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53 FR 37082-37247 Friday, Sept. 23, 1988 40 CFR Parts 280 and 281, Underground Storage Tanks; Technical Requirements and State Program Approval; Final Rules - Preamble
PREAMBLE--40 CFR Part 281
(37212-37241)
ENVIRONMENTAL PROTECTION AGENCY
40 CFR PART 281
Underground Storage Tanks; State Program Approval
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final Rule.
SUMMARY: The Environmental Protection Agency (EPA) today finalizes regulations for approval of states to run underground storage tank programs in lieu of the federal program. These regulations were first proposed on April 17, 1987 (52 FR 12853) and were further developed in a subsequent Supplemental Notice published on December 23, 1987 (52 FR 48638).
Subtitle I of the Resource Conservation and Recovery Act (RCRA) establishes a federal program for the regulation of underground storage tanks (USTs). Subtitle I of RCRA also allows EPA to approve state programs to operate in place of the federal UST requirements if those state programs have standards that are no less stringent than the federal requirements and provide adequate enforcement of compliance with those standards. States with approved UST programs will have primary enforcement responsibility with respect to UST program requirements in their states. Today's rule establishes final requirements for approval of state UST programs and for streamlined procedures to be used in submitting and evaluating state applications.
DATES: These regulations will become effective on December 22, 1988.
ADDRESSES: The public docket for this rulemaking is available for public inspection from 9:00 a.m. to 4:00 p.m., Monday through Friday, excluding holidays at - Office of Underground Storage Tanks (WH-562A), Docket No. UST 4, U.S. Environmental Protection Agency, 401 M Street, S.W., Washington, D.C. 20460. Call (202)475-9720 to make an appointment with docket clerk.
FOR FURTHER INFORMATION CONTACT: RCRA/SUPERFUND Hotline, (800)424-9346; or in Washington, D.C., (202)382-3000.
SUPPLEMENTARY INFORMATION: The contents of today's preamble are listed in the following outline:
I. AuthorityII. Background
A. Subtitle I of RCRA (Section 9004)
B. Summary of the April 17 Proposal
III. Summary of Today's Rule
IV. Analysis of the Rule
A. Subpart A -- Purpose, General Requirements and Scope (§§ 281.10-281.12)
B. Subpart B -- Components of a Program Application (§§ 281.20-281.25)
C. Subpart C -- Criteria for "No Less Stringent" (§§ 281.30-281.36)
D. Subpart D -- Adequate Enforcement of Compliance (§§ 281.40-281.43)
E. Subpart E -- Approval Procedures (§§ 281.56-281.52)
F. Subpart F -- Withdrawal of Approval of State Programs (§§ 281.60-281.61)
V. Relationship to Other EPA Programs
VI. Economic and Regulatory Impacts
Table of ContentsThese regulations are promulgated under sections 9004, 9005, 9006 and 2002 of the Solid Waste Disposal Act, as amended.
A. Subtitle I
The Hazardous and Solid Waste Amendments of 1984 added Subtitle I to the Resource Conservation and Recovery Act (RCRA). Subtitle I establishes a federal program for the regulation of underground storage tanks and has the following components.
Section 9002 requires each owner of an underground storage tank (UST) in operation after 1973 to notify the designated state agency of the existence of the tank and the tank age, size, type, location, and use. This notification was due on May 8, 1986, or within 30 days after an owner brings a new UST into use.
Section 9003(a) requires EPA to promulgate standards and requirements for new and existing USTs covering detection, prevention, and correction of releases. These regulations are set forth in the final UST technical standards published elsewhere in today's Federal Register.
Section 9003(g) establishes a prohibition on the installation of certain USTs from May 8, 1985 until the effective date of EPA's new tank performance standards established under section 9003(e). Section 9003(h), added to Subtitle I under section 205 of the Superfund Amendments and Reauthorization Act of 1986, establishes a program for cleanup of petroleum from leaking USTs.
Section 9004 provides a procedure by which states may administer and enforce state UST programs in lieu of the federal program established under section 9003. Under section 9004, states may submit their programs to EPA and will be approved by EPA if the state program meets the requirements for notification found under section 9002, provides for adequate enforcement of compliance with all program requirements, and includes requirements that are no less stringent than the corresponding federal UST technical standards for leak detection and prevention, recordkeeping for leak detection, reporting of releases and corrective action, corrective action, closure, financial responsibility, and new tank standards. Section 9004 specifies that a state program submitted to EPA for approval may cover petroleum substances, hazardous substances (not including hazardous wastes), or both.
Under Subtitle I, a state with an approved UST program has primary enforcement responsibility for the requirements of its program. EPA retains authority to take enforcement action in approved states as necessary and will notify the designated lead state agency of any such intended action in accordance with procedures contained in a memorandum of agreement executed with EPA and section 9006(a)(2) of RCRA. In this rulemaking, EPA establishes requirements that a state UST program must meet in order for EPA to approve the program under section 9004. These regulations are codified in Part 281 of the Code of Federal Regulations.
In section 9004, Congress clearly provided EPA the authority to authorize state UST programs to operate in lieu of the federal program. Congressional intent that Subtitle I be implemented at the state level is supported by its legislative history. In introducing the Subtitle I legislation in 1984, its sponsor stated: "The purpose of this amendment is to establish a constructive federal role to aid the states in establishing programs to safeguard their water supplies. Passage of this program will help to ensure consistency between state programs and tank standards and measured progress toward our goal of protecting ground water from this ubiquitous source of contamination." 130 Cong. Rec. 9164 (daily ed. July 25, 1984) (statement of Senator Durenberger). Accordingly, EPA believes that Congress intended EPA to play an important leadership role by establishing UST criteria, and that, consistent with statutory requirements, the state and local governments should carry out the program wherever possible. This Congressional intent has been influential in shaping today's final rule for state UST program approval.
B. Summary of the April 17 Proposal
The April 17, 1987 proposal (52 FR 12853) solicited public comments on several topics concerning requirements and procedures for approving state UST programs to operate in place of federal UST regulations. In the proposal, EPA discussed the two criteria for approval that are required under section 9004 of RCRA. EPA described requirements for ensuring "adequate enforcement of compliance", including the specific legal authorities that must be available to the state enforcement agency. The proposal also presented three possible approaches that could be used to determine whether state technical and program requirements are "no less stringent" than the federal standards.
In addition, the proposal contained a number of procedural and administrative requirements. The proposal outlined the components of a standard application for approval. These components include: a program description; an Attorney General's statement; an implementation plan that includes a Memorandum of Agreement; and copies of all applicable state laws and regulations. Furthermore, the proposal suggested procedures that EPA will follow when evaluating state applications for approval or when withdrawing approval of state programs. The procedures for reviewing a state application for approval must be completed within 180 days, according to section 9004, and the proposal provided details on how the review should proceed: (1) confirm that an application is complete; (2) review the application; (3) publish a tentative decision in the Federal Register; (4) consider public comments and hold public hearings if necessary; and (5) publish a final decision in the Federal Register.
Finally, the proposal reflected the provision in section 9004 that, in cases when a state program has requirements that are less stringent in certain areas than corresponding federal requirements, EPA could approve these programs on an interim basis. The proposal clarified the requirements and procedures concerning the content and review of a state application for such interim approvals.
C. Summary of Supplemental Notice
EPA published a Supplemental Notice on December 23, 1987 (52 FR 48638) that requested public comments on some aspects of state program approval that EPA believed needed further clarification. The two parts of this supplemental notice that dealt specifically with state program approval are summarized below.
One part of the supplemental notice addressed the "no less stringent" issue and provided further details for public review and comment on how the Agency intended to implement its proposed approach to state program approval: a comparison of each of the technical program elements of the state program to the federal objectives for the corresponding program elements. For example, a state's regulations for release detection as a whole would be compared to the federal objectives for release detection. As long as the state program's overall requirements for release detection were "no less stringent" than the federal objectives for release detection, then EPA could approve that state program element. An essential part of this process was the identification in the supplemental notice of federal objectives for each of the eight program elements. These federal objectives were proposed to clarify what constitutes acceptable "no less stringent" requirements in state programs.
The other part of the supplemental notice concerning the issue of state program approval requested comment on providing additional flexibility to implementing agencies by changing the wording of several sections of the technical standards proposed on April 17. These proposed wording changes were intended to allow state implementing agencies to substitute their own procedural and administrative requirements for those detailed in the federal technical standards for USTs.
EPA received many comments regarding both the April 17 proposed rule for state program approval and the December 23 supplemental notice. Four major issues were identified by public comment: implementation by states and localities; adequate enforcement; no-less-stringent criteria; and federal funding. These issues are briefly highlighted below and discussed in more detail in section IV of today's preamble.
o Implementation by states and localities. Many commenters expressed concern about the potential for a lack of national consistency, which they believed would be an inherent result of the proposed rule for state program approval. They recommended that EPA not approve state regulations that would be different and perhaps more stringent than the federal rule. In addition, several other commenters were concerned that implementation of the UST program by local governments, specifically those with different technical regulations, would cause confusion for the regulated community. EPA received other comments concerning implementation by local governments. Generally, these commenters requested that EPA's final approval rule require that states negotiate with localities and include them in plans for UST program implementation.
o Adequate Enforcement Criteria. In defining what constitutes "adequate enforcement", commenters particularly wanted clarification of EPA's policy regarding enforcement. Some commenters requested that broad objectives be developed as a means of approval in the federal rule, and some suggested such objectives should be part of the regulations. Others thought that guidance alone would be appropriate. Commenters also objected to the requirements for inspections and surveys, and wanted clarification of EPA's expectations. Regarding legal authorities required for enforcement, many commenters felt that states must be allowed to evaluate their own penalties and devise their own approaches on a case-by-case basis, and that EPA could require, at a minimum, general categories of authorities without dictating their terms. Finally, many commenters expressed concern about EPA's public participation requirements for state program approvals. Some commenters suggested that states should be allowed to assess the degree of participation necessary for each individual case, while others questioned the statutory authority for requiring specific levels of participation as criteria for approval.
o No-Less-Stringent Criteria. In the April 17 preamble, EPA had considered three options for determining whether state programs meet the no-less-stringent criteria. Some commenters supported EPA's proposed approach (option 3), which compares the state and federal programs element-by-element, as the most flexible and implementable. An "element", was one of the paragraphs (1) through (8) in section 9004(a). Each paragraph defined an element, for example, release detection. Others claimed that only the holistic approach of option 1 that evaluates the overall results of a program gave states sufficient flexibility. These commenters also stressed that effectiveness in meeting the environmental goals should be considered first in approving states rather than the ability to meet specific individual legal requirements. A few commenters supported the line-by-line approach of option 2, believing that the flexibility of the other options could lead to the approval of inadequate programs.
Many comments were received on EPA's proposed approach to implementing state program approval. Most commenters agreed with the use of objectives for determining the stringency of state programs and liked the objectives that EPA outlined in the December 23 supplemental notice. In general, they believed the objectives would facilitate state program approval by allowing state programs the necessary room to develop regulations appropriate to the individual state's geographical characteristics and regulated communities. For the same reason, these commenters also liked EPA's proposal to provide states additional decisionmaking authority within the technical and financial responsibility regulations.
Some commenters, however, did express reservations about EPA's proposed approach to provide states with flexibility. Most of these commenters felt that while flexibility was an admirable goal, consistency was also important. These commenters argued that the proposed regulations, particularly the additional state decisionmaking authority in the technical standards, allowed too much flexibility to the states without providing assurances that such flexibility was necessary to protect human health and the environment. A few commenters disagreed completely with the objectives approach and stated that objectives were not a substitute for detailed technical requirements.
o Federal Funding. Some commenters raised the issue of the high cost of developing state UST programs compared to the small amount of federal funding available to assist state program development. They protested that EPA wanted states to run a program without sharing sufficient funds to make it possible and they urged the federal government to provide more grant money.
E. Important Influences on Today's Rule
In developing today's final rule for state program approval, the Agency has taken into consideration several characteristics of the UST system universe that are associated with any attempt to regulate UST system management. The following sections identify and discuss the influence of specific features of the UST system universe on the approval of state programs.
1. Leaking USTs Present a Unique Regulatory Challenge
EPA's approach to the regulation of UST systems on a national scale must be different from that undertaken by most of its other regulatory programs because the UST problem is significantly different. This difference is mainly due to two factors: the large number of facilities to be regulated and the nature of the regulated community.
The most significant problem is the sheer size of the regulated community. Nationally, over 700,000 UST facilities account for about 2 million UST systems. Estimates indicate that roughly 75 percent of existing UST systems are unprotected from corrosion (and thus present a serious environmental risk). A relatively high proportion of UST facilities (10 to 30 percent) already have had a leak, and soon others will leak unless measures are taken to upgrade them.
Another problem arises from the nature of the regulated community. A large proportion of USTs are owned by small businesses with $500,000 or less in total assets. For example, 72 percent of all retail motor fuel outlets are owned by small businesses. These small entrepreneurs, who are used to operating their businesses under minimal regulation, will be significantly affected by environmental regulations for UST systems. In the promulgation of the technical standards elsewhere in today's Federal Register, EPA has attempted to minimize the regulatory impact on small businesses without compromising the statutory requirements to protect human health and the environment.
In addition, the problem of releases from USTs is multi-faceted. There are three major sources of release incidents: product delivery piping failures; corrosion of unprotected tanks; and spills and overfills. Environmental regulations for UST systems must be aimed at preventing these different types of petroleum and hazardous substance releases as well as increasing the ability to quickly detect and minimize the contamination of soil and ground water by such releases, and ensuring adequate cleanup of contamination. To do this, UST regulatory requirements must address every phase of the life cycle of a storage tank system: selection of the tank system; installation; operation and maintenance; financial responsibility; closure; and cleanup of the site where releases have occurred.
In summary, the size of this regulated community, the predominance of small business ownership of the UST systems, and the need for comprehensive management of an UST so that releases are minimized during its operating life present a unique regulatory challenge. This challenge calls for the consideration of new approaches from federal, state, and local regulators. Some existing state and local UST programs already provide effective UST management through a variety of different approaches. In developing a strategy for approval of state UST programs, EPA has been guided by a realization that there is often more than one way to ensure sound UST management using different regulatory approaches.
2. Challenges for Compliance and Enforcement
The experience of state and local agencies that are currently implementing UST programs demonstrates two realities. First, large businesses are generally willing and have already begun to comply with UST requirements. Second, small business owners, with limited resources and knowledge of federal regulations, often need more direct attention and technical assistance to ensure compliance. Given the unique nature of this regulated community, EPA believes the UST regulatory program will be most effectively carried out by those who are closest to the problem, who can respond quickly, and who can create a visible presence, that is, the state and local governments.
In addition, successful implementation of this program depends a great deal on the regulated community's voluntary compliance with the requirements because, ultimately, they are responsible for conducting the work under this new program. Also, the large number of facilities and the numerous types of activities that take place on-site preclude the implementing agency from being present to ensure that tank management activities are performed properly. Compliance is best prompted by owners and operators who are clearly informed of the regulations and in close contact with the regulators. Interaction between regulators and UST system owners during the development of a regulatory program and during program implementation can be used to gain acceptance within the regulated community, and may be most effective at the state and local level. Another incentive for voluntary compliance can be the type of regulations developed at the state level. For example, the federal technical requirements, where possible, rely on familiar industry codes and build on recognized trends developing in the field of UST management.
Because much of the environmental improvement from the UST program will come from the regulated community's voluntary compliance, the process of approving state programs should recognize that regulatory approaches developed in response to the specific needs of different local areas may be more appropriate and thus better understood by the regulated community.
3. State and Local UST Programs Are Already Underway
Many states and localities have already begun to address the ground-water contamination threat and cleanup problems posed by leaking USTs. At least 18 states have developed UST programs that, at a minimum, regulate the basic elements of proper UST system management. Although all of these programs address petroleum UST systems, only a few currently include hazardous substance USTs within their scope. Other states have enacted legislation and are developing a regulatory program. Because many of these states plan to use EPA's rules to guide their own regulatory decisions, EPA expects state progress in developing regulations to proceed rapidly with the appearance of today's final rule on the technical standards.
This high level of state activity has taken many routes. Some state programs have established stringent release detection for existing USTs (California and Florida), and others emphasize state-of-the-art prevention technologies for new USTs (New York, California, and New Hampshire). Some are phasing in the upgrading or replacement of existing substandard systems (Florida, Connecticut, and Delaware). Others have attempted to tailor their standard-setting based on proximity to sensitive ground-water locations (Maine and South Carolina). EPA has closely studied these state regulatory program approaches and found that diversity on important technical issues is often the rule rather than the exception. EPA believes that its approach toward the approval of state programs must accommodate these differences where such initiatives are no less stringent than the federal program.
Many county and municipal governments also are already implementing UST programs. Over 100 major cities in the U.S. have developed local UST ordinances and programs. Some programs are operated independently of the state; others are part of a wider state regulatory program. The implementation role of local agencies in the UST regulatory effort is being encouraged in many states in hopes of making use of available local manpower (such as fire marshals and building code officials) and thus improving overall enforcement and administrative capabilities. Three of the leading state UST programs -- New York, Florida, and California -- have begun to work out solid working relationships with local UST programs within the state, a policy that is believed to be critical to the success of the state program. In several of the eastern urban counties of New York, the state has delegated authority to the county governments, allowing the state agency to focus its efforts on implementing the UST program in the less urban counties where local UST programs are less developed. In Florida, Dade and Broward counties have been given authority to implement the UST program in their jurisdictions. Several other counties in the state are reported to be considering local UST programs. California has given responsibility for administering and enforcing the state UST program to over 100 local county and city agencies.
In order to protect vulnerable ground-water supplies or in response to a series of local incidents, some local governments have issued their own ordinances, regulations or by-laws, even in the absence of any state regulatory action. In some cases, these local controls predate the corresponding state regulations and may be more stringent than their state counterparts. Savannah, Georgia; New Orleans, Louisiana; and San Antonio and Austin, Texas are examples of localities that have created their own UST regulations. In Massachusetts, at least 78 communities have enacted some level of UST controls. EPA has noted over the past three years that these independent actions at the local level often are the precursors to the development of an UST program for the entire state (as occurred in California, Florida, and New York).
EPA believes the high level of local UST program activity nationwide will increase with today's promulgation of the federal technical standards and as numerous state programs begin to develop or revise their own regulatory standards in response. Also, as other states begin to wrestle with the reality of how to implement their UST programs and as the dangers posed by existing UST systems become more widely known, local UST programs and involvement should increase significantly over current levels.
4. EPA's National UST Program Strategy and State Program Approval
The factors discussed above led EPA to conclude that the approach taken in today's final rule is the most effective way to implement this approval program. First, the state program approval language of section 9004 of RCRA, as well as its legislative history indicates that Congress intended state and local UST programs to have a pivotal role in the national UST program. At the same time, however, it is clear that Congress intended EPA to lead in establishing and supporting standards necessary to protect human health and the environment nationwide. The "no less stringent" and "adequate enforcement" criteria must be met to ensure protection of the nation's ground water. Second, the nature of the problem, the regulated community, and the work involved in implementing the regulatory program dictate that the actual day-to-day work take place at the state and local level. EPA has concluded that much of the environmental improvement to be gained under this program will be made through supporting and building the implementation efforts of state and local UST programs. Third, substantial activity is already occurring in states and localities, and EPA's approval process should work to build, rather than disrupt, this established network. The Agency's role in approval, therefore, must focus on encouraging the state and local governments to carry out their own unique programs. The approval of state programs, however, is just one step in a long-term strategy to develop a national UST program. EPA must look ahead to the actual implementation of the program after approval has been given.
In facing the implementation challenge that today confronts the national UST program, EPA has concluded that the approval approach established today is necessary to address the realities of the UST regulatory program. First, as more state and local governments become involved, the work of the UST program must be routinely repeated in thousands of jurisdictions nationwide. Several operating state and local UST programs already report that they are quite busy "running the store," and express surprise at the size of the regulated community and how fairly simple tasks must be routinely repeated numerous times for the implementing agency to be successful in bringing UST systems into, and maintaining, compliance.
Second, visits to several state and local UST program offices have shown that they have developed their own unique requirements and operate differently even though they are geared towards solving similar technical problems. They need the flexibility to continue to improve upon their own approaches. They have common implementation problems, however, and have expressed the need for better technical aids, such as data management tools.
Third, many state and local governments that already implement UST programs report a significant effort to provide visible on-site monitoring, which means a constant "regulatory presence" is needed to effectively ensure the regulated community's compliance with UST requirements. A significant environmental gain is achieved through the implementation at the local level by these individual UST programs. Thus, improving their performance will produce maximum environmental benefits and ensure the success of the UST program nationwide. Accordingly, EPA believes its implementation efforts should be focused on serving the network of state and local programs through listening to their concerns and helping them solve implementation problems with tools that improve their programs' effectiveness.
Approval of state programs thus becomes a basic competence test to ensure that the work associated with the implementation of regulatory controls by the state program will, in fact, cause the needed level of improvement in UST system management by the regulated community. A requisite level of enforcement authority and technical standards must be ensured, and therefore must be the focus for approval by EPA. Other program performance and implementation capability concerns are less of a focus for state program approval and more of a question of improving implementation of the national UST program over time after states have received program approval. EPA recognizes that the nature of the problem and the work involved in effective direct implementation of the regulation by EPA will overwhelm the Agency's capabilities and resources. Accordingly, the strategy for state program approval must focus on ensuring that a bottom-line level of protection is maintained, but at the same time must avoid setting requirements that would prevent or discourage the development of sound state and local UST programs that should be approved to operate "in lieu of" the federal program. The aim of state program approval is to develop the state-federal partnership that will allow both parties to focus on preventing leaking USTs from causing further environmental contamination.
A. Summary of Today's Rule
EPA is promulgating today a final regulation for approval of state underground storage tank programs under section 9004 of RCRA, to be codified at 40 CFR Part 281. This regulation establishes criteria for state programs in the areas of "no less stringent" and "adequate enforcement" of compliance. The major elements of today's rule are outlined below.
In defining "no less stringent," EPA is promulgating criteria in the form of objectives. These objectives are established for seven of the eight technical program elements: new UST systems design, construction, and installation; release detection; general operating requirements; upgrading of existing USTs; release reporting, investigation and confirmation; out-of-service USTs and closure; and release response and corrective action. The objective for the element of financial responsibility will be provided by EPA when the final technical requirements in this area are provided at a later date. These objectives represent the minimum standard that the state program must achieve in order to be considered "no less stringent" than the federal requirements. Through these objectives, EPA intends to provide the states with the flexibility to develop an administrative approach that best suits the needs of the state while ensuring that an adequate level of performance is achieved in protecting human health and the environment in all states.
In determining "adequate enforcement", EPA has defined the minimum authorities and procedures a state must have. The state must have authority to inspect records, inspect sites, and require monitoring and testing by the owner. The state must also have procedures for inspecting sites and reviewing records. The state must have legal authority to obtain a temporary restraining order and a preliminary injunction, and to assess or sue to recover penalties. In addition, the state must allow opportunity for public participation in enforcement actions.
Finally, the components of a state application for program approval are described in the regulation. These components include: a Governor's transmittal letter; a description of the state program; a description of compliance monitoring and enforcement procedures; where interim approval is sought, a schedule for final approval; a Memorandum of Agreement, which defines the roles and responsibilities of EPA and the approved state; an Attorney General's statement, which certifies to the state's authorities for the eight technical program elements and for enforcement and compliance monitoring; and copies of the applicable state statutes and regulations. EPA believes that the above requirements ensure that approved state programs meet the requirements set out in RCRA section 9004.
B. Strategy for State Program Approval
In the April 17 preamble, EPA proposed three options for evaluating whether a state program is "no less stringent." As stated in the proposal, EPA's preferred approach was to compare the state and federal programs element-by-element. (Section 9004(a) of RCRA establishes those elements that must be included in a state program in order to receive EPA approval; under today's rule an element is a discrete segment of a comprehensive UST management program that has an identifiable objective.) EPA believed this option gave the best combination of flexibility and ease of implementation. On December 23, 1987, EPA requested public comment on certain general objectives provided as the criteria for determining the stringency of each program element. Today, the Agency is promulgating these criteria substantially as presented in the December 23 notice (although the objective for financial responsibility will be promulgated at a later date with its associated technical rules), except that they do reflect the points of departure made to the proposed underlying technical standards (discussed elsewhere in today's Federal Register) and public comments on the supplemental notice.
As discussed in the December 23 notice, EPA does not believe that the specific federal requirements in the Part 280 regulations provide the only definitive and protective approach for UST regulation. In developing the federal technical standards, EPA recognized that other approaches would meet EPA's overall performance objectives. These federal technical standards are by necessity more detailed and specific than the objectives they are designed to meet because the federal regulations must be able to be implemented by the regulated community and must be enforceable in those states without approved state programs. As indicated in today's rule, EPA does not believe that the individual requirements set forth within the federal program elements should necessarily preclude states from developing other approaches that will achieve the overall objectives of performance identified for purposes of state program approval.
The objectives in Subpart C of today's final rule identify the performance standards for each element that the federal requirements are intended to meet and that a state program must meet in order to be as stringent as the federal program. They ensure that state programs meet the basic standards established by the federal program but, at the same time, do not dictate the methods the states can use in reaching these standards. EPA believes this approach to state program approval will provide the states with significant flexibility, permit alternative methods of implementation, and still ensure that state UST programs achieve the same result in protecting human health and the environment as the federal program.
Under section 9004, EPA also must ensure that state programs demonstrate "adequate enforcement" of compliance with program requirements. EPA proposed that states demonstrate compliance monitoring and enforcement authorities and basic compliance monitoring procedures. In addition, EPA solicited comment on whether it should require a demonstration of enforcement response procedures. As a result of public comments, the Agency is promulgating regulations for adequate enforcement that require state programs to demonstrate compliance monitoring and enforcement authorities and procedures for implementing those authorities (except in the area of public participation, where EPA will allow the state to choose between specific authorities or procedures). As explained above, EPA seeks to approve a variety of state programs and to encourage states to use innovative approaches in all program areas, including monitoring compliance and undertaking enforcement actions. In the near future, EPA will be issuing additional guidance on "adequate enforcement" that will provide examples of acceptable compliance monitoring and enforcement programs currently being used by several states.
Today EPA is also clarifying the issue of program scope. In evaluating the state's program scope, EPA considered requiring states to include all the jurisdictional definitions listed in the federal technical standards rule. EPA concluded, however, that this would be both burdensome and unnecessary. Instead, the state must describe its jurisdiction and regulated population in the program description to show that its program includes the UST population that is covered by the federal program. Broad state authorities are sufficient if, under state law, they cover the same or a greater universe than the federal program. States may, of course, choose to adopt any of the terms that are included in the list of definitions in the federal regulations at 40 CFR 280.12.
The following sections of this preamble include discussions of the major issues and address the public comments received in response to the April 17 proposed rule and December 23 supplemental notice.
EPA has reorganized the proposed rule for two reasons. First, the Agency is incorporating as Subpart C of today's rule the criteria for "no less stringent" as proposed on December 23, 1987 (52 FR 48638), except for the criterion for financial responsibility which will be promulgated at a later date along with its supporting technical rules. Second, the Agency has clarified the requirements for adequate enforcement as a component of the state's application. Previously, the adequate enforcement demonstration was proposed to be part of the program description. Today, the Agency is promulgating the adequate enforcement requirements in a separate subpart of the rule. Further explanation of this change can be found later in this preamble (section IV.B.). For ease of reference, the following preamble discussion is organized to address each subpart of the rule separately.
A. Subpart A -- Purpose, General Requirements, and Scope (§§ 281.10 -281.12)
Section 9004 of RCRA sets forth a number of requirements for state UST program approval. Section 9004(a) establishes the elements that must be included in a state program in order to receive EPA approval. In order to correspond with the technical requirements promulgated elsewhere in today's Federal Register (or to be promulgated later, in the case of the financial responsibility standards), EPA refers to these program elements as new UST systems; upgrading of existing UST systems; general operating requirements; release detection; release reporting, investigation and confirmation; release response and corrective action; out-of-service UST systems and closure; and financial responsibility. Section 9004(b) requires that each of the state program elements be no less stringent than the corresponding federal program elements for final approval. (A discussion of the Agency's approach to determining "no less stringent" is provided in Subpart C of this section of the preamble.) Under section 9004(b) state programs may receive interim approval as long as certain (but not all) requirements are no less stringent than the corresponding federal standards. In the preamble to the April 17 proposal, EPA solicited comments on the requirement that a state seeking interim approval must have each program element present in some form before interim approval. No comments were received on this issue, however. The proposed regulatory language simply provided that a state must have requirements in all the program elements, including the less stringent ones, as a condition of receiving interim approval. The proposed rule did not specify the type of requirements the states must have for these other less stringent elements. Therefore, the Agency is clarifying that a state must have at least general statutory authority for the less stringent elements.
EPA received many comments regarding the program elements necessary for interim approval. Many commenters expressed concern that some of the most difficult program elements to achieve were required to be "no less stringent" at the time of application in order for a state to qualify for interim approval. The commenters suggested that EPA change this in the final rule. The Agency agrees with these commenters that the program element requirements required to be no less stringent at the time of application, such as financial responsibility, may be the most difficult to develop. The Agency, however, has promulgated these no less stringent requirements substantially as proposed because are set forth by statute and cannot be changed through rulemaking.
In the proposal, the elements of a state program that must be immediately no less stringent were listed as corrective action, financial responsibility, notification, and new tank performance standards. Those elements that could be less stringent were listed as leak detection and prevention, recordkeeping for leak detection, reporting of releases and corrective action, and closure. Since the April 17 proposal, the elements of a program have been reorganized to parallel the order in the technical standards, and the new tank performance standards have been divided into standards for upgrading existing UST systems and general operating requirements as well as standards for new tank design, construction, installation and notification.
In order to be no less stringent than the federal program, a state must have requirements for upgrading of existing UST systems and for general operating requirements. For purposes of interim approval of state programs, these elements are considered to be part of the new tank performance standards. Therefore, a state applying for interim approval must have requirements that meet the federal objectives for the following elements: new tank design, construction, installation, and notification; upgrading existing UST systems; general operating requirements; release response and corrective action; and financial responsibility.
If a state chooses to apply for interim approval, it is accepting the limitations associated with it. It must upgrade all less stringent authorities within the federal law's established timeframes. EPA acknowledges that this limitation will make interim approval less attractive to states, and will discourage states from applying for interim approval. Today's rule, however, provides procedures for both final and interim approval, including the automatic expiration of interim approval when a state with interim approval does not submit a program revision within the prescribed time periods.
Under sections 9004(a) and (d), the state UST program must also provide for adequate enforcement of compliance. The Agency proposed, and today is finalizing, requirements mandating certain state legal authorities and procedures for compliance monitoring and enforcement. These regulatory requirements are found in §§ 281.40 - 281.43 and are discussed in greater detail later in this preamble.
The following section of the preamble explains the parts of the state's application that must be provided to demonstrate coverage of all of these requirements.
B. Subpart B -- Components of a Program Application (§§ 281.20-25)
Today's regulation identifies the components that must be included in the state program application package submitted to EPA. Many commenters requested that the Agency keep the application process as flexible and streamlined as possible. The Agency attempted to do this, and has simplified the process even further by designing a standard state application form that will be provided in a State Program Approval Handbook to be issued before the effective date of this rule. The use of this application form is optional and the state may submit whatever application form that it prefers as long as it meets the regulatory requirements. As outlined in § 281.20(a) - (g), the state's application must at least contain the following basic parts: (1) a transmittal letter from the Governor of the state; (2) a description of the current state program; (3) a description of compliance monitoring and enforcement procedures; (4) a schedule for interim approval, where applicable; (5) a Memorandum of Agreement; (6) a statement from the state Attorney General; and (7) copies of all applicable state laws and regulations. Although for purposes of clarity today's rulemaking separately addresses the Attorney General's statement and the demonstration of adequate enforcement, the state may join the two into one document in the application package.
The Agency had originally proposed that states submit an implementation plan as part of the application for program approval. The proposed implementation plan included: a long term implementation strategy; a schedule for interim approval; and a Memorandum of Agreement (MOA).
One commenter expressed concern that the implementation plan (proposed § 281.22) was redundant and therefore burdensome to require both a program description and an implementation plan. This commenter questioned the purpose of a long term implementation strategy, interpreting it to suggest that EPA would conduct detailed oversight of approved state programs. The commenter asked whether the Agency would disapprove a state that did not achieve the goals laid out in the long-term implementation strategy.
The Agency's intention is to conduct oversight in a manner that allows for changing circumstances. The original intent of the long-term implementation strategy was to provide a starting point that the Agency could use to determine the amount of assistance the state needed to improve its UST program. EPA expects that a significant amount of this improvement will occur after state program approval. As a result, the information provided by the plan can and should be satisfied apart from the approval process, and thus the proposed long-term implementation strategy is unnecessary. Because EPA believes that the implementation plan is no longer necessary for approval, and to be consistent with its efforts to streamline the application package, EPA has deleted the proposed requirement for an implementation plan. The schedule for interim approval and the MOA are now separate application components.
A brief description of each of the reorganized components in the final rule is provided below.
1. Transmittal Letter [§ 281.20(a)]
A transmittal letter signed by the Governor of the state must accompany the original state application. This letter serves to transmit the state's formal request for UST program approval, and indicates that the Governor has approved the designated lead state agency for implementation of the UST program.
2. Program Description [§ 281.21]
The program description is intended to provide EPA and the public with basic information on the extent of the state's effort to manage UST systems. During the formal 180-day application review period, EPA must issue a public notice of the tentative decision to approve or disapprove a state program application. As part of that notice, EPA must note the availability for inspection by the public of the state program application. The information in the program description is necessary to ensure that the public is informed of (1) the state's scope and jurisdiction, and (2) the state's plans for implementing an UST regulatory program in lieu of the federal program. Many commenters asked how EPA would use the resource information in the program description. In particular, they were concerned that specific staffing and funding figures would be set by EPA in determining state approval or disapproval. EPA notes that states have been receiving federal grant funds for program development since 1986. These grants, which require matching state funds, have enabled states to develop notification systems, obtain necessary legislation, write regulations and policies, and hire and train staff. In addition, most states now have LUST Trust Fund cooperative agreements that provide funds for corrective action, staff hiring and training, and enforcement and cleanup activities. Through the grants and cooperative agreements, and matching state funds, most states have demonstrated sufficient staffing and management capability for purposes of state program approval.
The program description must address several subjects. First, the scope of the state's UST program is described, including the extent of the state's jurisdiction and whether the state program is a "partial" or "complete" program. Knowledge of program scope is important for approval because the approved state program is formally designated to operate in lieu of the federal program. Thus, the state program must regulate at least the same categories of UST systems and substances as the federal program to avoid non-regulation by states of categories of UST systems that Congress intended to be regulated under the national UST program. The program description also indicates whether the state's authority extends to Indian lands. For those states that do not have authority over their Indian lands, EPA will implement an UST program on those lands.
Although the Agency received no comments on program scope, EPA is providing further clarification of its requirements in this area with regard to partial and complete programs. To demonstrate that the state program covers the same universe as the federal program, the state definitions will be compared to the following six basic terms, defined in Subtitle I, that EPA believes are essential in defining the scope of the federal UST universe. Those six terms, which are defined in Section 9001 of Subtitle I, are: operator, person, release, regulated substances, petroleum, underground storage tank. (Of course, the state may incorporate any of the other terms that are included in the list of definitions in the federal regulations at 40 CFR 280.12.) The Agency does not require the state to use the exact definitions of these terms promulgated in the federal regulations. Broadly written state authorities will be sufficient, although the Agency may ask for a clarification if it is not clear that a state definition includes the same jurisdiction as the federal program. For example, rather than defining "underground storage tank," a statute that could regulate any facility with potential for release into air, soil or ground water would be sufficient.
Section 281.12(a) allows the Administrator to approve either partial or complete state programs as specified in section 9004(a). The definition of a "partial" state program is one that regulates either petroleum tanks only or hazardous substance tanks only. To receive program approval, a partial state program must include within its jurisdiction all of the major categories of UST systems that are addressed within the scope of the federal program for either petroleum tanks or hazardous substance tanks. For instance, a state program only covering petroleum tanks will not be approved if it does not cover retail motor fuel UST systems. The state, however, does not have to have immediate jurisdiction over all categories of petroleum tanks. To be approved in such cases, the state must reach an agreement with EPA in the Memorandum of Agreement on how those tanks not in the state scope will be regulated, and the state also must provide a schedule showing its plan for expanding its jurisdiction so that these tanks will be regulated by the state.
A "complete" state program regulates both petroleum and hazardous substance tanks, and the state must have jurisdiction over at least the same categories of tanks as the federal program. As discussed above, the state may indicate in the MOA how any tank not in its jurisdiction will be covered as long as it provides a schedule for expanding its jurisdiction. Those categories of USTs that EPA had proposed to defer but now regulates in the final technical standards must be included within the scope of the state program. For example, used oil USTs need to be regulated under state programs.
Today's final technical rules do not cover certain UST systems. Because the Agency currently has insufficient information to decide whether to regulate these deferred USTs, the question of what (if any) standards are appropriate will be considered in the future. Deferred UST systems, however, are subject to interim prohibition and the release response and corrective action requirements under the federal program. UST systems storing fuel for emergency generators are subject to all but the release detection requirements. Thus, EPA and the state must agree on how to oversee compliance of the regulatory requirements applicable to any deferred USTs in the MOA. States may want to consider including the list of deferred USTs within their statutory authority from the start to avoid the necessity for future changes to expand their jurisdiction when and if federal regulations for the deferred systems are eventually published.
EPA has exempted by regulation certain other categories of UST systems entirely, and states will not need to include these systems within their jurisdictions in order to have adequate program scope for approval. The categories of USTs that are deferred and exempted are described elsewhere in today's Federal Register.
Today's rulemaking does not hinder states from implementing a state program that is broader in scope than the federal program (section 281.12(a)(3)). A state program, for example, may regulate all heating oil tanks, although tanks used for storing heating oil for consumptive use on the premises where stored are excluded from the federal UST program. In such cases, the additional scope of coverage is not reviewed by EPA as part of the state program approval process. In addition, if EPA were asked to provide enforcement assistance, EPA cannot enforce these additional state requirements. On the other hand, in approved states with requirements (such as release detection) that are more stringent than the corresponding federal requirements, the more stringent requirements are part of the approved program and are federally enforceable (section 281.12(a)(3)).
Second, this program description will also describe the organizational structure of any state and local implementing agencies administering the UST program within a state. The program description must generally identify the major jurisdictional responsibilities, program operation roles, and lines of communication and authority of these implementing agencies. Copies of any Memoranda of Understanding (MOUs) or written agreements for coordination of intra-state responsibilities should be provided.
In addition, the program description should identify the number of persons currently involved in UST program operations, their general functions, and the staff expected to be employed in the near future (if available). State applications should also explain any limitations on hiring or the utilization of existing staff. This information is requested so that the public will be informed of operating constraints when the approval application is made available to the public through the formal review process. This information would rarely be a determining factor in assessing the adequacy of the state's program for regulating the UST system universe. In their response to the proposal, many states commented on their current resource problems. The Agency will not dictate staffing levels for purposes of state program approval.
Third, the program description should explain any plans the state program has for meeting the estimated future costs of administering the program. There will be no minimum base number used by EPA in approving state programs. All states must have some source of funding independent of federal grant monies. The Subtitle I federal grants are provided by Congress as seed money for use by states to initiate program development, among other things. EPA received many comments about the high costs of implementing UST programs in the states. EPA will not expect states to have all necessary funds available at the time of application for approval. As with staffing, EPA will approve states that need to develop additional funding sources, and believes that funding is a longer-term issue that is largely separate and apart from the state program approval process.
In conclusion, EPA does not expect the resource information required in the program description to result in the disapproval of state programs. Only in the unlikely situation where a state clearly has insufficient staff or funds to implement its program will EPA disapprove the state because of inadequate resource levels. The program description, in general, will be used by EPA and the public as background information that will help to ensure that a viable state program does exist. Additional guidance on the program description and the other parts of the application is being made available to states in the form of a State Program Approval Handbook, which EPA has developed to help states implement today's rule.
In the April 17 proposal, EPA required states to include a description of their compliance monitoring and enforcement procedures in the program description. In reorganizing the proposal, EPA is now including compliance monitoring and enforcement as separate parts of the application. The Attorney General's statement (§ 281.25) should include the state's authorities for compliance monitoring and enforcement. The state's demonstration of adequate enforcement (§ 281.22) will ensure that the state has appropriate procedures for implementing those authorities. EPA's criteria for evaluating the adequacy of the state's authorities and procedures are explained under Subpart D of this preamble.
3. Description of Compliance Monitoring and Enforcement Procedures [§ 281.22]
The description of compliance monitoring and enforcement procedures must include information on the state's procedures for UST population identification, general compliance monitoring, and general enforcement response. More specifically, the implementing agency must have systems for: updating and maintaining an inventory of the UST population; collecting and maintaining data on violators and monitoring their subsequent compliance status over time; and exercising legal authorities to take enforcement actions against violators, bring them into compliance, and deter other potential violators.
4. Schedule for Interim Approval [§ 281.23]
States applying for interim approval must include a schedule to propose, finalize, and change the necessary regulations and legislation. The schedule should address major milestones in the program development process, for example, submission of draft legislation, proposal of regulation, and promulgation of final regulations.
5. Attorney General's Statement [§ 281.25]
A fifth component of the state UST program application is a statement from the state Attorney General certifying that state laws and regulations provide adequate authority to implement the required elements of an approved program. The Attorney General's statement is the foundation for ensuring that the state UST program is no less stringent than the federal program. The Attorney General, or an independent legal counsel for the state, must certify that the state laws and regulations provide authority to implement the program described in the application and has legal authorities for compliance monitoring and enforcement that meet the requirements of §§ 281.40-281.43.
6. Memorandum of Agreement [§ 281.24]
The MOA explains EPA's and the lead state agency's respective responsibilities for UST program administration and enforcement. The state staff will develop the draft MOA in close consultation with EPA staff. The MOA will be particularly important if a state is applying for approval of only a partial UST program. In addition, if the state program does not cover the same universe of underground storage tanks as the federal program, the MOA should include an agreement between the state and EPA with regard to how those tank systems not covered by the state program will be regulated.
EPA received comments suggesting that local agencies be allowed to sign the MOA. The MOA, however, is signed only by EPA and the lead state agency because it is important to have all UST program issues within the state coordinated by one lead state agency. The need for coordination makes it impractical for other participating state agencies and all the local authorities to sign the MOA. In addition, EPA is only authorized to approve states.
7. Copies of All Applicable State Laws and Regulations [§ 281.20]
Copies of all applicable state laws and regulations are essential for EPA to evaluate the state program's scope and technical requirements. This information will also serve as the basis for establishing a record of the state laws and regulations regarding USTs in approved states. EPA will codify state programs by incorporating state laws and regulations by reference as part of its final approval of the state program. Codification will enable all interested parties to receive notice of which state laws and regulations comprise the Subtitle I program in approved states. Another reason the Agency codifies state laws and regulations is to clarify the requirements that are effective in that state for purposes of federal enforcement. Once the state program is approved, it operates in lieu of the federal UST program. Therefore, if EPA were to take an enforcement action in an approved state, it would do so using federal authorities but citing violations of state law or regulations.
C. Subpart C -- Criteria for "No Less Stringent" (§§ 281.30 - 281.36)
1. Background.
a. Summary of Public Comments. In the preamble to the April 17 proposal (52 FR 12858), EPA solicited comments on three options for determining whether technical requirements in states seeking approval are no less stringent than the corresponding federal standards. Several states commented on the importance of two goals: establishing flexible criteria for approval of state programs, and clearly identifying the minimum state program requirements in the final state program approval regulation. EPA recognizes that these two goals may often be in tension, and today's final rule attempts to strike a balance between them through the establishment of clear baseline criteria that will accommodate effective existing state UST programs to the greatest extent possible consistent with the statute.
The Agency's preferred option consisted of comparing the overall requirements within each technical program element of the state program to the federal objective for that element. Whether the state program element was no less stringent would be determined by its performance in meeting the overall federal objectives for that element. The two rejected options included (1) a holistic evaluation that would compare the overall stringency of the total state program to the total federal program, which would allow trade-offs between program elements (for example, balancing less stringent financial responsibility with more stringent release detection requirements), and (2) a line-by-line comparison of specific state and federal requirements. In the second of these two options, all the federal requirements would be matched by identical or closely similar state requirements for purposes of state program approval.
Many comments were received on these options for defining "no less stringent." Some commenters felt that only the holistic approach would allow states sufficient flexibility. Some commenters believed that only a line-by-line review would result in no less stringent state programs. Other commenters agreed with the Agency's preference for the element-by-element approach as a balance between flexibility and certainty. EPA carefully reviewed these comments and still prefers the element-by-element approach. This decision was based on EPA's intention (1) to develop a state program approval process that will allow states to use alternative approaches in program development and implementation, and (2) to ensure that state programs meet the baseline standards established in the federal program to protect human health and the environment.
In the preamble to the April 17 proposal, EPA requested comment on whether to include state approval criteria in regulation or guidance. Many commenters wrote, and the Agency agrees, that including the criteria in regulation would ensure needed consistency and clarity in approving state programs. Subpart C of today's final rule provides the criteria all states must meet before receiving approval, and that EPA will use in judging each state application.
In its supplemental Federal Register notice of December 23, 1987, EPA proposed criteria for state program approval in the form of objectives for each of the eight technical program elements: new UST system design, construction, installation and notification; upgrading existing UST systems; general operating requirements; release detection; release reporting and investigation; corrective action; out-of-service and closed UST systems; and financial responsibility. Through the process of identifying the underlying purpose of the federal technical requirements in each program element, EPA developed the proposed federal objectives. The Agency's own interpretation of administrative and procedural details that were in the technical rule were intentionally left out of the federal objectives.
These objectives represented the Agency's expectations of what constitutes a no-less-stringent state program. By requiring the state to achieve the objectives underlying the detailed federal requirements in each element rather than match each regulatory detail of the federal requirements, EPA provides a performance-based measure for evaluating programs and recognizes that the precise details in the federal program are not the only feasible approach to UST regulation. By establishing these objectives, EPA also provides a framework for approval that guarantees that each state UST program provides a minimum level of protection.
Many comments were received on EPA's proposal to use the objectives as criteria for state program approval. Many commenters agreed with the objectives approach and felt that objectives would allow development of regulations appropriate to the geographical characteristics and the profile of the regulated community of each individual state. Some commenters agreed with the objectives approach, but they suggested that the objectives needed to be more specific in several areas. The Agency has reviewed each of the objectives and provided greater specificity for several of them. More details and guidance are included in today's preamble in the section-by-section discussion of the objectives for each program element. Other commenters expressed concern that the objectives not be confused with regulations and emphasized that the objectives should be viewed by the states as no less stringent review criteria, but not as the model to be copied into state regulations. EPA agrees with these commenters and, in the following section, has provided further guidance on how states should develop regulations that will meet the performance goals set out in the objectives. Furthermore, the Agency has developed a Handbook for State Program Approval that will give more guidance and clarification on meeting the objectives.
One commenter discussed the legality of the federal objectives approach. This commenter argued that the approach was illegal, saying that Congress did not authorize EPA to create a subset of the federal requirements that would be used to assess the adequacy of state programs. However, EPA does not agree with the commenter who argued that the federal objectives and element-by-element approach promulgated today are inconsistent with Congressional intent. First, under today's rule, EPA is not, contrary to the commenter's suggestion, picking and choosing a subset of federal requirements by which to judge the stringency of state UST programs. Instead, the federal objectives and the element-by-element approach are designed to identify, on a holistic basis, the environmental performance standards to be achieved by the technical requirements in each program area. State programs will be required to achieve the performance standard for each program area rather than match each detail in the federal rule. EPA does not believe that the environmental objectives approach set out in today's rule will result in the approval of state UST programs that are less stringent than the federal UST program.
Second, the language of section 9004 is consistent with the federal objectives and element-by-element approach promulgated in today's rule. Section 9004(b) requires EPA to judge the stringency of state programs by comparing the state requirements in seven program areas to the corresponding federal standards. Nothing in the statutory language suggests that a line-by-line comparison must be made between individual state requirements and corresponding federal regulations. Rather, paragraphs (a) and (b) of section 9004, when read together, strongly suggest that the relevant comparison is to the standard set in each federal program area.
Consistency among state programs was an objection raised by many commenters who are concerned that UST programs that vary from state to state will create an excessive compliance burden on those members of the regulated community operating in more than one state. These commenters believe some flexibility for states is useful, but that uniformity and consistency are equally important. Some commenters pointed out that the federal technical rule is the result of extensive research and analysis, and they suggested that states should be encouraged to adopt the federal standards.
EPA does not believe, however, that the specific federal requirements in the technical rule provide the only definitive approach for protection of human health and the environment. Many of the specific details of the federal regulations are necessary to establish requirements that the regulated community can follow and that the Agency can enforce. State regulations must accomplish the same underlying goals that the federal requirements aim to achieve. If a state chooses to accomplish them using different methods or administrative procedures than the federal government, however, EPA does not believe that that choice should preclude program approval.
b. The Technical Standards Rule and State Program Approval. The details provided in the technical rule had to be included so that the regulated community could understand specifically what had to be done to comply with federal requirements, and so that the regulations could be enforceable by EPA. Given the nature of the state program approval process, EPA is aware that state program reviews will inevitably entail some comparison of specific federal and state technical requirements because EPA's technical requirements provide a model against which the state program can be measured. The Agency is concerned that requiring such a line-by-line review of state programs would result in delays that would be due to issues having little to do with that actual stringency of the state program or its overall performance. Thus, in order to establish the federal objectives for each program element, EPA distinguished between those requirements in its technical standards that are substantive baseline environmental standards from those procedural and administrative requirements that are necessary to protect human health and the environment, but are not the only approach for doing so. The former only are the basis for state program approval under the "no less stringent" standard. The latter may also be advised through a variety of approaches established by the implementing agency in states that have not yet received program approval.
In the Supplemental Notice, EPA requested comment on whether changes were needed in several provisions of the proposed UST technical standards to ensure the intended flexibility was available for the approval of states that are no less stringent. These changes would allow states to substitute their own procedural and administrative requirements for those set forth by EPA in the federal technical standards. Many commenters supported allowing states additional latitude in this exercise of administrative discretion, specifically as pertains to the development of administrative and procedural requirements. In considering this issue, EPA noted that several state and local programs are already implementing varying procedural and administrative requirements that appear to be effective. For the above reasons, EPA has decided to integrate this additional decision-making authority into the final technical rule. (See the preamble discussion in support of that rule elsewhere in today's Federal Register notice.)
c. Achieving the Objective. In developing a state UST program, EPA believes all states will have the same problem the Agency had in defining sufficiently clear requirements so that the regulated community will understand their responsibilities under the rules and can be held to comply with them. UST system owners and operators, the interested public, and state inspectors will need to know and be able to understand the minimum state requirements that apply to the complete operation (from installation to closure) of all UST systems. However, the final objectives promulgated in today's state program approval regulations do not, and were not meant to, restrict states to all the specific details of the federal program. EPA intends to allow states to choose a number of methods that will establish UST programs with clear, understandable requirements. The three major methods are discussed below.
First, a state may adopt or incorporate by reference today's final technical regulations. EPA already has some indications that several states plan to do this. These technical requirements have been developed with the thought that state programs may use them as the model for their state UST regulations. This approach is the simplest and takes advantage of the effort made by EPA to develop implementable and environmentally protective regulations.
Second, a state may develop a different regulatory approach that is, however, analogous to the federal program because it satisfies the performance objectives for each program element. EPA's final technical requirements reflect administrative and technical decisions that do not always have to be duplicated for a state program to be no less stringent in performance. For example, the federal requirements for new UST system installations mandate the use of nationally accepted codes. The same performance objective (sound installations at all new USTs) may be achieved if the state simply requires owners and operators to use certified installers and the state has a system of licensing or certifying installers that includes adherence to these same codes. If a state uses another approach or requires a different method than that specified under the federal program, the state must demonstrate that it has achieved the federal objective within that program element to be accepted to operate "in lieu of" the federal program.
In adopting this second approach, the state may develop different regulations that provide as specific and clear directions for the owners and operators as do the federal requirements. One advantage of this method of rulemaking that the regulated communities will understand their responsibilities and can be held to comply with them.
Alternatively, a state may choose to promulgate regulations that are more general and then supplement these with detailed policies and guidelines to instruct the regulated community and the public of its requirements and procedures for implementing the regulations. These general requirements must at least provide the state with authority to hold all UST system owners and operators responsible for achieving the overall performance goals provided in the objectives, even if the state regulations do not specify exactly how to meet each performance goal. This method of rulemaking, however, has a significant disadvantage in that it may increase the state's implementation burden because, to be enforceable, any such general requirements must be supplemented by other state actions that ensure adequate clarification of how, at a minimum, to achieve the performance goal. Supportive actions could consist of state administrative policies, technical interpretations, procedures, or guidelines that more clearly establish how the general requirements can be met. For example, if the state regulations require the use of only approved methods of release detection, then some system for review and approval of release detection methods must be developed by the state that will not result in approval of methods less stringent than those allowed under the federal program.
Several commenters on the December 23 supplemental notice expressed concerns about this type of state approach and whether state guidelines should be sufficient for program approval as opposed to detailed state regulatory requirements. Several other commenters felt that procedures and guidelines would be adequate to demonstrate the adequacy of a state program and that this could significantly expedite program approvals, thus allowing the state to concentrate its resources on cleanups and other necessary activities. Two commenters objected to allowing state guidelines or procedures to replace state regulations for given requirements. One of these commenters wrote that regulations and statutes should be required in order to eliminate the possibility of an informal change in policy or of enforcement problems. The other commenter felt that, in order to provide fair notice and clarity of state methods, such guidelines or procedures must be submitted for public notice and comment.
In response to those commenters who expressed concerns over whether state guidelines should be sufficient for purposes of program approval, EPA is clarifying that guidelines are not a substitute for regulations. Guidance documents and written policies are not generally enforceable, while regulations do have the force of law. However, because EPA's Subtitle I program approval process focuses on whether a state program meets federal performance objectives, an approvable program will not need to have the same level of detail and specificity in regulations that would be required if the approach to program approval involved a comparison of individual state requirements with the federal standards. State requirements that meet the underlying federal objectives are sufficient for approval in terms of meeting the no less stringent criteria, irrespective of whether or not they are supplemented with additional guidance or procedures. However, if the state does not provide specific enough direction to the regulated community and public on how to implement the state regulations, the state may not receive approval for their UST program. General regulations are difficult to enforce because the vagueness and lack of specificity may confuse owners and operators who will then be less likely to try and comply with them. Without the ability to provide adequate enforcement through clear direction, the state program will not be approvable. One of the criteria for withdrawing approval of state programs (section 281.60(1)) is the lack of ability to enforce state regulations; thus, it is also a criterion for approval. An instance of where clear direction might be needed occurs in the objective for release investigation, confirmation and reporting, which says that a state must have standards that require prompt reporting of confirmed releases. The state should define what "prompt" is using a number so that the owners and operators have a clear direction on when such reporting must be done and so that the state has the ability to determine and then to enforce a violation of this reporting requirement. Therefore, where specific state standards are not embodied in statute or regulations, the Agency will consider policies or guidance documents submitted with the state application for approval if they are used to support applicable general state regulations.
Third, a state can use, for example, a combination of the above approaches that copies some elements of the federal program in some elements, and uses a different regulatory approach in other program elements. The state program will have met the no less stringent criteria for state program approval if the regulations within each element achieve the performance objectives for those elements.
d. State Approaches to Ground-Water Classification. EPA recognizes that releases from UST systems located in certain sensitive areas could pose a greater risk to human health and the environment than other areas. In developing the technical regulations, the Agency considered and requested comments on a federal classification approach under which a class or classes of UST systems located in higher-risk areas would be subject to more stringent requirements than UST systems located in less sensitive areas. After careful consideration of this issue, EPA rejected the concept of a federal ground-water classification scheme in promulgating the final technical regulations for underground storage tanks. (This is discussed in more detail in the technical standards rule, published elsewhere in today's Federal Register.) The Agency strongly believes that the classification of ground water must be based on highly localized hydrogeological circumstances and, therefore, that classification should be a state-or locally-initiated activity. The Agency has also concluded that criteria for a national scheme of classification (that is, one that could encompass all the conditions across the country) could not be developed and feasibly applied to the national UST program.
A classification approach to regulating UST systems at state or local levels, however, where local environmental conditions are better known, may be feasible and appropriate; such a classification approach could result in improved environmental management. For example, several states have karst or limestone areas where contamination, once released, is nearly impossible to contain. In such areas, the state is free to consider whether secondary containment with interstitial monitoring could provide enhanced leak detection and better prevent releases in these sensitive areas. Under today's approach to program approval, the Agency allows, but does not require, states to develop a classification approach for use in determining whether more stringent leak detection and containment standards should apply to UST systems being located in sensitive or high-risk areas. States that have already developed a classification system may decide to use it to regulate USTs. Under today's final rule for state program approval, the federal objectives must be the minimum requirements in all areas of the state for the program to be determined "no less stringent" than the federal program; however, states could use a classification scheme to establish standards for certain areas that are more stringent than those under the federal program.
e. The Use of State Variances in Approved Programs. The Agency solicited comment on the use of technology- and risk-based variances in the preamble to the proposed EPA technical standards rule (52 FR 12739 and 48641). Technology-based variances are included in the federal technical regulations (published elsewhere in today's Federal Register). For example, the release detection standards allow owners or operators to use non-specified methods of release detection if they can demonstrate to the implementing agency, or if the implementing agency otherwise determines, that the alternative method will achieve performance that is as effective as the allowed methods. Risk-based variances would allow less frequent or alternative approaches to release detection of protected tanks in areas where the risk to human health and the environment is believed to be lower (for example, where ground water is deep and not vulnerable to contamination). The Agency has decided not to include risk-based variances in the federal technical standards rule because it is the Agency's experience that variances based on site characteristics are generally difficult to justify and implement. In a regulated community the size of the national UST community, such a provision would be practically impossible for EPA to implement throughout the nation. Instead, the Agency has developed national standards that set a baseline of protection in all areas.
This subject also arises in connection with state program approval. In the December 23, 1987 Supplemental Notice (52 FR 48645), the Agency solicited comments on whether state programs should be approved if they had a variance procedure for owners and operators of petroleum UST systems that allowed alternative and less stringent release monitoring methods in lower risk areas (for example, a state could prospectively classify such lower risk areas). The Agency received some comments in favor and some in opposition to this approach. In reviewing these comments, the Agency has decided not to allow approval of state programs that do not maintain the minimum federal objectives in all areas of the state. An important reason for not accepting the use of less stringent release detection in "lower risk areas" is the difficulty in clearly establishing what constitutes a lower risk. Several state officials commented that they would not be allowed by the public to "write-off" less vulnerable areas. Another commenter questioned the judgment of classifying lower risk areas based on ground water because a safety and health hazard (explosive or toxic gases) could be present at any site with a release. EPA agrees that the final technical standards for release detection have been developed to enable the early detection and minimization of all releases to ensure that present and future ground water uses are protected at all sites and that all health and safety threats are avoided. The state requirements can do no less if they are to be considered no less stringent. For this reason, today's final state program approval objectives for no less stringent programs do not allow approval of states if these states permit less stringent release detection in areas that are described or classified as less vulnerable, whether on a case-by-case or class basis.
If a state program includes a variance procedure, it can still be approved if the state can demonstrate that its eligibility criteria and procedures for reviewing site-specific or more general technology-type variance requests will ensure no less stringent protection of human health and the environment. However, if a state allows variances, it must agree to issue them only in a manner that is no less stringent in protecting human health and the environment as the federal program. Terms of this agreement will be specified in the MOA included in the state program application.
Following is a more detailed explanation of the objectives associated with approval of no-less-stringent state program elements.
2. New UST Systems and Notification [§ 281.30]
EPA has concluded that an important objective of the national UST program is for all new UST systems to be designed, constructed, installed, and protected from corrosion in a manner that will prevent releases during their operating life. Also, certain notification requirements should be met when new USTs are installed. States can achieve this objective in several ways: adopt the same new UST system requirements found in the federal technical standards; require new UST systems to be built and installed in accordance with nationally recognized industry designs and standards by incorporating the applicable national codes and practices directly into state requirements; or adopt such codes by reference into state regulation. The proposed federal objective for new UST systems has been revised somewhat to reflect changes made in the final technical standards and public comment received on the proposed objective. The objectives for design and construction have been merged with the installation objective to emphasize the common reliance on established codes in today's final technical standards rule.
Some commenters were concerned that a general dependence on current national consensus codes would not be protective of the human health and the environment. As discussed in the preamble to the technical standards rule, published elsewhere in today's Federal Register, EPA does not agree. The Agency's analysis of these industry codes and practices, public comments on the proposal, and new information on the causes of releases from UST systems has led to the conclusion that implementation of these nationally recognized codes will protect human health and the environment. EPA notes that several of these codes for new UST system design, construction, and installation have been revised and improved since the publication of EPA's proposed technical requirements on April 17, 1987.
Another commenter was concerned that state requirements adopting current industry codes will not reflect future improvements in technology when they occur. The Agency believes the current industry codes and standards are already protective of human health and the environment. If a state adopts current codes and those codes are later updated and improved in response to new knowledge and technological developments, the state may decide to adopt the revised code, but it will not generally be required to do so for purposes of program approval. They may need to submit program revisions in the future, however, if the federal technical standards are revised based on a new code.
One commenter suggested that EPA specify which industry standards were acceptable. The commenter believed that EPA should not assume that all standards developed by all national groups were adequate. For each element in which codes have been developed, the final federal technical standards list the appropriate codes that may be used for purposes of compliance.
The federal objective concerning spill and overfill equipment (§ 281.30(b)) requires that the state program ensure that all owners and operators of new UST systems install equipment to prevent spills and tank overfills. In addition, when tanks are upgraded, such equipment must be installed as part of the upgrade. The proposed objective (§ 281.32(b)) was modified to reflect changes in the final technical rule. The federal requirement for spill and overfill equipment was originally contained in Subpart C, General Operating Requirements. In today's final technical standards rule, this requirement for equipment has been moved to Subpart B, UST System Design, Construction, Installation and Notification. To remain consistent with this formatting change in the federal technical standards rule, the final objective for spill and overfill equipment has been included with the objectives for New UST Systems in the state program approval rule (§ 281.30(b)).
To be no less stringent in this area, the state must have requirements that all new tanks must have spill and overfill equipment (except as noted below). Equipment to provide such protection includes small catchment basins for spills, and alarms, automatic flow restrictors, or shutoff devices for overfill prevention. A provision has been added to clarify that states do not have to require spill and overfill equipment on tanks that are manually filled through the addition of less than 25 gallons of product at a time (for example, used oil storage collection tanks at service stations that are manually filled in small volumes). This change recognizes the limited equipment exemption that has been added to the final EPA technical standard concerning spill and overfill equipment.
The proposal allowed state substitution of requirements on transporters in lieu of spill and overfill equipment. Several commenters were concerned that this provision could interfere with current regulations set forth by the U.S. Department of Transportation, and that they would also not provide sufficient spill and overfill protection. EPA agrees that this problem cannot be adequately solved by procedures required on the transporters alone and that requiring UST preventive equipment is more protective. Therefore, the final objective has been revised to no longer allow for substitution of procedural requirements on transporters in lieu of spill and overfill equipment on the UST system.
The federal objective concerning the notification requirement (§ 281.30(c)) is that the state program ensures that all owners of new UST systems notify the implementing agency of the UST's existence. Under section 9002 of RCRA, this notification requirement already has been implemented nationally for existing UST systems. Owners of existing and new UST systems were required to notify the designated state agency of the existence, age, size, type, use and location of their USTs beginning May 1986. Therefore, states may be approved if they only require owners and operators of new UST systems to notify the state agency because notifications of existing USTs have