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CHAPTERS 1-3 STATE PROGRAM APPROVAL HANDBOOK OSWER Directive 9650.11 May 11, 1992

CHAPTERS 1 - 3
Contents


OSWER DIRECTIVE 9650.11

CHAPTER 1. INTRODUCTION

A. Purpose of This Handbook

This handbook was developed for State and EPA officials who are building and evaluating State UST programs to be approved to operate in lieu of the Federal UST program. As provided in Subtitle I of the Resource Conservation and Recovery Act, 42 U.S.C. §§6991 - 6991 et seq., States may be approved by EPA to administer and enforce their UST programs in lieu of the Federal UST program if their technical requirements are no less stringent than the corresponding Federal requirements, and if they provide adequate enforcement of these requirements. [Note: Throughout this document, the word "States" generally includes both States and territories.] EPA has promulgated regulations for State program approval (40 CFR Part 281). This handbook provides further explanation and discussion to increase the States' understanding of how EPA intends to implement these regulations.


OSWER DIRECTIVE 9650.11

B. The Goals of This Handbook

The goals for this handbook are:


OSWER DIRECTIVE 9650.11

C. How This Handbook Can Help You

The handbook is written for two audiences: State agencies 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 packages. More detailed discussions of some of these components are provided in the subsequent chapters.

Chapter 4 discusses the Attorney General's statement that the statutes and regulations of the State meet the "no less stringent" technical requirements and ensure adequate enforcement of the State's UST program. A table with spaces to cite relevant State statutes and regulations 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.


OSWER DIRECTIVE 9650.11

D. EPA's Approach to Regulating UST 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 facilities to be regulated; the nature of the regulated 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 48 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 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 of UST owners and UST 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 UST systems, owners have until December 22, 1998, or ten years, to upgrade existing UST systems to the corrosion protection standard for new UST systems, and 1 to 5 years to install release detection equipment for existing UST systems. These phased-in requirements are a recognition of the fact that there are some limitations on the capability of 700,000 UST 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 understand 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 environmental regulation, will be significantly affected by 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 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 to 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 life cycle 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 occurred. 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 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 USTs poses unique problems, it also presents opportunities that are not available to some other environmental regulatory programs. First, 40 States and territories already have final technical regulations for USTs, while an additional 11 have draft technical regulations. 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 UST 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 USTs 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 approach is 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 State and local governments so that we can work together to improve the implementation of the UST program over the next decade.


OSWER DIRECTIVE 9650.11

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 health 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 storage tanks. Simultaneously, the States 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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OSWER DIRECTIVE 9650.11

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 UST programs to operate "in lieu of" the Federal program. EPA plans to approve acceptable State UST programs as quickly as possible, and follow up with activities that provide continual assistance to States and localities for improving their capability and performance.


OSWER DIRECTIVE 9650.11

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 can 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.

It should be understood that State programs may operate under State law without Federal approval. There is nothing in Subtitle I which requires the States to receive EPA blessing before operating their own UST programs under State law. State program approval signifies Federal authorization of the State program to operate in lieu of the Federal program. In essence, the State becomes the implementing agency for the Federal UST program. One major impact of Federal approval is that the Federal regulations no longer apply in the authorized State; it is implementing an approved State program in lieu of the Federal program.

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 UST releases.


OSWER DIRECTIVE 9650.11

B. Approval Criteria

Subtitle I allows EPA to authorize States to operate their own program in lieu of the Federal program if certain conditions are met. Two major areas that are often confused with one another in the determination of program adequacy, and thus merit closer examination, are "scope" and "stringency." Scope refers to whether or not the State program addresses the same UST system universe and applies requirements to that universe for each of the elements in the Federal program. Stringency refers to whether or not those requirements are as demanding as the corresponding Federal requirements. For example, State programs must require release detection on all USTs no later than December 22, 1993. In addition to meeting the scope and stringency requirements, the State must provide for adequate enforcement of the requirements.

Most States have developed and begun 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 to 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 simply wants to be sure 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 UST programs. EPA intends for its 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 and 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.

It is important to note that the approach used in reviewing State programs is a "no less stringent" approach and not a Subtitle C "equivalent and consistent" approach. Reviewers should especially note that the success of the UST program's flexibility approach requires that those reviewing State programs for stringency assess the overall efficacy of program components, rather than demand complete agreement in structure and content. States are expected to meet performance objectives and are allowed to differ from the Federal technical regulations. Nevertheless, the program does contain many clear-cut mandatory elements (such as the enforcement authorities spelled out in §281.41) that circumscribe the overall flexibility. Thus, each element of a proposed State program must be checked for completeness against all requirements of Part 281.

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) 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 adequate legal authorities for inspection and compliance 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.


OSWER DIRECTIVE 9650.11

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 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. 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.

Approval authority has been delegated to the Regional Administrators. Headquarters will be involved in this process only on a limited, consultative basis. Regions may choose to discuss approval issues with Headquarters, but will be required to do so only when a tentative determination is made to disapprove a program.

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 "adequate enforcement" requirements in the regulations. The State Attorney General or other legal representative should also be consulted during these early statutory and regulatory reviews so that later conflicts may be avoided. The Regional UST Attorney should also be in close and early contact with the State Attorney General for consultation on legal matters, if necessary. Many problems and delays can be avoided if the State and EPA attorney work closely together. 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 Register to provide an opportunity for public comment. A final determination on the State's program 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 Code of Federal Regulations (CFR). EPA codifies the entire approved State UST program (including more stringent elements, but not those that are broader in scope) to identify the specific elements of the State program that are 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 rule making; (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 September 23, 1988 State Program Approval Rule (53 FR 37239).

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OSWER DIRECTIVE 9650.11

CHAPTER 3. COMPONENTS OF THE STATE PROGRAM APPROVAL APPLICATION


OSWER DIRECTIVE 9650.11

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.


OSWER DIRECTIVE 9650.11

B. Components of the Application

OSWER DIRECTIVE 9650.11

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.

Sample 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


OSWER DIRECTIVE 9650.11

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 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. When a State adopts the Federal regulations by reference, the following standard phrase can be included in the Attorney General's Statement to demonstrate that the State has no less stringent requirements: "The State has adopted the Federal regulations by reference and therefore meets the no less stringent criterion for Objective §281.___." This statement is sufficient for demonstrating adequate stringency and will save States from writing lengthy and unnecessary justifications of how the Federal regulations (adopted by reference) meet the Federal objectives.

Sample 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.

Sample Letter

Ms. Jane Jones

Regional Administrator

Region XI, U.S. Environmental Protection Agency

Street Address

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 Agency) , (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 (Lead Agency) 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 may be an important part of the administrative record for future lawsuits challenging the implementing agency's actions during an enforcement proceeding taken under the State program; (3) the laws and regulations submitted in the application will form the basis of the codified program. Finally, if EPA takes enforcement action in the State after the State program is approved, EPA uses the Attorney General's Statement to help interpret State law since EPA would be enforcing the State law in lieu of the Federal law. The approved State program operates "in lieu of" the Federal program under Section 9004(d). If the Attorney General's Statement fails to analyze a cited authority, and EPA's review of that cited authority indicates that the law or regulation is ambiguous or does not appear to meet Federal requirements, EPA may ask the Attorney General to supplement the statement. The Attorney General would be asked to address specific legal issues raised by the Agency's review of the cited State statutes and regulations. EPA may also ask that the Attorney General clarify or expand a prior narrative analysis.

Without further comment from the Attorney General on certain issues, EPA generally cannot evaluate the State's legal position that its laws and regulations meet the requirements of Federal law for State approval. 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 the Attorney General's attention and ask that it be addressed. EPA would ask the State Attorney General to reconcile the difference in coverage.

OSWER DIRECTIVE 9650.11

3. Demonstration 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:

Chapter 5 provides a detailed discussion of these procedural requirements.

OSWER DIRECTIVE 9650.11

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.

OSWER DIRECTIVE 9650.11

5. Program Description.

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. This information will be used to inform the general public about the approved State program and will serve as a baseline for EPA to work with the State over the long term. Chapter 7 contains additional guidance on the questions in the Program Description.

OSWER DIRECTIVE 9650.11

6. 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 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 program. If the Federal government were ever to pursue an enforcement action within a particular State, it would use that State's own EPA-approved 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.

[ Table of Contents ][ Chapter 4 ]

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