[Federal Register: October 4, 2006 (Volume 71, Number 192)]
[Rules and Regulations]
[Page 58521-58525]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr04oc06-13]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 281
[EPA-R01-UST-2006-0622; FRL-8226-5]
New Hampshire: Final Approval of Underground Storage Tank Program
Revisions
AGENCY: Environmental Protection Agency (EPA).
ACTION: Immediate final rule.
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SUMMARY: The State of New Hampshire has amended the regulations
previously approved by EPA under Subtitle I of the Resource
Conservation and Recovery Act (RCRA). EPA has determined that these
amendments satisfy all requirements needed for program approval and is
approving the State's changes through this immediate final action. EPA
is publishing this rule to approve the changes without a prior
tentative determination because we believe this action is not
controversial and do not expect comments that oppose it. Unless we get
written comments which oppose this approval during the comment period,
the decision to approve New Hampshire's amendments to its underground
storage tank (UST) program will take effect as provided below. If we
receive comments that oppose this action, we will publish a document in
the Federal Register withdrawing this rule before it takes effect, and
the separate document in the proposed rules section of this Federal
Register will serve as the proposal to approve the amendments.
DATES: This approval will become effective on December 4, 2006, unless
EPA receives adverse written comment by November 3, 2006. If EPA
receives such comment, it will publish a timely withdrawal of this
immediate final rule in the Federal Register and inform the public that
this approval will not take immediate effect.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R01-
UST-2006-0622, by one of the following methods:
http://www.regulations.gov: Follow the on-line instructions for
submitting comments.
E-mail: hanamoto.susan@epa.gov.
Mail: Susan Hanamoto, Office of Underground Storage Tanks,
EPA Region I, One Congress Street, Suite 1100 (Mail Code: HBO), Boston,
MA 02114-2023.
Hand Delivery: Susan Hanamoto, Office of Underground
Storage Tanks, EPA Region I, One Congress Street, Suite 1100 (Mail
Code: HBO), Boston, MA 02114-2023. Such deliveries are only accepted
during the EPA's normal hours of operation, and special arrangements
should be made for deliveries of boxed information.
Instructions: Direct your comments to Docket ID No. EPA-R01-UST-
2006-0622. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
http://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
[[Page 58522]]
protected through http://www.regulations.gov or e-mail. The
http://www.regulations.gov Web site 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 e-mail comment
directly to EPA without going through http://www.regulations.gov, your e-mail
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 submit an electronic comment, EPA recommends that you
include your name and other contact information in the body of your
comment and with any disk or CD-ROM you submit. 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.
Docket: EPA has established a docket for this action under Docket
ID No. EPA-R01-UST-2006-0622. All documents in the docket are listed on
the http://www.regulations.gov Web site. Although listed in the index, some
information may not be publicly available, e.g., CBI or other
information whose disclosure is restricted by statute. Certain other
material, such as copyrighted material, is not placed on the Internet
and will be publicly available only in hard copy form. Publicly
available docket materials are available either electronically through
http://www.regulations.gov or in hard copy at the EPA Region I Library, One
Congress Street, 11th Floor, Boston, MA 02114-2023; business hours
Tuesday through Thursday 10 a.m. to 3 p.m., telephone: (617) 918-1990;
or the New Hampshire Department of Environmental Services, Public
Information Center, 29 Hazen Drive, Concord, NH 03302-0095; Phone
Number: (603) 271-2919 or (603) 271-2975; Business hours: 8 a.m. to 4
p.m., Monday-Friday. Records in these dockets are available for
inspection and copying during normal business hours.
FOR FURTHER INFORMATION CONTACT: Susan Hanamoto, Office of Underground
Storage Tanks, EPA Region I, One Congress Street, Suite 1100 (Mail
Code: HBO), Boston, MA 02114-2023, telephone: (617) 918-1219, e-mail:
hanamoto.susan@epa.gov.
SUPPLEMENTARY INFORMATION:
A. Why Are Revisions to State Programs Necessary?
States that have received final approval of their UST program under
Section 9004 of RCRA, 42 U.S.C. 6991c, must maintain a UST program that
is ``no less stringent'' than the Federal program with respect to the
seven requirements set forth at RCRA section 9004(a)(1) through (7), 42
U.S.C. 6991c(a)(1) through (7), that meets the notification
requirements of RCRA section 9004(a)(8), and that also provides for
adequate enforcement of compliance with UST standards in accordance
with RCRA section 9004(a), 42 U.S.C. 6991c(a). Either EPA or the
approved state may initiate program revision. Program revision may be
necessary when the controlling Federal or state statutory or regulatory
authority is changed or when responsibility for the state program is
shifted to a new agency or agencies.
B. What Decisions Have We Made in This Rule?
We conclude that New Hampshire's application to revise its approved
program meets all of the statutory and regulatory requirements
established by RCRA. Therefore, we grant New Hampshire approval to
operate its UST program with the revisions described in the program
approval application.
C. What Is the Effect of Today's Approval Decision?
This action does not impose additional requirements on the
regulated community because the regulations for which New Hampshire is
being approved by today's action are already effective, and they are
not changed by today's action.
D. Why Wasn't There a Proposed Rule Before Today's Rule?
EPA did not publish a proposal before today's rule because we view
this as a non-controversial program change and do not expect comments
that oppose this approval. We are providing an opportunity for public
comment now.
E. What Happens if EPA Receives Comments That Oppose This Action?
If EPA receives comments that oppose this approval, we will
withdraw this rule by publishing a document in the Federal Register
before the rule becomes effective. EPA will base any further decision
on the approval of the state program changes on the proposal mentioned
in the previous paragraph. We will then address all public comments 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.
If we receive comments that oppose only the approval of a
particular change to the State UST program, we will withdraw that part
of this rule but the approval of the program changes that the comments
do not oppose will become effective on the date specified above. The
Federal Register withdrawal document will specify which part of the
approval will become effective, and which part is being withdrawn.
F. What Has New Hampshire Previously Been Approved for?
New Hampshire received final approval on June 19, 1991, effective
July 19, 1991 (56 FR 28089) to administer the UST program in lieu of
the Federal program. On November 2, 1993, effective January 3, 1994 (58
FR 58624), EPA codified the approved New Hampshire program,
incorporating by reference the state statutes and regulations that are
thereby 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 Are We Approving With Today's Action?
On February 23, 2006, in accordance with 40 CFR 281.52(b), New
Hampshire submitted a final complete program revision application
seeking approval for its UST program revisions adopted as of February
1, 2005. We now make an immediate final decision, subject to receipt of
written comments that oppose this action, that New Hampshire's UST
program revision satisfies all of the requirements necessary to qualify
for final approval. Therefore, we grant New Hampshire final approval
for the following program additions and changes:
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Description of required federal element Implementing state authority
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42 U.S.C. 6991c(a)(1) Requirements for Env-Wm 1401.11.
maintaining leak detection system, Env-Wm 1401.13(e).
inventory control with tank testing, or Env-Wm 1401.16(c-d).
other system to identify releases. Env-Wm 1401.29.
[[Page 58523]]
Env-Wm 1401.30 (j-m), (r) and(u).
Env-Wm 1401.31(b) and (j).
Env-Wm 1401.37(a), (c-e), and (g-i).
42 U.S.C. 6991c(a)(2) Requirements for Env-Wm 1401.11.
maintaining records of monitoring or leak Env-Wm 1401.13(f), (h).
detection, inventory control or tank Env-Wm 1401.14(b).
testing systems. Env-Wm 1401.25(f).
Env-Wm 1401.28(g) and (n).
Env-Wm 1401.29(h).
Env-Wm 1401.30(g-I), (n-q), and (v).
Env-Wm 1401.31(c-f).
Env-Wm 1401.32(c-j).
Env-Wm 1401.33(f-k).
Env-Wm 1401.36(f-h).
Env-Wm 1401.37(f).
Env-Wm 1401.38(c-d).
42 U.S.C. 6991c(a)(5) Requirements for Env-Wm 1401.15(d-g).
closure of tanks to prevent future Env-Wm 1401.17.
releases. Env-Wm 1401.18.
Env-Wm 1401.28(q).
Env-Wm 1401.34(i).
Env-Wm 1401.37(b).
Env-Wm 1401.38(a).
42 U.S.C. 6991c(a)(7) Standards of Env-Wm 1401.21(a-c),(e-h), and (j-k).
performance for new USTs. Env-Wm 1401.22(a-d), (f-g), and (i-j).
Env-Wm 1401.23(a).
Env-Wm 1401.24.
Env-Wm 1401.25(b-n).
Env-Wm 1401.26(c) and (d).
Env-Wm 1401.27(b).
Env-Wm 1401.28.
Env-Wm 1401.33(a), (c-e).
Env-Wm 1401.36(a-e), and (i).
Env-Wm 1401.38(b).
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H. Where Are the Revised Rules Different From the Federal Rules?
We consider the following State requirements to be more stringent
than the Federal requirements and they are part of New Hampshire's
approved program and are Federally enforceable.
New Hampshire requires the operator of an UST facility to
conduct inventory monitoring of each UST and to maintain separate
records for each tank and interconnected system, unless the secondary
containment of the UST is continuously monitored for both regulated
substance and water. Inventory records for single-wall USTs must be
recorded on a form obtained from the Department of Environmental
Services or another representative motor fuel and bulk storage fuel oil
inventory form, which process all of the required data using an
automatic tank gauge monitor and computer software. When the Department
has determined that inventory monitoring has not been conducted, the
owner must perform a tightness test on the UST system within 30 days of
the determination.
New Hampshire requires all regulated metal UST systems,
except vent piping, without corrosion protection and all hazardous
substance UST systems without secondary containment and leak monitoring
to be permanently closed. Any part of an existing single wall UST
system that routinely contains a regulated substance without secondary
containment and leak monitoring, except for vent piping, must be
permanently closed by December 22, 2015.
New Hampshire requires dispenser sumps installed beneath
each dispenser to be provided with continuous leak detection monitoring
by the piping sump sensor or equipped with a sump sensor. All piping
and dispenser sumps must be maintained free of liquid and debris, be
liquid-tight, have liquid-tight penetration fittings for all sump
entries, and be able to respond to small accumulations of liquids
within the sumps.
New Hampshire requires spill containment equipment
installed with drain valves on UST systems that store gasoline to have
the valve replaced annually or be permanently sealed.
New Hampshire [1401.25(i)] requires all new and
replacement overfill protection devices be installed to allow access
for inspection of proper operation. By February 1, 2006, [1401.25(j)]
all existing UST systems with suction piping and an air eliminator must
be equipped with a high level visual and audible alarm or with a device
that will automatically and completely shut off flow into the tank when
the tank is no more than 95% full and [1401.25(l) and (m)] when product
is pumped to a new UST system or any new UST system receives a delivery
without a tight fill connection, the new UST systems must only be
equipped with a high level visual and audible overfill alarm.
[1401.25(k)] All new high level alarms must have both visual and
audible alarms, be clearly labeled as a tank overfill alarm, and be
clearly visible and audible to the transfer operator.
New Hampshire requires the certified tank installer to
perform a piping pressure test on the vent piping after installation
and prior to backfill and to test all installed sumps for tightness.
The test results must be provided to the Department and owner at the
time of the backfill inspection of the system.
New Hampshire requires a concrete pad having positive
limiting barriers to be constructed and maintained so as to contain a
volume of at least five gallons for each dispenser.
New Hampshire requires new spill containment equipment to
be tested for tightness and the results to be submitted
[[Page 58524]]
to the Department at the time of inspection and to the owner within 30
days of the test.
New Hampshire no longer allows groundwater or soil gas
vapor monitoring to be installed as a release detection mechanism.
New Hampshire requires all new metal vent piping to be
protected from corrosion.
New Hampshire requires all new sumps to be tested for
tightness within 30 days from installation and the results to be
submitted to the Department no later than 30 days after the date of the
test.
New Hampshire requires single wall UST systems, with the
exception of vent piping, that discharge, leak, spill, or release a
regulated substance to the environment to be permanently closed.
New Hampshire's regulations contain requirements that are broader
in scope than the Federal program which are not part of the program
being approved by today's action. EPA cannot enforce these broader in
scope requirements. Although compliance with these provisions is
required under New Hampshire law, they are not Federal RCRA
requirements. Such provisions include, but are not limited to, the
following:
New Hampshire's regulations reference compliance with
stage I and stage II requirements in Env-Wm 1404, ``Volatile Organic
Compounds (VOCs): Gasoline Dispensing Facilities, Bulk Gasoline Plants,
and Cargo Trucks,'' when applying for a permit to operate, when
transferring gasoline, and when placing back into service temporarily
closed UST systems. The Federal RCRA program does not cover stage I and
stage II requirements; therefore, in this regard, the New Hampshire
program is broader in scope than the Federal Program.
New Hampshire requires all new UST sites to be located no
closer than 500 feet from a public water system well for all gasoline
UST systems; at least 400 feet from a public water supply well for all
regulated substances except gasoline; at least 250 feet from a non-
pubic water supply well for all gasoline UST systems; and at least 75
feet from a non-public water supply well for all regulated substances
except gasoline. The Federal RCRA program does not cover the siting of
UST systems; therefore, in this regard, the New Hampshire program is
broader in scope than the Federal Program.
New Hampshire does not allow storm water runoff from UST
facilities to be discharged to the subsurface, and storm water must not
be directed to flow over any tank pad or dispensing pad. The Federal
RCRA program does not cover storm water runoff from UST facilities;
therefore, in this regard, the New Hampshire program is broader in
scope than the Federal Program.
I. Administrative Requirements
This action will only approve state underground storage tank
program requirements pursuant to RCRA section 9004 and imposes no
requirements other than those imposed by state law (see SUPPLEMENTARY
INFORMATION). Therefore, this action complies with applicable executive
orders and statutory provisions as follows:
1. Executive Order (EO) 12866: Regulatory Planning Review: The
Office of Management and Budget has exempted this action from the
requirements of Executive Order 12866 (58 FR 51735, October 4, 1993),
and therefore this action is not subject to review by OMB. 2. Paperwork
Reduction Act: This action does not impose an information collection
burden under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et
seq.). 3. Regulatory Flexibility Act: After considering the economic
impacts of today's action on small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.), I certify that this action will
not have a significant economic impact on a substantial number of small
entities. 4. Unfunded Mandates Reform Act: Because this action approves
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 (Public Law 104-4). 5. 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). 6. 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 state requirements as part of the
State UST program without altering the relationship or the distribution
of power and responsibilities established by RCRA. 7. Executive Order
13175: Consultation and Coordination with Indian Tribal Governments:
This action is not subject to EO 13175 (65 FR 67249, November 9, 2000)
because it will not have tribal implications (i.e., substantial direct
effects 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).
8. Executive Order 13045: Protection of Children from Environmental
Health & Safety Risks: This action is not subject to EO 13045 (62 FR
19885, April 23, 1997) because it is not economically significant and
it is not based on health or safety risks. 9. Executive Order 13211:
Actions that Significantly Affect Energy Supply, Distribution, or Use:
This action is not subject to EO 13211 (66 FR 28355, May 22, 2001)
because it is not a significant regulatory action as defined in EO
12866. 10. National Technology Transfer and Advancement Act: EPA
approves State programs as long as they meet criteria required by RCRA,
so it would be inconsistent with applicable law for EPA, in its review
of a State program, to require the use of any particular voluntary
consensus standard in place of another standard that otherwise meets
the requirements of RCRA. Thus, the requirements of Section 12(d) of
the National Technology Transfer and Advancement Act (15 U.S.C. 272
note) does not apply to this action. 11. 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. 12. EPA has complied with Executive
Order 12630 (53 FR 8859, March 18, 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.
Congressional Review Act: EPA will submit a report containing this
rule and other information required by the Congressional Review Act (5
U.S.C. 801 et seq.) 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).
Nevertheless, to allow time for public comment, this action will be
effective on December 4, 2006.
List of Subjects in 40 CFR Part 281
Environmental protection, Administrative practice and procedures,
Hazardous substances,
[[Page 58525]]
Intergovernmental relations, Reporting and recordkeeping requirements.
Authority: This document is issued under the authority of
section 9004 of the Resource Conservation and Recovery Act, as
amended, 42 U.S.C. 6991c.
Dated: September 20, 2006.
Robert W. Varney,
Regional Administrator, EPA Region I.
[FR Doc. E6-16375 Filed 10-3-06; 8:45 am]
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