[Federal Register Volume 84, Number 212 (Friday, November 1, 2019)]
[Rules and Regulations]
[Pages 58627-58633]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-23709]
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ENVIRONMENTAL SERVICES AGENCY
40 CFR Part 282
[EPA-R01-UST-2019-0421; FRL-10001-60-Region 1]
New Hampshire: Final Approval of State Underground Storage Tank
Program Revisions, Codification, and Incorporation by Reference
AGENCY: Environmental Services Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: Pursuant to the Resource Conservation and Recovery Act (RCRA
or Act), the Environmental Services Agency (EPA) is taking direct final
action to approve revisions to the State of New Hampshire's Underground
Storage Tank (UST) program submitted by the New Hampshire Department of
Environmental Services (NH DES). This action also codifies EPA's
approval of New Hampshire's State program and incorporates by reference
those provisions of the State regulations that we have 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 December 31, 2019, unless EPA receives
adverse comment by December 2, 2019. If EPA receives adverse comments,
it 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 December 31, 2019, 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: http://www.regulations.gov. Follow
the on-line instructions for submitting comments.
2. Email: [email protected].
3. Mail: Susan Hanamoto, RCRA Waste Management, UST, and Pesticides
Section; Land, Chemicals, and Redevelopment Division; EPA Region 1, 5
Post Office Square, Suite 100, (Mail Code 07-1), Boston, MA 02109-3912.
4. Hand Delivery or Courier: Deliver your comments to Susan
Hanamoto, RCRA Waste Management, UST, and Pesticides Section; Land,
Chemicals, and Redevelopment Division; EPA Region 1, 5 Post Office
Square, Suite 100, (Mail Code 07-1), Boston, MA 02109-3912. Such
deliveries are only accepted during the Regional Office's normal hours
of operation.
Instructions: Direct your comments to Docket ID No. EPA-R01-UST-
2019-0421. EPA's policy is that all comments received will be included
in the public docket without change and may be 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 protected through http://www.regulations.gov, or email. The Federal website, http://www.regulations.gov, is an ``anonymous access'' system, which means the
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 the EPA without going through http://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 submit an electronic comment, EPA recommends
that you include your name and other contact information in the body of
your comment and also 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: All documents in the docket are listed in the http://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
[[Page 58628]]
restricted by statute. Certain other material, such as copyrighted
material, might be publicly available only in hard copy form. Publicly
available docket materials are available either electronically through
www.regulations.gov or in hard copy.
IBR and supporting material: You can view and copy the documents
that form the basis for this codification and associated publicly
available materials from 8:30 a.m. to 4:00 p.m. Monday through Friday
at the following location: EPA Region 1 Library, 5 Post Office Square,
1st floor, Boston, MA 02109-3912; by appointment only; tel: (617) 918-
1990. Interested persons wanting to examine these documents should make
an appointment with the office at least two weeks in advance.
FOR FURTHER INFORMATION CONTACT: Susan Hanamoto, (617) 918-1219,
[email protected].
SUPPLEMENTARY INFORMATION:
I. Approval of Revisions to New Hampshire's Underground Storage Tank
Program
A. Why are revisions to state programs necessary?
States that have received final approval from the EPA under RCRA
section 9004(b) of RCRA, 42 U.S.C. 6991c(b), must maintain an
underground storage tank program that is equivalent to, consistent
with, and no less stringent than the Federal UST program. Either EPA or
the approved state may initiate program revision. When EPA makes
revisions to the regulations that govern the UST program, states must
revise their programs to comply with the updated regulations and submit
these revisions to the EPA for approval. Program revision may be
necessary when the controlling Federal or state statutory or regulatory
authority is modified or when responsibility for the state program is
shifted to a new agency or agencies.
B. What decisions has the EPA made in this rule?
On June 24, 2019, in accordance with 40 CFR 281.51(a), New
Hampshire submitted a complete program revision application seeking the
EPA approval for its UST program revisions (State Application). New
Hampshire'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 (2015 Federal
Revisions). As required by 40 CFR 281.20, the State Application
contains the following: A transmittal letter requesting 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 the EPA and the
implementing agency, a statement of certification from the Attorney
General, and copies of all relevant state statutes and regulations. We
have reviewed the State Application and determined that the revisions
to New Hampshire's UST program are equivalent to, consistent with, and
no less stringent than the corresponding Federal requirements in
subpart C of 40 CFR part 281, and that the New Hampshire program
provides for adequate enforcement of compliance (40 CFR 281.11(b)).
Therefore, the EPA grants New Hampshire final approval to operate its
UST program with the changes described in the program revision
application, and as outlined below in section I.G of this document.
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 New Hampshire, 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 concurrent with a proposed
rule because we view this as a noncontroversial action and anticipate
no adverse comment. EPA is providing an opportunity for public comment
now.
E. What happens if the EPA receives comments that oppose this action?
Along with this direct final, the EPA is publishing a separate
document in the ``Proposed Rules'' Section of this issue of the Federal
Register that serves as the proposal to approve the State's UST program
revisions, providing opportunity for public comment. If EPA receives
comments that oppose this approval, EPA will withdraw the direct final
rule by publishing a document in the Federal Register before the rule
becomes effective. The EPA will base any further decision on the
approval of the State program changes after considering all comments
received during the comment period. EPA 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.
F. For what has New Hampshire previously been approved?
On June 19, 1991, the EPA finalized a rule approving the UST
program, effective July 19, 1991, to operate in lieu of the Federal
program. On November 2, 1993, effective January 3, 1994, the EPA
codified the approved New Hampshire program, incorporating by reference
the State 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 are we approving with this action?
On June 24, 2019, in accordance with 40 CFR 281.51(a), New
Hampshire submitted a complete application for final approval of its
UST program revisions adopted on October 10, 2018. The EPA now makes an
immediate final decision, subject to receipt of written comments that
oppose this action, that New Hampshire's UST program revisions satisfy
all of the requirements necessary to qualify for final approval.
Therefore, EPA grants New Hampshire final approval for the following
program changes:
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Required Federal element Implementing State authority
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40 CFR 281.30, New UST Systems and Env-Or 401.03(k), 404.01-404.03,
Notification. 404.10, 405.01-405.06, 405.07(d),
405.08, 405.09, 407, 408.05(d).
40 CFR 281.31, Upgrading Existing Not applicable.
UST Systems.
40 CFR 281.32, General Operating RSA 146-C:19, II(c); Env-Or
Requirements. 404.09(a) and (b); 405.01(h) and
(i), 405.10, 405.11; 406.03,
406.08(g)(1) and (2), 406.09-
406.19; 408.01(c).
40 CFR 281.33, Release Detection.. Env-Or 405.08, 405.09; 406.02,
406.13.
40 CFR 281.34, Release Reporting, Env-Or 406.04; 604.06; 605.03 and
Investigation, and Confirmation. 605.10; 606.01.
[[Page 58629]]
40 CFR 281.35, Release Response Env-Or 605.03, 605.04, 605.07,
and Corrective Action. 605.08; 606.01, 606.08, 606.10;
607.02(b).
40 CFR 281.36, Out-of-service Env-Or 408.04, 408.05(e), 408.06-
Systems and Closure. 408.10.
40 CFR 281.37, Financial Env-Or 404.04(h); 404.12(a), (c),
Responsibility for USTs (d), and (j).
Containing Petroleum.
40 CFR 281.40, Legal Authorities RSA 146-C:5.
for Compliance Monitoring.
40 CFR 281.41, Legal Authorities RSA 146-C:9-a, RSA 146-C:10, RSA 21-
for Enforcement Response. O:9, RSA 541.
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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. The NH DES has broad statutory authority with respect
to USTs to regulate installation, operation, maintenance, closure, and
UST releases, and to the issuance of orders. These statutory
authorities are found in: New Hampshire Revised Statutes Annotated,
Title I, The State and its Government, Chapter 21-O Department of
Environmental Services; New Hampshire Revised Statutes Annotated, Title
X, Public Health, Chapter 146-C Underground Storage Facilities; New
Hampshire Revised Statutes Annotated Title L, Water Management and
Protection, Chapter 485-C Groundwater Protection Act; New Hampshire
Revised Statutes Annotated Title LV, Proceedings in Special Cases,
Chapter 541 Rehearings and Appeals in Certain Cases.
H. Where are the revised rules different from the Federal rules?
Broader in Scope Provisions
The following statutory and regulatory provisions are considered
broader in scope than the Federal program, and are therefore not
enforceable as a matter of Federal law:
For any UST system installed prior to April 22, 1997 or that
otherwise does not have existing spill containment at Stage I system
connections, the owner shall install spill containment meeting the
requirements of Env-Or 405.05(f) at Stage I system connections no later
than October 13, 2021.
Each dispensing area shall have a concrete pad with positive
limiting barrier that contains a volume of at last five gallons and
extends beyond the reach of all dispensing nozzles.
Tank pads installed after October 10, 2018 shall be constructed of
reinforce Portland cement concrete and have liquid-tight sealed joints
at all expansion, contraction, cold, and crack control joints within
three feet of spill containment. The tank pads shall be sealed and
maintained with a fuel-product compatible joint sealant installed per
manufacturer's instruction.
Any day tank that is connected by piping to an underground storage
tank that is subject to the rules shall be marked with the type of
product stored, the registered tank number corresponding to the UST
that automatically supplies product to the day tank, and the
appropriate emergency response system symbol(s) that meet(s) the
requirements of section 21.7.2.1 of NFPA 30 to identify the hazards
posed by the product stored.
All Stage I system connection spill containment equipment shall be
tested for tightness no later than October 13, 2021 and triennially
thereafter.
Prior to commencing construction or installation of a new facility
or making one or more substantial modifications at an existing
facility, including any changes to a cathodic protection system, an
owner shall submit plans and specifications stamped by an engineer
licensed to practice in New Hampshire. Within 90 days of receipt of a
complete plan and specification submittal, the department shall send
the owner written notice of construction approval or disapproval.
Failure to send a notice within 90 days shall be deemed to be approval
of the plans. A UST or UST system component shall be installed only by
a certified tank installer.
UST systems shall not be installed within the sanitary protective
area of a public water system well and in any area where flooding over
the top of the tank is reasonably likely or the ground surface is below
the 100-year flood elevation, unless the plans include specific
requirements designed to ensure that the tank will not float and its
contents will not escape during a flood.
New UST systems installed on or after February 2, 2005 shall be
installed no closer to public and non-public water supply wells than
the minimum distances specified in Table 407-1.
With the exception of marinas and fueling systems over water, no
UST system at any new site shall be located closer than 75 feet from
surface waters of the state.
Storm water runoff from UST facilities shall not be directly
discharged to surface water or below the ground surface unless a permit
is obtained under applicable state or federal law. Storm water shall
not be directed to flow over any tank or dispensing pad.
The owner of any UST system that has been red-tagged in accordance
with RSA 146-C:15 shall bring the system into compliance with all
applicable requirements or permanently close the system within one year
of the date the red tag was placed.
An owner who wishes to obtain a waiver form any rule in Env-Or 400
shall request a waiver as specified in Env-Or 409.02.
A responsible party shall apply for and obtain a groundwater
management permit for any site where the discharge of a regulated
contaminant at that site has caused and continues to cause the
groundwater quality criteria of Env-Or 603.01 to be violated.
More Stringent Provisions
The following statutory and regulatory provisions are considered
more stringent than the Federal program and are therefore enforceable
as a matter of Federal law:
Airport hydrant fuel distribution systems and UST systems with
field-constructed tanks shall meet release detection requirements for
tanks and piping systems. Piping associated with airport hydrant
distribution systems and field constructed UST systems shall have
secondary containment.
For any UST system installed on or after September 1, 2013, all
spill containment equipment shall be installed within a liquid-tight
sump or be of double walled construction.
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
CFR. Section 9004(b) of RCRA, as amended, allows the EPA to approve
State UST programs to operate in lieu of the Federal program. The EPA
codifies its authorization of
[[Page 58630]]
state programs in 40 CFR part 282 and incorporates by reference state
statutes and regulations that the EPA will enforce under sections 9005
and 9006 of RCRA and any other applicable state 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 New Hampshire's UST program?
EPA incorporated by reference the New Hampshire DES approved UST
program effective January 3, 1994 (58 FR 58624; November 2, 1993). In
this document, EPA is revising 40 CFR 282.79 to include the approved
revisions.
C. What codification decisions have we made in this rule?
Incorporation by reference: In this rule, we are finalizing
regulatory text that includes incorporation by reference. In accordance
with the requirements of 1 CFR 51.5, we are finalizing the
incorporation by reference of the New Hampshire statutes and
regulations described in the amendments to 40 CFR part 282 set forth
below. The EPA has made, and will continue to make, these documents
generally available through www.regulations.gov and at the EPA Region 1
office (see the ADDRESSES Section of this preamble for more
information).
The purpose of this Federal Register document is to codify New
Hampshire's approved UST program. The codification reflects the State
program that would be in effect at the time EPA's approved revisions to
the New Hampshire UST program addressed in this direct final rule
become final. The document incorporates by reference New Hampshire's
UST statutes and regulations and clarifies which of these provisions
are included in the approved and federally enforceable program. By
codifying the approved New Hampshire program and by amending the CFR,
the public will more easily be able to discern the status of the
federally-approved requirements of the New Hampshire program.
EPA is incorporating by reference the New Hampshire approved UST
program in 40 CFR 282.79. Section 282.79(d)(1)(i)(A) incorporates by
reference for enforcement purposes the State's statutes and
regulations.
Section 282.79 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 New Hampshire'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. With
respect to these actions, EPA will rely on Federal sanctions, Federal
inspection authorities, and Federal procedures rather than the state
authorized analogues to these provisions. Therefore, the EPA is not
incorporating by reference such particular, approved New Hampshire
procedural and enforcement authorities. Section 282.79(d)(1)(ii) of 40
CFR lists those approved New Hampshire authorities that would fall into
this category.
E. What State provisions are not part of the codification?
The public also needs to be aware that some provisions of the
State's UST program are not part of the federally approved State
program. Such provisions are not part of the RCRA Subtitle I program
because they are ``broader in scope'' than Subtitle I of RCRA. Title 40
CFR 281.12(a)(3)(ii) states that where an approved state program has
provisions that are broader in scope than the Federal program, those
provisions are not a part of the federally approved program. 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 282.79(d)(1)(iii) lists for reference and clarity
the New Hampshire 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 in this document. 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 New Hampshire'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 New Hampshire'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
[[Page 58631]]
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: Services 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 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 which are at least equivalent to, and 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 December 31, 2019 because it is a direct
final rule.
Authority: This rule 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, 6991c, 6991d, and 6991e.
List of Subjects in 40 CFR Part 282
Environmental Services, Administrative practice and procedure,
Confidential business information, Hazardous substances, Incorporation
by reference, Insurance, Intergovernmental relations, Penalties,
Petroleum, Reporting and recordkeeping requirements, Surety bonds,
Water supply.
Dated: October 7, 2019.
Dennis Deziel,
Regional Administrator, EPA Region 1.
For the reasons set forth in the preamble, EPA is amending 40 CFR
part 282 as follows:
PART 282--APPROVED UNDERGROUND STORAGE TANK PROGRAMS
0
1. The authority citation for part 282 continues to read as follows:
Authority: 42 U.S.C. 6912, 6991c, 6991d, and 6991e.
0
2. Revise Sec. 282.79 to read as follows:
Sec. 282.79 New Hampshire State-Administered Program.
(a) The State of New Hampshire 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 New Hampshire Department Environmental Services
(NH DES), was approved by EPA pursuant to 42 U.S.C. 6991c and 40 CFR
part 281. EPA approved the New Hampshire program on June 19, 1991,
which was effective on July 19, 1991.
(b) New Hampshire 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, as well as under any other applicable
statutory and regulatory provisions.
(c) To retain program approval, New Hampshire 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 New Hampshire
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 notification of any change
will be published in the Federal Register.
(d) New Hampshire has final approval for the following elements of
its program application originally submitted to EPA and approved
effective July 19, 1991, and the program
[[Page 58632]]
revision application approved by EPA, effective on December 31, 2019.
(1) State statutes and regulations--(i) Incorporation by reference.
The material cited in this paragraph (d)(1)(i), and listed in appendix
A to this part, is incorporated by reference as part of the underground
storage tank program under Subtitle I of RCRA, 42 U.S.C. 6991 et seq.
(See Sec. 282.2 for incorporation by reference approval and inspection
information.) You may obtain copies of the New Hampshire regulations
and statutes that are incorporated by reference in this paragraph
(d)(1)(i) from Oil Compliance Section Supervisor, New Hampshire DES, PO
Box 29, Concord, NH 03302-0029; Phone number: 603-271-6058; Hours:
Monday-Friday, 8:00 a.m. to 4:00 p.m.; link to statutes and
regulations: NH RSA 21-O: http://www.gencourt.state.nh.us/rsa/html/l/21-O-mrg.htm; NH RSA 91-A: http://www.gencourt.state.nh.us/rsa/html/vi/91-a/91-a-mrg.htm; NH RSA 146-C: http://www.gencourt.state.nh.us/rsa/html/X/146-C/146-C-mrg.htm; NH RSA 485-C: http://www.gencourt.state.nh.us/rsa/html/NHTOC/NHTOC-L-485-C.htm; NHDES Env-Or
400: https://www.des.nh.gov/organization/commissioner/legal/rules/documents/env-or400.pdf; NHDES Env-Or 600: https://www.des.nh.gov/organization/commissioner/legal/rules/documents/env-or600.pdf.
(A) ``New Hampshire Statutory and Regulatory Requirements
Applicable to the Underground Storage Tank Program, October 2018.''
(B) [Reserved]
(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) New Hampshire Revised Statutes Annotated, Title I, The State
and its Government, Chapter 21-O, Department of Environmental Services,
Section 21-O:9. Waste Management Council; Section 21-O:14
Administrative Appeals.
(2) New Hampshire Revised Statutes Annotated, Title X, Public
Health, Chapter 146-C Underground Storage Facilities, Section C:5
Records Required, Inspections; Section C:9-a Orders, Injunctions;
Section C:10 Penalty; Section C:10-a Administrative Fines; Section C:11
Liability for Cleanup Costs, Municipal Regulations; Section C:13
Penalty, Persons Strictly Liable; Section C:14 Delivery Prohibition;
Section C:15 Non-Compliant Storage Tanks or Facilities, Red-Tagging
Procedure; Section C:16 Appeals.
(3) New Hampshire Revised Statutes Annotated, Title L, Water
Management and Protection, Chapter 485-C Groundwater Protection Act,
Section C:15 Investigation and Inspections; Section C:16 Cease and
Desist Orders; Section C:17 Appeals; Section C:18 Administrative Fines;
Section C:19 Penalties and Other Relief.
(4) New Hampshire Revised Statutes Annotated, Title LV, Proceedings
in Special Cases, Chapter 541 Rehearings and Appeals in Certain Cases.
(B) The regulatory provisions include:
(1) New Hampshire Code of Administrative Rules, Chapter Env-Or 400
Underground Storage Tank Facilities: 404.05(b)(3) Signature Required;
404.11 Suspension or Revocation of Permit to Operate.
(2) [Reserved]
(iii) Provisions not incorporated by reference. The following
specifically identified statutory and regulatory provisions applicable
to the New Hampshire's UST program 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) New Hampshire Code of Administrative Rules, Chapter Env-Or 400
Underground Storage Tank Facilities: 405.05(f) and (g) Spill
Containment; 405.07(a)(2) Dispensing Areas; 405.12(a) Day Tank Markings
Required; 406.12(c) Spill Containment Integrity Testing; 407.01(a)
Application for Approval of UST Systems; 407.06(b-e), (g) and (h) UST
System Design Requirements; 408.05(f) Permanent Closure Required; Part
Env-Or 409 Waivers.
(B) [Reserved]
(2) Statement of legal authority. The Attorney General's
Statements, signed by the Attorney General of New Hampshire on November
1, 1990, and June 3, 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.
(3) Demonstration of procedures for adequate enforcement. The
``Demonstration of Procedures for Adequate Enforcement'' submitted as
part of the original application on January 8, 1991, and as part of the
program revision application for approval on June 24, 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 original application on January 8,
1991, and as part of the program revision application on June 24, 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 1 and the New Hampshire Department of Environmental
Services, signed by the EPA Regional Administrator on February 12, 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.
0
3. Appendix A to part 282 is amended by revising the entry for New
Hampshire to read as follows:
Appendix A to Part 282--State Requirements Incorporated by Reference in
Part 282 of the Code of Federal Regulations
* * * * *
New Hampshire
(a) The statutory provisions include:
1. New Hampshire Revised Statutes Annotated, Title I, The State and
its Government, Chapter 21-O Department of Environmental Services
Section O:1. Establishment, General Functions; Section O:8
Division of Waste Management.
2. New Hampshire Revised Statutes Annotated, Title VI, Public
Officers and Employees, Chapter 91-A Access to Government Records
and Meetings
Section 91-A:1 Preamble, Section 91-A:1-a Definitions, Section
91-A:4 Minutes and Records Available for Public Inspection.
3. New Hampshire Revised Statutes Annotated, Title X Public Health,
Chapter 146-C Underground Storage Facilities
Section 146-C:1 Definitions; Section 146-C:2 Discharges
Prohibited; Section 146-C:3 Registration of Underground Storage
Facilities; Section 146-C:4 Underground Storage Facility Permit
Required; Section 146-C:6 Transfer of Ownership; Section 146-C:6-a
Exemption; Section 146-C:7 New Facilities; Section 146-C:8
Prohibition Against Reusing Tanks; Section 146-C:17 Operator
Training Required; Section 146-C:18 Operator Training Program
Requirements; Section 146-C:19 Additional Operator Requirements;
Section 146-C:20 Revocation of Operator Training Program Approval;
Section 146-C:21 Repeating Operator Training.
[[Page 58633]]
4. New Hampshire Revised Statutes Annotated, Title L Water
Management and Protection, Chapter 485-C Groundwater Protection Act
Section 485-C:1 Statement of Purpose, Section 485-C:2
Definitions, Section 485-C:3 Duties of the Department, Section 485-
C:5 Classes of Groundwater, Section 485-C:6 Ambient Groundwater
Quality Standards, Section 485-C:6-a Groundwater Management Zones,
Section 485-C:6-b Recordation of Groundwater Management Zone
Permits, Section 485-C:7 Potential Contamination Sources, Section
485-C:8 Inventory and Management, Section 485-C:9 Procedures for
Classification and Reclassification, Section 485-C:10 Degraded
Groundwater, Section 485-C:11 Best Management Practices, Section
485-C:12 Prohibited Uses, Section 485-C:13 Groundwater Release
Detection Permit, Section 485-C:14 Notice to Municipality, Section
485-C:14-b Notification of Groundwater Contamination Required.
(b) The regulatory provisions include:
1. New Hampshire Code of Administrative Rules, Chapter Env-Or 400
Underground Storage Tank Facilities: (Effective October 10, 2018)
Part Env-Or 401 Purpose, Applicability, Federal Regulations;
Section 401.01 Purpose; Section 401.02 Applicability; Section 401.03
Exclusions, except 401.03(b); Section 401.04 Date of Incorporated
Federal Regulations;
Part Env-Or 402 Definitions;
Part Env-Or 403 Reference Standards; Section 403.01 Availability
and Applicability of Reference Standards; Section 403.02 American
Petroleum Institute, Section 403.03 ASME International, Section
403.04 Fiberglass Tank and Pipe Institute, Section 403.05 NACE
International, Section 403.06 National Fire Protection Association,
Section 403.07 Petroleum Equipment Institute.
Part Env-Or 404 Registration; Permit to Operate; Required
Notifications and Records; Financial Responsibility; Section 404.01
Registration; Section 404.02 Change from Use Not Previously Covered
to Covered Use; Section 404.03 Change in Product; Section 404.04
Additional Information Required for Registration; Section 404.05
Signature Required, except 404.05(b)(3); Section 404.06 Permit to
Operate Required; Section 404.07 Obtaining a Permit to Operate;
Section 404.08 Display, Applicability, and Validity of Permit to
Operate; Section 404.09 Records to be Maintained; Section 404.10
Transfer of Facility Ownership; Section 404.12 Financial
Responsibility, except 404.12(d)(4) and (m); Section 404.13 Owner
Liability.
Part Env-Or 405 Equipment Standards; Section 405.01 Tank
Standards for UST Systems; Section 405.02 Piping Standards for UST
Systems; Section 405.03 Secondary Containment for Tanks; Section
405.04 Secondary Containment and Sumps for Piping Systems; Section
405.05 Spill Containment, except 405.05(f) and (g);, and 405.12(a);
Section 405.06 Overfill Protection; Section 405.07 Dispensing Areas,
except for 405.07(a-c), (g), and (h); Section 405.08 Leak Monitoring
Systems for Tanks; Section 405.09 Leak Monitoring Systems for Piping
Systems; Section 405.10 Cathodic Protection Systems; Section 405.11
Changes to Cathodic Protection Systems.
Part Env-Or 406 Operation, Maintenance, and Testing; Section
406.01 On-Going Maintenance Required; Section 406.02 Operation and
Maintenance of Leak Monitoring Systems; Section 406.03 Delivery or
Transfer of Regulated Substances; Section 406.04 Unusual Operating
Conditions; Section 406.05 Requirements for Tightness Testers and
Test Methods; Section 406.06 Leak Rate Detection Criteria; Section
406.07 Requirements for Test Reports; Section 406.08 Test Failures;
Section 406.09 Automatic Line Leak Detector Testing; Section 406.10
Cathodic Protection System Testing; Section 406.11 Overfill
Prevention Device Testing; Section 406.12 Spill Containment
Integrity Testing, except 406.12(c); Section 406.13 Leak Monitoring
Equipment Testing; Section 406.14 Containment Sump Integrity
Testing; Section 406.15 Hydrostatic Testing Test for Sumps and Spill
Containment; Section 406.16 Pneumatic Tightness Test for Piping;
Section 406.17 Primary Containment System Testing; Section 406.18
Monthly, Bi-Monthly, and Annual Visual Inspections; Section 406.19
Reports of Visual Inspections.
Part Env-Or 407 Installation Requirements, Section 407.06(a) UST
System Design Requirements.
Part Env-Or 408 Repair, Closure, Removal; Section 408.01 Repair
of Tanks: Pre-Repair Considerations and Requirements; Section 408.02
Repair of Tanks: Post-Repair Requirements; Section 408.03 Repair and
Replacement of Underground Piping, Containment Sumps, and Spill
Containment; Section 408.04 Temporary Closure; Section 408.05
Permanent Closure Required, except 408.05(f); Section 408.06
Permanent Closure: Notification and Supervision Required; Section
408.07 Procedures for Permanent Closure; Section 408.08 Permanent
Closure: Site Assessment; Section 408.09 Permanent Closure:
Inspection Required; Section 408.10 Permanent
Closure: Closure Report, Recordkeeping; Section 408.11
Limitations on Re-Use of Tanks. APPENDIX A: State Statutes and
Federal Statutes/Regulation Implemented, APPENDIX B: Incorporation
by Reference Information, APPENDIX C: Statutory Definitions,
APPENDIX D: Excerpts from RSA 146-C, APPENDIX E: 40 CFR Provisions
Referenced.
2. New Hampshire Code of Administrative Rules, Chapter Env-Or 600
Contaminated Site Management: (Effective June 1, 2015)
Part Env-Or 601 Purpose and Applicability, Section 601.01
Purpose, Section 601.02 Applicability.
Part Env-Or 602 Definitions.
Part-Env-Or 603 Groundwater Quality Criteria, Section 603.01
Groundwater Quality Criteria, Section 603.02 Exemptions to
Groundwater Quality Criteria, Section 603.03 Ambient Groundwater
Quality Standards (AGQS).
Part Env-Or 604 Notification, Section 604.01 Purpose, Section
604.02 Notification of Groundwater Quality Violation, Section 604.03
Exemptions to Notification of Groundwater Quality Violation, Section
604.05 NAPL Notification, Section 604.06 Discharges of Oil Requiring
Immediate Notification, Section 604.07 Potential Discharges of Oil
Requiring Notification Within 60 Days, Section 604.08 Oil
Notification Requirements.
Part Env-Or 605 Preliminary Response Actions, Section 606.01
Purpose, Section 605.03 Emergency Response Actions for Oil
Discharges, Section 605.04 Initial Response Actions, Section 605.05
Emergency and Initial Response Action Approval, Section 605.06
Emergency and Initial Response Action Reporting Requirements,
Section 605.07 Initial Site Characterization Required, Section
605.08 Initial Site Characterization, Section 605.09 Initial Site
Characterization Report, Section 605.10 Investigation Due to
Discovery of Discharges from Unknown Sources.
Part Env-Or 606 Comprehensive Response Actions, Section 606.01
Site Investigation Required; Section 606.02 Site Investigation
Request, Exemptions; Section 606.03 Site Investigation Report ;
Section 606.04 Site Background Information; Section 606.05 Summary
of Subsurface Explorations and Sampling; Section 606.06 Site Geology
and Hydrology; Section 606.07 Conceptual Model; Section 606.08
Remedial Alternatives, Summary, and Recommendations; Section 606.09
Appendices; Section 606.10 Remedial Action Plan; Section 606.11
Remedial Action Plan Exemptions; Section 606.12 Remedial Action Plan
Report; Section 606.13 Remedial Action Plan Approval; Section 606.14
Corrective Action Prior to Remedial Action Plan Approval; Section
606.15 Remedial Action Implementation; Section 606.16 Design Plans
and Construction Specifications; Section 606.17 Remedial Action
Implementation Report; Section 606.18 Periodic Status Report;
Section 606.19 Soil Remediation Criteria; Section 606.20 Financial
Assurance; Section 606.21 Financial Assurance Mechanisms.
Part Env-Or 609 Certificates of Completion or No Further Action,
Section 609.01 Certificate of Completion, Section 609.02 Certificate
of No Further Action.
Part Env-Or 610 Monitoring and Reporting, Section 610.01
Applicability, Section 610.02 Sampling and Analysis, Section 610.03
Reporting, Section 610.04 Groundwater Monitoring Wells.
Part Env-Or 611 Contaminated Soil, Section 611.01 Requirements
for Managing Contaminated Soil, Section 611.02 Definitions, Section
611.03 Non-hazardous Oil-Contaminated Soil (NOCS) Certification,
Section 611.04 Contaminated Soil Sampling, Section 611.05
Contaminated Soil Storage, Section 611.06 Contaminated Soil Disposal
and Reuse.
Appendix A: State States and Federal Statutes/Regulations
Implemented; Appendix B: Incorporation by Reference Information;
Appendix C: Statutory Definitions.
* * * * *
[FR Doc. 2019-23709 Filed 10-31-19; 8:45 am]
BILLING CODE 6560-50-P