535 

Environmental Protection Agency § 281.11 

PART 281—APPROVAL OF STATE 

UNDERGROUND STORAGE TANK 

PROGRAMS 

Subpart A—Purpose, General 

Requirements and Scope 

Sec. 

281.10 Purpose. 

281.11 General requirements. 

281.12 Scope and definitions. 

Subpart B—Components of a Program 

Application 

281.20 Program application. 

281.21 Description of state program. 

281.22 Procedures for adequate enforcement. 

281.23 Schedule for interim approval. 

281.24 Memorandum of agreement. 

281.25 Attorney General’s statement. 

Subpart C—Criteria for No-Less-Stringent 

281.30 New UST system design, construction, installation, and notification. 

281.31 Upgrading existing UST systems. 

281.32 General operating requirements. 

281.33 Release detection. 

281.34 Release reporting, investigation, and 

confirmation. 

281.35 Release response and corrective action. 

281.36 Out-of-service UST systems and closure. 

281.37 Financial responsibility for UST systems containing petroleum. 

281.38 Financial responsibility for USTs 

containing hazardous substances. [Reserved] 

281.39 Lender liability. 

Subpart D—Adequate Enforcement of 

Compliance 

281.40 Requirements for compliance monitoring program and authority. 

281.41 Requirements for enforcement authority. 

281.42 Requirements for public participation. 

281.43 Sharing of information. 

Subpart E—Approval Procedures 

281.50 Approval procedures for state programs. 

281.51 Amendment required at end of interim period. 

281.52 Revision of approved state programs. 

Subpart F—Withdrawal of Approval of State 

Programs 

281.60 Criteria for withdrawal of approval of 

state programs. 

281.61 Procedures for withdrawal of approval of state programs. 

AUTHORITY: 42 U.S.C. 6912, 6991 (c), (d), (e), 

(g). 

SOURCE: 53 FR 37241, Sept. 23, 1988, unless 

otherwise noted. 

Subpart A—Purpose, General 

Requirements and Scope 

§ 281.10 Purpose. 

(a) This subpart specifies the requirements that state programs must meet 

for approval by the Administrator 

under section 9004 of RCRA, and the 

procedures EPA will follow in approving, revising and withdrawing approval 

of state programs. 

(b) State submissions for program approval must be in accordance with the 

procedures set out in this part. 

(c) A state may apply for approval 

under this subpart at any time after 

the promulgation of release detection, 

prevention, and correction regulations 

under section 9003 of RCRA. 

(d) Any state program approved by 

the Administrator under this part shall 

at all times be conducted in accordance 

with the requirements of this part. 

§ 281.11 General requirements. 

(a) State program elements. The following substantive elements of a state 

program must be addressed in a state 

application for approval: 

(1) Requirements for all existing and 

new underground storage tanks: 

(i) New UST systems (design, construction, installation, and notification); 

(ii) Upgrading of existing UST systems; 

(iii) General operating requirements; 

(iv) Release detection; 

(v) Release reporting, investigation, 

and confirmation; 

(vi) Out-of-service USTs and closure; 

(vii) Release response and corrective 

action; and 

(viii) Financial responsibility for 

UST systems containing petroleum. 

(2) Provisions for adequate enforcement of compliance with the above 

program elements. 

(b) Final approval. The state must 

demonstrate that its requirements 

under each state program element for 

existing and new UST systems are no 

536 

§ 281.12 40 CFR Ch. I (7–1–05 Edition) 

less stringent than the corresponding 

federal requirements as set forth in 

subpart C of this part, except as provided in paragraph (c) of this section. 

The state must also demonstrate that 

it has a program that provides adequate enforcement of compliance with 

these requirements. 

(c) Interim approval. (1) The Administrator may approve state programs 

with requirements less stringent than 

the federal requirements for a period of 

1 to 3 years from September 23, 1988. 

Such interim approval may be granted 

only if state regulatory and/or legislative change is required in order for the 

state program to be no less stringent 

than the federal requirements and 

standards under part 280 for one or 

more of the following program elements: Release detection at existing 

UST systems; release reporting and investigation; and out-of-service or 

closed UST systems. 

(2) A state program may receive interim approval if it: 

(i) Has requirements for three elements: 

(A) Release Detection; 

(B) Release Reporting, Investigation, 

and Confirmation; and 

(C) Out-of-Service UST Systems and 

Closure; and 

(ii) Has requirements that are no less 

stringent than the corresponding federal requirements for five elements: 

(A) New UST System Design, Construction, Installation and Notification; 

(B) Upgrading Existing UST Systems; 

(C) General Operating Requirements; 

(D) Release Response and Corrective 

Action; and 

(E) Financial Responsibility for UST 

systems containing petroleum; and 

(iii) Provides for adequate enforcement of compliance with these requirements. 

(3) A state with a program that has 

received interim approval must receive 

final approval of an amended program 

containing program elements that are 

no less stringent than the corresponding federal program elements 

under subpart C in accordance with the 

following schedule: 

(i) If only state regulatory action is 

required, the state must submit an 

amended program to EPA for approval 

before September 23, 1989. 

(ii) If only state legislative action is 

required, the state must submit an 

amended program to EPA for approval 

before September 23, 1990. 

(iii) If both state legislative and regulatory action are required, the state 

must submit an amended program to 

EPA for approval before September 23, 

1991. 

(d) States with programs approved 

under this part are authorized to administer the state program in lieu of 

the federal program and will have primary enforcement responsibility with 

respect to the requirements of the approved program. EPA retains authority 

to take enforcement action in approved 

states as necessary and will notify the 

designated lead state agency of any 

such intended action. 

§ 281.12 Scope and definitions. 

(a) Scope. (1) The Administrator may 

approve either partial or complete 

state programs. A ‘‘partial’’ state program regulates either solely UST systems containing petroleum or solely 

UST systems containing hazardous 

substances. If a ‘‘partial’’ state program is approved, EPA will administer 

the remaining part of the program. A 

‘‘complete’’ state program regulates 

both petroleum and hazardous substance tanks. 

(2) EPA will administer the UST program on Indian lands, except where 

Congress has clearly expressed an intention to grant a state authority to 

regulate petroleum and hazardous substance USTs on Indian lands. In either 

case, this decision will not impair a 

state’s ability to obtain program approval for petroleum and/or hazardous 

substances on non-Indian lands in accordance with this part. 

(3) Nothing in this subpart precludes 

a state from: 

(i) Adopting or enforcing requirements that are more stringent or more 

extensive than those required under 

this part; or 

(ii) Operating a program with a 

greater scope of coverage than that required under this part. Where an approved state program has a greater 

537 

Environmental Protection Agency § 281.23 

scope of coverage than required by federal law, the additional coverage is not 

part of the federally-approved program. 

(b) Definitions. (1) The definitions in 

part 280 apply to all subparts of this 

part. 

(2) For the purpose of this part, the 

term interim approval means the approval received by a state program 

that meets the requirements in 

§281.11(c) (1) and (2) for the time period 

defined in §281.11(c)(3). 

(3) For the purposes of this part the 

term final approval means the approval 

received by a state program that meets 

the requirements in §281.11(b). 

Subpart B—Components of a 

Program Application 

§ 281.20 Program application. 

Any state that seeks to administer a 

program under this part must submit 

an application containing the following 

parts: 

(a) A transmittal letter from the 

Governor of the state requesting program approval; 

(b) A description in accordance with 

§281.21 of the state program and operating procedures; 

(c) A demonstration of the state’s 

procedures to ensure adequate enforcement; 

(d) A schedule for obtaining needed 

authorities under interim approval, 

where applicable; 

(e) A Memorandum of Agreement 

outlining roles and responsibilities of 

EPA and the implementing agency; 

(f) An Attorney General’s statement 

in accordance with §281.25 certifying to 

applicable state authorities; and 

(g) Copies of all applicable state statutes and regulations. 

NOTE: EPA has designed an optional application form that is available for use by state 

applicants. 

§ 281.21 Description of state program. 

A state seeking to administer a program under this part must submit a description of the program it proposes to 

administer under state law in lieu of 

the federal program. The description of 

a state’s existing or planned program 

must include: 

(a) The scope of the state program: 

(1) Whether the state program regulates UST systems containing petroleum or hazardous substances, or both; 

(2) Whether the state is applying for 

interim or final approval; 

(3) Whether the state program is 

more stringent or broader in scope 

than the federal program, and in what 

ways; and 

(4) Whether the state has any existing authority over Indian lands or has 

existing agreements with Indian tribes 

relevant to the regulation of underground storage tanks. 

(b) The organization and structure of 

the state and local agencies with responsibility for administering the program. The jurisdiction and responsibilities of all state and local implementing agencies must be delineated, 

appropriate procedures for coordination set forth, and one state agency 

designated as a ‘‘lead agency’’ to facilitate communications between EPA and 

the state. 

(c) Staff resources to carry out and 

enforce the required state program elements, both existing and planned, including the number of employees, 

agency where employees are located, 

general duties of the employees, and 

current limits or restrictions on hiring 

or utilization of staff. 

(d) An existing state funding mechanism to meet the estimated costs of administering and enforcing the required 

state program elements, and any restrictions or limitations upon this 

funding. 

§ 281.22 Procedures for adequate enforcement. 

A state must submit a description of 

its compliance monitoring and enforcement procedures, including related 

state administrative or judicial review 

procedures. 

§ 281.23 Schedule for interim approval. 

For a state program that must modify its statutory or regulatory requirements for release detection, release reporting and investigation, and out-ofservice or closed UST systems in order 

to be no less stringent than the federal 

requirements, the plan must include a 

schedule for making such changes and 

for submitting an amendment to the 

538 

§ 281.24 40 CFR Ch. I (7–1–05 Edition) 

state application in accordance with 

§281.51. 

§ 281.24 Memorandum of agreement. 

EPA and the approved state will negotiate a Memorandum of Agreement 

(MOA) containing proposed areas of coordination and shared responsibilities 

between the state and EPA and separate EPA and state roles and responsibilities in areas including, but not 

limited to: Implementation of partial 

state programs; enforcement; compliance monitoring; EPA oversight; and 

sharing and reporting of information. 

At the time of approval, the MOA must 

be signed by the Regional Administrator and the appropriate official of 

the state lead agency. 

§ 281.25 Attorney General’s statement. 

(a) A state must submit a written 

demonstration from the Attorney General that the laws and regulations of 

the state provide adequate authority to 

carry out the program described under 

§281.21 and to meet other requirements 

of this part. This statement may be 

signed by independent legal counsel for 

the state rather than the Attorney 

General, provided that such counsel 

has full authority to independently 

represent the state Agency in court on 

all matters pertaining to the state program. This statement must include citations to the specific statutes, administrative regulations, and where appropriate, judicial decisions that demonstrate adequate authority to regulate and enforce requirements for UST 

systems. State statutes and regulations cited by the state Attorney General must be fully effective when the 

program is approved. 

(b) If a state currently has authority 

over underground storage tank activities on Indian Lands, the statement 

must contain an appropriate analysis 

of the state’s authority. 

Subpart C—Criteria for No-LessStringent 

§ 281.30 New UST system design, construction, installation, and notification. 

In order to be considered no less 

stringent than the corresponding federal requirements for new UST system 

design, construction, installation, and 

notification, the state must have requirements that ensure all new underground storage tanks, and the attached 

piping in contact with the ground and 

used to convey the regulated substance 

stored in the tank, conform to the following: 

(a) Be designed, constructed, and installed in a manner that will prevent 

releases for their operating life due to 

manufacturing defects, structural failure, or corrosion. 

NOTE: Codes of practice developed by nationally-recognized organizations and national independent testing laboratories may 

be used to demonstrate that the state program requirements are no less stringent in 

this area. 

(b) Be provided with equipment to 

prevent spills and tank overfills when 

new tanks are installed or existing 

tanks are upgraded, unless the tank 

does not receive more than 25 gallons 

at one time. 

(c) All UST system owners and operators must notify the implementing 

state agency of the existence of any 

new UST system using a form designated by the state agency. 

§ 281.31 Upgrading existing UST systems. 

In order to be considered no less 

stringent than the corresponding federal upgrading requirements, the state 

must have requirements that ensure 

existing UST systems will be replaced 

or upgraded before December 22, 1998, 

to prevent releases for their operating 

life due to corrosion, and spills or overfills. 

§ 281.32 General operating requirements. 

In order to be considered no less 

stringent than the corresponding federal general operating requirements, 

the state must have requirements that 

ensure all new and existing UST systems conform to the following: 

(a) Prevent spills and overfills by ensuring that the space in the tank is 

sufficient to receive the volume to be 

transferred and that the transfer operation is monitored constantly; 

(b) Where equipped with cathodic 

protection, be operated and maintained 

by a person with sufficient training 

539 

Environmental Protection Agency § 281.33 

and experience in preventing corrosion, 

and in a manner that ensures that no 

releases occur during the operating life 

of the UST system; 

NOTE: Codes of practice developed by nationally-recognized organizations and national independent testing laboratories may 

be used to demonstrate the state program requirements are no less stringent. 

(c) Be made of or lined with materials that are compatible with the substance stored; 

(d) At the time of upgrade or repair, 

be structurally sound and upgraded or 

repaired in a manner that will prevent 

releases due to structural failure or 

corrosion during their operating lives; 

(e) Have records of monitoring, testing, repairs, and closure maintained 

that are sufficient to demonstrate recent facility compliance status, except 

that records demonstrating compliance 

with repair and upgrading requirements must be maintained for the remaining operating life of the facility. 

These records must be made readily 

available when requested by the implementing agency. 

§ 281.33 Release detection. 

In order to be considered no less 

stringent than the corresponding federal requirements for release detection, 

the state must have requirements that 

at a minimum ensure all UST systems 

are provided with release detection 

that conforms to the following: 

(a) General methods. Release detection 

requirements for owners and operators 

must consist of a method, or combination of methods, that is: 

(1) Capable of detecting a release of 

the regulated substance from any portion of the UST system that routinely 

contains regulated substances—as effectively as any of the methods allowed 

under the federal technical standards— 

for as long as the UST system is in operation. In comparing methods, the implementing agency shall consider the 

size of release that the method can detect and the speed and reliability with 

which the release can be detected. 

(2) Designed, installed, calibrated, 

operated and maintained so that releases will be detected in accordance 

with the capabilities of the method. 

(b) Phase-in of requirements. Release 

detection requirements must, at a minimum, be scheduled to be applied at all 

UST systems: 

(1) Immediately when a new UST system is installed: 

(2) On an orderly schedule that completes a phase-in of release detection at 

all existing UST systems (or their closure) before December 21, 1993, except 

that release detection for the piping attached to any existing UST that conveys a regulated substance under 

greater than atmospheric pressure 

must be phased-in before December 22, 

1990. 

(c) Requirements for petroleum tanks. 

All petroleum tanks must be sampled, 

tested, or checked for releases at least 

monthly, except that: 

(1) New or upgraded tanks (that is, 

tanks and piping protected from releases due to corrosion and equipped 

with both spill and overfill prevention 

devices) may temporarily use monthly 

inventory control (or its equivalent) in 

combination with tightness testing (or 

its equivalent) conducted every 5 years 

for the first 10 years after the tank is 

installed or upgraded or until December 22, 1998, whichever is later; and 

(2) Existing tanks unprotected from 

releases due to corrosion or without 

spill and overfill prevention devices 

may use monthly inventory control (or 

its equivalent) in combination with annual tightness testing (or its equivalent) until December 22, 1998. 

(d) Requirements for petroleum piping. 

All underground piping attached to the 

tank that routinely conveys petroleum 

must conform to the following: 

(1) If the petroleum is conveyed 

under greater than atmospheric pressure: 

(i) The piping must be equipped with 

release detection that detects a release 

within an hour by restricting or shutting off flow or sounding an alarm; and 

(ii) The piping must have monthly 

monitoring applied or annual tightness 

tests conducted. 

(2) If suction lines are used: 

(i) Tightness tests must be conducted 

at least once every 3 years, unless a 

monthly method of detection is applied 

to this piping; or 

(ii) The piping is designed to allow 

the contents of the pipe to drain back 

into the storage tank if the suction is 

released and is also designed to allow 

540 

§ 281.34 40 CFR Ch. I (7–1–05 Edition) 

an inspector to immediately determine 

the integrity of the piping system. 

(e) Requirements for hazardous substance UST systems. All UST systems 

storing hazardous substances must 

meet the following: 

(1) All existing hazardous substance 

UST systems must comply with all the 

requirements for petroleum UST systems in paragraphs (c) and (d) of this 

section and after December 22, 1998, 

they must comply with the following 

paragraph (e)(2) of this section. 

(2) All new hazardous substance UST 

systems must use interstitial monitoring within secondary containment 

of the tanks and the attached underground piping that conveys the regulated substance stored in the tank, unless the owner and operator can demonstrate to the state (or the state otherwise determines) that another method will detect a release of the regulated 

substance as effectively as other methods allowed under the state program 

for petroleum UST systems and that 

effective corrective action technology 

is available for the hazardous substance being stored that can be used to 

protect human health and the environment. 

§ 281.34 Release reporting, investigation, and confirmation. 

In order to be considered no less 

stringent than the corresponding federal requirements for release reporting, 

investigation, and confirmation, the 

state must have requirements that ensure all owners and operators conform 

with the following: 

(a) Promptly investigate all suspected releases, including: 

(1) When unusual operating conditions, release detection signals and environmental conditions at the site suggest a release of regulated substances 

may have occurred; and 

(2) When required by the implementing agency to determine the 

source of a release having an impact in 

the surrounding area; and 

(b) Promptly report all confirmed underground releases and any spills and 

overfills that are not contained and 

cleaned up. 

(c) Ensure that all owners and operators contain and clean up unreported 

spills and overfills in a manner that 

will protect human health and the environment. 

§ 281.35 Release response and corrective action. 

In order to be considered no less 

stringent than the corresponding federal requirements for release response 

and corrective action, the state must 

have requirements that ensure: 

(a) All releases from UST systems are 

promptly assessed and further releases 

are stopped; 

(b) Actions are taken to identify, 

contain and mitigate any immediate 

health and safety threats that are 

posed by a release (such activities include investigation and initiation of 

free product removal, if present); 

(c) All releases from UST systems are 

investigated to determine if there are 

impacts on soil and ground water, and 

any nearby surface waters. The extent 

of soil and ground water contamination 

must be delineated when a potential 

threat to human health and the environment exists. 

(d) All releases from UST systems are 

cleaned up through soil and ground 

water remediation and any other steps, 

as necessary to protect human health 

and the environment; 

(e) Adequate information is made 

available to the state to demonstrate 

that corrective actions are taken in accordance with the requirements of 

paragraphs (a) through (d) of this section. This information must be submitted in a timely manner that demonstrates its technical adequacy to 

protect human health and the environment; and 

(f) In accordance with §280.67, the 

state must notify the affected public of 

all confirmed releases requiring a plan 

for soil and ground water remediation, 

and upon request provide or make 

available information to inform the interested public of the nature of the release and the corrective measures 

planned or taken. 

§ 281.36 Out-of-service UST systems 

and closure. 

In order to be considered no less 

stringent than the corresponding federal requirements for temporarily 

closed UST systems and permanent 

541 

Environmental Protection Agency § 281.39 

closure, the state must have requirements that ensure UST systems conform with the following: 

(a) Removal from service. All new 

and existing UST systems temporarily 

closed must: 

(1) Continue to comply with general 

operating requirements, release reporting and investigation, and release response and corrective action; 

(2) Continue to comply with release 

detection requirements if regulated 

substances are stored in the tank; 

(3) Be closed off to outside access; 

and 

(4) Be permanently closed if the UST 

system has not been protected from 

corrosion and has not been used in one 

year, unless the state approves an extension after the owner and operator 

conducts a site assessment. 

(b) Permanent closure of UST systems. All tanks and piping must be 

cleaned and permanently closed in a 

manner that eliminates the potential 

for safety hazards and any future releases. The owner or operator must notify the state of permanent UST system closures. The site must also be assessed to determine if there are any 

present or were past releases, and if so, 

release response and corrective action 

requirements must be complied with. 

(c) All UST systems taken out of 

service before the effective date of the 

federal regulations must permanently 

close in accordance with paragraph (b) 

of this section when directed by the 

implementing agency. 

§ 281.37 Financial responsibility for 

UST systems containing petroleum. 

(a) In order to be considered no less 

stringent than the federal requirements for financial responsibility for 

UST systems containing petroleum, 

the state requirements for financial responsibility for petroleum UST systems must ensure that: 

(1) Owners and operators have $1 million per occurrence for corrective action and third-party claims in a timely 

manner to protect human health and 

the environment; 

(2) Owners and operators not engaged 

in petroleum production, refining, and 

marketing and who handle a throughput of 10,000 gallons of petroleum per 

month or less have $500,000 per occurrence for corrective action and thirdparty claims in a timely manner to 

protect human health and the environment; 

(3) Owners and operators of 1 to 100 

petroleum USTs must have an annual 

aggregate of $1 million; and 

(4) Owners and operators of 101 or 

more petroleum USTs must have an 

annual aggregate of $2 million. 

(b) Phase-in of requirements. Financial responsibility requirements for petroleum UST systems must, at a minimum, be scheduled to be applied at all 

UST systems on an orderly schedule 

that completes a phase-in of the financial responsibility requirements within 

the time allowed in the Federal regulations under 40 CFR 280.91. 

(c) States may allow the use of a 

wide variety of financial assurance 

mechanisms to meet this requirement. 

Each financial mechanism must meet 

the following criteria in order to be no 

less stringent than the federal requirements. The mechanism must: Be valid 

and enforceable; be issued by a provider 

that is qualified or licensed in the 

state; not permit cancellation without 

allowing the state to draw funds; ensure that funds will only and directly 

be used for corrective action and third 

party liability costs; and require that 

the provider notify the owner or operator of any circumstances that would 

impair or suspend coverage. 

(d) States must require owners and 

operators to maintain records that 

demonstrate compliance with the state 

financial responsibility requirements, 

and these records must be made readily 

available when requested by the implementing agency. 

[53 FR 43382, Oct. 26, 1988; 53 FR 51274, Dec. 

21, 1988; 54 FR 38788, Sept. 20, 1989, as amended at 55 FR 46025, Oct. 31, 1990] 

§ 281.38 Financial responsibility for 

USTs containing hazardous substances. [Reserved] 

§ 281.39 Lender liability. 

(a) A state program that contains a 

security interest exemption will be 

considered to be no less stringent than, 

and as broad in scope as, the federal 

program provided that the state’s exemption: 

542 

§ 281.40 40 CFR Ch. I (7–1–05 Edition) 

(1) Mirrors the security interest exemption provided for in 40 CFR part 

280, subpart I; or 

(2) Achieves the same effect as provided by the following key criteria: 

(i) A holder, meaning a person who 

maintains indicia of ownership primarily to protect a security interest in 

a petroleum UST or UST system or facility or property on which a petroleum UST or UST system is located, 

who does not participate in the management of the UST or UST system as 

defined under §280.210 of this chapter, 

and who does not engage in petroleum 

production, refining, and marketing as 

defined under §280.200(b) of this chapter 

is not: 

(A) An ‘‘owner’’ of a petroleum UST 

or UST system or facility or property 

on which a petroleum UST or UST system is located for purposes of compliance with the requirements of 40 CFR 

part 280; or 

(B) An ‘‘operator’’ of a petroleum 

UST or UST system for purposes of 

compliance with the requirements of 40 

CFR part 280, provided the holder is 

not in control of or does not have responsibility for the daily operation of 

the UST or UST system. 

(ii) [Reserved] 

(b) [Reserved] 

[60 FR 46715, Sept. 7, 1995] 

Subpart D—Adequate 

Enforcement of Compliance 

§ 281.40 Requirements for compliance 

monitoring program and authority. 

(a) Any authorized representative of 

the state engaged in compliance inspections, monitoring, and testing 

must have authority to obtain by request any information from an owner 

or operator with respect to the UST 

system(s) that is necessary to determine compliance with the regulations. 

(b) Any authorized representative of 

the state must have authority to require an owner or operator to conduct 

monitoring or testing. 

(c) Authorized representatives must 

have the authority to enter any site or 

premises subject to UST system regulations or in which records relevant to 

the operation of the UST system(s) are 

kept, and to copy these records, obtain 

samples of regulated substances, and 

inspect or conduct the monitoring or 

testing of UST system(s). 

(d) State programs must have procedures for receipt, evaluation, retention, 

and investigation of records and reports required of owners or operators 

and must provide for enforcement of 

failure to submit these records and reports. 

(e)(1) State programs must have inspection procedures to determine, independent of information supplied by regulated persons, compliance with program requirements, and must provide 

for enforcement of failure to comply 

with the program requirements. States 

must maintain a program for systematic inspections of facilities subject to 

regulations in a manner designed to determine compliance or non-compliance, 

to verify accuracy of information submitted by owners or operators of regulated USTs, and to verify adequacy of 

methods used by owners or operators in 

developing that information. 

(2) When inspections are conducted, 

samples taken, or other information 

gathered, these procedures must be 

conducted in a manner (for example, 

using proper ‘‘chain of custody’’ procedures) that will produce evidence admissible in an enforcement proceeding, 

or in court. 

(f) Public effort in reporting violations must be encouraged and the state 

enforcement agency(ies) must make 

available information on reporting procedures. State programs must maintain a program for investigating information obtained from the public about 

suspected violations of UST program 

requirements. 

(g) The state program must maintain 

the data collected through inspections 

and evaluation of records in such a 

manner that the implementing agency 

can monitor over time the compliance 

status of the regulated community. 

Any compilation, index, or inventory 

of such facilities and activities shall be 

made available to EPA upon request. 

§ 281.41 Requirements for enforcement 

authority. 

(a) Any state agency administering a 

program must have the authority to 

implement the following remedies for 

543 

Environmental Protection Agency § 281.43 

violations of state program requirements: 

(1) To restrain immediately and effectively any person by order or by suit 

in state court from engaging in any unauthorized activity that is endangering 

or causing damage to public health or 

the environment; 

(2) To sue in courts of competent jurisdiction to enjoin any threatened or 

continuing violation of any program 

requirement; 

(3) To assess or sue to recover in 

court civil penalties as follows: 

(i) Civil penalties for failure to notify 

or for submitting false information 

pursuant to tank notification requirements must be capable of being assessed up to $5,000 or more per violation. 

(ii) Civil penalties for failure to comply with any state requirements or 

standards for existing or new tank systems must be capable of being assessed 

for each instance of violation, up to 

$5,000 or more for each tank for each 

day of violation. If the violation is continuous, civil penalties shall be capable 

of being assessed up to $5,000 or more 

for each day of violation. 

(b) The burden of proof and degree of 

knowledge or intent required under 

state law for establishing violations 

under paragraph (a)(3) of this section, 

must be no greater than the burden of 

proof or degree of knowledge or intent 

that EPA must provide when it brings 

an action under Subtitle I of the Resource Conservation and Recovery Act. 

(c) A civil penalty assessed, sought, 

or agreed upon by the state enforcement agency(ies) under paragraph 

(a)(3) of this section must be appropriate to the violation. 

§ 281.42 Requirements for public participation. 

Any state administering a program 

must provide for public participation 

in the state enforcement process by 

providing any one of the following 

three options: 

(a) Authority that allows intervention analogous to Federal Rule 24(a)(2), 

and assurance by the appropriate state 

enforcement agency that it will not oppose intervention under the state analogue to Rule 24(a)(2) on the ground 

that the applicant’s interest is adequately represented by the State. 

(b) Authority that allows intervention as of right in any civil action to 

obtain the remedies specified in §281.41 

by any citizen having an interest that 

is or may be adversely affected; or 

(c) Assurance by the appropriate 

state agency that: 

(1) It will provide notice and opportunity for public comment on all proposed settlements of civil enforcement 

actions (except where immediate action is necessary to adequately protect 

human health and the environment); 

(2) It will investigate and provide responses to citizen complaints about 

violations; and 

(3) It will not oppose citizen intervention when permissive intervention is 

allowed by statute, rule, or regulation. 

§ 281.43 Sharing of information. 

(a) States with approved programs 

must furnish EPA, upon request, any 

information in state files obtained or 

used in the administration of the state 

program. This information includes: 

(1) Any information submitted to the 

state under a claim of confidentiality. 

The state must submit that claim to 

EPA when providing such information. 

Any information obtained from a state 

and subject to a claim of confidentiality will be treated in accordance 

with federal regulations in 40 CFR part 

2; and 

(2) Any information that is submitted to the state without a claim of 

confidentiality. EPA may make this 

information available to the public 

without further notice. 

(b) EPA must furnish to states with 

approved programs, upon request, any 

information in EPA files that the state 

needs to administer its approved state 

program. Such information includes: 

(1) Any information that is submitted to EPA without a claim of confidentiality; and 

(2) Any information submitted to 

EPA under a claim of confidentiality, 

subject to the conditions in 40 CFR 

part 2. 

544 

§ 281.50 40 CFR Ch. I (7–1–05 Edition) 

Subpart E—Approval Procedures 

§ 281.50 Approval procedures for state 

programs. 

(a) The following procedures are required for all applications, regardless 

of whether the application is for a partial or complete program, as defined in 

§281.12, or for interim or final approval 

in accordance with §281.11. 

(b) Before submitting an application 

to EPA for approval of a state program, the state must provide an opportunity for public notice and comment 

in the development of its underground 

storage tank program. 

(c) When EPA receives a state program application, EPA will examine 

the application and notify the state 

whether its application is complete, in 

accordance with the application components required in §281.20. The 180-day 

statutory review period begins only 

after EPA has determined that a complete application has been received. 

(d) The state and EPA may by mutual agreement extend the review period. 

(e) After receipt of a complete program application, the Administrator 

will tentatively determine approval or 

disapproval of the state program. EPA 

shall issue public notice of the tentative determination in the FEDERAL

REGISTER; in enough of the largest 

newspapers in the state to attract 

statewide attention; and to persons on 

the state agency mailing list and any 

other persons who the agency has reason to believe are interested. Notice of 

the tentative determination must also: 

(1) Afford the public 30 days after the 

notice to comment on the state’s application and the Administrator’s tentative determination; and 

(2) Include a general statement of the 

areas of concern, if the Administrator 

indicates the state program may not be 

approved; and 

(3) Note the availability for inspection by the public of the state program 

application; and 

(4) Indicate that a public hearing will 

be held by EPA no earlier than 30 days 

after notice of the tentative determination unless insufficient public interest is expressed, at which time the 

Regional Administrator may cancel 

the public hearing. 

(f) Within 180 days of receipt of a 

complete state program application, 

the Administrator must make a final 

determination whether to approve the 

state program after review of all public 

comments. EPA will give notice of its 

determination in the FEDERAL REGISTER and codify the approved state 

program. The notice must include a 

statement of the reasons for this determination and a response to significant 

comments received. 

§ 281.51 Amendment required at end of 

interim period. 

(a) State programs that meet the requirements of section 281.11(c) (1) and 

(2) may be approved for 1 to 3 years 

from September 23, 1988. States that receive such interim approval must adopt 

requirements that are no less stringent 

than the corresponding federal requirements and standards within the timeframes specified under §281.11(c)(3). 

(b) By the end of the specified time 

period, a state with interim approval 

must submit to EPA an amendment to 

its application that includes all modified and new requirements for any of 

the elements containing less stringent 

requirements. Such amended applications must also include a modified program description, an Attorney General’s statement and a Memorandum of 

Agreement that incorporate the 

amended program requirements, and 

copies of all applicable state statutes 

and regulations. 

(c) Upon receipt of the application 

amendment, the Administrator shall 

follow the same review and approval 

procedures as required in §281.50. 

(d) If a state fails to submit an 

amendment within the specified timeframe, the interim approval of the 

state program expires upon the applicable date established under §281.11(c), 

and the Subtitle I program automatically reverts to EPA. 

(e) If a state submits an amendment 

to the program application within the 

timeframe specified under §281.11(c)(3) 

and the amendmant is disapproved 

after the end of the time period, the interim approval of the state program expires immediately upon disapproval 

and the Subtitle I program automatically reverts to EPA. 

545 

Environmental Protection Agency § 281.61 

(f) If interim approval of the state 

program expires, EPA must notify the 

regulated community and the public of 

the re-establishment of the federal program through a notice in the FEDERAL

REGISTER. 

§ 281.52 Revision of approved state 

programs. 

(a) Either EPA or the approved state 

may initiate program revision. Program revision may be necessary when 

the controlling federal or state statutory or regulatory authority is 

changed or when responsibility for the 

state program is shifted to a new agency or agencies. The state must inform 

EPA of any proposed modifications to 

its basic statutory or regulatory authority or change in division of responsibility among state agencies. EPA will 

determine in each case whether a revision of the approved program is required. 

(b) Whenever the Administrator has 

reason to believe that circumstances 

have changed with respect to an approved state program or the federal 

program, the Administrator may request, and the state must provide, a revised application as prescribed by EPA. 

(c) The Administrator will approve or 

disapprove program revisions based on 

the requirements of this part and of 

subtitle I pursuant to the procedures 

under this section, or under section 

281.50 if EPA has reason to believe the 

proposed revision will receive significant negative comment from the public. 

(1) The Administrator must issue 

public notice of planned approval or 

disapproval of a state program revision 

in the FEDERAL REGISTER; in enough of 

the largest newspapers in the state to 

attract statewide attention; and by 

mailing to persons on the state agency 

mailing list and to any other persons 

who the agency has reason to believe 

are interested. The public notice must 

summarize the state program revision, 

indicate whether EPA intends to approve or disapprove the revision, and 

provide for an opportunity to comment 

for a period of 30 days. 

(2) The Administrator’s decision on 

the proposed revision becomes effective 

60 days after the date of publication in 

the FEDERAL REGISTER in accordance 

with paragraph (c)(1) of this section, 

unless significant negative comment 

opposing the proposed revision is received during the comment period. If 

significant negative comment is received, EPA must notify the state and 

within 60 days after the date of publication, publish in the FEDERAL REGISTER either: 

(i) A withdrawal of the immediate 

final decision, which will then be treated as a tentative decision in accordance with the applicable procedures of 

§281.50 (e) and (f); or 

(ii) A notice that contains a response 

to significant negative comments and 

affirms either that the immediate final 

decision takes effect or reverses the decision. 

(d) Revised state programs that receive approval must be codified in the 

FEDERAL REGISTER. 

Subpart F—Withdrawal of 

Approval of State Programs 

§ 281.60 Criteria for withdrawal of approval of state programs. 

(a) The Administrator may withdraw 

program approval when the Agency determines that a state no longer has 

adequate regulatory or statutory authority or is not administering and enforcing an approved program in accordance with this part. The state must 

have adequate capability to administer 

and enforce the state program. In evaluating whether such capability exists, 

the Agency will consider whether the 

state is implementing an adequate enforcement program by evaluating the 

quality of compliance monitoring and 

enforcement actions. 

(b) Such withdrawal of approval will 

occur only after the state fails to take 

appropriate action within a reasonable 

time, not to exceed 120 days after notice from the Administrator that the 

state is not administering and enforcing its program in accordance with the 

requirements of this part. 

§ 281.61 Procedures for withdrawal of 

approval of state programs. 

(a) The following procedures apply 

when a state with an approved program 

voluntarily transfers to EPA those program responsibilities required by federal law. 

546 

Pt. 282 40 CFR Ch. I (7–1–05 Edition) 

(1) The state must give EPA notice of 

the proposed transfer, and submit, at 

least 90 days before the transfer, a plan 

for the orderly transfer of all relevant 

program information necessary for 

EPA to administer the program. 

(2) Within 30 days of receiving the 

state’s transfer plan, EPA must evaluate the plan and identify any additional information needed by the federal government for program administration. 

(3) At least 30 days before the transfer is to occur, EPA must publish notice of the transfer in the FEDERAL

REGISTER; in enough of the largest 

newspapers in the state to attract 

statewide attention; and to persons on 

appropriate state mailing lists. 

(b) When EPA begins proceedings to 

determine whether to withdraw approval of a state program (either on its 

own initiative or in response to a petition from an interested person), withdrawal proceedings must be conducted 

in accordance with procedures set out 

in 40 CFR 271.23 (b) and (c), except for 

§271.23(b)(8)(iii) to the extent that it 

deviates from requirements under 

§281.60. 

PART 282—APPROVED UNDERGROUND STORAGE TANK PROGRAMS 

Subpart A—General Provisions 

Sec. 

282.1 Purpose and scope 

282.2 Incorporation by reference. 

282.3–282.49 [Reserved] 

Subpart B—Approved State Programs 

282.50 Alabama State-Administered Program. 

282.51–282.52 [Reserved] 

282.53 Arkansas State-Administered Program. 

282.54–282.55 [Reserved] 

282.56 —Connecticut State-Administered 

Program. 

282.57–282.59 [Reserved] 

282.60 Georgia State-Administered Program. 

282.61–282.64 [Reserved] 

282.65 Iowa State-Administered Program. 

282.66 Kansas State-Administered Program. 

282.67 [Reserved] 

282.68 Louisiana State-Administered Program. 

282.69 Maine State-Administered Program. 

282.70 [Reserved] 

282.71 Massachusetts State-Administered 

Program. 

282.72 [Reserved] 

282.73 Minnesota State-Administered Program. 

282.74 Mississippi State-Administered Program. 

282.75–282.77 [Reserved] 

282.78 Nevada State-Administered Program. 

282.79 New Hampshire. 

282.80 [Reserved] 

282.81 New Mexico State-Administered Program. 

282.82 [Reserved] 

282.83 North Carolina State-Administered 

Program. 

282.84 North Dakota State-Administered 

Program. 

282.85 [Reserved] 

282.86 Oklahoma State-Administered Program. 

282.87–282.88 [Reserved] 

282.89 Rhode Island State-Administered 

Program. 

282.90 [Reserved] 

282.91 South Dakota State-Administered 

Program. 

282.92 Tennessee State-Administered Program. 

282.93 Texas State-Administered Program. 

282.94 Utah State-Administered Program. 

282.95 Vermont State-Administrered Program. 

282.96 Virginia State-Administered Program. 

282.97 [Reserved] 

282.98 West Virginia State-Administered 

Program. 

282.99–282.101 [Reserved] 

282.102 Puerto Rico State-Administered 

Program. 

282.103–282.105 [Reserved] 

APPENDIX A TO PART 282—STATE REQUIREMENTS INCORPORATED BY REFERENCE IN

PART 282 OF THE CODE OF FEDERAL REGULATIONS

AUTHORITY: 42 U.S.C. 6912, 6991c, 6991d, and 

6991e. 

SOURCE: 58 FR 58625, Nov. 2, 1993, unless 

otherwise noted. 

Subpart A—General Provisions 

§ 282.1 Purpose and scope. 

This part sets forth the applicable 

state underground storage tank programs under section 9004 of the Resource Conservation and Recovery Act 

(RCRA), 42 U.S.C. 6991c and 40 CFR part 

281. ‘‘State’’ is defined in 42 U.S.C. 

1004(31) as ‘‘any of the several states,