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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 I. Authority

PREAMBLE
40 CFR Parts 280 and 281
(pp. 43322-43323)


ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 280 and 281

[FRL-UST-3; 3419-3]

Underground Storage Tanks Containing Petroleum--Financial Responsibility Requirements and State Program Approval Objective

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

SUMMARY: The Environmental Protection Agency (EPA or the Agency) is promulgating financial responsibility requirements applicable to owners and operators of underground storage tanks containing petroleum under Section 9003 (c) and (d) of the Resource Conservation and Recovery Act (RCRA), as amended by the Hazardous and Solid Waste Amendments of 1984 (HSWA) and the Superfund Amendments and Reauthorization Act of 1986 (SARA). This rule establishes requirements for demonstrating financial responsibility for taking corrective action and compensating third parties for bodily injury and property damage caused by sudden and nonsudden accidental releases arising from the operation of underground storage tanks containing petroleum.

Today EPA is also promulgating, for purposes of state program approval, a federal technical objective for financial responsibility of owners and operators of petroleum UST systems. Subtitle I of RCRA allows EPA to approve state programs to operate in place of the federal UST requirements if those state programs have standards that are no less stringent than the federal requirements, and also provide adequate enforcement of compliance with those standards.

EFFECTIVE DATE: This rule becomes effective on January 24,1988.

FOR FURTHER INFORMATION CONTACT: The RCRA/Superfund Hotline at (800) 424-9346 (toll free) or (202) 382-3000 in Washington, D.C.

SUPPLEMENTARY INFORMATION: The contents of today's preamble are listed in the following outline:

I. Authority

II. Background

A. Legislative and Regulatory Background of the Rule

B. The Comprehensive Federal UST Regulatory Program

C. Program Objectives and Summary of Today's Rule

1. Program Objectives and Major Changes in the Final Rule

2. Summary of Today's Rule

D. Availability of Mechanisms

III. Section-by-Section Analysis

A. Applicability (§280.90)

1. Owners and Operators

2. Tanks Taken Out of Operation Before the Date for Compliance (§280.90(b))

3. Applicability to State and Federal Government Entities (§280.90(c))

4. Applicability to Local Government Entities

5. Applicability to Indian Tribes

6. Deferrals and Exclusions (§28.90(d))

B. Compliance Dates (§280.91)

C. Definition of Terms (§280.92)

1. Accidental Release and Occurrence

2. Bodily Injury

3. Director of the Implementing Agency

4. Petroleum Marketing Facilities

5. Petroleum Marketing Firms

6. Property Damage

7. Additional Definitions

D. Amount and Scope of Required Financial Responsibility (§280.93)

1. Per-Occurrence Amount

2. Aggregate Amounts

3. Apportionment of Costs and Levels of Coverage Under Separate Mechanisms

E. Allowable Mechanisms and Combinations (§280.94)

1. Mechanisms Allowed

2. Combinations of Mechanisms

3. Attorney General Certification (§280.94(b))

4. New Mechanisms

5. Specification of Tanks in Financial Assurance Instruments

F. Financial Test of Self-Insurance (§280.95)

1. Proposed Financial Test

2. Comments on the Proposed Financial Test

3. Summary of Changes in the Financial Test

G. Guarantee (§280.96) and Indemnity Contract

H. Insurance and Risk Retention Group Coverage (§280.97)

1. Availability

2. Insurance Cost and Its Impact

3. Viability of Risk Retention Groups

4. Specific Requirements for Insurance and Risk Retention Group Coverage

I. Surety Bond (§280.98)

J. Letter of Credit (§280.99)

K. Use of State-Required Mechanisms (§280.100)

L. State Fund or Other State Assurance (§280.101)

M. Trust Fund (§280.102)

N. Standby Trust Fund (§280.103)

O. Substitution of Financial Assurance Mechanisms by an Owner or Operator (§280.104)

P. Cancellation or Nonrenewal by a Provider of Financial Assurance (§280.105)

1. Length of Notice Period

2. Termination for Non-Payment of Premium

Q. Reporting by Owner or Operator (§280.106)

R. Recordkeeping (§280.107)

S. Drawing on Financial Assurance Mechanisms (§280.108)

T. Release from the Requirements (§280.109)

U. Bankruptcy or Other Incapacity of Owner or Operator or Provider of Financial Assurance (§280.110)

V. Provisions Pertaining to Other Instruments (§280.111)

1. Maintaining Other Instruments at Required Levels of Coverage

2. Exclusionary Language for Other Instruments

W. Suspension of Enforcement (§280.112)

1. Statutory Authority

2. Suspension of Enforcement Process

IV. Integration with Other EPA Programs

A. Other Subtitle I Rulemakings

B. Leaking Underground Storage Tank (LUST) Trust Fund and Response Program

V. State Program Approval

A. Background

B. Financial Responsibility Objective (§281.37)

VI. Compliance Monitoring and Enforcement

VII. Economic and Regulatory Impacts

A. Regulatory Impact Analysis

1. Compliance with Executive Order 12291

2. Integration of the Financial Responsibility and Technical Standards Regulatory Impact Analyses

3. The Regulated Community

4. Assumptions and Methodology Used in the RIA

5. Annual Real Resource Costs

6. Economic Impacts

7. Benefits

B. Regulatory Flexibility Act

C. Paperwork Reduction Act

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PART 280--Technical Standards and Corrective Action Requirements for Owners and Operators of Underground Storage Tanks (pp. 43370-43382)

Subpart H--Financial Responsibility (pp. 43370-43382)

PART 281--Approval of State Underground Storage Tank Programs (pp. 43382-43383)

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I. Authority

These regulations are issued under the authority of Sections 2002, 9001, 9002, 9003, 9004, 9005, 9006, 9007, and 9009 of the Solid Waste Disposal Act, as amended. The principal amendments to this Act have been under the Resource Conservation and Recovery Act of 1976, the Hazardous and Solid Waste Amendments of 1984 (Pub. L. 98--616) and the Superfund Amendments and Reauthorization Act of 1986 (Pub. L. 99--499) (42 U.S.C. 6921, 6691, 6991(a), 6991(b), 6991(c), 6991(d), 6991(e), 6991(f), and 6991(h)).

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