Iowa; Final Approval of State Underground Storage Tank Program

SUMMARY: The State of Iowa has applied for final approval of its

underground storage tank (UST) program under Subtitle I of the Resource

Conservation and Recovery Act (RCRA). The Environmental Protection

Agency (EPA) has reviewed Iowa's application and has reached a final

determination that Iowa's underground storage tank program satisfies

all of the requirements necessary to qualify for final approval. Thus,

EPA is granting final approval to the State of Iowa to operate its

program.

EFFECTIVE DATE: Final approval for Iowa shall be effective at 1:00 pm

eastern time on May 8, 1995.

FOR FURTHER INFORMATION CONTACT: Lee Daniels, Coordinator, Underground

Storage Tank Section, EPA Region 7, 726 Minnesota Ave., Kansas City,

Kansas, 66101. Phone: (913) 551-7651.

SUPPLEMENTARY INFORMATION:

A. Background

Section 9004 of the Resource Conservation and Recovery Act (RCRA)

enables EPA to approve state UST programs to operate in the state in

lieu of the Federal UST program. To qualify for final authorization, a

state's program must be: (1) ``No less stringent'' than the Federal

program in leak detection, maintaining records, release reporting,

corrective action, tank closure, financial responsibility, new tank

standards and the notification requirements of Section 9004(a)(8) of

RCRA, 42 U.S.C. 6991c(a)(8); and (2) provide for adequate enforcement

(Section 9004(a) of RCRA, 42 U.S.C. 6991c(a)).

B. State of Iowa

On March 17, 1994, Iowa submitted an application for ``complete''

program approval. On April 25, 1994, Iowa submitted H.F. 2118 which

amended Iowa Code Sec. 455B.471(6) for inclusion in the application.

This bill amended the definition of an ``owner'' of an underground

storage tank and provided the conditions under which a ``lender'' might

be exempted from that definition. Also, on June 7, 1994 Iowa modified

its application so that it is not seeking authorization over Indian

lands. Together, these comprise the Iowa application. The Iowa program

provides for regulation of both petroleum and hazardous substance

tanks. Iowa also regulates farm/residential tanks of 1,100 gallons or

less capacity. However, this part of the Iowa program is broader in

scope than the Federal program and is not included in this final

approval. On August 9, 1994, EPA published a tentative decision

announcing its intent to grant Iowa final approval. Further background

on the tentative decision to grant approval appears at 59 FR 40507,

August 9, 1994.

Along with the tentative determination, EPA announced the

availability of the application for public comment. Also, EPA provided

notice that a public hearing would be provided only if significant

public interest on substantive issues was shown. EPA did receive

significant comments on the application and a public hearing was held

on December 1, 1994 in Des Moines, Iowa.

C. Public Comments and Hearing

The following summarizes the comments and responds to the

significant issues raised by those comments.

Twenty-three written comments were received during the public

comment period, which ran from August 9, 1994, when the tentative

program approval notice was published, until December 9, 1994. Nine

commenters spoke at the public hearing. Commenters included owners of

USTs, an association of petroleum marketers, an association of trucking

companies and service providers to trucking companies, local government

officials and the Iowa Department of Natural Resources (IDNR). The Iowa

Comprehensive Petroleum Underground Storage Tank Fund provided a

written comment following the public hearing.

The majority of comments concerned four major issues: (1) Whether

the IDNR adequately enforces the financial responsibility requirements

applicable to UST owners, (2) whether the IDNR adequately enforces the

leak detection requirements applicable to UST owners, (3) whether the

IDNR wastes resources for site assessments instead of actual cleanups,

and (4) whether the IDNR should use risk-based cleanup standards.

Other commenters stated that owners who timely comply with the UST

requirements are competitively disadvantaged when the IDNR does not

enforce the rules for everyone, or when compliance deadlines are moved.

Others criticized the IDNR for specific cleanup requirements imposed on

sites which they owned. The IDNR was criticized for the high costs of

site assessments and the costs of complying with the IDNR requirements

for long-term monitoring after contaminated soils were removed. One

commenter cited an example of contamination that recurred after a

cleanup due to fluctuating water tables. Others cited diminished

property values and lost economic development due to contamination.

While some of the commenters requested that the EPA deny program

approval, the petroleum marketers association echoed the four major

comments above but specifically requested approval of the Iowa program.

However, the marketers association did request that the EPA continue

providing the IDNR technical and administrative assistance to improve

enforcement of UST regulations and the adoption of risk-based cleanup

standards. The trucking association criticized the IDNR for wasting

resources without doing enough cleanups and for not using risk-based

cleanup standards, but did not request denial of program approval.

At the public hearing and in a written comment, the IDNR

specifically addressed the four major issues identified above. However,

not all of those four issues are within the scope of the EPA's review

for state program approval. For the EPA the sole concerns are whether

the state has the legal authorities, the program capability to meet the

objectives of the federal UST requirements and provides adequate

enforcement of compliance. Thus, even though the EPA encourages the

effective use of state cleanup funds, such funds are not required

elements for state program approval and Iowa's administration of its

state cleanup fund was not reviewed by the EPA for program approval.

Similarly, while the EPA encourages states to use risk-based decision-

making in the corrective action process, there is no federal

requirement for state program approval for any particular methodology.

Nonetheless, in order to fully address the public's concerns the EPA

has included in this responsiveness summary the IDNR's response to each

of the major issues.

With respect to enforcement of the leak detection and financial

responsibility requirements, the IDNR noted that the state's UST

requirements follow the federal requirements. The federal UST

regulation does not require compliance reporting by the owner to the

regulating agency, but only that leak detection and financial

responsibility records be kept on-site or reasonably accessible.

Therefore, for the IDNR the [[Page 12631]] only clear mechanism to

enforce those requirements is on-site inspections of each facility. The

IDNR has established an abbreviated enforcement procedure to deal with

those specific violations, so that a large number of enforcement

actions can be undertaken in a relatively short period of time. With

its available resources, the IDNR performs over 400 on-site inspections

each year.

In response to the comments alleging waste of cleanup resources,

the IDNR attributed many of the public concerns to difficulties the

agency has had in identifying the soil and groundwater contamination,

and the resulting failure of nearly every remediation system that was

installed. As a result, the IDNR is now requiring more detailed

assessments of contaminated sites to determine the risks and necessary

actions, and to provide assurance that the remediation will be

successful.

Concerning risk assessment, the IDNR commented that since 1992 it

has been applying a risk-based assessment to set the appropriate

standards to protect human health and the environment, and was one of

the first states in the nation to do so. Since then, 43 percent of

assessed sites have been required to perform some form of remediation,

and 57 percent have been allowed to either do nothing or to monitor

only. There has been a continuous effort to improve on and reduce the

amount of remediation required.

In response to the above comments, the EPA notes that none of the

comments identified any problems with the scope of the Iowa UST program

or whether the Iowa regulations are less stringent than the federal

requirements. Although some commenters identified problems with the

adequacy of enforcement of the leak detection and financial

responsibility requirements, the EPA is satisfied that the IDNR is

using its available resources to adequately enforce these requirements

and will continue taking steps to achieve universal compliance at UST

facilities in Iowa.

Additionally, the EPA considers the IDNR's efforts to achieve

required cleanups to be adequate for program approval, but acknowledges

the technical and financial difficulties in achieving cleanups. The

IDNR is making progress in improving remediation efficiency through

more detailed site assessments and the use of risk based cleanup

standards.

Also, the EPA acknowledges that owners of USTs face sometimes

enormous financial challenges in complying with the technical operating

requirements and in performing required cleanups of contaminated sites.

However, those requirements would be the same whether or not EPA

approves the Iowa UST program. Further, upon approval the Iowa UST

program would operate in lieu of the federal program and owners and

operators would look only to the Iowa set of requirements to determine

their compliance.

Finally, in response to the suggestion that the EPA should provide

technical and administrative assistance to the IDNR, the EPA notes that

after program approval the EPA will continue to provide the IDNR such

assistance. Also, the EPA/State Memorandum of Agreement that is part of

the program approval application provides for continued information

exchanges between the EPA and the IDNR to monitor and improve site

cleanups and enforcement activities.

D. Decision

I conclude that the State of Iowa's application for final approval

meets all the statutory and regulatory requirements established by

Subtitle I of RCRA. Accordingly, Iowa is granted final approval to

operate its UST program. The State of Iowa now has the responsibility

for managing all regulated UST facilities within its borders and

carrying out all aspects of the UST program except with regard to

Indian lands, where EPA will retain and otherwise exercise regulatory

authority. Iowa also has primary enforcement responsibility, although

EPA retains the right to conduct inspections under Section 9005 of

RCRA, 42 U.S.C. 6991d, and to take enforcement actions under Section

9006 of RCRA, 42 U.S.C. 6991e.

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.

Certification Under the Regulatory Flexibility Act

Pursuant to the provisions of 5 U.S.C. 605(b), I hereby certify

that this approval will not have a significant economic impact on a

substantial number of small entities. This approval effectively

suspends the applicability of certain Federal regulations in favor of

Iowa's program, thereby eliminating duplicative requirements for owners

and operators of underground storage tanks in the state. It does not

impose any new burdens on small entities. This rule, therefore, does

not require a regulatory flexibility analysis.

List of Subjects in 40 CFR Part 281

Environmental protection, Administrative practice and procedure,

Hazardous materials, State program approval, Underground storage tanks.

Authority: This action is issued under the authority of Sections

2002(a), 7004(b), and 9004 of the Solid Waste Disposal Act as

amended, 42 U.S.C. 6912(a), 6974(b), and 6991c.

Dated: February 7, 1995.

Delores Platt,

Acting Regional Administrator.

[FR Doc. 95-5526 Filed 3-6-95; 8:45 am]

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