[Federal Register Volume 85, Number 180 (Wednesday, September 16, 2020)]
[Rules and Regulations]
[Pages 57754-57756]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-18567]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 281

[EPA-R04-UST-2020-0248; FRL-10013-46-Region 4]


Commonwealth of Kentucky: Final Approval of State Underground 
Storage Tank Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Commonwealth of Kentucky (Commonwealth or State) has 
applied to the Environmental Protection Agency (EPA) for final approval 
of its Underground Storage Tank (UST) program under Subtitle I of the 
Resource Conservation and Recovery Act (RCRA or Act). The EPA has 
reviewed the Commonwealth's application (State Application) and has 
made a final determination that the Commonwealth's UST program (UST 
Program) described in the State Application satisfies all the 
requirements necessary to qualify for final approval. Thus, the EPA is 
granting final approval to the State to operate its UST Program for 
petroleum and hazardous substances. On July 1, 2020, the EPA provided 
notification and an opportunity for comment on the Agency's tentative 
determination to approve the State's UST Program. No comments were 
received on the Agency's tentative determination and no further 
opportunity for comment will be provided.

DATES: This final determination and approval for the State's UST 
Program is effective September 16, 2020.

ADDRESSES: The documents that form the basis for this action are 
available electronically through www.regulations.gov (Docket ID No. 
EPA-R04-UST-2020-0248).

FOR FURTHER INFORMATION CONTACT: Ben Singh, RCRA Programs and Cleanup 
Branch, Land, Chemicals and Redevelopment Division, U.S. Environmental 
Protection Agency, Region 4, Atlanta Federal Center, 61 Forsyth Street 
SW, Atlanta, Georgia 30303-8960; Phone number: (404) 562-8922; email 
address: [email protected]. Please contact Ben Singh by phone or email 
for further information.

SUPPLEMENTARY INFORMATION:

I. Background

    Section 9004 of RCRA, 42 U.S.C. 6991c, authorizes the EPA to 
approve state UST programs to operate in lieu of the Federal UST 
program. Pursuant to RCRA section 9004(b), approval may be granted if 
the state program provides for adequate enforcement of compliance with 
the UST standards of RCRA section 9004(a); is ``no less stringent'' 
than the

[[Page 57755]]

Federal program for the seven elements set forth at RCRA section 
9004(a)(1) through (7); and includes the notification requirements of 
RCRA section 9004(a)(8). Note that RCRA sections 9005 (on information-
gathering) and 9006 (on Federal enforcement) by their terms apply even 
in states with programs approved by the EPA under RCRA section 9004. 
Thus, the Agency retains its authority under RCRA sections 9005 and 
9006, and other applicable statutory and regulatory provisions, to 
undertake inspections and enforcement actions in approved states. With 
respect to such an enforcement action, the Agency will rely on Federal 
sanctions, Federal inspection authorities, and Federal procedures, 
rather than the State analogues to these provisions.

II. Commonwealth of Kentucky

    The Kentucky Department for Environmental Protection (KYDEP) within 
the Energy and Environment Cabinet is the lead implementing agency for 
the UST Program in the Commonwealth. The most recent amendments to the 
State UST regulations became effective April 5, 2019, and include 
revisions which 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. The KYDEP has broad statutory 
and regulatory authority to regulate the installation, operation, 
maintenance, and closure of USTs, as well as UST releases, under Title 
XVIII of the Kentucky Revised Statutes (KRS), Chapter 224, Subchapter 
60, and Title 401 of the Kentucky Administrative Regulations (KAR), 
Chapter 42 (2019).
    In accordance with 40 CFR 281.50, the Commonwealth submitted a 
State Application to the EPA on October 7, 2019. On March 13, 2020, the 
EPA notified the Commonwealth that the State Application was complete. 
On July 1, 2020 (85 FR 39517), the EPA published a tentative 
determination announcing its intent to grant the Commonwealth final 
approval of its UST Program. Along with the tentative determination, 
the EPA announced the opportunity for public comment, and provided 
notice that a public hearing would be held if significant public 
interest was expressed. Because the EPA did not receive any comments or 
requests for a public hearing, no public hearing was held. In 
accordance with the requirements of 40 CFR 281.50(b), the State 
previously provided an opportunity for public notice and comment during 
the development of its UST Program regulations.

III. Final Approval Determination

    The EPA specifies the requirements that state UST programs must 
meet for approval under section 9004 of RCRA, and the procedures for 
approving, revising and withdrawing approval of state programs, in 40 
CFR part 281. In order to be approved, in accordance with section 9004 
of RCRA, each state program application must meet the general 
requirements in 40 CFR part 281, subpart A, and the 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).
    As more fully described below, the EPA has determined that the 
Commonwealth's UST Program satisfies the general and specific 
requirements for approval, is no less stringent than the Federal UST 
program, and will provide for adequate enforcement of compliance as 
required by 40 CFR part 281, subparts A, C, and D, after this approval. 
Following approval, the KYDEP will continue to be the lead implementing 
agency for the UST Program in the Commonwealth, and will regulate the 
installation, operation, maintenance and closure of USTs, as well as 
releases from USTs.
    As required by 40 CFR part 281, subpart B, 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 General 
Counsel Statement; and copies of all relevant State statutes and 
regulations. As part of the State Application, the Kentucky Energy and 
Environment Cabinet General Counsel, signing in lieu of the State 
Attorney General pursuant to 40 CFR 281.24,\1\ has certified that the 
State regulations provide for adequate enforcement of compliance and 
meet the no less stringent criteria in 40 CFR 281, and the EPA is 
relying on this certification in approving the State Program.
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    \1\ 40 CFR 281.24(a) requires an Attorney General's statement, 
but allows it to be signed by independent legal counsel for the 
state rather than the Attorney General, provided that such counsel 
has full authority to independently represent the State agency in 
court on all matters pertaining to the State UST Program. The 
Kentucky Energy and Environment Cabinet General Counsel has 
represented that it has such authority and has submitted such 
statement in the form of a General Counsel Statement.
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    The State Application demonstrates that the KYDEP has adequate 
authorities for enforcement of compliance, as described at 40 CFR part 
281, subpart D (281.40-43), including requirements for the UST 
compliance monitoring program; requirements for the UST compliance 
enforcement program; requirements for public participation; and the 
sharing of information.
    As part of the State Application, the Commonwealth has identified 
the following specific statutory and regulatory compliance monitoring 
program authorities, required pursuant to 40 CFR 281.40: KRS 224.1-400, 
KRS 224.10-100, KRS 224.60-105, KRS 224.60-155, and 401 KAR 42:020.
    As part of the State Application, the Commonwealth has identified 
the following specific statutory and regulatory compliance enforcement 
program authorities, required pursuant to 40 CFR 281.41: KRS 224.1-400, 
KRS 224.10-410, KRS 224.10-420, KRS 224.10-440, KRS 224.60-155, KRS 
224.99-010, 401 KAR 42:020, 400 KAR 1:090, and 400 KAR 1:100.
    As part of the State Application, the Commonwealth has identified 
the following specific authorities enabling public participation in the 
State enforcement process, required pursuant to 40 CFR 281.42: KRS 
224.10-420 and 400 KAR 1:090 Section 14. Further, through a Memorandum 
of Agreement between the Commonwealth and the EPA, effective September 
16, 2020, the State maintains procedures for receiving and ensuring 
proper consideration of information about violations submitted by the 
public, and the Commonwealth will not oppose citizen intervention when 
permissive intervention is allowed by statute, rule or regulation. As 
required pursuant to 40 CFR 281.43, through the Memorandum of Agreement 
between the State and the EPA, the State agrees to furnish the EPA, 
upon request, any information in State files obtained or used in the 
administration of the State program. Therefore, the EPA is approving 
the Commonwealth to operate the State UST Program as described in the 
State Application. The EPA is hereby concluding that the State 
Application for the Commonwealth's UST Program approval meets all of 
the statutory and regulatory requirements established by Subtitle I of 
RCRA. Accordingly, the Commonwealth's UST Program will operate in lieu 
of the Federal program. The Commonwealth will have primary enforcement 
authority and responsibility for its State UST Program. This action 
does not impose additional requirements on the

[[Page 57756]]

regulated community because the regulations being approved by this rule 
are already in effect in the Commonwealth, and are not changed by this 
determination. This action merely approves the existing State 
regulations as meeting the Federal requirements, thus rendering them 
federally enforceable. This final determination to approve the State 
UST Program applies to all areas within the State. Though the 
Commonwealth has primary enforcement responsibility, the EPA retains 
the right to conduct inspections under section 9005 of RCRA and to take 
enforcement actions under section 9006 of RCRA.
    States may enact laws that are more stringent than their Federal 
counterparts. See RCRA section 9008, 42 U.S.C. 6991g. When an approved 
state program includes requirements that are considered more stringent 
than those required by Federal law, the more stringent requirements 
become part of the federally approved program in accordance with 40 CFR 
281.12(a)(3)(i). The EPA has determined that some of the Commonwealth's 
regulations are considered more stringent than the Federal program, and 
upon approval, they will become part of the federally approved State 
UST Program and therefore federally enforceable. In addition, states 
may enact laws which have a greater scope of coverage than the Federal 
program. These provisions are considered broader in scope and are not 
part of the federally approved program and are therefore not federally 
enforceable. See 40 CFR 281.12(a)(3). Although these requirements are 
enforceable by the Commonwealth as a matter of State law, they are not 
RCRA requirements. The statutory and regulatory provisions the Agency 
has decided to approve are found generally at KRS 224.60-100 et seq. 
and 401 KAR 42:005 et seq. However, the EPA has determined that the 
following State UST Program requirements are broader in scope than the 
Federal program.\2\
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    \2\ If a statutory or regulatory provision is not identified in 
the following analysis as being broader in scope, then the provision 
is part of the approved UST Program and federally enforceable.
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Statutory Broader in Scope Provisions

     KRS 224.60-130 to 140, insofar as these relate to UST 
registration requirements, the establishment of a Petroleum 
Environmental Assurance Fee, and the administration of the State 
Petroleum Storage Tank Environmental Assurance Fund.
     KRS 224.60-150, insofar as it relates to the authority to 
levy and collect an annual fee of thirty (30) dollars per tank from 
owners or operators of USTs for the purpose of funding the 
administration of the UST Program.

Regulatory Broader in Scope Provisions

     401 KAR 42:020, section 2, insofar as it relates to the 
establishment of UST registration requirements and the collection of 
annual fees.
     401 KAR 42:250, insofar as it relates to eligibility 
requirements and administrative procedures for the Petroleum Storage 
Tank Environmental Assurance Fund.
     401 KAR 42:330, insofar as it relates to the eligibility 
requirements and rates for reimbursement from the Small Owners Tank 
Removal Account.
     401 KAR 42:060, insofar as it relates to the UST 
Corrective Action Manual for site investigations and corrective action 
activities for releases from UST systems.

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

    This final action merely approves Kentucky's UST Program 
requirements pursuant to RCRA section 9004 and does not impose 
additional requirements other than those imposed by State law. For 
further information on how this action complies with applicable 
executive orders and statutory provisions, please see the EPA's 
tentative determination published in the July 1, 2020 Federal Register 
at 85 FR 29517. The Congressional Review Act, 5 U.S.C. 801 et seq., as 
added by the Small Business Regulatory Enforcement Fairness Act of 
1996, 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). This final action will be effective September 16, 2020.

List of Subjects in 40 CFR Parts 281

    Environmental protection, Administrative practice and procedure, 
Petroleum, Hazardous substances, State program approval, Underground 
storage tanks, and Reporting and recordkeeping requirements.

    Authority: This action is issued under the authority of Sections 
2002(a), 7004(b), 9004, 9005 and 9006 of the Solid Waste Disposal 
Act, as amended, 42 U.S.C. 6912(a), 6974(b), 6991c, 6991d, and 
6991e.

    Dated: August 18, 2020.
Mary Walker,
Regional Administrator, Region 4.
[FR Doc. 2020-18567 Filed 9-15-20; 8:45 am]
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