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53 FR 37082-37247 Friday, Sept. 23, 1988 40 CFR Parts 280 and 281, Underground Storage Tanks; Technical Requirements and State Program Approval; Final Rules--Preamble Section IV. Analysis of Today's Rule--H. Analysis of Other Significant Comments

PREAMBLE
(37185-37186)


IV. Analysis of Today's Rule

H. Analysis of Other Significant Comments

1. Reliance on Codes Developed by Nationally Recognized Organizations

2. Additional Decisionmaking Authority for Implementing Agencies


IV. ANALYSIS OF TODAY'S RULE

IV.H. Analysis of Other Significant Comments

1. Reliance on Codes Developed by Nationally Recognized Organizations
As described in the preamble to the proposed rule (52 FR 12696), the regulations required that all UST systems be designed, constructed, and protected from corrosion in accordance with a code of practice developed by a nationally recognized association or independent testing laboratory. In today's final regulations, the Agency has also included the use of industry codes for other technical sections of the rule (such as upgrading and repair of existing USTs). The Agency has noted throughout today's final technical regulations specific codes of practice that have or may be developed.

EPA did not receive any comments that were against or critical of the use of industry codes. One commenter did express the need for public input during the development of federal technical regulations. The Agency agrees that public participation is necessary for the development of sound industry codes and practices. In fact, the Agency wants to expand the use of and reliance on industry codes in order to provide a means for improving existing or methods or developing alternative methods of UST system management. EPA does not intend to adopt inadequate codes but wants to provide a flexible approach to codemaking by relying on nationally recognized organizations to develop new and improved codes and practices through a public process.

EPA is today clarifying this issue to alleviate any future misunderstandings. EPA interprets a "nationally recognized organization" to mean a technical or professional organization that has issued standards formed by the consensus of its members. The organization should ensure consideration of all relevant viewpoints and interests, including those of consumers and future or existing and potential industry participants, and the resulting standards should be widely accepted and technically sound. Thus, any code developed by an organization should be based upon a broad range of technical information, and performance criteria should be central elements of the resulting standards. EPA believes that the following organizations, which have codes and standards referenced in today's regulations, are examples of "nationally recognized organizations":

American Petroleum Institute (API)
Association of Composite Tanks (ACT))
National Association of Corrosion Engineers (NACE))
National Fire Protection Association (NFPA))
National Leak Prevention Association (NLPA))
Petroleum Equipment Institute (PEI))
Steel Tank Institute (STI))
Underwriters Laboratory (UL)

Other similar organizations may also be considered "nationally recognized."

The final rule does not require the use of a particular issue of any code. The consensus codes are frequently revised and updated. The Agency believes that requiring the use of "the most recent edition" would cause undue confusion in the regulated community. For example, a facility may be installed in accordance with codes that are current at the time but may not have the equipment that meets the codes that are current 10 years later. EPA has concluded that the industry codes that are in effect at the date of publication of the final rule are protective of human health and the environment. The use of future editions of the codes in place of the editions that are now in effect is not required, but is encouraged as the updated codes will probably provide for newer, more effective technologies and practices. The use of past codes that have been replaced by new editions by the effective date of this rule is not allowed because some past recommended industry practices were not fully protective of human health and the environment.

The Office of Management and Budget has discussed regulatory codes and standards (OMB Circular A119, dated October 26, 1982). OMB encourages the reliance on voluntary standards, commonly referred to as industry standards or consensus codes. The developers of such codes are called voluntary standards bodies, and are defined to by OMB to include private sector, domestic, or multinational organizations--such as nonprofit organizations; industry associations, professional and technical societies, institutions, or groups; and recognized testing laboratories--that plan, develop, establish, or coordinate voluntary standards. EPA interpretation of the phrase "nationally recognized organization" is intended to encourage the development and use of voluntary standards.

2. Additional Decisionmaking Authority for Implementing Agencies

As discussed elsewhere in today's Federal Register, EPA is promulgating requirements (in Part 281) for judging the stringency of state programs to be approved to operate in lieu of "the federal program." Under Section 9004 of RCRA, the state program must contain specific program elements that are no less stringent that the corresponding federal technical requirements. Instead of requiring a detailed line-by-line review and comparison of state requirements to federal technical requirements, EPA is today finalizing an approach to program approval that will compare state programs to the attainment of several general federal objectives that underlie the specific technical requirements provided in Part 280.

In support of this approach, on December 23, 1987, EPA proposed to include additional language in the technical requirements that was intended to ensure this approval process is flexibly implemented (52 FR 48647). In order to establish the federal objective for each program element, EPA requested comment on the addition of specific language into several sections of the technical standards that would clarify the Agency's intent to allow state implementing agencies to substitute their own procedural and administrative requirements for those set forth in the federal requirements. Such administrative requirements, while essential for direct implementation of the federal program, do not represent the only possible approach for protection of human health and the environment, and thus are not part of the federal objectives for defining what requirements must be "no less stringent" under section 9004 of RCRA.

Today's final technical standards include several of these wording changes proposed on December 23, 1987. A list of the specific sections and the changes that have been made in the final rules are provided in Table 2.

Table 2. Wording Changes in the Final Rule

Section

Additional language in the final rules

Subpart B -- UST Systems Design, Construction, Installation and Notification: Section 280.20 (a)(2)(iv), (b)(2)(iv). Adding "or according to guidelines established by the implementing agency" at the end of each paragraph.
Subpart C -- General Operating Requirements: Section 280.31 (b)(1). Adding "or in another reasonable timeframe established by the implementing agency" to the end of the sentence.
Subpart D -- Release Detection: Section 280.45 (a), (b), (c). Adding "or for another reasonable period of time determined by the implementing agency" after the terms "for 5 years," and "at least one year".
Subpart E -- Release Reporting, Investigation, and Confirmation: Section 280.50. Adding "or another reasonable time period specified by the implementing agency" after the term "24 hours".
Section 280.53 (a),(b). Do.
Section 280.53 (a)(1), (b). Adding "or another reasonable amount specified by the implementing agency" after the term "25 gallons".
Subpart F -- Release Response and Corrective Action for UST Systems containing Petroleum or Hazardous Substances:
Section 280.61 Adding "or within another reasonable period of time determined by the implementing agency" after the different reporting periods of 24 hours, 20 days, 45 days, and 25 days, respectively.
Section 280.62(b) Do.
Section 280.63(b) Do.
Subpart G -- Out-of-Service UST Systems and Closure: Section 280.71(a). Adding "or another reasonable period of time determined by the implementing agency" after the comma in the first sentence.

In general, the Agency decided to include this additional language in the final technical requirements to ensure that different state procedural and administrative approaches could be judged no less stringent than the corresponding federal program. As discussed in more detail elsewhere in today's Federal Register, EPA has concluded that different state procedural and administrative requirements can be used and still achieve the underlying performance objective being established today for each program element. It is the Agency's intent to allow the states a significant amount of discretion in this matter, as long as they can demonstrate that overall program performance in each program element will not be adversely impacted by their use of differing administrative practices and procedures.

Many commenters were in favor of this more flexible approach to state program approval and most recommended the additional language be provided in the final technical rules to ensure a line-by-line review is avoided. Other commenters exposed concern that additional language in the technical rules would encourage states to ignore the federal model. Finally, one commenter opposed the flexible approach and stressed the Agency should "hold the line" in maintaining that states adhere to national regulatory decisions, even if only in procedural matters.

EPA disagrees with those commenters who opposed the addition of implementing agency administrative discretion in the technical requirements. They appeared to want to hold states to line-by-line comparisons to the federal program as the preferred way to determine if they are no less stringent. Thus, they were generally opposed to the use of federal objectives for purposes of state program approval, as much as to the addition of greater discretion in the technical requirements that would ensure this approach could be implemented.

As is discussed in the preamble to the state program approval regulation elsewhere in today's Federal Register, EPA has adopted the federal objectives approach to assessing states programs programs for purposes of state program approval. Thus, the final technical standards rule also includes the proposed language providing additional authority to implementing agencies with respect to certain procedural or administrative requirements.

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