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FY 1989 - FY 1990 Transition Strategy for the Underground Storage Tank Program OSWER Directive 9610.5 March 31, 1988

Directive Organization

  1. Abstract
  2. Problem Statement
  3. Transition Strategy
    1. Summary of Basic Strategy
    2. Scope of Strategy
  4. Implementation Plan for the Transition Strategy
    1. Clean-up Program: LUST Trust Fund Activities
    2. Regulatory Program: State Program Grant Activities
    3. Promoting Compliance with the Regulations
    4. Legal Mechanism
    5. Hazardous Substance UST Systems
  5. Future Work

NOTE: The document you are viewing is an HTML facsimile of OSWER Directive 9610.5 that has been reformatted for the Internet. This version maintains as much as possible of the original document integrity. Only a couple of non-essential elements are missing, namely facsimiles of the OSWER Directive cover page, and EPA Form 1315-17 (the Directive Initiation Request). Also, the original typed document had the directive number as a header on each page—in this version the directive number appears at the beginning of each new section.


OSWER DIRECTIVE 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.

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OSWER DIRECTIVE 9610.5

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.

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OSWER DIRECTIVE 9610.5

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.

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OSWER DIRECTIVE 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.

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OSWER DIRECTIVE 9610.5

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.

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OSWER DIRECTIVE 9610.5

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 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.

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.

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OSWER DIRECTIVE 9610.5

B. Regulatory Program: State Program Grant Activities

Following promulgation of the federal technical requirements, states receiving program grants will 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 priorities, 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.

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OSWER DIRECTIVE 9610.5

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 outreach and compliance assistance activities to provide technical assistance and inform owners and operators of their responsibilities. The regions will 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.

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OSWER DIRECTIVE 9610.5

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.

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, EPA 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.

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OSWER DIRECTIVE 9610.5

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.

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.

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OSWER DIRECTIVE 9610.5

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.

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