Underground Storage Tanks

Overview

The Regional Review Team, which includes the UST Program Manager, staff representatives from UST program, and a Regional UST Attorney, is responsible for reviewing State program approval applications, working with the State to reach agreement on any outstanding issues, and recommending approval decisions to the Regional Administrator, through the appropriate Regional Division Director. Regions are not required to consult with OUST on recommended decisions unless the Region is planning not to approve a State program.

Review and discussion of States' laws regarding underground storage tanks should begin as the State is developing its application. The Regional Review Team will identify deficiencies in State laws as soon as possible so that States will have adequate time to make necessary legislative modifications and still receive timely program approval. As the first step in program approval, statutory and regulatory review assures the States of being able to develop an official program approval application with confidence. After review of the statutes and regulations the Region, following consultation with the Regional UST Attorney, should conduct a meeting with the States' Attorney General (or staff) to discuss any deficiencies found in the law. Some Regions may wish to have the Regional UST Attorneys take the lead in setting up such a meeting; this can be a Regional determination. Following this meeting, the Regions should inform the State of the Agency's concerns regarding unresolved issues.

As States proceed toward program approval, the Regions must provide on-going assistance, working closely with the States to ensure adequacy and completeness of the various components of the State's draft application for program approval. A thorough review of the various components of the draft application should begin in the Regions as soon as each is completed by the State. These pre-application reviews should be timely, with written comments forwarded to the State within three weeks from date of receipt. This process alerts the State very early to issues which could later cause a delay in review and approval of the official application.

Before the State application process began, OUST was responsible for determining national decision-making criteria for "no less stringent" and "adequate enforcement". Other Headquarters offices, such as the Office of General Counsel (OGC), the Office of Enforcement (OE), and the Office of Waste Programs Enforcement (OWPE), were also responsible for assisting OUST in this task. During the application review process, OUST, OGC, and OE serve as resources for the Regions to assist them upon request. Headquarters offices may make comments on applications but do not have a formal concurrence role with respect to the Regional Review Team recommendation.

Exhibit 3 displays the interaction between the Regional Review Team and the other participants in the review process. The following sections more fully describe the roles suggested for each of the participants.

OSWER DIRECTIVE 9650.12

Exhibit 3

OSWER DIRECTIVE 9650.12

Regional Review Team Members

Composition of the Regional Review Team will likely vary from Region to Region. Team members will necessarily reflect the UST staffing levels and Regional needs and priorities. We suggest that the team be comprised, for example, as follows: Regional UST Program Manager (Chairperson); Regional person representing UST enforcement; Regional person representing LUST Trust Fund policies; Regional person representing the UST program; and a Regional UST Attorney. Please note that in practice, one Regional person may be wearing several hats, e.g., UST enforcement, LUST Trust Fund, and UST program. In many Regions, the UST staff is responsible for UST enforcement. Some Regions may also wish to have a technical standards expert on the Review Team.

The following elaboration of the roles of the Regional Review Team members is meant to suggest one possible way in which the review process might be handled. The Regional Review Team should adopt specific procedures which best suits its particular organization.

• The Regional UST Program Manager

  -- Conducts pre-application activities such as selling State Program Approval to key State managers and Attorney General's Office. Provides any necessary testimony before State Legislature to support new legislation or amendments relevant to the UST program.

  -- Attempts to resolve any issues before the State application is formally submitted. Manages the initial review to determine if the State application is complete. If necessary, staff works with the State to supply information missing from the application. Notifies the State Program Contact when the application is declared complete. Transmits complete application to Regional Review Team and tracks review cycle.

  -- Chairs the Regional Review Team meetings. Responsible for negotiating and resolving remaining issues with the State Program Contact. Recommends an approval decision (tentative and final) to the Regional Division Director and the Regional Administrator. Documents the final position of each member of the Review Team, especially any reasons to support a recommendation for disapproval, if any.

  -- Manages the public comment process, and conducts a public hearing if necessary. Sends copies of all public comments to the Review Team and the State Program Contact. Works with the State Program Contact to respond to any issues raised by the commenters.

• Regional UST Attorney

  -- Responsible for conducting pre-application review activities, including review of State statutes and early drafts of State regulations. However, it is not the Regional UST Attorney's role to review these documents independently. They should first be reviewed by the State UST Attorney, State program officials, and Regional program officials. Potential problems should be highlighted and discussed prior to eliciting Regional UST Attorney involvement.

  -- Regional UST Attorney should keep in mind that all reviews should proceed using a "no less stringent" approach, as opposed to the "equivalent and consistent" approach more common to RCRA Subtitle C-type reviews.

  -- While the ultimate decision on the approvability of the program rests with the Regional Administrator, the Regional UST Attorney is responsible for advising him/her on that decision.

  -- The Regional UST Attorney will be most heavily involved in reviewing the Attorney General's Statement to determine the adequacy of the State's legal authorities.

  -- Determination of a State's capabilities will largely be left to the Regional UST Program Manager, who should consult with the Regional UST Attorney in assessing State capabilities, particularly capabilities dependent upon legal authorities. The Regional UST Attorney may need to meet with a representative from the State Attorney General's Office to resolve outstanding issues.

• Other Regional Team Members

  -- Responsible for conducting pre-application review activities, including review of State statutes and early drafts of State regulations. The review of State statutes and regulations should be done after the state has had an opportunity to involve its attorney in the process, and should be done prior to (or at least in conjunction with) an EPA attorney's review.

  -- Responsible for reviewing the substance of the State application and making approval recommendations to the Regional UST Program Manager. Participate in all Review Team meetings and also attend the briefing for the Regional Administrator. Review public comments and advise Regional UST Program Manager in responding to any issues raised by the commenters.

  -- Highlight issues for review by Regional UST Attorneys.

OSWER DIRECTIVE 9650.12

State Applicant

• State Program Contact

  -- Submits early drafts of application components for pre-application review so that any problems may be identified and rectified as quickly as possible.

  -- Submits an official application, preferably using the standard form developed by OUST. (The standard application form is optional; States may tailor the application format to suit their needs.) Responds to requests from the Regional UST Program Manager for missing components or additional information needed to complete the application. Discusses all potential issues with the Regional UST Program Manager as they arise during the review of the application. Attends the briefing for the Regional Administrator on any outstanding issues, along with the State Agency Director. Receives copies of any written public comments from the UST Program Manager and works with the Program Manager to respond to any issues raised by the commenters.

• State Agency Director

  -- Meets with the Regional Division Director or Regional Administrator/Deputy Regional Administrator to pursue negotiation of problems if the State Program Contact cannot resolve major issues with the Regional UST Program Manager.

• State Attorney General

  -- State Attorney General involvement is essential from the preapplication stage through final program approval. The Attorney General must work with the State program in developing State laws and regulations that will ultimately meet EPA standards. Regional UST Attorneys generally will not review proposed or draft State statutes and regulations until a State attorney has reviewed them with an eye toward meeting the State Program Approval requirements.

OSWER DIRECTIVE 9650.12

Headquarters Offices

As described earlier, Headquarters offices have a major role to play in developing national decision criteria (i.e., the criteria Regions apply when evaluating State applications), but only a relatively minor role in implementation of these decision criteria during the review of individual State program applications.

• Office of Underground Storage Tanks

  -- OUST will be available during the pre-application phase for consultation and will review State program applications when referred by the Regions.

  -- OUST must be consulted if the Regional Administrator expects to make a negative determination on a State's application. (This consultation procedure is required by the terms of the existing delegation of authority from the Administrator to the Regional Administrator.)

OUST formed a project team to conduct a study on the State Program Approval process after the first complete State Program Approval applications were received, and to determine how improvements to the State Program Approval process could most effectively be made. The team concluded that there was little need to change the performance objectives; that major improvements could be realized by training Regional staff in procedures for developing State Program Approval applications with States and procedures for application review, and improving the lines of communication between OUST Headquarters and the Regional UST offices. Therefore,

• Office of General Counsel

  -- OGC is available during the pre-application phase for consultation and will review State program applications when referred by the Regions through OUST.

  -- The Regional UST Attorney on the Regional Review Team may choose to consult with OGC as necessary on any State application.

  -- OUST will consult with OGC on an "exceptions" basis as specific legal issues arise that affect more than one State or Region.

• Office of Enforcement

  -- OE is available during the pre-application phase and the formal review process for consultation on the adequacy of State enforcement procedures.

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