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OSWER Directive 9650.15 PROCEDURES AND REQUIREMENTS FOR CODIFICATION OF APPROVED STATE UST PROGRAMS September 1994

Directive Organization

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 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)
  1. New Hampshire Statutory Requirements Applicable to the Underground Storage Tank Program, 1993 40 CFR 282.79
  2. New Hampshire Revised Statutes; Annotated Titles 10,11: Public Health to Hospitals and Sanitaria, Chapters 125 to 152, 1992, Cumulative Supplement (For Use Until Publication of 1993 Cumulative Supplement)
  3. New Hampshire Regulatory Requirements Applicable to the Underground Storage Tank Program, 1993 40 CFR 282.79
  4. New Hampshire Code of Administrative Rules (Env-Ws 412): Reporting and Remediation of Oil Discharges

NOTE: The document you are viewing is an HTML facsimile of OSWER Directive 9650.15 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.

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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.

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OSWER Directive 9650.15

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 all 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.

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 enforce- ment 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 substantive 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 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 stringent state provisions is usually covered in similar provisions of the federal program. Examples or 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 enforceable 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 900(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 subpoenas are also included in Section 9006(b). Section 9006(c) specifies the scope 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.S.C. § 6991c(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. § 6991e(a) which state,

. . . 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,

(E) each amendment, revision, or repeal of the foregoing.

Except to the extent that a person has actual and timely notice of the terms thereof, 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 whirl 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.

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OSWER Directive 9650.15

II. Steps in the Codification Process

Regions will be required to follow a number of standard steps when codifying their approved state programs. (View a flowchart "Steps in the Codification Process" This is a GIF image file)

  1. The major effort will be to write the Federal Register 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 Regions electronically to facilitate the codification process (see Appendix B).
  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 G).
  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 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.

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OSWER Directive 9650.15

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. There 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 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 not 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.

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OSWER Directive 9650.15

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 to 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.

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 quidelines 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 material 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 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 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 avid unnecessary photocopying, it is acceptable to include a pre-printed and bound booklet of statutes or regulations that is not 8.5 x 11 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 and 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 EPS OUST docket, Room M 2616, 401 M Street, SW, Washington, DC 20460; at OUST Headquarters (contact Jerry Parker); and in the 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 in 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 reassembly of the materials will not be necessary.

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APPENDICES


OSWER Directive 9650.15

APPENDIX A
PART 282 FRAMEWORK RULE
AND
NEW HAMPSHIRE CODIFICATION RULE


OSWER Directive 9650.15

APPENDIX B
VERMONT CODIFICATION RULE ("STAND-ALONE" RULE)


OSWER Directive 9650.15

APPENDIX C
FEDERAL REGISTER DOCUMENT REQUIREMENTS


OSWER Directive 9650.15

APPENDIX D
GUIDANCE ON PREPARING AND SUBMITTING FEDERAL REGISTER DOCUMENTS


OSWER Directive 9650.15

APPENDIX E
SAMPLE TRANSMITTAL LETTERS TO THE OFFICE OF THE FEDERAL REGISTER


OSWER Directive 9650.15

APPENDIX F
LIST OF CFR SECTIONS RESERVED FOR APPROVED STATE PROGRAMS


OSWER Directive 9650.15

APPENDIX G
SAMPLE INCORPORATION BY REFERENCE BINDERS
(NEW HAMPSHIRE)

  1. New Hampshire Statutory Requirements Applicable to the Underground Storage Tank Program, 1993 40 CFR 282.79
  2. New Hampshire Revised Statutes; Annotated Titles 10,11: Public Health to Hospitals and Sanitaria, Chapters 125 to 152, 1992, Cumulative Supplement (For Use Until Publication of 1993 Cumulative Supplement)
  3. New Hampshire Regulatory Requirements Applicable to the Underground Storage Tank Program, 1993 40 CFR 282.79
  4. New Hampshire Code of Administrative Rules (Env-Ws 412): Reporting and Remediation of Oil Discharges

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