[Federal Register Volume 83, Number 214 (Monday, November 5, 2018)]
[Rules and Regulations]
[Pages 55286-55292]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-24062]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 282
[EPA-R08-UST-2018-0169; FRL-9982-18-Region 8]
Utah: 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 Resource Conservation and Recovery Act (RCRA
or Act), the Environmental Protection Agency (EPA) is taking direct
final action to approve revisions to the State of Utah's Underground
Storage Tank (UST) program submitted by the State. The EPA has
determined that these revisions satisfy all requirements needed for
program approval. This action also codifies the EPA's approval of
Utah's state program and incorporates by reference those provisions of
the State's regulations that we have determined meet the requirements
for approval. The State's federally-authorized and codified UST
program, as revised pursuant to this action, will remain subject to the
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 January 4, 2019, unless the EPA receives
adverse comment by December 5, 2018. If EPA receives adverse comment,
it 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 January 4, 2019, 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: http://www.regulations.gov. Follow
the online instructions for submitting comments.
2. Email: [email protected].
3. Mail: Matthew Langenfeld, Region 8, Project Officer, UST, Solid
Waste and PCB Unit, Resource Conservation and Recovery Program, Office
of Partnerships and Regulatory Assistance (8P-R), EPA Region 8, 1595
Wynkoop Street, Denver, Colorado 80202-1129.
4. Hand Delivery or Courier: Deliver your comments to Matthew
Langenfeld, Region 8, Project Officer, UST, Solid Waste and PCB Unit,
Resource Conservation and Recovery Program, Office of Partnerships and
Regulatory Assistance (8P-R), EPA Region 8, 1595 Wynkoop Street,
Denver, Colorado 80202-1129.
Instructions: Direct your comments to Docket ID No. EPA-R08-UST-
2018-0169. EPA's policy is that all comments received will be included
in the public docket without change and may be available online at
http://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 protected through http://www.regulations.gov, or email. The federal http://www.regulations.gov
website is an ``anonymous access'' system, which means the 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 the EPA
without going through http://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, the 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 the EPA cannot read your comment
due to technical difficulties, and cannot contact you for
clarification, the 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.
You can view and copy the documents that form the basis for this
action and associated publicly available materials from 8:30 a.m. to
4:00 p.m. Monday through Friday at the following location: EPA Region
8, 1595 Wynkoop Street, Denver, Colorado 80202-1129, phone number (303)
312-6284. Interested persons wanting to examine these documents should
make an appointment with the office at least 2 days in advance.
FOR FURTHER INFORMATION CONTACT: Matthew Langenfeld, (303) 312-6284,
[email protected]. To inspect the hard copy materials, please
schedule an appointment with Matthew Langenfeld at (303) 312-6284.
SUPPLEMENTARY INFORMATION:
I. Approval of Revisions to Utah's Underground Storage Tank Program
A. Why are revisions to state programs necessary?
States which have received final approval from the EPA under RCRA
section 9004(b) of RCRA, 42 U.S.C. 6991c(b), must maintain an
underground storage tank program that is equivalent to, consistent
with, and no less stringent than the federal underground storage tank
program. When the EPA makes revisions to the regulations that govern
the UST program, states must revise their programs to comply with the
updated regulations and submit these revisions to the EPA for approval.
Most commonly, states must change their programs because of changes to
the EPA's regulations in 40 Code of Federal Regulations (CFR) part 280.
States can also initiate changes on their own to their underground
storage tank program and these changes must then be approved by the
EPA.
B. What decisions has the EPA made in this rule?
On February 28, 2018, in accordance with 40 CFR 281.51(a), Utah
submitted a complete program revision application seeking the EPA
approval for its UST program revisions (State Application). Utah'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 (2015 Federal Revisions). As
required by 40 CFR 281.20, the State Application contains the
following: A transmittal letter from the Governor requesting 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 the EPA and
the implementing agency, a statement of certification from the Attorney
General, and copies of all relevant state statutes and regulations. We
have reviewed the State Application and determined that the revisions
to Utah's UST program are equivalent to, consistent with, and no less
stringent
[[Page 55287]]
than the corresponding federal requirements in subpart C of 40 CFR part
281, and that the Utah program provides for adequate enforcement of
compliance (40 CFR 281.11(b)). Therefore, the EPA grants Utah final
approval to operate its UST program with the changes described in the
program revision application, and as outlined below in Section I.G of
this document.
C. What is the effect of this action on the regulated community?
This action does not impose additional requirements on the
regulated community because the regulations being approved by this rule
are already in effect in the State of Utah, and 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?
The EPA is publishing this direct final rule without a prior
proposed rule because we view this as a noncontroversial action and we
anticipate no adverse comment. Utah did not receive any comments during
its comment period when the rules and regulations being considered
today were proposed at the state level.
E. What happens if the EPA receives comments that oppose this action?
Along with this direct final rule, the EPA is publishing a separate
document in the ``Proposed Rules'' section of this Federal Register
that serves as the proposal to approve the State's UST program
revisions, and provides an opportunity for public comment. If EPA
receives comments that oppose this approval, the EPA will withdraw this
direct final rule by publishing a document in the Federal Register
before it becomes effective. The EPA will base any further decision on
approval of the State Application after considering all comments
received during the comment period. The EPA 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.
F. For what has Utah previously been approved?
On April 7, 1995, the EPA finalized a rule approving the UST
program that Utah proposed to administer in lieu of the federal UST
program. On December 5, 1995, the EPA codified the provisions of the
approved Utah program that are part of the underground storage tank
program under subtitle I of RCRA, and therefore are subject to the
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 this action and what standards do
we use for review?
In order to be approved, each state program application must meet
the general requirements in 40 CFR 281.11, and specific requirements in
40 CFR Subpart B (Components of a Program Application); Subpart C
(Criteria for No Less Stringent); and Subpart D (Adequate Enforcement
of Compliance). This also is true for proposed revisions to approved
state programs.
As more fully described below, the State has made the changes to
its approved UST program to reflect the 2015 Federal Revisions. The EPA
is approving the State's changes because they are equivalent to,
consistent with, and no less stringent than the federal UST program and
because the EPA has confirmed that the Utah UST program will continue
to provide for adequate enforcement of compliance as described in 40
CFR 281.11(b) and part 281, Subpart D after this approval.
The Utah Department of Environmental Quality (DEQ), Division of
Environmental Response and Remediation (DERR) is the lead implementing
agency for the UST program in Utah, except in Indian country.
The DERR continues to have broad statutory authority to regulate
the installation, operation, maintenance, and closure of USTs, as well
as UST releases under Utah Statutes (2018), Title 19, Chapter 6, Part
4--Underground Storage Tank Act, Sections 401-429. The Utah UST Program
gets its enforcement authority from the powers and duties of the DERR
Director (Director) found in Title 19, Chapter 6, Part 4, Sections
404(f), 404(j) and 425(2). Under Title 19, Chapter 6, Part 4, Section
404(k) the Director is authorized to require an owner to furnish
records, conduct monitoring or testing, and provide access to tanks.
The Director is authorized to issue a Notice of Intent to Revoke and
Order to Revoke Certificates of Compliance under Title 19, Chapter 6,
Part 4, Section 414. Certificates of Compliance lapse automatically if
annual registration fees are not paid under Title 19, Chapter 6, Part
4, Section 408(5)(c). Penalties for non-compliance with Utah's UST Act
may be assessed under Title 19, Chapter 6, Part 4, Section 425(1). A
delivery prohibition tag may be placed on a tank for failure to have a
certificate of compliance, spill and overfill prevention, and required
tank and/or piping leak detection or corrosion protection.
Specific authorities to regulate the installation, operation,
maintenance, and closure of USTs, as well as UST releases are found
under Utah Administrative Code (UAC), as amended effective January 1,
2017, R311-200 through R311-212, Underground Storage Tanks; Reporting
and recordkeeping requirements are found under UAC R311-202-280.34;
Environmental Quality Administrative Rules are found under UAC, as
amended February 1, 2018, R305-1 through R305-9; and maintenance and
management of records for individual sites and projects is required
under Utah Statutes (2008), Title 63G, Chapter 2, Part 1 through Part
9. The aforementioned statutory sections and regulations satisfy the
requirements of 40 CFR 281.40 and 281.41.
Through a Memorandum of Agreement between the State of Utah and the
EPA, effective June 27, 2017, the State maintains procedures for
receiving and ensuring proper consideration of information about
violations submitted by the public. The State agrees to comply with
public participation provisions contained in 40 CFR 281.42 including
the provision that the State will not oppose intervention under Rule
24(a)(2) of the Utah Rules of Civil Procedure on the grounds that the
applicant's interest is adequately represented by the State. Utah has
met the public participation requirements found in 40 CFR 281.42.
To qualify for final approval, revisions to a state's program must
be ``equivalent to, consistent with, and no less stringent'' than the
2015 Federal Revisions. In the 2015 Federal Revisions the EPA addressed
UST systems deferred in the 1988 UST regulations, and added, among
other things, new operation and maintenance requirements; secondary
containment requirements for new and replaced tanks and piping;
operator training requirements; and a requirement to ensure UST system
compatibility before storing certain biofuel blends. In addition, the
EPA removed past deferrals for emergency generator tanks, field
constructed tanks, and airport hydrant systems. The EPA analyzes
revisions to approved state programs pursuant to the criteria found in
40 CFR 281.30 through 281.39.
The DERR has revised its regulations to help ensure that the
State's UST program revisions are equivalent to,
[[Page 55288]]
consistent with, and no less stringent than the 2015 Federal Revisions.
In particular, the DERR has amended Utah Administrative Code R311-202-1
to incorporate by reference (into the Utah regulations) the
requirements of 40 CFR part 280, including the requirements added by
the 2015 Federal Revisions, except for 40 CFR Subpart J (Operator
Training) and the definitions of Class A, B and C operators. (We note
that R311-206-2(a)(2) also incorporates by reference the necessary
requirements for financial responsibility for UST systems.) The State,
therefore, has ensured that the criteria found in 40 CFR 281.30 through
281.38 are met.
Title 40 CFR 281.39 describes the state operator training
requirements that must be met in order to be considered equivalent to,
consistent with, and no less stringent than federal requirements. Utah
did not incorporate by reference federal requirements for operator
training, and has promulgated and is implementing its own operator
training provisions under Utah Administrative Code R311-201-12. After a
thorough review, the EPA has determined that Utah's operator training
requirements are equivalent to, consistent with, and no less stringent
than federal requirements.
As part of the State Application the Utah Attorney General
certified that the State revisions meet the requirements ``equivalent
to, consistent with, and no less stringent'' criteria in 40 CFR 281.30
through 281.39. The EPA is relying on this certification in addition to
the analysis submitted by the State in making our determination.
For further information on the EPA's analysis of the State's
application, see the chart in the Technical Support Document (TSD)
contained in the docket for this rulemaking.
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 are not federally enforceable. (40
CFR 281.12(a)(3)(ii)) The following statutory and regulatory
requirements are considered broader in coverage than the federal
program as these state-only regulations are not required by federal
regulation and are implemented by the State in addition to the
federally approved program:
Utah Administrative Code R311-206-2(a)(1) and (b) allows owners and
operators, meeting requirements for participation, to use the State-
only Environmental Assurance Program to demonstrate financial
assurance.
Under Utah Statutes, Title 19, Chapter 6, Part 4--Underground
Storage Tank Act, Section 412(6), certificates of compliance are
required to operate regulated UST systems and are issued by the State
for facilities that are registered, have financial assurance, comply
with federal and state rules, and meet tank testing requirements. Under
Utah Statutes, Title 19, Chapter 6, Part 4--Underground Storage Tank
Act, Section 411(7), the DERR Director shall issue certificates of
compliance and the Waste Management and Radiation Control Board shall
make rules for identifying USTs that do not qualify for a certificate
of compliance.
Under Utah Administrative Code R311-201-2, Utah requires that UST
consultants, inspectors, testers, installers, removers, and groundwater
and soil samplers be certified by the State. Under Utah Administrative
Code R311-201-2, Utah allows individuals to apply for certification,
and under Utah Administrative Code R311-201-4, Utah lists eligibility
requirements for certification of UST consultants, inspectors, testers,
and installers. Under Utah Administrative Code R311-203-3, Utah
requires certified installers to pay a permit fee for installation at
facilities that do not qualify for a certificate of compliance and to
notify the DERR Director of the completion of installation. Under Utah
Administrative Code R311-201-5 through 10, Utah allows for renewal of
certificates, provides standards of performance, gives the DERR
Director the ability to deny certification, and allows for appeal,
inactivation, revocation, and reciprocity.
Under Utah Administrative Code R311-203-3, Utah requires installers
to provide notification to the State 10 days prior to installation of
UST systems and components, and requires an UST installation permit
fee. Under Utah Administrative Code R311-203-4, Utah requires UST
registration fees.
More Stringent Provisions
Where an approved state program includes requirements that are
considered more stringent than required by federal law, the more
stringent requirements become part of the federally approved program.
(40 CFR 281.12(a)(3)(ii))
The following statutory and regulatory requirements are considered
more stringent than the federal program, and on approval, they become
part of the federally approved program and are federally enforceable:
Under Utah Administrative Code R311-201-12(f), Utah requires third-
party Class B operators to be certified as UST testers, installers, or
meet the requirements of certified UST inspectors. Under Utah
Administrative Code R311-203-5, Utah requires that UST testers report
test results. Under Utah Administrative Code R311-203-7(a), Utah
requires that walkthrough inspections conducted under 40 CFR 280.36 be
conducted by or under the direction of a Class B Operator. Under Utah
Administrative Code R311-203-7(c), Utah requires UST facilites with
temporarily closed tanks to conduct annual operator inspections. Under
Utah Administrative Code R311-211-12(h)(2) and (3), Utah requires Class
A and B operators to submit a registration application to the DERR
Director, documenting proper training with its renewal registration
application prior to expiration of their existing certification.
I. How does this action affect Indian country (18 U.S.C. 1151) in Utah?
The EPA's approval of Utah's Program does not extend to Indian
country as defined in 18 U.S.C. 1151. Indian country generally includes
lands within the exterior boundaries of the following Indian
reservations located within Utah: The Washakie Reservation
(Northwestern Band of the Shoshone Nation), reservation lands of the
Paiute Indian Tribe of Utah (Cedar Band of Paiutes, Kanosh Band of
Paiutes, Koosharem Band of Paiutes, Indian Peaks Band of Paiutes, and
Shivwits Band of Paiutes), the Skull Valley Indian Reservation, the
Uintah & Ouray Reservation, the Goshute Reservation, and the Navajo
Nation; any land held in trust by the United States for an Indian
tribe; and any other areas that are ``Indian country'' within the
meaning of 18 U.S.C. 1151. Any lands removed from an Indian reservation
status by federal court action are not considered reservation lands
even if located within the exterior boundaries of an Indian
reservation. The EPA will retain responsibilities under RCRA for
underground storage tanks in Indian country. Therefore, this action has
no effect in Indian country. See 40 CFR 281.12(a)(2).
II. Codification
A. What is codification?
Codification is the process of placing a state's statutes and
regulations that comprise the state's approved UST program into the
CFR. Section 9004(b) of RCRA, as amended, allows the EPA to approve
State UST programs to operate in lieu of the federal program.
[[Page 55289]]
The EPA codifies its authorization of state programs in 40 CFR part 282
and incorporates by reference state regulations that the 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 Utah's UST program?
The EPA incorporated by reference and codified Utah's then-approved
UST program in 40 CFR 282.94, effective April 7, 1995 (60 FR 12709;
March 8, 1995). Through this action, the EPA is incorporating by
reference and codifying Utah's state program in 40 CFR 282.94 to
include the approved revisions.
C. What codification decisions have we made in this rule?
In this rule, we are finalizing the federal regulatory text that
incorporates by reference the federally authorized Utah UST Program. In
accordance with the requirements of 1 CFR 51.5, we are finalizing the
incorporation by reference of the Utah rules described in the
amendments to 40 CFR part 282 set forth below. The EPA has made, and
will continue to make, these documents generally available through
www.regulations.gov and at the EPA Region 8 office (see the ADDRESSES
section of this preamble for more information).
One purpose of this Federal Register document is to codify Utah's
approved UST program. The codification reflects the State program that
would be in effect at the time the EPA's approved revisions to the Utah
UST program addressed in this direct final rule become final. If,
however, the EPA receives substantive comment on the proposed rule then
this codification will not take effect, and the State rules that are
approved after the EPA considers public comment will be codified
instead. By codifying the approved Utah program and by amending the
Code of Federal Regulations (CFR), the public will more easily be able
to discern the status of the federally-approved requirements of the
Utah program.
The EPA is incorporating by reference the Utah approved UST program
in 40 CFR 282.94. Section 282.94(d)(1)(ii)(B) incorporates by reference
for enforcement purposes the State's regulations. Section 282.94 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.
D. What is the effect of EPA's codification of the federally authorized
State UST Program on enforcement?
The EPA retains the authority under sections 9003(h), 9005 and 9006
of subtitle I of RCRA, 42 U.S.C. 6991b(h), 6991d and 6991e, and other
applicable statutory and regulatory provisions to undertake corrective
action, inspections, and enforcement actions, and to issue orders in
approved States. If the EPA determines it will take such actions in
Utah, the EPA will rely on federal sanctions, federal inspection
authorities, and other federal procedures rather than the state
analogs. Therefore, though the EPA has approved the State procedures
listed in 40 CFR 282.94(d)(1)(ii), the EPA is not incorporating by
reference Utah's procedural and enforcement authorities.
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 coverage'' than Subtitle I of RCRA. Title
40 CFR 281.12(a)(3)(ii) states that where an approved state program has
provisions that are broader in coverage than the federal program, those
provisions are not a part of the federally approved program. As a
result, State provisions which are ``broader in coverage'' than the
federal program are not incorporated by reference for purposes of
enforcement in part 282. Title 40 CFR 282.94(d)(1)(iii) lists for
reference and clarity the Utah statutory and regulatory provisions
which are ``broader in coverage'' than the federal program and which
are not, therefore, part of the approved program being codified today.
Provisions that are ``broader in coverage'' cannot be enforced by EPA;
the State, however, will continue to implement and enforce such
provisions under State law.
III. Statutory and Executive Order (E.O.) Reviews
This action only applies to Utah's UST Program requirements
pursuant to RCRA Section 9004 and imposes no requirements other than
those imposed by State law. It complies with applicable 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, Oct. 4,
1993) and 13563 (76 FR 3821, Jan. 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.
B. Executive Order 13771: Reducing Regulations and Controlling
Regulatory Costs
This action is not an Executive Order 13771 (82 FR 9339, February
3, 2017) regulatory action because actions such as this final approval
of Utah's revised underground storage tank program under RCRA are
exempted under Executive Order 12866. Accordingly, I certify that this
action will not have a significant economic impact on a substantial
number of small entities under the Regulatory Flexibility Act (5 U.S.C.
601 et seq.).
C. 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). 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).
D. 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, Aug. 10, 1999), because it merely approves and codifies state
requirements as part of the State RCRA Underground Storage Tank Program
[[Page 55290]]
without altering the relationship or the distribution of power and
responsibilities established by RCRA.
E. 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, Apr. 23, 1997), because it is not economically significant and
it does not make decisions based on environmental health or safety
risks.
F. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This rule is not subject to Executive Order 13211 (66 FR 28355, May
22, 2001) because it is not a ``significant regulatory action'' as
defined under Executive Order 12866.
G. National Technology Transfer and Advancement Act
Under RCRA section 9004(b), the 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 the 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.
H. 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, the EPA has taken the
necessary steps to eliminate drafting errors and ambiguity, minimize
potential litigation, and provide a clear legal standard for affected
conduct.
I. Executive Order 12630: Governmental Actions and Interference With
Constitutionally Protected Property Rights
The EPA has complied with Executive Order 12630 (53 FR 8859, Mar.
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.
J. 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).
K. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low Income Populations
Executive Order 12898 (59 FR 7629, Feb. 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. Because this rule approves pre-
existing state rules which are at least equivalent to, consistent with,
and no less stringent than existing federal requirements, and imposes
no additional requirements beyond those imposed by state law, and there
are no anticipated significant adverse human health or environmental
effects, the rule is not subject to Executive Order 12898.
L. 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. The 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 January 4, 2019 because it is a direct
final rule.
Authority: This rule is issued under the authority of Sections
2002(a), 7004(b), and 9004, 9005 and 9006 of the Solid Waste
Disposal Act, as amended, 42 U.S.C. 6912(a), 6974(b), and 6991c,
6991d, and 6991e.
List of Subjects in 40 CFR Part 282
Environmental protection, Administrative practice and procedure,
Hazardous substances, Incorporation by reference, State program
approval, and Underground storage tanks.
Dated: October 26, 2018.
Douglas Benevento,
Regional Administrator, EPA Region 8.
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. Revise Sec. 282.94 to read as follows:
Sec. 282.94 Utah State-Administered Program.
(a) History of the approval of Utah's Program. The State of Utah 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 Utah
Department of Environmental Quality (DEQ), Division of Environmental
Response and Remediation (DERR), was approved by EPA pursuant to 42
U.S.C. 6991c and Part 281 of this Chapter. EPA published the notice of
final determination approving the Utah underground storage tank base
program effective on April 7, 1995. A subsequent program revision
application was approved by EPA and became effective on January 4,
2019.
(b) Enforcement authority. Utah has primary responsibility for
administering and enforcing its federally approved underground storage
tank program. However, EPA retains the authority to exercise its
corrective action, inspection, and enforcement authorities under
sections 9003(h), 9005, and 9006 of subtitle I of RCRA, 42 U.S.C.
6991b(h),6991d and 6991e, as well as under any other applicable
statutory and regulatory provisions.
(c) To retain program approval, Utah 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 Utah 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) Utah has final approval for the following elements of its
program
[[Page 55291]]
application originally submitted to EPA and approved effective April 7,
1995, and the program revision application approved by EPA effective on
January 4, 2019:
(1) State statutes and regulations--(i) Incorporation by reference.
The Utah provisions cited in this paragraph, and listed in Appendix A
to part 282, are incorporated by reference as part of the underground
storage tank program under 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 the Utah regulations that are incorporated by
reference in this paragraph from Utah's Office of Administrative Rules,
Office Coordinator, P.O. Box 141007, Salt Lake City, UT 84114-1007;
Phone number: 801-538-3003; website: https://rules.utah.gov/publications/utah-adm-code/. You may inspect all approved material at
the EPA Region 8, 1595 Wynkoop Street, Denver, Colorado 80202 (Phone
number (303) 312-6284 or the National Archives and Records
Administration (NARA). For information on the availability of the
material at NARA, call 202-741-6030 or go to http://www.archives.gov/federal-register/cfr/ibr-locations.html.
(A) Utah Statutory and Regulatory Requirements Applicable to the
Underground Storage Tank Program, October 2018.
(B) [Reserved]
(ii) Legal basis. EPA evaluated the following statutes and
regulations which provide the legal basis for the State's
implementation of the underground storage tank program, but they are
not being incorporated by reference and do not replace Federal
authorities:
(A) The statutory provisions include: Utah Code (May 8, 2018),
Title 19, ``Environmental Quality Code,'' Chapter 6, ``Hazardous
Substances,'' Part 4 ``Underground Storage Tank Act'': Sections 19-6-
402 (14); 19-6-404(2)(f), (j), and (m); 19-6-407(2); 19-6-414; 19-6-
416; 19-6-418; 19-6-420(2), (4)(a), (5)(b), (8), and (9)(b); 19-6-
424.5; 19-6-425; 19-6-426(5) and (6); 19-6-427, and 19-5-429(1).
(B) The regulatory provisions include:
(1) Utah Administrative Code (January 1, 2017), Title 311:
``Environmental Quality, Environmental Response and Remediation'':
Sections R311-206-7(a) and (f); R311-208-1 through R311-208-5.
(2) Utah Administrative Code (January 1, 2017), Title 305:
``Environmental Quality, Administrative Procedures'': Sections R305-7-
101 through R305-7-113; R305-7-200 through R305-7-217; R305-7-301
through R305-7-320; R305-7-401 through R305-7-403; R305-7-501 through
R305-7-503; and R305-7-601 through R305-7-623.
(iii) Provisions not incorporated by reference. The following
specifically identified sections and rules applicable to the Utah
underground storage tank program that are broader in coverage than the
federal program, are not part of the approved program, and are not
incorporated by reference herein for enforcement purposes:
(A) Utah Code (May 8, 2018), Title 19: ``Environmental Quality
Code,'' Chapter 6, ``Hazardous Substances,'' Part 4 ``Underground
Storage Tank Act'': Sections 19-6-412(6); and 19-6-411(7).
(B) Utah Administrative Code (January 1, 2017), Title 311:
``Environmental Quality, Environmental Response and Remediation'':
Sections R311-201-2; R311-201-4; R311-201-5 through 10; R311-203-3(b),
(c) and (g); R311-203-4; R311-206-2(a)(1), (b) and (c); and R311-206-
8(a)(1)--(4) and (f)(1)(A).
(2) Statement of legal authority. The Attorney General's
Statements, signed by the Assistant Attorney General and Director of
the Environment and Health Division of the Utah Attorney General's
Office of the State of Utah on October 2, 2017, 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.
(3) Demonstration of procedures for adequate enforcement. The
``Demonstration of Procedures for Adequate Enforcement'' submitted as
part of the original application on February 28, 2018, 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 on February 28,
2018, 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 8 and the Utah Department of Environmental Quality, signed
by the EPA Acting Regional Administrator on July 27, 2017, 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
3. Appendix A to part 282 is amended by revising the entry for Utah to
read as follows:
Appendix A to Part 282--State Requirements Incorporated by Reference in
Part 282 of the Code of Federal Regulations
* * * * *
Utah
(a) The statutory provisions include: Utah Code, Title 19:
``Environmental Quality Code,'' Chapter 1, ``General Provisions,
Part 2, Powers,'' (May 8, 1991) and Chapter 6, ``Hazardous
Substances, Part 4, Underground Storage Tank Act'' (May 8, 2018):
Section 19-1-203, Representatives of department authorized to
enter regulated premises.
Section 19-6-402, Definitions, except (3), (4), (8), (9), (11),
(14), (15), (20), (23) and (26).
Section 19-6-402.5, Retroactive effect.
Section 19-6-403, Powers and duties of board, except (1)(a)(i),
(1)(a)(vi) and (1)(a)(vii).
Section 19-6-404, Powers and duties of director, except 2(c),
2(f), 2(j) and 2(m).
Section 19-6-407, Underground storage tank registration--Change
of ownership or operation--civil penalty, except (2) and (3).
Section 19-6-413, Tank tightness test--Action required after
testing.
Section 19-6-420 Abatement actions--Corrective actions, except
(1) through (3)(b), (4)(a), (5)(b) and (c), (6), and 9(b).
(b) Administrative Rules of the State of Utah, Title 311
Environmental Quality, Environmental Response and Remediation, Utah
Administrative Code (April 1, 2018):
(1) Section R311-200-1, Underground Storage Tanks: Definitions,
except (b)(2), (b)(5), (b)(6), (b)(7), (b)(10), (b)(11), (b)(12),
(b)(13), (b)(20), (b)(22), (b)(28), (b)(34), (b)(38), (b)(44),
(b)(45), (b)(49), (b)(51), (b)(55), (b)(56), (b)(58), and (b)(59).
Section R311-201-1, Underground Storage Tanks: Definitions,
except those definitions listed as excepted under R311-200-1.
Section R311-201-12, Underground Storage Tanks: Certification
Programs and UST Operator Training, UST Operator Training and
Registration, except (d)(2) and (f).
Section R311-202-1, Federal Underground Storage Tank
Regulations, Incorporation by reference, except (a), (b), (c), and
(d).
Section R311-203-1, Underground Storage Tanks: Technical
Standards, Definitions, except those definitions listed as excepted
under R311-200-1.
Section R311-203-2, Notification.
Section R311-203-3, New installations, permits, except (b), (c),
and (g).
Section R311-203-5, UST testing requirements.
Section R311-203-6, Secondary containment and under-dispenser
containment.
Section R311-203-7, Operator inspections.
Section R311-203-8, Unattended facilities.
Section R311-204-1, Underground Storage Tanks: Closure and
Remediation, Definitions, except those definitions listed as
excepted under R311-200-1.
[[Page 55292]]
Section R311-204-2, Underground Storage Tank Closure Plan.
Section R311-204-3, Disposal.
Section R311-204-4, Closure notice.
Section R311-205-1, Underground Storage Tanks: Site Assessment
Protocol, Definitions, except those definitions listed as excepted
under R311-200-1.
Section R311-205-2, Site assessment protocol.
Section R311-206-1, Underground Storage Tanks: Certificate of
Compliance and Financial Assurance Mechanisms, Definitions, except
those definitions listed as excepted under R311-200-1.
Section R311-206-2, Declaration of financial assurance
mechanisms, except (a)(1), (b), and (c).
Section R311-206-3, Requirements for issuance of certificates of
compliance, except (7) and (8).
Section R311-206-5, Requirements for owners and operators
demonstrating financial assurance by other methods, except (b) and
(b)(2).
Section R311-206-8, Delivery prohibition, except (a)(1)--(4) and
(f)(1)(A).
(c) Copies of the Utah regulations that are incorporated by
reference are available from the Utah's Office of Administrative
Rules, Office Coordinator, P.O. Box 141007, Salt Lake City, UT
84114-1007; Phone number: 801-538-3003; website: https://rules.utah.gov/publications/utah-adm-code/.
[FR Doc. 2018-24062 Filed 11-2-18; 8:45 am]
BILLING CODE 6560-50-P