[Federal Register Volume 69, Number 114 (Tuesday, June 15, 2004)]
[Rules and Regulations]
[Pages 33312-33315]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-13283]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 282
[FRL-7658-3]
Underground Storage Tank Program: Approved State Program for
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 Commonwealth of Virginia's (Commonwealth or 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 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
Virginia on September 28, 1998, and approval was effective on October
28, 1998 (63 FR 51528).
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 Virginia's
underground storage tank program. This codification reflects the State
program in effect at the time EPA granted 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 Virginia
program, and EPA is not now reopening that decision nor requesting
comment on it.
To codify EPA's approval of Virginia's underground storage tank
program, EPA has added Sec. 282.96 to title 40 of the CFR. 40 CFR
282.96(d)(1)(i) incorporates by reference the State's statutes and
regulations that make up the approved program which is federally-
enforceable. 40 CFR 282.96 also describes the Attorney General's
Statement, the Demonstration of Adequate Enforcement Procedures, the
Program Description, and the Memorandum of
[[Page 33313]]
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, Virginia's
inspection and enforcement authorities are not incorporated by
reference, nor are they part of Virginia's approved state program which
operates in lieu of the Federal program. These authorities, however,
are listed in 40 CFR 282.96(d)(1)(ii) for informational purposes, and
also because EPA considered them in determining the adequacy of
Virginia's enforcement authority. 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 282.96 of
the codification simply lists for reference and clarity the 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, 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. 282.96 to read as follows:
Sec. 282.96 Virginia State-Administered Program.
(a) The State of 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 Virginia Department of Environmental Quality, was approved by EPA
pursuant to 42 U.S.C. 6991c and part 281 of this chapter. EPA approved
the Virginia underground storage tank program on September 28, 1998,
and approval was effective on October 28, 1998.
(b) 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, Virginia must revise its approved
[[Page 33314]]
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 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) Virginia has final approval for the following elements
submitted to EPA in the State's program application for final approval.
On September 28, 1998, EPA published notice of approval of the State's
program in the Federal Register, 63 FR 51528. That approval became
effective on October 28, 1998. Copies of Virginia's program application
may be obtained from the Virginia Department of Environmental Quality,
629 East Main Street, Richmond, VA 23240-0009.
(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) Virginia Statutory Requirements Applicable to the Underground
Storage Tank Program, 1998.
(B) Virginia Regulatory Requirements Applicable to the Underground
Storage Tank Program, 1998.
(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 Virginia, Title 10.1, Subtitle II, Chapter 11.1: Department
of Environmental Quality, Article 1: General Provisions
Section 10.1-1186 General powers of the department
(2) Code of Virginia, Title 62.1, Chapter 3.1: State Water Control Law,
Article 2: Control Board Generally
Section 62.1-44.14 Chairman; Executive Director; employment of
personnel; supervision; budget preparation
Section 62.1-44.15 Powers and duties
(3) Code of Virginia, Title 62.1, Chapter 3.1: State Water Control Law,
Article 5: Enforcement and Appeal Procedure
Section 62.1-44.20 Right to entry to obtain information
Section 62.1-44.21 Information to be furnished to Board
Section 62.1-44.21 Private rights not affected
Section 62.1-44.23 Enforcement by injunction
Section 62.1-44.23:1 Intervention of Commonwealth in actions involving
surface water withdrawals
Section 62.1-44.24 Testing validity of regulations; judicial review
Section 62.1-44.25 Right to hearing
Section 62.1-44.26 Hearings
Section 62.1-44.27 Rules of evidence in hearings
Section 62.1-44.28 Decisions of the Board in hearings pursuant to Sec.
62.1-44.15 and 62.1-44.25
Section 62.1-44.29 Judicial review
Section 62.1-44.30 Appeal to Court of Appeals
(4) Code of Virginia, Title 62.1, Chapter 3.1: State Water Control Law,
Article 6: Offenses and Penalties
Section 62.1-44.31 Violation of special order or certificate or failure
to cooperate with Board
Section 62.1-44.32 Penalties
(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 Virginia, Title 62.1, Chapter 3.1: State Water Control Law
Section 62.1-44.34:8 Definitions, ``Aboveground storage tank'' and
``Regulated substance''
(2) Code of Virginia, Title 62.1, Chapter 3.1: State Water Control Law,
Article 10: Petroleum Storage Tank Fund
Section 62.1-44.34.10 Definitions, ``Aboveground storage tank'' and
``Regulated substance''
Section 62.1-44.34:13 Levy of fee for Fund maintenance
(B) The regulatory provisions include Virginia Administrative Code,
Title 9, Agency 25: State Water Control Board, Chapter 580: Underground
Storage Tanks--Technical Standards and Corrective Action Requirements
9 VAC 25-580-10 Definitions, ``Underground storage tank'' includes
heating oil tanks of greater than 5,000 gallon capacity and ``Regulated
substance''
9 VAC 25-580-130 General requirements for all petroleum and hazardous
substance UST systems, heating oil tanks of greater than 5,000 gallon
capacity
9 VAC 25-580-290 Corrective action plan (CAP) permit
(2) Statement of legal authority. (i) ``Attorney General's
Statement,'' signed by the State Attorney General on July 14, 1998,
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.
(ii) Letter from the Attorney General of Virginia to EPA, July 14,
1998, 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 15, 1998, 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 15,
1998, 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 Virginia Department of Environmental Quality,
signed by the EPA Regional Administrator on September 17, 1998, 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
``Virginia'' and its listing.
Appendix A to Part 282--State Requirements Incorporated by Reference in
Part 282 of the Code of Federal Regulations
* * * * *
Virginia
(a) The statutory provisions include:
(1) Code of Virginia, Title 62.1, Chapter 3.1: State Water Control Law
Article 9: Storage Tanks
Section 62.1-44.34:8 Definitions, except ``Aboveground storage
tank'' and ``Regulated substance''
Section 62.1-44.34:9 Powers and duties of Board
Article 10: Petroleum Storage Tank Fund
Section 62.1-44.34:10 Definitions, except ``Aboveground storage
tank'' and ``Regulated substance''
[[Page 33315]]
Section 62.1-44.34:11 Virginia Petroleum Storage Tank Fund
Section 62.1-44.34:12 Financial responsibility
(b) The regulatory provisions include:
(1) Virginia Administrative Code, Title 9, Agency 25: State Water
Control Board, Chapter 580: Underground Storage Tanks--Technical
Standards and Corrective Action Requirements
Part I: Definitions, Applicability, and Interim Prohibition
9 VAC 25-580-10 Definitions, except ``Underground storage tank''
includes heating oil tanks of greater than 5,000 gallon capacity and
``Regulated substance''
9 VAC 25-580-20 Applicability
9 VAC 25-580-30 Interim prohibition for deferred UST systems
9 VAC 25-580-40 Permitting and inspection requirements for all UST
systems
Part II: UST Systems: Design, Construction, Installation, and
Notification
9 VAC 25-580-50 Performance standards for new UST systems
9 VAC 25-580-60 Upgrading of existing UST systems
9 VAC 25-580-70 Notification requirements
9 VAC 25-580-80 Spill and overfill control
9 VAC 25-580-90 Operation and maintenance of corrosion protection
9 VAC 25-580-100 Compatibility
9 VAC 25-580-110 Repairs allowed
Part III: General Operating Requirements
9 VAC 25-580-120 Reporting and recordkeeping
Part IV: Release Detection
9 VAC 25-580-130 General requirements for all petroleum and
hazardous substance UST systems, except heating oil tanks of greater
than 5,000 gallon capacity
9 VAC 25-580-140 Requirements for petroleum UST systems
9 VAC 25-580-150 Requirements for hazardous substance UST systems
9 VAC 25-580-160 Methods of release detection for tanks
9 VAC 25-580-170 Methods of release detection for piping
9 VAC 25-580-180 Release detection recordkeeping
Part V: Release Reporting, Investigation, and Confirmation
9 VAC 25-580-190 Reporting of suspected releases
9 VAC 25-580-200 Investigation due to off-site impacts
9 VAC 25-580-210 Release investigation and confirmation steps
9 VAC 25-580-220 Reporting and cleanup of spills and overfills
Part VI: Release Response and Corrective Action for UST Systems
Containing Petroleum for Hazardous Substances
9 VAC 25-580-230 General
9 VAC 25-580-240 Initial response
9 VAC 25-580-250 Initial abatement measures and site check
9 VAC 25-580-260 Site characterization
9 VAC 25-580-270 Free product removal
9 VAC 25-580-280 Corrective action plan
9 VAC 25-580-300 Public participation
9 VAC 25-580-310 Temporary closure
Part VII: Out-of-Service UST Systems and Closure
9 VAC 25-580-320 Permanent closure and changes-in-service
9 VAC 25-580-330 Assessing the site at closure or change-in-service
9 VAC 25-580-340 Applicability to previously closed UST systems
9 VAC 25-580-350 Closure records
Part VIII: Delegation
9 VAC 25-580-360 Delegation of authority
Appendix I: Virginia Underground Storage Tank Notification Forms
Appendix II: Statement for Shipping tickets and Invoices
(2) Virginia Administrative Code, Title 9, Agency 25: State
Water Control Board, Chapter 590: Petroleum Underground Storage Tank
Financial Responsibility Requirements
9 VAC 25-590-10 Definitions
9 VAC 25-590-20 Applicability
9 VAC 25-590-30 Compliance dates
9 VAC 25-590-40 Amount and scope of financial responsibility
requirement
9 VAC 25-590-50 Allowable mechanisms and combinations of mechanisms
9 VAC 25-590-60 Financial test of self-insurance
9 VAC 25-590-70 Guarantee
9 VAC 25-590-80 Insurance and group self-insurance pool coverage
9 VAC 25-590-90 Surety bond
9 VAC 25-590-100 Letter of credit
9 VAC 25-590-110 Trust fund
9 VAC 25-590-120 Standby trust fund
9 VAC 25-590-130 Substitution of financial assurance mechanisms by
owner and operator
9 VAC 25-590-140 Cancellation or nonrenewal by a provider of
financial assurance
9 VAC 25-590-150 Reporting by owner or operator
9 VAC 25-590-160 Recordkeeping
9 VAC 25-590-170 Drawing on financial assurance mechanism
9 VAC 25-590-180 Release from the requirements
9 VAC 25-590-190 Bankruptcy or other incapacity of owner, operator
or provider of financial assurance
9 VAC 25-590-200 Replenishment of guarantees, letters of credit or
surety bonds
9 VAC 25-590-210 Virginia Petroleum Storage Tank Fund
9 VAC 25-590-220 Notices to the State Water Control Board
9 VAC 25-590-230 Delegation of authority
9 VAC 25-590-240 Lender liability
9 VAC 25-590-250 Local government financial responsibility
demonstration
9 VAC 25-590-260 Word or phrase substitutions
Appendix I: Letter from Chief Financial Officer
Appendix II: Guarantee
Appendix III: Endorsement
Appendix IV: Certificate of Insurance
Appendix V: Performance Bond
Appendix VI: Irrevocable Standby Letter of Credit
Appendix VII: Trust Agreement
Appendix VIII: Certification of Acknowledgment
Appendix IX: Certification of Financial Responsibility
Appendix X: Certification of Valid Claim
Appendix XI: Letter from Chief Financial Officer (short form)
[FR Doc. 04-13283 Filed 6-14-04; 8:45 am]
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