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CHAPTER II. OVERVIEW AND APPROACH OSWER Directive 9650.12 SUGGESTED PROCEDURES FOR REVIEW OF STATE UST APPLICATIONS May 1992

II. OVERVIEW AND APPROACH

EPA has developed a State program approval process that will ensure that existing and future State programs are approved to operate "in lieu of" the Federal program with as little disruption and controversy as possible. As stated in the final State program approval rule published in the Federal Register on September 23, 1988, EPA's goal is to develop a flexible State program approval process that will allow States to explore innovative approaches in program development and implementation, while providing the required level of stringency. A process that gives major responsibility for UST program implementation to the individual States makes sense because the most effective response to UST problems is provided through State or local programs which are closer to the UST facilities than the Federal government. However, concepts, guidance, and training for program implementation are developed by Headquarters and the Regions. The Regions then use these tools to assist individual States in developing approvable UST programs and to ensure that State programs fulfill the statutory requirements.

In the internal EPA process for State application approval, Headquarters is responsible for establishing and maintaining national standards for program consistency and quality. The Regions, who are most knowledgeable about the quality and uniqueness of individual State programs, are responsible for managing the review of applications, and for making the tentative and final decisions to approve State programs. Such decision-making authority was delegated to the Regional Administrators on March 6, 1986, with OUST retaining a limited consultation role. This document suggests some procedures the Regions might use in carrying out this important activity.

The UST State program approval process described here is designed to streamline the formal decision-making process so that States meeting the standard established by EPA will be approved in the shortest possible period of time. The approval process is also designed to maximize interaction between the Region and State. This interactive process should result in faster removal of obstacles to approval because the Region is able to discuss approval issues and public comments with the State early in the process. The process also allows the State Agency Director an opportunity to effectively defend the program, as necessary, before the Regional Administrator.

OSWER DIRECTIVE 9650.12

The following is a list of the steps that EPA is legally obligated to undertake with regard to the review and approval of State UST programs upon State submittal of an application to the Region:

  1. Regional Review Team (RRT) Determines if Application is Complete and Reviews Application
  2. Regional Administrator Makes Decision
  3. Region publishes Federal Register Notice of Tentative Approval
  4. Public Comment Period and Public Hearing (if held) Occur
  5. Region Publishes Final Program Approval Notice

The State Program Approval Handbook provides guidance to States on how to prepare applications for program approval. This manual will focus on how the Regions might accomplish the steps listed above.

OSWER DIRECTIVE 9650.12

Pre-Application Phase. One of the most important aspects of the State Program Approval process occurs long before the State submits its final State Program Approval application to the Region for review. This pre-application phase is the time during which the State UST program takes shape through active and frequent interaction among the State, the Region, including the Regional UST Attorney, and EPA Headquarters. While this document focuses mainly on ways of approaching completed State Program Approval applications, the pre-application phase is crucial to ensuring that States develop the necessary authorities, capabilities, and procedures required to operate the State program in lieu of the Federal program.

Regions have the lead responsibility for State Program Approval. They should work closely with their States, keeping involvement close and congenial and making comments throughout the process, not just at the end. One important Regional program staff duty is to promote and facilitate the concept of State Program Approval to States. Points to stress include the greater credibility that goes along with program approval, the avoidance of dual Federal and State regulation of USTs, and program implementation closest to the source of the problem, which should increase the effectiveness of the program. The Region should work with the State early to build a strong program that will be in a good position to gain approval, providing technical assistance when necessary and responding quickly, thoroughly, and accurately to State questions or requests. The Regional program staff should review the State Program Approval application as it is being developed in order to facilitate the review of it by the Regional UST Attorneys. This will help ensure that the program is approvable even before an official application is submitted. Waiting for the State to provide a formal submittal can result in unnecessary delays in the review process.

There are two discrete phases of the State Program Approval application review process: the pre-application review and the actual (180-day) review. The State legislative and regulatory work that must precede submission of an acceptable State Program Approval application requires a very long time frame, especially in States where legislative sessions may occur as infrequently as every other year. Not establishing the necessary legal authorities and program structures can greatly delay the entire State Program Approval process. This phase of the process is also an excellent opportunity for States and EPA to establish the close working relationship necessary to ensure successful approval and subsequent development and improvement of State programs.

Regional staff who have worked on State Program Approval applications to date indicate that one of the most important actions a State can take early in this process is to submit complete copies of its statutes and regulations, even if no other application components are near completion. Because revising statutes and regulations can be one of the most time-consuming aspects of compiling a State Program Approval application, it is important to complete and submit them for review first, so that if changes are needed, they can be made while other components of the application are being assembled. States that wait until they have a complete application before submitting statutes and regulations for review are taking a great risk; review of those materials may reveal deficiencies that require time-consuming legislative changes that will significantly delay the approval of the State program. There is nothing wrong with submitting an application for review piece-by-piece, especially if the first pieces are the relevant statutes and regulations. An analysis of the State statutes and regulations by a State attorney should be submitted to the Region along with the statutes and regulations, to avoid having EPA do the initial comparison to the State Program Approval requirements. Appendix A contains a "Statutory Checklist" that can be used in reviewing early drafts of State statutes to ensure that they provide sufficient authority to develop regulations that will provide for a "no less stringent" State UST program.

One tool that could be of great potential value to Regions in the pre-application phase is Exhibit 1, a "Diagnostic Checklist for State Program Approval," developed through interviews with Regional staff who have worked on State Program Approval applications with their States. The checklist lists each of the required components of a State Program Approval application, the most commonly encountered barriers to producing them, and several assistance options that Regions can provide to overcome those barriers. By using this checklist, Regions can identify where impediments are encountered by States and determine ways to most efficiently correct them. This should result in a more streamlined application process, thus expediting program approval.


OSWER Directive 9650.12

Exhibit 1. Diagnostic Checklist for State Program Approval

The following checklist may be used by Regions assisting their States in the development of State program approval applications. Regional staff can ask State program officials the questions listed below relating to the various components of the application. The boxes below each question identify specific barriers that may prevent the State from obtaining sufficient authorities or developing complete application components. The checklists also outline suggested assistance measures to overcome the identified barriers.

For example, consider the first question, "Does the State have the statutory authority to develop and implement a no less stringent UST program?" The first barrier identified is lack of authority. If the State or Region considers State statutory authority to be inadequate, they would study the assistance measures to determine which would enable the State to obtain sufficient authority. The second barrier identified is lack of interaction with the State Attorney General's Office. If this is also a barrier for the State, the State and Region would again consult the assistance measures to find solutions. Only when all barriers to a given State Program Approval component are determined not to apply to a State should the analysis proceed to the next question on the checklist. The barriers identified in remaining sections of the checklist should be approached in a similar fashion.

This checklist should be viewed as a starting point from which Regions can begin to assess and improve the State program approval status of their States. Even in cases where a particular barrier does not pose a problem for the State, the assistance measures should be reviewed, because they could contribute to improvements in the State program.

1) Does the State have the statutory authority to develop and implement a no less stringent UST program?

BARRIER: Lack of authority
ASSISTANCE:

square.gif Review existing State authority and provide comments on where authority is lacking.
square.gif Review and comment on draft language for statutory amendments.
square.gif Offer to speak to legislators, testify at hearings, or otherwise support amendments to grant or enhance necessary State authorities

BARRIER: Lack of interaction with State Attorney General's Office
ASSISTANCE:

square.gif Offer to meet with Attorney General to encourage greater involvement in UST program.
square.gif Bring Attorney General's Office into the team structure at the beginning of the process.

2) Does the State have regulations that meet the "no less stringent" criteria?

BARRIER: Regulations do not meet "no less stringent" criteria
ASSISTANCE:

square.gif Review existing regulations using SPA objectives and provide comments on how deficient items could be amended to meet no less stringent requirements.
square.gif Review and comment on draft amendments.

BARRIER: Inadequate State resources to develop UST regulations
ASSISTANCE:

square.gif Reaffirm that States may adopt the Federal regulations by reference, which requires considerably less time and money than developing their own.
square.gif Inject Federal resources into State programs, conditioned on completion of an approvable final SPA application by a specified date.
square.gif Encourage and/or provide greater contractor assistance.

BARRIER: Lack of interaction with State Attorney General's Office
ASSISTANCE:

square.gif Offer to meet with Attorney General to encourage greater involvement in UST program.
square.gif Give a grant to Attorney General's Office to assure State attorney time.
square.gif Encourage AG's Office to designate a particular staff attorney to work extensively on UST program issues
square.gif Bring AG's Office into the team structure at the beginning of the process.

BARRIER:No financial responsibility regulations
ASSISTANCE:

square.gif Emphasize that States do not need to have State funds to meet the financial responsibility objective (some States may not develop regulations because they believe they must have a fund in place).
square.gif Help States develop financial responsibility regulations and State funds (if desired), by improving understanding of financial responsibility issues, sharing information from States that have approved regulations and/or funds, and providing one-on-one or contractor assistance.

3) Has the State Attorney General developed his/her statement for inclusion in the final State Program Approval application?

BARRIER: Inadequate State Attorney General preparation and submittal
ASSISTANCE:

square.gif Offer to meet with Attorney General to discuss the purpose of AG Statement and stress its importance.
square.gif Review draft and provide detailed comments on deficient items.
square.gif Suggest that State complete a comparison of its regulations to the SPA objectives, in order to facilitate Attorney General's review and "no less stringent" determination.
square.gif Bring AG's Office into the team structure at the beginning of the process.

4) Does the State have adequate enforcement procedures to implement an effective UST program?

BARRIER: No procedures in place
ASSISTANCE:

square.gif Suggest low-cost methods or approaches to implementation and enforcement activities (i.e, those included in the capabilities matrices).
square.gif Assist State in developing written enforcement procedures or review draft description of enforcement procedures and provide detailed comments.

BARRIER: Inadequate State Attorney General preparation and submittal
ASSISTANCE:

square.gif Offer to meet with Attorney General to encourage greater involvement in the UST program
square.gif Bring AG's Office into the team structure at the beginning of the process.

BARRIER: Lack of interaction with Regional UST Attorney
ASSISTANCE:

square.gif Offer to meet with Regional UST Attorney to encourage greater involvement in the UST program.
square.gif Bring Regional UST Attorney into the team structure at the beginning of the process.

BARRIER: Inadequate State resources to develop procedures
ASSISTANCE:

square.gif Testify to legislature on the importance of funding the UST program; elevate the priority of the program.
square.gif Inject Federal resources into State programs, conditioned on completion of an approvable final SPA application by a specified date.
square.gif Meet with Attorney General to encourage greater and earlier involvement in the UST program.

BARRIER: Inadequate Regional program review
ASSISTANCE:

square.gif RPM should define priorities for Regional program staff.

BARRIER: Lack of enforcement authority
ASSISTANCE:

square.gif Review existing procedures and provide comments on where authority is lacking.
square.gif Suggest statutory amendments or review and comment on draft statutory amendments.

BARRIER: Disagreement among team members on standards for "adequate" enforcement procedures
ASSISTANCE:

square.gif Refer to capabilities matrices for examples of acceptable enforcement procedures.
square.gif Offer to meet with Regional UST Attorney to work out substantive disagreements regarding what is "adequate."

5) Have the State and Region negotiated a Memorandum of Agreement?

BARRIER: Lack of agreement between agencies that share responsibilities
ASSISTANCE:

square.gif Offer to meet with all responsible agencies so agreement can be reached.
square.gif Review draft Memorandum of Agreement and provide detailed comments.

BARRIER: Inadequate State preparation and submittal
ASSISTANCE:

square.gif Refer to boilerplate MOA in SPA Handbook as a model that can be largely copied now and adapted to meet particular State conditions later.
square.gif Inject Federal resources into State programs, conditioned on completion of an approvable final SPA application by a specified date.

6) Has the State produced a program description for inclusion in the final State Program Approval application?

BARRIER: Inadequate State preparation and Submittal
ASSISTANCE:

square.gif Provide sample program descriptions completed by other States to be used as models. Refer States to relevant section in SPA Handbook.
square.gif Review a draft program description and provide detailed comments and suggestions for completion.
square.gif Encourage and/or provide greater contractor assistance.

OSWER Directive 9650.12

The following are two examples of cases where pre-application review has been utilized effectively. The first case involved a State regulation requiring owner/operators to investigate suspected releases when "there is evidence of a hazardous substance or resulting vapors in the soil, in surface water, or in any underground structure or well in the vicinity of the facility." The Federal requirement states that such an investigation should occur "when required by the implementing agency to determine the source of a release having an impact in the surrounding area." While the State regulation was determined to be sufficiently stringent as written, the Regional UST attorney suggested that the regulation make explicit the requirement "to investigate at the request of the agency." This example illustrates how the Region might use the pre-application review process to suggest options for the State to strengthen or clarify its requirements even if the State Program Approval objective is met.

The second case involved a State regulation requiring that temporarily out-of-service UST systems maintain cathodic protection systems, while no other specific requirements were explicitly imposed upon them. "Temporarily out-of-service," furthermore, was not defined. Although arguably such tanks might still have met the definition of either new or existing USTs, and been subject to the other requirements generally applicable to those classes of USTs, this interpretation seemed a bit strained, because one requirement (cathodic protection) was expressly applicable to temporarily out-of-service USTs. Thus, it seemed as though the State intended to require cathodic protection only on these UST systems. In review, therefore, the State regulation was found to be insufficiently stringent, as it failed to specify the other requirements that the tank systems in question were required to meet. This is a case where reviewing components of a State application prior to submittal for approval led to the discovery of a deficiency in a State program in sufficient time to correct it without delaying approval.

Another tool that can be used during the pre-application phase to ensure that all required components of the State application are developed and reviewed in the proper sequence and by the correct personnel can be seen in Exhibit 2, the "State Program Approval Pre-Application Checklist." Use of the checklist can help States move toward completion of an approvable State Program Approval application in an efficient manner and will ensure that there will be no surprises when a complete application is submitted for review.


OSWER Directive 9650.12

Exhibit 2. State Program Approval Pre-Application Checklist

STATE ACTIVITIES REGIONAL ACTIVITIES

____ 1)

State drafts UST statutes; State Attorney General conducts analysis of how they meet the requirements

____ Regional UST program reviews draft UST statutes

____ Regional UST Attorney reviews draft UST statutes

____ a. State revises UST statutes

____ Regional UST program reviews revised UST statutes

____ Regional UST Attorney reviews revised UST statutes

____ 2)

State drafts UST regulations; State Attorney General conducts analysis of how they meet the requirements

____ Regional UST program reviews draft UST regulations

____ Regional UST Attorney reviews draft UST regulations

____ a. State revises UST regulations

____ Regional UST program reviews revised UST regulations

____ Regional UST Attorney reviews revised UST regulations

____ 3)

State develops funding sources for UST program

____ 4)

State develops enforcement procedures for UST program

____ Regional UST program reviews procedures

____ Regional UST Attorney reviews procedures

____ a. Procedures acceptable to State Attorney General's Office

____ 5)

State drafts program description

____ Regional UST program conducts capability assessment

____ 6)

Attorney General drafts certification that program requirements are "no less "stringent"

____ Regional UST program reviews certification to verify its accuracy

____ Regional UST Attorney reviews certification to verify its accuracy

____ 7)

Governor drafts transmittal letter

____ Regional UST program reviews letter for accuracy and completeness

____ 8)

Draft application sent to Region for review

[ Directive 9650.12 Table of Contents ][ Chapter III. ]

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