Fy 1989 - Fy 1990 Transition Strategy For The Underground Storage Tank Program


United States	_Otf|e»ol
EnvTronrnentil Protection	SolidWant.ind
^Agency	Emergency fleiponse
L
DIRECTIVE NUMBER: 9610.5
TITLE;' FY"; 1989 ' 1990 Transition"Strategy For the
Underarouna* Storage Tank, Program'
APPROVAL DATE: April 13, 1988
EFFECTIVE DATE: April I, 19B8
ORIGINATING OFFICE: Office o£ Underground Storage
Tanks
£1 FINAL
~ DRAFT
STATUS
REFERENCE (other.documents):
OSWER' pirectiye;9650.6--"Guldellnes for' LUST Trust
Fund' Cooperative^ Agreements!'
"Supplemedtar^Giiidellnes for^ FY 89 LUST Trust* Fund
Cooperative.Agreements.
"FY 89 Sta'te UST'Prograai Grant Guidance"
OS WEB OS WEB OS WEB
E DIBECTIVE DIBECTIVE D

-------
United Slates Environmental Proieclion Agency
^ rpA Washington DC 20460
ocrM pswER Directive Initiation Request
1 Directive Number
9610.5
2 Originator Information
Name of Contact Person
Josh Baylson
Mail Code
I WH-562A
Office
OUST
Telephone Code
' 475-9725
3 Title
FY 1989 - FY J990 Transition Strategy For the Underground Storage Tank Program
4 Summary of Directive (include brief staiement of purpose)
This document presents EPA's policy for implementation of the UST program
during FY 1989 and FY 1990. The problem to be solved is described, and a transition
strategy and implementation plan are presented.
5 Keywords
tlSTfi. OUST. Transition Strategy. Transition Plan
Ea Ooes This Direcuve Superseoe Previous Direcnve(s)''
b Does It Supplement Previous Directive^)7
j ^ i No | | Ves What directive (number, title)
~
I No
Yes What directive (number title)
7 Draft Level
| x | A - Signed by AA/DAA | j 6 -¦ Signed by Office Director | | C For Review & Comment | | D - In Development
8. Document to be distributed to Slates by Headquarters? ~ Yes 0 No
This Request Meets OSWER Directives System Format Standards
9 Signature of Lead Office QueoVves CoonArrarcr
BeverfyThema£. OUST Directives Coordinator
Date , ,
-------
United Stales Office of
£nv
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
APR (3
OPflCE OF
SOLID WASTE AND EMERGENCY RESPONSE
OSWER DIRECTIVE 9610.5
MEMORANDUM
SUBJECT: FY 1989 - FY 1990 Transition Strategy for the
•'^ndergyoijtnd Storage Tank Program
¦ L Lu ' 7-^1^'
FROM: ^.Winston Porter
Assistant Administrator
TO: Regional Administrators
The final Subtitle I regulations are expected to be issued
in July and to take effect in October, at the beginning of FY
1989. At that time, the focus of EPA's UST program will shift
from developing regulations to facilitating state implementation
of the national UST program. The next few years will be an
important time in the development of a national UST program. The
implementation approach adopted for the UST regulations focuses
on the development and enhancement of state programs both during
the transition period {between the effective date of the
regulations and the time state programs are authorized), and
after state programs are authorized.
The attached "FY 1989 - FY 1990 Transition Strategy for the
Underground Storage Tank Program" is policy guidance for the
Regions and States and identifies appropriate activities for each
to undertake during the transition period. Its thesis is that
from the start, and to the extent possible, the states will be
the implementing agencies. Therefore, federal activities should
focus on assisting and encouraging the development and
enhancement of state programs. As indicated in the strategy,
the Regions should not carry out direct federal implementation of
the UST regulations in those states with nascent programs except
in rare circumstances.
This approach differs from the approach EPA has followed in
other programs. Many of you have expressed concern that we might
be criticized because of a perceived lack of a visible, federal
presence in the states and our reliance on the states to
implement the federal UST regulations. However, given the large
size of the regulated universe, the diverse nature of the
regulated community, and the limits on federal resources, greater
-------
9610.5
environmental benefits will be realized over the long term by
focusing federal resources on building state programs during the
transition period. It is the norm for new EPA programs that
comprehensive nation-wide program implementation is achieved in
the long term, and not immediately after the effective date of
the regulations. The UST program is no exception, and a
comprehensive nation-wide UST program will be realized gradually,
through the building of state and local UST programs.
The Transition Strategy has been written in response to
questions raised by Division Directors in Regions III and VII.
It is designed to be used in conjunction with the UST program
guidances on LUST Trust Fund Cooperative Agreements and State
Program Grants for FY 1989 and FY 1990. In FY 1990, OUST win
develop an updated implementation strategy which takes into
account the status of state program applications and approvals.
cc: Ron Brand, OUST
Waste Management Division Directors, Regions I-III, V-IX
Water Division Directors, Regions IV, X
UST Regional coordinators
-------
%L0,5
FY 1989 - FY 1Q90 TBANSITIOH STRATEGY FOR
THE IJMDERnPDUND STORAGE TANK PROGRAM
March 31, 1988
-------
9610.5
Table of Contents
I. Abstract
II. Problem Statement
III. Transition Strategy
A. summary of Basic Strategy
B. Scope of strategy
IV. Implementation Plan for the Transition Strategy
A. Clean-up Program: LUST Trust Fund Activities
B. Regulatory Program: State Program Grant Activities
C. Promoting Compliance with the Regulations
D. Legal Mechanism
E. Hazardous Substance UST Systems
V. Future Work
2
-------
9610.5
I. Abstract
This document presents EPA's policy for implementation of
the UST program during FY 1989 and FY 1990. The problem to be
solved is described, and a transition strategy and implementation
plan are presented.
II. Problem Statement
The focus of the federal UST program is on state
implementation. When the federal UST regulations become
effective in early FY 1989, most states will be in the process of
developing state regulations and beginning to assemble
applications for program approval. Headquarters, regions, and
states need policy guidance to identify appropriate activities
for each to undertake during the transition period between the
effective date of the federal regulations and the dates state
programs are authorized by EPA to operate in lieu of the federal
program. These.may be interim or final state program approvals.
All state programs will not be approved on the same date; hence,
the length of the transition period will vary by state, ranging
from a few months to two years or more.
III. Transition Strategy
The goal of EPA's technical requirements is that all tank
systems will be upgraded or replaced within 10 years so that they
are protected from corrosion and have spill and overfill
protection, approved release detection systems, and continuous
monitoring on pressurized lines. The emphasis of EPA's program
implementation is on the long term. The transition period,
therefore, will be characterized by the continuing growth of a
national UST program realized through the building of state and
local programs.
Comprehensive federal or state UST programs for petroleum
and hazardous substance UST systems will not be in operation
nationwide on the day the federal regulations become effective.
However, many states will have their own regulatory and clean-up
programs in operation. EPA's goal is to build on these state
programs and to focus federal resources and efforts on improving
existing programs and facilitating the development of new state
programs. The "national" program will be a summation of state
and local programs. The work of building this comprehensive
national program has already begun, and will continue during and
after the transition period. Over time, the program's focus will
shift from building state capability and approving state programs
to working with the states to continually improve the performance
of state and local programs.
3
-------
9610.5
A. Summary of Basic Strategy
During the transition period, EPA's basic strategy is for
the states to implement as much of the federal UST program as
possible. Many of the specific actions states will be asked to
conduct to begin implementation of the federal UST program are
not much different from those they now are doing on their own or
for EPA under program grant agreements and LUST Trust Fund
cooperative agreements. States that operate clean-up programs
(funded with state and/or federal monies) and receive EPA program
grants have resources sufficient to fund the level of activities
necessary to begin implementation of the federal regulations
during the transition period. States will need to develop
independent funding sources to assure effective long-term program
implementation, as federal support is unlikely to ever be able to
fully support comprehensive state-run programs nationwide.
In the long term, EPA's resources will have the greatest
impact when used to foster state implementation, rather than
being stretched thin trying to conduct a federal program in each
state. For example, EPA has the authority to conduct enforcement
activities, but conducting direct federal enforcement and
compliance monitoring activities is not the best use of
resources, given the limits on these resources and EPA's goal of
building state programs. The transition period is an opportunity
to help states build programs and develop the technical and
enforcement expertise necessary to foster effective long-term
program implementation.
B. Scope of Strategy
This strategy addresses those states that have clean-up
programs (funded with state and/or federal monies) and are
receiving federal program grants. For those states without
clean-up programs or federal grant monies, of which there are
only a few, state-specific strategies will be developed in FY
1988 and FY 1989.
This strategy pertains to UST systems containing petroleum
and/or hazardous substances.
IV. Implementation Plan for the Transition Strategy
A. Clean-up Program: LUST Trust Fund Activities
States with LUST Trust Fund cooperative agreements will be
asked to carry out activities to begin implementation of the
federal corrective action regulations during the transition
period. The scope, level, and specific set of clean-up program
activities that occur in each state will vary. In the first few
4
-------
9610.5
years of the national UST program, all states will not be
conducting every activity to the same degree of thoroughness.
For example, states will be asked to receive corrective action
progress reports from owners and operators. As a follow-up, some
states will choose to use these reports as a primary part of
their oversight of responsible-party cleanups, while other states
will use other approaches to oversight.
The specific activities that will occur in each state will
be determined by state priorities, resources, and the stage of
program development, and will be defined during negotiations
with the regions about LUST Trust Fund cooperative agreements for
FY 1989 and FY 1990. These activities are allowable costs for
states to incur using LUST Trust Fund monies.
After promulgation of the final regulations, use of Trust
Fund monies for cleanups is limited to actions to protect human
health and the environment and to occasions when one or more of
the following situations exists: no responsible party can be
found, immediate action is needed, corrective action costs exceed
financial responsibility requirements, or the owner/operator is
recalcitrant (Subtitle I, Section 9003[h][2]).
Section 9003(h)(1) describes activities eligible for funding
under the LUST Trust Fund. These activities are further defined
in OSWER Directive 9650.6, "Guidelines for LUST Trust Fund
cooperative Agreements" and in the "Supplemental Guidelines for
FY 89 LUST Trust Fund Cooperative Agreements." Trust Fund monies
may be used for enforcement, site response, and administration
and management activities associated with UST systems containing
petroleum. The following list provides examples of eligible
activities.
Enforcement Activities, including:
development, issuance, and oversight of enforcement actions
directed to responsible owners and operators; and recovery
of costs from liable tank owners or operators;
Site Responses Activities, including:
site investigations; investigations of suspected leaks and
source identification until such time as a leak is
determined to come from an unregulated source; emergency
response and initial site hazard mitigation; exposure
assessments to determine potential health effects of a leak;
the establishment of corrective action priorities;
corrective action, including the clean up of releases;
provision of alternative temporary or permanent water
supplies; and temporary or permanent relocation of
residents;
Administration and Management Activities, including:
reasonable and necessary administrative and planning
expenses directly related to the above-mentioned activities.
5
-------
9610.5
Trust Fund monies, therefore, may be utilized by states to
conduct enforcement and site response activities related to
suspected or confirmed releases of petroleum from UST systems,
such as to: receive leak reports, initial corrective action
progress reports, free product removal reports, and site/soil
reports; review and approve or disapprove corrective action
plans; and provide opportunity for appropriate public
participation.
B. Regulatory Program: State Program Grant Activities
Following promulgation of the federal technical
requirements, states receiving program grants win be asked to
carry out activities to begin implementation of these regulations
during the transition period. The scope, level, and specific set
of regulatory program activities that occur in each state during
the transition period will vary. In the first few years of the
national UST program, all states will not be conducting every
activity to the same degree of thoroughness. For example, states
will be asked to receive advance notices of UST system closures
from owners and operators. As a follow-up, some states will
choose to use these reports as a method of targeting inspections,
while other states will use other approaches to conduct
compliance monitoring and enforcement activities.
The specific activities that will occur in each state will
be determined by state prioriti.es, resources, and the stage of
program development, and will be defined during negotiations with
the regions about program grant agreements for FY 1989 and FY
1990. The costs of conducting these activities are allowable
costs for states to incur using program grants. According to the
FY 1989 state program grant guidance, the four major tasks
eligible for funding, listed in priority order, are:
1. State Program Development,
2. Program Approval Application,
3. Outreach Efforts to Promote Compliance, and
4. compliance Monitoring and Enforcement.
As in the case of clean-up programs, the transition period
will be characterized by the continued growth of a national
regulatory program realized through the development and
enhancement of state and local regulatory programs.
C. Promoting Compliance with the Regulations
A primary goal of the federal UST program is to encourage
compliance with the regulations. Promoting voluntary compliance
is an integral part of an overall enforcement strategy. In their
program grant agreements, states will be asked to conduct
6
-------
9610.5
outreach and compliance assistance activities to provide
technical assistance and inform owners and operators of their
responsibilities. The regions win assist states in these
endeavors.
Many states now have functioning compliance and enforcement
programs which will continue to operate during the transition
period. These programs reflect a variety of approaches and
priorities that states have developed to promote compliance. For
example, some states rely on permitting processes to ensure
compliance, while other states use random inspections or
tightness test results to identify violations. Other states are
developing similar approaches, and an important part of EPA's
job, for both headquarters and the regions, is to work with state
and local governments to develop effective methods of promoting
and monitoring compliance, and to share them with other states.
Examples of innovative methods include issuing on-site citations,
utilizing jobbers to promote registration and identify non-
registered tanks, and developing targeted inspection procedures.
OUST is finalizing and will publish a "Handbook on State
Compliance Programs" that provides detailed information on the
utilization of various techniques to promote compliance.
States also will be asked in their program grant agreements
to conduct formal enforcement actions to the extent of their
authorities and resources. If a state lacks the necessary
authority, federal authority may be utilized in response to a
state request. An example of this is responding to information
on the improper installation of new tanks. In general, regions
will refer initial complaints to the states, and the states will
respond and conduct appropriate compliance and enforcement
activities to the extent possible under state law. if the state
lacks the necessary enforcement authority, EPA may back up the
state using federal authority in response to a state request if
resources permit and other priorities are being met. Thus,
during the transition period, most formal enforcement actions
will be conducted by the states.
D. Legal Mechanism
The legal mechanism for states to implement the federal UST
regulations during the transition period will be by formal
agreement negotiated between the regions and states. These
agreements need not be extensive or complex, and may be: separate
Memoranda of Agreement (MOAs), MOAs attached to LUST Trust Fund
cooperative agreements and/or state program grant agreements, or
be included in the texts of LUST Trust Fund cooperative
agreements and/or state program grant agreements. The regions
will determine the appropriate mechanism on a state-by-state
basis.
7
-------
9610.5
These agreements will allow EPA to build on existing state
program resources and legal authorities during the transition
period. However small the existing base of state activities, EP'
will try to build on it. The lack of a comprehensive petroleum
and/or hazardous substance UST program does not negate the
opportunity to negotiate a limited agreement that reflects
existing state authorities. The state will be considered the
"implementing agency" for only those activities that fall within
the scope of the formal agreement. As a minimum, the states
should agree to be the "implementing agency" for the purpose of
receiving reports from owners and operators.
E. Hazardous Substance UST Systems
Based on notifications, an estimated 52,000 UST systems
contain hazardous substances nationwide, almost one-third of
which are in California. Hazardous substance UST systems
constitute less than 3% of the regulated universe.
Unlike petroleum releases, releases of hazardous substances
from UST systems are not eligible for LUST Trust Fund financed
corrective action activities. State clean-up programs for
hazardous substance tanks, therefore, are not eligible for LUST
Trust Fund financial support. In addition, some states may apply
for approval of a partial program (only covering UST systems
containing petroleum). Thus hazardous substance UST systems
constitute a unique case that must be addressed separately from
UST systems containing petroleum.
At least 24 states and territories have legislative
authority in place for developing approvable UST programs that
address requirements for tank design, maintenance, and corrective
action for hazardous substance tanks. Comprehensive
implementation of a national hazardous substance UST regulatory
program on the date the federal regulations become effective
cannot occur. This is a reality we start with, and as in the
parallel case of regulatory and clean-up programs for UST systems
containing petroleum, the transition period will be characterized
by the continued development and building of state capability to
operate regulatory and clean-up programs for UST systems
containing hazardous substances.
An analysis of the proposed regulations indicates that the
same basic set of activities are required of owners and
operators, and therefore of the implementing agency, of UST
systems containing hazardous substances as for UST systems
containing petroleum. As in the case of UST systems containing
petroleum, most formal enforcement actions will be conducted by
the states. When a state lacks the necessary authority and
refers a significant violation to EPA, EPA may take an
enforcement action if resources permit and other priorities are
being met.
8
-------
9610.5
Under certain circumstances, releases of hazardous
substances from UST systems qualify for immediate removal action
cleanups under superfund. According to the National oil and
Hazardous Substances Contingency Plan (40 CFR Part 300), an
immediate removal action will be carried out when a determination
is made that such action "will prevent or mitigate immediate and
significant risk of harm to human life or health or to the
environment from such situations as: (1) human, animal or food
chain exposure to acutely toxic substances; (2) contamination of
a drinking water supply; (3) fire and/or explosion; or (4)
similarly acute situations." OUST will work with the Office of
Emergency and Remedial Response (Superfund) to clarify the
criteria and circumstances under which releases of hazardous
substances from UST systems qualify for immediate removal action
cleanups.
V. Future Work
This strategy addresses implementation of the UST program
during FY 1989 and FY 1990, the first two years the federal
regulations will be effective. A "Transition Tasks" document
will be completed soon. This document will provide
clarification about the activities required of the implementing
agency by the federal UST regulations, and will identify ways in
which they can be carried out during the transition period. The
document will also outline tasks that are implied, conditional,
and optional for the implementing agency, based on requirements
placed on owners and operators.
During FY 1988 and continuing into FY 1989, state-specific
program implementation strategies will be developed for those few
states without clean-up programs or federal grant monies. In
addition, in FY 1990, OUST will develop an updated implementation
strategy for the UST program for FY 1991 which takes into account
the status of state program applications and approvals, state
funding sources, and state compliance monitoring and enforcement
activities.
9
-------