19–010

Calendar No. 732

107TH CONGRESS REPORT

2d Session " ! SENATE 107–316

THE UNDERGROUND STORAGE TANK COMPLIANCE ACT

OF 2002

OCTOBER 16, 2002.—Ordered to be printed

Mr. JEFFORDS, from the Committee on Environment and Public

Works, submitted the following

REPORT

[to accompany S. 1850]

[Including cost estimate of the Congressional Budget Office]

The Committee on Environment and Public Works, to which was

referred a bill (S. 1850) to amend the Solid Waste Disposal Act to

bring underground storage tanks into compliance with subtitle I of

that Act, to promote cleanup of leaking underground storage tanks,

to provide sufficient resources for such compliance and cleanup,

and for other purposes, having considered the same reports favorably thereon with an amendment and recommends that the bill, as

amended, do pass.

GENERAL STATEMENT AND BACKGROUND

The Environmental Protection Agency (EPA) estimates that

there are currently over 909,000 active underground storage tanks

(USTs) containing petroleum products. Many of these tanks have

leaks, causing potential harm to human health and the environment.

In 1984, Congress enacted, as Subtitle I of the Solid Waste Disposal Act, a comprehensive program to address the problem of leaking underground storage tanks. The program required EPA to develop leak detection and prevention standards for underground

storage tanks (USTs), and authorized the Agency to compel tank

owners and operators to take corrective action to clean up leaking

tanks and comply with standards for USTs, or to close them. States

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have largely taken the lead in implementing and enforcing the program requirements, including corrective action requirements.

States receive Federal funds from the LUST Trust Fund, which

is paid for by a one-tenth of one cent tax on all petroleum products,

to carry out the requirements. This tax generates approximately

$170 million per year, and the interest on the principal in the fund

generates approximately $70 million annually (roughly the amount

of annual appropriations from the LUST Trust Fund). Amounts are

appropriated each year from the Trust Fund for the States and

EPA to implement and enforce the UST corrective action requirements; to conduct cleanups in certain limited situations where

there is no financially viable responsible party or where a responsible party fails to undertake the appropriate corrective action; to

take corrective action in cases of emergency; and to bring cost recovery actions against parties to seek reimbursement of costs expended from the Fund to clean up sites. The balance of the Trust

Fund is approximately $1.3 billion. The annual appropriation from

the LUST Trust Fund for fiscal year 2002 is expected to be approximately $72 million. Congress has appropriated approximately

$10 million per year from general revenues for State implementation of leak prevention and detection programs. In addition to the

Federal LUST Trust Fund, many States have also established

funds, capitalized through State gas taxes, fees, and other mechanisms, to pay for cleanups and to provide assistance to tank owners

in complying with other requirements. States spend approximately

$1 billion per year from their Trust Funds. However, in recent

years, the claims against those funds have risen dramatically.

While over a million leaking USTs have been closed under this

program, EPA estimates that there are currently over 740,000 active USTs containing petroleum products. Some of these tanks have

leaks, causing potential harm to human health and the environment. A number of recent, high profile contamination cases have

highlighted the problem. Methyl tertiary butyl ether (MTBE) has

been detected at thousands of leaking UST sites. In some cases,

drinking water wells have been closed due to these releases of

MTBE. According to EPA, States have reported more than 400,000

confirmed releases from USTs. Cleanups have been initiated for approximately 357,000 releases and almost 242,000 cleanups have

been completed. In spite of this progress, many thousands of cleanups remain to be completed. EPA, States, and the private sector

have suggested that lack of resources, both for cleanup and for inspections and enforcement, have limited efforts to fully address

MTBE contamination and leaking USTs.

S. 1850 strengthens the existing statutory framework for underground storage tanks. The bill amends Subtitle I to require that

EPA distribute at least 80 percent of its annual appropriation from

the Leaking Underground Storage Tank Trust Fund to States

under cooperative agreements. The bill also gives States greater

flexibility to use the funds for enforcement of the program, administrative costs, and corrective action and compensation programs.

Finally, the bill affirms that EPA may use funds from the Trust

Fund for enforcement of the UST program.

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OBJECTIVES OF THE LEGISLATION

On May 4, 2001, the U.S. General Accounting Office (GAO) released a report entitled ‘‘Environmental Protection: Improved Inspections and Enforcement Would Better Ensure the Safety of Underground Storage Tanks.’’ This report found that 89 percent of the

total number of regulated tanks, or 616,865 tanks, received federally required equipment upgrades by the end of fiscal year 2000.

In addition, GAO estimated that about 29 percent of the regulated

tanks, or 201,001 tanks, were not being operated or maintained

properly, increasing the risk of soil and groundwater contamination.

S. 1850 was crafted to improve the compliance of underground

storage tanks nationwide. The legislation provides resources for the

cleanup of tanks that have already leaked, but more importantly

provides increased emphasis on leaked prevention so communities

can be spared from the problems and expense that are often associated with leaking tanks, especially when drinking water supplies

become contaminated.

This legislation improves the current law by: requiring that all

regulated underground storage tanks undergo onsite inspections

every 2 years; requiring EPA to issue guidance on how to train operators of USTs; requiring States to develop operator training

strategies; providing enforcement flexibility for UST owners that

have operator training programs in place; providing EPA authority

to prohibit fuel delivery to tanks that are not in compliance; requiring States to prepare implementation reports for bringing tanks

owned by State and local governments into compliance; requiring

Federal agencies to prepare implementation reports for bringing

federally owned tanks into compliance; increasing funding for UST

programs.

SECTION-BY-SECTION ANALYSIS

Section 1. Short Title

Sets forth the short tile of the bill as the ‘‘Underground Storage

Tank Compliance Act of 2002.’’

Sec. 2. Leaking Underground Storage Tanks

SUMMARY

Section 2 gives States greater flexibility to implement the underground storage tank program. First, the new subsection (f)(1) provides that EPA must distribute to the States at least 80 percent

of the funds appropriated each year from the Leaking Underground

Storage Tank Trust Fund. The States may use these funds to pay

for the reasonable costs of: (1) actions to carry out and enforce corrective actions; (2) necessary administrative costs of State assurance funds; (3) enforcement of a State program; (4) State or local

corrective actions; and (5) corrective action or compensation programs under a State program if there is no financially viable owner

or operator of an UST. This section also provides for the allocation

of funds to States by the Administrator.

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DISCUSSION

This section adds a new subsection (f) to Section 9004 of the

Solid Waste Disposal Act to guarantee that States will receive a

minimum of 80 percent of the annual appropriation from the LUST

Trust Fund. This percentage is intended to be a floor; the actual

percentage distributed to the States in any given year may exceed

that level. Historically, EPA has distributed varying amounts to

the States, ranging from as little as 81 percent of the annual appropriation to as much as 89 percent. The average distribution has

been in the range of 85 percent. The committee expects EPA to distribute more than the statutory minimum of 80 percent of the appropriated LUST funds annually if the Agency’s annual budgetary

needs, including needs for implementation of the LUST program

with respect to tanks within Tribal jurisdiction, are less than 20

percent of appropriated funds.

New subsection (f)(1)(A)(iii) authorizes a State to make the determination of whether an owner or operator of an underground storage tank is financially viable (i.e., whether the owner or operator

has sufficient resources to pay for a corrective action without significantly impairing the ability of the owner or operator to continue

in business), in accordance with guidelines to be developed by EPA

and the States. In making the determination of whether an owner

or operator has the ability to pay, the State must take into consideration any funding received by the tank owner from the State.

In addition to expanding the uses of the Trust Fund, this section

reaffirms that States may not use these funds to provide financial

assistance to owners and operators of tanks to comply with existing

regulations governing USTs, including the requirements for upgrading of existing tanks.

While the bill allows for several new uses of the LUST Trust

Fund, the legislation does not prioritize among uses. Funding for

existing uses (including enforcement of corrective action requirements, corrective actions taken by State and local governments at

responsible party sites, and cost recovery actions) most effectively

serves the needs for protection of human health and the environment. The committee intends that the distribution of Federal funding recognize the importance of enforcement and corrective action

requirements to the protection of human health and the environment.

Subsection (f)(2) sets forth the process to be used to allocate

funds among States. In general, EPA is directed to distribute funds

in accordance with the existing allocation process utilized by the

Agency. The process may be revised only after consulting with the

States. Any revisions must take into consideration a number of factors, including: the total tax revenue contributed to the Trust Fund

from all sources within the State; the number of confirmed releases

from federally regulated USTs; the number of federally regulated

USTs in a State; groundwater use in a State; program performance

in a State; the financial needs of a State; and the ability of a State

to use its allocated funds in any given year. According to EPA, the

current allocation process takes into consideration these factors.

The committee intends that any revisions to the current allocation

process should maintain an inclusive process for EPA consultation

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with States to ensure that EPA obtains necessary information from

States.

Subsection (f)(3) requires distributions from the Trust Fund be

made directly to the State agency and distributed in accordance

with the cooperative agreement with EPA. Subsection (f)(4) prohibits the use of funds from the Trust Fund distributed under subsection (f)(1)(A)(iii) from being used for cost recovery by the Administrator under section 9006(h)(6).

Sec. 3. Inspection of Underground Storage Tanks

SUMMARY

Section 3 directs the Administrator, or a State with an approved

program, to require that all USTs regulated under Subtitle I undergo onsite inspections every 2 years. A June 2000 report released

by EPA entitled ‘‘Report to Congress on a Compliance Plan for the

Underground Storage Tank Program’’ estimates that the cost of

this bi-annual inspection requirements will be $35 million for each

of the first 2 years and $20 million for every year after that. Section 9 authorizes that level of funding to pay for this inspection requirement.

DISCUSSION

Section 3 creates a new section 9005(a) which requires the Administrator or a State with an approved UST program to inspect

each UST not later than 2 years after the date of enactment and

at least once every 2 years thereafter. The committee does not intend that this section prevent States from adopting more stringent

or frequent UST inspection programs or from permitting States to

maintain existing inspection programs that are more stringent or

frequent than the requirements of subtitle I. Rather, this section

establishes a minimum level of frequency, although States may require more frequent inspections provided a State’s inspection program is not inconsistent with the provisions of the subtitle. States

are encouraged to implement innovative methods to carry out the

requirements of this section.

The committee intends that the onsite inspections required under

this section must include a comprehensive inspection of all readily

accessible portions of each UST system, including equipment and

records. The committee recognizes that a substantial portion of

each UST system is installed below grade with a concrete covering.

The committee does not intend that the onsite inspections required

under this section involve inspection of these inaccessible components of each UST system, although visible above-ground signs of

leakage from below-ground fixtures should be sought. At the same

time, a review of paperwork and records without physically inspecting the equipment would not satisfy the requirement in this section

that the inspections be undertaken ‘‘onsite.’’

Sec. 4. Operator Training

SUMMARY

Section 4 requires the Administrator to publish guidelines, after

notice and comment, which specify methods for training operators

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of underground storage tanks. The guidelines must take into account existing training programs put into place by States and operators, the high turnover rate of operators, the frequent improvements in tank technology, and the nature of the businesses in

which operators are engaged.

From the date on which the Administrator publishes the guidelines, States have 2 years to develop and implement a strategy for

the training of operators of underground storage tanks that are

consistent with the guidelines that are developed in cooperation

with owners and operators, and that take into consideration existing operator training programs. This section allows the Administrator to provide a grant up to $50,000 if the State develops and

implements a State operator training strategy.

DISCUSSION

The May 2001 GAO report concludes that 29 percent of USTs

regulated under subtitle I are not being operated or maintained

properly. After millions of dollars have been spent bringing USTs

into compliance with Federal standards in order to reduce the

threat of leaking and the resulting problems, leaking tanks due to

operator error is unacceptable. Human errors will always occur,

but steps must be taken to minimize their occurrence.

The committee has received testimony that there are some operator training programs in effect at the retail level, but a 29 percent

failure rate demands that more emphasis be placed on this very

important aspect. Section 4 creates a new section 9010 in subtitle

I to ensure that greater emphasis is placed on operator training.

Section 9010(a) requires the Administrator to promulgate, within 2

years of enactment, guidelines that specify methods for training

tank operators. The guidelines must take into account (A) State

training programs in existence as of the date of publication of the

guidelines; (B) training programs that are being employed by owners and operators as of the date of enactment of this paragraph; (C)

the high turnover rate of operators; (D) the frequency of improvement in underground storage tank equipment technology; (E) the

nature of the businesses in which the operators are engaged; and

(F) such other factors as the Administrator determines to be necessary to carry out this section.

The considerations explicitly direct the Administrator to take

into account existing State and operator training programs because

this program will be most successful if it builds on successful models that may exist. Also, the Administrator must take into consideration the nature of the business in which operators are engaged.

The guidelines must take into consideration the high turnover rate

of employees at retail gasoline stations and not require a level of

training that would be impractical given the nature of the business.

Section 9010(b) requires each State to develop and implement a

strategy for the training of operators within 2 years after the date

in which the Administrator publishes the operator training guidelines required in subsection (a). The State strategies must be consistent with the EPA guidelines promulgated under subsection (a)

and must take into consideration the training programs implemented by owners and operators as of the date of enactment of this

subsection. Rather than penalizing States for not complying with

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this section, it is the intent of this new section to provide States

with performance bonuses of up to $50,000 for compliance with this

section.

Sec. 5. Remediation of MTBE Contamination

SUMMARY

Section 5 authorizes the Administrator and States to carry out

remediation of methyl tertiary butyl ether (MTBE) releases that

present a threat to human health or welfare or the environment.

Section 9 authorizes $125 million for each of fiscal years 2003

through 2007 for this purpose, for a total of $625 million over 5

years.

DISCUSSION

Relatively low levels of MTBE can be detected in groundwater.

The detection of MTBE, by taste and smell, can make the water

unpalatable, but not necessarily harmful. Section 5 amends Section

9003 of the Solid Waste Disposal Act to clarify that the Administrator and the States may undertake corrective actions whenever

the presence of MTBE in groundwater presents a threat to public

welfare, even in situations where the level of MTBE is not so high

as to present a threat to human health or when the release is not

from an underground storage tank.

New section 9003(h)(12) reconfirms the authority of the Administrator and the States to use funds from the LUST Trust Fund for

the cleanup of sites contaminated by MTBE from leaking USTs. In

addition, section 9003(h)(12) authorizes the Administrator and the

States to conduct such cleanup activities using designated funds

made available under new section 9014(2)(B) from the LUST Trust

Fund. In order to undertake a corrective action under this subsection, the Administrator or a State must still comply with the requirements of Section 9003(h)(2) of the Solid Waste Disposal Act.

States are to exercise this authority in accordance with their cooperative agreements.

Sec. 6. Release Compliance and Prevention

SUMMARY

Section 6 provides a range of measures intended to promote and

enhance the compliance and prevention of releases from underground storage tanks through a combination of mechanisms. Those

mechanisms include increased funding for enforcement activities,

increased focus on tanks owned by State and local governments,

enforcement incentives for owners and operators, authority for the

Environmental Protection Agency to prohibit the delivery of regulated substances to underground storage tanks, and the creation of

a public record.

DISCUSSION

Section 6(a) amends Subtitle I of the Solid Waste Disposal Act

by creating a new Section 9011 giving States greater flexibility in

their use of LUST funds. New Section 9011 authorizes EPA and

the States to use funds appropriated from the LUST Trust Fund

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to conduct inspections, issue orders, or bring actions under Subtitle

I. Funding authorized under this section is for both formal enforcement actions, such as judicial actions and administrative orders,

and related measures to secure compliance, such as notices of violation or warnings. This increased funding for inspections and enforcement-related activities will enable States and EPA to secure

greater compliance with UST standards. Increased compliance will

prevent future releases and resulting cleanup costs. Funds authorized under this provision may be used for cost recovery.

This section does not affect current law on State authority under

authorized programs or Federal authority to enforce the requirements of Subtitle I. Nor does this provision affect EPA’s authority

to use other funds to enforce the UST program. EPA receives funding from sources other than the LUST Trust Fund to undertake inspection and enforcement related activities for leak detection and

other preventive requirements. Any LUST Trust Fund appropriations used for such enforcement activities by EPA are expected to

supplement funds that the Agency has been receiving, and will continue to receive, from sources other than the LUST Trust Fund.

In addition to authorizing funding for States and EPA for federally authorized programs, this section authorizes States to use

funds to undertake inspection and enforcement related actions for

State tank leak detection, prevention, and other requirements

through State programs with requirements that are similar or

identical to Subtitle I. State agencies currently receive funding

from EPA from sources other than the LUST Trust Fund to undertake such activities for leak detection and other preventive requirements. It is expected that States will continue to receive funding

from EPA from these other sources, as well as from the LUST

Trust Fund, for these activities. Any LUST Trust Fund appropriations used for enforcement-related activities by States should supplement funds that the States have been receiving, and will continue to receive.

Section 6(b) adds new subsection (i) to section 9003 which requires States to submit to EPA a strategy to ensure compliance of

tanks owned by State or local governments with the provisions of

the subtitle. This section allows the Administrator to provide a

grant up to $50,000 if the State develops the implementation report. Every UST in the Nation, whether owned by a private party

or a State or local government, was required under Federal law to

be upgraded or closed by December 22, 1998. According to the 2001

report by the General Accounting Office, a sizable portion of the

USTs which have not been upgraded, as of 2001, were owned by

State and local governments. The committee intends this section to

provide incentives for these governmental entities to comply with

the Federal UST requirements at the earliest possible date.

Section 6(b) does not provide these governmental entities with an

extension of the 1998 upgrade deadline. Rather, it mandates that

these governmental entities provide EPA with a detailed report on

the status of all publicly owned UST systems under their jurisdiction within 2 years of enactment, including a list of the locations

of all non-compliant government-owned USTs. It is the committee’s

expectation that these governmental entities will strive to comply

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with the tank requirements rather than submit lengthy lists of

noncompliant tanks.

Section 6(c) provides enforcement flexibility to EPA when determining the terms of a compliance orders or the amount of a civil

penalty. The Administrator may provide this leniency if the owner

or operator has a history of operating underground storage tanks

in accordance with applicable law or if they have implemented an

operator training program. Conversely, the Administrator shall not

provide leniency to owners and operators that have repeatedly violated Federal and State UST requirements. The intent of this section is not to penalize owners and operators for paperwork violations deemed to be minor.

Section 6(d) provides the Administrator, or States with an approved program, with authority to prohibit the delivery of regulated substances to underground storage tanks that are not in compliance with a requirement or standard promulgated by the Administrator or a State. Prior to exercising this authority, EPA must

promulgate regulations that describe the circumstances under

which the authority may be used and the process by which the authority will be used consistently and fairly.

New section 9006(f) authorizes the Administrator or a State to

prohibit deliveries of motor fuels to USTs that are not in compliance with Federal or State UST regulations (so-called ‘‘red-tag’’ authority). Such delivery prohibitions are an important tool in UST

enforcement, as it imposes potential liability not just on the UST

owner/operator but also on the supplier of the motor fuels being delivered to a non-compliant tank. States that have adopted such delivery prohibitions have witnessed an increase in UST compliance.

It is possible that such delivery prohibitions, as well as the 1998

requirement to upgrade or close USTs, could result in the closure

of motor fuel outlets in remote locations where alternative fueling

locations are not readily at hand. Consequently, section 9006(f)

adopts a temporary limitation on the use of delivery prohibitions

for locations in areas where the closure of the outlet with the noncompliant UST would leave motorists with no other fueling alternative.

This limitation, however, is not intended to prohibit the Administrator or a State from enforcing the 1998 UST standards against

the owners and operators of such remote USTs. These UST owners/

operators have had since 1986 to upgrade these USTs and have

now been in violation of Federal and State law for 4 years. The remote location of the UST is not an excuse for failure to upgrade

the UST fuel leaking from such a tank is just as likely as any other

UST to contaminate local water supplies.

Therefore, the 180-day limitation on this authority is not intended to limit the Administrator’s or a State’s authority to close

such remote location tanks immediately for failure to comply with

Federal or State UST standards. Rather, the limitation restricts

the Administrator’s or a State’s use of the delivery prohibition authority authorized by this section with respect to such remote

USTs, and gives these UST owner/operators an opportunity to

bring tanks into compliance with the statute. This limitation only

applies for 180 days after the Administrator or a State has given

the UST owner/operator notice of non-compliance. After 180 days,

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the committee encourages the Administrator or a State to use delivery prohibition against the UST owner/operator if the UST has

not yet been brought into compliance with Federal and State UST

standards.

The Administrator is directed to issue guidelines which define

the term ‘‘specified geographic areas’’ and it is expected that the

term would be defined narrowly. The committee expects that few

USTs would qualify for this limitation and that the burden must

be on the subject UST owner/operator to show that the closure of

the subject UST would make motor fuel unavailable to motorists in

a small town or area.

Section 6(e) directs the Administrator to require States and Indian tribes to maintain, update at least annually, and make available to the public, a record of USTs regulated under this subtitle.

EPA shall make each public record available to the public electronically.

Sec. 7. Federal Facilities

SUMMARY

Section 7 requires the Administrator, in cooperation with Federal

agencies which own or operate USTs or which manage land on

which USTs are located, to review the status of compliance of those

tanks within 1 year of enactment. Within 2 years of enactment,

each Federal agency which owns or operates USTs or which manage land on which USTs are located must develop strategies to

bring their tanks into compliance with applicable law.

DISCUSSION

Compliance of all UST systems with the requirements of subtitle

I is of paramount importance. The provisions of the bill focus

equally on privately owned tanks and tanks owned by government

entities. A tank owned by a unit of government or a tank which

is located on Federal land must be held to the same standards as

those tanks owned by private entities.

To address this balance, section 7 adds a new section 9007(c)

which requires the Administrator, in cooperation with each Federal

agency that owns or operates USTs or that manages land on which

USTs are located to review and report on the compliance status of

federally regulated tanks. While the outcome of the Federal UST

program must be full compliance, it is important that sufficient information be collected in order to ensure that limited resources are

being channeled toward the problem areas. Therefore, within 1

year of enactment, the Federal agencies are required to review and

report on their compliance status. In addition, those same agencies

must also submit to the Administrator an implementation report

which lists each UST, which they own or which is located on their

land, which is not in compliance with subtitle I and describe the

actions that have been and will be taken to ensure compliance.

This information must be made available to the public. The information will not shield tank owners from any penalties or actions

to which they are subject under subtitle I.

New section 9007(d) includes a provision which requires Federal

facilities covered by section 9007(a) to be subject to the provisions

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of 6001(a). This new provision is intended to ensure that the requirements under the Solid Waste Disposal Act apply equally to

private entities and Federal entities.

Sec. 8. Tanks Under the Jurisdiction of Indian Tribes

SUMMARY

Section 8 requires the Administrator, in cooperation with Indian

tribes, to develop and implement a strategy within 1 year of enactment that prioritizes UST releases on Indian lands and takes necessary corrective actions with respect to those prioritized releases.

Within 2 years of enactment, and every 2 years thereafter, the Administrator shall submit to Congress a report that summarizes the

status of implementation of the UST program on Indian lands.

DISCUSSION

Section 8 directs EPA, in coordination with Indian Tribes, to develop and implement a strategy to undertake the necessary corrective actions and to implement and enforce other requirements in

connection with USTs within Tribal jurisdiction. Within 2 years of

the date of enactment of S. 1850, and every 2 years thereafter,

EPA is to submit to Congress a report on the progress of the Agency in implementing the UST program with respect to tanks within

Tribal jurisdiction.

According to EPA, implementation of the leaking underground

storage tank program with respect to tanks within Tribal jurisdiction has presented a number of unique challenges. The large number of Indian Tribes and their geographic diversity can make implementation difficult. In addition, unlike most States that have established separate State cleanup funds that contribute to the cleanup of releases from underground storage tanks, Indian Tribes generally have not established cleanup funds to offset remediation

costs. This bill is intended to promote the timely and effective response to contamination from leaking underground storage tanks

within Tribal jurisdiction.

Sec. 9. State Authority

SUMMARY

Section 9 clarifies that States have the authority to establish requirements that are more stringent than the requirements of Subtitle I.

DISCUSSION

The Federal underground storage tank program has proven very

effective at carrying out the goals of subtitle I. The success is often

attributed to the effective relationship between the Federal Government and the States, whereby all but a few States implement the

Federal program in a way that is consistent with the Federal program, but designed to be successful in a particular State. Section

9 adds a new section 9013 to subtitle I which seeks to clarify the

status quo, in which nothing prohibits a State from establishing a

standard or requirement that is more stringent than Federal law.

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Sec.10. Authorization of Appropriations

SUMMARY

Section 10 authorizes appropriations for each of the various functions that are required in the legislation.

DISCUSSION

Section 10 adds a new section 9014 to subtitle I of the Solid

Waste Disposal Act. Section 9014(1) provides from general revenues an authorization of $25,000,000 for each of fiscal years 2003

through 2007 to carry out subtitle I (except the leaking underground storage tank program).

New section 9014(2) provides an authorization for appropriation

from the Leaking Underground Storage Tank Trust Fund for various purposes. The legislation authorizes $150,000,000 to carry out

the leaking underground storage tank program; $125,000,000 for

each of fiscal years 2003 through 2007 for the remediation of

MTBE contamination; $35,000,000 for each of fiscal years 2003 and

2004 and $20,000,000 for each of fiscal years 2005 through 2007 to

carry out the biannual inspections required in new section 9005(a);

and $50,000,000 for fiscal years 2003 and $30,000,000 for each of

fiscal years 2004 through 2008 to carry out new section 9011.

The authorization levels in this section are a significant increase

from the levels which have been appropriated over the past several

years. The increase in the authorization levels signifies the complexity and number of UST releases that exist currently and the

shortfall of funding with which to address the problems. The balance in the Leaking Underground Storage Tank Trust Fund has

grown every year. Not only does the Trust Fund continue to grow

with receipts from the petroleum tax, the interest on the principal

continues to pad the balance of the Fund. In fact, the historic appropriations for this program are roughly equal to the interest generated by the principal. It is the intent of this legislation to bring

funding levels to a level that is more even with the annual inputs

into the Fund.

Sec. 11. Conforming Amendments

Sec. 12. Technical Amendments

These sections of the bill make conforming and technical amendments to the Solid Waste Disposal Act.

LEGISLATIVE HISTORY

On December 19, 2001, Senators Chafee, Carper, Smith of New

Hampshire, Jeffords, and Inhofe introduced S. 1850, a bill to

amend the Solid Waste Disposal Act to bring underground storage

tanks into compliance with subtitle I of that Act, to promote cleanup of leaking underground storage tanks, to provide sufficient resources for such compliance and cleanup, and for other purposes.

The Committee on Environment and Public Works conducted a

hearing on S. 1850 on February 25, 2002 and the Subcommittee on

Superfund, Toxics, Risk, and Waste Management conducted a hearing on May 8, 2002.

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S. 1850, as amended, was reported by the Committee on Environment and Public Works on July 25, 2002.

HEARINGS

On February 25, 2002, the Committee on Environment and Public Works conducted a field hearing in Pascoag, Rhode Island to receive testimony on S. 1850, the Underground Storage Tank Compliance Act of 2001, and the impact of leaking underground storage

tanks on local communities. The committee received testimony

from Mr. George Reilly, Pascoag, RI; Mr. Michael Wallace, Pascoag,

RI; Mr. Jan Reitsma, Director, Rhode Island Department of Environmental Management, Providence, RI; Hon. Scott Rabideau,

Rhode Island State Representative, Harrisville, RI; Mr. Arthur J.

DeBlois III, President & CEO, DB Companies, Inc., Providence, RI,

on behalf of the Society of Independent Gasoline Marketers of

America (SIGMA) and the National Association of Convenience

Stores (NACS); and Mr. Jeff Kos, President, Environmental Council of Rhode Island, Providence, RI.

On May 8, 2002, the Subcommittee on Superfund, Toxics, Risk,

and Waste Management conducted a hearing to receive testimony

on S. 1850, the Underground Storage Tank Compliance Act of

2001. The subcommittee received testimony from Hon. Marianne

Horinko, Assistant Administrator, Office of Solid Waste and Emergency Response, U.S. Environmental Protection Agency, Washington, DC; Mr. John Stephenson, Director, Natural Resources and

Environment, U.S. General Accounting Office, Washington, DC;

Mr. Craig Perkins, Director of Environmental & Public Works

Management, city of Santa Monica, Santa Monica, CA; Mr. Grant

Cope, Staff Attorney, U.S. Public Interest Research Group, Washington, DC; Ms. Kathleen Stiller, ASTSWMO Tanks Subcommittee

Chair, Delaware Department of Natural Resources and Environmental Control, New Castle, DE, on behalf of the Association of

State and Territorial Solid Waste Management Officials

(ASTSWMO); Mr. Arthur J. DeBlois III, President & CEO, DB

Companies, Inc., Providence, RI, on behalf of the Society of Independent Gasoline Marketers of America (SIGMA) and the National

Association of Convenience Stores (NACS); and Mr. Roger Brunner,

Profits Center Manager, Zurich North America, East Lansing, MI.

ROLLCALL VOTES

On July 25, 2002, the Committee on Environment and Public

Works met to consider S. 1850, the Underground Storage Tank

Compliance Act of 2001. A manager’s amendment offered by Senators Chafee and Jeffords was agreed to by voice vote.

A first degree technical amendment offered by Senators Chafee

and Jeffords, as amended, was agreed to by voice vote. A second

degree amendment offered by Senators Smith of New Hampshire,

Chafee and Jeffords to ensure that funds authorized for remediation of MTBE contamination need not be linked to underground

storage tanks was agreed to by voice vote.

An amendment offered by Senator Smith of New Hampshire to

reauthorize and amend provisions relating to recycled oil liability

under the Comprehensive Environmental Response, Liability, and

14

Compensation Act (CERCLA) of 1980 failed to pass by a rollcall

vote of 5 ayes to 11 nays with 3 not voting. Voting in favor were

Senators Bond, Crapo, Inhofe, Smith of New Hampshire, and

Voinovich. Voting against were Senators Baucus, Boxer, Carper,

Chafee, Clinton, Corzine, Graham, Jeffords, Lieberman, Reid, and

Wyden. Not voting were Senators Domenici, Specter, and Warner.

An amendment offered by Senator Crapo to reaffirm the authority of States to regulate underground storage tanks on certain

lands was agreed to by voice vote.

An amendment offered by Senator Chafee (for Senator Wyden) to

ensure that certain provisions applicable to Federal facilities apply

with respect to Federal underground storage tanks was agreed to

by voice vote. Senator Smith of New Hampshire asked to be recorded as voting ‘‘no’’.

REGULATORY IMPACT STATEMENT

Section 11(b) of rule XXVI of the Standing Rules of the Senate

requires publication of the report of the committee’s estimate of the

regulatory impact made by the bill as reported. No regulatory impact is expected by the passage of S. 1850. The bill will not affect

the personal privacy of others.

MANDATES ASSESSMENT

In compliance with the Unfunded Mandates Reform Act of 1995

(P.L. 104–4), the committee finds that the bill would impose no

Federal intergovernmental unfunded mandates on State, local, or

tribal governments. All of its governmental directives are imposed

on Federal agencies. The bill does not directly impose any private

sector mandates.

COST OF LEGISLATION

Section 403 of the Congressional Budget and Impoundment Control Act requires that a statement of the cost of the reported bill,

prepared by the Congressional Budget Office, be included in the report. That statement follows:

U.S. CONGRESS,

CONGRESSIONAL BUDGET OFFICE,

Washington, DC, August 14, 2002.

Hon. JAMES M. JEFFORDS, Chairman,

Committee on Environment and Public Works,

U.S. Senate, Washington, DC.

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for S. 1850, the Underground

Storage Tank Compliance Act of 2002.

If you wish further details on this estimate, we will be pleased

to provide them. The CBO staff contact is Susanne S. Mehlman,

who can be reached at 226–2860.

Sincerely,

DAN L. CRIPPEN.

15

CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

S. 1850, Underground Storage Tank Compliance Act of 2002, as ordered reported by the Senate Committee on Environment and

Public Works on July 25, 2002

Summary

S. 1850 would authorize the appropriation of funds to promote

the cleanup of leaking underground storage tank (LUST) sites and

the prevention of leaks at underground storage tank (UST) sites.

The bill would authorize the appropriation of $1.675 billion from

the LUST Trust Fund over the 2003–2007 period for those purposes. This funding would be used by the Environmental Protection

Agency (EPA) for grants to States for the cleanup and treatment

of contamination at LUST sites, including contamination from

methyl tertiary butyl ether (known as MTBE and used as an additive in some gasoline), and for enforcement and inspection activities at UST sites. In addition, S. 1850 would authorize the appropriation of $125 million over the next 5 years for EPA to support

compliance efforts at UST sites, including grants to States to develop leak detection programs.

Assuming appropriation of the specified amounts, CBO estimates

that implementing this legislation would cost about $1.7 billion

over the 2003–2007 period. CBO also estimates that enactment of

S. 1850 would have a negligible effect on receipts because the bill

would allow EPA to impose civil penalties on certain UST operators

that do not comply with EPA or State standards. Therefore, payas-you-go procedures would apply.

S. 1850 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act (UMRA)

and would impose no costs on State, local, or tribal governments.

Estimated Cost to the Federal Government

The estimated budgetary impact of S. 1850 is shown in the following table. For this estimate, CBO assumes that the authorized

amounts will be appropriated for each year and that outlays will

follow historical spending patterns for similar activities. The costs

of this legislation fall within budget function 300 (natural resources

and environment).

By Fiscal Year, in Millions of Dollars

2002 2003 2004 2005 2006 2007

SPENDING SUBJECT TO APPROPRIATION

LUST and UST Spending Under Current Law:

Budget Authority1 ................................................................... 90 0 0 0 0 0

Estimated Outlays .................................................................. 93 60 33 13 5 0

Proposed Changes LUST Grants to States:

Authorization Level ................................................................. 0 150 150 150 150 150

Estimated Outlays .................................................................. 0 128 150 150 150 150

EPA Support for UST:

Authorization Level ................................................................. 0 25 25 25 25 25

Estimated Outlays .................................................................. 0 21 25 25 25 25

Biannual Inspections of USTs:

Authorization Level ................................................................. 0 35 35 20 20 20

Estimated Outlays .................................................................. 0 30 35 22 20 20

16

By Fiscal Year, in Millions of Dollars

2002 2003 2004 2005 2006 2007

MTBE Remediation:

Authorization Level ................................................................. 0 125 125 125 125 125

Estimated Outlays .................................................................. 0 106 125 125 125 125

Prevention and Compliance Grants:

Authorization Level ................................................................. 0 50 30 30 30 30

Estimated Outlays .................................................................. 0 43 33 30 30 30

Total Proposed Changes:

Authorized Level ..................................................................... 0 385 365 350 350 350

Estimated Outlays .................................................................. 0 328 368 352 350 350

LUST and UST Spending Under S. 1850:

Authorization Level ................................................................. 90 385 365 350 350 350

Estimated Outlays .................................................................. 93 388 401 365 355 350

1The 2002 level is the amount appropriated for EPA’s LUST and UST programs in that year.

Pay-As-You-Go Considerations

The Balanced Budget and Emergency Deficit Control Act sets up

pay-as-you-go procedures for legislation affecting direct spending or

receipts. Because the civil penalties that could be imposed under

this bill are classified as receipts, pay-as-you-go procedures would

apply. Because States would mostly be responsible for implementing the LUST program, CBO estimates that any additional

collection of civil penalties under the bill by EPA would be insignificant each year.

Intergovernmental and Private-Sector Impact

S. 1850 contains no intergovernmental or private-sector mandates as defined in UMRA and would impose no costs on State,

local, or tribal governments. The bill would benefit State, local, and

tribal governments by doubling grants to States for the cleanup of

LUST sites and other activities. Any costs to comply with the conditions of these grants would be voluntary.

Estimate Prepared By: Federal Costs: Susanne S. Mehlman; Impact

on State, Local, and Tribal Governments: Elyse Goldman; Impact

on the Private Sector: Jean Talarico.

Estimate Approved By: Peter H. Fontaine Deputy Assistant Director for Budget Analysis.

Changes in Existing Law

In compliance with section 12 of rule XXVI of the Standing Rules

of the Senate, changes in existing law made by the bill as reported

are shown as follows: Existing law proposed to be omitted is enclosed in [black brackets], new matter is printed in italic, existing

law in which no change is proposed is shown in roman:

17

SOLID WASTE DISPOSAL ACT

[As Amended Through P.L. 106–580, Dec. 29, 2000]

TITLE II—SOLID WASTE DISPOSAL

Subtitle A—General Provisions

SHORT TITLE AND TABLE OF CONTENTS

SEC. 1001. This title (hereinafter in this title referred to as

‘‘this Act’’), together with the following table of contents, may be

cited as the ‘‘Solid Waste Disposal Act’’:

Subtitle A—General Provisions

Sec. 1001. Short title and table of contents.

* * * * * * *

Sec. 9002. Notification and public records.

* * * * * * *

øSec. 9010. Authorization of appropriations.¿

Sec. 9010. Operator training.

Sec. 9011. Use of funds for release prevention and compliance.

Sec. 9012. Tanks under the jurisdiction of Indian tribes.

Sec. 9013. State authority.

Sec. 9014. Authorization of appropriations.

DEFINITIONS AND EXEMPTIONS

SEC. 9001. øFor the purposes of this subtitle—¿ In this subtitle:

(1) INDIAN TRIBE.—

(A) IN GENERAL.—The term ‘‘Indian tribe’’ means any

Indian tribe, band, nation, or other organized group or

community that is recognized as being eligible for special

programs and services provided by the United States to Indians because of their status as Indians.

(B) INCLUSIONS.—The term ‘‘Indian tribe’’ includes an

Alaska Native village, as defined in or established under

the Alaska Native Claims Settlement Act (43 U.S.C. 1601

et seq.).

ø(1)¿ (10) The term ‘‘underground storage tank’’ means

any one or combination of tanks (including underground pipes

connected thereto) which is used to contain an accumulation of

regulated substances, and the volume of which (including the

volume of the underground pipes connected thereto) is 10 per

centum or more beneath the surface of the ground. Such term

does not include any—

(A) farm or residential tank of 1,100 gallons or less capacity used for storing motor fuel for noncommercial purposes,

(B) tank used for storing heating oil for consumptive

use on the premises where stored,

(C) septic tank,

(D) pipeline facility (including gathering lines)—

(i) which is regulated under chapter 601 of title

49, United States Code, or

18

(ii) which is an intrastate pipeline facility regulated under State laws as provided in chapter 601 of

title 49, United States Code,

and which is determined by the Secretary to be connected

to a pipeline or to be operated or intended to be capable

of operating at pipeline pressure or as an integral part of

a pipeline,

(E) surface impoundment, pit, pond, or lagoon,

(F) storm water or waste water collection system,

(G) flow-through process tank,

(H) liquid trap or associated gathering lines directly

related to oil or gas production and gathering operations,

or

(I) storage tank situated in an underground area (such

as a basement, cellar, mineworking, drift, shaft, or tunnel)

if the storage tank is situated upon or above the surface

of the floor.

The term ‘‘underground storage tank’’ shall not include any

pipes connected to any tank which is described in subparagraphs (A) through (I).

ø(2)¿ (7) The term ‘‘regulated substance’’ means—

(A) any substance defined in section 101(14) of the

Comprehensive Environmental Response, Compensation,

and Liability Act of 1980 (but not including any substance

regulated as a hazardous waste under subtitle C), and

(B) petroleum.

ø(3)¿ (4) The term ‘‘owner’’ means—

(A) in the case of an underground storage tank in use

on the date of enactment of the Hazardous and Solid

Waste Amendments of 1984, or brought into use after that

date, any person who owns an underground storage tank

used for the storage, use, or dispensing of regulated

øsustances¿ substances, and

(B) in the case of any underground storage tank in use

before the date of enactment of the Hazardous and Solid

Waste Amendments of 1984, but no longer in use on the

date of enactment of such Amendments, any person who

owned such tank immediately before the discontinuation of

its use.

ø(4)¿ (3) The term ‘‘operator’’ means any person in control

of, or having responsibility for, the daily operation of the underground storage tank.

ø(5)¿ (8) The term ‘‘release’’ means any spilling, leaking,

emitting, discharging, escaping, leaching, or disposing from an

underground storage tank into ground water, surface water or

subsurface soils.

ø(6)¿ (5) The term ‘‘person’’ has the same meaning as provided in section 1004(15), except that such term includes a consortium, a joint venture, and a commercial entity, and the

United States Government.

ø(7)¿ (2) The term ‘‘nonoperational storage tank’’ means

any underground storage tank in which regulated substances

will not be deposited or from which regulated substances will

19

not be dispensed after the date of the enactment of the Hazardous and Solid Waste Amendments of 1984.

ø(8)¿ (6) The term ‘‘petroleum’’ means petroleum, including

crude oil or any fraction thereof which is liquid at standard

conditions of temperature and pressure (60 degrees Fahrenheit

and 14.7 pounds per square inch absolute).

(9) TRUST FUND.—The term ‘Trust Fund’ means the Leaking Underground Storage Tank Trust Fund established by section 9508 of the Internal Revenue Code of 1986.

* * * * * * *

NOTIFICATION and public records

SEC. 9002. (a) UNDERGROUND STORAGE TANKS.—(1) Within 18

months after the date of enactment of the Hazardous and Solid

Waste Amendments of 1984, each owner of an underground storage

tank shall notify the State or local agency or department designated pursuant to subsection (b)(1) of the existence of such tank,

specifying the age, size, type, location, and uses of such tank.

(2)(A) For each underground storage tank taken out of operation after January 1, 1974, the owner of such tank shall, within

eighteen months after the date of enactment of the Hazardous and

Solid Waste Amendments of 1984, notify the State or local agency,

or department designated pursuant to subsection (b)(1) of the existence of such tanks (unless the owner knows the tank subsequently

was removed from the ground). The owner of a tank taken out of

operation on or before January 1, 1974, shall not be required to notify the State or local agency under this subsection.

(B) Notice under subparagraph (A) shall specify, to the extent

known to the owner—

(i) the date the tank was taken out of operation,

(ii) the age of the tank on the date taken out of operation,

(iii) the size, type and location of the tank, and

(iv) the type and quantity of substances left stored in such

tank on the date taken out of operation.

(3) Any owner which brings into use an underground storage

tank after the initial notification period specified under paragraph

(1), shall notify the designated State or local agency or department

within thirty days of the existence of such tank, specifying the age,

size, type, location and uses of such tank.

(4) Paragraphs (1) through (3) of this subsection shall not

apply to tanks for which notice was given pursuant to section

103(c) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980.

(5) Beginning thirty days after the Administrator prescribes

the form of notice pursuant to subsection (b)(2) and for eighteen

months thereafter, any person who deposits regulated substances

in an underground storage tank shall reasonably notify the owner

or operator of such tank of the owner’s notification requirements

pursuant to this subsection.

(6) Beginning thirty days after the Administrator issues new

tank performance standards pursuant to section 9003(e) of this

subtitle, any person who sells a tank intended to be used as an unVerDate 11-MAY-2000 17:24 Oct 16, 2002 Jkt 071532 PO 00000 Frm 00019 Fmt 6659 Sfmt 6601 H:\REPORTS\S1850RPT.TXT SENENV1 PsN: SENENV1
20

derground storage tank shall notify the purchaser of such tank of

the owner’s notification requirements pursuant to this subsection.

(b) AGENCY DESIGNATION.—(1) Within one hundred and eighty

days after the enactment of the Hazardous and Solid Waste

Amendments of 1984, the Governors of each State shall designate

the appropriate State agency or department or local agencies or departments to receive the notifications under subsection (a)(1), (2),

or (3).

(2) Within twelve months after the date of enactment of the

Hazardous and Solid Waste Amendments of 1984, the Administrator, in consultation with State and local officials designated pursuant to subsection (b)(1), and after notice and opportunity for public comment, shall prescribe the form of the notice and the information to be included in the notifications under subsection (a)(1), (2),

or (3). In prescribing the form of such notice, the Administrator

shall take into account the effect on small businesses and other

owners and operators.

(c) STATE INVENTORIES.—Each State shall make 2 separate inventories of all underground storage tanks in such State containing

regulated substances. One inventory shall be made with respect to

petroleum and one with respect to other regulated substances. In

making such inventories, the State shall utilize and aggregate the

data in the notification forms submitted pursuant to subsections (a)

and (b) of this section. Each State shall submit such aggregated

data to the Administrator not later than 270 days after the enactment of the Superfund Amendments and Reauthorization Act of

1986.

(d) PUBLIC RECORD.—

(1) IN GENERAL.—The Administrator shall require each

State and Indian tribe that receives Federal funds to carry out

this subtitle to maintain, update at least annually, and make

available to the public, in such manner and form as the Administrator shall prescribe (after consultation with States and Indian tribes), a record of underground storage tanks regulated

under this subtitle.

(2) CONSIDERATIONS.—To the maximum extent practicable,

the public record of a State or Indian tribe, respectively, shall

include, for each year—

(A) the number, sources, and causes of underground

storage tank releases in the State or tribal area;

(B) the record of compliance by underground storage

tanks in the State or tribal area with—

(i) this subtitle; or

(ii) an applicable State program approved under

section 9004; and

(C) data on the number of underground storage tank

equipment failures in the State or tribal area.

(3) AVAILABILITY.—The Administrator shall make the public record of each State and Indian tribe under this section

available to the public electronically.

21

RELEASE DETECTION, PREVENTION, AND CORRECTION REGULATIONS

SEC. 9003. (a) * * *

* * * * * * *

(f) EFFECTIVE DATES.—(1) Regulations issued pursuant to

øsubsection¿ subsections (c) and (d) of this section, and standards

issued pursuant to subsection (e) of this section, for underground

storage tanks containing regulated substances defined in section

ø9001(2)(B)¿ 9001(7)(B) (petroleum, including crude oil or any fraction thereof which is liquid at standard conditions of temperature

and pressure) shall be effective not later than thirty months after

the date of enactment of the Hazardous and Solid Waste Amendments of 1984.

(2) Standards issued pursuant to subsection (e) of this section

(entitled ‘‘New Tank Performance Standards’’) for underground

storage tanks containing regulated substances defined in section

ø9001(2)(A)¿ 9001(7)(A) shall be effective not later than thirty-six

months after the date of enactment of the Hazardous and Solid

Waste Amendments of 1984.

(3) Regulations issued pursuant to subsection (c) of this section

(entitled ‘‘Requirements’’) and standards issued pursuant to subsection (d) of this section (entitled ‘‘Financial Responsibility’’) for

underground storage tanks containing regulated substances defined

in section ø9001(2)(A)¿ 9001(7)(A) shall be effective not later than

forty-eight months after the date of enactment of the Hazardous

and Solid Waste Amendments of 1984.

* * * * * * *

(h) EPA RESPONSE PROGRAM FOR PETROLEUM.—

(1) BEFORE REGULATIONS.—Before the effective date of regulations under subsection (c), the Administrator (or a State

pursuant to paragraph (7)) is authorized to—

(A) require the owner or operator of an underground

storage tank to undertake corrective action with respect to

any release of petroleum when the Administrator (or the

State) determines that such corrective action will be done

properly and promptly by the owner or operator of the underground storage tank from which the release occurs; or

(B) undertake corrective action with respect to any release of petroleum into the environment from an underground storage tank if such action is necessary, in the

judgment of the Administrator (or the State), to protect

human health and the environment.

The corrective action undertaken or required by this paragraph

shall be such as may be necessary to protect human health and

the environment. The Administrator shall use funds in the

øLeaking Underground Storage Tank Trust Fund¿ Trust Fund

for payment of costs incurred for corrective action under subparagraph (B), enforcement action under subparagraph (A),

and cost recovery under paragraph (6) of this subsection. Subject to the priority requirements of paragraph (3), the Administrator (or the State) shall give priority in undertaking such actions under subparagraph (B) to cases where the Administrator

22

(or the State) cannot identify a solvent owner or operator of the

tank who will undertake action properly.

(2) AFTER REGULATIONS.—Following the effective date of

regulations under subsection (c), all actions or orders of the

Administrator (or a State pursuant to paragraph (7)) described

in paragraph (1) of this subsection shall be in conformity with

such regulations. Following such effective date, the Administrator (or the State) may undertake corrective action with respect to any release of petroleum into the environment from an

underground storage tank only if such action is necessary, in

the judgment of the Administrator (or the State), to protect

human health and the environment and one or more of the following situations exists:

(A) No person can be found, within 90 days or such

shorter period as may be necessary to protect human

health and the environment, who is— (i) an owner or operator of the tank concerned,

(ii) subject to such corrective action regulations,

and

(iii) capable of carrying out such corrective action

properly.

(B) A situation exists which requires prompt action by

the Administrator (or the State) under this paragraph to

protect human health and the environment.

(C) Corrective action costs at a facility exceed the

amount of coverage required by the Administrator pursuant to the provisions of subsections (c) and (d)(5) of this

section and, considering the class or category of underground storage tank from which the release occurred, expenditures from the øLeaking Underground Storage Tank

Trust Fund¿ Trust Fund are necessary to assure an effective corrective action.

(D) The owner or operator of the tank has failed or refused to comply with an order of the Administrator under

this subsection or section 9006 or with the order of a State

under this subsection to comply with the corrective action

regulations.

(3) PRIORITY OF CORRECTIVE ACTIONS.—The Administrator

(or a State pursuant to paragraph (7)) shall give priority in undertaking corrective actions under this subsection, and in

issuing orders requiring owners or operators to undertake such

actions, to releases of petroleum from underground storage

tanks which pose the greatest threat to human health and the

environment.

(4) CORRECTIVE ACTION ORDERS.—The Administrator is authorized to issue orders to the owner or operator of an underground storage tank to carry out subparagraph (A) of paragraph (1) or to carry out regulations issued under subsection

(c)(4). A State acting pursuant to paragraph (7) of this subsection is authorized to carry out subparagraph (A) of paragraph (1) only until the State’s program is approved by the Administrator under section 9004 of this subtitle. Such orders

shall be issued and enforced in the same manner and subject

to the same requirements as orders under section 9006.

23

(5) ALLOWABLE CORRECTIVE ACTIONS.—The corrective actions undertaken by the Administrator (or a State pursuant to

paragraph (7)) under paragraph (1) or (2) may include temporary or permanent relocation of residents and alternative

household water supplies. In connection with the performance

of any corrective action under paragraph (1) or (2), the Administrator may undertake an exposure assessment as defined in

paragraph (10) of this subsection or provide for such an assessment in a cooperative agreement with a State pursuant to

paragraph (7) of this subsection. The costs of any such assessment may be treated as corrective action for purposes of paragraph (6), relating to cost recovery.

(6) RECOVERY OF COSTS.—

(A) IN GENERAL.—Whenever costs have been incurred

by the Administrator, or by a State pursuant to paragraph

(7), for undertaking corrective action or enforcement action

with respect to the release of petroleum from an underground storage tank, the owner or operator of such tank

shall be liable to the Administrator or the State for such

costs. The liability under this paragraph shall be construed

to be the standard of liability which obtains under section

311 of the Federal Water Pollution Control Act.

(B) RECOVERY.—In determining the equities for seeking the recovery of costs under subparagraph (A), the Administrator (or a State pursuant to paragraph (7) of this

subsection) may consider the amount of financial responsibility required to be maintained under subsections (c) and

(d)(5) of this section and the factors considered in establishing such amount under subsection (d)(5).

(C) EFFECT ON LIABILITY.— (i) NO TRANSFERS OF LIABILITY.—No indemnification, hold harmless, or similar agreement or conveyance shall be effective to transfer from the owner or

operator of any underground storage tank or from any

person who may be liable for a release or threat of release under this subsection, to any other person the liability imposed under this subsection. Nothing in this

subsection shall bar any agreement to insure, hold

harmless, or indemnify a party to such agreement for

any liability under this section.

(ii) NO BAR TO CAUSE OF ACTION.—Nothing in this

subsection, including the provisions of clause (i) of this

subparagraph, shall bar a cause of action that an

owner or operator or any other person subject to liability under this section, or a guarantor, has or would

have, by reason of subrogation or otherwise against

any person.

(D) FACILITY.—For purposes of this paragraph, the

term ‘‘facility’’ means, with respect to any owner or operator, all underground storage tanks used for the storage of

petroleum which are owned or operated by such owner or

operator and located on a single parcel of property (or on

any contiguous or adjacent property).

(7) STATE AUTHORITIES.—

24

(A) GENERAL.—A State may exercise the authorities in

paragraphs ø(1) and (2) of this subsection¿ paragraphs (1),

(2), and (12), subject to the terms and conditions of paragraphs (3), (5), (9), (10), and (11)ø, and including the authorities of paragraphs (4), (6), and (8) of this subsection¿

and the authority under sections 9005(a) and 9011 and

paragraphs (4), (6), and (8), if— (i) the Administrator determines that the State

has the capabilities to carry out effective corrective actions and enforcement activities; and

(ii) the Administrator enters into a cooperative

agreement with the State setting out the actions to be

undertaken by the State.

The Administrator may provide funds from the øLeaking

Underground Storage Tank Trust Fund¿ Trust Fund for

the reasonable costs of the State’s actions under the cooperative agreement.

(B) COST SHARE.—Following the effective date of the

regulations under subsection (c) of this section, the State

shall pay 10 per centum of the cost of corrective actions

undertaken either by the Administrator or by the State

under a cooperative agreement, except that the Administrator may take corrective action at a facility where immediate action is necessary to respond to an imminent and

substantial endangerment to human health or the environment if the State fails to pay the cost share.

(8) EMERGENCY PROCUREMENT POWERS.—Notwithstanding

any other provision of law, the Administrator may authorize

the use of such emergency procurement powers as he deems

necessary.

(9) DEFINITION OF OWNER OR OPERATOR.—

(A) IN GENERAL.—As used in this subtitle, the terms ‘‘owner’’ and ‘‘operator’’ do not include a person that, without participating in the management of an underground

storage tank and otherwise not engaged in petroleum production, refining, or marketing, holds indicia of ownership

primarily to protect the person’s security interest.

(B) SECURITY INTEREST HOLDERS.—The provisions regarding holders of security interests in subparagraphs (E)

through (G) of section 101(20) and the provisions regarding

fiduciaries at section 107(n) of the Comprehensive Environmental Response, Compensation, and Liability Act of

1980 shall apply in determining a person’s liability as an

owner or operator of an underground storage tank for the

purposes of this subtitle.

(C) EFFECT ON RULE.—Nothing in subparagraph (B)

shall be construed as modifying or affecting the final rule

issued by the Administrator on September 7, 1995 (60 Fed.

Reg. 46,692), or as limiting the authority of the Administrator to amend the final rule, in accordance with applicable law. The final rule in effect on the date of enactment

of this subparagraph shall prevail over any inconsistent

provision regarding holders of security interests in subparagraphs (E) through (G) of section 101(20) or any inconVerDate 11-MAY-2000 17:24 Oct 16, 2002 Jkt 071532 PO 00000 Frm 00024 Fmt 6659 Sfmt 6601 H:\REPORTS\S1850RPT.TXT SENENV1 PsN: SENENV1
25

sistent provision regarding fiduciaries in section 107(n) of

the Comprehensive Environmental Response, Compensation, and Liability Act of 1980. Any amendment to the

final rule shall be consistent with the provisions regarding

holders of security interests in subparagraphs (E) through

(G) of section 101(20) and the provisions regarding fiduciaries in section 107(n) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980.

This subparagraph does not preclude judicial review of any

amendment of the final rule made after the date of enactment of this subparagraph.

(10) DEFINITION OF EXPOSURE ASSESSMENT.—As used in

this subsection, the term ‘‘exposure assessment’’ means an assessment to determine the extent of exposure of, or potential

for exposure of, individuals to petroleum from a release from

an underground storage tank based on such factors as the nature and extent of contamination and the existence of or potential for pathways of human exposure (including ground or surface water contamination, air emissions, and food chain contamination), the size of the community within the likely pathways of exposure, and the comparison of expected human exposure levels to the short-term and long-term health effects associated with identified contaminants and any available recommended exposure or tolerance limits for such contaminants.

Such assessment shall not delay corrective action to abate immediate hazards or reduce exposure.

(11) FACILITIES WITHOUT FINANCIAL RESPONSIBILITY.—At

any facility where the owner or operator has failed to maintain

evidence of financial responsibility in amounts at least equal to

the amounts established by subsection (d)(5)(A) of this section

(or a lesser amount if such amount is applicable to such facility

as a result of subsection (d)(5)(B) of this section) for whatever

reason the Administrator shall expend no monies from the

øLeaking Underground Storage Tank Trust Fund¿ Trust Fund

to clean up releases at such facility pursuant to the provisions

of paragraph (1) or (2) of this subsection. At such facilities the

Administrator shall use the authorities provided in subparagraph (A) of paragraph (1) and paragraph (4) of this subsection

and section 9006 of this subtitle to order corrective action to

clean up such releases. States acting pursuant to paragraph (7)

of this subsection shall use the authorities provided in subparagraph (A) of paragraph (1) and paragraph (4) of this subsection to order corrective action to clean up such releases.

Notwithstanding the provisions of this paragraph, the Administrator may use monies from the fund to take the corrective

actions authorized by paragraph (5) of this subsection to protect human health at such facilities and shall seek full recovery of the costs of all such actions pursuant to the provisions

of paragraph (6)(A) of this subsection and without consideration of the factors in paragraph (6)(B) of this subsection.

Nothing in this paragraph shall prevent the Administrator (or

a State pursuant to paragraph (7) of this subsection) from taking corrective action at a facility where there is no solvent

owner or operator or where immediate action is necessary to

26

respond to an imminent and substantial endangerment of

human health or the environment.

(12) REMEDIATION OF MTBE CONTAMINATION.— (A) IN GENERAL.—The Administrator and the States

may use funds made available under section 9014(2)(B) to

carry out corrective actions with respect to a release of

methyl tertiary butyl ether that presents a threat to human

health or welfare or the environment.

(B) APPLICABLE AUTHORITY.—The Administrator or a

State shall carry out subparagraph (A)— (i) in accordance with paragraph (2), except that a

release with respect to which a corrective action is carried out under subparagraph (A) shall not be required

to be from an underground storage tank; and

(ii) in the case of a State, in accordance with a cooperative agreement entered into by the Administrator

and the State under paragraph (7).

* * * * * * *

APPROVAL OF STATE PROGRAMS

SEC. 9004. (a) ELEMENTS OF STATE PROGRAM.—Beginning 30

months after the date of enactment of the Hazardous and Solid

Waste Amendments of 1984, any State may, submit an underground storage tank release detection, prevention, and correction

program for review and approval by the Administrator. The program may cover tanks used to store regulated substances referred

to øin 9001(2) (A) or (B) or both¿ in subparagraph (A) or (B) of section 9001(7). A State program may be approved by the Administrator under this section only if the State demonstrates that the

State program includes the following requirements and standards

and provides for adequate enforcement of compliance with such requirements and standards—

* * * * * * *

(f) TRUST FUND DISTRIBUTION.— (1) IN GENERAL.— (A) AMOUNT AND PERMITTED USES OF DISTRIBUTION.— The Administrator shall distribute to States not less than

80 percent of the funds from the Trust Fund that are made

available to the Administrator under section 9014(2)(A) for

each fiscal year for use in paying the reasonable costs, incurred under a cooperative agreement with any State, of— (i) actions taken by the State under section

9003(h)(7)(A);

(ii) necessary administrative expenses, as determined by the Administrator, that are directly related to

corrective action and compensation programs under

subsection (c)(1);

(iii) any corrective action and compensation program carried out under subsection (c)(1) for a release

from an underground storage tank regulated under

this subtitle to the extent that, as determined by the

State in accordance with guidelines developed jointly

by the Administrator and the State, the financial reVerDate 11-MAY-2000 17:24 Oct 16, 2002 Jkt 071532 PO 00000 Frm 00026 Fmt 6659 Sfmt 6601 H:\REPORTS\S1850RPT.TXT SENENV1 PsN: SENENV1
27

sources of the owner or operator of the underground

storage tank (including resources provided by a program in accordance with subsection (c)(1)) are not adequate to pay the cost of a corrective action without significantly impairing the ability of the owner or operator to continue in business;

(iv) enforcement by the State or a local government

of State or local regulations pertaining to underground

storage tanks regulated under this subtitle; or

(v) State or local corrective actions carried out

under regulations promulgated under section

9003(c)(4).

(B) USE OF FUNDS FOR ENFORCEMENT.—In addition to

the uses of funds authorized under subparagraph (A), the

Administrator may use funds from the Trust Fund that are

not distributed to States under subparagraph (A) for enforcement of any regulation promulgated by the Administrator under this subtitle.

(C) PROHIBITED USES.—Except as provided in subparagraph (A)(iii), under any similar requirement of a State

program approved under this section, or in any similar

State or local provision as determined by the Administrator, funds provided to a State by the Administrator

under subparagraph (A) shall not be used by the State to

provide financial assistance to an owner or operator to meet

any requirement relating to underground storage tanks

under part 280 of title 40, Code of Federal Regulations (as

in effect on the date of enactment of this subsection).

(2) ALLOCATION.—

(A) PROCESS.—Subject to subparagraph (B), in the case

of a State with which the Administrator has entered into

a cooperative agreement under section 9003(h)(7)(A), the

Administrator shall distribute funds from the Trust Fund

to the State using the allocation process developed by the

Administrator.

(B) REVISIONS TO PROCESS.—The Administrator may

revise the allocation process referred to in subparagraph

(A) with respect to a State only after—

(i) consulting with—

(I) State agencies responsible for overseeing

corrective action for releases from underground

storage tanks;

(II) owners; and

(III) operators; and

(ii) taking into consideration, at a minimum—

(I) the total tax revenue contributed to the

Trust Fund from all sources within the State;

(II) the number of confirmed releases from federally regulated underground storage tanks in the

State;

(III) the number of federally regulated underground storage tanks in the State;

28

(IV) the percentage of the population of the

State that uses groundwater for any beneficial purpose;

(V) the performance of the State in implementing and enforcing the program;

(VI) the financial needs of the State; and

(VII) the ability of the State to use the funds

referred to in subparagraph (A) in any year.

(3) DISTRIBUTIONS TO STATE AGENCIES.—Distributions from

the Trust Fund under this subsection shall be made directly to

a State agency that— (A) enters into a cooperative agreement referred to in

paragraph (2)(A); or

(B) is enforcing a State program approved under this

section.

(4) COST RECOVERY PROHIBITION.—Funds from the Trust

Fund provided by States to owners or operators under paragraph (1)(A)(iii) shall not be subject to cost recovery by the Administrator under section 9003(h)(6).

INSPECTIONS, MONITORING, TESTING, AND CORRECTIVE ACTION

SEC. 9005. (a) INSPECTION REQUIREMENTS.—Not later than 2

years after the date of enactment of the Underground Storage Tank

Compliance Act of 2002, and at least once every 2 years thereafter,

the Administrator or a State with a program approved under section 9004, as appropriate, shall require that all underground storage tanks regulated under this subtitle undergo onsite inspections

for compliance with regulations promulgated under section 9003(c).

ø(a)¿ (b) FURNISHING INFORMATION.—For the purposes of developing or assisting in the development of any regulation, conducting any study, taking any corrective action, or enforcing the

provisions of this subtitle, any owner or operator of an underground storage tank (or any tank subject to study under section

9009 that is used for storing regulated substances) shall, upon request of any officer, employee or representative of the Environmental Protection Agency, duly designated by the Administrator, or

upon request of any duly designated officer, employee, or representative of a State acting parsuant to subsection (h)(7) of section 9003

or with an approved program, furnish information relating to such

tanks, their associated equipment, their contents, conduct monitoring or testing, permit such officer at all reasonable times to have

access to, and to copy all records relating to such tanks and permit

such officer to have access for corrective action. For the purposes

of developing or assisting in the development of any regulation,

conducting any study, taking corrective action, or enforcing the provisions of this subtitle, such officers, employees, or representatives

are authorized—

(1) to enter at reasonable times any establishment or other

place where an underground storage tank is located;

(2) to inspect and obtain samples from any person of any

regulated substances contained in such tank;

(3) to conduct monitoring or testing of the tanks, associated equipment, contents, or surrounding soils, air, surface

water or ground water, and

29

(4) to take corrective action.

Each such inspection shall be commenced and completed with reasonable promptness.

ø(b)¿ (c) CONFIDENTIALITY.—(1) Any records, reports, or information obtained from any persons under this section shall be available to the public, except that upon a showing satisfactory to the

Administrator (or the State, as the case may be) by any person that

records, reports, or information, or a particular part thereof, to

which the Administrator (or the State, as the case may be) or any

officer, employee, or representative thereof has access under this

section if made public, would divulge information entitled to protection under section 1905 of title 18 of the United States Code, such

information or particular portion thereof shall be considered confidential in accordance with the purposes of that section, except

that such record, report, document, or information may be disclosed

to other officers, employees, or authorized representatives of the

United States concerned with carrying out this Act, or when

ørelevent¿ relevant in any proceeding under this Act.

(2) Any person not subject to the provisions of section 1905 of

title 18 of the United States Code who knowingly and willfully divulges or discloses any information entitled to protection under this

subsection shall, upon conviction, be subject to a fine of not more

than $5,000 or to imprisonment not to exceed one year, or both.

(3) In submitting data under this subtitle, a person required to

provide such data may— (A) designate the data which such person believes is entitled to protection under this subsection, and

(B) submit such designated data separately from other

data submitted under this subtitle.

A designation under this paragraph shall be made in writing and

in such manner as the Administrator may prescribe.

(4) Notwithstanding any limitation contained in this section or

any other provision of law, all information reported to, or otherwise

obtained, by the Administrator (or any representative of the Administrator) under this Act shall be made available, upon written

request of any duly authorized committee of the Congress, to such

committee (including records, reports, or information obtained by

representatives of the øEvironmental¿ Environmental Protection

Agency).

* * * * * * *

FEDERAL ENFORCEMENT

SEC. 9006. (a) * * *

* * * * * * *

(e) INCENTIVES FOR PERFORMANCE.—In determining the terms

of a compliance order under subsection (a), or the amount of a civil

penalty under subsection (d), the Administrator, or a State under a

program approved under section 9004, may take into consideration

whether an owner or operator—

(1) has a history of operating underground storage tanks of

the owner or operator in accordance with— (A) this subtitle; or

(B) a State program approved under section 9004;

30

(2) has repeatedly violated— (A) this subtitle; or

(B) a State program approved under section 9004; or

(3) has implemented a program, consistent with guidelines

published under section 9010, that provides training to persons

responsible for operating any underground storage tank of the

owner or operator.

(f) AUTHORITY TO PROHIBIT CERTAIN DELIVERIES.— (1) IN GENERAL.—Subject to paragraph (2), beginning 180

days after the date of enactment of this subsection, the Administrator or a State may prohibit the delivery of regulated substances to underground storage tanks that are not in compliance with—

(A) a requirement or standard promulgated by the Administrator under section 9003; or

(B) a requirement or standard of a State program approved under section 9004.

(2) LIMITATIONS.— (A) SPECIFIED GEOGRAPHIC AREAS.—Subject to subparagraph (B), under paragraph (1), the Administrator or

a State shall not prohibit a delivery if the prohibition

would jeopardize the availability of, or access to, fuel in

any specified geographic area.

(B) APPLICABILITY OF LIMITATION.—The limitation

under subparagraph (A) shall apply only during the 180-

day period following the date of a determination by the Administrator that exercising the authority of paragraph (1) is

limited by subparagraph (A).

(C) GUIDELINES.—Not later than 18 months after the

date of enactment of this subsection, the Administrator

shall issue guidelines that define the term ‘specified geographic area’ for the purpose of subparagraph (A).

(3) AUTHORITY TO ISSUE GUIDELINES.—Subject to paragraph (2)(C), the Administrator, after consultation with States,

may issue guidelines for carrying out this subsection.

(4) ENFORCEMENT, COMPLIANCE, AND PENALTIES.—The Administrator may use the authority under the enforcement, compliance, or penalty provisions of this subtitle to carry out this

subsection.

(5) EFFECT ON STATE AUTHORITY.—Nothing in this subsection affects the authority of a State to prohibit the delivery

of a regulated substance to an underground storage tank.

* * * * * * *

FEDERAL FACILITIES

SEC. 9007. (a) * * *

* * * * * * *

(c) REVIEW OF, AND REPORT ON, FEDERAL UNDERGROUND STORAGE TANKS.—

(1) REVIEW.—Not later than 1 year after the date of enactment of this subsection, the Administrator, in cooperation with

each Federal agency that owns or operates 1 or more underground storage tanks or that manages land on which 1 or more

31

underground storage tanks are located, shall review the status

of compliance of those underground storage tanks with this subtitle.

(2) IMPLEMENTATION REPORT.— (A) IN GENERAL.—Not later than 2 years after the date

of enactment of this subsection, each Federal agency described in paragraph (1) shall submit to the Administrator

and to each State in which an underground storage tank

described in paragraph (1) is located an implementation report that—

(i) lists each underground storage tank described

in paragraph (1) that, as of the date of submission of

the report, is not in compliance with this subtitle; and

(ii) describes the actions that have been and will be

taken to ensure compliance by the underground storage

tank with this subtitle.

(B) PUBLIC AVAILABILITY.—The Administrator shall

make each report received under subparagraph (A) available to the public on the Internet.

(3) NOT A SAFE HARBOR.—This subsection does not relieve

any person from any obligation or requirement under this subtitle.

(d) APPLICABILITY OF CERTAIN REQUIREMENTS.—Section

6001(a) shall apply to each department, agency, and instrumentality covered by subsection (a).

* * * * * * *

STUDY OF UNDERGROUND STORAGE TANKS

SEC. 9009. (a) PETROLEUM TANKS.—Not later than twelve

months after the date of enactment of the Hazardous and Solid

Waste Amendments of 1984, the Administrator shall complete a

study of underground storage tanks used for the storage of regulated substances defined in section ø9001(2)(B)¿ 9001(7)(B).

(b) OTHER TANKS.—Not later than thirty-six months after the

date of enactment of the Hazardous and Solid Waste Amendments

of 1984, the Administrator shall complete a study of all other underground storage tanks.

(c) ELEMENTS OF STUDIES.—The studies under subsections (a)

and (b) shall include an assessment of the ages, types (including

methods of manufacture, coatings, protection systems, the compatibility of the construction materials and the installation methods)

and locations (including the climate of the locations) of such tanks;

soil conditions, water tables, and the hydrogeology of tank locations; the relationship between the foregoing factors and the likelihood of releases from underground storage tanks; the effectiveness

and costs of inventory systems, tank testing, and leak detection

systems; and such other factors as the Administrator deems appropriate.

(d) FARM AND HEATING OIL TANKS.—Not later than thirty-six

months after the date of enactment of the Hazardous and Solid

Waste Amendments of 1984, the Administrator shall conduct a

study regarding the tanks referred to in section ø9001(1) (A) and

(B)¿ subparagraphs (A) and (B) of section 9001(10). Such study

32

shall include estimates of the number and location of such tanks

and an analysis of the extent to which there may be releases or

threatened releases from such tanks into the environment.

* * * * * * *

SEC. 9010. OPERATOR TRAINING.

(a) GUIDELINES.—

(1) IN GENERAL.—Not later than 2 years after the date of

enactment of the Underground Storage Tank Compliance Act of

2002, in cooperation with States, owners, and operators, the Administrator shall publish in the Federal Register, after public

notice and opportunity for comment, guidelines that specify

methods for training operators of underground storage tanks.

(2) CONSIDERATIONS.—The guidelines described in paragraph (1) shall take into account—

(A) State training programs in existence as of the date

of publication of the guidelines;

(B) training programs that are being employed by owners and operators as of the date of enactment of this paragraph;

(C) the high turnover rate of operators;

(D) the frequency of improvement in underground storage tank equipment technology;

(E) the nature of the businesses in which the operators

are engaged; and

(F) such other factors as the Administrator determines

to be necessary to carry out this section.

(b) STATE PROGRAMS.—

(1) IN GENERAL.—Not later than 2 years after the date on

which the Administrator publishes the guidelines under subsection (a)(1), each State shall develop and implement a strategy for the training of operators of underground storage tanks

that is consistent with paragraph (2).

(2) REQUIREMENTS.—A State strategy described in paragraph (1) shall—

(A) be consistent with subsection (a);

(B) be developed in cooperation with owners and operators; and

(C) take into consideration training programs implemented by owners and operators as of the date of enactment

of this subsection.

(3) FINANCIAL INCENTIVE.—The Administrator may award

to a State that develops and implements a strategy described in

paragraph (1), in addition to any funds that the State is entitled to receive under this subtitle, not more than $50,000, to be

used to carry out the strategy.

SEC. 9011. USE OF FUNDS FOR RELEASE PREVENTION AND COMPLIANCE.

Funds made available under section 9014(2)(D) from the Trust

Fund may be used to conduct inspections, issue orders, or bring actions under this subtitle—

(1) by a State, in accordance with a grant or cooperative

agreement with the Administrator, of State regulations perVerDate 11-MAY-2000 17:24 Oct 16, 2002 Jkt 071532 PO 00000 Frm 00032 Fmt 6659 Sfmt 6601 H:\REPORTS\S1850RPT.TXT SENENV1 PsN: SENENV1
33

taining to underground storage tanks regulated under this subtitle; and

(2) by the Administrator, under this subtitle (including

under a State program approved under section 9004).’’.

(b) GOVERNMENT-OWNED TANKS.—Section 9003 of the Solid

Waste Disposal Act (42 U.S.C. 6991b) is amended by adding at the

end the following:

(i) GOVERNMENT-OWNED TANKS.—

(1) IMPLEMENTATION REPORT.—

(A) IN GENERAL.—Not later than 2 years after the date

of enactment of this subsection, each State shall submit to

the Administrator an implementation report that—

(i) lists each underground storage tank described

in subparagraph (B) in the State that, as of the date

of submission of the report, is not in compliance with

this subtitle; and

(ii) describes the actions that have been and will be

taken to ensure compliance by the underground storage

tank listed under clause (i) with this subtitle.

(B) UNDERGROUND STORAGE TANK.—An underground

storage tank described in this subparagraph is an underground storage tank that is—

(i) regulated under this subtitle; and

(ii) owned or operated by the State government or

any local government.

(C) PUBLIC AVAILABILITY.—The Administrator shall

make each report received under subparagraph (A) available to the public on the Internet.

(2) FINANCIAL INCENTIVE.—The Administrator may award

to a State that develops an implementation report described in

paragraph (1), in addition to any funds that the State is entitled to receive under this subtitle, not more than $50,000, to be

used to carry out the implementation report.

(3) NOT A SAFE HARBOR.—This subsection does not relieve

any person from any obligation or requirement under this subtitle.’’.

(c) INCENTIVES FOR PERFORMANCE.—Section 9006 of the Solid

Waste Disposal Act (42 U.S.C. 6991e) is amended by adding at the

end the following:

(e) INCENTIVES FOR PERFORMANCE.—In determining the terms

of a compliance order under subsection (a), or the amount of a civil

penalty under subsection (d), the Administrator, or a State under a

program approved under section 9004, may take into consideration

whether an owner or operator—

(1) has a history of operating underground storage tanks of

the owner or operator in accordance with—

(A) this subtitle; or

(B) a State program approved under section 9004;

(2) has repeatedly violated—

(A) this subtitle; or

(B) a State program approved under section 9004; or

(3) has implemented a program, consistent with guidelines

published under section 9010, that provides training to persons

34

responsible for operating any underground storage tank of the

owner or operator.

SEC. 9012. TANKS UNDER THE JURISDICTION OF INDIAN TRIBES.

(a) IN GENERAL.—The Administrator, in coordination with Indian tribes, shall— (1) not later than 1 year after the date of enactment of this

section, develop and implement a strategy— (A) giving priority to releases that present the greatest

threat to human health or the environment, to take necessary corrective action in response to releases from leaking

underground storage tanks located wholly within the

boundaries of— (i) an Indian reservation; or

(ii) any other area under the jurisdiction of an Indian tribe; and

(B) to implement and enforce requirements concerning

underground storage tanks located wholly within the

boundaries of— (i) an Indian reservation; or

(ii) any other area under the jurisdiction of an Indian tribe;

(2) not later than 2 years after the date of enactment of this

section and every 2 years thereafter, submit to Congress a report

that summarizes the status of implementation and enforcement

of the underground storage tank program in areas located

wholly within—

(A) the boundaries of Indian reservations; and

(B) any other areas under the jurisdiction of an Indian

tribe; and

(3) make the report described in paragraph (2) available to

the public on the Internet.

(b) NOT A SAFE HARBOR.—This section does not relieve any person from any obligation or requirement under this subtitle.

(c) STATE AUTHORITY.—Nothing in this section applies to any

underground storage tank that is located in an area under the jurisdiction of a State, or that is subject to regulation by a State, as of

the date of enactment of this section.

SEC. 9013. STATE AUTHORITY.

Nothing in this subtitle precludes a State from establishing any

requirement that is more stringent than a requirement under this

subtitle.’’.

SEC. 9014. AUTHORIZATION OF APPROPRIATIONS.

There are authorized to be appropriated to the Administrator—

(1) to carry out subtitle I (except sections 9003(h), 9005(a),

and 9011) $25,000,000 for each of fiscal years 2003 through

2007; and

(2) from the Trust Fund, notwithstanding section 9508(c)(1)

of the Internal Revenue Code of 1986—

(A) to carry out section 9003(h) (except section

9003(h)(12)) $150,000,000 for each of fiscal years 2003

through 2007;

(B) to carry out section 9003(h)(12), $125,000,000 for

each of fiscal years 2003 through 2007;

35

(C) to carry out section 9005(a)— (i) $35,000,000 for each of fiscal years 2003 and

2004; and

(ii) $20,000,000 for each of fiscal years 2005

through 2008; and

(D) to carry out section 9011— (i) $50,000,000 for fiscal year 2003; and

(ii) $30,000,000 for each of fiscal years 2004

through 2008.

* * * * * * *

Æ