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APPENDIX C: State Request Letter Format OSWER Directive 9360.0-16a Guidance for Conducting Federal-Lead Underground Storage Tank Corrective Actions July 25, 1988

OSWER DIRECTIVE 9360.0-16A
Federal-lead UST corrective action will not be initiated unless specifically requested by the appropriate State via the State UST Coordinator. A letter requesting Federal-lead corrective action should be signed by the Director of the State UST agency designated by the Governor and addressed to the Regional OHM Coordinator, or other designated Regional management official.
Below is a recommended format for the State to follow in preparing an UST corrective action request letter. While use of this model format is not mandatory, the letter should address all of the topics presented in the model in order to demonstrate that the incident meets the Federal-lead UST response criteria (particularly that it poses a major public health or environmental emergency and that neither the State, nor the owner or operator can provide adequate response) and that all actions in the scope of work are consistent with SWDA. Because this letter will provide much of the source material to be used by the Region in preparing an action memorandum (see Appendix D), adherence to this format is strongly encouraged.

I. HEADING


DATE: (Month/Day/Year)
SUBJECT: Request for Federal-lead UST Corrective Action
(Site, City, State)
ACTION MEMORANDUM
FROM: (Director of Designated State UST Agency)
TO: (Regional OHM Coordinator)

II. BACKGROUND

The background section should contain information on the location of the site, the nature of the incident (including the history of the site, general character of the site, and issues relevant to petroleum management), quantity and types of petroleum substances present, State and local authorities' role, the cleanup time frame, and actions to date, including previous and current actions to abate the threat.

A. Location Description

  1. Describe the site's physical location.

    Give distances from nearest populations and points of reference, as appropriate. Also state the population size. For example, "A school is within 1/4 of a mile and there are 1,000 residence within a mile of the site; the area is mainly suburban residential with some industrial areas."

    Describe the areas adjacent to the incidents or site in terms of nearby vulnerable or sensitive populations, habitats, and natural resources. For example, "The site is adjacent to wetlands and a tributary to the river flows nearby. The area's primary drinking water aquifer underlies the site."

    Describe any areas protected by statute, such as parks, historic sites, and sensitive ecosystems. This may include areas such as the New Jersey Pinelands, wetlands areas, or wild and scenic rivers.

  2. Provide supporting documentation.

    Providing pictures, diagrams, maps, and /or sketches is encouraged. They may be included as attachments or incorporated into the text. This documentation may help to substantiate the threat at the site.

B. Site and Incident Characteristics

  1. Discuss the history of the incident or situation that poses the major public health or environmental emergency.

    Describe the type of incident that has occurred (e.g., a classic release) and why it occurred. For example, "A corroded storage tank failed during refilling." Be sure to list all of the site's key problem areas (e.g., tanks, associated people lines, free product on ground water, or contaminated soils).

    Describe the exact location of the incident at the site. For example, "The release occurred at a corroded tank in the south corner of the site." Include the time and date (if known) of the incident. State whether the release is new, just recently discovered, or a chronic problem that has deteriorated. Also describe when and how the incident was discovered; for example, "The town fire marshal received complaints from residents of strong gasoline fumes in their basements."

  2. Discuss the general character of the site; show that it meets the definition of "underground storage tank" (see Section 1.4 of this guidance).

    Describe the current use of the site (e.g., active facility, vacant lot, recreational area). Describe the previous nature and type of the facility, as well as the activities historically undertaken at the site; for example, a tank farm used for storing aviation fuels, or an oil refinery with numerous underground tanks and pipelines. State the site characteristics that qualify it as an "underground storage tank" site.

    Include any pertinent information on the site owners or operators, past and present. This information should reflect whether the current or previous owners or operators contributed to the condition on the site.

  3. Present all findings on the extent of the release to date.

    First, note all pathways of release (e.g., surface water, ground water, air emissions/vapors, soil). Then indicate whether the release is confined to the site or has migrated off the site. Where possible, present the results of any on-site or off-site monitoring. With respect to drinking water contamination, note the number of municipal or private wells contaminated or threatened.

  4. Discuss the relevant issues relating to current petroleum management practices.

    Describe any existing structures, measures, or conditions that would either mitigate or accelerate the release of any materials on site (e.g., an unstable dike, a temporary containment system, adverse weather conditions, site security, fencing, condition of containers and similar situations). State whether the release is widespread and/or is migrating rapidly.

    Indicate the extent to which the petroleum wastes can be treated or are amenable to alternatives to land disposal. State whether the site is to be stabilized or cleaned up, if known.

C. Quality and Types of Petroleum Substances Present

  1. List all petroleum substances known to be on site at the time of the approval request.

    Describe briefly the results of the sampling (e.g., "most affected residences exceed the lower explosive limit for gasoline vapors in their basements") and give estimates of quantities of the classes of petroleum substances if they are available (for example, "four inches of diesel fuel was found floating on the underlying ground water").

  2. Describe the sampling methodology.

    Briefly describe the sampling methodology as well as methods for maintaining consistency, reliability, and quality control. Mention who performed the data collection and the lab analysis (e.g., EPA, contractor, local health authorities).

D. State Role

Discuss the State request for Federal-lead UST response.

List and describe the reasons why the State cannot provide adequate response to mitigate the major public health or environmental emergency posed by this UST petroleum release. Be detailed; indicate whether the State cannot respond due to a lack of authority, expertise, or resources. Estimate the resources required for response and specify which resources the State lacks, and why. Discuss why a site-specific cooperative agreement under the LUST Trust Fund would be an inappropriate response mechanism for this site or incident.

E. Actions to Date

  1. Discuss any previous actions to abate the threat.

    Describe any Federal, State, local, owner or operator, or privately sponsored activities that have been performed. Give the dates, costs, and effectiveness of such actions. Actions to abate the threat may include issuance of an advisory from he locality advising residents not to drink their water, or the provision of bottled water.

  2. Discuss any current actions to abate the threat.

    Any Federal, State, local, owner or operator, or privately-sponsored activities that are currently being conducted should be described. This information should include estimated costs and completion dates of these activities.

III. MAJOR PUBLIC HEALTH OR ENVIRONMENTAL EMERGENCY

Strict criteria must be met to justify Federal response to a petroleum release from an underground storage tank. These criteria require that neither the State nor the owner or operator be able to provide adequate response. In addition, the release must pose a major public health or environmental emergency, as indicated by:
  • An immediate and substantial threat of direct human, animal, or food chain exposure to petroleum; or
  • An immediate threat of fire and/or explosion; or
  • An immediate and substantial threat to public drinking water supplies; or
  • an immediate threat to human health or substantial amounts of property, or an immediate and substantial threat to natural resources.

The State should ensure that their request letter discusses how the releases meets these criteria. Sections A and B below provide some specific examples of the types of material to include that demonstrate a major public health or environmental emergency.

A. Threats to Public Health and Welfare

Describe the threats to public health and welfare.

List all of the threats, starting with the most serious, that adversely affect human health or welfare (e.g,., drinking water contamination, fire/explosion). Identify any human exposure that already has occurred, the kind of exposure (e.g., inhalation, ingestion, dermal contact) and the exposure pathway (e.g., water supply, indoor air pollution). Describe any reports of illness, injury, or death that appear to be linked to the exposure. Be as specific as possible about the number of individuals exposed, the proximity of sensitive populations (e.g., hospitals, schools), the geographic area affected, and whether exposure was acute or chronic. Also, describe any anticipated exposure and whether it is imminent, especially with regard to public drinking water supplies.

Compare the amounts of concentrations of substances shown to background levels or health standards as appropriate. If a health advisory is given, or if an exposure assessment has been performed, include it as an attachment to the letter, and reference it in the discussion;

B. Threats to the Environment

Describe the threats to the environment.

List all the threats, starting with the most serious, that adversely affect the environment (e.g., damage to sensitive ecosystem, animals, ground water). Identify any natural resource or environmental damage that already has occurred and the extent or exposure (e.g., acute or chronic). Indicate whether there have been reports of deaths of flora or fauna (e.g., fish kills). If so, state how much environmental damage has occurred (e.g., 20,000 acres of wetland contaminated, one million fish killed).

discuss all actual and potential impacts on the affected area. Describe any anticipated exposure and whether is it imminent. Indicate whether the release threatens endangered species, critical wetlands, or other resources protected under law.

IV. ENFORCEMENT

The purpose of this section is to meet the statutory requirement that priority be given to cases where the owner or operator is unable or unwilling to undertake necessary action. This information should be referenced here as "see attachment" and placed on a separate page entitled "Enforcement Sensitive." This section includes information on the enforcement strategy (summarized), the status of notice letters and /or negotiations, the available enforcement authority, owners or operators, previous enforcement actions, the probability of recovering costs, and the recommended enforcement strategy. This section also should contain information on the potential for a non-Federal response. This information is required before Federal corrective action is started, unless the release meets the conditions in Section 4.1.1.

A. Enforcement Strategy

  1. Briefly summarize the enforcement strategy.

    Summarize the enforcement strategy for notifying, negotiating with, and litigating against owners or operators. Indicate whether the State or Federal enforcement attorneys are actively pursuing informal negotiations, are actively pursuing litigation, or have decided to postpone or not pursue litigation. For example, "no enforcement actions currently underway," or "the owner or operator has agreed to conduct a cleanup." Describe what actions are planned (e.g., negotiations or administrative orders).

  2. Briefly summarize the enforcement actions.

    Indicate if litigation is proceeding or is contemplated. Cite under what statutory authority the action will be or is being taken 9e.g., SWDA Section 9003 (h).

B. Status of Enforcement Actions

  1. Owners or operators

    Note the names of owners or operators. Indicate whether the owner or operator has taken action; if so, describe the action and explain why it was inadequate.

    Describe any efforts being undertaken to obtain additional owner/operator response. Describe the attempts that have been made to locate owners or operators (e.g., oral inquiries both on and off site). Include whether the owner or operator has been notified (e.g., contacted in person or by telephone, written follow-up).

    Give the dates that notice letters were sent and a summary of the responses of the recipients (e.g., the owner agreed to clean up the site, or denied involvement at the site). If negotiations are underway, describe the activities under discussion.

  2. Provide information on the status of notice letters and/or negotiations.

    Describe any previous State or Federal enforcement actions taken to date. These actions may include notice letters or demand letters.

  3. State the probability of recovering costs.

    Estimate the solvency of the owner or operator. Evaluate the ability to obtain the necessary actions in a timely fashion through litigation. This should be included if it explains why actions are being requested of EPA when owners and operators are financially able to undertake these actions.

V. EXPECTED CHANGE IN THE SITUATION SHOULD NO ACTION BE TAKEN OR SHOULD ACTION BE DELAYED

Describe any expected changes in the situation should no action be taken or should action be delayed. Include a description of the worst case that could possibly occur should no action be taken. These changes may include:

  • Spread of contamination. For example, the ground water contaminant plume may spread through a larger area.
  • Change in nature of contamination. For example. gasoline vapors may seep into structures, producing the added threat of fire/explosion.
  • Increased threat to human health and the environment if action is delayed or denied. For example, the contaminant plume may soon reach drinking water wells.
  • Impact on future response actions if action is delayed or denied. for example, the tanks will deteriorate further, leaking additional petroleum into the ground..

VI. IMPORTANT POLICY ISSUES (only as necessary and applicable)

Include a separate section on important policy issues that are significant to this request. These issues may include;

  • Cost sharing (State cost sharing is applicable after regulations promulgated under SWDA Section 9003 (c) become effective).
  • The division of responsibilities among Federal and/or State agencies.
  • Owners and operators
  • Off-site disposal availability.
  • Special coordination and similar issues.
  • concurrent CERCLA action or the presence of hazardous materials on site.
  • Contiguous sites (if multiple locations are recommended for consideration as one site, give justification for such consideration).

Issues should be fully explained, including a discussion on the efforts being made to resolve the issue and /or decisions that must be made before a resolution is reached.

VII. STATE REQUEST FOR EPA ACTION

The State should specify the corrective actions it is requesting that EPA perform. These might include.

  • Recovery of free material;
  • Temporary water supply; or
  • Temporary relocation of residents.

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