CHAPTER VI. CODIFICATION OF APPROVED STATE PROGRAMS OSWER Directive 9650.12 SUGGESTED PROCEDURES FOR REVIEW OF STATE UST APPLICATIONS May 1992
VI. CODIFICATION OF APPROVED STATE PROGRAMS
Codification is the process that identifies the elements of approved State programs by placing them in the Code of Federal Regulations (CFR). The codification of State programs is designed to enhance the public's ability to discern the current status of the approved State program and alert the public to the specific State regulations that the Federal government can enforce if necessary. This process will be particularly helpful as States adopt additional Federal requirements or revise their approved UST programs.
The codified elements of the approved State program are:
- State statute;
- State regulations;
- Attorney General's Statement;
- Memorandum of Agreement; and
- Program Description.
The Attorney General's Statement, Memorandum of Agreement, and Program Description are codified by listing the title and date of signature in the codification notice. The State's statutory and regulatory authorities, however, are actually incorporated by reference into the Code of Federal Regulations (CFR). The effect of incorporation by reference is that the incorporated material has the same legal effect as if it were published in full in the CFR. State enforcement authorities contained in statutes and regulations are identified in the codification notice but not incorporated by reference since EPA uses its own authorities to enforce approved State requirements.
EPA enforces State regulations that are more stringent than the Federal requirements, but not those that are broader in scope. For example, EPA will enforce State regulations that require reporting of all suspected releases, even though Federal regulations require only that releases of greater than 25 gallons be reported. However, EPA cannot enforce State regulations against farm tanks excluded from regulations at the Federal level. Therefore, the codification notice, which is published in the Federal Register, must identify where the State is more stringent and where it is broader in scope so that the public as well as the regulated community can ascertain which level of government (State or Federal) will be enforcing the various program requirements.
Appendix D contains two model codification notices. Model A is applicable to tentative and final determinations on initial State program approval decisions. Model B is an immediate final rulemaking notice applicable to revisions to approved State programs.
Headquarters has submitted a Federal Register notice to reserve Part 282 for codification of approved State UST programs. Appendix D also contains a list of the sections within Part 282 that have been specifically reserved for each of the 56 States and Territories. The Regions should use this list to identify the sections of Part 282 that should be included in their codification notices.