[Federal Register: August 14, 2006 (Volume 71, Number 156)]
[Notices]
[Page 46471-46475]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14au06-49]
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ENVIRONMENTAL PROTECTION AGENCY
[FRL-8208-5]
Delivery Prohibition 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.
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SUMMARY: By this notice, the Environmental Protection Agency (EPA),
Office of Underground Storage Tanks (OUST) is advising the public that
on August 7, 2006 EPA issued the delivery prohibition grant guidelines
and made the guidelines available on EPA's Web site at: http://www.epa.gov/oust/fedlaws/epact_05.htm#Final.
In this notice, EPA is publishing the
delivery prohibition grant guidelines in their entirety. EPA developed
the delivery prohibition grant guidelines as required by section 1527
of the Energy Policy Act of 2005.
DATES: On August 7, 2006, EPA issued and posted the delivery
prohibition grant guidelines EPA's web site. EPA is notifying the
public via this notice that the delivery prohibition grant guidelines
are available as of August 14, 2006.
ADDRESSES: EPA posted the delivery prohibition 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 513-489-8695. Ask for: Grant Guidelines To States
For Implementing The Delivery Prohibition Provision Of The Energy
Policy Act Of 2005 (EPA-510-R-06-003, August 2006).
FOR FURTHER INFORMATION CONTACT: Tim Roberts, EPA's Office of
Underground Storage Tanks, at roberts.timothy-p@epa.gov or (703) 603-
7144.
SUPPLEMENTARY INFORMATION: On August 8, 2005, President Bush signed the
Energy Policy Act of 2005. Title XV, Subtitle B of this act, entitled
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. This new law
significantly affects Federal and state UST programs; requires major
changes to the programs; and is aimed at 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.
Section 1527, Subsection (a) of the Energy Policy Act requires that
EPA develop and publish processes and procedures for a delivery
prohibition program. EPA worked closely with states, tribes, other
Federal agencies, tank owners and operators, UST equipment industry,
and other stakeholders to develop draft delivery prohibition grant
guidelines. In May 2006, EPA released a draft of the delivery
prohibition grant guidelines. After considering comments, on August
[[Page 46472]]
7, 2006, EPA issued the delivery prohibition 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.
Grant Guidelines to States for Implementing the Delivery Prohibition
Provision of the Energy Policy Act of 2005
U.S. Environmental Protection Agency; Office of Underground Storage
Tanks; August 2006
Contents
Overview of the Delivery Prohibition Grant Guidelines
Why Is EPA Issuing These Guidelines?
What Is In These Guidelines?
When Do These Guidelines Take Effect?
Requirements for Delivery Prohibition
What Is Delivery Prohibition?
What Underground Storage Tanks Do These Guidelines Apply To?
What Definitions Are Used In These Guidelines?
Who Is Responsible For Complying With Delivery Prohibition
Requirements?
Do These Guidelines Apply To Underground Storage Tanks Or To
Underground Storage Tank Facilities?
How Does A State Implement These Guidelines?
What Are The Criteria For Determining Which Underground Storage
Tanks Are Ineligible For Delivery, Deposit, Or Acceptance?
What Mechanisms May Be Used For Identifying Ineligible Underground
Storage Tanks?
What Must A State Do To Reclassify Ineligible Underground Storage
Tanks As Eligible?
What Are The Allowable Processes For Providing Adequate Notice To
Underground Storage Tank Owners/Operators And Product Deliverers?
How May States Apply Delivery Prohibition In Rural And Remote Areas?
What Do States Need To Report To EPA?
What Enforcement Authority Must States Have For Delivery
Prohibition?
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 Delivery Prohibition Grant Guidelines
Background About The Energy Policy Act Of 2005
Overview of the Delivery Prohibition Grant Guidelines
Why Is EPA Issuing These Guidelines?
U.S. Environmental Protection Agency (EPA), in consultation with
states, underground storage tank (UST) owners, and the product delivery
industry, developed these grant guidelines to implement the delivery
prohibition provision in Section 9012 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.
Subsection (a) of Section 1527 of the Energy Policy Act amends
Subtitle I of the Solid Waste Disposal Act by adding Section 9012,
which includes a delivery prohibition requirement for states receiving
Federal funds under Subtitle I. Section 9012 requires EPA to develop
and publish guidelines that describe the processes and procedures for
the delivery prohibition provision by August 8, 2006. The guidelines
must address the following five processes and procedures a state
receiving Subtitle I funding (hereafter referred to as ``state'') must
follow to implement delivery prohibition:
The criteria for determining ineligible underground
storage tanks;
The mechanisms for identifying ineligible underground
storage tanks;
The process for reclassifying ineligible underground
storage tanks as eligible;
The process(es) for providing adequate notice to
underground storage tank owners/operators and product deliverers; and,
The process for determining the specified geographic areas
subject to the rural and remote areas consideration.
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 delivery
prohibition provision of the Energy Policy Act of 2005.
What Is In These Guidelines?
These guidelines describe the minimum requirements a state's
delivery prohibition program must contain in order for a state to
comply with statutory requirements for Subtitle I funding. These
guidelines include definitions, criteria, examples, options, and
requirements for states implementing the delivery prohibition
provision.
When Do These Guidelines Take Effect?
A state receiving Subtitle I funding must implement the delivery
prohibition requirements described in these guidelines by August 8,
2007.
Requirements for Delivery Prohibition
What Is Delivery Prohibition?
Delivery prohibition is prohibiting the delivery, deposit, or
acceptance of product to an underground storage tank that has been
determined to be ineligible by EPA or a state implementing agency \1\
for such delivery, deposit, or acceptance.
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\1\ The term ``state'' does not exclude local government
implementing agencies.
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What Underground Storage Tanks Do These Guidelines Apply To?
For purposes of this document, 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 storage tanks. At a
minimum, a state must apply these guidelines to petroleum underground
storage tanks. EPA recognizes that many states have the authority to
regulate underground storage tanks containing hazardous substances.
States may choose to apply delivery prohibition to hazardous substance
underground storage tanks in addition to petroleum underground storage
tanks.
What Definitions Are Used in These Guidelines?
Many terms used in these guidelines are defined in 40 CFR 280.12.
Unless otherwise noted, the definitions in 40 CFR 280.12 also apply to
the terms in these guidelines. For purposes of these guidelines, terms
not defined in 40 CFR 280.12 are defined as follows:
Green Tag: A document, device, tag, or other item identifying an
underground storage tank or underground storage tank facility as
eligible to receive product. Such item is generally affixed to the fill
pipe or otherwise conspicuously displayed at the underground storage
tank facility.
Product Deliverer: Any person \2\ who delivers or deposits product
into an underground storage tank. This term may include major oil
companies, jobbers, petroleum transportation companies, or other
product delivery entities.
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\2\ ``Person'' has the same definition used in 40 CFR 280.12,
which includes an individual, trust, firm, joint stock company,
consortium, joint venture, commercial entity, United States
Government, Federal agency, corporation, state, municipality,
commission, political subdivision of a state, or any interstate
body.
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Red Tag: A tag, device, or mechanism on the tank's fill pipes that
clearly identifies an underground storage tank
[[Page 46473]]
as ineligible for product delivery. The tag or device is easily visible
to the product deliverer and clearly states and conveys that it is
unlawful to deliver to, deposit into, or accept product into the
ineligible underground storage tank. The tag, device, or mechanism is
generally tamper resistant.
Who Is Responsible for Complying With Delivery Prohibition
Requirements?
Underground storage tank owners/operators and product deliverers
are responsible for not delivering, depositing, or accepting product to
an underground storage tank identified by EPA or a state as ineligible
to receive product.
Do These Guidelines Apply to Underground Storage Tanks or to
Underground Storage Tank Facilities?
States may choose to prohibit delivery, deposit, or acceptance of
product to an individual underground storage tank or to every
underground storage tank at a facility.
How Does a State Implement These Guidelines?
A state implements these guidelines by:
Having the authority to prohibit delivery, deposit, or
acceptance of product to an underground storage tank for both equipment
and operational violations; and
Developing processes and procedures for a delivery
prohibition program that, at a minimum, meet the requirements in these
guidelines.
The state's delivery prohibition program must meet these guidelines
by August 8, 2007. The sections that follow discuss the five categories
\3\ of processes and procedures required by the Energy Policy Act of
2005. States may choose to be more stringent than these minimum
requirements.
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\3\ Delineated in sections 9012(a)(2)(A)-(E) of the Solid Waste
Disposal Act.
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The state must clearly communicate to underground storage tank
owners and operators and product deliverers the state's:
Criteria for determining which underground storage tanks
are ineligible for delivery, deposit, or acceptance of product;
Mechanism(s) for identifying ineligible underground
storage tanks;
Process for reclassifying ineligible underground storage
tanks as eligible for delivery, deposit, or acceptance of product;
Process(es) for providing adequate notice to underground
storage tank owners and operators and product deliverers that an
underground storage tank has been determined to be ineligible for
delivery, deposit, or acceptance of product; and
Delineation of a process for the application of delivery
prohibition in rural and remote areas. EPA recognizes that states with
existing delivery prohibition programs may already have communicated
these requirements to tank owners and operators and product deliverers.
States that have already communicated their requirements to tank
owners and operators and product deliverers are not required to
communicate their requirements any further. However, states must
adequately communicate any changes to their existing delivery
prohibition program.
What Are the Criteria for Determining Which Underground Storage Tanks
Are Ineligible for Delivery, Deposit, or Acceptance?
The state must develop criteria and timeframes for prohibiting the
delivery, deposit, and acceptance of product, in accordance with the
provisions below.\4\ A state may authorize the delivery or deposit of
product to an ineligible underground storage tank if such activity is
necessary to test or calibrate the underground storage tank or
dispenser system.
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\4\ For certain severe situations at an underground storage tank
facility, such as the presence of an on-going release, a state
should generally consider using other authorities granted to the
state under applicable health and safety or fire codes to
immediately mitigate the risk instead of, or in addition to, a
state's delivery prohibition authority.
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A state must classify an underground storage tank as ineligible for
delivery, deposit, or acceptance of product as soon as practicable
after the state determines an underground storage tank meets one or
more of the following conditions:
Required spill prevention equipment is not installed;
Required overfill protection equipment is not installed;
Required leak detection equipment is not installed;
Required corrosion protection equipment is not installed;
\5\ or
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\5\ A state is not required to but should generally prohibit the
delivery, deposit, or acceptance of product for the failure to have
corrosion protection equipment on a buried metal flexible connector.
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Other conditions a state deems appropriate.
The time allowed for a state to identify an underground storage
tank as ineligible for delivery, deposit, or acceptance of product for
one or more of the above conditions is intended to accommodate various
state delivery prohibition procedures, not to provide additional time
for underground storage tank owners or operators to return to
compliance. Some states have the authority to prohibit delivery at the
time of an inspection.
A state retains the discretion to decide whether to identify an
underground storage tank as ineligible to deliver, deposit, or accept
product based on whether the prohibition is in the best interest of the
public. In some cases, prohibition of delivery, deposit, or acceptance
of product to an underground storage tank is not in the best interest
of the public, even in the cases of significant and/or sustained
noncompliance (e.g., certain emergency generator underground storage
tanks). In other cases, states may choose to classify an underground
storage tank as ineligible to receive product but then authorize
delivery in emergency situations.\6\
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\6\ For example, California provides authority to local
implementing agencies to remove red tags from emergency generator
tanks that provide power supply in the event of a commercial power
failure, store petroleum, and are used solely in connection with an
emergency system, legally required standby system, or optional
standby system, as defined in Articles 700, 701, and 702 of the
National Electric Code of the National Fire Protection Association.
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A state should also classify an underground storage tank as
ineligible for delivery, deposit, or acceptance of product if the
owner/operator of that tank has been issued a written warning or
citation (notice of violation or other form indicating a violation)
under any of the following circumstances and the owner/operator has
failed to take corrective action after a reasonable time frame that is
determined by the state:
Failure to properly operate and/or maintain leak detection
equipment;
Failure to properly operate and/or maintain spill,
overfill, or corrosion protection equipment;
Failure to maintain financial responsibility;
Failure to protect a buried metal flexible connector from
corrosion; or
Other conditions a state deems appropriate.
What Mechanisms May Be Used for Identifying Ineligible Underground
Storage Tanks?
Tank owners and operators and product deliverers are responsible
for ensuring that product is not delivered, deposited, or accepted into
an underground storage tank identified as ineligible to receive
product. Therefore, a state must use a clear, concise mechanism or
mechanisms for identifying ineligible underground storage tanks. The
mechanism(s) a state
[[Page 46474]]
uses must adequately indicate to product deliverers and underground
storage tank owners/operators that an underground storage tank is
ineligible to receive product. For a state developing a mechanism or
mechanisms to use to identify ineligible underground storage tanks, the
state should consult with underground storage tank owners/operators and
product delivery industries. A state should also consider the ease of
reclassifying an underground storage tank as eligible when choosing the
method(s) for identifying ineligible underground storage tanks.
Some examples of mechanisms for identifying ineligible underground
storage tanks include:
Red tags attached to each fill pipe of the ineligible
underground storage tank clearly identifying the tank as ineligible for
delivery, deposit, or acceptance of product;
Green tags attached to each fill pipe of the eligible
underground storage tank clearly identifying the tank as eligible for
delivery, deposit, or acceptance of product; or,
A certificate conspicuously displayed at the facility
clearly identifying the underground storage tank(s) at the facility as
eligible for delivery, deposit, or acceptance of product.
What Must a State Do To Reclassify Ineligible Underground Storage Tanks
as Eligible?
A state must reclassify an ineligible underground storage tank as
eligible to receive product as soon as practicable once the state
determines that the underground storage tank has been returned to
compliance.
The state, after notification by the owner/operator that the
violation(s) has/have been corrected, must do the following as soon as
practicable:
Confirm compliance. If any deficiencies that led to the
delivery prohibition remain, the state must notify the owner/operator.
Return the underground storage tank to being eligible to
receive product \7\ if the violation(s) has/have been corrected and
confirmed by the state.
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\7\ After a state implementing agency confirms compliance, the
state may authorize another party to reclassify an underground
storage tank as eligible for delivery, deposit, or acceptance of
product. For example, upon confirming compliance the state may
provide written authorization to an owner or operator to remove the
red tag from the underground storage tank.
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States that have used delivery prohibition programs in the past
have been responsive to the fact that when an underground storage tank
has been classified as ineligible to receive product, it must be
reclassified as eligible to receive product as soon as practicable once
the owner/operator has corrected the violation(s). For example, many
states ensure that underground storage tanks can be reclassified within
five (5) business days and often reclassify within 24 hours of being
notified of the correction(s).
What Are the Allowable Processes for Providing Adequate Notice to
Underground Storage Tank Owners/Operators and Product Deliverers?
When an underground storage tank is determined to be ineligible for
delivery, deposit, or acceptance of product, the state must make a
reasonable effort to notify tank owners and/or operators in writing
(e.g., field notification, mail, e-mail, or fax) prior to prohibiting
the delivery, deposit, or acceptance of product. If an owner or
operator is not present at the facility at the time the underground
storage tank is identified as ineligible, an employee \8\ at the
facility at the time of identification (in lieu of the owner or
operator) may be notified in writing prior to prohibiting delivery.
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\8\ A state should generally make every effort to provide the
notification to the employee in charge of the facility at the time
an undeground storage tank is identified as ineligible for delivery,
deposit, or acceptance of product.
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In addition, a state must develop processes and procedures for
notifying product deliverers when an underground storage tank is
ineligible for delivery, deposit, or acceptance of product. The
mechanism a state chooses for identifying eligible/ineligible
underground storage tanks (e.g., green tags, red tags) may provide
adequate notice to product deliverers.
How May States Apply Delivery Prohibition in Rural and Remote Areas?
A state may consider not treating an underground storage tank as
ineligible for delivery, deposit, or acceptance of product if such
treatment would jeopardize the availability of, or access to, motor
fuel in any rural and remote areas. However, a state may only defer
application of delivery prohibition for up to 180 days after
determining an underground storage tank is ineligible for delivery,
deposit, or acceptance of product. This limitation only applies in
situations requiring prohibition of delivery, deposit, or acceptance of
product, as described in the section entitled, ``What Are The Criteria
For Determining Which Underground Storage Tanks Are Ineligible For
Delivery, Deposit, Or Acceptance?''.
What Do States Need To Report to EPA?
Each state that receives Subtitle I funding must report to EPA as
part of its quarterly or semi-annual performance report the number of
underground storage tanks (or underground storage tank facilities)
identified as ineligible for delivery, deposit, or acceptance of
product during the reporting period.
What Enforcement Authority Must States Have for Delivery Prohibition?
States must, at a minimum, have the authority to impose civil
penalties against any person who delivers, deposits, or accepts product
at an underground storage tank identified as being ineligible for such
delivery, deposit, or acceptance.
How Will States Demonstrate Compliance With These Guidelines?
After August 8, 2007, the effective date of the delivery
prohibition requirements, and before receiving future grant funding,
states must provide one of the following to the appropriate EPA
Regional office:
For a state that has met the requirements for delivery
prohibition, the state must submit a certification indicating that the
state meets the requirements in the guidelines.
For a state that has not yet met the requirements for
delivery prohibition, 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 the 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.
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 the underground storage tank
requirements of the Energy Policy Act. EPA anticipates State and Tribal
Assistance Grants (STAG) funds will be available under the 2007
Appropriations Act for certain purposes authorized by the Energy Policy
Act, and EPA will condition STAG grants with compliance with these
guidelines. Absent a compelling reason to the contrary, EPA expects to
address noncompliance with
[[Page 46475]]
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 Delivery Prohibition Grant Guidelines
Visit the EPA Office of Underground Storage Tanks Web site at
http://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 (entitled 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. This new law significantly
affects Federal and state underground storage tank programs, will
require major changes to the programs, and is aimed at reducing
underground storage tank releases to our environment.
The underground storage tank provisions of the Energy Policy Act
focus on preventing releases. Among other things, the Act expands
eligible uses of the Leaking Underground Storage Tank (LUST) Trust Fund
and includes 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: August 7, 2006.
Susan Parker Bodine,
Assistant Administrator, Office of Solid Waste and Emergency Response.
[FR Doc. E6-13283 Filed 8-11-06; 8:45 am]
BILLING CODE 6560-50-P