50 FR 46602-46618 Friday, Nov. 8, 1985 Notification Requirements for Owners of Underground Storage Tanks
40 CFR Part 280
for Owners of Underground Storage Tanks
Environmental Protection Agency.
Today the Environmental Protection Agency (EPA) is publishing a notification form to be used by owners of underground storage tanks that store or have stored petroleum or hazardous substances. Under section 9002 of the Resource Conservation and Recovery Act (RCRA), as amended, these owners are required to notify designated State or local agencies of the existence of their tanks. In publishing this form, EPA is fulfilling its obligation under section 9002(b) to prescribe the form of notice and the information it must contain. On May 28,1985, EPA proposed two notification forms in the Federal Register (50 FR 21772-21781). In addition, the Agency noticed the availability of a revised form on August 30, 1985 in the Federal Register (50 FR 35261). Today's rulemaking reflects several modifications made to the proposed forms as well as the revised form in response to comments received. The form published today must be used by all owners subject to the section 9002 notification provisions unless the State in which the tank is located requires use of its own form or forms and such form(s) meet the requirements of section 9002.
Final rule effective November 8, 1985.
The public docket for this final rule [Docket No. 9002] is located in Room S-212, U.S. Environmental Protection Agency, 401 M Street, SW., Washington, D.C. 20460, and is available for viewing from 9:00 a.m. to 4:00 p.m., Monday through Friday, excluding holidays. This docket contains, among other material, the economic analyses, background documents, and comments discussed in this preamble.
FOR FURTHER INFORMATION
The RCRA/Superfund Hotline at (800) 424-9346 (toll free) or (202) 382-3000 in Washington, DC; or Virginia Cummings, Office of Solid Waste (WH-565A), U.S. Environmental Protection Agency, Washington, DC 20460, (202) 382-7925.
For information on implementation of this rulemaking, contact the EPA regional office below:
William Torrey, Waste Management Division, 150 Causeway Street. Room 701-709, Boston, Massachusetts 02223, (617) 223-6883
Tom Taccone, Program Support Section, Solid Waste Branch, 26 Federal Plaza, New York, New York 10278, (212) 264-0504
Dennis Carney, Hazardous Waste Management Division, 841 Chestnut Street, Philadelphia, Pennsylvania 19107, (215) 597-3182
Mike Williams, Waste Management Division, 345 Courtland Street, N.E., Atlanta, Georgia 30365, (404) 881-3633
Gerald Phillips, Waste Management Division, 230 South Dearborn Street, Chicago, Illinois 60604, (312) 335-6159
Faye Sandberg, Hazardous Materials Branch, 1201 Elm Street, Dallas, Texas 75270, (214) 767-2941
Chest McLaughlin, RCRA Branch, 726 Minnesota Avenue, Kansas City, Kansas 66101, (913) 236-2852
C. Jay Silvernale, LUST Coordinator, 999 18th Street, Suite 1300, Denver, Colorado 80202, (303)293-1503
Eve Levin, RCRA Program Section, 215 Fremont Street, San Francisco, California 94105, (415) 974-8169
Joan Cabreza, Waste Management Branch, RCRA, Program Development Section, 1200 6th Avenue, Seattle, Washington 98101, (206) 442-0344
These regulations are issued under the authority of sections 9001, 9002, and 9006 of the Resource Conservation and Recovery Act (RCRA) of 1976, as amended (42 U.S.C. 6991, 6992, and 6996).
A. The Statutory Framework
On November 8, 1984, President
Reagan signed the Hazardous and Solid Waste Amendments of 1984.
These Amendments extend and strengthen the provisions of the
Resources Conservation and Recovery Act (RCRA) of 1976, the Federal
law protection human health and the environment from improper
waste management practices. One of the new RCRA provisions, Subtitle
I, initiates a program to control hazards created by underground
storage tanks. The Subtitle I program regulates underground tanks
that store petroleum and substances defined as hazardous under
section 101(14) of the Comprehensive Environmental Response, Compensation.
and Liability Act (CERCLA) (except substances regulated as hazardous
wastes under Subtitle C of RCRA).
Underground storage tank is
defined in section 9001(l) of Subtitle I as "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 percent or more beneath the surface of
Section 9001(l) excludes the
following from the definition of underground storage tank:
(1) Farm or residential tanks
of 1,100 gallons or less capacity used for storing motor fuel
for noncommercial purposes;
(2) Tanks used for storing heating oil for consumptive use on the premises where stored;
(3) Septic tanks;
(4) Pipeline facilities (including gathering lines) regulated under (a) the Natural Gas Pipeline Safety Act of 1968, (b) the Hazardous Liquid Pipeline Safety Act of 1979, or (c) which is an intrastate pipeline facility regulated under State laws comparable to the provisions of law referred to in (a) and (b) above;
(5) Surface impoundments, pits, ponds, or lagoons;
(6) Storm water or wastewater collection systems;
(7) Flow-through process tanks;
(8) Liquid traps or associated gathering lines directly related to oil or gas production and gathering operations; or
(9) Storage tanks situated in an underground area (such as a basement, cellar, mineworking, drift, shaft, or tunnel) if the tank is situated upon or above the surface of the floor.
Subtitle I was developed by
Congress in response to a growing number of groundwater contamination
incidents caused by substances leaking from underground storage
tanks. To assist States in locating and evaluating such tanks.
Congress required in section 9002 of Subtitle I that owners
of underground storage tanks notify designated State or local
agencies of the existence of their tanks. As a means of enforcing
the notification requirements for owners of such tanks, Congress
authorized the assessment of civil penalties against any owner
who knowingly fails to notify or who submits false information
regarding any tank for which notification is required.
Section 9002 requires owners
of underground storage tanks used to store or dispense regulated
substances on or after November 8, 1984, to notify by May 8, 1986,
and provide information on the age, size, type, location, and
use of each tank. Owners who
bring underground storage
tanks into use after May 8, 1986, must notify within 30 days of
bringing the tank into use and provide information on the age,
size, type, location, and use of such tanks.
Section 9002 also imposes
requirements on owners of underground storage tanks which were
taken out of operation after January 1, 1974, but remain in the
ground. Owners of these tanks must notify by May 8,1986, and
provide information to the extent known on the date the tank was
taken out of operation; the size, type, and location of the tank;
and the type and quantity of substances left stored in the tank
on the date it was taken out of operation.
With respect to tanks in use
on or November 8, 1984, the term "owner" is defined
in the statute as "any person who owns an underground storage tank."
Thus, for any tank used to store or dispense regulated substances after
November 8, 1984, the "owner" is the current owner.
With respect to tanks permanently
taken out of operation before November 8, 1984, the statute defines
"owner" as "any person who owned the tank immediately
before discontinuation of its use." Thus for tanks taken
out of operation between January 1, 1974 and November 8, 1984,
the person obligated to provide notification concerning the tank
is the person who last owned the tank before it was taken out
To ensure that owners of underground
storage tanks are informed of their responsibility to notify,
Congress also imposed certain obligations on persons who deposit
regulated substances in tanks and on tank sellers. From December
9, 1985 through May 9, 1987 anyone depositing regulated substances
in an underground storage tank must notify the owner or operator
of such tanks of the owner's notification responsibilities. Beginning
30 days after EPA issues new tank performance standards under
section 9003(e), any person who sells a tank intended to be used
as an underground storage tank must inform the purchaser of the
tank of the owner's notification requirements.
Section 9002 requires EPA,
in consultation with State and local officials and after notice
and opportunity for public comment, to prescribe the form of the
notice and the information it must contain. Section 9002 requires
that designated State or local agencies, not EPA, receive the
notification. EPA has provided in Appendix II a list of these
Agencies. Owners of underground storage tanks are advised to
consult this list to determine: (1) To whom notice must be sent;
and (2) whether the State in which the underground tank is located
requires the use of the EPA form or an alternate State form for
notification purposes. The State forms noted in Appendix II have
been reviewed by EPA and are consistent with Federal requirements.
Owners may thus use these forms to fulfill their Federal notice
obligation. The listing, however, does not represent an EPA
finding that State requirements, such as those concerning who
must notify and when notification must be received, are consistent
with section 9002.
III. Response to Comments on the Proposed Notification Requirements
The majority of the commenters supported the proposed rulemaking with minor modifications. Five major issues, however, were raised in the comment letters received by the Agency on the May 28, 1985, proposal. These issues concerned:
1. Mandatory use of the Federal
notification form by all tank owners;
2. Additional information to be provided by tank owners;
3. Clarification of certain definitions;
4. Notification responsibilities for sellers of tanks and depositors of regulated substances:
5. Implementation of the notification requirements.
1. Mandatory use of the Federal
In the preamble to the proposed
rule, EPA suggested that States could modify the Federal notification
forms to obtain additional information, or develop a separate
notification form specifically suited to State needs. The issue
most frequently mentioned by commenters was whether EPA should
require States to use EPA's form or to use their own forms. Many
industry commenters felt that EPA should encourage States to adopt
EPA's form in the interest of maintaining uniformity and simplicity
in the underground storage tank program. For companies with underground
storage tanks in two or more States, they noted, compliance with
the notification provisions of EPA's underground storage tank
regulations would be considerably simplified if a uniform Federal
notification form were required. They argued that, should a State
insist upon having additional information, the State could provide
an addendum to the Federal form or carry out a follow-up data
request on only those facilities of interest.
In addition. several commenters
expressed the belief that section 9002 requires EPA to prescribe
a form to be used nationwide and that there is no statutory authority
for EPA to approve alternative State forms.
In response to these comments,
the Agency points out that section 9002 does not require EPA to
mandate nationwide use of the Federal form. It merely requires
EPA to "prescribe the form of notice and the information
to be included in the notifications." Using a standard dictionary
definition, the word "prescribe" can be interpreted
several ways. It could mean "to lay down as a guide, direction,
or rule of action; to specify with authority; or to designate or
order the use as a remedy." Accordingly, EPA believes that
section 9002 provides EPA the flexibility to prescribe its form
as a guide for States but does not necessarily mandate use of
EPA's form by States that opt to use their own forms.
In light of the specific language used in this provision, the Agency believes that the phrase "to prescribe the form of the notice" does not require the use of one standardized notice form. Rather, the Agency believes that the statute requires it to set out the type of notice that will comply with section 9002 information requirements.
The EPA form is to be used as the notice form in States where no State notification forms have been developed (that conform to the minimum statutory requirements) and as a guide for States that develop their own forms. This interpretation accords with EPA's view of the principal purpose of section 9002, which is to aid States in developing basic information concerning the tank universe within their borders.
Furthermore, EPA believes that it would be unreasonable to require States with notification programs already underway that satisfy the requirements of section 9002 to adopt the Federal forms. For them to make major changes in their programs and to require a second notification would be a needless and expensive duplication of effort for both the State and the tank owner subject to its reporting requirements. In those States where data collection that accords with the requirements of section 9002 has already taken place, therefore, EPA believes that notification under these State registration programs should be accepted as compliance with section 9002. Thus, EPA is not requiring States to use the Federal form if the State provides a form that meets the statutory requirements of section 9002.
In response to the argument made by commenters for mandating use of the Federal form with a State addendum, EPA does not believe that this action would significantly reduce the burden to tank owners. The regulated community may need to provide as much information in an addendum as would be required by a State form.
In light of the burden on
owners subject to reporting in more than one State, the Agency
is encouraging States to use the EPA form. EPA has tried to produce
a form that States will want to use, one that is simple and straightforward,
yet meets the requirements of section 9002. We have worked closely
with many States in developing the form and have communicated
to them that the objective of the present notification program
is to obtain basic and accurate information quickly while avoiding
imposition of excessive burdens or unproductive requirements on
the regulated community. In addition, we notified the public
of the availability of a new form in the Federal Register on August
30 (50 FR 35261) and invited comments on it. The present form
reflects those comments on both the May and August proposals.
2. Additional information to be provided by tank owners.
In the preamble to the proposed
rule (50 FR 21774, May 28, 1985), the Agency indicated that it
had rejected the option of requiring more information from tank
owners than is expressly required under section 9002. EPA expressed
its belief that inclusion of additional information requirements
across the board, in all States, would involve increased time
and costs to the regulated community and to the State or local
agency processing the information. EPA noted that if a State
prefers to request more information, it can provide an addendum
to the EPA form to suit its needs or develop its own form.
The Agency solicited comment
from the States in the proposal on the applicability of the proposed
forms to their needs. At that time, EPA also requested comment
from the members of the public who would be required to use the
Commenters representing six
States believed EPA should require additional information. Many
State commenters stated that EPA should require a description
of any leaks or spills that have occurred at the facility. Other
commenters said the notification forms should contain information
on the installation status (i.e., whether the tank was installed
under industry approved methods) and on methods or equipment used
for leak detection or prevention.
Nearly all of the commenters
who opposed additional information requirements were members of
the regulated community. Many of these commenters recommended
that EPA resist all attempts to expand and further complicate
the notification form to include additional information not specifically
required by section 9002. They argued that additional information
requirements would increase the cost and complexity of implementation.
In response to EPA's suggestion
that States could "piggy back" additional State information
requirements to the Federal form, only one industry representative
expressly disapproved. That commenter felt that EPA should discourage
States from providing an addendum to the Federal form on the grounds
that the initial notification should not attempt to address all
the questions that may arise concerning underground storage tanks.
Several other commenters said that States that perceive gaps
in the section 9002 notification program or that require additional
information for their particular tank programs should use section
9004 ("Approval of State programs") rather than 9002
to obtain that data.
The Agency believes that the
latter commenter's reference to section 9004 in this matter is
inappropriate. Section 9004 provides for the approval by EPA
of State underground storage tank programs that meet minimum Federal
requirements. It requires that States seeking approval have a
notification program that accords with the requirements of section
9002, but it does not provide States authority apart from section
9002 to collect information for notification purposes.
After careful consideration
of the other comments and concerns described above, EPA has decided
to promulgate a form that will limit the information required
in the notification form to those matters specifically mentioned,
in section 9002. The Agency based this decision on a number of
factors. First, the Agency believes that the purpose of the notification
program is to collect information that could be used to develop
a preliminary tank inventory. To add more detailed reporting
requirements would convert the relatively modest notification
obligation contemplated by Congress into a major undertaking.
The Agency believes there will be ample opportunity later for
the States and tank owners to consider what additional information
might be necessary for the administration of ongoing State programs.
Second, the Agency also recognizes
that requiring additional information will escalate costs because
such additional information may often be difficult to obtain.
Even if one assumes that additional information can be obtained,
the Agency questions the value of such information for this notification
program. For example, leak detection systems and methods of tank
gauging are frequently changed. Thus, such information could
soon be outdated or be in need of continuous revision.
In some areas, however, the
Agency found it necessary to request additional information.
The first area is piping. Although piping is included in the
legal definition of underground storage tank contained in section
9001(1), EPA did not differentiate the parts of the tank system
in the proposed forms. Several State commenters expressed concern
that the proposed form appears to exclude piping, a significant
oversight because piping is part of the tank definition and leaks
from piping have been identified as a significant source of release
incidents. We now include information requirements on the piping
portion of the tank separately on the notification form.
The second area for which
additional information is required on the final form is closure.
For purposes of clarification, a box was added for owners to
indicate if the tank was filled with an inert solid material.
EPA believes this information can be useful to agencies in determining
which of the tanks no longer will require follow-up action.
The third area concerns the
addition of a box under "type of notification" where
owners can indicate whether the notification is an original submission
or an amendment to a previous submission. It should be noted,
however, that the submission of this information will be optional
on the form and that owners are not required to amend or update
their registrations under the Federal law. Nevertheless, owners
may be required to update the forms under State law. Thus, the
addition of these boxes will be useful in those States.
3. Clarification of certain definitions.
EPA received many comments requesting clarification of several statutory definitions that were found in the proposed rule.
definition several commenters found unclear was the term "owners."
Under the statute an owner is defined as: "(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 substances;
and (b) in the case of any underground storage tank in use before
the date of enactment of the Act, but no longer in use on the
date of enactment, owner means any person who owned such tank
immediately before the discontinuation of its use."
A number of commenters found
this definition confusing. With respect to tanks taken out of
operation by former owners, one commenter stated that, because
the term "owner" may include former owners, if the tanks
were taken out of service between January 1, 1974 and November
8, 1984, it may be extremely difficult for such owners to know
or determine whether their tanks will be placed back into use
by subsequent owners. Another commenter stated that, unless a
former owner of a nonoperational tank is aware of the requirements,
he will probably assume that the current tank owner or landowner
where the tank is located is the owner for purposes of notification.
One commenter recommended that the definition of tank owner be
reworded to make the current owner of the facility responsible
With respect to tanks of current
owners, several commenters pointed out that ownership questions
may be difficult to resolve because tanks have been purchased,
installed, and transferred under many kinds of arrangements, including
partnerships, executory interests, and trusts. In some instances
tanks may have been installed under sale and lease-back arrangements,
or a bank may have taken title as a security interest for a purchase
money loan. One commenter said that because tank owners were
often not required to keep documentation concerning the sale or
transfer of their tanks, such documentation in many cases had
been lost or destroyed.
Several other commenters suggested
that with respect to current owners the following approaches be
considered, only where ownership may be disputed or is uncertain:
(1) presume that the person in direct control of the real property
and facilities is the owner of the tank unless he ascertains that
another entity accepts ownership and will file the notification
form; (2) presume that a person is not an owner of the
tank if he cannot, through reasonable efforts, confirm the sale
or transfer of such tanks, and is not the owner of the real estate
where the tank is located, and has not received notice pursuant
to the depositor notice requirement.
Another commenter suggested
that with respect to all tanks, EPA could indicate that any person
with an interest in a tank could submit the required notification
without admitting ownership.
EPA has carefully considered
these suggestions of the commenters. While EPA cannot revise
the definition contained in the statute, the Agency will attempt
to clarify its meaning by providing the Agency's interpretation
of what tanks EPA considers to be "no longer in use"
prior to November 8, 1984, for which notice must be provided by
former owners discontinuing their use, and what tanks it considers
to be "in use" on or after November 8, 1984, for which
notification must be provided by current owners.
With regard to a tank no longer
in use on November 8, 1984, for which notification must be provided
by the owner who discontinued its use, EPA believes that such
an owner should notify if the owner knows or has reason to believe
the tank was permanently taken out of use for storing regulated
substances. Indications that a tank is permanently out of use
are: (a) If it is filled with inert solid material or otherwise
rendered unusable, or (b) if there is reason to believe that it
will not be used in the future (e.g., the owner abandoned the
tank, intakes and vents are paved over, access piping is disconnected
or removed, or the tank was sold to a person who had no use for
the tank, such as a residential real estate developer).
With regard to tanks in use
on or after November 8, 1984, notification must be provided by
the tank's current owner. If the tank was in operation on November
8, 1984, the current owner is responsible to provide notification
under the statute even if the tank was permanently taken out of
use after November 8,1984, and even if the current owner was not
the person who took the tank out of use. For example, if a tank
was in use on November 8,1984, but was taken out of use before
it was sold to a new owner the following month, the new owner
has the responsibility to notify even though the new owner had
never used the tank to store regulated substances.
The Agency has presented these
interpretations in an effort to minimize confusion concerning
the notification requirements for tanks taken out of operation.
With respect to tanks for which ownership is unclear because
of uncertain title, however, EPA has determined not to adopt presumptions
suggested by commenters. The Agency believes these presumptions
may define ownership in a manner that is not consistent with the
statutory definition of owner. The Agency recognizes the need
for further guidance with respect to the definition of "owner,"
but believes that such guidance cannot be given until the Agency
has had an opportunity to consider its implications. EPA will
address these issues in a later rulemaking or guidance.
Recognizing that there may
be confusion concerning ownership interests and wishing to encourage
notification for all tanks, the Agency has decided to modify the
notification form to allow persons other than the "owner"
to notify. By permitting persons other than the owner to notify,
however, the Agency realizes that some double reporting may occur,
but such reporting would likely provide States with a more complete
inventory of underground storage tanks. Because of this modification
to the form, EPA believes it is unnecessary to adopt commenters'
suggestions for establishing ownership by using presumptions.
The Agency also received comments requesting
clarification of who is a "person who deposits regulated substances" into
a tank for purposes of Section 9002(a)(4). In the proposed rule,
EPA indicated that depositors could include operators, distributors,
and transporters. Several commenters recommended that a "person
who deposits" should be defined as an entity whose employees
or agents physically transfer regulated substances into an underground
storage tank. Under this definition, the transporter would be
the most likely person to give notice. Commenters did not clarify
to whom notice should be given (e.g.. hourly worker at facility,
supplier, facility office).
Another commenter suggested that the refiner or marketer, not the common carrier or trucker, should be responsible for giving notice to the tank owner. The commenter argued that the refiner or marketer has already been given that responsibility under the FTC octane rules as well as the Department of Energy's price rules.
EPA believes that the purpose of this provision is to provide a source of information via normal commercial relationships for tank owners concerning their responsibility to notify. Thus, EPA has concluded that the burden for informing owners should be on the party last selling the regulated substances (i.e., the person who conveys title in the substances to the owner) prior to its being placed in the tank, and not necessarily the entity who physically deposits the substance in the tank. The Agency believes that enforceability of the requirements for depositors would be otherwise difficult. For these reasons, the Agency encourages those who sell regulated substances to outline the notification requirements on the shipping papers or on the invoice that accompanies the sale. EPA also acknowledges, however, that there are other acceptable methods for depositors of regulated substances to fulfill their statutory duty to provide reasonable notification to owners or operators. These methods are addressed in more detail elsewhere in this Section.
(c) Seller. Several commenters requested that EPA clarify who is "a person who sells a tank intended to be used as an underground storage tank." The Agency believes that the tank seller, in the context of the notification requirements, is the last person in the marketing distribution chain. It should be noted that the notification requirements apply to sellers of second-hand tanks as well as new tanks.
(d) Underground storage tank. The Agency received many comments requesting clarification on the statutory definition of underground storage tank. Several commenters suggested that the Agency provide guidance on what is a "tank" and what is "connected piping." Other commenters requested EPA to clarify its intent regarding the following exclusions for tanks: tanks situated in an underground area; liquid traps; flow-through process tanks; pits; and tanks used for storing heating oil for consumptive use on the premises where stored. Several commenters suggested EPA consider a de minimus exemption for small storage tanks.
The Agency recognizes the need for guidance on the terms discussed above. The inclusion of such definitions in the final rulemaking would require proposal, solicitation of comments, and in-depth consideration of the implications of each definition with regard to future rulemakings under Subtitle I. Because the Agency needs time to study the exclusions before it defines these terms, however, EPA has chosen to define such terms when it promulgates technical standards in 1987. The Agency is aware that some tanks may eventually not qualify as underground storage tanks regulated under Subtitle I when the definitions are refined. In the meantime, owners are advised that, until these issues are clarified, the failure to notify will be at their own risk. EPA does not regard the submission of this notification as an admission of ownership for the purpose of this program or for any future regulatory program under Subtitle I. Likewise, failure to notify does not relieve an owner of obligations that are imposed under the statute or under future rulemakings.
4. Notification responsibilities for sellers of tanks and depositors of regulated substances.
In the preamble to the proposed rule, EPA suggested several methods by which a tank seller or depositor of regulated substances could inform the owner, operator, or purchaser of an underground storage tank of the owner's notification responsibilities. These methods included leaving a copy of the EPA notification form with the owner or operator, printing the notification requirements on the shipping papers, or providing a description of the notification requirements on the invoice. The Agency solicited comment from persons who deposit regulated substances into tanks and tank sellers on the kind of guidance that would be helpful to them in communicating the notification requirements to the appropriate persons.
Many commenters agreed with the methods recommended by the Agency and felt that it is essential that persons who deposit regulated substances and tank sellers be given the flexibility to decide how their responsibilities might best be carried out. One commenter also suggested that notification could be in the form of mailing certified letters to the owners or operators advising them of the notification requirements. Other commenters requested that EPA provide standardized wording for use with delivery tickets or invoices and recommended this language be included in an appendix to the final rule.
Several commenters requested clarification on whether a depositor must inform an owner or operator each time product is delivered during the 18-month notification period or whether a one-time notification complies with the requirements of Section 9002. Other commenters pointed out that there is no guarantee that operators who receive notices from depositors will pass that information on to the owner. They suggested that EPA require an operator who is served notice by the supplier or tank seller to submit such notice to the owner within a specified amount of time.
The Agency would like to reiterate its belief that there are a number of acceptable methods that depositors could use to notify the tank owner or operator of the owner's notification responsibility, including mailing of a certified letter to owners or operators.
EPA also believes there should be a number of acceptable methods available to a tank seller to fulfill his responsibility to inform the tank purchaser of the owner's notification obligations. Thus, EPA does not intend to use this rule to prescribe, restrict, or prohibit any particular method.
In response to the comment that standard language be used by depositors and sellers in notifying owners, EPA agrees that unless EPA recommends such language, there may be inaccuracies or deficiencies in the notice provided. Accordingly, Appendix III sets forth suggested language to be used for a one-time notification letter and for a statement on shipping tickets and invoices.
In response to the comment requesting clarification on the adequacy of a one-time notice by depositors, EPA believes that notifying an owner or operator once during the 18-month period is sufficient.
The Agency has considered the issue of forwarding the advisory notice from the operator to the owner. EPA has determined, however, that it does not have the authority under section 9002 to impose such a requirement on operators.
5. Implementation of the notification requirements.
The Agency received many comments on EPA's intended use of the existing toll-free RCRA/Superfund Hotline to assist tank owners in completing the notification form. Several commenters were concerned that, in view of the large number of newly regulated small businesses, the Agency would receive many questions. This additional burden could overload the existing hotline, rendering it ineffective. To rectify this situation, a number of commenters suggested a separate hotline for the UST program. They stated that if a toll free telephone number were used, it should be a number separate from the existing RCRA/Superfund Hotline.
The Agency has evaluated the need for a separate hotline and has determined that it will augment the resources for the existing hotline rather than create a separate service. EPA believes that this decision is appropriate given that State agencies will be the primary points of contact concerning the notification requirements and form for owners of underground storage tanks.
C. The Notification Form
The majority of commenters endorsed EPA's decision to adopt a simple notification form that is limited to the information required by the 1984 RCRA Amendments. Many commenters stated that the form is straightforward and can be easily completed. Others recommended that EPA adopt the proposed forms but with minor modifications and additions.
The following paragraphs discuss the comments EPA received on the proposed forms and the Agency's response to these comments.
1. General Instructions.
EPA received a number of comments concerning the general instructions for the proposed forms. Many of these comments were editorial. Others concerned the definitions of "underground storage tank" and "owner." One commenter believed that the statutory language to define these terms may be too technical for small entities to understand. The Agency has already responded to comments concerning definitions in Section III(A)(3) of this preamble.
Several commenters recommended that the instructions on the forms should indicate that owners are not expected to expend extensive time and resources to retrieve the necessary data.
Congress provided in Section 9002 that owners of tanks taken out of service submit information "to the extent known" rather than require owners of tanks taken out of service to expend extensive time and resources to retrieve the necessary data (e.g., going beyond available documents and contacting previous owners to determine the age of tanks, construction materials, etc.). Congress made no such provision, however, for current owners of tanks. Thus, current owners of underground storage tanks in use or that will be brought into use in the future are expected to take any available steps to provide the necessary information about their tanks. In recognition, however, that there may be situations where it is impossible for current owners to obtain all the necessary data to complete the form, the Agency has provided owners the option of indicating "unknown" as an answer. In a situation where no actual record exists, an owner may provide a response based an reasonable estimates, rather than indicate the answer is unknown.
One commenter stated that the instructions for the out-of-service tanks are not acceptable. The commenter suggested that the Agency clarify whether all the information requested is to be accurate as of the time the tank was taken out of service, or whether some of the information is to be current as of the date of notification. For example, is the name of the facility to be what it was at the time the tank was taken out of service (Jones Service-Station) or what it is now (perhaps a parking lot)?
Because the primary purpose of the notification program is to assist States in determining where underground storage tanks are located and what regulated substances they contain, EPA believes that information on both the previous and current owners should be noted in this situation. Providing only the name of the owner at the time the tank was taken out of service could be misleading as the above example suggests. Requiring information in both previous and current owners provides a greater degree of certainty of knowing what the tanks contained (or may still contain) and where they are located. In an effort to help States distinguish between current and former owners, EPA has provided boxes on the form to indicate whether the respondent is a "current" or "former" owner.
Several commenters recommended that EPA reword the penalty statement in the instructions. Evidence of deliberate failure to notify or knowing submission of false information is the statutory standard, they stated, and the sentence should be modified to comply with the statute. EPA has adopted the language of the penalty statement as it appears in the statute. The additions suggested by the commenters would significantly change the meaning of the statute, and such alterations are not within the Agency's authority.
Many commenters suggested that EPA combine the two forms into one form. This would result in less paperwork for tank owners and serve to minimize confusion. It would also reduce the printing costs and simplify administrative handling by the State agencies processing the information. The Agency agrees with the commenters and has combined the information requirements of the two proposed forms into a single, two-sided form.
Other format changes suggested by commenters have been adopted and include: (1) Eliminating all Federal agency logos, names, and mailing addresses so that State or local logos and addresses can be inserted; (2) adding a space for total number of tanks being reported and (3) reducing the number of lines for specific tanks. EPA also removed the preprinted tank numbers from the form in response to a comment that photocopies of the form must be altered for facilities with more than eight tanks, and in response to the desire expressed by some commenters to use existing company tank identification numbers in lieu of preassigned, sequential numbers.
Several commenters requested that EPA provide coding lists for materials of construction, external protection, and substance stored to make the form more amenable to a computerized data-processing system. EPA has consulted statisticians concerning this suggestion and on the basis of their analyses, has decided that the probability for error is greater with coded responses than with direct indication of choice.
3. Specific Line Items.
Name and Address of the Facility. One State commenter requested that EPA change the heading on the form from "name and address of the facility" to "location of tanks." Accordingly, the Agency has made this requested modification for clarity. The Agency has also modified the location address block so that the owner may now provide the name of the company site identifier as an alternative to the facility name. The owner is also required to provide the street address (or, in rural areas, the name or route number of the State road) as well as the city where the tanks are located. A number of commenters requested that the Agency include a space for county name and zip code so that batch reports of tank facilities may be printed. In response to this comment, the Agency has included such requirements on the final form.
Several State commenters suggested that tank location should be specified by some universal locator system such as township, range and section number, universal transverse meridians, or latitude and longitude. They suggested that this requirement would be particularly useful outside of metropolitan areas. Another State commenter suggested that facility locations, particularly in rural areas, should reference municipal tax maps. They pointed out that the location of a facility is often difficult to describe because of the lack of street numbers and names.
EPA recognizes that sometimes street addresses alone are not sufficient and that inclusion of the information suggested above could add considerable precision to determining the location of tanks. The Agency has decided not to require such information however, because it would complicate the form and would require owners to undertake additional effort by researching tank records, deeds and mortgages. EPA believes this additional effort is not warranted.
Owner of Tank . Elsewhere in this preamble tank ownership is discussed. EPA recognizes that because of the varied nature of ownership interests in real property (particularly for gasoline-marketing operations) there are many cases where tank ownership is uncertain. One commenter recommended that EPA change the heading in Item 3 on the proposed form to read "owner of tank and owner of property." The commenter pointed out that the property owner may not own the tank and may not be aware that the lessee has installed an underground storage tank on his property. These comments have prompted EPA to add a box that can be checked in cases where ownership of the tank is uncertain.
Contact Person . In response to comments, EPA would like to clarify that the contact person for the facility is the person responsible for the day-to-day monitoring of the tank. The contact person may be the owner or the owner's authorized representative. In recognition that employees are more subject to change than are their job titles, EPA has modified the form to include a space for the job title of the contact persons. By so doing, inquiries can be directed to a particular position, even if the position is no longer held by the same individual.
Type of Owner . EPA has revised Item 5 ("Type of Owner") to provide for identification of State or local government-owned tanks, federally-owned tanks, and privately-owned tanks. The form requires the owner to provide a federal facility General Services Administration (GSA) identification number for Federal tanks, to assist Federal agencies that may want to ascertain the status of their tanks. In an effort to simplify the form, information concerning the "type of owner" is now included in Section 1, "Ownership of the Tanks."
For State Use Only . One State commenter requested that EPA provide space on the notification form so that States may attach a form serial or accounting number identification. The Agency agrees and has changed the form accordingly to facilitate the identification of those owners who may file subsequent notifications and to facilitate automated data processing.
Information on Tanks.--(a)Age . A number of commenters remarked that many owners do not know the age of their tanks. Accurate information on the age of tanks or when the tanks were last used may be even more difficult or impossible to obtain. In consideration of these comments, the Agency now requests owners to provide an estimate of the age of their tanks rather than specifying the exact age of their tanks.
(b) Material of Construction . In the proposal, EPA listed only steel and fiberglass reinforced plastic tanks for specific identification in the notification form. EPA has since determined that there may be tanks that are partially in-ground or above-ground that satisfy the underground storage tank definition. In addition, review of the comments indicates that some devices, such as sumps, which typically may not be considered tanks by the owner, may also meet the definition of underground tank contained in section 9001(1). Many of these devices are constructed of concrete. Thus, in the final notification form, EPA has added "concrete" to the list of tank construction materials. This addition does not necessarily mean that all sumps or concrete tanks are underground storage tanks. It will still be up to the owner to determine if he owns a tank that satisfies the statutory definition of "underground storage tank."
(c) Corrosion Protection . EPA received many comments concerning types of internal and external corrosion protection systems. On the proposed forms, owners are required to specify whether the tank is internally protected with a lining or whether it is unlined. One commenter requested that the Agency define the kinds of tank linings considered to be internal protection.
Other commenters directed their remarks toward external protection systems. For example, several commenters requested that the term "coating" be clarified and defined. One commenter recommended that the Agency revise the instruction concerning this to indicate that all appropriate boxes should be checked. The commenter stated that it is common for a tank to be both coated and wrapped or have some form of cathodic protection plus a coating.
EPA defines internal lining as any material that is applied over the inside surface of the tank. Many types of materials are used for this purpose, such as polyesters, epoxies, and ceramics. On the notification form, the Agency asks only that the owner indicate whether or not the tank is internally lined. The owner is not required to specify the type of lining.
In regard to external protection systems, the term "coating" means any material that is applied over the outside surface of the tank. Types of coatings commonly used include asphalt, coal tar epoxy, and fiberglass reinforced plastic (FRP). On today's form, EPA requires the owner to indicate the kind of external protection system used on the tank. The Agency has listed fiberglass reinforced plastic coating to the list of types of external corrosion protection because it is one of the more common methods of corrosion protection. Other coatings are generally supplemented with cathodic protection. EPA has also modified the instruction concerning external protection so that the owner can now indicate whether the tank is equipped with more than one protection system.
(d) Type of Substance Stored . On the proposed forms, owners are asked to identify which of two categories of substances the tank contains: CERCLA hazardous substances or petroleum. If the tank is storing petroleum, the owner is asked to indicate which type (i.e., gasoline, diesel, or kerosene). If the tank is storing a CERCLA hazardous substance, the owner had to provide the name of the hazardous substance or the Chemical Abstracts Service (CAS) registry number.
Several commenters questioned the Agency's classification of petroleum substances. One commenter did not believe there is any need to distinguish between diesel and kerosene petroleum substances and suggested grouping these along with heating oil into a single category of distillates. Several commenters believed that the Agency should distinguish the types of gasoline stored in a tank (i.e., regular, unleaded, premium) because the type of gasoline is related to the issue of product compatibility with tanks. One commenter also suggested that the Agency expand the choices beyond those discussed above to include used oil, aviation gas, jet fuel, and gasohol.
EPA has considered these comments and has decided not to combine petroleum substances into a single category of distillates because EPA believes the substances are sufficiently different to warrant obtaining information about them individually. On the other hand, the Agency has determined that it is not necessary to distinguish the types of gasoline stored. Listing gasoline by type does not provide useful information concerning substance compatibility with tanks because different brands of the same type of gasoline can vary in formulation. Likewise, the Agency has allowed for the reporting of alcohol blends with gasoline under the "gasoline" category. In an effort to keep the form simple, the Agency has restricted its list of type of petroleum substance stored to generic classes.
EPA has added "used oil" to the list of choices because it is one of the most commonly stored regulated substances. The Agency has determined that if used oil is eventually listed as a hazardous waste under Subtitle C of RCRA, the Agency would have jurisdiction under both Subtitle C and Subtitle I to regulate used oil. This position is based on the fact that the exclusion for hazardous wastes under Subtitle I applies to CERCLA substances (Section 9001(2)(A)). It does not apply to petroleum substances that are identified in section 9001(2)(B). The technical standards that will apply to used oil tanks will be promulgated in the future. In the meantime, notification under Subtitle I is required for used oil and for any petroleum hazardous waste that is not currently regulated as a hazardous waste under Subtitle C of RCRA.
Several commenters addressed
the identification of CERCLA hazardous substances. In the preamble
to the proposed rule, EPA suggested that owners contact the RCRA/Superfund
Hotline at (800) 424-9346 if they were unsure whether the chemicals
stored in their tanks were CERCLA hazardous substances. EPA also
stated that the Agency could provide interested persons with a
list of such substances upon request. 
One commenter stated that in situations where a commercially available product (which contains CERCLA hazardous substances) is being stored in an underground storage tank, readily available chemical identification information should suffice for identifying the "substance type" on the notification, such as information from material safety data sheets required by the Occupational Safety and Health Administration. The Agency believes that the "regulatory synonyms" identified in Table 302.4 of the Reportable Quantity regulation (50 FR 13475, April 4, 1985) may be used in the notification form. The use of trade names, however, may not be used since the exact chemical constituents of any particular product generally are not readily available to State or local agencies.
A commenter who referred to the list of CERCLA hazardous substances noted that it contains both commercial chemicals and discarded commercial chemical products. The commenter requested that EPA clarify which of these substances would be subject to the notification requirements. Every substance on the CERCLA list is a regulated substance unless it is a hazardous waste regulated under Subtitle C. This means some waste streams on the CERCLA list are not regulated substances for the purposes of Subtitle I. On the other hand, commercial products that become Subtitle C hazardous wastes when discarded or when they are intended to be discarded, are regulated substances under Subtitle I until they are discarded or intended to be discarded as wastes.
In the preamble to the proposed rule, EPA solicited comment regarding what is the most appropriate indication of stored CERCLA hazardous substance when there is a mixture of chemicals in one tank. The Agency proposed that the owner indicate the substance of greatest quantity in the mixture.
The majority of commenters stated that it is sufficient to report only the major component present in the mixture. They also stated that, because many industry products are complex mixtures containing potentially large numbers of hazardous substances, it would be difficult and very expensive to list all products stored. One State commenter stated that his agency's ADP system would not have the capability to include information an more than one substance per tank.
Several commenters argued that all substances should be identified so that the potential environmental threat from a tank could be determined. Other commenters stated that, although listing all the substances in the mixture would be an unnecessary burden, EPA's proposal to list the substance of greatest quantity would not accurately reflect the tank's contents. One commenter recommended that all major substances present in volumes of 10 percent or greater be identified. Another commenter stated that EPA should provide a space for a product description, the CERCLA substance of greatest quantity, and the concentration of the substance.
Other commenters stated that using toxicity as one basis for notification is inappropriate because the degree of toxicity of a substance is unrelated to its potential to leak from an underground storage tank. One commenter stated that the Agency should not require tank owners to list the substance that is most toxic because few owners possess the technical or scientific expertise to evaluate the relative toxicities of materials in the mixture.
The Agency has carefully considered these comments and recognizes that, while more detailed information may be needed to respond to an actual tank leak, this greater level of detail is unnecessary for development of a general tank inventory, which is the primary objective of this notification effort. The data supplied under this initial notification effort should not be viewed as the sole source of information to be used for emergency responses. Therefore, the notification form continues to require the owner to indicate only the CERCLA hazardous substance of greatest quantity in a mixture. Where a tank is used to store more than one substance during a year, the Agency requires that only the most typical use or use of greatest quantity during the year be identified on the notification form.
Certification . In the instructions for the proposed notification form, EPA stated that the form must be signed and certified by the owner or authorized representative of the facility. The Agency defined authorized representative as "person responsible for the overall operation of the facility, as for example, a plant manager or superintendent, or a person of equivalent responsibility." A number of commenters disagreed with this definition, arguing that the certification should be restricted to an officer or other official representative of the owner, and not permit the signature by a mere employee.
In response to these comments, EPA would like to clarify its definition of authorized representative: it is a person who is authorized by the owner to sign the notice.
One commenter requested that, for companies with many tanks or multiple locations, certification be allowed in a cover letter rather than on the notification form itself so that the owner would not have to sign hundreds of certifications. In response to this comment, the Agency has modified the form to take into account locations with many tanks. Thus, the certification statement and the signature line have been moved to first page of the form. Owners are permitted to sign one form, if it is part of a series of notification forms for several tanks at one location. We have rejected the commenter's suggestion, however, to permit certification by cover letter for owners of tanks at more than one location. To permit such certification could result in separation of the certifications from the forms and present a problem in data management and storage of the forms.
There may be instances when the notifier is not an owner or his authorized representative but some other interested party. In such cases, the notifier should indicate this on the form by crossing out the word "owner" under the certification and substituting the word "notifier."
4. Additional data requests.
Elsewhere in this preamble, the Agency discussed its rationale for limiting the information required in the notification form to the items specified in Section 9002. As we have explained earlier, in response to comments EPA has added information requirements concerning tank closure and piping.
A number of commenters also requested that EPA provide space for the owner's identification of tanks (e.g.. number, code name, location). In particular, one commenter stated that for large facilities having several buildings, such identifiers may be critical as tanks containing the same material may be located at more than one building. As its response to these comments, EPA has eliminated the prenumbering found on the proposed forms and has designated that space for such identifiers.
EPA received many comments, including six from States, requesting that the Agency provide for updating of information whenever significant changes occur at the site. These changes could include the installation or replacement of tanks or piping, permanent removal of a tank from operation, and changes in the chemical substance(s) being stored. Several commenters stated the notification form would be a much more effective management and enforcement tool if the owner were required to update a tank's status as it changes.
Other commenters believed that tank notifications should be made on a one-time-only basis because a continual notification system could be resource intensive and yield little additional useful information.
EPA recognizes that the accuracy of the underground storage tank data compiled from the notifications submitted under Section 9002 will not remain current unless updated to incorporate future changes, but believes that Section 9002 does not provide EPA authority to require owners to update their notices in the future. To compensate for this limitation, however, EPA provided a place on the form to indicate whether the notification is an initial or an amended report, so that States that may opt to require updates of the information received in the original notification can do so using EPA's form. The addition of this block imposes no additional Federal information requirements on the tank owner.
D. Other Comments
The Agency also received a number of comments concerning the following subjects: (1) Jurisdiction for the Subtitle I program on Indian lands; and (2) EPA's role in communicating the notification requirements to the regulated community.
Several commenters requested clarification as to how EPA would handle notification of tanks located on Indian lands. The Agency believes that Subtitle I does not provide States the authority to assert jurisdiction over underground storage tanks on Indian reservations or other lands held in trust for Indian peoples. Some States may have such authority by treaty or an act of Congress other than Subtitle I. Nevertheless, Section 9002 imposes a Federal requirement on all underground storage tank owners to provide notification to the State or local agencies designated under Section 9002(b). This is an obligation under Federal law, not State law, and applies to Indians in the same way it applies to any other "person" who is an owner of an underground storage tank. Accordingly, Indian tank owners must provide notification to the appropriate agencies listed in Appendix II. In States that do not have jurisdiction to assert State laws over Indian tribes or individual Indians, however, Indians cannot be required by such States to use State forms. In such States, Indians will be deemed to have complied with Section 9002 if they use the Federal form, but such form must be sent to the appropriate State or local agencies listed in Appendix II. The notification form has been amended to include a box that should be checked if a tank is located on Indian reservations or other trust lands.
Other commenters requested clarification of EPA's role in the implementation of State notification programs. Two State commenters recommended that EPA conduct a national or regional advertising campaign to inform tank owners of their requirements to notify. One of these States also said that EPA should assist States with regional mailings of general underground storage tank information to all permit holders.
EPA plans to provide a notification handbook to the States to aid in implementing and informing tank owners of their notification programs.
IV. The Final Notification Form
As was stated earlier in this preamble, Section 9002 was included in Subtitle I to provide States with some basic information about underground storage tanks within their jurisdictions. This information could be used to establish State programs aimed at preventing, detecting, and correcting leaks from these tanks. Owners are encouraged by EPA to maintain records of the data they submit to the designated State agencies.
EPA attempted to produce a notification form that is easy to complete and that fulfills the requirements of Section 9002. The format is designed to simplify the completion of the form (i.e., in most cases, answers may be provided by checking a box). The Agency has thus attempted to minimize the burden upon all tank owners, the majority of whom own small businesses.
A. Information Included in the Form
Appendix I sets forth the form to be used by owners of underground storage tanks. The following paragraphs provide details concerning the information requirements of this form.
The owner of an underground storage tank must give his name, address, and phone number. The owner must also provide information concerning a contact person: i.e., an individual who is responsible to him for monitoring the day-to-day operation of the tank. This information should include such persons name, title, address, and phone number. In addition, the owner is required to provide information on the location of his tank and the status of the tank, (whether it is currently in use, temporarily out of use, or permanently out of use).
For underground storage tanks in use or that are brought into use after May 8, 1986, EPA requires owners to estimate the age of the tank and to indicate its capacity in gallons. With respect to the type of tank, EPA has characterized type to mean materials of construction and internal and external corrosion protection, if any. The owner is required to indicate whether the tank is constructed of steel, fiberglass reinforced plastic, or concrete. If the tank is not constructed of these materials, the owner is asked to specify the material. Listed in the form are several types of corrosion protection systems. The owner must specify the kind of internal and external protection system with which the tank is equipped. The owner is also required to provide information on piping.
Concerning the use of the tank, the owner must identify which of two categories of substances the tank contains: CERCLA hazardous substances or petroleum. If the tank is storing a hazardous substance, the owner must provide the name of the CERCLA chemical or the Chemical Abstracts Service (CAS) registry number. When a mixture of several hazardous substances is stored in one tank, the owner must specify the name of the substance of greatest quantity. If the tank is used to store different hazardous substances at different times, the owner must specify the name of the substance typically stored or stored in greatest quantity during the year immediately preceding the submission of the notice. If a tank is storing petroleum, the owner is required to indicate the type of petroleum that is stored.
For underground storage tanks taken out of use permanently after January 1, 1974 (but still in the ground), the owner is required to provide the same information as discussed above. In addition, the owner must estimate the date of last use and the quantity of substance remaining in the tank. The owner must also indicate whether the tank was filled with inert material, such as sand or concrete. If the tank is taken out of the ground prior to May 8, 1986, notification is not required.
B. Copies of the Form
EPA is providing States with a camera-ready copy of the notification form. Owners of underground storage tanks should contact the appropriate designated State agency that is implementing the notification program to determine if the State has copies of the form or is using its own State form. (Appendix II provides a list of the designated State agencies.)
V. Confidentiality Provisions
EPA received several comments concerning the confidentiality provisions that were discussed in the preamble to the proposed regulation. Commenters were concerned that confidentiality may not be adequately protected in States that do not effectively implement the underground storage tank regulations. Several commenters recommended that EPA strengthen the confidentiality provisions to provide assurance to the regulated community that legitimate proprietary information will be adequately safeguarded.
Because the information reported in the notification forms will be sent to a designated State or local agency, not to EPA, the information will not be subject to Federal public disclosure laws. The Agency cannot, of course, interfere with State confidentiality provisions. Owners of underground storage tanks who seek protection from disclosure should, therefore, contact the appropriate State office for information on applicable confidentiality provisions.
National Costs for the Notification Requirements
EPA received a number of comments on the Agency's estimated costs to tank owners to meet the notification requirements.
Some commenters disagreed with the Agency's assumption that an average facility was comprised of three tanks. One representative of the chemical industry stated that a more typical facility would have ten to several hundred tanks; another commenter estimated that a utility company may have as many as 600 tanks at one facility. Commenters argued that because the Agency has underestimated the number of tanks at a facility, it has significantly understated the costs of the notification requirements. One commenter stated that as a result of underestimating the number of tanks at large facilities, the costs to a large facility could be underestimated by a factor of ten to twenty. Should this be the case, the commenter argued that the regulations would be classified as a major rule.
Although the Agency agrees that some facilities do have more than three tanks per facility (e.g., large chemical companies), the majority of facilities with tanks used for petroleum (e.g., gas stations; and specialty chemical products are unlikely to have more than three tanks. The Agency believes that a typical facility has three tanks. EPA recognizes, of course, that for facilities with a significantly larger number of tanks, the costs could be underestimated; the number of these facilities is not great, however, and, therefore, the total national costs of the regulation will not increase significantly. In addition, large facilities that have computer capabilities for monitoring the contents of their tanks may be able, through negotiations with States, to substitute computer printouts for the EPA or State notification forms. This will reduce the cost to these facilities both in data retrieval and in notification costs.
A number of commenters stated that the Agency underestimated the average time required per facility to complete the notification from. Because tanks may be used for mixtures of products or for more than one product over a year, identifying all the products included in the tank would take more than 30 minutes per facility. Commenters stated that for facilities with tanks taken out of service since 1974, it would take much longer than 30 minutes to obtain the necessary information, especially for facilities that have been sold. If the Agency required detailed information on the internal lining of the tank and external corrosion protection (information similar to that required on the California notification form), it could take significantly longer than 30 minutes to complete the form. Commenters' estimates of the time required ranged from 30 minutes to 2 hours per tank and from several hours to 8 hours per facility.
In response to these comments, the Agency points out that the final notification form, as modified in response to comments, should take less time to fill out than the forms previously proposed. First, the Agency is specifying that the notification form include only information on the most predominant chemical constituent stored in the tank over the past year. For tanks containing mixtures, the form now includes a box indicating that the tank contains a mixture of regulated substances. Owners, will not, therefore, be required to identify all the different constituents in the tank. Second, EPA is not requiring extensive information on the internal and external characteristics of the tank that could increase the amount of time required to complete the form.
EPA is requiring owners of tanks taken out of service to provide the information requested on the form only "to the extent known." Thus, these owners need not contact all previous owners to obtain the notification information. This is consistent with the assumptions EPA used to estimate the time required to complete the form and that the Agency presented in the proposed rule.
The Agency has assumed that an owner of a facility that has three tanks will require 30 minutes to complete the notification form. This includes the time necessary to read the instructions, delegate responsibility for completing the form, retrieve information, complete the form, submit it for management review, and to do the necessary clerical work. It should be possible for an owner of a large facility to supply the information in about eight hours, especially if the facility has computer capabilities for data retrieval.
The Agency also received comments challenging EPA's estimated hourly salary rate. The commenters argued that a person with considerable expertise would be needed to complete the notification form, especially if detailed information on the tank's liner and external materials were required. The Agency disagrees with this comment because detailed technical information is not requested on the form. Only information that is readily available is expected. Thus, the Agency continues to maintain that the average estimate of $15 per hour is a reasonable estimate.
Finally, one commenter challenged the Agency's assumption that notification costs for product distributors would range from $50 to $100. This commenter argued that it would be significantly more expensive to account for the costs of collecting State forms, printing, and driver training, especially if a distributor has clients in many different States with different State forms.
The preamble to the proposed rule stated that a depositor must "reasonably notify" the tank owner or operator of his notification obligations. Approaches that the Agency considers appropriate for notifying the tank owner or operator include providing the tank owner with a copy of the notification form (or the required State form) or printing the notification requirements on the shipping papers that accompany the shipment or on the invoice itself or writing a one-time letter to the owners.
The Agency estimated the notification costs of $50 for depositors and tank sellers. This assumes that the tank owner will need about two hours of managerial and clerical time to comply with the notification requirements. This translates into a combined hourly rate of $25, including benefits and overhead. This cost is for preparing a cover letter and obtaining notification forms, or for preparing a standard notice that would be distributed at the time of transactions. The $100 estimate includes a follow-up letter after the initial notification.
In developing the costs for depositors, the Agency assumed that the distributor would choose the least-cost option. Therefore, a large distributor with clients in many different States would most likely choose to include the notification requirements on the shipping papers or invoices rather than collect and distribute notification forms for each of the applicable States. Thus, the costs to the distributor would involve only the costs of printing the notice on the invoice.
Although EPA continues to consider its per facility notification cost to be reasonable estimates, EPA has revised the population estimate in light of new information. The Agency has undertaken more thorough research of the facilities subject to the Subtitle I requirements in support of the technical standards that the Agency will be proposing. This research indicates that there is a maximum of 500,000 facilities that, have petroleum tanks. The Agency expects chemical product tank facilities to compose no more than 20 percent of the total underground storage tank facility population. Therefore, the Agency is revising the underground storage tank population estimate from 1.2 million facilities to about 600,000 facilities. The Agency still assumes that 40 percent of these facilities have three tanks apiece. The remaining 10 percent are large facilities with 10 tanks apiece.
EPA has concluded that the notification requirements do not impose a significant economic burden on members of the affected population. (See Sections VII and IX for additional information on the economic impact of this rule.)
VII. Compliance With Executive Order 12291
Executive Order 12291 (46
FR 13193, February 9, 1981) requires that a regulatory agency
determine whether a new regulation will be "major" and,
if so, that a Regulatory Impact Analysis be conducted. A major
rule is defined as a regulation that is likely to result in:
1. An annual effect of the
economy of $100 million or more:
2. A major increase in costs or prices for consumers, individual industries, Federal, State, and local Government agencies, or geographic regions; or
3. Significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States-based enterprises to compete with foreign-based enterprises in domestic or export markets.
Since today's rulemaking does not result in any of the above effects, it does not meet the definition of a major regulation. Accordingly, the Agency is not conducting a Regulatory Impact Analysis.
This rulemaking has been submitted to the Office of Management and Budget (OMB) for review as required by Executive Order 12291.
VIII. Paperwork Reduction Act
Pursuant to section 3504(h) of the Paperwork Reduction Act of 1980, the reporting and recordkeeping provisions of today's final rule have been approved by OMB and the approval number is 2050-0049. to comments by OMB and the public regarding the reporting and recordkeeping provisions of the rule.
IX. Regulatory Flexibility Act
The Regulatory Flexibility Act requires that Federal agencies prepare regulatory flexibility analyses assessing the impacts of proposed rules on entities such as small businesses, small organizations, and small governmental jurisdictions. Such an analysis is not required, however, when the head of an agency certifies that a proposed rule will not have a significant economic impact on a substantial number of small entities.
EPA considers the information required by these rules to be the minimum necessary to administer the notification program effectively. Since most of the requested information is readily accessible, little time should be needed to prepare the notification response. Any additional economic impact on the public resulting from implementation of this regulation is expected to be negligible since notification is required only once, and is primarily an administrative procedure. Accordingly, I certify that these proposed rules, if promulgated, would not have a significant impact on a substantial number of small entities.
X. List of Subjects in 40 CFR Part 280
Administrative practice and procedure, Underground storage tanks, Hazardous materials, Hazardous waste, Water pollution control, Confidential business information.
Dated: November 5, 1985.
Lee M. Thomas,
For the reasons set out in the preamble, Title 40 of the Code of Federal Regulations, Part 280 is amended as follows:
PART 280-UNDERGROUND STORAGE TANK REGULATIONS
(1) The authority cite for Part 280 continues to read as follows:
Authority: 42 U.S.C. §§ 6991, 6992, and 6996.
(2) Section 280.1 is amended by adding the following definitions in alphabetical order:
§ 280.1 Definitions and Exemptions.
"Operator" means any person in control of, or having responsibility for, the daily operation of the underground storage tank.
"Owner" means (a) in the case of an underground storage tank in use on November 8, 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 substances, and (b) in the case of any underground storage tank in use before November 8, 1984, but no longer in use on that date, any person who owned such tank immediately before discontinuation of its use.
* * * * *
(3) Section 280.3 is added to read as follows:
§ 280.3 Notification requirements.
(a) On or before May 8, 1986, each owner of an underground storage tank currently in use must submit, in the form prescribed in Appendix I of this section, a notice of the existence of such tank to the State or local agency or department designated in Appendix II of this section to receive such notice.
(b) On or before May 8,1986, each owner of an underground storage tank taken out of operation after January 1, 1974 (unless the owner knows that such tank has been removed from the ground) must submit, in the form prescribed in Appendix I of this section, a notice of the existence of such tank to the State or local agency or department designated in Appendix II of this section to receive such notice.
(c) Any owner who brings an underground storage tank into use after May 8, 1986, must, within 30 days of bringing such tank into use, submit, in the form prescribed in Appendix I of this section, a notice of the existence of such tank to the State or local agency or department designated in Appendix II of this section to receive such notice.
(d) In States where State law, regulations, or procedures require owners to use forms that differ from those set forth in Appendix I of this section to fulfill the requirements of this section, the State forms may be submitted in lieu of the forms set forth in Appendix I of this section. If a State requires that its form be used in lieu of the form presented in this regulation, such form must meet the requirements of Section 9002.
(e) Owners required to submit notices under paragraphs (a) through (c) of this section must provide notices to the appropriate agencies or departments identified in Appendix II of this section for each tank they own. Owners may provide notice for several tanks using one notification form, but owners who own tanks located at more than one place of operation must file a separate notification form for each separate place of operation.
(f) Notices required to be submitted under paragraphs (a) through (c) of this section must provide all of the information indicated on the prescribed form (or appropriate State form) for each tank for which notice must be given.
(g) Beginning on December 9, 1985 through May 9, 1987 any person who deposits regulated substances in an underground storage tank must make reasonable efforts to notify the owner or operator of such tank of the owner's obligations under paragraphs (a) through (c) of this section.
(h) Beginning 30 days after the Administrator issues new tank performance standards pursuant to RCRA section 9003(e), any person who sells a tank intended to be used as an underground storage tank must notify the purchaser of such tank of the owner's notification obligations under paragraphs (a) through (c) of this section.
(i) Paragraphs (a) through
(c) of this section do 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.
* * * * *
Notification Form for Underground Storage Tanks
(Form 7530-1 effective 11/85)
The form is 5 pages in length and available in PDF format (5 pp, 102K, About PDF). The Adobe Acrobat viewer can be downloaded FREE for Unix, Macintosh, IBM DOS and IBM Windows operating systems. These readers are available directly from Adobe at http://www.adobe.com/acrobat/readstep.html. You can connect to Adobe via this link .
APPENDIX II to §
List of Agencies
Designated to Receive Notifications
Alabama (EPA Form)
Alabama Department of Environmental Mgmt.
Ground Water Section/Water Division
1751 Federal Drive
Montgomery, Alabama 36130
Alaska (EPA Form)
Department of Environmental Conservation
Juneau, Alaska 99811
American Samoa (EPA Form)
Environmental Quality Commission
Office of the Governor
American Samoan Government
Pago Pago, American Samoa 96799
Attention: UST Notification
Arizona (EPA Form)
Attention: UST Coordinator
Arizona Department of Health Services
Environmental Health Services
2005 N. Central
Phoenix, Arizona 85004
Arkansas (EPA Form)
Arkansas Department of Pollution Control and Ecology
P.O. Box 9583
Little Rock, Arkansas 72219
California (State Form)
California Water Resources Control Board
P.O. Box 100
Sacramento, California 95801
Colorado (EPA Form)
Kenneth Mesch, Section Chief
Colorado Department of Health
Waste Management Division
Underground Tank Program
4210 East 11th Avenue
Denver, Colorado 80220
303/320-8333 Ext. 4364
Connecticut (State Form)
Hazardous Materials Management Unit
Department of Environmental Protection
State Office Building
165 Capitol Avenue
Hartford, Connecticut 06106
Delaware (State Form)
Division of Air and Waste Management
Department of Natural Resources and Environmental Control
P.O. Box 1401
89 Kings Highway
Dover, Delaware 19903
District of Columbia (EPA Form)
Attention: UST Notification Form
Department of Consumer and Regulatory Affairs
Pesticides and Hazardous Waste Management Branch
5010 Overlook Avenue, S.W.
Washington, D.C. 20032
Florida (State Form)
Florida Department of Environmental Regulation
Solid Waste Section
Twin Towers Office Building
2600 Blair Stone Road
Tallahassee, Florida 32301
Georgia (EPA Form)
Georgia Department of Natural Resources
Environmental Protection Division
Underground Storage Tank Program
3420 Norman Berry Drive
Hapeville, Georgia 30354
Guam (State Form)
James B. Branch, Administrator
Guam Environmental Protection Agency
P.O. Box 2999
Agana, Guam 96910
Overseas Operator (Commercial Call 646-8863)
Hawaii (EPA Form)
Chief, Noise and Radiation Branch
Hawaii Department of Health
591 Ala Moana Boulevard
Honolulu, Hawaii 96801
Idaho (EPA Form)
Underground Storage Tank Coordinator
Water Quality Bureau
Idaho Department of Health & Welfare
Division of Environment
450 W. State Street
Boise, Idaho 83720
Illinois (EPA Form)
Underground Storage Tank Coordinator
Division of Fire Prevention
Office of State Fire Marshal
3150 Executive Park Drive
Springfield, Illinois 62703-4599
Indiana (EPA Form)
Division of Land Pollution Control, UST Program
Indiana State Board of Health
P.O. Box 7015
Indianapolis, Indiana 46207
Iowa (State Form)
Iowa Department of Water, Air and Waste Management
900 East Grand
Des Moines, Iowa 50319
Kansas (EPA Form)
Office of Environmental Geology
Kansas Department of Health & Environment
Forbes Field, Building 740
Topeka, Kansas 66620
913/862-9360 Ext. 221
Kentucky (State Form)
Natural Resources Cabinet
Division of Waste Management. Attention: Vicki Pettus
18 Reilly Road
Frankfort, Kentucky 40601
Louisiana (State Form)
Patricia L. Norton, Secretary
Louisiana Department of Environmental Quality
P.O. Box 44066
Baton Rouge, Louisiana 70804
Maine (State Form)
Attention: Underground Tanks Program
Bureau of Oil & Hazardous Material Control
Department of Environmental Protection
State House--Station 17
Augusta, Maine 04333
Maryland (EPA Form)
Science and Health Advisory Group
Office of Environmental Programs
201 West Preston Street
Baltimore, Maryland 21201
Massachusetts (EPA Form)
UST Registry, Department of Public Safety
1010 Commonwealth Avenue
Boston, Massachusetts 02215
Michigan (EPA Form)
Ground Water Quality Division
Department of Natural Resources
Lansing, Michigan 48909
Minnesota (State Form)
Underground Storage Tank Program
Division of Solid and Hazardous Wastes
Minnesota Pollution Control Agency
1935 West County Road, B-2
Roseville, Minnesota 55113
Mississippi (EPA Form)
Department of Natural Resources
Bureau of Pollution Control
P.O. Box 10385
Jackson, Mississippi 39209
Missouri (EPA Form)
Gordon Ackley, UST Coordinator
Missouri Department of Natural Resources
P.O. Box 176
Jefferson City, Missouri 65102
Montana (EPA Form)
Solid and Hazardous Waste Bureau
Department of Health and Environmental Science
Cogswell Building, Room B201
Helena, Montana 59620
Nebraska (EPA Form)
Nebraska State Fire Marshal
PO. Box 94677
Lincoln, Nebraska 68509-4677
Nevada (EPA Form)
Attention: Underground Storage Tanks
Division of Environmental Protection
Department of Conservation and Natural Resources
201 S. Fall Street
Carson City, Nevada 89710
800/992-0900 Ext. 4670
New Hampshire (EPA Form)
Water Supply and Pollution Control Commission
P.O. Box 95
Concord, New Hampshire 03301
Attention: UST Registration
New Jersey (State Form)
Underground Storage Tank Coordinator
Department of Environmental Protection
Division of Water Resources (CN-029)
Trenton, New Jersey 08625
New Mexico (EPA Form)
New Mexico Environmental Improvement Division
Ground Water/Hazardous Waste Bureau
P.O. Box 968
Sante Fe, New Mexico 87504
505/827-2933 or 505/827-2918
New York (EPA Form)
Bulk Storage Section
Division of Water
Department of Environmental Conservation
50 Wolf Road, Room 326
Albany, New York 12233-0001
North Carolina (EPA Form)
Division of Environmental Mgmt./ Ground Water Section
Dept. of Natural Resources & Community Development
P.O. Box 27687
Raleigh, North Carolina 27611
North Dakota (State Form)
Division of Hazardous Waste Mgmt. and Special Studies
North Dakota Department of Health
Bismarck, North Dakota 58502-5520
Northern Mariana Islands (EPA Form)
Division of Environmental Quality
P.O. Box 1304
Commonwealth of Northern Mariana Islands
Saipan, CM 96950
Overseas Operator: 6984
Cable Address: GOV. NMI Saipan
Ohio (State Form)
State Fire Marshal's Office, UTN
Department of Commerce
8895 E. Main Street
Reynoldsburg, Ohio 43068
State Hotline 800/282-1927
Underground Storage Tank Program
Hazardous and Solid Waste Division
Department of Environmental Quality
P.O. Box 1760
Portland, Oregon 97207
Pennsylvania (EPA Form)
Pennsylvania Department of Environmental Resources
Bureau of Water Quality Management/Ground Water Unit
9th Floor, Fulton Building
P.O. Box 2063
Harrisburg, Pennsylvania 17120
Puerto Rico (EPA Form)
Director, Water Quality Control Area
Environmental Quality Board
Commonwealth of Puerto Rico
P.O. Box 11488
Santurce, Puerto Rico 00910
Rhode Island (EPA Form)
Department of Environmental Management
204 Cannon Building
75 Davis Street
Providence, Rhode Island 02908
South Carolina (State Form)
Attention: Susana Workman
Groundwater Protection Division
South Carolina Dept. of Health and Environmental Control
2600 Bull Street
Columbia, South Carolina 29201
South Dakota (EPA Form)
Office of Water Quality
Department of Water and Natural Resources
Joe Foss Building
Pierre, South Dakota 57501
Tennessee (EPA Form)
Terry K. Cothron, Director
Division of Ground Water Protection
Tennessee Department of Health and Environment
150 Ninth Avenue, North
Nashville, Tennessee 37219-5404
Texas (EPA Form)
Underground Storage Tank Program
Texas Water Commission
PO. Box 13087
Austin, Texas 78711
Utah (EPA Form)
Kenneth L. Alkema
Division of Environmental Health
P.O. Box 45500
Salt Lake City, Utah 84145-0500
Vermont (State Form)
Underground Storage Tank Program
Vermont AEC/Waste Management Division
State Office Building
Montpelier, Vermont 05602
Virginia (EPA Form)
Russell P. Ellison, III, P.G.
Virginia Water Control Board
P.O. Box 11143
Richmond, Virginia 23230-1143
Virgin Islands (EPA Form)
Division of Natural Resources Management
14 F Building 111, Watergut Homes
Christianstead, St. Croix, Virgin Islands 00820
Washington (State Form)
Earl W. Tower, Supervisor
Department of Ecology, M/S PV-11
Management Division, Solid and Hazardous Waste
Olympia, Washington 98504-8711
West Virginia (EPA Form)
Attention: UST Notification
Solid and Hazardous Waste/Ground Water Branch
West Virginia Department of Natural Resources
1201 Greenbriar Street
Charleston, West Virginia 25311
Wisconsin (State Form)
Bureau of Petroleum Inspection
P.O. Box 7969
Madison, Wisconsin 53707
Wyoming (EPA Form)
Water Quality Division
Department of Environmental Quality
Herschler Building, 4th Floor West
122 West 25th Street
Cheyenne, Wyoming 82002
* May be using a State form.
Owners should consult EPA to determine whether such form is in
compliance with Section 9002. [back to referring text]
U.S. Government Printing Office: 1985 - 491-191/46103