[Federal Register Volume 72, Number 89 (Wednesday, May 9, 2007)]
[Notices]
[Pages 26359-26367]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-2266]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

[FRL-8310-3]


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

AGENCY: Environmental Protection Agency.

ACTION: Notice of availability.

-----------------------------------------------------------------------

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

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

ADDRESSES: EPA posted the inspection grant guidelines on our Web site 
at: http://www.epa.gov/oust/fedlaws/epact_05.htm#Final . You may also 
obtain paper copies from the National Service Center for Environmental 
Publications (NSCEP), EPA's publications distribution warehouse. You 
may request copies from NSCEP by calling 1-800-490-9198; writing to 
U.S. EPA/NSCEP, Box 42419, Cincinnati, OH 45242-0419; or faxing your 
request to NSCEP at 301-604-3408. Ask for: Grant Guidelines To States 
For Implementing The Inspection Provisions Of The Energy Policy Act Of 
2005 (EPA 510-R-07-004, April 2007).

FOR FURTHER INFORMATION CONTACT: Tim R. Smith, EPA's Office of 
Underground Storage Tanks, at [email protected] or 703-603-7158.

SUPPLEMENTARY INFORMATION: On August 8, 2005, President Bush signed the 
Energy Policy Act of 2005. Title XV, Subtitle B of this act, titled the 
Underground Storage Tank Compliance Act of 2005, contains amendments to 
Subtitle I of the Solid Waste Disposal Act. This is the first federal 
legislative change for the underground storage tank (UST) program since 
its inception over 20 years ago. The UST provisions of the law 
significantly affect federal and state UST programs, require major 
changes to the programs, and are aimed at further reducing UST releases 
to our environment. Among other things, the UST provisions of the 
Energy Policy Act require that states receiving funding under Subtitle 
I comply with certain requirements contained in the law. OUST worked, 
and is continuing to work, with its partners to develop grant 
guidelines that EPA regional tank programs will incorporate into 
states' grant agreements. The guidelines will provide states that 
receive UST funds with specific requirements, based on the UST 
provisions of the Energy Policy Act, for their state UST programs.
    Sections 9005(c)(1) and 9005(c)(2) of Subtitle I of the Solid Waste 
Disposal Act, as amended by Section 1523 of the Energy Policy Act, 
require states that receive Subtitle I funding to ensure that USTs not 
inspected since December 22, 1998 have an on-site inspection before 
August 8, 2007 and subsequently

[[Page 26360]]

undergo an on-site inspection at least once every three years 
thereafter. As a result of that requirement, EPA worked with states and 
other stakeholders to develop inspection grant guidelines. In November 
2006, EPA released a draft of the inspection grant guidelines. EPA 
considered comments and, subsequently on April 24, 2007, issued the 
inspection grant guidelines. EPA will incorporate these guidelines into 
grant agreements between EPA and states. States receiving funds from 
EPA for their UST programs must comply with the UST provisions of the 
Energy Policy Act and will be subject to action by EPA under 40 CFR 
31.43 if they fail to comply with the guidelines.
    Statutory and Executive Order Reviews: Under Executive Order 12866 
(58 FR 51735, October 4, 1993), this action is not a ``significant 
regulatory action'' and is therefore not subject to OMB review. Because 
this grant action is not subject to notice and comment requirements 
under the Administrative Procedure Act or any other statute, it is not 
subject to the Regulatory Flexibility Act (5 U.S.C. Section 601 et 
seq.) or Sections 202 and 205 of the Unfunded Mandates Reform Act of 
1999 (UMRA) (Pub. L. 104-4). In addition, this action does not 
significantly or uniquely affect small governments. Although this 
action does create new binding legal requirements, such requirements do 
not substantially and directly affect tribes under Executive Order 
13175 (63 FR 67249, November 9, 2000). Although this grant action does 
not have significant federalism implications under Executive Order 
13132 (64 FR 43255, August 10, 1999), EPA consulted with states in the 
development of these grant guidelines. This action is not subject to 
Executive Order 13211, ``Actions Concerning Regulations that 
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 
28355, May 22, 2001), because it is not a significant regulatory action 
under Executive Order 12866. This action does not involve technical 
standards; thus, the requirements of Section 12(d) of the National 
Technology Transfer and Advancement Act of 1995 (15 U.S.C. Section 272 
note) do not apply. This action does not impose an information 
collection burden under the provisions of the Paperwork Reduction Act 
of 1995 (44 U.S.C. Section 3501 et seq.). The Congressional Review Act, 
5 U.S.C. 801 et seq., generally provides that before certain actions 
may take effect, the agency promulgating the action must submit a 
report, which includes a copy of the action, to each House of the 
Congress and to the Comptroller General of the United States. Since 
this final action will contain legally binding requirements, it is 
subject to the Congressional Review Act, and EPA will submit a report 
to Congress containing this final action prior to the publication of 
this action in the Federal Register.

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

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

Contents

Overview of the Inspection Grant Guidelines

Why Is EPA Issuing These Guidelines?
What Is In These Guidelines?
When Do These Guidelines Take Effect?

Requirements for On-Site Inspections

Which Underground Storage Tanks Require An On-Site Inspection?
When Must Underground Storage Tanks Be Inspected?
What Are the Requirements for the On-Site Inspection?
Who May Perform the On-Site Inspection?
What Are the Reporting Requirements to EPA?
How Will States Demonstrate Compliance With These Guidelines?
How Will EPA Enforce States' Compliance With the Requirements in 
These Guidelines?

For More Information about the Inspection Grant Guidelines

Background About the Energy Policy Act of 2005

Appendices

Appendix A--Short-Term Recommendation About Inspections To Meet the 
Energy Policy Act of 2005 Requirements (November 17, 2005 
Memorandum)
Appendix B--Inspection Requirements of the Energy Policy Act: 
Determining Which Underground Storage Tanks Have Undergone an 
Inspection Since December 22, 1998 (June 8, 2006 Memorandum)

Overview of the Inspection Grant Guidelines

Why Is EPA Issuing These Guidelines?

    The U.S. Environmental Protection Agency (EPA), in consultation 
with states, developed these grant guidelines to implement the 
inspection provisions in Sections 9005(c)(1) and 9005(c)(2) of the 
Solid Waste Disposal Act (SWDA), enacted by the Underground Storage 
Tank Compliance Act, part of the Energy Policy Act of 2005 signed by 
President Bush on August 8, 2005.
    Section 1523 of the Energy Policy Act amends Section 9005 in 
Subtitle I of the Solid Waste Disposal Act to add requirements for 
underground storage tank (UST) system inspections for states receiving 
Subtitle I funding as follows:
    1. Uninspected underground storage tanks--Section 9005(c)(1) 
requires that underground storage tanks that have not been inspected 
since December 22, 1998 must have an on-site inspection conducted not 
later than August 8, 2007 to determine compliance with Subtitle I and 
40 CFR 280 requirements or requirements or standards of a state program 
developed under Section 9004.
    2. Periodic inspections--Section 9005(c)(2) requires that, after 
all underground storage tanks required by Section 9005(c)(1) have been 
inspected, on-site inspections of each underground storage tank 
identified in these guidelines must be conducted at least once every 
three years to determine compliance with Subtitle I and 40 CFR 280 
requirements or requirements or standards of a state program developed 
under Section 9004.
    EPA's Office of Underground Storage Tanks (OUST) is issuing these 
grant guidelines to establish the minimum requirements states receiving 
Subtitle I funding must meet in order to comply with the inspection 
provisions of Subtitle I enacted by the Energy Policy Act.

What Is in These Guidelines?

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

When Do These Guidelines Take Effect?

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

Requirements for On-Site Inspections

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

Which Underground Storage Tanks Require an On-Site Inspection?

    For purposes of these guidelines, the term ``underground storage 
tank'' means those tanks that satisfy the definition of underground 
storage tank in 40 CFR

[[Page 26361]]

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

When Must Underground Storage Tanks Be Inspected?

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

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

What Are the Requirements for the On-Site Inspection?

    The purpose of the on-site inspection is to determine compliance 
with Subtitle I and 40 CFR 280 requirements or in the case of a state 
with a program approved under Section 9004 of Subtitle I, compliance 
with the requirements of that program.
    For purposes of these guidelines, an on-site inspection includes an 
inspection conducted at the site of each underground storage tank, 
inspection of associated equipment, and the review of applicable 
records. Review of applicable records and other activities that can be 
accomplished off-site may be combined with activities conducted at the 
site of the underground storage tank to fulfill the on-site inspection 
requirement. Desk audits, self-certifications, information request 
letters, and any other such activities are not sufficient by themselves 
to fulfill the on-site inspection requirements. However, information 
obtained from such activities may be used in conjunction with the on-
site inspection to satisfy the on-site inspection requirement. At a 
minimum, an on-site inspection must assess compliance with the 
following:
     Notification (failure to notify)
     Corrosion protection

--Tanks and piping have appropriate corrosion protection
--Documentation available including testing, inspections, and other 
records

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

--Appropriate method and appropriate equipment or procedures in place
--Documentation of proper monitoring and testing
     Reporting suspected releases
     Records of tank and piping repairs
     Secondary containment where required
     Financial responsibility
     Temporary closure
    A state does not need to make a compliance determination at the 
time of the inspection in order for the inspection to qualify as an on-
site inspection under these grant guidelines. However, the individual 
performing the inspection or the state underground storage tank 
implementing agency must request from the owner or operator all 
information needed to make a compliance determination. EPA encourages 
states to make a compliance determination in a timely manner. States 
should generally continue to conduct enforcement activities as 
appropriate to address any noncompliance with applicable underground 
storage tank program requirements; however, these guidelines do not 
address the nature or scope of such enforcement activities.

Who May Perform the On-Site Inspection?

    An on-site inspection of an underground storage tank must be 
conducted by one of the following:
     EPA inspector.
     A state underground storage tank implementing agency 
inspector.
     Other state or local agency inspector the state 
underground storage tank implementing agency has duly designated, in 
accordance with state procedures, to conduct underground storage tank 
inspections.
     A contractor EPA or a state underground storage tank 
implementing agency has duly designated to conduct underground storage 
tank inspections.
     A private underground storage tank inspector \2\ (private 
inspector) operating under a third-party inspection program as 
described below.
---------------------------------------------------------------------------

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

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

--Be trained in the state-specific inspection protocols and procedures, 
and perform inspections pursuant to such protocols and procedures.
--Successfully complete the state's required training program. The 
training program for private inspectors must be comparable to the 
training program for state inspectors.

     Third-party inspection programs must require private 
inspectors to meet conflict of interest requirements developed by the 
state. At a minimum, private inspectors must not be: The owner or 
operator of the underground storage tank; an employee of the owner or 
operator of the underground storage tank; or a person having daily on-
site responsibility for the operation and maintenance of the 
underground storage tank.
     Third-party inspection programs must use an inspection 
report form developed by the state that covers the requirements 
identified in the What Are The Requirements For The On-Site Inspection? 
section of these guidelines. As previously indicated, not all required 
activities have to be conducted at the site. Review of applicable 
records and other activities that can be accomplished off-site may be 
combined with activities conducted at the site to fulfill the on-site 
inspection requirement.
     Private inspectors must complete and submit the inspection 
report to the state underground storage tank-implementing agency in the 
manner and time frame established by the state. States must either 
require that private

[[Page 26362]]

inspectors retain inspection related documentation in a comparable 
manner to state inspectors or submit the documentation to the state. 
The state must review each inspection report and make a compliance 
determination for each site.
     Third-party inspection programs must contain an audit 
program, developed by the state, to monitor private inspectors on a 
routine basis. The audit program must include a sufficient number of 
on-site inspections to effectively assess inspector performance.
     States must retain the capability to conduct: Audits of 
inspections conducted by private inspectors; for-cause inspections 
(e.g., inspections conducted as a result of a complaint); and 
inspections of other underground storage tank sites that the state 
determines warrant an on-site inspection. The state underground storage 
tank agency or another duly designated state or local agency must 
perform a sufficient number of these inspections so the state retains 
the capacity to perform on-site inspections and maintains the integrity 
of the third-party inspection program.
     If a private inspector fails to demonstrate to the state 
adequate competence and proficiency to perform underground storage tank 
inspections, or the state otherwise determines it is not appropriate 
for the private inspector to conduct on-site inspections as part of a 
third-party inspection program, the state must take appropriate action 
against the private inspector. Appropriate action should generally be 
defined by the state in its third-party inspection program and may 
include enforcement mechanisms such as: Temporary suspension or 
permanent revocation of the private inspector's certification, license, 
or registration; fines, penalties, retraining, and examination; or any 
other action the state deems appropriate to include as an enforcement 
mechanism against the private inspector.
    States implementing a third-party inspection program as of the 
published date of these guidelines in the Federal Register have until 
August 8, 2010 to meet the third-party inspection program requirements 
described above. States that implement a third-party inspection program 
after the published date of these guidelines in the Federal Register 
must meet the requirements at the time the program is implemented.

What Are the Reporting Requirements to EPA?

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

How Will States Demonstrate Compliance With These Guidelines?

    After August 8, 2007, and before receiving future grant funding, 
states must provide one of the following to EPA:
     For a state that has met the inspection requirements, the 
state must submit a certification indicating that the state meets the 
requirements in these guidelines.
     For a state that has not yet met the requirements for 
inspections, the state must provide a document that describes the 
state's efforts to meet the requirements. This document must include:

    --A description of the state's activities to date to meet the 
requirements in these guidelines;
    --A description of the state's planned activities to meet the 
requirements; and
    --The date by which the state expects to meet the requirements.

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

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

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

For More Information About the Inspection Grant Guidelines

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

Background About the Energy Policy Act of 2005

    On August 8, 2005, President Bush signed the Energy Policy Act of 
2005. Title XV, Subtitle B of this act (titled the Underground Storage 
Tank Compliance Act) contains amendments to Subtitle I of the Solid 
Waste Disposal Act `` the original legislation that created the 
underground storage tank (UST) program. These amendments significantly 
affect federal and state underground storage tank programs, will 
require major changes to the programs, and are aimed at reducing 
underground storage tank releases to our environment.
    The amendments focus on preventing releases. Among other things, 
they expand eligible uses of the Leaking Underground Storage Tank 
(LUST) Trust Fund and include provisions regarding inspections, 
operator training, delivery prohibition, secondary containment and 
financial responsibility, and cleanup of releases that contain 
oxygenated fuel additives.
    Some of these provisions require implementation by August 2006; 
others will require implementation in subsequent years. To implement 
the new law, EPA and states will work closely with tribes, other 
federal agencies, tank owners and operators, and other stakeholders to 
bring about the mandated changes affecting underground storage tank 
facilities.
    To see the full text of this new legislation and for more 
information about EPA's work to implement the underground storage tank 
provisions of the law, see: http://www.epa.gov/oust/fedlaws/nrg05_01.htm

BILLING CODE 6560-50-P

[[Page 26363]]

[GRAPHIC] [TIFF OMITTED] TN09MY07.000


[[Page 26364]]


[GRAPHIC] [TIFF OMITTED] TN09MY07.001


[[Page 26365]]


[GRAPHIC] [TIFF OMITTED] TN09MY07.002


[[Page 26366]]


[GRAPHIC] [TIFF OMITTED] TN09MY07.003



[[Page 26367]]


    Dated: May 2, 2007.
Susan Parker Bodine,
Assistant Administrator, Office of Solid Waste and Emergency Response.
[FR Doc. 07-2266 Filed 5-8-07; 8:45 am]
BILLING CODE 6560-50-C