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CHAPTER 7 STATE PROGRAM APPROVAL HANDBOOK OSWER Directive 9650.11 May 11, 1992

CHAPTER 7. PROGRAM DESCRIPTION
Contents

7. PROGRAM DESCRIPTION

  1. Introduction
  2. Local Implementation
  3. Program Description Questions
    1. General Questions
    2. Program Scope
    3. Organization and Structure of Program
    4. Resource Information
  4. Capabilities Assessment
    1. Purpose of the Capabilities Matrices
    2. Structure of the Capabilities Matrices
    3. Use of the Capabilities Matrices

OSWER DIRECTIVE 9650.11

CHAPTER 7. PROGRAM DESCRIPTION

A. Introduction

This section of the application describes the scope and organization of the State UST program and the resources that are available to run it. This information is needed to enhance the Agency's and the public's understanding of the State program, and to ensure that a basic program exists. EPA expects that the information requested in these questions will rarely be used as grounds for program approval or disapproval.

The questions covered in the Program Description are grouped into four major categories: general information; program scope; program organization and structure; and resource information. The first two sections request information regarding the range of the State's jurisdiction over USTs and whether the State program is a "partial" or "complete" program. For example, a State may regulate an UST universe that is broader in scope than the Federal program. (Program scope is also covered in Chapter 4 on the Attorney General's Statement.) These questions also inquire about the extent of the State's authority to regulate Indian lands.

The third category in the Program Description asks for information regarding the organization and structure of any State and local implementing agencies administering the UST program within a State. A State should identify the major jurisdictional responsibilities, program operation roles, and lines of communication and authority of these implementing agencies. It should also provide an organizational chart depicting the role and responsibility of each State agency that is involved in UST implementation.

The fourth section of the Program Description asks the State to describe its staff and funding resources with any existing restrictions on the utilization of either. In addition, the State should provide estimates of various administrative and implementation costs involved in running a State UST program.

The purpose of the Program Description is two-fold. First, the information provided by the State in these sections will enhance EPA's and the general public's understanding and knowledge of the content and structure of that particular program. The overall success of a nationwide UST program depends heavily on the sharing of such information among States in order that they may draw from one another's experiences in developing and improving their own programs.

Second, EPA can use this information as a yardstick by which to measure the nature and scope of future improvements made in State UST programs. The data that the States provide in their Program Descriptions will describe an initial "baseline" UST program that the Agency can compare with future programs.

OSWER DIRECTIVE 9650.11

B. Local Implementation

Although EPA gives States the primary responsibility to implement and enforce their UST programs, the Agency strongly encourages States to involve local agencies in this process. If a State chooses to involve local agencies in the implementation of its UST program, it may do so in one of two possible ways.

First, a State may request assistance from local agencies and allow them to conduct activities under State authorities and requirements. In such instances, States are not required to provide detailed discussion of local agency implementation assistance in their applications. If the State program has already been approved, the State can inform the EPA Regional Office of the nature of the local involvement in its implementation and enforcement programs. In summary, if local implementation activities supplement State activities but do not replace State authorities and requirements, no formal approval is required by EPA.

Second, a State develops an approvable program. Within the context of an approvable program, the State may also permit local governments to develop their own authorities and procedures as long as those requirements are no less stringent than the approved State program. In this case, the State agency retains the ultimate responsibility for ensuring that the UST program implemented in the State is no less stringent in all areas of the Federal program and provides for adequate enforcement. In this example, EPA interacts with the State agency regarding its approved program. It is the State's responsibility to interact with local governments.

Chapter 2 of this Handbook provides additional discussion of the program revision process, as does the preamble to the State Program Approval Rule (53 FR 37329).

OSWER DIRECTIVE 9650.11

C. Program Description Questions

1. General Questions.

a.Questions

1. Type of approval requested:

  1. Final _______ or Interim ______.
  2. Complete (Petroleum & Hazardous Substances)_____

    or Partial (Petroleum) __________
    or Partial (Hazardous Substances) __________.

2. Does the State have any existing agreements with Indian tribes related to jurisdiction on Indian lands for environmental programs? If so, attach agreements and briefly describe.

b. Explanation

States may choose to apply for approval of a program that regulates either petroleum or hazardous substances or both. Approval of a partial program authorizes a State to run the program only for the specific type of substance indicated.

The information in question 2 is necessary so that EPA can identify Indian lands in the State that it has responsibility for. EPA does not expect States without authorities or agreements for Indian lands to secure these authorities and agreements in order to receive approval. Pursuant to Federal law, EPA cannot approve a State's assertion of jurisdiction over Indian lands absent a clear and unambiguous expression of intent to confer State jurisdiction through either a Federal statute or an applicable treaty with an affected tribe. (Note that RCRA itself cannot be deemed such an expression of intent.) In the absence of such a Federal statute or treaty, EPA has exclusive jurisdiction over Indian lands.

OSWER DIRECTIVE 9650.11

2. Program Scope.

a. Questions

3. Describe the scope of the UST universe covered by the State program. Include the estimated number of petroleum UST systems, hazardous substance UST systems, and any other information affecting the State's regulation of this universe.

b. Explanation

By "UST universe", EPA means all of the categories or types of UST systems including those not currently regulated under Subtitle I. The USTs regulated under Subtitle I are a subset of the tanks in the UST universe. What tanks are included in this subset, or the "scope" of the Federal UST program, is defined by those tanks that are excluded from the program by statute or through EPA regulations. In other words, if the type of tank in question is not listed as one of those that is excluded, then it is within the jurisdiction of the Federal program. Although deferred tanks are within the jurisdiction of the Federal program, they are subject only to the requirements of Subparts A (interim prohibition) and F (corrective action) of the Federal Technical Standards. Exhibit 1 lists those UST systems that are outside the scope of the Federal UST program.

In the program description, the State must describe the scope of the State UST program and provide the information requested on the estimated size of the universe. This information does not duplicate the program scope section required in the Attorney General's Statement. The Attorney General certifies that the State has authority to regulate those tanks within the scope of the State program and that it includes all those tanks regulated under the Federal program. The program description provides a more useful description of what the scope of the State program is in terms of its size and categories of tanks.


OSWER DIRECTIVE 9650.11

Exhibit 1.

UST Systems Outside the Scope of the Federal UST Universe

Exclusions

Excluded by Congress through the definition of UST

farm USTs < 1100 gallons

heating oil USTs

septic tank systems

pipelines

impoundments, pits, ponds, and lagoons

stormwater and wastewater collection systems

flow-thru process tanks

oil and gas production facilities

USTs in underground areas


Excluded by EPA through applicability section 281.10(b)

hazardous waste USTs

wastewater treatment tanks under the Clean Water Act

equipment and machinery tanks

USTs < 110 gallons

de minimus concentration USTs

emergency overflow USTs


Deferrals

Only Interim Prohibition and Corrective Action Standards Apply

waste water treatment tanks not under the Clean water Act

radioactive material USTs

emergency generator USTs at nuclear power plants

airport hydrant fuel systems

field-constructed USTs


Release Detection Standards are Deferred; All Other Standards Apply
emergency generator USTs

OSWER DIRECTIVE 9650.11

In the program description, States must also identify those areas where their UST programs are broader in scope than the Federal program. For example, a State's statutes and laws may cover a larger regulated UST community (for example, heating oil tanks) than is addressed by the Federal program, and should be clearly identified in response to Question 4.

3. Organization and Structure of Program.

a. Questions

4. Indicate the lead agency for facilitating communications between EPA and the State. If there is a separate agency for coordinating Trust Fund activities, indicate that here also.

5. Include a simple chart that describes the organizational structure of the complete State underground storage tank program, including all implementing agencies.

6. Describe the procedures for coordinating the State implementing agencies.

b. Explanation

The program description should include an explanation of the organization and structure of the State agencies with responsibility for administering the program. The jurisdiction and responsibilities of State implementing agencies should be delineated, appropriate procedures for coordination set forth, and one State agency designated as a "lead agency" to facilitate communications between EPA and the State. The identification of the lead agency is intended to simplify coordination and communication between the State and EPA. The "lead agency" will be the agency that other State agencies and EPA contact when an issue concerns one or more State agencies or when it is unclear which State agency should be contacted concerning a particular issue.

The organizational structure chart (see sample in Exhibit 2 below) should include each agency involved in the implementation of the State UST program, and describe the relationship and overall responsibilities of each State and local agency that is involved in UST implementation. For example, if the State UST program relies heavily on local programs, the State should include a description of those organizations in questions 5 and 6.

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OSWER DIRECTIVE 9650.11

Exhibit 2.

NOTE: Exhibit 2 is a chart: "Matrix Values for Determining the Gravity-Based Component of a Penalty". This exhibit file contains a GIF image that is 5,477 bytes. View Exhibit 2.


OSWER DIRECTIVE 9650.11

All of the information requested in this section will be used to inform the public about the State underground storage tank program. In addition, this information will assist EPA in working with the States to implement their UST programs.

4. Resource Information.
a. Questions
7. For each State implementing agency with responsibilities for developing, regulating, enforcing, or administering the underground storage tank program, please estimate the total dollar budget and number of staff assigned to the underground storage tank program.

8. Please provide an estimate of the administrative and implementation costs of the State's underground storage tank program on an annual basis.

9. Indicate current Federal, State and local funding sources, with approximate amounts for each. Please explain any restrictions or limitations regarding these funding sources.

b. Explanation

If a State is formally delegating authority to local agencies, the State should include information on local resources, staffing, and budget in the program description. States should note that local resource estimates are not required as a condition of approval. However, if the State uses local agencies to help implement its program and feels that a description of those agencies is necessary for a complete understanding of the entire UST program organization, the State may include information regarding local government participation in response to Questions 7, 8, and 9. The resource estimates provided in response to the questions in this section will not be judged with any upper or lower bounds for approval or disapproval. The next section of this chapter discusses how EPA will conduct capabilities assessments to ensure that State UST programs are not "paper programs."

Implementation costs are the direct costs incurred in developing and implementing State programs. Some examples include the cost of conducting inspections, writing field citations, issuing permits, reviewing tank test results, working with the State legislature, preparing program approval applications, and similar activities. Administrative costs, on the other hand, include indirect program expenses such as the following examples: developing a budget, providing clerical support, negotiating State grants and cooperative agreements, testifying to State legislatures on program accomplishments, maintaining supplies, etc.

OSWER DIRECTIVE 9650.11

D. Capabilities Assessment

As one tool to assist Regional UST personnel in developing and approving State UST programs, OUST, with input from Regional and State UST staff, has developed the "State UST Program Implementation Activities" charts, or "capabilities matrices" (see Appendix G). These matrices were developed in response to Regional staff requests for additional guidance and tools for determining the capabilities of and approving State programs. The purpose of these matrices, their structure, and how they can be used is described below.

OSWER DIRECTIVE 9650.11

1. Purpose of the Capabilities Matrices.

The State program approval regulations establish environmental performance objectives in key program areas. To become approved, States must have requirements that meet these objectives in each area and they must demonstrate the ability to undertake "adequate enforcement of those requirements." These performance objectives are designed to give States considerable flexibility in developing a regulatory program that meets the specific needs of the State. Thus, unlike many other EPA programs, EPA is not requiring that States match the Federal technical regulations line-by-line.

Many Regions have expressed concern over how to determine whether a particular State has the capability to implement an effective program. Regions were particularly concerned about States that meet the performance objectives in the State program approval regulations, but might not have the resources to make their regulations effective. For example, a State may have corrective action regulations that meet all the criteria for the corrective action objective in the State program approval regulations, but not have sufficient staff to oversee corrective actions, review corrective action plans, or prepare information to guide responsible parties through the corrective action process. In effect, the State may only have a "paper" program.

The capabilities matrices are designed to: (1) assist the Regions in working with States to develop the capabilities necessary to implement the regulations, and (2) to assist the Regions in reviewing State applications to determine if the State has the necessary capabilities for an effective program. The matrices accomplish this by describing the various options a State might use in implementing requirements in each of the key program areas. A particular State is not required to use all or any of these specific options in implementing a program. Instead, these options illustrate the numerous approaches that can be taken to run an effective program.

The matrices do not establish a specific number to define what is an approvable level of State program staffing and resources. They are designed to assist in the development of State programs without establishing such a number. As the matrices demonstrate, program staffing and resources can only be determined based on what approach the State chooses to use. There is no "minimum" number for these implementation activities. It is the responsibility of the Regions to work with the States in assessing the acceptable level of program staffing and resources.

OSWER DIRECTIVE 9650.11

2. Structure of the Capabilities Matrices.

A matrix has been developed for each of the State program approval objectives including:

For each of these program areas, the matrix is divided into three or four categories of implementation activities. For example, the closure matrix is divided into the following categories: (1) informing owners and operators of the closure requirements, (2) validating proper closure, and (3) taking action against violators of the closure requirements. Under each of these categories a number of different approaches for achieving the objective for that category are listed. Thus, the "taking action against violators of closure requirements" category includes such activities as issuing expedited administrative orders, placing a lien on the property, and establishing training programs for fire and police departments to recognize illegal closure activities.

OSWER DIRECTIVE 9650.11

3. Use of the Capabilities Matrices.

As mentioned above, the capabilities matrices can be used in two important ways. First, they can be used as a planning tool at the beginning of the State program approval process. The information may be used by Regions to work with a State in developing a State program and a State program approval application. For example, if a particular State is weak in its capabilities to validate proper closure, the matrices can help identify realistic alternative methods for achieving this goal given the State's resource and staffing constraints (e.g., delegating inspections to local governments). This will, in turn, result in better State program approval applications and will ensure that the State programs have developed not only the necessary regulatory requirements, but the actual capabilities to implement those regulations.

Second, after receiving a State program approval application, Regional staff may use the matrices to evaluate whether the State has the necessary capabilities to run an effective UST program. The description of a State's capabilities will likely be included in the "Program Description" and "Demonstration of Adequate Enforcement Procedures" sections of the State application. Regional staff can use the matrices to determine whether a State has adequately developed policies, procedures, and capabilities to address the major program areas. Again, a State is not required to perform all or any specific activity in the matrices. However, States should be undertaking a sufficient number of these activities to make the regulations effective. The determination of what is a "sufficient" number is a Regional decision.

As an example of how the matrices might be applied, consider two States that each submit applications containing closure requirements that are identical to the Federal requirements (i.e., both States meet the closure objective). Using the closure matrix in conjunction with the review of the application will help determine that State A is conducting:

  1. Two types of activities to inform owners and operators of the requirements:
    • Employing mass mailings to the regulated community; and
    • Delivering presentations at oil industry and trade association meetings.
  2. Three types of activities to validate proper closure:
    • Inspectors oversee all closure activities;
    • Local agency staff monitor closure activities; and
    • Owners and operators must place a notice on their property deed describing the specific location of the abandoned tank, method of closure, and proof of closure certification.
  3. Three types of actions against violators of the closure requirements:
    • Issuing administrative notices of violation, specifying closure violations, and required compliance schedule;
    • Issuing administrative or judicial orders; and
    • Publishing newspaper and journal articles on violator and associated enforcement action.

State B is conducting:

  1. One type of activity to inform owners and operators of the requirements:
    • Employing mass mailings.

State B is not undertaking any activities to validate proper closure or taking action against violators of the closure requirements.

State A is actively ensuring that the closure requirements are well known among the regulated community, and that violators are detected and enforced against. State A would appear to have the necessary capabilities in the closure area to implement an approved program. State B, however, is not undertaking any activities to discover or take action against violators and therefore, may not have the necessary capabilities in the closure area to implement an approved program. This example demonstrates how the matrices may be used in assessing State applications.

Because of the numerous different approaches that can be taken to run an UST program, the capabilities matrices may not include all the possible activities a State could be undertaking. The matrices are not meant to limit the types of activities States can perform. As additional activities are identified by OUST, the Regions, and the States, the matrices will be updated. The matrices are viewed as a continuously evolving tool to assist the Regions and States in developing and improving State UST programs.

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