[Federal Register Volume 86, Number 39 (Tuesday, March 2, 2021)]
[Rules and Regulations]
[Pages 12110-12116]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-03778]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 282

[EPA-R03-UST-2020-0291; FRL 10018-06-Region 3]


Virginia: Final Approval of State Underground Storage Tank 
Program Revisions, Codification, and Incorporation by Reference

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: Pursuant to the Solid Waste Disposal Act of 1965, as amended 
(commonly known as the Resource Conservation and Recovery Act (RCRA)), 
the Environmental Protection Agency (EPA) is taking direct final action 
to approve revisions to the Commonwealth of Virginia's Underground 
Storage Tank (UST) program submitted by the Commonwealth of Virginia 
(Virginia or State). This action also codifies EPA's approval of 
Virginia's state program and incorporates by reference (IBR) those 
provisions of Virginia's regulations and statutes that EPA has 
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 May 3, 2021, unless EPA receives 
significant negative comments opposing this action by April 1, 2021. If 
EPA receives significant negative comments opposing this action, EPA 
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 May 3, 2021, 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: <a href="/cdn-cgi/l/email-protection#33464a515241415647521d475b5c5e5240735643521d545c45"><span class="__cf_email__" data-cfemail="8df8f4efecffffe8f9eca3f9e5e2e0ecfecde8fdeca3eae2fb">[email protected]</span></a>.
    Instructions: Direct your comments to Docket ID No. EPA-R03-UST-
2020-0291. 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 website, https://www.regulations.gov, 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 email comment directly 
to 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

[[Page 12111]]

submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment. 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. If you need assistance in a language other 
than English, or you are a person with disabilities who needs a 
reasonable accommodation at no cost to you, please reach out to the EPA 
contact person by email or phone.
    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. Publicly 
available docket materials are available electronically through https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Thomas UyBarreta, (215) 814-2953, 
<a href="/cdn-cgi/l/email-protection#106569727162627564713e64787f7d7163507560713e777f66"><span class="__cf_email__" data-cfemail="6b1e12090a19190e1f0a451f0304060a182b0e1b0a450c041d">[email protected]</span></a>, RCRA Programs Branch; Land, Chemicals, and 
Redevelopment Division; EPA Region 3, 1650 Arch Street (Mailcode 
3LD30), Philadelphia, PA 19103-2029.

SUPPLEMENTARY INFORMATION: 

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

A. Why are revisions to state programs necessary?

    Section 9004 of RCRA authorizes EPA to approve state underground 
storage tank (UST) programs to operate in lieu of the federal UST 
program. EPA may approve a state program if the state demonstrates, 
pursuant to section 9004(a), 42 U.S.C. 6991c(a), that the state program 
includes the elements set forth at section 9004(a)(1) through (9), 42 
U.S.C. 6991c(a)(1) through (9), and provides for adequate enforcement 
of compliance with UST standards (section 9004(a), 42 U.S.C. 6991c(a)). 
Additionally, EPA must find, pursuant to section 9004(b), 42 U.S.C. 
6991c(b), that the state program is ``no less stringent'' than the 
federal program in the elements set forth at section 9004(a)(1) through 
(7), 42 U.S.C. 6991c(a)(1) through (7). States such as Virginia that 
have received final UST program approval from EPA under section 9004 of 
RCRA must, in order to retain such approval, revise their approved 
programs when the controlling federal or state statutory or regulatory 
authority is changed and EPA determines a revision is required. In 
2015, EPA revised the federal UST regulations and determined that 
states must revise their UST programs accordingly.

B. What decisions has EPA made in this rule?

    On February 11, 2019, in accordance with 40 CFR 281.51(a), Virginia 
submitted a complete program revision application seeking EPA approval 
for its UST program revisions (State Application). Virginia'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. As required by 40 CFR 281.20, the 
State Application contains the following: A transmittal letter 
requesting program 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 EPA and the implementing agency; an Attorney 
General's statement in accordance with 40 CFR 281.24 certifying to 
applicable state authorities; and copies of all relevant state statutes 
and regulations. EPA has reviewed the State Application and determined 
that the revisions to Virginia's UST program are no less stringent than 
the corresponding federal requirements in subpart C of 40 CFR part 281, 
and that the Virginia program provides for adequate enforcement of 
compliance (40 CFR 281.11(b)). Therefore, EPA grants Virginia final 
approval to operate its UST program with the changes described in the 
State Application, and as outlined below in section I.G. of this 
preamble.

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 Virginia, 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 concurrently with a 
proposed rulemaking because EPA views this as a noncontroversial action 
and anticipates no significant negative comment. EPA is providing an 
opportunity for public comment now.

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

    Along with this direct final rule, EPA is publishing a separate 
document in the ``Proposed Rules'' Section of this Federal Register 
that serves as the proposal to approve the State's UST program 
revisions, providing opportunity for public comment. If EPA receives 
significant negative comments that oppose this approval, EPA will 
publish a timely withdrawal in the Federal Register informing the 
public that the rule will not take effect. EPA will not make any 
further decision on the approval of the State program changes until it 
considers any significant negative comment received during the comment 
period. EPA will address any significant negative comment 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 Virginia previously been approved?

    On September 28, 1998, the EPA finalized a rule approving 
Virginia's UST program, effective October 28, 1998 (63 FR 51528), to 
operate in lieu of the federal program. On June 15, 2004, effective 
August 16, 2004 (69 FR 33312), EPA codified the approved Virginia 
program, incorporating by reference the State's 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 is EPA approving with this action?

    On February 11, 2019, in accordance with 40 CFR 281.51(a), Virginia 
submitted a complete application for final approval of its UST program 
revisions adopted on September 4, 2017, effective January 1, 2018. EPA 
has reviewed Virginia's UST program requirements and determined that 
such requirements are no less stringent than the federal regulations 
and that the criteria set forth in 40 CFR part 281 subpart C are met. 
EPA now makes an immediate final decision, subject to receipt of any 
significant negative written comments that oppose this action, that 
Virginia's UST program revisions satisfy all of the requirements 
necessary to qualify for final approval. Therefore, EPA grants Virginia 
final

[[Page 12112]]

approval for the following program changes:

------------------------------------------------------------------------
        Required Federal element           Implementing state authority
------------------------------------------------------------------------
40 CFR 281.30, New UST Systems and       9VAC25-580-20, -30, -50.1 to
 Notification.                            .5, & .7, -70, -120(1)(a), -
                                          380, -390.
40 CFR 281.31, Upgrading Existing UST    9VAC25-580-20, -60, -380, -390.
 Systems.
40 CFR 281.32, General Operating         9VAC25-580-20, -60, -80, -82, -
 Requirements.                            85, -90, -100, -110, -120, -
                                          180.
40 CFR 281.33, Release Detection.......  9VAC25-580-20, -50, -85, -130
                                          to -170, -380, -390.
40 CFR 281.34, Release Reporting,        9VAC25-580-20, -80B, -190, -200
 Investigation, and Confirmation.         to -220.
40 CFR 281.35, Release Response and      9VAC25-580-20, -230 to -280, -
 Corrective Action.                       300.
40 CFR 281.36, Out-of-service Systems    9VAC25-580-20, -310 to -350, -
 and Closure.                             390.
40 CFR 281.37, Financial Responsibility  9VAC25-590-40, -50 to -150, -
 for USTs Containing Petroleum.           160, -170, -200, -210, -250, -
                                          260.
40 CFR 281.38, Lender Liability........  9VAC25-590-240, -260.
40 CFR 281.39, Operator Training.......  9VAC25-580-20, -125.
------------------------------------------------------------------------

    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. Virginia's State Water Control Board has broad 
statutory and regulatory authority with respect to USTs to regulate 
installation, operation, maintenance, closure, and UST releases, and to 
the issuance of orders, as implemented by the Virginia Department of 
Environmental Quality (VADEQ). The statutory authority is found in the 
Code of Virginia in the following titles: Title 2.2, Subtitle I, 
Chapter 5: Department of Law, Article 1: General Provisions, section 
2.2-507; Title 2.2, Subtitle II, Chapter 40: Administrative Process 
Act; Title 2.2, Subtitle II, Chapter 48: Virginia Debt Collection Act; 
Title 10.1, Subtitle II, Chapter 11.1: Department of Environmental 
Quality, Article 1: General Provisions, sections 10.1-1182, -1186, -
1186.3, -1186.4; Title 36, Chapter 6: Uniform Statewide Building Code 
(USBC), sections 36-97 to -119.1, in particular, sections 36-97, -98.1, 
-99.6; Title 42.1, Chapter 7: Virginia Public Records Act; and Title 
62.1, Chapter 3.1: State Water Control Law, in the following articles: 
Article 2: Control Board Generally, sections 62.1-44.13, .15, Article 
5: Enforcement and Appeal Procedure, sections 62.1-44.20, .21, .23, 
Article 6: Offenses and Penalties, sections 62.1-44.31, .32, Article 9: 
Storage Tanks, sections 62.1-44.34:8 to :9, and Article 10: Petroleum 
Storage Tank Fund, sections 62.1-44.34:10 to :13. The regulatory 
authority is found in the Virginia Administrative Code at Title 9, 
Agency 25: State Water Control Board, Chapter 580, 9VAC25-580 et seq. 
and Chapter 590, 9VAC25-590 et seq., and the Virginia Uniform Statewide 
Building Code, Part I, Virginia Construction Code (VCC), Chapter 1, 
Sections 101.2, 102.3.10, 103, 108.1, 414.6.2 and Chapter 2.

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

Broader in Scope Provisions
    Where an approved state program has a greater scope of coverage 
than required by federal law, the additional coverage is not part of 
the federally-approved program and is not federally enforceable (40 CFR 
281.12(a)(3)(ii)). The following Virginia requirements are considered 
``broader in scope'' than the federal program. In accordance with 40 
CFR 281.12(a)(3)(ii), this additional coverage is not part of the 
federally-approved program and is not federally enforceable.
    Virginia's statutory and regulatory definitions of a regulated 
substance under Va. Code Sec. 62.1-44.34:8 and :10 and 9VAC25-580-10, 
include an element, compound, mixture, solution or substance that, when 
released into the environment, may present substantial danger to the 
public health or welfare or the environment. The federal definition of 
regulated substance, which is found at 40 CFR 280.12, includes only 
hazardous substances and petroleum. To the extent that Virginia 
regulates a larger tank community with respect to regulated substance 
tanks which are not specifically exempted, such a requirement is 
``broader in scope'' than the federal program.
    Under Va. Code Sec. 62.1-44.34:13, Virginia levies a fee on certain 
types of fuels sold in the State to maintain the Petroleum Storage Tank 
Fund. Such fee requirements are ``broader in scope'' than the federal 
program.
    Virginia requires owners and operators of UST systems undergoing 
installation, upgrade, repair and closure to obtain a permit from local 
building officials (for state-owned facilities, the Department of 
General Services serves as the building official) and an inspection in 
accordance with the USBC and VCC when conducting such activities. 
9VAC25-580-40, -50, -60, -110, -160, -170, -310, -320, -380, -390. The 
USBC permitting and inspection requirements are ``broader in scope'' 
than the federal program.

I. How does this action affect Indian country (18 U.S.C. 1151) in 
Virginia?

    Virginia is not authorized to carry out its program in Indian 
Country (18 U.S.C. 1151) within the State. This authority remains with 
EPA. Therefore, this action has no effect in Indian Country. See 40 CFR 
281.12(a)(2).

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 
Code of Federal Regulations (CFR). Section 9004(b) of RCRA, as amended, 
allows EPA to approve state UST programs to operate in lieu of the 
federal program. EPA codifies its authorization of state programs in 40 
CFR part 282 and incorporates by reference state statutes and 
regulations that EPA will enforce under sections 9005 and 9006 of RCRA 
and any other applicable statutory 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 Virginia's UST program?

    EPA incorporated by reference Virginia's UST program, approved 
effective October 28, 1998, on June 15, 2004 (69 FR 33312, June 15, 
2004). In this document, EPA is revising 40 CFR 282.96 to include the 
approved revisions.

[[Page 12113]]

C. What codification decisions has EPA made in this rule?

    Incorporation by reference: In this rule, EPA is finalizing 
regulatory text that includes incorporation by reference. In accordance 
with the requirements of 1 CFR 51.5, EPA is finalizing the 
incorporation by reference of the Virginia statutes and regulations 
described in the amendments to 40 CFR part 282 set forth below. EPA has 
made, and will continue to make, these documents generally available 
through https://www.regulations.gov and at the EPA Region 3 office (see 
the FOR FURTHER INFORMATION CONTACT section of this preamble for more 
information).
    One purpose of this Federal Register document is to codify 
Virginia's approved UST program. The codification reflects the State 
program that will be in effect at the time EPA's approved revisions to 
the Virginia UST program addressed in this direct final rule become 
final. If, however, EPA receives any significant negative comment 
opposing the proposed rulemaking then this codification will not take 
effect, and the State rules that are approved after EPA considers 
public comment will be codified instead. The document incorporates by 
reference Virginia's UST statutes and regulations and clarifies which 
of these provisions are included in the approved and federally-
enforceable program. By codifying the approved Virginia program and by 
amending the CFR, the public will more easily be able to discern the 
status of the federally-approved requirements of the Virginia program.
    EPA is incorporating by reference the Virginia approved UST program 
in 40 CFR 282.96. Section 282.96(d)(1)(i)(A) and (B) incorporates by 
reference for enforcement purposes the State's statutes and 
regulations.
    Section 282.96 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 Virginia'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. If EPA 
determines it will take such actions in Virginia, EPA will rely on 
federal sanctions, federal inspection authorities, and federal 
procedures rather than the State's authorized analogs to these 
provisions. Therefore, EPA is not incorporating by reference such 
approved Virginia procedural and enforcement authorities. Section 
282.96(d)(1)(ii) of 40 CFR lists those approved Virginia 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. 40 CFR 
281.12(a)(3)(ii) states that where an approved state program has a 
greater scope of coverage than required by federal law, the additional 
coverage is not a part of the federally-approved program. As a result, 
State provisions that are ``broader in scope'' than the federal program 
are not incorporated by reference for purposes of enforcement in part 
282. Section 282.96(d)(1)(iii) lists for reference and clarity the 
Virginia statutory and regulatory provisions that are ``broader in 
scope'' than the federal program and which are not, therefore, part of 
the approved program being codified in this action. 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 Virginia'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 Order 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 an Executive Order 13771 (82 FR 9339, February 
3, 2017) regulatory action because actions such as this final approval 
of Virginia'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). 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).

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: Protection 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

[[Page 12114]]

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 that are 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 May 3, 2021 because it is a direct final 
rule.

    Authority: This rule is issued under the authority of section 
9004 of the Solid Waste Disposal Act of 1965, as amended, 42 U.S.C. 
6991c.

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, Oil pollution, 
Penalties, Petroleum, Reporting and recordkeeping requirements, State 
program approval, Surety bonds, Underground storage tanks, Water 
pollution control, Water supply.

Diana Esher,
Acting Regional Administrator, EPA Region 3.

    For the reasons set forth in the preamble, EPA is amending 40 CFR 
part 282 as follows:

PART 282--APPROVED UNDERGROUND STORAGE TANK PROGRAMS

0
1. The authority citation for part 282 continues to read as follows:

    Authority: 42 U.S.C. 6912, 6991c, 6991d, and 6991e.


0
2. Revise Sec.  282.96 to read as follows:


Sec.  282.96  Virginia State-Administered Program.

    (a) The Commonwealth of Virginia 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 Virginia Department Environmental Quality, was 
approved by EPA pursuant to 42 U.S.C. 6991c and 40 CFR part 281 of this 
chapter. EPA approved the Virginia underground storage tank program on 
September 28, 1998, and approval was effective on October 28, 1998. A 
subsequent program revision application was approved by EPA and became 
effective on May 3, 2021.
    (b) Virginia 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, regardless of whether the State has 
taken its own actions, as well as under any other applicable statutory 
and regulatory provisions.
    (c) To retain program approval, Virginia 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 Virginia obtains 
approval for the revised requirements pursuant to section 9004 of RCRA, 
42 U.S.C. 6991c, the newly approved statutory and regulatory provisions 
will be added to this subpart and notice of any change will be 
published in the Federal Register.
    (d) Virginia has final approval for the following elements of its 
program application originally submitted to EPA and approved on 
September 28, 1998 and effective October 28, 1998, and the program 
revision application approved by EPA, effective on May 3, 2021.
    (1) State statutes and regulations--(i) Incorporation by reference. 
The provisions cited in this paragraph, and listed in Appendix A to 
Part 282, with the exception of the provisions cited in paragraphs 
(d)(1)(ii) and (iii) of this section, are incorporated by reference as 
part of the approved underground storage tank program in accordance 
with Subtitle I of RCRA, 42 U.S.C. 6991 et seq. (See Sec.  282.2 for 
incorporation by reference approval and inspection information.) The 
Director of the Federal Register approves this incorporation by 
reference in accordance with 5 U.S.C. 552(a) and 1

[[Page 12115]]

CFR part 51. You may obtain copies of the Virginia regulations and 
statutes that are incorporated by reference in this paragraph from the 
Office of Spill Response and Remediation, Virginia DEQ, 1111 East Main 
Street, Suite 1400, Richmond, VA 23219; Phone number: 804-698-4010; 
<a href="/cdn-cgi/l/email-protection#e195808f8aa1858490cf97889386888f8880cf868e97"><span class="__cf_email__" data-cfemail="e094818e8ba0848591ce96899287898e8981ce878f96">[email protected]</span></a>. You may inspect all approved material at the EPA 
Region 3 office, 1650 Arch Street, Philadelphia, PA 19103-2029 (Phone 
number 215-814-2953) or the National Archives and Records 
Administration (NARA). For information on the availability of the 
material at NARA, email <a href="/cdn-cgi/l/email-protection#d4b2b1b0a6b1b3fab8b1b3b5b894bab5a6b5fab3bba2"><span class="__cf_email__" data-cfemail="5f393a3b2d3a3871333a383e331f313e2d3e71383029">[email protected]</span></a> or go to http://www.archives.gov/federal-register/cfr/ibr-locations.html.
    (A) Virginia Statutory Requirements Applicable to the Underground 
Storage Tank Program, April 2004.
    (B) Virginia Regulatory Requirements Applicable to the Underground 
Storage Tank Program, June 2018.
    (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) Code of Virginia, Title 2.2, Subtitle I, Chapter 5: Department 
of Law, Article 1: General Provisions, Section 2.2-507.
    (2) Code of Virginia, Title 2.2, Subtitle II, Chapter 40: 
Administrative Process Act, Sections 2.2-4000 to -4031, insofar as the 
provisions and procedures serve to implement the underground storage 
tank program.
    (3) Code of Virginia, Title 2.2, Subtitle II, Chapter 48: Virginia 
Debt Collection Act, Sections 2.2-4800 to -4809, insofar as the 
provisions and procedures serve to implement the underground storage 
tank program.
    (4) Code of Virginia, Title 10.1, Subtitle II, Chapter 11.1: 
Department of Environmental Quality, Article 1: General Provisions, 
Sections 10.1-1182, -1186, -1186.3, -1186.4.
    (5) Code of Virginia, Title 36, Chapter 6: Uniform Statewide 
Building Code, Sections 36-97 to -119.1, especially sections 36-97, -
98.1, -99.6.
    (6) Code of Virginia, Title 42.1, Chapter 7: Virginia Public 
Records Act, Sections 42.1-76 to -90.1, insofar as the provisions and 
procedures serve to implement the underground storage tank program.
    (7) Code of Virginia, Title 62.1, Chapter 3.1: State Water Control 
Law, Article 2: Control Board Generally, Sections 62.1-44.13, .15; 
Article 5: Enforcement and Appeal Procedure, Sections 62.1-44.20, .21, 
.23; Article 6: Offenses and Penalties, Sections 62.1-44.31, .32.
    (B) The regulatory provisions include:
    (1) Virginia Administrative Code, Title 9, Agency 25: State Water 
Control Board, Chapter 580: Underground Storage Tanks: Technical 
Standards and Corrective Action Requirements, Part I Definitions, 
Applicability, and Installation Requirements for Partially Excluded 
Systems, 9VAC25-580-10 Definitions for ``Delivery prohibition'' and 
``Delivery prohibition tag;'' Part IX Delivery Prohibition, 9VAC25-580-
370 Requirements for delivery prohibition.
    (2) 2015 Virginia Uniform Statewide Building Code, Part I, Virginia 
Construction Code, Sections 101.2, 102.3.10, 103, 108.1, 414.6.2, 
Chapter 2.
    (iii) Provisions not incorporated by reference. The following 
statutory and regulatory provisions are ``broader in scope'' than the 
federal program, are not part of the approved program, and are not 
incorporated by reference herein. These provisions are not federally 
enforceable:
    (A) The statutory provisions include:
    (1) Code of Virginia, Title 62.1, Chapter 3.1: State Water Control 
Law, Article 9: Storage Tanks Section 62.1-44.34:8 Definitions, 
``Regulated substance'' insofar as the term includes substances not 
regulated under the federal program.
    (2) Code of Virginia, Title 62.1, Chapter 3.1: State Water Control 
Law, Article 10: Petroleum Storage Tank Fund.

Section 62.1-44.34:10 Definitions, ``Regulated substance'' insofar as 
the term includes substances not regulated under the federal program
Section 62.1-44.34:13 Levy of fee for Fund maintenance

    (B) The regulatory provisions include Virginia Administrative Code, 
Title 9, Agency 25: State Water Control Board, Chapter 580: Underground 
Storage Tanks: Technical Standards and Corrective Action Requirements.

(1) Section 9VAC25-580-10 Definitions, ``Regulated substance'' insofar 
as the term includes substances not regulated under the federal program
(2) Section 9VAC25-580-40 Permitting and inspection requirements for 
all UST systems, USBC permitting and inspection requirements
(3) Section 9VAC25-580-50 Performance standards for new UST systems, 
subdivision 4.b. USBC permitting and inspection requirements, 
subdivision 5. USBC permitting requirement to demonstrate compliance 
with subdivision 4. of 9VAC25-580-50
(4) Section 9VAC25-580-60 Upgrading of existing UST systems, USBC 
permitting and inspection requirements
(5) Section 9VAC25-580-110 Repairs allowed, USBC permitting and 
inspection requirements
(6) Section 9VAC25-580-160 Methods of release detection for tanks, USBC 
permitting and inspection requirements
(7) Section 9VAC25-580-170 Methods of release detection for piping, 
USBC permitting and inspection requirements
(8) Section 9VAC25-580-310 Temporary closure, USBC permitting and 
inspection requirements
(9) Section 9VAC25-580-320 Permanent closure and changes-in-service, 
USBC permitting and inspection requirements
(10) Section 9VAC25-580-380 General Requirements, USBC permitting and 
inspection requirements
(11) Section 9VAC25-580-390 Additions, exceptions, and alternatives for 
UST systems with field-constructed tanks and airport hydrant systems, 
USBC permitting and inspection requirements

    (2) Statement of legal authority. ``Attorney General's Statement,'' 
signed by the Assistant Attorney General, via authority delegated by 
the Attorney General, on November 20, 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.
    (3) Demonstration of procedures for adequate enforcement. The 
``Virginia UST Program Demonstration of Adequate Enforcement 
Procedures'' submitted as part of the program revision application for 
approval on February 11, 2019, 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 program revision application on 
February 11, 2019, 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 3 and the Virginia Department of Environmental Quality, 
signed by the EPA Regional Administrator on November 26, 2018,

[[Page 12116]]

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.

0
3. Appendix A to part 282 is amended by revising the entry for Virginia 
to read as follows:

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

* * * * *

Virginia

    (a) The statutory provisions include:
    (1) Code of Virginia, Title 62.1, Chapter 3.1: State Water 
Control Law.

Article 9: Storage Tanks

Section 62.1-44.34:8 Definitions, except ``Regulated substance'' 
insofar as the term includes substances not regulated under the 
federal program
Section 62.1-44.34:9 Powers and duties of Board

Article 10: Petroleum Storage Tank Fund

Section 62.1-44.34:10 Definitions, except ``Regulated substance'' 
insofar as the term includes substances not regulated under the 
federal program
Section 62.1-44.34:11 Virginia Petroleum Storage Tank Fund
Section 62.1-44.34:12 Financial Responsibility

    (b) The regulatory provisions include:
    (1) Virginia Administrative Code, Title 9, Agency 25: State 
Water Control Board, Chapter 580: Underground Storage Tanks: 
Technical Standards and Corrective Action Requirements.

Part I: Definitions, Applicability, and Installation Requirements for 
Partially Excluded UST Systems

9 VAC 25-580-10 Definitions, except the terms ``Delivery 
prohibition,'' ``Delivery prohibition tag,'' and ``Regulated 
substance'' insofar as the term includes substances not regulated 
under the federal program
9 VAC 25-580-20 Applicability
9 VAC 25-580-30 Installation requirements for partially excluded UST 
systems

Part II: UST Systems: Design, Construction, Installation, and 
Notification

9 VAC 25-580-50 Performance standards for new UST systems, except 
USBC permitting and inspection requirements at -50.4 and -50.5
9 VAC 25-580-60 Upgrading of existing UST systems, except USBC 
permitting and inspection requirements
9 VAC 25-580-70 Notification requirements

Part III: General Operating Requirements

9 VAC 25-580-80 Spill and overfill control
9 VAC 25-580-82 Periodic testing of spill prevention equipment and 
containment sumps used for interstitial monitoring of piping and 
periodic inspection of overfill prevention equipment
9 VAC 25-580-85 Periodic operation and maintenance walkthrough 
inspections
9 VAC 25-580-90 Operation and maintenance of corrosion protection
9 VAC 25-580-100 Compatibility
9 VAC 25-580-110 Repairs allowed, except USBC permitting and 
inspection requirements
9 VAC 25-580-120 Reporting and recordkeeping
9 VAC 25-580-125 Operator training

Part IV: Release Detection

9 VAC 25-580-130 General requirements for all petroleum and 
hazardous substance UST systems
9 VAC 25-580-140 Requirements for petroleum UST systems
9 VAC 25-580-150 Requirements for hazardous substance UST systems
9 VAC 25-580-160 Methods of release detection for tanks, except USBC 
permitting and inspection requirements
9 VAC 25-580-170 Methods of release detection for piping, except 
USBC permitting and inspection requirements
9 VAC 25-580-180 Release detection recordkeeping

Part V: Release Reporting, Investigation, and Confirmation

9 VAC 25-580-190 Reporting of suspected releases
9 VAC 25-580-200 Investigation due to off-site impacts
9 VAC25-580-210 Release investigation and confirmation steps
9 VAC 25-580-220 Reporting and cleanup of spills and overfills

Part VI: Release Response and Corrective Action for UST Systems 
Containing Petroleum or Hazardous Substances

9 VAC 25-580-230 General
9 VAC 25-580-240 Initial response
9 VAC 25-580-250 Initial abatement measures and site check
9 VAC 25-580-260 Site characterization
9 VAC 25-580-270 Free product removal
9 VAC 25-580-280 Corrective action plan
9 VAC 25-580-300 Public participation

Part VII: Out-of-Service UST Systems and Closure

9 VAC 25-580-310 Temporary closure, except USBC permitting and 
inspection requirements
9 VAC 25-580-320 Permanent closure and changes-in-service, except 
USBC permitting and inspection requirements
9 VAC 25-580-330 Assessing the site at closure or change-in-service
9 VAC 25-580-340 Applicability to previously closed UST systems
9 VAC 25-580-350 Closure records

Part VIII: Delegation

9 VAC 25-580-360 Delegation of authority

Part X: UST Systems With Field-Constructed Tanks and Airport Hydrant 
Fuel Distribution Systems

9 VAC 25-580-380 General requirements, except USBC permitting and 
inspection requirements
9 VAC 25-580-390 Additions, exceptions, and alternatives for UST 
systems with field constructed tanks and airport hydrant systems, 
except USBC permitting and inspection requirements

Forms (9VAC25-580)

    (2) Virginia Administrative Code, Title 9, Agency 25: State 
Water Control Board, Chapter 590: Petroleum Underground Storage Tank 
Financial Responsibility Requirements

9 VAC 25-590-10 Definitions
9 VAC 25-590-15 Applicability of incorporated references based on 
the dates that they became effective
9 VAC 25-590-20 Applicability
9 VAC 25-590-30 Compliance dates
9 VAC 25-590-40 Amount and scope of financial responsibility 
requirement
9 VAC 25-590-50 Allowable mechanisms and combinations of mechanisms
9 VAC 25-590-60 Financial test of self-insurance
9 VAC 25-590-70 Guarantee
9 VAC 25-590-80 Insurance and group self-insurance pool coverage
9 VAC 25-590-90 Surety bond
9 VAC 25-590-100 Letter of credit
9 VAC 25-590-105 Certificate of deposit
9 VAC 25-590-110 Trust fund
9 VAC 25-590-130 Substitution of financial assurance mechanisms by 
owner or operator
9 VAC 25-590-140 Cancellation or nonrenewal by a provider of 
financial assurance
9 VAC 25-590-150 Reporting by owner or operator
9 VAC 25-590-160 Recordkeeping
9 VAC 25-590-170 Drawing on financial assurance mechanism
9 VAC 25-590-180 Release from the requirements
9 VAC 25-590-190 Bankruptcy or other incapacity of owner, operator 
or provider of financial assurance
9 VAC 25-590-200 Replenishment of guarantees, letters of credit, 
certificates of deposit, or surety bonds
9 VAC 25-590-210 Virginia Petroleum Storage Tank Fund
9 VAC 25-590-220 Notices to the State Water Control Board
9 VAC 25-590-230 Delegation of authority
9 VAC 25-590-240 Lender liability
9 VAC 25-590-250 Local government financial responsibility 
demonstration
9 VAC 25-590-260 Modifications to language incorporated by reference
Appendix I: Letter from Chief Financial Officer
Appendix II: Guarantee
Appendix III: Endorsement
Appendix IV: Certificate of Insurance
Appendix V: Payment and Performance Bond
Appendix VI: Irrevocable Standby Letter of Credit
Appendix VII: Trust Agreement
Appendix VIII: Certification of Acknowledgement
Appendix IX: Certification of Financial Responsibility
Appendix X: Certification of a Valid Claim
Appendix XI: Letter from Chief Financial Officer (Short Form)
Appendix XII: Certificate of Group Self-Insurance Pool Membership
Appendix XIII: Assignment of Certificate of Deposit
* * * * *
[FR Doc. 2021-03778 Filed 3-1-21; 8:45 am]
BILLING CODE 6560-50-P


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