[Federal Register Volume 62, Number 151 (Wednesday, August 6, 1997)]
[Proposed Rules]
[Pages 42222-42224]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-20177]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 281

[FRL-5866-6]


Commonwealth of Puerto Rico; Approval of State Underground 
Storage Tank Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of tentative determination on application of the 
Commonwealth of Puerto Rico for final approval, public hearing and 
public comment period.

-----------------------------------------------------------------------

SUMMARY: The Commonwealth of Puerto Rico has applied for final approval 
of its Underground Storage Tank program for petroleum and hazardous 
substances under Subtitle I of the Solid Waste Disposal Act, as 
amended, commonly referred to as the Resource Conservation and Recovery 
Act (``RCRA''). The United States Environmental Protection Agency has 
reviewed the Commonwealth of Puerto Rico's application and has made a 
tentative determination that the Commonwealth of Puerto Rico's 
Underground Storage Tank (``UST'') program for petroleum and hazardous 
substances satisfies all of the requirements necessary to qualify for 
final approval. This Notice of tentative determination affords the 
public a thirty-day period after this Notice to comment on the 
Commonwealth of Puerto Rico's application and USEPA's tentative 
determination. The application is available for inspection by the 
public during the comment period. Two public hearings will be held to 
solicit comments on the application.

DATES: Written comments on the Commonwealth of Puerto Rico's 
application for final approval must be received by USEPA, at the 
address noted below, by close of business on September 12, 1997. Two 
public hearings are scheduled for September 8 and September 9, 1997. 
USEPA and the Commonwealth of Puerto Rico will be present at the public 
hearings to provide information and answer questions. The hearings will 
begin at 9:00 A.M. and will continue until the end of the testimony or 
4:00 P.M., whichever comes first. Evening sessions will be from 6:00 
P.M. to 10:00 P.M. Requests to present oral testimony must be mailed to 
USEPA, at the address noted below, by the close of business on August 
26, 1997, and should include the requester's name, address and 
telephone number. USEPA reserves the right to cancel the hearings 
should there be no significant public interest. Those informing EPA of 
their intention to testify will be notified of any cancellation.

ADDRESSES: Comments and requests to testify should be mailed to Mr. 
John Kushwara, Chief, Ground Water Compliance Section (DECA-WCB), 
USEPA, Region II, 290 Broadway, 20th Floor, New York, NY 10007-1866 or 
Mr. Victor Trinidad, Caribbean Environmental Protection Division, 
Centro Europa Building, Suite 417, 1492 Ponce De Leon Avenue, Stop 22, 
Santurce, Puerto Rico 00907-4127.
    Copies of the Commonwealth of Puerto Rico's application for program 
approval are available for review 9:00 A.M.--4:00 P.M., Monday through 
Friday, at the following locations: Commonwealth of Puerto Rico, 
Environmental Quality Board, 431 Ponce De Leon Avenue, Nacional Plaza, 
Lobby Area, Hato Rey, PR 00917, Phone: (787) 767-7712; Commonwealth of 
Puerto Rico, Environmental Quality Board, Mayaguez Regional Office, 
Road #2, Km 159, Mayaguez, PR 00680; Phone: (787) 833-1198 or (787) 
833-1188; United States Environmental Protection Agency, Region 2, 
Caribbean Environmental Protection Division, Centro Europa Building, 
1492 Ponce De Leon Avenue, Suite 417, Santurce, PR 00907-4127, Phone: 
(787) 729-6951; United States Environmental Protection Agency, Region 
II Library, 290 Broadway, 16 Floor, New York, NY 10007-1866, Phone: 
(212) 637-3185. The public hearings will be held on September 8, 1997, 
in the Public Hearing Room of the Environmental Quality Board, 6th 
Floor, 431 Ponce De Leon Avenue, Nacional Plaza, Hato Rey, PR 00917 and 
on September 9, 1997 in the Public Hearing Room of the Environmental 
Quality Board, Mayaguez Regional Office, Road #2, Km 159, Mayaguez, PR 
00680. The hearings will begin at 9:00 A.M. and 6:00 P.M. and will 
continue until the end of testimony or 4:00 and 10:00 P.M., whichever 
comes first.

FOR FURTHER INFORMATION CONTACT: Madho Ramnarine Singh, Water 
Compliance Branch (DECA-WCB), USEPA, Region 2, 290 Broadway, New York, 
NY 10007-1866, Phone: (212) 637-4237 or Mr. Victor Trinidad, Caribbean 
Environmental Protection Division, Centro Europa Building, Suite 417, 
1492 Ponce De Leon Avenue, Stop 22, Santurce, Puerto Rico 00907-4127, 
Phone: (787) 729-6951.

SUPPLEMENTARY INFORMATION:

A. Background

    Section 9004 of the Resource Conservation and Recovery Act 
(``RCRA''), 42 U.S.C. 6991c, authorizes USEPA to approve State 
Underground Storage Tank programs to operate in lieu of the Federal 
Underground Storage Tank (``UST'') program. Program approval may be 
granted by USEPA pursuant to RCRA Section 9004(b), if the Agency finds 
that the State program is ``no less stringent'' than the Federal 
program for the seven elements set forth at RCRA Section 9004(a)(1) 
through (7); includes the notification requirements of RCRA Section 
9004(a)(8); and provides for adequate enforcement of compliance with 
UST standards of RCRA Section 9004(a).

B. Commonwealth of Puerto Rico

    On November 7, 1990, the Environmental Quality Board of the 
Commonwealth of Puerto Rico issued Underground Storage Tank Control 
Regulations which became effective on December 14, 1990. In accordance 
with the requirements of 40 CFR Section 281.50(b), the Commonwealth of 
Puerto Rico had previously provided an opportunity for public comment 
on the aforesaid regulations on September 21, 1989. A public hearing 
was held on October 20, 1990. The Environmental Quality Board received 
comments concerning their annual notification requirements, and minor 
editorial and syntax changes. These changes were incorporated into the 
regulations which are currently in effect.
    On January 17, 1996, USEPA received the Commonwealth of Puerto 
Rico's formal application for approval of its Underground Storage Tank 
program and in 1997 received supplemental information as part of the 
Commonwealth's application. USEPA has reviewed the Commonwealth of 
Puerto Rico's application and has

[[Page 42223]]

tentatively determined that the Commonwealth of Puerto Rico's 
Underground Storage Tank program for petroleum and hazardous substances 
meets all of the requirements necessary to qualify for final approval. 
Should the program approvability status of the Commonwealth of Puerto 
Rico's program change in the future for any reasons, including but not 
limited to changes in Commonwealth laws, regulations or procedures 
which limit the Commonwealth of Puerto Rico's enforcement authority or 
program administration and enforcement, USEPA will revisit this 
approval and exercise its authority as provided under 40 CFR 
Sec. 281.52 and Sec. 281.60 to afford the Commonwealth of Puerto Rico 
an opportunity to correct any program deficiencies and/or withdraw 
program approval.
    Any actions by USEPA shall not in any event be deemed in any way as 
a waiver of any of its statutory and regulatory rights under RCRA, 
including but not limited to Secs. 9003(h), 9005 and 9006. Furthermore, 
nothing herein shall be deemed as a waiver by USEPA of any of its 
statutory and regulatory rights under other federal statutes and 
regulations. Moreover, nothing herein shall be deemed as a waiver of 
any other applicable federal legal requirements.
    The Commonwealth of Puerto Rico through the Environmental Quality 
Board, is charged with the responsibility to develop standards and 
criteria for the design, installation, operation, maintenance, and 
monitoring of Underground Storage Tanks to prevent UST related ground 
and surface water contamination, under the authority of Public Law No. 
9, et seq., Commonwealth of Puerto Rico Underground Storage Tank Law, 
as amended. The statute includes provisions for the following:
    (1) Authority to promulgate UST regulations for controlling 
underground storage facilities containing petroleum and related sludge, 
and chemical substances.
    (2) Authority to impose administrative fines for violations of any 
provision of the statute.
    (3) Authority to conduct compliance monitoring inspection and other 
enforcement activities.
    (4) Notification requirements for owner of Underground Storage 
Tanks including heating oil tanks.
    (5) Establishment of petroleum cleanup fund. This is financed 
through licensing fees and tank assessment fees, and helps pay for 
cleanup and restoration of contaminated soil and groundwater caused by 
petroleum releases from USTs, and for third party damages.
    The memorandum of agreement (``MOA''), which was submitted as part 
of the Commonwealth of Puerto Rico's application for final approval, 
was negotiated between USEPA and Puerto Rico's Environmental Quality 
Board and will be executed by USEPA only after it makes a final 
determination to approve the Commonwealth of Puerto Rico's Underground 
Storage Tank program. The Memorandum of Agreement (MOA) contains 
agreements designed to ensure that the UST program will be effectively 
implemented by Puerto Rico pursuant to its own statute and implementing 
regulations. Under the MOA, the Environmental Quality Board has agreed 
to maintain staff levels, including adequate technical and legal 
support capable of implementing an effective UST program, and to 
conduct program development activities designed to improve the 
Commonwealth's capability to effectively implement the UST program. The 
MOA also has provisions to help ensure an adequate compliance and 
enforcement program. The MOA also recognizes USEPA's continued ability 
to enforce UST program requirements in the Commonwealth of Puerto Rico.
    In accordance with Section 9004(d) of RCRA, 42 U.S.C. 6991c(d) and 
40 CFR 281.50(e), the Agency will hold public hearings on its tentative 
determination. The public hearings will be held on September 8, 1997 in 
the Public Hearing Room of the Environmental Quality Board, 6th Floor, 
431 Ponce De Leon Avenue, Banco Nacional Plaza, Hato Rey, Puerto Rico 
and on September 9, 1997 in the Public Hearing Room of the 
Environmental Quality Board, Mayaguez Regional Office, Road #2, Km 159, 
Mayaguez, Puerto Rico from 9:00 a.m.-4:00 p.m. and 6:00 p.m.-10:00 p.m. 
All written comments on EPA's tentative determination must be submitted 
by September 12, 1997. Copies of the Commonwealth of Puerto Rico's 
application are available for inspection and copying at the locations 
indicated in the ADDRESSES section of this notice.
    USEPA will consider all public comments on its tentative 
determination received during the public comment period and/or at the 
hearings. Issues raised by those comments may be the basis for a 
decision to deny or grant final approval to the Commonwealth of Puerto 
Rico. USEPA expects to make a final decision on whether or not to 
approve the Commonwealth of Puerto Rico's program within sixty (60) 
days after the date of the public hearing and will give notice of it in 
the Federal Register. The notice will include a summary of the reasons 
for the final determination and a response to all major comments.

Compliance With Executive Order 12291

    The Office of Management and Budget has exempted this rule from the 
requirement of Section 6 of the Executive Order 12866.

Certification Under the Regulatory Flexibility Act

    USEPA has determined that this authorization will not have a 
significant economic impact on a substantial number of small entities. 
Such small entities which own and/or operate USTs are already subject 
to the regulatory requirements under existing Commonwealth law which 
are being authorized by USEPA. USEPA's authorization does not impose 
any additional burdens on these small entities. This is because USEPA's 
authorization would simply result in an administrative change, rather 
than a change in the substantive requirements imposed on these small 
entities.
    Therefore, USEPA provides the following certification under the 
Regulatory Flexibility Act, as amended by the Small Business Regulatory 
Enforcement Fairness Act. Pursuant to the provision at 5 U.S.C. 605(b), 
I hereby certify that this authorization will not have a significant 
economic impact on a substantial number of small entities. This 
authorization approves regulatory requirements under existing 
Commonwealth law to which small entities are already subject. It does 
not impose any new burdens on small entities. This rule, therefore, 
does not require a regulatory flexibility analysis.

Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of certain regulatory actions on State, local, and tribal 
governments and the private sector. Under Sections 202 and 205 of the 
UMRA, USEPA generally must prepare a written statement of economic and 
regulatory alternatives analyses for proposed and final rules with 
Federal mandates, as defined by the UMRA, that may result in 
expenditures to State, local, and tribal governments, in the aggregate, 
or to the private sector, of $100 million or more in any one year. The 
Sections 202 and 205 requirements do not apply to today's action 
because it is not a ``Federal mandate'' and because it does

[[Page 42224]]

not impose annual costs of $100 million or more.
    Today's rule contains no Federal mandates for State, local or 
tribal governments or the private sector for two reasons. First, 
today's action does not impose new or additional enforceable duties on 
any State, local or tribal governments or the private sector because 
the requirements of the Commonwealth of Puerto Rico's program are 
already imposed by the Commonwealth and subject to Commonwealth law. 
Second, the Act also generally excludes from the definition of a 
``Federal mandate'' duties that arise from participation in a voluntary 
Federal program. The Commonwealth of Puerto Rico's participation in an 
authorized UST program is voluntary.
    Even if today's rule did contain a Federal mandate, this rule will 
not result in annual expenditures of $100 million or more for State, 
local, and/or tribal governments in the aggregate, or the private 
sector. Costs to Commonwealth, local and/or tribal governments already 
exist under the Commonwealth of Puerto Rico program, and today's action 
does not impose any additional obligations on regulated entities. In 
fact, USEPA's approval of the Commonwealth program generally may 
reduce, not increase, compliance costs for the private sector.
    The requirements of Section 203 of UMRA also do not apply to 
today's action. Before USEPA establishes any regulatory requirements 
that may significantly or uniquely affect small governments, Section 
203 of the UMRA requires USEPA to develop a small government agency 
plan. This rule contains no regulatory requirements that might 
significantly or uniquely affect small governments. The Agency 
recognizes that although small governments may own and/or operate USTs, 
they are already subject to the regulatory requirements under existing 
Commonwealth law which are being authorized by USEPA, and, thus, are 
not subject to any additional significant or unique requirements by 
virtue of this program approval.

List of Subjects in 40 CFR Part 281

    Environmental protection, Administrative practice and procedure, 
Hazardous and Petroleum substances, State program approval, Underground 
Storage Tanks.

    Authority: This notice is issued under the authority of Section 
9004 of the Solid Waste Disposal Act, as amended by RCRA, 42 U.S.C. 
6912(a), 6926, 6974(b).

    Dated: July 24, 1997.
Jeanne M. Fox,
Regional Administrator.
[FR Doc. 97-20177 Filed 8-5-97; 8:45 am]
BILLING CODE 6560-50-P