[Federal Register Volume 84, Number 144 (Friday, July 26, 2019)]
[Rules and Regulations]
[Pages 36000-36007]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-15311]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 282

[EPA-R10-UST-2019-0191; 9996-69-Region 10]


Oregon: 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 Oregon'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 
Oregon'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 September 24, 2019, unless the EPA 
receives adverse comment by August 26, 2019. 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 material listed in the 
regulations is approved by the Director of the Federal Register, as of 
September 24, 2019.

ADDRESSES: Submit your comments by one of the following methods:
    1. Federal eRulemaking Portal: https://www.regulations.gov. Follow 
the online instructions for submitting comments.
    2. Email: [email protected].
    3. Mail: Scott Wilder, Region 10, Enforcement and Compliance 
Assurance Division, EPA Region 10, 1200 Sixth Avenue, Suite 155, MS: 
OCE-201, Seattle, WA 98101.
    4. Hand Delivery or Courier: Deliver your comments to Scott Wilder, 
Region 10, Enforcement and Compliance Assurance Division, EPA Region 
10, 1200 Sixth Avenue, Suite 155, Seattle, WA 98101.
    Instructions: Direct your comments to Docket ID No. EPA-R10-UST-
2019-0191. EPA's policy is that all comments received will be included 
in the public docket without change and may be available online at 
https://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, then 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, then 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 
10, 1200 Sixth Avenue, Suite 155, Seattle, WA 98101, phone number (206) 
553-6693. Interested persons wanting to examine these documents should 
make an appointment with the office at least 2 days in advance.

FOR FURTHER INFORMATION CONTACT: Scott Wilder, (206) 553-6693, 
[email protected]. To inspect the hard copy materials, please 
schedule an appointment with Scott Wilder at (206) 553-6693.

SUPPLEMENTARY INFORMATION: 

I. Approval of Revisions to Oregon'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 October 19, 2018, in accordance with 40 CFR 281.51(a), Oregon 
submitted a complete program revision application seeking the EPA 
approval for its UST program revisions (State Application). Oregon'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 Oregon's UST program are equivalent to, consistent with, and no less 
stringent than the corresponding Federal requirements in subpart C of 
40 CFR part 281, and that the Oregon program provides for adequate 
enforcement of compliance with these requirements (40 CFR 281.11(b)). 
Therefore, the EPA grants Oregon final approval to operate its UST 
program with the changes described in the program revision

[[Page 36001]]

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 Oregon, 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. Oregon did not receive any comments 
during its comment period when the rules and regulations being 
considered in this document 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, then 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, then 
you must do so at this time.

F. For what has Oregon previously been approved?

    On September 16, 2011, the EPA finalized a rule approving the UST 
program that Oregon proposed to administer in lieu of the Federal UST 
program. On April 30, 2012, the EPA codified the provisions of the 
approved Oregon 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 part 281, subpart B (Components of a Program Application); 
subpart C (Criteria for No Less Stringent); and subpart D (Adequate 
Enforcement of Compliance). This is also 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 Oregon UST program will continue 
to provide for adequate enforcement of compliance with these 
requirements as described in 40 CFR 281.11(b) and part 281, subpart D, 
after this approval.
    The Oregon Department of Environmental Quality (DEQ) is the lead 
implementing agency for the UST program in Oregon, except in Indian 
country.
    The DEQ continues to have broad statutory authority to regulate the 
installation, operation, maintenance, and closure of USTs, as well as 
UST releases under Oregon Statutes (2017), Chapter 466, Hazardous Waste 
and Hazardous Materials II, Sections 605-995. The Oregon UST Program 
gets its enforcement authority from the powers and duties of the DEQ 
found in Chapter 466, Section 015. Under Chapter 466, Sections 765(3), 
765(5), and 805(a) the DEQ is authorized to require an owner to furnish 
records, conduct monitoring or testing, and provide access to tanks. 
The DEQ is authorized to issue, modify, suspend, revoke or refuse to 
renew a permit under Chapter 466, Section 775. Penalties for non-
compliance may be assessed under Chapter 466, Section 837(1).
    Specific authorities to regulate the installation, operation, 
maintenance, and closure of USTs, as well as UST releases are found 
under Oregon Administrative Rule (OAR), as amended effective June 1, 
2018, Chapter 340, Division 150, Underground Storage Tank Rules; DEQ 
may prohibit delivery to any UST identified by DEQ as ineligible for 
delivery under OAR 340-150-0020(1), 0080, 0150, 0152, and 0163; 
reporting and recordkeeping requirements are found under OAR 340-150-
0135. Procedures for receipt, evaluation, retention and investigation 
of required records and reports are under OAR 340-150-0135. 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 Oregon and 
the EPA, effective September 24, 2019, 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 Oregon 
Rules of Civil Procedure 33C, its analogue to Federal Rule 24(a)(2), on 
the grounds that the applicant's interest is adequately represented by 
the State. Oregon 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 DEQ has revised its regulations to help ensure that the State's 
UST program revisions are equivalent to, consistent with, and no less 
stringent than the 2015 Federal Revisions.
    Title 40 CFR 281.39 describes the state operator training 
requirements that must be met to be considered equivalent to, 
consistent with, and no less stringent than Federal requirements. 
Oregon did not incorporate by reference Federal requirements for 
operator training, and has promulgated and is implementing its own 
operator training provisions under OAR 340-150-0200, 0210, and 0315. 
After a thorough review, the EPA has determined that Oregon's operator 
training requirements are equivalent to, consistent with, and no less 
stringent than federal requirements.
    As part of the State Application the Oregon Attorney General 
certified that the State revisions meet the

[[Page 36002]]

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.

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 is 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:
    Heating oil tanks are regulated under OAR Chapter 340 Division 177. 
DEQ's requirement to report and clean up releases from underground 
heating oil tanks (HOTs) is broader in scope. Additionally, DEQ 
encourages voluntary decommissioning of HOTs and licenses UST and HOT 
service providers and supervisors. These programs are also broader in 
scope than the federal program.
    Tank owners who install, decommission or test their own tanks are 
required to take the same proficiency examination as UST supervisors to 
ensure that they have the technical knowledge to do the work safely and 
correctly.
    The universe of ``suspected releases that trigger reporting, 
investigation and confirmation'' under OAR 340-150-0500 may be broader 
than the Federal rule, including discovery of a release into a 
secondary containment area and monitoring results or alarms from 
release detection systems.
    The State has provided for release response and corrective action 
in its remedial action rules under OAR Chapter 340, Division 122. As a 
general matter, the universe of regulated persons is broader under the 
state rules than under the federal rules. The obligations in Division 
122 are imposed upon ``the responsible person,'' a term that appears to 
encompass a broader class of persons than the term ``owner and 
operator''.
    The State standard for system cleaning upon permanent closure is 
the same as that found at 40 CFR 280.71(b), except that the State 
requirements apply to the UST system as a whole, whereas the Federal 
requirements apply to tanks. If the permittee proposes to close the UST 
in place and fill it, then the permittee must submit a site assessment 
plan. Closure cannot begin until the plan is approved by the DEQ.
    The operation and maintenance of corrosion protection systems apply 
to all USTs and piping. The Federal rules apply only to steel UST 
systems with corrosion protection.
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:
    The State rules do not allow the use of metal tanks or piping 
without corrosion protection as allowed in 40 CFR 280.20(a)(4) and 
(b)(3), which states that no corrosion protection is required for metal 
tanks and piping installed at a site that have been determined by a 
corrosion expert not to be corrosive enough to cause either the tank or 
the piping to have a release due to corrosion during its operating 
life. Because the State does not allow the alternative to corrosion 
protection found in 40 CFR 280.20(a)(4), the State rules do not have a 
recordkeeping requirement that corresponds with that in 40 CFR 
280.34(b)(1). OAR 340-150-0320.
    The State rules do not allow for the use of alternative types of 
tanks and piping determined to be equally protective in preventing 
releases as those otherwise identified in the rules, as allowed in 40 
CFR 280.20(a)(5) and (b)(4).
    The State rules allow only one mode of certifying the installation. 
The certification of compliance must be signed by the owner, permittee 
and a service provider licensed by the department, and must certify 
that the system has been installed in compliance with the required 
methods and standards. OAR 340-150-0160.
    The State rules require used USTs that have been removed from the 
ground to be certified by a UST manufacturer in writing before being 
reused. OAR 340-150-0302(2).
    The owner and permittee must notify DEQ at least 30 days before 
beginning installation of a UST system. (DEQ may allow a shorter period 
on a case-by-case basis) OAR 340-150-0160(2).
    The owner and permittee must notify DEQ of the confirmed time and 
date of the installation of the UST system at least three working days 
before beginning the installation. DEQ may also request additional 
notifications. OAR 340-150-0160(3).
    DEQ's installation checklist required upon completion of the 
installation requires certification of compliance with required 
installation standards and methods, and the standards for spill and 
overfill prevention, corrosion protection release detection and 
financial responsibility as is required by 40 CFR 280.22. DEQ's 
installation checklist also requires the owner and permittee to provide 
substantially more information than appears to be required by 40 CFR 
280.22(e) and (f).
    Repaired tanks and piping must be tested after completion of the 
repairs and before operation. OAR 340-150-0350(3)(a) and (4). The 
Federal rules allow an UST system to return to service providing 
testing is conducted within 30 days of repair.
    Any test failures must be reported to DEQ. OAR 340-150-0163(1)(c) 
and (e); OAR 340-150-0325(4); OAR 340-150-0350(3)(a) and (4).
    Repaired tanks, except tanks repaired by lining, must be certified 
as meeting the performance standards by the original manufacturer or, 
if unavailable, another manufacturer of the same type of tank. OAR-340-
0350.
    The State requires an investigation of the magnitude and extent of 
soil and groundwater contamination if not otherwise fully identified in 
the course of the initial site characterization. OAR 340-122-0240. This 
requirement is more stringent than those under 40 CFR 280.65, to the 
extent that the additional investigation in 40 CFR 280.65 is triggered 
only if groundwater wells have been affected, free product is found to 
need recovery, soils may be in contact with groundwater or the 
implementing agency requests an investigation.
    The permittee must perform a site assessment before permanent 
closure or change in service. OAR 340-150-0168 and OAR 340-150-0180. 
The State requirements are more stringent in that the owner or 
permittee, which is using groundwater or vapor monitoring in accordance 
with state rules, cannot satisfy the requirements of the site 
assessment by relying on their release detection method in place at the 
time of closure as allowed by 40 CFR 280.72(a).
    The rules in OAR Division 150 apply to all UST systems taken out of 
operation between January 1, 1974 and May 1, 1988, if not emptied and 
cleaned as required by OAR 340-150-0168(4), and to all UST systems 
taken out of operation before January 1, 1974, if not empty. OAR 340-
150-0006(2). This

[[Page 36003]]

requirement is more stringent than the Federal standard in 40 CFR 
280.73, which states that the owner and operator of an UST system 
permanently closed before December 22, 1988, must assess the excavation 
zone and close the UST system in accordance with the subpart if 
releases from the UST may, in the judgment of the implementing agency, 
pose a current or potential threat to human health and the environment.
    The State rules do not include the options for overfill prevention 
equipment found in 40 CFR 280.20(c)(1)(ii)(C) and (c)(2)(i). In 40 CFR 
280.20(c)(1)(ii)(C), Federal rules allow an overfill device that can 
restrict flow 30 minutes prior to overfilling, alert the transfer 
operator with a high-level alarm one minute before overfilling, or 
automatically shut off flow into the tank so that none of the fittings 
located on top of the tank are exposed to product due to overfilling. 
In 40 CFR 280.20(c)(2)(i), Federal rules state that owners and 
operators are not required to use the spill and overfill prevention 
equipment specified in paragraph (c)(1) of the section if alternative 
equipment is used that is determined by the implementing agency to be 
no less protective of human health and the environment than the 
equipment specified in 40 CFR 280.20(c)(1)(i) or (ii).

I. How does this action affect Indian country (18 U.S.C. 1151) in 
Oregon?

    The EPA's approval of Oregon'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 Oregon: Burns Paiute, Grande Ronde, 
Klamath, Siletz, Umatilla and Warm Springs Reservations; 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. 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 Oregon's UST program?

    The EPA incorporated by reference and codified Oregon's then-
approved UST program in 40 CFR 282.87, effective June 29, 2012 (77 FR 
25368, April 30, 2012). Through this action, the EPA is incorporating 
by reference and codifying Oregon's State program in 40 CFR 282.87 to 
include the approved revisions.

C. What codification decisions have we made in this rule?

    In this rule, we are finalizing the regulatory text that 
incorporates by reference the federally authorized Oregon UST Program. 
In accordance with the requirements of 1 CFR 51.5, we are finalizing 
the incorporation by reference of the Oregon 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 10 office (see the ADDRESSES 
section of this preamble for more information).
    One purpose of this Federal Register document is to codify Oregon'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 
Oregon UST program addressed in this direct final rule become final. 
If, however, the EPA receives substantive comment on the 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 Oregon 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 
Oregon program.
    The EPA is incorporating by reference the Oregon approved UST 
program in 40 CFR 282.87. Section 282.87(d)(1)(i)(A) and (B) 
incorporate by reference for enforcement purposes the State's relevant 
statutes and regulations. Section 282.87 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 
Oregon, 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 282.87(d)(1)(i), the EPA is not incorporating by 
reference Oregon'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 282.87(d)(1)(iii) lists for 
reference and clarity the Oregon 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 in this 
rule. 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.

[[Page 36004]]

III. Statutory and Executive Order (E.O.) Reviews

    This action only applies to Oregon'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

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is 
therefore not subject to review under Executive Orders 12866 and 13563 
(76 FR 3821, January 21, 2011).

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 Oregon'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 
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, as 
defined in Executive Order 12866, and because the EPA does not believe 
the environmental health or safety risks addressed by this action 
present a disproportionate risk to children.

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 September 24, 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

[[Page 36005]]

reference, State program approval, Underground storage tanks.

    Dated: June 27, 2019.
Chris Hladick,
Regional Administrator, EPA Region 10.

    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.  282.87 to read as follows:


Sec.  282.87  Oregon State-Administered Program.

    (a) The State of Oregon 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 Oregon Department of Environmental Quality (DEQ), 
was approved by EPA pursuant to 42 U.S.C. 6991c and part 281 of this 
chapter. The EPA published the notice of final determination approving 
the Oregon underground storage tank base program effective on September 
16, 2011. A subsequent program revision application was approved by the 
EPA and became effective on September 24, 2019.
    (b) Oregon has primary responsibility for administering and 
enforcing its federally approved underground storage tank program. 
However, the 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, Oregon 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 Oregon obtains 
approval for the revised requirements pursuant to Section 9004 of RCRA, 
42 U.S.C. 6991c, then the newly approved statutory and regulatory 
provisions will be added to this subpart and notification of any change 
will be published in the Federal Register.
    (d) Oregon has final approval for the following elements of its 
program application originally submitted to the EPA and approved 
effective September 16, 2011, and the program revision application 
approved by the EPA, effective on September 24, 2019:
    (1) State statutes and regulations. (i) The materials cited in this 
paragraph (d)(1) are incorporated by reference as part of the 
underground storage tank program under Subtitle I of RCRA, 42 U.S.C. 
6991 et seq., with the approval of the Director of the Federal Register 
under 5 U.S.C. 552(a) and 1 CFR part 51. To enforce any edition other 
than that specified in this section, the EPA must publish a document in 
the Federal Register and the material must be available to the public. 
All approved material is available for inspection at EPA Region 10, 
1200 Sixth Avenue, Suite 155, Seattle, WA 98101, phone number (206) 
553-6693. Copies of Oregon's program application may be obtained from 
the Underground Storage Tank Program, Oregon Department of 
Environmental Quality, 811 SW Sixth Avenue, Portland, Oregon, 97204. 
All approved material is also available for inspection at the National 
Archives and Records Administration (NARA). For information on the 
availability of the material at NARA, call 202-741-6030 or go to 
www.archives.gov/federal-register/cfr/ibr-locations.html.
    (A) Oregon Statutory Requirements Applicable to the Underground 
Storage Tank Program, June 2018.
    (B) Oregon Regulatory Requirements Applicable to the Underground 
Storage Tank Program, June 2018.
    (ii) The EPA considered the following statutes and regulations in 
evaluating the State program, but did not incorporate them by 
reference.
    (A) The statutory provisions include:
    (1) Oregon Revised Statutes, Chapter 183, Administrative Procedures 
Act, 2017, insofar as the provisions and procedures apply to the 
underground storage tank program.
    (2) Chapter 465, Hazardous Waste and Hazardous Materials I (Removal 
or Remedial Action: Sections 465.200-465.482 and 465.900), insofar as 
these provisions apply to matters involving an ``underground storage 
tank'' as that term is defined in ORS 466.706(21), as limited by the 
exclusions listed in ORS 466.710, except that the term does not include 
a tank used for storing heating oil for consumptive use on the premises 
where stored. The following Sections are part of the approved State 
program, although not incorporated by reference herein for enforcement 
purposes: Sections 465.205 through 465.250, 465.257 through 465.300, 
465.310 through 465.335, 465.400 through 465.435, 465.445 through 
465.455 and 465.900.
    (3) Chapter 466, Hazardous Waste and Hazardous Materials II (Oil 
Storage Tanks: Sections 466.706-466.920 and Sections 466.990-466.995), 
insofar as these provisions apply to matters involving an ``underground 
storage tank'' as that term is defined in ORS 466.706(21), as limited 
by the exclusions listed in ORS 466.710, except that the term does not 
include a tank used for storing heating oil for consumptive use on the 
premises where stored. The following Sections are part of the approved 
State program, although not incorporated by reference herein for 
enforcement purposes: Sections 466.715 through 466.735, 466.746, 
466.760, 466.775 through 466.780, 466.791 through 466.810, 466.820, 
466.830 through 466.845, 466.901 through 466.920 and 466.994 through 
466.995.
    (4) Chapter 468 Environmental Quality Generally, insofar as these 
provisions apply to matters involving an ``underground storage tank'' 
as that term is defined in ORS 466.706(21), as limited by the 
exclusions listed in ORS 466.710, except that the term does not include 
a tank used for storing heating oil for consumptive use on the premises 
where stored. The following Sections are part of the approved State 
program, although not incorporated by reference herein for enforcement 
purposes: Sections 468.005 through 468.050, 468.090 through 468.140 and 
468.963.
    (B) The regulatory provisions include:
    (1) Oregon Administrative Rules, Chapter 340, Division 11: Section 
340-11-0545.
    (2) Oregon Administrative Rules, Chapter 340, Division 12: Sections 
340-012-0026 through 340-012-0053, 340-012-0067 (with the exception of 
subparagraphs (1)(k) and (l) and (2)(g) through (j)), 340-012-0074 
(with the exception of subparagraph (1)(g)) and 340-012-0170 insofar as 
this applies to violations involving an underground storage tank.
    (3) Oregon Administrative Rules, Chapter 340, Division 122: 
Sections 340-122-0074 through 340-122-0079 and 340-122-0130 through 
340-122-0140.
    (4) Oregon Administrative Rules, Chapter 340, Division 142: Section 
340-142-0120.
    (5) Oregon Administrative Rules, Chapter 340, Division 150: 
Sections 340-150-0150 through 340-150-0152, 340-150-0250, 340-150-0600 
through 340-150-0620.
    (6) Oregon Code of Civil Procedure 33C.
    (7) Oregon Administrative Rules, Chapter 690, Division 240, insofar 
as

[[Page 36006]]

these provisions apply to matters involving an ``underground storage 
tank'' as that term is defined in ORS 466.706(21), as limited by the 
exclusions listed in ORS 466.710, except that the term does not include 
a tank used for storing heating oil for consumptive use on the premises 
where stored. The following Sections are part of the approved State 
program, although not incorporated by reference herein for enforcement 
purposes: Sections 690-240-0015, 690-240-0020, 690-240-0055 through 
690-240-0340 and 690-240-0560 through 690-240-0640.
    (iii) The following specifically identified sections and rules 
applicable to the Oregon underground storage tank program that are 
broader in scope than the Federal program, are not part of the approved 
program, and are not incorporated by reference herein for enforcement 
purposes:
    (A) The statutory provisions include:
    (1) Chapter 465, Hazardous Waste and Hazardous Materials I (Removal 
or Remedial Action): Sections 465.305; 465.340 through 465.391; 
465.440; and 465.475 through 465.482.
    (2) Chapter 466, Hazardous Waste and Hazardous Materials II (Oil 
Storage Tanks): Sections 466.750; 466.783 through 466.787; 466.858 
through 466.882; and 466.990 through 466.992).
    (3) Chapter 468, Environmental Quality Generally: Sections 468.055 
through 468.089.
    (B) The regulatory provisions include:
    (1) Oregon Administrative Rules, Chapter 340: Divisions 160, 162, 
163, 170, 177 and 178.
    (2) Oregon Administrative Rules, Chapter 837, Division 40.
    (2) Statement of legal authority. The Attorney General Statement, a 
letter signed on October 12, 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.
    (3) Demonstration of procedures for adequate enforcement. The 
``Demonstration of Procedures for Adequate Enforcement'' submitted as 
part of the application for approval on October 19, 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 October 19, 
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 10 and the Oregon Department of Environmental Quality, 
signed by the EPA Regional Administrator on March 19, 2019, 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 Oregon 
to read as follows:

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

* * * * *

Oregon

    (a) The statutory provisions include:

    (1) Chapter 465, Hazardous Waste and Hazardous Materials I 
(Removal or Remedial Action Sections 465.200 through 465.425):

465.200 Definitions for ORS 465.200 to 465.425 (except for Sections 
465.200(5) through (11) and (17) defining terms contained in the dry 
cleaning requirements; (13) ``facility'' insofar as it applies to a 
facility that is not an underground storage tank; (16) ``hazardous 
substance'' insofar as it applies to hazardous wastes and any 
substance that is not otherwise defined as a hazardous substance 
pursuant to section 101(14) of the Federal Comprehensive 
Environmental Response, Compensation and Liability Act or that is 
not oil; (28) ``underground storage tank'' insofar as it includes 
any tank or piping that is excluded under ORS 466.710 and also any 
tank used to store heating oil for consumptive use on the premises 
where stored.)
465.255 Strict liability for remedial action costs for injury or 
destruction of natural resource; limited exclusions (except insofar 
as this includes a person who is not an owner or operator of an 
underground storage tank and except insofar as the exclusions would 
exclude persons who would be liable under Section 9003(h)(6) of 
RCRA).

    (2) Chapter 466, Hazardous Waste and Hazardous Materials II (Oil 
Storage Tanks):

466.706 Definitions for ORS 466.706 to 466.882 and 466.994 (except 
for the following definitions: Section 466.706(17) ``regulated 
substance'' insofar as it would include substances designated by the 
commission under subsection (c) that are not included under 
subsections (a) and (b) of this definition; (21) ``underground 
storage tank'' insofar as it includes any tank or piping that is 
excluded under ORS 466.710, and any tank used to store heating oil 
for consumptive use on the premises where stored.)
466.710 Application of ORS 466.706 to 466.882 and 466.994
466.740 Noncomplying installation prohibited
466.743 Training on operation, maintenance and testing; rules
466.765 Duty of owner or permittee of underground storage tank
466.770 Corrective action required on contaminated site
466.815 Financial responsibility of owner or permittee; rules; 
legislative review
466.825 Strict liability of owner or permittee

    (b) The regulatory provisions include:
    (1) Oregon Administrative Rules, Chapter 340, Division 122 
insofar as the following rules apply to a release from an 
underground storage tank, excluding tanks used to store heating oil 
for consumptive use on the premises where stored.

340-122-0010 Purpose
340-122-0030 Scope and Applicability
340-122-0040 Standards
340-122-0047 Generic remedies
340-122-0050 Activities
340-122-0070 Removal
340-122-0071 Site Evaluation
340-122-0072 Preliminary Assessments
340-122-0073 Confirmation of Release
340-122-0080 Remedial Investigation
340-122-0084 Risk Assessment
340-122-0085 Feasibility Study
340-122-0090 Selection or Approval of the Remedial Action
340-122-0100 Public Notice and Participation
340-122-0110 Administrative Record
340-122-0115 Definitions insofar as the definition applies to an 
underground storage tank, excluding tanks used to store heating oil 
for consumptive use on the premises where stored
340-122-0120 Security Interest Exemption
340-122-0205 Purpose
340-122-0210 Definitions except insofar as the definition of 
``responsible person'' includes a person who does not own or operate 
an underground storage tank
340-122-0215 Scope and Applicability
340-122-0217 Requirements and Remediation Options
340-122-0218 Sampling and Analysis
340-122-0220 Initial Response
340-122-0225 Initial Abatement Measures and Site Check
340-122-0230 Initial Site Characterization
340-122-0235 Free Product Removal
340-122-0240 Investigation for Magnitude and Extent of Contamination
340-122-0243 Low-Impact Sites
340-122-0244 Risk-Based Concentrations
340-122-0250 Corrective Action Plan
340-122-0252 Generic Remedies
340-122-0260 Public Participation
340-122-0320 Soil Matrix Cleanup Options
340-122-0325 Evaluation of Matrix Cleanup Level
340-122-0330 Evaluation Parameters
340-122-0335 Numeric Soil Cleanup Standards
340-122-0340 Sample Number and Location
340-122-0345 Sample Collection Methods
340-122-0355 Evaluation of Analytical Results
340-122-0360 Reporting Requirements

    (2) Oregon Administrative Rules, Chapter 340, Division 142 
insofar as the following rules apply to a release from an 
underground storage tank, excluding tanks used to store heating oil 
for consumptive use on the premises where stored.

340-142-0001 Purpose and Scope

[[Page 36007]]

340-142-0005 Definitions as Used in This Division Unless Otherwise 
Specified
340-142-0030 Emergency Action
340-142-0040 Required Reporting
340-142-0050 Reportable Quantities
340-142-0060 Cleanup Standards
340-142-0070 Approval Required for Use of Chemicals
340-142-0080 Disposal of Recovered Spill Materials
340-142-0090 Cleanup Report
340-142-0100 Sampling/Testing Procedures
340-142-0130 Incident Management and Emergency Operations

    (3) Oregon Administrative Rules, Chapter 340, Division 150.

340-150-0001 Purpose
340-150-0006 Applicability and General Requirements
340-150-0008 Exemptions and Deferrals
340-150-0010 Definitions
340-150-0020 UST General Permit Registration Certificate Required 
except insofar as this provision applies to a person who does not 
own or operate an underground storage tank and except insofar as the 
payment of fees is required
340-150-0021 Termination of Temporary Permits
340-150-0052 Modification of Registration Certificates for Changes 
in Ownership and Permittee except insofar as the payment of fees is 
required
340-150-0080 Denial, Suspension or Revocation of General Permit 
Registration Certificates except insofar as this provision applies 
to a person who does not own or operate an underground storage tank
340-150-0102 Termination of Registration Certificates
340-150-0110 UST General Permit Registration, Annual Compliance and 
Other Fees except insofar as the payment of fees is required
340-150-0135 General Requirements for Owners and Permittees
340-150-0137 UST Systems with Field-Constructed Tanks and Airport 
Hydrat Fuel Distribution Systems
340-150-0140 Requirements for Sellers of USTs
340-150-0156 Performance of UST Services by Owners or Permittees
340-150-0160 General Permit Requirements for Installing an UST 
System except insofar as this provision applies to a person who does 
not own or operate an underground storage tank
340-150-0163 General Permit Requirements for Operating an UST System 
except insofar as the payment of fees is required
340-150-0167 General Permit Requirements for Temporary Closure of an 
UST System except insofar as the payment of fees is required
340-150-0168 General Permit Requirements for Decommissioning an UST 
System by Permanent Closure except insofar as this provision applies 
to a person who does not own or operate an underground storage tank 
and except insofar as the payment of fees is required
340-150-0180 Site Assessment Requirements for Permanent Closure or 
Change-in-Service
340-150-0200 Training Requirements for UST System Operators and 
Emergency Response Information
340-150-0210 Training Requirements for UST Operators
340-150-0302 Installation of Used USTs
340-150-0310 Spill and Overfill Prevention Equipment and 
Requirements
340-150-0315 Priodic operation and maintenance walkthrough 
inspections
340-150-0320 Corrosion Protection Performance Standards for USTs and 
Piping
340-150-0325 Operation and Maintenance of Corrosion Protection
340-150-0350 UST System Repairs
340-150-0352 UST System Modifications and Additions
340-150-0354 UST System Replacements
340-150-0360 Requirements for Internally Lined USTs
340-150-0400 General Release Detection Requirements for Petroleum 
UST Systems
340-150-0410 Release Detection Requirements and Methods for 
Underground Piping
340-150-0420 Release Detection Requirements for Hazardous Substance 
UST Systems
340-150-0430 Inventory Control Method of Release Detection
340-150-0435 Statistical Inventory Reconciliation Method of Release 
Detection
340-150-0440 Manual Tank Gauging Release Detection Method
340-150-0445 Tank Tightness Testing for Release Detection and 
Investigation
340-150-0450 Automatic Tank Gauging Release Detection Method
340-150-0465 Interstitial Monitoring Release Detection Method
340-150-0470 Other Methods of Release Detection
340-150-0500 Reporting Suspected Releases
340-150-0510 Suspected Release Investigation and Confirmation Steps
340-150-0520 Investigation Due to Off Site Impacts
340-150-0540 Applicability to Previously Closed UST Systems
340-150-0550 Definitions for OAR 340-150-0555 and 340-150-0560
340-150-0555 Compliance Dates for USTs and Piping
340-150-0560 Upgrading Requirements for Existing UST Systems

    (4) Oregon Administrative Rules, Chapter 340, Division 151

340-151-0001 Purpose
340-151-0010 Scope and Applicability
340-151-0015 Adoption and Applicability of United States 
Environmental Protection Agency Regulations
340-151-0020 Definitions
340-151-0025 Oregon-Specific Financial Responsibility Requirements

* * * * *

[FR Doc. 2019-15311 Filed 7-25-19; 8:45 am]
BILLING CODE 6560-50-P