Underground Storage Tank Program: Approved State Program for Utah

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 282

[FRL-5295-1]

Underground Storage Tank Program: Approved State Program for Utah

AGENCY: Environmental Protection Agency (EPA).

ACTION: Immediate final rule.

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SUMMARY: The Resource Conservation and Recovery Act of 1976, as amended

(RCRA), authorizes the U.S. Environmental Protection Agency (EPA) to

grant approval to states to operate their underground storage tank

programs in lieu of the federal program. 40 CFR part 282 codifies EPA's

decision to approve state programs and incorporates by reference those

provisions of the state statutes and regulations that will be subject

to EPA's inspection and enforcement authorities under sections 9005 and

9006 of RCRA subtitle I and other applicable statutory and regulatory

provisions. This rule codifies in part 282 the prior approval of Utah's

underground storage tank program and incorporates by reference

appropriate provisions of state statutes and regulations.

DATES: This regulation is effective December 5, 1995, unless EPA

publishes a prior Federal Register notice withdrawing this immediate

final rule. All comments on the codification of Utah's underground

storage tank program must be received by the close of business November

6, 1995. The incorporation by reference of certain publications listed

in the regulations is approved by the Director of the Federal Register,

as of December 5, 1995, in accordance with 5 U.S.C. 552(a).

ADDRESSES: Comments may be mailed to Jo Taylor, 8HWM-WM, Hazardous

Waste Management Division, Underground Storage Tank Program, U.S. EPA

Region 8, 999-18th Street, Suite 500, Denver, Colorado, 80202-2466.

Comments received by EPA may be inspected in U.S. EPA Region 8 Library,

Suite 144, 999 18th Street, Denver, Colorado 80202-2466 from 12:00 p.m.

to 4:00 p.m., Monday through Friday, excluding federal holidays.

FOR FURTHER INFORMATION CONTACT: Jo Taylor, 8HWM-WM, Underground

Storage Tank Program, U.S. EPA Region 8, 999-18th Street, Suite 500,

Denver, Colorado, 80202-2466. Phone: (303) 293-1511.

SUPPLEMENTARY INFORMATION:

Background

Section 9004 of the Resource Conservation and Recovery Act of 1976,

as amended, (RCRA), 42 U.S.C. 6991c, allows the U.S. Environmental

Protection Agency (EPA) to approve state underground storage tank

programs to operate in the state in lieu of the federal underground

storage tank program. EPA published a Federal Register document

announcing its decision to grant approval to Utah (60 FR 12709, March

8, 1995). Approval was effective on April 7, 1995.

EPA codifies its approval of State programs in 40 CFR part 282 and

incorporates by reference therein the state statutes and regulations

that will be subject to EPA's inspection and enforcement authorities

under sections 9005 and 9006 of subtitle I of RCRA, 42 U.S.C. 6991d and

6991e, and other applicable statutory and regulatory provisions.

Today's rulemaking codifies EPA's approval of the Utah underground

storage tank program. This codification reflects the state program in

effect at the time EPA granted Utah approval under section 9004(a), 42

U.S.C. 6991c(a) for its underground storage tank program. Notice and

opportunity for comment were provided earlier on the Agency's decision

to approve the Utah program, and EPA is not now reopening that decision

nor requesting comment on it.

This effort provides clear notice to the public of the scope of the

approved program in each state. By codifying the approved Utah program

and by amending the Code of Federal Regulations whenever a new or

different set of requirements is approved in Utah, the status of

federally approved requirements of the Utah program will be readily

discernible. Only those provisions of the Utah underground storage tank

program for which approval has been granted by EPA will be incorporated

by reference for enforcement purposes.

To codify EPA's approval of Utah's underground storage tank

program, EPA has added section 282.94 to title 40 of the CFR. Section

282.94 incorporates by reference for enforcement purposes the State's

statutes and 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 underground storage tank program under subtitle

I of RCRA.

The Agency retains the authority under sections 9005 and 9006 of

subtitle I of RCRA, 42 U.S.C. 6991d and 6991e, and other applicable

statutory and regulatory provisions to undertake inspections and

enforcement actions in approved states. With respect to such an

enforcement action, the Agency will rely on federal sanctions, federal

inspection authorities, and federal procedures, rather than the state

authorized analogs to these provisions. Therefore, the approved Utah

enforcement authorities will not be incorporated by reference. Section

282.94 lists those approved Utah authorities that would fall into this

category.

The public also needs to be aware that some provisions of the

State's underground storage tank program are not part of the federally

approved state program. These non-approved provisions are not part of

the RCRA subtitle I program because they are ``broader in scope'' than

subtitle I of RCRA. See 40 CFR 281.12(a)(3)(ii). As a result, state

provisions which are ``broader in scope'' than the federal program are

not incorporated by reference for purposes of enforcement in part 282.

Section 282.94 of the codification simply lists for reference and

clarity the Utah statutory and regulatory provisions which are

``broader in scope'' than the federal program and which are not,

therefore, part of the approved program being codified today. ``Broader

in scope'' provisions cannot be enforced by EPA; the State, however,

will continue to enforce such provisions.

Certification Under the Regulatory Flexibility Act

This rule codifies the decision already made (60 FR 12709, March 8,

1995) to approve the Utah underground storage tank program and thus has

no separate effect. Therefore, this rule does not require a regulatory

flexibility analysis. Thus, pursuant to section 605(b) of the

Regulatory Flexibility Act, 5 U.S.C. 605(b), I hereby certify that this

rule will not have a significant economic impact on a substantial

number of small entities.

Compliance With Executive Order 12866

The Office of Management and Budget has exempted this rule from the

requirements of Section 6 of Executive Order 12866.

Paperwork Reduction Act

Under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., federal

agencies must consider the paperwork burden imposed by any information

request contained in a proposed or final rule. This rule will not

impose any information requirements upon the regulated community.

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List of Subjects in 40 CFR Part 282

Environmental protection, Hazardous substances, Incorporation by

reference, Intergovernmental relations, State program approval,

Underground storage tanks, Water pollution control.

Dated: August 25, 1995.

Jack W. McGraw,

Acting Regional Administrator.

For the reasons set forth in the preamble, 40 CFR part 282 is

proposed to be amended as follows:

PART 282--APPROVED UNDERGROUND STORAGE TANK PROGRAMS

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

follows:

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

2. Subpart B is amended by adding Sec. 282.94 to read as follows:

Subpart B--Approved State Programs

Sec. 282.94 Utah State-Administered Program.

(a) 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, was

approved by EPA pursuant to 42 U.S.C. 6991c and part 281 of this

Chapter. EPA approved the Utah program on March 8, 1995 and it was

effective on April 7, 1995.

(b) Utah has primary responsibility for enforcing its underground

storage tank program. However, EPA retains the authority to exercise

its inspection and enforcement authorities under sections 9005 and 9006

of subtitle I of RCRA, 42 U.S.C. 6991d and 6991e, as well as under

other 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 submitted to

EPA in Utah's program application for final approval and approved by

EPA on March 8, 1995. Copies may be obtained from the Underground

Storage Tank Branch, Utah Department of Environmental Quality, 168

North 1950 West, 1st Floor, Salt Lake City, Utah 84116.

(1) State statutes and regulations. (i) The provisions cited in

this paragraph are incorporated by reference as part of the underground

storage tank program under subtitle I of RCRA, 42 U.S.C. 6991 et seq.

(A) Utah Statutory Requirements Applicable to the Underground

Storage Tank Program, 1995.

(B) Utah Regulatory Requirements Applicable to the Underground

Storage Tank Program, 1995.

(ii) The following statutes and regulations are part of the

approved state program, although not incorporated by reference herein

for enforcement purposes.

(A) The statutory provisions include: Utah Code Unannotated (1994),

Title 19, Chapter 6, Sections 19-6-112; 19-6-113; 19-6-115; 19-6-

402(8), (11), and (23); 19-6-404(2)(f), (j), and (m); 19-6-405.5; 19-6-

407(2) and (3); 19-6-410(3) as it pertains to penalties, (4)(b), and

(5); 19-6-416; 19-6-418; 19-6-420(2), (4)(a), (5)(b), and (9)(b); 19-6-

424.5; 19-6-425; 19-6-426(5) and (6); and 19-6-427.

(B) The regulatory provisions include: Administrative Rules of the

State of Utah, Utah Administrative Code (1993), Sections R311-208-1;

R311-208-2; R311-208-3; R311-208-4; R311-208-5; and R311-208-6.

(iii) The following statutory and regulatory provisions are broader

in scope than the federal program, are not part of the approved

program, and are not incorporated by reference herein for enforcement

purposes.

(A) The statutory provisions include: Utah Code Unannotated (1994),

Title 19, Chapter 6, Sections 19-6-402 (3), (4), (9), (14), (15), (20),

and (26); 19-6-403(1)(a) (i) and (iv); 19-6-404(2)(c); 19-6-405.5; 19-

6-408; 19-6-409; 19-6-410; 19-6-411; 19-6-412; 19-6-414; 19-6-415; 19-

6-416; 19-6-417; 19-6-419; 19-6-420 (1), (3)(a), (3)(b), (5)(c), and

(6); 19-6-421; 19-6-422; 19-6-423; 19-6-424; and 19-6-426 (1) through

(4) and (7).

(B) The regulatory provisions include: Administrative Rules of the

State of Utah, Utah Administrative Code (1993), Sections R311-200-1

(2), (5), (8), (10), (13), (20), (29), (42) through (49), (53), and

(54); R311-201-2; R311-201-1; R311-201-3; R311-201-4; R311-201-5; R311-

201-6; R311-201-7; R311-201-8; R311-201-9; R311-201-10; R311-201-11;

R311-203-2; R311-206-2 (b) and (c); R311-206-4; R311-206-5 (b), (c),

(d), and the words ``compliance or'' in (a); R311-206-6; R311-207-1;

R311-207-2; R311-207-3; R311-207-4; R311-207-5; R311-207-6; R311-207-7;

R311-207-8; R311-207-9; R311-209-1; R311-209-2; R311-209-3; and R311-

209-4.

(2) Statement of legal authority. (i) ``Attorney General's

Statement for Final Approval'', signed by the Attorney General of Utah

on April 18, 1994, 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.

(ii) Letter from the Attorney General of Utah to EPA, April 18,

1994, 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 complete application in September 1993, 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 in September

1993, 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 VIII and the Utah Department of Environmental Quality,

signed by the EPA Regional Administrator on March 1, 1995, 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. Appendix A to Part 282 is amended by adding in alphabetical

order ``Utah'' and its listing.

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 Unannotated

(1994), Title 19, Chapter 6, Part 1, Solid and Hazardous Waste Act,

and Chapter 6, Part 4, Underground Storage Tank Act:

Section 19-6-109 Inspections authorized.

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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)

and (iv).

Section 19-6-404

Powers and duties of executive secretary, 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--Actions required after

testing.

Section 19-6-420 Releases--Abatement actions--Corrective

actions, except (1) through (3)(b), (4)(a), (5) (b) and (c), (6),

and (9)(b).

(b) The regulatory provisions include:

(1) Administrative Rules of the State of Utah, Utah

Administrative Code (1993):

Section R311-200-1 Definitions, except (2), (5), (8), (10),

(13), (20), (29), (42) through (49), (53), and (54).

Section R311-202-1 Incorporation by Reference.

Section R311-203-1 Definitions.

Section R311-203-3 New Installations.

Section R311-203-4 Notification.

Section R311-204-1 Definitions

Section R311-204-2 Underground Storage Tank Closure Plan.

Section R311-204-3 Disposal.

Section R311-204-4 Subsequent Closure Notice.

Section R311-205-1 Definitions.

Section R311-205-2 Site Assessment Protocol.

Section R311-206-1 Definitions.

Section R311-206-2 Requirements for Issuance of Certificates,

except (b) and (c).

Section R311-206-3 Application for Certificates.

Section R311-206-5 Revocation and Reissuance of Certificates,

except (b), (c), (d), and the words ``compliance or'' in R311-206-

5(a).

[FR Doc. 95-24873 Filed 10-5-95; 8:45 am]

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