07-2267. Grant Guidelines for States Regarding State Compliance Reports on Government Underground Storage Tanks; 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 grant guidelines for state compliance reports on government underground storage tanks (USTs) and subsequently made the guidelines available on EPA's Web site. In this notice, EPA is publishing the grant guidelines for state compliance reports on government USTs in their entirety. EPA developed the grant guidelines for state compliance reports on government USTs as required by Section 9003(j) of Subtitle I of the Solid Waste Disposal Act, as amended by Section 1526 of the Energy Policy Act of 2005.

DATES:

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

ADDRESSES:

EPA posted the grant guidelines for state compliance reports on a government USTs 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 requests 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 Provision Of The Energy Policy Act Of 2005 Requiring States To Report On The Compliance Of Government Underground Storage Tanks (EPA 510-R-07-003, April 2007).

FOR FURTHER INFORMATION CONTACT:

Steven McNeely, EPA's Office of Underground Storage Tanks, at [e-mail] or 703-603-7164.

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 guidenlines 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.

Section 9003(j) of Subtitle I of the Solid Waste Disposal Act, as amended by Section 1526 of the Energy Policy Act, requires states that receive Subtitle I funding must report to EPA no later than August 8, 2007 on the compliance status of government-owned and government-operated USTs. As a result of that requirement, EPA worked with states and other stakeholders to develop grant guidelines for state compliance reports on government USTs. 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.) 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 Provision of the Energy Policy Act of 2005 Requiring States to Report on the Compliance of Government Underground Storage Tanks

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

Contents

Overview of the Government Underground Storage Tanks Compliance Report Grant Guidelines

Why Is EPA Issuing These Guidelines?

When Do These Guidelines Take Effect?

To Whom Do These Guidelines Apply?

Requirements for the Government Underground Storage Tanks Compliance Report

What Must A State Compliance Report On Government Underground Storage Tanks Include?

What Definitions Are Used In These Guidelines?

When And Where Must A State Submit Its Compliance Report On Government Underground Storage Tanks?

How Will States Demonstrate Compliance With These Guidelines?

How Must A State Ensure The Quality Of Its Government Underground Storage Tanks Report Data?

How Will EPA Enforce States' Compliance With The Requirements In These Guidelines?

For More Information on the Government Underground Storage Tanks Compliance Report Grant Guidelines

Background About The Energy Policy Act Of 2005

Appendix—Inspection Requirements Of The Energy Policy Act: Determining Which Underground Storage Tanks Have Undergone An Inspection Since December 22, 1998 (June 8, 2006 EPA Memorandum)

Overview of the Government Underground Storage Tanks Compliance Report 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 provision in Section 9003(j) ^[1] of the Solid Waste Disposal Act, enacted by the Underground Storage Tank Compliance Act, part of the Energy Policy Act of 2005 signed by President Bush on August 8, 2005.

Subsection (b) of Section 1526 of the Energy Policy Act amends Subtitle I of the Solid Waste Disposal Act by requiring states that receive Subtitle I funding to report on the compliance status of their government-owned and/or -operated underground storage tanks (UST). EPA must require each state that receives funding under Subtitle I to submit a state compliance report on government underground storage tanks no later than two years after the date of enactment of the Act. States must submit their compliance reports to the EPA Administrator. The Administrator will make the reports available to the public. The law specifies that each state report:

1. List the location and owner of each underground storage tank regulated under Subtitle I and owned or operated by the federal, state, or local governments in the state that, as of the date of submission of the report, is not in compliance with Section 9003;

2. Specify the date of the last inspection; and

3. Describe the actions that have been and will be taken to ensure compliance of the government underground storage tank listed.

When Do These Guidelines Take Effect?

States must submit reports to EPA on or before August 8, 2007. This is a one-time report required under Subsection (b) of Section 1526 of the Energy Policy Act.

To Whom Do These Guidelines Apply?

Any state receiving Subtitle I funding must submit to EPA a state compliance report on government underground storage tanks.

Requirements for the Government Underground Storage Tanks Compliance Report

What Must a State Compliance Report on Government Underground Storage Tanks Include?

A state compliance report on government underground storage tanks must provide the following information for each noncompliant federal-, state-, and local-government underground storage tank in its jurisdiction:

1. The location and owner of each government underground storage tank ^[2] that, as of the date of submission of the report,^[3] is not in compliance with 40 CFR Part 280 or with state requirements that are part of a state underground storage tank program EPA has approved under the state program approval (SPA) procedures. At a minimum, states must include the owner's name; UST identification number(s); facility address(es); and city, county, state, and zip code. The compliance determination should be based on the following areas:

• 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.

If a state is reporting compliance based on a determination pursuant to requirements that are more stringent than subtitle I, the state should identify and may list its more stringent requirements.

2. The date of the last on-site inspection that was used to identify each noncompliance underground storage tank. Alternatively, for compliance monitoring activities that occurred prior to August 8, 2005, states may report the date for the last compliance monitoring activity as described in the June 8, 2006, EPA memorandum (see Appendix).

3. The actions that have been and will be taken to ensure the compliance of each noncompliant underground storage tank identified. Note: States are not expected to divulge enforcement confidential information in the report.

States may submit their reports in whatever format they deem appropriate.

What Definitions Are Used in These Guidelines?

On-site inspection is defined in these guidelines as an inspection that is:

• On-site;
• Conducted by a state, local (when contracted or delegated by a state), EPA, or certified third-party inspector; and
• Sufficient to determine compliance with federal underground storage tank requirements in Subtitle I or state requirements that are part of a state underground storage tank program EPA has approved under the SPA procedures in 40 CFR Part 281.

Local government shall have the meaning given this term by applicable state law. The term is generally intended to include: (1) Counties, municipalities, townships, separately chartered and operated special districts (including local government public transit systems and redevelopment authorities), and independent school districts authorized as governmental bodies by state charter or constitution; and (2) Special districts and independent school districts established by counties, municipalities, townships, and other general purpose governments to provide essential services. Operator is defined in 40 CFR 280.12 (http://www.epa.gov/​oust/​fedlaws/​280_​a.pdf). Owner is defined in 40 CFR 280.12 (http://www.epa.gov/​oust/​fedlaws/​280_​a.pdf). Underground Storage Tank (UST) has the same meaning as defined in 40 CFR 280.12, except it does not include those tanks identified in 40 CFR 280.10(b) and 280.10(c) as excluded or deferred (http://www.epa.gov/​oust/​fedlaws/​280_​a.pdf).

When and Where Must a State Submit Its Compliance Report on Government Underground Storage Tanks?

Each state that receives Subtitle I funding must submit its government underground storage tanks compliance report to the EPA Administrator on or before August 8, 2007.

The state report should be sent to the U.S. EPA Administrator. The mailing address is: Administrator, Attn: State Government UST Compliance Report Submittal, U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., MC 0001, Washington, DC 20460-0001. An electronic submittal can be e-mailed to [e-mail] with the title “Submittal of State Government UST Compliance Report” in the subject field.

How Will States Demonstrate Compliance With These Guidelines?

After August 8, 2007, and before receiving future grant funding, each state must provide one of the following to its EPA Regional Office.

1. If a state has submitted its compliance report to the EPA administrator, nothing more needs to be submitted, or

2. For a state that has not yet submitted its compliance report, a document that describes the progress that the state has made so far, the plans for future efforts to complete the compliance report, and the date by which the state expects to meet the requirements.

How Must a State Ensure the Quality of Its Government Underground Storage Tanks Report Data?

To the maximum extent practicable, states must provide accurate and complete data to EPA. States must use quality assurance practices that will produce data of quality adequate to meet project objectives and minimize reporting of inaccurate data.

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 on the Government Underground Storage Tanks Compliance Report Grant Guidelines

Visit the EPA Office of Underground Storage Tanks 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.  This provision, originally identified as 9003(i) in the Energy Policy Act, was changed to 9003(j) in Public Law 109-168, January 10, 2006.

2.  If a state is unable to separate violations on a tank-by-tank basis, the state may list all tanks at the facility.

3.  In order to provide each state agency adequate time to meet the August 8, 2007, reporting submittal deadline, each state should base its noncompliance determination cutoff on the date that its report was submitted for final review.