[Federal Register Volume 62, Number 148 (Friday, August 1, 1997)]
[Proposed Rules]
[Pages 41326-41328]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-20178]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 281

[FRL-5866-3]


West Virginia; Approval of Underground Storage Tank Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of tentative determination on West Virginia's 
application for approval of underground storage tank program, public 
hearing and public comment period.

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SUMMARY: The State of West Virginia has applied for approval of its 
underground storage tank program under Subtitle I of the Resource 
Conservation and Recovery Act (RCRA). The Environmental Protection 
Agency (EPA) has reviewed the State of West Virginia's application and 
has made the tentative decision that the State of West Virginia's 
underground storage tank program satisfies all of the requirements 
necessary to qualify for approval. The State of West Virginia's 
application for approval is available for public review and comment. A 
public hearing will be held to solicit comments on the application 
unless insufficient public interest is expressed.

DATES: Unless insufficient public interest is expressed in holding a 
hearing, a public hearing will be held on September 11, 1997. However, 
EPA reserves the right to cancel the public hearing if sufficient 
public interest in a hearing is not communicated to EPA in writing by 
September 2, 1997. EPA will determine by September 5, 1997, whether 
there is sufficient interest to hold the public hearing. The State of 
West Virginia will participate in any public hearing held by EPA on 
this subject. All written comments on the State of West Virginia's 
application for program approval must be received by 4:30 p.m. on 
September 2, 1997.

ADDRESSES: Copies of the State of West Virginia's application for 
program approval are available between 8:30 a.m. to 4 p.m. at the 
following locations for inspection and copying:


[[Page 41327]]


Location: WV Division of Environmental Protection, Office of Waste 
Management, Underground Storage Tank Section, 1356 Hansford Street, 
Charleston, WV 25301
Contact: Ken Ellison, Assistant Chief, UST Section, Telephone: 304-558-
5929
Location: United States Environmental Protection Agency, Docket Clerk, 
Office of Underground Storage Tanks, 1235 Jefferson Davis Highway, 
Arlington, VA 22202, Telephone: (703) 603-9231
Location: United States Environmental Protection Agency, Region III 
Library, 841 Chestnut Building, Philadelphia, Pennsylvania 19107
Contact: Hazardous Waste Technical Information Center Telephone: (215) 
566-5534 or (215) 566-5364.

    Written Comments should be sent to Joanne Cassidy, Program Manager, 
State Programs Branch, (3HW60), U.S. EPA Region III, 841 Chestnut 
Building, Philadelphia, Pennsylvania 19107, (215) 566-3381.
    Unless insufficient public interest is expressed, EPA will hold a 
public hearing on the State's application for program approval on 
September 11, 1997, at 7 p.m. at the Division of Environmental 
Protection, Office of Waste Management, Underground Storage Tank 
Section, 1356 Hansford Street, Charleston, WV 25301.
    Anyone who wishes to learn whether or not the public hearing on the 
State's application has been cancelled should telephone after September 
5, 1997, the EPA Program Manager listed above or Ken Ellison, Assistant 
Chief, UST Section, Division of Environmental Protection, Office of 
Waste Management, (304) 558-5929.

FOR FURTHER INFORMATION CONTACT: Joanne Cassidy, State Programs Branch 
(3HW60), U.S. EPA Region III, 841 Chestnut Building, Philadelphia, 
Pennsylvania 19107, (215) 566-3381.

SUPPLEMENTARY INFORMATION:

A. Background

    Section 9004 of the Resource Conservation and Recovery Act (RCRA) 
authorizes EPA to approve State underground storage tank programs to 
operate in lieu of the Federal underground storage tank (UST) program. 
EPA may approve a State program if the Agency finds pursuant to section 
9004(b), 42 U.S.C. 6991c(b), that the State program is ``no less 
stringent'' than the Federal program in all seven elements set forth at 
section 9004(a)(1) through (7), 42 U.S.C. 6991c(a)(1) through (7), and 
meets the notification requirements of section 9004(a)(8), 42 U.S.C. 
6991c(a)(8) and also provides for adequate enforcement of compliance 
with UST standards (section 9004(a), 42 U.S.C. 6991c(a)).

B. West Virginia

    The West Virginia Division of Environmental Protection (WV-DEP), is 
the implementing agency for UST activities in the State. The 
Underground Storage Tank Section of WV-DEP is dedicating a substantial 
effort to prevent, control and remediate UST-related groundwater 
contamination. The Underground Storage Tank Section maintains a strong 
field presence and works closely with the regulated community to ensure 
compliance with regulatory requirements.
    The scope of the West Virginia UST Program extends beyond the scope 
of the Federal UST Program as follows:
    (1) West Virginia requires payment of an annual tank registration 
fee and a capitalization fee in 1990 and 1993.
    (2) West Virginia requires certification of individuals who 
install, repair, retrofit, upgrade, perform a change-in-service, close 
or tightness test USTs.
    (3) West Virginia requires ``carriers'' to determine that the UST 
owner/operator is in compliance with the State's notification, 
registration and capitalization fee, and financial responsibility 
regulations before delivering product to a regulated tank.
    (4) West Virginia provides more extensive notification 
requirements.
    (5) The Voluntary Remediation and Redevelopment Act (VRRDA) Rule, 
which became effective on July 1, 1997, provides for implementation of 
a voluntary, risk-based corrective action program for a wide variety of 
releases to the environment. This law supplements the State's 
authorities, which are the subject of this notice and proposed to be 
authorized by EPA, to compel responsible parties to clean up releases 
from underground storage tanks. The State of West Virginia has provided 
assurances to EPA, in its application, that the Division of 
Environmental Protection will approve corrective action plans pursuant 
to VRRDA for UST releases only after ensuring that implementation of 
such plans will adequately protect human health and the environment.
    The State of West Virginia has virtually adopted the Federal UST 
regulations by reference, and West Virginia's requirements are as 
stringent as the Federal regulations.
    The West Virginia Division of Environmental Protection submitted an 
official application for approval on July 7, 1997. Prior to its 
submission, the State of West Virginia provided an opportunity for 
public notice and comment in the development of its underground storage 
tank program, as required by 40 CFR 281.50(b). EPA has reviewed the 
State's application, and has tentatively determined that the State's 
program meets all of the requirements necessary to qualify for final 
approval. However, EPA intends to review all timely public comments 
prior to making a final decision on whether to grant approval to the 
State of West Virginia to operate its program in lieu of the Federal 
program.
    In accordance with section 9004 of RCRA, 42 U.S.C. 6991c, and 40 
CFR 281.50(e), the Agency will hold a public hearing on its tentative 
decision on September 11, 1997, at 7 p.m. at the Division of 
Environmental Protection, Office of Waste Management, Underground 
Storage Tank Section, 1356 Hansford Street, Charleston, WV 25301, 
unless insufficient public interest is expressed. The public may also 
submit written comments on EPA's tentative determination until 
September 2, 1997. Copies of the State's application are available for 
inspection and copying at the locations indicated in the Addressees 
section of this document.
    EPA will consider all public comments on its tentative 
determination received at the public hearing, if a hearing is held, and 
during the public comment period. Issues raised by those comments may 
be the basis for a decision to deny approval to the State of West 
Virginia. EPA will give notice of its final decision in the Federal 
Register; the notice will include a summary of the reasons for the 
final determination and a response to all significant comments.

Compliance with Executive Order 12866

    The Office of Management and Budget has exempted this action from 
the requirements of section 6 of Executive Order 12866.

Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub L. 
104-4, establishes requirements for Federal agencies to assess the 
effects of certain regulatory actions on State, local, and tribal 
governments and the private sector. Under sections 202 and 205 of the 
UMRA, EPA generally must prepare a written statement of economic and 
regulatory alternatives analyses for proposed and final rules with 
Federal mandates, as defined by the UMRA, that may result in 
expenditures to State, local, and tribal governments, in the aggregate, 
or to the private sector, of $100 million or more in any one year.

[[Page 41328]]

The section 202 and 205 requirements do not apply to today's action 
because it is not a ``Federal mandate'' and because it does not impose 
annual costs of $100 million or more.
    Today's rule contains no Federal mandates for State, local or 
tribal governments or the private sector for two reasons. First, 
today's action does not impose new or additional enforceable duties on 
any State, local or tribal governments or the private sector because 
the requirements of the West Virginia program are already imposed by 
the State and subject to State law. Second, the Act also generally 
excludes from the definition of a ``Federal mandate'' duties that arise 
from participation in a voluntary Federal program. The State of West 
Virginia's participation in an authorized UST program is voluntary.
    Even if today's rule did contain a Federal mandate, this rule will 
not result in annual expenditures of $100 million or more for State, 
local, and/or tribal governments in the aggregate, or the private 
sector. Costs to State, local and/or tribal governments already exist 
under the West Virginia program, and today's action does not impose any 
additional obligations on regulated entities. In fact, EPA's approval 
of state programs generally may reduce, not increase, compliance costs 
for the private sector.
    The requirements of section 203 of UMRA also do not apply to 
today's action. Before EPA establishes any regulatory requirements that 
may significantly or uniquely affect small governments, section 203 of 
the UMRA requires EPA to develop a small government agency plan. This 
rule contains no regulatory requirements that might significantly or 
uniquely affect small governments. The Agency recognizes that although 
small governments may own and/or operate USTs, they are already subject 
to the regulatory requirements under existing State law which are being 
authorized by EPA, and, thus, are not subject to any additional 
significant or unique requirements by virtue of this program approval.

Certification Under the Regulatory Flexibility Act

    EPA has determined that this authorization will not have a 
significant economic impact on a substantial number of small entities. 
Such small entities which own and/or operate USTs are already subject 
to the regulatory requirements under existing State law which are being 
authorized by EPA. EPA's authorization does not impose any additional 
burdens on these small entities. This is because EPA's authorization 
would simply result in an administrative change, rather than a change 
in the substantive requirements imposed on these small entities.
    Therefore, EPA provides the following certification under the 
Regulatory Flexibility Act, as amended by the Small Business Regulatory 
Enforcement Fairness Act.
    Pursuant to the provision at 5 U.S.C. 605(b), I hereby certify that 
this authorization will not have a significant economic impact on a 
substantial number of small entities. This authorization approves 
regulatory requirements under existing State law to which small 
entities are already subject. It does not impose any new burdens on 
small entities. This rule, therefore, does not require a regulatory 
flexibility analysis.

    Authority: This notice is issued under the authority of section 
9004 of the Resource Conservation and Recovery Act as amended 42 
U.S.C. 6991c.

List of Subjects in 40 CFR Part 281

    Environmental protection, Administrative practice and procedure, 
Hazardous materials, State program approval, Underground storage tanks.
    Dated: July 24, 1997.
W. Michael McCabe,
Regional Administrator.
[FR Doc. 97-20178 Filed 7-31-97; 8:45 am]
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