[Federal Register Volume 60, Number 51 (Thursday, March 16, 1995)]
[Rules and Regulations]
[Pages 14334-14337]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-6404]



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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 282

[FRL-5167-5]


Underground Storage Tank Program: Approved State Program for 
South Dakota

AGENCY: Environmental Protection Agency (EPA).

ACTION: Immediate final rule.

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SUMMARY: The Resource Conservation and Recovery Act of 1976, as amended 
(RCRA), authorizes the U.S. Environmental Protection Agency (EPA) to 
grant approval to states to operate their underground storage tank 
programs in lieu of the federal program. 40 CFR part 282 codifies EPA's 
decision to approve state programs and incorporates by reference those 
provisions of the state statutes and regulations that will be subject 
to EPA's inspection and enforcement authorities [[Page 14335]] under 
sections 9005 and 9006 of RCRA subtitle I and other applicable 
statutory and regulatory provisions. This rule codifies in part 282 the 
prior approval of South Dakota's underground storage tank program and 
incorporates by reference appropriate provisions of state statutes and 
regulations.

DATES: This regulation is effective May 15, 1995, unless EPA publishes 
a prior Federal Register notice withdrawing this immediate final rule. 
All comments on the codification of South Dakota's underground storage 
tank program must be received by the close of business April 17, 1995. 
The incorporation by reference of certain publications listed in the 
regulations is approved by the Director of the Federal Register, as of 
May 15, 1995, in accordance with 5 U.S.C. 552(a).

ADDRESSES: Comments may be mailed to Jo Taylor, 8HWM-WM, Hazardous 
Waste Management Division, Underground Storage Tank Program, U.S. EPA 
Region 8, 999-18th Street, Suite 500, Denver, Colorado, 80202-2466. 
Comments received by EPA may be inspected in the EPA Library, Suite 
144, at the above address from 12:00 p.m. to 4:00 p.m., Monday through 
Friday, excluding federal holidays.

FOR FURTHER INFORMATION CONTACT: Jo Taylor, 8HWM-WM, Underground 
Storage Tank Program, U.S. EPA Region 8, 999-18th Street, Suite 500, 
Denver, Colorado, 80202-2466. Phone: (303) 293-1511.

SUPPLEMENTARY INFORMATION:

Background

    Section 9004 of the Resource Conservation and Recovery Act of 1976, 
as amended, (RCRA), 42 U.S.C. 6991c, allows the U.S. Environmental 
Protection Agency to approve state underground storage tank programs to 
operate in the state in lieu of the federal underground storage tank 
program. EPA is publishing, simultaneously a Federal Register document 
announcing its decision to grant approval to South Dakota elsewhere in 
this issue of the Federal Register. Approval will be effective on May 
15, 1995.
    EPA codifies its approval of State programs in 40 CFR part 282 and 
incorporates by reference therein the state statutes and regulations 
that will be subject to EPA's inspection and enforcement authorities 
under sections 9005 and 9006 of subtitle I of RCRA, 42 U.S.C. 6991d and 
6991e, and other applicable statutory and regulatory provisions. 
Today's rulemaking codifies EPA's approval of the South Dakota 
underground storage tank program. This codification reflects the state 
program in effect at the time EPA grants South Dakota approval under 
section 9004(a), 42 U.S.C. 6991c(a) for its underground storage tank 
program. Notice and opportunity for comment were provided earlier on 
the Agency's decision to approve the South Dakota program, and EPA is 
not now reopening that decision nor requesting comment on it.
    This effort provides clear notice to the public of the scope of the 
approved program in each state. By codifying the approved South Dakota 
program and by amending the Code of Federal Regulations whenever a new 
or different set of requirements is approved in South Dakota, the 
status of federally approved requirements of the South Dakota program 
will be readily discernible. Only those provisions of the South Dakota 
underground storage tank program for which approval has been granted by 
EPA will be incorporated by reference for enforcement purposes.
    To codify EPA's approval of South Dakota's underground storage tank 
program, EPA has added Sec. 282.91 to title 40 of the CFR. Section 
282.91 incorporates by reference for enforcement purposes the State's 
statutes and regulations. Section 282.91 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 underground storage tank program under subtitle 
I of RCRA.
    The Agency 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 in approved states. With respect to such an 
enforcement action, the Agency will rely on federal sanctions, federal 
inspection authorities, and federal procedures rather than the state 
authorized analogs to these provisions. Therefore, the approved South 
Dakota enforcement authorities will not be incorporated by reference. 
Section 282.91 lists those approved South Dakota authorities that would 
fall into this category.
    The public also needs to be aware that some provisions of the 
State's underground storage tank program are not part of the federally 
approved state program. These non-approved provisions are not part of 
the RCRA subtitle I program because they are ``broader in scope'' than 
subtitle I of RCRA. See 40 CFR 281.12(a)(3)(ii). As a result, state 
provisions which are ``broader in scope'' than the federal program are 
not incorporated by reference for purposes of enforcement in part 282. 
Section 282.91 of the codification simply lists for reference and 
clarity the South Dakota statutory and regulatory provisions which are 
``broader in scope'' than the federal program and which are not, 
therefore, part of the approved program being codified today. ``Broader 
in scope'' provisions cannot be enforced by EPA; the State, however, 
will continue to enforce such provisions.

Certification Under the Regulatory Flexibility Act

    This rule codifies the decision already made, published elsewhere 
in this issue of the Federal Register, to approve the South Dakota 
underground storage tank program and thus has no separate effect. 
Therefore, this rule does not require a regulatory flexibility 
analysis. Thus, pursuant to section 605(b) of the Regulatory 
Flexibility Act, 5 U.S.C. 605(b), I hereby certify that this rule will 
not have a significant economic impact on a substantial number of small 
entities.

Compliance With Executive Order 12866

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

Paperwork Reduction Act

    Under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., Federal 
agencies must consider the paperwork burden imposed by any information 
request contained in a proposed or final rule. This rule will not 
impose any information requirements upon the regulated community.

List of Subjects in 40 CFR Part 282

    Environmental protection, Hazardous substances, Incorporation by 
reference, Intergovernmental relations, State program approval, 
Underground storage tanks, Water pollution control.

    Dated: February 23, 1995.
Kerrigan Clough,
Acting Regional Administrator.

    For the reasons set forth in the preamble, 40 CFR part 282 is 
proposed to be amended as follows:

PART 282--APPROVED UNDERGROUND STORAGE TANK PROGRAMS

    1. The authority citation for part 282 continues to read as 
follows:

    Authority: 42 U.S.C. 6912, 6991c, 6991d, and 6991e. 
[[Page 14336]] 

Subpart B--Approved State Programs

    2. Subpart B is amended by adding Sec. 282.91 to read as follows:


Sec. 282.91  South Dakota State-Administered Program.

    (a) The State of South Dakota 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 South Dakota Department of Environment and Natural 
Resources, was approved by EPA pursuant to 42 U.S.C. 6991c and part 281 
of this chapter. EPA approved the South Dakota program on March 16, 
1995 and it was effective on May 15, 1995.
    (b) South Dakota has primary responsibility for enforcing its 
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, as well as 
under other statutory and regulatory provisions.
    (c) To retain program approval, South Dakota 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 South Dakota 
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) South Dakota has final approval for the following elements 
submitted to EPA in South Dakota's program application for final 
approval and approved by EPA on [insert date of publication]. Copies 
may be obtained from the Underground Storage Tank Program, South Dakota 
Department of Environment and Natural Resources, 523 East Capitol, 
Pierre, South Dakota 57501.
    (1) State statutes and regulations. (i) The provisions cited in 
this paragraph are incorporated by reference as part of the underground 
storage tank program under subtitle I of RCRA, 42 U.S.C. 6991 et seq.
    (A) South Dakota Statutory Requirements Applicable to the 
Underground Storage Tank Program, 1995.
    (B) South Dakota Regulatory Requirements Applicable to the 
Underground Storage Tank Program, 1995.
    (ii) The following statutes are part of the approved state program, 
although not incorporated by reference herein for enforcement purposes.
    (A) The statutory provisions include: South Dakota Codified Law, 
Water Pollution Control, Chapter 34A-2, Sections 46 and 48, Sections 72 
through 75, Chapters 34A-10 and 34A-12.
    (iii) The following statutory provisions 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.
    (A) South Dakota statutes Annotated, Chapter 34A-2, Section 100, 
insofar as it applies to above ground stationary storage tanks, Section 
102, insofar as it applies to installation of above ground stationary 
storage tanks, Section 101, insofar as it applies to corrective action 
for above ground stationary storage tanks.
    (2) Statement of legal authority. (i) ``Attorney General's 
Statement for Final Approval'', signed by the Attorney General of South 
Dakota on June 17, 1992, 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.
    (ii) Letter from the Attorney General of South Dakota to EPA, June 
17, 1992, 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 complete application in October 1993, 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 in June 1992, 
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 VIII and the South Dakota Department of Environment and 
Natural Resources, signed by the EPA Regional Administrator on February 
23, 1995, 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. Appendix A to part 282 is amended by adding in alphabetical 
order ``South Dakota'' and its listing.

Appendix A to Part 282--State Requirements Incorporated by Reference in 
Part 282 of the Code of Federal Regulations

* * * * *

South Dakota

    (a) The statutory provisions include South Dakota Statutes 
Annotated, Chapter 34A-2, Sections 98 and 99. Underground Storage 
Tanks:

Section 98  Underground storage tanks--Definitions.
Section 99  Underground storage tanks--Adoption of Rules--Violation.

    (b) The regulatory provisions include State of South Dakota 
Administrative Rules, Chapter 74:03:28, Underground Storage Tanks, 
Department of Environment and Natural Resources, June 24, 1992:

Section 74:03:28:01  Definitions.
Section 74:03:28:02  Performance standards for new UST systems--
General requirements.
Section 74:03:28:03  Upgrading of existing UST systems--General 
requirements and deadlines.
Section 74:03:28:04  Notification requirements for UST systems.
Section 74:03:28:05  Spill and overfill control.
Section 74:03:28:06  Operation and maintenance of cathodic 
protection.
Section 74:03:28:07  Compatibility.
Section 74:03:28:08  Repairs allowed--general requirements.
Section 74:03:28:09  Maintenance and availability of records.
Section 74:03:28:10  Release detection for all UST systems--general 
requirements and deadlines.
Section 74:03:28:11  Release detection requirements for petroleum 
UST systems.
Section 74:03:28:12  Release detection requirements for pressure 
piping.
Section 74:03:28:13  Recordkeeping.
Section 74:03:28:14  Release notification plan.
Section 74:03:28:15  Reported of suspected releases.
Section 74:03:28:16  Release investigation and confirmation.
Section 74:03:28:17  Off-site impacts and source investigation.
Section 74:03:28:18  General requirements for corrective action for 
releases from UST systems.
Section 74:03:28:19  Initial abatement requirements and procedures 
for releases from UST systems.
Section 74:03:28:20  Free product removal.
Section 74:03:28:21  Additional site investigation for releases from 
UST systems.
Section 74:03:28:22  Soil and groundwater cleanup for releases from 
UST systems.
Section 74:03:28:23  Reporting of releases from UST systems. 
[[Page 14337]] 
Section 74:03:28:28  Reporting of hazardous substance releases from 
UST systems.
Section 74:03:28:29  Temporary removal from use.
Section 74:03:28:30  Temporary closure.
Section 74:03:28:31  Permanent closure.
Section 74:03:28:32  Postclosure requirements.
Section 74:03:29:01  Applicability.
Section 74:03:29:23  Definitions.
Section 74:03:29:24  Financial responsibility rules.

[FR Doc. 95-6404 Filed 3-15-95; 8:45 am]
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