Rule2021-22596
Washington: Final Approval of State Underground Storage Tank Program Revisions, Codification and Incorporation by Reference
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
October 19, 2021
Effective
December 20, 2021
Issuing agencies
Environmental Protection Agency
Abstract
Pursuant to the Resource Conservation and Recovery Act (RCRA or Act), the Environmental Protection Agency (EPA) is taking direct final action to approve revisions to the State of Washington's Underground Storage Tank (UST) program submitted by the State. The EPA has determined that these revisions satisfy all requirements needed for program approval. This action also codifies the EPA's approval of Washinton's state program and incorporates by reference those provisions of the State's regulations that we have determined meet the requirements for approval. The State's federally-authorized and codified UST program, as revised pursuant to this action, will remain subject to the EPA's inspection and enforcement authorities under sections 9005 and 9006 of RCRA subtitle I and other applicable statutory and regulatory provisions.
Full Text
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<title>Federal Register, Volume 86 Issue 199 (Tuesday, October 19, 2021)</title>
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[Federal Register Volume 86, Number 199 (Tuesday, October 19, 2021)]
[Rules and Regulations]
[Pages 57757-57763]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-22596]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 282
[EPA-R10-RCRA-2021-0452; FRL 8849-02-R10]
Washington: Final Approval of State Underground Storage Tank
Program Revisions, Codification and Incorporation by Reference
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: Pursuant to the Resource Conservation and Recovery Act (RCRA
or Act), the Environmental Protection Agency (EPA) is taking direct
final action to approve revisions to the State of Washington's
Underground Storage Tank (UST) program submitted by the State. The EPA
has determined that these revisions satisfy all requirements needed for
program approval. This action also codifies the EPA's approval of
Washinton's state program and incorporates by reference those
provisions of the State's regulations that we have determined meet the
requirements for approval. The State's federally-authorized and
codified UST program, as revised pursuant to this action, will remain
subject to the EPA's inspection and enforcement authorities under
sections 9005 and 9006 of RCRA subtitle I and other applicable
statutory and regulatory provisions.
DATES: This rule is effective December 20, 2021, unless the EPA
receives adverse comment by November 18, 2021. If EPA receives adverse
comment, the EPA will publish a timely withdrawal in the Federal
Register informing the public that the rule will not take effect. The
incorporation by reference of certain material listed in the
regulations is approved by the Director of the Federal Register, as of
December 20, 2021.
ADDRESSES: Submit your comments by one of the following methods:
1. Federal eRulemaking Portal: <a href="http://www.regulations.gov">http://www.regulations.gov</a>. Follow
the online instructions for submitting comments.
2. Email: <a href="/cdn-cgi/l/email-protection#64060b11080d0a00491d01110a034a070c0516080b101001240114054a030b12"><span class="__cf_email__" data-cfemail="87e5e8f2ebeee9e3aafee2f2e9e0a9e4efe6f5ebe8f3f3e2c7e2f7e6a9e0e8f1">[email protected]</span></a>.
3. Mail: Charlotte Boulind-Yeung, Land, Chemicals and Redevelopment
Division, EPA Region 10, 1200 Sixth Avenue, Suite 155, MS: 15-H04,
Seattle, Washington 98101.
4. Hand Delivery or Courier: Deliver your comments to Charlotte
Boulind-Yeung, Land, Chemicals and Redevelopment Division, EPA Region
10, 1200 Sixth Avenue, Suite 155, MS: 15-H04, Seattle, Washington
98101.
Instructions: Submit your comments, identified by Docket ID No.
EPA-R10-RCRA-2021-0452, at <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Follow the
online instructions for submitting comments. Once submitted, comments
cannot be edited or removed from <a href="http://Regulations.gov">Regulations.gov</a>. The EPA may publish
any comment received to its public docket. Do not submit electronically
any information you consider to be Confidential Business Information
(CBI) or other information whose disclosure is restricted by statute.
Multimedia submissions (audio, video, etc.) must be accompanied by a
written comment. The written comment is considered the official comment
and should include discussion of all points you wish to make. The EPA
will generally not consider comments or comment contents located
outside of the primary submission (i.e., on the web, cloud, or other
file sharing system). For additional submission methods, the full EPA
public comment policy, information about CBI or multimedia submissions,
and general guidance on making effective comments, please visit <a href="http://www2.epa.gov/dockets/commenting-epa-dockets">http://www2.epa.gov/dockets/commenting-epa-dockets</a>.
FOR FURTHER INFORMATION CONTACT: Charlotte Boulind-Yeung, (206) 553-
6315, <a href="/cdn-cgi/l/email-protection#6e0c011b0207000a43170b1b0009400d060f1c02011a1a0b2e0b1e0f40090118"><span class="__cf_email__" data-cfemail="03616c766f6a6d672e7a66766d642d606b62716f6c777766436673622d646c75">[email protected]</span></a>. To inspect the hard copy
materials, please schedule an appointment with Charlotte Boulind-Yeung
at (206) 553-6315.
SUPPLEMENTARY INFORMATION:
I. Approval of Revisions to Washington's Underground Storage Tank
Program
A. Why are revisions to state programs necessary?
States that have received final approval from the EPA under RCRA
section 9004(b) of RCRA, 42 U.S.C. 6991c(b), must maintain an
underground storage tank program that is equivalent to, consistent
with, and no less stringent than the Federal underground storage tank
program. When the EPA makes revisions to the regulations that govern
the UST program, states must revise their programs to comply with the
updated regulations and submit these revisions to the EPA for approval.
Most commonly, states must change their programs because of changes to
the EPA's regulations in 40 Code of Federal Regulations (CFR) part 280.
States can also initiate changes on their own to their underground
storage tank program, and these changes must then be approved by the
EPA.
B. What decisions has the EPA made in this rule?
On June 30, 2021, in accordance with 40 CFR 281.51(a), Washington
submitted a complete program revision application seeking the EPA
approval for its UST program revisions (State Application).
Washington's revisions correspond to the EPA final rule published on
July 15, 2015 (80 FR 41566, July 15, 2015), which revised the 1988 UST
regulations and the 1988 state program approval (SPA) regulations (2015
Federal Revisions). As required by 40 CFR 281.20, the State Application
contains the following: A transmittal letter from the Governor
requesting approval, a description of the program and operating
procedures, a demonstration of the State's procedures to ensure
adequate enforcement, a Memorandum of Agreement outlining the roles and
responsibilities of the EPA and the implementing agency, a statement of
certification from the Attorney General, and copies of all relevant
state statutes and regulations. We have reviewed the State Application
and determined that the revisions to Washington's UST program are
equivalent to, consistent with, and no less stringent than the
corresponding Federal requirements in subpart C of 40 CFR part 281, and
that the Washington program provides for adequate enforcement of
compliance with these requirements (40 CFR 281.11(b)). Therefore, the
EPA grants Washington final approval to operate its UST program with
the changes described in the program revision application, and as
outlined below in Section I.G of this document.
C. What is the effect of this action on the regulated community?
This action does not impose additional requirements on the
regulated community because the regulations being approved by this rule
are already in effect in the State of Washington, and are not changed
by this action. This action merely approves the existing state
regulations as meeting the Federal requirements and renders them
federally enforceable.
D. Why is the EPA using a direct final rule?
The EPA is publishing this direct final rule without a prior
proposed rulemaking because we view this action as noncontroversial and
we anticipate
[[Page 57758]]
no adverse comment. Washington did not receive any substantive comments
during its comment period when the rules and regulations being
considered in this direct final rule were proposed at the state level.
E. What happens if the EPA receives comments that oppose this action?
This direct final rule provides an opportunity for public comment.
If the EPA receives comments that oppose this approval, the EPA will
withdraw this direct final rule by publishing a document in the Federal
Register before it becomes effective. The EPA will consider all
comments received during the comment period before making any further
decision on approval of the State Application. The EPA will then
address all public comments in a later final rule. You may not have
another opportunity to comment. If you want to comment on this
approval, you must do so at this time.
F. For what has Washington previously been approved?
On October 8, 1993, the EPA finalized a rule approving the UST
program that Washington proposed to administer in lieu of the Federal
UST program.
G. What changes are we approving with this action and what standards do
we use for review?
To be approved, each state program application must meet the
general requirements in 40 CFR 281.11, and specific requirements in 40
CFR part 281, subpart B (Components of a Program Application); subpart
C (Criteria for No Less Stringent); and subpart D (Adequate Enforcement
of Compliance). This is also true for proposed revisions to approved
state programs.
As more fully described below, the State has made the changes to
its approved UST program to reflect the 2015 Federal Revisions. The EPA
is approving the State's changes because they are equivalent to,
consistent with, and no less stringent than the Federal UST program and
because the EPA has confirmed that the Washington UST program will
continue to provide for adequate enforcement of compliance with these
requirements as described in 40 CFR 281.11(b) and part 281, subpart D
after this approval.
The Washington Department of Ecology (``Ecology'') is the lead
implementing agency for the UST program in Washington, except in Indian
country.
Ecology continues to have broad statutory authority to regulate the
installation, operation, maintenance, and closure of USTs, as well as
UST releases under two Washington statutes, chapter 70A.355 Revised
Code of Washington (RCW), ``Underground Storage Tanks,'' and chapter
70A.305 RCW, ``Hazardous Waste Cleanup--Model Toxics Control Act.'' The
Washington UST Program gets its enforcement authority from the powers
and duties of Ecology, found in RCW 70A.355.020. Under RCW 70A.355.050,
Ecology is authorized to require an owner to furnish records, conduct
monitoring or testing, and provide access to tanks. Ecology is
authorized to issue, modify, suspend, revoke or refuse to renew a
permit under RCW 70A.355.020 and RCW 70A.355.040. Penalties for non-
compliance may be assessed under RCW 70A.355.060 and 70A.355.070.
Specific authorities to regulate the installation, operation,
maintenance, and closure of USTs, as well as UST releases are found
under the Washington Administrative Code (WAC), as amended, in WAC 173-
360A, ``Underground Storage Tank Regulations,'' adopted on July 18,
2018 and effective on October 1, 2018, and in WAC 173-340, ``Model
Toxics Control Act--Cleanup,'' amended October 12, 2007. Ecology may
prohibit delivery to any UST identified by Ecology as ineligible for
delivery under WAC 173-360A-0270 and -0280. Reporting and recordkeeping
requirements are found under WAC 173-360A-0230, -0240, -0700, -0740 and
-0750, as well as WAC 173-340-450. The aforementioned statutory
sections and regulations satisfy the requirements of 40 CFR 281.40 and
281.41.
Through a Memorandum of Agreement between the State of Washington
and the EPA, effective December 20, 2021, the State maintains
procedures for receiving and ensuring proper consideration of
information about violations submitted by the public. Washington has
met the public participation requirements found in 40 CFR 281.42 by
allowing intervention in the State enforcement process as provided
under WAC 173-360A-0270(4). Ecology will not oppose intervention of
right under Superior Court Civil Rule 24 (a)(2) in a civil enforcement
action taken under WAC 173-360A or chapter 90.76 RCW on the grounds
that the person's interest is adequately represented by the State.
To qualify for final approval, revisions to a state's program must
be ``equivalent to, consistent with, and no less stringent'' than the
2015 Federal Revisions. In the 2015 Federal Revisions, the EPA
addressed UST systems deferred in the 1988 UST regulations, and added,
among other things, new operation and maintenance requirements;
secondary containment requirements for new and replaced tanks and
piping; operator training requirements; and a requirement to ensure UST
system compatibility before storing certain biofuel blends. In
addition, the EPA removed past deferrals for emergency generator tanks,
field constructed tanks, and airport hydrant systems. The EPA analyzes
revisions to approved state programs pursuant to the criteria found in
40 CFR 281.30 through 281.39.
Ecology has revised its regulations to help ensure that the State's
UST program revisions are equivalent to, consistent with, and no less
stringent than the 2015 Federal Revisions.
Title 40 CFR 281.39 describes the state operator training
requirements that must be met to be considered equivalent to,
consistent with, and no less stringent than Federal requirements.
Washington did not incorporate by reference Federal requirements for
operator training, but rather has promulgated and is implementing its
own operator training provisions under WAC 173-360A-0500 through -0560.
After a thorough review, the EPA has determined that Washington's
operator training requirements are equivalent to, consistent with, and
no less stringent than Federal requirements.
As part of the State Application, the Washington Attorney General
certified that the State revisions meet the ``equivalent to, consistent
with, and no less stringent'' criteria in 40 CFR 281.30 through 281.39.
The EPA is relying on this certification in addition to the analysis
submitted by the State in making our determination.
H. Where are the revised rules different from the Federal rules?
Broader in Scope Provisions
Where an approved state program has a greater scope of coverage
than required by Federal law, the additional coverage is not part of
the federally-approved program and is not federally enforceable (40 CFR
281.12(a)(3)(ii)). The following statutory and regulatory requirements
are considered broader in coverage than the Federal program as these
state-only regulations are not required by Federal regulation and are
implemented by the State in addition to the federally approved program:
In addition to any person who sells a regulated UST system to a new
owner, any person who leases a regulated UST system also must notify
new operators of UST notification obligations. WAC 173-360A-0230(7).
[[Page 57759]]
UST operator training requirements for Class A also includes
licensing and fees, facility compliance tags, authority to accept
product delivery and certification and use of service providers. WAC
170-360A-0530(1).
Ecology expanded the reporting requirement for spills or overfills
such that spills and overfills must be reported if they pose a threat
to human health or the environment regardless of the volume of the
regulated substance, rather than the 25-gallon spill and overfill
reporting level in the Federal rules. WAC 173-360A-0740.
The State rules also include requirements for UST service providers
by establishing a certification program, specifying the
responsibilities of service providers, and identifying which services
on UST systems must be performed by certified service providers. WAC
173-360A-0900 through -0940.
More Stringent Provisions
Where an approved state program includes requirements that are
considered more stringent than required by Federal law, the more
stringent requirements become part of the federally approved program
(40 CFR 281.12(a)(3)(ii)). The following statutory and regulatory
requirements are considered more stringent than the Federal program,
and on approval, they become part of the federally approved program and
are federally enforceable:
Local governments may designate environmentally sensitive areas,
with Ecology's approval. In these areas, the local government may
impose more stringent standards, and an additional local fee of no more
than half the state fee may be imposed if necessary, to implement the
local standards. WAC 173-360A-0130.
Fees and permits are required by the State's UST statute. USTs must
be in compliance with the applicable requirements to obtain a permit.
WAC 173-360A-0200 and -0210.
The State rules require that any changes affecting information
reported on the initial notification form about an UST system be
reported to Ecology. WAC 173-360A-0230(2).
Product deliverers and waste oil collectors must report any spill
or overfill of regulated substances to the owner or operator. WAC 173-
360A-0230(9).
Notice of intent to install an UST is required at least 30 days
prior to tank installation. Owners or operators must notify Ecology and
certify proper installation no later than 30 days after installation of
the UST. Washington also requires additional documentation--a
manufacturer's installation checklist completed by the service provider
and an as-built plan of the UST facility--when an UST system is
installed and the owner or operator is applying for a license. WAC 173-
360A-0300.
Cathodic protection systems must be tested when they are installed
or repaired and again between one and six months after installation and
at least every three years thereafter. WAC 173-360A-0430(2).
Class B operators must meet the same requirements as Class A
operators, which is more stringent than the Federal requirement. WAC-
170-360A-0530(1).
If Ecology determines that the owners and operators of an UST
system are in noncompliance, then Ecology may require owners and
operators to develop and maintain an operation and maintenance plan for
each UST system. WAC 173-360A-0545.
The State rule requires that owners and operators post and maintain
signage at each UST facility providing emergency response information.
WAC 173-360A-0550(2).
Owners and operators must notify Ecology in writing within 30 days
after any change in release detection methods used. WAC 173-360A-
0600(4).
For reporting of suspected releases, owners and operators using
inventory control must immediately investigate all larger-than-normal
or reoccurring variations and report such variations if they are
unaccounted for without waiting to obtain a second month of data. WAC
173-360A-0700(3)(c).
Owners and operators conducting a site check as part of a release
investigation must complete the site check within 30 days of
identifying a suspected release or receiving notice that the department
requires investigation of a suspected release. The Federal rule at 40
CFR 280.52(b) does not specify a timeframe. WAC 173-360A-0720(2).
For site assessments at closure and site checks to investigate a
possible release, Ecology established specific requirements regarding
the selection of service providers, the determination of sample types,
locations, and measurement methods, and what information must be in the
final report. Records are to be kept for at least six years after the
UST system is permanently closed or undergoes a change-in-service,
versus the three years required by 40 CFR 280.74. Ecology requires that
a sampling and analysis plan be submitted for review at least 30 days
before any sampling is performed. WAC 173-360A-0730.
If a release is confirmed, then the UST system must be secured
within 24 hours of confirming the release to prevent further delivery
or deposit of regulated substances until the defective UST system
components are repaired, replaced or closed. WAC 173-360A-0750(2).
Prior to putting back into service an UST system that has been
closed for 90 days or more, the State rule requires that the owner and
operator complete a tank tightness test, inspections and tests of spill
and overfill protection equipment, and release detection and
containment testing and inspection. WAC 173-360A-0800(5)(b).
Only certified individuals may carry out UST system installation,
closure, retrofit and tightness testing, and installation and
maintenance of cathodic protection equipment. WAC 173-360A-0150(65), -
0920, and -0930).
Site checks and site assessments can only be performed by a service
provider who is certified by the International Code Council (ICC) via a
Washington-specific site assessment certification or is licensed as a
professional engineer or hydrogeologist in Washington. WAC 173-360A-
0730(2) and -0930.
I. How does this action affect Indian country (18 U.S.C. 1151) in
Washington?
The EPA's approval of Washington's Program does not extend to
Indian country as defined in 18 U.S.C. 1151. Indian country generally
includes lands within the exterior boundaries of the following Indian
reservations located within Washington's state borders: Chehalis,
Colville, Cowlitz, Hoh, Jamestown S'Klallam, Kalispel, Lower Elwha
Klallam, Lummi, Makah, Muckleshoot, Nisqually, Nooksack, Port Gamble,
Puyallup, Quileute, Quinault, Samish, Sauk-Suiattle, Shoalwater Bay,
Skokomish, Snoqualmie, Spokane, Squaxin Island, Stillaguamish,
Suquamish (Port Madison), Swinomish, Tulalip, Upper Skagit, and Yakama
Reservations; any land held in trust by the United States for an Indian
tribe; and any other areas that are ``Indian country'' within the
meaning of 18 U.S.C. 1151. Any lands removed from an Indian reservation
status by Federal court action are not considered reservation lands
even if located within the exterior boundaries of an Indian
reservation. The EPA will retain responsibilities under RCRA for
underground storage tanks in Indian country. See 40 CFR 281.12(a)(2).
The one exception regards all USTs located on non-trust and non-
restricted lands inside the boundaries of the Puyallup Reservation. The
State of Washington has been delegated primary jurisdiction over these
USTs as a result of a 1988 settlement agreement between the
[[Page 57760]]
Puyallup Tribe of Indians, local governments in Pierce County, the
State of Washington, the United States, and certain property owners,
ratified at 25 U.S.C. 1773.
II. Codification
A. What is codification?
Codification is the process of placing a state's statutes and
regulations that comprise the state's approved UST program into the
CFR. Section 9004(b) of RCRA, as amended, allows the EPA to approve
State UST programs to operate in lieu of the Federal program. The EPA
codifies its authorization of state programs in 40 CFR part 282 and
incorporates by reference state regulations that the EPA will enforce
under sections 9005 and 9006 of RCRA and any other applicable statutory
provisions. The incorporation by reference of state authorized programs
in the CFR should substantially enhance the public's ability to discern
the current status of the approved state program and state requirements
that can be federally enforced. This effort provides clear notice to
the public of the scope of the approved program in each state.
B. What is the history of codification of Washington's UST program?
The EPA incorporated by reference Washington's approved UST program
in 40 CFR 282.97, effective October 8, 1993 (77 FR 25368, April 30,
2012). Through this action, the EPA is incorporating by reference and
codifying Washington's state program in 40 CFR 282.97 to include the
approved revisions.
C. What codification decisions have we made in this rule?
In this rule, the EPA is finalizing the regulatory text that
incorporates by reference the federally authorized Washington UST
Program. In accordance with the requirements of 1 CFR 51.5, we are
finalizing the incorporation by reference of the Washington rules
described in the amendments to 40 CFR part 282 set forth below. The EPA
has made, and will continue to make, these documents generally
available through <a href="http://www.regulations.gov">www.regulations.gov</a> and at the EPA Region 10 office
(see the ADDRESSES section of this preamble for more information).
One purpose of this Federal Register document is to codify
Washington's approved UST program. The codification reflects the State
program that would be in effect at the time the EPA's approved
revisions to the Washington UST program addressed in this direct final
rule become final. If, however, the EPA receives substantive comment on
this rule, then this codification will not take effect, and the State
rules that are approved after the EPA considers public comment will be
codified instead. By codifying the approved Washington program and by
amending the Code of Federal Regulations, the public will more easily
be able to discern the status of the federally approved requirements of
the Washington program.
The EPA is incorporating by reference the Washington approved UST
program in 40 CFR 282.97. Section 282.97(d)(1)(i)(A) and (B)
incorporate by reference for enforcement purposes the State's relevant
statutes and regulations. Section 282.97 also references the Attorney
General's Statement, Demonstration of Adequate Enforcement Procedures,
the Program Description, and the Memorandum of Agreement, which are
approved as part of the UST program under subtitle I of RCRA.
D. What is the effect of EPA's codification of the federally authorized
State UST Program on enforcement?
The EPA retains the authority under sections 9003(h), 9005 and 9006
of subtitle I of RCRA, 42 U.S.C. 6991b(h), 6991d and 6991e, and other
applicable statutory and regulatory provisions to undertake corrective
action, inspections, and enforcement actions, and to issue orders in
approved States. If the EPA determines it will take such actions in
Washington, then the EPA will rely on Federal sanctions, Federal
inspection authorities, and other Federal procedures rather than the
state analogs. Therefore, though the EPA has approved the State
procedures listed in 40 CFR 282.97(d)(1)(i), the EPA is not
incorporating by reference Washington's procedural and enforcement
authorities.
E. What State provisions are not part of the codification?
The public also needs to be aware that some provisions of the
State's UST program are not part of the federally approved State
program. Such provisions are not part of the RCRA Subtitle I program
because they are ``broader in coverage'' than subtitle I of RCRA. 40
CFR 281.12(a)(3)(ii) states that where an approved state program has a
greater scope of coverage than required by Federal law, the additional
coverage is not part of the federally approved program. As a result,
state provisions which are ``broader in coverage'' than the Federal
program are not incorporated by reference for purposes of enforcement
in 40 CFR part 282. Title 40 CFR 282.97(d)(1)(iii) lists for reference
and clarity the Washington statutory and regulatory provisions which
are broader in coverage than the Federal program and which are not,
therefore, part of the approved program being codified in this rule.
Provisions that are broader in coverage cannot be enforced by the EPA;
the State, however, will continue to implement and enforce such
provisions under State law.
III. Statutory and Executive Order (E.O.) Reviews
This action only applies to Washington's UST Program requirements
pursuant to RCRA section 9004 and imposes no requirements other than
those imposed by State law. It complies with applicable EOs and
statutory provisions as follows:
A. Executive Order 12866 Regulatory Planning and Review, Executive
Order 13563: Improving Regulation and Regulatory Review
This action is not a ``significant regulatory action'' under the
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is
therefore not subject to review under Executive Orders 12866 and 13563
(76 FR 3821, January 21, 2011).
B. Unfunded Mandates Reform Act and Executive Order 13175: Consultation
and Coordination With Indian Tribal Governments
Because this action approves and 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 of 1995 (2 U.S.C. 1531-
1538). For the same reason, this action also does not significantly or
uniquely affect the communities of tribal governments, as specified by
Executive Order 13175 (65 FR 67249, November 9, 2000).
C. Executive Order 13132: Federalism
This action will not have 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, as specified in Executive Order 13132 (64 FR
43255, August 10, 1999), because it merely approves and codifies state
requirements as part of the State RCRA Underground Storage Tank Program
without altering the relationship or the
[[Page 57761]]
distribution of power and responsibilities established by RCRA.
D. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
This action also is not subject to Executive Order 13045 (62 FR
19885, April 23, 1997), because it is not economically significant, as
defined in Executive Order 12866, and because the EPA does not believe
the environmental health or safety risks addressed by this action
present a disproportionate risk to children.
E. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This rule is not subject to Executive Order 13211 (66 FR 28355, May
22, 2001), because it is not a ``significant regulatory action'' as
defined under Executive Order 12866.
F. National Technology Transfer and Advancement Act
Under RCRA section 9004(b), the EPA grants a state's application
for approval as long as the state meets the criteria required by RCRA.
It would be inconsistent with applicable law for the EPA, when it
reviews a state approval application, to require the use of any
particular voluntary consensus standard in place of another standard
that otherwise satisfies the requirements of RCRA. Thus, the
requirements of section 12(d) of the National Technology Transfer and
Advancement Act of 1995 (15 U.S.C. 272 note) do not apply.
G. Executive Order 12988: Civil Justice Reform
As required by section 3 of Executive Order 12988 (61 FR 4729,
February 7, 1996), in issuing this rule, the EPA has taken the
necessary steps to eliminate drafting errors and ambiguity, minimize
potential litigation, and provide a clear legal standard for affected
conduct.
H. Executive Order 12630: Governmental Actions and Interference With
Constitutionally Protected Property Rights
The EPA has complied with Executive Order 12630 (53 FR 8859, March
15, 1988) by examining the takings implications of the rule in
accordance with the ``Attorney General's Supplemental Guidelines for
the Evaluation of Risk and Avoidance of Unanticipated Takings'' issued
under the executive order.
I. Paperwork Reduction Act
This rule does not impose an information collection burden under
the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
et seq.). ``Burden'' is defined at 5 CFR 1320.3(b).
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low Income Populations
Executive Order 12898 (59 FR 7629, February 16, 1994) establishes
Federal executive policy on environmental justice. Its main provision
directs Federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States. Because this rule approves pre-
existing state rules which are at least equivalent to, consistent with,
and no less stringent than existing Federal requirements, and imposes
no additional requirements beyond those imposed by state law, and there
are no anticipated significant adverse human health or environmental
effects, the rule is not subject to Executive Order 12898.
K. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801-808, generally provides
that before a rule may take effect, the agency promulgating the rule
must submit a rule report, which includes a copy of the rule, to each
House of the Congress and to the Comptroller General of the United
States. The EPA will submit a report containing this document and other
required information 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). However,
this action will be effective December 20, 2021 because it is a direct
final rule.
Authority: This rule is issued under the authority of sections
2002(a), 7004(b), and 9004, 9005 and 9006 of the Solid Waste Disposal
Act, as amended, 42 U.S.C. 6912(a), 6974(b), and 6991c, 6991d, and
6991e.
List of Subjects in 40 CFR Part 282
Environmental protection, Administrative practice and procedure,
Hazardous substances, Incorporation by reference, State program
approval, and Underground storage tanks.
Dated: September 30, 2021.
Michelle L. Pirzadeh,
Acting Regional Administrator, Region 10.
For the reasons set forth in the preamble, the EPA is amending 40
CFR part 282 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.
0
2. Add Sec. 282.97 to read as follows:
Sec. 282.97 Washington State-Administered Program.
(a) History of the approval of Washington's program. The State of
Washington is approved to administer and enforce an underground storage
tank program in lieu of the Federal program under 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
Washington Department of Ecology (Ecology), was approved by the EPA
pursuant to 42 U.S.C. 6991c and part 281 of this chapter. The EPA
published the notice of final determination approving the Washington
underground storage tank base program effective on October 8, 1993. A
subsequent program revision application was approved by the EPA and
became effective on December 20, 2021.
(b) Enforcement authority. Washington has primary responsibility
for administering and enforcing its federally approved underground
storage tank program. However, the EPA retains the authority to
exercise its corrective action, inspection, and enforcement authorities
under sections 9003(h), 9005, and 9006 of subtitle I of RCRA, 42 U.S.C.
6991b(h), 6991d and 6991e, as well as under any other applicable
statutory and regulatory provisions.
(c) Retention of program approval. To retain program approval,
Washington 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 Washington 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
[[Page 57762]]
and notice of any change will be published in the Federal Register.
(d) Final approval. Washington has final approval for the following
elements of its program application originally submitted to the EPA and
approved effective October 8, 1993, and the program revision
application approved by the EPA effective on December 20, 2021:
(1) State statutes and regulations--(i) Incorporation by reference.
The materials cited in this paragraph (d)(1) are incorporated by
reference as part of the underground storage tank program under
subtitle I of RCRA, 42 U.S.C. 6991 et seq. with the approval of the
Director of the Federal Register under 5 U.S.C. 552(a) and 1 CFR part
51. To enforce any edition other than that specified in this section,
the EPA must publish a document in the Federal Register and the
material must be available to the public. All approved material is
available for inspection at EPA Region 10, 1200 Sixth Avenue, Suite
155, Seattle, Washington 98101, phone number (206) 553-6693. Copies of
Washington's program application may be obtained from the Underground
Storage Tank Program, Washington Department of Ecology, P.O. Box 4765,
Olympia, Washington 98504. All approved material is also available for
inspection at the National Archives and Records Administration (NARA).
For information on the availability of the material at NARA, email
<a href="/cdn-cgi/l/email-protection#4224306c2b2c31322721362b2d2c022c2330236c252d34"><span class="__cf_email__" data-cfemail="b1d7c39fd8dfc2c1d4d2c5d8dedff1dfd0c3d09fd6dec7">[email protected]</span></a> or go to <a href="http://www.archives.gov/federal-register/cfr/ibr-locations.html">www.archives.gov/federal-register/cfr/ibr-locations.html</a>.
(A) ``Washington Statutory Requirements Applicable to the
Underground Storage Tank Program,'' June 2021.
(B) ``Washington Regulatory Requirements Applicable to the
Underground Storage Tank Program,'' June 2021.
(ii) Legal basis. The EPA evaluated the statutes and regulations
listed in appendix B to this part that provide the legal basis for the
State's implementation of the underground storage tank program but are
not incorporated by reference and do not replace Federal authorities.
(iii) Broader in scope. The specifically identified sections and
rules applicable to the Washington underground storage tank program
listed in appendix C to this part are broader in scope than the Federal
program, are not part of the approved program, and are not incorporated
by reference herein for enforcement purposes.
(2) Statement of legal authority. The Attorney General Statement,
signed on October 10, 2018, though not incorporated by reference, is
referenced as part of the approved underground storage tank program
under 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 application for approval on June 30, 2021, though not
incorporated by reference, is referenced as part of the approved
underground storage tank program under 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 June 30,
2021, though not incorporated by reference, are referenced as part of
the approved underground storage tank program under subtitle I of RCRA,
42 U.S.C. 6991 et seq.
(5) Memorandum of Agreement. The Memorandum of Agreement between
EPA Region 10 and the Washington Department of Ecology, signed by the
EPA Regional Administrator on March 19, 2019, though not incorporated
by reference, is referenced as part of the approved underground storage
tank program under subtitle I of RCRA, 42 U.S.C. 6991 et seq.
0
3. Amend appendix A to part 282 by adding an entry for ``Washington''
in alphabetical order by State to read as follows:
Appendix A to Part 282--State Requirements Incorporated by Reference in
Part 282 of the Code of Federal Regulations
* * * * *
Washington
(a) The statutory provisions include:
(1) Chapter 70A.355 RCW, ``Underground Storage Tanks'': Sections
70A.355.010, ``Definitions''; 70A.355.020, ``Department's Powers and
Duties--Rule-Making Authority'', Subsections 020(1), 020(2), 020(3);
70A.355.030, ``Environmentally Sensitive Areas''; 70A.355.090,
``Underground storage tank account''; 70A.355.100, ``Preemption'';
70A.355.900, ``Captions not law''; 70A.355.901 ``Severability--1989
c 346''; and 70A.355.902, ``Effective Date--1989 c 346''.
(b) The regulatory provisions include:
(1) Washington Administrative Code, Chapter 173-360A:
173-360A-0100 Purpose of chapter
173-360A-0110 Applicability of chapter
173-360A-0120 Preemption of local programs
173-360A-0130 Approval of more stringent local requirements
173-360A-0150 Definitions, except subsections -150(24), -150(54),
and -150(56)
173-360A-0190 Severability
173-360A-0230 Reporting requirements, except subsections -0230(1),
(7), (8) and (9)
173-360A-0240 Recordkeeping requirements, except subsection -0240(5)
173-360A-0260 Information sharing
173-360A-0300 Installation of UST systems and components
173-360A-0310 Performance standards for new UST systems and
components
173-360A-0320 Upgrade requirements for existing UST systems
173-360A-0330 Upgrade requirements for previously deferred UST
systems
173-360A-0340 Performance standards for partially exempt UST systems
173-360A-0350 Compatibility requirements for UST systems
173-360A-0400 Transfer of reguated substances--Owners and operators
173-360A-0405 Transfer of regulated substances--Product deliverers
and waste oil collectors
173-360A-0410 Change in regulated substances
173-360A-0420 Operation and maintenance walkthrough inspections
173-360A-0430 Operation and maintenance corrosion protection
173-360A-0440 Operation and maintenance internal linings
173-360A-0450 Operation and maintenance of containment sumps used
for interstitial monitoring of piping
173-360A-460 Operation and maintenance of spill prevention equipment
173-360A-0470 Operation and maintenance of overfill protection
equipment
173-360A-0480 Operation and maintenance of release detection
equipment
173-360A-0500 Purpose and applicability
173-360A-0510 Designation of Class A, Class B, and Class C operators
173-360A-0520 Timing of operator training
173-360A-0530 Requirements for operator training, except subsection
-530(1)(b)(i)(A), 0530(1)(b)(i)(B), 0530(1)(b)(i)(C) and
0530(1)(b)(ii)
173-360A-0540 Retraining requirements for Class A and Class B
operators
173-360A-0545 Operation and maintenance plans
173-360A-0550 Emergency response requirements
173-360A-0560 Documentation and recordkeeping
173-360A-0600 General release detection requirements
173-360A-0610 Release detection requirements for tanks
173-360A-0615 Release detection requirements for piping
173-360A-0620 Inventory control
173-360A-0625 Weekly manual tank gauging
173-360A-0630 Automatic tank gauging
173-360A-0635 Tank tightness testing
173-360A-0640 Automatic line leak detectors
173-360A-0650 Line tightness testing
173-360A-0655 Interstitial monitoring
173-360A-0660 Vapor monitoring
173-360A-0665 Groundwater monitoring
173-360A-0670 Statistical inventory reconciliation
173-360A-0675 Other release detection methods
173-360A-0700 Reporting of suspected releases
173-360A-0710 Investigation due to off-facility impacts
[[Page 57763]]
173-360A-0720 Release investigation and confirmation steps
173-360A-0730 Site assessment requirements
173-360A-0740 Reporting and cleanup of spills and overfills, except
subsection -0740(1)(a) in sofaras not to include groundwater
contamination
173-360A-0750 Reporting and cleanup of confirmed releases
173-360A-0800 Temporary closure of UST systems
173-360A-0810 Permanent closure of UST systems
173-360A-0820 Change-in-service of UST systems
173-360A-0830 Previously closed UST systems
173-360A-1000 Applicability
173-360A-1005 Definition of terms
173-360A-1010 Period of financial responsibility
173-360A-1015 Scope and amount of financial responsibility
173-360A-1020 Allowable mechanisms and combination of mechanisms
173-360A-1025 Substitution of mechanisms by owners or operators
173-360A-1030 Termination of mechanisms by providers
173-360A-1035 Responsibilities upon bankruptcy or other incapacity
of owner or operator or provider of financial assurance
173-360A-1040 Recordkeeping by ownerd and operators
173-360A-1045 Reporting by owners and operators
173-360A-1050 Use of standby trusts
173-360A-1055 Use of local government guarantees without standby
trusts
173-360A-1060 Mechanism--Financial test of self-insurance
173-360A-1061 Mechanism--Guarantee
173-360A-1062 Mechanism--Insurance and risk retention group coverage
173-360A-1063 Mechanism--Surety bond
173-360A-1064 Mechanism--Letter of credit
173-360A-1065 Mechanism--Trust fund
173-360A-1066 Mechanism--Standby trust fund
173-360A-1070 Mechanism--Local government bond rating test
173-360A-1071 Mechanism--Local government financial test
173-360A-1072 Mechanism--Local government guarantee
173-360A-1073 Mechanism--Local government fund
173-360A-1080 Appendi A--Letter from chief financial officer
173-360A-1081 Appendix B--Guarantee
173-360A-1082 Appendix C--Endorsement
173-360A-1083 Appendix D--Certificate of insurance
173-360A-1084 Appendix E--Performance bond
173-360A-1085 Appendix F--Irrevocable standby letter of credit
173-360A-1086 Appendix G--Trust agreement
173-360A-1087 Appendix H--Certification of acknowledgement
173-360A-1088 Appendix I--Local government bond rating test--Letter
from chief financial officer of general purpose local governments
173-360A-1089 Appendix J--Local government bond rating test--Letter
from chief financial officer of nongeneral purpose local governments
173-360A-1090 Appendix K--Local government financial test--Letter
from chief financial officer
173-360A-1091 Appendix L--Local government guarantee with standby
trust made by a state
173-360A-1092 Appendix M--Local government guarantee with standby
trust made by a local government
173-360A-1093 Appendix N--Local government guarantee without standby
trust made by a state
173-360A-1094 Appendix O--Local government guarantee without standby
trust made by a local government
173-360A-1095 Appendix P--Local government fund--Letter from chief
financial officer
173-360A-1096 Appendix Q--Certification of financial responsibility
173-360A-1097 Appendix R--Certification of valid claim
(2) Washington Administrative Code, Chapter 173-340, ``Model
Toxics Control Act Cleanup Regulation'':
173-340-450 Releases from underground storage tanks
173-340-600 Public notice and participation
* * * * *
0
4. Add appendix B to part 282 to read as follows:
Appendix B to Part 282--State Requirements Not Incorporated by
Reference in Part 282 of the Code of Federal Regulations
The EPA evaluated the following statutes and regulations that
are part of the approved program but are not being incorporated by
reference for enforcement purposes and do not replace Federal
authorities.
Washington
(a) The statutory provisions include:
(1) RCW 70A.355, ``Underground Storage Tanks,'' Sections
70A.355.005, 020(5), 020(6), 040(2), 050, 060, and 070.
(2) RCW 43.21B, ``Environmental Land Use & Hearing Office--
Pollution Control Hearings Board'' insofar as the provisions and
procedures serve to implement the underground storage tank program.
(b) The regulatory provisions, insofar as these sections
identify specific authorities for the implementation, compliance
monitoring and enforcement of the underground storage tank program,
include:
(1) WAC 173-360A (July 18, 2018), ``Underground Storage Tank
Regulations,'' Sections:
173-360A-0140, ``Intergovernmental agreements''
173-360A-0150(24), ``Facility compliance tags''
173-360A-0150(54), ``Product deliverer''
173-360A-0150(56), ``Red tag''
173-360A-0220, ``Facility compliance tags''
173-360A-0250, ``Compliance monitoring, investigation, and access''
173-360A-0270, ``Enforcement''
173-360A-0280, ``Delivery Prohibition''
173-360A-0290, ``Civil penalties''
(2) WAC 371-08-485(2) and (3), ``Practice and Procedure.''
(3) Washington Superior Court Civil Rule 24(a)(2).
0
5. Add appendix C to part 282 to read as follows:
Appendix C to Part 282--Other State Provisions Not Incorporated by
Reference in Part 282 of the Code of Federal Regulations
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 herein. These
provisions are not federally enforceable.
Washington
(a) The statutory provisions include:
(1) RCW 70A.355, ``Underground Storage Tanks'': Sections 020(4),
020(7), 020(8), 040(1), 040(3) and 080.
(2) RCW 70A.305, ``Hazardous Waste Cleanup--Model Toxics Control
Act'' insofar as the provisions and procedures serve to implement
the underground storage tank program.
(3) RCW 70A.325, ``Underground Petroleum Tanks'' insofar as the
provisions and procedures serve to implement the underground storage
tank program.
(4) RCW 70A.330, ``Petroleum Storage Tank Systems Pollution
Liability Protection Act'' insofar as the provisions and procedures
serve to implement the underground storage tank program.
(5) RCW 70A.345, ``Underground Storage Tank Revolving Loan and
Grant Program'' insofar as the provisions and procedures serve to
implement the underground storage tank program.
(6) RCW 82.23A, ``Petroleum Products--Underground Storage Tank
Program Funding'' insofar as the provisions and procedures serve to
implement the underground storage tank program.
(b) The regulatory provisions include:
(1) WAC 173-360A (July 18, 2018), ``Underground Storage Tank
Regulations,'' Sections 0200, 0210, 0230(1), (7) and (8), 0240(5),
0530(1)(i)(A), 0530(1)(b)(i)(B), 0530(1)(b)(i)(C) and
0530(1)(b)(ii), 0740(1)(a), and 0900 through 0940.
[FR Doc. 2021-22596 Filed 10-18-21; 8:45 am]
BILLING CODE 6560-50-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.