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 -- PART 281--Approval of State Underground Storage Tank Programs

(1) The Administrator may approve state programs with requirements less stringent than the federal requirements for a period of 1 to 3 years from [insert date of promulgation of regulations under Part 280]. Such interim approval may be granted only if state regulatory and/or legislative change is required in order for the state program to be no less stringent than the federal requirements and standards under Part 280 for one or more of the following program elements: release detection at existing UST systems; release reporting and investigation; and out-of-service or closed UST systems.

(1) The Administrator may approve either partial or complete state programs. A "partial" state program regulates either solely UST systems containing petroleum or solely UST systems containing hazardous substances. If a "partial" state program is approved, EPA will administer the remaining part of the program. A "complete" state program regulates both petroleum and hazardous substance tanks.

(2) EPA will administer the UST program on Indian lands, except where Congress has clearly expressed an intention to grant a state authority to regulate petroleum and hazardous substance USTs on Indian lands. In either case, this decision will not impair a state's ability to obtain program approval for petroleum and/or hazardous substances on non­Indian lands in accordance with this Part.

(3) Nothing in this subpart precludes a state from:

(1) The definitions in Part 280 apply to all subparts of this Part.
(2) For the purpose of this Part, the term "interim approval" means the approval received by a state program that meets the requirements in section 281.11 (c) (1) and (2) for the time period defined in section 281.11 (c) (3).
(3) For the purposes of this Part the term "final approval" means the approval received by a state program that meets the requirements in section 281.11 (b).

(1) whether the state program regulates UST systems containing petroleum or hazardous substances, or both;
(2) whether the state is applying for interim or final approval;
(3) whether the state program is more stringent or broader in scope than the federal program, and in what ways; and
(4) whether the state has any existing authority over Indian lands or has existing agreements with Indian tribes relevant to the regulation of underground storage tanks.

(a) A state must submit a written demonstration from the Attorney General that the laws and regulations of the state provide adequate authority to carry out the program described under section 281.21 and to meet other requirements of this Part. This statement may be signed by independent legal counsel for the state rather than the Attorney General, provided that such counsel has full authority to independently represent the state Agency in court on all matters pertaining to the state program. This statement must include citations to the specific statutes, administrative regulations, and where appropriate, judicial decisions that demonstrate adequate authority to regulate and enforce requirements for UST systems. State statutes and regulations cited by the state Attorney General must be fully effective when the program is approved.
(b) If a state currently has authority over underground storage tank activities on Indian Lands, the statement must contain an appropriate analysis of the state's authority.

(a) Be designed, constructed, and installed in a manner that will prevent releases for their operating life due to manufacturing defects, structural failure, or corrosion.
[Note: Codes of practice developed by nationally­recognized organizations and national independent testing laboratories may be used to demonstrate that the state program requirements are no less stringent in this area.];
(b) Be provided with equipment to prevent spills and tank overfills when new tanks are installed or existing tanks are upgraded, unless the tank does not receive more than 25 gallons at one time.
(c) All UST system owners and operators must notify the implementing state agency of the existence of any new UST system using a form designated by the state agency.

(a) Prevent spills and overfills by ensuring that the space in the tank is sufficient to receive the volume to be transferred and that the transfer operation is monitored constantly;
(b) Where equipped with cathodic protection, be operated and maintained by a person with sufficient training and experience in preventing corrosion, and in a manner that ensures that no releases occur during the operating life of the UST system;
[Note: Codes of practice developed by nationally-recognized organizations and national independent testing laboratories may be used to demonstrate the state program requirements are no less stringent.]
(c) Be made of or lined with materials that are compatible with the substance stored;
(d) At the time of upgrade or repair, be structurally sound and upgraded or repaired in a manner that will prevent releases due to structural failure or corrosion during their operating lives;
(e) Have records of monitoring, testing, repairs, and closure maintained that are sufficient to demonstrate recent facility compliance status, except that records demonstrating compliance with repair and upgrading requirements must be maintained for the remaining operating life of the facility. These records must be made readily available when requested by the implementing agency.

(a) General Methods. Release detection requirements for owners and operators must consist of a method, or combination of methods, that is:

(b) Phase-in of requirements. Release detection requirements must, at a minimum, be scheduled to be applied at all UST systems:

(c) Requirements for Petroleum Tanks. All petroleum tanks must be sampled, tested, or checked for releases at least monthly, except that:

(d) Requirements for Petroleum Piping. All underground piping attached to the tank that routinely conveys petroleum must conform to the following:

(e) Requirements for Hazardous Substance UST Systems. All UST systems storing hazardous substances must meet the following:

(a) Promptly investigate all suspected releases, including:

(b) promptly report all confirmed underground releases and any spills and overfills that are not contained and cleaned up.
(c) ensure that all owners and operators contain and clean up unreported spills and overfills in a manner that will protect human health and the environment.

(a) All releases from UST systems are promptly assessed and further releases are stopped;
(b) Actions are taken to identify, contain and mitigate any immediate health and safety threats that are posed by a release (such activities include investigation and initiation of free product removal, if present);
(c) All releases from UST systems are investigated to determine if there are impacts on soil and ground water, and any nearby surface waters. The extent of soil and ground-water contamination must be delineated when a potential threat to human health and the environment exists.
(d) All releases from UST systems are cleaned up through soil and ground water remediation and any other steps, as necessary to protect human health and the environment;
(e) Adequate information is made available to the state to demonstrate that corrective actions are taken in accordance with the requirements of (a) - (d) above. This information must be submitted in a timely manner that demonstrates its technical adequacy to protect human health and the environment; and
(f) In accordance with section 280.67, the state must notify the affected public of all confirmed releases requiring a plan for soil and ground water remediation, and upon request provide or make available information to inform the interested public of the nature of the release and the corrective measures planned or taken.

(a) Removal from Service. All new and existing UST systems temporarily closed must:

(b) Permanent Closure of UST Systems. All tanks and piping must be cleaned and permanently closed in a manner that eliminates the potential for safety hazards and any future releases. The owner or operator must notify the state of permanent UST system closures. The site must also be assessed to determine if there are any present or were past releases, and if so, release response and corrective action requirements must be complied with.
(c) All UST systems taken out of service before the effective date of the federal regulations must permanently close in accordance with (b) when directed by the implementing agency.

(a) In order to be considered no less stringent than the federal requirements for financial responsibility for UST systems containing petroleum, the state requirements for financial responsibility for petroleum UST systems must ensure that: (1) owners and operators have $1 million per occurrence for corrective action and third-party claims in a timely manner to protect human health and the environment; (2) owners and operators not engaged in petroleum production, refining, and marketing and who handle a throughput of 10,000 gallons of petroleum per month or less have $500,000 per occurrence for corrective action and third-party claims in a timely manner to protect human health and the environment; (3) owners and operators of 1 to 100 petroleum USTs must have an annual aggregate of $1 million; and (4) owners and operators of 101 or more petroleum USTs must have an annual aggregate of $2 million.
(b) Phase-in of requirements. Financial responsibility requirements for petroleum UST systems must, at a minimum, be scheduled to be applied at all UST systems on an orderly schedule that completes a phase-in of the financial responsibility requirements within 18 months after the effective date of the federal regulations.
(c) States may allow the use of a wide variety of financial assurance mechanisms to meet this requirement. Each financial mechanism must meet the following criteria in order to be no less stringent than the federal requirements. The mechanism must: be valid and enforceable; be issued by a provider that is qualified or licensed in the state; not permit cancellation without allowing the state to draw funds; ensure that funds will only and directly be used for corrective action and third party liability costs; and require that the provider notify the owner or operator of any circumstances that would impair or suspend coverage.
(d) States must require owners and operators to maintain records that demonstrate compliance with the state financial responsibility requirements, and these records must be made readily available when requested by the implementing agency.

(a) Any authorized representative of the state engaged in compliance inspections, monitoring, and testing must have authority to obtain by request any information from an owner or operator with respect to the UST system(s) that is necessary to determine compliance with the regulations.
(b) Any authorized representative of the state must have authority to require an owner or operator to conduct monitoring or testing.
(c) Authorized representatives must have the authority to enter any site or premises subject to UST system regulations or in which records relevant to the operation of the UST system(s) are kept, and to copy these records, obtain samples of regulated substances, and inspect or conduct the monitoring or testing of UST system(s).
(d) State programs must have procedures for receipt, evaluation, retention, and investigation of records and reports required of owners or operators and must provide for enforcement of failure to submit these records and reports.
(e)(1) State programs must have inspection procedures to determine, independent of information supplied by regulated persons, compliance with program requirements, and must provide for enforcement of failure to comply with the program requirements. States must maintain a program for systematic inspections of facilities subject to regulations in a manner designed to determine compliance or non-compliance, to verify accuracy of information submitted by owners or operators of regulated USTs, and to verify adequacy of methods used by owners or operators in developing that information.
(e)(2) When inspections are conducted, samples taken, or other information gathered, these procedures must be conducted in a manner (for example, using proper "chain of custody" procedures) that will produce evidence admissible in an enforcement proceeding, or in court.
(f) Public effort in reporting violations must be encouraged and the state enforcement agency(ies) must make available information on reporting procedures. State programs must maintain a program for investigating information obtained from the public about suspected violations of UST program requirements.
(g) The state program must maintain the data collected through inspections and evaluation of records in such a manner that the implementing agency can monitor over time the compliance status of the regulated community. Any compilation, index, or inventory of such facilities and activities shall be made available to EPA upon request.

(a) Any state agency administering a program must have the authority to implement the following remedies for violations of state program requirements:

(b) The burden of proof and degree of knowledge or intent required under state law for establishing violations under paragraph (a) (3) of this section, must be no greater than the burden of proof or degree of knowledge or intent that EPA must provide when it brings an action under Subtitle I of the Resource Conservation and Recovery Act.
(c) A civil penalty assessed, sought, or agreed upon by the state enforcement agency(ies) under paragraph (a) (3) of this section must be appropriate to the violation.

(a) Authority that allows intervention analogous to Federal Rule 24 (a) (2), and assurance by the appropriate state enforcement agency that it will not oppose intervention under the state analogue to Rule 24 (a) (2) on the ground that the applicant's interest is adequately represented by the State.
(b) Authority that allows intervention as of right in any civil action to obtain the remedies specified in 281.41 by any citizen having an interest that is or may be adversely affected; or
(c) Assurance by the appropriate state agency that:

(a) States with approved programs must furnish EPA, upon request, any information in state files obtained or used in the administration of the state program. This information includes:

(b) EPA must furnish to states with approved programs, upon request, any information in EPA files that the state needs to administer its approved state program. Such information includes:

(a) The following procedures are required for all applications, regardless of whether the application is for a partial or complete program, as defined in section 281.12, or for interim or final approval in accordance with section 281.11.
(b) Before submitting an application to EPA for approval of a state program, the state must provide an opportunity for public notice and comment in the development of its underground storage tank program.
(c) When EPA receives a state program application, EPA will examine the application and notify the state whether its application is complete, in accordance with the application components required in section 281.20. The 180-day statutory review period begins only after EPA has determined that a complete application has been received.
(d) The state and EPA may by mutual agreement extend the review period.
(e) After receipt of a complete program application, the Administrator will tentatively determine approval or disapproval of the state program. EPA shall issue public notice of the tentative determination in the Federal Register; in enough of the largest newspapers in the state to attract statewide attention; and to persons on the state agency mailing list and any other persons who the agency has reason to believe are interested. Notice of the tentative determination must also:

(f) Within 180 days of receipt of a complete state program application, the Administrator must make a final determination whether to approve the state program after review of all public comments. EPA will give notice of its determination in the Federal Register and codify the approved state program. The notice must include a statement of the reasons for this determination and a response to significant comments received.

(a) State programs that meet the requirements of section 281.11 (c) (1) and (2) may be approved for 1 to 3 years from [insert date of promulgation of regulations under Part 280]. States that receive such interim approval must adopt requirements that are no less stringent than the corresponding federal requirements and standards within the timeframes specified under section 281.11 (c) (3).
(b) By the end of the specified time period, a state with interim approval must submit to EPA an amendment to its application that includes all modified and new requirements for any of the elements containing less stringent requirements. Such amended applications must also include a modified program description, an Attorney General's statement and a Memorandum of Agreement that incorporate the amended program requirements, and copies of all applicable state statutes and regulations.
(c) Upon receipt of the application amendment, the Administrator shall follow the same review and approval procedures as required in section 281.50.
(d) If a state fails to submit an amendment within the specified timeframe, the interim approval of the state program expires upon the applicable date established under section 281.11 (c), and the Subtitle I program automatically reverts to EPA.
(e) If a state submits an amendment to the program application within the timeframe specified under 281.11 (c) (3) and the amendment is disapproved after the end of the time period, the interim approval of the state program expires immediately upon disapproval and the Subtitle I program automatically reverts to EPA.
(f) If interim approval of the state program expires, EPA must notify the regulated community and the public of the re-establishment of the federal program through a notice in the Federal Register.

(a) Either EPA or the approved state may initiate program revision. Program revision may be necessary when the controlling federal or state statutory or regulatory authority is changed or when responsibility for the state program is shifted to a new agency or agencies. The state must inform EPA of any proposed modifications to its basic statutory or regulatory authority or change in division of responsibility among state agencies. EPA will determine in each case whether a revision of the approved program is required.
(b) Whenever the Administrator has reason to believe that circumstances have changed with respect to an approved state program or the federal program, the Administrator may request, and the state must provide, a revised application as prescribed by EPA.
(c) The Administrator will approve or disapprove program revisions based on the requirements of this Part and of Subtitle I pursuant to the procedures under this section, or under section 281.50 if EPA has reason to believe the proposed revision will receive significant negative comment from the public.

(d) Revised state programs that receive approval must be codified in the Federal Register.

(a) The Administrator may withdraw program approval when the Agency determines that a state no longer has adequate regulatory or statutory authority or is not administering and enforcing an approved program in accordance with this Part. The state must have adequate capability to administer and enforce the state program. In evaluating whether such capability exists, the Agency will consider whether the state is implementing an adequate enforcement program by evaluating the quality of compliance monitoring and enforcement actions.
(b) Such withdrawal of approval will occur only after the state fails to take appropriate action within a reasonable time, not to exceed 120 days after notice from the Administrator that the state is not administering and enforcing its program in accordance with the requirements of this Part.

(a) The following procedures apply when a state with an approved program voluntarily transfers to EPA those program responsibilities required by federal law.

(b) When EPA begins proceedings to determine whether to withdraw approval of a state program (either on its own initiative or in response to a petition from an interested person), withdrawal proceedings must be conducted in accordance with procedures set out in 40 CFR 271.23 (b) and (c), except for section 271.23 (b) (8) (iii) to the extent that it deviates from requirements under section 281.60.