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APPENDIX A: PART 282 Framework Rule and New Hampshire Codification Rule OSWER Directive 9650.15 Procedures and Requirements for Codification of Approved State UST Programs September 1994

APPENDIX A

PART 282 FRAMEWORK RULE
AND
NEW HAMPSHIRE CODIFICATION RULE

OSWER Directive 9650.15

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 282

[FRL-4794-8]

Underground Storage Tank Program; Approved State Program for New Hampshire

AGENCY: Environmental Protection Agency (EPA)

ACTION: Immediate final rule.

SUMMARY: The Resource Conservation and Recovery Act of 1976, as amended (RCRA), authorizes the U.S. Environmental Protection Agency to grant approval to states to operate their underground storage tank programs in lieu of the federal program. This action establishes part 282 for codification of the decision to approve a state program and for incorporation by reference of those provisions of 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. As part of this initial action, part 282 codifies the prior approval of New Hampshire's underground storage tank program and incorporates by reference appropriate provisions of state statutes and regulations.

DATE: This regulation is effective January 3, 1994, unless EPA publishes a prior Federal Register rule withdrawing this immediate final rule. All comments on this regulation must be received by the close of business December 2, 1993. The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register, as of January 3, 1994, in accordance with 5 U.S.C. 552(a).

ADDRESSES: Comments may be mailed to the Docket Clerk (Docket No. UST 4-5), Office of Underground Storage Tanks (OS-305), U.S. Environmental Protection Agency, 401 M. Street, SW., Washington, DC 20460. Comments receive by EPA may be inspected in the public docket, located in room 2616 (Mall), U.S. Environmental Protection Agency, 401 M. Street, SW., Washington, DC 20460 from 9 a.m. to 4 p.m., Monday through Friday, excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT: RCRA Hotline, toll free at (800) 424-9346 or in Washington, DC at (202) 382-3000. For technical questions on the part 282 rule, consult Jerry Parker, U.S. EPA, Office of Underground Storage Tanks, at (703) 603-7167. For technical questions on the New Hampshire codification, consult Susan Hanamoto, Underground Storage Tank Program, U.S. EPA Region I, JFK Federal Building, Boston, MA 02203-2211, Phone: (617) 573-5748.

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 rule announcing its decision to grant approval to New Hampshire (56 FR 28089, June 19, 1991). Approval was effective on July 19, 1991.

EPA will codify its approval of state programs in a new 40 CFR part 282 and incorporate 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 rule establishes part 282, reserves sections within part 282 for each state, and codifies EPA's approval of the New Hampshire underground storage tank program. This codification reflects that state program in effect at the time EPA granted New Hampshire approval under section 9004(a), 42 U.S.C. 6991c(a), for its underground storage tank program. The establishment of part 282 is an Agency procedure exempt from the notice and comment requirements of 5 U.S.C. 553, as is the codification of the New Hampshire UST program. Notice and opportunity for comment were provided earlier on the Agency's decision to approve the New Hampshire 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 New Hampshire program and by amending the Code of Federal Regulations whenever a new or different set of requirements is approved in New Hampshire, the status of federally approved requirements of the New Hampshire program will be readily discernible. Only those provisions of the New Hampshire 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 New Hampshire's underground storage tank program, EPA has added § 282.79 to title 40 of the CFR, Section 282.79 incorporates by reference for enforcement purposes the State's statutes and regulations. Section 282.79 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 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 New Hampshire enforcement authorities will not be incorporated by reference. Section 282.79 lists those approved New Hampshire authorities that 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 282.79 simply lists for reference and clarity the New Hampshire 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

Pursuant to section 605(b) of the Regulatory Flexibility Act, 5 U.S.C. 605(b), the EPA hereby certifies that this action will not have any economic impact on any small entities. It establishes a new part 282 in 40 CFR and codifies the decision already made to approve the New Hampshire underground storage program and has no separate effect on owners and operators of underground storage tanks or upon small entities. This rule, therefore, does not require a regulatory flexibility analysis.

Compliance With Executive Order 12291

This immediate final rule has been submitted to OMB for review under Executive Order 12291. The Agency has determined that it is a non-major rule because it will not result in: (1) An annual effect on the economy of $100 million or more; (2) a major increase in costs or prices for consumers, individual industries, federal, state, or local government agencies, or geographic regions; or (3) significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign based enterprises in domestic or export markets.

The Office of Management and Budget has exempted individual state codifications from the requirements of section 3 of Executive Order 12291.

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.

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: October 13, 1993.

Carol M. Browner,
Administrator.


OSWER Directive 9650.15

For the reasons set forth in the preamble, chapter 1 of title 40 of the Code of Federal Regulations is amended by adding a new part 282 to read as follows:

PART 282-APPROVED UNDERGROUND STORAGE TANK PROGRAMS

Subpart A-General Provisions

Sec.
282.1 Purpose and scope.
282.2 Incorporation by reference.
282.3-282.49 [Reserved]

Subpart B-Approved State Programs

282.50-282.78 [Reserved]
282.79-New Hampshire.
282.80-282.105 [Reserved]

Appendix A to Part 282-State Requirements incorporated by Reference in Part 282 of the Code of Federal Regulations


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

PART 282-APPROVED UNDERGROUND STORAGE TANK PROGRAMS

OSWER Directive 9650.15

Subpart A-General Provisions

OSWER Directive 9650.15

§282.1 Purpose and scope.

This part sets forth the applicable state underground storage tank programs under section 9004 of the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. 6991c and 40 CFR part 281. "State" is defined in 42 U.S.C. 1004(31) as any of the several states, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands."

OSWER Directive 9650.15

§282.2 Incorporation by reference.
  1. Material listed as incorporated by reference in part 282 was approved for incorporation by reference by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Material is incorporated as it exists on the date of the approval, and notice of any change in the material will be published in the Federal Register.
  2. Copies of materials incorporated by reference may be inspected at the Office of the Federal Register, 800 North Capitol Street, NW., suite 700, Washington, DC. Copies of materials incorporated by reference may be obtained or inspected at the EPA OUST Docket, 401 M. Street, SW., Washington, DC 20460, and at the library of the appropriate Regional Office listed below:
    1. Region 1 (Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, Vermont): JFK Federal Building, Boston, MA 02203-2211,
    2. Region 2 (New Jersey, New York, Puerto Rico, Virgin Islands): Federal Office Building, 26 Plaza, New York, NY 10278.
    3. Region 3 (Delaware, District of Columbia, Maryland, Pennsylvania, Virginia, West Virginia): 841 Chestnut St. Building, Philadelphia, PA 191007.
    4. Region 4 (Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, South Carolina, Tennessee): 345 Courtland St., NE, Atlanta, GA 30365.
    5. Region 5 (Illinois, Indiana, Michigan, Minnesota, Ohio, Wisconsin): 77 West Jackson Boulevard, Chicago, IL 60604.
    6. Region 6 (Arkansas, Louisiana, New Mexico, Oklahoma, Texas): 1445 Ross Avenue, Dallas, TX 75202-2733.
    7. Region 7 (Iowa, Kansas, Missouri, Nebraska): 726 Minnesota Avenue, Kansas City, KS 66101.
    8. Region 8 (Colorado, Montana, North Dakota, South Dakota, Utah, Wyoming): 999 18th Street, Denver, CO 80202-2405.
    9. Region 9 (Arizona, California, Hawaii, Nevada, Guam, American Samoa, Commonwealth of the Northern Mariana Islands): 75 Hawthorne Street, San Francisco, CA 94105.
    10. Region 10 (Alaska, Idaho, Oregon, Washington): 1200 Sixth Avenue, Seattle, WA 98101.
  3. For an informational listing of the state and local requirements incorporated in part 282, see appendix A to this part.

OSWER Directive 9650.15

§§282.3 through 282.49 [Reserved]

OSWER Directive 9650.15

Subpart B-Approved State Programs

OSWER Directive 9650.15

§§282.50-282.78 [Reserved]

OSWER Directive 9650.15

§282.79 New Hampshire.
  1. The State of New Hampshire 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 New Hampshire Department of Environmental Services, was approved by EPA pursuant to 42 U.S.C. 6991c and part 281 of this Chapter. EPA's approval was effective on July 19, 1991.
  2. New Hampshire has primary responsibility for enforcing its underground storage tanks program. However, EPA retains the authority to exercise its enforcement authorities under sections 9005 and 9006 of subtitle I of RCRA, 42 U.S.C. 6991d and 6991e, as well as under other applicable statutory and regulatory provision.
  3. To retain program approval, New Hampshire must revise its approved program to adopt 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 New Hampshire 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 section and notice of any change will be published in the Federal Register.
  4. New Hampshire has final approval for the following elements submitted to EPA in New Hampshire's program application for final approval and approved by EPA on June 19, 1991, becoming effective on July 19, 1991. Copies may be obtained from the Underground Storage Tank Program. New Hampshire Department of Environmental Services, 6 Hazen Drive, Concord, NH 03302-0095.
    1. State statutes and regulations.
      1. 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.
        1. New Hampshire Statutory Requirements Applicable to the Underground Storage Tank Program, 1993.
        2. New Hampshire Regulatory Requirements Applicable to the Underground Storage Tank Program, 1993.
      2. The following statutes and regulations are part of the approved state program, although not incorporated by reference herein for enforcement purposes.
        1. The statutory provisions include: New Hampshire Revised Statutes Annotated (Supplement 1988) Sections 146-C:9a, 146-C:10, and 146-C:10a; 147 A:1 through 147-A:13; 541-A:1 through 541-A:10; 91-A:1 through 91-A:8.
        2. The regulatory provisions include: New Hampshire Code of Administrative Rules (1990) Part Env. C-602.08; Part He-P 1905.
      3. 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.
        1. The statutory provisions include: New Hampshire Revised Statutes Annotated (Supplement 1988) Section 146-C:1.XII, insofar as it refers to heating oil for consumptive use on the premises where stored.
        2. The regulatory provisions include: New Hampshire Code of Administrative Rules (1990) Sections Env-Ws411.01 and 411.02, insofar as they refer to heating oil for consumptive use on the premises where stored.
    2. Statement of legal authority.
      1. "Attorney General's Statement for Final Approval", signed by the Attorney General of New Hampshire on November 1, 1990, 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.
      2. Letter from the Attorney General of New Hampshire to EPA, November 1, 1990, 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 original application in December 1990, though not incorporated by reference, if 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 December 1990, 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 I and the New Hampshire Department of Environmental Service, signed by the EPA Regional Administrator on August 8, 1991, 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.

OSWER Directive 9650.15

§§282.80-282.105 [Reserved]

OSWER Directive 9650.15

Appendix A to Part 282-State Requirements Incorporated by Reference in Part 282 of the Code of Federal Regulations

The following is an informational listing of the state requirements incorporated by reference in part 282 of the Code of Federal Regulations:

New Hampshire

  1. The statutory provisions include New Hampshire Revised Statutes Annotated 1955, 1990 Replacement Edition, and 1992 Cumulative Supplement, Chapter 146-C. Underground Storage Facilities:
    • Section 146-C:1 Definitions, except for the following words in 146-C:1. XII, "heating or."
    • Section 146-C:2 Discharges Prohibited.
    • Section 146-C:3 Registration of Underground Storage Facilities.
    • Section 146-C:4 Underground Storage Facility Permit Required.
    • Section 146-C:5 Records Required; Inspections.
    • Section 146-C:6 Transfer of Ownership.
    • Section 146-C:6-a Exemption.
    • Section 146-C:7 New Facilities.
    • Section 146-C:8 Prohibition Against Reusing Tanks.
    • Section 146-C:9 Rulemaking.
    • Section 146-C:11 Liability for Cleanup Costs: Municipal Regulations.
    • Section 146-C:12 Federal Assistance and Private Funds.
  2. The regulatory provisions include:
    1. New Hampshire Code of Administrative Rules (November 1990) Part Env-Ws411, Control of Underground Storage Facilities:
      • Section 411.01 Purpose, except for the following words, "heating oils."
      • Section 411.02 Applicability, except for 411.02(d).
      • Section 411.03 Definitions.
      • Section 411.04 Registration.
      • Section 411.05 Change in Use.
      • Section 411.06 Information Required for Registration.
      • Section 411.07 Permit to Operate.
      • Section 411.08 Transfer of Facility Ownership.
      • Section 411.10 Financial Responsibility.
      • Section 411.11 Inventory Monitoring.
      • Section 411.12 Regulated Substance Transfers.
      • Section 411.13 Tightness Testing.
      • Section 411.14 Certification of Technicians Performing Tightness Tests.
      • Section 411.15 Tightness Test Failures.
      • Section 411.16 Unusual Operating Conditions.
      • Section 411.17 Temporary Closure.
      • Section 411.18 Permanent Closure.
      • Section 411.19 Prohibition Against Reusing Tanks.
      • Section 411.20 Requirements for Approval of Underground Storage Systems.
      • Section 411.21 Tank Standards for New Underground Storage Systems.
      • Section 411.22 Piping Standards for New Underground Storage Systems.
      • Section 411.23 Secondary Containment for New Tanks.
      • Section 411.24 Secondary Containment for New Pressurized Piping.
      • Section 411.25 Spill Containment and Overfill Protection.
      • Section 411.26 Leak Monitoring for New Tanks.
      • Section 411.27 Leak Monitoring for New Underground Piping Systems.
      • Section 411.28 Installation of New Underground Storage Systems.
      • Section 411.29 Release Detection for Tanks Without Secondary Containment and Leak Monitoring, except for the following words in 411.29(a), "With the exception of on premise use heating oil systems."
      • Section 411.30 Release Detection for Piping.
      • Section 411.31 Operation of Leak Monitoring Equipment.
      • Section 411.32 Corrosion Protection for Steel Tanks.
      • Section 411.33 Corrosion Protection for Piping.
      • Section 411.34 Submission of Corrosion Protection Plan.
      • Section 411.35 Relining Steel Tanks.
      • Section 411.36 Repair of Fiberglass-Reinforced Plastic Tanks.
      • Section 411.37 Repair and Replacement of Piping Systems.
      • Section 411.38 Field Fabricated Tanks.
      • Section 411.39 Secondary Containment for Hazardous Substance Systems.
      • Section 411.40 Waivers.
    2. New Hampshire Code of Administrative Rules (November 1990) Part Env-Ws 412, Reporting and Remediation of Oil Discharges:
      • Section 412.01 Purpose.
      • Section 412.02 Applicability.
      • Section 412.03 Definitions.
      • Section 412.04 Notification.
      • Section 412.05 Initial Response Action.
      • Section 412.06 Abatement Measures.
      • Section 412.07 Free Product Removal.
      • Section 412.08 Initial Site Characterization.
      • Section 412.09 Investigation Due to Discovery of Discharges from Unknown Sources.
      • Section 412.10 Site Investigation.
      • Section 412.11 Site Investigation Report.
      • Section 412.12 Remedial Action Plan.
      • Section 412.13 Public Notification.
      • Section 412.14 Waivers.

[FR Doc. 93-26409 Filed 11-01-93: 8:45 am
Billing Code 6560-50-P

[ Directive 9650.15 ]

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