12110 Federal Register / Vol. 86, No. 39 / Tuesday, March 2, 2021 / Rules and Regulations 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the CAA; and 

• Does not provide the EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

This rule also does not have Tribal 

implications because it will not have a 

substantial direct effect 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, 

as specified by Executive Order 13175 

(65 FR 67249, November 9, 2000). 

List of Subjects in 40 CFR Part 62 

Environmental protection, 

Administrative practice and procedure, 

Air pollution control, Intergovernmental 

relations, Reporting and recordkeeping 

requirements, Waste treatment and 

disposal. 

Dated: February 5, 2021. 

David Gray, 

Acting Regional Administrator, Region 6. 

For the reasons stated in the 

preamble, the Environmental Protection 

Agency amends 40 CFR part 62 as 

follows: 

PART 62—APPROVAL AND 

PROMULGATION OF STATE PLANS 

FOR DESIGNATED FACILITIES AND 

POLLUTANTS 

■ 1. The authority citation for part 62 

continues to read as follows: 

Authority: 42 U.S.C. 7401 et seq. 

Subpart E—Arkansas 

■ 2. Add an undesignated center 

heading following § 62.867 to read as 

follows: 

Emissions From Existing Hospital/ 

Medical/Infectious Waste Incinerators 

■ 3. Add 62.868 to read as follows: 

§ 62.868 Identification of plan—negative 

declaration. 

Letter from the Arkansas Department 

of Environmental Quality dated May 21, 

2012, certifying that there are no known 

existing hospital/medical/infectious 

waste incinerator (HMIWI) units subject 

to 40 CFR part 60, subpart Ce, within its 

jurisdiction. 

Subpart T—Louisiana 

§ 62.4620 [Amended] 

■ 4. Amend § 62.4620 by removing and 

reserving paragraphs (b)(5) and (c)(6). 

■ 5. Revise the undesignated center 

heading above § 62.4633 to read as 

follows: 

Emissions From Existing Hospital/ 

Medical/Infectious Waste Incinerators 

■ 6. Revise § 62.4633 to read as follows: 

§ 62.4633 Identification of plan—negative 

declaration. 

Letter from the Louisiana Department 

of Environmental Quality dated June 25, 

2012, certifying that there are no known 

existing hospital/medical/infectious 

waste incinerator (HMIWI) units subject 

to 40 CFR part 60, subpart Ce, within its 

jurisdiction. 

■ 7. Remove the undesignated center 

heading above § 62.4634. 

§ 62.4634 [Removed] 

■ 8. Remove § 62.4634. 

Subpart GG—New Mexico 

■ 9. Revise § 62.7870 to read as follows: 

§ 62.7870 Identification of plan—negative 

declarations. 

Letters from the New Mexico 

Environment Department and the City 

of Albuquerque Environmental Health 

Department dated February 11, 2014, 

and February 4, 2014, respectively, 

certifying that there are no existing 

hospital/medical/infectious waste 

incinerator (HMIWI) units subject to 40 

CFR part 60, subpart Ce, within their 

respective jurisdictions in the State of 

New Mexico. 

[FR Doc. 2021–02893 Filed 3–1–21; 8:45 am] 

BILLING CODE 6560–50–P 

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. 

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: uybarreta.thomas@epa.gov. 

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 


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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, 

uybarreta.thomas@epa.gov, 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 


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approval for the following program 

changes: 

Required Federal element Implementing state authority 

40 CFR 281.30, New UST Systems and Notification .............................. 9VAC25–580–20, –30, –50.1 to .5, & .7, –70, –120(1)(a), –380, –390. 

40 CFR 281.31, Upgrading Existing UST Systems ................................. 9VAC25–580–20, –60, –380, –390. 

40 CFR 281.32, General Operating Requirements ................................. 9VAC25–580–20, –60, –80, –82, –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, Investigation, and Confirmation ..... 9VAC25–580–20, –80B, –190, –200 to –220. 

40 CFR 281.35, Release Response and Corrective Action .................... 9VAC25–580–20, –230 to –280, –300. 

40 CFR 281.36, Out-of-service Systems and Closure ............................ 9VAC25–580–20, –310 to –350, –390. 

40 CFR 281.37, Financial Responsibility for USTs Containing Petroleum.9VAC25–590–40, –50 to –150, –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 federallyapproved 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 federallyapproved 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. 


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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 federallyapproved 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 federallyapproved 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 


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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 

■ 1. The authority citation for part 282 

continues to read as follows: 

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

and 6991e. 

■ 2. Revise § 282.96 to read as follows: 

§ 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 § 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 


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Federal Register / Vol. 86, No. 39 / Tuesday, March 2, 2021 / Rules and Regulations 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; tank@deq.virginia.gov. 

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 fedreg.legal@

nara.gov 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-inservice, 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, 


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12116 Federal Register / Vol. 86, No. 39 / Tuesday, March 2, 2021 / Rules and Regulations 

though not incorporated by reference, is 

referenced as part of the approved 

underground storage tank program 

under Subtitle I of RCRA, 42 U.S.C. 

6991 et seq. 

■ 3. Appendix A to part 282 is amended 

by 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 offsite 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 selfinsurance 

9 VAC 25–590–70 Guarantee 

9 VAC 25–590–80 Insurance and group selfinsurance 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 SelfInsurance 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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