[Federal Register Volume 61, Number 151 (Monday, August 5, 1996)]
[Proposed Rules]
[Pages 40592-40595]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19845]


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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 281

[FRL-5546-8]


Delaware; Approval of State Underground Storage Tank Program

AGENCY: Environmental Protection Agency.

ACTION: Notice of tentative determination on Delaware's application for 
approval of underground storage tank program, public hearing and public 
comment period.

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SUMMARY: The State of Delaware has applied for approval of its 
underground storage tank program under Subtitle I of the Resource 
Conservation and Recovery Act (RCRA). The Environmental Protection 
Agency (EPA) has reviewed the State of Delaware's application and has 
made the tentative decision that the State of Delaware's underground 
storage tank program satisfies all of the requirements necessary to 
qualify for approval. The State of Delaware's application for approval 
is available for public review and comment. A public hearing will be 
held to solicit comments on the application unless insufficient public 
interest is expressed.

DATES: Unless insufficient public interest is expressed in holding a 
hearing, a public hearing will be held on September 17, 1996. However, 
EPA reserves the right to cancel the public hearing if sufficient 
public interest in a hearing is not communicated to EPA in writing by 
September 9, 1996. EPA will determine by September 13, 1996, whether 
there is significant interest to

[[Page 40593]]

hold the public hearing. The State of Delaware will participate in any 
public hearing held by EPA on this subject. All written comments on the 
State of Delaware's application for program approval must be received 
by 4:30 p.m. on September 9, 1996.

ADDRESSES: Copies of the State of Delaware's application for program 
approval are available between 8:30 a.m. to 4:30 p.m. at the following 
addresses for inspection and copying:

Delaware Department of Natural Resources and Environmental Control, 
Division of Air and Waste Management, 89 King Highway, Dover, Delaware 
19903; Contact: Dave Small (302) 739-4506
Delaware Department of Natural Resources and Environmental Control, 
Underground Storage Tank Branch, 715 Grantham Avenue, New Castle, 
Delaware 19720; Contact: Kathleen Calloway (302) 323-4588
Delaware Department of Natural Resources and Environmental Control, 
Division of Water Resources, 317 North Dupont Highway, Georgetown, 
Delaware 19947; Contact: Lisa Wood (302) 856-4561
United States Environmental Protection Agency, Docket Clerk, Office of 
Underground Storage Tanks, 1235 Jefferson Davis Highway, Arlington, VA 
22202, (703) 603-9231
United States Environmental Protection Agency, Region III Library, 841 
Chestnut Building, Philadelphia, Pennsylvania 19107; Contact: Diane 
McCreary, (215) 566-5353

Written comments should be sent to: Joanne T. Cassidy, Program Manager, 
State Programs Branch, (3HW60), U.S. EPA Region III, 841 Chestnut 
Building, Philadelphia, Pennsylvania 19107, (215) 566-3381.
    Anyone who wishes to learn whether or not the public hearing on the 
State's application has been cancelled should telephone after September 
13, 1996, the EPA Program Manager listed above or telephone Kathleen 
Calloway, Chief, UST Branch, Department of Natural Resources and 
Environmental Control, 715 Grantham Avenue, New Castle, Delaware 19720, 
(302) 323-4588.
    Unless insufficient public interest is expressed, EPA will hold a 
public hearing on the State's application for program approval on 
September 17, 1996, at 7:00 p.m. at the Ommelanden Hunter Safety 
Training Range Complex, 1205 River Road, New Castle, Delaware 19720.

FOR FURTHER INFORMATION CONTACT: Joanne T. Cassidy, State Programs 
Branch (3HW60), U.S. EPA Region III, 841 Chestnut Building, 
Philadelphia, Pennsylvania 19107, (215) 566-3381.

SUPPLEMENTARY INFORMATION:

A. Background

    Section 9004 of the Resource Conservation and Recovery Act (RCRA) 
authorizes EPA to approve State underground storage tank programs to 
operate in the State in lieu of the Federal underground storage tank 
(UST) program. EPA may approve a State program if the Agency finds 
pursuant to section 9004(b), 42 U.S.C. 6991c(b), that the State 
program: is ``no less stringent'' than the Federal program in all seven 
elements set forth at section 9004(a)(1) through (7), 42 U.S.C. 
6991c(a)(1) through (7), includes the notification requirements of 
section 9004(a)(8), 42 U.S.C. 6991c(a)(8) and provides for adequate 
enforcement of compliance with UST standards (section 9004(a), 42 
U.S.C. 6991c(a)).

B. State of Delaware

    The Delaware Department of Natural Resources and Environmental 
Control (DNREC), is the implementing agency for UST activities in the 
State. The Underground Storage Tank Branch of DNREC is dedicating a 
substantial effort to remediate, prevent and control UST-related 
groundwater contamination. The Underground Storage Tank Branch 
maintains a strong field presence and works closely with the regulated 
community to ensure compliance with the regulatory requirements.
    The scope of the Delaware UST Program extends beyond the scope of 
the Federal UST Program as follows:
    (1) In addition to the approximately 7,427 USTs covered by both the 
Federal and Delaware programs, Delaware also regulates an estimated 
additional 1,360 USTs containing heating fuel. Heating fuel tanks 
greater than 1100 gallons were required to be registered with the State 
within 180 days of July 20, 1988.
    (2) Delaware requires payment of an annual tank registration fee. 
Delaware also requires the display of a registration certification at 
all covered UST facilities at all times.
    (3) Delaware's regulations forbid fuel distributors from depositing 
regulated substances into unregistered UST systems.
    (4) Delaware requires that UST contractors be certified to install, 
retrofit, remove, or reline UST systems used to store regulated 
substances.
    (5) Delaware requires submission and approval of a site plan before 
any new tank installation can take place. A site survey is required 
prior to installation, and every stage of the installation must be 
documented with photographs. Delaware prohibits the installation of 
asphalt-coated tanks. If a new UST system is installed near an old tank 
field, the number of release detection options may be limited by the 
Department.
    (6) Delaware requires a 10-day notice in advance of all UST 
retrofits/upgrades.
    (7) The Delaware Underground Storage Tank Response Fund may be used 
by the Department for the investigation and remediation of petroleum 
underground storage tank releases. Delaware may recover expenditures 
from the Fund for corrective action.
    (8) Delaware allows for limited reimbursement of expenses 
associated with the rehabilitation of certain contaminated sites.
    (9) The Small Retail Gasoline Station Assistance Loan Fund offers 
low-interest loans to small retail gasoline station owners and 
operators to assist in financing upgrades to their UST systems.
    Delaware's requirements which exceed the stringency of the Federal 
regulations include the following:
    (1) Delaware allows for civil penalties up to $25,000 for each day 
of violation.
    (2) Delaware prohibits installation of an UST system unprotected 
from corrosion at any site.
    (3) Delaware requires tanks installed after July 12, 1985, to meet 
the new tank performance standards.
    (4) Delaware requires notification of the National Response Center 
in the event of a release of petroleum that causes a visible sheen on 
surface waters.
    (5) Inventory control must be performed in combination with another 
approved leak detection method for UST systems, with the exception of 
heating oil tanks. A weekly water check must be performed with the 
result made part of the inventory record. The monthly throughput 
reconciliation standard is the same as the Federal standard; however, 
daily losses of five percent or more of the daily product dispensed 
must be investigated.
    (6) If tank testing is selected as a method of leak detection, the 
tank must be tested yearly regardless of the age of the tank.
    (7) With the exception of used oil tanks less than 2,000 gallons, 
Delaware does not allow manual tank gauging as an alternate leak 
detection method.
    (8) Delaware requires secondary containment tank systems or 
continuous electronic leak detection in areas where the protection of 
specific water resources has been deemed necessary.
    (9) Existing USTs were required to be retrofitted with a spill 
containment

[[Page 40594]]

device, an overfill protection method, fill line protection and to have 
leak detection performed depending on tank age over a four-year period 
ending December 31, 1990.
    (10) Fill line protection is required on all USTs. Delaware 
requires all fill lines to be clearly identified by type of product 
stored and the size of the tank.
    (11) Delaware requires the Corrective Action Work Plan to be signed 
by a professional geologist and/or engineer registered in the State.
    (12) Delaware requires either site closure or active corrective 
action after two years of passive corrective action.
    (13) Delaware requires existing hazardous substance USTs to meet 
secondary containment standards by January 1, 1998.
    The Delaware Department of Natural Resources and Environmental 
Control submitted an official application for approval on November 20, 
1995. Prior to its submission, the State of Delaware provided an 
opportunity for public notice and comment in the development of its 
underground storage tank program, as required by 40 CFR 281.50(b). EPA 
has reviewed Delaware's application, and has tentatively determined 
that the State's program meets all of the requirements necessary to 
qualify for final approval. However, EPA intends to review all timely 
public comments prior to making a final decision on whether to grant 
approval to the State of Delaware to operate its program in lieu of the 
Federal program.
    In accordance with Section 9004 of RCRA, 42 U.S.C. 6991c, and 40 
CFR 281.50(e), the Agency will hold a public hearing on its tentative 
decision on September 17, 1996, at 7:00 p.m. at the Ommelanden Hunter 
Range Complex, 1205 River Road, New Castle, Delaware 19720, unless 
insufficient public interest is expressed. The public may also submit 
written comments on EPA's tentative determination until September 9, 
1996. Copies of Delaware's application are available for inspection and 
copying at the locations indicated in the ADDRESS section of this 
notice.
    EPA will consider all public comments on its tentative 
determination received at the public hearing, if a hearing is held, and 
during the public comment period. Issues raised by those comments may 
be the basis for a decision to deny approval to the State of Delaware. 
EPA will give notice of its final decision in the Federal Register; the 
notice will include a summary of the reasons for the final 
determination and a response to all significant comments.

Compliance With Executive Order 12866

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

Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of the UMRA generally requires EPA to identify 
and consider a reasonable number of regulatory alternatives and adopt 
the least costly, most cost-effective or least burdensome alternative 
that achieves the objectives of the rule. The provisions of section 205 
do not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including tribal governments, it must have developed under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments, enabling 
officials of affected small governments to have meaningful and timely 
input in the development of EPA regulatory proposals with significant 
Federal intergovernmental mandates, and informing, educating, and 
advising small governments on compliance with the regulatory 
requirements.
    Today's rule contains no Federal mandates for State, local or 
tribal governments or the private sector. The Act excludes from the 
definition of a ``Federal mandate'' duties that arise from 
participation in a voluntary Federal program, except in certain cases 
where a ``federal intergovernmental mandate'' affects an annual federal 
entitlement program of $500 million or more that are not applicable 
here. Delaware's request for approval of an underground storage tank 
program is voluntary and imposes no Federal mandate within the meaning 
of the Act. Rather, by having its underground storage tank program 
approved, the State will gain the authority to implement a federally 
authorized program within its jurisdiction, in lieu of EPA thereby 
eliminating duplicative State and Federal requirements. If a State 
chooses not to seek authorization for administration of an underground 
storage tank program under RCRA Subtitle I, RCRA underground storage 
tank regulation is left to EPA.
    In any event, EPA has determined that this rule does not contain a 
Federal mandate that may result in expenditures of $100 million or more 
for State, local, and tribal governments in the aggregate, or the 
private sector in any one year. EPA does not anticipate that the 
approval of Delaware's underground storage tank program referenced in 
today's notice will result in annual costs of $100 million or more. 
EPA's approval of state programs generally may reduce, not increase, 
compliance costs for the private sector since the State, by virtue of 
the approval, may now administer the program in lieu of EPA and 
exercise primary enforcement for those regulations for which they have 
been authorized. Hence, owners and operators of underground storage 
tanks generally no longer face dual Federal and State compliance 
requirements, thereby reducing overall compliance costs. Thus, today's 
rule is not subject to the requirements of sections 202 and 205 of the 
UMRA.
    EPA has determined that this rule contains no regulatory 
requirements that might significantly or uniquely affect small 
governments. The Agency recognizes that small governments may own and/
or operate underground storage tanks or that will become subject to the 
requirements of an approved State underground storage tank program. 
However, such small governments which own and/or operate underground 
storage tanks are already subject to the requirements in 40 CFR part 
280 and are not subject to any additional significant or unique 
requirements by virtue of this program approval. Once EPA authorizes a 
State to administer its own underground storage tank program and any 
revisions to that program, these same small governments will be able to 
own and operate their underground storage tanks under the approved 
State program, in lieu of the Federal program.

Certification Under the Regulatory Flexibility Act

    EPA has determined that this authorization will not have a 
significant

[[Page 40595]]

economic impact on a substantial number of small entities. EPA 
recognizes that small entities may own and/or operate USTs that will 
become subject to the requirements of an approved state UST program. 
However, since such small entities which own and/or operate USTs are 
already subject to the requirements in 40 CFR Part 280, this 
authorization does not impose any additional burdens on these small 
entities. This is because EPA's authorization would result in an 
administrative change (i.e., whether EPA or the state administers the 
UST program in that state), rather than result in a change in the 
substantive requirements imposed on small entities. Once EPA authorizes 
a state to administer its own UST program and any revisions to that 
program, these same small entities will be able to own and operate 
their USTs under the approved state program, in lieu of the federal 
program. Moreover, this authorization, in approving a state program to 
operate in lieu of the federal program, eliminates duplicative 
requirements for owners and operators of USTs in that particular state.
    Therefore, EPA provides the following certification under the 
Regulatory Flexibility Act, as amended by the Small Business Regulatory 
Enforcement Fairness Act. Pursuant to the provision at 5 U.S.C. 605(b), 
I hereby certify that this authorization will not have a significant 
economic impact on a substantial number of small entities. This 
authorization effectively approves the Delaware program to operate in 
lieu of the federal program, thereby eliminating duplicative 
requirements for owners and operators of USTs in the state. It does not 
impose any new burdens on small entities. This rule, therefore, does 
not require a regulatory flexibility analysis.

List of Subjects in 40 CFR Part 281

    Environmental protection, Administrative Practice and Procedure, 
Hazardous Materials, State Program Approval, Underground Storage Tanks.

    Authority: This notice is issued under the authority of Section 
9004 of the Resource Conservation and Recovery Act as amended 42 
U.S.C. 6991c.

    Dated: July 26, 1996.
W. Michael McCabe,
Regional Administrator.
[FR Doc. 96-19845 Filed 8-2-96; 8:45 am]
BILLING CODE 6560-50-P