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68 FR 53520-53523 September 11, 2003 (Volume 68, Number 176) 40 CFR Part 281 [FRL-7557-4] Pennsylvania: Final Approval of State Underground Storage Tank Program

[Federal Register: September 11, 2003 (Volume 68, Number 176)]
[Rules and Regulations]               
[Page 53520-53523]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



40 CFR Part 281


Pennsylvania: Final Approval of State Underground Storage Tank 

AGENCY: Environmental Protection Agency.

ACTION: Final rule.


SUMMARY: The Commonwealth of Pennsylvania (Commonwealth or State) 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 
Pennsylvania's application and has made a determination that the 
Commonwealth's UST program satisfies all of the requirements necessary 
to qualify for final approval.

EFFECTIVE DATE: Final approval of Pennsylvania's UST program shall be 
effective on September 11, 2003.

State Programs Branch, U.S. EPA Region III, 1650 Arch Street, 
Philadelphia, Pennsylvania 19103-2029, telephone number (215) 814-3380.


A. Background

    Section 9004 of the Resource Conservation and Recovery Act (RCRA), 
42 U.S.C. 6991c, authorizes EPA to approve state underground storage 
tank programs to operate in lieu of the Federal UST program. EPA may 
approve a state program if the Agency finds pursuant to RCRA section 
9004(b), 42 U.S.C. 6991c(b), that the state's program is ``no less 
stringent'' than the Federal program in all seven elements set forth at 
RCRA section 9004(a) (1) through (7), 42 U.S.C. 6991c(a)(1) through 
(7), meets the notification requirements of RCRA section 9004(a)(8), 42 
U.S.C. 6991c(a)(8), and also provides for adequate enforcement of 
compliance with UST standards in accordance with RCRA section 9004(a), 
42 U.S.C. 6991c(a).
    On November 25, 2002, Pennsylvania submitted to EPA a complete 
program application, in accordance with 40 CFR part 281, seeking 
authorization of its UST program. On January 3, 2003, EPA published a 
proposed rule announcing its tentative determination to approve 
Pennsylvania's UST program. EPA announced that the proposed rule was 
subject to a thirty-day public comment period. The public comment 
period ended on February 13, 2003. Further, EPA stated that if it 
received adverse comments on its intent to authorize Pennsylvania's UST 
program, it would subsequently publish a final determination responding 
to such comments and announce its final decision as to whether or not 
to authorize Pennsylvania's program. EPA received adverse written 
comments during the public comment period. Today's action responds to 

[[Page 53521]]

adverse public comments EPA received and announces EPA's final 
determination to approve Pennsylvania's UST program.

B. What Were the Comments and Responses to EPA's Proposal?

    Two parties submitted written comments regarding EPA's tentative 
approval of Pennsylvania's UST program during the 30-day public comment 
period. One party requested that EPA conduct a public hearing, but 
later withdrew that request. A third party submitted comments and 
requested a public hearing after the close of the comment period. EPA 
had already taken steps to cancel the tentatively scheduled public 
hearing and, as a result, no public hearing was held on EPA's tentative 
determination to approve Pennsylvania's UST Program. All three sets of 
comments EPA received questioned EPA's tentative decision to approve 
the Commonwealth of Pennsylvania's UST program asserting that 
Pennsylvania does not provide for adequate public participation.
    Collectively, the three parties submitting comments asserted that 
Pennsylvania's UST program has deficiencies in three areas: (1) Public 
notification of releases from USTs, (2) public participation in UST 
cleanup activities, and (3) public involvement in UST enforcement cases 
initiated by the Pennsylvania Department of Environmental Protection 
(PADEP). EPA's responses to each of these comments are set forth below. 
EPA has determined that none of the concerns raised warrants 
disapproval of Pennsylvania's UST program.

1. Comments Regarding Public Notification of UST Releases

    All three parties asserted that Pennsylvania's UST Program does not 
meet the federal requirements for state program approval at 40 CFR 
281.35(f) regarding public notification of UST releases. This 
regulation provides as follows: `` In accordance with Sec.  280.67, the 
state must notify the affected public of all confirmed releases 
requiring a plan for soil and ground water remediation, and upon 
request provide or make available information to inform the interested 
public of the nature of the release and the corrective measures planned 
or taken.''
    The referenced regulation at 40 CFR 280.67(a) states the following: 
``For each confirmed release that requires a corrective action plan, 
the implementing agency must provide notice to the public by means 
designed to reach those members of the public directly affected by the 
release and the planned corrective action. This notice may include, but 
is not limited to, public notice in local newspapers, block 
advertisements, public service announcements, publication in a state 
register, letters to individual households, or personal contacts by 
field staff.''
    One of the parties noted as follows: ``The Commonwealth 
acknowledges in the General Counsel and Attorney General Verification 
and Legal Statement included with the application that EPA does not 
believe notifying the municipality satisfies the objective of 
Sec. Sec.  281.35(f) and 280.67 to 'notify the affected public'.'' Two 
of the commenters expressed their concern about Pennsylvania using the 
State Program Approval Memorandum of Agreement (MOA) with EPA to 
address an inadequate public notification process for UST releases, 
which they perceive as a ``flaw'' or ``deficiency'' in Pennsylvania's 
UST Program.
    During the review of Pennsylvania's UST Program, EPA did discuss 
public notification procedures for UST releases with PADEP. In its 
assessment, EPA recognized that, in accordance with Sec.  245.305(e) of 
Pennsylvania's UST regulations, owners and operators are required to 
inform the Commonwealth and affected municipalities of confirmed 
releases. EPA believes this is a suitable first step toward public 
notification, because once local and state governments are informed, 
they can subsequently take steps to notify the affected public. During 
its review, EPA asked PADEP to clarify how such notification to the 
state would result in notification of the public directly affected by 
UST releases. EPA recognized that, pursuant to Sec.  245.305(g) of 
Pennsylvania's rules, PADEP may ``implement reasonable procedures to 
provide the public with appropriate information.'' For the purpose of 
state program approval, PADEP has the legal authority to notify the 
affected public of UST releases. However, EPA recognized that this 
authority provided PADEP with a certain discretion of the type 
contemplated when EPA published its original UST regulations at Sec.  
280.67 on September 23, 1988 (see 53 FR 37180-37181). Specifically, EPA 
noted in the preamble to its regulations that ``* * * mandating public 
participation for all CAPs (Corrective Action Plans) could divert 
implementing agency resources from other cleanup activities such as 
oversight of ongoing cleanup operations.'' The preamble went on to say: 
``EPA agrees with the party who urged that implementing agencies strike 
a balance between the involvement of the public and the sometimes 
competing need to protect human health and the environment through 
quick and effective responses to an UST release. To acknowledge these 
sometimes conflicting objectives, the final rule for public 
participation establishes a flexible approach that ensures public 
access to available information on UST cleanups, although the public 
need not be involved, as a matter of routine, in all CAPs.''
    During EPA's evaluation of the Commonwealth's UST program, PADEP 
described to EPA that it intended to exercise its discretion to notify 
the public about UST releases by posting relevant information on the 
internet. Although the internet was not in existence at the time EPA 
published its regulations in 1988, today, EPA believes the internet is 
a powerful and effective mechanism for providing the public with 
information. EPA believes that providing public access to information 
about UST releases on the internet is a means designed to reach those 
members of the public directly affected by the release and the planned 
corrective action. The internet has revolutionized how the public can 
gain access to all kinds of information. The internet can be accessed 
from home, at work, at school, and at local libraries. Information on 
the internet can be updated more easily, timely and cost-effectively 
than printed publications. One party who provided comments on EPA's 
proposed state program approval decision stated that he: ``* * * 
supports the use of the internet to educate and inform the public about 
DEP's regulatory programs and the status of confirmed releases and 
planned cleanups* * *'' PADEP and EPA have dedicated significant 
resources to provide the public with timely and comprehensive 
information about their numerous programs through the internet. 
Recognizing the need for PADEP to balance its responsibilities to clean 
up expeditiously UST releases and inform the public, EPA and PADEP used 
the MOA to specify and clarify how PADEP will exercise its discretion 
in striking this balance and to acknowledge formally PADEP's commitment 
to internet notification of UST releases. EPA does not believe that use 
of the MOA to describe Pennsylvania's approach to public notification 
is intended to ``fix'' a flaw or deficiency in Pennsylvania's UST 
program, but rather the MOA is an appropriate means to define how PADEP 
will exercise its responsibilities, within its discretion and 
authorities, to

[[Page 53522]]

notify the public of UST releases under an EPA-authorized UST program.
    To establish specific provisions in the MOA to define appropriate 
public notification, EPA and PADEP relied on provisions of 40 CFR 
280.67(a). Therefore, the MOA provides the following commitments: ``In 
addition to placing notices of confirmed releases requiring corrective 
action on its internet site, DEP agrees to use additional mechanisms to 
notify the affected public of those releases, which may have the 
potential to cause a more immediate or serious risk to public health 
and the environment. Furthermore, DEP agrees to use additional methods 
of public notification and outreach as a particular situation may 
warrant. Pursuant to 40 CFR 280.67 (Public Participation), such notices 
may include, but are not limited to, public notice in local newspapers, 
block advertisements, public service announcements, publication in the 
Pennsylvania Bulletin, letters to individual households, and/or 
personal contacts by field staff.'' Having drawn the provisions for the 
MOA directly from EPA's regulations, EPA is satisfied that PADEP's 
authorities and procedures for public notification of UST releases, as 
prescribed in the MOA, meet the requirements for state program approval 
found at 40 CFR 281.35(f).
    On a separate but related point, one commenter referenced RCRA 
section 9004(a) stating that RCRA enumerates ``* * *criteria that a 
State Program must meet in order to receive delegation of authority.'' 
EPA points out that, beyond the federal regulations discussed 
extensively above, section 9004 of RCRA does not include any 
independent requirements for States to include public notification in 
their UST Programs in order to be approved by EPA.
    The commenter who supported using the internet to inform the public 
did note, however, that, the internet ``* * * is no substitute for 
direct notice by DEP to the affected public.'' EPA points out, however 
that neither RCRA nor its implementing regulations requires ``direct 
notice to the affected public.'' These regulations state that notice to 
the public must be designed ``* * * to reach those members of the 
public directly affected by the release and the planned corrective 
action'' but not necessarily by a direct (or personal) notice as was 
suggested by the commenter.
    One commenter expressed a concern over a failed attempt to access 
PADEP's information about a particular fuel distribution facility via 
the internet and questioned the effectiveness of PADEP's internet 
notification process. EPA is aware that PADEP had experienced some 
technical difficulties with its Web site and Internet access while 
efforts were underway to upgrade its system. Such temporary 
difficulties with gaining access to electronic data systems during 
maintenance activities are not uncommon. In May and August 2003, EPA 
Region III accessed PADEP's Web site and determined site accessibility, 
as well as the scope and content of site information about UST 
releases, to be complete and acceptable for public notification 
    The final comment regarding inadequate public notification of UST 
releases asserted that federal regulations require ``the affected 
public be notified of all confirmed releases.'' EPA disagrees, since 
EPA's state program approval regulations do not require state programs 
to have provisions to notify the public of all confirmed releases, only 
those requiring a plan for soil and ground water remediation. See 40 
CFR 281.35(f) which states that ``In accordance with Sec.  280.67, the 
state must notify the affected public of all confirmed releases 
requiring a plan for soil and ground water remediation* * *'' (emphasis 
    Summary: With respect to public comments alleging deficiencies in 
Pennsylvania's program regarding public notification of UST releases, 
EPA has determined that Pennsylvania's UST program, as described in its 
State Program Approval Application, provides for adequate notification 
procedures to inform the public about confirmed UST releases requiring 
a plan for remediation. PADEP's reliance on the internet to post 
information on UST releases has been determined by EPA to be an 
acceptable means of informing the public.

2. Comments Regarding Public Participation in UST Cleanup Activities

    The second set of concerns voiced by all three commenters related 
to the public's inability to be informed about, and to participate in, 
corrective measure activities. With regard to concerns about ``public 
notification'' of planned corrective measure activities, EPA refers to 
its previous discussion which addresses this issue. The MOA commits 
PADEP to maintain on its internet site the status of all corrective 
measures planned or taken, and PADEP agrees to make information 
available to the public, upon request, about the nature of identified 
releases and corrective measures planned or taken.
    With regard to public participation in the corrective action 
process, EPA notes that its regulations focus on public notification, 
yet rely on state administrative procedures to provide the public the 
opportunity to participate in the decision-making process associated 
with cleaning up UST releases. The preamble to EPA's September 23, 1988 
UST regulations (53 FR 37233) states, ``EPA does not intend to 
prescribe the nature and extent of the public involvement procedures to 
be followed by the state. Rather, EPA's intention is that a forum be 
provided that is in keeping with the state's administrative procedures 
for the interested public to express its views on the proposed 
corrective actions for serious (emphasis added) UST releases.'' The 
preamble goes on to say that this objective is intended to be met by 
ensuring states provide for open access to information on UST releases 
and planned corrective actions. Pennsylvania's UST program meets this 
obligation by providing for the public availability of this 
information. The MOA is PADEP's assurance that such information will be 
available via the internet for notification purposes, and more detailed 
information on site activities will be made available upon public 
request. PADEP has also agreed in the MOA to expand its method of 
public notification and involvement activities, as particular 
situations may warrant, specifically in those instances where releases 
may have the potential to cause an immediate or ``serious risk'' to 
public health and the environment. EPA believes there is adequate 
opportunity for the public to be notified of UST releases and to 
participate in UST cleanup activities.
    Summary: EPA has evaluated Pennsylvania's UST authorities and 
PADEP's commitment in the MOA to provide for public notification of UST 
releases and public access to related information. Based on EPA's State 
Program Approval regulations and relevant preamble language which rely 
on a state's own administrative procedures for the interested public to 
express its views on proposed corrective actions, EPA has determined 
that Pennsylvania's UST program meets EPA's state program approval 
requirements for public notification and public involvement regarding 
UST releases and their cleanups.

3. Comments Regarding Public Involvement in UST Enforcement Cases

    The third area on which EPA received comments related to public 
participation in Pennsylvania's enforcement process. One commenter 
questioned whether the Commonwealth's program meets the state program 
approval requirements of

[[Page 53523]]

40 CFR 281.42 (``Requirements for public participation''), which 
provides that ``Any state administering a program must provide for 
public participation in the state enforcement process by providing any 
one of the following three options: (emphasis added) (a) Authority that 
allows intervention analogous to Federal Rule 24(a)(2), and assurance 
by the appropriate state enforcement agency that it will not oppose 
intervention under the state analogue to Rule 24(a)(2) on the ground 
that the applicant's interest is adequately represented by the State. 
(b) * * * (c) * * *'' The Commonwealth chose the option set forth in 40 
CFR 281.42(a) to support its State Program Approval Application. The 
party submitting the comments stated that ``* * * it is not clear how 
the affected public is supposed to receive notice when such actions are 
taken so they may decide whether to exercise their right to intervene'' 
and suggested that the Commonwealth * * * should be required to publish 
notice in the Pennsylvania Bulletin whenever a formal enforcement 
action is commenced and when it is resolved.''
    In its application for program approval, the Commonwealth provided 
an explanation of how its authorities meet the requirements of 40 CFR 
281.42(a), but it did not discuss any procedures it may have for public 
notice of enforcement actions. Such notice is not required for state 
program approval, as such notice is not a component of Rule 24(a)(2) of 
the Federal Rules of Civil Procedure. Therefore, the lack of a 
provision in Pennsylvania's regulations to provide for public notice of 
enforcement actions and the absence of a related discussion in 
Pennsylvania's UST State Program Approval Application are not valid 
reasons for EPA to disapprove Pennsylvania's UST Program.
    Summary: Since PADEP is not required to provide for, or explain in 
its State Program Approval Application, how the public is notified 
about enforcement actions initiated by the state, EPA has determined 
that this is no basis for disapproving Pennsylvania's UST program.
    Conclusion: Based on the above responses to all of the adverse 
comments received, EPA sees no basis for disapproving Pennsylvania's 
UST program pursuant to 40 CFR part 281 and is hereby proceeding with a 
final determination to approve Pennsylvania's UST program.

Statutory and Executive Order Reviews

    This rule will only approve State underground storage tank 
requirements pursuant to RCRA Section 9004 and imposes no requirements 
other than those imposed by State law (see Supplementary Information, 
section A. Background). Therefore, this rule complies with applicable 
executive orders and statutory provisions as follows:
    1. Executive Order 12866: Regulatory Planning Review--The Office of 
Management and Budget has exempted this rule from its review under 
Executive Order 12866. 2. Paperwork Reduction Act--This rule will not 
impose an information collection burden under the Paperwork Reduction 
Act. 3. Regulatory Flexibility Act--After considering the economic 
impacts of today's rule on small entities under the Regulatory 
Flexibility Act, I certify that this proposed rule will not have a 
significant economic impact on a substantial number of small entities. 
4. Unfunded Mandates Reform Act--Because this rule approves pre-
existing requirements under state law and does not impose any 
additional enforceable duty beyond that required by state law, it does 
not contain any unfunded mandate or significantly or uniquely affect 
small governments, as described in the Unfunded Mandates Reform Act. 5. 
Executive Order 13132: Federalism--Executive Order 13132 does not apply 
to this rule because it will not have federalism implications (i.e., 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government). 6. 
Executive Order 13175: Consultation and Coordination with Indian Tribal 
Governments--Executive Order 13175 does not apply to this rule because 
it will not have tribal implications (i.e., substantial direct effects 
on one or more Indian tribes, on the relationship between the Federal 
Government and Indian tribes, or on the distribution of power and 
responsibilities between the Federal Government and Indian tribes). 7. 
Executive Order 13045: Protection of Children from Environmental Health 
& Safety Risks--This rule is not subject to Executive Order 13045 
because it is not economically significant and it is not based on 
health or safety risks. 8. Executive Order 13211: Actions that 
Significantly Affect Energy Supply, Distribution, or Use--This rule is 
not subject to Executive Order 13211 because it is not a significant 
regulatory action as defined in Executive Order 12866. 9. National 
Technology Transfer Advancement Act--EPA approves State programs as 
long as they meet criteria required by RCRA, so it would be 
inconsistent with applicable law for EPA, in its review of a State 
program, to require the use of any particular voluntary consensus 
standard in place of another standard that meets the requirements of 
RCRA. Thus, section 12(d) of the National Technology Transfer and 
Advance Act does not apply to this rule. 10. Congressional Review Act--
EPA will submit a report containing this rule and other information 
required by the Congressional Review Act (5 U.S.C. 801 et seq.) to the 
U.S. Senate, the U.S. House of Representatives, and the Comptroller 
General of the United States prior to publication in the Federal 
Register. A major rule cannot take effect until 60 days after it is 
published in the Federal Register. This action is not a ``major rule'' 
as defined by 5 U.S.C. 804(2). This action will be effective September 
11, 2003.

List of Subjects in 40 CFR Part 281

    Environmental protection, Administrative practice and procedures, 
Hazardous substances, Intergovernmental relations, Reporting and 
recordkeeping requirements.

    Authority: This document is issued under the authority of 
section 9004 of the Resource Conservation and Recovery Act as 
amended 42 U.S.C. 6991c.

Thomas Voltaggio,
Acting Regional Administrator,
[FR Doc. 03-23164 Filed 9-10-03; 8:45 am]

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