53 FR 43322-43383 Wednesday, Oct. 26, 1988 40 CFR Parts 280 and 281, Underground Storage Tanks Containing Petroleum-Financial Responsibility Requirements and State Program Approval Objective; Final Rule--Preamble Section VI. Compliance Monitoring and Enforcement
40 CFR Parts 280 and 281
VI. Compliance Monitoring and Enforcement
Although not raised as an issue in the proposal, implications of the proposed rules for compliance monitoring and enforcement activities received considerable comment. Many of the comments were submitted by states.
In general, the comments note that performing compliance monitoring and enforcement for financial responsibility rules will place a heavy resource burden on the states. Moreover, some states are currently understaffed while others apparently have little experience with the options for demonstrating financial responsibility and would have difficulty evaluating them. Also, the proposed requirement for maintaining financial responsibility for one year after tank closure would be difficult to enforce, especially if the business is sold, closes, or goes bankrupt.
Some states noted that, if the states will be responsible for implementation of the financial responsibility program and will not be provided funding, then EPA should not have a strong oversight role or stringent requirements for state program approval. Another state commenter reads the proposed section on reporting, which requires owners or operators to send evidence of financial responsibility to the Regional Administrator, to mean that EPA will administer the entire financial responsibility program.
A number of non-governmental commenters also noted the enormous burden that ensuring compliance for such a large universe would entail, with some offering approaches to enhance compliance and enforcement. One approach suggested by several commenters is that EPA collect evidence of financial responsibility from all owners or operators through periodic reporting; for example, using the Tank Notification Program to provide the basis for annual notification of compliance with financial responsibility requirements. Other commenters suggested that proof of financial responsibility be made a condition to obtain an annual operating permit. Another suggested that enforcement would be enhanced if the scope of these complicated rules could be clarified using the following techniques: (l) workshops, (2) fact sheets, (3) more detailed summaries, and (4) condensed versions of the regulations.
Virtually all of the comments evidence both justifiable concern that performing compliance monitoring and enforcement for such an enormous regulated community presents a formidable challenge and considerable confusion about EPA's program for dealing with this challenge. The Agency believes that UST requirements can best be implemented if the program is delegated to the states and localities. In a companion rule to the financial responsibility rules, EPA has set forth the requirements and approval procedures for state UST programs (53 FR 37212, September 23, 1988). States with approved programs will have primary enforcement responsibility for their own UST programs. Under this rule, EPA has provided states as much flexibility as possible to develop their own approach to UST regulation and implementation consistent with statutory requirements.
Thus, in response to state concerns, the Agency will be allowing each state seeking program approval considerable latitude in establishing the details of an enforcement program. Although federal law mandates certain elements of the financial responsibility requirements (e.g., the one million dollar minimum level of assurance), the federal program not only allows a wide variety of mechanisms, but allows the states to develop their own financial mechanisms (e.g., state funds) to meet these requirements. In short, contrary to the concerns expressed in the comments, EPA intends that, over time, states will assume primary responsibility for the UST program and will also have considerable ability to tailor their programs to each state's experiences and resources.
States could adopt more stringent provisions, such as reporting requirements, than are established in the federal requirements, or they could adopt any of the mechanisms for assuring compliance that have been submitted in comments. Although EPA believes that the event-based reporting requirements finalized today are sufficient to ensure compliance by the regulated community and to provide timely information to the implementing agency for compliance monitoring, states can and, in many instances, have imposed annual notification requirements on owners or operators.
In addition to assisting the states seeking approval with the development of their programs, EPA will be providing the regulated community with extensive compliance outreach materials, which should include materials targeted to the needs of the large and diverse UST population. A secondary benefit of compliance outreach should be a higher degree of awareness of these regulations and a greater level of voluntary compliance, thus easing the enforcement burden on the states.