07-2266. Inspection Grant Guidelines for States; Solid Waste Disposal Act, Subtitle I, as Amended by Title XV, Subtitle B of the Energy Policy Act of 2005

AGENCY:

Environmental Protection Agency.

ACTION:

Notice of availability.

SUMMARY:

By this notice, the Environmental Protection Agency (EPA), Office of Underground Storage Tanks (OUST) is advising the public that on April 24, 2007 EPA issued the inspection grant guidelines and subsequently made the guidelines available on EPA's Web site. In this notice, EPA is publishing the inspection grant guidelines in their entirety. EPA developed the inspection grant guidelines as required by Sections 9005(c)(1) and 9005(c)(2) of Subtitle I of the Solid Waste Disposal Act, as amended by Section 1523 of the Energy Policy Act of 2005.

DATES:

On April 24, 2007, EPA issued and subsequently posted the inspection grant guidelines on EPA's Web site. EPA is notifying the public via this notice that the inspection grant guidelines are available as of May 9,2007.

ADDRESSES:

EPA posted the inspection grant guidelines on our Web site at: http://www.epa.gov/​oust/​fedlaws/​epact_​05.htm#Final . You may also obtain paper copies from the National Service Center for Environmental Publications (NSCEP), EPA's publications distribution warehouse. You may request copies from NSCEP by calling 1-800-490-9198; writing to U.S. EPA/NSCEP, Box 42419, Cincinnati, OH 45242-0419; or faxing your request to NSCEP at 301-604-3408. Ask for: Grant Guidelines To States For Implementing The Inspection Provisions Of The Energy Policy Act Of 2005 (EPA 510-R-07-004, April 2007).

FOR FURTHER INFORMATION CONTACT:

Tim R. Smith, EPA's Office of Underground Storage Tanks, at [e-mail] or 703-603-7158.

SUPPLEMENTARY INFORMATION:

On August 8, 2005, President Bush signed the Energy Policy Act of 2005. Title XV, Subtitle B of this act, titled the Underground Storage Tank Compliance Act of 2005, contains amendments to Subtitle I of the Solid Waste Disposal Act. This is the first federal legislative change for the underground storage tank (UST) program since its inception over 20 years ago. The UST provisions of the law significantly affect federal and state UST programs, require major changes to the programs, and are aimed at further reducing UST releases to our environment. Among other things, the UST provisions of the Energy Policy Act require that states receiving funding under Subtitle I comply with certain requirements contained in the law. OUST worked, and is continuing to work, with its partners to develop grant guidelines that EPA regional tank programs will incorporate into states' grant agreements. The guidelines will provide states that receive UST funds with specific requirements, based on the UST provisions of the Energy Policy Act, for their state UST programs.

Sections 9005(c)(1) and 9005(c)(2) of Subtitle I of the Solid Waste Disposal Act, as amended by Section 1523 of the Energy Policy Act, require states that receive Subtitle I funding to ensure that USTs not inspected since December 22, 1998 have an on-site inspection before August 8, 2007 and subsequently undergo an on-site inspection at least once every three years thereafter. As a result of that requirement, EPA worked with states and other stakeholders to develop inspection grant guidelines. In November 2006, EPA released a draft of the inspection grant guidelines. EPA considered comments and, subsequently on April 24, 2007, issued the inspection grant guidelines. EPA will incorporate these guidelines into grant agreements between EPA and states. States receiving funds from EPA for their UST programs must comply with the UST provisions of the Energy Policy Act and will be subject to action by EPA under 40 CFR 31.43 if they fail to comply with the guidelines.

Statutory and Executive Order Reviews: Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and is therefore not subject to OMB review. Because this grant action is not subject to notice and comment requirements under the Administrative Procedure Act or any other statute, it is not subject to the Regulatory Flexibility Act (5 U.S.C. Section 601 et seq.) or Sections 202 and 205 of the Unfunded Mandates Reform Act of 1999 (UMRA) (Pub. L. 104-4). In addition, this action does not significantly or uniquely affect small governments. Although this action does create new binding legal requirements, such requirements do not substantially and directly affect tribes under Executive Order 13175 (63 FR 67249, November 9, 2000). Although this grant action does not have significant federalism implications under Executive Order 13132 (64 FR 43255, August 10, 1999), EPA consulted with states in the development of these grant guidelines. This action is not subject to Executive Order 13211, “Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001), because it is not a significant regulatory action under Executive Order 12866. This action does not involve technical standards; thus, the requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. Section 272 note) do not apply. This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. Section 3501 et seq.). The Congressional Review Act, 5 U.S.C. 801 et seq., generally provides that before certain actions may take effect, the agency promulgating the action must submit a report, which includes a copy of the action, to each House of the Congress and to the Comptroller General of the United States. Since this final action will contain legally binding requirements, it is subject to the Congressional Review Act, and EPA will submit a report to Congress containing this final action prior to the publication of this action in the Federal Register.

Grant Guidelines to States for Implementing the Inspection Provisions of the Energy Policy Act of 2005

U.S. Environmental Protection Agency; Office of Underground Storage Tanks; April 2007

Contents

Overview of the Inspection Grant Guidelines

Why Is EPA Issuing These Guidelines?

What Is In These Guidelines?

When Do These Guidelines Take Effect?

Requirements for On-Site Inspections

Which Underground Storage Tanks Require An On-Site Inspection?

When Must Underground Storage Tanks Be Inspected?

What Are the Requirements for the On-Site Inspection?

Who May Perform the On-Site Inspection?

What Are the Reporting Requirements to EPA?

How Will States Demonstrate Compliance With These Guidelines?

How Will EPA Enforce States' Compliance With the Requirements in These Guidelines?

For More Information about the Inspection Grant Guidelines

Background About the Energy Policy Act of 2005

Appendices

Appendix A—Short-Term Recommendation About Inspections To Meet the Energy Policy Act of 2005 Requirements (November 17, 2005 Memorandum)

Appendix B—Inspection Requirements of the Energy Policy Act: Determining Which Underground Storage Tanks Have Undergone an Inspection Since December 22, 1998 (June 8, 2006 Memorandum)

Overview of the Inspection Grant Guidelines

Why Is EPA Issuing These Guidelines?

The U.S. Environmental Protection Agency (EPA), in consultation with states, developed these grant guidelines to implement the inspection provisions in Sections 9005(c)(1) and 9005(c)(2) of the Solid Waste Disposal Act (SWDA), enacted by the Underground Storage Tank Compliance Act, part of the Energy Policy Act of 2005 signed by President Bush on August 8, 2005.

Section 1523 of the Energy Policy Act amends Section 9005 in Subtitle I of the Solid Waste Disposal Act to add requirements for underground storage tank (UST) system inspections for states receiving Subtitle I funding as follows:

1. Uninspected underground storage tanks—Section 9005(c)(1) requires that underground storage tanks that have not been inspected since December 22, 1998 must have an on-site inspection conducted not later than August 8, 2007 to determine compliance with Subtitle I and 40 CFR 280 requirements or requirements or standards of a state program developed under Section 9004.

2. Periodic inspections—Section 9005(c)(2) requires that, after all underground storage tanks required by Section 9005(c)(1) have been inspected, on-site inspections of each underground storage tank identified in these guidelines must be conducted at least once every three years to determine compliance with Subtitle I and 40 CFR 280 requirements or requirements or standards of a state program developed under Section 9004.

EPA's Office of Underground Storage Tanks (OUST) is issuing these grant guidelines to establish the minimum requirements states receiving Subtitle I funding must meet in order to comply with the inspection provisions of Subtitle I enacted by the Energy Policy Act.

What Is in These Guidelines?

These guidelines describe the minimum requirements a state's on-site inspection program must contain under Section 9005(c) of Subtitle I in order for a state to comply with statutory requirements for Subtitle I funding. These guidelines include: Identification of which underground storage tanks require an on-site inspection; requirements for the on-site inspection; who can perform the on-site inspection; and what information needs to be reported to EPA.

When Do These Guidelines Take Effect?

These guidelines are effective August 8, 2007. Until August 8, 2007, states may continue to follow the interim guidance on inspections issued in OUST's November 17, 2005 and June 8, 2006 memorandums. See Appendices A and B for copies.

Requirements for On-Site Inspections

A state receiving Subtitle I funding must conduct on-site inspections of each underground storage tank in accordance with these guidelines.

Which Underground Storage Tanks Require an On-Site Inspection?

For purposes of these guidelines, the term “underground storage tank” means those tanks that satisfy the definition of underground storage tank in 40 CFR 280.12, except for those tanks identified in 40 CFR 280.10(b) and 280.10(c) as excluded or deferred tanks. These guidelines apply to underground storage tanks that have not been permanently closed or undergone a change in service in accordance with 40 CFR 280.71 or requirements or standards of a state program approved under Section 9004. An on-site inspection is not required for underground storage tanks that have been determined by the state to be abandoned.

When Must Underground Storage Tanks Be Inspected?

States must by August 8, 2007 conduct an on-site inspection for each underground storage tank that has not been inspected since December 22, 1998.^[1] After completion of those inspections, each underground storage tank must be inspected by August 8, 2010 (EPA has the authority to extend this date until August 8, 2011 if a state demonstrates insufficient resources to conduct inspections) and at least once every three years thereafter.

What Are the Requirements for the On-Site Inspection?

The purpose of the on-site inspection is to determine compliance with Subtitle I and 40 CFR 280 requirements or in the case of a state with a program approved under Section 9004 of Subtitle I, compliance with the requirements of that program.

For purposes of these guidelines, an on-site inspection includes an inspection conducted at the site of each underground storage tank, inspection of associated equipment, and the review of applicable records. Review of applicable records and other activities that can be accomplished off-site may be combined with activities conducted at the site of the underground storage tank to fulfill the on-site inspection requirement. Desk audits, self-certifications, information request letters, and any other such activities are not sufficient by themselves to fulfill the on-site inspection requirements. However, information obtained from such activities may be used in conjunction with the on-site inspection to satisfy the on-site inspection requirement. At a minimum, an on-site inspection must assess compliance with the following:

• Notification (failure to notify)
• Corrosion protection

—Tanks and piping have appropriate corrosion protection

—Documentation available including testing, inspections, and other records

• Overfill prevention in place and operational
• Spill prevention in place and operational
• Tank and piping release detection

—Appropriate method and appropriate equipment or procedures in place

—Documentation of proper monitoring and testing

• Reporting suspected releases
• Records of tank and piping repairs
• Secondary containment where required
• Financial responsibility
• Temporary closure

A state does not need to make a compliance determination at the time of the inspection in order for the inspection to qualify as an on-site inspection under these grant guidelines. However, the individual performing the inspection or the state underground storage tank implementing agency must request from the owner or operator all information needed to make a compliance determination. EPA encourages states to make a compliance determination in a timely manner. States should generally continue to conduct enforcement activities as appropriate to address any noncompliance with applicable underground storage tank program requirements; however, these guidelines do not address the nature or scope of such enforcement activities.

Who May Perform the On-Site Inspection?

An on-site inspection of an underground storage tank must be conducted by one of the following:

• EPA inspector.
• A state underground storage tank implementing agency inspector.
• Other state or local agency inspector the state underground storage tank implementing agency has duly designated, in accordance with state procedures, to conduct underground storage tank inspections.
• A contractor EPA or a state underground storage tank implementing agency has duly designated to conduct underground storage tank inspections.
• A private underground storage tank inspector ^[2] (private inspector) operating under a third-party inspection program as described below.

Solely for the purposes of these grant guidelines, a third-party inspection program is a state program in which a state-authorized private inspector is paid by the owner or operator of an underground storage tank to perform an on-site inspection. At a minimum, states choosing to implement a third-party inspection program must meet the following requirements:

• Private inspectors must be certified, licensed, or registered by the state to perform on-site inspections. At a minimum, private inspectors must meet the following requirements:

—Be trained in the state-specific inspection protocols and procedures, and perform inspections pursuant to such protocols and procedures.

—Successfully complete the state's required training program. The training program for private inspectors must be comparable to the training program for state inspectors.

• Third-party inspection programs must require private inspectors to meet conflict of interest requirements developed by the state. At a minimum, private inspectors must not be: The owner or operator of the underground storage tank; an employee of the owner or operator of the underground storage tank; or a person having daily on-site responsibility for the operation and maintenance of the underground storage tank.
• Third-party inspection programs must use an inspection report form developed by the state that covers the requirements identified in the What Are The Requirements For The On-Site Inspection? section of these guidelines. As previously indicated, not all required activities have to be conducted at the site. Review of applicable records and other activities that can be accomplished off-site may be combined with activities conducted at the site to fulfill the on-site inspection requirement.
• Private inspectors must complete and submit the inspection report to the state underground storage tank-implementing agency in the manner and time frame established by the state. States must either require that private inspectors retain inspection related documentation in a comparable manner to state inspectors or submit the documentation to the state. The state must review each inspection report and make a compliance determination for each site.
• Third-party inspection programs must contain an audit program, developed by the state, to monitor private inspectors on a routine basis. The audit program must include a sufficient number of on-site inspections to effectively assess inspector performance.
• States must retain the capability to conduct: Audits of inspections conducted by private inspectors; for-cause inspections (e.g., inspections conducted as a result of a complaint); and inspections of other underground storage tank sites that the state determines warrant an on-site inspection. The state underground storage tank agency or another duly designated state or local agency must perform a sufficient number of these inspections so the state retains the capacity to perform on-site inspections and maintains the integrity of the third-party inspection program.
• If a private inspector fails to demonstrate to the state adequate competence and proficiency to perform underground storage tank inspections, or the state otherwise determines it is not appropriate for the private inspector to conduct on-site inspections as part of a third-party inspection program, the state must take appropriate action against the private inspector. Appropriate action should generally be defined by the state in its third-party inspection program and may include enforcement mechanisms such as: Temporary suspension or permanent revocation of the private inspector's certification, license, or registration; fines, penalties, retraining, and examination; or any other action the state deems appropriate to include as an enforcement mechanism against the private inspector.

States implementing a third-party inspection program as of the published date of these guidelines in the Federal Register have until August 8, 2010 to meet the third-party inspection program requirements described above. States that implement a third-party inspection program after the published date of these guidelines in the Federal Register must meet the requirements at the time the program is implemented.

What Are the Reporting Requirements to EPA?

Each state that receives Subtitle I funding must report to EPA the number of on-site inspections conducted during the reporting period as part of its quarterly or semi-annual performance report.

How Will States Demonstrate Compliance With These Guidelines?

After August 8, 2007, and before receiving future grant funding, states must provide one of the following to EPA:

• For a state that has met the inspection requirements, the state must submit a certification indicating that the state meets the requirements in these guidelines.
• For a state that has not yet met the requirements for inspections, the state must provide a document that describes the state's efforts to meet the requirements. This document must include:

—A description of the state's activities to date to meet the requirements in these guidelines;

—A description of the state's planned activities to meet the requirements; and

—The date by which the state expects to meet the requirements.

EPA may verify state certifications of compliance through site visits, record reviews, or audits as authorized by 40 CFR Part 31.

How Will EPA Enforce States' Compliance With the Requirements in These Guidelines?

As a matter of law, each state that receives funding under Subtitle I, which would include a Leaking Underground Storage Tank (LUST) Cooperative Agreement, must comply with certain underground storage tank requirements of Subtitle I. EPA anticipates State and Tribal Assistance Grants (STAG) funds will be available for inspection and other underground storage tank compliance activities. EPA will also condition STAG grants with compliance with these guidelines. Absent a compelling reason to the contrary, EPA expects to address noncompliance with these STAG grant conditions by utilizing EPA's grant enforcement authorities under 40 CFR Part 31.43, as necessary and appropriate.

For More Information About the Inspection Grant Guidelines

Visit the EPA Office of Underground Storage Tank's Web site at www.epa.gov/​oust or call 703-603-9900.

Background About the Energy Policy Act of 2005

On August 8, 2005, President Bush signed the Energy Policy Act of 2005. Title XV, Subtitle B of this act (titled the Underground Storage Tank Compliance Act) contains amendments to Subtitle I of the Solid Waste Disposal Act “ the original legislation that created the underground storage tank (UST) program. These amendments significantly affect federal and state underground storage tank programs, will require major changes to the programs, and are aimed at reducing underground storage tank releases to our environment.

The amendments focus on preventing releases. Among other things, they expand eligible uses of the Leaking Underground Storage Tank (LUST) Trust Fund and include provisions regarding inspections, operator training, delivery prohibition, secondary containment and financial responsibility, and cleanup of releases that contain oxygenated fuel additives.

Some of these provisions require implementation by August 2006; others will require implementation in subsequent years. To implement the new law, EPA and states will work closely with tribes, other federal agencies, tank owners and operators, and other stakeholders to bring about the mandated changes affecting underground storage tank facilities.

To see the full text of this new legislation and for more information about EPA's work to implement the underground storage tank provisions of the law, see: http://www.epa.gov/​oust/​fedlaws/​nrg05_​01.htm

Dated: May 2, 2007.

Susan Parker Bodine,

Assistant Administrator, Office of Solid Waste and Emergency Response.

Footnotes

1.  On June 8, 2006, OUST issued a memorandum in order to identify which underground storage tanks need to have an on-site inspection before August 8, 2007. See Appendix B for a copy of the memorandum—Inspection Requirements Of The Energy Policy Act: Determining Which Underground Storage Tanks Have Undergone An Inspection Since December 22, 1998.

2.  In light of certain practical considerations relating to the underground storage tank regulated universe and specific features of Subtitle I grant funding, EPA believes that it is appropriate, solely for the purpose of these grant guidelines, to allow states the option of using a third-party inspection program to meet the on-site inspection requirement. In particular, Subtitle I requires states, as a condition of funding, or EPA as appropriate, to inspect all underground storage tanks every three years. EPA recognizes that a flexible approach is necessary in order to assist states in meeting the three-year inspection requirement given the large number of underground storage tanks, the varied distribution of such underground storage tanks from state to state, and because fulfilling the inspection requirement is a condition of a state's Subtitle I funding.