Rule2022-15097
Delaware: 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
July 14, 2022
Effective
September 12, 2022
Issuing agencies
Environmental Protection Agency
Abstract
Pursuant to the Solid Waste Disposal Act of 1965, as amended (commonly known as the Resource Conservation and Recovery Act (RCRA)), the Environmental Protection Agency (EPA) is taking direct final action to approve revisions to Delaware's Underground Storage Tank (UST) program submitted by Delaware (Delaware or State). This action also codifies EPA's approval of Delaware's State program and incorporates by reference (IBR) those provisions of Delaware's regulations and statutes that EPA has determined meet the requirements for approval. The provisions will be subject to 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 87 Issue 134 (Thursday, July 14, 2022)</title>
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[Federal Register Volume 87, Number 134 (Thursday, July 14, 2022)]
[Rules and Regulations]
[Pages 42089-42096]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-15097]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 282
[EPA-R03-UST-2021-0862; FRL-9625-02-R3]
Delaware: 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 Solid Waste Disposal Act of 1965, as amended
(commonly known as the Resource Conservation and Recovery Act (RCRA)),
the Environmental Protection Agency (EPA) is taking direct final action
to approve revisions to Delaware's Underground Storage Tank (UST)
program submitted by Delaware (Delaware or State). This action also
codifies EPA's approval of Delaware's State program and incorporates by
reference (IBR) those provisions of Delaware's regulations and statutes
that EPA has determined meet the requirements for approval. The
provisions will be subject to 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 September 12, 2022, unless EPA receives
significant negative comments opposing this action by August 15, 2022.
If EPA receives significant negative comments opposing this action, 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 publications listed in the regulations is approved
by the Director of the Federal Register, as of September 12, 2022, in
accordance with 5 U.S.C. 552(a) and 1 CFR part 51.
ADDRESSES: Submit your comments by one of the following methods:
1. Federal eRulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Follow
the on-line instructions for submitting comments.
2. Email: <a href="/cdn-cgi/l/email-protection#1d5e7c69723359747c6e7574737c785d786d7c337a726b"><span class="__cf_email__" data-cfemail="82c1e3f6edacc6ebe3f1eaebece3e7c2e7f2e3ace5edf4">[email protected]</span></a>.
Instructions: Direct your comments to Docket ID No. EPA-R03-UST-
2021-0862.
EPA's policy is that all comments received will be included in the
public docket without change and may be available online at <a href="https://www.regulations.gov">https://www.regulations.gov</a>, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit information that you consider to
be CBI or otherwise protected through <a href="https://www.regulations.gov">https://www.regulations.gov</a>, or
email. The Federal website, <a href="https://www.regulations.gov">https://www.regulations.gov</a>, is an
``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an email comment directly to EPA without
going through https://
[[Page 42090]]
www.regulations.gov, your email address will be automatically captured
and included as part of the comment that is placed in the public docket
and made available on the internet. If you submit an electronic
comment, EPA recommends that you include your name and other contact
information in the body of your comment. If EPA cannot read your
comment due to technical difficulties, and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses. EPA encourages
electronic submittals, but if you are unable to submit electronically,
please reach out to the EPA contact person listed in the notice for
assistance. If you need assistance in a language other than English, or
you are a person with disabilities who needs a reasonable accommodation
at no cost to you, please reach out to the EPA contact person by email
or phone.
Docket: All documents in the docket are listed in the <a href="https://www.regulations.gov">https://www.regulations.gov</a> index. Although listed in the index, some
information might not be publicly available, e.g., CBI or other
information whose disclosure is restricted by statute. Publicly
available materials are available electronically through <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
FOR FURTHER INFORMATION CONTACT: Diashinae Cato, (215) 814-2738,
<a href="/cdn-cgi/l/email-protection" class="__cf_email__" data-cfemail="85e6e4f1eaabe1ece4f6edecebe4e0c5e0f5e4abe2eaf3">[email protected]</a>, RCRA Programs Branch; Land, Chemicals, and
Redevelopment Division; EPA Region 3, Four Penn Center, 1600 John F.
Kennedy Blvd. (Mailcode 3LD30), Philadelphia, PA 19103-2852.
SUPPLEMENTARY INFORMATION:
I. Approval of Revisions to Delaware's Underground Storage Tank Program
A. Why are revisions to state programs necessary?
Section 9004 of RCRA authorizes EPA to approve state underground
storage tank (UST) programs to operate in lieu of the Federal UST
program. EPA may approve a state program if the state demonstrates,
pursuant to section 9004(a), 42 U.S.C. 6991c(a), that the state program
includes the elements set forth at section 9004(a)(1) through (9), 42
U.S.C. 6991c(a)(1) through (9), and provides for adequate enforcement
of compliance with UST standards (section 9004(a), 42 U.S.C. 6991c(a)).
Additionally, EPA must find, pursuant to section 9004(b), 42 U.S.C.
6991c(b), that the state program is ``no less stringent'' than the
Federal program in the elements set forth at section 9004(a)(1) through
(7), 42 U.S.C. 6991c(a)(1) through (7). States such as Delaware that
have received final UST program approval from EPA under section 9004 of
RCRA must, in order to retain such approval, revise their approved
programs when the controlling Federal or state statutory or regulatory
authority is changed and EPA determines a revision is required. In
2015, EPA revised the Federal UST regulations and determined that
states must revise their UST programs accordingly.
B. What decisions has EPA made in this rule?
On November 22, 2021, in accordance with 40 CFR 281.51, Delaware
submitted a complete program revision application seeking EPA approval
for its UST program revisions (State Application). Delaware's revisions
correspond to the EPA final rule published on July 15, 2015 (80 FR
41566), which revised the 1988 UST regulations and the 1988 state
program approval (SPA) regulations. As required by 40 CFR 281.20, the
State Application contains the following: a transmittal letter
requesting program 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 EPA and the implementing agency; an Attorney
General's statement in accordance with 40 CFR 281.24 certifying to
applicable State authorities; and copies of all relevant State statutes
and regulations. EPA has reviewed the State Application and determined
that the revisions to Delaware's UST program are no less stringent than
the corresponding Federal requirements in subpart C of 40 CFR part 281,
and that Delaware's program provides for adequate enforcement of
compliance (40 CFR 281.11(b)). Therefore, EPA grants Delaware final
approval to operate its UST program with the changes described in the
State Application, and as outlined below in section I.G. of this
preamble.
C. What is the effect of this approval decision?
This action does not impose additional requirements on the
regulated community because the regulations being approved by this rule
are already effective in Delaware, and they 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 EPA using a direct final rule?
EPA is publishing this direct final rule concurrently with a
proposed rulemaking because EPA views this as a noncontroversial action
and anticipates no significant negative comment. EPA is providing an
opportunity for public comment now.
E. What happens if EPA receives comments that oppose this action?
Along with this direct final rule, EPA is publishing a separate
document in the ``Proposed Rules'' section of this issue of the Federal
Register that serves as the proposal to approve the State's UST program
revisions, providing opportunity for public comment. If EPA receives
significant negative comments that oppose this approval, EPA will
publish a timely withdrawal in the Federal Register informing the
public that the rule will not take effect. EPA will not make any
further decision on the approval of the State program changes until it
considers any significant negative comment received during the comment
period. EPA will address any significant negative comment 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 Delaware previously been approved?
On September 27, 1996, the EPA finalized a rule approving
Delaware's UST program, effective October 28, 1996 (61 FR 50720), to
operate in lieu of the Federal program. EPA has not codified Delaware's
approved program prior to this action.
G. What changes is EPA approving with this action?
On November 22, 2021, in accordance with 40 CFR 281.51, Delaware
submitted a complete application for final approval of its UST program
revisions adopted on December 12, 2019, effective January 11, 2020, and
then amended on January 4, 2021, effective February 21, 2021. EPA has
reviewed Delaware's UST program requirements and determined that such
requirements are no less stringent than the Federal regulations and
that the criteria set forth in 40 CFR part 281 subpart C are met. As
part of the State Application, the Attorney General for Delaware
certified that the laws and regulations of Delaware provide adequate
authority to carry out a program that is ``no less stringent'' than the
Federal requirements in 40 CFR part 281. EPA is relying on this
certification in addition to the analysis submitted by
[[Page 42091]]
Delaware in making our determination. EPA now makes an immediate final
decision, subject to receipt of any significant negative written
comments that oppose this action, that Delaware's UST program revisions
satisfy all of the requirements necessary to qualify for final
approval. Therefore, EPA grants Delaware final approval for the
following program changes:
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Required Federal element Implementing State authority
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40 CFR 281.30, New UST 7 Del. Admin. Code 1351 Part A Sec. Sec.
Systems and Notification. 1.3, 4.1.1, 4.4, 4.6.2, Part B Sec.
Sec. 1.1, 1.3, 1.4, 1.6-1.9, 1.19.2,
1.22, 1.21, 1.25, 1.26, 2.1, 2.22, 2.23,
Part D Sec. Sec. 1.1, 1.3, 1.4, 1.6-
1.8, 1.9.2, 1.19.2, 1.21, 1.22, 1.25,
1.26, Part H Sec. Sec. 1.1.2.1,
1.1.2.2, 2.1.1, 2.2.3, Part I Sec. Sec.
1.1.2.1, 1.1.2.2, 2.2.3.
40 CFR 281.31, Upgrading 7 Del. Admin. Code 1351 Part B Sec. Sec.
Existing UST Systems. 2.15.1, 2.22-2.25, 2.27.1, 2.29.1,
2.34, Part D Sec. 1, Part H Sec. Sec.
1.1.1, 2.2, Part I Sec. Sec. 1.1.1,
2.2
40 CFR 281.32, General 7 Del. Admin. Code 1351 Part A Sec. Sec.
Operating Requirements. 1.3.1.3, 5.1, 13.0, Part B Sec. Sec.
1.1.2, 1.21, 1.22, 1.24, 1.25, 1.28,
1.29.6, 1.29.7, 1.31, 2.1.1, 2.1.2,
2.22, 2.23, 2.25, 2.26, 2.29, 2.30.6,
2.30.7, 2.32, Part D Sec. Sec. 1.1.2,
1.21, 1.22, 1.24, 1.25, 1.28, 1.29, Part
H Sec. Sec. 1.1.2.2, 2.2, 2.3, Part I
Sec. Sec. 1.1.2.2., 2.2, 2.3.
40 CFR 281.33, Release 7 Del. Admin. Code 1351 Part B Sec. Sec.
Detection. 1.9.1, 1.9.2, 1.9.4.5, 1.9.5.2, 1.17-
1.20, 2.9.1, 2.9.2, 2.9.4.5, 2.9.5.2,
2.18-2.21, Part D Sec. Sec. 1.9, 1.18-
1.20, Part H Sec. 2.4, Part I Sec.
2.4.
40 CFR 281.34, Release 7 Del. Admin. Code 1351 Part E Sec. Sec.
Reporting, Investigation, 1.0, 2.0, 4.0.
and Confirmation.
40 CFR 281.35, Release 7 Del. Admin. Code 1351 Part E Sec. Sec.
Response and Corrective 1.6, 3.2, 3.3, 4.0, 5.1-5.6.
Action.
40 CFR 281.36, Out-of-service 7 Del. Admin. Code 1351 Part A Sec. Sec.
Systems and Closure. 4.1.6, 4.8, Part B Sec. Sec. 3.1,
3.2.1-3.2.4, 3.4.1, 3.4.2.7, 4.2, 4.6,
6.2, Part D 2.1, 2.2, 2.4.1, 3.6, 5.2,
Part E, Part H Sec. 2.5, Part I Sec.
2.5.
40 CFR 281.37, Financial 7 Del. Admin. Code 1351 Part F Sec. Sec.
Responsibility for USTs 1.1.6-1.1.8, 1.3.1, 1.3.2, 2.0.
Containing Petroleum.
40 CFR 281.38, Lender 7 Del. Admin. Code 1351 Part A Sec.
Liability. 2.0.
40 CFR 281.39, Operator 7 Del. Admin. Code 1351 Part A Sec.
Training. 10.0.
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The State also demonstrates that its program provides adequate
enforcement of compliance as described in 40 CFR 281.11(b) and part
281, subpart D. Delaware's lead implementing agency, the Department of
Natural Resources and Environmental Control (DNREC), has broad
statutory and regulatory authority with respect to USTs to regulate
installation, operation, maintenance, closure and UST releases, and to
issue orders. The statutory and regulatory authority is found in the
Delaware Code (Del. C.) at Title 7, Chapter 60, Sections 6001-6039 and
Chapter 74, Sections 7401-7425 and in the Delaware Administrative Code
(Del. Admin. Code) Title 7, Chapter 1351.
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 Delaware requirements are considered
``broader in scope'' than the Federal program:
<bullet> Delaware charges fees for UST registration. 7 Del. Code
Sec. Sec. 7409(c), 7418, 7 Del. Admin. Code 1351-A-4.1.4, -4.2.
<bullet> Delaware regulates agricultural and residential USTs of
1,100 gallons or less used for storing motor fuel for noncommercial
purposes. 7 Del. Code Sec. 7404(1), 7 Del. Admin. Code 1351-A-1.2.1.1.
Such USTs are excluded from the Federal definition of UST.
<bullet> Delaware regulates UST systems holding Solid Waste
Disposal Act Subtitle C hazardous wastes or a mixture of such hazardous
wastes and other regulated substances, wastewater treatment tank
systems that are part of a wastewater treatment facility regulated
under section 402 or 307(b) of the Clean Water Act, 42 U.S.C. 1342 and
1317(b), equipment and machinery that contain regulated substances for
operational purposes such as hydraulic lift tanks and electrical
equipment tanks, UST systems whose capacity is 110 gallons or less, and
any emergency spill or overflow containment UST systems that are
expeditiously emptied after use. 7 Del. Admin. Code 1351-A-1.2.1.3 to
.7. Such tanks and tank systems are excluded from the requirements of
the Federal regulations.
<bullet> Delaware does not explicitly exempt from regulation UST
systems that contain de minimis concentrations of regulated substances
as it does for other tanks at 7 Del. Admin. Code 1351-A-1.2.1.
<bullet> Delaware has a licensure/certification program for various
UST handling activities and requires the use of certified persons for
certain UST handling activities (the requirement to use a certified
person for installation is not considered broader in scope). 7 Del.
Code Sec. 7425, 7 Del. Admin. Code 1351 Part G, see also 1351-A-11.0.
<bullet> Delaware regulates a broader class of persons than owners
or operators of USTs. Specifically, Delaware applies release
investigation, response, and corrective action requirements to a
``responsible party'' or ``person,'' and certain spill and overfill
prevention requirements to a ``person.'' 7 Del. Code Sec. Sec. 7401,
7402, 7406(a)-(d), (e) introductory paragraph, 7 Del. Admin. Code 1351-
A-2.0, 1351-B-1.21.1, -1.22.1 and .2, -1.29.7.1, -2.22.1, -2.23.1 and
.2, -2.30.7.1, 1351-D-1.21.1, -1.22.1 and .2, 1351-E-1.2, -1.3, -2.1, -
2.2, -2.4, -3.2, -3.3, -4.0, -5.0, -6.0.
<bullet> Delaware regulates substances not regulated under the
Federal program. Definition of ``regulated substance'' at 7 Del. Admin.
Code 1351-A-2.0.
<bullet> Delaware regulates USTs that contain heating fuel for
consumptive use on the premises where stored. 7 Del. Code Sec. Sec.
7404(2), 7405(a)(2) and (3), 7 Del. Admin. Code 1351 Part C, see also
A-1.2.1.2, -4.5.2, -4.6.2, -10.1.1, -11.0, -12.0, 1351-E-6.2.3, 1351-H-
1.1.2.2, 1351-I-1.1.2.2. Such USTs are excluded from the Federal
definition of UST.
<bullet> Delaware's definition of ``consumptive use'' is limited to
activities that do not result in monetary gain. 7 Del. Admin. Code
1351-A-2.0.
<bullet> Delaware requires all appropriate inquiry during the
purchase of residential property. 7 Del. Admin. Code 1351-E-7.0.
<bullet> Delaware requires owners and operators to follow
Occupational Safety and Health Administration (OSHA)
[[Page 42092]]
standards and certain OSHA permitting requirements. 7 Del. Admin. Code
1351-A-3.1.10, -3.3.8, 1351-B-1.3.2.4, -4.2.1.3, -5.2.1.3, 1351-D-
1.3.2.4, -3.2.1.3, -4.2.1.3.
<bullet> Delaware requires DNREC to approve or deny construction
work within fourteen days of receipt of construction plans and
notification form for repairs, retrofits, or upgrades that require
post-construction testing or site assessment. 7 Del. Admin. Code 1351-
A-4.7.1 and .2.
<bullet> Delaware requires the posting of permits to be kept at the
UST site during construction. 7 Del. Admin. Code 1351-A-4.9.1.
<bullet> Delaware imposes requirements on dispenser system hoses
such as maximum dispenser hose lengths. 7 Del. Admin. Code 1351-B-
1.1.8, -2.1.8.
In accordance with 40 CFR 281.12(a)(3)(ii), the additional coverage
listed above is not part of the federally-approved program and is not
federally enforceable.
II. Codification
A. What is codification?
Codification is the process of placing a state's statutes and
regulations that comprise the state's approved program into the Code of
Federal Regulations (CFR). Section 9004(b) of RCRA, as amended, allows
EPA to approve state UST programs to operate in lieu of the Federal
program. EPA codifies its authorization of state programs in 40 CFR
part 282 and incorporates by reference state statutes and regulations
that 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 Delaware's UST program?
EPA has not previously incorporated by reference Delaware's UST
program. In this document, EPA is amending 40 CFR 282.57 to include the
approved revised program.
C. What codification decisions has EPA made in this rule?
Incorporation by reference: In this rule, EPA is finalizing
regulatory text that includes incorporation by reference. In accordance
with the requirements of 1 CFR 51.5, EPA is finalizing the
incorporation by reference of Delaware statutes and regulations
described in section I.G. of this preamble except for any requirements
that are broader in scope or serve as state enforcement authority. The
specific requirements to be incorporated are set forth below in the
amendments to 40 CFR part 282. EPA has made, and will continue to make,
these documents generally available through <a href="https://www.regulations.gov">https://www.regulations.gov</a>
and at the EPA Region 3 office (see the FOR FURTHER INFORMATION CONTACT
section of this preamble for more information).
One purpose of this rule is to codify Delaware's approved UST
program. The codification reflects the State program that will be in
effect at the time EPA's approved revisions to Delaware's UST program
addressed in this direct final rule become final. If, however, EPA
receives any significant negative comment opposing the proposed
rulemaking then this codification will not take effect, and the State
rules that are approved after EPA considers public comment will be
codified instead. This rule incorporates by reference Delaware's UST
statutes and regulations and clarifies which of these provisions are
included in the approved and federally-enforceable program. By
codifying the approved Delaware program and by amending the CFR, the
public will more easily be able to discern the status of the federally-
approved requirements of the Delaware program.
EPA is incorporating by reference the Delaware approved UST program
in 40 CFR 282.57. Section 282.57(d)(1)(i)(A) and (B) incorporates by
reference for enforcement purposes the State's statutes and
regulations.
Section 282.57 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. These documents are
not incorporated by reference.
D. What is the effect of Delaware's codification on enforcement?
The EPA retains the authority under 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 and to issue orders in approved States. If EPA
determines it will take such actions in Delaware, EPA will rely on
Federal sanctions, Federal inspection authorities, and Federal
procedures rather than the State's authorized analogs to these
provisions. Therefore, EPA is not incorporating by reference such
approved Delaware's procedural and enforcement authorities. Section
282.57(d)(1)(ii) of 40 CFR lists those approved Delaware authorities
that would fall into this category.
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 scope'' 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 a part of the federally-approved program. As a result,
State provisions that are ``broader in scope'' than the Federal program
are not incorporated by reference for purposes of enforcement in part
282. Section 282.57(d)(1)(iii) lists for reference and clarity
Delaware's statutory and regulatory provisions that are ``broader in
scope'' than the Federal program and which are not, therefore, part of
the approved program being codified in this action. Provisions that are
``broader in scope'' cannot be enforced by EPA; the State, however,
will continue to implement and enforce such provisions under State law.
III. Statutory and Executive Order Reviews
This action only applies to Delaware's UST Program requirements
pursuant to RCRA section 9004 and imposes no requirements other than
those imposed by State law. It complies with applicable Executive
Orders (EOs) and statutory provisions as follows:
A. Executive Order 12866 Regulatory Planning and Review, Executive
Order 13563: Improving Regulation and Regulatory Review
The Office of Management and Budget (OMB) has exempted this action
from the requirements of Executive Order 12866 (58 FR 51735, October 4,
1993) and 13563 (76 FR 3821, January 21, 2011). This action approves
and codifies State requirements for the purpose of RCRA section 9004
and imposes no additional requirements beyond those imposed by State
law. Therefore, this action is not subject to review by OMB.
[[Page 42093]]
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). Currently there are no federally recognized tribes in Delaware.
Therefore, 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 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, and
it does not make decisions based on environmental health or safety
risks.
E. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This rule is not subject to Executive Order 13211, ``Actions
Concerning Regulations that Significantly Affect Energy Supply,
Distribution, or Use'' (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), EPA grants a State's application for
approval as long as the State meets the criteria required by RCRA. It
would thus be inconsistent with applicable law for 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, 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
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. EPA believes that this action does
not have disproportionately high and adverse human health or
environmental effects on minority populations, low-income populations
and/or indigenous peoples, because it approves pre-existing State rules
that are no less stringent than existing Federal requirements, and
imposes no additional requirements beyond those imposed by State law.
For these reasons, this 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. 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 September 12, 2022 because it is a direct
final rule.
Authority: This rule is issued under the authority of section
9004 of the Solid Waste Disposal Act of 1965, as amended, 42 U.S.C.
6991c.
List of Subjects in 40 CFR Part 282
Environmental protection, Administrative practice and procedure,
Confidential business information, Hazardous substances, Incorporation
by reference, Insurance, Intergovernmental relations, Oil pollution,
Penalties, Petroleum, Reporting and recordkeeping requirements, State
program approval, Surety bonds, Underground storage tanks, Water
pollution control, Water supply.
Adam Ortiz,
Regional Administrator, EPA Region 3.
For the reasons set forth in the preamble, 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. Amend Sec. 282.2 by revising the second sentence in paragraph (b)
introductory text and paragraph (b)(3) to read as follows:
Sec. 282.2 Incorporation by reference.
* * * * *
(b) * * * For information on the availability of this material at
NARA, email: <a href="/cdn-cgi/l/email-protection#e58397cb8c8b96958086918c8a8ba58b849784cb828a93"><span class="__cf_email__" data-cfemail="6006124e090e1310050314090f0e200e0112014e070f16">[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>. * * *
(3) Region 3 (Delaware, District of Columbia, Maryland,
Pennsylvania, Virginia, West Virginia): Four Penn
[[Page 42094]]
Center, 1600 John F. Kennedy Blvd., Philadelphia, PA 19103-2852; Phone
Number: (215) 814-2738.
* * * * *
0
3. Add Sec. 282.57 to read as follows:
Sec. 282.57 Delaware State-Administered Program.
(a) Delaware 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
Delaware's Department of Natural Resources and Environmental Control,
was approved by EPA pursuant to 42 U.S.C. 6991c and 40 CFR part 281 of
this chapter. EPA approved the Delaware underground storage tank
program on September 27, 1996, and approval was effective on October
28, 1996. A subsequent program revision application was approved by EPA
and became effective on September 12, 2022.
(b) Delaware has primary responsibility for administering and
enforcing its federally-approved underground storage tank program.
However, EPA retains the authority to exercise its inspection and
enforcement authorities under 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 under any other applicable statutory
and regulatory provisions.
(c) To retain program approval, Delaware must revise its approved
program to adopt new changes to the Federal Subtitle I program which
makes it more stringent, in accordance with Section 9004 of RCRA, 42
U.S.C. 6991c, and 40 CFR part 281, subpart E. If Delaware 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) Delaware has final approval for the following elements of its
program application originally submitted to EPA and approved on
September 27, 1996, and effective October 28, 1996, and the program
revision application approved by EPA, effective on September 12, 2022.
(1) State statutes and regulations--(i) Incorporation by reference.
The provisions cited in this paragraph, and listed in Appendix A to
Part 282, 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. The Director of the
Federal Register approves this incorporation by reference in accordance
with 5 U.S.C. 552(a) and 1 CFR part 51. You may obtain copies of
Delaware's regulations and statutes that are incorporated by reference
in this paragraph from DNREC Tanks Compliance Branch, 391 Lukens Sr.
New Castle, DE 19720 or DNREC W&HS Compliance and Permitting Section,
Richardson and Robbins Building, 89 Kings Highway, Dover, DE 19901.
(A) Delaware Statutory Requirements Applicable to the Underground
Storage Tank Program, July 2019.
(B) Delaware Regulatory Requirements Applicable to the Underground
Storage Tank Program, February 2021.
(ii) Legal basis. EPA evaluated the following statutes and
regulations, which are part of the approved program, but which are not
being incorporated by reference for enforcement purposes, and do not
replace Federal authorities:
(A) The statutory provisions include:
(1) Delaware Code, Title 7, Chapter 60, Sections: 6005; 6008; 6009;
6014; 6017; 6018; 6024.
(2) Delaware Code, Title 7, Chapter 74, Sections: 7406(e)(1)-(3),
(f)-(j); 7408; 7411; 7412; 7419.
(3) Delaware Code, Title 29, Chapter 100, Sections: 10001-10007.
(B) The regulatory provisions include:
(1) Delaware Administrative Code, Title 7, Chapter 1351, Sections
A-1.4; A-1.6; A-7.0; A-8.1.1; A-8.1.2; A-8.1.4; A-9.0; E-3.1.
(2) Delaware Rules of Court, Superior Court Rules of Civil
Procedure, Del. Super. Ct. Civ. Rule 24 Intervention; Court of Chancery
Rules, Del. Ct. Ch. Rule 24 Intervention.
(iii) Provisions not incorporated by reference. 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:
(A) Delaware Code, Title 7, Chapter 74 Underground Storage Tank
Act, Sections: 7401 insofar as regulates persons who are not owners or
operators; 7402 definition of ``responsible party'' insofar as
regulates persons who are not owners or operators of USTs; 7404 insofar
as regulates agricultural and residential tanks of 1,100 gallons or
less used for storing motor fuel for noncommercial purposes and tanks
containing heating fuel for consumptive use on the premises where
stored; 7405(a)(2) and (3) insofar as requires registration of tanks
containing heating fuel for consumptive use on the premises where
stored; 7406(a) through introductory paragraph of (e) insofar as
regulates persons who are not owners or operators of USTs; 7409(c)
insofar as requires registration fees; 7418; 7425(a), (b), (d), and
(e); 7425(c) insofar as the use of certified individuals is required
for activities other than installation and insofar as establishes a
certification program.
(B) Delaware Administrative Code, Title 7, Chapter 1351 Underground
Storage Tank Systems, Sections: A-1.2.1 insofar as regulates persons
other than owners or operators, and insofar as regulates agricultural/
farm and residential UST systems of 1,100 gallons or less used for
storing motor fuels for non-commercial purposes, UST systems containing
heating fuel of 1,100 gallons or less for consumptive use on the
premises where stored, UST systems holding hazardous wastes listed or
identified under Subtitle C of the SWDA or a mixture of such hazardous
waste and other regulated substances, wastewater treatment tank systems
that are part of a wastewater treatment facility regulated under
Section 402 or 307(b) of the Clean Water Act, equipment and machinery
containing regulated substances for operational purposes such as
hydraulic lift tanks and electrical equipment tanks, UST systems with a
capacity of 110 gallons or less, any emergency spill or overflow
containment system expeditiously emptied after use, and insofar as
provides no exception for USTs containing de minimis amounts of
regulated substances; A-2.0 definition of ``consumptive use'' insofar
as the term is limited to activities that do not result in monetary
gain, ``regulated substance'' insofar as includes substances not
regulated under the Federal program, and ``responsible party'' insofar
as regulates persons other than owners or operators; A-3.1.10; A-3.3.8;
A-4.1.4 insofar as requires fees; A-4.2; A-4.5.2 and -4.6.2 insofar as
regulates USTs containing heating fuel for consumptive use on the
premises where stored; A-4.7.1 and .2 insofar as requires Delaware to
approve or deny construction work within fourteen days of receipt of
notification form and construction plans; A-4.9.1 insofar as requires
the posting of permits at the UST/construction site; A-10.1.1 insofar
as regulates USTs containing heating fuel for consumptive use on the
premises where stored; A-11.0 insofar as requires the presence of a
certified individual for activities other than installation and insofar
as regulates
[[Page 42095]]
USTs containing heating fuel for consumptive use on the premises where
stored; A-12.0 insofar as regulates USTs containing heating fuel for
consumptive use on the premises where stored; B-1.1.8; B-1.3.2.4; B-
1.21.1 insofar as regulates persons other than owners or operators; B-
1.22.1 and .2 insofar as regulates persons other than owners or
operators; B-1.29.7.1 insofar as regulates persons other than owners or
operators; B-2.1.8; B-2.22.1 insofar as regulates persons other than
owners or operators; B-2.23.1 and .2 insofar as regulates persons other
than owners or operators; B-2.30.7.1 insofar as regulates persons other
than owners or operators; B-4.2.1.3; B-5.2.1.3; Part C; D-1.3.2.4; D-
1.21.1 insofar as regulates persons other than owners or operators; D-
1.22.1 and .2 insofar as regulates persons other than owners or
operators; D-3.2.1.3; D-4.2.1.3; E-1.2, -1.3, -2.1, -2.2, and -2.4
insofar as regulates persons other than owners or operators; E-2.3.1
and -2.4.1.1 insofar as regulates consumptive use heating fuel UST
systems for use on the premises; E-3.2, -3.3, -4.0, -5.0, and -6.0
insofar as regulates persons other than owners or operators; E-6.2.3
insofar as regulates consumptive use heating fuel UST systems for use
on the premises; E-7.0; Part G; H-1.1.2.2 insofar as regulates
consumptive use heating fuel UST systems for use on the premises; I-
1.1.2.2 insofar as regulates consumptive use heating fuel UST systems
for use on the premises.
(2) Statement of legal authority. ``Attorney General's Statement''
signed by the Attorney General on October 12, 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.
(3) Demonstration of procedures for adequate enforcement. The
``Demonstration of Adequate Enforcement Procedures'' submitted as part
of the program revision application for approval on November 22, 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 program revision application for
approval on November 22, 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 3 and Delaware Department of Natural Resources and
Environmental Control, signed by the EPA Regional Administrator on
March 22, 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
4. Amend Appendix A to part 282 by adding an entry in alphabetical
order for Delaware to read as follows:
Appendix A to Part 282--State Requirements Incorporated by Reference in
Part 282 of the Code of Federal Regulations
* * * * *
Delaware
(a) The statutory provisions include:
(1) Code of Delaware, Title 7, Chapter 74, Delaware Underground
Storage Tank Act
Section 7401 Declaration of Purpose, except as to persons who are
not owners or operators of USTs
Section 7402 Definitions, except ``responsible party'' as to persons
who are not owners or operators of USTs
Section 7403 Referenced standards
Section 7404 Exemptions, except as to agricultural and residential
USTs of 1,100 gallons or less used for storing motor fuel for
noncommercial purposes and USTs containing heating fuel for
consumptive use on the premises where stored
Section 7405 Registration by owner, except (a)(2) and (3) as to USTs
containing heating fuel for consumptive use on the premises where
stored
Section 7406 Release of substances prohibited; correction of
substance release; Department intervention, except (a) through the
introductory paragraph of (e) as to persons who are not owners or
operators of USTs; except (e)(1)-(3) and (f)-(j)
Section 7407 Release detection, prevention and correction
regulations
Section 7409 Delaware Underground Petroleum Storage Tank Response
Fund, except (c) as to registration fees
Section 7410 Financial Responsibility
Section 7413 Variances
Section 7414 Leaking Underground Storage Tank Committee
Section 7415 Implementation and reporting requirements
Section 7416 Groundwater risk assessment
Section 7417 Use of Hazardous Substance Cleanup Act funding
Section 7425 Certification of underground storage tank contractors,
except (a), (b), (d), and (e); (c) insofar as requires activities
other than installation be completed by or in the presence of a
certified individual
(2) [Reserved]
(b) The regulatory provisions include:
(1) Delaware Administrative Code, Title 7, Chapter 1351,
Underground Storage Tank Systems
Part A: General Requirements for Underground Storage Tank Systems
Section 1351-A-1.0 General Provisions, except 1.2.1 as to persons
who are not owners or operators of USTs, insofar as regulates UST
systems not regulated under the federal regulations, and insofar as
UST systems that contain de minimis concentrations of regulated
substances are not explicitly exempt from regulation; 1.4; 1.6
Section 1351-A-2.0 Definitions, except ``consumptive use'' insofar
as the term is limited to activities that do not result in monetary
gain; ``regulated substance'' insofar as includes substances not
regulated under the federal program; ``responsible party'' as to
persons who are not owners or operators of USTs
Section 1351-A-3.0 Referenced Standards, except 3.1.10; 3.3.8
Section 1351-A-4.0 Registration and Notification Requirements,
except 4.1.4 as to fees; 4.2; 4.5.2 and 4.6.2 as to USTs containing
heating fuel for consumptive use on the premises where stored; 4.7.1
and 4.7.2 insofar as they require the Department to approve or deny
construction work within fourteen days of receipt of notification
form and construction plans; 4.9.1 insofar as requires permits be
kept at the UST/construction site
Section 1351-A-5.0 Recordkeeping
Section 1351-A-6.0 Alternative Procedures Approval Requirements
Section 1351-A-8.0 Submittal of Confidential Information, except
8.1.1; 8.1.2; 8.1.4
Section 1351-A-10.0 Requirements for Operator Training, except
10.1.1 as to USTs containing heating fuel for consumptive use on the
premises where stored
Section 1351-A-11.0 Use of Certified Contractors, except insofar as
requires a certified individual to be present for activities other
than installation, and as to USTs containing heating fuel for
consumptive use on the premises where stored
Section 1351-A-12.0 Request for No Further Action Determination,
except as to USTs containing heating fuel for consumptive use on the
premises where stored
Section 1351-A-13.0 Additional Compatibility Requirements for
Regulated Substances Containing Ethanol and Biodiesel
Section 1351-A-14.0 Conditions Required for Product Piping Slope
Exemption
Part B: Requirements for Installation, Operation and Maintenance of
Underground Storage Tank Systems Storing Regulated Substance Excluding
Consumptive Use Heating Fuel or Hazardous Substance UST Systems
Section 1351-B-1.0 Installation, Operation and Maintenance
Requirements for UST Systems Storing Regulated Substance Excluding
Consumptive Use Heating Fuel or Hazardous Substance Installed on or
After January 11, 2008, except 1.1.8; 1.3.2.4; 1.21.1, 1.22.1,
1.22.2, and 1.29.7.1
[[Page 42096]]
as to persons who are not owners or operators of USTs
Section 1351-B-2.0 Installation, Operation and Maintenance
Requirements for UST Systems Storing Regulated Substance Installed
Prior to January 11, 2008, Excluding Consumptive Use Heating Fuel or
Hazardous Substance, except 2.1.8; 2.22.1, 2.23.1, 2.23.2, 2.30.7.1
as to persons who are not owners or operators of USTs
Section 1351-B-3.0 Change in Service Requirements for UST Systems
Storing Regulated Substance Excluding Consumptive Use Heating Fuel
or Hazardous Substance
Section 1351-B-4.0 Removal or Closure in Place Requirements for UST
Systems Storing Regulated Substance excluding Consumptive Use
Heating Fuel or Hazardous Substance, except 4.2.1.3
Section 1351-B-5.0 Change In Substance Stored Requirements for UST
Systems Storing Regulated Substance excluding Consumptive Use
Heating Fuel or Hazardous Substance, except 5.2.1.3
Section 1351-B-6.0 Requirements for Empty UST Systems Storing
Regulated Substance excluding Consumptive Use Heating Fuel or
Hazardous Substance
Part D: Requirements for Installation, Operation and Maintenance of
Underground Storage Tank Systems Storing Hazardous Substance
Section 1351-D-1.0 Installation, Operation and Maintenance
Requirements for UST Systems Storing Hazardous Substance, except
1.3.2.4; 1.21.1, 1.22.1 and 1.22.2 as to persons who are not owners
or operators of USTs
Section 1351-D-2.0 Change In Service Requirements for UST Systems
Storing Hazardous Substance
Section 1351-D-3.0 Removal or Closure in Place Requirements for UST
Systems Storing Hazardous Substance, except 3.2.1.3
Section 1351-D-4.0 Change In Substance Stored Requirements for UST
Systems Storing Hazardous Substance, except 4.2.1.3
Section 1351-D-5.0 Requirements for Empty UST Systems Storing
Hazardous Substance
Part E: Requirements for Reporting, Release Investigation, Remedial
Action and No Further Action Determinations for Underground Storage
Tank Systems
Section 1351-E-1.0 Reporting Requirements, except 1.2 and 1.3 as to
persons who are not owners or operators of USTs
Section 1351-E-2.0 Indicated Release Investigation Requirements,
except 2.1, 2.2, and 2.4 as to persons who are not owners or
operators of USTs; 2.3.1 and 2.4.1.1 as to USTs containing heating
fuel for consumptive use on the premises where stored
Section 1351-E-3.0 Release Response Requirements, except 3.1; 3.2
and 3.3 as to persons who are not owners or operators of USTs
Section 1351-E-4.0 Hydrogeologic Investigation Requirements, except
as to persons who are not owners or operators of USTs
Section 1351-E-5.0 Remedial Action Requirements, except as to
persons who are not owners or operators of USTs
Section 1351-E-6.0 No Further Action Requirements, except as to
persons who are not owners or operators of USTs; 6.2.3 as to USTs
containing heating fuel for consumptive use on the premises where
stored
Part F: Financial Responsibility Requirements for UST Systems
Section 1351-F-1.0 Financial Responsibility Requirements for UST
Systems
Section 1351-F-2.0 Financial Responsibility Mechanisms
Sections 1351-F-3.1 to -3.18 Forms A through R
Part H: Requirements for Installation, Operation and Maintenance of
Field-Constructed Underground Storage Tank Systems
Section 1351-H-1.0 General Requirements, except 1.1.2.2 as to USTs
containing heating fuel for consumptive use on the premises where
stored
Section 1351-H-2.0 Additions, Exceptions, and Alternatives for UST
systems with Field-Constructed Tanks
Part I: Requirements for Installation, Operation and Maintenance of
Airport Hydrant Fuel Systems
Section 1351-I-1.0 General Requirements, except 1.1.2.2 as to USTs
containing heating fuel for consumptive use on the premises where
stored
Section 1351-I-2.0 Additions, Exceptions, and Alternatives for
Airport Hydrant Fuel Systems
(2) [Reserved]
* * * * *
[FR Doc. 2022-15097 Filed 7-13-22; 8:45 am]
BILLING CODE 6560-50-P
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</html>Indexed from Federal Register on July 14, 2022.
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.