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APPENDIX B: Vermont Codification Rule ("Stand-Alone" Rule) OSWER Directive 9650.15 Procedures and Requirements for Codification of Approved State UST Programs September 1994

APPENDIX B

VERMONT CODIFICATION RULE ("STAND-ALONE" RULE)

OSWER Directive 9650.15

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 282

(FRL -                 )

Underground Storage Tank Program: Approved State Program for Vermont

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 (EPA) to grant approval to states to operate their underground storage tank programs in lieu of the federal program. 40 CFR part 282 codified EPA's decision to approve 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 Vermont's underground storage tank program and incorporates by reference appropriate provisions of state statutes and regulations.

DATES: This regulation is effective [insert date 60 days after publication], unless EPA publishes a prior Federal Register notice withdrawing this immediate final rule. All comments on the codification of Vermont's underground storage tank program must be receive by the close of business [insert date 30 days after publication]. The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register, as of [insert date 60 days after publication], in accordance with 5 U.S.C. 552(a).

ADDRESSES: Comments may be mailed to the Docket Clerk (Docket no.image  ), Underground Storage Tank Program, HPU-CAN7, U.S. EPA Region 1, JFK Federal Building, Boston, MA 02203-2211. Comments received by EPA may be inspected in the public docket, located in the Waste Management Division Record Center, 90 Canal St., Boston, MA 02203 from 9 a .m. to 4 p.m., Monday through Friday, excluding federal holidays.

FOR FURTHER INFORMATION CONTACT: Joan Coyle, Underground Storage Tank Program, HPU-CAN7, U.S. EPA Region I, JFK Federal Building, Boston, MA 02203-2211. Phone: (617) 573-9667.


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 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 Vermont. (57 FR 186, January 3, 1992). Approval was effective on February 3, 1992.

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 Vermont underground storage tank program. This codification reflects the state program in effect at the time EPA granted Vermont 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 Vermont 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 Vermont program and by amending the Code of Federal Regulations whenever a new or different set of requirements is approved in Vermont, the status of federally approved requirements of the Vermont program will be readily discernible. Only those provisions of the Vermont 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 Vermont's underground storage tank program, EPA has added section 282.95 to title 40 of the CFR. Section 282.95 incorporates by reference for enforcement purposes the State's statutes and regulations. Section 282.95 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 Vermont enforcement authorities will not be incorporated by reference. Section 282.95 lists those approved Vermont 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 282.95 of the codification simply lists for reference and clarity the Vermont 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 codified the decision already made (57 FR 186, Jan. 3, 1992) to approve the Vermont 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

Approved State Program For Vermont--Page 6 of 15


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:



_______________________________________________________

John DeVillars,
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 § 282.95 to read as follows:

Subpart B - Approved State Programs


§ 282.95 - Vermont State-Administered Program.


  1. The State of Vermont 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 Vermont Department of Environmental Conservation, was approved by EPA pursuant to 42 U.S.C. 6991c and part 281 of this Chapter. EPA approved the Vermont program on January 3, 1992 and it was effective on February 3, 1992.
  2. Vermont 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.
  3. To retain program approval, Vermont 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 Vermont obtains approval for the revised requirements pursuant to section 9004 or 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.
  4. Vermont has final approval for the following elements submitted to EPA in Vermont's program application for final approval and approved by EPA on January 3, 1992. Copies may be obtained from the Underground Storage Tank Program, Vermont Department of Environmental Conservation, 103 South Main Street, West Building, Waterbury, VT 05671-0404.


  1. State statutes and regulations.
    1. The provisions cites 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. Vermont Statutory Requirements Applicable to the Underground Storage Tank Program, 1994.
      2. Vermont Regulatory Requirements Applicable to the Underground Storage Tank Program, 1994.
    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: Title 10 Vermont Statutes Annotated, Chapter 59, Sections 1932 through 1935.
      2. The regulatory provisions include: Vermont Environmental Protection Rules, Chapter 8, Sections 104 through 106.
    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. Title 10 Vermont Statutes Annotated, Chapter 59, Section 1929, insofar as it refers to registration requirements for tanks greater than 1,100 gallons containing heating oil consumed on the premises where stored.
      2. Vermont Environmental Protection Rules, Chapter 8, Section 301, registration requirements, and Section 605(2), permanent closure requirements, insofar as they refer to tanks greater than 1,100 gallons containing heating oil consumed on the premises where stored.


  2. Statement of Legal authority.
    1. "Attorney General's Statement for Final Approval", signed by the Attorney General of Vermont of April 11, 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.
    2. Letter from the Attorney General of Vermont to EPA, April 11, 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.


  3. Demonstration of procedures for adequate enforcement. The "Demonstration of Procedures for Adequate Enforcement" submitted as part of the original application in May 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.


  4. Program Description. The program description and any other material submitted as part of the original application in May 1991, 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 Vermont Department of Environmental Conservation, signed by the EPA Regional Administrator on March 2, 1992, 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.


  1. Appendix A to Part 282 is amended by adding in alphabetical order "Vermont" and its listing.



APPENDIX A TO PART 282
State Requirements Incorporated by Reference in part 282 of the Code of Federal Regulations
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Vermont


  1. The statutory provisions include Vermont Statutes Annotated, 1992, Chapter 59. Underground Liquid Storage Tanks:
    Section 1921 Purpose.
    Section 1922 Definitions.
    Section 1923 Notice of New or Existing Underground Storage Tank
    Section 1924 Integrity Report.
    Section 1925 Notice in Land Records.
    Section 1926 Unused and Abandoned Tanks.
    Section 1927 Regulation of Category One Tanks.
    Section 1928 Regulation of Large Farm and Residential Motor Fuel Tanks.
    Section 1930 Implementation; Coordination.
    Section 1931 Inspections; Right of Entry; Information.
    Section 1936 Licensure of Tank Inspectors.
    Section 1938 Underground Storage Tank Trust Fund.
    Section 1939 Risk Retention Pool.
    Section 1940 Underground Storage Tank Incentive Program.
    Section 1941 Petroleum Cleanup Fund.
    Section 1942 Petroleum Distributor Licensing Fee.
    Section 1943 Petroleum Tank Assessment.
    Section 1944 Underground Storage Tank Loan Assistance Program.
  2. The regulatory provisions include State of Vermont, Agency of Natural Resources, Underground Storage Tank Regulations, February 1, 1991:
    1. Subchapter 1: General.
      Section 8-101 Purpose.
      Section 8-102 Applicability.
      Section 8-103 Severability.
    2. Subchapter 2: Definitions.
      Section 8-201 Definitions.
    3. Subchapter 3: Notification and Permits.
      Section 8-301 Notification, except for the following words in section 8- 301(1), "Notification is also required for any tank used exclusively for on-premises heating that is greater than 1100 gallons in size."
      Section 8-302 Permits.
      Section 8-303 Financial Responsibility Requirements.
      Section 8-304 Petroleum Tank Assessment.
      Section 8-305 Innovative Technology.
    4. Subchapter 4: Minimum Standards for New and Replacements Tanks and Piping.
      Section 8-401 General Requirements.
      Section 8-402 Tanks - Design and Manufacturing Standards.
      Section 8-403 Tanks - Secondary Containment.
      Section 8-404 Tanks - Release Detection.
      Section 8-405 Piping - Design and Construction.
      Section 8-406 Compatibility.
      Section 8-407 Spill and Overfill Prevention Equipment.
      Section 8-408 Installation.
    5. Subchapter 5: Minimum Operating Standards for Existing Tanks and Piping.
      Section 8-501 General Requirements.
      Section 8-502 Spill and Overfill Prevention.
      Section 8-503 Corrosion Protection of Metallic Components.
      Section 8-504 Release Detection.
      Section 8-505 Compatibility.
      Section 8-506 Repairs.
    6. Subchapter 6: Reporting, Investigation, Corrective Action and UST Closure.
      Section 8-601 General Requirement, except for the following words, "Heating oil tanks greater than 1100 gallons capacity used exclusively for on-premise heating purposes are subject to the requirements for permanent closure in accordance with subsection 8- 605(2)."
      Section 8-602 Reporting.
      Section 8-603 Release Investigation and Confirmation.
      Section 8-604 Corrective Action.
      Section 8-605 Closure of USTs.
Appendix A Groundwater Monitoring Requirements.
Appendix B Inventory Monitoring Procedures.
Appendix C Procedures for Manual Tank Gauging.
Appendix D Installation Requirements Applicable to New and Replacement UST Systems.


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