered, contact the Regional Work Assignment Manager listed
below.
Regional Work Assignment Manager: Denise Baker, (206) 553-1643
Contractor Work Assignment Manager: ICF, Inc.; Ken Jennings, (206) 922-8203
Work Assignment Nos. 49 and 73
Level of Effort: Hours 64 68
Dollars $3,161 $7,037
Period of Performance: 4/25/91 12/31/92 (inclusive)

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1991 Regional State Impro%ement Project
National Priority Area: Correcthe Action
iSite ssessment)
Region 10 Washington
Project: TIPs - \Va hLngton Site .As essment
Purpose as: To assist State in developing site check and site assessment guidelines for
use by contractors for tank closure and ‘ eriticauon of a suspected release in lieu of a
contractor licensing program.
Scope of Work: Reviewed Regional guidance documents, developed draft and final
guidance procedures and site assessment checklist, and prepared examination questions.
Product(s): Draft and final guidance procedures and site assessment checklist.
Improvements and Barriers: For information about improvements this project
achieved or barriers encountered, contact the Regional Work Assignment Manager Listed
below.
Regional Work Assignment Manager: Denise Baker, (206) 553-1643
Contractor Work Assignment Manager: ICF, Enc.; David Hanson, (206) 889-1000
Work Assignment No: 21
Level of Effort: Hours 650
Dollars S38,505
Period of Performance: 6/7/90 - 4/30/9 1

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1991 Regional State lmpro%ement Project
National Priority Area: Leak Detection Enforcement
Region 10 Washington
Project: Leak De:ect on Mon tor.ng and Compliance Training
Purpose s as: To pro ide training for new staff from States in the Region in leak
detection monitoring methods, terminology and compliance procedures.
Scope of Work: Delivery of 4-day training course.
Product(s): Student, and instructor manuals.
Improvements and Barriers: For information about improvements this project
achieved or barriers encountered, contact the Regional Work Assignment Manager listed
below.
Regional Work Assignment Manager: Joan Cabreza, (206) 553-1643
Contractor Work Assignment Manager: University of Washington
OUST Training Form dated 7/2/91
Level of Effort: Hours 28
Dollars $25,000
Period of Performance: 7/29/91 8/1/91

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1991 Regional State Improvement Project (Reprogrammed)
National Priority Area: Miscellaneous
(Data Management Compliance Tracking)
Region 10 - Oregon
Project: Compliance Tracking System Development
Purpose was: To develop a compliance acking system that links existing databases in
Oregons UST and LUST headquarters and five regional offices.
Scope of Work: See above.
Product(s): Compliance nacking system
Improvements and Barriers: For information about improvements this project
achieved or barriers encountered, contact the Regional Work Assignment Manager listed
below.
Regional Work Assignment Manager: Joan Cabreza, (206) 553-1643
Contractor Work Assignment Manager: NA.
Change Request dated 1/9/92
Level of Effort: Hours N.A.
Dollars $30,000
Period of Performance: N.A.

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UNITED STATES ENVIRONMENTAL PROTECflON AGENCY
WASHINGTON, D.C. 20480
OFFICE OF
SCUD WASTE AND EMERGENCY RESPONSE
L4N 30 1992
MEMORANDUM
SUBJECT: Approval of FY92 Regional State Improvement Projects
FROM: J -jDavid Ziegele, Directorc4 2 W&. ..
Office of Underground Storage Tanks
TO: UST/LUST Regional Branch Chiefs, Regions 1—10
UST/LUST i egional Program Managers, Regions 1-10
First, let me thank the Regional Program Managers for
submitting proposals for FY92 Regional State improvement projects
on time and providing generally well—considered concepts for
proposals. We look forward to a lot of good work resulting from
this year’s revised process for proposing and reviewing Regional
State improvement projects.
This memorandum and its attachments constitute our
understanding -— based on phone conversations with each Regional.
Program Manager -- of the number and type of Regional State
improvement projects approved for FY92 funding (see Attachment
1). Attachment 1 also addresses the status of uncompleted FY91
projects and deferred FY91 monies.
With your help, we are continuing to improve the overall.
process of putting FY92 projects into action. In that respect, I
especially want to call your attention to the several important
general items that follow.
Necessity of Not Exceedin the $100,000 Limit
Each Region has an FY92 funding limit of $100,000. If us
have approved projects that total more than that limit, it is
your responsibility to cut out excess projects or limit fundinq
levels so that the Region’s total planned expenditures do not
exceed $100,000.
UST/SPA/T/92—l

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2
Necessary Language for Inclusion in Work Assignments and
Contracts
The purpose of the boilerplate language below is to notify
contractors that OUST will not pay for expenditures that exceed
approved work plan limits unless approved in writing by the
project officer or contract officer. The following language must
appear in each work assignment (or contract) for a Regional State
improvement project:
“Under no circumstances shall the contractor undertake work
beyond the specified scope (hours or dollars) of this
work assignment (or contract) without the express written
consent of the project officer or contract officer. The
Office of Underground Storage Tanks will not be responsible
for, nor will it pay the contractor for, any costs other
than those specifically authorized by the approved work
plan.”
In addition to Regional projects, this boilerplate language is
being added to HQ w’rk assignments and contracts.
Next Ste ss Moving from Proposal A roval to Work Plan Approval
The events that follow notification of project approval are
shown in Attachment 2. By following the steps captured in
Attachment 2, you can secure access to HQ’s three contractors
(ImI, ICF, and NL&A). As most FY92 projects make use of HQ’s
contractors, please pay careful attention to these steps.
However, if you do not plan to use HQ’s contractors, you
will probably need to have HQ reprogram your funding. To
initiate the necessary paperwork to reprogram funding, you should
talk with Brenda Smith, one of HQ’s project officers, at (Fl ’S)
678—8870. In order to follow her instructions, you will need to
know such aspects as the funding amount, which account (UST or
LUST), purpose of the transfer, and numbers for program element
and object class.
Training Resources Inventory
Many FY92 proposals involve training in release detection
and corrective action technology. Clearly it would be helpfuL to
you to have useful information on available training resources as
you develop work assignments from approved proposals or refine
proposals for resubinittal. To provide a common ground for
planning training-related projects, we have developed an
inventory of training resources for release detection and
corrective action courses (see Attachment 3). The inventory
identifies courses by name, intended audience, course

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3
description, delivery cost, duration, and provider.
at HQ has assembled the training resources inventory
contacted with any questions at (FTS) 678—8872.
Vinay Kumar
and can be
Guidance Packaq Bein DeveloDad
As announced earlier, HQ’s Improvement Projects Team is
revising and enhancing materials sent out last year as “survival
kits” to help Regions develop streamlining projects and do
paperwork associated with work assignments and work plans. This
work continues..and the updated “survival kit,” including expanded
suggestions on developing various types of projects, will be
distributed at the Regional Program Managers meeting in Atlanta
in February.
Deadline for Prolect Start-uD
In discussions of the FY92 process at Cape Cod and after, we
agreed that Regions w ,.uld lose access to funding for projects not
meeting a start-up deadline. Freeing up unused funds would make
additional monies available to those Regions who were best
prepared to use the funds promptly and efficiently. What we have
not done, until this memorandum, is to identify the event in the
process which would signal “start-up” for this purpose and to
establish a deadline for this event.
As shown in Attachment 2, the milestone that best represents
significant progress toward project start-up is the point at
which the HQ project officer approves the work plan. This event
marks an appropriate decision point, because questions regardinq
the design of the project should have been answered and no
additional processing delays are anticipated.
The deadline suggested at Cape Cod was four months after
HQ’s initial review of the FY92 project proposals. A date that
fits into the suggested timeframe and also fits neatly into a
planning calendar is June 1, 1992.
Thus, those projects that have
officer’s approval signature on the
be funded beyond the costs involved
that date. These projects will not
further. Instead, funding for these
will be made available for those who
proceed on projects proposed for the
proposals. (The second—round review
not received the project
work plan by Jun. 1 viii sot
in developing a work plan to
be funded or processed
terminated project proposaLs
can demonstrate readiness to
second-round review of
is discussed below.)
In addition, this start-up deadline applies to the us. of
FY91 deferred monies. By June 1, 1992, deferred FY91 monies cult

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4
be committed in a work plan approved by the project officer or
the Region will lose access to these funds.
Please anticipate the start-up deadline: Several project
proposals from the first-round review required resubmittal with
clarifying information. Also, some Regions wished to submit new
replacement project proposals. Because it ca take several weeks
to develop work plans and process the necessary paperwork
required by EPA’S contracts office, you should have fl proposals
submitted for RQ review no later than April 15. Delaying beyond
this point will almost certainly mean that the project will not
meet the start—up deadline of June 1.
The Second-round Review of ProDosed Prolects
A second—round review of proposed projects will ensure that
we wisely use two potential sources of funding for additional
projects. First, as described above, some projects may not meet
the start-up deadline and their funding amounts can be made
available to others td ‘ise. Second, it is possible, but not
certain, that there will be some carryover money available from
the LUST Trust Fund for additional improvement projects. Because
the amount of money available from these sources will not be
known for a few months, we will defer outlining that part of the
process until we have a better understanding of available funding
resources.
An Important Caution: New Work Assiauents Will Be Needed For New
Contract Tears
Our contracts with ZIRI, ICF, and NL&A are renewed annually.
but the periods of performance for work assignments cannot extend
from one contract year into another. Therefore, if you want
contractor support for a project to carry over into a new
contract year, you will have to develop and process a new work
assignment, action request form, and work plan approval for any
work the contractor will perform in the new contract year. The
dates on which each current contract year end are listed below:
MRI February 28, 1992
IC? Implementation May 24, 1992
Nancy Low & Associates June 1, 1992
If you want contractor support for a project to begin before
these dates and to continue uninterrupted after them, you should
send four copies of a new action request form (all with original
signatures) and four copies of a new work assignment (scope of
work remaining to be done) to Jay Evans of MQ’s Improvement
Projects Team at least 3 weeks before the end of the relevant
contract year. (In addition, you should be aware that the Cr

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5
Economics contract terminates on September 30, 1992; thus, work
under this contract must be completed before the contract
expires.)
The new period of performance should begin the day after the
old contract expires. The new work assignment must include only
those tasks to be performed during the new contract year and must
exclude those performed in the old contract year. The level of
effort should reflect the hours that the contractor will use
during the new contract year. Your paperwork burden should be
minimal, since this activity usually calls for substituting new
tasks, dates, and levels of effort into the original work
assignment.
A simpler alternative, particularly for the MRI contract,
would be to write only one work assignment but postpone the start
of work (i.e., the beginning of the period of performance) until
the beginning of the new contract year.
We regret any delays or extra work caused by contract
turnover dates, but w taven’t found a way around these
restrictions placed on u .by the Agency’s contracting process.
(When these contracts end, we plan to have all new contracts use
the same contract year, which will reduce some of the confusion
and potential for errors.) Please contact the project officers
if you need help with adjusting your paperwork processing to the
requirements imposed by contract turnover dates. Project
officers, relevant contracts, and phone numbers follow:
Stephanie Bergman for the ICF Economics contract at (FTS) 678-
8879; Vinay Kumar for the MRI contract at (FTS) 678-8872; Deborah
Rutherford for the NL&A contract at (FTS) 678—8864; and Brenda
Smith for the ICF Implementation contract at (FTS) 678-8870.
Attachments (3)
cc: OUST Management Team
OUST Desk Officers for Regions 1—10

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JAN 30 1992 ATTACHMENT 2
FY92 Regional State Improvement Project Process:
Prom Proposal Approval to Work Plan Approval
1. RPM receives approval for project proposal from HQ.
2. Region develops a Work Assignment (WA). Region can use the
Desk Officer (who can also involve the appropriate HQ team
leader) for help in shaping the WA.
3. Region signs an ActIon Request Form (ARF and sends both the
ARF and the WA to Jay Evans of HQ’s Improvement Projects
Team. Note: Region must send 4 copies of the WA and
4 copies of the ARF but each PRY must have original
signatures from the Regional work assignment manager,
Regional Program Manager, and Regional Branch Chief (or
equivalent level).
4. Project Officer approves the WA by signing the ARF.
5. EPA’s Contracts Office approves the WA by signing the ARF.
6. Contractor writes work plan (WP) and sends it to the Regional
WA manager (WAN).
7. Region reviews the WP. Region can use the Desk Officer (who
can also involve the appropriate HQ team leader) for help in
shaping the WP.
8. Region approves the WP by signing a new PRY and sending the
WP and the ARF to Jay Evans of HQ’s Improvement Projects
Team. Note: Region must send 4 copies of the new ARF, each
copy having original signatures of the WAN, the RPM, and the
Regional Branch Chief (or equivalent level). However, only
1 copy of the work plan needs to be sent.
9. Project Officer approves the work plan by signing the PRY:
—— This milestone signifies official “start—up.”
-- Projects not meeting this milestone by June 3 will not
be funded or processed further.
10. EPA’s Contracts Office approves the WP by signing the ARF.
* A revised Action Request Form (ARF) and detailed instructions
will be distributed at the RPM meeting in Atlanta.

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PAGE NOT
AVAILABLE
DIGITALLY

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,:t—
. UNITED STATES ENVIRON V1ENTAL PROTECTION AGENCY
WASHI\ZGTON 46O
4 L DQO ’
THE OMI’.IST AT0
FEB 1 5 I O
l E MORAN D CM
SUBJECT: Targeted Improvement Projects IP for FY 1990
FROM: Joseph Retzer,
Implementation Divis 4n, OUST,)”
TO: Addressees
Again this year, we are pleased to announce that
Headquarters contract funds are available to each Region to
assist State program development and improvement through Targeted
Lmprovement Projects (TIPs). For FY 1990, each Region has
immediately available $50,000 for TIPs. The continuation of the
TIPs allocation results from the success of this program over the
past two years and our desire to provide resources to allow for
support for State program development and implementation.
This year we are simplifying the system for using TIPs money
to give you more control and speedier access to these funds.
Although the funding pool will remain at Headquarters, the
Regions will be fully responsible for the administration and
management of its projects. This includes selecting the TIPs,
preparing the work assignment, selecting and procuring contractor
support, and direct management of the work and work assignment
budget. The primary objective of TIPs will continue to be
funding State projects that will bring about long-term process
improvements in State programs. Rather than sign off on each
TIPs project, Headquarters will evaluate each Regional TIPs
program as part of the annual review for FY 1990.
Last year TIPs projects were used more by some Regions thar.
others, and this resulted in our losing some TIPs funds because
they were not used in a timely manner. This year we have deci t
to establish a cut off date of June 30, 1990 for commitment of
the FY 1990 funds. If a Region has not committed its TIPs mon
by June 30, the unused funds will be redistributed to other
Regions who have a need for them.
UST/SPA/T/90-1

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Enclosed is guidance to assist you in undertaking your
responsibility for the TIPs program and an annotated list of
Fl 1988 and Fl 1989 TIPs. If you have any questions, please
contact Greg Waidrip, who will continue to serve as the OUST TIPs
coordinator during this transition, at FTS-475—7265 or the OUST
desk officer for your Region.
Enclosure
cc: Regional UST Program Managers Dana Tulis
Ronald Brand Maureen Doughtie
Barbara Elkus Dea Larsen
Jim Mccormick Gregory Waidrip
Sammy Ng Steven McNeely
Dave O’Brien Debbie Rutherford
Helga Butler Vinay Kuiuar
L.M. Williams, Jr. Stephanie Bergman
Addressees:
Merrill S. Hohman, Director
Waste Management Division, Region 1
Conrad Simon, Director
Air and Waste Management Division, Region 2
Bruce Smith, Director
Hazardous Waste Management Division, Region 3
Bruce R. Barrett, Director
Water Management Division, Region 4
Basil G, Constantelos, Director
Waste Management Division, Region 5
Allyn Davis, Director
Hazardous Waste Management Division, Region 6
David Wagoner, Director
Waste Management Division, Region 7
Robert Duprey, Director
Waste Management Division, Region 8
Jeff Zelikson, Director
Toxics and Waste Management Division, Region 9
Robert Burd, Director
Water Division, Region 10

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CONTACT PROCEDURES AND GUIDELINES FOR FT 1990 REGIONAL
TARGETED IMPROVEMENT PROJECTS (TIPS)
To procure contractor support for FY 1990 TIPs through
Headquarters contracts, the procedures set forth below should be
followed:
• After the Regional UST program manager has made a
determination on which State TIPS to undertake, a work
assignment manager should be designated and contact with
a potential contractor initiated. (If a potential
contractor cannot be identified, assistance can be
requested from Headquarters in this regard.) The
designated work assignment manager should have some
training or previous experience in contracts
(see page 3).
• Next, a pre-work assignment planning discussion (in
person or by telephone) should be held with the
potential contractor to discuss the work to be performed
and develop level of effort (hours) and budget
estimates. Attached is a sample worksheet (see
Attachment 1) that will facilitate this pre-work
assignment planning discussion. At the completion of
this planning process all parties should have a common
understanding of the work requirements, the level of
effort, other direct costs, (such as travel, graphics
support, telephone, and deliveries) and the total budget
required to complete the work assignment.
• After the pre-work assignment planning discussion with
the contractor, the work assignment manager should then
prepare a work assignment. Attachment 2 is provided as
a sample Regional TIPS work assignment.
• The work assignment manager will then prepare an
original action request form (see Attachment 3 for
sample). To obtain a work assignment number:
- if the contractor will be ICF Incorporated, contact
Debbie Rutherford, the project officer for the OUST
implementation support contract, at FrS—475-7264; or
- if the contractor wi 1 be Midwest Research
Institute, contact Vinay Kumar, the project officer
for the OUST technical support contract,
at FTS—475—9724, and
- contact your Regional project officer for Regional
contracts and Greg Waldrip, at FTS—475—7265, to get
funds transferred to your Regional account.

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—2—
• The action request form should be completed and signed
by the Regional work assignment manager, the Regional
program manager (on the branch chief signature line),
and the Regional program manager’s supervisor (on the
division director signature line). The completed action
request form should be sent to Greg Waldrip, the OUST
TIPS coordinator, for processing through the appropriate
OUST project officer who will forward the form to the
EPA contracting officer for final approval.
• If a Regional contract is to be used for a TIP, an
information copy of the completed paperwork should be
sent to Greg Waidrip.
• After approval by the EPA contracting officer (usually
within seven to ten days), a copy of the approved work
assignment will be sent to the Regional work assignment
manager. The signature date of the EPA contracting
officer is the effective date of the work assignment.
The contractor is prohibited from beginning any work
under the work assignment prior to this date.
• The contractor will also be sent a copy of the approved
work assignment and must submit a work plan within 15
calendar days “after receipt of a work assignment.” The
contractor will send their work plan to the appropriate
OUST project officer who will forward a copy to the
Regional work assignment manager for review.
• If the Regional work assignment manager approves the
work plan, another action request form is initiated
following the procedure set forth above regarding
obtaining the appropriate signatures. The completed
action request form should be sent to the appropriate
OUST project officer who will forward the work plan to
the EPA contracting officer for finalS approval.
• If there are any issues identified in the work plan
which need to be resolved, the Regional work assignment
manager should discuss and resolve them directly with
the contractor. The work assignment manager can request
that the contractor submit a modified work plan to
resolve an issue. (This should not be necessary if the
pre-work assignment planning discussion was conducted
and all work assignment areas were discussed.)

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—3—
• The EPA contracting officer will provide approval or
disapproval “within 30 calendar days after receipt of
the work plan.” The usual period for obtaining EPA
contracting officer approval has been two to three
weeks. However, if the contractor has not received
approval on a work plan within 40 calendar days after
its submission, the contractor shall “stop work on that
work assignment.” Also, if the EPA contracting officer
disapproves the work plan, which has not generally been
OUST’S experience, the contractor must stop work until
the problem causing the disapproval is resolved.
• Both the Regional work assignment manager and the
contractor will receive copies of the EPA contracting
officer approval.
• The contractor is required to submit written monthly
progress reports which contain a summary of the work
performed during the month, the hours expended, the
costs incurred, and the work anticipated during the
subsequent month. Copies of this monthly progress
report will be sent to Regional work assignment managers
by the OUST project officer.
The following guidelines will facilitate the adoption of
administrative and management responsibility by the Regions for
TIP work assignments:
• EPA encourages that work assignment managers have
contract officer training or previous contract
experience before serving in that capacity. Contact
your Regional training officer to obtain a schedule of
proposed contract training sessions.
• A separate work assignment must be prepared for each
contractor, if all tasks within a work assignment will
not be performed by the same contractor. Also, each
State TIP should be a separate task within the overall
work assignment.
• The level of effort should be the sum of the hours
estimated for each task pius the hours agreed on for
management and contract administration of the work
assignment by the contractor.
• When discussing the peric of performance with a State
it is important to establish a realistic period that is,
a period when the State can begin working with the
contractor and continue in a reasonably continuous
manner until the work is completed.

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—4—
• Once a work assignment is in place modifications can be
made to add new tasks, change the scope of work or level
of effort of a specific task, or extend the period of
performance. This will allow the work assignment
manager flexibility in controlling TIPS to meet the
Region’s objectives more efficiently. Modifications
follow the same procedures noted above for work
assignments.
Questions regarding these contract procedures and guidelines
should be directed to Greg Waldrip at FTS-475—7265, the OUST TIPs
coordinator, or your Headquarters desk officer.
Attachments

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ATTACHMENT I. Page 1 of 2
GOV .NHENT COST ESTIMATE ORKSIIEET
WORK ASSICI T TITLE: _________________________________
LEVEL OF EFFORT (INCLUDE SUBCONTRACTOR LOE)
Estimated
Tasks Task Descr1 eion Ho irs
1 Project start-up and prepare work plan 20
2
3
14
5
6
7
8 Special Tasks (if necessary):
graphics
• editing
• camera ready copy
9 Submit Monthly Reports (1.0-15 hrs/month)
10 Management Time (normally about lOX of LOE
but will depend on the level of difficulty
and duration of the work assignment)
Total LOE

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ATTACHMENT 1 Page 2 of 2.
OTHER DIRECT COSTS
Estimated
DescriDtion Dollars
Travel: # of trips ____ ; average cost/trip ____ __________
Clerical (Approximately 10% of professional hours) __________
Graphics __________
Reproduction ___________
Deliveries (Local and Overnight) __________
Local travel and parking __________
Other Costs :
Mainframe computer __________
Telephone (only for long distance calls) __________
Temporary professional help (only if hours not
included in LOE) __________
Data/document purchase ___________
Off-site reproduction __________
Special binding/distribution of reports/manuals __________
Additional postage __________
Other:

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ATTACHMENT 2
SAMPLE
EPA Contract No. 68-01-7385
Work Assignment No 200
REGION I - TARGETED IMPROVEMENT PROJECTS
I. Background
The Environmental Protection Agency (EPA) and its Office of Underground
Storage Tanks (OUST) are responsible for establishing policies and
programs under Subtitle I of the Hazardous and Solid Waste Amendments of•
1984 to the Resource Conservation and Recovery Act of 1976. Subtitle I
also provides for States with EPA approval to carry out their own UST
programs in lieu of the Federal program.
The purpose of this Work Assignment is to procure contractor support for
Regional Targeted Improvement Projects (TIPs) that are set forth as
Tasks below. TIPs are intended to facilitate UST Regional Program
Manager assistance to States for the development of State UST programs.
II. Description of Tasks
The contractor shall perform the following tasks:
Task 1 - Project Management
The contractor shall discuss the scope of work with the EPA Work
Assignment Manager prior to submitting a Work Plan. Within 15 days of
receiving this Work Assignment, the contractor shall prepare a Work Plan
that describes the work to be conducted, key staff, labor hours, cost,
and a schedule for completing specific assignments under each of the
following tasks.
The contractor shall inform the EPA Work Assignment Manager when
utilized labor hours reach 50 percent, 75 percent, and 90 percent of the
approved hours. The contractor also shall notify the EPA Work
Assignment Manager when 50 percent, 75 percent, and 90 percent of the
budget (approved amount) for this Work Assignment has been expended.
Task 2 - CT DEP Comoliance Monitoring & Imolementation
The contractor shall complete a survey of CT UST notification data a.
assist the DEP in contacting petroleum UST owners and operators to
encourage voluntary compliance with Connecticut’s existing regulations
on mandatory retirement of 20 year old bare steel tanks. The contractor
shall catagorize each site by groundwater classification, age of tank,
number of tanks over 20 years, and type of facility in order to allow
the DEP to implement a prioritization scheme to begin enforcing the
State regulations. The contractor shall also ensure that each site is
organized into its own separate file identifiable by a DEP label, DEP

-------
database sheet, and survey (if returned), allowing quick and easy
identification, status updates, and enforcement.
Task 3 - CT DEP Regulatory Amendments Assistance
The contractor shall incorporate any final changes into a draft
regulatory package which will integrate the new Federal UST requirements
with Connecticut’s existing tank rules. The contractor shall conduct a
one day scoping session with DEP and EPA attorneys and personnel, and
with their strict direction, propose a final draft regulatory amendment
package. Then, DEP can proceed to public notice per the State
Administrative Procedure Rules.
Following the State public notice and public hearing, the contractor
shall assist the DEP in completing the Responsive Summary prior to DEP
making its final rule decisions.
Task 4 - RI DEM Comnliance Tracking Assistance
The contractor shall provide assistance to DEM to plan reporting formats
for compliance tracking on UST tank testing and line leak detector
upgrading aspects of their existing regulatory program. Programming
changes shall include several elements of system redesign of their
existing software so that the final product will allow the DEM to access
data in a manner best suited to their needs.
III. Reports
The contractor shall prepare monthly progress reports as required in the
contract.
IV. Schedule and Deliverables
The contractor shall prepare a Work Plan and budget within 15 days of
receiving this Work Assignment. The contractor shall work closely with
the EPA Work Assignment Manager to assure that acceptable descriptions
of the work to be undertaket are prepared, that appropriate schedules
are established, that revisions to the aforementioned are approved by
the EPA Work Assignment Manager, and that appropriate staff is assigned.
V. Period of Performance
From effective date to April 30, 1990.
VI. Level of Effort
The contractor shall notify the EPA Work Assignment Manager if it
anticipates exceeding 400 professional h- rs in the performance of this
work.
VII. EPA Work Assignment Manager
William Torrey (617) 573-9604

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: I1T AC : O:— ’I: 35 ACCOUNT: Jo. ‘l an F er.
hPPROPRTION: Q _ . .4
WGRI S5IGNMENT NO.:_ Q iCN: rMO2Q
iRIG1NAL l SSIGNI1ENT...L WORK FLAN APPROVAL _ WORK PLAN APPROVAL (CUNDITIONAL3__
SSIGNI1ENT MEHDNENT___ AMENDMENT WORKPLAN APPROVAL _ OTHER ACTION _
WORK ASSIGNMENT TI TLE:
BRIEF DESCRIPTION AND PURPOSE:
D IA
DELIVERABLES:
SCOPE OF WORK REFERENCE (paqe and paraqraph): __ S AND ——
ESTIMATED LOE (WA) : Q2_ s APPROVED HOURS (WP):
APPROVED MOUNT (HP):
PERIOD OF PERFORMANCE:
CONTRACTING OFFICER: PHONE: a2 :fZ :!Z!L_..__
MAIL CODE: e :21 F
PROJECT OFFICER: DEBS THERFORD PHONE: 202:4Z5_74
NAIL CODE: :± O
WORK ASSIGNMENT MANAGER: PHONE: 2O2—47
NAIL CODE: Q : 0
APPROVALS
I have thorouqnlv reviewed the attached and ,ind that
unitial wnere appropriates:
r ent (a) gives th tractor clear rection _d _
(b) is essential to achieve our technical objective dw . ..
(c) describes needed and usable deliverables
Cd) is within the scope of the contract &p __
SIGNATURE DATE
WORK ASSIGNMENT MANAGER:
3RANCH CHIEF: ._L .._t_ _i j j j__ -
DIVISION DIRECTOR: _i’i °t __
PROJECT OFFICER: i /joJT
CONTRACTING OFFICER:

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.2O :TRACT NO:68—O1— 7385 CrO1\T:9EPC, !Ofl3 -
CONTRACTOR : ICF -PPROPRIATIO .:689,’th)1’)H
(‘ORK ASSIGNMENT NO.: DC\: IMI03
OFFICE OF L\DERGROL\D SIORAGE TANKS ACTION EQ(E i ——
ORIGINAL SSIGNNENT_ WORK PLAN \PPRU \L_ WORK PLAN APPRO\AL (CO\DtTIL)\AL
ASS IGNMENT AMENDMENT__ AMENDMEV ’ WORKPLAN APPRO AL_ OTHER ACT 1O\
WORK ASSIGNMENT TITLE: ___________ ____—____ ___
BRIEF DESCRIPTION AND PURPOSE: _________________________-— ________________ —-
DELIVERABLES: SEE ATTACHED TAT LO QR i___ — -— —_________
SCOPE OF WORK REFERENCE page and paragraph): ____________________________
ESTIMATED LOE (WA): hrs APPROVED HOURS (WP): ___________
APPROVED AMOUNT P): ___________
PERIOD OF PERFORMANCE: Date of Contracting Officer Signature through 04/30/91
CONTRACTING OFFICER: MICHAEL RILEY PHONE: 202-475-9697
MAIL CODE: PM-214F
PROJECT OFFICER: DEBBIE RUTHERFORD PHONE: 202-475-726-i
MAIL CODE: OS-420
‘ RK ASSIGNMENT MANAGER: ____________________________ PHONE: _____________
( 1AIL CODE: ______________
APPROVALS
I have thoroughly reviewed the attached and find that
(initial where appropriate):
the work assignment (a) gives the contractor clear •iirection ________
(b) is essentiai to achieve our technical objective ____
(C) describes needed and usable deliverables ________
(d) is within the scope of the contract ________
SIGNATURE DATE
% ORK ASSIGNMENT MANAGER:
3RANCH CHIEF:
)I ISION DIRECTOR:
PROJECT OFFICER:
CONTRACTING OFFICER:

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T ACT •tj±-•”1—73S
CONTR- CTOR : 151
OR1 ASSIGNNE .T NO.:
ACCOI .T: FPY3.3M O3
APPROPRIATION: 68-20Y8 3.3
DCN: 1N087
-
I.
OFFICE OF UNDERGROU’D STORAGE TANKS CTIO\ REQUEST
, JNAL ASSIGN 1ENT ._. WORK PLAN APPROVAL ORI PLAN APPROVAL CO\DT110¼.AL
ASSIGNMENT ANENDMENT_ A’IENDMENT WOREPLAN APPROVAL OTHER ACTION_
ORK ASSIGNMENT TITLE:
BRIEF DESCRIPTION AND PURPOSE
DELIVERABLES: SEE ATTACHED STATEMENT OF WORK
SCOPE OF WORK REFERENCE (page and paragraph):
ESTIMATED LOE (WA : hrs
APPROVED HOURS (WP): ____
APPROVED AMOUNT (WP): _________
PERIOD OF PERFORMANCE: Date of Contracting Officer Signature throuzh 04/30/91 -
CONTRACTING OFFICER: MICHAEL RILEY PHONE: 202-475-9697
MAIL CODE: PM-214F
PROJECT OFFICER: EBBIE RUTHERFORD
MAIL CODE: OS-420
PHONE: 202—475-7264
ASSIGNMENT ‘1A AGER:
IL CODE:
APPROVALS
PHONE:
I ha e thoroughly reviewed the attached and find that
(initial there appropriate):
the work assij.nment (a) gives the contractor clear direction
oR: ASS IGX’IE’4T MANAGER:
(b; is essentia. to achieve our technical oLiject. .e
Cc) describes needed and usable deliverables ________
Cd) is within thr scope of the contract ________
SI GXATURE
DATE
BRANCH CHIEF:
DTVIS1O DIRECTOR:
rc)\TRACTIYG OFFICER:

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:ONTRAcT \C:68-J-738.
COSTRACTOR : RI PR PR I - :‘.
WORN ASSIGSME\T \u. : _________ JC\ I’!1038
OFFICi OF U DERGR0LND STcRAGE . CTiO\ REQIEST
...IGISAL ASSIGNMENTJ ORI PL.- N -kPPRUVAL_ t RK PL PPRG\ i. tCO .DITtOSAL
• SSIGNMENT AME\DMENT .AMENDMESr iORNFLA\ API’RO\ L. THER CT1OS
WORK ASSIGSMENT TITLE:
BRIEF DESCRIPTTOS .. \D PLRPOSE: ______________
DELIVERABLES: SEE ATTACHED STATEMENT OF WOR j ___
SCOPE OF WORK REFERENCE (page and paragraph): __________________
ESTIMATED LOE (WA): ___— APPROVED HOURS (WPI: _______
APPROVED AMOUNT (WP): _____—
PERIOD OF PERFORMANCE: Date of Contr c g _ Qfficer Signature through 03/12/91
CONTRACTING OFFICER: MICHAEL RILEY PHONE: 202-475-9697
MAIL CODE: PM-214F
PROJECT OFFICER: VINAY KUMAR PHONE: 202-475-9724
MAIL CODE: OS-410
WORK ASSIGNMENT MANAGER: --__________________________ PHONE: _________________
MAIL CODE: ______ ____
________________— APPROVALS —
I have thoroughly reviewed the attached and find that
(initial where appropriate):
the work assiJnn ent (a g:ves the coritractol c.lea - uirection _______
is es er.tia to a”nie ’ our teehnLcai objecti e ___
c) descr: bes needed •ind . sabit! deir erables ________
(di is -ithir t)i&’ seop Lf the contract _________
SIGNATURE DATE
WORK ASSIGNMENT MANAGER:
BRANCH CH:EF:
DIVISION DIRECTOR:
PROJECT OFFICER:
CONRACTI’G c:iFF:rEr :

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:O\TF..\CTOR .‘1R
•%UR .\SSiG IE\T ‘.0.
2 :: . ”I t
DC: . : i’ii .) ‘. .
OFFICE OF L\DERGRO ( ) T i?-\GE r \;. S CTIO\ REQLESI _ ____
t: ..\L SSIG IENT _ WORK PLA\ PP C’V. .L__ PLAN APPROVAL CO ’.DETIC\. j_
SSIGVIE T A’IE’:DMENT_ . IENDMENT uRE FLA\ Pr R - L_ UTHER CTION_
% ORI: . SSIG\MENT TITLE
BRIEF DEscRIpT:O A D PURPOSE: ____—-
DELIVERABLES: SEE ATTACHED STATEMENT OF WORK
SCOPE OF WORK REFERENCE (page and paragraph):
ESTIMATED LOE (WA):
h r
APPROVED HOURS (WP):
FPROVED AMOUNT (WP):
PERIOD OF PERFORMANCE: Date of Contractir Officer Signature through 03/12/91
CONTRACTING OFFICER: MICHAEL RILEY —____ PHONE: 202-475-9697
MAIL CODE: PM-214F
PROJECT OFFICER: VINAY KUMAR
MAIL CODE: OS-410
PHONE: 202-475-9724
ASSIGNMENT MANAGER:
IL CODE:
APPROVALS
PHONE:
I have thoroughly reviewed
( n:tiaL ‘ here appropriate).
the ‘ or assignment (a)
(b)
(C)
Cd)
ORN ASSIGNMENT MANAGER:
the attached and find that.
gives the contractor ceai direction ________
is essent ai to achte our technLcal ot jecti’ .e ___
describes needed and usable 3eliverabies ____ ——
is within the scope a: the contract ________
SIGNATURE
r u rr
I. . —
BR. SCH CHIEF:
r : :sIo\ DIRECTOR:
CJECT FFICER:
CONTi \CTI\G iJFF [ CFR:

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TARGETED IMPROVEMENT PROJECTS -- FY 1988 & 1989
Region/State Prolect Hours Completed contractor
Region I
Connecticut Assisting in preparation of draft UST regulations for Department of 90 in progress CF
Environmental Protection (DEP).
Assisting DEP with compliance monitoring regarding mandatory 110 in progress ICF
retirement of 20 year-old steel tanks.
Assisted DEP with prioritization of inspection and enforcement 151 10/31/88 ICF
efforts to ensure compliance with UST retirement regulations.
Provided support to DEP in anatyzing UST workload and 151 10/31/88 CF
projecting future workload needs.
Maine Provided support to Department of Environmental Protection in 180 09/30/88 ICF
analyzing UST workload and projecting future workload needs.
Massachusetts Assisted in the assessment of UST activities in local fire 150 09/30/89 ICF
departments for State Fire Marshal.
Updated UST database to reflect current tank universe and 200 08/31/89 CSC
resolved hardware problems.
Rhode Island Assisting Department of Environmental Management (DEM) in 75 in progress ICF
expanding and maintaining computer software capabilities.
Assisted DEM in developing a geographic information system to 155 09/30/88 ICF
be used for targeting inspections and enforcement.
Improved capability to track leak detection compliance for DEM. 161 09/30/88 ICF
February 13. 1990

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Region/State Prolect Hours Completed Contracto.
Region Ii
New Jersey Designing a program for Department of Environmental Protection 100 in progress ICF
(DEP) to download tank registration data from mainframe to
personal computer.
Provided support in the development and implementation of the 190 04/30/89 ICF
DEP UST permitting system.
New York Assisting Department of Environmental Conservation (DEC) in 180 in progress ICF
development of a comprehensive spill response brochure.
improved capability to assess the necessary measures and costs 225 - 03/12/89 MR1
of UST corrective action for DEC.
Puerto Rico Assisting Environmental Quality Board (EQB) in development of 600 in progress MRI
corrective action program and of staff’s ability to review corrective
action plans and choose appropriate remediation technologies.
Providing EQB with means to develop in-house expertise in 600 in progress MR1
reviewing UST long-term corrective action plans for gasoline spills
and leaks.
Virgin Islands Assisted Department of Planning and Natural Resources in 80 04/30/89 ICF
development and implementation of UST database management
system.
RegIon lii
Region ill Developed generic cost accounting system for Region ill States to 300 11121/89 ICF
track LUST Trust Fund spending.
Maryland Provided training for UST inspectors in ail aspects of hazardous 252 02/28/89 MR1
substance UST management.
February 13, 1990

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Region/State Prolect Hours Completed Contractor
Virginia Provided training for building inspectors and fire marshals in all 252 02/28/89 MRI
aspects of UST management.
Region IV
Region IV Assisted Region IV States in development of cleanup standards 500 02/10/89 CF
by provIdir g a survey of standards in six States and three
counties.
Region V
Ohio Developing course to enable liST staff to conduct inspections of 800 in progress FEMA
LiST systems. Course to be given at National Fire Academy.
Region VI
Region VI Developing 24-hour training course to meet OSHA requirements. 600 in progress COM
including hands-on experience in exposure surveillance.
Region VII
Region VII Provided training on leak detection, installation practices, and 310 04/30/89 MRI/ICF
corrosion protection at Regional tank practices training seminar.
Assisted Region VII States in the areas of contracting and 500 03/12/89 MRI
accounting.
February 13, 1990

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h lIon/State Prolect Hours Completed Contractor
Region VIII
Region VIII Provided a seminar on the process for developing a State UST 55 07/30/88 1CF
Installer certification program to State and Regional UST program
staff.
Provided a workshop on risk assessment and management for 30 05/18/88 ICF
State UST program managers and Regional UST staff.
Provided training to Region VIII State personnel on performing and 102 03/12 189 MR1
InterpretIng tank testing.
Utah Assisted DMsion of Environmental Health in analyzing proposed 179 11/30/88 ICF
financial responsibility legislation and liability issues.
Region IX
Arizona Assisted Department of Environmental Quality (DEQ) in 75 11/15/89 ICF
development of Memorandum of Understanding with State Fire
Marshal.
Assisted DEQ in preparation of test State program approval 180 05/30/88 ICF
application.
California Assisted State Water Resources Control Board in preparation of 190 05/30/88 1CF
test State program approval application.
HawaIi Conducting UST workload and program fees analysis; developing 1000 in progress ICF
methodology for prioritizing inspections; and preparing inspection
procedures manual and enforcement policy and procedures
manual.
Nevada Assisting DMsion of Environmental Protection in development of 400 in progress ICF
State program approval application.
February 13. 1990

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Region/State Prolect Hours Completed Contractor
RegIon X
Alaska Provided inspection training on tank installations (new and retrofit), 200 08/09/89 ICF
closures, and inspections of existing facilities for local fire
marshals and building Inspectors.
Idaho Prepared analysis of feasibility of establishing financial 200 07/26/89 ICF
responsIbilIty fund.
Oregon Supported Department of Environmental Quality in updating its 434 12/30/88 ICF
tank registratIon and permitting database.
WashIngton Conducted survey of existing State ceiliflcatlon programs and 500 09/22/89 ICF
made recommendations to Department of Ecology (DOE) for
WashIngton’s certification program.
Assisted DOE in formulating potential costs for State UST 203 09/15/88 ICF
program.
improved analysis of leaking UST data in State of Washington. 78 12/31/88 MRI
February 13, 1990

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TARGETED IMPROVEMENT PROJECTS (TIPs)
COMPENDIIJM
S7q 7 .
4
PRO1 ’
U.S. EPA
OFFICE OF UT DERGROUr D STORAGE TANKS
WASHINGTON, D.C.
1988-1989
—I

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TARGETED IMPROVEMENT PROJECTS
Region/State Project Contractor
REGION I
Connecticut Assistance in prioritizing inspection and enforcement efforts to CF
insure compliance with Connecticut’s UST retirement regulations.
Connecticut Provide support to the Connecticut Department of Environmental CF
Protection (DEP) in analyzing its UST workload and projecting
future workload needs.
Maine Provide support to the Maine Department of Environmental ICE
Protection (DEP) in analyzing its UST workload and projecting
future workload needs.
Rhode Island Assistance to Rhode Island in developing a geographic information CF
system (GIS) to be used for targeting inspections and enforcement.
Rhode Island Improve capability to track leak detection compliance in Rhode ICF
Island.
REGION II
New Jersey Provide support in the development and implementation of the New ICF
Jersey Department of Environmental Protection (DEP) UST
permitting system.
New York Improve capability to assess the necessary measures and cost of MRI
UST corrective actions in New York State.
Viroin Islands Assist the United States Virgin Islands Deoartment of Planninci and ICE
Natural Resources (DPNR) in developing and implementing an UST
database management system.
REGION III
Maryland Training of Maryland UST inspectors in all aspects of hazardous MAI
substance UST management.
Virginia Training of Virginia building inspectors and fire marshalls in all MRI
aspects of UST management.
REGION IV
Region IV Assist Region IV States develop cleanup standards by providing a ICF
survey of standards in other jurisdictions.

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REGION VII
Region VII Assistance to Region VII States in the areas of contracting and MRI
accounting.
REGION VIII
Region VIII Provide a seminar on the process for developing a State UST ICF
installer certification program for State UST program staff and
Region VIII UST staff.
Region VIII Provide a workshop on risk assessment and management for State ICF
UST program managers and Region VIII UST staff.
Region VIII Provide training to State personnel in Region VIII for performing and MRI
interpreting tank testing.
Utah Assistance to Utah in analyzing proposed financial responsibility CF
legislation and liability issues.
REGION IX
Arizona Assistance to Arizona UST program in preparing test State Program ICF
Approval (SPA) application.
California Assistance to California UST program in preparing test State CF
Program Approval (SPA) application.
REGION X
Oregon Support Oregon Department of Environmental Quality (DEQ) in CF
updating its tank registration and permit program database.
Washington Assistance to the State of Washington in formulating potential costs CF
for State UST program.
Washington Improve analysis of leaking UST data in the State of Washington. MRI

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TARGETED IMPROVEMENT PROJECT
REGION I
PROJECT : Assistance in prioritizing inspection and enforcement efforts to insure compliance with
Connecticut’s UST retirement regulations.
PURPOSE : Because of the mandatory retirement program established under Connecticut UST
regulations, the Department of Environmental Protection (DEP) had to establish a prioritization
scheme for ensuring that the new requirements are being met by UST owners and operators.
SCOPE OF WORK : ICF was brought in to assist in this effort in two ways: (1) to assist in
developing materials to remind owners and operators of their new responsibilities and to provide
them with guidance as to how they can comply voluntarily with these new rules; and (2) to develop
a tracking system to inspect and enforce the new regulations after they become effective. The
notification was designed to elicit voluntary compliance and was issued last summer to provide
adequate lead time for what was then a November 1 deadline. The letter, that included a brief
questionnaire asking owners and operators to notify DEP of any ongoing or planned activities with
regard to the mandatory retirement regulation, generated a substantial response from UST owners
and operators. To date, DEP has received upwards of 2,000 responses from the approximately
4,300 facilities that were contacted
PRODUCT : These owner and operator responses were collected by ICF and are currently being
sorted, collated, categorized, and prepared for a response by DEP.
IMPROVEMENTS ACHIEVED : All facilities that fall under the mandatory tank retirement rule are
now aware of their obligations, and DEP will be able to prioritize inspection and enforcement
activities. The data from this effort will be used by DEP for its enforcement efforts which will begin
in September, 1989 when the deadline for mandatory retirement becomes effective. As a result, ICF
will be providing follow-up information including a prioritization scheme using the responses, the
existing data on each facility, as well as the groundwater classification data which DEP has
developed. These activities will be conducted under a separate TIP in FY 1989.
IMPEDIMENTS ENCOUNTERED : None
REGIONAL CONTACT: Jonathan Walker, (617) 573-9604
STATE CONTACT: Scott Deshefy, (203) 566-4630
OUST WORK ASSIGNMENT MANAGER: Greg Waldrip, (202) 475-7265
CONTRACTOR: ICF Incorporated
ICF WORK ASSIGNMENT MANAGER: Howard Apsan, Edison, New Jersey (201) 906-2400
LEVEL OF EFFORT: Hours - 151
PERIOD OF PERFORMANCE: June 6 - October 31, 1988

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TARGETED IMPROVEMENT PROJECT
REGION I
PROJECT : Provide support to the Connecticut Department of Environmentat Protection (DEP) in
analyzing its UST workload and projecting future workload needs.
PURPOSE : The Connecticut DEP was concerned about its ability to enforce some of the standards
established under its UST regulations. This was especially true because of an ambitious effort to
encourage owners and operators to upgrade systems that failed to meet the mandatory tank
retirement regulations. The State’s regulations, especially the mandatory retirement requirements,
put an added burden on the UST program’s ability to meet the increased workload demands. In
addition, the UST effort in DEP is split among a number of units within DEP.
SCOPE OF WORK : CF was asked to perform the workload analysis and projection that would
cover all the various groups and ensure that the conclusions met their diverse needs. The analysis
was conducted through distribution of a detailed questionnaire followed by in-depth personal
interviews and evaluation using the workload projection model developed by ICF.
PRODUCT : After the preliminary findings were discussed with DEP, ICF prepared a full report of
the process. analysis. workload model, and a three-year projection which was submitted to DEP.
IMPROVEMENTS ACHIEVED : The results of this TIP demonstrated a need for increased staffing in
a number of areas and suggested some need for better coordination among the different groups at
DEP involved in UST management. In addition, the analysis was used to convince the State’s
leade h’o t extena the deadline on mandatory tani reuremeru compl ance. The report aiso
proviaea DEP with a baseline for future fiscal planning and budget requests. The projected need
for 1989 was an increase of 8 FTE: the projected need through 1991 was 17 FTE. The DEP can
now project its short- and long-term staffing needs in a more accurate and systematic fashion
IMPEDIMENTS ENCOUNTERED : The UST activities are conducted under several different units. so
information gathering and follow up required extensive coordination.
REGIONAL CONTACT: Jonathan Walker. (61 7 573-9604
STATE CONTACT: Scott Deshefy, (203) 566-4630
OUST WORK ASSIGNMENT MANAGER: Greg Waldrip, (202) 475-7265
CONTRACTOR: ICF Incorporated
ICF WORK ASSIGNMENT MANAGER: Howard Apsan, Edison, New Jersey, (201) 906-2400
LEVEL OF EFFORT: Hours - 151
PERIOD OF PERFORMANCE: June 6 - October 31, 1988

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TARGETED IMPROVEMENT PROJECT
REGION I
PROJECT : Provide support to the Maine Department of Environmental Protection (DEP) in
analyzing its UST workload and projecting future workload needs.
PURPOSE : Because of a number of significant changes in Maines UST requirements, DEP was
concerned that it may not have sufficient resources to meet the needs of those additional
requirements.
SCOPE OF WORK : ICF performed a workload analysis to assess existing activities and future
needs and developed a workload projection three years into the future. These projections were
arrived at after extensive interviewing, evaluation of an ICF questionnaire designed to solicit specific
information on program activities, and the time and personnel needed to complete those activities.
The data distilled from the questionnaire and the interviews was then analyzed and run through a
workload projection model developed by ICF. This model allowed ICF to generate a three-year
prolection wnich the DEP felt was both accurate and reasonable.
PRODUCT : After the analysis was discussed with DEP, ICF prepared a report describing the
process. the data, the analysis, and the detailed workload projections.
IMPROVEMENTS ACHIEVED : The DEP plans to use this information as part of its fiscal planning
and budget requests for the coming years. As the workload analysis showed, the increase in
regulatory responsibility was not met by a commensurable increase in staff. The workload analysis
should provide hard evidence to support requests for an 11.5 FTE increase in staffing for 1989 and
a 15.5 FTE increase through 1991. The DEP can now project its short- and long-term staffing
needs in a more accurate and systematic fashion.
IMPEDIMENTS ENCOUNTERED : None
REGIONAL CONTACT: Bill Torrey, (617) 573-9604
STATE CONTACT: George Seel, (207) 289-2651
OUST WORK ASSIGNMENT MANAGER: Greg Waldrip, (202) 475-7265
CONTRACTOR: ICF Incorporated
ICF WORK ASSIGNMENT MANAGER: Howard Apsan, Edison, New Jersey, (201) 906-2400
LEVEL OF EFFORT: Hours. 180
PERIOD OF PERFORMANCE: June 6 - September 30, 1988

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TARGETED IMPROVEMENT PROJECT
REGION I
PROJECT : Assistance to Rhode Island in developing a geographic information system (GIS) to be
used for targeting inspections and enforcement.
PURPOSE : The Rhode Island Department of Environmental Management (OEM) in conjunction with
the University of Rhode Island began to track and plot its UST facilities in a GIS using the ARCINFO
software package. One of the difficulties in collecting the needed data was the labor intensive work
of groundproofing for which OEM had intermittent resources. ICF was brought in 0 prc”de this
support in a selected aeoaraphical area in Northwestern Rhoda s!ard
SCOPE OF WORK : The project consisted of reviewing existing data provided by DEM. touring the
region. fixing a location for each facility on topographical sheets, assigning an identification number
to each facility for later inclusion in the GIS, correcting inaccurate facility information (such as name.
address. or location), and highlighting potential problem cases.
PRODUCT : After the data was collected it was organized using Lotus 1-2-3 and presented to DEM
and the University of Rhode Island for inclusion in the overall effort. The final product was an
ARCINFO generated map of all water sources overlaid with UST facilities in Northwestern Rhode
Island
IMPROVEMENTS ACHIEVED : ICF provided assistance in groundproofing, organizing, and
integrating the data which OEM could not undertake because of existing demands on OEM staff.
The resulting GIS map overlays are an integral first step in establishing inspection and enforcement
priorities. Ultimately, DEM plans to map the entire state using in-house resources.
IMPEDIMENTS ENCOUNTERED : Groundproofing is a tedious and time consuming job, especially
in sparsely populated parts of the State where streets are often known by more than one name
REGIONAL CONTACT: Susan Hanamoto. (617) 573-9604
STATE CONTACT: Susan Kiernan. (401) 277-2234
OUST WORK ASSIGNMENT MANAGER: Greg Waldrip, (202) 475-7265
CONTRACTOR: ICF Incorporated
ICF WORK ASSIGNMENT MANAGER: Howard Apsan, Edison, New Jersey, (201) 906-2400
LEVEL OF EFFORT: Hours . 155
PERIOD OF PERFORMANCE: May 10 - September 30, 1988

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TARGETED IMPROVEMENT PROJECT
REGION I
PROJECT : Improve capability to track leak detection compliance in Rhode Island.
PURPOSE : The Rhode Island Department of Environmental Management (DEM) had established a
database system for notification and registration of all of the State’s USTs using the PC Focus
Database Management System. One of the new regulations coming into effect in Rhode Island was
the inclusion of spec ic leak detection requirements for each tank at each facility. In order to
properly track this information and provide DEM with adequate measures for prioritizing inspection
and enforcement efforts, the DEM Database Management System needed to be upgraded to
incorporate lead detection data into the database.
SCOPE OF WORK : CF completed the project, integrating this leak detection capability into the
remainder of the UST notification software package. This consisted of some restructuring of the
original database to accommodate the additional information, and the creation of new, linked
databases to include the leak detection data by tank and by facility.
PRODUCT : After the project was completed, ICF supplied DEM with a copy of the upgraded
database management package on diskette, and a thorough report of the restructuring and the
added data elements.
IMPROVEMENTS ACHIEVED : The DEM is now able to track leak detection compliance, by tank
and by facility, in addition to other notification data that had been previously included in its
database. The next stage of this project will be to actually implement the inspection enforcement
program based on the data collected and evaluated through this package.
IMPEDIMENTS ENCOUNTERED : The software that the original notification database used. PC
Focus, is fairly uncommon and complicated to use.
REGIONAL CONTACT: Susan Hanamoto, (617) 573-9604
STATE CONTACT: Susan Kiernan, (401 277-2234
OUST WORK ASSIGNMENT MANAGER: Greg Waldrip, (202) 475-7265
CONTRACTOR: ICF Incorporated
ICF WORK ASSIGNMENT MANAGER: Howard Apsan, Edison, New Jersey, (201) 906-2400
LEVEL OF EFFORT: Hours. 161
PERIOD OF PERFORMANCE: May 10 - September 30, 1988

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TARGETED IMPROVEMENT PROJECT
REGION II
PROJECT : Provide support in the development and implementation of the New Jersey Department
of Environmental Protection (DEP) UST permitting system.
PURPOSE : The New Jersey DEP is establishing a permitting system for various aspects of its UST
program. To make this permitting system effective, DEP requested support from ICF to develop a
permit tracking system designed to provide DEP officials with ready access to information
concerning facility permits, tank permits. and other requirements established under its new UST
regulations.
SCOPE OF WORK : ICF was asked to develop a database management system using dBase Ill to
support a network of personal computers in New Jersey’s UST unit. It is to be a menu-driven
system to provide adequate reporting capabilities for follow-up action by DEP. The system also had
to be capable of being used in conjunction with the UST notification system that DEP currently
uses. and to provide DEP with its own internal capability for tracking and monitoring the permit
system.
PRODUCT : A draft database management system designed to meet the specifications of the new
UST regulations is currently under development. This system will be completed when the State UST
regulations are finalized.
IMPROVEMENTS ACHIEVED : The permit tracking system will allow DEP to improve its
implementation of the permit regulations by providing ready access to all relevant tank permit
information.
IMPEDIMENTS ENCOUNTERED : The DEP was understandably reluctant to move ahead with the
project until the final structure and wording of the State permit regulations were established
REGIONAL CONTACT: Derval Thomas, (212) 264-1829
STATE CONTACT: Ken Goldstein (809) 774-3320
OUST WORK ASSIGNMENT MANAGER: Dana Tulis, (202) 475-9726
CONTRACTOR: ICF Incorporated
ICF WORK ASSIGNMENT MANAGER: Howard Apsan, Edison, New Jersey, (201) 906-2400
LEVEL OF EFFORT: Hours - 190
PERIOD OF PERFORMANCE: August 22, 1988 - April 30, 1989

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TARGETED IMPROVEMENT PROJECT
REGION II
PROJECT : Improve capability to assess the necessary measures and cost of UST corrective
actions in New York State
PURPOSE : As a result of changes in New York law and 40 CFR Part 280, the New York
Department of Environmental Conservation is seeking methods to improve its ability to assess the
necessary measures to conduct UST corrective actions. It is necessary to address questions
concerning cleanup requirements for responsible parties, projected costs, and the relationship
between soil contamination and cleanup.
SCOPE OF WORK : Three tasks were performed: 1) the current methods and cost data applicable
to UST site remediation were analyzed and a check list was developed to aid in standardizing the
cost estimating process: 2) responsible party notification procedures and regulations were reviewed
and an additional form was developed to clarify an UST owner’s obligations; and 3) a literature
search was conducted to identify information concerning soil and ground-water cleanup methods
and levels.
PRODUCT A report combining information on estimating cleanup costs, responsible party
notification, and the soil contamination literature review was issued.
IMPROVEMENTS ACHIEVED : New York State personnel now have a standardized system for
estimating the costs of corrective actions and standard forms for site inspection and responsible
party notification. The literature review provides useful background information for future site
assessment/corrective action decisions.
IMPEDIMENTS ENCOUNTERED : None.
REGIONAL CONTACT: Dma Li, (212) 264.2377
STATE CONTACT. Thomas McClane, (518) 457-2462
OUST WORK ASSIGNMENT MANAGER: Dana Tulis, (202) 475-9726
CONTRACTOR: F.C. Hart Associates, subcontractor to Midwest Research Institute
MRI WORK ASSIGNMENT MANAGER: Linda McConnell, Falls Church, Virginia, (703) 671-0400
LEVEL OF EFFORT: Hours - 225
PERIOD OF PERFORMANCE: September 26, 1988 - March 12, 1989

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TARGETED IMPROVEMENT PROJECT
REGION II
PROJECT : Assist the United States Virgin Islands Department of Planning and Natural Resources
(DPNR) in developing and implementing an UST database management system.
PURPOSE : The U.S.V.I. has an UST population for which it has no automated registration system
This makes it difficult for DPNR to establish and implement an efficient regulatory program.
particularly in the areas of certification for installation and closure, recordkeeping, and fee collection.
SCOPE OF WORK : ICF developed an implementation support tool consisting largely of a database
structured to collect, store, select, and report on various components of the DPNR UST program
At the request of DPNR, the database support uses dBase Ill and has a menu-driven package
designed for simplicity of use and comprehensiveness.
PRODUCT : ICF sent DPNR a diskette with the software applications and a report explaining how it
was developed, how it can be used, and how it should be implemented.
IMPROVEMENTS ACHIEVED : The DPNR will now have an automated tank notification system
which should dramatically improve the efficiency of their inspection and enforcement capabilities.
IMPEDIMENTS ENCOUNTERED : Because a key part of this TIP was the development of a
database management system, it would have been helpful to have had additional resources to allow
for development and inclusion of some data organization and programming ideas that inevitably
evolve in any computer systems prolect. Nevertheless, the system will be able to function as is and
should provide DPNR with a useful management tool.
REGIONAL CONTACT: Tom Taccone, (212) 264-1369
STATE CONTACT: Greg Rhymer, (809) 774-3320
OUST WORK ASSIGNMENT MANAGER: Dana Tulis, (202) 475-9726
CONTRACTOR: ICF Incorporated
ICF WORK ASSIGNMENT MANAGER: Howard Apsan, Edison, New Jersey, (201) 906-2400
LEVEL OF EFFORT: Hours - 80
PERIOD OF PERFORMANCE: August 22, 1988 - April 30, 1989

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TARGETED IMPROVEMENT PROJECT
REGION Ill
PROJECT : Training of Maryland UST inspectors in all aspects of hazardous substance UST
management.
PURPOSE : Due to change in the law. Maryland UST inspectors are now required to oversee the
installation of new hazardous UST systems, the upgrading of existing systems, testing, and the
closure of leaking systems. It was necessary to familiarize State inspectors with the new Federal
regulations and the practical engineering and environmental concerns related to hazardous
substance UST installation, upgrade, and abandonment.
SCOPE OF WORK : Initial contacts were made throughout the State to verify training needs before
a training schedule was developed. Supporting materials were developed for use by seminar
attendees In addition, all arrangements for speakers, equipment, handouts, and seminar location
were made.
PRODUCTS : A reference notebook was developed that addressed hazardous substance UST
management issues in depth. Additionally a state-of-the-art review manual on hazardous substance
USTs was provided. A two-day seminar was held January 23 - 24. 1989, in Baltimore addressing all
aspects of hazardous substance UST management for inexperienced personnel.
IMPROVEMENTS ACHIEVED : State implementation and enforcement personnel, who were novices
to the topic, are now well-trained in the new aspect i their lobs and have adequate reference
materials for future aid.
IMPEDIMENTS ENCOUNTERED : None.
REGIONAL CONTACT: Wayne Naylor, (215) 597-7354
STATE CONTACT: Bernie Bigham, (301) 225-5649
OUST WORK ASSIGNMENT MANAGER: Maureen Doughtie, (202 382-6964
CONTRACTOR: F.C. Hart Associates, subcontractor to Midwest Research Institute
MRI WORK ASSIGNMENT MANAGER: Cecily Beall, Falls Church, Virginia, (703) 671-0400
LEVEL OF EFFORT: Hours - 252
PERIOD OF PERFORMANCE: August 24, 1988 - February 28, 1989

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TARGETED IMPROVEMENT PROJECT
REGION Ill
PROJECT . Training of Virginia buitding inspectors and fire marshalls in all aspects of UST
management
PURPOSE . To improve the oversight of UST system installations, upgrades, and closures by
building inspectors and fire marshalls.
SCOPE OF WORK : ‘rovide an UST training seminar addressing the new Federal regulations. a
sound tank managern nt program, basic elements ot tank design, types of cathodic protection.
types of release detection, installation standards for new UST systems, and upgrade and repair of
existing UST systems In addition all arrangements for speakers, equipment, handouts, and seminar
iocation were made.
PRODUCT A practical two-day seminar was held January 11 - 12, 1989, in Richmond. addressing
all aspects of UST management. Extensive handouts were provided for attendees future reference
IMPROVEMENTS ACHIEVED : Virginia personnel responsible for implementing the UST
requirements at a local level are now familiar with the Federal regulations. the basic technical
features of USTs, and all aspects involved with UST management.
IMPEDIMENTS ENCOUNTERED : None
REGIONAL CONTACT: Wayne Naylor, (215) 597-7354
STATE CONTACT: Russel Ellison, (804) 367-6350
OUST WORK ASSIGNMENT MANAGER: Maureen Doughtie, (202) 382.6964
CONTRACTOR: F.C. Hart Associates, subcontractor to Midwest Research Institute
MRI WORK ASSIGNMENT MANAGER: Cecily Beall, Falls Church, Virginia, (703) 671-0400
LEVEL OF EFFORT: Hours - 252
PERIOD OF PERFORMANCE: August 24, 1988 - February 28, 1989

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TARGETED IMPROVEMENT PROJECT
REGION IV
PROJECT : Assist Region IV States develop cleanup standards by providing a survey of standards
in other jurisdictions.
PURPOSE : One of the issues that the States in Region IV have been especially concerned with is
the development and implementation of specific cleanup standards to support any corrective action
on UST spills. To provide the Region’s eight States with a better understanding of this issue, ICF
was asked to compile a survey of State cleanup standards to determine what cleanup standards are
in effect: to select a number of key States and counties with successful cleanup standard programs:
and to evaluate the efforts that went into developing those standards and some of the complications
involved in their implementation.
SCOPE OF WORK : ICF conducted a preliminary investigation of cleanup standards during the
summer and fall of 1988. The findings were collated in a draft report and presented to Region IV
States at a meeting in Atlanta in October, 1988. At that meeting ICF presented its preliminary
findings and solicited any additional questions or concerns from the States and the Region for
inclusion in the next phase of the protect. The next phase of the project included surveying
additional States: collecting data in selected counties; and collecting specific documentation from a
number of States as well as from industry organizations, such as the American Petroleum Institute,
to provide a more complete package as a reference document to any State interested in following
up on this issue and implementing specific cleanup guidelines.
PRODUCT : The end product of this TIP was a complete report on the nature of the survey, its
findings, a write-up of specific State and county studies, and supporting documentation for future
reference
IMPROVEMENTS ACHIEVED : The Region IV States now have nationwide data on which to base
their own cleanup standard, and selected case studies which provide added insight into the
development and implementation of cleanup standards.
IMPEDIMENTS ENCOUNTERED : Because so many States rely on a site-by-site determination for
at least some media. the guidance that they provided was very flexible, and therefore difficult to
include in a comparative analysis.
REGIONAL CONTACT: Mike Williams, (404) 257-3469
STATE CONTACT: N.A.
OUST WORK ASSIGNMENT MANAGER: Greg Waldrip, (202) 475-7265
CONTRACTOR: ICF Incorporated
ICF WORK ASSIGNMENT MANAGER: Howard Apsan, Edison, New Jersey, (201) 906-2400
LEVEL OF EFFORT: Hours - 500
PERIOD OF PERFORMANCE: July 25, 1988 - February 10, 1989

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TARGETED IMPROVEMENT PROJECT
REGION VII
PROJECT : Assistance to Region VU States in the areas of contracting and accounting.
PURPOSE : The four states that comprise Region VII (Missouri, Kansas, Nebraska. and Iowa) need
assistance in the areas of contracting and accounting. Lack of this assistance has impeded the
States current efforts to develop and implement the UST Grant and UST Trust Fund programs. A
framework is to be developed within each State to allow them to overcome their respective
contracting/accounting deficiencies.
SCOPE OF WORK : MRI will review and become familiar with the regulations and requirements of
the UST Grant and UST Trust Fund cooperative agreement contracting and accounting
requirements. Meetings will be held with each State’s key staff to provide training in the form of an
overview of fundamental contracting procedures. Training materials will be provided for the staff to
retain for future reference.
PRODUCT(S) : A sample contract and RFP have been developed to serve as an example for
Nebraska to use when issuing and awarding site assessment and corrective action work.
IMPROVEMENTS ACHIEVED : Nebraska personnel now have a contract mechanism that allows
them to facilitate UST site clean-up operations. This will subsequently be applied to the other
Region VII States. MRI supported Region VII in organizing a cost accounting workshop so that all
States in Regions VI and VII would become familiar with cost accounting systems used in those
States.
IMPEDIMENTS ENCOUNTERED : The project has experienced delays in the review of subcontract
and RFP documentation due to a change in procurement regulations (40 CFR Part 33 and 40 CFR
Part 31) which occurred dunng the initial stages of the prolect.
REGIONAL CONTACT: Blanca Roberts (913) 236-2852
STATE CONTACT: VaI Wilson (402) 471-4225
OUST WORK ASSIGNMENT MANAGER: Claudia Goforth (202) 382-7904
CONTRACTOR: Midwest Research Institute
MRI WORK ASSIGNMENT MANAGER: Fred Damon, Kansas City, Missouri, (816) 753-7600 ext
500
LEVEL OF EFFORT: Hours - 500
PERIOD OF PERFORMANCE: November 10, 1988 - MarCh 12, 1989. This assignment will be
extended.

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TARGETED IMPROVEMENT PROJECT
REGION VIII
PROJECT : Provide a seminar on the process for developing a State UST installer certification
program for State UST program staff and Region VIII UST staff.
PURPOSE : To provide a variety of information, in the form of discussion and materials, on how to
develop an UST installer certification program at the State level.
SCOPE OF WORK : E.C. Jordan, Company, an ICF subcontractor, conducted a seminar on
developing a State UST installer certification program addressing the following issues:
• How to ensure that certification candidates learn what they need to know to
be competent installers:
• How to train and certify a large number of people in a short timeframe with
minimal resources:
• How to minimize installer anxiety in the certification process:
• How to keep the program peratIng after the first year: and
• How to address recertification issues and future training seminars.
The information and materials provided was based on direct experience with the Maine
program, as well as lessons learned from other State programs.
PRODUCT : A seminar was conducted in Salt Lake City, Utah on July 20. 1988, for representatives
from Colorado, Montana, Oregon, South Dakota, Utah, and Wyoming and Region VIII staff.
Information and materials were provided on the following topics:
• Setting up and administering a State UST installer certification program;
• Selecting subject matter for instructing UST installers and inspectors:
• Handling enforcement issues:
• Evaluating candidates, on-site versus written examinations, and sublect
areas;
• Certification selection - individuals or companies; and
• Recertification, including training and fee requirements.
IMPROVEMENTS ACHIEVED : This seminar provided a sufficient framework of information for State
UST staff to begin to develop an LiST installer certification program in their State, and was viewed
by all participants as very useful.
IMPEDIMENTS ENCOUNTERED : None
REGIONAL CONTACT: Jim Rakers, (303) 293-1489

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STATE CONTACT: N.A.
OUST WORK ASSIGNMENT MANAGER: Greg Waldrip, (202) 475-7265
CONTRACTOR: E.C. Jordan, Company, subcontractor to ICF Incorporated
CF WORK ASSIGNMENT MANAGER: Barry Nestor. Fairfax. Virginia, (903) 934-3053.
LEVEL OF EFFORT: Hours - 55
PERIOD OF PERFORMANCE: June 6 - July 30, 1988

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TARGETED IMPROVEMENT PROJECT
REGION VIII
PROJECT : Provide a workshop on risk assessment and management for State UST program
managers and Region VIII UST staff.
PURPOSE : To provide training on the fundamentals of risk assessment and management that will
assist State UST program staff in making site-specific clean up decisions that will have to be made
by States under the UST program.
SCOPE OF WORK : Temple, Barker and Sloane, Inc., an ICF subcontractor, conducted a workshop
on risk assessment and decision-making that took into consideration the specific needs of State
UST programs and provided materials to meet these needs.
PRODUCT : A training workshop was conducted in Rapid City, South Dakota on May 17 - 18, 1988
for approximately 12 State UST program managers and Region VIII UST staff.
IMPROVEMENTS ACHIEVED : This training exposed the participants: to an increasingly important
component of regulatory decision-making within EPA and State environmental agencies: and to an
excellent analytical tool for use during UST program implementation.
IMPEDIMENTS ENCOUNTERED : None
REGIONAL CONTACT: Jim Rakers, (303) 293-1489
STATE CONTACT: N.A.
OUST WORK ASSIGNMENT MANAGER: Greg Waldrip, (202) 475-7265
CONTRACTOR: Temple, Barker and Sloane, Inc., subcontractor to ICF Incorporated
ICF WORK ASSIGNMENT MANAGER: Barry Nestor. Fairfax. Virginia, (703) 934-3053
LEVEL OF EFFORT: Hours 30
PERIOD OF PERFORMANCE: May 10 - 18, 1988

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TARGETED IMPROVEMENT PROJECT
REGION VIII
PROJECT : Provide training to State personnel in Region VIII for performing and interpreting tank
testing
PURPOSE : To train Region VIII personnel to better perform and interpret tank tests using the two
most common types of tank testing, Hunter and Petro-tite, as examples. The State personnel were
also taught to detect abnormalities in tank test data.
SCOPE OF WORK : Midwest Research Institute made the arrangements for a training seminar for
State personnel. Planning included providing for instructors and equipment, coordinating and
supervising the instructors training information, and arranging the event.
PRODUCTS A two-day seminar was held in Denver, Colorado in October of 1988. In addition,
training materials were provided and a checklist for subsequent use by the participants was
developed to be used for validating and interpreting tank tests. A final report was prepared
discussing the training results and recommendations for further training.
IMPROVEMENTS ACHIEVED Region VIII personnel are now able to evaluate tank tests in a
standardized manner.
IMPEDIMENTS ENCOUNTERED : None.
REGIONAL CONTACT: Ten Bahrych, (303) 293-1484
STATE CONTACT: N/A
OUST WORK ASSIGNMENT MANAGER: Dana Tulis, (202) 475-9726
CONTRACTOR: Midwest Research Institute
MRI WORK ASSIGNMENT MANAGER: .Joe Hennon, Kansas City, Missouri, (816) 753-7600, ext.
529
LEVEL OF EFFORT: Hours - 102
PERIOD OF PERFORMANCE: September 15, 1988 - March 12, 1989

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TARGETED IMPROVEMENT PROJECT
REGION VIII
PROJECT : Assistance to Utah in analyzing proposed financial responsibility legislation and liability
issues.
PURPOSE : To assist Utah in analyzing the costs of operating an LJST financial liability fund,
determining if UST liability insurance was available in the State, and reviewing some pending
financial responsibility legislation.
SCOPE OF WORK : ICF worked with EPA Region VIII, Utah legislature staff, and related State staff
to define Utah’s UST program financial responsibility needs, and to identify options for responding
to those needs
PRODUCTS : There were four products resulting from this project:
1 A 1 7-page written report reviewing and analyzing a draft legislative
bill related to financial responsibility;
2 An 1 1-page written report analyzing the cost of establishing and
maintaining a Utah UST financial responsibility fund;
3. A 6-page written report analyzing the administrative costs of running
a Utah financial responsibility fund; and
4. A 4-page report detailing the availability of UST insurance from
Utah’s private insurance industry.
IMPROVEMENTS ACHIEVED : As a result of these reports, Utah’s UST program and legislative staff
are rethinking their financial responsibility program and are considering the additions and
alternatives detailed in the reports. They reported that the reports were a great aid in identifying
where the Utah UST program may not meet EPA criteria for State Program Approval. As a direct
result of work in this area a $17.5 million State fund has been established.
IMPEDIMENTS ENCOUNTERED : The largest impediment to the completion of this project was
funding. The reports were just a beginning and did not allow for complete analysis and follow
through that would have best benefited Utah and maximized the dollars spent. Utah felt they were
just getting into the problem and would have preferred assistance for at least another few months
Without it, they are not likely to progress at the same rate or with the same level of creativity they
demonstrated during this project.
REGIONAL CONTACT: Jim Rakers, (303) 293-1797, FTS
STATE CONTACT: Mark Ellis, (801) 538-6170
OUST WORK ASSIGNMENT MANAGER: Dana Tulis, (202) 475-9726
CONTRACTOR: ICF Incorporated
ICF WORK ASSIGNMENT MANAGER: Mike Berg; E. Frances David, San Francisco, California.
(415) 957-0110

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LEVEL OF EFFORT: Hours - 179
PERIOD OF PERFORMANCE: August 22 - November 30, 1988

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TARGETED IMPROVEMENT PROJECT
REGION IX
PROJECT : Assistance to Arizona UST program in preparing test State Program Approval (SPA)
application
PURPOSE : The purpose of the Arizona TIP was threefold: (1) to assist Arizona in a test run of a
draft SPA application; (2) to provide EPA Region IX UST program staff with an analysis of Arizona’s
‘program readiness’; and (3) to determine how well the OUST draft SPA Handbook functioned in
real world’ situations.
SCOPE OF WORK : A member of CF’s West Coast staff spent three weeks working in the offices
of the Arizona Department of Environmental Quality in Phoenix. Major task responsibilities included
meeting with the State Attorney General, the State Fire Marshal’s staff, and local county officials to
identify problems in Arizonas UST program development or the scope of applicable legislative
authority Assistance in the preparation of the completed test SPA application was also provided.
PRODUCTS : Three distinct products were provided:
1. A completed test SPA application for Arizona to submit to EPA
Region IX.
2. A written report to EPA Region IX on the degree to which Arizona’s
UST program had developed. The report highlighted strengths and
weaknesses of the program to date covering organization, staffing,
financing, and appropriate legislative authority.
3. A written report to OUST Headquarters analyzing the strengths and
weaknesses of the draft SPA Handbook, and suggested changes for
the next edition.
IMPROVEMENTS ACHIEVED : From the analysis and feedback, and the written reports provided by
CF and the Regional EPA Program Officer, Arizona was able to submit a sufficiently complete test
SPA applic.ation to EPA Region IX for their preliminary feedback. This allowed Arizona to focus on
those areas defined by the Region as deficient, and to anticipate EPA’s review process for the final
SPA application. Since that process. Arizona has reorganized their department and increased
negotiations with local jurisdictions for these local agencies to assume permitting and enforcement
responsibilities in key geographical areas.
The ‘field testing’ of the draft SPA Handbook provided OUST with specific information about
its useabihty, and suggestions for changes that were incorporated into the final version.
IMPEDIMENTS ENCOUNTERED : There were no real impediments to this TIP since the purpose
was to test the ‘application readiness’ of the Arizona UST program. However, Arizona’s lack of
program development prevented the process from being as useful as it might have been to either
the State or EPA Region IX.

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REGIONAL CONTACTS: Eric Yunker; Virginia Cummings; and Mat White, Arizona Program
Officer, (415) 974-8160
STATE CONTACTS: Lisa Lund; Sally Mapes. (415) 257.2380
OUST WORK ASSIGNMENT MANAGER: Jeny Parker, (202) 475-7263
CONTRACTOR: ICF Incorporated
ICF WORK ASSIGNMENT MANAGER: E. Frances David. San Francisco. California, (415) 957-0110
LEVEL OF EFFORT: Hours - 180
PERIOD OF PERFORMANCE: April 1 - May 30, 1988

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TARGETED IMPROVEMENT PROJECT
REGION IX
PROJECT : Assistance to California UST program in preparing test State Program Approval (SPA)
application
PURPOSE : The purpose of the California TIP was threefold: (1) to assist California in a test run of
a draft SPA application: (2) to provide EPA Region IX UST program staff with an analysis of
California’s ‘program readiness’: and (3) to determine how well the OUST draft SPA Handbook
functioned in ‘real world’ situations.
SCOPE OF WORK : A member of CF’s West Coast staff spent four weeks working in the offices of
the California Water Resources Control Board in Sacramento. Major task responsibifities included
meeting with staff and managers of the Board, the State Attorney Generals office, the State Fire
Marshal’s office, and State legislative staff to identify problems in Catifornias UST program
development or the scope of applicable legislative authority. Assistance in the preparation of the
completed test SPA application was also provided.
PRODUCTS : Three distinct products were provided:
1. A completed test SPA application for California to submit to EPA
Region IX.
2. A written report to EPA Region IX on the degree to which California’s
UST program had developed. The report highlighted strengths and
weaknesses of the program to date covering organization, staffing,
financing, and appropriate legislative authority.
3. A written report to OUST Headquarters analyzing the strengths and
weaknesses of the draft SPA Handbook, and suggested changes for
the next edition.
IMPROVEMENTS ACHIEVED : As a result of this TIP, California was able to submit an almost
complete test SPA application to EPA Region IX for their preliminary feedback. This allowed
California to focus on those areas defined by EPA as deficient, and to anticipate EPA ’s review
process for the final SPA application. As a result of the independent analysis of their program,
California was able to significantly decrease the required timetrame for having a fully operational
UST program throughout the State.
The analysis of the draft SPA Handbook allowed California to identify those areas where
they disagreed with the EPA application and approval process allowing them to open specific
discussion with both EPA Region IX and OUST. Since California’s representative also sat on the
OUST SPA Advisory Board at the time, it allowed for a first-hand look at the product (SPA
Handbook) the Board had helped develop.
The field testing’ of the draft SPA Handbook provided OUST with specific information about
its useability, and suggestions for changes that were incorporated into the final version.
IMPEDIMENTS ENCOUNTERED : None
REGIONAL CONTACT: Eric Yunker, (415) 974-8160

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STATE CONTACTS: Roger Johnson; Tern Brazile, (916) 322-3133
OUST WORK ASSIGNMENT MANAGER: Jerry Parker, (202) 475-7263
CONTRACTOR: ICF Incorporated
ICF WORK ASSIGNMENT MANAGER: E. Frances David, San Francisco, California, (415) 957-0110
LEVEL OF EFFORT: Hours- 190
PERIOD OF PERFORMANCE: April 1 - May 30,1988

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TARGETED IMPROVEMENT PROJECT
REGION X
PROJECT : Support Oregon Department of Environmental Quality (DEQ) in updating its tank
registration and permit program database.
PURPOSE : To assist DEQ in their data entry process for tank registration and permits The DEQ
needed to enter this data into their system, in a timely manner, in order to determine the extent of
their regulated community, implement their permit program, and determine their needed State
enforcement effort.
SCOPE OF WORK : CF’s Northwest staff assisted Oregon’s DEQ in recruiting and selecting two
data entry cierks that were familiar with Oregon’s data management program. These c:erxs who
b ccm srcrt-term iOF empioyees. performed their data entry tasks at DEQ offices under DEQ staff
sucerj,s n
PRODUCT : An updated tank information database
IMPROVEMENTS ACHIEVED : With this assistance, DEQ was able to temoorarily overcome State
civil service :cnstraints and obtain needed experienced data entry clerks rapidly. The objective of
updating DEQ s database was achievea. With oier 3.000 cermits issuea and approximately 1.000
decommissions documented. Oregon is progressing rapidly with its tank registration program
IMPEDIMENTS ENCOUNTERED : This TIP was a very straightforward task and could have been an
easy way to assist Oregon. However, because of ICF/EPA contract requirements, ICF personnel
policy, Oregon State wage tax law, and too many administrative layers: the State of Oregon. EPA
Region X, OUST, and ICF’s local office and headquarters: getting this project started became very
cumbersome which created negative feelings with DEQ staff All parties now agree that the T!Ps
process was not an appropnate mechanism for procuring data entry support.
REGIONAL CONTACT: Joan Cabreza, (206) 442-0344
STATE CONTACT: Mary Lou Perry. (5031 229-5731
OUST WORK ASSIGNMENT MANAGER: Mark Waiwada, (202) 475-9727
CONTRACTOR: ICF Incorporated
ICF WORK ASSIGNMENT MANAGER: Jim Shellooe, Redmond, Washington, (206) 885-7075
LEVEL OF EFFORT: Hours . 434
PERIOD OF PERFORMANCE: September 9 - December 30, 1988

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TARGETED IMPROVEMENT PROJECT
REGION X
PROJECT : Assistance to the State of Washington in formulating potential costs for State UST
program
PURPOSE : To assist the Washington Department of Ecology (DOE) and the Washington State
Legislature in analyzing the cost of establishing and operating an UST program in the State.
SCOPE OF WORK : ICF assisted the State in analyzing the costs, effectiveness, and administrative
feasibility of three generic UST programs plus a fourth program ttiat combined features of the three
generic options as follows:
1 A ‘traditional DOE-implemented program that seeks to ensure
regulatory compliance by periodic inspections:
2. A locally-implemented program with program design, training,
technical assistance, and oversight by DOE,
3 A DOE computer tracking and certification program that enables DOE
to target its compliance monitoring and enforcement efforts: and
4. A combined approach.
The programs analyzed were based, in part, on existing and planned UST programs in
several states including California, Connecticut, Flonda, Illinois, Maryland. Massachusetts. New York.
Oregon, and Utah. The report did not make recommendations for one structure over another, but
rather suggested additional steps DOE might take in the analysis to further refine their options and
clarify a choice.
PRODUCT : A 36-page written report analyzing four optional structures for program organization
and administration, as well as their associated costs.
IMPROVEMENTS ACHIEVED : The project Drovided the State of Washington with the basis for
making organizational decisions related to their UST program: and assisted them in making initial
decisions on establishing program priorities.
IMPEDIMENTS ENCOUNTERED : There were no real impediments to the completion of the project.
Add ionaI funding would have allowed the Region and its contractor to follow through on the
information provided to the State i.e., to encourage and assist in implementation.
REGIONAL CONTACTS: Joan Cabreza, (206) 442-0344: Denise Baker (206) 442-2115
STATE CONTACT: Tom Lufkin, (206) 459-6272
OUST WORK ASSIGNMENT MANAGER: Mark Waiwada, (202) 475-9727
CONTRACTOR: ICF Incorporated
ICF WORK ASSIGNMENT MANAGER: Mike Berg; E. Frances David, San Francisco, California.
(415) 957-0110

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LEVEL OF EFFORT: Hours - 203
PERIOD OF PERFORMANCE: July 28 - September 15. 1988

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TARGETED IMPROVEMENT PROJECT
REGION X
PROJECT : Improve analysis of leaking UST data in the State of Washington
PURPOSE : Provide the State of Washington specif ic information on the number of leaking tanks in
the State. Technical input is desired to aid in the development of a database needed to produce a
reinsurance program for UST owner/operators.
SCOPE OF WORK : MRI evaluated a report developed by the Washington State Senate Ways and
Means Committee estimating the number and types of tanks in the State which are leaking and for
which the resultant cleanup would be greater than some fixed amount. MRI compared the data to
their database from the National UST Survey and identified areas which required additional data.
The report was reviewed a second time. after revision, to provide short- and long-term
recommendations.
PRODUCT(S) . MRI provided a written critique of the Washington State Senate Ways and Means
Committee report, along with short- and long-term recommendations to develop a database to better
predict the number of leaking USTs.
IMPROVEMENTS ACHIEVED : The statistical analysis of the data used to predict tank leaks was
improved. MRI developed a mode (from the data collected during the National UST Survey) which
could be used to estimate the probability of leaking for a specific tank with greater accuracy than
the original model employed by the State. This will aid the State of Washington in making wise
decisions in the allocation of funds.
IMPEDIMENTS ENCOUNTERED : There were insufficient hours for the scope of work.
REGIONAL CONTACT: Joan Cabreza, (206) 442-0344
STATE CONTACT: Thom Lufkin, (206) 459-6272
OUST WORK ASSIGNMENT MANAGER: Mark Waiwada. (202) 475-9727
CONTRACTOR: Midwest Research Institute
MRI WORK ASSIGNMENT MANAGER: Joe Hennon, Kansas City, Missouri, (816) 753-7600 ext.
529
LEVEL OF EFFORT: Hours - 78
PERIOD OF PERFORMANCE: October 7, 1988 - December 31, 1988

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St 4 , ,
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
_____ WASHINGTON. D.C. 20460
1.
L
OE joao OFFICE OF
- SOLID WASTE AND EMERGENCY RESPON:
MEMORANDUM
SUBJECT: Targeted Improvement Pro ects , 9 J ) for FY 1989
FROM: Joseph Retzer, Director
Implementation Division ST
TO: Regional UST Program Managers
As we enter the second year of making Headquarters contract
funds available to each Region to assist State program
development through Targeted Improvement Projects (TIPS), the
Office of Underground Storage Tanks (OUST) is pleased to announce
an increase in TIPS funding for Fl 1989. Each Region has
immediately available $50,000 for TIPS development and
implementation. This increase in the TIPS allocation results
from the overall success of this program during Fl 1988, and
Headquarter’s desire to expand on these successes and to develop
new avenues of support for State program development this year.
Last year provided a valuable learning experience for
Headquarters, the Regions, and the States in the process of•
developing, initiating, and implementing the TIPs program. As a
result of this experience, a change in the procedure for Regions
to obtain contractor support is being initiated for F! 1989 TIPs.
This change will allow Regions to follow the Work Assignment
procedures currently used by Headquarters for obtaining
contractor support under the Headquarters contracts.
Attached is guidance that sets forth these new contract
procedures for Fl 1989 TIPs. We are changing the procedures this
year to make it easier for you to initiate contractor support and
to increase your control in managing the contract Work
Assignments. The primary change is to make you or one of your
staff the Work Assignment Manager. If you have any questions,
please contact me or Greg Waldrip, the OUST TIPS Coordinator, at
475—7265.
UST/SPA/T/88-1

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CONTACT PROCEDURES FOR FT 1989 REGIONAL
TARGETED IMPROVEMENT PROTECTS (TIPS)
To procure contractor support for all. Regional TIPs through
the Work Assignment mechanism, the following procedures and
guidelines should be followed:
• After the Regional UST Program Manager has made a
determination on which State TIPS to undertake:
1) the Region’s Headquarters Desk Officer should be
notified that a TIPs Work Assignment is being
developed, and 2) contact with a potential
contractor should be initiated.
If a potential contractor cannot be identified,
assistance can be requested from Headquarters in
this regard.
• Next, a pre-Work Assignment planning discussion
should be held with the potential contractor to
discuss the work to be performed and develop level
of effort (hours) and budget estimates. We suggest
you use the attached worksheet (Attachment 1) during
the pre-Work Assignment planning meeting. At the
completion of this planning process all parties
should come away with a common understanding of the
work requirements, the level of effort, and other
direct costs, such as travel, graphics support,
telephone, deliveries, etc. required to complete the
Work Assignment.
• After pre-Work Assignment planning discussions with
the contractor, the Regional UST Program Manager
should then prepare a Work Assignment. Attachment 2
is a sample Regional TIPS Work Assignment which
covers three TIPS tasks.
• The following general guidelines apply to Regional
TIPs Work Assignments:
- The Regional UST Program Manager or a designated
Regional UST staff member will be the Work
Assianment Manacier.
- A separate Work Assignment must be prepared for
each contractor, if all tasks within a Work
Assignment will not be performed by the same
contractor.

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—.2—
- The level of effort should be the sum of the
hours estimated for each task. During the
performance period hours can be shifted between
tasks.
- Each State TIP should be a separate task within
the overall Work Assignment as set forth in the
attached sample Regional TIPS Work Assignment
(see Attachment 2).
- Once the Work Assignment is in place
modifications can be made to add new tasks,
change the scope of work or level of effort of
specific task, or extend the period of
performance. This will allow the’Work
Assignment Manager flexibility in controlling
TIPS to more efficiently meet the Region’s
objectives for TIPS.
• While developing a TIPS WorkAssignment, the Region’s
Desk Officer should be contacted and provided with the
following information:
- Work Assignment Title
- Estimated Level of Effort (Hours)
- Completion Date of the Work Assignment
- Work Assignment Manager
The Desk Officer will then prepare an original Action
Request form (see Attachment 3) and obtain a Work
Assignment Number. The Action Request form will then be
sent to the Regional Work Assignment Manager for
signature and transmittal to Headquarters with the Work
Assignment. This package should be sent to the Region’s
Desk Officer for processing.
• Upon receipt at. Headquarters, the required approvals
by -the appropriate OUST Branch Manager and Division
Director and the Project Officer will be obtained.
The Work Assignment will then be forwarded to the
EPA Contracting Officer for final approval.
• After approval by the EPA Contracting Officer
(usually within seven to ten days), a copy of the
approved Work Assignment will be sent to the
Regional Work Assignment Manager. The signature
date of the EPA Contracting Officer is the effective
date of the Work Assignment. The contractor is
prohibited from beginning any work under the Work
Assignment prior to this date.

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—3—
• The contractor is required to provide a monthly
progress report for each active Work Assignment.
This report is sent from the contractor’s
headquarters to the OUST Project Officer by the 15th
of the following month. A copy of the monthly
progress report will be sent to the Work Assignment
Manager each month.
Questions regarding these Work Assignment procedures and
guidelines should be directed to your Headquarters Desk Officer
or Greg Waidrip, (475—7265), the OUST TIPS Coordinator.
Attachments

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ATTACI NT I Page 1 of 2
GOVERNMENT COST ESTThI&TE VOR1CSHEET
WORK ASSIGNMENT TITLE: ________________________________
LEVEL OF EFFORT (II 0)ki) SUBCONTRACTOR LOE)
Estimated
Tasks Task Descriotioi Hours
1 Project start-up and prep c work plan 20
2
3
4
5
6
7
8 Special Tasks (if necessary):
• graphics
• editing
a camera ready copy
9 Submit Monthly Reports (10-15 hrs/inonth)
10 Management Time (normally about lOX of LOE
but will depend on thr i cv I of difficulty
and duration of the wov1 ‘rigninent)
Total LOE

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ATTAC (ENT I. Page 2 of 2
OTHER DIRECT COSTS
DescriDtfon Dollars
Travel: of trips _____; average cost/trip-_____
Clerical (Approximately lOX of professional. hours)
Graphics
Reproduction
Deliveries (Local and Overnight)
Local travel and parking
Other Costs :
Mainframe Computer Yes/No
Telephone (only for long distance calls) Yes/No
Temporary professional help (only if hours not included Yes/No
in LOE)
Data/document purchase Yes/No
• Off-site reproduction Yes/No
• Special binding/distribution of reports/manuals Yes/No
Additional postage Yes/No
Other:

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ATTACHIIENT 2
SAMPLE
EPA Contract No. 68—01—7385
Work Assignment No. 99
Region XX Targeted Improvement Proj eats
Statement of Work
I. Background
The Environmental Protection Agency (EPA) and its Office of
Underground Storage Tanks (OUST) are responsible. for establishing
policies and programs under Subtitle I of the Hazardous and Solid
Waste 2 mendments of 1984 to the Resource Conservation and
Recovery Act of 1976. Subtitle I also provides for States with
EPA approval to carry out their own UST programs in lieu of the
Federal program. In accordance with Section 2C, as stated on
page 3 of the Statement of Work, EPA requires contractor support
to “Assist in the development of State and local capabilities to
implement Subtitle I.tt
The purpose of this Work Assignment is to procure contractor
support for Regional Targeted Improvement Projects (TIPS) that
are set forth as Tasks below. TIPs are intended to facilitate
UST Regional Program Manager assistance to States for the
development and implementation of their own UST programs.
II. Description of Tasks
The contractor shall, at the direction of the Work
Assignment Manager, perform the following tasks:
Task 1 — Prolect Manaaement
The contractor shall discuss the scope of work with the
Work Assignment Manager prior to submitting a Work Plan.
Within 15 days of receiving this Work Assignment, the
contractor shall prepare a Work Plan that describes the work
to be conducted, key staff, labor hours, cost, and a
schedule for completing specific assignments under each of
the following tasks.
The contractor shall inform the Work Assignment Manager
when utilized labor hours reach 50 percent, 75 percent, and
90 percent of the approved hours. The contractor also shall
notify the Work Assignment Manager when 50 percent, 75
percent, and 90 percent of the budget (approved amount) for
this Work Assignment has been expended.

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SAMPLE
Task 2 — Tank Installer Certification Proaram Seminar
The contractor shall conduct a one—day seminar for
Region XX State UST program managers on the establishment of
a State UST installer certification program. The date and
location for this seminar shall be determined jointly by the
Work Assignment Manager and the contractor. The contractor
shall provide appropriate materials to the seminar
participants to assist then in establishing their own State
programs and proivde them with t( lessons learned” from other
State UST installer certification programs.
Task 3 — State A1 ha UST Pro ram Workload Analysis
The contractor shall assist State Alpha in studying and
forecasting the UST program work tasks and resources that
can be anticipated in the next three to five years. The
contractor shall perform the following tasks:
1. Quantitatively assess the current inspection and
enforcement workload and evaluate current staffing and
resource levels to meet this workload.
2. Project quantitatively, the future workload and
resource needs for the next three to five years, taking
into account delegation of the Federal UST/LUST program
compliance schedule for non—conforming facilities.
3. Evaluate the method and level of resources devoted
to the UST/LUST program management now and estimate the
level of resources needed in three to five years.
4. Prepare a preliminary and, final report that -
incorporates comments from the State UST program.
Task 4 - State Beta Permit Tracking System
The contractor shall assist State Beta’s Department of
Environmental Affairs (DEA) in developing a system for
tracking permit applications and permit compliance. The
contractor shall perform the following tasks:
1. Examine available software products used by the UST
program and, with the approval of State Beta’s UST
program management, select a software product for DEA’s
permit tracking system.
2. Design and install a tracking system for UST permits
in consultation with State Beta’s UST program staff.
The contractor shall test-run the system using “dummy
ta ”

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SAMPLE
3. Provide the necessary training to appropriate State
Beta UST program staff on operating the permit tracking
system.
III. Reports
The contractor shall prepare monthly progress reports as
required in the contract.
IV. Schedule and Deliverables
The contractor shall prepare a Work Plan and budget with 15
days of receiving this Work Assignment. The contractor shall
work closely with the Work Assignment Manager to assure that
acceptable descriptions of the work to be undertaken are
prepared, that appropriate schedules are established, that
revisions to the aforementioned are approved by the Work
Assignment Manager, and that appropriate staff are assigned.
V. Period of Performance
Fran effective date to April 30, 1989.
VI. Level of Effort
The contractor shall notify the Work Assignment Manager if
it anticipates exceeding 500 professional hours in the
performance of this work.
VII • Work Assignment Manager
Helen. Martin (123) 456—7899

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• SAMPLL’
—
: wTRAcT ;4O: 8— !;L 5_ Oo. Plan e+.
TRi C O :LCF_ PPROPRIATtO(4: 9 I _ ..4 -
WORI ASSIGNMENT NO.: DCN: tMO2O4
JRIGINAL ASSIGNMENT_L WORK PLAN APPROVAL.._,, WORK PLAN APPROVAL (CONDITIONAL)___
ASSIGNMENT ENDMENT__ AMENDMENT WORKPLAN APPROVAL__ OTHER ACTION___
WORK ASSIGNMENT TITLE:
BRIEF DESCRIPTION AND PURPOSE:
_ ___
DELIVERABLES:
SCOPE OF WORK REFERENCE (page and paragraph): EL_I AQ_1_____..
ESTIMATED LOE (WA): APPROVED HOURS (NP):
APPROVED AMOUNT (NP):
PERIOD OF PERFORMANCE: t ioq_Q1jjqg _9 jL_._
CONTRACTING OFFICER: C LE PHONE: a9a:51 2Z!L___..._
MAIL CODE: PPI—214F
PROJECT OFFICER: gg g_j g gR PHONE: Q : Z ZThf
MAIL CODE: OS—420
WORK ASSIGNMENT MANAGER: P ! _I i PHONE: 2 :±Th:!flL_____
NAIL CODE: Q : 2
APPROVALS
I have thoroughly reviewen the attached and find that
(Initial where appropriate): -
the r eei2 eent (a) give! the cc tractor clear direction dw
(b) is essential to achieve our technical objective
Cc) describes needed and usable deliverables di*u,.
Cd) is within the scope of the contract .. tjwj __
SIGNATURE DATE
WORK ASSIGNMENT MANAGER:
BRANCH CHIEF: — 1::; ::.
DIVISION DIRECTOR: —— lijio/9
PROJECT OFFICER: qjlofn
CONTRACTING OFFICER:

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NOTE
TO: UST/LUST Regional Program Managers
SUBJECT: Recent Court Decisions Related to USTs
December 8, 1992
Attached for your information are summaries of two recen.
court decisions related to the regulation of USTS. One case
relates to a suit brought by the current owner of property for
reimbursement of costs he incurred in removing the USTs. The
other case concerns a citizen suit brought pursuant to RCRA
Section 7002 by the current owners of property contaminated by a
leaking UST5 (mineral spirits) against past owners of the
property and the installer of the USTs piping system.
Da id Ziegele
Attachments
cc: UST/LUST Regional Branch Chiefs
OUST Management Team
UST/E/92-2

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f 4 UNITED STATES ENVIRONMENTAL PROTECTiON AGENCY
WASHINGTON. D.C. 20460
I L
NOV I 2 1992
OFFICE OF ENFORCEMENT
MEMORANDUM
SUBJECT: Favorable Memorandum Opinion and Order re: Citizen Suit
for Leaking Underground Storage Tanks Containing
Petroleum: Zands v. Nelson (II) , (S.D.Cal. 1992)
FROM: Mimi Newton
Attorney-Advisor
TO: Kathie A. Stein
Enforcement Counsel for RCRA
In a Memorandum Opinion and Order dated June 25, 1992,
District Court Judge Gordon Thompson, Jr. for the District Court
for the Southern District of California denied both plaintiffs’
and defendants’ motions for summary judgement and granted summary
judgement sponte for an additional defendant. The action is
a citizen suit brought pursuant to Section 7002 (a) (1) (B) of the
Resource Conservation and Recovery Act (RCRA) by the Zands,
current owners of a property contaminated by a leaking
underground storage tank (UST), against a panoply of past owners
and operators as well as the installer of the tank’s piping
system.
BACKGROUND
Samuel and Sara Zands brought suit against a piping
installer and a string of past owners and operators of USTs on a
piece of property the Zande bought and later discovered was
contaminated from a leaking UST. The Zands claimed they were not
responsible in any way for the contamination and that it had
occurred prior to their purchase of the property. The Zands
acquired the property in question from Jay and Nora Goodwin in
1980. The Goodwin’s had acquired the property from Mildred Tacey
in 1979 who had, in turn, acquired it from Paul and Ellen Nelson
in 1976. The Nelsons had owned the property since 1961.
In 1972 Fritz Nachant Co. installed the piping and pumps for
the gasoline tanks. The Ne].sons operated the UST8 until 1975
when they leased the property to Stephen and Cletus Kramer who
operated the USTs until 1979. The evidence is unclear whether or
not anyone operated the tanks after 1979 when the Ne].sons ceased
operations. In 1987 the local fire department ordered the Zands
to remove the tanks. After removing the tanks, the Zands
discovered that the soil on the property had been contaminated
with hydrocarbons.
T Printed on Recycled Pape’

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2
On December 3, 1991, the District Court held that RCRA did
not contain a petroleum exclusion and that the petroleum leaking
from the UST was a solid waste. The Court found that the
creation of this solid waste and its subsequent ‘abandonment’ on
the ground sufficiently supported the Zands’ claims against the
defendants for contributing to ‘the past or present handling,
storage, treatment, transportation, or disposal of any solid or
hazardous waste which may present an imminent and substantial
endangerment to health or the environment.’ [ RCRA §
7002(a)(1)(B)J. Zands v. Nelson (I) , 779 F.Supp. 1254
(S.D.Cal. 1991).
PLAINTIFF’S MOTION FOR SU ARY JUDG NT
The Court first examined the plaintiffs’ motion for summary
judgment against the owner/operator defendants. It found that
these defendants were similarly situated and subject to the same
standard of legal review. First, the Court found that each of
these defendants was a “person’ within the meaning of the
statute. The Court stated that the plaintiffs need not show
“tha the property is a storage facility.’ The language of RCRA
§ 7002 which states that liable parties ‘ includrel any...past
owner or operator of a...storage...or disposal facility’ is not
so restrictive. ( Order at 23217, (emphasis added)).
The Court noted that the two elements remaining for the
plaintiffs to show in order to prevail were that 1) there is an
imminent hazard, and 2) that defendants contributed to the
hazard. Based on evidence that anywhere from 3,000 to 40,000
gallons of contamination occurred at the site, the Court quickly
found that ‘there is an imminent and substantial endangerment to
health or the environment as a result of the contamination...’
at 23218)
The Court next turned to the issue of contribution to the
contamination by the owner/operator defendants and found that,
for the purposes of the summary judgment motion, a genuine issue
of fact existed. However, the Court provided an analysis of the
elements of contribution which would need to be proven at trial
in order to assist the parties in preparing for trial.
First, the Court indicated that it must find a nexus between
each defendant and the solid waste. It construed contribution in
a “liberal fashion,’ stating that ‘the direct relationship
between the leakage and the equipment owned and operated for use
at the gas station is sufficient to prove the element of
contribution.’ ( 1g. at 23218-9). The Court also noted that the
evidence indicated the contamination could not have come from any
other source but the tanks removed by the Zands.

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3
The Court then declared that the plaintiffs must show that
the contamination occurred at the time that the defendants were
the owners and operators of the tanks. The plaintiffs would only
be able to hold the defendants liable for that portion of the
contamination that occurred prior to the time when the Zands
acquired the property. The plaintiffs would be required to show
at trial that ‘at least some of the contamination occurred prior
to the transfer of the property to the (Zands]. ( . at 23220).
As a result, the Court indicated it would hold the trial in two
stages, first, to determine whether any of the leakage occurred
prior to the sale to the Zands and second, to provide each of the
owner/operator defendants an opportunity to shift liability to
the remaining defendants.
The defendants argued that the burden of proof should be on
the plaintiffs to show that “the contamination occurred during a
specific defendant’s ownership or operation.’ ( .). The Court
rejected this argument and launched into a detailed discussion of
burden of proof issues relating to this particular type of RCRA
claim. In dealing with several possible tortfeasors, the Court
noted that there are three types of approaches that have been
adopted by various jurisdictions. The Court stated that it would
draw upon each of these theories in beginning to develop a
federal common law of consecutive owner and consecutive operator
liability under RCRA’s imminent hazard provisions. (hg. at
23222).
The first approach is alternative liability , ‘where several
defendants act tortiously and it is not possible to determine
which defendant caused plaintiff’s injury, the burden shifts to
the defendants to prove they did not cause the injury.’ ( . at
23221). The second approach is enterprise liability , where “if a
plaintiff can prove that an entire industry was tortious, the
burden shifts to the members of that industry to prove they did
not supply the specific product that caused the injury.’ (a.).
The third and final approach the Court discussed was market
liability , ‘where it is impossible for the plaintiff to prove
which member of the market was responsible for the injury, each
member of the market is responsible for a percentage of the
recovery matching its share of the market.’ (a.).
In the Court’s discussion of alternative liability, it
referred to the seminal case of Summers v. Tice, ’ where the
plaintiff was injured when two hunting companions negligently
fired their guns toward him. Only one of the bullets struck him
but it was impossible to say who fired the shot that hit him.
The Court noted a three prong test for applying this theory of
tort liability: 1) all defendants must have acted tortiously; 2)
plaintiff must have been harmed by the conduct of at least one
33 Cal.2d 80, 199 P.2d 1 (1948).

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4
defendant arid therefore must have joined all possible tortfeasors
as parties to the action; and 3) plaintiff must be unable to
identify which defendant caused the injury. ( . at 23222).
In addressing the enterprise and market share theories of
liability, the Court found that neither theory could apply to the
facts at issue because the owner/operator defendants did not
represent an industry. The Court noted, however, that the
owner/operator defendants’ activities ‘should be labelleda
‘vertical enterprise’ over time...(because they) consecutively
owned and operated the gas station.’ (a .,. at 23223). The Court
found that Iteach of the owner/operator defendants engaged in the
same strict liability activities (ownership and operation) and
the mere engagement in these activities leads to liability if
causation is proven.’ ( . at 23224).
The Court next turned to a discussion of tortious conduct
and strict liability and, specifically, what constitutes tortious
conduct. The Court stated that ‘in the strict liability case,
the tortious conduct is the act itself, an act.that results in
liability if harm follows.’ ( I d. at 23225). Hence in this
action, the Court found that ‘the tortious conduct is the
ownership of the property and the operation of a gas station on
this property.’ (X .). The Court went on to note that ‘tt]he
basis- of the strict liability tort rests in the keeping of a
thing known to be dangerous,’ i.e. , the gasoline. ( .).
The Court stated that if the plaintiffs could prove at trial
that the property was contaminated prior to the time they
purchased it, ‘the burden of proof will be shifted to the
defendants to apportion damages between themselves.’ ( . at
23227-8). The Court pointed out that the defendants would not be
able to shift the burden of proof back to the plaintiffs. The
Court found, however, that a genuine issue of fact existed as to
whether there was contamination prior to the transfer of the
property to the defendants. As a result it could not grant
either the plaintiffs’ or the defendant owners and operators
motions for summary judgment. ( . at 23228).
Fritz Nachant Co. (Nachant) installed the piping and pump
system for the tanks in 1972. The Court granted, sua sponte ,
summary judgment in favor of Nachant, finding that the installer
could only be held liable if the piping system contributed to the
contamination. The Court refused to shift the burden of proof to
defendant Nachant without some showing that installation had been
defective. The Court reasoned that ‘(w]hereas the owner and
operator can take steps to repair and/or replace such equipment
the installer is separated from the equipment and the property
once the installation is complete.’ ( Id. at 23230). Hence, the
installer’s inability to take preventative measures after
installation, to prevent leakage necessitated some limits on the
installer’s liability, “even under strict liability.’ (a.).

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CC: David Ziegele, OUST
Lisa Friedman, OGC
Bill White, OE-CERCLA
Susan O’Keefe, OE-RCR.A
Steve Chester, OE-RCRA
Susan Bronun, OWPE-RED
OE-RCRA Attorneys
ORC UST Attorneys
ORC RCRA Branch Chiefs
Lee Tyner, OGC
Dawn Messier, OGC
Josh Bay] son, OUST
5

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,W
I UNITED STATES ENVIRONMENTAL PROTECTiON AGENCY
WASHINGTON, D.C. 20460
44( , 10 F
OFFICE OF ENFORCEMENT
MEMORANDUM
SUBJECT: Favorable Opinion re: Citizen Suit for Leaking
Underground Storage Tanks Containing Hazardous
Substance: Nurad. Inc. v. William E. Hooper & Sons Co. ,
(4th Cir. 1992)
FROM: Mimi Newton ‘*SAA.4..44..
Attorney-Advisor
TO: Kathie A. Stein
Enforcement Counsel for RCRA
This is a suit brought by the current owner of a piece of
property for reimbursement of costs it incurred in removing some
underground storage tanks (USTs), their hazardous contents and
the surrounding contaminated soils. The current owner sought
reimbursement from previous owners and tenants at the site
pursuant to Section 107(a) (2) of the Comprehensive Environmental
Response, Compensation and Liability Act (CERCLA) as “owners” or
“operators” of the facility at the time of “disposal” of the
hazardous substances.
The U.S. District Court for the District of Maryland entered
summary judgment against the original owner of the tanks and in
favor of the other defendants. On May 29, 1992, the U.S. Court
of Appeals for the Fourth Circuit, in ruling on an appeal from
the District Court, affirmed in part, reversed in part and
remanded the case for further proceedings consistent with its
opinion. The Court of Appeals reversed the district court’s
denial of Nurad’s motion for summary judgment against one
property owner who had not actually “operated” the USTs but had
owned them during a period when the hazardous substances were
leaking into the ground.
BACKGROUND
From 1905 to 1963, William E. Hooper & Sons Co. (the Hooper
Co.) owned the site and adjacent properties, collectively known
as Hooperwood Mills. At some point before 1935, the Hooper Co.
began to install tanks for the storage of mineral spirits that it
used to coat fabrics in its textile finishing plant. The company
continued to use the tanks for that purpose until 1962 when it
shut down its finishing operations. At that time the Hooper Co.
abandoned the UST5 and did not remove the mineral spirits.

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2
In 1963, the Hooper Co. sold Hooperwood Mills to Property
Investors, Inc. Property Investors’ (and its successor,
Monumental Enterprises, Inc.) President and principal
shareholder, Frank Nicoll, leased several of the buildings on
Hooperwood Mills to various tenants, none of which ever operated
the USTs. In 1976, Monumental Enterprises sold Hooperwood Mills
to Kenneth Muxnaw, who subdivided the property and sold a portion
of it to Nurad.
Nurad’s operations at the site involved the manufacture of
antennae, but the company apparently never used the USTs. In
1987, however, the Maryland Department of the Environment
informed Nurad that the tanks had not been properly closed and
required that they be removed from the ground or filled with
concrete or sand. After unsuccessfully trying to get some
assistance from previous landowners and other tenants, Nurad went
ahead and removed the tanks and surrounding soils.
In 1990 Nurad filed this CERCLA suit, seeking reimbursement
for approximately $226,000 in clean-up costs from former site
owners, former tenants, and from James Hooper, Jr. and Lawrence
Hooper (the Hooper brothers) who were shareholders and directors
of the Hooper Co. The district court decided the issues of
liability on summary judgment. In its view, only the Hooper Co.
was liable under CERCLA for costs incurred by Nurad in removing
the tanks. The Court found that the tenant defendants did not
qualify as “operators” because they did not possess sufficient
authority to control the hazardous substances at the facility.
Further, the court ruled that certain of the previous owners were
not liable because they were not owners “at the time of
disposal.” According to the district court, “disposal”
necessarily contemplated some element of affirmative
participation on the part of the defendant and only the original
owner actively dealt with hazardous substances at the site.
LIABILITY OF TENANT DEFENDANTS
Nurad raised three objections to the district court’s
assertion that the tenant defendants lacked authority to control
the USTs and therefore did not “operate” a “facility” under
CERCLA § 107(a)(2). First, Nurad argued that the district court
read the term “operator” too narrowly. The Court of Appeals
disagreed with Nurad, finding that the lower court’s examination
of the leases was entirely appropriate in that authority to
control, rather than actual control was the appropriate standard.
Second, Nurad objected to the district court’s reading of
the term “facility” which was limited to the USTS themselves.
Nurad argued that the “facility” in question was the entire Nurad
site and that if any tenant defendant had authority to control
activities on any part of the Nurad site, it should be deemed an
“operator” of the “facility”. The Court of Appeals again

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3
disagreed with Nurad, and in examining the definition of
facility, found that “the only ‘area’ where hazardous substances
have ‘come to be located’ is in and around the storage tanks, so
the relevant ‘facility’ is properly confined to that area.” (
Opinion at 416).
Finally, Nurad contended that even if the district court
applied the right standard it erred in its factual determination
that the tenant defendants lacked the authority to control the
USTs. Nurad claimed that as lessees, the tenants had a property
interest that necessarily included the implicit authority to
control the USTs. The Court of Appeals again disagreed with
Nurad and found that the terms of the tenants’ lease agreements
conclusively established that their authority as tenants did not
extend to the USTs.
CORPORATE OFFICER LIABILITY
Next the Appeals Court addressed Nurad’s claims against the
Hooper brothers. The Court of Appeals discussed information that
suggested that James Hooper, Sr. (their father), as president and
majority stockholder of the Hooper Co. at all relevant periods,
exercised ultimate authority over the finishing plant. The Court
of Appeals agreed with the district court that any authority the
Hooper brothers may have had was entirely subordinate to that of
their father.
LIABILITY OF PAST OWNERS
Short - term Ownership
Kenneth Muznaw directed the Court’s attention to his brief
ownership of the property in an apparent attempt to convince the
Court that he should not be held liable. The Court of Appeals
noted, however that “ [ s]uch equitable considerations as the
duration of ownership may well be relevant at a later stage of
the proceeding when the district court allocates response costs
among liable parties... but we reject any suggestion that a
short-term owner is somehow not an owner for purposes of [ CERCLA
§ 107 (a) (2)] .“ ( . at 418)
Passive Disposal
The Court of Appeals next turned to the question of whether
“disposal” of hazardous waste took place during either the Hooper
Co. or Muinaw’s ownership. The district court had taken a narrow
view of the term “disposal” and held that the Hooper Co. was
liable because it actively placed the hazardous substances in the
USTs and then abandoned the USTs. It held that Mumaw was not
liable, however, even if passive migration occurred during his
ownership, since he did not take an active role in managing the
tanks or their contents. The Court of Appeals found that the

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4
district court “arbitrarily deprived (the definition of
“disposal”] of (its] passive element by imposing a requirement of
active participation as a prerequisite to liability.” (u.).
The Appellate Court cited U.S. v. Waste Industries 1 Inc. ’
f or the proposition that “disposal” can mean “the reposing of
hazardous waste and its subsequent movement through the
environment.” (u.). The Appellate Court refused to distinguish
Waste Industries from the case at bar despite the fact that Waste
Industries was brought under the corrective action provisions of
Subtitle C of the Resource Conservation and Recovery Act (RCRA).
The Court stated that the district court was bound to follow the
Waste Industries definition of “disposal” since CERCLA’s
definition of “disposal” includes RCRA’s definition by reference.
( . at 419). Moreover, the Court explained how any other
reading of the term “disposal” would frustrate congressional
intent since it would reward the landowner who made no effort to
abate migrating contamination, while penalizing landowners like
Nurad who took steps to abate the contamination. 2
Disposal
The Court of Appeals next turned to the question of whether
a statutory disposal of hazardous occurred during the period of
the Hooper Co.’s and Mumaw’s ownership. The Court noted that
neither defendant could point to any evidence which suggested
that the leaking of the USTs was not a sudden event, but the
result of a gradual and progressive course of environmental
contamination that included their ownership. The Court found
that in such circumstances, Congress did not intend to impose
upon a CERCLA plaintiff the onerous burden of pinpointing at what
precise time a leakage might have begun.
The Hooper Co. also tried to assert that “disposal” had not
occurred. It argued that the materials in the tanks were
product, not waste. The Court stated “we think there clearly was
disposal in 1962 when the Company closed down the finishing plant
and abandoned the tanks. At that point, the mineral spirits
clearly became ‘waste’ as they were abandoned and apparently
never again used.” (j . at 420). The Hooper Co. also argued that
it had sold the USTs and their contents to Property Investors,
Inc. The Court of Appeals, however, found that “the sale of the
734 F.2d 159, (4th Cir. 1984)
2 The Court pointed out that “disposal” is not part of the
current owner liability scheme, so that conceivably, Nurad would
have been found liable even if it too had done nothing to abate
the contamination. ( 1g.).

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5
previously abandoned tanks to a real estate investor - who had no
use for the mineral spirits or the tanks and apparently never
used them - cannot reverse the earlier disposal.” ( g.).
cc: David Ziegele, OUST
Lisa Friedman, OGC
Bill White, OE-CERCLP
Susan O’Keefe, OE-RCRA
Steve Chester, OE-RCRA
Susan Bromm, OWPE-RED
OE-RCRA Attorneys
ORC UST Attorneys
ORC RCRA Branch Chiefs
Lee Tyner, OGC
Dawn Messier, OGC
Josh Baylson, OUST

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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
PR - 9 gg OSWER Directive 9610114
MEMORANDUM
SUBJECT: UST Federal Fiel CLtati Enforcement
L v.
FROM: David W. Ziegele, irect
Office of Underground Storage Tanks
TO: Waste Management Division Directors,
Regions I-Ill and V—IX
Water Division Directors, Regions IV and X
Regional Counsel, Regions I-X
One year ago, on March 20, 1991, OUST issued the UST federal
field citation guidance to the Regions. Today we issue the
revised field citation guidance. During the past year we have
been able to incorporate into this document the wisdom gained
from actual field experience of issuing field citations in
Regions VI, VIII, and X. In addition our office has received
valuable input from the Regional UST attorneys, the Office of
Enforcement, and the Office of General Counsel. Drafts of this
revised guidance have undergone close scrutiny by the Regions
throughout the year.
Attached is the revised UST federal field citation guidance.
It includes short-form wordings of those violations for which
field citations may be used, along with the suggested penalty
amount for each violation. Regions are reminded that violations
not a part of this list should not be cited with field citations.
Also included with the guidance is a sample citation form.
Regions must use this approved citation form or obtain approval
for any Region-specific form from OUST, in writing.
This revised UST federal field citation guidance has
received formal concurrence from the Office of Enforcement and
the Office of General Counsel. Special thanks to these attorneys
as well as to all other persons who participated in the extended
process of improving this guidance. Please contact Jerry Parker
of my staff (FTS 703 308-8884) with any questions or comments.
Attachment
UST/E/92—1
Printed on Recycled Paper

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cc: Regional Branch Chiefs
Regional Program Managers
Regional UST Attorneys
Kathie A. Stein, OE
Mimi Newton, OE
Lisa K. Friedman, 0CC
Charles Openchowski, OGC
OUST Management Team (w/o attachment)
OUST Desk Officers (u/a attachment)

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(Jntid Status Office of
viro ’mernil Pvotustio $019 Waits CM
A9IflC £meg.’cy R.s . ’
E PA DIRECTIVE NUMBER: 9610.14
TITLE: Guidance for Federal Field
Citation Fnforc nent
APPROVAL DATE: April 9, 1992
EFFECTIVE OATE: April 9, 1992
ORIGINATING OFFICE: Office of Underground
FINAL Storage Tanks (OUST)
0 DRAFT
STATUS:
REFERENCE (other documents):
OSW Directive 9610.11 “UST/LUST Enforc nent
Procedures Guidance Manual”
OSWER Directive 9610.12 “U.S. EPA Penalty Guidance
for Violations of UST Regulations”
Os
WER Os
WER OSWER
‘!!
DIRECTIVE
DIRECTIVE
Di

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UAdid JiltiS ESWfOfl1flifl I
wsshm.uIl. DC 30411
BE I OSWER Directive initiation Request
,•
— 9610.14
Cods
I 703.308 8884
Guidance for Federal Field Citation Enforcement
4. 5uflVTiifV of Ofictivi (it CIudI tinil ststi rint 0! piivpou)
Provides guidance to U.S. EPA Regional Offices on setting up and implementing
a federal field citation program. Field citations represent a new enforcement tool
to be used in certain situations where owners/operators of underground storage tanks
violate UST regulations.
. M 0I’U1
uvI -orr ,nvj stOr DP P riIre ei ” ‘ 1 m nt offer
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DIRECTIVE
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610o.s This D CCt ”• ,b0u3 5 Qf IVI U No [ f .s Whit drectfvs (numb. U k) 9610.13
b. Doss It Supplemint Previous Dirscdv.(s)? E No wi ..t t. (nwnbir, lIe) 9610.12
U.S. EPA Penalty Guidance for Violations of UST Regulations
7 Drill LIv
D - Signod by MdOU B - S QMd by Office O or C - For Review & Coiwnui 0- in Oevdo
[ 8. Document to be distributed to States by Headquarters? 0
This Request Meets OSWCM OIrectlvss System Format Standards.
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B ’er Th s 1 OUST Directives Coordinator
10. Name Os5
David ie2 e
CPA For l 1311-1? ( liv. 517) PreviOus oditions are obsolete.
)

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OSWER Directive 9610.14
GUIDANCE FOR
FEDERAL FIELD CITATION
ENFO RCEMENT
U.S. ENVIRONMENTAL PROTECTION AGENCY
OFFICE OF UNDERGROUND STORAGE TANKS
April 1992

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2 OSWER Directive 9610.14
GUIDANCE FOR FEDERAL FIELD CITATION ENFORCEMENT
I. Federal Enforcement
Overview
The Office of Underground Storage Tanks’ (OUST) program approach is to build
UST programs at the State level since States will be primarily responsible for the
enforcement of UST regulations. Regions perform general compliance inspections at
UST sites or take enforcement actions, generally in the place of or in conjunction with a
State when the State lacks enforcement resources, and on Indian Lands or at Federal
facilities. In these specific cases, the Regions must develop an enforcement strategy that
addresses targeted violations while maximizing time and resources.
One enforcement option is the use of field citations, “traffic ticket”-styled citations
issued on-site by inspectors, generally carrying a penalty. Field citations are currently
being used by a number of environmental programs on the Federal, State, and local
level, including UST programs. In the experience of many State and local UST
enforcement programs, field citations are extremely useful in addressing many prevalent,
clear-cut violations that are relatively easy to correct. Addressing these violations using
established enforcement methods, such as formal administrative proceedings under 40
CFR Part 22, requires a greater commitment of staff time and resources, which may be
difficult to obtain or which must compete with time and resources that staff directs
toward releases or violations that are not appropriately addressed by the field citation
program. When a citation program is properly designed, violators issued citations for
clear-cut violations have greater incentive to correct problems and pay penalties than to
contest. Thus, in appropriate circumstances, field citation enforcement is less resource-
intensive than traditional methods of UST enforcement. Resources are saved as citations
are issued on the spot, and preparation of formal legal documents and procedures, such
as administrative appeals, are minimized.
Use of field citations will not displace existing enforcement tools, such as warnings
and orders, but will provide the inspector with an alternative enforcement tool. OUST
believes that a field citation program is a viable and useful tool for Federal enforcement
and several Regions have expressed interest in adopting field citation enforcement
programs.
UST program staff and legal counsel from several Regions participated in a
workgroup effort to develop procedures for Federal enforcement using field citations.
This guidance document is a result of that effort. It attempts to serve the workgroup
participants’ interest in using field citations in a variety of circumstances and address
concerns that an enforcement program be fairly and uniformly applied across Regions.
Some key components of the field citation program are identical from Region to Region,

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3 OSWER Directive 9610.14
such as the language of the citation. However, the flexibility provided in this guidance
and the relationship between field citations and existing enforcement capabilities should
provide considerable room for accommodating local needs. On this score, it is important
to emphasize that field citation enforcement will not supplant existing enforcement
options. Discretion to exercise existing options for warnings and other enforcement tools
remains unchanged by the introduction of field citations, which should blend into
Regional enforcement choices. Also, Regions will continue to select which violations or
facilities need targeting, within the parameters of this guidance, based on local needs and
subject to previously issued enforcement guidance. Finally, the availability of field
citations should not diminish the Regions’ efforts to assist States and localities in building
UST enforcement programs.
Responsibilities of OUST
During the workgroup session, OUST agreed to provide the Regional offices with
support in these specific areas:
• OUST has coordinated with the Office of Genera] Counsel and the Office
of Enforcement to develop a model citation format.
• OUST has developed this guidance, including a list of potential violations
derived from the Federal UST regulations, to be addressed through the
field citation program.
• OUST has made use of field citations consistent with the penalty policy
(OSWER Directive 9610.12 “U.S. EPA Penalty Guidance for Violations of
UST Regulations”) and the Federal procedures manual (OSWER Directive
9610.11 “UST/LUST Enforcement Procedures Guidance Manual”).
• OUST will assist in inspector training efforts. As the success of a field
citation program depends upon the skills of inspectors, it is crucial that
inspectors receive training in field citation enforcement techniques and
specific guidance on when and how to use the citations. OUST has
developed an inspector training manual to train Federal inspectors in
issuing citations and performing related duties. OUST will help to tailor
the manual to the specific needs of Regional programs, and will coordinate
multi-Regional training efforts.
NOTE TO REGIONAL STAFF: Inspectors may also require training in the technical
issues related to UST inspections; this training will need to be obtained prior to field
citation training.

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4 OSWER Directive 9610.14
II. Regional Program Elements
Guidance for Regions is presented in the following sections. The guidance should
be considered in the context of the Region’s overall enforcement strategy and priorities.
Selecting Appropriate Violations
The Regions described a range of problems they would potentially address using
field citations. In order for field citations to be useful in a range of situations, the
Regions need the ability to determine which violations of the Federal UST regulations to
address using field citations. Since field citations in various forms have been used
effectively in diverse jurisdictions, this guidance provides a framework for allowing
Regions to address different violations within the field citation effort. The guidance is
intended to ensure that each of the Regions develops its list of appropriate violations
judiciously and implements its program reasonably by providing a list of violations
appropriate for field citations and guidelines for selection among violations. Each
Region should select violations to be cited from violations included in this list (see
attached). Regions may not expand the list of violations that can be cited in a field
citation. Consistency among Regions will be further assured by training.
The following generally are appropriate criteria for selecting the violations to be
cited:
• Select violations which are clear-cut and easily verifiable.
• Select violations which are easily correctable.
• Do not select those violations which occur in environmentally sensitive
areas, for example, at USTs above drinking water sources.
Determining which violations are appropriate for a field citation program requires
considerable discretion. Experience shows that field citation programs work most
effectively in achieving compliance if the violations are clear-cut and the inspectors
exercise little discretion in citing the violations. Established field citation programs have
found that easily identifiable violations (i.e., “either they have it or they don’t”) require
the least amount of inspector judgment in the field, making it easier to provide clear
guidance to inspectors and facilitate consistency among inspectors. On the other hand,
the Regions may believe that certain violations, while clear-cut, are very serious in terms
of environmental harm threatened and require a more formal enforcement response.
The list of violations appropriate for the field citation program, which accompanies this
guidance, relieves the Regions of some of the burden of making these decisions.
However, it is the responsibility of each Region to designate which of these violations will

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5 OSWER Directive 9610.14
be appropriate candidates for its field citation program given specific Regional needs and
resources.
In selecting a preferred approach, a Region may choose to target a certain
prevalent or high priority violation or violations. This may be a good strategy for a
Region to use if a State program lacks enforcement authority or regulations in a certain
program area and the Region needs to fill a key gap in coverage or send an important
message to violators. However, if a Region is to be enforcing in the place of the State,
the Region may find it advantageous to include all appropriate violations in the field
citation enforcement program, as long as they meet the above-referenced criteria.
Guidance for When to Use Citations
This guidance establishes procedures for issuing citations, and describes some
appropriate circumstances for inspectors to issue citations. Since the inspector is the one
who must implement the program in the field, the Regions must clearly establish the
extent of discretion allowed to inspectors in determining whether to issue field citations
within general parameters set forth here. Field citations provide an additional
enforcement tool, and inspectors must be instructed in how to respond when violations
appropriate for using field citations are found.
The proper use of field citations must be measured against the backdrop of the
Regions’ existing authority to issue warnings or pursue other existing enforcement
measures for all violations of UST requirements. Although the primary objective of any
enforcement program is to achieve compliance, formal enforcement mechanisms, such as
those found in 40 CFR Part 22, normally will be more appropriate in particular
circumstances. These circumstances include, among others, instances involving repeat
violations, facilities located in environmentally sensitive areas or where payment of a
more significant penalty may be more effective in achieving EPA’S enforcement goals. In
the case of environmentally sensitive areas, for example, a Region should not use its field
citation program for violations at facilities which may pose a serious environmental
hazard because they are in an environmentally sensitive area. These areas may include
sites above drinking water sources. Inspectors should try to determine before they arrive
at a particular facility whether they are dealing with an environmentally sensitive location,
and, therefore, whether a field citation should be used if certain violations which may
pose a serious environmental threat are discovered. One way of doing this is to work
closely with the State within which the violation exists, as it may have substantial
knowledge and experience in delineating areas that are environmentally sensitive.
This guidance is intended to provide a framework for the inspector’s discretionary
use of the field citation enforcement option. Therefore, the guidance is phrased in terms
of the action an inspector would take in the typical case, but leaves room for exception if
the circumstances in the inspector’s judgment so warrant.

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6 OSWER Directive 9610.14
The following discussion describes the three basic enforcement options available
to address violations of UST requirements:
Warnings
• Although warnings can be useful as a first step in the enforcement process,
Regional inspectors generally should consider issuing citations in all cases
where violations are discovered. Field citations are designed to uniformly
address certain violations and promote a quick resolution of the violation
and assessment of a small penalty. Therefore, when a Region is inspecting
a facility, inspectors should consider issuing a field citation rather than a
warning for a violation or violations which the Region has determined may
be an appropriate candidate for its field citation program.
Citations
There are several situations in which inspectors will typically issue citations:
• Inspectors may issue citations for as many violations as are identified at a
site; there is no limit to the number of violations that may be cited at a
single facility. However, if the number of violations found at a site exceeds
“x” (a number set by each Region), the inspector should generally forego
field citations and use more formal, existing enforcement methods instead.
Once a Region has selected its list of violations appropriate for the field citation
program and trained inspectors in procedures for issuing field citations, inspectors may
routinely issue field citations for all appropriate violations found at a facility. Each
Region will have the discretion to place an upper limit on the number of violations that
may be cited at one site. The threshold should be set below the point beyond which the
number of violations, regardless of the nature of those violations, proves that a facility
was seriously out of compliance and requires a more formal enforcement response. Even
if the facility had only multiple recordkeeping violations, this approach could be taken in
order to send a message to the regulated community. This number should also be near
the point where a typical violator no longer has an incentive to correct the violations and
pay the penalty instead of resisting compliance. At this point, a more formal
enforcement response is likely to be more effective than use of field citations. As a
general matter, a suggested threshold is between three and ten violations.
• During joint inspections, Regional inspectors should usually not cite for
violations that are cited by the State inspector where State sanctions are at
least equivalent.

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7 OSWER Directive %1O.14
As States are the primary enforcers in the program, Regions usually will take
enforcement actions only in the circumstances noted in the first paragraph of this
guidance document. Therefore, it is likely that during joint inspections Regional
inspectors will defer to the State program’s regulations or authorities and not cite for
violations that State inspectors cite. Generally, this will be the case where State sanctions
are at least equivalent with Federal sanctions. On the other hand, there may be cases
where a field citation would serve an important Federal enforcement objective, for
example, sending a signal to the regulated community that we take interest in a specific
kind of violation. In these cases, a field citation or other Federal enforcement measure
might reinforce the State’s message.
Inspectors will usually issue citations to first-time violators only. If upon
follow-up inspection a cited violation has not been corrected, the inspector
should generally use Part 22 procedures, or, if a later inspection uncovers a
different violation, the inspector should not use a field citation.
Field citations are generally most appropriate for addressing first-time violators; if
the same violations are found again during a second inspection, Part 22 enforcement
procedures should be initiated. Limiting the use of field citations to first-time violators
makes sense if it appears to the inspector that the citation and penalty have not
convinced a violator to bring a facility into compliance and to keep it in compliance. The
inspector should be guided by the goal of the field citation program, which is to achieve
rapid and resource-efficient compliance, rather than to penalize owners and operators for
regulatory violations. When conducting inspections, it is critical that the inspector fully
conduct the inspection and thoroughly complete the inspection report. If a field citation
is not issued because the violations are above the thresholds for field citations, or the
field citation settlement form is not returned, the Agency may choose to pursue standard
enforcement based on the inspection report. Therefore, while field citations may
expedite the correction and penalty phases of enforcement, the quality and effort applied
to the underlying inspection should not be abbreviated.
Standard Enforcement
If an inspector discovers not only violations that are appropriate for the field
citation program, but other violations as well, the inspector should address all of the
violations at the site using more formal, existing enforcement methods. As used in this
guidance, more formal enforcement typically refers to the procedures for issuing
administrative complaints/compliance orders (including those assessing civil penalties) and
conducting the administrative enforcement process governed by 40 CFR Part 22, the
Consolidated Rules of Practice Governing the Administrative Assessment of Civil
Penalties and the Revocation or Suspension of Permits (“Part 2211 or “CROP”). CROP
outlines the major steps in the administrative adjudication process and presents the
various authorities and duties of Agency officials in the process. More formal

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8 OSWER Directive 9610.14
enforcement methods may also include issuance of corrective action orders pursuant to
40 CFR Part 24 or judicial enforcement of the UST requirements.
In selecting those violations which are appropriate for field citations, the Regions
will, in effect, also be identifying violations which, because of their potential for
environmental harm or other characteristics (i.e., not clear-cut), should be addressed
using the more formal, existing enforcement mechanisms. The more formal enforcement
methods may also be the appropriate response in some circumstances where field
citations would otherwise be appropriate (for example, if the total number of individual
violations which are appropriate for a field citation surpasses the threshold for multiple
violations or are repeated). Another case where a clear-cut violation might be addressed
by more formal enforcement is the case of a clear-cut but not easily correctable violation
(e.g., a tank was not purged before being removed). In these cases, a field citation may
not serve the goal of encouraging compliance and might appear to treat the violator
mildly compared to penalties applicable under the penalty policy. In general, the
Regions will need to assess how to maximize resources while bringing as many facilities
into compliance as possible.
The following criteria should be considered by inspectors when issuing citations in
the field:
• Field citations generally are inappropriate in environmentally sensitive
areas, for example, at USTs above drinking water sources.
• Field citations generally are inappropriate for anyone other than first time
violators.
This guidance is phrased so that inspectors will know what action to take in the
typical case. Inspectors are not bound to follow this guidance, however, when in the
exercise of their enforcement discretion they determine that deviation from this guidance
will result in more effective compliance or a more efficient use of enforcement resources.
This approach is consistent with the guidance found in other EPA penalty policies and
procedures.
Guidance for Penalty Amounts
In order to ensure that penalties assessed by different Regions for the same
violations are consistent, standard suggested penalty amounts have been set by this
guidance. Consistency among Regions is important to achieve fairness in the treatment
of the regulated community in Regional penalty assessments. In the case of multiple
violations, penalties should be totaled. In general, field citation programs set penalty
amounts according to the severity of each violation or category of violations. Penalties
should be assessed per facility rather than per tank.

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9 OSWER Directive 9610.14
The size of the penalties attached to violations is important to the success of a
field citation program. Penalties that are relatively high (e.g., greater than $500 per
violation) may discourage owners and operators from agreeing to settle. On the other
hand, penalties need to be high enough to catch the attention of owners and operators.
In general, the field citation program should operate optimally when the penalties are
geared primarily to achieving compliance rather than to penalizing violators.
There is no predetermined cap on the cumulative amount of penalties assessed.
However, there is a natural cap to the extent that each Region will be foregoing issuing
field citations if the number of citable violations at a site exceeds a number fixed by the
Region (see preceding section). The Region may want to consider the practical issues
underlying a cap on the total cumulative amount of penalties that may be incurred by a
single owner or operator, i.e., keeping the amount relatively low might encourage more
settlements. This determination is a matter of judgement, and, as the program is
implemented, experience.
Form of the Citation
While each Region will have considerable discretion in tailoring its field citation
program within the boundaries set forth in this guidance, the Regions must use the
approved field citation or obtain approval for any Region-specific citation form from
OUST in writing, after first having obtained approval of Regional Counsel. OUST will
obtain concurrence for any proposed change from both the Office of General Counsel
and the Office of Enforcement before authorizing such change. This approach will
ensure that the field citations used are legally supportable and designed to accommodate
the program elements described in this guidance. In addition, use of a standard citation
form will guarantee some uniformity across Regions in the issuance of field citations.
The field citation developed by OUST is entitled “Expedited Enforcement
Compliance Order and Settlement Agreement”. The field citation represents the
issuance of an order pursuant to RCRA §9006 to address violations listed in RCRA
§9006(d), coupled with a short-form settlement agreement. Each Region, as it
determines is appropriate, must delegate to individual inspectors the authority necessary
to issue the citation form. The violator is ordered to correct the violation and given an
opportunity to resolve the enforcement action expeditiously by agreeing to correct the
violation and by settling for a lesser penalty amount than might be assessed according to
the penalty policy if formal administrative or judicial proceedings were initiated. The
lower penalty assessment reflects the time and expense saved by the Agency over that
normally incurred in pursuing more formal enforcement methods; it also compromises
the size of the fine EPA could potentially collect. If the violator does not accept the
settlement agreement within the time provided in the field citation, the compliance order
is automatically withdrawn. The Agency’s policy is then to pursue other enforcement
actions for the violations cited. The violator has only two options: accept the field

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10 OSWER Directive 9610.14
citation or risk more formal enforcement proceedings. If a violator refuses to accept the
terms of the field citation or if it is determined that a violator has not fully complied with
the terms of a signed settlement agreement, follow-up enforcement should be initiated by
EPA. Such follow-up enforcement should be more stringent than the field citation
settlement terms in order to achieve compliance and ensure the integrity of the field
citation program.
Hearing Requirements
Subtitle I of RCRA provides for an opportunity for a hearing where an order is
issued -- the hearing process is outlined in Part 22. As described in the foregoing section,
the field citation has been designed as a compliance order and short-form settlement
agreement.
The field citation compliance order is not an adjudicatory proceeding under 40
CFR Part 22. The violator has no right to a hearing under Part 22, since those
procedures have not been invoked through issuance of a field citation. Violators who
accept the terms of the settlement offer will have expressly waived their rights to a public
hearing under § 9006 of RCRA. If the violator does not accept the settlement offer, the
compliance order is withdrawn.
A Region initiating administrative actions against a violator should follow the Part
22 procedures if a violator forgoes the settlement offered through the field citation
process. The Federal procedures guidance (OSWER Directive 9610.11 “UST/LUST
Enforcement Procedures Guidance Manual”) describes appropriate procedures in detail.
Judicial enforcement may also be appropriate in certain instances, in which case the
Region should follow appropriate referral procedures for judicial actions.
Training
This guidance is intended to provide overall direction for establishing Regional
field citation programs. As such, the role of the guidance is to enunciate the general
principles that should underlie an appropriately designed field citation program; further
details not contained in this guidance will be developed and transmitted to program staff
through subsequent training or guidance.

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OSWER Directive ,1
SELECTED VIOLATIONS OF FEDERAL UNDERGROUND STORAGE TANK REGULATIONS
Violation.
Appropriate for
Regulatory Field Citations
Citation Violation (Penalty Amount)
SUBPART B — UST SYSTEMS: DESIGN, CONSTRUCTION, INSTALLATION, AND NOTIFICATION
§280.20 Performance standards for new UST systems
§2 80.20(a) (1) Installation of an improperly constructed fiberglass-reinforced plastic tank
§280.20(a) (2) InstallatIon of an Improperly designed and constructed metal tank that fails to meet corrosion protection standards
§280.20(a) (2) (I) Installation of a metal tank with unsuitable dielectric coating
§280.20(a)(2)(il) installation of an improperly designed cathodic protection system for a metal tank
§280.20(a) (2) ( iii) improper installation of cathodic protection system for a metal tank
§280.20(a)(2)(lv) Improper operation and maintenanc, of tank cathodic protection system
§280.20(e) (3) Installation of an improperly constructed eteel4iberglass -reinforced-piastio tank
§280.20(b) (1) Installation of Improperly constructed fiberglass-reinforced plastic piping
§280.20(b) (2) Failure to provid, any cathodic protection for metal piping
§280.20(b)(2)(i) Installation of piping with unsuitable dielectric coating
§280.20(b)(2)(ii) Installation of improperly designed cathodic protection for metal piping
§280.20(b) (2) (iii) Improper installation of cathodic protection system for piping
§280.20(b) (2) (iv) Improper operation and maintenance of cathodic protection system for metal piping
§280.20(o) FaIlure to use a spiil prevention system and an overfill prevenlion system $300
§280.20(c)(1)(I) installation of Inadequate spill prevention equipment In a new tank $150
§280.20(c)(1)(ll) installatIon of inadequate overfill prevention equipment in a new tank $150
§280.20(d) Failure to Install lank In accordance with accepted codes and standards $150
§280.20(d) Failure to Install piping In accordance with accepted codes and standards $150
§280.20(e) - Failure to provide any certification of UST Installation si so

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OSWER Directive 9610.14
SELECTED VIOLATIONS OF FEDERAL UNDERGROUND STORAGE TANK REGULATIONS (continued)
Regulatory
Citation
VIolation
Violations
Appropriate for
Field Citations
(Penalty Amount)
SUBPART B
-- UST SYSTEMS: DESIGN, CONSTRUCTION, INSTALLATION, AND NOTIFICATION
(continued)
280.21 Upgrading of existing UST systems
§280.21(b)
Failure to meet all tank upgrade standards
$300
§280.21 (b)(I)(l)
Improper Installation of Interior lining for tank upgrade requirements
§280.21 (b)(I)(li)
Failure to meet interior lining inspection requirements for tank upgrade
§280.21 (b)(2)(i)
Failure to ensure that tank Is structuraliy sound before installing cathodic protection
§280.21 (b)(2)(ii)
Failure to provide any monthly monitoring of cathodic protection for tank upgrade requirement
§280.21 (b)(2)(il)
Failure to provide continuous monthly monitoring of cathodic protection for tank upgrade requirement -
§280.21 (b) (2) (iii)
Failure to meet tightness test requirements for a tank upgraded with cathodic protection
§280.21 (b) 2 (iv)
Failure to meet requirements for testing for corrosion holes for a tank upgraded with cathodic protection
§280.21(c)
Failure to Instail any cathodic protection for metal piping upgrade requirements
§280.21(0)
Failure to meet tightness test requirements for cethodicaily protected metal piping
§280.21(d)
FaIlure to provide spill or overliil prevention system for an existing tank
$300
280.22 Notmca llon requirements
§280.22(a) Failure to notify state or local agency withIn 30 days of bringing an UST system Into use $300
or
§280.22(b) Failure to notify dealgnated slate or locai agency of existing tank $300
§280.22(c) Failure to submit a separate notification form Identifying all known tanks for each site where lank. are located $180

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OSWER Directive
SELECTED VIOLATIONS OF FEDERAL UNDERGROUND STORAGE TANK REGULATIONS (continued)
Regulatory
Citation Violation
Violation.
Appropriate for
Field Citations
(Penalty Amount)
SUBPART B -- UST SYSTEMS: DESIGN, CONSTRUCTION, INSTALLATION, AND NOTIFICATION (continued)
§280.22(0) Failure to certify on notification form UST system requirements of proper Installation, cathodic protection,
financial responsibIlIty, and release detection
$150
§280.22(f) Failure to provide Installer certificatIon of complianc, with Installation requirements on notification form
$150
§280.22(g) Failure to inform tank purchaser of notification requirements
SUBPART C - GENERAL OPERATING REQUIREMENTS
280.30 SpIll and overfill control
§280.30(a) Failure to take necessary precautions to prevent overfihi/apillag. during the transfer of product
$300
§280.30(b) Failure to report a apiilfoverflui
§280.30(b) Failure to investigate and clean up a spiiVoverfiil
280.31 Operation and maintenance of corrosion protection
§ 280.31 (a) Failure to operate and maintain corrosion protection system continuously
$150
§280.31(b) Failure to ensure proper operation of cathodic protection system
si so
§280.31(c) Failure to Inspect impressed current syslems every 60 days
$150
§280.31(d) Failure to maintain records of cathodic protection inspections
$50
280.32 Compatibiilty
§280.32 Failure to ensure that UST system is made of or lined with materials compatible with substance stored

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OSWER Directive 9610.14
SELECTED VIOLATIONS OF FEDERAL UNDERGROUND STORAGE TANK REGULATIONS (continued)
Regulatory
Citation Violation
Violations
Approprial. for
Field Citations
(Penalty Amount)
SUBPART C — GENERAL OPERATING REQUIREMENTS (continued)
280.33 Repairs allowed
§280.33( 5) Failure 10 repair UST system In accordance with accepted codes and standards
§280.33(b) Failure to repair fiberglass-reinforced UST in accordance with accepted codes and standards
$150
$150
§280.33(c) Failure to repiac. metal piping that has released product
§280.33(c) Failure to repair fiberglass-reinforced piping in accordance with manufacturers specifications
$150
§280.33(d) Failure to ensure that repaired tank systems are tightness tested within 30 days of completion of repair
$300
§280.33( 0) Failure to test cathodic protection system within 6 months of repair of an UST system
$150
§280.33(f) Failure to maintain records of each repair to an UST system
$50
280.34 Reporting and recorditceping
(For vioiatlons of repoiting and recordkoeplng. see appropriate regulatoly section (e.g.. reportIng of releases will be under Subpast 0)).
§280.34(a)(1) Failure to submit notification for UST syslem $300
or
§280.34(a)(1) Failure to submit certification of a new installation with notification form $300
§280 .34(b) (1) Failure to maintain analysis of sits corrosion potential if corrosion protection equipment Is not used $50
§280.34(b) (2) Failure to maintain corrosion protection equipment operation documentation $50
§280.34(b) (3) Failure to maintain documentation of UST system repairs $30
§280.34(b) (4) Failure to maintain documentation of compliance with r.i.ase detection requirements $50
§280.34(c)(1) Faliur. to maintain records at UST site and immediately available for inspection $50
or
§280.34(c) (2) Failure to maintain records at a readily available alternative sIte $50

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OSWER Directive u
SELECTED VIOLATIONS OF FEDERAL UNDERGROUND STORAGE TANK REGULATIONS (continued)
Regulatory
Citation
Violation
Violations
Appropriate for
Field Citations
(Penally Amoont)
SUBPART
D — RELEASE DETECTION
280.40 General requirements for .11 LIST system. (Applies only to petroleum tanks)
§280.40(a)
Failure to provide adequate release detection method
$300
§280.40(b)
Failur, to notify lmplem.ntlrig agency when release detection indicates release
§280.40(0)
Failure to provide any release detection method by phase-in dale
$150
§280.40(d)
Failure to close any UST system that cannot meet release detection requirements
$300
280.41 Requirements for petroleum LIST systems
§280.41(a)
or
§280.41 (a)(1)
or
§280.41(a)(2)
Failure to monitor tanks at least every 30 days, if appropriate
Failure to conduct tank lightness testing every 5 year., If appropriate
Failure to conduct annual tank tightness testing, if appropriate
$300
$300
$300
§280.41(b)(1)(i)
Failure to equip pressurized piping with automatic line leak detector
$300
§280.41 (b)(1)(ii)
Failure to have annual tank tightness lest or perform monthly monitoring on pressurized piping
$300
§280.41 (b)(2)
Failure to conduct line lightness test or use monthly monitoring on suction piping
$300
280.42 Requirement, for hazardous substance LIST systems
§280.42(a) Failure to provide release detection for an existing hazardous substance tank system
§280.42(b) Failure to provide adequate release detection for a new hazardous substance UST system
§280.42(b) (1) Failure to provide adequate secendaiy containment of tank for a hazardous substance UST
§280.42(b)(2) Failure to provide adequate doubie.waiied tank/adequate lining for a hazardous substance UST
§280.42(b) (3) Failure to provide adequate external iiners for a hazardous substance UST
§280.42(b)(4) Failure to provide adequate .econdeiy containment of piping for. hazsrdous substance UST

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OSWER Directive 9610.14
SELECTED VIOLATIONS OF FEDERAL UNDERGROUND STORAGE TANK REGULATIONS (continued)
Regulatory
Citation Violation
Violation.
Appropriate for
Field Citations
(Penaity Amou,d)
SUBPART D -- RELEASE DETECTION (continued)
280.43 Method . of release detection for lank.
§280.43(a) inadequate operation or maintenance of inventory controi
$300
§280.43(a)(1)-(0)
$50 each
§280.43(b) inadequate operation or maintenance of manual tank gauging
$300
§280.43(b)(1)-(4)
each
§280.43(c) Inadequate operation or maintenance of lank lightnees testing
$150
§280.43(d) inadequat, operation or maintenance of automatic tank gauging
$300
§280.43(d)(1).(2)
$150 each
§280.43(e) inadequate operation or maintenance of vapor monitoring
$300
§280.43(e)(1)-(T)
$150 each
§280.430) inadequate operation or maintenance of groundwater monitoring
$300
§280.43(f)(1).(8)
$150 each
§280.43(g) inadequate operation or maintenance of inl.ratitiai monitoring
$300
280.44 Methods of reieaee detection for piping
§280.44 Faiiur• to provide any release detection for underground piping $300
§280.44(a) Faliure to provide adequate line ieak detector system for underground pIping $150
or
§280.44(b) Failure to provide adequate un. tightness testing system for underground piping system $150
§280.44(c) inadequate use of applicable tank rei.a.e detection methods $150
if citing mor. than 3 subsections, cite instead §280.43(b) or §280.41(a)
‘If citing more than 1 subsection, cite instead §280.43(e)
@if citing more than 1 subsection, cite instead §280.430)

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OSWER Directive
SELECTED VIOLATIONS OF FEDERAL UNDERGROUND STORAGE TANK REGULATIONS (continued)
Regulatory
Citation Violation
Violation.
Appropriate for
Field Citations
(Penalty Amount)
SUBPART D -- RELEASE DETECTION (continued)
280.45 Release detection recordkeeplng
§280.45 Failure to maintain records of release detection monitoring
$150
§280.45(a) Failure to document all release detection performance cialms for 5 years after Installation
$50
§280.45(b) Failure 10 maIntain results of .ampilng, testing or monitoring for releas. detection for at least 1 year or failure to
reI.in results of tightness testIng until next test is conducted
$50
§280.45(c) Failure to document calibration maintenance, and repair of release detection
$50
SUBPART E -- RELEASE REPORTING, INVESTIGATION, AND CONFIRMATION
280.50 ReportIng of suspected release
§280.50(a)-Cc) Faliure to report a suspected release whhin 24 hours to the implementing agency
280.52 Release investigation and confirmation step.
§280.52(a)-(b) Failure to investigate and confirm a release (If appropriate) using accepted procedures
280.53 Reporting and cleanup of epill. and overfill.
§280.53(a) Failure to report a eplii/overfill (if appropriate) to implementing agency within 24 hours (or other specified time period)
§280.53(b) Failure to contain end immediately clean up a spill/overfili of less than 25 gallons
§280.53(b) Failure to contain and immediately clean up a hazardous substance spilt/overfill

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OSWER Directive 9610.14
SELECTED VIOLATIONS OF FEDERAL UNDERGROUND STORAGE TANK REGULATIONS (continued)
Regulatory
Citation VIolation
Violations
Appropriat, for
Field CItations
(Penally Amount)
SUBPART F — RELEASE RESPONSE AND CORRECTIVE ACTION
§280.61 Failure to take Initial response actions within specified time period after a release Is confirmed
§280.62 Failur, to submit report on Initial abatement measures within 20 days (or other specified time) of release confirmation
§280.63 Failure to submit report on Initial site characterization withIn 45 days (or other specified time) of release confirmation
§280.64 FaIlur, to submit report on free report removal withIn 45 days (or other specified time) of release confirmation
SUBPART G — OUT-OF-SERVICE UST SYSTEMS AND CLOSURE
280.70 Temporary closure
§280.70( u) Failure to continue operation and maintenanc. of corrosion protection system In a temporarily closed tank
system
$150
§280.70(a) FaIlure 10 contInue operation and maintenance of release detection In a temporarily closed lank system
$300
§280.70(b) Failure to comply with temporary closure requiremenis for a lank system for 3 or more months
$300
§280.70(b)(1)-(2)
$150 each
§280.70(c) Failure to permanently close or upgrade a temporarily closed tank system after 12 months
280.71 Permanent closur, and chang.e-In-seMce
§280.71(e) Failur, to notify implementing agency of a closure or change-In-service
§280.71(b) Failure to remove all liquids and sludges for tank closure
§280.71(b) FaIlure to remove closed tank from the ground or fill tank with an inert solid for tank closure
§280.71(c) Failure to empty and clean tank system and conduct a site assessment prior to a change-in-service

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OSWER Directive.
SELECTED VIOLATIONS OF FEDERAL UNDERGROUND STORAGE TANK REGULATIONS (continued)
Regulatory
Citation Violation
Violations
Appropriate for
Field Citations
(Penalty Amount)
SUBPART G -- OUT-OF-SERVICE UST SYSTEMS AND CLOSURE (continued)
280.72 Assessing the site at closure or chang.-ln-ssrvlc.
§280.72(a) Failure to measur• (if required) for the presence of a release before a permanent closure
§280.72(b) If contaminated soil, contaminated ground water. or free product is discovered, failure to begin corrective action
280.74 Closure records
§280.74 Failure to maintain closure records for at least 3 years
$300
§280.74 Failure to maintain change-In-service records for at least 3 yeare
$300
SUBPART H -. FINANCIAL RESPONSIBIUTY
§280.93(a) Failure to comply with financial responsibility requirements by the required phase-In time
§280.93(a)(1)-(2) Failure to meet the requirement for per-occurrence coverage of insurance.
§280.93(b)(1).(2) Failure to meet the requirement for annual aggregate coverage of Insurance.
§280.93(f) Failure to review and adjust financial assurance after acquiring new or additional USTs
§280.94 Use of an unapproved mechanism or combination of mechanisms to demonstrate financial responsibility
§280.95 Use of falsified financial documents to pass financial teat of self-Insurance
§280.106(a)(1) Failure to report evIdence of financial responsIbility to the Implementing agency within 30 days of detecting a known or
suspected release
§280.106(a)(2) Failure to report evidence of financial responsibility to the Implementing agency when new tanks are installed
§280.106(b) Failure to report evidence of financial responsibility to the implementing agency if the provider becomes incapable of
providing financial assurance and the owner or operetor Is unable to obtain alternate coverage within 30 days.
§280.107 FaIlure to maintain copies of the financial assurance mechanism(s) used to comply with financial responsibility rule and
certification that the mechanism Is In compliance with the requirements of the rule at the UST site or place of business

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Facility Identification Number .
Name of Owner, Operator or
On-site Representative
(Circle one)
(Address of Owner. Operator, or On-Site Representative)
An authorized representative of the United States Environmental
Protection Agency (EPA) inspected this facility to determine compli-
ance with underground storage tank regulations promulgated under
Subtitle I of the Res urceConservationandRecovery Actof 1976 (42
U.S.C. § 6912 et seq.). During this inspection, the following
violations of underground storage tank regulations were found, with
corresponding penalty amounts:
FR ____________ Penalty$,
Nature of Violation:
4OCFR ____________ PenaltyS,
Nature of Violation: __________________
40 FR ____________ PenaltyS,
Nature of Violation:
Penalty Total $
The owner or operator of the above facility is hereby ordered to
correct the violations and pay the penalties described above.
This Compliance Order is not an adjudicatory proceeding under 40
CFR Part 22, the Consolidated Rules of Practice Governing the
Administrative Assessment of Civil Penalties and the Revocation or
Suspension of Permits, but is issued solely with reference to the
Settlement Agreement in Part II of this form. If the Settlement
Agreement in Part Ills not. returned in correct form by the owner or
operator within 30 days of the date of signature below by the
Authorized Representative of EPA, this Compliance Order is hereby
withdrawn, without prejudice to EPA’S ability to file additional
enforcement actions for the above or any other violations.
I have personally observed the above violations and find the owner
or operator in violation of the above-referenced UST regulations.
PART H: SETTLEMENT AGREEMENT
The United States Environmental Protection Agency (EPA) offers
this Settlement Agreement under its expedited enforcement proce-
dures in order to settle the violations found in the Compliance Order
in Part I of this form subject to the following terms and conditions:
The Owner or Operator signing below certifies, under civil and
criminal penalties for making a false submission to the United States
Government., that Owner or Operator has corrected the violation(s)
andenclosedacertified checkforS in paymeniof the full
penalty amount, as described in the Compliance Order.
Upon EPA final approval of this Settlement Agreement, EPA will
take no further action against the Owner or Operator for the violations
described in the Compliance Order. EPA does not waive any
enforcement action by EPA, the State where the facility is located or
any local agencies for any other past, present or future violations of
the underground storage tank requirements or any other violations
under any other statute not dcscribed in the Compliance Order.
Also, upon EPA final approval of this Settlement Agreement, the
Owner er Operator waives the opportunity for a public hearing
pursuant to Section 9006 of the Resource Conservation and Recovery
Act.
This Settlement Agreement is binding on the EPA and the Owner or
Operator signing below. The Owner or Operator signing below
consents to EPA’s final approval of this Settlement Agreement
without further notice. This Settlement Agreement is effective upon
EPA’s final approval below. Upon final approval, EPA shall mail a
copy of the approved Settlement Agreement to the OwnerorOperator
signing below.
Final approval of the Settlement Agreement is in the sole discrmion
of the Regional Administrator, Region —, EPA, or authorized
delegate.
SIGNATURE BY OWNER OR OPERATOR:
Name (print)
Title (print)
Signaflue of Authorized Representaove of EPA)
Date: _____
I hereby acknowledge receipt of this Compliance Order and Settle-
ment Agreement.
___________________________ Date: _____
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION —, MAIN STREET, USA
EXPEDITED ENFORCEMENT
COMPLIANCE ORDER AND SETTLEMENT AGREEMENT
PART I: COMPLIANCE ORDER
OMPUANCE ORDER NO. ______
On -__________ Time
At
(Date of Violation) (am. or p.m.)
(Name of Facility)
(Address of Facility)
Date: ______
FINAL APPROVAL BY EPA:
Name (print)
Title (print)
Date: ______
(Signature of Owner. Operator or On-site Representeth,e)

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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION__, MAU4 STREET, USA
EXPEDITED ENFORCEMENT
COMPLIANCE ORDER AND SE17LEMENT AGREEMENT
INSTRUCTIONS
The United States Environmental Protection Agency has authority wider Section 9006 of the Resource Conservation and Recovery Act to
issue compliance orders and pursue civil penalties for violations of undergrowid storage tank regulations. However. she EPA encourages
the exped ited settlement of easily verifiable violations of undergro and storage tank requirements, such as the violations cited in the Expedited
Enforcement Compliance Order and Settlement Agreement for which these instructions are provided, by agreeing to these settlement terms
that include expedited correction of the violation and payment of penalties.
You may resolve the cited violations quickly by signing and returning the Settlement Agreement and paying the penalty amount within 30
days of the issuance of the Compliance Order. You must correct the violations within 30 days of the issuance of the Compliance Order. EPA.
at its discretion. may grant one 30 day extension for the period to come into compliance where the owner or operator satisfactorily
demonstrates that it is technically infeasible or impracticable to achieve compliance within 30 days. The Settlement Agreement is binding
on EPA and the Owner or Operator upon EPA final approval. Upon EPA final approval 0/the Settlement Agreement, a copy of which will
bereturnedto you, EPA will take nojlsrtheracsion against you/or these violations. EPA willno:acceptorapprove anySettlementAgreement
returned more than 30 days after the date of the Compliance Order unless an extension has been granted by EPA. This Compliance Order
is nor an adjudicatory proceeding under 40 CFR Part 22. the ConsolidatedRides of Practice Governing the Administrative Assessment of
Civil Penalties and the Revocation or Suspension ofPermits, but is issued solely with reft rence to the SettlementAgreement in Part!! of this
form.
1/you do not return the SettlementAgreement withpaymentofthepenalr .yamount3odaysafterissuance, unless an extension has been granted
by EPA, the Compliance Order will be withdrovin, witho Ut prejudice to EPA’s ability to file additional enforcement actions for the above
or any other violations. Failure to return the Settlement Agreement within the approved time does not relieve you of the responsibility to
comply fully with the regulations, including correcting the violations that have been spec flcally identified by the inspector. 1/EPA pursues
‘iistrative enforcement measures in order to correct the violation(s) or to seek penalties, you will receive instructions describing your
under the ConsolidatedRulesofPract ice Goverrang theAdministrativeAs.cessmentofCivilPenaltiesandtheRevocation orSusper sion
/ t’ermus (40 CFR Part 22).
You are required under the Settlement Agreement to cert fj that you have corrected the violations found in the ComplianceOrder and paid
the penalty amount. The payment for the penalty amount must be in the jbrm of a certLfled check payable to the Treasurer of the United
States of America,” with the number of the Compliance Order written on the check.
The Settlement Agreement and copy of the check shall be sent to: Payment of the penalty amount shall be sent to:
Underground Storage Tank Program U.S. Environmental Protection Agency
U.S. Environmental Protection Agency Region —
Region — P.O. Box —
Main Street Main Street
USA USA
By she terms of the SettlemeraAgreement, and upon EPA’sflnal approval of the Settlement Agreement,you waive the opportunity/or a public
hearing pursuant to Section 9006 of the Resource Conservation and Recovery Ac :. EPA will treat any response to the citation, other than
acceptance of the Settlement Oj r, as an indication that the recipient is not interested in pursuing this expedited settlement procedure.
Final approval of the SettlementAgreernent isat the sole discretion of theRe gionalAdrethiistrator , Region _,EPA, or ant horized delegate.
If you have any questions, you may contact the EPA Regional Office of Underground Storage Tanks at

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( tO 5743.
UNITED STATES ENVIRONMENTAL PROTECTION
WASHINGTON. D.C. 20460
1( PRO
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
PR - 9 1992 OSWER Directive 9610.14
MEMORANDUM
SUBJECT: UST Federal Field_ Citati Enforcement
( 1 /’tL1I
FROM: David W. Ziege1e,\ irect
Office of Underground Storage Tanks
TO: Waste Management Division Directors,
Regions I-Ill and V-IX
Water Division Directors, Regions IV and X
Regional Counsel, Regions I-X
One year ago, on March 20, 1991, OUST issued the UST federal
field citation guidance to the Regions. Today we issue the
revised field citation guidance. During the past year we have
been able to incorporate into this document the wisdom gained
from actual field experience of issuing field citations in
Regions VI, VIII, and X. In addition our office has received
valuable input from the Regional UST attorneys, the Office of
Enforcement, and the Office of General Counsel. Drafts of this
revised guidance have undergone close scrutiny by the Regions
throughout the year.
Attached is the revised UST federal field citation guidance.
It includes short-form wordings of those violations for which
field citations may be used, along with the suggested penalty
amount for each violation. Regions are reminded that violations
not a part of this list should not be cited with field citations.
Also included with the guidance is a sample citation form.
Regions must use this approved citation form or obtain approval
for any Region-specific form from OUST, in writing.
This revised UST federal field citation guidance has
received formal concurrence from the Office of Enforcement and
the Office of General Counsel. Special thanks to these attorneys
as well as to all other persons who participated in the extended
process of improving this guidance. Please contact Jerry Parker
of my staff (FTS 703 308-8884) with any questions or comments.
Attachment
Printed on Recycled Paper

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cc: Regional Branch Chiefs
Regional Program Managers
Regional UST Attorneys
Kathie A. Stein, OE
Mimi Newton, OE
Lisa K. Friedman, OGC
Charles Openchowski, OGC
OUST Management Team (w/o attachment)
OUST Desk Officers (w/o attachment)

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r
: _________
. APR i 19 ?
Undid Stitis otse. of
Envivovwn•nhIl Protection SoI. Wiete iM L.,A .t
Agency Emirgincy Risponi. A ! ( /
&EPA DIRECTIVE NUMBER: 9610.14
TITLE: Guidance for Federal Field
Citation Fnforcement
APPROVAL DATE: April 9, 1992
EFFECTIVE DATE: April 9, 1992
ORIGINATING OFFICE: Office of Underground
FINAL Storage Tanks (OUST)
o DRAFT
STATUS:
REFERENCE (other documents):
OSWE Directive 9610.11 “UST/LUST Enforcement
Procedures Guidance Manual”
OSWER Directive 9610.12 “U.S. EPA Penalty Guidance
for Violations of UST Regulations”
Os
WER
DIREC

Os
TIVE
—
WER
DIREC
OSWER
TIVE Di

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6id iIsS Enworwn. taI Pmti oA * 0 . 1 W
WuhI1 wl. OC 20400
OSWER Directive Initiation Request
1. Obi .is t $
9610.14
4iiiie 0 Conis P WA ,Worma 1 1 • ITeIs hon Code
Jerry Parkc’r (lIqT I 703-308 8884
-
Guidance for Federal Field Citation F ,forcement
4. 5uiiYnWy of Directive (include brief sistemint ol purpose)
Provides guidance to U.S. EPA Regional Offices on setting up and implementing
a federal field citation program. Field dtations represent a new enforcement tool
to be used in certain situations where owners/operators of underground storage tanks
violate UST regulations.
1
. IceyWOros
storage t” . r IflC flt r 4r i n ri lPu c PPl m rif r.ffi ..
-
Os. 00. 5 This Directive Supersede Previous Directive(s)? ‘b flOe) 9610.13
b. Does It suppiement Previous Directive(s)? E No vs. w .t *ective (numba, d li .) 9610.12
U.S. EPA Penalty Guidance for Violations of US1’ Regulations
7 Dsft Lsv*
E A - Signed by M1OM B - Signed by Office Director E C - For Review & Conunsi o - v D çns
[ 8. Document to be distributed to States by Headquarters? E — Eu No J
This Riquist Mists OSWER Olr.ctlvss Syst.m Format Standards.
Direcistes Coordinator
9. Si dffl
Bever Thdnas. OUST Directives Coordinator
10. Name
David ie2’el Di
0.1.
f ( (7 L_
01* 1/411
PA Form 1311-17 (Rev. S-S7) Previous editions are obsolele.
OSWER OSWER OSWER 0
DIRECTIVE
DIRECTIVE
DIRECTIVE -

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OSWER Directive 9610.14
GUIDANCE FOR
FEDERAL FIELD CITATION
ENFORCEMENT
U.S. ENVIRONMENTAL PROTECTION AGENCY
OFFICE OF UNDERGROUND STORAGE TANKS
April 1992

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2 OSWER Directive 9610.14
GUIDANCE FOR FEDERAL FIELD CITATION ENFORCEMENT
I. Federal Enforcement
Overview
The Office of Underground Storage Tanks’ (OUST) program approach is to build
UST programs at the State level since States will be primarily responsible for the
enforcement of UST regulations. Regions perform general compliance inspections at
UST sites or take enforcement actions, generally in the place of or in conjunction with a
State when the State lacks enforcement resources, and on Indian Lands or at Federal
facilities. In these specific cases, the Regions must develop an enforcement strategy that
addresses targeted violations while maximizing time and resources.
One enforcement option is the use of field citations, “traffic ticket”-styled citations
issued on-site by inspectors, generally carrying a penalty. Field citations are currently
being used by a number of environmental programs on the Federal, State, and local
level, including UST programs. In the experience of many State and local UST
enforcement programs, field citations are extremely useful in addressing many prevalent,
clear-cut violations that are relatively easy to correct. Addressing these violations using
established enforcement methods, such as formal administrative proceedings under 40
CFR Part 22, requires a greater commitment of staff time and resources, which may be
difficult to obtain or which must compete with time and resources that staff directs
toward releases or violations that are not appropriately addressed by the field citation
program. When a citation program is properly designed, violators issued citations for
clear-cut violations have greater incentive to correct problems and pay penalties than to
contest. Thus, in appropriate circumstances, field citation enforcement is less resource-
intensive than traditional methods of UST enforcement. Resources are saved as citations
are issued on the spot, and preparation of formal legal documents and procedures, such
as administrative appeals, are minimized.
Use of field citations will not displace existing enforcement tools, such as warnings
and orders, but will provide the inspector with an alternative enforcement tool. OUST
believes that a field citation program is a viable and useful tool for Federal enforcement
and several Regions have expressed interest in adopting field citation enforcement
programs.
UST program staff and legal counsel from several Regions participated in a
workgroup effort to develop procedures for Federal enforcement using field citations.
This guidance document is a result of that effort. It attempts to serve the workgroup
participants’ interest in using field citations in a variety of circumstances and address
concerns that an enforcement program be fairly and uniformly applied across Regions.
Some key components of the field citation program are identical from Region to Region,

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3 OSWER Directive 9610.14
such as the language of the citation. However, the flexibility provided in this guidance
and the relationship between field citations and existing enforcement capabilities should
provide considerable room for accommodating local needs. On this score, it is important
to emphasize that field citation enforcement will not supplant existing enforcement
options. Discretion to exercise existing options for warnings and other enforcement tools
remains unchanged by the introduction of field citations, which should blend into
Regional enforcement choices. Also, Regions will continue to select which violations or
facilities need targeting, within the parameters of this guidance, based on local needs and
subject to previously issued enforcement guidance. Finally, the availability of field
citations should not diminish the Regions’ efforts to assist States and localities in building
UST enforcement programs.
Responsibilities of OUST
During the workgroup session, OUST agreed to provide the Regional offices with
support in these specific areas:
• OUST has coordinated with the Office of General Counsel and the Office
of Enforcement to develop a model citation format.
• OUST has developed this guidance, including a list of potential violations
derived from the Federal UST regulations, to be addressed through the
field citation program.
• OUST has made use of field citations consistent with the penalty policy
(OSWER Directive 9610.12 “U.S. EPA Penalty Guidance for Violations of
UST Regulations”) and the Federal procedures manual (OSWER Directive
9610.11 “UST/LUST Enforcement Procedures Guidance Manual”).
• OUST will assist in.inspector training efforts. As the success of a field
citation program depends upon the skills of inspectors, it is crucial that
inspectors receive training in field citation enforcement techniques and
specific guidance on when and how to use the citations. OUST has
developed an inspector training manual to train Federal inspectors in
issuing citations and performing related duties. OUST will help to tailor
the manual to the specific needs of Regional programs, and will coordinate
multi-Regional training efforts.
NOTE TO REGIONAL STAFF: Inspectors may also require training in the technical
issues related to UST inspections; this training will need to be obtained prior to field
citation training.

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4 OSWER Directive 9610.14
II. Regional Program Elements
Guidance for Regions is presented in the following sections. The guidance should
be considered in the context of the Region’s overall enforcement strategy and priorities.
Selecting Appropriate Violations
The Regions described a range of problems they would potentially address using
field citations. In order for field citations to be useful in a range of situations, the
Regions need the ability to determine which violations of the Federal UST regulations to
address using field citations. Since field citations in various forms have been used
effectively in diverse jurisdictions, this guidance provides a framework for allowing
Regions to address different violations within the field citation effort. The guidance is
intended to ensure that each of the Regions develops its list of appropriate violations
judiciously and implements its program reasonably by providing a list of violations
appropriate for field citations and guidelines for selection among violations. Each
Region should select violations to be cited from violations included in this list (see
attached). Regions may not expand the list of violations that can be cited in a field
citation. Consistency among Regions will be further assured by training.
The following generally are appropriate criteria for selecting the violations to be
cited:
• Select violations which are clear-cut and easily verifiable.
• Select violations which are easily correctable.
• Do not select those violations which occur in environmentally sensitive
areas, for example, at USTs above drinking water sources.
Determining which violations are appropriate for a field citation program requires
considerable discretion. Experience shows that field citation programs work most
effectively in achieving compliance if the violations are clear-cut and the inspectors
exercise little discretion in citing the violations. Established field citation programs have
found that easily identifiable violations (i.e., “either they have it or they don’t”) require
the least amount of inspector judgment in the field, making it easier to provide clear
guidance to inspectors and facilitate consistency among inspectors. On the other hand,
the Regions may believe that certain violations, while clear-cut, are very serious in terms
of environmental harm threatened and require a more formal enforcement response.
The list of violations appropriate for the field citation program, which accompanies this
guidance, relieves the Regions of some of the burden of making these decisions.
However, it is the responsibility of each Region to designate which of these violations will

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5 OSWER Directive 9610.14
be appropriate candidates for its field citation program given specific Regional needs and
resources.
In selecting a preferred approach, a Region may choose to target a certain
prevalent or high priority violation or violations. This may be a good strategy for a
Region to use if a State program lacks enforcement authority or regulations in a certain
program area and the Region needs to fill a key gap in coverage or send an important
message to violators. However, if a Region is to be enforcing in the place of the State,
the Region may find it advantageous to include all appropriate violations in the field
citation enforcement program, as long as they meet the above-referenced criteria.
Guidance for When to Use Citations
This guidance establishes procedures for issuing citations, and describes some
appropriate circumstances for inspectors to issue citations. Since the inspector is the one
who must implement the program in the field, the Regions must clearly establish the
extent of discretion allowed to inspectors in determining whether to issue field citations
within general parameters set forth here. Field citations provide an additional
enforcement tool, and inspectors must be instructed in how to respond when violations
appropriate for using field citations are found.
The proper use of field citations must be measured against the backdrop of the
Regions’ existing authority to issue warnings or pursue other existing enforcement
measures for all violations of UST requirements. Although the primary objective of any
enforcement program is to achieve compliance, formal enforcement mechanisms, such as
those found in 40 CFR Part 22, normally will be more appropriate in particular
circumstances. These circumstances include, among others, instances involving repeat
violations, facilities located in environmentally sensitive areas or where payment of a
more significant penalty may be more effective in achieving EPA’s enforcement goals. In
the case of environmentally sensitive areas, for example, a Region should not use its field
citation program for violations at facilities which may pose a serious environmental
hazard because they are in an environmentally sensitive area. These areas may include
sites above drinking water sources. Inspectors should try to determine before they arrive
at a particular facility whether they are dealing with an environmentally sensitive location,
and, therefore, whether a field citation should be used if certain violations which may
pose a serious environmental threat are discovered. One way of doing this is to work
closely with the State within which the violation exists, as it may have substantial
knowledge and experience in delineating areas that are environmentally sensitive.
This guidance is intended to provide a framework for the inspector’s discretionary
use of the field citation enforcement option. Therefore, the guidance is phrased in terms
of the action an inspector would take in the typical case, but leaves room for exception if
the circumstances in the inspector’s judgment so warrant.

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6 OSWER Directive 9610.14
The following discussion describes the three basic enforcement options available
to address violations of UST requirements:
Warnings
• Although warnings can be useful as a first step in the enforcement process,
Regional inspectors generally should consider issuing citations in all cases
where violations are discovered. Field citations are designed to uniformly
address certain violations and promote a quick resolution of the violation
and assessment of a small penalty. Therefore, when a Region is inspecting
a facility, inspectors should consider issuing a field citation rather than a
warning for a violation or violations which the Region has determined may
be an appropriate candidate for its field citation program.
Citations
There are several situations in which inspectors will typically issue citations:
• Inspectors may issue citations for as many violations as are identified at a
site; there is no limit to the number of violations that may be cited at a
single facility. However, if the number of violations found at a site exceeds
ux 1 (a number set by each Region), the inspector should generally forego
field citations and use more formal, existing enforcement methods instead.
Once a Region has selected its list of violations appropriate for the field citation
program and trained inspectors in procedures for issuing field citations, inspectors may
routinely issue field citations for all appropriate violations found at a facility. Each
Region will have the discretion to place an upper limit on the number of violations that
may be cited at one site. The threshold should be set below the point beyond which the
number of violations, regardless of the nature of those violations, proves that a facility
was seriously out of compliance and requires a more formal enforcement response. Even
if the facility had only multiple recordkeeping violations, this approach could be taken in
order to send a message to the regulated community. This number should also be near
the point where a typical violator no longer has an incentive to correct the violations and
pay the penalty instead of resisting compliance. At this point, a more formal
enforcement response is likely to be more effective than use of field citations. As a
general matter, a suggested threshold is between three and ten violations.
• During joint inspections, Regional inspectors should usually not cite for
violations that are cited by the State inspector where State sanctions are at
least equivalent.

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7 OSWER Directive 9610.14
As States are the primary enforcers in the program, Regions usually will take
enforcement actions only in the circumstances noted in the first paragraph of this
guidance document. Therefore, it is likely that during joint inspections Regional
inspectors will defer to the State program’s regulations or authorities and not cite for
violations that State inspectors cite. Generally, this will be the case where State sanctions
are at least equivalent with Federal sanctions. On the other hand, there may be cases
where a field citation would serve an important Federal enforcement objective, for
example, sending a signal to the regulated community that we take interest in a specific
kind of violation. In these cases, a field citation or other Federal enforcement measure
might reinforce the State’s message.
• Inspectors will usually issue citations to first-time violators only. If upon
follow-up inspection a cited violation has not been corrected, the inspector
should generally use Part 22 procedures, or, if a later inspection uncovers a
different violation, the inspector should not use a field citation.
Field citations are generally most appropriate for addressing first-time violators; if
the same violations are found again during a second inspection, Part 22 enforcement
procedures should be initiated. Limiting the use of field citations to first-time violators
makes sense if it appears to the inspector that the citation and penalty have not
convinced a violator to bring a facility into compliance and to keep it in compliance. The
inspector should be guided by the goal of the field citation program, which is to achieve
rapid and resource-efficient compliance, rather than to penalize owners and operators for
regulatory violations. When conducting inspections, it is critical that the inspector fully
conduct the inspection and thoroughly complete the inspection report. If a field citation
is not issued because the violations are above the thresholds for field citations, or the
field citation settlement form is not returned, the Agency may choose to pursue standard
enforcement based on the inspection report. Therefore, while field citations may
expedite the correction and penalty phases of enforcement, the quality and effort applied
to the underlying inspection should not be abbreviated.
Standard Enforcement
If an inspector discovers not only violations that are appropriate for the field
citation program, but other violations as well, the inspector should address all of the
violations at the site using more formal, existing enforcement methods. As used in this
guidance, more formal enforcement typically refers to the procedures for issuing
administrative complaints/compliance orders (including those assessing civil penalties) and
conducting the administrative enforcement process governed by 40 CFR Part 22, the
Consolidated Rules of Practice Governing the Administrative Assessment of Civil
Penalties and the Revocation or Suspension of Permits (“Part 22” or “CROP”). CROP
outlines the major steps in the administrative adjudication process and presents the
various authorities and duties of Agency officials in the process. More formal

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8 OSWER Directive 9610.14
enforcement methods may also include issuance of corrective action orders pursuant to
40 CFR Part 24 or judicial enforcement of the UST requirements.
In selecting those violations which are appropriate for field citations, the Regions
will, in effect, also be identifying violations which, because of their potential for
environmental harm or other characteristics (i.e., not clear-cut), should be addressed
using the more formal, existing enforcement mechanisms. The more formal enforcement
methods may also be the appropriate response in some circumstances where field
citations would otherwise be appropriate (for example, if the total number of individual
violations which are appropriate for a field citation surpasses the threshold for multiple
violations or are repeated). Another case where a clear-cut violation might be addressed
by more formal enforcement is the case of a clear-cut but not easily correctable violation
(e.g., a tank was not purged before being removed). In these cases, a field citation may
not serve the goal of encouraging compliance and might appear to treat the violator
mildly compared to penalties applicable under the penalty policy. In general, the
Regions will need to assess how to maximize resources while bringing as many facilities
into compliance as possible.
The following criteria should be considered by inspectors when issuing citations in
the field:
• Field citations generally are inappropriate in environmentally sensitive
areas, for example, at USTs above drinking water sources.
• Field citations generally are inappropriate for anyone other than first time
violators.
This guidance is phrased so that inspectors will know what action to take in the
typical case. Inspectors are not bound to follow this guidance, however, when in the
exercise of their enforcement discretion they determine that deviation from this guidance
will result in more effective compliance or a more efficient use of enforcement resources.
This approach is consistent with the guidance found in other EPA penalty policies and
procedures.
Guidance for Penalty Amounts
In order to ensure that penalties assessed by different Regions for the same
violations are consistent, standard suggested penalty amounts have been set by this
guidance. Consistency among Regions is important to achieve fairness in the treatment
of the regulated community in Regional penalty assessments. In the case of multiple
violations, penalties should be totaled. In general, field citation programs set penalty
amounts according to the severity of each violation or category of violations. Penalties
should be assessed per facility rather than per tank.

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9 OSWER Directive 9610.14
The size of the penalties attached to violations is important to the success of a
field citation program. Penalties that are relatively high (e.g., greater than $500 per
violation) may discourage owners and operators from agreeing to settle. On the other
hand, penalties need to be high enough to catch the attention of owners and operators.
In general, the field citation program should operate optimally when the penalties are
geared primarily to achieving compliance rather than to penalizing violators.
There is no predetermined cap on the cumulative amount of penalties assessed.
However, there is a natural cap to the extent that each Region will be foregoing issuing
field citations if the number of citable violations at a site exceeds a number fixed by the
Region (see preceding section). The Region may want to consider the practical issues
underlying a cap on the total cumulative amount of penalties that may be incurred by a
single owner or operator, i.e., keeping the amount relatively low might encourage more
settlements. This determination is a matter of judgement, and, as the program is
implemented, experience.
Form of the Citation
While each Region will have considerable discretion in tailoring its field citation
program within the boundaries set forth in this guidance, the Regions must use the
approved field citation or obtain approval for any Region-specific citation form from
OUST in writing, after first having obtained approval of Regional Counsel. OUST will
obtain concurrence for any proposed change from both the Office of General Counsel
and the Office of Enforcement before authorizing such change. This approach will
ensure that the field citations used are legally supportable and designed to accommodate
the program elements described in this guidance. In addition, use of a standard citation
form will guarantee some uniformity across Regions in the issuance of field citations.
The field citation developed by OUST is entitled “Expedited Enforcement
Compliance Order and Settlement Agreement”. The field citation represents the
issuance of an order pursuant to RCRA §9006 to address violations listed in RCRA
§9006(d), coupled with a short-form settlement agreement. Each Region, as it
determines is appropriate, must delegate to individual inspectors the authority necessary
to issue the citation form. The violator is ordered to correct the violation and given an
opportunity to resolve the enforcement action expeditiously by agreeing to correct the
violation and by settling for a lesser penalty amount than might be assessed according to
the penalty policy if formal administrative or judicial proceedings were initiated. The
lower penalty assessment reflects the time and expense saved by the Agency over that
normally incurred in pursuing more formal enforcement methods; it also compromises
the size of the fine EPA could potentially collect, If the violator does not accept the
settlement agreement within the time provided in the field citation, the compliance order
is automatically withdrawn. The Agency’s policy is then to pursue other enforcement
actions for the violations cited. The violator has only two options: accept the field

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10 OSWER Directive 9610.14
citation or risk more formal enforcement proceedings. If a violator refuses to accept the
terms of the field citation or if it is determined that a violator has not fully complied with
the terms of a signed settlement agreement, follow-up enforcement should be initiated by
EPA. Such follow-up enforcement should be more stringent than the field citation
settlement terms in order to achieve compliance and ensure the integrity of the field
citation program.
Hearing Requirements
Subtitle I of RCRA provides for an opportunity for a hearing where an order is
issued -- the hearing process is outlined in Part 22. As described in the foregoing section,
the field citation has been designed as a compliance order and short-form settlement
agreement.
The field citation compliance order is not an adjudicatory proceeding under 40
CFR Part 22. The violator has no right to a hearing under Part 22, since those
procedures have not been invoked through issuance of a field citation. Violators who
accept the terms of the settlement offer will have expressly waived their rights to a public
hearing under § 9006 of RCRA. If the violator does not accept the settlement offer, the
compliance order is withdrawn.
A Region initiating administrative actions against a violator should follow the Part
22 procedures if a violator forgoes the settlement offered through the field citation
process. The Federal procedures guidance (OSWER Directive 9610.11 “UST/LUST
Enforcement Procedures Guidance Manual”) describes appropriate procedures in detail.
Judicial enforcement may also be appropriate in certain instances, in which case the
Region should follow appropriate referral procedures for judicial actions.
Training
This guidance is intended to provide overall direction for establishing Regional
field citation programs. As such, the role of the guidance is to enunciate the general
principles that should underlie an appropriately designed field citation program; further
details not contained in this guidance will be developed and transmitted to program staff
through subsequent training or guidance.

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OSWER Directive 96
SELECTED VIOLATIONS OF FEDERAL UNDERGROUND STORAGE TANK REGULATIONS
Violations
Appropriate for
Regulatory field Citations
Citation Violation (Penalty Amount)
SUBPART B -- UST SYSTEMS: DESIGN, CONSTRUCTION, INSTALLATION, AND NOTIFICATION
§280.20 Performance standards for new UST systems
§280.20(a)(1) installation of an improperly constructed fiberglass-reinforced plastic tank
§280.20(a) (2) Installation of an improperly designed and constructed metal tank that fails to meet corrosion protection standards
§280.20(a) (2) (i) Installation of a metal tank with unsuitable dielectric coating
§280.20(a) (2) (ii) Installation of an improperly designed cathodic protection system for a metal tank
§280.20(a)(2)(iii) Improper installation of cathodic protection system for a metal tank
§280.20(a) (2) (iv) improper operation and maintenance of tank cathodic protection system
§280.20(a) (3) installation of an improperly constructed eteel.fiberglass-reinforced-plastlc tank
§280.20(b)(1) Installation of improperly constructed fiberglass-reinforced plastic piping
§280.20(b) (2) Failure to provide any cathodic protection for metal piping
§280.20(b) (2) (i) Installation of piping with unsuitable dielectric coating
§280.20(b)(2)(ii) Installation of improperly designed cathodic protection for metal piping
§280.20(b)(2)(lii) improper installation of cathodic protection system for piping
§280.20(b) (2) (iv) Improper operation and maintenance of cathodic protection system for metal piping
§280.20(c) FaIlure to use a split prevention system and an overfill prevention system $300
§280.20(e)(1)( i) installation of Inadequate spill prevention equipment In a new tank siso
§280.20(c)(1)(ii) Installation of inadequate overfill prevention equipment in a new tank $150
§ 280.20(d) Failure to Install tank In accordance with accepted codes and standards $150
§ 280.20(d) Failure to install piping In accordance with accepted codes and standards $150
§ 280.20(e) Failure to provide any certification of UST installation $150

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OSWER Directive 9610.14
SELECTED VIOLATIONS OF FEDERAL UNDERGROUND STORAGE TANK REGULATIONS (continued)
Regulatory
Citation
Violation
Violations
Appropriate for
Field Citations
(Penally Amount)
SUBPART B -- UST SYSTEMS: DESIGN, CONSTRUCTION, INSTALLATION, AND NOTIFICATION
(continued)
280.21 Upgrading of existing UST systems
§280.21(b)
Failure to meel all tank upgrade standards
$300
§280.21 (b)(1)(i)
improper installation of interior lining for tank upgrade requirements
§280.21 (b)(1)(ii)
Failure to meet interior lining inspection requirements for tank upgrade
§28021 (b)(2)(u)
Failure to ensure that tank is structurally sound before Installing cathodic protection
§280.21 (b)(2)(ii)
Failure to provide any monthly monitoring of cathodic protection for tank upgrade requirement
§280.21 (b)(2)(ii)
Failure to provide continuous monthly monitoring of cathodic protection for tank upgrade requirement
§280.21 (b)(2 (iii)
Failure to meet tightness test requirements for a tank upgraded with cathodic protection
§280.21 (b)(2)(iv)
Failure to meet requirements for testing for corrosion holes for a tank upgraded with cathodic protection
§280.21(c)
Failure to instaii any cathodic protection for metai piping upgrade requirements
§280.21(c)
Failure to meet tightness test requIrements for cathodically protected metal piping
§280.21(d)
Faiiure to provide spiii or overfiii prevention system for an existing tank
$300
280.22 Notification requirements
§280.22(a) Faliure to notify state or iocal agency wIthin 30 days of bringing an UST system into use $300
or
§280.22(b) FaIlure to notify designated state or local agency of existing lank $300
§280.22(c) Failure to submit a separate notification form identifying all known tanks for each site where tanks are located $150

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OSWER Directive 96
SELECTED VIOLATIONS OF FEDERAL UNDERGROUND STORAGE TANK REGULATIONS (continued)
Regulatory
Citation
Violation
Violations
Appropriate for
Field Citations
(Penally Amount)
SUBPART B
-- UST SYSTEMS: DESIGN, CONSTRUCTION, INSTALLATION, AND NOTIFICATION (continued)
§280.22( 0)
Failure to certify on notIfication form UST system requirements of proper Installation, cathodic protection,
financial responsibility, and release detection
$150
§280.22(f)
Failure to provide installer certification of compliance with Installation requirements on notification form
$150
§280.22(g)
Failure to Inform tank purchaser of notification requirements
SUBPART C
-- GENERAL OPERATING REQUIREMENTS
280.30 Spill and overfill control
§280.30(a)
Failure to take necessary precautions to prevent overfill/spillage during the transfer of product
$300
§280.30(b)
Failure to report a epililoveifill
§280 30(b)
Failure to investigate and clean up a spill/overfill
280.31 OperatIon and maintenance of corrosion protection
§280.31 (a)
Failure to operate and maintain corrosion protection system continuously
$150
§280.31(b)
Failure to ensure proper operation of cathodic protection system
$150
§280.31(c)
Failure to inspect Impressed current systems every 60 days
$150
§280.31(d)
Failure to maintain records of cathodic protection inspections
sg
280.32 CompatibilIty
§280.32 Failure to ensure that UST system is made of or lined with materials compatible with substance stored

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OSWER Directive 9610.14
SELECTED VIOLATIONS OF FEDERAL UNDERGROUND STORAGE TANK REGULATIONS (continued)
Regulatory
Citation
Violation
Violations
Appropriate for
Field Citations
(Penally Amount)
SUBPART C .- GENERAL OPERATING REQUIREMENTS (continued)
280.33 Repairs allowed
§280.33(a)
§280.33(b)
Failure to repair UST system in accordance with accepted codes and standards
Failure to repair fiberglass-reinforced UST in accordance with accepted codes and standards
$150
$150
§280.33(c)
§280.33( 0)
Failure to replace metal piping that has released product
Failure to repair fiberglass-reinforced piping In accordance with manufacturers specifications
$150
§280.33(d)
Failure to ensure that repaired tank systems are tightness tested wIthin 30 days of completion of repair
$300
§280.33(e)
Failure to test cathodic protection system within 6 months of repair of an UST system
$150
§280.33( 1)
Failure to maintain records of each repair to an UST system
$50
280.34 Reporting and recordkeeping
(For violations of reporting and recordkeeplng, see appropriate regulatoly section (e.g., reporting of releases will be under Subpart 0)).
§280.34(a)(1) Failure to submit notification for UST system $300
or
§280.34(a)(1) Failure to submit certification of a new installation with notification form $300
§280.34(b)(1) Failure to maintain analysis of site corrosion potential if corrosion protection equipment Is not ussd $50
§280.34(b) (2) Failure to maintain corrosion protection equipment operation documentation $50
§280.34(b)(3) Failure to maintain documentation of UST system repairs $50
§280.34(b)(4) Failure to maintain documentation of compliance with release detection requirements $50
§280.34(c)(1) Failure to maintain records at UST site and immediately available for inspection $50
or
§280.34(c)(2) Failure to maintain records at a readily available alternative site $50

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OSWER Directive 96
SELECTED VIOLATIONS OF FEDERAL UNDERGROUND STORAGE TANK REGULATIONS (continued)
Violations
Appropriate for
Field Citations
(Penalty Amount)
Violation
SUBPART
D -- RELEASE DETECTION
280.40 General requirements for all UST systems (Applies only to petroleum tanks)
§280.40(a)
Failure to provide adequate release detection method
$300
§260.40(b)
Failure to notify implementing agency when release detection indicates release
§280.40(c)
Failure to provide any release detection method by phase-in date
$150
§280.40(d)
Failure 10 ciose any UST system that cannot meet release detectIon requirements
$300
280.41 Requirements for petroleum UST systems
§ 280.41 (a)
or
§280.41 (a)(1)
or
§ 280.41 (a)(2)
Failure to monitor tanks at least every 30 days, if appropriate
Failure to conduct tank tightness testing every 5 years, if appropriate
Failure to conduct annual tank tightness testing, if appropriate
$300
$300
$300
§ 280.41 (b)(1)(i)
Failure to equip pressurized piping with automatic line leak detector
$300
§280.41 (b)(1)(ii)
Failure to have annual tank tightness test or perform monthly monitoring on pressurized piping
$300
§280.41 (b)(2)
Failure to conduct line tightness test or use monthly monitoring on suction piping
$300
280.42 Requirements for hazardous substanôe UST systems
Failure to provide release detection for an existing hazardous substance tank system
Failure to provide adequate release detection for a new hazardous substance UST system
Failure to provide adequate secondary containment of tank for a hazardous substance UST
Failure to provide adequate double-wailed tank/adequate lining for a hazardous substance UST
Failure to provide adequate external liners for a hazardous substance UST
Failure to provide adequate secondary containment of piping for a hazardous substance UST
Regulatory
Citation
§280.42(a)
§280.42(b)
§230.42(b) (1)
§280.42(b) (2)
§280.42(b) (3)
§230.42(b) (4)

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OSWER Directive 9610.14
SELECTED VIOLATIONS OF FEDERAL UNDERGROUND STORAGE TANK REGULATIONS (continued)
Regulatory
Citation
Violation
Violation.
Appropriate for
Field CitatIons
(Penally Amount)
SUBPART D
-- RELEASE DETECTION (continued)
280.43 Methods of release detection for tanks
§280.43(a)
inadequate operation or maintenance of Inventory control
$300
§280.43(a)(1)-(6)
$50 each
§280.43(b)
inadequate operation or maintenance of manual tank gauging
$300
§280.43(b)(1)-(4)
$50 each
§280.43(c)
inadequate operation or maintenance of tank tightness testing
$150
§280.43(d)
Inadequate operation or maintenance of automatic tank gauging
$300
§280.43(d)(1)-(2)
$150 each
§280.43(e)
inadequate operation or maintenance of vapor monitoring
$300
§280.43(e)(1).(7)’
$150 each
§280.43(f)
inadequate operation or maintenance of ground-water monitoring
$300
§280.43(f)(1).(8)@
$150 each
§280.43(g)
Inadequate operation or maintenance of interstitial monitoring
$300
280.44 Methods of release detection for piping
§280.44 Failure to provide any release detection for underground piping $300
§280.44(a) Failure to provide adequate line leak detector system for underground piping $150
or
§280.44(b) Failure 10 provide adequate line tightness testing system for underground piping system $150
§280.44(c) inadequate use of applicable lank release detection methods $150
if Citing more then 3 subsectIons, cite Instead §280.43(b) or §280.41(a)
1f citing more than 1 subsection, cite instead §280.43(e)
If citing more than I subsection, cite instead 280.43(f)

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OSWER Directive 9(
SELECTED VIOLATIONS OF FEDERAL UNDERGROUND STORAGE TANK REGULATIONS (continued)
Regulatory
Citation
Violation
Violations
Appropriate for
Field Citations
(Penalty Amount)
SUBPART D
-- RELEASE DETECTION (continued)
280.45 Release detection recordkeeplng
§280.45
Failure to maintain records of reiease detection monitoring
$1 SO
§280.45(a)
Failure to document au release detection performance claims for 5 years after installation
$50
§280.45(b)
Failure to maintain results of samplIng, testing or monitoring for release detection for at least 1
retain results of tightness testing until next test Is conducted
year or failure to
$50
§280.45(c)
Failure to document calibration, maintenance, and repair of release detection
$50
SUBPART E
-- RELEASE REPORTING, INVESTIGATION, AND CONFIRMATION
280.50 Reporting of suspected release
§280.50(a)-Cc)
Faiiure to report a suspected release within 24 hours to the implementing agency
280.52 Release investigation and confirmation steps
§280.52(a).(b)
Faiiure to investigate and confirm a release (if appropriate) using accepted procedures
280.53 Reporting and cieanup of splils and overfiiis
§280.53(a) Failure to report a spIll/overfill (if appropriate) to implementing agency within 24 hours (or other specified time period)
§280.53(b) Faliure to contain and Immediately dean up a spill/overfill of less than 25 gallons
§280.53(b) Failure to contain and immediately clean up a hazardous substance spiii/overf iii

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OSWER Directive 9610.14
SELECTED VIOLATIONS OF FEDERAL UNDERGROUND STORAGE TANK REGULATIONS (continued)
Violations
Appropriate for
Field Citation.
(Penally Ainouni)
ViolatIon
SUBPART F
-- RELEASE RESPONSE AND CORRECTIVE ACTION
§280.61
Failure to take Initial response actions within specified time period after a release I. confirmed
§280.62
Failure to submit report on initial abatement measures within 20 days (or other specified time) of release confirmation
§280.63
Failure to submit report on initial site characterization within 45 days (or other specified time) of release confirmation
§280.64
Failure to submit report on free report removal within 45 days (or other specified time) of release confirmation
SUBPART 0
— OUT-OF-SERVICE UST SYSTEMS AND CLOSURE
280.70 Temporary closure
§280.70(a)
FaIlure to continue operation and maintenance of corrosion protectIon system in a temporarily closed tank
system
$150
§280.70(a)
Failure to continue operation and maintenance of release detection In a temporarily closed tank system
$300
§280.70(b)
Failure to comply with temporary closure requirements for a tank system for 3 or more months
$300
§280.70(b)(1) -(2)
$180 each
§280.70(c)
Failure to permanently close or upgrade a temporarily closed tank system after 12 months
Regulatory
Citation
§280.71(a)
§280.71(b)
§280.71(b)
§280.71(c)
280.71 Permanent closure and changes-ln.servlc.
Failure to notify Implementing agency of a closure or change-In-service
Failure to remove all liquids and sludges for tank closure
Failure to remove closed tank from the ground or fill tank with an inert solid for tank closure
Failure to empty and clean tank system and conduct a site assessment prior to a change-in-service

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OSWER Directive 96’
SELECTED VIOLATIONS OF FEDERAL UNDERGROUND STORAGE TANK REGULATIONS (continued)
Regulatory
Citation
Violation
Violations
Appropriate for
Held Citallons
(Penally Amount)
SUBPART G -.
OUT.OF-SERVICE UST SYSTEMS AND CLOSURE (continued)
280.72 Assessing the site at ciosure or change-in-service
§260.72(a)
Failure to measure (if required) for the presence of a release before a permanent closure
§280.72(b)
If conlaminated soil, contaminated ground water, or free product is discovered. faiiure to begin corrective action
280.74 Closure records
§280.74
Faiiure to maintain ciosure records for at ieast 3 years
$300
§ 280.74
Failure to maintain change-In-service records for at ieast 3 years
$300
SUBPART H -- FINANCIAL RESPONSIBILITY
§280.93(a) Failure to comply with financial responsibility requirements by the required phase-in time
§280.93(a)(1).(2) Faiiure to meet the requirement for per-occurrence coverage of insurance.
§280.93(b)(1) -(2) Faiiure to meet the requirement for annuai aggregate coverage of insurance
§280.93(1) Failure to review and adjust financial assurance after acquiring new or additional USTs
§280.94 Use of an unapproved mechanism or combination of mechanisms to demonstrate financial responsibility
§280.95 Use of falsified financial documents to pass financial test of soil-insurance
§280.106(a)(1) Failure to report evidence of financial responsibiiity to the implementing agency within 30 days of detecting a known or
suspected release
§280.106(a) (2) Failure to report evidence of financial responsibility to the impiementing agency when new tanks are instaiisd
§280.106(b) Failure to report evidence of financial responsibility to the Implementing agency if the provider becomes incapable of
providing financial assurance and the owner or operator is unable to obtain alternate coverage within 30 days.
§280.107 Failure to maintain copies of the financial assurance mechanism(s) used to comply with financial responsibility rule and
certification that the mechanism is in compliance with the requirements of the rule at the UST site or place of business

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Facility Identification Number_______________________
Name of Owner, Operator or
On-site Representative
(Circle one)
(Address of Owner, Operator, or On-Site Representative)
An authorized representative of the United States Environmental
Protection Agency (EPA) inspected this facility to determine compli-
ance with underground storage tank regulations promulgated under
Subtitle I of iheResourceConservation andRecovery Actof 1976(42
U.S.C. § 6912 et seq.). During this inspection, the following
violations of underground storage tank regulations were found, with
rresponding penalty amounts:
N... ie of Violation:
4OCFR ________________ Penalty$
Nature of Violation: __________________
4OCFR ______________ Penalty S
Nature of Violation:
Penalty Total $
The owner or operator of the above facility is hereby ordered to
correct the violations and pay the penalties described above.
This Compliance Order is not an adjudicatory proceeding under 40
CFR Part 22, the Consolidated Rules of Practice Governing the
Administrative Assessment of Civil Penalties and the Revocation or
Suspension of Permits, but is issued solely with reference to the
Settlement Agreement in Part II of this form. If the Settlement
Agreement in Part II is not returned in correct form by the owner or
operator within 30 days of the date of signature below by the
Authorized Representative of EPA, this Compliance Order is hereby
withdrawn, without prejudice to EPA’s ability to file additional
enforcement actions for the above or any other violations.
I have personally observed the above violations and find the owner
or operator in violation of the above-referenced UST regulations.
PART II: SETTLEMENT AGREEMENT
The United States Environmental Protection Agency (EPA) offers
this Settlement Agreement under its expedited enforcement proce-
dures in order to settle the violations found in the Compliance Order
in Part I of this form subject to the following terms and conditions:
The Owner or Operator signing below certifies, under civil and
cruninal penalties for making a false submission to the United States
Government, that Owner or Operator has corrected the violation(s)
andenclosed acertifiedcheck forS in paymentof the full
penalty amount, as described in the Compliance Order.
Upon EPA final approval of this Settlement Agreement, EPA will
take no further action against the Owner or Operator for the violations
described in the Compliance Order. EPA does not waive any
enforcement action by EPA, the State where the facility is located or
any local agencies for any other past, present or future violations of
the underground storage tank requirements or any other violations
under any other statute not described in the Compliance Order.
Also, upon EPA final approval of this Settlement Agreement, the
Owner or Operator waives the opportunity for a public hearing
pursuant to Section 9006 of the Resource Conservation and Recovery
Act.
This Settlement Agreement is binding on the EPA and the Owner or
Operator signing below. The Owner or Operator signing below
consents to EPA ’s final approval of this Settlement Agreement
without further notice. This Settlement Agreement is effective upon
EPA’s final approval below. Upon final approval, EPA shall mail a
copy of the approved Settlement Agreement to the Owneror Operator
signing below.
Final approval of the Settlement Agreement is in the sole discretion
of the Regional Administrator, Region —, EPA, or authorized
delegate.
SIGNATURE BY OWNER OR OPERATOR:
Name (print)
ignaIure of Authorized Representative of EPA)
Date: _____
I hereby acknowledge receipt of this Compliance Order and Settle-
ment Agreement.
________________________________________ Date: _______
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION_, MAIN STREET, USA
EXPEDITED ENFORCEMENT
COMPLIANCE ORDER AND SETTLEMENT AGREEMENT
PART I: COMPLIANCE ORDER
COMPLIANCE ORDER NO. _______
On __________ Time
At
(Date of Violation) (a.m. or p.m.)
(Name of Facility)
(Address of Facility)
Penalty $
Tsl lr.vinA
Date: ______
FINAL APPROVAL BY EPA:
Name (prim)
Title (print) _______________
Date: ______
(Signature of Owner, Operator or On-site Representative)

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UNiTED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION —, MAIN STREET, USA
EXPEDiTED ENFORCEMENT
COMPLIANCE ORDER AND SE17LEMENT AGREEMENT
INSTRUCTIONS
The United States Environmental Protection Agency has authority under Section 9006 of the Resource Conservation and Recovery Act to
issue compliance orders and pursue civil penalties for violations of widerground storage tank regulations. However, the EPA encourages
the aped ited seulementof easily verifiable violationsof widergrowidstorage tankreq ul remenu,such as the violations cited in the Expedued
Enforcement Compliance Order and Settlement Agreement for which these instructions are provided, by agreeing to these settlement ternis
that include expedited correction of the violation and payment of penalties.
You may resolve the cited violations quickly by signing and returning the Settlement Agreement and paying the penalty amount within 30
days of the issuance of the Compliance Order. You must correct the violations within 30 days of the issuance of the Compliance Order. EPA,
at its discretion. may grant one 30 day extension for the period to come into compliance where the owner or operator satisfactorily
demonstrates that it is technically inftasible or impracticable to achieve compliance within 30 days. The Settlement Agreement is binding
on EPA and the Owner or Operator upon EPA final approval. Upon EPA final approval of the SettlementAgreement, a copy of which will
be rerurnedto you, EPA will take no further action against youfor these violations. EPA will notacceptorapprove anySettlementAgreement
ret urned more than 30 days after the date of the Compliance Order unless an extension has been granted by EPA. This Compliance Order
is not an adjudicatory proceeding under 40 CFR Part 22, the Consolidated Rules 0/Practice Governing the Administrative Assessment of
CivilPenalties and theRevocation or Suspension of Permits, but is issued solely with reference to the Settlement Agreement in Part II of this
form.
If you do not return theSettlementAgreement withpaymentofthepenaltyaraount3odaysafterissuance, unless an extension has been granted
by EPA, the Compliance Order will be withdrawn, without prejudice to EPA’s ability to file additional enforcement actions for the above
or any other violations. Failure to return the Settlement Agreement within the approved time does not relieve you of the responsibility to
‘oiy fully with the regulations, including correcting the violations that have been spec4flcaily iden:4fied by the inspector. If EPA pursues
istrative enforcement measures in order to correct the violation(s) or to seek penalties, you will receive instructions describing your
under the ConsolidatedRulesofPractice Governing iheAdministrativeAsses sment ofCivilPenaltiesandtheRevocation or Suspension
of Permits (40 CFR Part 22).
You are required under the Settlement Agreement to cert fr that you have corrected the violations found in the Compliance Order and paid
the penalty amount. The payment/or the penalty amount must be in the form 0/a certified check payable to the “Treasurer of the United
States of America,” with the number of the Compliance Order written on the check.
The Settlement Agreement and copy of the check shall be sent to: Payment of the penalty amount shall be sent to:
Underground Storage Tank Program U.S. Environmental Proiecdon Agency
U.S. Environmental Protection Agency Region —
Region — P.O. Box —
Main Street Main Street
USA USA
By the terms of the SettlementAgreement, and upon EPA’sflnal approvoJ 0/the SettlementAgreemera, you waive the oppor:uniryfora public
hearing pursuant to Section 9006 of the Resource Conservation andRecovery Ac:. EPA will treat any response to the citation, other than
acceptance of the Settlement Offer, as an indication that the recipient is not interested in pursuing this expedited settlement procedure.
Final approval of the Settlement Agreement is at the sole discretion of the RegionalAdministrator, Region _,EPA, or authorized delegate.
If you have any questions, you may contact the EPA Regional Office of Underground Storage Tanks as _______________________

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lEO SJ 4
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
‘ q ,, 1 , 1 tC
4AD ‘)fl inn, OFFICEOF
L V I I SOLID WASTE AND EMERGENCY RESPONSE
MEMORANDUM
Subject: UST Federal Field tation E çorcement
From: David W. Ziegele,
Office of Underground Storage Tanks
To: Waste Management Division Directors,
Regions 1-111 and V-IX
Water Division Directors, Regions IV and X
Regional Counsel, Regions I-X
Back on September 12, 1990, OUST sent for Regional review a
draft federal field citation and guidance for its use. We
received back thoughtful comments from many of you. A number of
changes have been made in the main document along with its
attachments. In this process of revision we have worked very
closely with the Office of General Counsel (OGC) and have
received their concurrence on the final set of documents.
Attached is the federal field citation guidance in final
form, along with short—form wordings of selected federal UST
regulations, and a sample citation form. We hope to be able to
provide a training for Regional inspectors and attorneys within
the next couple of months. Training is a very important part of
this effort.
Thanks again to all who participated in this effort. Please
contact Jerry Parker of my staff (FPS 475-7263) with any
questions or’ comments.
Attachments
cc: Regional Program Managers
Lisa K. Friedman, OGC
Pri tgd o Rw 1 rc1s4 Pap.,
UST/E/9j.. -j.

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OSWER Dir. 9610.13
GUIDANCE FOR FEDERAL FIELD CITATION ENFORCEMENT
I. Federal Enforcement
Overview
OUST’s program approach is to build UST programs at the State level since
States will be primarily responsible for the enforcement of UST regulations. Regions
may perform general compliance inspections at UST sites or take enforcement actions in
certain circumstances, generally in the place of or in conjunction with a State when the
State lacks enforcement resources, and on Indian Lands or at Federal facilities. In these
specific cases, the Regions must develop an enforcement strategy that addresses targeted
violations while maximizing scarce time and resources.
One enforcement option is the use of field citations, “traffic ticket”-styled citations
issued on-site by inspectors, generally carrying a penalty. Field citations are currently
being used by a number of environmental programs on the Federal, State, and local
level, including UST programs. In the experience of many State and local UST
enforcement programs, field citations are extremely useful in addressing many prevalent,
clear-cut violations that are relatively easy to correct. Addressing these violations using
established enforcement methods, such as formal administrative proceedings under 40
CFR Part 22, requires a significant commitment of staff time and resources, which is
either difficult to obtain or which must compete with time and resources that staff directs
toward releases or violations that may pose more immediate or significant environmental
harm. When a citation program is properly designed, violators issued citations for clear-
cut violations have greater incentive to correct problems and pay penalties than to
contest. Thus, in appropriate circumstances, field citation enforcement is less resource-
intensive than traditional methods of UST enforcement. Resources are saved as citations
are issued on the spot, and preparation of formal legal documents and procedures, such
as administrative appeals, are minimized.
Use of field citations will not displace existing enforcement tools, such as warnings
and orders, but will provide the inspector with another tool for situations where these
enforcement approaches may be less effective. OUST believes that a field citation
program is a viable and useful tool for Federal enforcement and several Regions have
expressed interest in adopting field citation enforcement programs.
UST program staff and legal counsel from several Regions participated in a
workgroup effort to develop procedures for Federal enforcement using field citations.
This guidance document is a result of that effort. It attempts to serve the workgroup
participants’ interest in using field citations in a variety of circumstances and address
concerns that an enforcement program be fairly and uniformly applied across Regions.
Some key components of the field citation are identical from Region to Region, such as
the language of the citation. However, the flexibility provided in this guidance and the
relationship between field citations and existing enforcement capabilities should provide
considerable room for accommodating local needs. On this score, it is important to
emphasize that field citation enforcement will not supplant existing enforcement options.

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OSWER Dir. 9610.13
Discretion to exercise existing options for warnings and other enforcement tools remains
unchanged by the introduction of field citations, which should blend into Regional
enforcement choices. Also, Regions will continue to select which violations or facilities
need targeting, based on local needs and subject to previously issued enforcement
guidance. Finally, the availability of field citations should not diminish the Regions’
efforts to assist States and localities in building UST enforcement programs.
Responsibilities of OUST
During the workgroup session, OUST agreed to provide the Regional offices with
support in these specific areas:
• OUST has coordinated with the Office of General Counsel to develop a
uniform citation format to be used by all the Regional offices.
• OUST has developed this guidance for program details, including a list of
potential violations to be addressed through the field citation program,
derived from the Federal UST regulations, and options for setting penalty
amounts.
• OUST has made use of field citations consistent with the penalty policy
(OSWER Directive 9610.12 “U.S. EPA Penalty Guidance for Violations of
UST Regulations”) and the Federal procedures manual (OSWER Directive
9610.11 “USTILUST Enforcement Procedures Guidance Manual”).
• OUST will assist in inspector training efforts. As the success of a field
citation program depends upon the skills of inspectors, it is crucial that
inspectors receive training in field citation enforcement techniques and
specific guidance on when and how to use the citations. OUST has
developed an inspector training manual for States and localities that it will
adapt for Federal use to train inspectors in issuing citations and performing
related duties. OUST will make the manual available to all the Regions
and will help to tailor the manual to the specific Regional programs.
OUST will also coordinate any inter-Regional training efforts.
NOTE TO REGIONAL STAFF: Inspectors may also require training in the technical
issues related to UST inspections; this training will need to be obtained prior to field
citation training.
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OSWER Dir. 9610.13
II. Regional Program Elements
Guidance on program details for Regions is presented in the following sections.
The guidance shguld be considered in the context of the Regions’ overall enforcement
strategy and priorities.
Selecting Appropriate Violations
The Regions described a range of problems they would potentially address using
field citations. In order for field citations to be useful in a range of situations, the
Regions need the ability to determine which violations of the Federal UST regulations to
address using field citations. Since field citations in various forms have been used
effectively in diverse jurisdictions, this guidance provides a framework for allowing
Regions to address different violations within the field citation effort. The guidance is
intended to ensure that each of the Regions develops its list of appropriate violations
judiciously and implements its program reasonably by providing a baseline list of
violations appropriate for field citations and guidelines for selection among violations.
Each Region should select violations to be cited from violations included in this list.
Assuring consistency among Regions will be provided further by training.
The following are appropriate criteria for selecting the violations to be cited:
• Select violations which are clear-cut and easily verifiable, but which pose
little immediate threat of environmental harm (i.e., relatively minor
violations).
• Target violations selected according to commonness of occurrence and or
program priority, such as release detection preventive requirements.
• Identify violations by relevant, objective criteria, such as those violations
included in the penalty policy with base penalties of $500 or less.
Determining which violations are appropriate for a field citation program requires
considerable discretion. Experience shows that field citation programs work most
effectively in achieving compliance if the violations are clear-cut and the inspectors
exercise Little discretion in citing the violations. Established field citation programs have
found that easily identifiable violations (i.e., “either they have it or they don’t”) require
the least amount of inspector judgment in the field, making it easier to provide clear
guidance to inspectors and facilitating consistency among inspectors. On the other hand,
the Regions may believe that certain violations, while clear-cut, are very serious in terms
of environmental harm threatened and require a more formal enforcement response. If
the choice is to cite only relatively minor violations, selecting low-penalty violations from
the penalty policy appears to be a reasonably objective way to start a program offering
consistency with the penalty policy.
3

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OSWER Dir. 9610.13
In selecting a preferred option, a Region may choose to target a certain prevalent
or high priority violation or violations. This may be a good strategy for a Region to use
if a State program lacks enforcement authority or regulations in a certain program area
and the Region needs to fill a key gap in coverage or send an importanj.message to
violators. However, if a Region is to be enforcing in the place of the State, the Region
may find it advantageous to include all appropriate violations in the field citation
enforcement program, as long as they meet above-referenced criteria.
Guidance for When to Use Citations
This guidance establishes procedures for issuing citations, and describes some
appropriate circumstances for inspectors to issue citations. Since the inspector is the one
who must implement the program in the field, the Regions must clearly establish the
extent of discretion allowed to inspectors in determining whether to issue field citations
within general parameters set forth here. Field citations provide an additional
enforcement tool, and inspectors must be instructed how to respond when violations
appropriate for using field citations are found.
The proper use of field citations must be measured against the backdrop of the
Regions’ existing authority to issue warnings or pursue other existing enforcement
measures for all violations of UST requirements. When determining when to forego field
citations in favor of more formal, existing enforcement procedures, this guidance advises
that field citations are most useful when the primary enforcement objective dictated by
the situation is achieving compliance expeditiously. When, in the judgement of the
inspector, penalizing a violator is the foremost goal to be accomplished by the
enforcement action, the remedies provided by 40 CFR Part 22 generally will be more
appropriate. These more formal procedures are described more fully below.
This guidance is intended to provide a framework for the inspector’s discretionary
use of the field citation enforcement option. Therefore, the guidance is phrased in terms
of the action an inspector would take in the typical case, but leaves room for exception if
the circumstances in the inspector’s judgment so warrant.
The following discussion describes the three basic enforcement options available
to address violations of UST requirements:
Warnings
Although warnings can be useful as a first step in the enforcement process,
Regional inspectors generally should consider issuing citations in all cases
where violations are discovered. Field citations are designed to uniformly
address certain violations and promote a quick resolution of the violation
and assessment of a small penalty. Therefore, where a Region is inspecting
a facility, the field citation should be used rather than a warning.
4

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OSWER Dir. 9610.13
Citations
There arc several situations in which inspectors will typically issue citations:
• Inspectors should issue citations for as many violations as are identified at a
site; there is no limit to the number of violations that may be cited at a
single facility. However, if the number of violations found at a site exceeds
“x” (a number set by each Region), the inspector may forego field citations
and use more formal, existing enforcement methods instead.
Once a Rethon has selected its list of violations appropriate for the field citation
program and trained inspectors in procedures for issuing field citations, inspectors should
routinely issue field citations for all appropriate violations found at a facility. Each
Region will have the discretion to place an upper limit on the number of citations issued
at a site (the number of violations that may be cited at one site). The threshold should
be set below the point where the number of violations, regardless of the nature of those
violations, proves that a facility was seriously out of compliance and requires a more
formal enforcement response. Even if the facility had only multiple recordkeeping
violations, this approach could be taken in order to send a message to the regulated
community. This number should also be near the point where a typical violator no
longer has an incentive to correct the violations and pay the penalty instead of resisting
compliance. At this point, a more formal, existing enforcement response is likely to be
more effective than use of field citations. As a general matter, a suggested threshold is
between three and ten violations.
• During joint inspections, Regional inspectors will usually not cite for
violations that are cited by the State inspector where State sanctions are at
least equivalent.
As States are the primaiy enforcers in the program, Regions usually will take
enforcement actions only in certain circumstances. Therefore, it is likely that during joint
inspections Regional inspectors will defer to the State program’s regulations or
authorities and not cite for violations that State inspectors cite. Generally, this will be
the case where State sanctions are at least equivalent with Federal sanctions. On the
other hand, there may be cases where a field citation would serve an important Federal
enforcement objective, for example, sending a signal to the regulated community that we
take interest in a specific kind of violation. In these cases, a field citation or other
Federal enforcement measure might reinforce the State’s message.
• Inspectors will usually issue citations to first.time violators only. If upon
follow.up inspection a cited violation has not been corrected, the inspector
should generally use Part 22 procedures, or, if a later inspection uncovers a
different violation, the inspector should not use a field citation.
5

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OSWER Dir. 9610.13
Field citations are generally most appropriate for addressing first-time violators; if
the same violations are found again during a second inspection, Part 22 enforcement
procedures should be initiated. Limiting the use of field citations to first-time violators
makes sense if it appears to the inspector that the citation and penalty have not
convinced a violator to bring a facility into compliance and to keep it in compliance. The
inspector should be guided by the goal of the field citation program, which is to achieve
rapid and resource-effective compliance, rather than to penalize owners and operators
for regulatory violations.
Standard Enforcement
If an inspector discovers not only violations that are appropriate for the field
citation program, but other violations as well, the inspector should address all of the
violations at the site using more formal, existing enforcement methods because the more
serious violation shows that the facility cannot simply be handled by field citation
procedures. As used in this guidance, more formal enforcement typically refers to the
procedures for issuing administrative compliance orders (including those assessing civil
penalties) and conducting the administrative enforcement process governed by 40 CFR
Part 22, the Consolidated Rules of Practice Governing the Administrative Assessment of
Civil Penalties and the Revocation or Suspension of Permits (“Part 22” or “CROP”).
CROP outlines the major steps in the administrative adjudication process and presents
the various authorities and duties of Agency officials in the process.
In selecting those violations which are appropriate for field citations, the Regions
will, in effect, also be identifying violations which, because of their potential for
environmental harm or other characteristics (i.e., not clear-cut), should be addressed
using the more formal, existing enforcement mechanisms in Part 22. The more formal
enforcement methods may also be the appropriate response in some circumstances where
field citations would otherwise be appropriate (for example, if violations which are
appropriate for a field citation in themselves surpass the threshold for multiple violations
or are repeated). Another case where a clear-cut violation might be addressed by more
formal enforcement is the case of a clear-cut but non-correctable violation (e.g., a tank
was not purged before being removed). In these cases, a field citation will not serve the
goal of encouraging compliance and might appear to treat the violator mildly compared
to penalties applicable under the penalty policy. In general, the Regions will need to
assess how best to maximize resources while bringing as many facilities into compliance
as possible.
This guidance is phrased so that inspectors will know what action to take in the
typical case. Inspectors are not bound to follow this guidance, however, when in the
exercise of their enforcement discretion they determine that deviation from this guidance
will result in more effective compliance or a more efficient use of enforcement resources.
This approach is consistent with the guidance found in other EPA penalty policies and
procedures.
6

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OSWER Dir. 9610.13
Guidance for Penalty Amounts
The Regions will have some discretion to assign penalty amounts to violations
selected from the baseline list. The Regions have the option of selecting a uniform
penalty amount or establishing an incremental scale of penalty amounts according to the
seriousness of the violation or category of violations (e.g., $X-$2X-$3X). In the case of
multiple violations, penalties are totaled. In general, field citation programs set penalty
amounts according to the severity of each violation or category of violations. In other
words, penalties are set higher or lower according to the degree of environmental harm
that might occur as a result of a specific violation. For example, lack of daily monitoring
records might be considered less serious than a lack of monitoring wells.
The size of the penalties attached to violations is important to the success of a
field citations program. Penalties that are relatively high (e.g., greater than $500 per
violation) may discourage owners and operators from agreeing to settle. On the other
hand, Regions should set penalties high enough to catch the attention of owners and
operators. In general, the field citation program should operate optimally when the
penalties are geared primarily to achieving rapid compliance rather than to penalizing for
the violation. This principle might guide the Regions to setting relatively low, uniform
penalties.
Because each Region has the discretion to set the range of penalty amounts, there
is no predetermined cap on the cumulative amount of penalties assessed. However,
there is a natural cap to the extent that each Region will be foregoing issuing field
citations if the number of citable violations at a site exceeds a number fixed by the
Region (see preceding section). The Region may want to consider the practical issues
underlying a cap on the total cumulative amount of penalties that may be incurred by a
single owner or operator, i.e., keeping the amount relatively low might encourage more
settlements. This determination is a matter of judgement, and, as the program is
implemented, experience.
As a general recommendation, the range of $100 to $500 should meet most
Regions’ needs and be consistent with experience in other programs that have employed
field citations to enforce their environmental regulations. Regions are also encouraged to
consult each other and to coordinate with Headquarters in order to set uniform penalties
where appropriate.
Form of the Citation
While each Region will have considerable discretion in tailoring its field citation
program within the boundaries set forth in this guidance, the Regions must use the
approved field citation or obtain approval for any Region-specific citation form from
Regional Counsel and the Office of General Counsel. This approach will ensure that the
field citations used are legally supportable and designed to accommodate the program
7

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OSWER Dir. 9610.13
elements described in this guidance. In addition, use of a standard citation form will
guarantee some uniformity across Regions in the issuance of field citations.
The field citation represents the issuance of an order pursuant to RCRA §9006 to
address violations listed in RCRA §9006(d), and essentially is a short-form settlement
agreement. The violator is notified of the violation and given an opportunity to resolve
the violation expeditiously by agreeing to correct the violation and by settling for a lesser
penalty amount than might be assessed according to the penalty policy if Part 22
proceedings are initiated. The lower penalty assessment reflects the time and expense
saved by the Agency over that normally incurred in pursuing more formal enforcement
methods, although it also compromises the size of the fine it could legally collect. The
violator has only two options: accept the field citation or risk more formal enforcement
proceedings if the Agency decides to pursue the violations.
Hearin! Reouirements
Subtitle I of RCRA provides for an opportunity for a hearing where an order is
issued -- the hearing process is outlined in Part 22. The field citation has been designed
as a short-form settlement agreement. Achieving a settlement through a field citation
should eliminate the need for a hearing.
A Region initiating administrative actions against a violator should follow the Part
22 procedures if a violator forgoes the settlement offered through the field citation
process. The Federal procedures guidance (OSWER Directive 9610.11 “UST/LUST
Enforcement Procedures Guidance Manual”) describes appropriate procedures in detail.
Ir ain
This guidance is intended to provide overall direction for establishing Regional
field citation programs. As such, the role of the guidance is to enunciate the general
principles that should underlie an appropriately designed field citation program; further
details not contained in this guidance will be developed and transmitted to program staff
through subsequent training.
8

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OSWER Dir. 9610.13
SHORT-FORM WORDINGS OF SELECTED FEDERAL REGULATIONS
The following short-form wordings for field citations were developed from the Federal
underground storage tank regulations and constitute a baseline list of violations which may be
appropriate for use in a Federal field citation program.
Regulatory
Citation Violation
280.20 Performance standards for new UST systems
280.20(a)(2) Failure to cathMcally protect a tank
280.20(b)(2) Failure to cathodically protect metal piping
280.20(c) Failure to use a spii 1 prevention system
280.20(c) Failure to use an overfill prevention system
280.21 Upgrading of existing UST systems
280.21(b)(1)(i) Failure to install interior lining for tank upgrade requirements
280.2 1(b)(2) Failure to meet tank upgrade requirements for cathodic protection
280.21(b)
(2)(iii) Failure to meet tightness test requirements for an upgraded, cathodically protected
tank
280.21(c) Failure to install cathodic protection for metal piping upgrade requirements
280.21(d) Failure to provide spill prevention system for an existing tank
280.21(d) Failure to provide overfill prevention system for an existing tank
280.22 Notification requirements
280.22(a) Failure to notify agency within 30 days of bringing UST system into use
280.22(c) Failure to identify all USTs on notification form
280.22(e)(1) Failure to certify on notification form that UST system was installed properly
280.22(e)(2) Failure to certify on notification form that UST system is cathodically protected
9

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OSWER Dir. 9610.13
.4
280.22(e)(3) Failure to certify financial responsibility on notification form
280.22(e)(4) Failure to certify proper release detection use for UST system on notification form
280.22( L) Failure to provide installer certification of compliance with installation
requirements on notification form
280.22(g) Failure to notify purchaser of UST system of notification requirements.
280.30 Spill and overfill control
280.30(b) Failure to report i spill
280.30(b) Failure to report an overfill
280.30(b) Failure to investigate a spiii
280.30(b) Failure to investigate an overfill
280.30(b) Failure to clean up a spill
280.30(b) Failure to clean up an overfill
280.31 Operation and maintenance of corrosion protection
280.3 1(a) Failure to properly operate and maintain corrosion protection system
280.31(b)(1) Failure to properly test corrosion protection system
280.31(c) Failure to properly inspect impressed current cathodic protection system
280.31(d) Failure to maintain records of cathodic protection inspections or testing
28033 Repairs allowed
280.33(d) Failure to have repaired UST system tightness tested as required
280.33(e) Failure to test UST system cathodic protection system within 6 months of repair
280.33(L) Failure to maintain repair records for operating life of UST
280.34 Reporting and recordkeeplng
280.34(a)(1) Failure to submit notification for UST system
10

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OSWER Dir. 9610.13
.4
280.34(a)( 1) Failure to submit certification of a new installation with notification form
280.34(a)(2) Failure to report a release to the agency
280.34(a)(3) Failure to submit corrective action plans to the agency
280.34(a)(4) Failure to submit notification before a permanent UST closure or change in
service
280.34(b)(1) Failure to maintain analysis of site corrosion potential if corrosion protection
equipment is not used
280.34Q (2) Failure to maintain corrosion protection equipment operation documentation
280.34(b)(3) Failure to maintain documentation of UST system repairs
280.34(b)(4) Failure to maintain documentation of compliance with release detection
requirements
280.34(b)(5) Failure to maintain results of site investigation following a permanent closure
280.34(c) Failure to provide records at UST site or alternative site for inspection by
implementing agency
280.40 General requirements for all UST systems
280.40(a) Failure to provide adequate release detection for UST system
280.40(b) Failure to notify agency of indicated release
280.40(c) Failure to provide adequate release detection by phase-in date
280.41 Requirements for petroleum UST systems
280.41(a) Failure to monitor tank for releases as required
280.41(b) Failure to use approved release monitoring method for piping
280.43 Methods of release detection for tanks
280.43(a) Inadequate operation or maintenance of invento!y control
280.43(b) Inadequate operation or maintenance of manual tank gauging
280.43(c) Inadequate operation or maintenance of tank tightness testing
11

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OSWER Dir. 9610.13
-4
280.43(d) Inadequate operation or maintenance of automatic tank gauging
280.43(e) Inadequate operation or maintenance of vapor monitoring
280.43(f) Inadequate operation or maintenance of ground-water monitoring
280.43(g) Inadequate operation or maintenance of interstitial monitoring
280.44 Methods of release detection for piping
280.44(a) Inadequate application of line leak detector system for underground piping
280.44(b) Inadequate application of line tightness testing sy m for underground piping
280.44(c) Inadequate application of UST release detection methods
280.45 Release detection recordkeeping
280.45(a) Failure to maintain records of release detection monitoring
280.45(b) Failure to maintain results of a sampling, testing, or monitoring as required
280.45(c) Failure to retain record of calibration, maintenance, and repair of release detection
equipment
280.52 Release investigation and confirmation steps
280.52(a) Failure to conduct tightness test(s) to investigate suspected leak(s)
280.52(b) Failure to examine and measure an UST site for suspected leak(s)
280.70 Temporary closure
280.70(a) Failure to operate and maintain corrosion protection in a temporarily closed UST
system
280.70(a) Failure to operate and maintain release detection as required in a temporarily
closed UST system
280.70(b)(1) Failure to leave vent lines open and functioning during temporary UST closure
280.70(b)(2) Failure to cap and secure all UST related equipment for temporary closure
12

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OSWER Dir. 9610.13
280.72 Assessing the site at closure or change-in-service
280.72(a) Failure to measure for the presence of a release before a permanent closure
280.74 Closure Records
280.74 Failure to maintain proper closure records
13

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UNiTED STATES
ENVIRONMENTAL PROTECTION AGENCY
REGION
MAIN STREET
USA
OSWER Dir 9610.13
PART I
COMPLIANCE ORDER
Name of Owner, Operator or
On-site Representative
(Cirde one)
Facility License/Permit Number.
an authorized representative of Pie United States Environmental Pro-
tection Agency (EPA) inspected this facility to determine compliance
with underground storage rank regulations promulgated under Subtitle
I of the Resource Conservation and Recovery Act of 1976 (42 U.S.C.
“2 ec seq.). During this inspection, the following violations of
ground storage tank regulations were found, with corresponding
penalty amounts:
40 CFR __________________ Penalty $
Nature of Violation: __________________
40 CFR __________________ Penalty S
Nature of Violation: _________________
40 CFR ________________ Penalty $
Nature of Violation:
The owner or operator of the above facility is hereby ordered to correct
the violations and pay the penalties described above.
This Compliance Order is being issued with reference to the Offer of
Settlement in Part II of this form. If the Offer of Settlement in Part II
is not returned in correct form by the owner or operator within 30 days
of the date of signature below by the Authorized Representative of
EPA. this Compliance Order is hereby withdrawn, without prejudice by
EPA to tile additional enforcement actions for the above or any other
violations.
I have personally observed the above violations and find the owner or
operator in violation of the above-reference underground storage tank
regulations.
PART II
OFFER OF SETTLEMENT
The United States Environmental Protection Agency (EPA) makes thi
Offer of Settlement under its expedited enforcement procedures ii
order to settle the violations found in the Compliance Order in Part o
this form subject to the following terms and conditions:
The Owner orOperator signing below certifles,undercivil and crimina
penalties for making a false submission to the United States Govern
ment, that Owner or Operator has corrected the violation(s) an
enclosed a certified check for $_________ in payment of the lu
amount of penalties, as described in the Compliance Order.
Upon EPA final approval of this Offer of Settlement, EPA will taken
further action against the Owner or Operator for the violations dc
scribed in the Compliance Order. EPA does not waive any enforcemer
action by EPA, the State where the facility is located or any loc
agencies for any other past, present or future violations of the undei
ground storage tank requirements or any other violations under an
other statute not described in the Compliance Order.
Also, upon EPA final approval of this Offer of Settlement, the Ownc
or Operator waives the opportunity for a public hearing pursuant i
Section 9006 of the Resource Conservation and Recovery Act.
Final approval of the Offer of Settlement is in the sole discretion of tl
Regional Administrator, Region _, EPA, or authorized delegate.
SIGNATURE BY OWNER OR OPERATOR:
Name and Title (print)
Signature __________________ Date:______
FINAL APPROVAL BY EPA:
Name and Title (print)
Signature _________________ Dale:______
ignature of Authorized Repreeenta ve of EPA)
I hereby acknowledge receipt of this Compliance Order and Offer of
Settlement.
__________________________ Date: ______
EXPEDITED ENFORCEMENT
COMPLIANCE ORDER AND OFFER OF SETTLEMENT
COMPLIANCE ORDER NO. _______
On Time,
At
(Date of VtoIa on) (am. or p.m.)
(Name ot Facility)
(Address of Facility)
(Signature ot Owner. Operator or On-site Representative)

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UNITED STATES OSWER Dir. 9610.13
ENVIRONMENTAL PROTECTION AGENCY
REGION
MAIN STREET
USA
EXPEDITED ENFORCEMENT
COMPLIANCE ORDER AND OFFER OF SETTLEMENT
INSTRUCTIONS
The United States Environmental Protection Agency has authority under Section 9006 of the Resource Conservation and Recover, Act to iSSZL
compliance orders and pursue civilpenaltiesfor violations of underground storage tankregulations. However. theEPA encourages the expedite
settlement of easily verifiable violari ins of underground storage tank requirements, such as the violations cited in the Expedited Enforcemen
Compliance Order and Offer of Settlement for which these instructions are provided.
You may resolve the cited violations quickly by correcting the violations, signing and returning the Offer of Settlement, and paying the penal:
amounts, all within 30 days of the issuance of the Compliance Order. Upon EPA final approval of the Offer of Settlement, a copy of which wi
be returned to you. EPA will take no further action against you for these violations. EPA will not accept or approve any Offer of Settlemer
returned more than 30 days after the date of the Compliance Order.
If you do not return the Offer of Settlement with payment of the pertalty amounts. 30 days after issuance, the Compliance Order will be wit hdrawi
without prejudice by EPA to file additional enforcement actions for the above or any other violations. You are nonetheless required to corre
the violations cited in the Compliance Order. If EPA pursues administrative enforcement measures in order to correct the violation(s) or to see
penalties. you will receive instructions describing your rights under the Consolidated Rules of Practice Governing the Administrative Asses:
men: of Civil Penalties and the Revocation or Suspension of Permits (40 CFR Part 22).
You are required under the Offerof Settlement to cert zfy that you have corrected the violasionsfound in the Compliance Orderandpaidthepenali
amounts. The paymentfor the penalty amounts must be in theform of a certified check payable to the “United States ofAmerica,” with the ,“tb
of the Compliance Order written on the check. The Settlement Offer and check shall be sent to:
Underground Storage Tank Program
U.S. Environmental Protection Agency
Region —
Main Suect
USA
By the terms of the Offer of Settlement. and upon EPA’s final approval of the Offer of Settlement, you waive the opportunity for a public hearin
pursuant to Section 9006 of the Resource Conservation and Recovery Act.
Final approval of the Offer of Settlement is in the sole discretion of the Regional Administrator. Region _. EPA, or authorized delegate.
If you have any questions, you may contact the EPA Regional Office of Underground Storage Tanks at _______________________

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4 k fr I
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
J I
OFFICE OF
GENERAL. COUNSEL
MEMORANDUM
SUBJECT: UST Federal Field Citation Guidance
FROM: Lisa K. Friedina
Associate General C unsel
for Solid Waste and Emergency Response
TO: David W. Ziegele *
Acting Director
Office of Underground Storage Tanks
We have reviewed the comments submitted by Region 6 on the
latest draft of the Underground Storage Tank program’s field
citation guidance. We believe certain conclusions in those
comments may have been based on inaccurate or incomplete language
in the latest draft. We anticipate that our proposed changes to
that draft would resolve the Region’s concerns. Nonetheless, we
believe it is appropriate to address the fundamental legal issue
raised by the Region.
Throughout the workgroup process, we have maintained that
the field citation program can withstand legal scrutiny if it is
properly designed around a “settlement” model. The statute in
Section -9006 is clear in granting the Administrator the authority
to issue administrative orders and assess penalties for failure
to comply with UST regulatory requirements. Nothing in the
statute, however, requires that formal adjudicatory proceedings
pursuant to Part 22 be followed where the violator chooses to
settle with the Agency and forgoes the right to a hearing
provided in S9006(b). We believe that the field citation program
can be designed in a manner consistent with S9006, where the
citation serves as the compliance order and as long as the other
requirements in the statute are met.
We have commented extensively on previous drafts of the
guidance to this end. We believe that a field citation program
based on voluntary settlements of S9006 compliance orders is
legally defensible, and does not raise the legal concerns
identified by Region 6.

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2
Please feel free to contact me or Charles Openchowski of my
staff ..(245—4317) if you have any further questions on this
matter.
cc: Regional Counsel, Region 6
Bennett Stokes

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OSWER Directr e 9610 12
U.S. EPA PENALTY GUIDANCE
FOR VIOLATIONS OF
UST REGULATIONS
November 1990
Office of Underground Storage Tanks
U.S. Environmental Protection Agency

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OSWER Directive 9610.12
NOTICE
The procedures et forth in this document are intended solely for the guidance of the U.S. EPA.
They are not intended, and cannot be relied on, to create rights, substantive or procedural, enforceable
by any party in litigation with the United States government. The U.S. EPA reserves its right to act at
variance with this guidance and to change it at any time wfthout public notice.

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OSWER Directp e 9610 12
TABLE OF CONTENTS
Page
CHAPTER 1. INTRODUCTION TO UST PENALTY GUIDANCE 1
1.1 U.S. EPA Penatty Authority 1
1.2 Overview of the UST Enforcement Process 2
1.3 UST Penalty Assessment Framework 4
CHAPTER 2. DETERMINING THE ECONOMIC BENEFIT COMPONENT 8
2.1 Definition of Economic Benefit Component 8
2.2 Avoided Costs
2.3 Delayed Costs 12
CHAPTER 3. DETERMINING THE GRAVITY.BASED COMPONENT. 14
3.1 Determining the Matrix Value 14
3.1.1 Extent of Deviation from Requirements ... 15
3.1.2 Potential for Harm 15
3 2 Violator-S pec ic Adjustments . . 17
3.2.1 Degree of Cooperation/Noncooperation .. . .. 18
3 2.2 Degree of Willingness or Negligence .. .. 18
3.2.3 History of Noncompliance 19
3 2.4 Other Unique Factors .. . . 19
3 3 Environmental Sensitivity Multiplier 20
3.4 Days of Noncompliance Multiplier . . . . 21
CHAPTER 4. SETTLEMENT ADJUSTMENTS .... . . . . 23
CHAPTER 5. USE OF FIELD CITATIONS 26
iii

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OSWER Directive 9610.12
TABLE OF CONTENTS
(Continued)
APPENDICES
Appendix A: Matrix Values for Selected Violations
of Federal Underground Storage Tank Regulations A-i
Appendix B: UST Penalty Computation Worksheet B.i
Appendix C: UST Penalty Computation Examples c-i
LIST OF EXHIBITS Page
Exhibit 1: Overview of UST Enforcement Options 3
Exhibit 2: Process for Assessing UST Civil Penalties 5
Exhibit 3: Applicable Tax Rates for Determining Avoided Costs 11
Exhibit 4. Matrix Value For Determining
the Gravity-Based Component of a Penalty 16
lv

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OSWER Directive 9610 12
CHAPTER 1. INTRODUCTION TO UST PENALTY GUIDANCE
This document provides guidance to U.S. Environmental Protection Agency (EPA) Regional
Offices on calculating civil penalties against Owner/Operators of underground storage tanks (USTs) who
are in violation of the UST technical standards and financial responsibility regulations. The
methodology described in this guidance seeks to ensure that UST civil penalties, which can be as high
as S10.000 for each tank for each day of violation, are assessed in a fair and consistent manner, and
that such penalties serve to deter potential violators and assist in achieving compliance.
This penalty document is part of a series of enforcement documents which includes: (1) the
Agency’s UST/LUST Enforcement Procedures Guidance Manual (OSWER Directive 9610.11, July 1990).
which provides guidance to U.S. EPA Regional personnel on taking enforcement actions against
violations of the UST technical requirements; and (2) the draft ‘Interim Enforcement Response Strategy
for Violations of UST Financial Responsibility Requirements.’ which provides guidance on taking
enforcement actions against violations of the financial responsibility requirements. Although these
enforcement documents are intended primarily for U.S. EPA Regional enforcement staff, State and local
UST implementing agencies may find it useful to adapt some of the concepts and methodologies for
their own UST enforcement programs.
This chapter briefly descnbes the U.S. EPA’s authorities for taking enforcement action and
assessing civil penalties. It also provides an overview of the enforcement actions that may be taken in
response to UST violations, and indicates how the assessment of penalties fits into tIle enforcement
framework.
1.1 U.S. EPA PENALTY AUThORITY
The U.S. EPA’s authority for assessing civil penalties for violations of UST requirements is
provided by Subtitle I of the Resource Conservation and Recovery Act (RCRA). Under the Hazardous
and Solid Waste Amendments of 1984, Congress added Subtitle Ito RCRA in response to the growing
environmental and health problems created by releases from USTs. The statutory framework for the
national UST program is set forth in Sections 9002 through 9004 of Subtitle I.
Under Section 9006 of Subtitle I, EPA is authorized to take enforcement actions and assess
penalties against violators of requirements promulgated under Subtitle I, including technical standards
and financial responsibility requirements. 1 In particular, Section 9006(a) provides the authority to issue
administrative orders requiring compliance within a reasonable specified time period. All such orders
will be processed within the Agency according to the Consolidated Rules of Practice (CROP). 2
Pursuant to Section 9006(0), a Section 9006 compliance order may assess a Civil penalty, provided that
tne penalty does not exceed $10,000 for each tank for each day of violation of the technical standards
These are contained in two separate rules: the UST Technical Standards Rule, 40 CFR Part 280.
Subparts A through G (promulgated September 23. 1988) and the UST Financial Responsibility Rule.
40 CFR Part 280, Subpart H (promulgated October 26. 1988).
2 40 CFR Part 22, ‘The Consolidated Rules of Practice Governing the Administrative Assessment of
Civil Penalties and the Revocation or Suspension of Permits.’ The CROP was extended to cover
administrative enforcement actions under Section 9006 (see 53 5373, February 24, 1988).

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OSWER Directive 9610.12
and financial responsibility rules. 3 This document presents guidance for determining the appropriate
civil penalty amount for an administrative complaint and order, and discusses use of penalties in field
citations.
In addition to administrative enforcement actions, EPA may initiate judicial enforcement actions
under Section 9006 to compel compliance with Subtitle !s statutory and regulatory requirements. EPA’s
judicial enforcement actions are processed through Federal courts and are reserved for violations of
administrative orders. tinder such actions, EPA is authorized to seek judicial penalties of up to $25,000
for each day of continued noncompliance with an administrative order issued under Section 9006 or a
corrective action order issued under Section 9003. In these cases, Agency personnel should seek the
maximum penalty. 4
1.2 OVERVIEW OF THE UST ENFORCEMENT PROCESS
The LIST/LUST Enforcement Procedures Guidance Manual (OSWER Directive 9610 11, July 1990)
describes the range of enforcement actions that may be taken in response to an LIST violation. These
enforcement options vary from initial responses, such as warning letters or notices of violation (NOVs),
which encourage compliance, to more stringent actions, such as administrative orders and judicial
injunctions, which compel compliance and, if appropriate, penalize violators. Exhibit 1 presents the
various enforcement actions that may be taken once a violation of an LIST requirement is identified In
general, enforcement personnel will take the least costly enforcement action that appears necessary to
achieve compliance and create a strong deterrent, and will escalate the severity of the enforcement
response if the initial action fails.
As shown ri Exhibit I there are two approaches to taking enforcement actions. Under the
Iraditional’ approach, enforcement personnel may initially respond to a discovered violation by issuing
a warning letter or NOV to inform the owner/operator of the violation, explain what actions need to be
taken, and indicate possible consequences if the owner/operator fails to achieve compliance. If
necessary, entorcement personnel may then meet with the owner/operator to negotiate an agreed.upon
course of action for the owner/operator to follow to achieve compliance. However, for recalcitrant
violators, or where violations pose a threat to human health and the environment, enforcement
personnel will typically issue administrative complaints or take ludicial action. To provide a deterrent
effect, an administrative complaint may include an initial penalty target figure. Upon receipt of the
complaint, a violator may pay the penalty specified, request an informal settlement conference, and/or
request an administrative hearing. Regardless of the violator’s response, the outcome generally will be
a final penally mat the violator must pay or else face judicial prosecution. Exhibit 1 ShOWS where the
target and final penalties appear in the enforcement process.
As an alternative to the traditional approach, enforcement personnel may initiate an enforcement
response using field citations (see Chapter 5). Field citations, similar to traffic tickets, are modified
compliance orders issued by inspectors on.site at a facility when violations are discovered. However,
the use of field citations is generally limited to first.time violators when compliance is expected and
when the violation does not pose an immediate threat to human health and the environment. A typical
This $10,000 limit also applies to violations of the lntenm Prohibition provisions and any
requirement of an approved State program. For violations of the May 1985 (statutory) notification
requirements. tne penalty may not exceed $10,000 for each tank.
This guidance is in no way intended to limit the penalty amounts sought in civil judicial actions
In settling judicial cases. however, the Agency may use the narrative penalty assessment criteria set
forth in this guidance to determine or justify the penalty amount that the Agency agrees to accept in
settlement
-2-

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OSWER Directrve 9610 12
Exhibit 1
Overview of Enforcement Response Options
Ttditlonii Field Citation
Approach Discovery of Approach
Violation
Determination of
______ —I ___
enforcement
‘upon’.
wtIaI
Responu Field
(e.g. warning
letter, NO V) P IY
Initial
Negotiation _________
(e.g. show C8U$ 5 Economic I Gravity.
meeting) Benefit I BaUd
Component pomPon.nt
AdmInistrative 1 _____________________
Complaint Initial Penally
Target Figuis
Settlement
Negotiations Settlement
Adlustinents
Consent Agreement - [
and Final Order I
(or hearing)
I Penally
Judicial
Enforcement
NOTE: This exhibit d’eSefl an oven ’ew of enforcement options onl ’. and does t t mandate a cealain order
of action. Actual enforcement actions may begw7 at any point in U e i DCeSS.
— — 3
.3.

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OSWER Directive 9610.12
field citation will not onty require that the violator take actions to achieve compliance, but will also
assess a pro-established, non-negotiable penalty. This penalty is usually fairly low (e.g., $100) to
encourage prompt payment and response. In paying the Citation penalty, the violator gives up the right
to appeal and consents to the requirements specified: thus, the citation is analogous to the final penalty
that results from settlement negotiations. This alternative path to arriving at a penalty is also shown in
Exhibit 1. If the owner/operator fails to respond to the field citation, enforcement personnel may resort
to enforcement actions under the traditional approach or may initiate judicial actions.
Under the UST program’s franchise approach, States will undertake most of the enforcement
actions. However, in certain cases (e.g., where an owner/operator is particularly recalcitrant or the State
lacks sufficient enforcement authority), Federal assistance may be neaded. In such cases, the Regional
office may omit initial, informal responses and proceed directly with administrative or judicial actions.
However, U S EPA enforcement also may be needed at the beginning of an enforcement case in
certain circL- stances (e.g., in States without active enforcement programs or on Indian Lands). In
such cases, Regional enforcement personnel may begin with either the traditional responses or may
determine that it is appropriate to use field citations.
1.3 UST PENALTY ASSESSMENT FRAMEWORK
This document provides guidance on calculating penalties to be used in the administrative
enforcement actions described above. C -sistent with the U.S. EPA’s Policy on Civil Penalties,
penalties assessed under this methodolo... are intended to achieve the following goals: 5
• Encourage timely resolution of environmental problems:
• Support fair and equitable treatment of the regulated community; and
• Deter potential violators from future violations.
Exhibit 2 provides . eriiew of the major components used to set penalties at levels that will achieve
these goals. Spe aily. to deter the violator from repeating the violation and to deter other potential
violators from fa.ng to comply, the penalty must place the violator in a worse position economically
than if he or she had complied on time. Such deterrence is achieved by:
(1) Removing any significant economic benefit that the violator may have gained from
noncompliance (the ‘economic benefit component’); and
(2) Charging an additional amount, based on the specific violation and circumstances of the
case, to penalize the violator for not obeying the law (the ‘gravity-based component’).
The procedures for determining the economic benefit component and gravity-based component are
discussed in Chapters 2 and 3, respectively. Furthermore, to support lair and equitable treatment of the
regulated community, the penalty must allow for adjustments to take into account legitimate differences
between similar cases. Thus, under this methodology, the gravity-based component incorporates
adjustments that reflect the specific circumstances of the violation, the violator’s background and
actions. ana the environmental threat posed by the situation.
The ‘EPA Policy on Civil Penalties’ (EPA General Enforcement Policy #GM-21. February 1984)
ano the ‘Framework for Statute-Specific Approaches to Penalty Assessment (EPA General
Enforcement Po ucy #GM-22. February 1984) establish a consistent Agency-wide approach to the
assessment of Civil penalties
-4-

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OSWER Durectrve 9610 12
Exhibit 2
Pi ocess for Assessing UST Civil Penalties
Traditional I
Field Citation
Approach : Approach
_________________________________________________________________________________ _________________________________________________________________________________________ I ______________________________________________________________________________________
Economic BeMffl Gravfty•Baud
Fisid Citation
Component Component ____________
• Avo dsd cos S Uslix V.k 1 S 11 C JdSS O* *h1d.
I i w sgotiabIs
• Dsl*_ a S ‘ p.riiiiy
• Ennn I
S.r. ty Mu kr
•
MumpII.r
____________________________________________________________________________________________________ I
Initial Penalty ____ I
Target Figure
I Ms ict Mgo atsW
Y,OIStOr a e rsguss anrç
I I
Settlement
Adjustments I
— I
• AbdtIyto sy
• 0ev
Fina
— L}-
Penal
.5.

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OSWEP Directive 9610.12
The sum of the economic ber component and the gravity-based component yields the inmal
penalty target ‘Igure that us asses e ie administrative complaint. 6 For each case that involves
more than or. nolation, the Regiona. e team will need to decide on the number of counts
addressed in the complaint. Each count Should be accompanied by an appropnate penalty calculation.
and the sum of these penalties will be the initial penalty target figure assessed in the complaint. Once
a complaint sued, the Agency may enter into settlement negotiations with the owner/operator to
encourage ‘esolution of the violation. Such negotiations provide the Owner/operator with the
opportunity tc sent evidence to support downward adjustments in the penalty. The process of
adjusv’ug the - alty dunng settlement negotiations is addressed in Chapter 4. The outcome of such
nego iions will oe the final penalty.
or specific types of case! enforcement personnel may issue field citations, which assess
penalties while encouraging a swT rum to compliance without a drawn-out appeals process. The use
of field citations to assess penalties is addressed in Chapter 5.
ar9T
vi.u’e
C ;nutI l
6 However it should be remembered that the sum of the gravity-based component plus the
economic benefit component cannot be greater than the statutory maximum of $10,000 for each tank
for each oay of violation of the technical standards and financial responsibility regulations.
-6-

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OSWER Oirecvve 9610 12
Chapter 2
Determining the Economic Benefit
Component
‘I
Traditional
Apprnach
Economic Bnfft
Componint
•
Avoided
•
D.Ieyed aces
Raid Citation
• vI*yBaaád.


• •iI au&. eli
•
bict
pemI p
__ initial Penalty
Target Figure
I
$.tt l.mwt
AdJuatni.nts
• Ablty y
• OV rfac ,
Final
Penalty
H
I
-7-

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OSWER Directive 9610.12
CHAPTER 2. DETERMINING THE ECONOMIC BENEFIT COMPONENT
As explained in the preceding chapter, to ensure that the penalty deters potential violators, the
initial penalty target figure assessed in the complaint must include two fundamental components:
• Economic Benefit Comøonent , which removes any significant profit from
noncompliance; and
• Gravity-Based Comoonent , which imposes an assessment to penalize current
and/or past noncompliance.
This chapter discusses the process for determining the economic benefit component. The gravity-
based component is discussed in Chapter 3.
2.1 DEFINITION OF ECONOMIC BENEFIT COMPONENT
The economic benefit component represents the economic advantage that a violator has gained
by delaying capital and/or non-depreciable costs and by avoiding operational and maintenance costs
associated with compliance. 7 The total economic benefit component is based on the benefit from two
sources. (1) avoided costs; and (2) delayed costs. All penalties assessed must include the full
economic benefit unless the benefit is determined to be ‘incidental,’ i.e., less than $100.
EconomIc Benefit Component = Avoided Costs + Delayed Costs
Avoided costs are the periodic, operation and maintenance expenditures that should have been
incurred, but were not.
Delayed costs are the expenditures that have been deferred by the violation, but will be incurred
to achieve compliance.
The Agency-wide penalty policy prescribes the use of two methods for calculating a violators
economic benefit from noncompliance (1) the rule-of-thumb approach: and (2) the software program
This policy does not outline a methodology for the recovery, as a measure of economic benefit,
of profits proximately attributable to illegal or non-Compliant activities. Because the Federal UST
regulations Co not include a permitting process, me Agency is not presently aware of Situations where
such profits would be realized, or where we would expect to seek recovery of such profits as a
measure of economic benefit in the Federal UST program. Should EPA determine that the recovery of
suCh profits is appropnate in a particular case, the Agency will calculate such profits in a manner
consistent with the RCRA Civil Penalty Policy (October 1990).
Revised guidelines for calculating zhe economic benefit from noncompliance are incorporated
into a memorandum from Courtney Price (Assistant Administrator for Enforcement and Compliance
Monitoring) entitled, ‘Guidance for Calculating the Economic Benefit of Noncompliance for a Civil
Penalty Assessmenr (November 5. 1984).
.8.

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OSWER Directive 9610 12
called BEN. 9 The rule-of-thumb approach (descnbed in the sections that follow) should be used for
making an initial estimate of the economic benefit of noncompliance. If the initial estimate is less than
$10,000, the rule-of-thumb calculation may be used as a basis for the economic benefit assessed in the
penalty, if, however, the estimate indicates that the economic benefit is greater than $10,000, the BEN
model should be used. The BEN model should also be used if the violator rejects the rule-of-thumb
calculation.
The BEN model, which is accessible by computer from anywhere in the country, uses a financial
analysis technique known as ‘discounting’ to determine the net present value of economic gains from
noncompliance. BEN determines the economic benefit for an individual violator based on 12 specific
factors, or inputs, including the violators initial capital investment, nondepreciable expenditures, and
operation and maintenance costs. For some inputs, such as income tax rate, annual inflation rate, and
discount rate, BEN will provide standard values if the user does not have actual figures. This use of
standard values allows for national consistency in determining economic benefit. Because the majority
of UST violations will be associated with an economic benefit of less than $10,000, the rule-of-thumb
approach will be used in most cases.
The procedures for calculating the economic benefit of noncompliance using the rule-of-thumb
approach are described below. Because of the fundamental differences between avoided and delayed
costs, the process for determining the economic benefit component will depend on the type of cost
involved. The sections that follow descnbe methods for calculating each type of cost.
2.2 AVOIDED COSTS
Avoided costs are the operation and maintenance expenditures that are averted by the violator’s
failure to comply. These are considered to be avoided because they will never be incurred even if the
violator comes into compliance. For example, a violator who has failed to maintain product inventory
records in the past never will have to make up for the costs saved, even if he is directed to start
maintaining inventory records now. Other examples of avoided costs include: (1) failure to conduct a
required periodic test, (2) failure to obtain financial assurance by the phase-in date: and (3) failure to
conduct periodic maintenance of equipment. The violator’s benefit from avoided costs is generally
expressed as the avoided expenditures plus the interest potentially earned on the money not spent
DETERMINING AVOIDED COSTS
Avoided = Avoided + Avoided x Interest x Number x (1 - Marginal)
Costs Expenditures Expenditures of Days Tax Rate
365 Days
Avoided E.xp.ndifures are estimated using local, comparable costs.
Interest is the equity discount rate provided in the BEN model (currently 18.1 percent).
Number of Days IS from the date of noncompliance to the date of Compliance.
365 Days is the number of days in a year.
Marginal Tax Rate is based on corporate tax rates or financial responsibility compliance class.
For information, contact the BEN/ABEL Coordinator in the Office of Enforcement at the U.S. EPA
Headquarters by phoning (202) 475-6777 or FTS 475-6777.
-9.

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OSWER Directive 9610.12
To determine the value of the interest, compounded annually, the equity discount rate Should be
used. This represents the risk-free rate (1-bill) plus the cost of financing for pollution control equipment.
This rate can be obtained by calling the EPA Office of Enforcement or by accessing the BEN computer
model. 10 As of the beginning of FY91, the equity discount rate was 18.1 percent. When used in the
formula, this number should be expressed as a decimal and not a percentage (e.g., 0.181, instead of
18.1%).
The marginal tax rate (MTR) used in calculating the avoided Costs will vary depending on the size
of the business. Exhibit 3 provides a list of appropriate tax rates based on the facility or company’s
taxable income. As with the interest rate, this number should be expressed as a decimal, not a
percentage (e.g., 0.15 instead of 15%). To determine the taxable income, enforcement staff should
contact EPAs National Enforcement Investigations Center (NEIC) to determine whether the business in
violation is listed in the Dun and Bradstreet Business Information Report data base , 11 The data base
provides information on the annual incomes of a large number of companies across the country,
including the smaller, ‘Mom and Pop’ businesses. Although most of the incomes listed in the data base
are those reported to Dun and Bradstrert, the ata base also includes some estimated incomes for
companies that have not reported.
If information on annual income cannot be obtained from NEIC, enforcement staff may use the
company’s financial responsibility compliance class as a basis for determining the appropriate marginal
tax rate, as follows:
MARGINAL TAX RATES BASED ON FINANCIAL RESPONSIBIUTY COMPLIANCE CLASS
Comollance Class Tax Rate
FR Classes I & 2 0.34 (34%)
FR Class 3 0.25 (25%)
FR Class 4 0.15 (15%)
a Compliance class is determined as follows: Class 1 large petroleum marketing firms with
1,000 or more USTs or any firm with net worth over $20 million: Class 2 - large and medium-sized
petroleum marketing firms with 100 to 999 USTs; Class 3 smaller petroleum marketing firms with
13 to 99 USTs: and Class 4 . very small marketing firms with 1 to 12 UST5 or less than 100 USTs
at one site, all other firms with net worth of less than $20 million, and municipalities.
In the absence of specific information on the violator’s FR compliance class, enforcement staff Should
assume that the violator is in FR Class 4 (which will result in the highest penalty).
10 To obtain the equity discount rate from r- Office of Enforcement, otto access BEN, call the
BEN/ABEL coordinator at (202) 475.6777 or FT: ..75-6777.
For information from the Dun and Bradst data base call NEIC at (303) 236.3219 or FT’S
8-776-3219 Using information on the violator’s name and location (city and State), NEIC staff can
search the data base for information on the company’s annual income
-10.

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OSWER Directive 9610 12
&hibit 3
Applicable Tax Rates for Determining Avoided Costs
MARGINAL TAX RATE BASED ON FEDERAL CORPORATE TAX RATES
(from 1989 U.S. Master Tax Guide):
Taxable Income over Not over Tax rate
50 550,000 15%
550,000 S75,000 25%
S75.000 5100,000 34%
S 100,000 S335.000 39%’
S335,000 34%
‘An additional 5% tax is applied to income between $100,000 and $335,000
to phase out the benefits o the graduated races in that income range.
The marginal tax race is applied to each increment of income specified above (e.g., for an income of
575,000. 15% is applied to the first 550,000 and 25% to the next S25,000). The weighted average
tax rates below have been calculated for each $10,000 increment in income to reflect the actual tax
burden at each income level. These values will facilitate the determination of penalty amounts by
eliminating the need to calculate the tax burden on each increment of marginal taxable income. To
find the weighted tax rate, round the estimated taxable income to the nearest 510,000 and use the
tax rate indicated in the table.
WEIGHTED AVERAGE TAX RATES BY INCOME LEvEL”
Taxable Income Tax Taxable Income Tax
not greater than Rate not greater than Rate
S50.000 0.15 S200,000 0.31
560,000 0.17 S210,000 0.31
570,000 0.18 S220,000 031
580,000 0.19 $230,000 0.32
590.000 0.21 S240.000 0.32
5100.000 0.22 5250,000 0.32
$110,000 0.24 5260,000 0.33
$120,000 0.25 5270.000 0.33
$130,000 0.26 5280,000 0.33
5140,000 0.27 5290 ,000 0.33
5150.000 0.28 5300.000 0.33
5160,000 0.29 5310.000 0.34
S 170,000 0.29 5320,000 0.34
5180,000 030 5330,000 0.34
5190,000 0 30 , . 5340.000 0.34
“This table includes the additional 5% tax applied to incomes between
5100.000 and S335.000
.11.

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OSWER Directive 9610.12
2.3 DELAYED COSTS
Delayed costs are the capital expenditures and one-time non-depreciable COsts that have been
deferred because the violator failed to comply with the requirements. Examples of delayed costs
include: (1) failure to install required equipment, such as cathodic protection; and (2) failure to clean up
a spill. These expenditures are considered only to be delayed, and not avoided altogether, because
the violator will eventually have to incur these costs to come into compliance. The benef from delayed
costs is generally expressed as only the return on investment that could have been earned on the
money not spent.
DETERMINING DELAYED COSTS
Delayed Costs = Delayed Expenditures x Interest x Number of Days
365 Days
Delayed Expendftures are estimated using local, comparable costs.
Interest is the equity discount rate used in the BEN model (currently 18.1 percent).
Number of Days is from the date of noncompliance to the date of compliance.
365 Days is the number of days in a year.
For delayed costs thet is no computation of the tax rate. Although there may be a modest tax
consequence for the violator because of delayed costs, this effect was deemed to be insignificant.
Furthermore, such a tax consequence only would be incurred if the violation were to span more than
one of the violator s tax years.
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OSWER Directive 9610 12
Chapter 3
Determining the Gravity-Based
Component
I
t
1
I
$
1
3,
I
I
t
T I
Rs d Cftallon
‘ch
Grsvlty’B.s.d
comp onim
Hartz Viii..
V1O t z I r4fiC
AdIuavnsns
Envirairnurnal
Sir E1v1Ty Hu1 1r
Days of NQnoon han
Initial Penalty
Target Figure
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OSWER Directive 9610.12
CHAPTER 3. DETERMINING THE GRAVITY-BASED COMPONENT
The second component of a penalty, and the one that serves to deter potential violators, is the
gravity-based component. The purpose of the gravity-based component is to ensure that violators are
economically disadvantaged relative to owner/operators of those facilities in compliance, and to penalize
current and/or past noncompliance. The gravity-based component consists 01 four elements:
• Matrix Value (Section 3.1);
• ‘lolator-Specific Adjustments to the Matrix Value (Section 3.2);
onmental Sensitivity Multiplier (Section 3.3); and
• D -f Noncompliance Multiplier (Section 3.4).
The gravrty-baseo -nponem is then added to the economic benefit component to arrive at the initial
penalty target figure assessed in the complaint.
DETERMINING THE GRAVITY-BASED COMPONENT
Environmental Days of
Gravity-Based = Matnx Value x Violator-Specific x Sensitivity x Noncompliance
Component Adjustments Multiplier Multiplier
Matrix Value is based on potential for harm and deviation from the requirement.
Violator-Specific Adjustments to the matrix value are based on violators cooperation, willfulness,
history of noncompliance, and other factors.
Environmental Sensitivity Multiplier (ESM) is a value based on the environmental sensitivity
associated with the location of the facility.
Days of Noncompliance Multiplier (DNM) is a value based on the number of days of
noncompliance.
lithe complaint results in settlement negotiations, certain factors used to adjust the matrix value may be
re-assessed dunng negotiations to determine whether a downward adjustment in the gravity-based
component is appropriate. In general, it is the violator’s responsibility to provide evidence in support of
reducing the penalty assessment during the settlement stage (see Chapter 4).
3.1 DETERMINING THE MATRIX VALUE
The first step in determining the gravity-based component is determining the initial matrix value.
The matrix value is based on the following two criteria.
• Extent of deviation from requirement - An assessment of the extent to which
the violation deviates from the UST statutory or regulatory requirements
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OSWER Directive 9610.12
Actual or octential harm - An assessment of the likelihood that the violation
could (or did) result in harm to human health or the environment and/or has
(or had) an adverse effect on the regulatory program.
A matrix has been developed in which these two criteria form the axes (Exhibit 4). Three gravity
levels apply to each of these criteria — malor, moderate, and minor — and form the grid of the matrix.
Thus, the matrix has nine cells, each of which Contains a penalty amount. The specific cell to be used
in determining the matrix value is identified by selecting a gravity level for both factors. As a guide to
determining the appropnate gravity level, Appendix A provides a list of selected violations of the Federal
LiST requirements and the associated deviation from the requirements and potential for harm.
Based on the type of violation (see Appendix A). penalties will be assessed on a per-tank basis if
the specific requirement or violation is clearly associated with one tank (e.g., tank upgrading) If the
requirement addresses the entire facility (e.g., recordkeeping practices), the penalty will be assessed on
a per.facility basis. For requirements that address piping, the unit of assessment will depend on
whether the piping is associated with one tank or with more than one tank. Appendix A indicates the
suggested unit of assessment for specific violations.
3.1.1 Extent of Deviation from Requirements
The first factor in determining the matrix value is the extent of deviation from the requirements.
The categones for extent of deviation from the requirements are the following:
• Major . The violator deviates from the requirements of the regulation or
statute to such an extent that there is substantial noncompliance. An
example is installing a bare steel tank without cathodic protection.
• Moderate - The violator significantly deviates from the requirement of the
regulation or statute, but to some extent has implemented the requirement as
intended. An example is installing improperly constructed cathodic
protection.
• Minor - The violator deviates slightly from the regulatory or statutory
requirements, but most of the requirements are met. An example is failing to
keep every maintenance record on properly constructed cathodic protection.
3.1.2 PotentIal for Harm
The second criterion for determining the matrix value of a violation is the extent to which the
owner/operator’s actions resulted in, or were likely to result in, a situation that could cause harm to
human health or the environment. When determining this factor, it is the potential in each situation that
is important, not solely whether the harm has actually occurred. Violators should not be rewarded with
lower penalties simply because no harm has occurred. The potential extent of this harm, if it were to
occur, is addressed by the environmental sensitivity multiplier, discussed in Section 3.3 of this chapter
The potential-for-harm factor will also be applied to violations of administrative requirements (e g.
recordkeeping and notification requirements) that are integral to the regulatory program. For violations
of these requirements, enforcement personnel should consider the ‘importance of the requirement
violated. For example, failure to submit tank notification data may be considered to have significant
potential for harm because the Agency has few other sources of information on the location of USTs
.15.

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OSWER Directive 9610.12
E.xhibit 4
Matrix Values for Determining the
Gravity•Based Component of a Penalty
Extent of Deviation from Requirement
NOTE: Thes. amounts cc
target figure.
the matr z value only. They are f the initial penalty
.aa penalty tsrg.t figure Is calculated as follows:
Initial Penalty
Target Figure
Violator.
x Specific X
Adjustments
Environmental
Sensitivity X
Multiplier
Days of
Noncompliance I
Multiplier
I
L.
0
I
. .onorn lc(MAWIX
Component \VALU
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OSWER Directive 9610 12
For purpose of this guidance, the categones for potential for harm are the following:
- The .violation causes or may cause a situation resulting in a
substantial or continuing risk to human health and the environment and/or
may have a substantial adverse effect on the regulatory program. Examples
are: (1) improperly installing a fiberglass reinforced plastic tank (because a
catastrophic release may result); or (2) failing to provide adequate release
detection by the specified phase-in date (because without release detection a
release may go unnoticed for a lengthy penod of time with detnmental
consequences).
• Moderate - The violation causes or may cause a situation resulting in a
significant risk to human health and the environment and/or may have a
significant adverse ftect on the regulatory program. An example would be
installing a tank that fails to meet tank corrosion protection standards
(because it could result in a release, although the use of release detection is
expected to minimize the potential for continuing harm from the release).
• Minor - The violation causes or may cause a situation resulting in a relatively
low risk to human health and the environment and/or may have a minor
adverse effect on the regulatory program. An example would be failing to
provide certification of UST installation (assuming that the installation was
done correctly).
3.2 VIOLATOR-SPECIFIC ADJUSTMENTS
In general, adjustments to the matnx value may be made at both the pre-negotiation and
settlement stages of penalty assessment to address the unique facts of each case and to resolve the
case quickly. Prior to settlement negotiations, enforcement personnel have the discretion to use any
relevant information to adjust the matrix value upwards or downwards. These adjustments are solely at
the discretion of EPA enforcement personnel.
Specifically, to ensure that penalties are assessed in a fair and consistent manner, and take into
account case-specific differences, enforcement personnel have the option of adjusting the matrix value
based on any information known about the violator’s: (1) degree of cooperation or noncooperation: (2)
degree of willfulness or negligence; (3) history of noncompliance; and (4) other unique factors.
VIOLATOR.SPECIFIC ADJUSTMENTS TO ThE MATRIX VALUE
Adluetment Factor Ranoe of Percentage Adlustmerit
Degree of Cooperation/Noncooperation Between 50% increase and 25% decrease
Degree of Willfulness or Negligence Between 50% increase and 25% decrease
History of Noncompliance Up to 50% increase only
Other Unique Factors Between 50% increase and 25% decrease
The sections that follow discuss these four adjustment factors. In addition, the matrix value
should be adjusted to reflect the environmental sensitivity and the days of noncompliance, which are
discussed in Sections 3.3 and 3.4. respectively. Subsequent ad lustments made during the settlement
stage, including adjustments for inability to pay, are discussed in Chapter 4.
.17.

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OSWER Directive 9610.12
To ensure that the penalty maintains a deterrent effect, enforcement staff should consider
adjustment toward increased penalties In all cases (I.e., make upwards adjustments to the matrix
value). It us UP to the violator to present information dunng settlement that mitigates use of such
upward adjustments. However, to ensure that penalties are calculated fairly and consistently, any
upwards adjustment may be made only It the circumstances of the case warrant such adjustments.
Furthermore, for any adjustments made to the matrix value, justification must be provided on the penalty
assessment worksheet (see Appendix B).
3.2.1 Degree of CooperatIon/NoncooperatIon
The first factor that may be considered in adjusting the matrix value is the violator’s cooperation
or good faith efforts in response to enforcement actions. In adiusting for the violators degree of
cooperation or noncooperation, enforcement staff may consider making upward adjustments by as
much as 50 percerci and downward adjustments by as much as 25 percent of the matrix value.
In order to have ihe matrix value reduced, the owner/opera’ ’ must demonstrate cooperative
behavior by going beyond what is minimally required to comply w- requirements that are closely
related to the initial harm addressed. For example, an owner/operator may indicate a willingness to
establish an environmental auditing program to check compliance at other UST facilities, if appropriate,
or may demonstrate efforts to accelerate compliance with other UST regulations for which the phase-in
deadline has not yet passed. 12 Because compliance with the regulation is expected from the
regulated community, no downward adjustment may be made if the good faith efforts to comply
primarily consist of coming into compliance. That is, there should be no ‘reward’ for doing now what
should have been done in the first place. On the other hand, lack of cooperation with enforcement
officials can result in an increase of up to 50 percent of the matnx value.
3.2.2 Degree of Willfulness or Negligence
The second adjustment that may be made to the matrix value is for willfulness or negligence,
which takes into account the owner/operators culpability and inter- :ns in committing the violation In
assessing the degree of willfulness or negligence, the following fac-;rs may be considered:
• How much control the violator had over events constituting the violation (e.g.,
whether the violation could have been prevented or was beyond the
owner/operator’s control, as in the case of a natural disaster);
a The foreseeability of the events constituting the violation;
• Whether the violator made any good faith efforts to comply and/or took
reasonable precautions against the events constituting the violation: -and
• Whether the violator knew or should have known of the hazards associated
with the conduct: and
• Whether the violator knew of the legal requirement that was violated (resulting
in an upward adjustment only).’ 3
12 For information on establishing environmental auditing programs, see ‘EPA Policy on the
Inclusion of Environmental Auditing Provisions in Enforcement Settlements,’ U.S. EPA, Office of
Enforcement and Compliance Monitoring, November 1986.
13 Lack of knowledge of the legal requirements may not be used as a basis to reduce the matrix
value Rather. informed violation of the law should serve to increase the matrix vaiue
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OSWER Direc ve 9610 12
In certain circumstances, the amount of control that the violator has over how quickly the violation
is remedied also can be relevant. Specifically, if Correction of a violation is delayed by factors that the
violator clearly can show were not reasonably foreseeable and out of his or her control, the penalty
assigned for th duration of noncompliance may be reduced (see Section 3.4), although the ongirial
penalty for noncompliance should not be. In assessing the degree of willfulness, enforcement staff may
consider making upward adjustments by as much as 50 percent and downward adjustments by as
much as 25 percent of the matrix value.
3.2.3 HIstory of Noncompliance
The third factor to be considered in adjusting the matrix value is the violators history of
noncompliance. Previous violations of any environmental regulation are usually considered clear
evidence that the violator was not deterred by previous interaction with enforcement staff and
enforcement actions. Unless the current violation was caused by factors entirely out of the control of
the violator prior violations should be taken as an indication that the matrix value should be adlusted
upwards When assessing the history of noncompliance, some of the factors that may be considered
are:
• Number of previous violations;
• Seriousness of the previous violations:
• Time period over which previous violations occurred;
• Similarity of the previous violations;
• Enforcement tools utilized (e.g., whether the owner/operator’s previous
behavior required use of more stringent enforcement actions); and
• Violator’s response to the previous violation(s) with respect to correction of
the problem.
For purposes of this document, a ‘prior violation’ includes any act or omission for whiCh an accountable
enforcement action has occurred (e.g., an inspection that found a violation, a notice of violation, an
administrative or judicial complaint, or a consent order). A prior violation of the same or a related
requirement would constitute a similar violation.
In cases of large corporations that have many drvisions and/or subsidiaries. if the same
corporation is involved in the current violation the adjustments for history of noncompliance will apply
In addition, enforcement staff should be wary of a company that changes operators or shifts
responsibility for compliance to different persons or organizational units as a way of avoiding increased
penalties. A consistent pattern of noncompliance by several divisions or subsidiaries of a corporation
may be found, even though the facilities are at different locations. Again, in these situations,
enforcement staff may make only upward adjustments to the matrix value by as much as 50 percent
3.2.4 Other Unique Factors
This guidance allows an adjustment for unanticipated factors that may arise on a case-by•case
basis. As with the previous factors, enforcement staff may want to make upward adjustments to the’
matrix value by as much as 50 percent and downward adjustments by as much as 25 percent for Such
reasons
.19.

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OSWE Directive 9610.12
3.3 ENVIRONMENTAL s smvrrv MLJLTIPUER (ESM)
In addition to the violator-sPecific adjustments discussed above, er orcement personnel may
make a further adjustment tO the matr vaiue based on potential site-specific impacts that could be
caused by the violation. The environmental sensltMty multiplier takes into account the adverse
environmental effects that the violation may have had, given the sensitivity of the local area to damage
posed by a potential or actual release. This factor differs from the potential-for.harrn factor (discussed
in Section 3.1.2) which takes into account the Probability that a release or other harmful action would
occur because of the violation. The environmental sensitivity multiplier addressed here looks at the
actual or potential impact that such a release, once it did occur , would have on the local environment
and public health.
To calct Iate the environmental sensitivity multiplier, enforcement personnel must first determine
the sensitivity of the environment. For purposes of this document, the environmental sensitivity will be
either low, moderate, or high. Factors to consider in determining the appropriate sensitivity level
include:
• Amount of petroleum or hazardous substance potentially or actually released
(e.g.. size of the tanks and number of tanks at the facility that were involved
in the violation, as they relate to the potential volume of materials released);
• Toxicity of petroleum or hazardous substance released:
• Potential hazards presented by the release or potential release, such as
explosions or other human health hazards;
• Geologic features of the site that may affect the extent of the release and may make
remediation difficult;
• Actual or potential human or environmental receptors, including:
• Likelihood that release may contaminate a nearby river or stream;
- Number of drinking water wells potentially affected;
-. Proximity to environmentally sensitive areas, such as wetlands; and
- Proximity to sensitive populations, such as children (e.g., in schools).
• Ecological or aesthetic value to environmentally sensitive areas.
Thus, a 1ow sensitivity value may be given in a case where one tank containing petroleum is located in
clay soil in a semi-residential area where all drinking water is supplied by municipal systems. and where
little wildlife is expected to be affected. A moderate sensitivity value may be given it: several tanks
were in violation: the geology of the site would allow for some movement of a plume of released
substance, and several drinking water wells could have been affected. A high sensitivity value may be
given if a number of tanks (or very large tanks) were involved: there were several potential receptors of
the released substance through drinking water wells or contact with contaminated surface water. and
the contamination would be difficult to remediate. Each level of sensitivity is given a corresponding
multiplier value, as provided below.
.20.

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OSWER Directrve 9610 12
APPENDIX A:
MATRIX VALUES FOR SELECTED VIOLATIONS OF
FEDERAL UNDERGROUND STORAGE TANK REGULATIONS

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OSWER Directive 9610 12
MATRIX
VALUES FOR
SELECTED
APPENDIX A:
VIOLATIONS OF FEDERAL UNDERGROUND
STORAGE
TANK
REGULATIONS
Regulatory
Violation
Unit
Dviatlon from
Potential
Matrix Value
Citation
Assess-
m.nt!’
R.qui,em.nl
for Harm
SUBPART B -- U
ST SYSTEMS:
DESIGN, Co
NSTRUCTION, INSTALLATION, AND NOTIFICATION
I 280.20 Performanc, standards for now UST systems
1280 20(a)(l) installation of an improperly constructed libergiass-reinloiced plastic tank (I) Major Major $1500
1280 20(e)(2) insteiiation of an Improperly designed and construct.d metal lank hat faiis to (7) Major Moderate $750
meet corrosion protection standards
1280 20(a)(2)(i) installation of a motai tank with unauitabie dielectric coating (1) Major Moderate $750
1280 20(a)Ø(iI) tnstaliation at an improperly designed cathodic protection system for a metai (1) Moderate Moderate $500
lank
1280 20(a) (2) (iii) improper lnstaiialion of cathodic protection system for a metal tank (T) Moderate Moderate $500
1280 20(a) (2) (iv) improper operation and maintensnce of tank cathodic protection system ( 7) Major Moderate $750
1 280 20(a)(3) instaiiatiorr of an improperly constructed steal fibergiass-reinforced.pisstic (1) Major Moderate $750
tank
1280 20(b)(l) instaiialiori of improperly constructed fiberglass-reinforced piastic piping (P) Major Major $1500
1280 20(b)(2) Faiiure to provide any cathodic protection for metal piping (P) Major Moderate $750
1280 20(b)(2)(i) installation of piping with unsuitable dielectric coating (1) Major Moderate $750
1280 20(b)(2)(ii) lnstaiiation of improperly designed cathodic protection for metal piping (P) Moderete Moderate $500
f 280 20(b)(2)(.ii) improper installation of cathodic protection system for piping (P) Moderate Moderate $500
1280 20(b)(2)(iv) Improper operation and maintenance of cathodic protection system for metai (P) Major Moderate $750
piping
‘ Unit assessment refers to whethe, the penalty should be appiied per tank (11 or per faciiity (F) Where the vioiation applies to piping (P), the essesemeni will depend on whether
tire piping is associated with one tank or more than one tank
TiltS LIST OF SELECTED VIOLATIONS iS NOT iNTENDED TO BE Exi i7 riVE AND THEREFORE• MAY NOT INCLUDE ALL POSSIBLE VIOLATIONS.

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A 2 OSWER DIrective 9610 12
Regulatory Violation Unit
Citation Assess-
m antY
Deviation horn
Requirement
Potential
fOr Harm
Matrix Value
SUBPART B -- UST SYSTEMS: DESIGN, CONSTRUCTION, INSTALLATION, AND
NOTIFICATION
(Continued)
1280 20(c)(1) Failuie to install any spill prevention system (1)
Major
Major
$1500
1280 20(c)(l)(i) Installation of inadequate spill prevention equipment in a now tank (T)
Major
Major
$1500
1280 20(c)(l) Failure to install any ovrflll prevention system (1)
Major
Moderate
$750
1280 20(c)(1)(ii) installation of Inadsqu.ts ovetlill prevention equipment In a now tank (1)
Major
Moderate
$750
1280 20(d) Failure to install lank in accordanc. with accepted codes and standards (T)
V s rie s 1
Varies !’
see matrix
1280 20(d) Failure to install piping in accordanc. with accepted codes and standards (P)
Varies!’
Varies!’
see matrix
1280 20( 0) FaIlure to provide any cettllication of UST installation (F)
Moderate
Minor
$100
1280 20(e)(t) (6) Failure to provide complete certification of UST instailallon (F)
Minor
Minor
$50
280.21 Upgrading of existing UST systems
128021(b) Failure to meet all tank upgrade standards (1) Major Major $1500
128021 (b)(Ij(i) lmpro .r Installation of interior lining br tank upgrade requirements (T) Major Major $1500
128021(b) (I) (ii) Failure to meet intsrior lining inspection requirements lot tank upgrade (1) Major Moderate $750
128021 (b)(2)(i) Failure to ensure that tank is structurally sound before installing cathodic (1) Major Moderate $750
protection
1280 2 1(b)(2)(ii) Failure to provide any monthly monitoring of cathodic protection for tank (1/F) Major Major
upgrade requirement
128021 (b)(2)(ii) Failure to provide continuous monthly monitoring of cathodic protection lot ( 1/F) Moderate Minor $100
tank upgrade requirement
?‘ Deviation from requirement and potential lot harm will very depending upon specitic code or standard violated
• NOTE TillS lIST OF SEI CJED VIOLATIONS IS NOT INTENDED TO BE EXHAUSTIVE AND, THEREFORE. MAY NOT INCLUDE ALL POSSIBLE VIOLATIONS

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A3
OSWER Directive 9610 12
Failure to moot tightness test requirements foe a tank upgraded with cathodic
protection
Failure o moot requirement. foe testing for corrosion holes for a tank
upgraded with cathodic protection
Failure to install any cathodic protection for metal piping upgrade
requIrements
Failure to meet tightness test requirements for caihodicaily protected motel
piping
Failure to provide spill prevention system for an exIsting tank
Failure to provide overfill prevention system for an existing tank
280.22 NotificatIon requirements
Failure to notify state or local agency within 30 days of bringing an UST
system Into use
Failure to notify designated state or tocal agency of existing lank
Failure to identify on the submitted notification form oil known tanka at that
site
Failure to submit a separate notification form for all notified tanks that are
locatsd at a separate place of operation
Faiture to provide complete certification of all requirements on th. notification
10 cm
Failure to inform tank purchaser of notification requirements
Regulatory
Violallon
Unit
Deviation from
Potential Matrix Value
Citation
Assess-
menl 11
Requirement
br Harm
SUBPART B
-- UST SYSTEMS: DESIGN, CONSTRUCTION, INSTALLATION, AND
NOTIFICATION
(Continued)
§280 2t(b)(2)(iii)
§280 21(b)(2)(iv)
§28021(c)
§2802 1(c)
§2802 1(d)
§28021(d)
(1/F)
Major
Moderate
$750
(1/F)
Major
Moderate
$750
(F)
Major
Major
$1500
(F)
Major
Moderate
$750
(1)
Major
Major
$1500
(1)
Major
Moderate
$750
§280 22(a)
§28022(a)
§280 22(c)
§280 22(c)
§280 22(e).(fl
§28022(g)
(T)
Major
Major
$1500
(1)
Major
Major
$1500
(F)
Major
Moderate
$750
(F)
Major
Minor
$200
(F)
Moderate
Minor
$100
( I)
Major
Major
$1500
NOTE: TillS LIST Of SELECTED VIOLATIONS IS NOT INTENDED TO BE EXHAUSTIVE AND. THEREFORE• MAY NOT INCLUDE ALL. POSSIBLE VIOLATIONS.

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OSWER DIrective 9610 i2
Regulatory
Citallon
Violation
Unit
Assess-
ment!’
Deviation from
Requirement
Potential
for Harm
MatriK Value
SUBPART C -. GENERAL OPERATING REQUIREMENTS
210.30 SplI and overitil control
4280 30(a)
Failure to take nec.asary precautions to prevent ovedilllsplllage during the
transfer of product
(F)
Major
Major
$1500
5280 30(b)
Failure to rsporl a spill/ovedlil
(F)
Major
Major
$1500
4280 30(b)
Failure to investigat. and clean up a spill/oveilill
(F)
Major
Major
$1500
210.31 Op., audi and maintenance of corrosion prolection
42803 1(a)
FaIlur, to operate and maintain corrosion protection system continuously
(FIT)
Major
Major
$1500
4280 31 (b)(i)
Failure to ensure that cathodic protection system is tested within 6 months of
installation
(F/ f l
Major
Major
$1500
428031 (b)(I)
Failure to ensure that cathodic protection system Is tested every 3 years
thereafter
(1/F)
Major
Moderate
$750
4280 31 (b)(i)
Failure to meet on. 3-year test for cathodic protection system
(TIF)
Moderate
Minor
$100
42803$ (b)(2)
Failure to Inspect cathodic protection system in accordance with accepted
codes
(1/F)
Major
Moderate
$750
428031(c)
Failur, to inspect impressed current systems every 60 days
(TlF)
Major
Moderate
$750
428031 (d)
Failure to maintain any records of cathodic protection Inspections
(T/F)
Major
Moderate
$750
428031(d)
Failure to maintain every record of cathodic protection inspections
(1/F)
Moderate
Minor
$100
20032 CompatibilIty
5280 32 Failure to ensure that UST system is made of or lined wlIh materials (T/P) Major Major $1500
compatible with substance stored
NOTE. TillS LIST OF SELECTED VIOLATIONS IS NOT INTENDED TO BE EXHAIJST1vE AND• ThEREFORE. MAY NOT INCLUDE ALL POSSIBLE VIOLATIONS

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A 5 OSWER Directive 9610 12
Regulatory Violation Unit Deviation from
Citation Assess. Requirement
m ci ii! ’
Potential
for Harm
Matrix Value
SUBPART C — GENERAL OPERATING REQUIREMENTS (Continued)
200.33 RepaIrs allowed
§260 33(a) Failure to repair UST system in accordance with accepted codes and (T) VaiiesW
standards
VarleeV
see matrix
§280 33(b) Failure to repair fiberglass-reinforced UST in accordance with accepted codes (T) Variea 1
and standards
Variee 1
eee matrix
§280 33(c) Failu,. to rapiace metal piping that has released product (P) Major
Major
$1500
§280 33(c) Failure to repair fiberglass-reinforced piping in acco,dence with (P) Major
manufacturers specifications
Major
$1500
§280 33(d) Failure to ensure that repaired tank systems sia tightness tested within 30 (I ’) Major
days of completion of repair
Moderate
$750
§280 33(s) Failure to lest cathodic protecthon system wIthin 6 months of repair of an UST (1) Major
system
Moderate
$750
§280 33(f) Failure to maintain records of each repair to an UST system (1) Major
Major
$1500
280.34 Reporting and rscordkesphng
(For violations of reporting and recordkeeplng, see appropriate regulatory section (e g. reporting of releases will be under Subpart 0)
SUBPART D — RELEASE DETECTION
280.40 General requirements for all UST systems
§280 40(a)(I) Failute to provide release detection method capable of detecting a release (1/F) Major Major $1500
from tank or piping that routinely cOntainS product
§280 40(a) (2) F allure to insiall, calibrate, operate. or maintain ieiasse detection method in (1/F) Major Major St 500
accordance with manufacturer’s instructions
r, 1O TE: TillS LIST Of SELECTED VIOLATIONS IS NOT INTENDED TO SE EXHAUSTIVE AND. THEREFORE, MAY NOT INCLUDE ALL Posstai€ VIOLATIONS.

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A 6 OSWER Directive 9610 12
Regulatory
Citation
Violation
Unit
Assess-
ment’ 1
O.vlatlon from
Requirement
Potential
for Harm
Matrix Value
SUBPART D -- RELEASE DETECTION (Continued)
28O 40(a)(3)
Failure to provide a slease detection method that meets the performance
requirements in 2$0 43 or 2 0 44
(F)
Major
Major
$1500
280 40(b)
Failure to notify imp lementing agency when release detection indicates
release
(F)
Major
Major
$1500
1280 40(c)
FaIlure to provide any releas, detection method by phase-in date
(F)
Major
Major
$1500
1280 40(d)
FaIlure to clos, any UST system that cannot meat release detection
requirements
(F)
Major
Major
$1500
2 0.4 $ Requirements for p.trolaum UST systems
1260 41 (a)
Failure to monitor tanks at least every 30 days. It appropriate
(1)
Major
Major
$1500
1280 41 (a)(I)
Failure to conduct tank tightness testing every 5 years. if appropriate
( I)
Major
Major
$1500
1280 41 (a)(2)
Failure to conduci annual tank tightness testing. if appropriate
(T)
Major
Malor
$1500
280 41(b)
Failure to use any underground piping monitoring method
(P)
Major
Major
$1500
280.42 RequIrements for hazardous substance UST system.
1280 42(a) Failure to provide release detection for an existing hazardous substance tank (F) Major
system
1280 42(b) Failure to provide adequate release detection for s new hazardous substance (F) Major Major $1500
UST system
1280 42(b)(1) Failure to provide adequate secondary containment ol tank for a hazardous (T) Major Major
substance UST
1280 42(b)(2) Failure to provide adequate double-walled tank!adequate lining for a (I) Major Major $1500
hazardous substance UST
NOTE. TIllS lIST OF SELECTED VIOLATIONS IS NO! INTENOED TO BE EXHAUSTIVE AND, TIIEREFORE, MAY NOT INCLUDE ALL POSSIBLE VIOLATIONS

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A 7
OSWFR Directive 9610 12
Regulatory
Citation
Violation
Unit
Ass...-
ment!’
Deviation from
Requirement
Potential
lox Harm
MaUi. Vaiu•
SUBPART 0 -- RELEASE DETECTION (Continued)
4280 42(b)(3)
Failure 10 provIde adequat. external liners for a hazardous substance UST
(I )
Major
Major
$1500
5260 42(b)(4)
Failu,. to provide adequate secondary containment of piping for a hazardous
substance UST
(1)
Major
Major
$1500
21044 Methods of el. ... detection for piping
428044
Failur, to provide any release detection for underground piping
(P)
M ihr
Major
$1500
4280 44(a)
Failure to provid, adequate line leak u . - .‘ &i .i lox underground piping
(P)
Msj c
Major
$1500
4280 44(b)
Failure to provide .dequate line tightne.. tesling system for underground
piping system
(P)
Majc r
Major
$1500
§280 44(c)
inadequate use of applicable tank release detection methods
(P)
Major
Major
$1500
210.45 Releas. detectIon recordkeeping
428045 FaIlure to maintain any records of release detection monitoring (F) Major Major $1500
428045 Failure to maintain every record of release detection monitoring (F) Moderate Minor $100
4280 45(a) Failure to document all release detection performance claims for 5 years after (F) Moderate Minor $100
installation
§280 45(b) Failure to maintain any results of sampling, testing or monitoring for release (F) Major Major
detection for at least I year
§280 45(b) Failure to maintain every result of sampling, testing or monitoring for release (F) Moderate Minor $100
detection for at least I year
§260 45(b) Failure to retain results ol tightness testing until next lest Is conducted (F) Major Major $1500
4280 45(c) Failure to document any caiibralion. maintenance, and repair of release (F) Major Major $1500
detecilon
‘ tfl : tillS LIST OF SELECTED VIOLATIONS IS NOT INTENDED TO BE EXHA13 ’fVE AND, THEREFORE, MAY NOT iNCLuDE ALL POSSIDLE VIOLATIONS

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A8
OSWER Directive 9610 t2
Regulatory Violation Unit
Citation Assess.
menl 11
Deviation from
Requirement
Potential
To, Harm
Matrix Valu.
SUBPART D — RELEASE DETECTION (Continued)
S280 45(c) Failure to document every calibration, maintenance, and repair of release (F)
detection
Moderate
Moderate
$500
SUBPART E -- RELEASE REPORTING, INVESTIGATION. AND CONFIRMATION
21050 R.posthlg of suspecl.d .Ieaae
200 50(a)-(c) Failure to report a suspected release wIthin 24 hours to the implementing (F)
agency
Major
Major
$1500
210 52 R.I.as. inv.sllgaIIQn end confirmation steps
j O0 52(a) (b) Failure to investigate and confirm a release (it appropriate) using accepted (F)
procedures
Major
Major
$1500
210.53 Reporting and cleanup of spills and ov.rfihis
t280 53(a) Failure to ,.port a spiilloverfill (if appropriate) to implementing agency within (F)
24 hours (or other specified tim. period)
Major
Major
$1500
200 53(b) FaIlure to contain and imm.dIat.ly clean up a spill/ovsrliil of i.ss than 25 (F)
gallons
Major
Major
$1500
j280 53(b) Failur. to contain and immediately clean up a hazardous substance (F)
spililoverf iii
Malof
Major
$ 1500
SUBPART F -- RELEASE RESPONSE AND CORRECTIVE ACTION
t280 61 Failure to take initial response actions within specified lime period after a (F) Malor Major $1500
ieiease is confirmed
NOIF. TIllS LIST OF S(I CTEI) VIOLATIONS IS NO! INTENDED TO BE EXhAUSTIVE AND, TllIHIFOllE. MAY NOT INCLUDE ALL POSSIBLE ViOLATIONS
I

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A 9 OSWER Dir active 961012
Regulatory
Cilation
Violation Unit
As....-
m.nt 1 ’
Deviation horn
RequIrement
Pol.ntial
for Harm
Matrix Vslu.
SUBPART F - - RELEASE RESPONSE AND CORRECTIVE ACTION (Continued)
§28062
Failure to submit report i,iuliai abatement measures within 20 days (or (F)
oiher sp.cmed lime) of ru. tonhrmation
Miii
Major
$1500
§28063
Failure to submit report on liii iii characterization within 45 days (or other (F)
specified time) of release coot iii • ii
Major
Major
$1500
§28064
Failur, to submit report on free si , imovel withIn 45 days (or other (F)
specified lime) of release confirni ii
SUBPART G -. OUT-OF-SERVICE UST . ( LOSURE
Major
Major
$1500
.
210.70 Temporary closure
§280 70(a)
Failure to continue operation and maintenance of cathodic protection system (FIT)
in a lemporsuly closed tank system
Major
Moderete
$750
§280 70(a)
Failure lo conhinue operation end maintenance of release detection in a (FIT)
temporarily closed lank system
Major
Major
$1
§260 70(b)
Failure to comply with temporary closure requirements br a tank system for 3 (FIT)
or mor, months
Major
Moderate
$750
§280 70(c)
Failure to permanently close or upgrade a temporarily closed tank system (FIT)
after 12 months
Major
Major
$1500
210 71 Permanent closure and changes-In-service
§280 71(a) Failure to notify implementing agency of a closure or change-in-service (FIT) Major Major $1500
§280 71(b) Failure to remove all liquids and sludges for tank closure (FIT) Major Major $1500
§280 71(b) Failure to remove closed lank from the ground or fill tank with an inert solid (FIT) Major Moderate $750
for lank closure
§280 71(c) Failure to empty and clean tank system and conduct a site assessment prior (FIT) Major Major St500
to a change in service
—........r: THIS LIST OF SELECTED VIOLATIONS IS NOT INTENDED TO BE EXHAb3IIVE AND. THEREFORE MAY NOT INCLUDE ALL POSSIBLE VIOLATIONS.

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OSWER Olsecthia
Regulatory
Citation
Violation
Unit
Assess
ment 11
Deviation from
Requirement
Poientl.l
for Harm
Matrix Value
SUBPART G — OUT-OF-SERVICE UST SYSTEMS AND CLOSURE
(Continued)
280.72 AssessIng th. site at closure or change-in-service
4280 72(a)
Failure to measure (if required) fo the presence of a release baton a
permanent closure
(1FF)
Major
Major
$1500
4280 72(b)
it contaminated soil, contaminated ground water. or free product is -
dsscov.red. failure to begin cornoctive action
(TIF)
Malor
Major
$1500
210.74 Closure records
428074
Failure to maintain closure records for at east 3 years
(F)
Malor
Major
$1500
428074
Failure to maintain change-in-service records for at least 3 years
(F)
Major
Major
$1500
SUBPART H — FINANCIAL RESPONSIBIUTY
4280 93 (s) Failure to comply with financial responsibility requirements by the required (F) Major Moderate $750
phase-in time
4280 93(a)(l)-(2) Failure to meet the requirement for per-occurrence coverage of Insurance (F) Major Moderate $750
4280 93(b)(l)-(2 ) Failure to meet the requirement for annual aggregate coverage of Insurance (F) Major Moderate $750
4200 93(f) Failur, to review end adjust financial assurance after acquiring new or ) Major Moderate $750
additional UST5
428094 Use ci so unsppioved mechanism or combination of mechanisms to (F) Major Moderate $750
demonstrate financial responsibility
428095 Use of falsified financial documents to pass financial teat of self insurance (F) Major Moderate $750
4280 106(a)(i) Failure to repoil evidence of financial responsibility to the Implementing (F) Moderate Minor $100
agency within 30 days of detecting a known or uspectod release
PJ’ YF THIS I 1ST ( SF1 FCTFO VIOLATIONS IS Nor INTENDED TO BE EXHAUSTIVE AND. ThEREFORE. MAY NOT INCLUDE ALL POSSIBLE VIOLATIONS

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A II
OSWER Direchve 9610 12
—
Regulatory Violation
Unit
Deviation from
Potential
Matrix Value
Citation
Asse.s-
ment’ 1
Requirement
for Harm
SUBPART H -- FINANCIAL RESPONSIBILITY (ContInued)
280 106(a)(2) Failure to report evidence of financial responsibility to the implementing
(F)
Moderate
Minor
$100
agency when new tanks are installed
t280 106(b) Failure to report evidence of financial responsibility to the implementing
(F)
Moderate
Minor
$ 100
agency if th. provider become. incapabi. of providing financial assurance
end the owner or operator is unable to obtain afternat. coverage within 30
days
S280 !07 Failure to maintain copies of the financial assurance mechanism(s) used to
(F)
Moderate
Minor
$100
comply with financial responsibility rule and certificelion that the mechanism
is in compliance with the ,equirements of the rule at the UST site or place of
business
NOIF Tills LIST OF SELECTED VIOLATIONS IS NOT INTENDED TO BE EXHAUSTIVE AND, TIIEREFORE• MAY NOT INCLUDE ALL POSSIBLE VIOLATIONS.

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OSWER Directive 9610 12
APPENDIX B:
UST PENALTY COMPUTATION WORKSHEET

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OSWEP Directive 9610.12
(This page is blank)

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OSWER Directive 9610 12
DETERMINING THE ENVIRONMENTAL SENSITiVITY MULTIPUER
Environmental Sensitivity Multiplier (ESM) is based on the potential or actual environmenta’
impact at the site, and is given a corresponding value as follows:
Environmental
Sen.ftlvfty ESM
Low 1.0
Moderate 1.5
High 2.0
3.4 DAYS OF NONCOMPLIANCE MULTIPLIER
The final adjustment that may be made to the matnx value takes into account the number of days
of noncompliance. To determine the amount of the adjustment, locate the days of noncompliance
multiplier (or DNM) in the table below that corresponds to the duration of the violation:
DETERMINING THE DAYS OF NONCOMPUANCE MUL11PUER
Days of Noncompliance Multiplier (DNM) is based on the number of days of noncompliance:
Days of
Noncompliance DNM
0.90 1.0
91 180 1.5
181 - 270 2.0
271 - 365 2.5
Each additional 6 months
or fraction thereof add 0.5
The DNM is then multiplied by the adjusted matnx value and environmental sensitivity multiplier to
obtain the gravity-based component of the penalty, as follows:
DETERMINING THE GRAVI’ri.BASED COMPONENT
Environmental Days of
Gravity-Based = Matnx Value x Violator-Spec ic x Sensitivity x Noncompliance
Component Adjustments Multiplier Multiplier
The economic benefit component is added to the gravity-based component to form the initial penalty
target figure to be assessed in the complaint. As discussed previously, this figure cannot exceed
S10,000 for each tank for each day of violation.
-21-

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OSWER Directive 9610.12
E i Ai
• ___
“I
•
‘S
• S
Ss mIe v
•_
Chapter 4
Settlement Adjustments
I
$
*
t..
4
5$
________ 3
I
4
_________ ‘p
Final
1 Penalty
.., .s s—”—se.p ’ —
fli 6 CftsI on
* r0sth
Initial Peflalty
Target Figure
SitV mint
AdJur iMs
• bW topsy
• O ’.’ lactc,s
-22-

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OSWER Directive 9610 12
CHAPTER 4. SETTLEMENT ADJUSTMENTS
After the initial penalty target figure has been presented to the potential violator in a complaint,
additional adjustments may be made as pan of a settlement compromise. All such adjustments are
entirely within the discretion of Agency personnel. The burden is always on the owner/operator to
provide evidence supporting any reduction of the penalty.
In response to a complaint, the owner/operator may request an informal conference and/or a
hearing to settle the penalty and violation. The Federal Consolidated Rules of Practice (CROP)
procedures for administrative actions at 40 CFR Part fl provide for a settlement conference and a right
to a public hearing, giving the owner/operator the opportunity to present data to support a penalty
adjustment. At a minimum, enforcement personnel may consider adjustments based on the four
violator-specific adjustment factors discussed in Chapter 3, includIng:
• Degree of cooperation/noncooperation;
• Degree of wilifulness or negligence;
• History of noncompliance; and
• Other unique factors.
The settlement adjustment is usually Q! made to the economic benefit component unless new and
better information about the economic benefits is made available. The Agency should maintain a
record that includes a statement of the reasons for adjusting the penalty.
In addition to the adjustment factors listed above, and because of the nature of the UST
regulated community, one factor that commonly will be discussed during negotiations is the
owner/operator’s inability to pay. An adjustment may need to be made for inability to pay to ensure fair
and equitable treatment of the regulated community. It is important, however, that this reduction not
allow the regulated community to regard violations of environmental requirements as a way to save
money. Furthermore, a penalty should not be reduced when a violator refuses to correct a violation.
has a history of noncompliance, or in cases with egregious violations, e g., failure to abate a release
that is contaminating drinking-water supplies.
The Agency Should assume that the owner/operator is able to pay unless the owner/operator
demonstrates otherwise The inability to pay adjustment should be based on the amount of the initial
penalty target figure and the financial condition of the business, but it is the owner/operators
responsibility to provide evidence of inability to pay The owner/operator may provide evidence, such
as tax returns, to document his or her claims. In cases when the owner/operator fails to demonstrate
inability to pay, the Agency should determine whether the owner/operator is unwilling to pay, in which
case no adjustments to the initial penalty target figure should be made. In cases where the
owner/operator can successfully demonstrate: (1) that the company is unable to pay; or (2) that
payment of all or a portion of the penalty will preclude the violator from achieving compliance, the
following options may be considered:
• An installment payment plan with interest;
• A delayed payment schedule with interest:
• An in-kind mitigation activity performed by the owner/operator;
• An environmental auditing program implemented by the owner/operator; or
• Reduction of up to 80 perc nt of the gravity-based component.
.23-

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OSWER Directicie 9610.12
A reduction of the gravity-based component should be conslderec after determining that the other
tour options are not feasible. 14
In order to evaluate a violator 1 s claim regarding inability to pay. two sources of information are
available to determine the likelihood that a company can afford to pay a certain civil penalty:
National Enforcement Investloatlon Corner (NEIC) . The NEIC of EPA’s Office of Enforcement
has developed the Supertund Financial Assessment System that can determine a company’s ability to
pay. For publicly owned companies, specific financial data is available from NEIC. If Investigating a
private company, enforcement staff can report financial data to NEIC and it will be keyed into NEIC’s
computenzed economic computer model for analysis.’ 15
ABEL EPA’s Office of Enforcern nt developed the ‘ABEL’ model as part of an ongoing effort to
evaluate the financial health of firms involved in enforcement proceedings. The ABEL model has been
used by EPA, Regions, and States to evaluate a firm’s claim regarding inability to pay based on 21
inputs gathered from the company’s Federal income tax returns from the previous 3 years.
Enforcement staff may access ABEL by computer dial-up on a personal computer with a modem and an
ABEL user ID number. 16 In addition. OUST has developed a PC-based model called ABELPRO which
is a simplified version of ABEL that is run on a PC using a LOTUS spreadsheet or Macintosh Excel) 7
The Agency is currently developing cross-media guidance on environmental rnrtigation projects
whicn. when final, wilt supersede the ‘Alternative Payments’ section of the Agency’s February 16. 1 9E-.
penalty policy (#GM.22). Until the revised Agency guidance is finalized, the Agency’s 1984 penatty
policy shouid be consulted for additional guidance.
For further information, contact the NEIC at (303) 236-5100 or FTS 8-776-5100.
16 To obtain the ABEL User’s Manual and user ID numbers for computer hookup, contact the
BEN/ABEL Coordinator at the U.S. EPA Headquarters, by phoning (202) 475-6777 or FTS 475-6777
17 For information, contact the appropriate Regional Desk Officer at U.S. EPA Headquarters’ Office
of Underground Storage Tanks
-24.

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OSWER Oirec ive 961C 2
Chapter 5
Use of Field Citations
Raid c tai1on
‘4-
TradItIon
Approach
I
I
I
‘S
‘1
S
Fisid Citation
— -
•_
r n4go a .
psn*ffy
4
-25-

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OSWER Directrve 9610.12
CHAPTER 5. USE OF FIELD CITATIONS

The Office of Underground Storage Tanks (OUST) has been exploring the use of field citations as
an alternative means of assessing CMI penalties and obtaining compliance with UST requirements.
Once t e manner in which field citations will be used in the Federal UST program has been determined,
this policy will be revised to reflect how field citations fit into the UST penalty policy.
.26-

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OSWER Directive 9610 12
UST PENALTY COMPUTATiON WORKSHEET 1
Assessments for each violation should be determined on separate WOrkSheets and totaled. (if more space
is needed, attach separate sheet)
PART 1 . BACKGROUND
Company name
Regulation violated ___________
Previous violations -
Date of requirement___________________ Date of inspection________________________
Date of compliance______________________ Explanation (if appropriate):
1. Days of noncompliance________________
2. Number of tanks______________________
PART 2- ECONOMIC BENEFfl COMPONENT
Avoided Expenditures
Delayed Expenditures________________ Basis: ______________________________________
Weighted Tax Rate_________________ Source: ____________________________________
Interest Rate________________________ Source: _______________________________________
AVOIDED = fL,old.d + Avoided x Interest x Numbefl x (1 - WeIghted Tax Rate)
COSTS Expenditures Expenditures of Days
L 3650ays
3. Calculated Avoided Cost:____________________
Page 1 of 3

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OSWER Directive 9610.12
I UST PENALTY COMPUTATiON WORKSHEET
DELAYED COSTS = Delayed Expenditures x Interest x Number of Days
365 Days
4. Caiculated Delayed Cost:________________________
5. Economic Benefit Component: (carry figure to Line 16).
(Line 3 + Line 4)
[ PART 3 . MATRIX VALUE FOR ThE GRAVITY-BASED COMPONENT
PotentiaJ for Harm:________________ Extent of Deviation_________________________
6. Matrix Vaiue (MV): (from document page 16 or Appendix A)
7. Per-tank MV: (if violation is per facility, the amount on
(L ine2xLine6) bethesameastheamountonLine6)
Line 7 will
PART 4- VIOLATOR-SPECIFIC ADJUSTMENTS TO MATRIX VALUE
Percentage x Matrix = Dollar
Change Value Adjustment
( + or -) ( + or -) Justification for Adjustment :
8. Degree of cooperatioril
noncooperation
9. Degree of willfulness
or negligence:
10. History of
noncompliance:
11. Unique factors:
12 Adlusted Matrix Value
(Line 7 + Lines 8-11)
Page 2 of 3

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OSWER Directive 9610 12
I UST PENALTI’ COMPUTATiON WORKSHEET
I
II PARr s . GRAV1TV.BASED COMPONENT
Level of
Environmental Sensitivity___________________ Justification:
13. ESM (from document Page 21)
14. DNM (from document Page 21)
Environments
GRAVITY-BASED COMPONENT = Adjusted Matrix Value x SensitivIty
I
x
Days of
Noncompliance
Multiplier
15. Gravity-Based Component:
(Line 12 x Line 13 x Line 14)
Multiplier
[ I PART 6. INITIAL PENALTY TARGET FIGURE
16. Economic Benefit Component ______________
(from Line 5)
17. Gravity-Based Component______________
(from Line 15)
18. Initial Penalty Target Figure
(Line 16 + Un. 17)
SIGNATURE_____________________________ DATE
Page 3 of 3

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OSWER Directive 9610.12
(This page is blank)

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OSWER Directive 9610 12
APPENDIX C:
UST PENALTY COMPUTATION EXAMPLES

-------
irecttve 9610.12
EXAMPLE 1
BACKGROUND
Inspection Date : April 12. 1990
________ r d Descnptuon : Ed’s Gas and Go is a small gas station in a semi•rural part of the county.
- tanks, apparently installed prior to 1965. Judging from the condition of the facility and
‘s income appears to be less than $50,000 per year.
Violations : During the inspection, the inspector observed that Ed failed to provide a method of release
detectior by the December fl, 1989 deadline, in violation of 40 CFR section 280.40(c).
Owner/Operator Response claimec io knowledge of the requiremerts for re’ease detection. After
being informed of methe - ieeting tne requirement, he indicated that he would use annual tank
tightness testing ana rr iy inventory control, in accordance with 40 CFR section 280.41 (a)(2).. Ed
began to conduct ade a monthly inventory control and arranged to have his tanks tested within 10
days.
Previous Actions at Facility : Previoisry, Ed had been given a warning letter for failure to comply with the
notification requirements, but had complied upon receipt of the letter. No other previous violations were
identified.
Current Status at Site : The inspector observed that given the age of the tanks, and Ed’s previous inability
to detect any releases, there was a good chance for a release to occur and go unnoticed for a significant
length of time However. Ed’s subsequent tightness tests indicated that the tanks were tight. The geology
in the area s fractured shale. There are no drinking water wells or sensitive wildlife receptors within a 5-
mile radius of the site.
PENALTY CALCULATION DATA
VIolatIon: 40 CR section 280.40(c)
Days of vlc ion: 120 days from date of noncompliance (December 22, 1989) to date of compliance
(April 22, ., which was 10 days after the inspection).
AvoIded endftursa: $2.50 per day = $300 for 120 days (estimated cost for labor needed to conduct
daily inventory control, based on 1/2 hour labor at $5.00 per hour)
Delayed expenditures: $520 x 4 tanks = $2,080, where the average cost for a tank tightness test is $520
This is consicered a delayed expend ure because it was necessary to achieve compliance in this time
frame.
Interest rats: 18.1% (the equity discount rate used in the BEN model for 1990).
Tax rats: 15% (the weighted average tax rate for a facility with less than $50,000 annual income).
(NOTE: The numbers used to determine avoided and delayed expenditures were chosen for convenience
only They do not necessanty represent true costs in any State or Region in the country]
C-2
Facility Na
The facility
adjacent stor ,
OSW

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OSWER Directrve 9610 12
usr PENALTY COMPUTATiON WORKSHEET. I
Avoided Expenditures ‘ 300
Delayed Expenditures Q 0 ‘0
Weighted Tax Rate 0 I (i ç . )
Interest Rate C I I (I
AVOIDED = voIded +
COSTS
AC [ 3oo +
3. Calculated Avoided Cost:
Assessments for each violation should be determined on Separate worksheets and totaled. (If more space
is needed, attach separate sheet.)
I PARr I . BACKGROUND
Company name Eli 5as *ii€e
Regulation violated CPi secW i ô ‘t ( c) - i / qi pro “ d’e .
cefeee Ie ck ii Decew,her 22 / , pha5 -i 1
d e
Previous violationS • C. ( (f ) - jp .n
le4c
Date of requirement / /22 / 8 Date of inspection ‘ / i / ô
Date of compliance ‘if 2.2 / 1’7 Explanation (if appropnate): do of
ccrr ipIsavu ,: /0 d is t 4 C Y
1. Days of noncompliance f t 0 “7
2. Number of tanks_____________________
PART 2- ECONOMIC BENEFIT COMPONENT
________ Basis: 2 50 per da 4c
___________ Basis: £ 0 r -1 ik 4,r 1i1)i SS 4 S*
_____________ Source: ft7 fl 4,i i,1 ,,tL c St Oi O /c ,ej v
__________________ Source: &,V y.iodi( (e? l.hj d 1 S(Q t ra #
Avoided x Interest x Numb.fl x (1 - Weighted Tax Rate)
Expenditure, of Days
36 SDays
( d300 I2 1 C— is]
3 S J
C-3

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OSWER Directive 9610.12
UST PENALTY COMPUTATION WORKSHEET
DELAYED COSTS = Delayed Ex endlturee x Interest x Number of Davs
365 Days
DC 1 o C) .1 . (
4. Calculated Delayed Cost:_____________________
5. Economic Benefit Component: (carry figure to Line 1 .
(Line 3 + Line 4)
PART 3 . MATRIX VALUE FOR ThE GRAViTY-BASED COMPONENT
II
Potential for Harm: ff1 ajof Extent of Deviation fYla) (
6. Matrtx Value (MV): / OO (from document page 16 or Appendix A)
7. Per-tank MV: (‘ 000 (it violation is per facility, the amount on Line 7 will
(Line 2 x Line 6) be the same as the amount on Line 6)
I
II PART 4- ViOLATOR-SPECIFIC ADJUSTMENTS TO MATRIX VALUE
Percentage x Matrix = Dollar
Change Value Adjustment
( + or 4 ( + or.) Justification for Adjustment :
8. Degree of cooperation/ ,v,p (er
noncooperation C 6’ 000 0 i #15 ut OSI
9. Degree of willfulness D(c viol-
or negligence: 0 . O0O o Va (a
10. History of L lf 4 r’ liç7 (e#4( uSS J
noncompliance: 5 o . (,0O0 30O A,y pr i • ( i C’f)
11. Unique factors: ______  4000 0
12. Adiusted Matrix Value I ( 300
(Line 7 + Lines 8.11)
C-4

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OSWER Directive 9610 12
I UST PENALTY COMPUTATION WORKSHEET I
PART 5 . GRAViTY-BASED COMPONENT
I
Level of
Environmentai Sensthvity t4pd4ra Justification : ,4 ,q ce/ease. ‘s
f,LgIu ,‘ kL v .€. “-‘pAcl 0,1 4 r q
13. ESM (from document Page 21L...L.. ....... dr 1 ,i1! 1 , q-i .i*4r 5cH.#rce Po e,ih’ &-’ 1
Q 1 ,C ektv,ro,1,, t€i .da (c)
be 11$lW1 ( J. ô Li r c f ,e 4 J
14. DNM (from document Page 21) I. c 5i14 fe#4leSa ha i
Environmental Days of
GRAVITY-BASED COMPONENT = Adlusted Matrix Valus x Sensftlvtty x Noncompliance
Multiplier Multiplier
C 6C. (., 3oO x r.ç v,’c $/‘ (
15. Gravity-Based Component: 1/ /
(Line 12 x Line 13 x Line 14)
II PART 6 - INITIAL PENALTY TARGET FIGURE
16. Economic Benefit Component hi
(from Line 5)
17. Gravity-Based Component $ i’1 /
(from Line 15)
18. Initial Penalty Target Figure f . S T
(Line 16 + Un. 17)
SIGNATURE_____________________________ DATE
C-s

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OSWER Directive 9610.12
rtr
BACKGROUND
Inspection Date : March 20, 1992
Facility Name and Description : Johnson’s Petromart, located at Praine View Lane, is one of eight facilities
in a convenience store chain that spans three counties. This facility has a total of 5 USTs, and there are a
total of 34 USTs at the 8 facilities. Based on an examination of the parent company’s tax returns, it was
determined that the company’s taxable income was $280,000.
Violations : During the inspection, the inspector observed that the facility had no records of financial
assurance coverage as required by the April 26. 1991 deadline. Subsequently, the inspector requested
records for each of the 8 Johnson facilities. Upon further investigation, the inspector determined that the
owner of the chain, Jack Johnson, had acquired private insurance (the owner did not qualify to self-insure)
for the other 7 facilities. At the remaining facility, however, neither the owner nor the operator had obtained
the required coverage, thereby constituting a violation of 40 CFR section 280.93(a). This facility is among
the oldest in the Johnson’s chain and ie operated with 4 bare steel UST systems and one cathodicalty
protected UST system. The other 7 facilities were opened subsequent to the Interim prohibition and
installed USTs that meet the Federal design, construction, and installation requirements. Therefore,
obtaining insurance for these USTs was easier than for the facility in violation. The insurance company
had indicated that it would be willing to ensure the remaining facility provided that the tanks were retrofitte”
with spill/overfill protection and cathodic protection.
Owner/Operator Pes00nse : Jack Johnson argued that it was the responsibility of the operator to upgrade
his USTs so as to make them insurable. The operator of the facility claimed that he lacked the resources
to upgrade his USTs and believed that the responsibilIty for meeting the FR requirements was the owners.
The enforcement staff determined that the owner was aware of his responsibility to insure the USTs at all of
his facilities and that only he had the means to do so. The Agency attempted to enter into compliance
negotiations with Jack Johnson, but to no avail. The Agency planned to issue an administrative complaint
on July 1, 1992.
Previous Actions at Facility : Previously, one of the Johnson’s facilities had been issued a warning letter for
failure to notify tile Agency after bringing a new UST into operation. The owner had complied after
receiving the letter. Three other facilities had been issued warning letters for failure to maintain all of the
required monitoring records for release detection.
Current Status at Site : At the time of the most recent inspection, it was determined that the facility in
violation of the FR requirements had an adequate method of release detection, and no releases were
determined to have occurred. The geology in the area of the facility is clay. The facility is located in a
semi-residential/commercial area; however, there are rio dnnking water wells or sensitive wildlife receptors
within a 3-mile radius of the site.
C-6

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OSWER DirectNe 9610.12
PENALTY CALCULATION DATA
ViolatIon: 40 CFR Section 280.93(a)
Days of violation: 430 days from date of noncompliance (April 26, 1991) tO date 01 compliance (which, for
purposes of assessing the penalty, was determined to be July 1, 1992. tO Coincide with the date of the
administrathie complaint).
Avoided expenditures: $27.40 per day = $11,781 for 430 days (estimated insurance premium, based on
an annual premium of $2,000 per UST for 5 USTs)
Delayed expenditures: $15,000 x 4 = $60,000 (where the average cost for system retrofit is $15,000).
This is considered a delayed cost because retrofitting would enable Johnson’s to achieve compliance with
the tinancial responsibility requirement.
Interest rate: 18.1% (the equity discount rate used in the BEN model for 1990).
Tax rate: 33% (the weighted average rate for a facility with $280,000 in taxable income).
[ NOTE: The numbers used to determine avoided and delayed expenditures were chosen for convenience
only. They do not necessarily represent true costs in any State or Region in the counhly.j
C . .7

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OSWER Directive 9610.12
UST PENALTY COMPUTATiON WORKSHEET
z Numbefl x (1 - Weighted Tax Rate)
of Dave]
3O
3. Calculated Avoided Cost:
i
Assessments for each violation should be determined on separate worksheets and totaled. (If more space
is needed, attach separate sheet.)
PART I - BACKGROUND
Company name
.s Pe#rD Mart
Regulation violated L/ CPR
e1ovi
(a’) - ,1.’, e. i o
ku (
cov’eraje y
co.’lp/F’ablca. depd/,i-,e
Previous violations ai,m’i v’,•ô f&, 4 ry, (i —
cc i d r /, a c ,-I ic’ v, t/,O f h’ci,i ((ff ( )
1 r,1’/tQ I .e
- Ji ra”1,Aei /e 44”Y iS Su#
Date of requirement
Date of compliance
1. Days of noncompliance
2. Number of tanks
i ,,e ed’
(/‘2(, R (
Date of inspection - 3/ O / - -
I I’ C? Q.
Explanation ( appropriate): Ia e o
co ipIav7ce. ‘ CCbISIC(€(eCI 1
b ack I i, 7 ; i . ied
“/30
.5 (or 4
-lo e te -frø .A•-,’)
I I
PART 2- ECONOMIC
BENEFIT COMPONENT
Avoided Expenditures /f . ‘?‘5 (
Delayed Expenditures ( PC. COO
Weighted Tax Rate 0 3
Interest Rate ( 1 (is. i ‘7. ‘ )
Basis:
7 ‘10
per a’..
Basis:
C O
per )5 7 re .fro 4 ’L ( 7 L -i’z ,Ls )
Source:
,i’li ”R
O 1 OCO ; ic ie
Source:
3t&1
, 7a ‘e ( (eq i—i j jf Qil 3 -0 ‘
AVOIDED = EAvolded + AvoIded x Interest
COSTS Expenditures Exoenditures
L_ 365 Days
A-C
C_a

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OSWER Directive 9610 12
I U$T PENAL.Tf COMPUTA11ON WORKSHEET
I
DELAYED COSTS = Delayed Ex endlture. x Interest x Number of Days
365 Days
DC ‘ 000 t 0 f
3C ,5
4. Calculated Delayed Cost: 3 / - 941
5. Economic Benefit Component:  3 9-0 (carry figure to Line 16).
(Line 3 + Line 4)
j
f PART 3- MATRIX VALUE FOR ThE GRAV1TV.BASED COMPONEIIT
Potential for Harm: flc der4 tL. Extent of Deviation VYlaj or
6. Matrix Value (MV): 7 50 (from document page 16 or Appendix A)
7. Per.tank MV: $ ‘7 5 Q (if violation Is per facility, the amount on Line
(Line 2 x Line 6) be the same as the amount on Line 6)
7 will
PART 4- VIOLATOR-SPECIFIC ADJUSTMENTS TO MATRIX VALUE
Percentage x Matrix = Dollar
Change Value Adjustment
( + or - ( + or 4 Justification for Adjustment :
8. Degree of cooperation/ fl f (.I#’ Wi//IA?
noncooperation qo2 0 75O $3oo neje ’arj e,mS’-’o CO# 1p/’ ’1c.Q
9. Degree of willfulness C iiv,er o ior
or negligence: ‘ 2 6 . ‘ ‘ 7S ’O ‘ ( c.” f(fllJ
10. History t CO
noncompliance: ‘ 0 7 o $ 50 1(5-0 i i’o (a. c i
11. Unique factors: 0 5t) 0
12. Adjusted Matnx Value
(Line? + Lines 8-11)
C-9

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OSWER DirecU e 9610.12
L
liST PENALTY COMPt7 A11CN WORKSHEET
IL
PART 5-GRAViTY-BASED COMPONENT
Level of
Environmental SensitMty I..o t ) Justification : Po e,ih ’ J , ‘sip&c.i’ a ’f a-
(e(ease o&’ i1 e ( ivca,1 ’vt4”*
13, ESM (from document Page 21) 1 df ’/) £4,4 - . j tq (
be wW,,i pi (. cf c
14. bNM (from document Page 21 )
Environmental Days of
GRAVITY-BASED COMPONENT = AdIust.d Matrix Value x Sensitivity x Nonconipllance
Multiplier Multiplier
C,t ‘ / S
15. Gravity-Based Component: ff (,‘
(Line 12 x Line 13 x Line 14)
II PART 6 - INITIAL PENALTY TARGET FIGURE I
16. Economic Benefit Component  . 3 O
(from Line 5)
17. Gravity-Based Component “ 1 I (“1
(from Line 15)
18. Initial Penalty Target Figure . 53 ‘ f
(Line 16 + Un. 17)
SIGNATURE______________________________ DATE
c-i o

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OSWER Directive 9610.12
L
BACKGROUND
Inspection Date : N/A
Facility Name and Description : Kelly’s Kwik Stop is a convenience store that recently had its three IJSTs
taken out of operation. Prior to their removal, the USTs were operated by the owner of the convenience
store. Karen Kelly. and owned by Darby Distributors, an oil jobber. The taxable income of Darby
Distributors was $400,000 in 1989.
Violations : On May 20. 1989, Ms. Kelly reported the presence of petroleum vapors outside of her
convenience store. The Agency investigated the site and confirmed the presence of a petroleum release.
Ms. Kelly reported that Darby Distributors had removed the 3 USTs located at her place of business on
March 17, 1989; she was not aware of the requirement to notify the Agency prior to permanentclosure or
of the requirement to conduct a site assessment. Ms. Kelly also could not say whether Darty Distributors
had fulfilled these requirements. Upon a review of the Agency’s records, It was determined that Darby
Distributors had failed to notify the Agency of the closure, thereby constituting a violation of 40 CFR section
280.71. The distributor was also unable to produce records demonstrating compliance with the closure
site assessment requirements, constituting a violation of 40 CFR section 280.74. The distributor also failed
to assess the site for the presence of a release before permanent closure, in violation of 40 CFR section
280.72(a).
Owner/Operator Response : When the Agency contacted Darby Distributors, they indicated that they would
initiate corrective action only if they, and not Ms. Kelly, were actually responsible for the release. The
Agency informed them that as the owner of the USTs formerly in operation at Kelly’s Kwik Stop they as well
as Ms. Kelly are responsible for addressing any release from those USTs. The Agency also informed
Darby Distributors that administrative orders were betng prepared to compel them to clean up the release
and pay penalties for violations of the closure requirements (the Agency was dealing separately with Ms.
Kelly). At that time, the company requested to enter into negotiations with the Agency in order to establish
a corrective action schedule and determine the amount of the penalties to be assessed.
Previous Actions at Facility : There were no previous incidents of violation at the facility.
Current Status at Site : Kelly’s Kwik Stop is located in a rural part of the county. There are, however, two
private drinking-water wells within a mile of the facility and several others within 4 miles of the facility. The
facility is located one-half mile from a river that is used for recreational purposes as well as by various
wildlife as a source of water. The geology in the area of the site is silt.
c-Il

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OSWER Directive 9610.12
PENALTY CALCULATiON DATA
Violation: 40 CFR section 280.71(a) 1 P
Days of Violation: 94 days, from the lat 1 required date of compliance (February 17. 1989) to the actual
date of compliance (May 20, 1989), where actual compliance is assumed to be coincident with Ms. Kelly’s
report to the Agency.
Avoided expenditures: Deemed negligible.
Delayed exp.ndIt ires: None.
Interest rate: 18.1% (the equity discount rate used in the BEN model for 1989).
Tax rate: 34% (the weighted average rate for a company with ta abie Income greater than $340,000).
PENALTY CALCULATiON DATA
Violation: 40 CFR sectIon 280.72(a)
Days of Violation: 64 days, from the latest required date of compliance (March 17, 1989) to the actual
date of compliance (May 20, 1989), where actual comphance is assumed to be coincident with Ms. Kelly’s
report to the A ency.
AvoIded expenditure.: $8,500 x 3 USTs = $2s O0 (where the average cost for a site assessment at
closure is $8,500 per UST).
Delayed expenditure.: None.
Interest rate: 18.1% (the equity discount rate used in the BEN m ei for 1989).
Tax rate: 34% (the weighted avei’age rate for a company with taxaole income greater than $340,000).
PENALTY CALCULATiON DATA
Violation: 40 CFR section 280.74
Days of Violation: 64 days, from the latest required date of compliance (March 17, 1989) to the actual
date of compliance (May 20, 1989), where actual compliance is assumed to be coincident with Ms. Kelly’s
report to the Agency.
Avoided expenditures: None.
Delayed expenditures: Deemed negligible.
interest rate: 18.1% (the equity discount rate used in the I model for 1989).
Tax rate: 34% (the weighted average rate for a company axable income greater than $340,000).
[ NOTE: The numbers used to determine avoided and delayed expenditures were chosen for convenience
only They do not necessarily represent true costs in any State or Region in the country.j
C-12

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OSWER Directrve 9610 12
I UST PENALTY COMPUTATiON WORKSHEET
Assessments for each violation should be determined on separate worksheets and totaied. (If more space
is needed, attach separate sheet)
I PART 1 - BACKGROUND
1
Company name
Regulation violated ‘10 C, W sec ycyi 2 O ‘ / ( - if ire
Iiol y 30 p r i o -/. L cfôi vfe.
Previous violations itJ’°p e.
Date of requirement Iiç ( g Date of inspection_____________________
Dale of compliance c/20 / T Explanation appropriate):
1. Days of noncompliance________________
2. Number of tanks_____________________
I PART 2- ECONOMIC BENEFIT COMPONENT
Avoided Expenditures O Basis: C OJt 1 bló f) 1 c i4 V7 bl j f;, i
Delayed Expenditures_______________ Basis: ______________________________________
Weighted Tax Rate N 14 Source: ___________________________________
Interest Rate Al/A Source: __________________________________
AVOIDED = EAvolded + Avoided x Merest x Numbefl x (1 - WeIghted Tax Rate)
COSTS Expenditures Expenditures of Days
3UDsys
3. Calculated Avoided Cost:____________________
C-13

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OSWER Directive 9610.12
F UST PENALTY COMPUTATION WORKSHEET
DELAYED COSTS = Delayed Expendttures x Interest x Number of Days
365 Days
4 Calculated Delayed Cost:_________________________
5 Economic Benefit Component: ‘ 0 (carry figure to Line 16).
(Line 3 + Line 4)
PART 3- MATRIX VALUE
FOR THE GRAVITY-BASED COMPONENT
Potential for Harm: ftl4)Iir
Extent of Deviation M’la p r
6 Matrix Value (MV): 15V0
(from document page 16 or Appendix A)
(if violation is per facihty, the amount on Line 7 will
be the same as the amount on Line 6)
7 Per-tank MV: % /5O0
(Line 2 x Line 6)
PART 4. VIOLATOR-SPECIFIC ADJUSTMENTS TO MATRIX VALUE
Percentage x Matnx = Dollar
Change Value Adjustment
( + or -) ( + or 4 . Justtfication for Adiustment
ne( ‘sqv .es1 d eqcf Acvs
8 Degree of cooperation! n I c 1 .,C , .j4/ 1aVALd f
noncooperation /0). fl /5 O ;ii ds’ q ,‘, v
9 Degree of willfulness ‘ .4 4 . Li
or negligence: 1’ _____ “C, 00 a#
I
10 History of
noncompliance 0 ______ _______
11 Unique factors 0 1 ica .
12 Ad 1 usted Matrix Value
(Line 7 — Lines 8.11)
C•14

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OSWER Directive 9610 2
UST PENALTY COMPUTATION WORKSHEET 1
I PART 5 - GRAVITY-BASED COMPONENT
Level of
Environmental Sensitivity I , Just ication : s e Id ivv pa e 4
vC ra.€ drii L 1 ,’ q - , ‘ .‘e f/s
13. ESM (from document Page 21) a river i ised b i. ‘tv’a,iS
4,- iecre z-k*, a id
14 DNM (from document Page 21) I.
Environmental Days of
GRAVITY-BASED COMPONENT = Adjusted Matrix Value x SensitIvity x Noncompliance
MultIplIer Multiplier
G C
15. Gravity-Based Component: ______________
(Line 12 x Line 13 x Line 14)
PART 6 INITIAL PENALTY TARGET FIGURE
16. Economic Benefit Component 0
(from Line 5)
17 Gravity-Based Component I 50
(from Line 15)
18 Initial Penalty Target Figure__________________
(Line 16 + Line 17)
SIGNATLPE________________________________ DATE_______________
C-I 5

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OSWER Directive 9610.12
I PENALTY COMPUTATION WORKSHEET
I PART I - BACKGROUND
U
Company name ) 2rh
Regulation violated ‘i’O C S ci cvi O 2 ( ) - ra ;( ,r e
6 z
ôScess rf ,t ik dps re.
Previous violations PP .
Dateof requirement 3/f / Dateofinspection_________________
Date of compliance f o Explanation (If appropnate):
1. Days of noncompliance (o’l
a Number of tanks 3
PART 2- ECONOMIC BENEFiT COMPONENT
I
Basis: % 5?2O pe( 115f sT a ssecsØie,’
Basis:
Source: ftlle , r ,,lCcnfZ > .3’ OOO
Source: &t) ,y,ode! (eg ( j d,s tct . .øriL , )
. /
AVOIDED = EAvolde + Avoided x Interest x Numbel x (1 - Weighted Tax Rate)
urea o
COSTS LEx1 uu 1u Expendlt 365 Days 1 DaYs ]
AC’ I ( s(, 1
3. Calculated Avoided Cost: $ /
Assessments for each violation should be determined on Separate worksheets and totaled. ( f more space
is needed, attach separate sheet.)
Avoided Expenditures,
Delayed Expenditures
Weighted Tax Rate_Q
Interest Rate 0 1Sf
6, 5 O
,V(A
3’t (3’t’2
(1%. /
)
C -16

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OSWER Directive 9610
I UST PENALTY COMPUTATION WORKSHEET
1
DELAYED COSTS = Delayed Expenditures x Interest x Number of Div.
365 Days
4. Calculated Delayed Cost:________________________
5. Economic Benefit Component: /? ? C ‘1’ (carry figure to Line 16).
(Line 3 + Line 4)
H PART 3- MATRIX VALUE FOR ThE GRAVITY-BASED COMPONENT
Potential for Harm: a,o ( Extent of Deviation / 7 . ? r
6. Matrix Value (MV): I I SO0 (from document page 16 or Appendix A)
7. Per-tank MV: I CCC) . (if violation is per facility, the amount on
(Line 2 x Line 6) be the same as the amount on Line 6)
Line
7 will
H PART 4- VIOLATOR-SPECIFIC ADJUSTMENTS TO MATRIX VALUE
Percentage x Matrix = Dollar
Change Value Adjustment
( + or-) ( + or-) Justification for Adlustment :
O ’ner r€q , d! ,,eqc1 a vt .ç
8. Degree of cooperation/ .# j, be; & i &P,tII Ot
noncooperation •____ OO 11 ’Q0
Cd.js.er ippe Si’s -4 44
9 Degree of willfulness
ornegligence: tO24  OOO 2’/OO ad fr4 j
,, liI_4 y ”e P,’_,,11s .
10. History of
noncompliance ______ . ‘ ( 0000 _______
11 Unique factors: _______ _______ 0 , IA
12 Ad tssted Matrix Value
(Line 7 i- Lines 8-11)
C-i 7

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OSWER Directive 9610.12
I UST PENALTY COMPUTAI1ON WORKSHEET
I
PART 5. GRAVITYSASED COMPONENT
Level of
Environmental Sensitivity é1 ‘ q h Justification : Refeqs e cocJJ 14 ”fi ’kc ’&
sev.er ( Jrv/ Ic q,lq £A/ C ( e uIs a’ 4
13. ESM (from document Page 21) 2 river se ( ê4 h c .vvi vts
c/,1c( ’ ‘ (d’f ’k a. 4
a. SOL1ft o ’f rM* ,q
14. DNM (from document Page 21) /
Environmental Days of
GRAVITY-BASED COMPONENT = Adjusted Matrtx Value x Sensitivity x Noncompliance
Multiplier Multiplier
6i8C £ x I =
15. Gravity-Based Component: % / , O(
(Line 12 x Line 13 x Line 14)
J PART 6 • INITIAL PENALTY TARGET FIGURE I
16. Economic Benefit Component / 7 , ‘3
(from Line 5)
17. Gravity-Based Component / , O O
(from Line 15)
18. initial Penalty Target Figure 1 ‘36’, ‘3
(Line 16 + Line 17)
SIGNATURE_____________________________ DATE_
C-la

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OSWER Directrve 9610 12
I UST PENALTY COMPUTAI1ON WORKSIEET
Avoided Expenditures
Delayed Expenditures
Weighted Tax Rate_
merest Rate
3. Calculated Avoided Cost:
Assessments for each violation should be determined on separate worksheets and totaled. (If more space
is needed, attach separate sheet.)
II 1 BACKGROUND
Company name tb y 7 c1 b ..’*r
Regulation violated 1O (PR c 1 ,er 1 - F ifvre
z
Mp;,l+ i,i re cordc O4.b o- le si 4 - #, ij
-/ 7 1 k /‘os€. z Yegc.iifeinewt
cO# abi
Previous violations A/a vle..
Dateofrequirement 3(171 ? Dateof inspection A/IA
Date of compliance si 0 / 9 Explanation (1? appropriate):
1. Days of noncompliance________________
2. Number of tanks_____________________
PART 2. ECONOMIC BENEFIT COMPONENT
,VIA
0
Al/A
Bas : o recôptl k .i@ #y nc (‘j , g
Source:
Source:
AVOIDED = rAvold.d + Avoided x lntsrsst x Numbefl x (1 . Weighted Tax Rate)
COSTS Expenditures EXD.ndlturss of Days
L 3S5Days
C-19

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OSWER Directive 9610.12
UST PENALTY COMPUTATiON WORKSHEET
DELAYED COSTS = Delayed ExDendftures x Interest x Number of Dave
365 Days
4. Calculated Delayed Cost:_______________________
5. Economic Benefit Component: I () (carry figure to Lk e 16).
(Line 3 + Line 4)
f PART 3- MATRIX VALUE FOR THE GRAVITY-BASED COMPONENT
Potential for Harm: Pll4jor Extent of Deviation /II4JO(
6. Matrix Value (MV): I I 6?70 (from document page 16 or Append A)
7. Per-tank MV: .1 / O 0 (if violation is per facility, the amourn on Line
(Line 2 x Une 6) be the same as the amount on Une 6)
7 will
PART 4- VIOLATOR-SPECIFIC ADJUSTMENTS TO MATRIX VALUE
Percentage x Matrix = Dollar
Change Value Adjustment
( + or 4 ( + or -1 Justification for Adiustment :
Q 1er reqv.ecCec ” ieq hc
8. Degree of ccoperation/ ‘1L bel ‘ ‘a r
noncooperation + 15Z)O fS7 ) ii #C
9 Degree of willfulness ey’peared i
or negligence: . 1 DO r______ C.IIV&P71 QC a’
io v?ëL o
10. History of
noncompliance: 0 f O 0 ,j f,q
11. Unique factors: C) C
12. Adjusted Matrix Value
(Lini7 + Lines 8-11)
C-20

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OSWER Direct ie 9610 12
I UST PENALTY COMPUTATiON WORKSHEET 1
J PART 5. GRAVITYSASED COMPONENT
I
Level of
Environmental Sensitivity______________ Justification : coda ‘—vlpdcl’
Seve,-a( dr ‘,.q . ir&a’ &s&Ls
o rifrer b
13. ESM (from document Page 21) - o ti aa d i (“k
44 ..s o of d ts .t& t
14. DNM (from document Page 21) /
Environmental Days of
GRAVITY .BASED COMPONENT = Adjusted Matrix Value x Sensitivity x Noncompliance
Multiplier Multiplier
GBC i =
15. Gravity-Based Component: . Lj57)(7
(Line 12 x Line 13 x Line 14)
PART 6 - INITIAL PENALTY TARGET FIGURE
16. Economic Benefit Component 0
(from Line 5)
17. Gravity.Based Component $‘ t5OO
(from Line 15)
18. Initial Penalty Target Figure ‘f G ) C
(Line 16 + Line 17)
Thi’i X T4rqet -far
V’0 1 c 4 ’ ’ I r Vi ’O I4  2 ( Q”1 ‘..3
= + $ 3S, ‘3(, 4 i /(,, ( gI’1
SIGNATURE______________________________ DATE__________
C .21

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OSWER Directrie 9610.12
I EXAMPLE4 p
BACKGROUND
on Date: December 15, 1991
Facihtv Name ar’c Description : Jerry’s Gas and Grocery is a medium-sized facility in a commercial section
of town. The fac y has 4 USTs, 3 of which were stalled in 1968 and one in 1989. It was estirr d that
the company’s taxable income was $70,000 in 1990.
Violation On October 16, 1991, the Agenc i iscovered that Jerry’s Gas and Grocery nad a release At
the me of the release, an adequate method of release detection was not in use at the facility, constituting
a violation of 40 CFR section 280.40(c) for the 3 tanks installed in 1968. The Agency sent written
notification (after informing the owner of the release by telephone) of the release to the facility and
requested, among other things, that the facility report evidence of financial responsibility within 30 days.
While conducting a file review on December 15, the compliance staff observed that the facility had failed to
report this evidence, in violation of 40 CFR section 280.106(a)(1). A site Inspection conducted orcthes daze
indicated that an adequate method of release detection was still not in use.
Owner/Ooerator Resoonse : When notified of these violations, the owner submitted evidence that he had
acquired a letter of credit from a bank to mee’ the FR requirement and began to conduct inventory control
and daily monitoring immec ate v, and arrar - r tank tightness tests. The owner, however, had failed to
initiate corrective actions (be. .nd the initial acazement measures) for lack of fza,ds. The owners failure to
report his financial assuranc: mechanism within the required time period, therefore, delayed the contacting
of the bank and the coIlec , of funds with which to initiate corrective action.
Previous Actions at Facility : In 1989, the facility was assessed penalties for failure to notify the Agency of
the new UST installation.
Current Status at Site : Because an adequate method of release detection was not in operation, the
release went undetected for a matter OT months. The geology in the area of the facility is fractured shale.
The facility is located in a commercial area. There are no drinking water wells or sensitive wildlife receptors
within a 5-mile radius of the site.
PENALTY CALCULATiON DATA
ViolatIon: 40 CFR section 280.40(c)
Days of violatIon. 358 days, from the latest required date of compliance (December 22, 1990) to the
actual daze t compliance (December 15, 1991).
Avoided expendItures: $2455 total = $895 labor for 358 days, at $2.50 per day (estimated cost for labor
needed to conduct daily inventory control based on 1/2 hour labor at $5.00 per hour) + $1560 for
tightness testing for 3 tanks (where the average cost for tank tightness testing is $520 per tank).
Delayed expenditures: None.
Interest rate: 18.1% (the equity discount rate used in the BEN model for 1991).
Tax rate: 18% (the weighted average rate for a company with taxable income of $70,000).
0-22

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OSWER Direcvve 9610 12
PENALTY ’ CALCULA11ON DATA
VIolation: 40 CFR section 280.106(a)(1)
Days of Violation: 30 days from the latest required date of compliance (November 15, 1991) to the actual
date of compliance (December 15, 1991).
Avoided expenditures: $8219 = Amount of interest avoided on $1,000,000 letter of credit because of
failure to provide the Agency with evidence of financial responsibility (based on 30 days of interest at 10%,
the rate charged by Jerry’s bank for letter of credit drawdown),
Delayed expenditures: None.
interest rate: 18.1% (the equity discount rate used in the BEN model for 1990 and 1991).
Tax rate: 18% (the weighted average rate for a company with taxable income of $70,000).
[ NOTE: The numbers used to determine avoided and delayed expenditures were chosen for convenience
only. They do not necessarily represent true costs in any State or Region in the country.J
C-23

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OSWER Directive 9610.1
I UST PENALTY COMPUTATiON WORKSHEET
Assessments for each violation should be determined on separate worksheets and totaled. (If more space
is needed, attach separate sheet.)
j PART I . BACKGROUND
Company name :7 rr , . Oas e 6ce 7
Regulation violated . iO ‘10 (a V 1 ) -
;/ jre - -
Ii&ve refc ce d kc k i
b y côsipI’ vu .e .
d(t2. (,2./’zl
/g
Previous violations /Jô c i’fov (i’c - It’)2S 4 S5e s sed h
- iI .’r e -1 v ôi55 ô , e i’ 057 hov .
Date of requirement /Q/22 ./’?0 Date of inspection / fi /‘g /
Date of compliance I / / / 41 Explanation (if appropriate):
1. Days of noncompliance 35 .
2. Number of tanks 1 (a,’ 3 J (o,i/q ‘i/’. teqv#r reiet se
d c’)
II PART 2- ECONOMIC BENEFIT COMPONENT
pe’- ci y i r n’ø#”4r.,t - 3
Avoided Expenditures i 2 Basis: i O per L)51 ç j
Delayed Expendrtures N IA Basis: i
Weighted Tax Rate p. i (iq ‘ i ) Source: ku ‘7R / r f . 9’O OOO
Interest Rate (51 (/5 I Source: RCA) ,viadd i i ,a )
AVOIDED = EAvolded + AvoIded x Interest x Numbefl .x (1 . WeIghted Tax Rate)
COSTS I Expenditures Expenditures of Days I
L 365Days
S5- • qs-s- , Y (i - /
3 Calculated Avoided Cost:_________________________
C-24

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OSWER Directive 9610.12
I UST PENALTY COMPUTATION WORKSHEET
I
DELAYED COSTS = Delayed Expenditures x Interest x Number of Days
365 Days
4. Calculated Delayed Cost: C
5. Economic Benefit Component: ,1”r 2 ‘3 9 0 (carry figure to Line 16).
(Line 3 + Line 4)
PART 3. MATRIX VALUE FOR ThE GRAVITY.BASED COMPONENT
I
Potential for Harm: ill 4/Of Extent of Deviation IY1 2j or
6. MatrLx Value (MV): f 0 (from document page 16 or Appendix A)
7. Per-tank MV: ‘ “/50 (if violation is per facility, the amount on Line 7 will
(Une2xLine6) bethesameastheamountonLine6)
Q PART 4. V1OLATOR .SPECIFIC ADJUSTMENTS TO MATRIX VALUE
Percentage x Matrix = Dollar
Change Value Adjustment
1+ or -) ( + or - Justification for Adjustment :
8 Degree of cooperation/ eoPV7pited as ,eq -recI
noncooperation ____ 4’15V0 _____ (4 OV7
9. Degree of willfulness
or negligence: _______ - 1 W5V0 IA
10. H storyof Pi-e.v ,o’is ‘, oI4 4 cV1
noncompliance: 30 9 o - “1SVO / ‘3 50 ‘ 1 t.i (IS ’ “J pe ia 14 . € S
11. Unique factors: 0 ‘1 5t 0 0
12. Adjusted Matnx Value ______
(Line 7 + Lines 8-11)
C-25

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OSWER Directive 9610 12
UST PENALTY COMPUTATION WORKSHEET
f( PART 5- GRAVITY-BASED COMPONENT
Level of
Environmental Sensitivity j41,of.erj.) Justification: ‘e(j’a5e ‘ uS f,i_e6 i v ii iie
r -4 4 ,..
?oCj 4 ’ 4 J l 1 PAd e # êki LflfVb1&4 -4e1*
13 ESM (from document Page 21) / - ;s 4 J* o 7 k F ”- °
A .n b1 , ô4 .-s ,.e. prese’ -4
r, c vr S 4z jô 1. c pLc f
14 DNM (from document Page 21) .S
Environmental Days ot
GRAVITY-BASED COMPONENT = Adjusted Matrix Value x Sensitivity x Noncompliance
MultiplIer Multiplier
‘ 2.S ‘ /, ‘738
15. Gravity-Based Component 1I I, g g
(Line 12 x Line 13 x Line 14)
PART 6. INITIAL PENALTY TARGET FIGURE
16 Economic Benefit Component 1 ‘ ? ?O
(from Line 5
17 Gravity-Based Component - ,
(from Line 15)
18 Initial Penalty Target Figure  2’1 O
(Line 16 i Line 17)
SIGNATuRE_______________________________ DATE
C -26

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OSWER Directive 9610 12
I UST PENALTY COMpUTA11ON WORKSHEET I
Assessments for each vfoiation should be determined on separate worksheets and totaied. (If more space
is needed, attach separate sheet)
I PART I . BACKGROUND —it
Company name .T, r rcf s p 6 r
Regulation violated ‘i/O cec i O. I O (a ’ - Fa i’f re - p
v pôrL’- V;C(- ,7 L O1c 1’ 1a 1c r4l aS&.rar g..jr’I4 ,,i 3Q
da ? c I; c ‘er -; n r ( eas e
Previous violations A I,i h ,a , ‘,wi (i - r p1 a ( 4 e. a cc e sc €1 -
- - i Ic, e /v i t o oi ,‘e ) O 1’ ;‘ts-4- I1 ’aY 1
Date of requirement ii Date of inspection , /,c hi
Date of compliance / ‘ (I 5 /‘?( Explanation (if appropriate):
1. Days of noncompliance 30
2. Number of tanks__________________
II
Avoided Expenditures % 3 c I’ ?
Delayed Expenditures 0
Weighted Tax Rate 0 .
Interest Rate 0. ivy’ (ia., 2. )
II
Av i ( d i#i4Cr4St 1uIô.J4 h’, ,e h ei
Basis: Y .11, OX O Ie (kr rf ., 4 ed,# t r 3c.
Basis: ,iJ
Source: 1V11R a $‘ t OO
Source: gEA) , iodd (? di co vt
3. Caiculated Avoided Cost:
r .1
• PART 2- ECONOMIC BENEFIT COMPONENT
(5
AVOIDED = voIded + Avoided x Interest x Numbefl x (1 . Weighted Tax Rate)
COSTS J Expenditure. ExDlnd ltures of D iv .
L. . 3UDay .
‘C
.I ’ 1 &S’ O
C-27

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OSWER Directive 9610.12
F UST PENALTY COMPUTATiON WORKSHEET
I
h
DELAYED COSTS = Delayed Exoendltures x Interssl x Number of Days
365 Days
4. Calculated Delayed Cost: E)
5. Economic Benefit Component: I ( 0 ‘tO (catty figure to Line 16).
(Line 3 + Line 4)
PART 3. MATRIX VALUE FOR ThE GRAVflY-BASED COMPONENT
Potential for Harm: /1’7od€r(tt Extent of Deviation MaJOr
6. MatrtxVaiue(MV): $ ‘ 5t2 (fromdocumentpagel6orAppend ixA)
7. Per-tank MV: - ? go (if violation is per facility, the amount on Line
(Line 2 x Line 6) be the same as the amount on Line 6)
7 will
PART 4 • VIOLATOR-SPECIFIC ADJUSTMENTS TO MATRIX VALUE
II
12 Adjusted Matrix Value
(Line 7 + Lines 8-11)
Percentage
Change
( + or4
xMatr ix
Va lue
= Dollar
Adjustment
( + or - Justification for Adjustment :
A41p I ed a eq .’irecJ
p t o (l if J ‘1 O ) 7
8.
Degree of cooperation/
noncooperation
0
9.
Degree of willfulness
or negligence:
P
1’ ‘ 5V
0
10.
Histoly of
t 302o
1’ 50
S-
noncompliance:
11.
Unique factors:
0
1 57L)
O
Pie vi ( 4i v1
i ivo! 1r’tj per’ (k .S
C-28

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OSWER Directive 9610.12
I UST PENALTY COMPUTATiON WORKSHEET I
PART 5. GRAVrW.BASED COMPONENT
Level of
Environmental Sensitivity i4f,ic.LLrd , Justification: Re(ea e ,.s ,‘ôi’ /i ( ,‘
/, v i• i pA c# o i qro tcI or
* r 14
13. ESM (from document Page 21) / 6 ;. A
- pot4 ‘1*4) , 4-, ,ec 1 O fS a ,-e .
14. DNM (from document Page 21) / 0 PICSCP’$. eAc4sted s 1 iic ‘sii
o,vsc f2 ,ewred,
Environmental Days of
GRAVITY .BASED COMPONENT = Adjusted Matrix Value x Sensitivity x Noncompliance
Multiplier Multiplier
15. Gravity-BasedComponer*:
(Line 12 x Line 13 x Line 14)
PART 6. INITIAL PENALTY TARGET FiGURE
16. Economic Benefit Component . ( ‘ /0
(from Line 5)
17. Gravity.Based Component / 1 1 (
(from Line 15)
18. Initial Penalty Target Figure 30
(Line 16 + Line 17)
i c,.i- 1 J rn 1 ) e 15 T r .e# -far rvc y
= V 0 ( 0 i -1 Vio( 4 ov #2
= •+ 3O
=
SIGNAT1JPE_____________________________ DATE
C.29

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OSWER Directive 9610.12
E !LE T.
BACKGROUND
inspection Date : January 8, 1990
Facility Name and Description : The Mammoth Oil facility located at 345 Pine Street has 5 USTs and is
owned and operated by Mammoth Oil Company, a national petroleum marketer with taxable income over
$335,000.
Violations : Upon inspection of the facility, the Agency discov red that 2 new bare steel USTs were
installed on November 15, 1989 without cathodic protection. This omission constituted a violation of 40
CFR section 280.20(a)(2)(d). The tanks failed to meet the performance standards specified In section
280.20(a)(2)(ii), or any of the codes or standards outlined by the regulations as acceptable for compliance.
Owner/Operator Response : When notified of the violation, the company’s attorneys asked to enter into
negotiations to determine the schedule and terms of compliance, as well as any penalties that might be
assessed. The result of the negotiations was a consent order in which the owner agreed to install property
designed cathodic protection (in accordance with the National Association of Corrosion Engineers
Standard RP .02-85) and pay the penalty by March 1, 1990.
Previous Actions at Facility : The facility was issued a notice of violation in 1987 for failure to notify the
Agency of a new UST installation. In 1988, the company was issued two administrative orders, one
compelling remediation of a release and the other assessing penalties for failure to report the release to
the Agency.
Current Status at Site : At the time of the inspection, the facility was conducting a method of release
detection in accordance with the requirements. The Agency determined that It was unlikely that there was
a release at the present time. The geology in the area of the facility is gravel. The facility is located in an
urban residential area. There are no drinking water wells or sensitive wildlife receptors within a 3-mile
radius of the area.
PENALlY CALCULATiON DATA
VIolation: 40 CFR section 280.20(a)(2)(ii)
Days of violation: 105 days, from the required date of compliance (November 15, 1989) to the actual date
of compliance (March 1, 1990).
Avoided expenditures: None.
Delayed expenditures: $3,050 x 2 USTs = $6,100 (where the average cost for installation of a cathodic
protection system is $3,050 per UST).
interest rate: 18.1% (the equity discount rate used in the BEN model for 1990).
Tax rate: 34% (the weighted average rate for a company with taxable income of $335,000).
[ NOTE. The numbers used to determine avoided and delayed expenditures were chosen for convenience
only. They do not necessarily represent true costs in any State or Region in the country.J
C-30

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OSWER Directive 9610 12
UST PENAI.TY COMPUTATION WORKSHEET I
Assessments for each violation should be determined on separate worksheets and totaled. (If more space
is needed, attach separate sheet.)
0 PART I . BACKGROUND
Company name ‘141,,-/ t (oi ipa
Regulation violated ‘ ‘O € ô o ? ) ( - , f e .,L 0
-eL# pCr-4 rft1 vi . S4 ,d rch ,‘ ca , di p’ Ld
Previous violations
. c bid #i i a
(Ig - t,
;M IS 4
ord&s iss v.e
( , e I
c .I ii c. p 4 i g
e,1a . /, e
Date of requirement
Date of compliance
ii /6 fcg
Date of inspection / /‘ /f
.
3/1 / TO
Explanation (if appropriate):
1. Days of noncompli
2. Number of tanks’
ance________________
2
0 P 2. ECØNOMIC BENEFIT COMPONENT
Avoided Expenditures Al
Delayed Expenditures  ( 1100 Bees: ( L OS1 i ,r C4 0 d ’ pi . kcv
Weighted Tax Rate C. t (3 h/ ‘i. ) Source: 17R r , i vvtL ) 1 3 S OC
Interest Rate (/ . / ‘7 . Source: SEA) r,i&üI ii ’g c.#7 d i . s Cd k--’ ,‘
AVOIDED = rAvold.d + Avoided x Interest x Numb.fl x (1 - W.ighted Tax Rate)
COSTS Expenditures ExDendltures of Days
L_ 3650ays —J
3. Calculated Avoided Cost:_______________
C-31

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OSWER Directive 9610.12
I UST PENALTY COMPUTATION WORKSHEET
DELAYED COSTS — Delayed Expenditures x Interest x Number of Days
365 Days
D c. . ic ,oc
4. Calculated Delayed Cost: 31$
5. Economic Benefit Component: $ 31 (carry figure to Line 16).
(Line 3 + Line 4)
It PART 3. MATRIX VALUE FOR ThE GRAVITY-BASED COMPONENT
Potential for Harm: Yklôde rrte Extent of Deviation /floder
6. Matrix Value (MV): i SO0 (from document page 16 or Appendix A)
7. Per-tank MV: I 000 (If violation is per facility, the amount on Line 7 will
(Line 2 x Line 6) be the same as the amount on Line 6)
II PART 4. ViOLATOR-SPECIFIC ADJUSTMENTS TO MATRIX VALUE
Percentage x Matrix = Dollar
Change Value Adjustment
( + or 4 ( + or .1 Justification for Adiustment :
co.,p ’ i veed 1 D
Degree of - operation/
noncooP€ on 0 vl li’d c i pe ia
#iori a , r k 4 r 5, ( 1 .4
9 Degree of willfulness
or negligence: 50 o / 1000 1500 “° ‘ ‘ c ‘- e fJ
.,‘iie ,eqciv’ewleslS
10. History of Prev,o ..5 v’ (4 . 1 wi
noncompliance: ‘ / /000 _______
11. Unique factors: 0 ic ’oo 0 —
12. Adjusted Matrix Value 1 OOO
(Line 7 + Lines 8-11)
C-32

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United States 0ffICC 01
Eni ,onmentaI Protection Saiiø Waste and
Agency Emergency Pesoonse
iE PA DIRECTIVE NUMBER: 961.0.12
TITLE: U.S. EPA Penalty Guidance for ‘?icilations of
UST Regulations
APPROVAL DATE: NOV 14 1990
EFFECTIVE DATE: NOV I 4
ORIGINATING OFFICE: Office of Under ound Storage
Tanks (OUST)
FINAL
o DRAFT
STATUS:
REFERENCE (other documents):
OS ER Directive 9610.11 “TJSTI LUST nfor:e ri
Procedures Guidance Manual’
Os
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Os
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‘E
DIREC
TI
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DIREC
TIVE
UST/E/90- 2

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&ER4 OSWER
Uthied States Erivrenmentai Protection Agen
Washington. DC 20460
Directive Initiation
2. OrigInator Information
C
Request
1. Directive Numbs
9610.12
‘
NameofCofltaCtPir$On
Josh Bavlson
Mad Code OffIce
OS—420 I OUST
Telephone Code
I 475-9725
3T itIe
U.S. EPA Penalty Guidan
for Violations of UST Re
gulations
4 Summary of Directive tinc:ude nef statement of purposci
Provides guidance to U.S. EPA Regional Offices on calculating civil penalties against
ownersfoperator f underground storage tanks who are in violation of the UST
technical standards and financial responsibility regulations.
5 Keyworos
i.inderground storage ta
5iDoes -ective Superseae Pre’v - . -
r . ent, penalties
No Ye
What directive (number, title)
b Coes It Supplement Previous 3,rpct,ve(5) No
UST/LIJST Enforcement Proceaures Guidance Manual
What directive (number. title) 9610.11,
7 Draft Level
A — Signed by A.AIDAA B — Signed by OffIce Director C — For Review & Comment
0 — in Development
8. Document to be distributed to States by Headquarters? E Y.
No
I I ’. Request Meets OSWER Directives System Format Standards.
9 Signature at Lila Cfice Directives Coordinator -
I
Dale
-. -.
-
Beverly ‘ :-‘as._ ST_Directives_Coordinator
10 Name an Title f Apprc .ng Official
Date
2..-, /
‘ onald Brand, Director, OUST
EPA Form 131$-li (Rev. 5-si) Previous editions are csolete
Os
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S
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VE
DIRECTIVE
DIRECTIVE
.
DIRECTIVE

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.10 p., ,
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
(,.; 1 1Z 1 WASHINGTON, D.C 20460
4( 11 Q%t
OFFICE OF
AUG 7 199) SOLIO WAStE APIO E IERGENCY ESPO ISE
OS IER Directive 9610.U
ME 1ORANDUM
SUBJECT: Final UST/LLST Entorcernent Procectures Uuidance Manual
FROM: Ronald Brand, Director
Office of Underground Storage Lanks
TO: aste ‘lanagement Livision Directc ’rs,
Regions L-lIi, ‘ -l\
Water Div .sion Directors. egio s 1 , \
As you knoi , promoting compliance ‘ ith the 151’ re ulac ons
s a cruc:ai element in implemen::ng toe national L T program.
tost States are actively conducting conpLiance and enforcement
activities. Hoi ever, there has oeen recent concern that EPA
needs to increase ts Federal enforcement presence. nartcutarlv
for enforciri; againsP ‘iolations or the release .ietection
require’ne:ts.
The atta:neci LSI/LLS ’ Enrorceme z “rocertures Liuidance
M nua ’ rovi es guiiance to e;Lonai ersonrsel on taking
enr o:- ,-ernenr. acrtnns against LSr o’ ner/zneratcrs .n ioiate the
eier i i_ST regulations. this ersion tr co:pora: .?s th conments
that t:ere rece ived on the draft m. r.ti. ’tl. the mant.a. is intended
to accompaiv the upcoming 1. . EPA ennitv t . uidar.ce for
V olattons or i_sr gu att n WS ER t)ir .:ti ’e
The manual provides an over%t t. of c LS1’/L eniorcemenr
program an dIs II s s sitj. rInns in ( ch gton er.torcem nt
rpnnses are ‘. rrant d. It also disc cses tr,e t ctors to be
nc1ri,r,.(I 1 1 i1e.rm ntn rhe Appronrla?e i— e [ 0 enrorCe’1D rt
ion. ar’.i i-1ec-r h’ s rh r- nt e c e ’ ror ’’ eent r oonse3 that ma’
‘e t ’t 1. t”l’? ‘n 1nU I! .iI -i roviries mor’ th ta:I ’ g’IIIlance n
; Ilh -on,iL I . rv’e rJrdrlrs j •—Ipi j c oi re i e a ’t icn
I c ’ • . n ‘i i i i t I n t g 1 :il I f 1 1 I C ‘
UST/E/90-1

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rhe enforcement techniques desr ’3e : - mc C
iac are presentiv being useo in me e: I5 2
techrucal regulations have only been : eE:ec-t r3r
sh rt peri o of time , UST enr rce.,ient 3ta hate i t 3C
. poortunitv to develop different enforcemen: tech ues.
- c .ever, as the Regional e perier.ce .rt ent’ rc r ’; ag’.Lns :
•.: ations increase, processes will be improved and re ed o r
:ine. Therefore, EPA will review and modify this dance ea:i
year, as appropriate, to keep it current with new nformat:on -.:
changes to the program.
Attachment
cc. LST Regional Program Managers
LST Regional \ttorneys

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Jnieo Scairs i
E.e,iI!,. .saI 5c WJI1, a.
. 9eflCv ew0VIs•
E PA DIRECTIVE NUMBER: 9610..1
TITLE: US /LUST FOr CEMEN PROCEDURES
G I ANCE NUAL
APPROVAL DATE: 7/17/go
EFFECTIVE DATE: 7/17/go
ORIGINATING OFFICE: Of ce o UnaerqLc
Storage Tartks 3U T
FINAL
DRAFT
STATUS:
REFERENCE (other documents):
QSWER QSWER OSWER
E DIRECTiVE DIRECTIVE L

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- ,rtti SLatel rr1 1 p.aI ;- con - , ‘. :
d’% r A :: zc ao
OSWER Directive Initiation Request
2 Orlginitoe
N
em. :1 t tiCt Pwsø i
W Ll .ams
MiiI Coc.
S—42O
Mce
!p
: :_-:-:
3
r.
;‘:.L$T !nfor ement
procedures GuLdance
Manual
4
—t—ar rec:.e nc:t e “eI scat
t ;i. rO5I;
?rov es quL ance to EPA RegLonal enforcernent ersonnel on tak ng enf r:e—e .: 4:::
aga ns ST owner/operators who VLoLate e Federal ST :equ rements.
5 4rf...O’CS
der r r dstora e tanks. enfor:e ent
5a oes — I, 5C JivS Su it Ce ?g Iaus
No es WN.I ocr,ctrve Inumo .i:ei
Coes it SuooIcnenl P ., 1011 i CurvcTi e(st’ —
4o #JP t WiC C %rcumo* p1.)
i : ‘
- Siqn.e y ACAA X 9 — 5.çi ed y Ct c. Crec:or C — cor qiiuu’w & Covr unt - n C,.ue
8. Document to be distributed to States by Headquarters? 1
1 II SOue st i$e.U OSWER Olrectlvss System Pormat Stan arji
Scr’a:..re :r .eaa Irecr e3 Coocciriacor — , at•
I -
‘-‘cras. OC T :)lrectlves Cci rdi—a: r , / -
are aI’C c, ot .c;rov g C’!ciaj
:- : r2 d. irec or. OUST 7/17 ‘ C
SPA Porm c313-i? Riv. S-$7) P?q sOld$ S liiCfl$ are CSøiItI
OS
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DIRECTIVE
DIRECTIVE
DIRECTIV

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OSWER Cireci’.e
UST/LUST ENFORCEMENT PROCEDURES
GUIDANCE MANUAL
Ju’y 1990
LI S. Envtronmeriai Protection Agency
Office of Unøerground Storage Tanks

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OSWE Direc r e 5
NOTiCE
The procedures set forth in this document are intended solely for the guidance of U S. EPA
Regional enforcement staff. They are not intended. arid cannot be relied on. to create nghts.
substantive or procedural. enforceable by any party in litigation with the United States. The U S. EPA
reserves its right to act at variance with this guidance and to change it at arty time without puolic rtctice
ii

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QSWER Direc e 6’C”
TABLE OF CONTENTS
CHAPTER 1. OVERVIEW OF USTIL.UST ENFORCEMENT PROGRAM
1.1 Purpose of the Manual
1 2 Overview of the UST/LUST Enforcement Program 2
1.3 Regulations of USTs under Subtitle I 4
1 3.1 Summary of the Technical Standards Rule 4
1 3.2 Summary of the Financial Responsibility Rule
1 4 Release Response Program Under Subtitle I a
1.4.1 Release Response Authorities -
1 4 2 State Role in the LUST Trust Program
CHAPTER 2. SITUATIONS APPROPRIATE TO REGIONAL
ENFORCEMENT ACTiONS
2.1 Actions Taken in States With Inadequate Enforcement Authority 0
2.2 Actions Taken in Approved States . .
2.2.1 Actions Taken in States Without
Administrative Penaity Authority .
2 2 2 Cooperative Actions Against Violators 1
2 2.3 Actions Taken in Response to a Major
Public Health or Environmental Emergency 2
2 3 Actions Taken on Indian Lands . . 12
2.4 Actions Resulting From Program Overlap . 2
CHAPTER 3. ENFORCEMENT CASE DEVELOPMENT
3 1 Overview of Enforcement Tools
3 2 Factors to Consider in Determining Response Level 4
3.2.1 Severity of the Violavon 5
32.2 Circumstances of the Violation . . .. S
3 2.3 Information About the Owner/Operator 5
3 3 E fcrcemern Actions for Violations of the Technical Regulations . . . S
3 3 1 Information Request .. . . . .. 5
3 3 2 Warning Letter/Notice of Violation (NCV) . .
3 3 3 Administrative Compliance Order .. . . . . ‘3
3 3.4 Judicial Actions . . . .
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TA QF CONTENTS
Continued)
3.4 Enforcement Actions for Release Not Reported by M Owner/Operator 19
3.4.1 Information Request Letter/On-Site Inspection 20
3.4.2 Notice of Violation 20
3.4.3 Corrective Action Order 21
3.5 Enforcement Actions for Owner/Operator-Reported Releases 21
3.5.1 Acknowledgement/lnformation Request Letter 24
3.5.2 Corrective Action Letter 24
3.5.3 Compliance Order 24
3.6 Alternative Enforcement Tocls 24
3.6.1 Show Cause Meetings 24
3 6.2 Informal Settlement Cor erenca 25
CHAPTER 4. PROCEDURES FOR SECTiON 9006 COMPUANCE ORDERS
4 1 Framework of the Administrative Process . . 26
4.1.1 Statutory and Regulatory Framework 26
4.1.2 U.S. EPA Roles in the Administrative Process
4 2 Overview of the Administrative Process
4 3 Complaint Preparation and Filing 28
4 4 Pre-rieanrig Stage . 29
4 4 1 Procedural Requirements for tN e-hearing Stage . . 29
4 4 2 Answer to me Complaint ... 30
4 4 3 Pre -P ieanng Motions . 30
4 4 4 Default Orders . 31
4 4.5 Pie-hearing Conference . 32
4 5 Settlement 33
45 1 Procedures for Negotiating a Settlement 33
4.5.2 Prepanng a Consent Order 33
4 6 Hearing Stage 34
46.1 Admissable Evidence
4.6.2 Objections and Rulings . 35
4.6.3 Transcript of the Hearing 35
4 6 4 Proposed Findings. Conclusions, and Orders . . 35
4 6 5 irirtial Decision . 35
4 6 6 Appeals of Interlocutory Orders 3i Rulings . 36
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TABLE OF CONTENTS
(Continued)
4 7 Post-hearing Stage
4 7 1 Appeal of Initial Decision 36
4.7.2 Final Order 37
48 Cost Recovery Actions
CHAPTER 5. PROCEDURES FOR SECTION 9003(H) CORRECTiVE ACTiON ORDERS
5 1 Framework of the AdministratNe Process
5.1.1 Statutory Background
5.1 2 Regulations Governing Administrative Actions
5 1.3 The Agericys Roles r i the Administrative Process
52 Overview of the Administrative Process - 41
5 3 Preparation arid Filing of the Initial Orcer .
5.3.1 Elements of the Order . 42
5 3 2 The Administrative Record . . . . 42
5.3.3 Ex Parre Discussions - 42
5 4 Pre-lieanng Stage
5.4.1 Request for Heanng
5 4 2 Pre-hearirig Submissions
5 5 Settlement Conference . .. . .
5 6 l- earing Stage ... . . .. ..
5 6.1 1-leanrig Procedures . . .. .
5 6 2 Presiding Officers Recommendations 45
5 6.3 Final Order . . 45
CHAPTER 6. PROCEDURES FOR JUDICIAL ENFORCEMENT
6 1 Cvii Judicial Actions 46
6 11 use of Judicial Compliance Orders and Penalties . 46
6.1.2 Procedures for Filing Judicial Actions 45
6 2 ln unctlve Actions 48
6.2.1 Temporary Restraining Orders .... .. 48
6.2.2 Preliminary Injunctions . .. 48
6 2.3 Permanent Inlunctions 49
5 3 Settlement Agreements
5 4 Criminal Actions
BIBLIOGRAPHY
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OSWER Direc e 96
CHAPTER 1. OVERVIEW OF THE UST/LUST ENFORCEMENT PROGRAM
The Hazardous and Solid Waste Amendments (HSWA) of 1984 added Subtitle Ito the P.esct. rca
Conservaticn arid Recovery Act (RCRA). Subtitle I established a national regulatory program for tre
control of underground storage tank (UST) systems used to store liquid petroleum or chemicals defir.ec
as hazardous substances. 1 In addition, the Superfurid Amendments and Reauthorization Act of 1986
(SARA) established a response program for releases of petroleum from USTs and created the leaking
underground storage tank (LUST) Trust Fund. In both the regulatory arid release response programs
the U S. Environmental Protection Agency (the U.S. EPA. or the Agency) is encouraging States to
develop and implement their own programs in lieu of the Federal program, provided that a State has
regulations that are no less stnngent than the Federal regulations and can take adequate enforcement
actions. States that nave fulfilled the State program approval cntena will have primary responsibility cc
enforcing against owner/operators suspected of violating UST requirements (although. prior to aocroval.
States may already be taking actions against violatont of the existing State regulations). Furthermore.
States may respond to releases and may access the LUST Trust Fund provided they have
demonstrated sufficient capability and have negotiated Cooperative Agreements with the U.S. EP& In
s re cases, however, States may require assistance from the U.S. EPA in taking enforcement actions
1.1 PURPOSE OF ThE MANUAL
The purpose of this manual is to provide guidance for enforcement personnel on undertaking
actions in response to violations of UST technical regulations and corrective action requirements. it s
intended to accompany the draft U S EPA Penaftv Guidance for Violations of UST Regulations . w icri
provides guidance for U.S. EPA Regional enforcement stat? on calculating administrative penart:es 0 :e
assessed against violators of the UST regulations.
This manual is intended pnmanly for use by U.S. EPA Regional offices that need to take
enforcement actions in States with or without approved programs. However, it may also be used y
State program officials who wish to develop State enforcement programs similar to the Federal prc ram
The manual generally deals with violations and releases irivotving USTs containing petroleum, althougn
USTs containing hazardous substances we bnefly addressed in Chapter 2. it is organized as follows
• Chacter 1. OveMew of the UST/UJST Enforcement Proqram , provides
background iformation on the USTItUST program philosophy, including the
franchise management approach. it aiso provides summaries of the UST
regulations under Subtitle I and descnbes the LUST response program.
• Cha er 2. Situations Aporopriate to Recisonal Enforcement Actions , discusses
situatIons in which U.S. EPA Regional enforcement response would be
w$gTaflted, including actions in States without necessary enforcement authority
and on Indian Lands. The cflaper aiso addresses th issue of program
overlap.
Section 9001(1) of RCP.A defines underground storage tankS as ‘any one or combination of
tanks (including underground pipes connected thereto) which is used to contain an accumulation of
regulated substances, and tne volume of whiCh (including the volumes of the underground pipes
connected thereto) is 10 percent or more beneath the surface of the ground.’ Regulated substancQs
include CERCLA hazardous Substances (other man RCRA hazardous wastes regulated under SLCt e
C; ;ius petroleum, including crude oil anc uSed Oil.

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OSWER Direc r ie 96 C
• Chacier 3. Enforcemer’ Case C ogment . discusses the factors to be
considered in determining the aopropnate level of erforcemerit action, identifies
the different levels of action that enforcement personnel may take in response
to a violation, and descnbes the procedures for vanous initial enforcement
actions that may be taken in response to a violation or a release.
• Chaoler 4 Procedures for Section 9006 Cornoliance Orders , discusses in detail
the enforcement process for issuing Section 9006 administrative compliance
orders, and provides guidance on complaint preparat ion. processing answers,
and elements of the pre-heanng, hearing, and post.heanng stages of the
administrative litigationladjudicatory process.
• Chaoter 5. Procedures for Sec c’ 9003(h Corrective Action Orders , discusses
in detail the process for issuing Section 9003(h) corrective action orders,
provides guidance on order prec atatiOfl, and descnbes elements of the pre-
hearing stage, settlement conference, and heating stage of the administrative
litigation/adjudicatory process.
• Chanter 6. Procedures for Judic iforcement . discusses the judicial
enforcement process arc :xplai .e judicial actions that may be used for
violations of UST requtrer grits. ding temporary restraining orders.
injunctions, and judicial penalties.
1.2 OVER VIEW OF THE UST/1..UST ENFORCEMENT PROGRAM
Because of the size and nature of the regulated community, the U.S. EPA has developed a ncr-
traditional regulatory approach in which tne national UST program is implemented pnmarily at tr e S a e
and local levels. Presently, there are about vo million regulated UST systems in tiie country at over
700.000 facilities. Owners and operators of e facilities include large oil companies; inoependent
marketers and gasoline stations; Federal. SL and local governments; and other entities such as
trucking fleets and bus companies that use C leum in their businesses. A significant portion of tr s
diverse regulated community includes ire sir independently-operated service stations and
convenience stores that are accustomed to c e’ating with minimal environmental regulation. Unlike me
larger businesses, these smaller businesses may have difficuiry with compliance because of tfle r limitec
resources arid knowledge c i the Federal regulations. Furthermore, the regulation of the UST populamicr
is complicated by the wide array of recJatioris that address the life cycle of a tank from installation :o
Closure.
To handle the environmental threat posed by this large arid diverse community. the Agency r as
adopted the ‘frwichisV management approacri, in which U.S. EPA Headquarters and me Regions. as
rancnisers,’ support State anø local programs. the ‘franchisees.’ The Agency believes that because
State and local agencies have greater interaction with the regulated UST facilities, they are best acie c
provide the UST population with the technical assistance and attention necessary to ensure compliance
In addition. State and local agencies are better situated to assess the needs of the regulated
communiTy, respond to owner/operators, and create a visible presence in the regulated communit’
F r nermore, States have at their disposal a v- —‘oer of effective regulatory mechanisms (such as
building permits, fire codes, and some ntorr - ‘iforcemern tools) that are not readily availacle to e
Agency.
To implement the ‘franchise approach. 3. EPAs Office of Underground Storage Tanks (CLS
iS encouraging States to seek approval for acr-nislenng their own USTi1..UST programs ri lieu ci e

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_________________________________________________ OSWER 0’rec ’.e
Federal program. The Agency’s regulations for State program approval set forth at 40 CFR 281 s ec
tne requirements that a Slate must fulfill for approval to administer its LIST program (see also the S a e
P’ocram Approval Handbook). 2 In addition. States are authorized to respond to releases under —
Section 90030,) (7) of RCPA provided that they demonstrate capabilities to carry out these act.or.s arc
enter into Cooperative Agreements with the U.S. EPA.
An important component of an approved UST program is the States ability to take ‘adequate
enforcement’ responses against owner/operators found to be Out of Compliance with the regulations
Many State arid local programs have already developed enforcement programs and have achievec rtig
levels of compliance by providing infom ation arid technical assistance to ownerioperators in crcer o
prevent violations, and by carrying out informal enforcement responses when violations do occur ieri
though they may not yet have program approval, some States already have regulations similar to :re
Federal regulations (or may have broader pollution control statutes), and are taking formal enforcement
actions against violations of these regulations (or statutes). Furthermore, States that do not have ir e r
own regulations may have transition agreements that allow them to assist the Agency in taking ac icr’.s
against violators of the Federal regulations.
Enforcement actions taken by Slates, however, will not a’ways be sufficient to comp C’cmc arce
Thus. aithougri the U.S. EPA encourages Slates to develop arid undertake their own formal eriforcerrert
programs, there will be some situations in which ii may be necessary to transfer the case to the U S
EPA Regional office. In general, these situations fail into two program areas: (1) release. response, arc
(2) regulatory. The specific situations under which this may occur are discussed in Chapter 2.
‘Situations Appropriate to Regional Enforcement Actions.’
In responding to releases, Federal enforcement actions will be governed by the Ageric’ 1 s
Guidance for Conducting Federal-Lead LIST Corrective Actions (OSWER Directive 9360.0-1 6A. re
1988). This guidance specifies three conditions that must be present in an LIST release situatcn ri
order for Federal enforcement actions to be appropnate: (1) the release poses a malor public hea tri cr
environmental emergency: (2) the State or the owner/operator is unable to respond; and (3) the Sta:e
has requested assistance from the U S. EPA.
In the regulatory program, it may also be necessary at times for the Agency to take enlorcerl’ect
actions in States. For example, in the early stages of the franchise program, States will be in the
process of developing authorities arid regulations that are no less extensive arid stringent than tne
- Federal regulations. Dunrig this developmental period. however, a State may discover a violation cr
which it does not yet have tIle appropriate enforcement authority. In such a situation, the State,
perhaps after taking steps to encourage the owner/operator to come into compliance. may wish to re 1 er
tne case to the U.S. EPA. The Agency may also get invofved in a State enforcement case if it apcears
that me case could ablIslt a national legal precedent. In addition, a State may refer a case to tre
U S. EPA because the case is politically sensitive in that State (e.g., if the owner/operator is a malor
ousiness in that State or is a Federal facility). Because the U.S. EPA has limited resources for takr’q
enforcement actions, however, the Agency will use discretion in taking over cases referred from Sates
Furthermore, when the Agency does take enforcement action in a State, it must coordinate activites
2 State Program Approval Regulations. 40 CFR Part 281 (promulgated at 53 3721247.
Septemoer 23. 1988) and State Program Approval Handbook OSWER Directive 9650.8, Marcn 1989
On Indian Lands, however, Federal actions will be governed by Interim Guidance for ConcLc ’ -“
Federal.Lead US’!’ Corrective Actions for Releases of Petroleum on Indian Lands (OSWER 0irec e
96109 Jury 1989)
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OSWER Dsrecr,,e 9€i:
with me Stale in order to avoid possible duplication, to present a uniform approach to UST
owner/Operators, and to maintain State cooperation.
The specific procedures for initiating and accepting a referral wifl vary from State to State. Each
State/Federai enforcement agreement should specify the process for case referral (see U.S EPA’s
‘Policy Framework for State/EPA Enforcement Agreements,’ Office of Enforcement. August 1986) Once
a case is referred, however, Regional enforcement personnel should keep the State informed of the
status of the case. The U.S. EPA’s ‘Policy Framework for State/EPA Enforcement Agreements’ identifies
several ways in which the Agency can maintain State presence in a case, including:
• Taking joint State/Federal action, panicularty where a State has referred a case
because it lacks the necessary authorities;
a Using State inspection or other data in developing the case;
• Arranging for division of penalties with the State (if legally permissible);
• lnvoMng the State in creative settlements and in case development;
• Issuing joint press releases and shanng credit with the State; and
• Keeping States continually appnsed of events.
1.3 REGULATiONS OF USTS UNDER SUBTITLE I
Pursuant to Section 9003 of Subtitle I, the U.S. EPA established requirements for leak detec ion.
leak prevention, corrective action, and financial responsibility for USTs. These requirements were
finalized in two separate U.S. EPA rules: the UST technical standards and financial responsibility
rules.’ The discussions that follow summarize each rule. The purpose of these two rules is to reduce.
the number of releases of petroleum and hazardous substances from USTs, minimize the contamination
of Soil and ground water caused by such releases, and ensure adequate cleanup of contamination.
The requirements in these rules replaced the lrttenm Prohibition requirements for non-deferred tarilcs.
which prohibited the installation of new unprotected or bare steel tanks. However, Interim Prohibition
requirements will remain in effect for those tanks that have been deferred from coverage under the
technical standards rule (deferred tanks are listed in the preamble of the final rule).
1.3.1 Summary of the Technical Standards Rule
The regulations establishing technical standards for USTs emphasize leak prevention, detecticn.
and corrective action. The rule covers the following five areas:
• UST design, construction, installation, and notification;
• UST system operation and maintenance;
• Release detection and recordkeeping,
‘The UST Technical Standards Rule. 40 CFR Part 280. Subparts A through G. was promulgated
September 23. 1988 (at 53 FR 37082) The UST Financial Responsiblity Rule. 40 CFR Part 280.
Subpart i was promulgated Octooer 26. 1988 (at 53 43326)
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OSWER Directr e ;6’.
• Release reporting, Investigation, and corrective action: and
• Out-of-service UST systems operation, maintenance, and closure.
For the readers convenience, the following discussions provide a brief overview of the specific
requirements that an UST owner/operator must follow to be in compliance with the regulations.
However, it Should be noted that the following summary is ethausvve, and many exceptions apply
Specific requirements are detailed in the regulations.
LIST Design, Construction. Installation. and Notification (Suboert B) . In the technical standarcs
rule, specific requirements for both new and existing USTs are addressed separately. For new LiST
systems. the design, construction, and performance standards must meet approved industry pract.ces
New L ISTs are also required to have corrosion protection for tanks and piping (unless the site is
approved for noncorToslvlry). or be constructed of a non-corrodible matenaL In addition, tanks must e
equioped to prevent spills and overfills. Finally, all new tank installations must be performed accorthrig
to approved industry practices and manufacturers instructions, and certified by one of the method
listed in the rule.
The requirements for existing USTs emphasize tank upgrading. Existing LISTs must be either
c!csea. replaced with new tanks, or upgraded to new tank standards by December , 1998.
Upgrading requirements for existing LiSTs include tre following:
• Retrofitting tanks with corrosion protection or installing iritenof liners, or both;
- . Retrofitting metal piping with corrosion protection: and
• Installing spill arid overfill prevention equipment.
Notification requirements apply to both new arid existing USTs. Under the rule, the LIST
cwrer. operator is required to report the following information to the implementing agency tank ryce
ocation, age, use, and methods of compliance with requirements for installation certification, corrosion
protection. release detection, and financial responsibility. In addition, the owner/operator must notify ire
.mciementing agency if a tank is removed from service or has a change in use.
LIST System Qoeration and Maintenance and Repairs (Subpart C) . Operation arid maintenance
reQuirements ensure the proper performance of all LISTs and a iliary equipment through testing and
reccrdkeeoing practices. Requirements under the technical standards rule include proper operaticn.
—artenance. and inspection of spill and overfill and corrosion protection equipment, as welt as
ecorckeeping of perfonnance of the equipment listed above. The owner/operator must also be sure
:rie tank maxenaJ or lining is compatible with the substance stored in the tank. To ensure that repaired
STs are operating properly. alt LIST system repairs must be made according to approved industry
;ractices. Repairs are prohibited, however, for all metal pipe sections and fittings from whiCh product
ras ceen released; these parts must be replaced. All LISTs with repaired or replaced parts are required
to :e lightness tested to ensure tnat me LIST system IS operating properly.
e/ea.se Detection and Recorokeeping (Subpart 0 ) An approved method of release detection s
required or all new petroleum tanks arid piping at installation, and for all existing tanks and piping,
phased in over a 1. to S-year period according to the tank’s age. New LISTs containing hazardous
substances are required to have double-walled tanks and piping with interstitial monitoring for tanks
and piping. Release detection equipment for LIST systems must be installed, calibrated. operatec
anc maintained ri accordance with the manufacturers instructions. Recorakeeping regulations rec : e
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OSWER Directive 951C
the 1.1ST owner/operator to maintain records demonstrating the methods of compliance with
requirements for installation, corrosion protection, release detection, m a nen ce, and Records
must also be maintained on the performance of release detection and spill and overfill equipment.
Release ReDomnc. Irwestipation. and Corrective Action ‘Suboeir E and F) . Release reporting.
investigation, and corrective action requirements are designed to ensure a fast and appropnate
response to all suspected and confirmed releases from USTs Under the technical standards rule, an
UST owner/operator must report to the implementing agency within 24 hours Cf any release of regulated
substances at the site or in the surrounding areas, unusual operating condition of the tank or
equipment. monitonng results indicating that a release may have occurred, or Spills or overfill.
Suspected releases must be immediately investigated, and the owner/operator is required to begin
corrective action as soon as a release has been confirmed.
Initial release response actions required by the rule include preventing further release of the
regulated substance into the errvironmeflt, and identifying and mitigating any fire, explosion, and acute
vapor hazards. Within 20 days of release Confirmation, the responsible owner/operator is required to
report to the implementing agency on initial abatements steps taken and any resulting data, d ’ithin 45
days. the owner/operator must report on the initial site charactenzation and the free product r moval
efforts. If remediatson is necessary, the owner/Operator will also be required to submit a corrective
action plan for approval by the implementing agency.
Cur-cf -Service UST System Oosrarion and Maintenance and Closure (Suboarr C) . An
owner/operator of an UST taken out of service for lees than 3 months must continue all operation and
maintenance procedures. a tank is taken out of service temporarily (Le., for 3 to 12 months), the
owner/operator must also secure and cap all ancillary equipment and leave vent lines open and
functioning. Any tank that is taken out of service permanently (i.e.. for more than 12 months) and does
not meet new tank standards (for example, leak detection, corrosion protection, spill and overtill
protection requirements. etc.) must be upgraded to meet these new tank standards or be permanently
closea. For permanent tank closure, the owner/operator is required to:
Notify the implementing agency 30 days pnor to tank closure:
• Empty and clean the tank:
• Conduct a site assessment to determine if there has been a release
contaminating the surrounding area, and perform corrective action if necessary:
• Either remove the tank from the ground or flU it with an inert substance: and
• Close the tank to all Mute Outside access.
Prior to a change in service (e.g., continued use of an UST system to store a non-regulated substance).
the tank must be emptied and cleaned, and a site assessment must be conducted.
1 3.2 Summary of the FInancIal ResponsIbIlity Rule
The financial responsibility rule requires owner/operators of petroleum tJSTs to demonstrate
financial assurance of their abilities to undertake corrective action and compensate third parties for
bodily iniury and property damage in the event of a petroleum UST release. The final rule covers tne
following three areas: (1) level of financial responsibility: (2) fInancial responsibility mechanisms: and
reporting and recorakeeping. The financial responsibility requirements will be pnased in over a 36.
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OSWE Direc e €.:“
month period, based on the number of tanks and ownership ClassIfiCalion (e.g., marketer, nor.-car e e’
or municipality).
Level of F’r’anc,aI Responsibility . Under the final rule, tilO Owner/operator of an UST containing
petroleum is required to aemonstrate the following types and amounts of financial assurance:
Per-occurrence coverage (the potential cost of one leak) - at least SI million for
retail USTs and S500 ,000 for non-retaa USTs (i.e.. USIa not engaged in
petroleum marketing, production, or refining, and that handle less than 10,000
gallons per month).
Annual aggregate coverage (for all potential releases, depending on the
number of tanks at tne site) SI million annual coverage for facilities with up to
100 tanks or S2 million annual coverage for facilities with more titan 100 tanks.
Owner/operators are required to demonstrate both types of financial assurance. Financial assurance
must be reviewed by the owner/operator, and must be increased, if necessary, wflenever-neyi or
additional USTs are acquired or installed.
Financial Resoons:bsliry Mecflan:sms . An US? owner/operator may demonstrate financial
responsibiliTy through use of one, or a combination, of the following mechanisms: 5
• Third-Party Assurance Mechanisms. Insurance (including risk-retention group
coverage), guarantee, surety bond, letter of credit, and trust fund:
• Financial Test of Self-Insurance - A financial test that proves the owner/operator
(I) has a tangible net worth of at least SlO million and at least ten times the
annual aggregate coverage required, or (2) can pass the financial test for
liability coverage in Subtitle C, Subpart H of RCRA (40 CFR Pan 264); and
• State Mechanisms - State fund. State assurance program, or other Stale.
approved mechanism that is at least as stnngent and equivalent to mechanisms
listed above.
Repornng end Recordkeepsnp . The owner/operator of an US? must maintain copies of the
financial assurance mechanism(s) used to comply with financial responsibility regulations at the UST
site or their place of business. The owner/opeTator must report evidence of financial responsibility co
the implementing agency ri the following situations:
• When new tanks are installed:
• Within 30 days of detecting a known or suspected release;
• If the provider becomes incapable of providing financial assurance, arid the
owner/operator is unable to obtain alternative coverage in 30 days:
The following corroination of mechanisms is not acceøtable: financial test for self-insurance arc
a guarantee rere !rle tinanc.ai statements c i the owner or operator ariG trie guarantor are
ccnsciicaceo
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OSWER Direc rve ;6’o
• If the firia iciaJ assurance mer am cancelled or not renewed by the
Provider, and the Owner/Operator is unable to obtain alternate coverage within
60 days;
• If the owner/operatOr using a financial t finds that he or she no longer
passes me test, or if the implementing agency makes such a finding; and
• At the explicit request of the implementing agency.
The provider of financial assurance is required to notify the UST owner/operator and implementing
agency of plans to cancel me assurance in order to allow time for the owner/operator to secure
alternate coverage.
1.4 RELEASE RESPONSE PROGRAM UNDER SUBTiTLE I
The 1984 HSWA amendments to RCRA, while creating a national regulatory program for USTs
under Subtitle I, did not provide the U.S. EPA with the authority to respond to UST leaks or Spills. T
address this need, SARA added RCRA Section 9003(h), which established a program for res oAdng to
petroleum releases from USTs. In addition. Section 5 of SARA amended the lritemaJ Revenue Coøe
to create the LUST Trust Fund to be used to finance cleanups of releases from petroleum USTs. The
release response program and the LUST Trust Fund are different in nature from the regulatory program
established under Subtitle I. The initial UST program was established and currently operates primanly
as a preventive program. while the LUST program is a program designed to facilitate the
cleanup of petroleum leaks and spills from USTs.
1.4.1 Release Response AuthorItIes
A fundamental element of the cleanup program established by SARA is the provision of authority
o the Agency. under Section 9003(h), to respond to releases from USTs through enforcement activities.
corrective actions, and cost recovery These activities may be financed by the LUST Trust Fund. wruch
was created through a 1/10 of one cent per gallon excise tax on motor fuels that iS expected to
generate S500 million in the first 5 years. Specifically. Section 9003(h)(4) enables the Agency (or
States, under Cooperative Agreements with the U.S EPA) to issue corrective action orders requiring
owner;operators of leaking USTs to carry out corrective action or closure activities. In addition, Section
9003(h)(2) ’ allows the Agency to take correctrve action in response to a petroleum release from art ST
Activities Such as exposure assessment, the provision of alternative waler supplies, and the relocation of
affected residents, are considered allowable corrective action activities under Section 9003(h)(5). The
U S EPA or the State may undertake such corrective action activities using the LUST Trust Fund when
one or more of the tollowing situations exist:
No person can be found within 90 days (or shorter penod as may be necessary
to pr ect human health and the environment) who is the owner/operator of the
leaking UST and who is capable of carrying out the corrective action properly.
• A situation exists that requires prompt action to protect human health and the
environment:
• Corrective action costs at a facility exceed the required level of financial
responsibility and expenditures from tr. LUST Trust Fund are necessary to
ensure an effective corrective action, or
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OSWER Cirec .e
The owner/operator has failed or refused to compiy with a corrective action or
compliance order under Section 9003 or Section 9006 or with an order of a
State.
The U.S. EPA or the State may also undertake corrective action if the owner/operator has failed to
comply with financiai responsibiliry requirements, provided that the site warrants action according to the
U.S. EPA’s or the State’s pnority system for LUST Trust Fund corrective actions. 5 According to Section
9003(h)(1 1). U.S. EPA and State pnorrry systems must reflect the use of funds at sites where:
• Releases pose the greatest threat to human health and the environment; and
• The State cannot identify a solvent owner or operator of the UST who will
undertake corrective action property.
Section 9003(h)(6) provides the Agency with the authority to take action against responsble
ownerioperators to recover costs incurred by the U.S. EPA or the State while carrying out correc e.
action and enforcement activities. In determining the level of cost recovery, the Agency or SJate ma’
consider the liaculity level set forth in the financial responsibility regulations (except where tr
owner/operator failed to maintain the required levels of financial responsibility), as well as other factors
The U S. EPA s Cost Recover i Policy for the Leakinc Underground Storage Tank Trust Fund (CSWE
Directive 9610.10. October 1988) addresses this issue in detail.
1.4.2 State Role In the LUST Trust Program
As with the UST regulatory program. States will play the pnmary role irt implementing the LUST
program in all areas, including enforcement. Under Section 9003(Pt)(7), States may undertake ccrrectrie
action, issue corrective action orders, and recover costs provided that the State has entered into a
Cooperative Agreement with the U S. EPA. The Agency has issued guidelines governing LUST Trust
Fund Cooperative Agreements ( LUST Trust Fund Cooperative Agreement Guidelines , OSWER Cirec e
9650 10. February 1989). Through these Cooperative Agreements. States are responsible for
estaolisriirtg site pnorities, investigating sites and conducting assessments: pursuing anc ordering
corrective actions by responsible parties: determining appropnate technologies for effective action:
concucting cleanups; and pursuing cost recovery Because most States have Cooperative Agreements
at this time, tne US. EPA’s involvement in enforcement actions in release situations will occur mainry
wriert States request the Agency’s assistance with difficult cases. Since the effective date of the
financial responsibility regulations (January 24. 1989). States that enter into Cooperative Agreements
must begin cost srianng with the Federal government. Under me Cooperative Agreement guidelines,
States are expected to pay 10 percent of the total program budget of Cooperative Agreements.
6 Use of the LUST Trust Fund at Fac:hties Without Financial Responsibility.’ Memorandum trcm
cn 9rana. OIJST January 24 t990
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OSWER Direc e ?5’
CHAPTER 2. SrTUAT1ONS APPROPRIATE TO REGIONAL ENFORCEMENT ACTIONS
Under the nationai UST program, the U.S. EPA is encouraging States to taMe pnrr
resporisibiltt’y for enforcing their own LIST/LUST programs in lieu of the Federal program. The Agency
anticipates that as States continue to expand their enforcement programs, its primary role will be to
provide leadership and assistance to States. However, the Agency has identified several scenancs
where Federal involvement in Stale enforcement cases may be necessary ( F? 1 989-F? 1990
Compliance and Enforcement Strateav for the Underground Storace Tank Program , OSWER Direc e
9610.8, January 1989). This chapter discusses those situations.
2.1 ACTIONS TAKEN IN STATES WITH INADEQUATE ENFORCEMENT AUThORITY
While many States already have active, comprehensive UST programs, other States may sill e ri
the process of setting up programs or obtaining new legislation. If a State tacks UST.specrfic
enforcement at.ithority, It may be necessary at times for the U.S. EPA Regional office to carry out an
enforcement action in that State. For example, the U.S. EPA Regional office and trie State-may cec e
together that the Agency’s involvement is necessary to achieve the desired response from the
noncomplying owner/operator. Upon referral from the Stale, the U.S. EPA will assume erifoicement
responsibility when a State requests such assistance from the Agency.
In taking enforcement actions ri a State. the Region’s level of response will vary depending uoon
the State program’s level of development and the severity of the violation. For example, if a State is at
the inmal stages of program development, the Region may foctia its resources on helping the State
develop a State-specific compliance arid enforcement program that includes communication arid
outreach to educate owner/operators about tiie Federal regulations (OSWER Directive 9610 8)
However, the Region will maintain the option to take direct enforcement actions in the State. ano r’ave
the option of establishing a Federal presence in the State through both informal and formal enforcerne’-t
actions. Informal actions (e.g., requests for information) would serve to deter potential violators. arid
may provide an example to the State as it builds and impioves its UST program.
Regional involvement may also be necessary in a State that has a more developed LIST program
but still lacks the enforcement authority applicable to a given violation of the Federal regulations
(OSWER Directive 9610.8). For example, a State may have taken informal responses to compel
compliance (e.g.. through warning letters) but may have fouid that these actions were ineffective If re
State lacks th authority to undertake more formal enforcement actions, it may then request assistance
from the Agency. In such a case, the Agency may wish to implement the necessary formal eriforcernert
measures to deter potential violators while encouraging the State to acquire the necessary enforcer er.
authorities. The Agency may choose , for example, to take over a case where the violation threatens
human health and the environment (e.g., in the case of a release, or a violation of teak detection
requirements). In addition, the Agency will continue to woit wel’ the State to build its program
capabilities and resolve enforcement sues.
2.2 ACTIONS TAKEN IN APPROVED STATES
A State that has an approved program may still encounter certain enforcement situations in r’c
U S EPA nvolvement would be beneficial. OUST’s compliance and enforcement strategy (CS’ ER
Directive 9610 8) describes a number of situations in which me U.S. EPA may become invorved in an
enforcement case iri a State with an approved program. In general. the U.S. EPA may become it’ eC .eC
because: (1) me State lacks the authority to assess an adminatratlve penally; (2) the State recLests
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OSWE Cirec r e ;6 ’:
Federal assistance in an enforcement case that involves a Federal facility or other politically sensitr re
entity: and (3) the sit on involves a malor public health or environmental emergency
2.2.1 ActIons Taken In States Without Administrative Penalty Authority
One reason that a State may request the Agency’s involvement in an enforcement case is to
assess administrative penalties. The State Program Approval regulations (40 CFR Part 281) require
States to have the authorities necessary to assess CMI penalties (up to $5,000 or more per tank per ay
for each violation), but do n require States to have authority to issue admin rative compliance oroers
an assess administrative penalties. Nevertheless, a number Cf States do have the authority to issue
administrative orders, and have found such orders to be an effective tool for achieving compliance
Although a State may use administrative orders pnmanty to compel compliance. it may encounter
violation cases in which it would be appropnate to assess a penally in conlunction with the order if t e
State UST implementing agency does not have administrative penalty authority, it must petition the
Attorney General’s office to assess such administrative penalties. Bcause this process can be time
consuming, a State may request that th U.S. EPA Regional office assess administrative penalties
2.2.2 Coop.ratlve Actions Against Violators
Even if a State has sufficient authorities for taking enforcement actions in most of its cases, it S1 ,JU
might request the U.S. EPA to assist the State in enforcing certain cases. For example, a State miçnt
prefer that the Agency become involved in an enforcement action against an owner/operator triat is
considered to be economically or polItically vital to the State. such as a corporation triat employs a
large number of State residents or in multi-state actions.
A State may also request Agency involvement in an enforcement action against a Federal !ac.rry
Should the U.S. EPA be called upon to undertake enforcement action at a Federal facility. tne
appropnate guidance may be found in the Federal Facilities Compliance Strategy (also known as trie
‘Yellow Book’), rather than this manuaL 7 The ‘Yellow Book establishes the cur erit Agerfcy .wlce
approach for handling violations at Federal facilities. According to that document. Federal facilities rr .!
comply with the Federal requirements under most environmental statutes, and also with all apolicacie
State and local laws and regulations to the same extent as non-Federal entities. If a Federal facility
within a certain State violates environmental statutes or regulations, the State arid the Agency may
share certain responsibilities for canying out enforcement activities.
In the UST program in particular, a State that has received program approval may take the ieaO in
responding to violations at Federal facdfties. However, the U.S. EPA retains the legal authority aria
responsibility to enforce Federal law at a Federal facility. The FY 1989 .FY 1990 Compliance aria
Enforcement Stratecy for the Underaround Storage ‘ rank Program (OSWER Directive 9610.8) sets form
three situations in wnich the U.S. EPA may talce enforcement actions against a Federal facility: (1) me
State lacks adequate enforcement authorities and capabilities; (2) the State requests the Agency to ‘a e
the lead role or cooperate in a joint action; or (3) there are other appropriate circumstances Consls ert
with the ‘Yellow Book.’ Arrangements for State and/or U S. EPA involvement and cooperation iri
enforcement efforts at a Federal facility should be clearly outlined in State/Federal enforcement
agreements that can be incorporated into the Cooperative Agreement, or, it the State has an apprc eC
program, in the Memorandum of Agreement between the State and the Agency.
Federal Facilities Compliance Strategy , U S EPA. Office of Federal Activities. EPNOO 88-OC I
Novemoer 1988
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CSWEP irec ve :
2.2.3 ActIons Taken in Response to a Major Public Health OF Environmental Emergency
A Stale may require U.S. EPA assistance in a case that involves a ma or public health or
environmental threat or emergency. States, under Cooperative Agreements, will be expected to inmate
and pursue enforcement actions as necessary to compel ownerloperators to mitigate releases.
However, as set forth in the Guidance for Conducting Federal-Lead Underground Storage Tank
Corrective Actions (OSWER Directive 9360.0-16, June 1988), Federal-lead enforcement may Ce
aopropnate where: (1) a release from an US? poses a major public health or environmental
emergency: (2) the State can demonstrate lack of capability or authority; and (3) the State requests
Federal assistance for an eligible site.
2.3 ACTiONS TAKEN ON INDIAN LANDS
The Agency’s policy for managing any environmental regulatory program on indian lands is set
forth in the ‘EPA Policy for e Administration of Environmental Programs on Indian Reservations’
(November 1984) and the accompanying ‘Indian Policy Implementation Guidance.’ The fundamertai
pnnciple of these documents is that the Agency will pursue the goal of Indian ‘self-government.’ ar. . iiI
work with Tribai governments on a one-to-one basis as sovereign entities.
Because they are not States. Indian Thbes cannot be approved to operate their programs in lieu
of the Federal program, even though they may have parallel UST programs. Furthermore. States
generally do not have jurisdiction over Indian lands unless the State and the Tnbe have such an
agreement. To address the issue of UST releases on Indian lands, the U.S. EPA has developed the
lritenm Guidance for Conducting Federal-Lead US? Corrective Actions for Petroleum Releases on ‘r can
Lands (OSWER Directive 9610.9, Jury 1989), which discusses situations in which it is appropriate cr :e
Agency to take action against UST releases on Indian lands. However, no guidance currently ex S3 ‘Zr
taking enforcement actions on Indian lands in response to violation ri the preventative program
As set forth in the Agency guidance (CSWER Directive 9610.9), Federal-lead involvement ;n
corrective actions on Indian lands is limited to cases in which (1) there is a senous ‘time crrticai’ trireac
to human rieaitfl and the environment: (2) the Tribe is unable to respond: and (3) the owner/operator s
urlaole or unwilling to provide an adequate and timely response. It should be noted that the guidance
set forth in the document is directed toward snort term remediation only. Long-term corrective action
guidance will be developed (if necessary) once the Agency has determined the extent of the UST
problem on Indian lands. To assist with this determination and provide Tnbes with technical assistance
:rie Agency is funding compliance assistance and outreach activity pilot protects in several U S. EPA
Pe icns.
In general. the cntena for determining Federal-lead corrective action at a violating UST facilrr 1 :r
roian lands are b4 ’oader than th e specified for non-Indian facilities. National U.S. EPA policy
encourages direct dialogue and the sflanng of technical assistance with Tnbal authorities to encct. raçe
: ‘.e aciIity to achieve compliance.
2.4 ACTIONS RESULTING FROM PROGRAM OVERLAP
Cne final area in which Regional enforcement may be required is in responsa to releases of
rla.zardcus substances from USTs. SARA established a release response program under Section
CO3(h) of RCPA arid created the LUST Trust Fund for financing cleanups of petroleum LiST re!eases
cwever. the response program and the Trust Fund may only be used for petroleum releases
Although the majority of regulated tanks corna n petroleum, about 5 percent contain hazardous
12.

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OSWER D’rec e 6
subsiances. For ti, sinail tank populatK.r. responsibility or leaks of hazardous substances and
cleanup of these releases will be deCideø on a site.spectfic basis.
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CSWER C’rec .e ; :
= == = - =
CHAPTER 3. ENFORCEMENT CASE DEVELOPMENT
Under the national UST program, States are encouraged to take the primary responsibilrry fcr
responoing to violations of the UST requiremenfs. Because of the s e anø nature of the UST regulated
community, the U.S. EPA is focusing s enforcement efforts on encouraging voluntary compliance
through informal enforcement actions, and is working with States to Strengthen their enforcement
programs. However, the Agency does intend to take stricter, more resource.intensgve actions wrien
necessary. Subtitle I of RCRA provides U.S. EPA Regional enforcement personnel with an array of
possible responses for carrying out this enforcement approach. This chapter provides guidance on
determining the appropriate level of enforcement response arid describes procedures for taking specri,c
initial enforcement actions. The more traditional administrative and judicial enforcement actions are
described in Chapters 4, 5, and 6.
3.1 OVERVIEW OF ENFORCEMENT TOOLS
The purpose of any enforcement response is to bring about compliance with the regulations no
to deter future violations, or, in the case of a release, ensure proper corrective action. To dicouraçe
voluntary compliance in the UST community, the least resource-intensive action Should be taken flrst
Enforcement personnel should then increase the severity of the enforcement action if the lower level Ct
enforcement fails to achieve the desired response. The following section (Section 3 2) discusses trie
factors to be considered in determining the appropriate level of enforcement. Once this level is
determined, the enforcement actions that may then be taken usually fail under one of the following
secarate. but often interrelated, tracks: (1) actions taken to achieve compliance (for violations of :rie
technical regulations); and (2) actions taken to achieve corrective action (when the violation also
involves a release). Sections 3.3, 3.4, and 3.5 descnbe various enforcement techniques that ar e
taken ri each of these situations. In addition, Section 3.6 describes alternative enforcement tcois : at
may be used to achieve quicker resolution of the violation or release situation.
The processes described in this chapter represent some of the enforcement tecninigues that are
resentry being used in the Regions, and should riot be considered the only, or the most appropriate.
means of addressing violations. Because the UST tecnnical regulations have only been in effect for a
relativery snort penod of ume, UST enforcement staff have not had the opportunity to develop and
experiment with different enforcement techniques. However, as the Regional experience in enforcing
against UST violations increases, the enforcement processes are expected to be improved anc refined
over time. Furthermore, some Regional enforcement personnel may nave already developed similar or
more eflective means of carrying out these initial enforcement actMies. Therefore, this guidance will e
-eviewed each year and modified as appropriate, to keep it current with new information arid cnanges
to trie program.
3.2 FACTORS TO CONSIDER IN DETERMINING RESPONSE LEVEL
In determining the appropriate enforcement action for any violation of environmental regulations.
e’ forcement pentonnel should consider tne goais of the ‘Agen ywide Compliance and Enforcement
Strateçy’ (U S EPA, Office of Enforcement, May 1964):
• Achieving complIance with the requirements:
• Equitable treatment of the regulated community;
• Deterrence of Future noncompliance, arid
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OSWER Directive 6 1
Effective use of AgenCy resourc .
The level of enforcement required tO achieve these goals will vary depending On the severity of tile
violation, priorities established between the Regions and the States, and other circumstances of tue
case. The selection of the appropriate enforcement response may also be affected by the penalty
policy currently being developed.
The Agency has identified a number of factors to be considered in determining the appropnate
level of response (‘Woilcuig Pnnciples Underlying EPAs National Compliance/Enforcement Programs.’
November 1983 and ‘Strategy Frameworlc for EPA Compliance Programs,’ U.S. EPA. Office of
Enforcement. May 1984). For cases u ’vvoMng noncompliance with the UST regulations. factors that
should be considered are: (1) the senousness of the violation; (2) the circumstances of the violation.
and (3) information about the owner/operator. In addition, enforcement personnel Should take into
account the likelihood that a response may establish a good or bad precedent. Although not all of the
information required to evaluate these factors will be available at the time that an enforcement response
must be taken, enforcement personnel should attempt to consider these factors to the grea s extent
possible when making their decision. These factors are discussed in more detail below.
3.2.1 Severity of the Violation
Considerations that should be made in determining the severity of the violation include:
• Actual or oossible harm . whether the ownerIoperator s actions resulted in, or
were likely to result in, an UST release;
• importance to the reaulatory oroaram . whether the requirement that was
volaied is fundamental to achieving the goals of the UST program. For
example, a violation of leak detection requirements would be considered
serious because the requirements are fundamental to the goal of preventing
releases.
• Availability of data . whether the action involved a violation of any requirement
for recordkeeping oi’ reporting for which the Agency has few other sources.
For example, a violation c i the notification requirements would be considered
serious because the notification program is a primary source of information on
UST locations.
ri determining the appropriate response for a release triat threatens human health or the environment.
additional considerations include: (1) amount of petroleum or hazardous substance potentially or
actually released; (2) toxicIty of petroleum or hazardous substance released; (3) sensitivity of the
environment in which the released occurred; and (4) duration ci the release.
3.2.2 CIrcumstances of the Violation
In determining me appropnate level of action for other types of violations, enforcement perscnnei
Should taxe into account the Culpability of the owner/operator (i.e.. whether the violation Could have
been prevented or whether it was beyond the owner/operator s control). in addition, enforcement
personnel Should consider whether me owner/operator made any efforts to identify, report, ariø correc
the violation, independent of the enforcement response. Such positive reinforcement of ‘seit-monitor
will help encourage voluntary compliance
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OSWER Direc e
3.2.3 InformatIon About the Owner/operator
lnforTnatiori about the owner/operator includes the economic benefit of noncompliance accr ec
y me owner/operator, me facility’s compliance history, the owner/operators ability to pay, ana tr e Size
of the business. If information on these points is available, enforcement personnel should consider
using it in Choosing an enforcement response. For example, a history of noncompliance is considered
a negative element, and an owner/operator that has a poor compliance record Should be met with
stronger enforcement actions. Certain considerations, such as the economic benefit of noncomoliance
and an owner/operators ability to pay will require further research and are often taken into account
when a penalty is assessed; however, this should not delay action taken by the Region. The curcen ‘o
establish art inability to pay is on the owner/operator.
3.3 ENFORCEMENT ACTIONS FOR VIOLATiONS OF ThE TECHNICAL REGULATIONS
Under the authorities in ACRA Section 9005 and Section 9006, Agency enforcement perscnrel
may take the following actions in response to a violation of th. technical regulations;
• Information reQuest letters to verify an aileged violation;
• Initial res orises to notify the owner/operator and encourage voluntary compliance;
• Administrative actions to compel compliance through admin traiive orders; and
• Judicial actions - to compel compliance through ludiclal orders.
Each of these IS discussed below. As previousty discussed, the appropnate level of this initial resccrse
will depend upon the circumstances of the case (for example, more serious cases may warrant s ccirg
me less severe actions). Although most enforcement cases will go through the same general stecs
when enforcement responses increase in severity, tne Agency’s response in an individual case will
deoend on the actions already taken by the State (e.g., the Agency may begin directty with an
administrative response if the State has determined that informal actions were ineffective).
3.3.1 InformatIon Request
RCRA Section 9005 (42 U S.C. §6991d) authorizes the U.S. EPA to require an UST owner or
operator to furnisfl information in the context of enforcing me provisions of Subtitle I and its
implementing regulations. Therefore, to obtain additional information on a potential violation of me
tecrinical regulations. the Agency may issue a Section 9005 information request letter to an
cwnerloperator. In response to such a request, the UST owner/operator must provide U.S EPA
egiorial enforcement personnel with any information that they have requested on the UST s’ystem
The UST owner/operator must also allow the Agency to conduct monitonng or testing, and must
rovide Agency personnel with access to all records relating to the tanks. (Thus, in view of the
statutory authority behind these ‘requests,’ it may be more appropriate to view Ittem as ‘demands.’)
‘. ,lonitonng. testing, and record reviews rypicai y provide me Agency with the information necessary io
eterrr’ .ce that a violation has, in lact, occurred. In general. collection arid documentation Cf ,ntorrrat.cr
may aiso e necessary to support the development of an enforcement case. The amount and rype Cf
Additional authorities for responding to violations may also be found in RCRA Subtitle C and
otner statutes. SUCh as trie Safe Drinking Water Act, the Toxic Substances Control Act, and tne
: c er3i ‘Iater PCIILI:on Control Act

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QSwER Dire e 96 c
data that must be collected, however will vary depending on the data collected dunng the inspec on
anc any previous lo low..up wo conducted by the State.
A letter request for information should be sued in cases where a violation apparent but
wriere substantialPy more evidence is required before an appropriate response can be determined (e g..
before deciding to dr t an administrative order). A typical information request letter should include the
following information: 9
• Identification, citation, and explanation of the request for information;
• The name and telephone number of an Agency contact person;
• A deadline for achieving full compliance with the request (e.g., usualty 10 to 15
days); and
• A statement indicating that refusal to provide the requested information beyond
the deadline may result in the issuance of an administrative compliance orcer
or initiation ci a civil action, which may include an assessment of CMI penalties ’s
of up to $10,000 per tank for each day ci violation.
In general. the request for information may be sent by first class mail unless the owner/operator has not
cooperated, in which case it should be sent by certified mail, return receipt requested. ri addition, a
copy of the letter Should be placed in the case file.
3.3.2 WarnIng Letter/Notice of Violation (NOV)
Because of the large size of the UST regulated community and the number of owner/operators
unaccustomed to being regulated. the Agency is promoting the use of initial enforcement mechanisms
that encourage voluntary compliance. In pamcuiar, enforcement personnel should initially take actions
that serve to notify the owner/Operator of the violation, advise what actions are needed to correct the
situation, provide a deadline for compliance, arid indicate more stringent actions that may be taken if he
or she does not respond. Notifications such as warning letters and NOVs are often used to achieve
these objectives. Although these notifications are not required prior to taking more formal actions, they
do serve as documented evidence of contact with the owner/operator and may be used later to support
more severe enforcement actions.
Once enforcement personnel have obtained sufficient information to confirm a violation, the LIST
owner/operator should be notified that the Agency considers him or her to be in violation of a technical
requirement in general, a notification should contain the following information:
• lden lcation, citation, and explanation ci the violation;
• A deadline for achieving compliance with the appropriate regulatory or statutory
requirements (e.g., 30 to 45 days);
Information to be included in the information request letter arid warning letter are based on
procedures for RCRA Section 3008(a) warning letters, as set form in me RCP.A Compliance!
Enforcement Guidance Manual (OSWER Directive 9837 0. August 1984).
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OSWER C’rec e €‘
• A sta(emern indicating that COntinued noncompliance beyond the deadline may
result in me issuance of a Section 9006 complianCe order or initiation of a civil
action, which may include an assessment of civil penalties of up to $10000 per
tank for each day of violation; and
• The name and telephone number of an Agency contact person.
Unlike the infomiation request letter, the notification must be sent by certified mail, return receipt
requested. In addition, a copy should be placed in the case file.
The forni of the notification may range from informal warning letters to the more authoritative
NOVs)° Warning letters are often considered to be the more informal method of notifying an
owner/operator of a potential violation, and may be issued by the inspector at the site or be issued wrtfl
ttie inspectors signature. A warning letter typically serves to inform the owner/operator mat me
implementing agency has been made aware of the situation, and seeks voluntary compliance by
indicating what actions should be taken to aciIeve compliance. A warning letter is generally issued
when the violation is minor and cooperation is expected, or when a first-time violator is expect%ed to
comply promptly. The warning not only gives me owner/operator a chance to comply, but also
provides evidence that informal actions were taken, should more serious enforcement actions be
needed later.
The more formal NOVs may be issued if enforcement personnel believe that a stronger initial
communication is required. NOVs often follow a more structured format than informal warning letters.
and may be signed by an official from the implementing agency. While it still may be considered an
informal response, issuing an NOV marks the beginning of the more formal enforcement process -
the owner/operator fails to adhere to the schedule outlined in the NOV. enforcement personnei may
‘respond with a Section 9006 compliance order or may initiate civil luthclal proceedings.
3.3.3 AdministratIve ComplIance Order
It the initial response actions described above appear to be ineffective, it may be necessary to
initiate formal administrative or judicial actions. Under Section 9006(a) of RCRA. the U S. EPA is
autnorized to issue administrative orders to compel compliance with arty requirements of Subtitle I.
including the regulations (at 40 CFR Pan 280) promulgated pursuant to Section 9003. These
compliance orders are usually issued in non-emergency situations where a return to compliance is
excected. and where it appears th 5t the more informal actions (e.g.. a warning letter) would be or have
been neflective in bnriging about compliance.
A typical compliance order wilt require that the owner/operator come into compliance immediately
or within a reasonable, specified time penod. In addition, under RCRA Section 9006( , the oroer may
also duds a CMI penalty not to exceed: (1) 310.000 per tank per day for each violation of a
requirement or standard at 40 CFR Pan 280 or any approved State program; and (2) 510.000 per tar’i
for failure to comply with the notification requirements. Furthermore, the oraer should also indicate to
10 Because ‘warning letters’ and ‘notices of violation (or noncompliance)’ vary greatly in format.
the terms are used here as common terms only. Indeed, warning letters and NOVs often serve me
same purpose and may be considered by some to oe indistinguishable. On me other hand, an NOV
may also ce considered to function as an initial administrative oroer As used here, the term ‘NOV’
refers to an inrt;al r’ctrfication that provides the owner/operator art opportunity to comply pnor to any
‘crmal enforcement action administrative order)
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OSWER Directr e ; ‘
the ownefloPeraior that continued noncompliance will result in further legal action, including tne
assessment of adaition l penaltieS of up to S25,000 for each day c i noncompliance with the Compliance
oder.
The procedures for issuing Section 9006 administrative compliance orders and assessing
administrative CMI penalties are governed by me Consolidated Rules of Practice Governing the
Administrative Assessment of CMI Penalties and the Revocation oi ’ Suspension of Permits (the ‘CROP.’
40 CFR Part fl). In add tion to a compliance order, the Pan procedures cart also be used for
issuing a Section 9003 corrective action order it is combined with a Section 9006 compliance order
and penalty, and for issuing a Section 9006 order that only assesses a penalty. The specific processes
for issuing adrninistra!Ne compliance orders are discussed in Chapter 4, ‘Procedures for Section 9006
Compliance Orders.’
3.3.4 JudIcial Actions
In addition to administrative responses, U.S. EPA Regional enforcement personnel may initiate
civil judicial action under RCRA Section 9006(a). Judicial actions are more formal actions initialed ir tt’.e
U.S. Court system by the Department of Justice. To initiate the judicial action, the Agency n ust deliver
a written referral to DOJ formally requesting that a suit be filed by OCJ on behal of the U.S. EP The
procedures for developing this referral are discussed in Section 6.1.2 ci Chapter 6, ‘Procedures for
Judicial Enforcement.’
Because the litigatrve process can be both time-consuming and resource-intensive and because
the issuance of art administrative order will increase the strength ci a judicial case, judicial referral doel
not usually begin unless administrative responses have been found to be ineffective or iriappropnate
Judicial actions may be taken without the prior suance ci an administrative order in emergency
situations and cases where the owner/operator has a history of noncompliance. The judicial actions
that U.S EPA Regional enforcement personnel may take are:
Iri unctive actions - to prevent an owr ”operator from continuing actions that
endanger human health and the errv; ‘merit. Inlurictive actions include
temporary restraining orders, prelimir .a:.. injunctions, and permanent
i nlunct Ions.
Civil udicial enforcement actions . to compel compliance and assess penalties
when less severe responses (such as administrative orders) have been or
would be ineffective in bringing about compliance.
There may also be circumstances in which a cnminal action is appropriate.
3.4 ENFORCEMENT ACTIONS FOR RELEASES NOT REPORTED BY AN OWNERIOPERATOR
When it has been determined that a release from an UST has occurred, the primary goal of an
enforcement response is to encourage an owner/operator to conduct corrective action. However, the
soecific enforcement response taken may differ decending on whether the owner/operator has teporte
tr.e release (in which case a violation may ‘ol necessarily be involved) or whether the implementing
agency hSS discovered tile release by sor- ’ otter - ‘ ans. The discussion that follows describes
enforcement toots used when me release re -ed by the owner/operator. Enforcement actions
tnat Should be taken when the release nas ‘een reporiec by the owner/operator are described in
Section 3 5 below
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OSWE ire ’,e
3.4.1 Information Request Letter/On -atte Inspection
If the release was reported by Someone other thaI the owner/operator, the implemerting a e’-c.
may have general information on the location and extent of the release, but may have to ceterrn r.e ‘re
source of the release as well as the identity of the owner/operator. As discussed in Section 3 3 1
above, RCRA Section 9005(a) authorizes u.s. EPA Regional enforcement personnel to issue an
information request letter that requires an owner/operator to provide information on his or her tarx
system. Furthermore, Section 9005 provides the Agency with access to a site for the purpose of
responding 10 a release. ActMtIes authorized under this section include: (1) inspection of tanks an
associated equipment; (2) inspectIon of Soils, air, surface water, and ground water; (3) tank tests. ar
(4) sampling. In addition, art owner/operator must provide Agency personnel with access to au reccr s
relating to such tanks. These activities will aid enforcement personnel in confirming the reueasa aro
eterrnining its source.
In determining the source of a release, proper procedures for documenting the inveszigatcn cf a
release must be followed to ensure that the data may be used in an administrative or jucic al
proceeding. In particular. the inspector must be prepared to give expert testimony, becauje f forrrai
actions are taken, the owner/operator is likely to hire a contractor to provide testimony to dus ’ ete re
Agency’s findings and enforcement response. The U S. EPA’s guidance manual for inspectors.
Fundamentals of Environmental Compliance Inspections (Office of Enforcement, Feoruari 1989),
provides detailed guidance on collecting and documenting evidence for testimony.
3.4.2 NotIce of Violation
Similar to the NOV for technical violations, once there is sufficient information to confirm a e ease
enforcement personnel should issue an NOV to notify the UST owner/operator that he or sre s
expected to comply with the requirements set forth in Subparts E and F of 40 CFR Part 280 The
specfic requirements under 40 CFR Part 280 are:
• Release reporting . under section 280.50. an owner/operator who discovers site
conditions indicating a potential release must report to the implementing
agency within 24 hours.
• Investigation and Confirmation . unless corrective action under Subpart F is
initiated, section 280.51 and section 280.52 require that an owner/operator
immediately investigate and confirm a suspected release within 7 days. or as
required by the implementing agency.
• Release Response . under section 28061 an owner/operator with a confirmed
release is required to report the release to the implementing agency within 24
hours and take immediate action to prevent arty further release.
• Abatement Measures - under section 280 62. the owner/operator must take
initial abatement measures and submit a report summarizing initial abatement
measures to the implementing agency within 20 days of retease confirmation.
• Investiqat ion - under sections 280 63 arid 280 54. the owner/operator must
conduct a site investigation and begin free product removal, and report results
of both activities within 45 days.
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____ SWER Direc ,e g5i
0!rectrve act on 01311 iCAP r section 280.66, as direCted by the
implementing agency. an owner/operator may be required to develop and
implement a correcuve action plan for responding tO the Contaminated ground
water and soil. In cases where ground water has been impacted or where soil
contamination is severe, specific consideration should be given to requinng a
CAP.
The purpose of an NOV is to not ty the owner/operator that he or she is responsible for carrying
out these actions. If the owner/operator fails to comply with any of these requirements dunng the
course of the corrective action, enforcement personnel may respond with a Section 9003 corrective
action order or may initiate CMI judicial proceedings.
3.4.3 CorrectIve Action Order
Under Section 9003(h) of RCRA, the ZPA is authorized to issue corrective action orders to
compel an owner/operator of a leaking UST rry out investigative studies and undertake corrective
actions or closure act ivities. 11 Corrective ac rders should be used when an UST owner/ooerator
has a confirmed release, and enforcement personnel believe that he or she will respond propec and
promptly to the order.
A corrective action order will typically describe the actions that must be taken by the
owner/operator (e.g., the release response requirements set forth in Subpart F of the Technical
Regulations), provide a specific time period for taking these actions, and indicate the potential
consequences of not doing so. As with the compliance order, the corrective action order should also
indicate to the owner/operator that continued noncompliance wiU result in further legal action, inclucri
the assessment of additional penalties of up to S25.000 for each day of noncompliance with the
corrective action order. As descnbed in Section 3.3 above, enforcement personnel may neeø to initiate
judicial proceedings if the owner/operator continues to be recalcitrant.
The procedures for issuing Section 9CC3(h) corrective action orders will be governed by the Rules
Governing Issuance of and Administr-’ e Hearings on Corrective Action Orders, codified at 40 CFR
Part 24 The specific processes br g administrative corrective action orders are discussed in
Chapter 5, ‘Procedures for Section cø Corrective Action Orders.’ A corrective action order may atso
b combined with a Section 9006 or: •o compel compliance with specific technical requirements or io
include the assessment of administrative penalties. In such a case, the requirernerus at 40 CFR Part 22
would be used.
3.5 ENFORCEMENT ACTiONS FOR OWNER/OPERATOR.REPORTED RELEASES
If the release was reported by the owner/operator, he or she would have been required to fOIlcw
the recoiling procedures set forth in Subpart F (sections 280.60 . 280.66) of 4.0 CFR Pan 280 (see
Exhibit 3.1). Th*. , the primary purpose of enforcement responses taken in a case where the release s
seif.reported is to ensure that the owner/operator carries out the corrective action activities requirec ‘y
ne regulations. The enforcement techniques discussed below are typically used when the
owner/operator has notified the implementing agency of the release.
“ The US EPA is currerury evali..a g tr ..ropnate use of Section 9003(h) arid Section 9C06
authorrt es when a release has occur 0 C’ ne which is the most appropriate tool for
encouraging owner/operators to unce’ e c . ive actons
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OSWER Dire ie €
Enforcement
Exhibit 3.1
Response Process for Owner/Operator
Reported UST Releases
KEY
Op.,iøo i
0
D.cision
Mov•msn /
Trwsr,,
C4vi sU
Iiisp c oii
01 - i
NOV - Na s
CO -C r*Oi r
*0- v
- £ •
• *111 i,3u11?y w’ ’ o’m ?.s
f&igs ,u cw”c,p .iv a
& ii ilat*’1I) wih ‘SS i1? .1, i,CsC’1l aa’o ’
s.sc6- I

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OSWER Cirec e 6’ C
Exhibit 3.1
(continued)
‘II
•23.

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OSWER DIrec ’de
3.5.1 Acknowledgementilnformation Request Letter
Acknowledgement letters are sent to the owner/Operator by the implementing agency to nct e
owner/operator that the appropnate reports l,ave been received, lithe necessary reports are &e from
the owner/operator or incomplete information was received, the Agency may issue an information
request letter, as descnbed in Section 3.4.1. These letters may be used to monitor the progress of e
site investigation and corrective action.
3.5.2 Corrective Action Letter
Under 40 CFR section 280.66, the Agency has discretion to require that an owner/operator
adhere to a reasonable schedule for the completion of specific corrective action actNit les. The
corrective action letter is a 1 to 2 page letter that notifies the owner/operator of lime frames tnat he or
she must use to schedule these corrective action activities. The letter is meant to be informaL and its
purpose is to capture the attention of the owner/operator, convey the implementing agency s expected
schedule for cleanup, and inmate negotiations.
3.5.3 Compliance Order
The compliance order IS issued to an owner/operator who has failed to comply with tne
requirements of tile corrective action regulations. The compliance order is an administrative order
issued under Section 9006 with the intent of assessing penalties, rather than compelling compliance
with specific requirements.
3.6 ALTERNA11VE ENFORCEMENT TOOLS
To create a successful, comprehensive enforcement program, the U S EPA must Crevice :re
enforcement stat? with flexibility in umplemeci. -g enforcement responses. As discussed acove. ‘ict al ci
tne techniques described in this manual will :e appropriate in all circumstances, and enforcement
personnel may wiSh to develop and implement some alternative enforcement tools to acnieve the sarre
ojective of compliance. The sections that follow provide examples of some additional enforcement
tools triat may be used to supplement the basic tools for achieving both compliance with me tecnnical
rules and cleanup of a release. These tools may be used alone or in combination with the techniques
described in Sections 3.3, 3.4, and 3.5.
3.6.1 Show Cause Meetings
Once the appropriate owner/operator hSS been notified of the violation or release, he or she may
oe provided with an opportunity to meet with enforcement personnel to negotiate a corrective acticn
plan or present any factors related to a technical violation that may mitigate tne enforcement resoonse
One method for achieving this is to invite the owner/operator to a ‘show cause’ meeting. The ShOw
cause meeting provides the owner/operator witfl an opportunity to presnt to the Agency any factors
related to the case that might mitigate the Agencys enforcement response and to provica it with arm
coportuniry to gather information and to clarity any factual and legal issues that may have arisen. T e
snow cause meeting is particularty useful when the paaticulars of a case do not clearly indicate time
prc er course of action to be followed (i.e., an administrative order, a ludiCial referral, or no further
action) An nvitation to tne 5 110w cause meeting may be included in the NOV or warning letter. c t
Should be sent to the owner/operator as soon as possible after tt’ie decision nsa been made to have
such a meeting
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QSWER Crec ’ e ; :
The show cause meeting car’ be par rty useful in determining the most appropnate course tO
taice in response to a release. Foilowing tr -sort of a release from an UST, the U.S. EPA may ertrier
send an information request etter to p - . operator to confirm the release and seek Compliance or.
in the case of an emergency, initiate action tself to alleviate arty immediate danger to human heaith aria
safety. Once the release is confirmed and the site is stabdtzed, enforcement personnel may øecide that
it Is appropriate to meet with the owner/operator to negotiate an agreement to perform correctrve action.
This decision will depend upon the owner/operatoi s compliance with conecuve action requirements
and cooperation with the Agency dunng the negotiation process
3.6.2 Informal Settlement Conference
Negotiated resolutions of enforcement 2Ctions are considered to be a cost-effectrve means of
achieving compliance. The marine’ - vfliC
will vary depending on the type c i tiOfl
of the owner/operator to cooperate alt c
initially or conveyed to the owner/c : lor a
enforcement personnel. This increases the
effectrve, however, any negotiated agreeme
owner/operator does not cooperate. Tc for
aeveloped into consent agreements that will
Chapter 4).
- orcement personnel negotiate with an owner/operator
‘-ether the situation is an emergency, and the willingness
i. however, a limited time frame, whether publici2ed
•g negotiations, should be developed by the
ency of the process. It should be noted that to be
- iSt still hold the threat of further action if the. :
.ze this understanding, informal negotiations may be
..e finalized in art administrative order on consent (see
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OSWER D’rec ’je ;5 :
CHAPTER 4. PROCEDURES FOR SECTION 9006 COMPLIANCE ORDERS
U S. EPA enforcement personnel are likely to take administrative actions in response to most
violations of the UST requirements when a formal response is appropriate. The Agency is authonzed y
Subtitle I of RCRA to issue administrative compliance orders under RCRA Section 9006 (usually
accompanied by administrative penalties) and administrative corrective action orders under RCP.A
Section 9003. This chapter diScusses the U.S. EPA’s authority to take Section 9006 administrative
actions arid provides guidance on the procedures for issuing administrative orders and assessing
administrative penalties. Section 9003 orders are addressed in Chapter 5.
4.1 FRAMEWORK OF ThE ADMINISTRATIVE PROCESS
The discussion that follows provides background on the U.S. EPA’s authority to take
administrative actions. and discusses the regulations that govern the administrative process. :t also
provides a nef oveiview of U.S. EPA adrninistratrve roles.
4.1.1 Statutory and Regulatory Framework
Section 9006(a) of RCRA authorizes the U S. EPA to issue an administrative enforcement order
when it is determined thai an UST owner or operator is in violation of Subtitle I or any regulation
promulgated pursuant to Section 9003. RCRA Section 9006(d) authorizes the Agency to assess civil
penalties of up to SI 0.000 per tank per day of violation for violations of requirements promulgated under
Section 9003. Section 9006(d) also authorizes the Agency to assess CMI penalties of up to S10.000 er
UST against owners and operators who fail to comply with the notification requirements or submit ‘aise
information Civil penalties will normally be assessed for UST violations and accompany a Sact on
9006(a) compliance order. The procedures for issuing Section 9006 administrative compliance orders
and assessing aeministrative civil penalties are governed by the Consolidated Rules of Practice
Governing the Administrative Assessment of Civil Penalties and the Revocation or Suspension of
Permits (tile CROP.’ 40 CFR Part fl) 12 The CROP was recentry amended to include administrative
actions conducted under Section 9006 for violations of Subtitle 1.13
ri general. these administrative actions are pursued wlleft art owner/operator has not responcea
to informal actions or is not expected to comply with informal requests, and the situation does riot pose
an emergency. If administrative orders are riot complied with or if compliance is needed immediatery
i e. in tne case of art emergency), enforcement personnel should initiate a CMI judicial action under
Section 9006(a). The procedures for Initiating judicial action are discussed ri Chapter 6. ‘Procecures
for JuOiciaI Enforcement
2 Consolidated Rules of Practice Governing the Administrative Assessment of Civil Penalties arc
me Revocation or Suspension of Permits. 40 CFR 22.01 (promulated at 45 EB 24363. April 9.
t 980)
The CRCP was amended to include administrative actions under RCRA Section 9006 cri
ecr . .arq 24 ‘988 (at 53 FR 5.374)
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OSWE Ire ’ae :
4.1.2 U.S. EPA Roles In the Administrative Process
Section v.04 of the CROP presents the vanous authorities and duties of the key Agency officials
in the adminiStrative litigation process. Some of the roles and responsibdrnes of the Regional
Administrator, the Regional Judicial Officer, and the Presiding Officer include:
Reoional Administrator (RA . Pursuant to CROP Section .04(a), the RA shall
exercise all powers and duties prescnbed and delegated under Subtitle I and
the CROP. in addition, the RA has been delegated the authority to issue
Section 9006 administrative complaints, evaluate the appropriateness of civil
penalties. and negotiate arid sign consent agreements. In every proceeding,
the RA will rule on all motions filed or made before an answer to the complaint
is filed, and on all motions tiled or made after the initial decision has been
made (unless the PA has delegated his or her authority to the Division
Director).
Regional Judicial Officer . Under section fl.04(b)(3) of the CROP, the PA may
delegate all or part of his or her authority to act in a given proceeding to a
Regional Judicial Officer. However, Ibis delegation does riot prevent tne
Regional Judicial Officer from relemng any case or motion back to the PA.
when appropriate.
• Presiding Officer - The role of the Presiding Officer is to conduct a tair and
impartial proceeding, ensure that the facts are fulPy elicited, adjudicate all
issues, and avoid delay. Under CROP section fl.04(c), the Presiding Officers
authorities include conducting administrative hearings under the CROP, ruling
upon motions, issuing necessary orders, examining witnesses, and issuing
subpoenas.
4.2 OVERVIEW OF ThE ADMINISTRATIVE PROCESS
Under tne procedures set forth in the CROP, the malor steps in the litigation process of issuing a
Section 9006(a) adminiStrative order are:
• . Complaint oreoaration and filino stace . In this stage. the Agency prepares and
tiles a formal complaint with the owner/operator. The purpose of the complaint
is to establish the allegations, assess a penalty (if applicable), and notify the
owner/operator of his or her nghl to a heanng.
• Pre-hearing stage . Dunng this stage. the owner/operator should answer the
complaint (i.e., admit or deny the allegations, and request a heanrig). Once the
complaint is served, any pre-l ’teanng motions may be made, default orders may
be issued (if the owner/operator does not respond), and settlement or pre-
rteanng conferences may occur.
• Settlement . Settlement of the case may occur at any stage. but it is the
Agency s desire mat settlement negotiations take place before there is a need
for a nearing.
• Hearing stage During the heanng, an EPA AdministratNe Law Judge will hear
tne case, examine evidence. and make an initial decision.
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OSWER lrec ’.e 6 2”
P t .heanno stace . After the heanrig, appeals to the initial decision may be
made arid me flnai order is iss&Jed.
The rest Of thiS chapter provides detailed guidance on each of these steps. Because the descr.ptiors
below summar e and frequently refer to requirements set forth in the CROP, the reader is acrvised to
octain a copy Of tfle 40 CFR Past procedures.
4.3 COMPLAINT PREPARATION AND FlUNG
Complaint preparation is the first step in the U.S. EPA s adjudicatory process arid provides tt e
basis for the initial tleanng arid any subsequent proceedings. A complaint generally descntes the
violation, indicates actions needed to come intO compliance, and, if appropnate, specifies administrative
penalties. Because of the significance of the complaint, it is important to follow the guidance on format
and filing of the complaint discussed here and presented in Sections fl.05, .14, and fl.17 of the
CROP.
In order to establish the fundamental case for issuing an administrative order or assesstng a c il
penairy under Section 9006 of RCR.A. enforcement personnel must be able to substantiate intrtè
complaint: (1) that the violation was committed, arid (2) that the person charged with the violation is
subiect to the re uiremer1ts of the UST regulatior 1 Because there are numerous UST
requirements, it is important for enforcement personnel to introduce dunng the hearing any evidence
that directly supports or proves each element of the violations charged.
In the written complaint, the Agency must establish each element of the violation. notr the
owner/operator of his or her nght to a hearing, and, if appropnate, assess a penalty. Pursuant to RC A
Section 9006(c), determination of penalties must take into account the senousness of the viclaticn arc
any good faith efforts to comply. 1 Under the CROP section .14(a), each complaint for the
assessment of a civil penalty must include the following items:’ 6
• Statement reciting the statutory authority for issuing the complaint:
• Specific reference to statutory and regulatory provisions alleged to have been
violated:
• Concise statement of tne factual basis for alleging the violation;
• Amount of ervif penalty proposed and reasoning berund it;
• Notice of an owner/operatoi’s right to request a hearing (within 30 days): and
• A copy of the CROP
CP.A CcmciancejErtlorcemeni Guidance Manual , Chapter 7, page 7.5.
For information on calculating administrative penalties to e assessed against violators of tne
UST regulations, see tne U S EPA Penanv Guidance for Violations of UST ReQulatlons .
Chacter 7. Part 3. ‘Comolairit Preparation arid Filing’ of the RCRA Compliance/Enlorcemer’t
L’cance Marual crovides additional guidance on the purpose of eacn element.

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OSWEP urec e
Because the information in the complaint sets the framework for the admirnstratNe process, the
complaint must be as complete as possible. Failure to file a complaint that meets the standards and
procedures outlined in this section may result in the following: (1) delay the proceedings and prevent
the Agency from being granted a motion for default: (2) make the Agency sub ect to adverse motions
by the owner/operator and (3) negatively affect the Agency’s ability to catty the burden of proof.
Section .O5(b) of the CROP requires the Agency to serve the owner/operator with a copy of the
complaint by (1) personal service, or (2) certified mail, return receipt requested ) 7 The ongiriai and
one copy of the complaint (with proof of service) must be filed with the Regional Hearing Clerk (section
fl.OS(a)(1) 01 the CROP).
4.4 PRE-HEARING STAGE
Subpart C of the CROP (sections v.15 to v.19) sets forth the requirements for the pre.hearing
procedures. During the pre-hearing process, the owner/operator may file an answer to the complaint
In addition, the U S. EPA and the owner/operator may initiate pre-hearing motions and conferences to
settle the matter or prepare for an administratrve heanng. Failure to follow the procedures within
Subpart C of the CROP could impair a n otherwise entirety correct proceeding, and may caueç the
Presiding Officer to dismiss or overturn the action.
4.4.1 Procedural Requirements for the Pre-hearing Stage
Section fl.05 of the CROP establishes the formatting and filing requirements for arty documents
established during the pre-hearirtg stage. These requirements are summarized below.
Format Requirements (section 22.05(c)J . A document considered sufficient for filing if (1) the
first page contains a ‘caption’ that identifies the owner/operator and correct docket number; (2) ear
me signature of the filing party, counsel, or other representative; and (3) it bears the name, address.
and teIe rlone number of the person filing the document it it is the inmal document filed by that person
(for exceotions and changes see CROP section .O5(c)(4)). If these requirements are riot met, the
Agency cffic:al receiving the filing may refuse to accept it until it is property amended
F:Ivnq Requirements (section 22.05(a ) ) The original complaint, the answer, and all other
documents served in the proceedings are maintained by the Regional Hearing Clerk, with copies given
to tne Presiding Officer and other parties.’ 8 Any party filing a document after the complaint has been
issued must certify that copies of the document have been sent to all other parties and the Presiding
Officer (see CROP section fl.05(a)(2)). Subject to confidentiaMy requirements, the Regional Hearing
Clerk must make all documents filed in the proceeding available for public inspection dunng business
hours The Agency enforcement official initiating the comp4airit should maintain a separate file
containing duplicates of documents flied in the proceeding, as well as other enforcement documents
relating to the case, which include:
Arty internal U.S. EPA documents used in generating thø enforcement action
(e g.. concurrence documents, checklists, etc.);
For service on a U S. Government. State. or local government official or entity. arid other
exceptions, see section .O5(b)(ii).(iv) of e CROP.
‘ Any file containing RCRA confidential information must be maintained in accordance with trie
Drocedures set forth in the RCPA Confidential Business Information Security Manual
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__________________________________________________ OSWE Irec ,e
• U.S. EPA investigative records such as laboratory reports and copies of
business records;
• Original penalty assessment worksheet(s);
• All correspondence between the owner/operator arid other U.S. EPA parties:
and
• All correspondence between the U.S. EPA and other Federal or State agencies
(e.g., DOJ).
This file should be retained in the Region for a minimum of 5 years after termination of the case. at er
which time it should be transferred to the Records Control Center (Source: RCRA
Comoliance/Eriforcement Guidance Manual (1984). page 7.25).
& Patre Discussion . After a complaint has been issued, certain Agency officials are pronib c
from discussing ex part. (i.e., without notice to all parties) the merits of the proceeding wttf . inaivlOuais
or their representatives who have an interest in the proceeding (see CROP section 22.08) At hougn ex
part. discussion is prohibited, if Such communication occurs, it is regarded as argument, arid a cocy cf
the ex pane communication is served on all other panies in the proceeding. Those other parties are
then afforded an opportunity to reply.
4.4.2 Answer to the Complaint
Procedures for answering a complaint are set forth in section V.15 of the CROP The
owner/operator must file an answer within 30 days after the complaint has been filed (RCP..A Sec ori
9006(b)). Sefore an answer to the complaint is tiled, the RA shall rule on all motions filed or mace
After the answer is filed, the Presiding Officer (e g., Administrative Law Judge) will rule on all moticns
If the owner/operator files the answer on time, the Agency may seek a motion for default
based on the failure to file a timely answer (see CROP section V. 17(a)(1)). Furthermore, the tiling of a
timely answer limits the U.S. EPA’s opportunity to amend since, as a matter of nght. the Agency may
amend the complaint once before tne answer is filed. Alter that, all motions for amending the comolaint
must be made to the Presiding Officer (see CROP section V.14(d)). Before the answer has been filed.
tIle Agency may withdraw the complaint, in its entirety or in pan (see CROP section V.14(e)). After ore
withdrawal before the filing of an answer, or after the answer h35 been flied, the complaint may be
withdrawn only upon motion granted by the Presiding Officer or RA.
Section V.05(b) of the CROP sets forth proper contents of an answer. The purpose of the
answer may be to contest the matenal on which the complaint is aseø, contest the proposed penarty
amount, or request a heasing. An insufficient answer may e regarded as an admission of charges riot
sufficiently discussed (see CROP section V.15(b)). If the ownerloperator fails to file any answer ii e o
admit, deny, or explain the allegations ri the complaint), me Agency will a o consider this an admiss cn
of tne charges arid may seek a default order (see CROP section V.15(d)).
4.4.3 Pre.hearlng Motions
Section V.16 of the CROP sets forth me procedures for motions in the hearing process Ert?’.er
the Agency or tne owner/operator may mak. a motion before a hearing is convened, and certain
motions must be made Curing the pre.heanrig stage. MotiOns are either filed with the RA (before r e
filing of an answer) or with the Presiding Officer (after the filing of an answer)
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______________________________ OSWER irectrve 96 C
The following types 01 motiOnS may be mace dunng the pre-hearing stage of the proceethng
• Motion for default for failure to file a timely answer (see CROP section
• Motion to intervene (see CROP section 22.11(a));
• Motion to file an amicus curiae brief (see CROP section 22.11(d));
• Motion for default for failure to comply with a pre-heanng order 04 the Presiding
Officer (see CROP section 22.17(a)(2)):
• Motion for default for failure to appe t a conference or hearing convened by
the Presiding Officer pursuant to sec ’: 22.19 of the CROP (see section
22.17(a)(3)).
• Motion for consolidation or severance (see CROP section 22.12(a). 22.12(b));
and
• Motion for postponement of heanng (see CROP section 22.21(c)).
Pursuant to section 22.16(b) of the CROP, a party’s response to any written motion must be flIeø
with the Regionai Hearing Cleric within 10 days alter tne motion has been received, except in trie case
of a motion for a default order. whiCh specifies a 20-day penod for replies. If a response is not filed
within the specified time, the motion will be considered waived and may be granted without further
argument. Like au documents filed in the proceeding, both the motions and any reply to motions must
comply with the filing and service requirements specified by the CROP section 22.05.
4.4.4 Default Orders
A default order is issued by the RA or Presiding Officer when one of the parties fails to perform a
task or obligation of the proceedings. There are’ ‘ee circumstances under which default orders may
e issued (see CROP section 22.17(a)):
• The owner/operator fails to file a time answer to the complaint;
• The Agency or the owner/operator fails to obey a pre-hearing or heanng order
that has bI fl issued by tflø Presiding Officer: or
• The Agency or the owner/operator fails to attend a conference or hearing without showing
good cause.
Motions for default are made either to the PA or Regional Judicial Officer in the first circumstance, or to
r.e Presiding Officer ri the second and third circumstances.
The procedures for default are set forth in s tiOn 22.17(b) of the CROP. Under these
eauirements. me parry making the motion for det3Jt must include with tne motion a proposed cefaurt
order The motion for default must be served on z zanies arid conform with the filing and service
requirements specified by section 22.05 of the CF . 3 Under Section 22,17(a), the party to wriom the
default has been served has 20 days to reply to • iotion.
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CSWE irecme
If the default order is issued by the Presiding Officer (or the RA or the Regional Judicial Officer I
a timely answer is not flied), it constitutes an initial decision’ of the proceeding. As an initial cec:sct-.
me default order must meet the requirements of sections 22.17 (b) and (c) of the CROP (also see
CROP section 22.27, initial Decision’). Section 4.6.5 of this chapter provides further detailed guidance
on initial decisions.
The default order becomes the final order of the Administrator within 45 days alter its service
upon the parties unless: (1) the default order is appealed, or (2) the Administrator elects to review me
default order (see CROP section 22.27(c)). The RA or Presiding Officer may motion to set aside me
default order (see CROP section 22.17(d)). Any further appeal of the default orcer must be mace
directly to the Administrator pursuant to section 22.30 of the CROP.
When the Administrator issues a final order upon default against the owner/ooerator . he or sr e s
subiect to the following consequences:
• The ownerloperator has essentially ‘admitted’ to all facts alleged in the
complaint and the ngrit to a hearing is waived;
• The compliance order becomes final: and
• The penalty proposed in the complaint will become due and payable within 60
days alter the final order is issued.
The admission of factual allegations and the waiver of hearing apply only to the immediate
administrative enforcement proceedings and do not affect any other proceedings. When me
Administrator issues a final order upon default against the AQency . the complaint is dismissed
preiudice. This means that the Agency cannot file another administrative complaint based cn re
allegations contained in t e dismissed complaint.
4.4.5 Pre-heerlng Conference
Section 22.19 of the CROP sets forth the procedures for the pro-hearing conference. When me
heanng is ordered, the Presiding Officer will usually convene a pro-hearing conference to facilitate arc
expedite me hearing proceeding. These conferences encourage informal, frank discussions among :r’e
parties on any sublects that could delay or expedite the hearing. The pro-hearing conference may
‘nvo e (CROP section 22.19(a)):
• Settling the case;
• Attempthig to simp ty the proceeding through consolidation of issues and
stipulation by the parties;
• M ending the pleadings:
• Exchanging information concerning evidence to be presented (e.g., identities of
expert witnesses and summaries of their testimony and exchange of exhibits,
dOCuments, and prepared testimony);
• Limiting the number of witnesses:
• Setting a time and place for the hearing; and
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Mend to matter that may exped e the thsposdion of the proceeding.
During the pre-heanng conference, the pasties exchange witness lists, bnef descnptions 01
witness testimony, and copies of all documents and physical evidence that will be introduced rito
evidence (see CROP section v.19(b)). Information not exchanged at this conference cannot be
introduced ,nto evidence without permission of the Presiding Officer. In some circumstances (e g..
potential intimidation of witnesses), early information exchange should not be undertaicen. Section
.19(f) of the CROP sets forth requirements for further discovery.
Any record of the pro-hearing conference generally consists of a summary prepared by the
P esiding Officer that incorporates all ruIiflg c r orders and any wntteri stipulations or agreements of :r e
patties. Except for those portions of a pre-’anng conference lI la relate to settlements, a transcript ct
the pre.hearing conference may be made ee CROP section fl.19(c)). The transcnpt or written
summary of the pre-heanng conference must be filed with the Regional Heating Cleric for inclusion in
the Regional Hearing Clerks file.
The Presiding Officer may ;esent ar 3c:elerated decision at any time during tne proçeecirigs
(see CROP section .2O). 11 issLed. an acceierated decision or dismissal order is treated as an initial
decision and, therefore. may be ac .oeaied to me Administrator under section .30 of the CROP (see
discussion in Section 4.6.5 of this ;r.apter on initial decisions). An initial decision must comply with tr e
requirements of section fl.V(a) of the CROP on content, filing, service, and transfer reOuirements. f a
partial decision iS rendered, the objecting party, before appealing, must wait for a final initial decision cr
obtain certification to appeal an interlocutory decision (see CROP section v.29).
4.5 SETTLEMENT
As discussed previously, the U S. EPA encourages settlement of an administrative proceed g
provided that the settlement is cor .slstent with the provisions and oblectives of RCRA and the UST
regulations Therefore, the Agency s complaint Should encourage the owner/operator to negotiate a
settlement through informal conferences. An informal settlement conference can be reauested at any
time, whether or not the owner/operator has requested a hearing (see CROP section 22.18(a))
However, the request for an informal conference does not extend the 30-day period during which the
owner/operator must submit a request for a nearing.
4.5.1 Procedures for NegotIating a Settlement
Section 22.18 of the CROP sets forth tl’ie procedures anø requirements for settlements. The
Agency and the owner/operator can hold a settlement conference before an answer is tiled arid a
Presiding Officer is appointed. Alter a Presiding Officer nsa been appointed, however, settlement
conferences are subject to the jurisdiction of the Presiding Officer who may order a pre-heanrig
settlement conference.
4.5.2 PreparIng a Consent Order
Pursuant to CROP section .l5(b), if e Agency and the owner/operator reach a settlement.
they must forward a written consent agreerr t and a proposed consent order to trio PA The conseflt
agreement is a negotiated settlement agreererit between the parties that will be final and binding once
it has been incorporated into a consent order tnat IS signed by the PA (see CROP section 22 1 8(c))
The consent agreement must state that the owner/operator
Admits the jurisdictional allegations of the complaint.
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• Admits the facts in the consent agreement, or neither admits nor denies
SPecifiC allegations in the complaint; and
• Consents to the stated penalty.
The consent agreement must also include any and all terms of the agreement among the pasties.
Consequently, any terms to which the parties have agreed in reaching a settlement must be reflected ri
the consent agreement (e.g.. agreement by intervenor not to pursue private damage remedies). Partial
settlement of the proceedings is permitted and, in many cases, is likely. The consent order eliminates
those issues of the proceeding addressed by that order and the consent agreement. Althcugri the
consent order does not have to restate all the terms of the consent agreement. it Should explicitly
incorporate by reference the conses it agreement as the basis for the consent order.
The consent agreement and the final consent order constitute important documents that aflect
the substarittve and procedural rights of the parties. Consequently, the ongirtals of these documents
must be placed in the Regional Heating Clerk’s file, and copies must be served as required by sec cn
22.06 of the CROP.
4.6 HEARING STAGE
The Presiding Officer will generally convene a hearing upon request by the owner/operator or f
the matter has not yet been disposed of by a default order, accelerated decision. dismissal order, or
consent order. lithe owner/operator answers the complaint by requesting a hearing, or d the Presiding
Officer orders a heanng, the Presiding Officer must issue a notice to all parties 20 days before the
hearing (see CROP section .21 (b)). The Presiding Officer will then hear arguments from both partes
during the hearing.
The discussions below describe the key elements of the adiudicatory heanrig including
admissacle evidence, oblections, rulings, transcripts, proposed findings, conclusions, initial decisions,
and aoceais Procedures for administratrve hearings are set forth in Subpart 0 of the CROP (sections
2221to2226) -
4.6.1 AdmIssible Evidence
The U S. EPA wil be the first patty to submit evidence during the hearing. In so doing, the
Agency must prove that the UST owner/operator was required to comply with UST regulations, that t e
vioIat ons in the complaint did occur, and that the proposed civil penalty is appropriate. After the
Agency nas submitted evidence, the owner/operator will present any defense to the allegations in tne
complaint. The Presiding Officer will admit or deny evidence presented by either patty pursuant to
section . (a) of the CROP. Guidelines for submitting exhibits and pfl’ysical evidence are foutid ifl
section fl.V(e) of the CROP.
After both parties have presented their evidence, the Presiding Officer will malte decisions on
eacn matter of the complaint. Oecisione will be udgeC upon preponderance of evidence; that is. eacri
carry must convince the Presiding Officer that his or her allegations appear more likely or probaole iran
:re ccner party s allegations (see CROP section v.24).
Evidence Relating to Setrlemenr . Any evidence relating to settlement that wOuld be excluded
under Rule 408 of the Federal Rules of Evidence is also excluded under the CROP. The Federal Rules
Of Evidence generally exclude any evidence of settlement or attempted settlement that it is offered as
roof of an admission of liability This evidence, however. may be admitted for another purpose. 5uc
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OSWER DirectNe 96
as proving bias of a witness or disproving a contention of undue delay. When Such evidence is offered
for these purposes, it may svIi e excluded if the Prasiøing Officer determines that its substantiating
value is outweighed by confusion of issues, undue delay, etc.
Test,morrv . Witnesses are generally examined oralty upon oath or affirmation (except in certain
cases as defined in CROP section 22. 2 2( C)). WrItten statements may be appropriate when the
testimony is too technical or academic to be deafly presented through direct questioning. Au affidavit
may be admitted into evidence when witnesses are unavailable (i.e., if they are exempt by a court order,
claim lack of memory, are senousty ill or physically impaired, or are absent despite efforts to secure
their attendance).
Subooenas and Summoning Witnesses . The Presiding Officer may issue a subpoena to require
certain witnesses to attend or to : - uce documentary evidence, or may grant a request for subpoena
pursuant to section 2 2.37(f) of the P.
Offers of Proof . When the :ing Officer rejects submitted evidence. me party seeking to
introduce me evidence may not c ..c ect to its exclusion, but may also make an offer of proof. A?i
offer of proof places the evidence nto the official record, and the Administrator on appeal c n use such
evidence to reopen the heanng. This offer is subject to requirements under section 22.23 of the CRCP
4.6.2 ObjectIons and Rulings
Pursuant to section 22.23 of the CROP, either party may object orally or in writing to the conduct
of the hearing. The Presiding Officer must rule on all objections and provide reesoris for the rulings,
which will become pan of the record. Copies of the ruling must be served in accordance with sector
22.06 of the CROP. A party wishing to appeal the Presiding Officers ruling on an objection must make
a motion in writing within 6 days of notice of the ruling to the Presiding Officer to certify Such ruling to
the Administrator. (Also see CROP section 22.29(a). ‘Request I or Interlocutory Appeal.’)
4.6.3 TranscrIpt of the Hearing
Pursuant to section 22.25 of the CROP, a hearing must be transcnbed verbatim, arid the reporter
must send the onginal and copies of the transcnpt to the Regional Hearing Cleric for filing. The
transcript of the hearing is an important document because many objections and motions made during
the tleanng are oral and are thus reflected only in the transcnpt. in addition, the transcnpt is used by
the parties to draft the proposed findings of fact, conclusions of law, and orders, which are then
submitted to the Presiding Officer for consideration in issuing the initial decision.
4.6.4 Proposed Findings, Conclusions, and Orders
At the conclusion of the hearing, parties may submit (within 20 days after service of the hearing
transcript) prop ed findings of fact, conclusions of law, and Orders to the Presiding Officer for
consideration ii usng tn. initial decision. The purpose of me proposals and supporting bnefs is IC ’
each party to state its position and to persuade the Presiding Officer to adopt its proposal (see CPCP
section 22.26).
4.6.5 InItial DecIsion
The Presiding Officer must issue an initial decision as soon as is ‘practicable’ after the perioo
specified for riling reply bnefs to the proposed findings, conclusions of law, and orders. The initial
decision should contain the Presidtng Officers:
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__________________ OSwER Cire r.,e:. .
• FindingS of fact and Conclusions for all material issues of law or discretion:
• Reasons for those findings and conclusions;
• Pecommended civil penalty; and
• Proposed final order.
An initial decision becomes a final order within 45 days after it is served unless a parry files a moticn ‘o
re-open the hearing or makes art appeal to the Administrator, or tne Administrator decides to review
initial decision (see CROP sections 22.V and 22.28).
Pursuant to section 22 28 of the CROP, a party has up to 20 days after the initial oecision to tie a
motion to reopen a hearing in orøer to submit additional evidence. Other parties have 10 days atter e
motion is filed to make replies. The Presiding Officer will rule on the motion and replies as socn as
prac ;cable.
4.6.6 Appeals of Interlocutory Orders or Rulings
Under section 22.29 of the CROP, the only orders or rulings that parties may appeal to the
Administrator as a matter of right are (1) accelerated decisions that decide the entire case: (2) dismissal
orders: (3) default orders; and (4) initial decisions rendered after an eviderniary heanng. All other
orders or rulings issued by an Agency official during the pta-hearing and hearing proceedings are
considered provisional to the proceeding. Such interlocutory orders must await the issuance of an
initial decision before they can be appealed.
4.7 POST.HEARING STAGE
Post-hearing proceedings usually consist of appeals of the final decision by the losing oar y
However. it is unlikely that an appellate court will overturn a Presiding Officers decision unless :rie
apoealing parry can prove that the basis of the verdict is flawed. The procedures for appeals. lirial
oroers, arid penalty payments are discussed below.
4.7.1 Appeal of Initial DecIsIon
jUf’SCtCt Ori F ACmtrnsrr tor As stated in section 22.27 of the CROP, the Administrator assumes
‘ull ur;S0iCtion of the case immediately after tne Presiding Officer issues sri initial decision. The
Administrator assumes junsdiction regardless of whether or not a party appeals the initial deCision. :1,
r cwever, a party flies a motion to reopen a hearing, the Presiding Officer may rule on that motion.
Notice of A,oc,eal end A eI1are Brief . The notice of appeal and appellate bnef must be filed wilri
:rie Hearing Cleric within 20 days after the initial decision is served on the parties. The notice of appeai
must address the disputed findings of fact and conclusion s of law contained in the initial decision ar’d
present the appellant’s arguments as to why the appeal should be granted. Specifically, under sec cn
22 20 of the CROP, the notice of appeal must contain:
• Alternative findings of fact;
• Alternative conclusions regarding issues of law or discretion:
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OSWER irec le 5’
• A proposed order that reflects the ConCluSions and findings desireø by the
appellant; and
• Relevant references to the record and the initial decision.
Any other party may file a reply brief with the Heanng Cleric within 15 clays of service of a notice
of appeal arid appellate bnef. The reply bnef is specifically intended to address only tne appellate tinef
and should be so limited (see CROP sections 22.27(c) and 22.30(b)).
Adminvstrator s Actions . Even if the initial decision is n formally appealed, the Administrator may
decide to review the initial de’iSiOn. Otherwise, the initial decision of the Presiding Officer becomes tne
final oraer of the Administrator 45 days after service of the initial decision (see CROP sections 22 27(c)
and 22.30(b)).
4.7.2 FInal Order
The Administrator is required to issue a final order as soon as is practicable after the-final action
of the appeal process — either after filing of aopellate bnefs, filing of subsequent bnef S if orderbd by the
Administrator, or oral argument, whichever - ‘:urs last (see CROP section 22.31). In the final order. tr e
Administrator may: (1) adopt, modify, or se 4ide all or some of the findings and conclusions
contained in the initial decision or order ant 2) increase or decrease the recommended penalty unless
the initial decision is a default order. The CROP requires the final order to contain the reasons for any
decision that the Administrator makes.
Pursuant to section 22.32 of the CROP, a party may file a motion to reconsider a final order wit. I
10 days after the final order is issued. This motion must explain and provide evidence for any mar.ers
that the party claims have been decided erroneously. The motion may also include a request that tne
final order be stayed until the mailer is resolved. Unless such a request for a stay iS granted. however.
tne effecirve date of the final order is the date it was issued, unless otherwise ordered by the
Administrator. A party may appeal the findings of the final order to a U.S. Court of Appeals. The
obligation to pay the crvil penalty does not become due until the party has appealed or exhausted all
appeais The payment of a civil penalty specified in a final order of the Administrator is due and
payable in full within 60 days after the respondent receives the final order, unless otherwise agreed by
tIie parties.
4.8 COST.RECOVERY ACTIONS
If an ownerf operator fails to respond to Section 9003 corrective action orders, and immediate
cleanup of the site is needed, it may be necessary to expend LUST Trtist Fund monies for corrective
action at the site. The specific situations in which LUST Trust Fund monies may be expended are
discussed in Chapter 1, ‘Overview of the UST/tUST Er orcement Program.’ Under Section 9003(h), tne
owner/operator of a leaking UST ls liable for any LUST Trust Fund monies used by the U.S. EPA (or a
State under a Cooperative Agreement) for corrective action or enforcement. Thus, the Agency or the
State Should make efforts to recover such costs from tl’ie owner/operator. Consistent with the U.S
EPA’s overall approach to the UST program, cost-recovery efforts will be made pnmanty by the States
( Cost Peccverv POIICV for the Leaking Underground Storage Tank Trust Fund , OSWER Directive
9610 10. Octooer 1988). Under the Agency’s - st-recovery program. States with Cooperative
Agreemer 1 ts iil be able to litigate and settle - ... ‘ very claims without the involvement of the U S EPA or
DOJ P’lowever. there may be circumstances vhiCfl U.S. EPA and/or DOJ involvement may be
necessary. sucfl as where the Agency respor ;s directly to a release, and in rare cases of overfihing
:CSWER Directive 9610 10)
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OSWER DIrec e 5 ”
Once a cleanup has been conouc , either by a State or by the Agency, cOst ’reccvery
procedures will typica y include the following steps: (1) demand for payment: (2) negotIation for a
settlement of the recovery claim: (3) litigation (when demand for payment and negotiations fail)’ and 4)
collection and case closure. The first step in pursuing cost recovery from an owner/operator s ‘0
compile cost documentation for the demand for payment. The Agency has developed a number of
documents tO provide guidance for this process, including:
• Guidelines for UST Trust Fund Cooperative Agreements . OSWER Directive
9650.6, Apnl 1987.
• iritenm Financial Policies and Procedures Governing Use of the Leaking
Underground Storage Tank (LUST) Trust Fund.’ Comptroller Policy
Announcement No. 8713, .June 3. 1987.
• Suoplernerital Requirements for LUST Trust Fund Cooperative Agreements ,
OSWER Directive 9650 6-1. August 1987.
Other documents that may be useful (check with the Regional financial management rvision at your
Freedom of Information Act Officer) include:
• ‘Reporting and Recordkeeoing Requirements for LUST Cooperative
Agreements.’ Memorandum from David P Ryan and Harvey G. Pippin, July 2.
1987
• ‘Letter of Credit Drawdown Procedures for States Receiving LUST Trust Fund
Cooperative Agreements.’ Memorandum from David P Ryan. Comptroller,
August 12. 1987.
• ‘LUST Cooperative Agreement Issues.’ Memorandum from Howard Corcoran,
CGC. artd Joe Ret.zer. OUST, August 26. 1987.
• ‘Development of LUST Cost Recovery Policy and Financial Management
Guidance.’ Memorandum from David P. Ryan. Comptroller, and Ron Brand.
OUST. March 25. 1988.
The following guidance documents prepared under the U S. EPA Superfund program may also orovi e
useful information on cost recovery: (1) ‘Procedures for Documenting Costs for CERCLA Section 107
ActiCns’ (Office of Waste Program Enforcement. January 1985); (2) ‘Financial Management Procedures
for Documenting Superfund Costs’ (Financial Management Division. September 1986); (3)
articipatlon in the Suoerfund Program Manual, Appendix U Cost Documentation Reguirements 1 0r
Superfund Coooerative Agreements , (OSWER Directive 9375.1.4-U, September 1986), (4) ‘Resource
Management Directive 25500 . Financial Management of the Supertund Program’ (Comptroller. Jury 25
1988); and (5) SuDerfund Cost Recovery Strategy , (OSWER Directive 9832.13, July 1988).
Based on the cost documentation collected, enforcement personnel should prepare a demand
letter to issue to the owner/operator. Once the demand letter has been issued, it may be appropriate ‘o
negotiate a sett:ement for the costs before any formal litigation la s been pursued. Because they are
more cost effective, negotiated settlements are generally preferred over litigation (OSWER Directive
9610 10) Several LI S. EPA documents provide guidance on tne use of alternative disoute resoiuticn
ecnnigues for settling claims: (1) ‘Final Guidance on the Use of Alternative Otspute Resolution
Techniques in Enforcement Actions.’ (August 14, 1987). arid (2) ‘Artitration Procedures for Smail

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QSWER Direc tve 5 C
SuperfUnd C Recovery Claims,’ 53 E 29428, August 4, 1988. If riegoliauons we unsuccessful arid
the Agency has df llectIng payment, it may be necassaiy to refer the case to DOJ for tudiclal
action.
Even where no administratIve or judcial settiement reached, a Costrecovery case must be
forrnaity clcseø. Factors justifying case closure include situations where costs of pursuing the case
further will approach or exceed the potential recovery or will result in bankruptcy of the owner/operator
Some U.S. EPA Regional offices have airea y developed procedures for closing out Superlund cases
that may also e appropñate for closing LUST cases.
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CHAPTER 5. PROCEDURES FOR SECTiON 9003(H) CORRECTIVE ACTION ORDERS
When an UST owner! operator fails to initiate or conduct aopropnate correc e action for an LiST
release. it may be appropnate for enforcement personnel to issue a corrective action order. U S. EPA
enforcement personnel are authonzed by Section 9003(h) of RCRA to issue administrative orders tnat
compel owner/operators of leaking LiSTs to take specific corrective actions. This chapter discusses tr e
U.S. EPA ’s authority to issue corrective action orders under Section 9003(h) and provides guidance on
the procedures for issuing and conducting hearings under such orders.
5.1 FRAMEWORK OF THE ADMINISTRATiVE PROCESS
The discussion that follows provides statutory background on the U.S. EPAs authority to issue
corrective action orders arid discusses the regulations that govern the administrative process or Sucrt
orders. It also briefly desCnbes the roles of vanous Agency personnel in the administrative process
5.1.1 Statutory Background
Section 205 of the Superfund Amendments and Reauthorization Act 011986 (SARA) added
Section 9003(h) to RCRA Subtitle I, establishing a program for cleanup of petroleum from leaking LiSTs.
A fundamental element of the cleanup program tS the Agency’s authority under Section 9003(h) to
respond to UST releases through corrective actions, enforcement activities, and cost recovery.
Specifically. Section 9003(h)(4) enables the Agency to issue corrective action orders that require an
owner/operator of a leaking UST to carry out investigative studies and undertake corTective actions or
closure activities. These administrative actions are generally used in non-emergency situations o
promote timely response to releases for which th 5 owner or operator fails to initiate corrective ac’.icr,
5.1.2 Regulations Governing AdmInistrative Actions
The procedures for issuing Section 9003(h) corrective action orders will be governed by tr’e Pules
Governing Issuance of and Administrative Hearings on Corrective Action Orders, codified at 0 CFR
Part 24. The procedures at Part 24 provide a streamlined and less formal approach for presenting
arguments and evidence than 40 CFR Part 22. These streamlined procedures were initially developed
for issuing RCRA section 3008(h) corrective action orders (53 12256. ApnI 13. 1988). However, the
Agency intends to amend Part 24 to include administrative actions conducted under Section 9003(h) for
issuing corrective action orders (the amended procedures are expected to e published in the Federal
Re ,ster in Summer 1990).
The uncomplicated and less formal nature of the administrative procedures under Part 24 make
more suitable for issuing Section 9003(h) corrective action orders than Part 22. in particular, the Part 24
procedures use a simplified process to determine th 5 factual basis for the enforcement action, ariø
provide a framework more suitable to tne technical nature of dcisions regarding corrective action
orcera. Unlike Section 9006 orders, which present specific violations and require compliance with
soecific requirements. Section 9003(h) orders seek to compel owner/operators to undertake studies O
examine releases and to take measures necessary to remediise such releases. Thus. in Part 22
proceedings. EPA decision-makers are required to resolve spectc facts relating to the violation fe;
did the violation occu(” how senous was the violation? what is the economic benefit to me violator’).
wflile tne lunsdICtional prerequisite needed for a Section 9003(h) order is establishing that the re’ease
from an UST nsa occurred.
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OSWER Du’ectrve 96 G
The Part 24 regulation uses a two.tiered set of procedures I or conducting administrative heanngs
(1) Subpart B. ‘Hearings on Orders Requinng Investigations or Studies and (2) Subpart C, ‘Heanngs on
Orders Requinng CorrecINe Action.’ The Subpart C procedures are SorTle’What more formal than those
under Subpart B. and require the owner/operator to implement morn comprehensive (rather than
intenm) corrective action measures. Because Section 9003(h) corrective action orders will typically
require the owner/operator to undertake corrective action measures, the Agency determined that the
procedures for hearings requested by the recipients of such orders are more appropriately governed by
Subpart C hearing procedures. Thus, owner/operators who request hearings for a Section 9003(h)
corrective action order will be subject to the Subpart C procedures, The Subpart B procedures will not
be employed for Section 9003(h) orders.
5.1.3 The Agency’s Roles In the AdmInIstrative Process
Under Part 24. the ‘petitioner issuing the initial order must be an authorized official of the U S
EPA. other than the Regional Administrator or the Assistant Administrator for the Office of Solid Waste
and Emergency Response (see section 24.02(b)). The Presiding Officer of the case must be either the
Regional Judicial Officer (as described in section 22.04(b) of Past 22) or another U.S. EPA attorney wno
has hac rio poor connection with the case, including performing any iwestigative or prosecstir g
functions. Unlike the Part 22 procedures, the Part 24 procedures do not require that the Presiding
Officer be an Administrative Law Judge (AU). For the more informal procedures under Part 24. an
AU’s experience in conducting formal adjudicatory hearings is not required an does not justrfy the
added cost.
5.2 OVERVIEW OF ThE ADMINISTRATIVE PROCESS
The procedures for hearings on corrective actions are set forth in Subpart C of 40 CFR Part 24
Under these procedures, the major steps in the litigation process of issuing a Section 9003(h) corrective
action order are
Order Preoarauon and Filing . In this stage. the appropnate Agency Regional
office will prepare and serve the initial order on the owner/operator. This order
will establish the Regions determination that a release from an UST has
occurred, prescribe appropnate Corrective action, and richly the owner or
operator of his or her right to a hearing.
• PreMearing Stage . After the owner/operator requests a heanng, the Regional
office that issued the order will submit documents supporting the factual basis
for issuing the order. Similarly, tne owner/operator will submit documents
supporting the basis for contesting the order.
• Settlement Conference . At any time during the proceedings, the
owner/operator may requ an informal settlement conference. If the
conference results in an order agreed to by both parties, the order will be
issued as the final administrative order on consent.
• Hearing . The hearing consists of oral presentations by both parties and
questions from trio Presiding Officer, with no direct- or cross-examination. After
a heanng is concluded, the Presiding Officer will recommend a decision that
will be passed on to the Regional Administrator, who will make a final decision.
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CSWER Curec .’ € :
Detailed guidance on each of these steps is provided ,, the sections that follow. Because the
descnptlonS be summanze and frequently refer to requirements set forth in 40 CFR Part 24, the
reader is advised to obtain a copy of e Part 24 procedures.
5.3 PREPARATiON AND FILING OF THE INITiAL ORDER
Similar to the Part procedures, preparation of the initial order is the first step in the Part 24
adjudicatory process, and provides the basis for the heanng. Under sectIon 24.02(a), an order is.sL.ed
unilaterally will become a final order either after the Regional Administrator has made a final dec:sicn :r
after 30 days from issuance of the order, if rio hearino is requested. If an initial order is agreec o
both the Agency and the owner/operator, the final order will be a final administrative order on corsert
(also referred to as a consent order).
5.3.1 Elements of the Order
In order to establish the fundamental case for issuing the order, enforcement personnel rrtusj e
able to substantiate that a release tram an UST has occurred. In addition, the initial admigist!ative
corrective action order will also contain the following (see section 24.02(c)):
• Reference to RCRA Section 9003(h), the legal authority for issuing the order.
and evidence that the owner/operator receiving the order is subject to these
requirements;
• Concise statement of the factual basis upon which the order is issued (I e.
evidence that a release from an UST into the environment has occurred);
• Notification of owner/operator’s right to request a heanrig with respect to any
issue of matenal fact or me appropnateness of the proposed corrective action
(within 30 days); and
• Indication of which Part 24 hearing procedures are appropnaze (i.e.. the
Subpart C procedures).
For most cases involving releases from USTs, the corrective action order issued under Section 90C3 ri
will aiso tnaicale the measures that the owner/operator must undertake in response to the UST re’ease
5.3.2 The Admlnl stlve Record
An important component of the Part 24 procedures is the requirement that the U.S EPA make
available to the owner/operator the entire administrative record underlying me initial order (see sect. cr’
24.03). Thus, on, or before, the date that the initial order is issued, the Regional Office issuing the
order must deliver to the Clerk a copy of the administrative record. This administrative recoi’d must
contain all the infomiation that the Agency considered in its decision to issue the order, regardless :1
wrietner the information supports that decision. This record must be available at the appropriate
Agency office for inspection by the owner/operator (or the public) alter the order is issued.
5.3.3 Es part. Olscuulons
After an initial order is issued, the Presiding Officer, the Regional Administrator, and certain ci r ”
Agency officials are prohibited from discussing ex arre (i e. without notice to all parties) tne mer
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OSWER Direc rje 61C ’
the proceeding with Agency staff involved in the or other interested ifld iduals (see section
24 13(b)). Although ex pane discussion is prohibited. if such communication does occur, and the
information discussed is relevant tO the case, a summary of the discussion must be served on all other
parties i t t the proceeding. Those her parties are given 10 days to reply.
5.4 PRE.HEARING STAGE
Once issued, the initial order will become final within 30 days unless the owner/operator requests
a heanng. If the owner/operator does request a hearing, the pro-hearing stage provides an opportuniry
for both parties to obtain further information. Section 24.04 establishes the filing and service
requirements for the initial order arid arty other doc - nents established curing the pre-heanng stage.
These requirements should be followed to ensure ‘ t e hearing proceeds correctly.
5.4.1 Request for Hearing
Within 30 days of receiving the initial order, the owner/operator may respond in writing to the
CIer of the Regional Office and request a hearing. Upon receipt of the owner/Operators reqoest for a
heanng, the Regional Administrator designates a Presiding Officer to conduct the hearing and p siCe
over the proceedings. Once appointed, me Presiding Officer establishes a schedule for
• The owner/operators submission of memorandum responding to the order:
• The Agency’s submission of a response; and
• A public hearing, which must be scheduled within 45 days of the order (see
section 24.14(a)).’ 9
5.4.2 Pre-hesrlng Submissions
in accordance with the Presiding Officers sc uIe. the owner/operator must file a memorandum
stating his or her position on the order. This respc . must 3oecrfy each item in the order that the
ownerioperator wishes to dispute, and must provice ito basis for that dispute (see section 24 05(c)) Lf
ttte owner/operator wishes to modify the order, the response must include arty such proposed
modifications (see section 24.14(c)).
in aacition, tne Subpart C proceedings allow the owner/operator to request permission to Submit
up to 25 written questions to the U S. EPA Regional Office issuing the order (see section 24.14(d)).
Both the request and the questions themselves must be submitted to the Presiding Officer at least 21
days before trio hearing. The purpose of allowing an owner/operator to ask questions is to OrOvide
protection against factual error. In making the decision of whether to respond to the questions, the
Presiding Officer wiil consider whether answering the questions is necessary for adequately resoMng
t e facts at sue (see sectIon 24.14(d)). Arty questions regarding privileged internal communication will
be disallowed. It thO Presiøing Officer does decide to allow thO questions, he or She may limit me
number or scope of the questions, or may delete cc v,se specific questions if they are irrelevant or
unnecessary Once the Presiding Officer has Subr the questions to the Regional Office, they must
be answered within 14 days. All filing and service. cuments must fallow the guidelines described n
section 24 04
‘ Under section 24 14(b), the Presiding Officer may extend deadlines for filing or corlduct:flg tne
nearing. necessary

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OSWE irec - e 3€’:
The Agency’s pre.heanng submissions include a reSPOnse to the owner/operators disoue cf e
initial order. The pnmary goal of trie U S. EPA response IS to provide a full analysis of the aoplicac ’j
of the UST requirements to the owner/operator, and to demonstrate the need for the appropriate
corrective action.
In adaition. dunrig the pre-hearing stage. the Presiding Officer has the discretion to order eitrter
party tO Submit additional informanort on any undeveloped factual, technical, or legal matter in trie
proceeding (this information may also be requested at or after the heanng, if appropriate). In accrton
the Presiding Officer may also issue subpoenas requiring certain persons to attend the hearing an
give testimony, or requtnng the owner/operator to produce relevant papers, books, and documents
Since 40 CFR Part 24 heanng procedures do not allow direct- or cross-examination of witnesses. : e
subpoena power is to serve only as art adjunct to the Presiding Officers authority to ask questions ar’
otherwise take steps to clarify disputed factual matters.
5.5 SElrn.EMENr CONFERENCE
At any time during the pre-hearing procedures. the owner/operator may request anjpforrrai
settlement conference by contacting the U.S. EPA employee indicated in the order (see secficr, 24 O7’
(The request for an informal conference does not, however, excuse the owner/Operator from having :o
request a hearing within 30 days.) The purpose of such informal settlement conferences is to
encourage informal, frank discussions among the parties on any sublects that could delay or excec te
the hearing. In addition, informal conferences allow the owner/operator an opportunity to discuss # ith
the appropriate Agency technical and legal personnel all aspects of tne order. If, during an informal
settlement conference, art order is agreed to by both parties through negotiations. the oroer wiil :e
called the final administrative order on consent.
5.6 HEARING STAGE
Part 24 hearings eliminate time-consuming hearing features (i.e., direct- or cross.exarr.inatcr)
ecause issues concerning whether an UST release has occun’ed and appropriate corrective actions
are likely to e complex and more susceptible to resolution through analysis of a full documentarj
recora. In adCrtion, these procedures promote timely selection and implementation of aopropriate
corrective action. In overseeing tne hearings, the Presiding Officer is responsible for ensuring triat rie
hearing process is lair and impartial manner, for avoiding unnecessary delay in the disposition of re
proceedings, and for maintaining order.
5.6.1 HearIng Procedures
Under Subpart C of the Pait 24 proceedings, the heanng process consists of oral presentations
and rebutta by both patties, and questions from the Presiding Officer. The hearing process begins
with a representative of the U.S. EPA introducing the order and its supporting evidence. and
summanzing the basis for the order. The owner/operator may then respond to the administrative reccrd
and offer any facts, statements, explanations, or documents that are re evart to t e issues in me orcer
In this presentation, however, trio owner/operator is not allowed to present any new documents LrIess
re or she can demonstrate that sucn documents could not have been submitted to the Agency ce cre
me rearing The Agency will then have an opportunity to present a rebuttal to the issues preseritec ‘i
the owner operator. The Presiding Officer may allow the owner/operator to respond to any sucr,
reouttal submitted. The Presiding Officer may also allow Agency representative to respond to any new
information submitted by the owner/operator In addition, the Presiding Officer may ask questicr.s :t
either side during the hearing.

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OSWER Drec ive 96 ’C
5.6.2 PresIding Officer’s Recommendltk
As SOOrt practicable after the heanng, the Presiding Officer will file a recommended decision
with the Regional Administrator. This recommended decision should be based on the entire
administrative record, which consists of the transcript or recording of the heating arid all written
submittals filed with the Cleric by the pasties. vicluding post.rteanng submissions. The recommended
decision must address all factual or legal sues raised by the owner/operator arid must indicate
whether the order should be modified, withdrawn, or issued as is. If the Presiding Officer determines
that the corrective action filed by the Agency and contested by the owner/operator is not clearly
supported by evidence in the record, the Presiding Officer wiN recommend that the order be mod rfied or
withdrawn. Arty decision recommended must include art explanation of the decisior., and should cte
any material contained in the record that is relevant to the decision.
5.6.3 FInal Order
After the Presiding Officer h corr ded the decision, the Regional Administrator assumes
junsdiction over the proceedings. Pan rocedures provide both the owner/operator , n0 the
Agency with the opportunity to file cximents on the recommended decision within 21 days. The Cter
promptly transmits any such comments received to the Regional Administrator for his or her
consideration in reaching a final decision (see section 24.17(b)).
8ased on the Presiding Officers recommended decision, any further comments, and the entire
administrative record, the Regional Administrator will make the final decision. There are three possible
outcomes for the final order
If the Regional Administrator disagrees with the initial order, based on the
administrative record, and decides to modify the order, the official who signed
the initial administrative orcer must modify tIle order in accordance with the
terms of the final decision, and — ct file and serve a copy of the final
administrative order. The final c -‘ must include the legal arid factual basis
for the modification.
If the Regional Administrator has ohanges to the order, the final decision will
declare the initial administrative . er to be a final order. Because the
Presiding Officers recommended decision will include the basis for his or her
decision, the final order will also .nclude that justification.
If the Regional Administrator declares that the initial order must e withdrawn,
the official who signed the initial aCmini tratrve order must file and serve a
w*hdrawai of the initial order.
All final orders are effective upon service of the final decision. The final decision arid the final
administrative order are final agency actions that are effective on filing arid service. These actions an
not aopealable to the Administrator, appeals may only be sought through ludicial channels (see
Chapter 6)
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OSWE irec - e ; ‘:
CHAPTER 6. PROCEDURES FOR JUDICIAL ENFORCEMENT
In addition to administrative enforcement responses, the U S. EPA may initiate civil judicial actcrs
for violations of the UST requirements. Section 9006 of RCRA authonzes the Agency to commence a
civil action in the U.S. District Court for appropriate relief, including a temporary or permanent n 1 unc cn
At the request of the Agency. DOJ will file judicial actions in the U.S. District Court. The action must e
filed in the U.S. Oislnct Court for the judicial district in which the violation occurred.
U.S. EPA enforcement personnel may initiate CMI judicial actions to require an UST owner cr
operator to comply with regulatory requirements and to assess civil judicial penalties. This crtacter
provides guidance on choosing the types of judicial actions to be initiated under Subtitle I, Cescrtes
me process for filing judicial actions, and discusses the role of settlement agreements.
6.1 CIVIL JUDICIAL ACTIONS
Enforcement personnel may initiate judicial actions to compel compliance (through of a
judicial compliance order) or to seek judicial penalties. For UST cases requiring immediate judic al reiief
(e.g., in cases of leaking UST5 where immediate remedial action is needed), enforcement personnel
should seek injunctive relief or a temporary restraining order to accompany the judicial order.
6.1.1 Use of Judlelil ComplIance Orders and PenaltIes
Judicial referrals are usually reserved for cases where an UST owner/operator has a history of
noncompliance, or where judicial action iS necessary to deter others from violating trio reguireme-ts
Judicial enforcement Should also be initiated when an UST owner/operator has riot complied witFi a
Section 9006 adminiStrative compliance order or a Section 9003(h) corrective action order. Agency
enforcement personnel should pursue judicial orders to compel compliance and to obtain judicial relief
ri me form of penalties. Section 9006(a)(3) provides that owner!operators that fail to cornory with a
Section 9006 order are liable for additional Civil penalties of not more than $25,000 for eacn day of
noncompliance with the order, in addition to the penalties assessed in the order. Such penalties may
aiso be assessed for Section 9003(h) corrective action orders because these orders are to be erifcrceo
in me same manner as Section 9006 orders (see Section 9003(h)(4)).
in general. however, preparing civil judicial cases is resource-intensive because of the
involvement of DOJ arid the more formalized procedures needed for court actions. In aøcition, the
;rtigative process is slow, with some cases taking several years to complete. Thus, Agency enforcement
cersonnel should attempt to address violatiOnS through other mechanisms before pursuing judicial
responses, unless it appears that the owner/operator is not likely to respond to administrative actions
The statute øoes not require triat tri. Agency exhaust all potential administrative actions before pursuirç
udic:aI actions.
6.1.2 Procedures for Fifing JudIcial ActIon.
To support a iudicial action, enforcement personnel must provide competent evidence to tre
cOurt ri accordance with the Federal Rules of Evidence. Thus, prior to filing the action. enforcement
ersorlnei snould review each element of the offense to ensure that there is sufficient evidence to
Support each claim of the violation.
Requests for CMI 1 udicial actions from U S EPA Regional offices are usually ref erred to CJ r ’
.rec or mrougri U S EPA Headquarters. Office of Enforcement. In most cases. trie egioriai Cr’ :
.46-

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OSWEP Cirec e
will initiate the requ by establishing a litigation team that prepares a referral package for
Headquarters. The Regional office will also designate a lead attorney and lead technical representatNe
for thS case. The relerraj package demonstrates the need for litigation in the particular case and
presents the Agencys technical and legal data on the situation. Contents of the package induCe:
Cover Letter . letter to be signed by the A.A for the Office of Enforcement that
describes the incident and requests the litigation;
• Referral Memorandum - memorandum that summanzes the primary elements of
the litigation, and includes the name of the defendant(s), brief summary of the
case, identification of major issues, status of past Agency efforts, and names of
U.S. EPA and DOJ attorneys ir ivoFved in the case; and
• Civil Litigation Report . report prepared by the lead attorney that indicates the
specific relief sought (e.g., injunctive relief or penalties), identifies specific
sections of the regulations violated, and indicates the available supporting
evidence. The report also identifies any expected defenses by the
owner/operator and any pending administrative or judicial actions against th
rvai rIririPr2trir
The RA may either refer actions directly to DOJ, with notice to the Assistant Administrator for the Office
of Enforcement, or may refer the action to the Office of Enforcement for their referral to DOJ. If the
referral is through the Office of Enforcement, the RA sends the package to them with copies to the Ms
of the Office of Solid Waste and Emergency Response (OSWER) and DOJ. Once the Office of
Enforãement and OSWER have determined that the package is in order, the Office of Enforcement
attorneys will transmit the package to DOJ or the U.S. Attorney’s Office. The Office of Enforcement will
notify the RA and OSWER when the referral is transmitted. After this point, the lead attorney wiil te
responsible for providing supplemental information to DOJ or the Attorney’s Office, and keeping Li S
EPA program officials and attorneys informed of case developments.
For detailed information on the investigation of judicial actions and the referral to DOJ.
enforcement personnel should consult the following documents:
• RCRNCERCLA Case Management Handbook , OSWER Directive 9837.0.
August 1984;
• Exoanded CMI Judicial Referral Procedures , OSWER Directive 9891.1, August
1986;
• Memorandum of Understanding between the Department of Justice arid the
Environmental Protection Agency (June 15, 1977).
• General Operating Procedures for the U.S. EPA’s Civil Enforcement Program
(July 1982);
• Case Referrals for Civil Litigation (September 1982);
• Headquarters Review and Tracking of Civil Referrals (March 8. 1984); and
• Revised Regional Referral Package Cover Letter and Data Sheet (May 30, 1985)
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OSWER Crec e g5’
The list Of reference documents provided in mis guidance manual Suggests sources for cOtaining trese
documents.
6.2 INJUNCTiVE ACTIONS
In cases where immediate action is needed, e g., in the case of an UST release that is threaten,r
a public water supply, enforcement personnel Should seek injunctive relief. As proviced by thé autriorrty
under Section 9006. U.S. EPA enforcement personnel may initiate judicial actions for injunctive relief in
the form of temporary restraining orders, preliminary injunctions, or permanent inlunctions, These
actions are typically required in emergency situations where an order is needeø quickly to cease
owner/operator actions that threaten the environment.
6.2.1 Temporary RestrainIng Orders
A temporary restraining order (TRO), also known as a provisional inpunction. is used for imrnethate
temporary relief pnor to issuing a preliminary iniunction. The purpose of the TRO is to stabilize the
situation until a motion for a preliminary injunction can be heard. Although the TRO is themost
expedient injunctive relief that can be obtained, its authority us limited to a short period of time (10
days). The process for obtaining a TRO is governed by the Federal Rules of Civil Procedure. in a
typical case, the owner/operator (or his or her attorney) will be given oral or written notice for the TRO
The facts that demonstrate the ‘immediate and irreparable injury, loss, or damage’ should appear in
e her a complaint or a separate alfidavit.
Enforcement personnel do not have to give notice If it can be shown that immediate and
irreparable harm will occur before the owner/operator can be notified, and if the government artcrrey
certifies in wrlttng the efforts talien to give notice anø the reasons why notice iS riOt required. In ese
cases, the motion for the preliminary injunction must be filed as soon as possible. If the U S EPA cces
not proceed with tne application for a preliminary injunction, the TRO will be dissolved Dy the court
6.2.2 PrelIminary InjunctIons
The purpose of the preliminary injunction is to maintain the situation until final determination after
a full hearing. The preliminary injunction requires advance warning to the owner/operator and can last
longer than the 10-day TRO. The owner/operator has the right to contest the motion, arid the U S EPA
applicant bears tne burden of proof.
Either a preliminary injunction or a TRO should be considered when:
Immediate and irreparable injury, loss, or damage will result if relief is not
granted; and
• There is a likelihood c i success at trial based on the facts before the court.
r ne Court grants a motion for a preliminary injunction or TRO. the Regional attorney arid the U S
artcrriey must begin prepanng for me next stage in the proceeding (e.g.. a full trial, or a permanent
injunction) if the Court denies the inpunction, the U.S. EPA may appeal the denial or pursue other e ai
remedies.
-48.

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— OSwE D’rec rie
6.2.3 Permanent Injunctions
A permanent injunction is generally unlimited in length, arid is granted only after a full trial on its
merits. Consequently the udgment granting the permanent injunctiOn constitutes a final disposition Of
the suit, although it may be appealed to a circuit court Permanent injunctions Should be considered
when:
• Irreparable injury, loss, or damage will result it relief is not granted: arid
• The owner/operator is recalcitrant arid has demonstrated a history of
noncompliance with administratNe orders.
In addition, courts have certain requirements that must be met before they will gçant permanent
injunctions. Traditionally, courts have required that: (1) the petitioner demonstrate that other
enforcement actions (e.g., assessing penalties) will not be adequate to mitigate the environmental
hazard caused by the owner/operator; (2) rreparable injury, loss, or damage will result if relief is riot
granted; and (3) that administrative remed s have been exhausted (although Section 9006. does not
require that the Agency attempt administrarve actions before initiating judicial actions). The c ’rneria
used and the emphasis placed on each critenon will vary from district to district
6.3 SETTlEMENT AGREEMENTS
In many cases, the parties will settle judicial actions by consent before the tnal begins. Such
settlement agreements usually take the form of negotiated consent decrees. AlthOugh the content
of consent decrees will vary depending on the circumstances of the case and the items agreed upon.
most consent decrees have the following elements in common: 21
• Preliminary Statement - explanation of each party’s purpose in the agreement
and summary of important facts of the case;
• Jurisdiction - stipulation that the court has jurisdiction over both the subject
matter and the parties;
• Parties Subject to the Terms of he Consent Decree - statement that the parties
agree to be bound by the document and identification of the terms applicable
to each parry;
• Iniunctive Relief , references to the regulatory requirements with which the
owner/operator must comp and detailed information on flow compliance will
be achieved so that there will be no misunderstanding of what actions the
owner/operator must take:
• Schedule for Compliance - an expeditious schedule for completing the terms of
tne agreement;
These judicial settlement agreements nd corresponding consent decrees resulting from
negotiations are riot to be confused with the :onsent agreements and corresponding consent orcers
traz are negotiated in the administrative process.
2’ PCP..A Cornpliance.Er ’fcrceme-t Guidance Manuai (1984), Chapter 8
.49.

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QSWEP Direc ive ;5:
• Stipulated Penalties - penalties for noncompliance with the agreement:
• Penalties for Past Violations ;
• Approval of Completed Work - procedure for the U.S. EPA s oversight of the
owner/operators activities;
• Force Majeure . reduction in penalty for economic hardship:
• Reoornnp and Record Preservation Terms - requirements for penccic reports
submitted to me U.S. EPA in order to monitor the owner/operators progress:
• Access Agreement - statement of the U.S. EPA’s right to access to the facility if
corrective actions must be monitored:
• Preservation of Evidence . procedures for retaining evidence gathered during
corrective actions;
• Compliance with Other Laws . statement that the owner/operator is required to
comply with other Federal, State. or locai laws riot addressed by the consent
decree:
• Extent of Release Given Under the Decree . statement of any release from
liability under the consent decree;
• Good Faith Neqotianon Clauses - declaration that all parties negotiated in good
faith and believe the settlement to be fair and equitable (useful in cases where
the U.S. EPA has not settled with all parties): and
• Termination and Effective Date Clauses .
Further information on consent decrees can be found in the U.S. EPA’s Guidance on Drafting Consent
Decrees ri Hazardous waste Cases (OSWER Oirective 9635.2. May 1985) and ‘Guidance for Drafting
Judicial Consent Decrees’ (October 1983) which is contained in the U.S. EPA s General Policy
Compencium .
6.4 CRIMINAL ACTIONS
Cnminai response mechanisms are usually taken when a person or entity has knowingly aria
willfully COninhitted a violation of the law. In criminal cases, OOJ prosecutes the owner/operator in t e
U.S. Couit system. seeking criminal sanctions such as nes or impnsonment. Criminal cases are
generally d cult to pursue because they require special investigation and cas. development
procedures. If the ciicumstances of a violation indicate that a criminal response would be appropriate.
enforcement personnel should examine authorities under other environmental statutes (Or Federal
s!atutes) to determine if they may be applicaDle Further information on procedures for the investigation
and referral of criminal actions under ACRA can be found iri Chapter 9 of the RCRA
Compliance/Enforcement Guidance Manual . Further guidance can be found in ‘Policy and Procedures
on Parallel Proceedings at tne EPA (January. 1984 and recent updates) which is contained in the U S
EPAs General Policy Compendium .
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OSWER Drec .e ; :
BIBLIOGRAPHY
DOCUMENT SOURCE
‘AgencyNlde Compliance and Enforcement Strategy,’ U.S. U S. EPA. Office of Enforcement
EPA. May 1984.
‘Arbitration Procedures for Small Superfund Cost Recovery 1988 Federal Pecister
Claims.’ 53 E 29428, August 4, 1988.
‘Case Referrals for Civil Litigation,’ U.S. EPA. September Contained in EPAs General
1982. Enforcement Policy Corrpenciur-
(ØGM.1 3)
Consohdated Rules of Practice Governing the 1980 and 1988 Federal Pe is er
Administrative Assessment of CMI Penalties and the
Revocation or Suspension of Permits, 40 CFR Part v.01 et
(45 FR 24363, Apnl 9, 1980). Amended to include
administratrve actions under RCRA Section 9006 (53
5374. February 24. 1988).
Cost Recoveiy Policy for the Leaking Underground Storage Call OUST Docket
Tank Trust Fuj , OSWER Directive 9610.10, October 1988. at (202) 475.9720
‘Development of LUST Cost Recovery Policy and Financial Check with Freedom of
Management Guidance,’ Memorandum from David P. Ryan, Information Act (FOIA) Officer
Comptroller, and Ron Brand, Office of Underground
Storage Tanks. March 25. 1988.
Er’forcerrent of trie UST lntenm Prohibition . OSWER Call RCRA Docket at
Directive 9943.2. December 1986 (Supersedes Directive (202) 475.7231
9943.1)
Enforcer ent Resoonse Policy . OSWER Oirecvve Call RCRA Docket at
9900 0-lA. October 1988 (supersedes Enforcement (202) 475.7231
Response Policy, December 21. 1984).
Enforcement Strateav and Procedures for the Iriterm Call RCRA Docket at
P’orubit,on. Section 9003(oI of SDWA , OSWER Directive (202) 475.7231
5943.1. September 1986.
‘EPA Policy on the lnch. ion of Environmental Auditing U S. EPA. Office of Enforcement
rovlsions in Enforcement Settlements.’ U S. EPA. Office of
Erforcemenl. November 1986.
Expanced Civil Judicial Referral Procedures , OSWER Call Superfund Docket
Directive 9891 1. August 1986. at (202) 3824940
Federal Facilities Compliance Strategy . EPAJOOEA88.001, U S EPA. Office of Federal
November 988 Activities
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OSWER Oirec .e ; i
Federal Rules ci Evidence. 23 U.S.C.A. §1.700. Check local library
Federal Rules ci Civil Procedure, 28 U.S.C.A. § 1.86 Check local library
‘Final Guidance on the Us. ci A emawe Dispute Check with FOLA Officer
Resolution Techniques in Enforcement Actions,’ U.S. EPA.
August 14. 1987.
‘Financial Management Procedures for Documenting U.S. EPA. Office of the
Supertund Costs.’ U.S. EPA. Financial Management Comptroller, Financial
Division. September 1986. Management Division
Fundamentals of Environmental Compliance Inspections , U.S. EPA. Office of Enforcement
U.S. EPA. February 1989.
F? 1 989-FY 1990 Compliance and Enforcement Stratecv for Call OUST Docket
the Underground Storage Tank Program , OSWER Directive at (202) 475.9720
9610.8. January 1989 (supersedes OSWER Directives
9943.2 and 9610.5).
General Enforcement Policy Compendium , U.S. EPA. Office U.S. EPA, Office of Enforcement
of Enforcement, updated periodically.
‘General Operating Procedures for EPA’s Civil Enforcement Contained in EPA’s General
Program,’ U.S. EPA. July 1982. Enforcement Policy Comcendium
(0GM-I 2)
Guidance for Conducting Federal-Lead Underground Call Superfund Docket
Storage Tank Corrective Actions , OSWER Directive at (202) 382-6940
9360 0 .16A, June 1988.
Guidelines for UST Trust Fund Cooperative Agreements , Call OUST Docket
OSWER Directive 9650.6, Apnl 1987. at (202) 475-9720
Guidance on Drafting Consent Decrees in Hazardous Call RCPA Docket
Waste Cases , OSWER Directive 9835.2, May 1985. at (202) 475.7231
‘Guidance for Drafting Judicial Consent Decrees,’ U S. EPA, Contained in EPA’s General
October 1983. Enforcement Policy Compendium
(0GM-I 7)
‘Headquarters Review and Tracking of Civil Referrals.’ U S. Contained in EPA’s General
EPA. March, 1984. Enforcement Policy Compendium
(#GM.26)
‘Ir’tenm Financial Polic:es and Procedures Governing Use of Check with FOIA Officer
the Leaking Underground Storage Tank (LUST) Trust Fund.’
Comptroiler Policy Announcement No. 87.13, June 3. 1987.
52.

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OSWER OIrec e
lntenm Guidance for Conducting Federal-Lead UST Cail ous ’r Docket
Corrective Actions for Releases of Petroleum on Indian at (202) 475-9720
Lands , OSWER Orecirve 9610.9. July 1989,
Issuance of and Administrative Heanngs on RCRA Section 1988 Eederai ReQister
3008(h) Corrective Action Orders for Hazardous Waste
Management Facilities, 40 CFR Parts 22 and 24 (53
12256. April 13, 1988).
Lener of Credit Drawdown Procedures for State Receiving Check with FOIA Officer
LUST Trust Fund Cooperative Agreements,’ Memorandum
from Dav. P. Ryan. Comptroller, August 12. 1987.
‘LUST Cooperative Agreement Issues.’ Memorandum from Check with FOIA Officer
Howard Corcoran, Office of General Counsel, and Joe
Retzer, Office of Underground Storage Tanks, August 26,
1987.
LUST Trust Fund Cooperative Agreement Guidelines , CaH OUS1’ Docket
CSWER Directive 9650.10, February 1989. at (202) 475.9720
‘Memorandum of Understanding between the Department Contained in EPA’s General
of Justice and the Environmentai Protection Agency,’ June Enforcement Policy Compendium
15, 1977. ($GM.3)
‘Policy and Procedures on Parallel Proceedings at the EPA.’ Contained in EPA’s General PcIc’ ,
U S. EPA, January 1984 and recent updates. Compendium (#GM.30 aria .GM.
49)
‘Policy Framework for State/EPA Enforcement Agreements,’ U.S. EPA, Office of Enforcemerit
U S. EPA, August 1986.
Potentiall v Responsible Party Search Manual , OSWER Call Superfund Docket
Directive 9834.3-lA, August 1987. a (202) 382-6940
‘Procedures for Documenting Costs for CERCLA Section U.S. EPA. Office of Waste Policy
107 Actions,’ U.S. EPA. January 1985. Enforcement
RCRAICERCLA Case Manacement Handbook , OSWER Call RCRA Docket
Directive 9837.0, August 1984; at (202) 475.7231
PCR.A Comollance/Enforcement Guidance Manual , OSWER Call RCRA Docket
Directive 9837.0, August 1984. at (202) 475-7231
PCRA Confidential 8usiness Information Security Manual. U.S. EPA. Office of Solid Waste
U S EPA. and Emergency Response
•Reporttng and Recorakeeping Requirements for LUST Check with FOIA Officer
Cooperative Agreements.’ Memorandum from David P
Ryan, Comptroiler, and Harvey G. Pippin, July 2. 1987
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OSWEP 0irec r.,e 96
‘Resource Management Directive 25500 - Finau .aI Check with FOIA Officer
Management of the Superfund Program.’ U.S. EPA, Office
of me Comptroilet, July 25. 1988.
Revised Regionai Relenai Package Cover Letter and Data Contained in EPAs General
Sheet,’ U S EPA, May 1985. Enforcement Policy Comper.dur ,
(#GM.40)
State Participation in the Superfund Program Manual , Call Superfund Docket
Appendix U Cost Documentation Recuiremerits for at (202) 382-6940
Superfund Cooperative Agreements , OSWER Directive
9375.1 -4-U, September 1986.
State Program Approval Handbook , OSWER Directive Call OUST Docket
9650.8. March 1989. at (202) 475-9720
‘State Program Approval RegulationS.’ 40 CFR Part 281. 53 1988 Federal Register .
E.E 37212.47. September 23, 1988.
‘Strategy Framework for EPA Compliance Programs,’ U.S. U.S. EPA, Office of Enforcement
EPA. May 1984.
Superfund Cost Recovery Strateov , OSWER Directive Call Superfund Docket
9832.13. July 1988. at (202) 382-6940
Supplemental Reguirements for LUST Trust Fund Call OUST Docket
Cooperative Agreements , OSWER Directive 9650.6-1. at (202) 475-9720
August 1987
JST program Regional Pnonties and Enforcement Pnornies Call OUST Docket
for F” 99O . OSWER Directive 9610.8-1, July 1989. at (202) 475-9720
LiST Technical Standards Rule, 40 CFR Part 280, Subparts 1988 Federal Register
A tnrougrl G (promulgated September 23, 1988 at 53
37082) (.1ST Financial Responsibility Rule. 40 CFR Part
280. Subpart H (promulgated October 26, 1988 at 53
43325)
Use of me LUST Truat Fund at Facilities Without Financial Check with FOIA Officer
esportsibility.’ Memorandum from Ron Brand. Office of
L ncerground Storage Tanks, January 24. 1990.
‘Working Pnnciples Uridertying EPAs National Contained in EPA s General
Compiiance/Enforcement Programs,’ U.S. EPA, November Enforcement Policy Compenciur-
983 (4IGM-24)
.54.

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EO S 4 ? p
C UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
_____ WASHINGTON. D.C. 20460
. I
Pç o1 ’
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
5 OSWER DIRECTIVE #9610.8
MEMORANDUM
SUBJECT: Final FY 1989 - FY 1990 Compliance and Enforcement
Strategy for the Underground Storage Tank Program
FROM: Ronald Brand, Director 4’ ‘ ‘
Office of Underground Storage Tanks
TO: Waste Management Division Directors,
Regions I-Ill, V-IX
Water Division Directors, Regions IV, X
As you know, the final underground storage tank regulations
have recently come into effect and the next few years will be
critical in the development of the national UST program.
Promoting compliance with the regulations is the crucial element
for program development.
The attached “FY 1989 - FY 1990 Compliance and Enforcement
Strategy’ incorporates the comments that were received on the
Draft strategy and provides the policy framework for the Regions
and States for this part of the program. The document presents
the goals of the strategy, discusses State and Federal activities
to promote compliance, and outlines situations for enforcement
actions. A number of other documents, such as the “Assessing
Civil Penalties for Violations of UST Regulations” (draft,
December 1988) and the “UST Enforcement Response Guidance Manual”
document are referenced and are, or will be, available through
OUST. As additional issues and needs arise during the transition
period, EPA will develop guidance and documents that will address
them.
Because of the large number of regulated UST systems and the
nature of the regulated community, the overall goal of the UST
program’s compliance and enforcement strategy is to promote
voluntary compliance with the regulations, EPA will strive to
achieve this by building State compliance and enforcement
programs and focusing Federal resources and efforts on developing
and improving State programs. EPA recognizes that voluntary
compliance with the regulations will not be achieved in all
cases, and that a need for a visible enforcement presence exists.

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OSWER DIRECTIVE 1/9610.8
Facilitating and encouraging the development of State and
local UST program capabilities and expanding the scope of related
regulatory activities will be the main focus of Federal
activities over the next several years. The strategy parallels
the timeframe of the UST Transition Strategy, (OSWER Directive
9610.5 FY 1989 - FY 1990 Transition Strategy for the Underground
Storage Tank Program”) and will be updated in FY 90 for FY 91.
Furthermore, the strategy reflects the final UST regulatory
requirements and, therefore, supercedes OSWER directive 9943.2
“Enforcement of the UST Interim Prohibition.”
Attachments
cc: UST Regional Program Managers
UST Regional Attorneys
Lisa Friedman, OGC
Kirsten Engle, OGC
Pete Rosenberg, OCAPO/OECM
Lee Braem, OCAPO/OECM
C. Scott Parrish, OWPE/OSWER
Tim Kasten, OWPE/OSWER

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OSWER DIRECTIVE #9610.8
UST Program Compliance and Enforcement Strategy
Table of Contents
I. Purpose... •.......... . . . . •.. . . .......... . .2
II. Overview. Goals . . . . . . . ........ ............ •ISSI• .2
III. Promoting Compliance... .............. •••••••• • ......... .. .2
IV. State Compliance and Enforcement Activities. ....... . .
V. Federal Enforcement Situations...... . . . . . .... . . . . . . . . . . . . .5
A. States Without UST—Specific Authority 6
B. State Regulatory Programs With Gaps in Authorities....6
C. Corrective Actions . . 7
D. Hazardous Substance USTs. .
E. State-Owned and Federal Facilities...... . .8
F. Indian Lands. . ..
VI. Suspension of Enforcement of the Financial Responsibility
Requirements . 9
VII . Conclusion . . . . 10
Appendix A: Existing or Upcoming Outreach Tools.. ..11
1

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OSWER DIRECTIVE #9610.8
I. Purpose
This document puts forth the framework for the Underground
Storage Tank (UST) program’s compliance and enforcement strategy
for FY 89-FY 90. The document includes goals of the strategy,
State and Federal activities to promote compliance, and
situations appropriate for Federal enforcement actions.
II. Overview: Goals
The overall mission of the UST program is to protect human
health and the environment, primarily by preserving ground water
for present and future use. The JST program’s compliance and
enforcement goals are for all States to develop strong compliance
and enforcement programs, and, as the Federal regulations are
phased in, for a continuously increasing proportion of owners and
operators to comply with regulations for new and existing tanks,
corrective action, and financial responsibility. Given the large
size and the diverse nature of the regulated community, EPA will
seek, and will encourage States to seek, maximum voluntary
compliance and to provide technical assistance where necessary to
enhance voluntary compliance. Where enforcement is necessary,
EPA will utilize, and will encourage States to use informal or
expedited enforcement approaches. EPA will work with States to
establish and enhance effective State enforcement programs.
EPA realizes that comprehensive Federal or State UST
compliance and enforcement programs will not be completely in
place nationwide on the day the Federal regulations become
effective. Many States, however, already have UST statutory
authorities and working compliance and enforcement programs in
support of these authorities. EPA will focus its enforcement
resources on strengthening State programs with a view toward
increasing compliance with the regulations.
III. Promoting Compliance
Given the large number of owners and operators in the
regulated community, the UST program’s ability to promote
voluntary compliance is critical to the success of the program.
Promotion of voluntary compliance will be achieved through a
broad-based information sharing campaign and the provision of
limited funding. States will be asked to take an active role in
educating and working with owners and operators to promote
compliance.
2

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OSWER DIRECTIVE #9610.8
iany owners and operators may be reluctant to shoulder the
short term costs of upgrading their USTs to comply with the new
regulatory requirements. To demonstrate that it is in the
owners’ and operators’ long term financial interest to comply
with regulations and to adopt sound UST management practices,
EPA, through the States, will provide information for owners and
operators about their liabilities and the high cost of cleaning
up releases. Voluntary compliance will not be achieved in all
cases, however, and a need for a visible and effective Federal
and State enforcement presence exists. States will be expected
to conduct the majority of enforcement actions, though there will
be some instances when a Federal enforcement presence is
appropriate (for examples see below, Section V, Federal
Enforcement Situations).
EPA is helping State and local liST program efforts to
promote compliance by providing information, developing and
sharing effective methods and tools that promote compliance,
testing these tools with pilot projects in States, and providing
funding for compliance monitoring and enforcement activities.
Several documents have been, and are being, developed to assist
States that are in the initial stages of developing liST programs,
as well as those States that are further along and have specific
programmatic needs. The first product, ‘Building State
Compliance Programs,” contains information on the compliance and
enforcement programs in seven States, and highlights successful
approaches and tools, such as expedited enforcement forms. In
November 1988, Headquarters and ASTWMO sponsored an all-States
meeting to facilitate the exchange of program information among
Federal, State and local program personnel. Together with State
and local governments, EPA Headquarters and Regions will develop
additional tools, including:
o Region-sponsored meetings with State program personnel at
which successful compliance assistance and enforcement
initiatives are shared and promoted.
o A “marketing/outreach package” developed by Headquarters
to foster compliance with leak detection requirements and to
raise awareness of the consequences of non-compliance.
States are encouraged to adapt these materials to their own
requirements and circumstances and send them out under their
letterhead to owners and operators. The package may include
form letters for owners and operators, pamphlets for
inclusion in permit fee notices, and public service
announcements.
o A document, “Assessing Civil Penalties for Violations of
UST Regulations” (draft, December 1988) that will be
completed by Headquarters in early 1989.
3

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OSWER DIRECTIVE 96lO;8
o Handbooks, brochures, and videos to train State and local
personnel in effective compliance monitoring and enforcement
techniques for UST programs. Three recently completed
videos focus on installation and closure practices. They
are targeted for an audience of UST inspectors. Additional
tools on subjects such as leak detection are forthcoming.
(Appendix A contains a list of upcoming outreach/marketing
materials).
o EPA supported pilot projects to test new tools and
techniques. One effort is a project to assess the utility
of expedited enforcement procedures, such as a field
citation program,. in which “tickets” would be written for
minor violations. The program, implemented at State or
local levels will help avoid the slower, more cumbersome and
resource intensive traditional formal enforcement process.
o An enforcement response document developed by Region IV
that will outline what formal enforcement mechanisms are
available and how to use them.
IV. State Compliance and Enforcement Activities
Informal enforcement mechanisms are an integral part of an
effective, comprehensive compliance monitoring and enforcement
program. The large size of the regulated universe, the diverse
nature of the community, and the phase—in of regulatory
requirements underscore the importance of promoting the less
resource intensive informal enforcement actions. Phone calls,
warning letters, and the provision of technical assistance
directly to owners and operators are some of the more commonly
utilized informal actions. Such informal actions can be carried
out at the State and local, as well as Federal, level.
For those owners and operators who do not bring their
facilities into compliance, however, formal enforcement actions
are necessary. Formal enforcement actions at the State and local
level center on the use of administrative compliance orders and
judicial orders, though there may be additional procedures
required or available under State and local codes. In addition,
there will be some instances in which a Federal enforcement
presence is appropriate.
During the transition period, as States are applying for
program approval, and the Federal regulations are being phased-
in, State-lead compliance and enforcement actions will be the
norm. The State program approval objectives provide the States
with the minimum standards for EPA’s approval, but at the same
time do not dictate the methods States may use in meeting these
4

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OSWER DIRECTIVE #9610.8
standards. EPA believes this approach to State program approval
will provide the States with significant flexibility, permit
alternative methods of implementation, and still ensure that
State UST programs adequately protect human health and the
environment. EPA seeks to approve a variety of State programs
and to encourage States to use innovative approaches in all
program areas. The Regions will have flexibility and will work
with States to resolve State-specific compliance issues that
arise during the transition period. Again, the goal of EPA ’s
compliance and enforcement efforts is to constantly improve
existing State and local compliance and enforcement programs.
Each percent increase in compliance nationwide is 20,000 tanks, a
significant improvement in a regulated universe of almost two
million iJSTs.
EPA will be supporting State and local compliance and
enforcement activities through the mechanisms listed above, and
funding will continue to be available through State program
grants and LUST Trust Fund cooperative agreements. Among other
activities funds are available in FY 89 for State outreach
efforts to promote compliance and enforcement activities. States
will be asked to disseminate regulatory and technical information
to local governments and the regulated community. Suggested
priority areas include outreach to owners and operators on their
responsibilities related to the standards for new tanks, release
detection, corrective action and closure. Funds are also
available for enforcement activities to identify, investigate,
and resolve violations of Federal and State regulations. States
are not limited to these suggested areas and are encouraged to
focus on State-specific compliance issues.
As outlined in OSWER Directive 9650.7 “Supplemental
Guidelines for FY 89 Lust Trust Fund Cooperative Agreements,”
Trust Fund monies may be used for site investigations to identify
the responsible party and for the development, issuance, and
oversight of enforcement actions related to suspected releases
from USTs containing petroleum, recovery of costs from liable
owners and operators, and administration and management
activities directly related to the above.
V. Federal Enforcement Situations
EPA anticipates that most, if not all, States will submit
State program approval applications to implement an UST program,
including compliance and enforcement activities, which would
operate in lieu of the Federal program in that State. If the
number of States that have entered into LUST Trust Fund
Cooperative Agreements is an indication, 54 States and
territories now have cooperative agreements with EPA.
5

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OSWER DIRECTIVE #9610.8
While many States already have active and comprehensive UST
programs, some States are in the process of setting up new
programs in response to the Federal regulations or new State
legislation. Thus EPA’S role in providing enforcement assistance
and back-up will vary from State to State.
EPA does not intend to run a Federal enforcement program as
a substitute for State actions, but that does not preclude the
taking of Federal enforcement actions. Although formal Federal
enforcement actions will be limited in number, there are six
instances in which formal Federal enforcement actions may be
necessary. These six situations are discussed below.
The specific formal mechanisms available for Federal
enforcement actions include warning letters, administrative
enforcement responses, and civil/judicial enforcement responses.
These responses will be described and a strategy for their
application will be presented in the future document entitled
“Federal Enforcement Procedures.”
A. States Without UST-Speciuic Authorities
For those few States without UST specific enforcement
authorities, the Region can work with the State to develop a
State-specific compliance and enforcement strategy. The strategy
can include a communication and outreach component designed to
educate owners and operators about the Federal regulations.
Informal Federal actions, such as requests for information, will
be used to establish a Federal presence, deter potential
violators, and may provide an example to the States as it builds
and improves its UST program. In these States, EPA may pursue a
limited number of targeted formal Federal enforcement actions
designed to establish a Federal enforcement presence to deter
potential violators and to encourage the State to acquire the
necessary enforcement authorities.
B. State Regulatory Programs with Gaps in Authorities
Over the next few years, States will continue to develop
authorities and regulations that are no less stringent than the
Federal objectives. During this period, for States that do not
yet have enforcement authority applicable to a given violation of
the Federal regulations, there may be instances in which a State,
after taking steps to persuade the owner or operator to correct
the situation (such as calling or sending warning letters),
refers the case to EPA. At the Federal level, the Region will
decide on the appropriate course of action, given the
6

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OSWER DIRECTIVE #9610.8
circumstances of the case. Working with the State, a Region may
decide to take a limited number of formal actions. EPA will
continue to work with the State to build program capabilities and
to resolve State-specific enforcement issues.
C. Corrective Actions for Petroleum Releases
In corrective action situations, Federal enforcement actions
will occur as outlined in “OSWER Directive 9360.0—16, Guidance
for Conducting Federal Lead UST Corrective Actions.” Under this
directive, Federal-lead enforcement is appropriate in situations
where a release from an UST (1) poses a major public health or
environmental emergency, (2) the State can demonstrate a lack of
capability or authority, and (3) the State requests Federal
assistance for an eligible site.
D. Hazardous Substance USTs
The UST program’s approach to compliance monitoring and
enforcement for hazardous substance USTs is similar to that for
petroleum USTs with three exceptions. First, LUST Trust Fund
monies cannot be used for enforcement with respect to hazardous
substance tank releases, as Federal law (RCRA Section 9003(h)]
limits its use to petroleum USTs. Second, if a Federal
enforcement action is necessary, EPA has authority under the
National Oil and Hazardous Substances Contingency Plan (40 CFR
Part 300) to respond to most hazardous substance releases from
UST systems. Finally, hazardous substance USTs on RCRA
facilities may be subject to corrective action regulations under
RCRA Subtitle C.
As in the case of petroleum USTs, and wherever possible,
State and local programs will be relied on to conduct most of the
compliance and enforcement actions related to hazardous substance
USTs (MOAs may be necessary to clarify the State-Federal
relationship in these situations).
EPA recognizes that some States with petroleum UST programs
may not have hazardous substance UST programs. The Regions,
using their discretion, may choose to focus resources on helping
a State to develop authorities in this area. It is important to
note that hazardous substance USTs account for less than 5% of
all regulated USTs.
7

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OSWER DIRECTIVE #9610.8
E. State-Owned and Federal Facilities
1. State—Owned Facilities
Enforcement activities at State-owned and Federal facilities
will be conducted primarily at State and local levels. EPA will
assist State and local UST enforcement programs wherever possible
by providing needed information and technical assistance.
However, should a State demonstrate a pattern of reluctance to
make any effort to ensure that its own facilities comply with the
State UST regulations, (or, where the State’s program has not
been approved, with the Federal Regulations), Federal enforcement
actions against the State-owned facilities may be appropriate.
2. Federal Facilities - State Enforcement
States will be expected to use the full range of their
enforcement authorities to address Federal facility violations to
the same extent they are used for other facilities. States are
also encouraged, wherever possible, to pursue bilateral,
negotiated agreements, consent orders, decrees as appropriate
with Federal facilities, or three party agreements
(EPA/State/Federal Agency, see Chapter VII B.1.c. of the EPA
Federal Facilities Compliance Strategy, November 1988), to
facilitate compliance.
3. Federal Facilities - Federal Enforcement
EPA will encourage Federal facility compliance with the UST
regulations primarily through informal mechanisms, providing
needed information and technical assistance. However, EPA
recognizes that a formal enforcement presence may at times be
necessary.
Although EPA retains legal authorities to enforce UST
regulations against Federal facilities, in order to avoid
duplication of effort, EPA will consider formal enforcement
actions against Federal facilities only in ca s where 1) a State
lacks adequate enforcement authorities and capabilities; 2) the
State requests EPA to take the ldad or decides that a joint
enforcement response is appropriate, or 3) other appropriate
circumstances consistent with the EPA Federal Facilities
Compliance Strs.cegy.
8

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OSWER DIRECTIVE #9610.8
F. Indian Lands
In cases of releases with identified responsible parties,
EPA’s aim is to have the responsible party conduct the cleanup
with tribal enforcement and oversight. Federal enforcement
actions may be appropriate in those instances where (1) a
Federal-lead clean-up occurs, the criteria for which are
described in “OSWER Directive 9610.9, Draft Interim Guidance on
Conducting Federal Lead Corrective Actions for Petroleum Releases
on Indian Lands,” or (2) a Tribe is unable to enforce
successfully against an owner/operator or responsible party, the
situation presents a serious public health or environmental
threat, and the Tribe requests assistance.
On the prevention program side, EPA has developed compliance
assistance and outreach activity pilot projects on Indian Lands
in Regions 5, 8, and 9. These projects are designed to assess
the nature and the extent of the underground storage tank-related
problems on Indian Lands, while providing compliance assistance,
education and outreach to owners and operators. The results of
these activities will feed into the development of future
guidance documents on Federal Compliance and enforcement, and
Federal-lead corrective action activities on Indian Lands.
VI. Suspension of Enforcement of the Financial Responsibility
Reciuirements
The suspension of enforcement provisions of Subtitle I were
written to help EPA enforce the financial responsibility
requirements fairly and equitably by directing its enforcement
efforts against owners and operators who can obtain coverage, but
willfully chose not to obtain it. Because the Agency is phasing
in its financial responsibility requirements and because many of
the comments on the proposed procedures were critical, EPA is
reconsidering its options in the area. While this work is
underway, EPA will monitor the formation of State financial
responsibility funds, the availability of coverage from the
private sector, and the approval of State programs. These
factors will affect the potential demand for suspensions and the
type of procedure EPA develops.
9

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OSWER DIRECTIVE #9610.8
V. Conclusion
The UST program’s goal of protecting human health and the
environment will be achieved through promoting compliance with
the regulations. States will continue to develop and strengthen
compliance and enforcement programs, thereby bringing an ever
increasing proportion of owners and operators into compliance.
EPA’s approach to compliance and enforcement will be to assist
State efforts by supporting State compliance and enforcement
programs. EPA Regions will work with States to identify and
resolve State-specific enforcement issues, and will provide
assistance and tools. These tools will include: providing
information, developing and sharing effective methods to promote
compliance, and providing funding for compliance monitoring and
enforcement activities. -EPA recognizes that voluntary compliance
will not be achieved in all cases and that a need for a visible
and effective enforcement presence exists. Formal and informal
enforcement actions at the State and local level will be the norm
and although formal Federal enforcement actions will be limited
in number, there are six instances described when a formal
Federal enforcement action may be necessary.
10

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APPENDTX A• Existing or Upcoming Outreach Tools OSWER DIRECI’IVE #9610.8
U.S. ENVIRONMENTAL PROTECTION AGENCY
OFFICE OF UNDERGROUND STORAGE TANKS
PUBLICA11ONS LIST
GENERAL INFORMATION Order No .
Hazardous Substance List 7
Leak Lookout (External Leak Detectors) 74
List of Agencies Designated to Receive Notifications 6
LUSTUNE Bulletin (Current and Past Issues) 10
Managing Underground Storage Tanks (Ordering Information for a slide presentation) 40
Model State Legislation on Underground Storage Tanks 11
More About Leaking Underground Storage Tanks 9
Musts for USTs A Summary of the New Regulations for Underground Storage Tank Systems.... 26A
Notification for Underground Storage Tanks: EPA Form 7530-1 (Revised 9-88) 5
OUST Publications List
UST Video Programs Ordering Information 2
REGULATIONS
Subtitle I. Hazardous and SOlid Waste Amendments of 1984; RCRA 21
Notification of Requirements for Owners of Underground Storage Tanks; Final Rule
40 CFR Part 280 (Federal Register 11/8/85) 3
Hazardous Waste; Interim Prohibition Against Installation of Unprotected Underground
Storage Tanks; Interpretive Rule 40 CFR Part 280 (Federal Register 6/4186) 17
Underground Storage Tanks: Technical Requirements and State Program Approval; Final Rules
40 CFR Parts 280 & 281 (Federal Register Part 119/23/88) 4A
Underground Storage Tanks Containing Hazardous Substances; Financial Responsibility
Requirements; Advance Notice of Proposed Rulemaking 40 CFR Part 280
(Federal Register 2/9/88) 35
Underground Storage Tanks Containing Petroleum; Financial Responsibility Requirements and
State Program Approval Oblective; Final Rule 40 CFR Parts 280 & 281
(Federal Register Part 1110/26/88) 4B
Underground Storage Tanks; Financial Responsibility Requirements for Petroleum Tank Systems;
Supplement to Proposed Rule, Request for Comments 40 CFR Part 280
(Federal Register 3/31/88) 36
Underground Storage Tanks; Availability of Information and Request for Comments
40 CFR Parts 280 & 281 (Federal Register 3/31/88) 45
TECHNICAL REPORTS
Causes of Release From UST Systems 32
The Interim Prohibition: Guidance for Design & Installation of Underground Storage Tanks 12
Designing and Installing Underground Storage Tanks under the New Federal Law -
(A brochure describing the Interim Prohibition) 12A
Summary of State Reports on Releases frbm Underground Storage Tanks 22
Executive Summary: Underground Motor Fuel Storage Tanks: A National Survey 18A
Ordem g Information on Reverse
OUST Publication 25
11 1111988

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U.S. EN VU ONMENTAL PROTECTION
OUST PUBLICATIONS ORDER FORM
OThER PUBLICATIONS OF INTEREST
Cleanup of Releases from Petroleum USTs: Selected
Technologies
Stock No. 055-000-00272-0 $7.50
Process.. Affecting Subsurface Transport of Leaking
Underground Tank Fluids
Stock No. 055-000-00269-0 $325
Surv.yof Vendor. of External Petroleum Leak
Monftorlng Devices for Us. wfth USTs
Stock No.055-000.00277-i $4.25
Superintendent of Documents
Government Printing Office
Washington, D.C. 20402
(202) 783-3238
Underground Motor Fuel Storage Tanks: A National
Survey. Volume I. Technical Report, Volume IL
Appendices
Pub. No. PB 86-216 512
$40.95 plus $3.00 handling
National Technical Information Service
5285 Port Royal Road
Springfield, VA 22161
(703) 487-4600
Underground Storage Tank Corrective Action.
Technology
Pub. No. EPAIG2S/6-87-015
FREE
ORD Publications
U.S. Environmental Protection Agency
Center for Environmental Research Information
26 West Martin Luther King Drive
Cincinnati, OH 45268
(513) 569-7562
Soil Gas Sensing for Detection and Mapping of
Volatile Organic.; EPA 600 /8-871036
Catalog No.49
$35.00 plus $3.00 handling/member
$43.75 plus $3.00 handlingh on-member
National Water Well Association
P.O. Box 182039
Dept. 017
Columbus. OH 43218
(614) 761-1711
I 88
Name:
Organization:
Street
Citv
Title:
Telephone:( ).
Type of Organization
State:
Zip:
Consultants
— Corrective Action Fuin
— Engineering Firm
Gas Station
Go vt - Federal
GoVt - State
— GoVt - County
_GoVt-Cfty
Individual
— Industry - Chemical
— Industry - Major Oil
— Industry - Transport
— Industry-Other_____
— insurance & Finance
Law Firm
— Leak Detection Firm (Tank Tester)
Oil Jobber
Small Business
— Tank and Pump Distributor
— Tank and Parts Manufacturer/Repair
Tank Installer
— Trade Association
— University/Research
— utirity Company
[ J Please put mynameonyourmarring nat
and send me the following publications (circle):
I I Pleas, put my name on your mailing list;
I dont need any publications at this time.
(3 Please remove my name from your mailing list.
Order No. (see reverse)
2 3 4A 48 5 6 7 9 10
12A 17 18A 21 :22 25 26A 32 35
45 74
RETURN TO:
11 12
3640
SLIgI. copies oiOUSTpubIicat!ons at 9 available free olthasg.. Repioduction is a ptabl..
Photocopies of this order fomi are acceptable.
U.S. Environmental Protection Agency
Office of Underground Storage Tanks
P.O. Box 6044
Rockville, MD 20850
11 188
I

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United Slates Office of
Envuionmental Pro ,ect ,on Solid Waste and
Agency Emergency Response
6EPA DIRECTIVENUMBER: 9610.8
TITLE: FY 1989 — Fl 1990 Compliance and Enforcement
Strategy for the Underground Storage Tank Program
APPROVAL DATE: 1/5/89
EFFECTIVE DATE: 1/5/89
ORIGINATING OFFICE: Office of Underground Storage
Tanks
[ FINAL
o DRAFT
STATUS:
REFERENCE (other documents):
OSWER Directive 9943.2 “Enforcement of the UST Interim
Prohibition”
OSWER Directive 9610.5 “Fl 1989 — Fl 1990 Transition
Strategy for the UST Program”
OSWER OSWER OSWER
DIRECTIVE DIRECTIVE
UST/E/89-1

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Washington. DC 20460
United States Environmental Protection Agirncy [ I . Directive —
&EPA OSWER Directive Initiation Request 9610.8
2. OrigInator Information
Name of Contact Person I Mail Code lOlfice I Code
Carrette E. Clark OS—420 OSWER/OUST I 382—7994
3 Title
FY 1989 — FY 1990 Compliance and Enforcement Strategy for the Underground Storage (
Tank Program
4. Summary of Directive (include bnef statement of purpose)
The strategy provides the policy framework for the Regions and States
for the compliance element of the program.
5. Keywords
Compliance, enforcement
tia. Does This Directive Supersede Previous Directive(s)? No [ ] Yes What directive (number, title)
9943.2 iiDraft Enforcement of the
UST Interim Prohibition”
b. Does It Supplement Previous Directive(s)? [ ] No [ 11 Yes What directive (number, title)
7. Draft Level
[ ] A - Signed by MJDM [ ] 8-Signed by Office Director C - For Review & Comment D - In Development
8. Document to be distributed to States by Headquarters? Yes No J
This Request Meets OSWER Otrectives System Format Standards,
9. Signature of Lead Office Directives Coordinator
BeI t ias,Di
rectives Coordinator, OUST
Date
“1
10. Name a i Title of Approving Official
Date
Ron B
rand._Director._Office_of_Undernround_Storane_Tank
EPA Form 1315-17 (Rev. 5-87) Previous editions are obsolete.
OSWE
VE DI
R OSWER OSWER 0
RECTIVE DIRECTIVE DIRECTIVE

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OSWER DIRECTIVE #9610.8
COMING ATTRACTIONS
Qrdcr No .
4A Final Regulations - Federal Register reprint
26A Final Regulations - Technical Standards Summary Brochure
26B Final Regulations - Financial Responsibilities Summaiy Brochure
33 U.S. Conference of Mayors’ “Manual for Managers”
34 “Evaluation of Leak Detection Methods for Petroleum USTs” - ORD Edison Study
72 Underground Storage Tank Programs: Funding Options for State and Local Programs
73 “Oh Nol Leaks and Spilst - First Response (brochure)
74 Leak Lookout (brochure)
75 Doing It Righr - Installation (brochure)
76 Tank Closure Without Tears” - Closure (brochure)
77A Reg-in-a-Box (software): Mac versiqn
77B Reg-in-a-Box (software): IBM version
79 Handbook on State UST Compliance Programs
0Th ER TITLES
Also, although not generally advertised, we have the following publications available:
60 HWERL Volumetric Leak Detection Methods Evaluation: Material for Docket Supporting
Final UST Technical Standards
61 An pcoach to Evaluating Leak Detection Methods in Underground Storage Tanks
62 U.S. EPA Evaluation of Volumetric UST Leak Detection Methods
63 Free Product Release Detection for Underground Storage Tank Systems
(Geraghty & Miller. Inc.)
A Volume 1: Capabilities and Umitations of Wells for Detecting and Monitoring Product Releases
B Volume 2: The Effectiveness of Petroleum Tank Release Detection with Wells In Florida
64 Fuel Vapor Background Concentration Measurement and Tracer Testing in Underground
Storage Tank Bacldill (Kaman Tempo)
65 Evaluation of U-Tube Underground Tank Systems for Soil Vapor Testing (Kaman Tempo)
66 Analysis of Manual Inventory Reconciriation: Executive Summary
67 Background Hydrocarbon Vapor Concentration Study for Underground Fuel Storage Tanks;
- Draft Final Report (Geoscience Consultants, Ud.) (report only available; appendices in
Docket)
68 Phase 1 of Modellng Vapor Phase Movement In Relation to UST Leak Detection;
Draft Final Report (Camp Dresser& McKee. Inc.)
69 Development of Procedures to Assess the Performance of External Leak Detection Devices:
Draft; Executive Summary for Results of Laboratory Evaluation (Radian Corp.).
(Perlormance Test Procedures -- full report in Docket)
70 Survey of Slate Programs Pertaining to Contaminated Sofls (Midwest Research Institute:
March 1988)
71 Determining If Soils Contaminated with Petroleum Products ke Hazardous Waste.
Draft Repotl
78 Making II Work - Flyer for National All States Workshop

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OSWER DIRECtIVE #9610.8
Underground Storage Tank
Aud o-VisuaI TooOs
Slide Show:
“Tank Talk: The New National Rules” -- a basic overview in 67 slides
of the new EPA technical requirements for petroleum storage tanks and
financial responsibility rules. The show includes optional slides on State
Program Approval, Hazardous Chemical Tanks, and Deferred and Exempted
Tanks. A separate professionally narrated tape can be used with slide/
sound equipment to run the show automatically.
Videotapes:
“Doing It Right! Proper Installation of Underground Storage Systems”
-- This two part tape (tanks and piping) shows good installation practices
from the point of view of experienced installers around the country. (40
minutes)
“Tank Closure Without Tears: An Inspector’s Safety Guide” --
Focuses on the problems of explosive vapors, safe tank removal and
closure. (30 minutes)
“A Question of When: Tank Installation For Inspectors” -- An
overview of tank and piping installation with a checklist of key items to
help guard against future leaks. (36 minutes)
“In Your Own Backyard” -- A shortened version of the inspector tape
offering tank owners an overview of what to require from installation
contractors. (26 minutes)
Copies of the above audio-visual tools have been provided to all EPA
Regional Offices as well as State and Territorial tank agencies.

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REFERENCE LIST

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UST PROGRAM COMPENDIUM
Reference List
Title Date
PROGRAM MANAGEMENT
Grant Guidance
FY90 State UST Program Grant Guidance 4/1/89
FY89 State Program Grant Guidance 4/1/88
Workload Model
Final FY 1989 Workload Model 2/9/88
Reporting
First Quarter SPMs and Activities Reporting 12/30/87
Requests for Tank Notification Data 12/14/87
Program Goals and Progress
Final Definitions for Measures of National Program 9/26/89
Progress
Projected State FY 88 LUST Trust Accomplishments 4/21/87
TECHNICAL
Releases
Summary of State Reports on Releases from 7/21/86
Underground Storage Tanks
(04/01/91)
1

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• cAL (coi tinued
.Càrrective Action
I nter Guidance for Conducting Federal-Lead 6/4/87
Unde i.ixid Storage Tank Corrective Actions
(OSWER Directive 9360.0—16)
MISCEU AIflOUS
t qa1 Issues
Scope of the CERCLA Petroluem Exclusion under 7/31/87
Section I01 (14) and 104 (a) (2)
utréach
lJnderaround Storage Tank Audiovjsual List
Appendix
RCRA Subtitle I, Regulation of Underground Storage
Tanks. 42 USC 6991
SARA of 1986, Conference Report. Report 99—962, 10/3/86
to accompany H.R. 2005
SARA of 1986.. Sec. 521, Leaking Under tQ* Xt4.
Storage. Tank Trust Fund and its
(04/01/9 1)
.2.

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