14334 Federal Register / Vol. 60, No. 51 / Thursday, March 16, 1995 / Rules and Regulations

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 281

[FRL–5167–6]

South Dakota; Final Approval of State

Underground Storage Tank Program

AGENCY: Environmental Protection

Agency.

ACTION: Notice of final determination on

State of South Dakota’s application for

final approval.

SUMMARY: The State of South Dakota has

applied for final 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 South Dakota

application and has reached a final

determination that South Dakota’s

underground storage tank program

satisfies all of the requirements

necessary to qualify for final approval.

Thus, EPA is granting final approval to

South Dakota to operate its program in

lieu of the federal program.

EFFECTIVE DATE: Final approval for

South Dakota shall be effective at 1:00

pm Eastern Time on May 15, 1995.

FOR FURTHER INFORMATION CONTACT:

Leslie Zawacki, Underground Storage

Tank Program Section, U.S. EPA, Region

8, 8HWM–WM, 999 18th Street, Denver,

Colorado 80202, phone: (303) 293–1665.

SUPPLEMENTARY INFORMATION:

A. Background

Section 9004 of the Resource

Conservation and Recovery Act (RCRA)

enables EPA to approve state

underground storage tank programs to

operate in the State in lieu of the

Federal underground storage tank (UST)

program. Program approval is granted

by EPA if the Agency finds that the

State program: (1) Is ‘‘no less stringent’’

than the Federal program in all seven

elements, and includes notification

requirements of section 9004(a)(8), 42

U.S.C. 6991c(a) (8); and (2) provides for

adequate enforcement of compliance

with UST standards (section 9004(a), 42

U.S.C. 6991c(a)).

On July 9, 1992, South Dakota

submitted an application for ‘‘complete’’

program approval which includes

regulation of both petroleum and

hazardous substance tanks. The State of

South Dakota established authority to

implement an underground storage tank

program through South Dakota Codified

Law 34A–2–98 and 34A–2–99 and the

Administrative Rules of South Dakota

that became effective November 30,

1987.

On July 22, 1994, EPA published a

tentative decision announcing its intent

to grant South Dakota final approval.

Further background on the tentative

decision to grant approval appears at 59

FR 37455, July 22, 1994. Along with the

tentative determination, EPA

announced the availability of the

application for public comment and

provided notice that a public hearing

would be provided if significant public

interest was shown. EPA received no

request for a public hearing, therefore, a

hearing was not held.

B. Public Comment

The EPA received one comment on

the tentative determination of final

approval for South Dakota’s UST

program. The commenter asserted that

the South Dakota leak detection

requirements for suction piping

appeared to be less stringent than the

federal requirements. The State requires

that suction piping use a monthly

monitoring release detection method or

be tightness tested at least every three

years. The State does not require release

detection, if suction piping is designed

to allow the contents of the pipe to

drain back into the storage tank if the

suction is released. EPA believes that

the State implements a program which

meets the federal objective for release

detection for suction piping.

C. Decision

After reviewing the public comments

on the State application and program

since the tentative decision, I conclude

that South Dakota’s application for final

approval meets all of the statutory and

regulatory requirements established by

Subtitle I of RCRA. Accordingly, South

Dakota is granted final approval to

operate its underground storage tank

program in lieu of the Federal program.

This final determination to approve the

South Dakota UST program does not

extend to ‘‘Indian Country,’’ as defined

in 18 U.S.C. 1151, including the

following ‘‘existing or former’’ Indian

reservations in the State of South

Dakota: Cheyenne River, Crow Creek,

Flandreau, Lake Traverse (SissetonWahpeton), Lower Brule, Pine Ridge,

Rosebud, Standing Rock, and Yankton.

South Dakota now has the responsibility

for managing underground storage tank

facilities within its borders and carrying

out all aspects of the UST program

except for facilities located within

‘‘Indian Country,’’ where EPA will

retain regulatory authority. South

Dakota also has primary enforcement

responsibility, although EPA retains the

right to conduct inspections under

section 9005 of RCRA 42 U.S.C. 6991d

and to take enforcement actions under

section 9006 of RCRA 42 U.S.C. 6991e.

Compliance With Executive Order

12866

The Office of Management and Budget

has exempted this rule from the

requirements of section 6 of Executive

Order 12866.

Certification Under the Regulatory

Flexibility Act

Pursuant to the provisions of 5 U.S.C.

605(b), I hereby certify that this

approval will not have a significant

economic impact on a substantial

number of small entities. The approval

effectively suspends the applicability of

certain Federal regulations in favor of

South Dakota’s program, thereby

eliminating duplicative requirements for

owners and operators of underground

storage tanks in the State. It does not

impose any new burdens on small

entities. This rule, therefore, does not

require a regulatory flexibility analysis.

List of Subjects in 40 CFR Part 281

Environmental protection,

Administrative practice and procedure,

Hazardous materials, State program

approval, Underground storage tanks.

Authority: This notice is issued under the

authority of sections 2002(a), 7004(b), and

9004 of the Solid Waste Disposal Act as

amended, 42 U.S.C. 6912(a), 6974(b), and

6991(c).

Dated: February 23, 1995.

Kerrigan Clough,

Acting Regional Administrator.

[FR Doc. 95–6405 Filed 3–15–95; 8:45 am]

BILLING CODE 6560–50–P

40 CFR Part 282

[FRL–5167–5]

Underground Storage Tank Program:

Approved State Program for South

Dakota

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Immediate final rule.

SUMMARY: The Resource Conservation

and Recovery Act of 1976, as amended

(RCRA), authorizes the U.S.

Environmental Protection Agency (EPA)

to grant approval to states to operate

their underground storage tank

programs in lieu of the federal program.

40 CFR part 282 codifies EPA’s decision

to approve state programs and

incorporates by reference those

provisions of the state statutes and

regulations that will be subject to EPA’s

inspection and enforcement authorities
Federal Register / Vol. 60, No. 51 / Thursday, March 16, 1995 / Rules and Regulations 14335

under sections 9005 and 9006 of RCRA

subtitle I and other applicable statutory

and regulatory provisions. This rule

codifies in part 282 the prior approval

of South Dakota’s underground storage

tank program and incorporates by

reference appropriate provisions of state

statutes and regulations.

DATES: This regulation is effective May

15, 1995, unless EPA publishes a prior

Federal Register notice withdrawing

this immediate final rule. All comments

on the codification of South Dakota’s

underground storage tank program must

be received by the close of business

April 17, 1995. The incorporation by

reference of certain publications listed

in the regulations is approved by the

Director of the Federal Register, as of

May 15, 1995, in accordance with 5

U.S.C. 552(a).

ADDRESSES: Comments may be mailed to

Jo Taylor, 8HWM–WM, Hazardous

Waste Management Division,

Underground Storage Tank Program,

U.S. EPA Region 8, 999–18th Street,

Suite 500, Denver, Colorado, 80202–

2466. Comments received by EPA may

be inspected in the EPA Library, Suite

144, at the above address from 12:00

p.m. to 4:00 p.m., Monday through

Friday, excluding federal holidays.

FOR FURTHER INFORMATION CONTACT: Jo

Taylor, 8HWM–WM, Underground

Storage Tank Program, U.S. EPA Region

8, 999–18th Street, Suite 500, Denver,

Colorado, 80202–2466. Phone: (303)

293–1511.

SUPPLEMENTARY INFORMATION:

Background

Section 9004 of the Resource

Conservation and Recovery Act of 1976,

as amended, (RCRA), 42 U.S.C. 6991c,

allows the U.S. Environmental

Protection Agency to approve state

underground storage tank programs to

operate in the state in lieu of the federal

underground storage tank program. EPA

is publishing, simultaneously a Federal

Register document announcing its

decision to grant approval to South

Dakota elsewhere in this issue of the

Federal Register. Approval will be

effective on May 15, 1995.

EPA codifies its approval of State

programs in 40 CFR part 282 and

incorporates by reference therein the

state statutes and regulations that will

be subject to EPA’s inspection and

enforcement authorities under sections

9005 and 9006 of subtitle I of RCRA, 42

U.S.C. 6991d and 6991e, and other

applicable statutory and regulatory

provisions. Today’s rulemaking codifies

EPA’s approval of the South Dakota

underground storage tank program. This

codification reflects the state program in

effect at the time EPA grants South

Dakota approval under section 9004(a),

42 U.S.C. 6991c(a) for its underground

storage tank program. Notice and

opportunity for comment were provided

earlier on the Agency’s decision to

approve the South Dakota program, and

EPA is not now reopening that decision

nor requesting comment on it.

This effort provides clear notice to the

public of the scope of the approved

program in each state. By codifying the

approved South Dakota program and by

amending the Code of Federal

Regulations whenever a new or different

set of requirements is approved in South

Dakota, the status of federally approved

requirements of the South Dakota

program will be readily discernible.

Only those provisions of the South

Dakota underground storage tank

program for which approval has been

granted by EPA will be incorporated by

reference for enforcement purposes.

To codify EPA’s approval of South

Dakota’s underground storage tank

program, EPA has added § 282.91 to title

40 of the CFR. Section 282.91

incorporates by reference for

enforcement purposes the State’s

statutes and regulations. Section 282.91

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 underground storage tank

program under subtitle I of RCRA.

The Agency 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 in

approved states. With respect to such an

enforcement action, the Agency will

rely on federal sanctions, federal

inspection authorities, and federal

procedures rather than the state

authorized analogs to these provisions.

Therefore, the approved South Dakota

enforcement authorities will not be

incorporated by reference. Section

282.91 lists those approved South

Dakota authorities that would fall into

this category.

The public also needs to be aware that

some provisions of the State’s

underground storage tank program are

not part of the federally approved state

program. These non-approved

provisions are not part of the RCRA

subtitle I program because they are

‘‘broader in scope’’ than subtitle I of

RCRA. See 40 CFR 281.12(a)(3)(ii). As a

result, state provisions which are

‘‘broader in scope’’ than the federal

program are not incorporated by

reference for purposes of enforcement in

part 282. Section 282.91 of the

codification simply lists for reference

and clarity the South Dakota statutory

and regulatory provisions which are

‘‘broader in scope’’ than the federal

program and which are not, therefore,

part of the approved program being

codified today. ‘‘Broader in scope’’

provisions cannot be enforced by EPA;

the State, however, will continue to

enforce such provisions.

Certification Under the Regulatory

Flexibility Act

This rule codifies the decision already

made, published elsewhere in this issue

of the Federal Register, to approve the

South Dakota underground storage tank

program and thus has no separate effect.

Therefore, this rule does not require a

regulatory flexibility analysis. Thus,

pursuant to section 605(b) of the

Regulatory Flexibility Act, 5 U.S.C.

605(b), I hereby certify that this rule will

not have a significant economic impact

on a substantial number of small

entities.

Compliance With Executive Order

12866

The Office of Management and Budget

has exempted this rule from the

requirements of Section 6 of Executive

Order 12866.

Paperwork Reduction Act

Under the Paperwork Reduction Act,

44 U.S.C. 3501 et seq., Federal agencies

must consider the paperwork burden

imposed by any information request

contained in a proposed or final rule.

This rule will not impose any

information requirements upon the

regulated community.

List of Subjects in 40 CFR Part 282

Environmental protection, Hazardous

substances, Incorporation by reference,

Intergovernmental relations, State

program approval, Underground storage

tanks, Water pollution control.

Dated: February 23, 1995.

Kerrigan Clough,

Acting Regional Administrator.

For the reasons set forth in the

preamble, 40 CFR part 282 is proposed

to be amended 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.
14336 Federal Register / Vol. 60, No. 51 / Thursday, March 16, 1995 / Rules and Regulations

Subpart B—Approved State Programs

2. Subpart B is amended by adding

§ 282.91 to read as follows:

§ 282.91 South Dakota State-Administered

Program.

(a) The State of South Dakota 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

South Dakota Department of

Environment and Natural Resources,

was approved by EPA pursuant to 42

U.S.C. 6991c and part 281 of this

chapter. EPA approved the South

Dakota program on March 16, 1995 and

it was effective on May 15, 1995.

(b) South Dakota has primary

responsibility for enforcing its

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, as well as under other

statutory and regulatory provisions.

(c) To retain program approval, South

Dakota must revise its approved

program to adopt new changes to the

federal subtitle I program which make it

more stringent, in accordance with

section 9004 of RCRA, 42 U.S.C. 6991c,

and 40 CFR part 281, subpart E. If South

Dakota 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) South Dakota has final approval

for the following elements submitted to

EPA in South Dakota’s program

application for final approval and

approved by EPA on [insert date of

publication]. Copies may be obtained

from the Underground Storage Tank

Program, South Dakota Department of

Environment and Natural Resources,

523 East Capitol, Pierre, South Dakota

57501.

(1) State statutes and regulations. (i)

The provisions cited in this paragraph

are incorporated by reference as part of

the underground storage tank program

under subtitle I of RCRA, 42 U.S.C. 6991

et seq.

(A) South Dakota Statutory

Requirements Applicable to the

Underground Storage Tank Program,

1995.

(B) South Dakota Regulatory

Requirements Applicable to the

Underground Storage Tank Program,

1995.

(ii) The following statutes are part of

the approved state program, although

not incorporated by reference herein for

enforcement purposes.

(A) The statutory provisions include:

South Dakota Codified Law, Water

Pollution Control, Chapter 34A–2,

Sections 46 and 48, Sections 72 through

75, Chapters 34A–10 and 34A–12.

(iii) The following statutory

provisions are broader in scope than the

federal program, are not part of the

approved program, and are not

incorporated by reference herein for

enforcement purposes.

(A) South Dakota statutes Annotated,

Chapter 34A–2, Section 100, insofar as

it applies to above ground stationary

storage tanks, Section 102, insofar as it

applies to installation of above ground

stationary storage tanks, Section 101,

insofar as it applies to corrective action

for above ground stationary storage

tanks.

(2) Statement of legal authority. (i)

‘‘Attorney General’s Statement for Final

Approval’’, signed by the Attorney

General of South Dakota on June 17,

1992, 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.

(ii) Letter from the Attorney General

of South Dakota to EPA, June 17, 1992,

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

‘‘Demonstration of Procedures for

Adequate Enforcement’’ submitted as

part of the complete application in

October 1993, 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 original

application in June 1992, 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 VIII and the South Dakota

Department of Environment and Natural

Resources, signed by the EPA Regional

Administrator on February 23, 1995,

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 adding in alphabetical order ‘‘South

Dakota’’ and its listing.

Appendix A to Part 282—State

Requirements Incorporated by

Reference in Part 282 of the Code of

Federal Regulations

* * * * *

South Dakota

(a) The statutory provisions include South

Dakota Statutes Annotated, Chapter 34A–2,

Sections 98 and 99. Underground Storage

Tanks:

Section 98 Underground storage tanks—

Definitions.

Section 99 Underground storage tanks—

Adoption of Rules—Violation.

(b) The regulatory provisions include State

of South Dakota Administrative Rules,

Chapter 74:03:28, Underground Storage

Tanks, Department of Environment and

Natural Resources, June 24, 1992:

Section 74:03:28:01 Definitions.

Section 74:03:28:02 Performance standards

for new UST systems—General

requirements.

Section 74:03:28:03 Upgrading of existing

UST systems—General requirements and

deadlines.

Section 74:03:28:04 Notification

requirements for UST systems.

Section 74:03:28:05 Spill and overfill

control.

Section 74:03:28:06 Operation and

maintenance of cathodic protection.

Section 74:03:28:07 Compatibility.

Section 74:03:28:08 Repairs allowed—

general requirements.

Section 74:03:28:09 Maintenance and

availability of records.

Section 74:03:28:10 Release detection for all

UST systems—general requirements and

deadlines.

Section 74:03:28:11 Release detection

requirements for petroleum UST

systems.

Section 74:03:28:12 Release detection

requirements for pressure piping.

Section 74:03:28:13 Recordkeeping.

Section 74:03:28:14 Release notification

plan.

Section 74:03:28:15 Reported of suspected

releases.

Section 74:03:28:16 Release investigation

and confirmation.

Section 74:03:28:17 Off-site impacts and

source investigation.

Section 74:03:28:18 General requirements

for corrective action for releases from

UST systems.

Section 74:03:28:19 Initial abatement

requirements and procedures for releases

from UST systems.

Section 74:03:28:20 Free product removal.

Section 74:03:28:21 Additional site

investigation for releases from UST

systems.

Section 74:03:28:22 Soil and groundwater

cleanup for releases from UST systems.

Section 74:03:28:23 Reporting of releases

from UST systems.
Federal Register / Vol. 60, No. 51 / Thursday, March 16, 1995 / Rules and Regulations 14337

Section 74:03:28:28 Reporting of hazardous

substance releases from UST systems.

Section 74:03:28:29 Temporary removal

from use.

Section 74:03:28:30 Temporary closure.

Section 74:03:28:31 Permanent closure.

Section 74:03:28:32 Postclosure

requirements.

Section 74:03:29:01 Applicability.

Section 74:03:29:23 Definitions.

Section 74:03:29:24 Financial responsibility

rules.

[FR Doc. 95–6404 Filed 3–15–95; 8:45 am]

BILLING CODE 6560–50–P