53 FR 37082-37247 Friday, Sept. 23, 1988 40 CFR Parts 280 and 281, Underground Storage Tanks; Technical Requirements and State Program Approval; Final Rules--Preamble Section V. Relationship to Other Aspects of the UST System Program
V. RELATIONSHIP TO OTHER ASPECTS OF THE UST SYSTEM PROGRAM
A. Interim Prohibition
Section 9003(g) of RCRA Subtitle I sets forth requirements for tank systems installed between May 7, 1985, and 90 days after today's promulgation of final new tank performance standards. During this period, UST may be installed unless it is corrosion protected, made of noncorrodible materials, or otherwise designed and constructed to prevent releases during the operating life of the facility due to corrosion or structural failure. The tank material(s) of construction must also be compatible with the substance(s) to be stored.
The final standards for new tank systems in today's rule (as discussed in section IV. of this preamble) are designed to replace the Interim Prohibition requirements. These final performance standards address design, construction, installation, release detection, and compatibility for new tank installations. The Interim Prohibition will, however, remain in effect by regulation for those tanks that have been deferred from coverage under the technical standards in Subpart A (e.g., some sumps, and field-constructed bulk tanks).
On November 8, 1985, EPA published the Final Rule on Notification Requirements for Owners of Underground Storage Tanks (50 FR 46602). A form to be used for the required notification was included as part of the rulemaking.
The UST rules and standards for new tanks promulgated today are not intended to affect these established notification requirements except to add to the information required to be submitted with the notification requirements (see section IV.B.). These existing requirements have been recodified into 280.22 of today's final rule. Owners of existing UST systems were required to notify their designated state agencies by May 8, 1986. Owners of new or replacement UST systems must notify their designated state agencies within 30 days of bringing the tank into use by submission of the November 8, 1985, federal form, or an approved alternate state notification form.
Section 9002(a)(6) of RCRA requires that, beginning 30 days after the issuance of today's final new tank performance standards, any person who sells a tank intended to be used in an UST system must advise the tank purchaser of the owner's notification requirements. This requirement is effective 30 days after publication of the new tank performance standards that are being promulgated today. This requirement is codified in § 280.22(e) of today's rule.
C. Leaking Underground Storage Tank Trust Fund
Amendments to Subtitle I of RCRA enacted as part of the Superfund Amendments and Reauthorization Act of 1986 (SARA) provide for a Leaking Underground Storage Tank Trust Fund. The amendments (Section 9003 (h)) provide funds for cleanup of petroleum spills from UST systems and give EPA, and states that enter into a cooperative agreement with EPA, the authority to respond to releases of petroleum from UST systems. Almost all of the states have entered into these agreements with EPA and are now responding to petroleum releases from UST systems using Trust Fund revenues. These amendments to RCRA were necessary because no other federal environmental program includes specific authority for response to releases of petroleum from UST systems, although releases of petroleum affecting navigable waters can be responded to under section 311 of the Clean Water Act.
Section 9003(h) provides that the Administrator may issue an order requiring corrective action prior to the promulgation of today's final corrective action regulations under Subtitle I. With the promulgation of today's requirements, the Administrator may use this same order authority, as well as the enforcement authority of section 9006, to require owners or operators to undertake corrective action.
The Leaking Underground Storage Tank Trust Fund is being financed by taxes on motor fuels to pay for response costs in a limited set of circumstances. Until the effective date of today's final technical standards (90 days after publication of today's rule), the Administrator, or states under cooperative agreements, may use the Fund to pay for a particular corrective action whenever the action is necessary to protect human health and the environment. After that date, the statute provides for the use of the Fund primarily where the financial resources of the owners or operators are not sufficient to pay for the costs of corrective action, or if the owner or operator is otherwise unidentifiable, unwilling, or incapable of carrying out corrective action properly. In some cases, an identifiable and solvent owner or operator may be in compliance with all UST financial responsibility requirements (to be discussed in a later Federal Register Notice) but lack financial resources to pay the entire cost of a response. In those cases, the Administrator or a state with a cooperative agreement is authorized to use the Fund to pay the costs that exceed the level of financial responsibility required of the owner and operator by the financial responsibility regulations.
If the owner and operator has failed to maintain the required level of financial responsibility, the Trust Fund may not be used, unless: (1) there is no solvent owner or operator; (2) there is an imminent and substantial threat to human health or the environment; or (3) there is a need to take corrective action outside the facility including the provision of alternative water supplies or relocation of residents.
Ninety days after publication of today's regulations, cleanups under the Trust Fund must be conducted in accordance with the corrective action requirements (Part 280 Subpart G).
D. Exempted Tank Studies
The regulations finalized today do not apply to certain tank systems that were exempted by statute under section 9001 of Subtitle I. Section 9009(d) and (e) of Subtitle I requires that EPA conduct a study of several of these systems and submit a report to Congress that includes recommendations as to whether these tanks should be regulated in the future. The Report to Congress will be issued later this year.
The Report to Congress will cover the following exempted tanks whose volume, including piping, is at least 10 percent belowground:
o Farm or residential tanks of 1,100 gallons or less capacity used for storing motor fuel for noncommercial purposes, and
o Tanks used for storing heating oil for consumptive use on the premises where stored.