[Federal Register Volume 69, Number 114 (Tuesday, June 15, 2004)]
[Rules and Regulations]
[Pages 33309-33312]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-13281]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 282
[FRL-7657-4]
Underground Storage Tank Program: Approved State Program for West
Virginia
AGENCY: Environmental Protection Agency (EPA).
ACTION: Immediate final rule.
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SUMMARY: The Resource Conservation and Recovery Act of 1976, as amended
(RCRA), authorizes the EPA to grant approval to States to operate their
underground storage tank programs in lieu of the Federal program. The
Code of Federal Regulations (CFR) contains a codification of EPA's
decision to approve State programs and incorporates by reference those
provisions of the State statutes and regulations that will be subject
to EPA's inspection and enforcement authorities in accordance with
sections 9005 and 9006 of RCRA Subtitle I and other applicable
statutory and regulatory provisions. This rule codifies the prior
approval of the State of West Virginia's (State) underground storage
tank program and incorporates by reference appropriate provisions of
State statutes and regulations.
DATES: This regulation is effective August 16, 2004, unless EPA
receives adverse written comments by the close of business July 15,
2004. If EPA receives adverse written comments, we will publish a
timely withdrawal in the Federal Register. The incorporation by
reference of certain publications listed in the regulations is approved
by the Director of the Federal Register, as of
[[Page 33310]]
August 16, 2004 in accordance with 5 U.S.C. 552(a) and 1 CFR part 51.
ADDRESSES: Send written comments to Ms. Rosemarie Nino, Mailcode 3WC21,
RCRA State Programs Branch, U.S. EPA Region III, 1650 Arch Street,
Philadelphia, PA 19103-2029. Comments may also be submitted
electronically through the Internet to: [email protected] or by
facsimile at (215) 814-3163. You can examine copies of the codification
materials during normal business hours at the following location: EPA
Region III, Library, 2nd Floor, 1650 Arch Street, Philadelphia, PA
19103-2029, Phone Number (215) 814-5254.
FOR FURTHER INFORMATION CONTACT: Ms. Rosemarie Nino, Mailcode 3WC21,
RCRA State Programs Branch, U.S. EPA Region III, 1650 Arch Street,
Philadelphia, PA 19103-2029, Phone: (215) 814-3377.
SUPPLEMENTARY INFORMATION:
Background
Section 9004 of RCRA 42 U.S.C. 6991c, allows the EPA to approve a
State underground storage tank program to operate in the State in lieu
of the Federal underground storage tank program. EPA published a notice
in the Federal Register announcing its decision to grant approval to
West Virginia on September 23, 1997, and approval was effective on
February 10, 1998 (63 FR 6667).
EPA codifies its approval of a State program in 40 CFR part 282 and
incorporates by reference therein the State's statutes and regulations
that make up the approved program which is federally-enforceable in
accordance with sections 9005 and 9006 of Subtitle I of RCRA, 42 U.S.C.
6991d and 6991e, and other applicable statutory and regulatory
provisions. Today's rulemaking codifies EPA's approval of West
Virginia's underground storage tank program. This codification reflects
the State program in effect at the time EPA granted West Virginia
approval, in accordance with RCRA section 9004(a), 42 U.S.C. 6991c(a),
for its underground storage tank program. Notice and opportunity for
comment were provided earlier on the Agency's decision to approve the
West Virginia program, and EPA is not now reopening that decision nor
requesting comment on it.
To codify EPA's approval of West Virginia's underground storage
tank program, EPA has added Sec. 282.98 to title 40 of the CFR 40 CFR
282.98(d)(1)(i) incorporates by reference the State's statutes and
regulations that make up the approved program which is federally-
enforceable. 40 CFR 282.98 also describes the Attorney General's
Statement, the Demonstration of Adequate Enforcement Procedures, the
Program Description, and the Memorandum of Agreement, which were
evaluated as part of the approval process of the underground storage
tank program, in accordance with Subtitle I of RCRA.
EPA retains the authority in accordance with sections 9005 and 9006
of Subtitle I of RCRA, 42 U.S.C. 6991d and 6991e, and other applicable
statutory and regulatory provisions, to undertake inspections and
enforcement actions in approved States. With respect to such an
enforcement action, EPA will rely on Federal sanctions, Federal
inspection authorities, and Federal procedures rather than the State-
authorized analogues to these provisions. Therefore, West Virginia's
inspection and enforcement authorities are not incorporated by
reference, nor are they part of West Virginia's approved state program
which operates in lieu of the Federal program. These authorities,
however, are listed in 40 CFR 282.98(d)(1)(ii) for informational
purposes, and also because EPA considered them in determining the
adequacy of West Virginia's enforcement authority. West Virginia's
authority to inspect and enforce the State's underground storage tank
requirements continues to operate independently under State law.
Some provisions of the State's underground storage tank program are
not part of the federally-approved State program. These non-approved
provisions are not part of the RCRA Subtitle I program because they are
``broader in scope'' than Subtitle I of RCRA. See 40 CFR
281.12(a)(3)(ii). As a result, State provisions which are ``broader in
scope'' than the Federal program are not incorporated by reference for
purposes of Federal enforcement in 40 CFR part 282. Section 282.98 of
the codification simply lists for reference and clarity the West
Virginia statutory and regulatory provisions which are ``broader in
scope'' than the Federal program and which are not, therefore, part of
the approved program being codified today. ``Broader in scope''
provisions cannot be enforced by EPA; the State, however, will continue
to enforce such provisions.
Statutory and Executive Order Reviews
This rule only codifies EPA-authorized underground storage tank
program requirements pursuant to RCRA section 9004 and imposes no
requirements other than those imposed by State law (see Supplementary
Information). Therefore, this rule complies with applicable executive
orders and statutory provisions as follows.
1. Executive Order 12866: Regulatory Planning Review--The Office of
Management and Budget has exempted this rule from its review under
Executive Order (EO) 12866. 2. Paperwork Reduction Act--This rule does
not impose an information collection burden under the Paperwork
Reduction Act. 3. Regulatory Flexibility Act--After considering the
economic impacts of today's rule on small entities under the Regulatory
Flexibility Act, I certify that this rule will not have a significant
economic impact on a substantial number of small entities. 4. Unfunded
Mandates Reform Act--Because this rule codifies pre-existing
requirements under state law and does not impose any additional
enforceable duty beyond that required by state law, it does not contain
any unfunded mandate or significantly or uniquely affect small
governments, as described in the Unfunded Mandates Reform Act. 5.
Executive Order 13132: Federalism--EO 13132 does not apply to this rule
because it will not have federalism implications (i.e., substantial
direct effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government). 6. Executive
Order 13175: Consultation and Coordination with Indian Tribal
Governments--EO 13175 does not apply to this rule because it will not
have tribal implications (i.e., substantial direct effects on one or
more Indian tribes, on the relationship between the Federal Government
and Indian tribes, or on the distribution of power and responsibilities
between the Federal Government and Indian tribes). 7. Executive Order
13045: Protection of Children from Environmental Health & Safety
Risks--This rule is not subject to EO 13045 because it is not
economically significant and it is not based on health or safety risks.
8. Executive Order 13211: Actions that Significantly Affect Energy
Supply, Distribution, or Use--This rule is not subject to EO 13211
because it is not a significant regulatory action as defined in EO
12866. 9. National Technology Transfer Advancement Act--EPA codifies
approved State programs as long as they meet criteria required by RCRA,
so it would be inconsistent with applicable law for EPA, in its review
of a State program, to require the use of any particular voluntary
consensus standard in place of another standard that meets the
requirements of RCRA. Thus,
[[Page 33311]]
section 12(d) of the National Technology Transfer and Advancement Act
does not apply to this rule. 10. Congressional Review Act--EPA will
submit a report containing this rule and other information required by
the Congressional Review Act (5 U.S.C. 801 et seq.) to the U.S. Senate,
the U.S. House of Representatives, and the Comptroller General of the
United States prior to publication in the Federal Register. A major
rule cannot take effect until 60 days after it is published in the
Federal Register. This action is not a ``major rule'' as defined by 5
U.S.C. 804(2). This action will be effective on August 16, 2004.
List of Subjects in 40 CFR Part 282
Environmental protection, Hazardous substances, Incorporation by
reference, Intergovernmental relations, State program approval,
Underground storage tanks, Water pollution control.
Dated: March 25, 2004.
Donald S. Welsh,
Regional Administrator, EPA Region III.
0
For the reasons set forth in the preamble, 40 CFR part 282 is amended
as follows:
PART 282--APPROVED UNDERGROUND STORAGE TANK PROGRAMS
0
1. The authority citation for part 282 continues to read as follows:
Authority: 42 U.S.C. 6912, 6991c, 6991d, and 6991e.
Subpart B--Approved State Programs
0
2. Subpart B is amended by adding Sec. 282.98 to read as follows:
Sec. 282.98 West Virginia State-Administered Program.
(a) The State of West Virginia's underground storage tank program
is approved in lieu of the Federal program in accordance with Subtitle
I of the Resource Conservation and Recovery Act of 1976 (RCRA), as
amended, 42 U.S.C. 6991 et seq. The State's program, as administered by
the West Virginia Department of Environmental Protection, was approved
by EPA pursuant to 42 U.S.C. 6991c and part 281 of this chapter. EPA
approved the West Virginia underground storage tank program on
September 23, 1997, and approval was effective on February 10, 1998.
(b) West Virginia has primary responsibility for enforcing its
underground storage tank program. However, EPA retains the authority to
exercise its inspection and enforcement authorities in accordance with
sections 9005 and 9006 of Subtitle I of RCRA, 42 U.S.C. 6991d and
6991e, regardless of whether the State has taken its own actions, as
well as in accordance with other statutory and regulatory provisions.
(c) To retain program approval, West Virginia must revise its
approved program to adopt new changes to the Federal Subtitle I program
which make it more stringent, in accordance with section 9004 of RCRA,
42 U.S.C. 6991c, and 40 CFR part 281, subpart E. If West Virginia
obtains approval for the revised requirements pursuant to section 9004
of RCRA, 42 U.S.C. 6991c, the newly approved statutory and regulatory
provisions will be added to this subpart and notice of any change will
be published in the Federal Register.
(d) West Virginia has final approval for the following elements
submitted to EPA in the State's program application for final approval.
On September 23, 1997, EPA published notice of approval of the State's
program in the Federal Register, 62 FR 49620. That approval became
effective on February 10, 1998 (63 FR 6667). Copies of West Virginia's
program application may be obtained from the West Virginia Department
of Environmental Protection, 1356 Hansford Street, Charleston, WV
25301-1401.
(1) State statutes and regulations. (i) The provisions cited in
this paragraph, with the exception of the provisions cited in
paragraphs (d)(1)(ii) and (iii) of this section, are incorporated by
reference as part of the approved underground storage tank program in
accordance with Subtitle I of RCRA, 42 U.S.C. 6991 et seq.
(A) West Virginia Statutory Requirements Applicable to the
Underground Storage Tank Program, 1997.
(B) West Virginia Regulatory Requirements Applicable to the
Underground Storage Tank Program, 1997.
(ii) EPA considered the following statutes in evaluating the State
program, but did not incorporate them by reference.
(A) The statutory provisions include:
(1) Code of West Virginia, Article 17: Underground Storage Tanks
Section 22-17-5 Powers and duties of director; integration with other
acts
Section 22-17-6 Promulgation of rules and standards by director, Sec.
22-17-6.(b)(13)
Section 22-17-12 Confidentiality, Sec. 22-17-12.(b)
Section 22-17-13 Inspections, monitoring, and testing
Section 22-17-15 Administrative orders; injunctive relief; requests for
reconsideration
Section 22-17-16 Civil penalties
Section 22-17-17 Public participation
Section 22-17-18 Appeal to environmental quality board
Section 22-17-23 Duplicative enforcement prohibited
(2) [Reserved]
(iii) The following statutory and regulatory provisions are broader
in scope than the Federal program, are not part of the approved
program, and are not incorporated by reference. These provisions are
not federally enforceable.
(A) The statutory provisions include:
(1) Code of West Virginia, Article 17: Underground Storage Tanks
Section 22-17-6 Promulgation of rules and standards by director, Sec.
22-17-6.(b)(12)
Section 22-17-7 Underground storage tank advisory committee; purpose
Section 22-17-19 Disclosures required in deeds and leases
Section 22-17-20 Appreciation of funds; underground storage tank
administrative fund
Section 22-17-21 Leaking underground storage tank response fund
(2) [Reserved]
(B) The regulatory provisions include:
(1) West Virginia Code of State Regulations, Title 33: Office of Waste
Management Rule, Series 30: Underground Storage Tanks
Section 33-30-3 Certification Requirements for Individuals who Install,
Repair, Retrofit, Upgrade, Perform Change-in-Service, Close or
Tightness Test Underground Storage Tank Systems
Section 33-30-4 Notification Requirements, Sec. 33-30-4.2.b and 4.4.b
Section 33-30-5 Carriers
(2) West Virginia Code of State Regulations, Title 33: Office of Waste
Management Rule, Series 31: Underground Storage Tank Fee Assessments
(3) West Virginia Code of State Regulations, Title 33: Office of Waste
Management Rule, Series 32: Underground Storage Tank Insurance Trust
Fund
(2) Statement of legal authority. (i) ``Attorney General's
Statement'', signed by the State Attorney General on June 30, 1997,
though not incorporated by reference, is referenced as part of the
approved underground storage tank
[[Page 33312]]
program in accordance with Subtitle I of RCRA, 42 U.S.C. 6991 et seq.
(ii) Letter from the Attorney General of West Virginia to EPA, June
30, 1997, though not incorporated by reference, is referenced as part
of the approved underground storage tank program in accordance with
Subtitle I of RCRA, 42 U.S.C. 6991 et seq.
(3) Demonstration of procedures for adequate enforcement. The
``Demonstration of Procedures for Adequate Enforcement'' submitted as
part of the original application on July 7, 1997, though not
incorporated by reference, is referenced as part of the approved
underground storage tank program in accordance with Subtitle I of RCRA,
42 U.S.C. 6991 et seq.
(4) Program Description. The program description and any other
material submitted as part of the original application on July 7, 1997,
though not incorporated by reference, are referenced as part of the
approved underground storage tank program in accordance with Subtitle I
of RCRA, 42 U.S.C. 6991 et seq.
(5) Memorandum of Agreement. The Memorandum of Agreement between
EPA Region III and the West Virginia Division of Environmental
Protection, signed by the EPA Regional Administrator on September 15,
1997, though not incorporated by reference, is referenced as part of
the approved underground storage tank program in accordance with
Subtitle I of RCRA, 42 U.S.C. 6991 et seq.
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3. Appendix A to Part 282 is amended by adding in alphabetical order
``West Virginia'' and its listing.
Appendix A to Part 282--State Requirements Incorporated by Reference in
Part 282 of the Code of Federal Regulations
* * * * *
West Virginia
(a) The statutory provisions include:
(1) Code of West Virginia, Article 17: Underground Storage Tanks
Section 22-17-1 Short title
Section 22-17-2 Declaration of policy and purpose
Section 22-17-3 Definitions
Section 22-17-4 Designation of division of environmental protection
as the state underground storage tank program lead agency
Section 22-17-6 Promulgation of rules and standards by director,
except Sec. 22-17-6.(b)(12) and (b)(13)
Section 22-17-8 Notification requirements
Section 22-17-9 Registration requirements; undertaking activities
without registration
Section 22-17-10 Financial responsibility
Section 22-17-11 Performance standards for new underground storage
tanks
Section 22-17-12 Confidentiality, except Sec. 22-17-12.(b)
Section 22-17-14 Corrective action for underground petroleum storage
tanks
Section 22-17-22 Underground storage tank insurance fund
(b) The regulatory provisions include:
(1) West Virginia Code of State Regulations, Title 33: Office of Waste
Management Rule, Series 30: Underground Storage Tanks
Section 33-30-1 General
Section 33-30-2 Adoption of Federal Regulations
Section 33-30-4 Notification Requirements, except Sec. 33-30-4.2.b
and 4.4.b
[FR Doc. 04-13281 Filed 6-14-04; 8:45 am]
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