[Federal Register Volume 71, Number 156 (Monday, August 14, 2006)]
[Notices]
[Pages 46471-46475]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-13283]


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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: 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: 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 [email protected] 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 
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