[Federal Register Volume 69, Number 114 (Tuesday, June 15, 2004)]
[Rules and Regulations]
[Pages 33312-33315]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-13283]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 282

[FRL-7658-3]


Underground Storage Tank Program: Approved State Program for 
Virginia

AGENCY: Environmental Protection Agency (EPA).

ACTION: Immediate final rule.

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SUMMARY: The Resource Conservation and Recovery Act of 1976, as amended 
(RCRA), authorizes the EPA to grant approval to States to operate their 
underground storage tank programs in lieu of the Federal program. The 
Code of Federal Regulations (CFR) contains a codification of EPA's 
decision to approve State programs and incorporates by reference those 
provisions of the State statutes and regulations that will be subject 
to EPA's inspection and enforcement authorities in accordance with 
sections 9005 and 9006 of RCRA Subtitle I and other applicable 
statutory and regulatory provisions. This rule codifies the prior 
approval of the Commonwealth of Virginia's (Commonwealth or State) 
underground storage tank program and incorporates by reference 
appropriate provisions of State statutes and regulations.

DATES: This regulation is effective August 16, 2004, unless EPA 
receives adverse written comments by the close of business July 15, 
2004. If EPA receives adverse written comments, we will publish a 
timely withdrawal in the Federal Register. The incorporation by 
reference of certain publications listed in the regulations is approved 
by the Director of the Federal Register, as of August 16, 2004, in 
accordance with 5 U.S.C. 552(a) and 1 CFR part 51.

ADDRESSES: Send written comments to Ms. Rosemarie Nino, Mailcode 3WC21, 
RCRA State Programs Branch, U.S. EPA Region III, 1650 Arch Street, 
Philadelphia, PA 19103-2029. Comments may also be submitted 
electronically through the Internet to: [email protected] or by 
facsimile at (215) 814-3163. You can examine copies of the codification 
materials during normal business hours at the following location: EPA 
Region III, Library, 2nd Floor, 1650 Arch Street, Philadelphia, PA 
19103-2029, Phone Number (215) 814-5254.

FOR FURTHER INFORMATION CONTACT: Ms. Rosemarie Nino, Mailcode 3WC21, 
RCRA State Programs Branch, U.S. EPA Region III, 1650 Arch Street, 
Philadelphia, PA 19103-2029. Phone: (215) 814-3377.

SUPPLEMENTARY INFORMATION:

Background

    Section 9004 of RCRA, 42 U.S.C. 6991c, allows the EPA to approve a 
State underground storage tank program to operate in the State in lieu 
of the Federal underground storage tank program. EPA published a notice 
in the Federal Register announcing its decision to grant approval to 
Virginia on September 28, 1998, and approval was effective on October 
28, 1998 (63 FR 51528).
    EPA codifies its approval of a State program in 40 CFR part 282 and 
incorporates by reference therein the State's statutes and regulations 
that make up the approved program which is federally-enforceable in 
accordance with sections 9005 and 9006 of Subtitle I of RCRA, 42 U.S.C. 
6991d and 6991e, and other applicable statutory and regulatory 
provisions. Today's rulemaking codifies EPA's approval of Virginia's 
underground storage tank program. This codification reflects the State 
program in effect at the time EPA granted Virginia approval, in 
accordance with RCRA section 9004(a), 42 U.S.C. 6991c(a), for its 
underground storage tank program. Notice and opportunity for comment 
were provided earlier on the Agency's decision to approve the Virginia 
program, and EPA is not now reopening that decision nor requesting 
comment on it.
    To codify EPA's approval of Virginia's underground storage tank 
program, EPA has added Sec.  282.96 to title 40 of the CFR. 40 CFR 
282.96(d)(1)(i) incorporates by reference the State's statutes and 
regulations that make up the approved program which is federally-
enforceable. 40 CFR 282.96 also describes the Attorney General's 
Statement, the Demonstration of Adequate Enforcement Procedures, the 
Program Description, and the Memorandum of

[[Page 33313]]

Agreement, which were evaluated as part of the approval process of the 
underground storage tank program, in accordance with Subtitle I of 
RCRA.
    EPA retains the authority in accordance with sections 9005 and 9006 
of Subtitle I of RCRA, 42 U.S.C. 6991d and 6991e, and other applicable 
statutory and regulatory provisions, to undertake inspections and 
enforcement actions in approved States. With respect to such an 
enforcement action, EPA will rely on Federal sanctions, Federal 
inspection authorities, and Federal procedures rather than the State-
authorized analogues to these provisions. Therefore, Virginia's 
inspection and enforcement authorities are not incorporated by 
reference, nor are they part of Virginia's approved state program which 
operates in lieu of the Federal program. These authorities, however, 
are listed in 40 CFR 282.96(d)(1)(ii) for informational purposes, and 
also because EPA considered them in determining the adequacy of 
Virginia's enforcement authority. Virginia's authority to inspect and 
enforce the State's underground storage tank requirements continues to 
operate independently under State law.
    Some provisions of the State's underground storage tank program are 
not part of the federally-approved State program. These non-approved 
provisions are not part of the RCRA Subtitle I program because they are 
``broader in scope'' than Subtitle I of RCRA. See 40 CFR 
281.12(a)(3)(ii). As a result, State provisions which are ``broader in 
scope'' than the Federal program are not incorporated by reference for 
purposes of Federal enforcement in 40 CFR part 282. Section 282.96 of 
the codification simply lists for reference and clarity the Virginia 
statutory and regulatory provisions which are ``broader in scope'' than 
the Federal program and which are not, therefore, part of the approved 
program being codified today. ``Broader in scope'' provisions cannot be 
enforced by EPA; the State, however, will continue to enforce such 
provisions.

Statutory and Executive Order Reviews

    This rule only codifies EPA-authorized underground storage tank 
program requirements pursuant to RCRA section 9004 and imposes no 
requirements other than those imposed by State law (see Supplementary 
Information). Therefore, this rule complies with applicable executive 
orders and statutory provisions as follows.
    1. Executive Order 12866: Regulatory Planning Review--The Office of 
Management and Budget has exempted this rule from its review under 
Executive Order (EO) 12866. 2. Paperwork Reduction Act--This rule does 
not impose an information collection burden under the Paperwork 
Reduction Act. 3. Regulatory Flexibility Act--After considering the 
economic impacts of today's rule on small entities under the Regulatory 
Flexibility Act, I certify that this rule will not have a significant 
economic impact on a substantial number of small entities. 4. Unfunded 
Mandates Reform Act--Because this rule codifies pre-existing 
requirements under state law and does not impose any additional 
enforceable duty beyond that required by state law, it does not contain 
any unfunded mandate or significantly or uniquely affect small 
governments, as described in the Unfunded Mandates Reform Act. 5. 
Executive Order 13132: Federalism--EO 13132 does not apply to this rule 
because it will not have federalism implications (i.e., substantial 
direct effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government). 6. Executive 
Order 13175: Consultation and Coordination with Indian Tribal 
Governments--EO 13175 does not apply to this rule because it will not 
have tribal implications (i.e., substantial direct effects on one or 
more Indian tribes, on the relationship between the Federal Government 
and Indian tribes, or on the distribution of power and responsibilities 
between the Federal Government and Indian tribes). 7. Executive Order 
13045: Protection of Children from Environmental Health & Safety 
Risks--This rule is not subject to EO 13045 because it is not 
economically significant and it is not based on health or safety risks. 
8. Executive Order 13211: Actions that Significantly Affect Energy 
Supply, Distribution, or Use--This rule is not subject to EO 13211 
because it is not a significant regulatory action as defined in EO 
12866. 9. National Technology Transfer Advancement Act--EPA codifies 
approved State programs as long as they meet criteria required by RCRA, 
so it would be inconsistent with applicable law for EPA, in its review 
of a State program, to require the use of any particular voluntary 
consensus standard in place of another standard that meets the 
requirements of RCRA. Thus, section 12(d) of the National Technology 
Transfer and Advancement Act does not apply to this rule. 10. 
Congressional Review Act--EPA will submit a report containing this rule 
and other information required by the Congressional Review Act (5 
U.S.C. 801 et seq.) to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication in the Federal Register. A major rule cannot take effect 
until 60 days after it is published in the Federal Register. This 
action is not a ``major rule'' as defined by 5 U.S.C. 804(2). This 
action will be effective on August 16, 2004.

List of Subjects in 40 CFR part 282

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

    Dated: March 25, 2004.
Donald S. Welsh,
Regional Administrator, EPA Region III.

0
For the reasons set forth in the preamble, 40 CFR part 282 is amended 
as follows:

PART 282--APPROVED UNDERGROUND STORAGE TANK PROGRAMS

0
1. The authority citation for part 282 continues to read as follows:

    Authority: 42 U.S.C. 6912, 6991c, 6991d, and 6991e.

Subpart B--Approved State Programs

0
2. Subpart B is amended by adding Sec.  282.96 to read as follows:


Sec.  282.96  Virginia State-Administered Program.

    (a) The State of Virginia's underground storage tank program is 
approved in lieu of the Federal program in accordance with Subtitle I 
of the Resource Conservation and Recovery Act of 1976 (RCRA), as 
amended, 42 U.S.C. 6991 et seq. The State's program, as administered by 
the Virginia Department of Environmental Quality, was approved by EPA 
pursuant to 42 U.S.C. 6991c and part 281 of this chapter. EPA approved 
the Virginia underground storage tank program on September 28, 1998, 
and approval was effective on October 28, 1998.
    (b) Virginia has primary responsibility for enforcing its 
underground storage tank program. However, EPA retains the authority to 
exercise its inspection and enforcement authorities in accordance with 
sections 9005 and 9006 of Subtitle I of RCRA, 42 U.S.C. 6991d and 
6991e, regardless of whether the State has taken its own actions, as 
well as in accordance with other statutory and regulatory provisions.
    (c) To retain program approval, Virginia must revise its approved

[[Page 33314]]

program to adopt new changes to the Federal Subtitle I program which 
make it more stringent, in accordance with section 9004 of RCRA, 42 
U.S.C. 6991c, and 40 CFR part 281, subpart E. If Virginia obtains 
approval for the revised requirements pursuant to section 9004 of RCRA, 
42 U.S.C. 6991c, the newly approved statutory and regulatory provisions 
will be added to this subpart and notice of any change will be 
published in the Federal Register.
    (d) Virginia has final approval for the following elements 
submitted to EPA in the State's program application for final approval. 
On September 28, 1998, EPA published notice of approval of the State's 
program in the Federal Register, 63 FR 51528. That approval became 
effective on October 28, 1998. Copies of Virginia's program application 
may be obtained from the Virginia Department of Environmental Quality, 
629 East Main Street, Richmond, VA 23240-0009.
    (1) State statutes and regulations. (i) The provisions cited in 
this paragraph, with the exception of the provisions cited in 
paragraphs (d)(1)(ii) and (iii) of this section, are incorporated by 
reference as part of the approved underground storage tank program in 
accordance with Subtitle I of RCRA, 42 U.S.C. 6991 et seq.
    (A) Virginia Statutory Requirements Applicable to the Underground 
Storage Tank Program, 1998.
    (B) Virginia Regulatory Requirements Applicable to the Underground 
Storage Tank Program, 1998.
    (ii) EPA considered the following statutes in evaluating the State 
program, but did not incorporate them by reference.
    (A) The statutory provisions include:
(1) Code of Virginia, Title 10.1, Subtitle II, Chapter 11.1: Department 
of Environmental Quality, Article 1: General Provisions
Section 10.1-1186 General powers of the department
(2) Code of Virginia, Title 62.1, Chapter 3.1: State Water Control Law, 
Article 2: Control Board Generally
Section 62.1-44.14 Chairman; Executive Director; employment of 
personnel; supervision; budget preparation
Section 62.1-44.15 Powers and duties
(3) Code of Virginia, Title 62.1, Chapter 3.1: State Water Control Law, 
Article 5: Enforcement and Appeal Procedure
Section 62.1-44.20 Right to entry to obtain information
Section 62.1-44.21 Information to be furnished to Board
Section 62.1-44.21 Private rights not affected
Section 62.1-44.23 Enforcement by injunction
Section 62.1-44.23:1 Intervention of Commonwealth in actions involving 
surface water withdrawals
Section 62.1-44.24 Testing validity of regulations; judicial review
Section 62.1-44.25 Right to hearing
Section 62.1-44.26 Hearings
Section 62.1-44.27 Rules of evidence in hearings
Section 62.1-44.28 Decisions of the Board in hearings pursuant to Sec.  
62.1-44.15 and 62.1-44.25
Section 62.1-44.29 Judicial review
Section 62.1-44.30 Appeal to Court of Appeals
(4) Code of Virginia, Title 62.1, Chapter 3.1: State Water Control Law, 
Article 6: Offenses and Penalties
Section 62.1-44.31 Violation of special order or certificate or failure 
to cooperate with Board
Section 62.1-44.32 Penalties

    (iii) The following statutory and regulatory provisions are broader 
in scope than the Federal program, are not part of the approved 
program, and are not incorporated by reference. These provisions are 
not federally enforceable.
    (A) The statutory provisions include:
(1) Code of Virginia, Title 62.1, Chapter 3.1: State Water Control Law
Section 62.1-44.34:8 Definitions, ``Aboveground storage tank'' and 
``Regulated substance''
(2) Code of Virginia, Title 62.1, Chapter 3.1: State Water Control Law, 
Article 10: Petroleum Storage Tank Fund
Section 62.1-44.34.10 Definitions, ``Aboveground storage tank'' and 
``Regulated substance''
Section 62.1-44.34:13 Levy of fee for Fund maintenance

    (B) The regulatory provisions include Virginia Administrative Code, 
Title 9, Agency 25: State Water Control Board, Chapter 580: Underground 
Storage Tanks--Technical Standards and Corrective Action Requirements

9 VAC 25-580-10 Definitions, ``Underground storage tank'' includes 
heating oil tanks of greater than 5,000 gallon capacity and ``Regulated 
substance''
9 VAC 25-580-130 General requirements for all petroleum and hazardous 
substance UST systems, heating oil tanks of greater than 5,000 gallon 
capacity
9 VAC 25-580-290 Corrective action plan (CAP) permit
    (2) Statement of legal authority. (i) ``Attorney General's 
Statement,'' signed by the State Attorney General on July 14, 1998, 
though not incorporated by reference, is referenced as part of the 
approved underground storage tank program in accordance with Subtitle I 
of RCRA, 42 U.S.C. 6991 et seq.
    (ii) Letter from the Attorney General of Virginia to EPA, July 14, 
1998, though not incorporated by reference, is referenced as part of 
the approved underground storage tank program in accordance with 
Subtitle I of RCRA, 42 U.S.C. 6991 et seq.
    (3) Demonstration of procedures for adequate enforcement. The 
``Demonstration of Procedures for Adequate Enforcement'' submitted as 
part of the original application on July 15, 1998, though not 
incorporated by reference, is referenced as part of the approved 
underground storage tank program in accordance with Subtitle I of RCRA, 
42 U.S.C. 6991 et seq.
    (4) Program Description. The program description and any other 
material submitted as part of the original application on July 15, 
1998, though not incorporated by reference, are referenced as part of 
the approved underground storage tank program in accordance with 
Subtitle I of RCRA, 42 U.S.C. 6991 et seq.
    (5) Memorandum of Agreement. The Memorandum of Agreement between 
EPA Region III and the Virginia Department of Environmental Quality, 
signed by the EPA Regional Administrator on September 17, 1998, though 
not incorporated by reference, is referenced as part of the approved 
underground storage tank program in accordance with Subtitle I of RCRA, 
42 U.S.C. 6991 et seq.
0
3. Appendix A to Part 282 is amended by adding in alphabetical order 
``Virginia'' and its listing.

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

* * * * *

Virginia

    (a) The statutory provisions include:

(1) Code of Virginia, Title 62.1, Chapter 3.1: State Water Control Law

Article 9: Storage Tanks

Section 62.1-44.34:8 Definitions, except ``Aboveground storage 
tank'' and ``Regulated substance''
Section 62.1-44.34:9 Powers and duties of Board

Article 10: Petroleum Storage Tank Fund

Section 62.1-44.34:10 Definitions, except ``Aboveground storage 
tank'' and ``Regulated substance''

[[Page 33315]]

Section 62.1-44.34:11 Virginia Petroleum Storage Tank Fund
Section 62.1-44.34:12 Financial responsibility
    (b) The regulatory provisions include:

(1) Virginia Administrative Code, Title 9, Agency 25: State Water 
Control Board, Chapter 580: Underground Storage Tanks--Technical 
Standards and Corrective Action Requirements

Part I: Definitions, Applicability, and Interim Prohibition

9 VAC 25-580-10 Definitions, except ``Underground storage tank'' 
includes heating oil tanks of greater than 5,000 gallon capacity and 
``Regulated substance''
9 VAC 25-580-20 Applicability
9 VAC 25-580-30 Interim prohibition for deferred UST systems
9 VAC 25-580-40 Permitting and inspection requirements for all UST 
systems

Part II: UST Systems: Design, Construction, Installation, and 
Notification

9 VAC 25-580-50 Performance standards for new UST systems
9 VAC 25-580-60 Upgrading of existing UST systems
9 VAC 25-580-70 Notification requirements
9 VAC 25-580-80 Spill and overfill control
9 VAC 25-580-90 Operation and maintenance of corrosion protection
9 VAC 25-580-100 Compatibility
9 VAC 25-580-110 Repairs allowed

Part III: General Operating Requirements

9 VAC 25-580-120 Reporting and recordkeeping

Part IV: Release Detection

9 VAC 25-580-130 General requirements for all petroleum and 
hazardous substance UST systems, except heating oil tanks of greater 
than 5,000 gallon capacity
9 VAC 25-580-140 Requirements for petroleum UST systems
9 VAC 25-580-150 Requirements for hazardous substance UST systems
9 VAC 25-580-160 Methods of release detection for tanks
9 VAC 25-580-170 Methods of release detection for piping
9 VAC 25-580-180 Release detection recordkeeping

Part V: Release Reporting, Investigation, and Confirmation

9 VAC 25-580-190 Reporting of suspected releases
9 VAC 25-580-200 Investigation due to off-site impacts
9 VAC 25-580-210 Release investigation and confirmation steps
9 VAC 25-580-220 Reporting and cleanup of spills and overfills

Part VI: Release Response and Corrective Action for UST Systems 
Containing Petroleum for Hazardous Substances

9 VAC 25-580-230 General
9 VAC 25-580-240 Initial response
9 VAC 25-580-250 Initial abatement measures and site check
9 VAC 25-580-260 Site characterization
9 VAC 25-580-270 Free product removal
9 VAC 25-580-280 Corrective action plan
9 VAC 25-580-300 Public participation
9 VAC 25-580-310 Temporary closure

Part VII: Out-of-Service UST Systems and Closure

9 VAC 25-580-320 Permanent closure and changes-in-service
9 VAC 25-580-330 Assessing the site at closure or change-in-service
9 VAC 25-580-340 Applicability to previously closed UST systems
9 VAC 25-580-350 Closure records

Part VIII: Delegation

9 VAC 25-580-360 Delegation of authority
    Appendix I: Virginia Underground Storage Tank Notification Forms
    Appendix II: Statement for Shipping tickets and Invoices
    (2) Virginia Administrative Code, Title 9, Agency 25: State 
Water Control Board, Chapter 590: Petroleum Underground Storage Tank 
Financial Responsibility Requirements
9 VAC 25-590-10 Definitions
9 VAC 25-590-20 Applicability
9 VAC 25-590-30 Compliance dates
9 VAC 25-590-40 Amount and scope of financial responsibility 
requirement
9 VAC 25-590-50 Allowable mechanisms and combinations of mechanisms
9 VAC 25-590-60 Financial test of self-insurance
9 VAC 25-590-70 Guarantee
9 VAC 25-590-80 Insurance and group self-insurance pool coverage
9 VAC 25-590-90 Surety bond
9 VAC 25-590-100 Letter of credit
9 VAC 25-590-110 Trust fund
9 VAC 25-590-120 Standby trust fund
9 VAC 25-590-130 Substitution of financial assurance mechanisms by 
owner and operator
9 VAC 25-590-140 Cancellation or nonrenewal by a provider of 
financial assurance
9 VAC 25-590-150 Reporting by owner or operator
9 VAC 25-590-160 Recordkeeping
9 VAC 25-590-170 Drawing on financial assurance mechanism
9 VAC 25-590-180 Release from the requirements
9 VAC 25-590-190 Bankruptcy or other incapacity of owner, operator 
or provider of financial assurance
9 VAC 25-590-200 Replenishment of guarantees, letters of credit or 
surety bonds
9 VAC 25-590-210 Virginia Petroleum Storage Tank Fund
9 VAC 25-590-220 Notices to the State Water Control Board
9 VAC 25-590-230 Delegation of authority
9 VAC 25-590-240 Lender liability
9 VAC 25-590-250 Local government financial responsibility 
demonstration
9 VAC 25-590-260 Word or phrase substitutions
    Appendix I: Letter from Chief Financial Officer
    Appendix II: Guarantee
    Appendix III: Endorsement
    Appendix IV: Certificate of Insurance
    Appendix V: Performance Bond
    Appendix VI: Irrevocable Standby Letter of Credit
    Appendix VII: Trust Agreement
    Appendix VIII: Certification of Acknowledgment
    Appendix IX: Certification of Financial Responsibility
    Appendix X: Certification of Valid Claim
    Appendix XI: Letter from Chief Financial Officer (short form)

[FR Doc. 04-13283 Filed 6-14-04; 8:45 am]
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