2022-14981. Vermont: Final Approval of State Underground Storage Tank Program Revisions, Codification, and Incorporation by Reference

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

Pursuant to the Resource Conservation and Recovery Act (RCRA or Act), the Environmental Protection Agency (EPA) is taking direct final action to approve revisions to the State of Vermont's Underground Storage Tank (UST) program submitted by the Vermont Department of Environmental Conservation (VT DEC). This action also codifies EPA's approval of Vermont State program and incorporates by reference those provisions of the State regulations that we have determined meet the requirements for approval. The provisions 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.

DATES:

This rule is effective September 12, 2022, unless EPA receives adverse comment by August 15, 2022. If EPA receives adverse comments, it will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register, as of September 12, 2022, in accordance with 5 U.S.C. 552(a) and 1 CFR part 51.

ADDRESSES:

Submit your comments by one of the following methods:

1. Federal eRulemaking Portal: https://www.regulations.gov. Follow the on-line instructions for submitting comments.

2. Email: [e-mail].

Instructions: Direct your comments to Docket ID No. EPA-R01-UST-2022-0204. EPA's policy is that all comments received will be included in the public docket without change and may be available online at https://www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through https://www.regulations.gov, or email. The Federal https://www.regulations.gov website is an “anonymous access” system, which means the EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to the EPA without going through https://www.regulations.gov, your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties, and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. EPA encourages electronic submittals, but if you are unable to submit electronically, please reach out to the EPA contact person listed in the notice for assistance.

Docket: All documents in the docket are listed in the https://www.regulations.gov index. Although listed in the index, some information might not be publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, might be publicly available only in hard copy form. Publicly available docket materials are available either electronically through www.regulations.gov or in hard copy.

IBR and supporting material: The EPA encourages electronic reviewing of these documents, but if you are unable to review these documents electronically, please contact Joan Coyle to schedule an appointment to view the documents at the Region 1 Office, 5 Post Office Square, 1st Floor, Boston, MA 02109-3912. The facility is open from 8:30 a.m. to 4:00 p.m., Monday through Friday, excluding Federal holidays. Interested persons wanting to examine these documents should make an appointment at least two weeks in advance. EPA Region 1 requires all visitors to adhere to the COVID-19 protocol. Please contact Joan Coyle for the COVID-19 protocol requirements for your appointment. The EPA continues to carefully and continuously monitor information from the Centers for Disease Control and Prevention (CDC), local area health departments, and our federal partners so that we can respond rapidly as conditions change regarding COVID-19. For further information on EPA Docket Center services and the current status, please visit us online at https://www.epa.gov/​dockets .

FOR FURTHER INFORMATION CONTACT:

Joan Coyle, [phone], [e-mail].

SUPPLEMENTARY INFORMATION:

I. Approval of Revisions to Vermont's Underground Storage Tank Program

A. Why are revisions to state programs necessary?

States that have received final approval from the EPA under RCRA section 9004(b) of RCRA, 42 U.S.C. 6991c(b), must maintain an underground storage tank program that is equivalent to, consistent with, and no less stringent than the Federal UST program. Either EPA or the approved state may initiate program revision. When EPA makes revisions to the regulations that govern the UST program, states must revise their programs to comply with the updated regulations and submit these revisions to the EPA for approval. Program revision may be necessary when the controlling Federal or state statutory or regulatory authority is modified or when responsibility for the state program is shifted to a new agency or agencies.

B. What decisions has the EPA made in this rule?

On December 23, 2020, in accordance with 40 CFR 281.51(a), Vermont submitted a complete program revision application seeking the EPA approval for its UST program revisions (State Application). Vermont's revisions correspond to the EPA final rule published on July 15, 2015 (80 FR 41566), which revised the 1988 UST regulations and the 1988 State program approval (SPA) regulations (2015 Federal Revisions). As required by 40 CFR 281.20, the State Application contains the following: a transmittal letter requesting approval, a description of the program and operating procedures, a demonstration of the State's procedures to ensure adequate enforcement, a Memorandum of Agreement outlining the roles and responsibilities of the EPA and the implementing agency, a statement of certification from the Attorney General, and copies of all relevant State statutes and regulations. We have reviewed the State Application and determined that the revisions to Vermont's UST program are equivalent to, consistent with, and no less stringent than the corresponding Federal requirements in subpart C of 40 CFR part 281, and that the Vermont program provides for adequate enforcement of compliance (40 CFR 281.11(b)). Therefore, the EPA grants Vermont final approval to operate its UST program with the changes described in the program revision application, and as outlined below in section I.G. of this document.

C. What is the effect of this approval decision?

This action does not impose additional requirements on the regulated community because the regulations being approved by this rule are already effective in Vermont, and they are not changed by this action. This action merely approves the existing State regulations as meeting the Federal requirements and renders them federally enforceable.

D. Why is EPA using a direct final rule?

EPA is publishing this direct final rule concurrent with a proposed rule because we view this as a noncontroversial action and anticipate no adverse comment. EPA is providing an opportunity for public comment now.

E. What happens if the EPA receives comments that oppose this action?

Along with this direct final rule, the EPA is publishing a separate document in the “Proposed Rules” section of this issue of the Federal Register that serves as the proposal to approve the State's UST program revisions, providing opportunity for public comment. If EPA receives comments that oppose this approval, EPA will withdraw the direct final rule by publishing a document in the Federal Register before the rule becomes effective. The EPA will base any further decision on the approval of the State program changes after considering all comments received during the comment period. EPA will then address all public comments in a later final rule. You may not have another opportunity to comment. If you want to comment on this approval, you must do so at this time.

F. For what has Vermont previously been approved?

On January 3, 1992, the EPA finalized a rule approving the UST program, effective February 3, 1992, to operate in lieu of the Federal program. On September 12, 1995, effective November 13, 1995, the EPA codified the approved Vermont program, incorporating by reference the State statutes and regulatory provisions that are subject to EPA's inspection and enforcement authorities under RCRA sections 9005 and 9006, 42 U.S.C. 6991d and 6991e, and other applicable statutory and regulatory provisions.

G. What changes are we approving with this action?

On December 23, 2020, in accordance with 40 CFR 281.51(a), Vermont submitted a complete application for final approval of its UST program revisions, adopted on October 26, 2020. The EPA now makes an immediate final decision, subject to receipt of written comments that oppose this action, that Vermont's UST program revisions satisfy all the requirements necessary to qualify for final approval. Therefore, EPA grants Vermont final approval for the following program changes:

Required federal element	Implementing state authority
40 CFR 281.30, New UST Systems and Notification	CVR 12-032-004 Chapter 8-302; 8-303(a)(1) and (a)(2); 8-403(b) and (c); 8-404; 8-405(a) and (f); 8-406(a) and (b); 8-410; 8-506(a)(1); 8-507(a)(1); 8-512.
40 CFR 281.31, Upgrading Existing UST Systems	CVR 12-032-004 Chapter 8-404; 8-405; 8-406; 8-410; 8-512.
40 CFR 281.32, General Operating Requirements	CVR 12-032-004 Chapter 8-403(a); 8-502(c) and (d); 8-503(d); 8-504; 8-508; 8-509(a), (c) and (f); 8-510(b); 8-511.
40 CFR 281.33, Release Detection	CVR 12-032-004 Chapter 8-404(c); 405(f); 8-505; 8-506(a); 8-507; 8-509(b)(2).
40 CFR 281.34, Release Reporting, Investigation, and Confirmation	CVR 12-032-004 Chapter 8-103(a) through (e).
40 CFR 281.35, Release Response and Corrective Action	CVR 12-032-004 Chapter 8-103(a), 8-103(c) through (e); CVR 12-032-008 Chapter 35-301; 35-305; 35- 604(d)(10); 35-606(b)(3); 35-607(b).
40 CFR 281.36, Out-of-service Systems and Closure	CVR 12-032-004 Chapter 8-602(a), (b)(1) through (4), (6);8-604.
40 CFR 281.37, Financial Responsibility for USTs Containing Petroleum	CVR 12-032-004 Chapter 8-305(a), (b), (c), (d), (e), (g), (j).
40 CFR 281.38, Lender Liability	CVR 12-032-004 Chapter 8-303(a)(2); 10 VSA 1926(c); 10 VSA 6615(g).
40 CFR 281.39, Operator Training	CVR 12-032-004 Chapter 8-307; 8-308.
40 CFR 281.40, Legal Authorities for Compliance Monitoring	CVR 12-032-004 Chapter 8-303(i)(2); 8-305; 8-502(c) and (d); 10 VSA 1924; 10 VSA 1931; 10 VSA 1934.
40 CFR 281.41, Legal Authorities for Enforcement Response	10 VSA 1927(d); 10 VSA 1932; 10 VSA 1934; 10 VSA 1935; 10 VSA 8007; 10 VSA 8008; 10 VSA 8009; 10 VSA 8010.
40 CFR 281.42, Public Participation in Enforcement Proceedings	10 VSA 8007(c); 10 VSA 8020; VRCP 24.

The State also demonstrates that its program provides adequate enforcement of compliance as described in 40 CFR 281.11(b) and part 281, subpart D. The VT DEC has broad statutory authority with respect to USTs to regulate installation, operation, maintenance, closure, and UST releases, and to the issuance of orders. These statutory authorities are found in: Vermont Statutes Annotated, Title 10: Conservation and Development, Chapter 59: Underground and Aboveground Liquid Storage Tanks, and Vermont Statutes Annotated, Title 10: Conservation and Development, Chapter 159: Waste Management.

H. Where are the revised rules different from the Federal rules?

Broader in Scope Provisions

The following statutory and regulatory provisions are considered broader in scope than the Federal program, and are therefore not enforceable as a matter of Federal law:

Tank owners shall record the existence and location of USTs in local land records.

After June 30, 1986, no owner or operator shall operate or maintain any UST, except for fuel oil storage tanks used for on-premises heating purposes, or farm or residential tanks used for storing motor fuel, without first obtaining a permit from the Secretary.

No person shall deliver a regulated substance to any UST, except for fuel oil storage tanks used for on-premises heating purposes, or farm or residential tanks used for storing motor fuel, that is visibly designated by the Agency as not meeting standards adopted by the Secretary related to corrosion protection, spill prevention, leak detection, financial responsibility, or overfill protection.

The Secretary shall establish tank registration requirements for farm or residential USTs greater than 1,100 gallons (category three tanks) that are or have been used to contain fuel oil for on-premises heating purposes, and for USTs greater than 1,100 gallons that are or have been used to contain fuel oil of on-premises heating purposes at a public building (category three tanks).

The Secretary shall adopt rules addressing the design and proper installation of aboveground storage tanks.

The Secretary may establish a process for licensing persons to perform tank integrity demonstrations.

A fund was created in the State Treasury, known as the Underground Storage Tank Trust Fund, to be expended by the Secretary as allowed by federal law, who may accept and use funds available through the federal underground storage tank trust fund.

The owners of a retail gasoline outlet that sells less than 20,000 gallons of gasoline per month and who want assistance to replace USTs, and municipalities with less than 2,500 people, may apply to the Secretary for such assistance, which may be in the form of grants of up to $5,000 or the cost of complying with the requirements in Chapter 59, whichever is less.

Vermont UST rules also apply to persons who install, remove, repair, or test underground storage tank systems.

All permit applications, notifications, and requested or required reports shall be signed by the applicant or permitee, or by a duly authorized representative of the same.

Any person may be granted a variance for one or more of a specific provision of the rules, provided that the request demonstrates that the proposed new or alternative technology, method, or application will be as protective to human health or the environment as the original provision.

Monitoring wells, recovery wells, and observation wells must be constructed with a liquid-tight cap and maintained in a condition that will prevent contamination of the groundwater resulting from a spill of regulated substance on the ground surface.

USTs used to store fuel oil for on-premises heating that have a capacity greater than 1,100 gallons and those located at public buildings are subject to requirements for registration, site assessment at closure, and release reporting.

USTs of any size storing fuel oil for on-premises industrial use, not just space heating, are subject to all requirements.

All USTs are subject to requirements for reporting releases and spills.

Owners of the land on which UST systems are located, as well as transporters of fuel, to both UST facilities and to disposal and treatment facilities, are subject to releases and spills reporting requirements.

Owners and operators of all underground storage tank systems must record their existence and location in municipal land records and pay a recording fee to the municipality, except for those UST's equal to or less than 1,100 gallons that are farm or residential motor fuel tanks or fuel oil tanks used for on-premises heating.

The Petroleum Cleanup Fund was established as a financial assurance mechanism for the cleanup and restoration of contaminated soil and groundwater caused by petroleum releases from USTs, and for compensation of third parties for injuries and damages caused by a release.

The State established a licensing fee of one cent per gallon of motor fuel sold by a distributor or dealer or used by a user in the State and will be assessed against every distributor, dealer, or user. The fee will be deposited into the Petroleum Cleanup Fund.

Each owner of all USTs, except for those equal to or less than 1,100 gallons that are farm or residential motor fuel tanks or fuel oil tanks used for on-premises heating, that store petroleum products must annually remit to the Secretary $100 per double-wall tank system; $250 per combination tank system, if the single-wall tank has been lined; $500 for all other combination systems; and $1,000 per single-wall tank system. Fees will be deposited into the Petroleum Cleanup Fund.

A Loan Assistance Program is established from which the Secretary may make individual loans up to $150,000 for the replacement or removal of petroleum tank systems. Loans will be made from the Motor Fuel Account.

Permits are required for construction, replacement, and operation of all UST's, except for fuel oil storage tanks used for on-premises heating and for farm or residential tanks used for storing motor fuel. Permits are not transferrable and do not run with the land. New owners or operators of UST facilities must apply for new operating permits. Operating permits are good for five years but permit fees must be submitted to the Secretary annually. Fees for UST permits are established at $125 per tank per year.

No portion of any new permitted underground storage tank system (installed after July 1, 2007) shall be located within the Source Protection Area of a public community water system or public non-transient, non-community (NTNC) water system using a groundwater source; within Zone 1 or 2 of a Source Water Area of a public community water system or NTNC water system using a surface water source (unless the Secretary determines on a case-by-case basis, that an UST may be sited in zone 2 of this same area); within 200 feet of a public transient, non-community (TNC) water system source; within 100 feet of any private water supply source; within 25 feet of any public water distribution line; or in any designated Class I or Class II groundwater zone area.

For all new facilities, and new UST's being installed at existing facilities, no portion of the tank system shall be located within five feet from any wall, foundation, or property line.

All fill pipes, pump-out pipes, or other tank-top fittings shall be connected to the tank using vapor-proof fittings and shall be equipped with vapor-proof caps that remain closed whenever the pipe or fitting is not in use.

All pressurized piping shall be equipped with a shear valve in the supply line to the dispenser, that is located at the inlet to the dispenser, and is securely anchored to a structural member of the dispensing island. Shear valves shall be tested according to the manufacturer's recommendations at the time of installation and at least annually thereafter.

Any size motor fuel and commercial fuel oil underground storage tank located at an elevation that produces a gravity head on the dispenser shall be equipped with a device ( e.g., a solenoid-operated anti-siphon valve) that prevents the flow of regulated substance by gravity from the tank when the dispenser is not in use, or in the event of a piping or hose failure.

A facility diagram must always be displayed in a location that is protected from the weather and visible to any carrier delivering regulated substances to all USTs, except fuel oil storage tanks used for on-premises heating purposes, or farm or residential tanks greater than 1,100 gallons used for storing motor fuel. It must include the location of each tank and fill pipe, regulated substance stored, and the capacity and diameter of each tank.

The fill pipe of each UST must be marked or labelled to identify the material stored. The fill pipe and pump-out pipe of any used oil UST must be marked or labelled to identify the contents of the tank as used oil. When the material stored in a tank is changed, the labeling or marking on the fill pipe and pump-out pipe shall be updated to reflect that change.

Following the repair of a tank, and before using it, the owner must obtain a written warranty from the person who repaired the tank that warrants against structural failure for at least 10 years after the repair, and for steel tanks, warrants against failure due to external corrosion for at least 10 years following the repair. Copies of warranties for internal inspections of tank linings shall be maintained for the operating life of the tank. Copies of all warranties shall be made available to the Secretary within 24 hours of a request.

Any time a vent riser is exposed for maintenance or repair, any Stage II vapor recovery piping connected to that vent riser shall be disconnected and capped securely.

Any waste liquids produced by the testing procedures required for sump and spill containment device inspections shall be managed in accordance with procedures established by the Secretary.

Requirements for registration, reporting of releases and spills, release assessments at closure and removal, and recordkeeping of closure activities apply to fuel oil tanks used for on-premises heating that are greater than 1,100 gallons or are located at commercial and public buildings.

Requirements for permanent closure apply to farm or residential motor fuel tanks and fuel oil storage tanks used for on-premises heating that are less than or equal to 1,100 gallons. However, the requirements for providing notice of closure and recording to the Secretary do not apply for these tank systems.

When the Secretary receives a site assessment report for closing any UST system, the Secretary will send the owner either an amended Notification Form or an UST Closure Form. Within 30 days of receipt of the form, the owner will complete and sign the form and return to the Secretary with the municipal recording fee. The Secretary will issue an amended permit for any category one UST systems that remain in-service at the facility where an UST system has been closed.

More Stringent Provisions

Any release of petroleum product that exceeds two gallons, or a release of petroleum product that is less than or equal to two gallons and poses a potential or actual threat to human health or the environment, must be immediately reported to the state.

A release of any amount of hazardous material other than petroleum must be immediately reported to the state.

Upon transfer of ownership of an underground tank system, the seller shall provide written notification to the new owner of the existence of these rules.

For any change-in-service, the owner or permittee must notify the Secretary of the anticipated change at least 14 days prior to making the change.

Any piping that is removed from the ground shall not be reinstalled as part of an underground storage tank system used to contain a regulated substance.

During all hours of normal operation hours, a staffed facility shall have a Class C operator present at the facility, or at least a person who has been trained in all appropriate emergency actions to be taken in response to a spill or overfill of regulated substance, automatic tank gauge system alarms, and phone numbers to call to report spills, overfills, or other emergencies.

Class A, B, and C operators must renew their certifications at least every two years.

An operator training test must be approved, in writing, by the Secretary as satisfying the minimum criteria of areas of competence for Class A, B, and C operators.

Remote fill pipes and manifolds that contain hazardous materials must be equipped with secondary containment.

All dispenser sumps shall be monitored for releases, except those with pumps that operate under suction and the pipe connecting the tank to the dispenser rises directly vertically from the tank.

Any point where different types of new piping are joined underground, or any point between a tank and dispenser where liquid would likely accumulate in the interstitial space of the piping system, shall be contained within an intermediary sump that is monitored for releases.

All tanks containing regulated substances, including farm or residential motor fuel tanks greater than 1,100 gallons used for non-commercial purposes, must have spill containment.

Spill containment devices installed or replaced after July 1, 2007, must have a minimum capacity of 15 gallons and not be equipped with a drain valve.

Overfill prevention equipment is not required for any tank that receives less than 25 gallons of regulated substances at one time and is never more than 90 percent full, provided the owner/operator performs manual volume measurements at least once per week, following procedures in the regulations, and maintains records of the results.

Field-installed galvanic anodes must be tested at least annually.

Systems using impressed current shall be inspected and tested at least annually to evaluate all components.

A copy of a passing cathodic test report shall be submitted to the Secretary within 30 days of the test. The Secretary must be notified within one business day of the failed test. A copy of a failed test report must be submitted to the Secretary within five business days of the test. The cause of the failure must be determined within 120 days of the test, and, if necessary, the failed system must be repaired or replaced. Within 30 days of repairing a cathodic protection system, a written report must be submitted to the Secretary describing the cause and the measures taken to correct the failure. If repairs to the cathodic protection system are not completed within120 days of the date of the failed test, the UST system must be taken out-of-service or be closed. On a case-by-case basis, the Secretary may allow the UST system to remain in service for more than 120 days after the date of the failed test.

All UST systems in operation, except for fuel oil storage tanks used for on-premises heating purposes, and farm or residential motor fuel tanks less than 1,100 gallons, or those that are out of service but still contain product, must be monitored at least weekly for releases.

Inventory monitoring must be performed on all operating UST systems, except for fuel oil storage tanks used for on-premises heating purposes, farm, or residential motor fuel tanks less than 1,100 gallons, and tanks that contain used oil or do not dispense product through a metered dispenser. Suspected releases must be reported to the Secretary when the monitoring indicates a release has occurred according to specified criteria.

The owner of any existing flexible thermoplastic piping that is ten years old or older and does not meet the standards established by Underwriters Laboratories Standard 971-2005: “Standard for Nonmetallic Underground Piping for Flammable Liquids,” shall conduct a visual inspection of that piping at least annually. The results of that inspection shall be reported and submitted to the Secretary within 30 days of completing the inspection.

Copies of each passing annual automatic line leak detector test report must be sent to the Secretary within 30 days of the date of the test.

Within 90 days of completing a repair of any cathodically-protected tank, the permittee or tank owner shall test the cathodic protection system.

The results of each walkthrough inspection report which shall be maintained at the facility or a facility corporate office within the State of Vermont for a period of at least three years.

Permittees shall annually inspect each underground storage tank system, except for fuel oil storage tanks used for on-premises heating purposes or farm or residential tanks used for storing motor fuel, for compliance with these rules and shall self-certify the results of that inspection on specified certification forms, to the Secretary no later than December 31 of each year.

Walkthrough inspections will include visually examining tank pads for stains or other indications of a spill or leak in a sump or other tank-top appurtenance. Dispensers, dispensing islands, and fueling pads shall be visually examined for stains or other indications of a spill or leak in a dispenser.

Walkthrough inspections of unstaffed facilities shall be conducted weekly, except that the inner workings of dispensers can be examined monthly.

Failed results of sump, spill containment, and overfill protection test results must be immediately reported to the Secretary. Permittees shall submit to the Secretary passing test results and a summary of any actions taken within 30 days of the completion of the tests.

If an UST system is out of service for 90 days or less, owners/permittees must notify the Secretary that the tank system is out-of-service; ensure the liquid level has been lowered to or below the lowest draw-off point, ensure that vent lines are left open and functioning, that all other lines, gauge openings, manways, pumps and other ancillary equipment are capped or secured to prevent unauthorized use or access; indicate by signage to notify customers and suppliers that the system is out-of-service; and secure the fill pipe to prevent a carrier from adding regulated substance to the tank system. In addition to these requirements, owners/permittees must ensure that the tank is empty if taken out of service for greater than 90 days.

Single-walled tanks and pressurized single-walled piping must be closed by January 1, 2016. Combination systems (single-wall unlined tanks, with either double wall pressurized piping or intrinsically safe single-wall suction piping) must be removed by January 1, 2018. Lined single wall tanks with double-wall pressurized piping must cease operation 10 years after lining, except that if an internal inspection is conducted and the lining is still in good condition and no leak has occurred, owners can request a five-year extension, after which the tank must be closed, even if the lining is still good. Damaged lining cannot be repaired.

No person shall line a single-wall tank or combination tank system after January 1, 2014.

II. Codification

A. What is codification?

Codification is the process of placing a state's statutes and regulations that comprise the state's approved UST program into the CFR. Section 9004(b) of RCRA, as amended, allows the EPA to approve State UST programs to operate in lieu of the Federal program. The EPA codifies its authorization of state programs in 40 CFR part 282 and incorporates by reference state statutes and regulations that the EPA will enforce under sections 9005 and 9006 of RCRA and any other applicable state provisions. The incorporation by reference of state authorized programs in the CFR should substantially enhance the public's ability to discern the current status of the approved state program and state requirements that can be federally enforced. This effort provides clear notice to the public of the scope of the approved program in each state.

B. What is the history of codification of Vermont's UST program?

EPA incorporated by reference the Vermont DEC approved UST program effective November 13, 1995 (60 FR 47300; September 12, 1995). In this document, EPA is revising 40 CFR 282.95 to include the approved revisions.

C. What codification decisions have we made in this rule?

Incorporation by reference: In this rule, we are finalizing regulatory text that includes incorporation by reference. In accordance with the requirements of 1 CFR 51.5, we are finalizing the incorporation by reference of the federally approved Vermont UST program described in section I.G. of this preamble and set forth below in the amendments to 40 CFR part 282. The EPA has made, and will continue to make, this document generally available through www.regulations.gov and at the EPA Region 1 office (see the ADDRESSES Section of this preamble for more information).

The purpose of this Federal Register document is to codify Vermont's approved UST program. The codification reflects the State program that would be in effect at the time EPA's approved revisions to the Vermont UST program addressed in this direct final rule become final. The document incorporates by reference Vermont's UST statutes and regulations and clarifies which of these provisions are included in the approved and federally enforceable program. By codifying the approved Vermont program and by amending the CFR, the public will more easily be able to discern the status of the federally-approved requirements of the Vermont program.

EPA is incorporating by reference the Vermont approved UST program in 40 CFR 282.95. Section 282.95(d)(1)(i)(A) 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 UST program under Subtitle I of RCRA. These documents are not incorporated by reference.

D. What is the effect of Vermont's codification on enforcement?

The EPA 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 and to issue orders in approved States. With respect to these actions, EPA will rely on Federal sanctions, Federal inspection authorities, and Federal procedures rather than the state authorized analogues to these provisions. Therefore, the EPA is not incorporating by reference such particular, approved Vermont procedural and enforcement authorities. Section 282.95(d)(1)(ii) of 40 CFR lists those approved Vermont authorities that would fall into this category.

E. What State provisions are not part of the codification?

The public also needs to be aware that some provisions of the State's UST program are not part of the federally approved State program. Such provisions are not part of the RCRA Subtitle I program because they are “broader in scope” than Subtitle I of RCRA. Section 281.12(a)(3)(ii) of 40 CFR states that where an approved state program has provisions that are broader in scope than the Federal program, those provisions are not a part of the federally approved program. 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(d)(1)(iii) 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 in this document. Provisions that are broader in scope cannot be enforced by EPA; the State, however, will continue to implement and enforce such provisions under State law.

III. Statutory and Executive Order Reviews

This action only applies to Vermont's UST Program requirements pursuant to RCRA section 9004 and imposes no requirements other than those imposed by State law. It complies with applicable Executive Orders (EOs) and statutory provisions as follows:

A. Executive Order 12866: Regulatory Planning and Review; Executive Order 13563: Improving Regulation and Regulatory Review

The Office of Management and Budget (OMB) has exempted this action from the requirements of Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011). This action approves and codifies State requirements for the purpose of RCRA section 9004 and imposes no additional requirements beyond those imposed by State law. Therefore, this action is not subject to review by OMB.

B. Executive Order 13771: Reducing Regulations and Controlling Regulatory Costs

This action is not a regulatory action subject to Executive Order 13771 (82 FR 9339, February 3, 2017) because actions such as this final approval of Vermont's revised underground storage tank program under RCRA are exempted under Executive Order 12866. Accordingly, I certify that this action will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ).

C. Unfunded Mandates Reform Act and Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

Because this action approves and codifies 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 of 1995 (2 U.S.C. 1531-1538). As discussed above, EPA is not acting on approval to operate the State's UST program as it applies to Tribal lands in the State. Therefore, this action also does not significantly or uniquely affect the communities of Tribal governments, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

D. Executive Order 13132: Federalism

This action will not have 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, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely approves and codifies State requirements as part of the State RCRA underground storage tank program without altering the relationship or the distribution of power and responsibilities established by RCRA.

E. Executive Order 13045: Services of Children From Environmental Health and Safety Risks

This action also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant, and it does not make decisions based on environmental health or safety risks.

F. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use

This rule is not subject to Executive Order 13211, “Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not a “significant regulatory action” as defined under Executive Order 12866.

G. National Technology Transfer and Advancement Act

Under RCRA section 9004(b), EPA grants a State's application for approval as long as the State meets the criteria required by RCRA. It would thus be inconsistent with applicable law for EPA, when it reviews a State approval application, to require the use of any particular voluntary consensus standard in place of another standard that otherwise satisfies the requirements of RCRA. Thus, the requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply.

H. Executive Order 12988: Civil Justice Reform

As required by Section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct.

I. Executive Order 12630: Governmental Actions and Interference With Constitutionally Protected Property Rights

EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the Executive order.

J. Paperwork Reduction Act

This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). “Burden” is defined at 5 CFR 1320.3(b).

K. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations

Executive Order 12898 (59 FR 7629, February 16, 1994) establishes Federal executive policy on environmental justice. Its main provision directs Federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States. Because this rule approves pre-existing State rules which are at least equivalent to, and no less stringent than existing Federal requirements, and imposes no additional requirements beyond those imposed by State law, and there are no anticipated significant adverse human health or environmental effects, the rule is not subject to Executive Order 12898.

L. Congressional Review Act

The Congressional Review Act, 5 U.S.C. 801-808, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this document and other required information 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). However, this action will be effective September 12, 2022 because it is a direct final rule.

Authority: This rule is issued under the authority of sections 2002(a), 7004(b), and 9004 of the Solid Waste Disposal Act, as amended, 42 U.S.C. 6912, 6991c, 6991d, and 6991e.

List of Subjects in 40 CFR Part 282

• Environmental protection
• Administrative practice and procedure
• Confidential business information
• Hazardous substances
• Incorporation by reference
• Insurance
• Intergovernmental relations
• Penalties
• Petroleum
• Reporting and recordkeeping requirements
• Surety bonds
• Underground storage tanks
• Water supply

David W. Cash,

Regional Administrator, EPA Region 1.

For the reasons set forth in the preamble, EPA is amending 40 CFR part 282 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. Amend § 282.2 by revising the second sentence of paragraphs (b) introductory text and paragraph (b)(1) to read as follows:

§ 282.2

Incorporation by reference.

* * * * *

(b) * * * For information on the availability of this material at NARA, email: [e-mail], or go to: www.archives.gov/​federal-register/​cfr/​ibr-locations.html. * * *

(1) Region 1 (Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, Vermont): 5 Post Office Square, 1st floor, Boston, MA 02109-3912; Phone Number: [phone].

* * * * *

3. Revise § 282.95 to read as follows:

§ 282.95

Vermont State-Administered Program.

(a) 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 (VT DEC), was approved by EPA pursuant to 42 U.S.C. 6991c and 40 CFR part 281. EPA approved the Vermont program on January 3, 1992, which was effective on February 3, 1992.

(b) Vermont has primary responsibility for administering and enforcing its federally approved 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 any other applicable statutory and regulatory provisions.

(c) To retain program approval, Vermont must revise its approved program to adopt new changes to the Federal Subtitle I program which makes 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 of RCRA, 42 U.S.C. 6991c, the newly approved statutory and regulatory provisions will be added to this subpart and notification of any change will be published in the Federal Register .

(d) Vermont has final approval for the following elements of its program application originally submitted to EPA and approved effective February 3, 1992, and the program revision application approved by EPA, effective on September 12, 2022.

(1) State statutes and regulations— (i) Incorporation by reference. The material cited in this paragraph, and listed in Appendix A to this part, is incorporated by reference as part of the underground storage tank program under Subtitle I of RCRA, 42 U.S.C. 6991 et seq. (See § 282.2 for incorporation by reference approval and inspection information.) You may obtain copies of the Vermont regulations and statutes that are incorporated by reference in this paragraph from Ted Unkles, UST Program Manager, Vermont Department of Environment Conservation, 1 National Life Drive; Davis 1 Montpelier VT 05620-3704; Phone number: 802-522-0488; [e-mail]; Hours: Monday to Friday, 8:00 a.m. to 4:30 p.m.; link to statutes and regulations: https://legislature.vermont.gov/​statutes/​chapter/​10/​059;​ https://legislature.vermont.gov/​statutes/​chapter/​10/​159;​ https://dec.vermont.gov/​sites/​dec/​files/​wmp/​UST/​UST-Rules.pdf;​ https://dec.vermont.gov/​sites/​dec/​files/​wmp/​Sites/​0706.IRULE_​.pdf.

(A) EPA-Approved Vermont Statutory and Regulatory Requirements Applicable to the Underground Storage Tank Program, October 2021.

(B) [Reserved]

(ii) Legal basis. EPA evaluated the following statutes and regulations which are part of the approved program, but they are not being incorporated by reference for enforcement purposes, and do not replace Federal authorities:

(A) The statutory provisions include:

( 1 ) Title 10 Vermont Statutes Annotated, Chapter 201, Administrative Environmental Law Enforcement; Sections 8001, 8002, 8003(a)(8) and (a)(12), 8004 through 8008, 8009 through 8016, 8019 through 8021.

(2) Title 10 Vermont Statutes Annotated, Chapter 59, Underground and Aboveground Liquid Storage Tanks, Sections 1931 through 1935.

(3) Title 10 Vermont Statutes Annotated, Chapter 159, Waste Management, Sections 6609, 6610a, and 6612, 6615c, 6615d.

(B) The regulatory provisions include:

(1) Code of Vermont Regulations, Chapter 20, Environmental Administrative Penalty Rules.

(2) Code of Vermont Regulations, Chapter 25, Environmental Citations.

(3) Code of Vermont Rules, 12-032-004. Chapter 8 — Vermont Underground Storage Tank Rules, Section 8-502(d).

(iii) Provisions not incorporated by reference. The following specifically identified statutory and regulatory provisions applicable to the Vermont's UST program are broader in scope than the Federal program, are not part of the approved program, and are not incorporated by reference in this section for enforcement purposes:

(A) Title 10 Vermont Statutes Annotated, Chapter 59, Underground and Aboveground Liquid Storage Tanks, Subchapter 1: Underground Storage Tank Regulation. Section 1925, Notice in land records; Section 1927. Regulation of category one tanks, 1927(a), 1927(d); Section 1929. Regulation of large heating oil tanks; Section 1929a. Standards for aboveground storage tanks; Section 1929b. Regulation of heating oil tanks at public buildings; Section 1930. Implementation; coordination, Section 1930(b) and (c); Section 1936. Licensure of tank inspectors; Subchapter 2: Underground Storage Tank Assistance Program. Sections 1938 through 1944; Title 10 Vermont Statutes Annotated, Chapter 159, Waste Management, Subchapter 1: General Provisions, except Sections 6601, 6602(16)(A)(i), (ii) and (iv), 6615, 6615a, 6615b, 6616, and 6617.

(B) Code of Vermont Rules, 12-032-004. Chapter 8 — Vermont Underground Storage Tank Rules, Subchapter 1: General Provisions, Section 8-102. Purpose and Applicability, as it applies to “install, remove, repair, or test;” Section 8-103. Release Prohibition, Reporting, Emergency Response, the wording in 8-103(b), “owner of the land on which the underground storage tank system is located, transporter of fuel, etc.” as it applies to any person being responsible for immediately reporting a release, and 8-103(g); Section 8-106. Fees; Section 8-107. Severability; Section 8-108. Variances; Section 8-109. Transfer of Ownership, Operation; Permits, Notification of Rules, Section 8-109(a); Subchapter 3: Registration (Notification), Permits, and Operator Training, Section 8-301. Applicability, 8-301(a)(1)(A), (a)(1)(B), (a)(2)(B), 8-301(b)(2), 8-301(c); Section 8-302. Registration, 8-302(a)(1)(C) and 8-302(c); Section 8-303, Permits for Category One Underground Storage Tank Systems, except 8-303(f); Section 8-304. Recording Underground Storage Tank Systems in Municipal Land Records; Subchapter 4: Design, Manufacturing, And Installation Standards for Underground Storage Tank Systems, Section 8-402. Prohibitions, 8-402(a) and (b); Section 8-405. Piping Standards, 8-405(b), (d)(2), and (e); Section 8-406. Spill Containment & Overfill Prevention Measures and Equipment, 8-406(c) and (d); Section 8-407. Scheduling Installations of Underground Storage Tank Systems, 8-407(a)(1); Subchapter 5: Operating Standards for Underground Storage Tanks, Section 8-503. Spill and Overfill Prevention; Monitoring of Deliveries, 8-503(a) and (b); Section 8-506. Release Detection Requirements for Tanks, 8-506(c)(1)(F); Section 8-508. Underground Storage Tank System Repairs, 8-508(c)(9)(B), (C) and (D); 8-508(g); Section 8-511. Testing of Sumps, Spill Containment, and Overfill Prevention Devices, 8-511(c); Subchapter 6: Out-Of-Service, Continued Use, And Closure Standards for Underground Storage Tank Systems, Section 8-601. Applicability, 8-601(c) and (d); Section 8-604. Closure of Underground Storage Tank Systems, the words “or three” in 8-604(g) as it applies to category three systems, 8-604(h)(3), and 8-604(i), with respect to the Secretary's issuance of an amended permit; Code of Vermont Rules 12-032-008. Chapter 35—Investigation and Remediation of Contaminated Properties Rule, Subchapter 1: General Provisions, Section 35-103. Severability; Section 35-107. Historical Fill Exemption; Subchapter 5: Response Actions; Releases of Heating Fuels; Subchapter 8: Contaminated Soil, Section 35-805. Development Soils; Subchapter 11. Requests for Reimbursement for Municipal Water Line Extensions from the Petroleum Cleanup or Environmental Contingency Funds; and other provisions of Chapter 35, insofar as they do not relate to underground storage tanks and with respect to underground storage tanks insofar as they are broader in scope than the federal requirements.

(2) Statement of legal authority. The Attorney General's Statements, signed by the Attorney General of Vermont on April 11, 1991, and October 30, 2020, 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.

(3) Demonstration of procedures for adequate enforcement. The “Demonstration of Procedures for Adequate Enforcement” submitted as part of the original application in May 1991, and as part of the program revision application for approval on December 22, 2020, 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, and as part of the program revision application on December 22, 2020, 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 1 and the Vermont Department of Environmental Conservation, signed by the EPA Regional Administrator on October 10, 2018, 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. Appendix A to part 282 is amended by revising the entry for Vermont to read as follows:

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

* * * * *

Vermont

(a) The statutory provisions include:

1. Title 10 Vermont Statutes Annotated, Chapter 59, Underground and Aboveground Liquid Storage Tanks

Section 1921. Purpose; Section 1922. Definitions; Section 1923. Notice of new or existing underground storage tanks; Section 1924. Integrity report; Section 1926. Unused and abandoned tanks; Section 1927. Regulation of category one tanks, except (a) and (d); Section 1928. Regulation of farm and residential large motor fuel tanks; Section 1930. Implementation; coordination, except (b) and (c).

2. Title 10 Vermont Statutes Annotated, Chapter 159, Waste Management

Section 6602. Definitions, 6602(1), (6), (16)(A)(i), (ii) and (iv), (17), (23), (34); Section 6615. Liability, 6615(g); Section 6615a. Diligent and appropriate investigation for hazardous materials; Section 6615b. Corrective action procedures; Section 6616. Release prohibition; Section 6617. Person responsible for release; notice to Agency.

(b) The regulatory provisions include:

1. Code of Vermont Rules 12-032-004. CHAPTER 8—Vermont Underground Storage Tank Rules (Effective October 26, 2020)

Subchapter 1: General Provisions, Section 8-101. Authority; Section 8-102. Purpose and Applicability, except “install, remove, repair, or test”; Section 8-103. Release Prohibition, Reporting, Emergency Response, except (b) “owner of the land on which the underground storage tank system is located, transporter of fuel, etc.” and (g); Section 8-104. Signatories to Permits and Reports; Section 8-105. Incorporation by Reference; Section 8-109. Transfer of Ownership, Operation; Permits, Notification of Rules, Section 8-109(b); Subchapter 2: Definitions; Subchapter 3: Registration (Notification), Permits, And Operator Training, Section 8-301. Applicability, 8-301(a)(1)(C) and (D); 8-301(a)(2)(A), (C), and (D); 8-301(b)(1), (b)(3) and (b)(4); Section 8-302. Registration, except 8-302(a)(1)(C) and 8-302(c); Section 8-303. Permits for Category One Underground Storage Tank Systems, 8-303(f); Section 8-305. Financial Responsibility Requirements; Section 8-306. Change-in-Service; Section 8-307. Operator Training Requirements; Section 8-308. Approval of Operator Training Test; Subchapter 4: Design, Manufacturing, and Installation Standards for Underground Storage Tank Systems, Section 8-402. Prohibitions, 8-402(c), (d) and (e); Section 8-403. General Requirements; Section 8-404. Tank Installation Standards; Section 8-405. Piping Standards, except 8-405(b), (d)(2), and (e); Section 8-406. Spill Containment & Overfill Prevention Measures and Equipment, except 8-406(c) and (d); Section 8-407. Scheduling Installations of Underground Storage Tank Systems, except 8-407(a)(1); Section 8-408. Reuse of Tanks; Section 8-409 Underground Storage Tank Systems Located at Marinas; Section 8-410. Field Constructed Tanks and Airport Hydrant Systems; Subchapter 5: Operating Standards for Underground Storage Tanks, Section 8-501. Applicability; Section 8-502. General and Recordkeeping Requirements; Section 8-503. Spill and Overfill Prevention; Monitoring of Deliveries, except 8-503(a) and (b); Section 8-504. Cathodic Protection Systems; Section 8-505. General Requirements for Release Detection; Section 8-506. Release Detection Requirements for Tanks, except 8-506(c)(1)(F); Section 8-507. Release Detection Requirements for Piping, Sumps, and Spill Containment; Section 8-508. Underground Storage Tank System Repairs, except 8-508(c)(9)(B), (C), and (D), and 8-508(g); Section 8-509. Periodic Inspections and Self-Certifications; Section 8-510. Unstaffed Facilities; Section 8-511. Testing of Sumps, Spill Containment, and Overfill Prevention Devices, except 8-511(c); Section 8-512. Field Constructed Tanks and Airport Hydrant Systems; Subchapter 6: Out-Of-Service, Continued Use, And Closure Standards for Underground Storage Tank Systems, Section 8-601. Applicability, except 8-601(c) and (d); Section 8-602. Out-of-Service Underground Storage Tank Systems; Section 8-603. Continued Use of Underground Storage Tank Systems; Section 8-604: Closure of Underground Storage Tank Systems, except the words “or three” in 8-604(g), 8-604(h)(3), and 8-604(i) with respect to the Secretary's issuance of an amended permit; Section 8-605. Release Assessment at the Time of Closure or a Change-In-Service; and 8-606. Closure Records.

2. Code of Vermont Rules 12-032-008. Chapter 35—Investigation and Remediation of Contaminated Properties Rule (Effective July 6, 2019) only insofar as they pertain to the regulation of underground storage tanks in Vermont and only insofar as they are incorporated by reference and are not broader in scope than the federal requirements.

Subchapter 1. General Provisions, except Section 35-103, Severability, and Section 35-107, Historical Fill Exemption; Subchapter 2. Definitions; Subchapter 3. Site Investigation; Subchapter 4. Data Evaluations; Subchapter 6. Corrective Action; Subchapter 7. Long Term Monitoring; Subchapter 8. Contaminated Soil, except Section 35-805. Development Soils ; Subchapter 9. Institutional Controls; Subchapter 10. Site Closure.

* * * * *