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September 27, 1994 40 CFR Part 282 [FRL-5074-6] Underground Storage Tank Program: Approved State Program for Kansas


[Federal Register: September 27, 1994]


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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 282

[FRL-5074-6]

 
Underground Storage Tank Program: Approved State Program for 
Kansas

AGENCY: Environmental Protection Agency (EPA).

ACTION: Immediate final rule.

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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 codifies EPA's 
decision to approve state programs and incorporates by reference those 
provisions of the 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 
Kansas' underground storage tank program and incorporates by reference 
appropriate provisions of state statutes and regulations.

DATES: This regulation is effective November 28, 1994, unless EPA 
publishes a prior Federal Register notice withdrawing this immediate 
final rule. All comments on the codification of Kansas' underground 
storage tank program must be received by the close of business October 
27, 1994. The incorporation by reference of certain publications listed 
in the regulations is approved by the Director of the Federal Register, 
as of November 28, 1994, in accordance with 5 U.S.C. 552(a).

ADDRESSES: Comments may be mailed to WSTM/RCRA/STPG, Underground 
Storage Tank Program, U.S. EPA Region 7, 726 Minnesota Ave., Kansas 
City, Kansas, 66101. Comments received by EPA may be inspected at the 
above address from 9 a.m. to 4 p.m., Monday through Friday, excluding 
federal holidays.

FOR FURTHER INFORMATION CONTACT: Lee Daniels, Underground Storage Tank 
Program, U.S. EPA Region 7, 726 Minnesota Ave., Kansas City, Kansas, 
66101. Phone: (913) 551-7651.

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 Kansas. (59 FR 29201 June 6, 1994). 
Approval was effective on July 6, 1994.
    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 Kansas underground 
storage tank program. This codification reflects the state program in 
effect at the time EPA granted Kansas 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 Kansas 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 Kansas 
program and by amending the Code of Federal Regulations whenever a new 
or different set of requirements is approved in Kansas, the status of 
federally approved requirements of the Kansas program will be readily 
discernible. Only those provisions of the Kansas 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 Kansas' underground storage tank 
program, EPA has added Sec. 282.66 to title 40 of the CFR. Section 
282.66 incorporates by reference for enforcement purposes the State's 
statutes and regulations. Section 282.66 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 Kansas 
enforcement authorities will not be incorporated by reference. Section 
282.66 lists those approved Kansas 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 282.66 of the codification simply lists for reference and 
clarity the Kansas 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 codifies the decision already made (59 FR 29201 June 6, 
1994) to approve the Kansas 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

    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: August 23, 1994.
Dennis Grams,
Regional Administrator.
    For the reasons set forth in the preamble, 40 CFR part 282 is 
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.

Subpart B--Approved State Programs

    2. Subpart B is amended by adding section 282.66 to read as 
follows:


Sec. 282.66  Kansas State-Administered Program.

    (a) The State of Kansas 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 Kansas Department of Health and Environment, was 
approved by EPA pursuant to 42 U.S.C. 6991c and part 281 of this 
Chapter. EPA approved the Kansas program on June 6, 1994 and it was 
effective on July 6, 1994.
    (b) Kansas 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.
    (c) To retain program approval, Kansas 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 Kansas 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 subpart and notice of any change will be 
published in the Federal Register.
    (d) Kansas has final approval for the following elements submitted 
to EPA in Kansas' program application for final approval and approved 
by EPA on June 6, 1994. Copies may be obtained from the Underground 
Storage Tank Program, Kansas Department of Health and Environment, 
Forbes Field, Building 740, Topeka, Kansas, 66620-0001.
    (1) State statutes and regulations. (i) 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.
    (A) Kansas Statutory Requirements Applicable to the Underground 
Storage Tank Program, 1994
    (B) Kansas Regulatory Requirements Applicable to the Underground 
Storage Tank Program, 1994
    (ii) The following statutes and regulations are part of the 
approved state program, although not incorporated by reference herein 
for enforcement purposes.
    (A) The statutory provisions include: Kansas Statutes Annotated, 
Chapter 65, Public Health, Article 34, Kansas Storage Tank Act, 
Sections 108, 109 and 113.
    (iii) 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.
    (A) Kansas Statutes Annotated, Chapter 65, Article 34, Sections 
105(2) insofar as it applies to aboveground storage tanks, (8) insofar 
as it applies to tank tightness tester qualifications, (11) & (12) 
insofar as it applies to licensing tank installers and fees for these 
licenses, (13) insofar as it applies to aboveground storage tanks; 106 
insofar as it applies to aboveground storage tanks; 110 insofar as it 
applies licensing of tank installers and contractors; 111 insofar as it 
applies suspension of licenses; 112 insofar as it applies to agreements 
between secretary and local governments; 114 & 114a insofar as it 
applies to the storage tank release trust fund; 116 & 117 insofar as it 
applies to the storage tank release fund; 118 insofar as it applies to 
corrective action for aboveground storage tanks; 119-125 insofar as it 
applies to the storage tank release fund; 126 & 127 insofar as it 
applies to the third party liability insurance plan; 128 insofar as it 
applies to the storage tank fee fund; 129 & 130 insofar as it applies 
to the aboveground petroleum storage tank release trust fund.
    (B) Kansas Department of Health and Environment Permanent 
Administrative Regulations, Chapter 28, Article 44, Section 18 insofar 
as it applies to registration of non-regulated underground storage 
tanks; 20-22 insofar as they require underground storage tank 
installers, tank tightness testers and contractors to be licensed; 
23(b)(5) insofar as it applies to heating oil tanks.
    (2) Statement of legal authority. (i) ``Attorney General's 
Statement for Final Approval'', signed by the Attorney General of 
Kansas on August 23, 1993, 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.
    (ii) Letter from the Attorney General of Kansas to EPA, August 23, 
1993, 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 September, 1993, 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 September 
1993, 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 7 and the Kansas Department of Health and Environment, 
signed by the EPA Regional Administrator on April 29, 1994, 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. Appendix A to part 282 is amended by adding in alphabetical 
order ``Kansas'' and its listing.

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

* * * * *

Kansas

    (a) The statutory provisions include Kansas Statutes Annotated, 
1992; Chapter 65, Public Health; Article 34, Kansas Storage Tank 
Act:

Section 100  Statement of legislative findings
Section 101  Citation of Act
Section 102  Definitions
Section 103  Exceptions to application of Act
Section 104  Notification
Section 105  Rules and regulations, except for 65-34, 105 (a)(2), 
(a)(8), (a)(11), (a)(12) and the following words in (a)(13), ``and 
aboveground storage tanks in existence on July 1, 1992'' and ``and 
aboveground storage tanks placed in service prior to July 1, 1992''
Section 106  Permits to construct, install, modify, or operate 
storage tank, except for the following words in 65-34, 106(a), ``and 
any aboveground storage tank registered with the department on July 
1, 1992''
Section 107  Evidence of financial responsibility required; 
limitation of liability
Section 115  Liability for costs of corrective action
Section 118  Corrective action; duties of owners and operators; 
duties of Secretary; consent agreement; contents, except for the 
following words in 65-34, 118(b), ``or from the aboveground fund if 
the release was from an aboveground petroleum storage tank.'' and 
``or from the aboveground fund, if the release was from an 
aboveground petroleum storage tank.''

    (b) The regulatory provisions include Kansas Administrative 
Regulations, 1992; Chapter 28, Department of Health and Environment; 
Article 44, Petroleum Products Storage Tanks:

Section 12  General provisions
Section 13  Program scope and interim prohibition
Section 14  Definitions
Section 15  Application for installation or modification of an 
underground storage tank
Section 16  Underground storage tank systems: design, construction, 
installation and notification
Section 17  Underground storage tank operating permit
Section 19  General operating requirements
Section 23  Release detection, except for 28-44-23(b)(5)
Section 24  Release reporting, investigation, and confirmation
Section 25  Release response and corrective action for underground 
storage tank systems containing petroleum or hazardous substances
Section 26  Out-of-service underground storage tank systems and 
closure
Section 27  Financial responsibility

[FR Doc. 94-23600 Filed 9-26-94; 8:45 am]
BILLING CODE 6560-50-P

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