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CHAPTER 6 STATE PROGRAM APPROVAL HANDBOOK OSWER Directive 9650.11 May 11, 1992

CHAPTER 6. MEMORANDUM OF AGREEMENT
Contents

6. MEMORANDUM OF AGREEMENT

  1. Explanation
    1. Who Signs
    2. Federal/State Partnership
    3. State Program Appraisal Process
    4. Compliance Monitoring and Enforcement
    5. Scope of the UST Program
    6. Variances
    7. Creative Use of the Memorandum of Agreement
  2. Sample Memorandum of Agreement

OSWER DIRECTIVE 9650.11

CHAPTER 6. MEMORANDUM OF AGREEMENT

A. Explanation

The MOA specifies the roles and responsibilities of EPA and the State after approval of the State's program to operate in lieu of the Federal program. The EPA Regional Office (the Region) will discuss the details of particular components with the individual State to tailor the Agreement to the specific needs and aspects of the State program. The MOA is a vehicle for communicating the respective roles of the State and EPA, and clearly spelling out the purpose and limitations of that role.

OSWER DIRECTIVE 9650.11

1. Who Signs.

Generally, the MOA is negotiated between the State Director and the Regional Administrator and is drafted either by the State or the Region. (Each Region may decide this question for itself.) In cases in which two or more State agencies share considerable responsibilities for the functions described in the MOA, the director of the lead agency should sign the MOA with EPA. The lead agency may execute a Memorandum of Understanding (MOU) with the other implementing agencies. The MOA describes the coordination and implementation of those provisions of the MOA that concern more than one State agency. Agreements with local units of government need not be included in the MOA.

OSWER DIRECTIVE 9650.11

2. Federal/State Partnership.

EPA will maintain communication and provide support in order to assist the State in achieving its program objectives. The Regional role in this partnership includes: providing information and guidance regarding the Federal UST regulations; communicating national and Regional priorities; providing information on other successful State programs; and collecting information to assess the nation's progress in the implementation of the underground storage tank program. EPA must maintain reliable national data on underground storage tanks which will be used to advise the President, the Congress, and the public on the status of the Subtitle I UST program, and to support EPA's regulatory development efforts. EPA will first seek to obtain this data from the States when it decides what information is needed.

Perhaps the most important function described above is to provide technical guidance to the State, including information on alternative and effective UST technologies or corrective action approaches used in other States. The Regions will inform Headquarters of specific State needs as well. Headquarters will assemble this information for use in updating national program policies and priorities.

Approved States have primary responsibility for implementing and enforcing the UST program. They will work with the Regions in determining specific State priorities and goals on an annual basis under the grant negotiation process. The States are responsible for collecting and reporting information regarding the size of their UST population and compliance monitoring data. States also will provide input to the Regions with regard to further development of national program policy and future regulatory development.

OSWER DIRECTIVE 9650.11

3. State Program Appraisal Process.

OUST's program appraisal process has three objectives:

Regional offices, in particular the UST Program Managers, will have the primary responsibility for balancing the service and evaluation functions that are part of this process. They will use reporting information, on-site program reviews, service visits, self appraisals by States and other tools to determine the most pressing needs of the States for improvement and assistance. The Regional UST program staff work with other offices within the Region (for example, Grants, Financial Management, and Regional Counsel) to appraise performance in relevant program areas and to provide technical, legal and other assistance to the States. State visits and reviews by other Regional office staff should be coordinated with UST program reviews whenever possible in order to minimize the disruption of normal program activities in the States. At a minimum, UST Program Managers and the States should know of such visits far enough in advance to allow for adequate preparation by the States.

OUST's program appraisal process recognizes that State programs will be using a variety of approaches to meet the Federal program objectives. Therefore, expectations regarding State performance negotiated under grant workplans and cooperative agreements will be tailored as much as possible to reflect State-specific program implementation strategies. Reporting data on UST system ownership, releases, and clean-up action contributes to a comprehensive picture on the implementation of the UST program. In addition, such data may assist EPA in further rulemaking efforts. The appraisal process will rely on quantitative as well as qualitative assessments. The Regions will negotiate specific reporting requirements with each of their States and incorporate those requirements into the State grant workplans and cooperative agreements.

OSWER DIRECTIVE 9650.11

4. Compliance Monitoring and Enforcement.

State programs operate "in lieu of" the Federal government; consequently approved States have primary enforcement responsibility in the State. When requested, the Regions will be able to assist the States by providing legal and technical expertise, compliance outreach, and formal enforcement of the State's requirements.

The criteria for "adequate enforcement" have been designed to reflect the significant differences that may exist in the UST universe across the States. The goals of the UST enforcement program reflect an emphasis on promoting compliance within the UST universe.

The MOA is an appropriate vehicle for establishing the relationship between EPA and the State with respect to the State's enforcement program. The agreement provides performance expectations for the State to use as goals for achievements. The agreement enables the Region to evaluate the success of State enforcement programs without relying solely on more traditional measures of performance, for example, the number of enforcement actions taken in a given year.

One of the most important uses of the MOA is as a guarantee that the program will be effectively implemented by the State. First, it provides for Federal enforcement of the State program requirements if State enforcement is deemed insufficient. Federal enforcement of the State program is not likely to be an issue for most States, however, because the MOA is also used in performance reviews of the State program, usually conducted at mid-year and the end of the year. The MOA itself is also customarily reviewed at this time and decisions are made regarding any changes that need to be made. Because receipt of Federal grant money is contingent upon adherence to the terms of the MOA, there are substantial incentives for the State to comply. Thus, the MOA is an agreement that assesses where the State program is, where it is going, and, through mid- and end-of-year reviews, ensures that its terms will be met because of the possibility that States not in compliance may lose their Federal UST program grant.

By the same token, however, the MOA can be a vehicle for States to demonstrate their commitment to the UST program by fully complying with its terms, or creatively using it to compensate for weaknesses in their programs, which are approvable despite the weaknesses. Such use of the MOA can help Regional UST staff feel more comfortable approving such programs, as they can be assured that program development will be an ongoing activity in the State and the State program will eventually be as effective as the Federal program. See paragraph 7 below for a more detailed discussion of creative use of the MOA.

OSWER DIRECTIVE 9650.11

5. Scope of the UST Program.

To receive program approval, a State program must include within its jurisdiction all of the categories of UST systems that are addressed within the scope of the Federal program for either petroleum tanks or hazardous substance tanks or both. While it is not encouraged, the Regions may in a few exceptional cases, approve a State program where the State does not have immediate jurisdiction over all categories of tanks. The Agreement will also spell out EPA's interim enforcement responsibilities with regard to those unregulated segments of the UST universe.

OSWER DIRECTIVE 9650.11

6. Variances.

State programs using variances may be approved under certain conditions. The objectives laid out in the State Program Approval Rule do not allow approval of State programs with standards less stringent than those at the Federal level. Ground-water area variances (for example, those that allow less stringent release detection in remote or low groundwater table areas) are prohibited, as well as any other variance that affords less stringent protection of human health and the environment. For example, the rule does not allow approval of State programs that allow less stringent requirements (such as less frequent release detection) in ground-water areas that are described or classified as less vulnerable, whether these variances are applied on a case-by-case or class basis.

A State program with a variance procedure may be approved if the State's eligibility criteria and procedures for reviewing site-specific or equivalent technology-type variances requests will result in no less stringent prevention, detection, and responses to releases. The State must not have any provisions in its program that allow less stringent variances to be granted. Furthermore, in the MOA, the State must agree to issue variances only in a manner that is no less stringent than the Federal program in protecting human health and the environment. More discussion of the general subject of variances and EPA's response to public comments on this aspect of the rule can be found in the preamble to the State Program Approval Rule (53 FR 37223).

Although no State program that includes a risk-based variance procedure can be approved (for example, a variance procedure that allows less stringent requirements in "less risky" situations), the Agency did approve the use of technology-based variances, and may approve State programs with such variances. Two examples of technology-based variances may be helpful. First, a State that allows owners and operators to use an alternative technology (for example, different release detection methods) may be no less stringent if each particular method can be shown to achieve the same level of performance as the methods allowed under the Federal program. The State may identify the approved methods in regulation or the State may decide instead simply to make provisions (in the form of a variance) to allow for the use of alternatives as they are developed in the future and determined by the State to perform as well as the Federally-allowed methods. This variance could allow the use of any particular method in accordance with the conditions that are necessary to ensure that the requisite level of performance of that method is attained.

A second type of variance is the site-specific variance, where the State approves a variance from its regulations for a particular UST system based on site-specific circumstances. An instance in which a State could choose to allow such variances that would be no less stringent, for example, would be in cases where the State has determined that the nature of the soil at a particular site or type of site is sufficiently non-corrosive, such that the bare steel tanks or piping at that site will not leak due to corrosion during its operating life. As stated above, the terms of agreement on how variances will be issued by the State must be specified in the MOA.

OSWER DIRECTIVE 9650.11

7. Creative Use of the Memorandum of Agreement

Regional UST staff may be reluctant to approve State programs that diverge in some way from the Federal structure or that may appear to have limited staffing or funding. This need not be the case, however; through creative use of the Memorandum of Agreement between the Region and State, questions about the State program which might have led to doubts about its approvability may be sufficiently resolved so that approval can be granted.

For example, consider a State with a very small staff or limited budget that is seeking program approval. Both the Region and State want to see the State program approved, but the Region is reluctant to approve what may turn out to be a "paper" program that the State cannot enforce. Upon close scrutiny of the State program, however, the Region sees that the State is utilizing a number of innovative approaches to program implementation, including working closely with the Fire Marshal's office, Building Inspector, and Board of Health to ensure that it receives any new information that may affect the UST program; actively involving local entities such as industry representatives, community groups, local media, and government agencies such as the fire department in the UST program; and delivering presentations at oil industry and trade association meetings.

Such activities help compensate for the lack of staff and funding, and indicate that the State may indeed have the capabilities to run an effective UST program. In such cases, allowances for the lack of program resources can be made within the MOA and the program can be approved, as long as the Region is confident that it can work with the State to further develop program capabilities and provide support for continual improvement. States that consciously work to make the most of their limited resources are often able to implement a program comparable to that of a less diligent State with significantly more resources. The MOA may also be used to specify that the State shall seek additional resources over the next several years. The signed agreement should provide significant leverage for the State during legislative sessions.

Specifically, the MOA could be structured so that the State would be required to submit information on statewide compliance status, with the stipulation that if it is deemed unsatisfactory, the Region would be justified in stepping in to enforce compliance with the requirements. The MOA could also outline in some detail what form State program development would take, clearly defining the respective roles of the State and Region. The MOA could also outline what form continuing EPA oversight of the State program would take. In each case, the MOA could set forth provisions that increase the likelihood that the State program can be effectively implemented, despite the areas in which it diverges from or is less explicit than the Federal program, provided, of course, that the State's requirements are no less stringent than the Federal performance objectives.

The Region may choose to use the MOA to spell out specific activities expected of States upon receipt of program approval. Some examples of such activities are provided below. It is important that Regions and States recognize the flexibility of the MOA and utilize that flexibility to the fullest extent possible, thus maximizing the benefits to their programs of "customized" MOAs.

The MOA can also be used to require States to report any program changes that may affect the approved Subtitle I program. EPA can then review those changes and determine whether the State must submit an application for program revision.

The structure of the sample MOA which follows this section should not be viewed as the only one allowable, but rather as a baseline upon which States and Regions can build. Writing the MOA should not be seen as a mere formality or paperwork exercise, but a chance to use this adaptable State Program Approval application component to promote flexibility in the structure of State programs. The MOA can be structured in such a way to help gain approval for programs that differ slightly from the Federal program or have minor weaknesses that can be corrected over time, as long as there are explicit pledges from both the State and Region to continuously work to solve existing problems and further develop a fully capable State UST program.

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OSWER DIRECTIVE 9650.11

B. Sample Memorandum of Agreement

MEMORANDUM OF AGREEMENT
BETWEEN
The State of New Columbia
and
The United States Environmental Protection Agency
Region III

I. GENERAL

This Memorandum of Agreement (hereinafter "Agreement") establishes policies, responsibilities, and procedures pursuant to 40 CFR 281 for the State of New Columbia's Underground Storage Tank Program (hereinafter "State Program") approved under Section 9004 of Subtitle I of the Resource Conservation and Recovery Act (hereinafter "RCRA" or "the Act") of 1976 (Public Law 98-616, USC "6901 et seq.), as amended, and the United States Environmental Protection Agency (hereinafter "EPA") Regional office for Region III. This Agreement further sets forth the manner in which the State and EPA will coordinate in the State's administration of the State program.

This Agreement is entered into by the Director [or other title as appropriate] of [State Agency] (hereinafter "Director" or "the State") and the Regional Administrator, EPA Region III (hereinafter "Regional Administrator" or "EPA"). [Where State program responsibility is shared among two or more agencies, each of the agencies is to be identified here as a party of the Agreement and the Agreement must identify which of the agencies is responsible for each provision of the Agreement.]

For administrative purposes, the [State Agency] will serve as lead agency to simplify coordination and communication between the State and EPA. [This provision need not be included in the MOA where there is only one responsible State agency.]

Nothing in this Agreement shall be construed to restrict in any way EPA's authority to fulfill its oversight and enforcement responsibilities under Subtitle I of RCRA. Nothing in this Agreement shall be construed to contravene any provision of 40 CFR Parts 280 and 281.

The parties will review the Agreement jointly at least once a year. This Agreement may be modified upon the initiative of either party in order to ensure consistency with State program modifications made or for other purposes mutually agreed upon. Any revisions or modifications must be in writing and must be signed by the State and the Regional Administrator.

This Agreement will remain in effect until such time as State program approval is withdrawn by or is voluntarily transferred to EPA according to the criteria and procedures established in 40 CFR Part 281.60 and 281.61.

This Agreement shall be executed by the State and the Regional Administrator and shall become effective at the time the State's approval takes effect, which shall be the effective date of the approval as specified in the Federal Register notice announcing EPA's final decision to grant approval to the State.

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II. POLICY STATEMENT

Each of the parties to this Agreement is responsible for ensuring that its obligations under Subtitle I of RCRA are met. Upon award of final approval by EPA, the State assumes primary responsibility for implementing the Subtitle I Underground Storage Tank Program within its boundaries. EPA retains its responsibility to ensure full and faithful execution of the requirements of Subtitle I of RCRA, including direct implementation in the event the State is unwilling or unable to act. The State and the Regional Administrator agree to maintain a high level of cooperation and coordination between their respective staffs in a partnership to assure successful and effective administration of the State program.

[Insert discussion on Regional and State roles and responsibilities with regard to partial approved State programs. Provide details on how the petroleum or hazardous substance UST systems will be managed in the approved State.]

EPA assumes a management role upon granting [interim] final approval to the State. EPA will review the State program in order to assist the State in implementing its program, to allow EPA to report to the President, the Congress, and the public on the achievements of the underground storage tank program, and to encourage the State and EPA to agree on desirable technical support and targets for joint efforts to prevent and mitigate environmental problems associated with improper management of underground storage tanks. Management will be accomplished by EPA through written reporting requirements, compliance and enforcement overview, and annual review of the State's program.

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III. STATE PROGRAM REVIEW

The Regional Administrator will assess the State administration and enforcement of the underground storage tank program on a continuing basis for stringency with Subtitle I requirements, with this Agreement, and with all applicable Federal requirements and policies and for adequacy of enforcement. This assessment will be accomplished by EPA review of information submitted by the State in accordance with this Agreement and annual review of State program activities. The Regional Administrator may also consider, as part of this regular assessment, written comments about the State's program administration and enforcement that are received from regulated persons, the public, and Federal, State, and local agencies. Copies of any such comments received by the Regional Administrator will be provided to the State.

To ensure effective program review, the State agrees to allow EPA access to all files and other information requested by the Regional Administrator and deemed necessary for reviewing State program administration and enforcement.

Review of [State agency] files may be scheduled at quarterly intervals. Program review meetings between the State and the Regional Administrator or their assignees will be scheduled at reasonable intervals not less than annually to review specific operating procedures and schedules, to resolve problems and to discuss mutual program concerns. These meetings will be scheduled at least 15 days in advance unless agreed to differently. A tentative agenda for the meeting will be prepared by EPA.

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IV. INFORMATION SHARING
A. General

As the national underground storage tank program matures, the respective roles and responsibilities in this State/Federal partnership will become more clear. As the respective information needs of the State and EPA evolve, changes to this section of the Agreement may be appropriate. During the annual review of this agreement, the State and Regional Administrator will carefully examine the following information sharing provisions for necessary revisions.

B. EPA
  1. EPA will keep the State informed of the content and meaning of Federal statutes, regulations, guidelines, standards, policy decisions, directives, and any other factors that affect the State program. EPA will also provide general technical guidance to the State. EPA will share with the States any national reports developed by EPA from the data submitted through State reporting requirements.
  2. EPA will make available to the State other relevant information as requested that the State needs to implement its approved program.
  3. [Add specific language here regarding actions EPA agrees to pursue for the State in order for the State to accomplish its program development and implementation activities.]
C. State
  1. The State agrees to inform the Regional Administrator of any proposed or adopted program changes that would affect the State's ability to implement the approved program. Program changes of concern include modification of the State's legal authorities (for example, statutes, regulations, and judicial or legislative actions affecting those authorities), modifications of memoranda of agreement or understanding with other agencies, and modifications of resource levels (for example, available or budgeted personnel and funds). The State recognizes that program revisions must be made in accordance with the provisions of 40 CFR Part 281.
  2. The State will provide compliance monitoring and enforcement information to the Regional Administrator, as specified in the annual grant guidance, on a quarterly basis. The State agrees to provide EPA with copies of reports on data resulting from any compliance inspection and subsequent enforcement actions, if EPA requests such copies.
  3. [Insert specific language here regarding specific program changes the State agrees to seek or adopt in order to improve its effectiveness; e.g., develop an automated data management system.]
D. National Data

EPA maintains certain national data on underground storage tanks. This data is used to report to the President, the Congress, and the public on the achievements of the underground storage tank program and to support EPA's regulatory development efforts. Whenever EPA determines that it needs to obtain certain information, EPA will first seek to obtain this information from the States. The State agrees to supply the Regional Administrator with this information if readily available and as resources allow. If the State is unable to provide the information or if it is necessary to supplement the State information, EPA may conduct a special survey or perform information collection site visits after notifying the State. EPA will share with the State any national reports developed by EPA as a result of such information collection.

E. Confidentiality

Any information obtained or used in the administration of the State program shall be available to EPA upon request without restriction. If the information has been submitted to the State under a claim of confidentiality, the State must submit that claim to EPA when providing the information. Any information obtained from a State and subject to a claim of confidentiality will be treated in accordance with the regulations in 40 CFR Part 2.

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V. COMPLIANCE MONITORING AND ENFORCEMENT
A. EPA

Nothing in this agreement shall restrict EPA's right to inspect any underground storage tank facility or bring enforcement action against any person believed to be in violation of the approved State underground storage tank program. Before conducting an inspection of a facility, the Regional Administrator will normally give the State at least 7 days notice of the intent to inspect. [The Regional Administrator and State may agree on a longer period of time in order to allow the State the opportunity to conduct the inspection.] If the State performs a compliance inspection and submits a report and relevant data thereto within that time to EPA, no EPA inspection will be made, unless the Regional Administrator deems the State report and data to be inadequate. In case of an imminent hazard to human health or the environment, the Regional Administrator may shorten or waive the notice period.

The Regional Administrator may take enforcement action against any person determined to be in violation of Subtitle I of RCRA in accordance with section 9006. EPA also retains its right to issue orders and bring actions under Section 9003(h) or 9006 of Subtitle I of RCRA and any other applicable Federal statute. With regard to Federal enforcement, it is EPA's policy not to take such action where a State has taken appropriate enforcement action. Before issuing a compliance order under Section 9006, EPA will give notice to the State.

B. State

The State agrees to carry out an effective program for monitoring the compliance by owners and operators of facilities with applicable program requirements. As part of this program, the State will conduct compliance inspections and use other mechanisms to assess compliance with underground storage tank standards, compliance schedules, and all other program requirements.

The State agrees to develop an appropriate enforcement response against all persons in violation of underground storage tank standards (including notification requirements), compliance schedules, and all other program requirements, including violations detected by State compliance inspections. The State will maintain procedures for receiving and ensuring proper consideration of information about violations submitted by the public.

The State agrees to retain all records for at least 3 years unless there is an enforcement action pending. In that case all records will be retained until such action is resolved.

The terms set forth in this Agreement are intended solely for the purpose of memorializing the parties' understanding of their respective roles and commitments in the administration of the Underground Storage Tank Program. They are not intended, and cannot be relied upon, to create any rights, substantive or procedural, enforceable by any other party in litigation with either of the parties to this agreement. The parties reserve the right to modify this agreement in accordance with its terms without public notice.

STATE OF: __________________

U.S. ENVIRONMENTAL PROTECTION AGENCY

AGENCY: ___________________

REGION: _____________________

BY: ________________________

BY: __________________________

DATE: ______________________

DATE: ________________________


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