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Transition Task List OSWER Directive 9610.5-1 January 30, 1989

Directive Organization

TRANSMITTAL MEMO

Part 1:

LIST OF SPECIFIED TASKS (Subparts A - G)
APPENDIX 1: List of Specified and Optional Tasks (Subparts A-G)
COMPLIANCE MONITORING AND ENFORCEMENT TASKS
Part 2:
LIST OF SPECIFIED TASKS (Subpart H)
APPENDIX 2: List of Specified and Optional Tasks (Subpart H)

NOTE: The document you are viewing is an HTML facsimile of OSWER Directive 9610.5-1 that has been reformatted for the Internet. This version maintains as much as possible of the original document integrity. Only a couple of non-essential elements are missing, namely facsimiles of the OSWER Directive cover page, and EPA Form 1315-17 (the Directive Initiation Request). Also, the original typed document had the directive number as a header on each page--in this version the directive number appears at the beginning of each new section.


OSWER DIRECTIVE 9610.5-1

 
                                 JAN 30, 1989
                           
                                 OFFICE OF
                                 SOLID WASTE AND EMERGENCY
                                 RESPONSE
 
                  MEMORANDUM
 
SUBJECT:   OSWER Directive 9610.5-1: Final Transition Tasks List
 
FROM:      Ron Brand, Director
           Office of Underground Storage Tanks
 
TO:        Waste Management Division Directors, Regions I-III, V-IX
           Water Management Division Directors, Regions IV-X
 
The enclosed Transition Tasks List identifies the universe of
tasks specified in the final underground storage tank regulations (40
CFR Part 280) that are a responsibility of the implementing agency.
This list is designed to aid the Regions in negotiating agreements
with the States to conduct these tasks. EPA's goal is to have the
States conduct most of these tasks during the transition period
before State program approval. All tasks that States agree to conduct
as the implementing agency or on behalf of EPA must be included in
formal transition agreements. This includes both tasks identified in
the following pages as specified and optional.
 
This document is an updated and final version of the September 29,
1988, Draft Transition Tasks List (Draft OSWER Directive 9610.5-1).
Minor changes were made to Part 1 of the document (technical
standards and corrective action requirements). Part 2 was
substantially revised and reordered to reflect the provisions of the
final financial responsibility rule (dated October 26, 1988).
 
We hope this list facilitates the development of transition
agreements with the States. These agreements will play a seminal role
in implementation of the UST regulations during the transition
period. For additional information or clarification, please contact
Josh Baylson (FTS 475-9725), of my staff.
 
Attachment
 
cc:  UST Regional Program Managers
     UST Program Regional Attorneys
     Kirsten Engel, OGC

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OSWER DIRECTIVE 9610.5-1

TRANSITION TASKS LIST

The Transition Tasks List supplements the "FY 1989 - FY 1990 Transition Strategy for the UST Program" (OSWER Directive 9610.5) and revises the Draft Transition Tasks List (Draft OSWER Directive 9610.5-1). The tasks list identifies the universe of tasks specified in the final underground storage tank (UST) regulations that are a responsibility of the implementing agency. since the UST regulations regulate owners and operators (o/o) of UST systems, and not implementing agencies (e.g., States), there are few tasks for the implementing agency specified in the regulations.

Part 1 identifies tasks associated with Subparts A through G of the final rule (dated September 23, 1988). Part 2 identifies tasks associated with the final financial responsibility (FR), subpart H, requirements (dated October 26, 1988 and corrections dated December 21, 1988). The appendices provide more comprehensive listings of tasks, including optional tasks and options for carrying out the specified tasks.

Transition Tasks List - Part I

Technical Standards and Corrective Action Requirements
40 CFR Part 280: Subparts A - G

The definition of implementing agency in the UST technical standards and corrective action requirements has been written to allow the State to be the implementing agency during the transition period for, those tasks that they agree to perform. Thus, the concept of implementing agency is divisible, with the State considered the implementing agency for those tasks they agree to conduct, and EPA remaining the implementing agency for the balance of specified tasks.

Subparts A through G of the UST technical standards and corrective action requirements specify only 9 tasks as responsibilities of the implementing agency. EPA's goal is to have States assume and conduct all 9 of these tasks during the transition period. States with UST program grants and LUST Trust Fund cooperative agreements already are performing many of these tasks.


OSWER DIRECTIVE 9610.5-1

LIST OF SPECIFIED TASKS (Subparts A - G)

  1. Receive notifications [@280,221]_and certifications of installation [@280.20(e)] of new UST systems.

    All States will continue to receive notifications as required in the final regulations [@280.22(a)]. This is a regulatory requirement and need not be included in transition agreements.

  2. Answer calls reporting releases, including suspected releases [@280.50], spills and overfills [@280.53], and confirmed releases [@280.52 & @280.61].
  3. Receive reports of corrective actions taken or planned, including initial abatement measures [@280.62(b)].
  4. Receive initial site characterization reports [@280.63].
  5. Receive free product removal reports and determine the practicable extent for free product removal [@280.64].
  6. Under certain conditions, request and receive reports of investigations of the magnitude and extent of soil and around-water contamination [@280.65].
  7. Receive, review, and evaluate required and voluntarily submitted corrective action plans and reports of the results of implementing the plans [@280.66]. For each corrective action plan required, provide notice to the public of the release and the corrective action plan [@280.67], Oversee implementation of corrective action plans.

    Tasks 2 - 7 refer to the corrective action requirements. and will occur only after a release is suspected or confirmed. Many States are currently conducting these, or similar, activities as part of their LUST Trust Fund cooperative agreements. States should be asked to continue to conduct these activities related to releases of petroleum from UST systems as part of their Trust Fund cooperative agreement work plans. In addition, States should be asked to conduct tasks 2 - 7 related to releases of hazardous substances from UST systems as part of their program grant work plans.

  8. Receive notifications prior to permanent closure or change-in-service [@280.71].
  9. Receive records of excavation zone assessments at closure if the records cannot be kept at the site or an alternate site for 3 years [@280.74].

States now are receiving new tank notifications (Task 1) and likely will want to receive notices of intent to close or change-in-service (Task 8). Task 9 will occur only if the records cannot be kept at the site or an alternate site. States should be asked to perform tasks 8 and 9 as part of their program grant work plans.

In addition, both States and Regions will need to be prepared to respond to Freedom of Information Act (FOIA) requests and to follow regulatory requirements for public participation in the program.

In summary, most of the 9 tasks are based on receiving reports or notices: tasks 1 and 8 are related to management of States notification data, an activity most States currently are conducting; tasks 2 through 7 relate to the corrective action regulations and will occur only when an owner or operator reports a suspected or confirmed release; and task 9 will occur only in a limited number of cases.

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OSWER DIRECTIVE 9610.5-1

APPENDIX 1:
LIST OF SPECIFIED AND OPTIONAL TASKS (SUBPARTS A-G)

The following is a more complete listing of tasks for the implementing agency. The tasks are identified as either:

S = SPECIFIED: explicitly described in the UST regulations as a responsibility of the implementing agency or implied to be a responsibility of the implementing agency based on a requirement placed on owners and operators; or

O = OPTIONAL: carried out at the discretion of the implementing agency.

The specified tasks are a repetition of the previous list. Guidance for implementation of the specified tasks is indicated below each task as options for State or Regional implementation during the transition period. The tasks identified as optional indicate program areas for the Regions to work with States to enhance capability.

***


SUBPART A - PROGRAM SCOPE AND INTERIM PROHIBITION

O

Pursue violations of the Interim Prohibition for deferred UST systems [@280.11].

 
SUBPART B - UST SYSTEMS: DESIGN, CONSTRUCTION INSTALLATION NOTIFICATION

O

Determine if proposed alternatives for tank design, construction, and corrosion protection are no less protective [@280.20(a)(5)].

O

Determine if proposed alternatives for piping design, construction, and corrosion protection are no less protective [@280.20(b)(4)].

O

Determine if proposed alternatives for spill and overfill prevention equipment are no less protective [@280.20(c)(2)(i)].

O

Certify or license installers [@280.20(e)(2)].

O

Inspect and approve installations [@280.20(e)(4)].

O

Determine if proposed alternative installation methods are no less protective [@280.20(e)(6)].

S

Determine if proposed alternative methods for assessing tanks for corrosion holes are no less protective [@280-21(b)(2)(v)]. Receive notifications [@280.22] and certifications of installation [@280.20(e)] of new UST systems.

[All States will continue to receive notifications as required in the final regulations [@280.22(a)]. This is a regulatory requirement and need not be included in formal transition agreements.]

O

Follow-up on notification forms to enhance compliance, e.g., forms that are incomplete, contain information indicative of a violation, or have not been submitted by the o/o [@280.22].

O

Update notification data base.

 
SUBPART C - GENERAL OPERATING REQUIREMENTS

O

Establish alternative time frame for testing of cathodic protection systems [@280.31(b)(1)].

O

Determine that alternative post-repair test method is no less protective [@280.33(d)].

 
SUBPART D - RELEASE DETECTION

O

Approve use of proposed alternative release detection methods for hazardous substance UST systems [@280.42(b)(5)(iii)].

O

Approve use of proposed alternative release detection methods (petroleum tanks) and set conditions for their use [@280.43(h)(ii)].

 
SUBPART E - RELEASE REPORTING, INVESTIGATION AND CONFIRMATION
 

Some States currently are operating clean-up programs that include reporting requirements that differ from the federal requirements. it is not EPA's intent to place an unreasonable burden on owners and operators in those States. Therefore, if State requirements are entirely duplicative of the federal requirements, the submission of a separate federal report is not necessary if the State has agreed to conduct the related task(s) as part of a transition agreement. However, before State program approval, any federally required reports that are not duplicated by State reporting requirements must be submitted by owners and operators to the implementing agency.

Regions should ask States to receive reports required under Subparts E and F for petroleum releases as part of their LUST Trust Fund cooperative agreement work plans and for hazardous substance releases as part of their program grant work plans.

S

Answer calls reporting releases, including suspected releases [@280.50], spills and overfills [@280.53], and confirmed releases [@280.52 & @280.61].

 

Option 1: state agrees to answer calls as part of Trust Fund cooperative agreement and/or program grant work plans. Region refers calls it receives to the State.

 

Option 2: Region receives and maintains a log of calls. Region will continue to work with the State to conduct this task.

O

Require o/o to determine if the UST system is the source of off-site impacts [@280.51].

O

Establish alternative time frame for o/o to investigate and confirm suspected releases [@280.52].

O

Establish alternative time frame for o/o to report suspected releases, spills and overfills, and confirmed releases [@280-53(a)].

O

Establish alternative amount for petroleum spills and overfills that o/o must contain and immediately clean up [@280.53(b)].

 
SUBPART F - RELEASE RESPONSE AND CORRECTIVE ACTION

O

Follow up on reports of confirmed releases, e.g., site visits.

O

Establish alternative period of time after a release is confirmed within which o/o must perform initial response actions [@280.61]

S

Receive reports of corrective actions taken or planned, including initial abatement measures [@280.62(b)].

 

Option 1: State agrees to receive reports as part of Trust Fund cooperative agreement and/or program grant work plans.

 

Option 2: Region receives reports and keeps them until the State agrees to conduct this task. Owners and operators may proceed with corrective actions without a response from the implementing agency. RP-lead corrective actions occur with limited direct supervision from the Region or the State. Region will continue to work with the State to conduct this task.

O

Follow up on reports of corrective actions taken or planned, e.g., site visits.

S

Receive initial site characterization reports [@280.63].

 

Option 1: State agrees to receive reports as part of Trust Fund cooperative agreement and/or program grant work plans.

 

Option 2: Region receives reports and keeps them until the State agrees to conduct this task. RP-lead corrective actions occur with limited direct.supervision from the Region or the state. Region will continue to work with the State to conduct this task.

O

Follow up on initial site characterization reports.

S

Receive free product removal reports and determine the practicable extent for free product removal [@280.64].

 

Option 1: State agrees to receive reports as part of Trust Fund cooperative agreement and/or program grant work plans.

 

Option 2: Region receives reports and keeps them until the State agrees to conduct this task. RP-lead corrective actions occur with limited direct supervision from the Region or the State. Region will continue to work with the State to conduct this task.

O

Follow up on free product removal reports.

S

Under certain conditions, request and receive reports of investigations of the magnitude and extent of soil and ground-water contamination [@280.65].

 

Option 1: State agrees to request and receive reports as part of Trust Fund cooperative agreement and/or program grant work plans.

 

Option 2: Region requests and receives reports and keeps them until the State agrees to conduct this task. RP-lead corrective actions occur with limited direct supervision from the Region or the State. Region will continue to work with the State to conduct this task.

O

Follow up on reports of investigation of soil and groundwater contamination.

S

Receive, review, and evaluate required and voluntarily submitted corrective action plans (CAPs) and reports of the results of implementing the plans [@280.66]. For each corrective action plan required, provide notice to the public of the release and the corrective action plan [@280.67]. Oversee implementation of corrective action plans.

 

Option 1: State agrees to receive, review, evaluate, and provide notice of CAPs as part of Trust Fund cooperative agreement and/or program grant work plans.

 

Option 2: Region receives, reviews, evaluates, and provides public notice of CAPs until the State agrees to conduct this task. RP-lead corrective actions occur with limited direct supervision from the Region or the State. Region will continue to work with the State to conduct this task.

 
SUBPART G - OUT-OF-SERVICE UST SYSTEMS AND CLOSURE

O

Grant extensions of the 12-month temporary closure period [@280.70(c)].

S

Receive notifications prior to permanent closure or change-in-service [@280.71].

 

Option 1: State agrees to receive reports as part of program grant work plan.

 

Option 2: Region receives reports and keeps them until the State agrees to conduct this task. Region will continue to work with the state to conduct this task.

O

Review excavation zone assessments.

O

Direct o/o of UST systems closed before December 22, 1988, to assess the excavation zone and properly close the UST system [@280.73].

S

Receive records of excavation zone assessments if the records cannot be kept at the site or an alternate site for 3 years [@280.74].

 

Option 1: State agrees to receive records as part of program grant work plan.

 

Option 2: Region receives records and keeps them until the State agrees to conduct this task. Region will continue to work with the State to conduct this task.

Reports of releases discovered at closure trigger the tasks associated with the corrective action regulations (Subpart F).

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OSWER DIRECTIVE 9610.5-1

COMPLIANCE MONITORING AND ENFORCEMENT TASKS

***

In addition, both States and Regions will need to be prepared to respond to Freedom of Information Act (FOIA) requests and to follow regulatory requirements for public participation in the program.


OSWER DIRECTIVE 9610.5-1

Transition Tasks List - Part 2

Financial Responsibility Requirements
40 CFR Part 280: Subpart H

The definition of implementing agency in the financial responsibility (FR) rule differs from that in Subparts A-G. Under the FR rule, the State formally cannot be the implementing agency during the transition period, although it way act on behalf of EPA. The State may, for example, receive reports and make recommendations on appropriate actions,, but EPA retains decision-making authority. Thus, some FR tasks may be included in transition agreements as State responsibilities, others may not.

Subpart H of the final UST technical standards and corrective action requirements (excluding the suspension of enforcement provisions) specifies 10 tasks as responsibilities of the implementing agency. Subpart H phases in the financial responsibility requirements for owners and operators over 21 months. As the requirements become effective during the transition period, EPA's goal is to have the States conduct 5 of these 10 tasks as part of State program grant work plans.


OSWER DIRECTIVE 9610.5-1

LIST OF SPECIFIED TASKS (Subpart H)

  1. Receive State Attorney General's Certification that guarantees and/or surety bonds are legally valid and enforceable obligations in that State [@280.94 (b).
  2. Receive notices that owners or operators no longer meet the financial test of self insurance [280.95(g)].
  3. Receive description, evaluate, determine acceptability of use, and notify States of determination for State trust funds and other State (including State-required) assurance mechanisms [@280.100 & @280.101]. Within 60 days of approval, the State must provide to each owner or operator for which the State is assuming financial responsibility a letter or certificate to that effect [@280.101 (d)].
  4. Instruct the trustees of trust funds to release excess funds to owners or operators [@280.102]. This refers to owners' or operators' trust funds, not standby trust funds or State trust funds.
  5. Instruct the trustees to refund balances of standby trust funds to providers (guarantors) after all costs and claims have been settled [@280.103(c)].
  6. Receive notifications of cancellation or non-renewal of coverage [@280.105(b)].
  7. Receive copies of the financial responsibility mechanism from owners and operators in the event of a release [@280.106] or in the event of failure to obtain alternate coverage within 30 days of notice of incapacity by provider of financial assurance [@280.106 & @280.110].
  8. Direct guarantors, sureties, and institutions (letters of credit) to deposit money into standby trust funds [@280.108(a)].
  9. Effect the drawdown of standby trust funds [@280.108(b)].
  10. Receive notices from owners or operators of the commencement of bankruptcy proceedings and copies of financial assurance instruments documenting current financial responsibility [@280.110].

Tasks 10, 14, 17, and 18 are necessary only for those owners or operators who choose to use guarantees, surety bonds, or letters of credit to meet all or part of their financial responsibilities. These instruments require the creation of a standby trust fund. Tasks 14, 17, and 18 will occur only after the reporting of a confirmed release.

States should be asked to conduct tasks 10, 11, 15, 16, and 19 as part of their program grant work plans. Task 10 likely will occur once per State. Task 11 will occur only a very limited number of times. States that are receiving new tank notifications and/or notifications of closures very likely will want to conduct tasks 15, 16, and 19.

Tasks 12, 13, 14, 17, and 18 must be performed by EPA (Regional Administrator) during the transition period. States, however, are required by the final regulations to provide the letter or certificate to owners/operators related to Task 12.

This list does not include tasks associated with suspension of enforcement of the financial responsibility requirements. The following appendix includes other tasks related to the financial responsibility requirements in the final rule, including optional tasks, and a discussion of suspension of enforcement.

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OSWER DIRECTIVE 9610.5-1

APPENDIX 2:
LIST OF SPECIFIED AND OPTIONAL TASKS (SUBPART H)

The following is a more complete listing of tasks for the Implementing agency. The tasks are identified as either:

S = SPECIFIED: explicitly described in the UST regulations as a responsibility of the implementing agency or implied to be a responsibility of the implementing agency based on a requirement placed on owners and operators; or

0 = OPTIONAL: carried out at the discretion of the implementing agency.

The specified tasks are a repetition of the previous list. Guidance for implementation of the specified tasks is indicated below each task as options for State or Regional implementation during the transition period. The tasks identified as optional indicate program areas for the Regions to work with States to enhance capability.

***

SUBPART H - FINANCIAL RESPONSIBILITY

S

Receive State Attorney General's certification that guarantees and/or surety bonds are legally valid and enforceable obligations in that State [280.94(b)3.

 

Option 1: State agrees to request and receive certification as part of program grant work plan.

 

Option 2: Region will continue to work with the State to conduct this task.

O

Request and receive reports of financial condition at any time [@280.95(f)) (self insurance only).

S

Receive notices that o/o no longer meets the financial test of self insurance [@280.95(g)].

 

Option 1: State agrees to receive notices as part of program grant work plan.

 

Option 2: Region receives notices and keeps them until the State agrees to assume this task. Region will continue to work with the State to conduct this task.

O

Notify guarantor that he no longer meets the requirements of the financial test of self insurance [@280.96(b)].

O

To promote compliance, follow-up on notices that o/o and guarantors no longer meet the requirements of the financial test of self insurance.

S

Receive description, evaluate, determine acceptability of use, and notify States of determination for State trust funds and other State (including State-required) assurance mechanisms [@280.100 & @280.101]. Within 60 days of EPA approval, provide to each o/o for which the State is assuming financial responsibility a letter or certificate to that effect [@280.101(d)].

 

[This task must be performed by the EPA Regional Administrator. It may not be delegated to or conducted by States during the transition period or after State program approval. The final regulations require that States provide the letter or certificate to o/o.]

S

Instruct the trustees of trust funds to release excess funds to o/o [@280.102]. (This refers to an o/o's trust fund, not standby trust funds or State trust funds.)

 

[This task must be performed by the EPA Regional Administrator prior to State program approval.]

S

Instruct trustees to refund balances of standby trust funds to providers (guarantors) after all costs and claims have been settled [@280.103(c)].

 

[This task must be performed by the EPA Regional Administrator prior to state program approval.]

S

Receive notifications of cancellation or non-renewal of coverage [@280.105(b)].

 

Option 1: State agrees to receive notices as part of program grant work plan.

 

Option 2: Region receives notices and keeps them until the State agrees to assume this task. Region continues to work with the State to conduct this task.

O

To promote compliance, follow-up on notifications of cancellation or non-renewal of coverage.

S

Receive copies of the financial responsibility mechanism from owners and operators in the event of a release [@280.106] or in the event of failure to obtain alternate coverage within 30 days of notice of incapacity by provider of financial assurance [@280.106 & @280.110].

 

Option 1: State agrees to receive copies of the mechanisms as part of program grant work plan.

 

Option 2: Region receives copies of the mechanisms and keeps them until the State agrees to assume this task. Region will continue to work with the State to conduct this task.

O

Request and receive evidence of financial assurance or other information from o/o at any time [@280.106(c)].

S

Direct guarantors, sureties, and institutions (letters of credit) to deposit money into standby trust funds [@280.108(a)].

 

[This task must be performed by the EPA Regional Administrator prior to State program approval.]

S

Effect the drawdown of standby trust funds [@280.108(b)].

 

[This task must be performed by the EPA Regional Administrator prior to State program approval.]

S

Receive notices from owners or operators of the commencement of bankruptcy proceedings and copies of financial assurance instruments documenting current financial responsibility [@280.110].

 

Option 1: State agrees to receive bankruptcy notices as part of program grant work plan. States receiving notifications or closure notices likely will want to receive notices of bankruptcy or incapacity.

 

Option 2: Region receives bankruptcy notices and keeps them until the State agrees to assume this task. The Region will continue to work with the State to conduct this task.

Suspension of Enforcement

The April 1987 proposed rule contained relatively detailed procedures for suspension of enforcement of the financial responsibility requirements. Based on comments and the uncertainty over the number of suspension applications likely to be received, EPA has deferred promulgation of procedures for suspension of enforcement.

The final regulations phase in the financial responsibility requirements over 21 months. EPA recognizes that the availability of financial assurance mechanisms (particularly State funds) may change dramatically over time. In the meantime, some States may receive State program approval. Thus, there is significant uncertainty over whether, and to what extent, suspension of enforcement will be necessary in the future. As the necessity is demonstrated, EPA will adopt procedures for suspension of enforcement. Until such time, however, EPA does not intend to exercise its discretionary suspension authority. Therefore, tasks associated with suspension of enforcement of the financial responsibility requirements have not been included in this document.

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