E6-16375. New Hampshire: Final Approval of Underground Storage Tank Program Revisions

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Immediate final rule.

SUMMARY:

The State of New Hampshire has amended the regulations previously approved by EPA under Subtitle I of the Resource Conservation and Recovery Act (RCRA). EPA has determined that these amendments satisfy all requirements needed for program approval and is approving the State's changes through this immediate final action. EPA is publishing this rule to approve the changes without a prior tentative determination because we believe this action is not controversial and do not expect comments that oppose it. Unless we get written comments which oppose this approval during the comment period, the decision to approve New Hampshire's amendments to its underground storage tank (UST) program will take effect as provided below. If we receive comments that oppose this action, we will publish a document in the Federal Register withdrawing this rule before it takes effect, and the separate document in the proposed rules section of this Federal Register will serve as the proposal to approve the amendments.

DATES:

This approval will become effective on December 4, 2006, unless EPA receives adverse written comment by November 3, 2006. If EPA receives such comment, it will publish a timely withdrawal of this immediate final rule in the Federal Register and inform the public that this approval will not take immediate effect.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-R01-UST-2006-0622, by one of the following methods:

• www.regulations.gov: Follow the on-line instructions for submitting comments.
• E-mail: [e-mail].
• Mail: Susan Hanamoto, Office of Underground Storage Tanks, EPA Region I, One Congress Street, Suite 1100 (Mail Code: HBO), Boston, MA 02114-2023.
• Hand Delivery: Susan Hanamoto, Office of Underground Storage Tanks, EPA Region I, One Congress Street, Suite 1100 (Mail Code: HBO), Boston, MA 02114-2023. Such deliveries are only accepted during the EPA's normal hours of operation, and special arrangements should be made for deliveries of boxed information.

Instructions: Direct your comments to Docket ID No. EPA-R01-UST-2006-0622. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at 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 www.regulations.gov or e-mail. The www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through www.regulations.gov, your e-mail 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.

Docket: EPA has established a docket for this action under Docket ID No. EPA-R01-UST-2006-0622. All documents in the docket are listed on the www.regulations.gov Web site. Although listed in the index, some information may not be publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through www.regulations.gov or in hard copy at the EPA Region I Library, One Congress Street, 11th Floor, Boston, MA 02114-2023; business hours Tuesday through Thursday 10 a.m. to 3 p.m., telephone: [phone]; or the New Hampshire Department of Environmental Services, Public Information Center, 29 Hazen Drive, Concord, NH 03302-0095; Phone Number: [phone] or [phone]; Business hours: 8 a.m. to 4 p.m., Monday-Friday. Records in these dockets are available for inspection and copying during normal business hours.

FOR FURTHER INFORMATION CONTACT:

Susan Hanamoto, Office of Underground Storage Tanks, EPA Region I, One Congress Street, Suite 1100 (Mail Code: HBO), Boston, MA 02114-2023, telephone: [phone], e-mail: [e-mail].

SUPPLEMENTARY INFORMATION:

A. Why Are Revisions to State Programs Necessary?

States that have received final approval of their UST program under Section 9004 of RCRA, 42 U.S.C. 6991c, must maintain a UST program that is “no less stringent” than the Federal program with respect to the seven requirements set forth at RCRA section 9004(a)(1) through (7), 42 U.S.C. 6991c(a)(1) through (7), that meets the notification requirements of RCRA section 9004(a)(8), and that also provides for adequate enforcement of compliance with UST standards in accordance with RCRA section 9004(a), 42 U.S.C. 6991c(a). Either EPA or the approved state may initiate program revision. Program revision may be necessary when the controlling Federal or state statutory or regulatory authority is changed or when responsibility for the state program is shifted to a new agency or agencies.

B. What Decisions Have We Made in This Rule?

We conclude that New Hampshire's application to revise its approved program meets all of the statutory and regulatory requirements established by RCRA. Therefore, we grant New Hampshire approval to operate its UST program with the revisions described in the program approval application.

C. What Is the Effect of Today's Approval Decision?

This action does not impose additional requirements on the regulated community because the regulations for which New Hampshire is being approved by today's action are already effective, and they are not changed by today's action.

D. Why Wasn't There a Proposed Rule Before Today's Rule?

EPA did not publish a proposal before today's rule because we view this as a non-controversial program change and do not expect comments that oppose this approval. We are providing an opportunity for public comment now.

E. What Happens if EPA Receives Comments That Oppose This Action?

If EPA receives comments that oppose this approval, we will withdraw this rule by publishing a document in the Federal Register before the rule becomes effective. EPA will base any further decision on the approval of the state program changes on the proposal mentioned in the previous paragraph. We 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.

If we receive comments that oppose only the approval of a particular change to the State UST program, we will withdraw that part of this rule but the approval of the program changes that the comments do not oppose will become effective on the date specified above. The Federal Register withdrawal document will specify which part of the approval will become effective, and which part is being withdrawn.

F. What Has New Hampshire Previously Been Approved for?

New Hampshire received final approval on June 19, 1991, effective July 19, 1991 (56 FR 28089) to administer the UST program in lieu of the Federal program. On November 2, 1993, effective January 3, 1994 (58 FR 58624), EPA codified the approved New Hampshire program, incorporating by reference the state statutes and regulations that are thereby 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 Today's Action?

On February 23, 2006, in accordance with 40 CFR 281.52(b), New Hampshire submitted a final complete program revision application seeking approval for its UST program revisions adopted as of February 1, 2005. We now make an immediate final decision, subject to receipt of written comments that oppose this action, that New Hampshire's UST program revision satisfies all of the requirements necessary to qualify for final approval. Therefore, we grant New Hampshire final approval for the following program additions and changes:

Description of required federal element	Implementing state authority
42 U.S.C. 6991c(a)(1) Requirements for maintaining leak detection system, inventory control with tank testing, or other system to identify releases	Env-Wm 1401.11. Env-Wm 1401.13(e). Env-Wm 1401.16(c-d). Env-Wm 1401.29.
	Env-Wm 1401.30 (j-m), (r) and(u).
	Env-Wm 1401.31(b) and (j).
	Env-Wm 1401.37(a), (c-e), and (g-i).
42 U.S.C. 6991c(a)(2) Requirements for maintaining records of monitoring or leak detection, inventory control or tank testing systems	Env-Wm 1401.11. Env-Wm 1401.13(f), (h). Env-Wm 1401.14(b). Env-Wm 1401.25(f).
	Env-Wm 1401.28(g) and (n).
	Env-Wm 1401.29(h).
	Env-Wm 1401.30(g-I), (n-q), and (v).
	Env-Wm 1401.31(c-f).
	Env-Wm 1401.32(c-j).
	Env-Wm 1401.33(f-k).
	Env-Wm 1401.36(f-h).
	Env-Wm 1401.37(f).
	Env-Wm 1401.38(c-d).
42 U.S.C. 6991c(a)(5) Requirements for closure of tanks to prevent future releases	Env-Wm 1401.15(d-g). Env-Wm 1401.17. Env-Wm 1401.18.
	Env-Wm 1401.28(q).
	Env-Wm 1401.34(i).
	Env-Wm 1401.37(b).
	Env-Wm 1401.38(a).
42 U.S.C. 6991c(a)(7) Standards of performance for new USTs	Env-Wm 1401.21(a-c),(e-h), and (j-k). Env-Wm 1401.22(a-d), (f-g), and (i-j). Env-Wm 1401.23(a).
	Env-Wm 1401.24.
	Env-Wm 1401.25(b-n).
	Env-Wm 1401.26(c) and (d).
	Env-Wm 1401.27(b).
	Env-Wm 1401.28.
	Env-Wm 1401.33(a), (c-e).
	Env-Wm 1401.36(a-e), and (i).
	Env-Wm 1401.38(b).

H. Where Are the Revised Rules Different From the Federal Rules?

We consider the following State requirements to be more stringent than the Federal requirements and they are part of New Hampshire's approved program and are Federally enforceable.

• New Hampshire requires the operator of an UST facility to conduct inventory monitoring of each UST and to maintain separate records for each tank and interconnected system, unless the secondary containment of the UST is continuously monitored for both regulated substance and water. Inventory records for single-wall USTs must be recorded on a form obtained from the Department of Environmental Services or another representative motor fuel and bulk storage fuel oil inventory form, which process all of the required data using an automatic tank gauge monitor and computer software. When the Department has determined that inventory monitoring has not been conducted, the owner must perform a tightness test on the UST system within 30 days of the determination.
• New Hampshire requires all regulated metal UST systems, except vent piping, without corrosion protection and all hazardous substance UST systems without secondary containment and leak monitoring to be permanently closed. Any part of an existing single wall UST system that routinely contains a regulated substance without secondary containment and leak monitoring, except for vent piping, must be permanently closed by December 22, 2015.
• New Hampshire requires dispenser sumps installed beneath each dispenser to be provided with continuous leak detection monitoring by the piping sump sensor or equipped with a sump sensor. All piping and dispenser sumps must be maintained free of liquid and debris, be liquid-tight, have liquid-tight penetration fittings for all sump entries, and be able to respond to small accumulations of liquids within the sumps.
• New Hampshire requires spill containment equipment installed with drain valves on UST systems that store gasoline to have the valve replaced annually or be permanently sealed.
• New Hampshire [1401.25(i)] requires all new and replacement overfill protection devices be installed to allow access for inspection of proper operation. By February 1, 2006, [1401.25(j)] all existing UST systems with suction piping and an air eliminator must be equipped with a high level visual and audible alarm or with a device that will automatically and completely shut off flow into the tank when the tank is no more than 95% full and [1401.25(l) and (m)] when product is pumped to a new UST system or any new UST system receives a delivery without a tight fill connection, the new UST systems must only be equipped with a high level visual and audible overfill alarm. [1401.25(k)] All new high level alarms must have both visual and audible alarms, be clearly labeled as a tank overfill alarm, and be clearly visible and audible to the transfer operator.
• New Hampshire requires the certified tank installer to perform a piping pressure test on the vent piping after installation and prior to backfill and to test all installed sumps for tightness. The test results must be provided to the Department and owner at the time of the backfill inspection of the system.
• New Hampshire requires a concrete pad having positive limiting barriers to be constructed and maintained so as to contain a volume of at least five gallons for each dispenser.
• New Hampshire requires new spill containment equipment to be tested for tightness and the results to be submitted to the Department at the time of inspection and to the owner within 30 days of the test.
• New Hampshire no longer allows groundwater or soil gas vapor monitoring to be installed as a release detection mechanism.
• New Hampshire requires all new metal vent piping to be protected from corrosion.
• New Hampshire requires all new sumps to be tested for tightness within 30 days from installation and the results to be submitted to the Department no later than 30 days after the date of the test.
• New Hampshire requires single wall UST systems, with the exception of vent piping, that discharge, leak, spill, or release a regulated substance to the environment to be permanently closed.

New Hampshire's regulations contain requirements that are broader in scope than the Federal program which are not part of the program being approved by today's action. EPA cannot enforce these broader in scope requirements. Although compliance with these provisions is required under New Hampshire law, they are not Federal RCRA requirements. Such provisions include, but are not limited to, the following:

• New Hampshire's regulations reference compliance with stage I and stage II requirements in Env-Wm 1404, “Volatile Organic Compounds (VOCs): Gasoline Dispensing Facilities, Bulk Gasoline Plants, and Cargo Trucks,” when applying for a permit to operate, when transferring gasoline, and when placing back into service temporarily closed UST systems. The Federal RCRA program does not cover stage I and stage II requirements; therefore, in this regard, the New Hampshire program is broader in scope than the Federal Program.
• New Hampshire requires all new UST sites to be located no closer than 500 feet from a public water system well for all gasoline UST systems; at least 400 feet from a public water supply well for all regulated substances except gasoline; at least 250 feet from a non-pubic water supply well for all gasoline UST systems; and at least 75 feet from a non-public water supply well for all regulated substances except gasoline. The Federal RCRA program does not cover the siting of UST systems; therefore, in this regard, the New Hampshire program is broader in scope than the Federal Program.
• New Hampshire does not allow storm water runoff from UST facilities to be discharged to the subsurface, and storm water must not be directed to flow over any tank pad or dispensing pad. The Federal RCRA program does not cover storm water runoff from UST facilities; therefore, in this regard, the New Hampshire program is broader in scope than the Federal Program.

I. Administrative Requirements

This action will only approve state underground storage tank program requirements pursuant to RCRA section 9004 and imposes no requirements other than those imposed by state law (see SUPPLEMENTARY INFORMATION). Therefore, this action complies with applicable executive orders and statutory provisions as follows:

1. Executive Order (EO) 12866: Regulatory Planning Review: The Office of Management and Budget has exempted this action from the requirements of Executive Order 12866 (58 FR 51735, October 4, 1993), and therefore this action is not subject to review by OMB. 2. Paperwork Reduction Act: This action does not impose an information collection burden under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). 3. Regulatory Flexibility Act: After considering the economic impacts of today's action on small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), I certify that this action will not have a significant economic impact on a substantial number of small entities. 4. Unfunded Mandates Reform Act: Because this action 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 of 1995 (Public Law 104-4). 5. For the same reason, 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). 6. 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 state requirements as part of the State UST program without altering the relationship or the distribution of power and responsibilities established by RCRA. 7. Executive Order 13175: Consultation and Coordination with Indian Tribal Governments: This action is not subject to EO 13175 (65 FR 67249, November 9, 2000) 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). 8. Executive Order 13045: Protection of Children from Environmental Health & Safety Risks: This action is not subject to EO 13045 (62 FR 19885, April 23, 1997) because it is not economically significant and it is not based on health or safety risks. 9. Executive Order 13211: Actions that Significantly Affect Energy Supply, Distribution, or Use: This action is not subject to EO 13211 (66 FR 28355, May 22, 2001) because it is not a significant regulatory action as defined in EO 12866. 10. National Technology Transfer and 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 otherwise meets the requirements of RCRA. Thus, the requirements of Section 12(d) of the National Technology Transfer and Advancement Act (15 U.S.C. 272 note) does not apply to this action. 11. 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. 12. EPA has complied with Executive Order 12630 (53 FR 8859, March 18, 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.

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). Nevertheless, to allow time for public comment, this action will be effective on December 4, 2006.

List of Subjects in 40 CFR Part 281

• Environmental protection
• Administrative practice and procedures
• Hazardous substances,

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.

Dated: September 20, 2006.

Robert W. Varney,

Regional Administrator, EPA Region I.