[Federal Register Volume 71, Number 192 (Wednesday, October 4, 2006)]
[Rules and Regulations]
[Pages 58521-58525]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-16375]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 281

[EPA-R01-UST-2006-0622; FRL-8226-5]


New Hampshire: Final Approval of Underground Storage Tank Program 
Revisions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Immediate final rule.

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SUMMARY: The State of New Hampshire has amended the regulations 
previously approved by EPA under Subtitle I of the Resource 
Conservation and Recovery Act (RCRA). EPA has determined that these 
amendments satisfy all requirements needed for program approval and is 
approving the State's changes through this immediate final action. EPA 
is publishing this rule to approve the changes without a prior 
tentative determination because we believe this action is not 
controversial and do not expect comments that oppose it. Unless we get 
written comments which oppose this approval during the comment period, 
the decision to approve New Hampshire's amendments to its underground 
storage tank (UST) program will take effect as provided below. If we 
receive comments that oppose this action, we will publish a document in 
the Federal Register withdrawing this rule before it takes effect, and 
the separate document in the proposed rules section of this Federal 
Register will serve as the proposal to approve the amendments.

DATES: This approval will become effective on December 4, 2006, unless 
EPA receives adverse written comment by November 3, 2006. If EPA 
receives such comment, it will publish a timely withdrawal of this 
immediate final rule in the Federal Register and inform the public that 
this approval will not take immediate effect.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R01-
UST-2006-0622, by one of the following methods:
     www.regulations.gov: Follow the on-line instructions for 
submitting comments.
     E-mail: [email protected]. 
     Mail: Susan Hanamoto, Office of Underground Storage Tanks, 
EPA Region I, One Congress Street, Suite 1100 (Mail Code: HBO), Boston, 
MA 02114-2023.
     Hand Delivery: Susan Hanamoto, Office of Underground 
Storage Tanks, EPA Region I, One Congress Street, Suite 1100 (Mail 
Code: HBO), Boston, MA 02114-2023. Such deliveries are only accepted 
during the EPA's normal hours of operation, and special arrangements 
should be made for deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-R01-UST-
2006-0622. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
www.regulations.gov, 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

[[Page 58522]]

protected through www.regulations.gov or e-mail. The 
www.regulations.gov Web site 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 e-mail comment 
directly to EPA without going through www.regulations.gov, your e-mail 
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 and with any disk or CD-ROM you submit. 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.
    Docket: EPA has established a docket for this action under Docket 
ID No. EPA-R01-UST-2006-0622. All documents in the docket are listed on 
the www.regulations.gov Web site. Although listed in the index, some 
information may not be publicly available, e.g., CBI or other 
information whose disclosure is restricted by statute. Certain other 
material, such as copyrighted material, is not placed on the Internet 
and will be publicly available only in hard copy form. Publicly 
available docket materials are available either electronically through 
www.regulations.gov or in hard copy at the EPA Region I Library, One 
Congress Street, 11th Floor, Boston, MA 02114-2023; business hours 
Tuesday through Thursday 10 a.m. to 3 p.m., telephone: (617) 918-1990; 
or the New Hampshire Department of Environmental Services, Public 
Information Center, 29 Hazen Drive, Concord, NH 03302-0095; Phone 
Number: (603) 271-2919 or (603) 271-2975; Business hours: 8 a.m. to 4 
p.m., Monday-Friday. Records in these dockets are available for 
inspection and copying during normal business hours.

FOR FURTHER INFORMATION CONTACT: Susan Hanamoto, Office of Underground 
Storage Tanks, EPA Region I, One Congress Street, Suite 1100 (Mail 
Code: HBO), Boston, MA 02114-2023, telephone: (617) 918-1219, e-mail: 
[email protected].

SUPPLEMENTARY INFORMATION:

A. Why Are Revisions to State Programs Necessary?

    States that have received final approval of their UST program under 
Section 9004 of RCRA, 42 U.S.C. 6991c, must maintain a UST program that 
is ``no less stringent'' than the Federal program with respect to the 
seven requirements set forth at RCRA section 9004(a)(1) through (7), 42 
U.S.C. 6991c(a)(1) through (7), that meets the notification 
requirements of RCRA section 9004(a)(8), and that also provides for 
adequate enforcement of compliance with UST standards in accordance 
with RCRA section 9004(a), 42 U.S.C. 6991c(a). Either EPA or the 
approved state may initiate program revision. Program revision may be 
necessary when the controlling Federal or state statutory or regulatory 
authority is changed or when responsibility for the state program is 
shifted to a new agency or agencies.

B. What Decisions Have We Made in This Rule?

    We conclude that New Hampshire's application to revise its approved 
program meets all of the statutory and regulatory requirements 
established by RCRA. Therefore, we grant New Hampshire approval to 
operate its UST program with the revisions described in the program 
approval application.

C. What Is the Effect of Today's Approval Decision?

    This action does not impose additional requirements on the 
regulated community because the regulations for which New Hampshire is 
being approved by today's action are already effective, and they are 
not changed by today's action.

D. Why Wasn't There a Proposed Rule Before Today's Rule?

    EPA did not publish a proposal before today's rule because we view 
this as a non-controversial program change and do not expect comments 
that oppose this approval. We are providing an opportunity for public 
comment now.

E. What Happens if EPA Receives Comments That Oppose This Action?

    If EPA receives comments that oppose this approval, we will 
withdraw this rule by publishing a document in the Federal Register 
before the rule becomes effective. EPA will base any further decision 
on the approval of the state program changes on the proposal mentioned 
in the previous paragraph. We will then address all public comments in 
a later final rule. You may not have another opportunity to comment. If 
you want to comment on this approval, you must do so at this time.
    If we receive comments that oppose only the approval of a 
particular change to the State UST program, we will withdraw that part 
of this rule but the approval of the program changes that the comments 
do not oppose will become effective on the date specified above. The 
Federal Register withdrawal document will specify which part of the 
approval will become effective, and which part is being withdrawn.

F. What Has New Hampshire Previously Been Approved for?

    New Hampshire received final approval on June 19, 1991, effective 
July 19, 1991 (56 FR 28089) to administer the UST program in lieu of 
the Federal program. On November 2, 1993, effective January 3, 1994 (58 
FR 58624), EPA codified the approved New Hampshire program, 
incorporating by reference the state statutes and regulations that are 
thereby subject to EPA's inspection and enforcement authorities under 
RCRA sections 9005 and 9006, 42 U.S.C. 6991d and 6991e, and other 
applicable statutory and regulatory provisions.

G. What Changes Are We Approving With Today's Action?

    On February 23, 2006, in accordance with 40 CFR 281.52(b), New 
Hampshire submitted a final complete program revision application 
seeking approval for its UST program revisions adopted as of February 
1, 2005. We now make an immediate final decision, subject to receipt of 
written comments that oppose this action, that New Hampshire's UST 
program revision satisfies all of the requirements necessary to qualify 
for final approval. Therefore, we grant New Hampshire final approval 
for the following program additions and changes:

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  Description of required federal element                        Implementing state authority
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42 U.S.C. 6991c(a)(1) Requirements for       Env-Wm 1401.11.
 maintaining leak detection system,          Env-Wm 1401.13(e).
 inventory control with tank testing, or     Env-Wm 1401.16(c-d).
 other system to identify releases.          Env-Wm 1401.29.

[[Page 58523]]

 
                                             Env-Wm 1401.30 (j-m), (r) and(u).
                                             Env-Wm 1401.31(b) and (j).
                                             Env-Wm 1401.37(a), (c-e), and (g-i).
42 U.S.C. 6991c(a)(2) Requirements for       Env-Wm 1401.11.
 maintaining records of monitoring or leak   Env-Wm 1401.13(f), (h).
 detection, inventory control or tank        Env-Wm 1401.14(b).
 testing systems.                            Env-Wm 1401.25(f).
                                             Env-Wm 1401.28(g) and (n).
                                             Env-Wm 1401.29(h).
                                             Env-Wm 1401.30(g-I), (n-q), and (v).
                                             Env-Wm 1401.31(c-f).
                                             Env-Wm 1401.32(c-j).
                                             Env-Wm 1401.33(f-k).
                                             Env-Wm 1401.36(f-h).
                                             Env-Wm 1401.37(f).
                                             Env-Wm 1401.38(c-d).
42 U.S.C. 6991c(a)(5) Requirements for       Env-Wm 1401.15(d-g).
 closure of tanks to prevent future          Env-Wm 1401.17.
 releases.                                   Env-Wm 1401.18.
                                             Env-Wm 1401.28(q).
                                             Env-Wm 1401.34(i).
                                             Env-Wm 1401.37(b).
                                             Env-Wm 1401.38(a).
42 U.S.C. 6991c(a)(7) Standards of           Env-Wm 1401.21(a-c),(e-h), and (j-k).
 performance for new USTs.                   Env-Wm 1401.22(a-d), (f-g), and (i-j).
                                             Env-Wm 1401.23(a).
                                             Env-Wm 1401.24.
                                             Env-Wm 1401.25(b-n).
                                             Env-Wm 1401.26(c) and (d).
                                             Env-Wm 1401.27(b).
                                             Env-Wm 1401.28.
                                             Env-Wm 1401.33(a), (c-e).
                                             Env-Wm 1401.36(a-e), and (i).
                                             Env-Wm 1401.38(b).
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H. Where Are the Revised Rules Different From the Federal Rules?

    We consider the following State requirements to be more stringent 
than the Federal requirements and they are part of New Hampshire's 
approved program and are Federally enforceable.
     New Hampshire requires the operator of an UST facility to 
conduct inventory monitoring of each UST and to maintain separate 
records for each tank and interconnected system, unless the secondary 
containment of the UST is continuously monitored for both regulated 
substance and water. Inventory records for single-wall USTs must be 
recorded on a form obtained from the Department of Environmental 
Services or another representative motor fuel and bulk storage fuel oil 
inventory form, which process all of the required data using an 
automatic tank gauge monitor and computer software. When the Department 
has determined that inventory monitoring has not been conducted, the 
owner must perform a tightness test on the UST system within 30 days of 
the determination.
     New Hampshire requires all regulated metal UST systems, 
except vent piping, without corrosion protection and all hazardous 
substance UST systems without secondary containment and leak monitoring 
to be permanently closed. Any part of an existing single wall UST 
system that routinely contains a regulated substance without secondary 
containment and leak monitoring, except for vent piping, must be 
permanently closed by December 22, 2015.
     New Hampshire requires dispenser sumps installed beneath 
each dispenser to be provided with continuous leak detection monitoring 
by the piping sump sensor or equipped with a sump sensor. All piping 
and dispenser sumps must be maintained free of liquid and debris, be 
liquid-tight, have liquid-tight penetration fittings for all sump 
entries, and be able to respond to small accumulations of liquids 
within the sumps.
     New Hampshire requires spill containment equipment 
installed with drain valves on UST systems that store gasoline to have 
the valve replaced annually or be permanently sealed.
     New Hampshire [1401.25(i)] requires all new and 
replacement overfill protection devices be installed to allow access 
for inspection of proper operation. By February 1, 2006, [1401.25(j)] 
all existing UST systems with suction piping and an air eliminator must 
be equipped with a high level visual and audible alarm or with a device 
that will automatically and completely shut off flow into the tank when 
the tank is no more than 95% full and [1401.25(l) and (m)] when product 
is pumped to a new UST system or any new UST system receives a delivery 
without a tight fill connection, the new UST systems must only be 
equipped with a high level visual and audible overfill alarm. 
[1401.25(k)] All new high level alarms must have both visual and 
audible alarms, be clearly labeled as a tank overfill alarm, and be 
clearly visible and audible to the transfer operator.
     New Hampshire requires the certified tank installer to 
perform a piping pressure test on the vent piping after installation 
and prior to backfill and to test all installed sumps for tightness. 
The test results must be provided to the Department and owner at the 
time of the backfill inspection of the system.
     New Hampshire requires a concrete pad having positive 
limiting barriers to be constructed and maintained so as to contain a 
volume of at least five gallons for each dispenser.
     New Hampshire requires new spill containment equipment to 
be tested for tightness and the results to be submitted

[[Page 58524]]

to the Department at the time of inspection and to the owner within 30 
days of the test.
     New Hampshire no longer allows groundwater or soil gas 
vapor monitoring to be installed as a release detection mechanism.
     New Hampshire requires all new metal vent piping to be 
protected from corrosion.
     New Hampshire requires all new sumps to be tested for 
tightness within 30 days from installation and the results to be 
submitted to the Department no later than 30 days after the date of the 
test.
     New Hampshire requires single wall UST systems, with the 
exception of vent piping, that discharge, leak, spill, or release a 
regulated substance to the environment to be permanently closed.
    New Hampshire's regulations contain requirements that are broader 
in scope than the Federal program which are not part of the program 
being approved by today's action. EPA cannot enforce these broader in 
scope requirements. Although compliance with these provisions is 
required under New Hampshire law, they are not Federal RCRA 
requirements. Such provisions include, but are not limited to, the 
following:
     New Hampshire's regulations reference compliance with 
stage I and stage II requirements in Env-Wm 1404, ``Volatile Organic 
Compounds (VOCs): Gasoline Dispensing Facilities, Bulk Gasoline Plants, 
and Cargo Trucks,'' when applying for a permit to operate, when 
transferring gasoline, and when placing back into service temporarily 
closed UST systems. The Federal RCRA program does not cover stage I and 
stage II requirements; therefore, in this regard, the New Hampshire 
program is broader in scope than the Federal Program.
     New Hampshire requires all new UST sites to be located no 
closer than 500 feet from a public water system well for all gasoline 
UST systems; at least 400 feet from a public water supply well for all 
regulated substances except gasoline; at least 250 feet from a non-
pubic water supply well for all gasoline UST systems; and at least 75 
feet from a non-public water supply well for all regulated substances 
except gasoline. The Federal RCRA program does not cover the siting of 
UST systems; therefore, in this regard, the New Hampshire program is 
broader in scope than the Federal Program.
     New Hampshire does not allow storm water runoff from UST 
facilities to be discharged to the subsurface, and storm water must not 
be directed to flow over any tank pad or dispensing pad. The Federal 
RCRA program does not cover storm water runoff from UST facilities; 
therefore, in this regard, the New Hampshire program is broader in 
scope than the Federal Program.

I. Administrative Requirements

    This action will only approve state 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 action complies with applicable executive 
orders and statutory provisions as follows:
    1. Executive Order (EO) 12866: Regulatory Planning Review: The 
Office of Management and Budget has exempted this action from the 
requirements of Executive Order 12866 (58 FR 51735, October 4, 1993), 
and therefore this action is not subject to review by OMB. 2. Paperwork 
Reduction Act: This action does not impose an information collection 
burden under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et 
seq.). 3. Regulatory Flexibility Act: After considering the economic 
impacts of today's action on small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.), I certify that this action will 
not have a significant economic impact on a substantial number of small 
entities. 4. Unfunded Mandates Reform Act: Because this action approves 
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 (Public Law 104-4). 5. For the same reason, this action also does 
not significantly or uniquely affect the communities of Tribal 
governments, as specified by Executive Order 13175 (65 FR 67249, 
November 9, 2000). 6. 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 state requirements as part of the 
State UST program without altering the relationship or the distribution 
of power and responsibilities established by RCRA. 7. Executive Order 
13175: Consultation and Coordination with Indian Tribal Governments: 
This action is not subject to EO 13175 (65 FR 67249, November 9, 2000) 
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). 
8. Executive Order 13045: Protection of Children from Environmental 
Health & Safety Risks: This action is not subject to EO 13045 (62 FR 
19885, April 23, 1997) because it is not economically significant and 
it is not based on health or safety risks. 9. Executive Order 13211: 
Actions that Significantly Affect Energy Supply, Distribution, or Use: 
This action is not subject to EO 13211 (66 FR 28355, May 22, 2001) 
because it is not a significant regulatory action as defined in EO 
12866. 10. National Technology Transfer and Advancement Act: EPA 
approves 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 otherwise meets 
the requirements of RCRA. Thus, the requirements of Section 12(d) of 
the National Technology Transfer and Advancement Act (15 U.S.C. 272 
note) does not apply to this action. 11. 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. 12. EPA has complied with Executive 
Order 12630 (53 FR 8859, March 18, 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.
    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). 
Nevertheless, to allow time for public comment, this action will be 
effective on December 4, 2006.

List of Subjects in 40 CFR Part 281

    Environmental protection, Administrative practice and procedures, 
Hazardous substances,

[[Page 58525]]

Intergovernmental relations, Reporting and recordkeeping requirements.

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

    Dated: September 20, 2006.
Robert W. Varney,
Regional Administrator, EPA Region I.
[FR Doc. E6-16375 Filed 10-3-06; 8:45 am]
BILLING CODE 6560-50-P