[Federal Register Volume 72, Number 18 (Monday, January 29, 2007)]
[Notices]
[Pages 3997-4003]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-1340]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-8274-1]


Public Record 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

[[Page 3998]]

(EPA), Office of Underground Storage Tanks (OUST) is advising the 
public that on January 22, 2007 EPA issued the public record grant 
guidelines and subsequently made the guidelines available on EPA's Web 
site. In this notice, EPA is publishing the public record grant 
guidelines in their entirety. EPA developed the public record grant 
guidelines as required by Section 9002 of Subtitle I of the Solid Waste 
Disposal Act, as amended by Section 1526 of the Energy Policy Act of 
2005.

DATES: On January 22, 2007, EPA issued and subsequently posted the 
public record grant guidelines on EPA's Web site. EPA is notifying the 
public via this notice that the public record grant guidelines are 
available as of January 29, 2007.

ADDRESSES: EPA posted the public record 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 Public Record Provision of the Energy 
Policy Act of 2005 (EPA-510-R-07-001, January 2007).

FOR FURTHER INFORMATION CONTACT: Paul Miller, EPA's Office of 
Underground Storage Tanks, at [email protected] or (703) 603-7165.

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. 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.
    Section 9002 of Subtitle I of the Solid Waste Disposal Act, as 
amended by Section 1526 of the Energy Policy Act, requires EPA to 
require states that receive Subtitle I funding to maintain, update, and 
make available to the public a record of federally regulated USTs. As a 
result of that requirement, EPA worked with states and other UST 
stakeholders to develop draft public record grant guidelines. In June 
2006, EPA released a draft of the public record grant guidelines. EPA 
considered comments and, subsequently on January 22, 2007, issued the 
public record 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 Public Record Provision 
of the Energy Policy Act of 2005

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

Contents

Overview of the Public Record Grant Guidelines
Why Is EPA Issuing These Guidelines?
What Is in These Guidelines?
When Do These Guidelines Take Effect?
Public Record Requirements
What Underground Storage Tanks Do These Guidelines Apply To?
How Does a State Implement These Guidelines?
When Must States Develop, Make Available, and Update The Public 
Record?
How Must States Make the Public Record Available?
What Must the Public Record Contain?
Minimum Public Record Content
Number, Sources, and Causes of UST Releases And Data On Equipment 
Failures
How Must States Ensure The Quality Of The Public Record Data?
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 Public Record Grant Guidelines

Background About the Energy Policy Act of 2005

Appendices

Appendix A--Sample Public Record--Summary Information on Underground 
Storage Tanks (USTs)
Appendix B--Sample Release Data-Gathering Form on Underground 
Storage Tanks (USTs)

Overview of the Public Record 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 public 
record provision in Section 9002(d) of the

[[Page 3999]]

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 (c) of Section 1526 of the Energy Policy Act amends 
Section 9002 in Subtitle I of the Solid Waste Disposal Act to add 
requirements for states to maintain, update, and make available to the 
public a record of underground storage tanks (USTs) regulated under 
Subtitle I. EPA must require each state that receives funding under 
Subtitle I to meet the public record requirements. Subsection (d) of 
Section 9002 in Subtitle I requires EPA to prescribe the manner and 
form of the public record, and says that, to the maximum extent 
practicable, the public record of a state must include:
     The number, sources, and causes of underground storage 
tank releases in the state.
     The record of compliance by underground storage tanks in 
the state with Subtitle I or a state program approved under Section 
9004 of Subtitle I.
     Data on the number of underground storage tank equipment 
failures in the state.
    EPA's Office of Underground Storage Tanks (OUST) is issuing these 
grant guidelines to establish the minimum requirements a state 
receiving Subtitle I funding (hereafter referred to as ``state'') must 
meet in order to comply with the public record requirements in Section 
9002(d).

What Is in These Guidelines?

    These guidelines describe the minimum requirements for public 
record that a state's underground storage tank program must meet in 
order for a state to comply with statutory requirements for Subtitle I 
funding. These guidelines include: developing and updating the public 
record; making the record available to the public; describing the 
minimum public record content; ensuring data quality; and demonstrating 
and ensuring compliance with these guidelines.

When Do These Guidelines Take Effect?

    A state must develop a program for gathering information and begin 
gathering data to meet the public record requirement by October 1, 
2007.

Public Record Requirements

What Underground Storage Tanks Do These Guidelines Apply To?

    For purposes of providing the public information on percent 
compliance and numbers of underground storage tanks, facilities, and 
inspections, states must, at a minimum, include underground storage 
tanks regulated under Subtitle I 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 
underground storage tanks. Underground storage tanks used for emergency 
power generation [deferred from release detection by 280.10(d)] must be 
included as part of the public record.
    For purposes of providing the public information on confirmed 
releases and sources and causes of releases, states must, at a minimum, 
include underground storage tanks regulated under Subtitle I that 
satisfy the definition of underground storage tank in 40 CFR 280.12, 
except for those tanks identified in 40 CFR 280.10(b) as excluded 
underground storage tanks. Underground storage tanks deferred in 40 CFR 
280.10(c) and those used for emergency power generation [deferred from 
release detection by 280.10(d)] must be included as part of the public 
record.

How Does a State Implement These Guidelines?

    A state implements these guidelines by making a record containing 
information consistent with these guidelines available to the public.
    A state may choose to make a record that contains more 
comprehensive information than described in these guidelines available 
to the public. For example, a state may choose to make a record 
available to the public that includes underground storage tanks 
regulated by the state but not regulated under Subtitle I.

When Must States Develop, Make Available, and Update the Public Record?

    In 2007, state underground storage tank programs must:

                   Deadlines and Requirements in 2007
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          Not later than                         States must
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September 30, 2007................  Develop a program for gathering
                                     information required for the public
                                     record.
October 1, 2007...................  Begin gathering data to meet the
                                     public record requirement.
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    In 2008 and beyond, state underground storage tank programs must:

              Deadlines and Requirements in 2008 and Beyond
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          Not later than                         States must
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September 30, 2008................  Complete first year's data
                                     gathering.
October 1, 2008 (and beyond)......  Begin next year's data gathering.
December 31, 2008.................  Make the public record available to
                                     the general public.
                                    For consistency with data states
                                     submit to EPA, states should make
                                     available a public record that
                                     includes data from October 1
                                     through September 30 of each year.
September 30, 2009 (and beyond)...  Complete next year's data gathering.
On or before the same day of the    Update the public record at least
 next year (for example, on or       annually.
 before December 31, 2009).
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 How Must States Make the Public Record Available?

    EPA believes state underground storage tank programs should use a 
multi-pronged approach to making the public record available. At a 
minimum, states must make the public record available in electronic 
format and make the public record available to those who request the 
information but do not have electronic access. Each state must develop 
a Web site that does one of the following:
     The public record is posted on or downloadable from the 
Internet. This option may be an interactive Web site that retrieves the 
information, a Web site that lists the information, or a file that is 
downloadable in electronic format.
     The Web site describes how to receive an electronic copy 
of the public record (for example via e-mail).
    In addition, some people may not have access to electronic 
information. Therefore, states must also make the public record 
available to those who request the information, but do not have 
electronic access. Examples of ways to make the public record available 
in this instance include paper copies or a public reading room.

What Must the Public Record Contain?

    States must provide a public record that, at a minimum, contains 
the summary information described below. Appendix A contains a sample 
public record with summary information. In addition to summary 
information, the public record must also provide the public with 
instructions on how to obtain site-specific underground storage tank 
information on compliance and releases.
    Minimum Public Record Content--At a minimum, the following 
information must be included in a state's public record.
     Public Record Posted Date--This is the date the public 
record document was made available to the public.
     Total UST Facilities--This is the total number of 
underground storage tank facilities in the state containing one or more 
regulated underground storage tanks that are not permanently closed. 
Please note that states may separate facilities with temporarily-closed 
underground storage tanks from total facilities as long as they provide 
both numbers.
     Total USTs--This is the total number of regulated 
underground storage tanks in the state that are not permanently closed. 
Please note that states may separate temporarily-closed underground 
storage tanks from total underground storage tanks, as long as they 
provide both numbers.
     Number Of UST Facilities Inspected--This is the total 
number of underground storage tank facilities in the state that had an 
on-site compliance inspection conducted in accordance with EPA 
inspection guidelines applicable at the time of the inspection, and 
conducted between the inspection period dates described below.
     Inspection Period Dates--These are the two dates between 
which the inspections listed above were conducted. At a minimum, these 
dates must cover the 12 month period for which the public record data 
is gathered.
     Percent Compliance--This is the percent of underground 
storage tank facilities inspected between the inspection period dates 
described above that were in compliance with EPA or state regulations 
during the most recent facility inspection. At a minimum, compliance 
means the facility met the combined performance measure (release 
detection and release prevention compliance) of the significant 
operational compliance (SOC) requirements described in EPA's September 
30, 2003 memorandum (and attachments) to EPA regions and States. This 
document is available on the Internet at: http://www.epa.gov/oust/cmplastc/soc.htm. At a minimum, the percent compliance must cover the 
12 month period for which the public record data is gathered.
     Compliance Measurement and Reported UST Universe 
Statements--These statements describe:

--The basis for the compliance determination. For example, the 
compliance rate may be based on the combined performance measure 
(release detection and release prevention compliance) for significant 
operational compliance with state or federal underground storage tank 
requirements. If a state is reporting compliance based on criteria that 
are more stringent than the combined performance measure for 
significant operational compliance, the state also must identify that 
their compliance reporting is more stringent and may list those more 
stringent requirements.
--The universe of underground storage tanks and facilities that the 
public record is based on. At a minimum, the public record must contain 
information on underground storage tanks to which the guidelines apply 
(see page 2 for applicability). If a state provides information to the 
public based on deferred underground storage tanks or underground 
storage tanks that are regulated only by the state, then the statement 
must also provide the public with that information.
     Release Reporting Period Dates--These are the two dates 
between which the confirmed releases reported in the public record 
document occurred. At a minimum, these dates must cover the 12 month 
period for which the public record data is gathered.
     Number Of Confirmed Releases--This is the number of 
confirmed releases that occurred between the release reporting period 
dates described above. The term confirmed release has the same 
definition used in the semiannual activity reports with one exception--
confirmed releases from hazardous substance underground storage tank 
systems must also be included in the public record. The confirmed 
release definition for the semiannual activity reports is available on 
the internet at: http://www.epa.gov/oust/cat/perfmeas.pdf. Please note 
that states may provide petroleum and hazardous substance confirmed 
releases separately as long as they provide both numbers.
     Number And Percent Of Releases By Source--This is the 
number and percent of releases attributed to each source where the 
source of release is known. See the information in the Number, Sources, 
And Causes Of UST Releases And Data On Equipment Failures section below 
for descriptions of sources.
     Number And Percent Of Causes By Source--This is the number 
and percent of causes attributed to each known source. See the 
information in the Number, Sources, And Causes Of UST Releases And Data 
On Equipment Failures section below for descriptions of causes.
    Number, Sources, And Causes Of UST Releases And Data On Equipment 
Failures--The release source and cause data that must be included in 
the public record are those associated with a reportable release in 40 
CFR Part 280.50 or applicable state regulation. States are not required 
to provide information on releases where the source is not known. The 
data on sources and causes of releases also includes data on equipment 
failures, as required by Section 9002(d)(2)(C) of Subtitle I, by 
providing the piece of equipment that failed (release source) and the 
reason for the failure (release cause). The following contains the 
minimum list of sources and causes, including those associated with 
equipment failures, and provides a short description for each:
     Sources


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--Tank--This term means the tank that stores the product and is part of 
the underground storage tank system.
--Piping--This term means the piping and connectors running from the 
tank or submersible turbine pump to the dispenser or other end-use 
equipment. It does not include vent, vapor recovery, or fill lines.
--Dispenser--This term includes the dispenser and equipment used to 
connect the dispenser to the piping. For example, a release from a 
suction pump or components located above the shear valve would be 
considered a release from the dispenser.
--Submersible Turbine Pump (STP) Area--This term includes the 
submersible turbine pump head (typically located in the tank sump), the 
line leak detector, and the piping that connects the submersible 
turbine pump to the tank.
--Delivery Problem--This term identifies releases that occurred during 
product delivery to the tank. Typical causes associated with this 
source are spills and overfills.
--Other--Use this option when the release source does not fit into one 
of the above categories. For example, releases from vent lines, vapor 
recovery lines, and fill lines would be included in this category.

     Causes

--Spill--Use this cause when a spill occurs. For example, spills may 
occur when the delivery hose is disconnected from the fill pipe of the 
tank or when the nozzle is removed from the vehicle at the dispenser.
--Overfill--Use this cause when an overfill occurs. For example, 
overfills may occur from the fill pipe at the tank or when the nozzle 
fails to shut off at the dispenser.
--Physical Or Mechanical Damage (Phys/Mech Damage)--Use this cause for 
all types of physical or mechanical damage except corrosion as 
described below. Some examples of physical or mechanical damage 
include: a puncture of the tank or piping, loose fittings, broken 
components, and components that have changed dimension (for example, 
elongation or swelling).
--Corrosion--Use this cause when a metal tank, piping, or other 
component has a release due to corrosion (for steel, corrosion takes 
the form of rust). This is a specific type of physical or mechanical 
damage.
--Installation Problem--Use this cause when the problem is determined 
to have occurred specifically because the underground storage tank 
system was not installed properly. Note that these problems may be 
difficult to determine.
--Other--Use this option when the cause is known but does not fit into 
one of the above categories. For example, accidentally or intentionally 
putting regulated substances into a monitoring well would be included 
in this category.
--Unknown--Use this option only when the cause is not known.

    Appendix B contains a sample release data-gathering form.

How Must States Ensure the Quality of the Public Record Data?

    To the maximum extent practicable, states must provide accurate and 
complete data to the public. States must use quality assurance 
practices that will: Produce data of quality adequate to meet project 
objectives; minimize reporting of inaccurate data; and allow for timely 
updates to the data as changes or corrections occur.

How Will States Demonstrate Compliance With These Guidelines?

    After September 30, 2007, the date by which states must develop a 
program for gathering the public record information, 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 public 
record, 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 
public record, 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.

    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 UST 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 Public Record 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 further 
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 required 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.
BILLING CODE 6560-50-P

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    Dated: January 22, 2007.
Susan Parker Bodine,
Assistant Administrator, Office of Solid Waste and Emergency Response.
 [FR Doc. E7-1340 Filed 1-26-07; 8:45 am]
BILLING CODE 6560-50-C