[Federal Register Volume 61, Number 151 (Monday, August 5, 1996)]
[Proposed Rules]
[Pages 40592-40595]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19845]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 281
[FRL-5546-8]
Delaware; Approval of State Underground Storage Tank Program
AGENCY: Environmental Protection Agency.
ACTION: Notice of tentative determination on Delaware's application for
approval of underground storage tank program, public hearing and public
comment period.
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SUMMARY: The State of Delaware has applied for approval of its
underground storage tank program under Subtitle I of the Resource
Conservation and Recovery Act (RCRA). The Environmental Protection
Agency (EPA) has reviewed the State of Delaware's application and has
made the tentative decision that the State of Delaware's underground
storage tank program satisfies all of the requirements necessary to
qualify for approval. The State of Delaware's application for approval
is available for public review and comment. A public hearing will be
held to solicit comments on the application unless insufficient public
interest is expressed.
DATES: Unless insufficient public interest is expressed in holding a
hearing, a public hearing will be held on September 17, 1996. However,
EPA reserves the right to cancel the public hearing if sufficient
public interest in a hearing is not communicated to EPA in writing by
September 9, 1996. EPA will determine by September 13, 1996, whether
there is significant interest to
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hold the public hearing. The State of Delaware will participate in any
public hearing held by EPA on this subject. All written comments on the
State of Delaware's application for program approval must be received
by 4:30 p.m. on September 9, 1996.
ADDRESSES: Copies of the State of Delaware's application for program
approval are available between 8:30 a.m. to 4:30 p.m. at the following
addresses for inspection and copying:
Delaware Department of Natural Resources and Environmental Control,
Division of Air and Waste Management, 89 King Highway, Dover, Delaware
19903; Contact: Dave Small (302) 739-4506
Delaware Department of Natural Resources and Environmental Control,
Underground Storage Tank Branch, 715 Grantham Avenue, New Castle,
Delaware 19720; Contact: Kathleen Calloway (302) 323-4588
Delaware Department of Natural Resources and Environmental Control,
Division of Water Resources, 317 North Dupont Highway, Georgetown,
Delaware 19947; Contact: Lisa Wood (302) 856-4561
United States Environmental Protection Agency, Docket Clerk, Office of
Underground Storage Tanks, 1235 Jefferson Davis Highway, Arlington, VA
22202, (703) 603-9231
United States Environmental Protection Agency, Region III Library, 841
Chestnut Building, Philadelphia, Pennsylvania 19107; Contact: Diane
McCreary, (215) 566-5353
Written comments should be sent to: Joanne T. Cassidy, Program Manager,
State Programs Branch, (3HW60), U.S. EPA Region III, 841 Chestnut
Building, Philadelphia, Pennsylvania 19107, (215) 566-3381.
Anyone who wishes to learn whether or not the public hearing on the
State's application has been cancelled should telephone after September
13, 1996, the EPA Program Manager listed above or telephone Kathleen
Calloway, Chief, UST Branch, Department of Natural Resources and
Environmental Control, 715 Grantham Avenue, New Castle, Delaware 19720,
(302) 323-4588.
Unless insufficient public interest is expressed, EPA will hold a
public hearing on the State's application for program approval on
September 17, 1996, at 7:00 p.m. at the Ommelanden Hunter Safety
Training Range Complex, 1205 River Road, New Castle, Delaware 19720.
FOR FURTHER INFORMATION CONTACT: Joanne T. Cassidy, State Programs
Branch (3HW60), U.S. EPA Region III, 841 Chestnut Building,
Philadelphia, Pennsylvania 19107, (215) 566-3381.
SUPPLEMENTARY INFORMATION:
A. Background
Section 9004 of the Resource Conservation and Recovery Act (RCRA)
authorizes EPA to approve State underground storage tank programs to
operate in the State in lieu of the Federal underground storage tank
(UST) program. EPA may approve a State program if the Agency finds
pursuant to section 9004(b), 42 U.S.C. 6991c(b), that the State
program: is ``no less stringent'' than the Federal program in all seven
elements set forth at section 9004(a)(1) through (7), 42 U.S.C.
6991c(a)(1) through (7), includes the notification requirements of
section 9004(a)(8), 42 U.S.C. 6991c(a)(8) and provides for adequate
enforcement of compliance with UST standards (section 9004(a), 42
U.S.C. 6991c(a)).
B. State of Delaware
The Delaware Department of Natural Resources and Environmental
Control (DNREC), is the implementing agency for UST activities in the
State. The Underground Storage Tank Branch of DNREC is dedicating a
substantial effort to remediate, prevent and control UST-related
groundwater contamination. The Underground Storage Tank Branch
maintains a strong field presence and works closely with the regulated
community to ensure compliance with the regulatory requirements.
The scope of the Delaware UST Program extends beyond the scope of
the Federal UST Program as follows:
(1) In addition to the approximately 7,427 USTs covered by both the
Federal and Delaware programs, Delaware also regulates an estimated
additional 1,360 USTs containing heating fuel. Heating fuel tanks
greater than 1100 gallons were required to be registered with the State
within 180 days of July 20, 1988.
(2) Delaware requires payment of an annual tank registration fee.
Delaware also requires the display of a registration certification at
all covered UST facilities at all times.
(3) Delaware's regulations forbid fuel distributors from depositing
regulated substances into unregistered UST systems.
(4) Delaware requires that UST contractors be certified to install,
retrofit, remove, or reline UST systems used to store regulated
substances.
(5) Delaware requires submission and approval of a site plan before
any new tank installation can take place. A site survey is required
prior to installation, and every stage of the installation must be
documented with photographs. Delaware prohibits the installation of
asphalt-coated tanks. If a new UST system is installed near an old tank
field, the number of release detection options may be limited by the
Department.
(6) Delaware requires a 10-day notice in advance of all UST
retrofits/upgrades.
(7) The Delaware Underground Storage Tank Response Fund may be used
by the Department for the investigation and remediation of petroleum
underground storage tank releases. Delaware may recover expenditures
from the Fund for corrective action.
(8) Delaware allows for limited reimbursement of expenses
associated with the rehabilitation of certain contaminated sites.
(9) The Small Retail Gasoline Station Assistance Loan Fund offers
low-interest loans to small retail gasoline station owners and
operators to assist in financing upgrades to their UST systems.
Delaware's requirements which exceed the stringency of the Federal
regulations include the following:
(1) Delaware allows for civil penalties up to $25,000 for each day
of violation.
(2) Delaware prohibits installation of an UST system unprotected
from corrosion at any site.
(3) Delaware requires tanks installed after July 12, 1985, to meet
the new tank performance standards.
(4) Delaware requires notification of the National Response Center
in the event of a release of petroleum that causes a visible sheen on
surface waters.
(5) Inventory control must be performed in combination with another
approved leak detection method for UST systems, with the exception of
heating oil tanks. A weekly water check must be performed with the
result made part of the inventory record. The monthly throughput
reconciliation standard is the same as the Federal standard; however,
daily losses of five percent or more of the daily product dispensed
must be investigated.
(6) If tank testing is selected as a method of leak detection, the
tank must be tested yearly regardless of the age of the tank.
(7) With the exception of used oil tanks less than 2,000 gallons,
Delaware does not allow manual tank gauging as an alternate leak
detection method.
(8) Delaware requires secondary containment tank systems or
continuous electronic leak detection in areas where the protection of
specific water resources has been deemed necessary.
(9) Existing USTs were required to be retrofitted with a spill
containment
[[Page 40594]]
device, an overfill protection method, fill line protection and to have
leak detection performed depending on tank age over a four-year period
ending December 31, 1990.
(10) Fill line protection is required on all USTs. Delaware
requires all fill lines to be clearly identified by type of product
stored and the size of the tank.
(11) Delaware requires the Corrective Action Work Plan to be signed
by a professional geologist and/or engineer registered in the State.
(12) Delaware requires either site closure or active corrective
action after two years of passive corrective action.
(13) Delaware requires existing hazardous substance USTs to meet
secondary containment standards by January 1, 1998.
The Delaware Department of Natural Resources and Environmental
Control submitted an official application for approval on November 20,
1995. Prior to its submission, the State of Delaware provided an
opportunity for public notice and comment in the development of its
underground storage tank program, as required by 40 CFR 281.50(b). EPA
has reviewed Delaware's application, and has tentatively determined
that the State's program meets all of the requirements necessary to
qualify for final approval. However, EPA intends to review all timely
public comments prior to making a final decision on whether to grant
approval to the State of Delaware to operate its program in lieu of the
Federal program.
In accordance with Section 9004 of RCRA, 42 U.S.C. 6991c, and 40
CFR 281.50(e), the Agency will hold a public hearing on its tentative
decision on September 17, 1996, at 7:00 p.m. at the Ommelanden Hunter
Range Complex, 1205 River Road, New Castle, Delaware 19720, unless
insufficient public interest is expressed. The public may also submit
written comments on EPA's tentative determination until September 9,
1996. Copies of Delaware's application are available for inspection and
copying at the locations indicated in the ADDRESS section of this
notice.
EPA will consider all public comments on its tentative
determination received at the public hearing, if a hearing is held, and
during the public comment period. Issues raised by those comments may
be the basis for a decision to deny approval to the State of Delaware.
EPA will give notice of its final decision in the Federal Register; the
notice will include a summary of the reasons for the final
determination and a response to all significant comments.
Compliance With Executive Order 12866
The Office of Management and Budget has exempted this action from
the requirements of Section 6 of Executive Order 12866.
Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective or least burdensome alternative
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments to have meaningful and timely
input in the development of EPA regulatory proposals with significant
Federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with the regulatory
requirements.
Today's rule contains no Federal mandates for State, local or
tribal governments or the private sector. The Act excludes from the
definition of a ``Federal mandate'' duties that arise from
participation in a voluntary Federal program, except in certain cases
where a ``federal intergovernmental mandate'' affects an annual federal
entitlement program of $500 million or more that are not applicable
here. Delaware's request for approval of an underground storage tank
program is voluntary and imposes no Federal mandate within the meaning
of the Act. Rather, by having its underground storage tank program
approved, the State will gain the authority to implement a federally
authorized program within its jurisdiction, in lieu of EPA thereby
eliminating duplicative State and Federal requirements. If a State
chooses not to seek authorization for administration of an underground
storage tank program under RCRA Subtitle I, RCRA underground storage
tank regulation is left to EPA.
In any event, EPA has determined that this rule does not contain a
Federal mandate that may result in expenditures of $100 million or more
for State, local, and tribal governments in the aggregate, or the
private sector in any one year. EPA does not anticipate that the
approval of Delaware's underground storage tank program referenced in
today's notice will result in annual costs of $100 million or more.
EPA's approval of state programs generally may reduce, not increase,
compliance costs for the private sector since the State, by virtue of
the approval, may now administer the program in lieu of EPA and
exercise primary enforcement for those regulations for which they have
been authorized. Hence, owners and operators of underground storage
tanks generally no longer face dual Federal and State compliance
requirements, thereby reducing overall compliance costs. Thus, today's
rule is not subject to the requirements of sections 202 and 205 of the
UMRA.
EPA has determined that this rule contains no regulatory
requirements that might significantly or uniquely affect small
governments. The Agency recognizes that small governments may own and/
or operate underground storage tanks or that will become subject to the
requirements of an approved State underground storage tank program.
However, such small governments which own and/or operate underground
storage tanks are already subject to the requirements in 40 CFR part
280 and are not subject to any additional significant or unique
requirements by virtue of this program approval. Once EPA authorizes a
State to administer its own underground storage tank program and any
revisions to that program, these same small governments will be able to
own and operate their underground storage tanks under the approved
State program, in lieu of the Federal program.
Certification Under the Regulatory Flexibility Act
EPA has determined that this authorization will not have a
significant
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economic impact on a substantial number of small entities. EPA
recognizes that small entities may own and/or operate USTs that will
become subject to the requirements of an approved state UST program.
However, since such small entities which own and/or operate USTs are
already subject to the requirements in 40 CFR Part 280, this
authorization does not impose any additional burdens on these small
entities. This is because EPA's authorization would result in an
administrative change (i.e., whether EPA or the state administers the
UST program in that state), rather than result in a change in the
substantive requirements imposed on small entities. Once EPA authorizes
a state to administer its own UST program and any revisions to that
program, these same small entities will be able to own and operate
their USTs under the approved state program, in lieu of the federal
program. Moreover, this authorization, in approving a state program to
operate in lieu of the federal program, eliminates duplicative
requirements for owners and operators of USTs in that particular state.
Therefore, EPA provides the following certification under the
Regulatory Flexibility Act, as amended by the Small Business Regulatory
Enforcement Fairness Act. Pursuant to the provision at 5 U.S.C. 605(b),
I hereby certify that this authorization will not have a significant
economic impact on a substantial number of small entities. This
authorization effectively approves the Delaware program to operate in
lieu of the federal program, thereby eliminating duplicative
requirements for owners and operators of USTs in the state. It does not
impose any new burdens on small entities. This rule, therefore, does
not require a regulatory flexibility analysis.
List of Subjects in 40 CFR Part 281
Environmental protection, Administrative Practice and Procedure,
Hazardous Materials, State Program Approval, Underground Storage Tanks.
Authority: This notice is issued under the authority of Section
9004 of the Resource Conservation and Recovery Act as amended 42
U.S.C. 6991c.
Dated: July 26, 1996.
W. Michael McCabe,
Regional Administrator.
[FR Doc. 96-19845 Filed 8-2-96; 8:45 am]
BILLING CODE 6560-50-P
