83 FR 55286 - Utah: Final Approval of State Underground Storage Tank Program Revisions, Codification and Incorporation by Reference

ENVIRONMENTAL PROTECTION AGENCY

Federal Register Volume 83, Issue 214 (November 5, 2018)

Pursuant to the Resource Conservation and Recovery Act (RCRA or Act), the Environmental Protection Agency (EPA) is taking direct final action to approve revisions to the State of Utah's Underground Storage Tank (UST) program submitted by the State. The EPA has determined that these revisions satisfy all requirements needed for program approval. This action also codifies the EPA's approval of Utah's state program and incorporates by reference those provisions of the State's regulations that we have determined meet the requirements for approval. The State's federally-authorized and codified UST program, as revised pursuant to this action, will remain subject to the EPA's inspection and enforcement authorities under sections 9005 and 9006 of RCRA subtitle I and other applicable statutory and regulatory provisions.

[Federal Register Volume 83, Number 214 (Monday, November 5, 2018)]
[Rules and Regulations]
[Pages 55286-55292]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-24062]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 282

[EPA-R08-UST-2018-0169; FRL-9982-18-Region 8]


Utah: Final Approval of State Underground Storage Tank Program 
Revisions, Codification and Incorporation by Reference

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: Pursuant to the Resource Conservation and Recovery Act (RCRA 
or Act), the Environmental Protection Agency (EPA) is taking direct 
final action to approve revisions to the State of Utah's Underground 
Storage Tank (UST) program submitted by the State. The EPA has 
determined that these revisions satisfy all requirements needed for 
program approval. This action also codifies the EPA's approval of 
Utah's state program and incorporates by reference those provisions of 
the State's regulations that we have determined meet the requirements 
for approval. The State's federally-authorized and codified UST 
program, as revised pursuant to this action, will remain subject to the 
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 January 4, 2019, unless the EPA receives 
adverse comment by December 5, 2018. If EPA receives adverse comment, 
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 January 4, 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 online instructions for submitting comments.
    2. Email: [email protected].
    3. Mail: Matthew Langenfeld, Region 8, Project Officer, UST, Solid 
Waste and PCB Unit, Resource Conservation and Recovery Program, Office 
of Partnerships and Regulatory Assistance (8P-R), EPA Region 8, 1595 
Wynkoop Street, Denver, Colorado 80202-1129.
    4. Hand Delivery or Courier: Deliver your comments to Matthew 
Langenfeld, Region 8, Project Officer, UST, Solid Waste and PCB Unit, 
Resource Conservation and Recovery Program, Office of Partnerships and 
Regulatory Assistance (8P-R), EPA Region 8, 1595 Wynkoop Street, 
Denver, Colorado 80202-1129.
    Instructions: Direct your comments to Docket ID No. EPA-R08-UST-
2018-0169. 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 http://www.regulations.gov 
website 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, the 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 the EPA cannot read your comment 
due to technical difficulties, and cannot contact you for 
clarification, the 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.
    You can view and copy the documents that form the basis for this 
action and associated publicly available materials from 8:30 a.m. to 
4:00 p.m. Monday through Friday at the following location: EPA Region 
8, 1595 Wynkoop Street, Denver, Colorado 80202-1129, phone number (303) 
312-6284. Interested persons wanting to examine these documents should 
make an appointment with the office at least 2 days in advance.

FOR FURTHER INFORMATION CONTACT: Matthew Langenfeld, (303) 312-6284, 
[email protected]. To inspect the hard copy materials, please 
schedule an appointment with Matthew Langenfeld at (303) 312-6284.

SUPPLEMENTARY INFORMATION:

I. Approval of Revisions to Utah's Underground Storage Tank Program

A. Why are revisions to state programs necessary?

    States which 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 underground storage tank 
program. When the 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. 
Most commonly, states must change their programs because of changes to 
the EPA's regulations in 40 Code of Federal Regulations (CFR) part 280. 
States can also initiate changes on their own to their underground 
storage tank program and these changes must then be approved by the 
EPA.

B. What decisions has the EPA made in this rule?

    On February 28, 2018, in accordance with 40 CFR 281.51(a), Utah 
submitted a complete program revision application seeking the EPA 
approval for its UST program revisions (State Application). Utah'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 from the Governor 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 Utah's UST program are equivalent to, consistent with, and no less 
stringent

[[Page 55287]]

than the corresponding federal requirements in subpart C of 40 CFR part 
281, and that the Utah program provides for adequate enforcement of 
compliance (40 CFR 281.11(b)). Therefore, the EPA grants Utah 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 action on the regulated community?

    This action does not impose additional requirements on the 
regulated community because the regulations being approved by this rule 
are already in effect in the State of Utah, and 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?

    The EPA is publishing this direct final rule without a prior 
proposed rule because we view this as a noncontroversial action and we 
anticipate no adverse comment. Utah did not receive any comments during 
its comment period when the rules and regulations being considered 
today were proposed at the state level.

E. What happens if the EPA receives comments that oppose this action?

    Along with this direct final rule, the EPA is publishing a separate 
document in the ``Proposed Rules'' section of this Federal Register 
that serves as the proposal to approve the State's UST program 
revisions, and provides an opportunity for public comment. If EPA 
receives comments that oppose this approval, the EPA will withdraw this 
direct final rule by publishing a document in the Federal Register 
before it becomes effective. The EPA will base any further decision on 
approval of the State Application after considering all comments 
received during the comment period. The 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 Utah previously been approved?

    On April 7, 1995, the EPA finalized a rule approving the UST 
program that Utah proposed to administer in lieu of the federal UST 
program. On December 5, 1995, the EPA codified the provisions of the 
approved Utah program that are part of the underground storage tank 
program under subtitle I of RCRA, and therefore are subject to the 
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 and what standards do 
we use for review?

    In order to be approved, each state program application must meet 
the general requirements in 40 CFR 281.11, and specific requirements in 
40 CFR Subpart B (Components of a Program Application); Subpart C 
(Criteria for No Less Stringent); and Subpart D (Adequate Enforcement 
of Compliance). This also is true for proposed revisions to approved 
state programs.
    As more fully described below, the State has made the changes to 
its approved UST program to reflect the 2015 Federal Revisions. The EPA 
is approving the State's changes because they are equivalent to, 
consistent with, and no less stringent than the federal UST program and 
because the EPA has confirmed that the Utah UST program will continue 
to provide for adequate enforcement of compliance as described in 40 
CFR 281.11(b) and part 281, Subpart D after this approval.
    The Utah Department of Environmental Quality (DEQ), Division of 
Environmental Response and Remediation (DERR) is the lead implementing 
agency for the UST program in Utah, except in Indian country.
    The DERR continues to have broad statutory authority to regulate 
the installation, operation, maintenance, and closure of USTs, as well 
as UST releases under Utah Statutes (2018), Title 19, Chapter 6, Part 
4--Underground Storage Tank Act, Sections 401-429. The Utah UST Program 
gets its enforcement authority from the powers and duties of the DERR 
Director (Director) found in Title 19, Chapter 6, Part 4, Sections 
404(f), 404(j) and 425(2). Under Title 19, Chapter 6, Part 4, Section 
404(k) the Director is authorized to require an owner to furnish 
records, conduct monitoring or testing, and provide access to tanks. 
The Director is authorized to issue a Notice of Intent to Revoke and 
Order to Revoke Certificates of Compliance under Title 19, Chapter 6, 
Part 4, Section 414. Certificates of Compliance lapse automatically if 
annual registration fees are not paid under Title 19, Chapter 6, Part 
4, Section 408(5)(c). Penalties for non-compliance with Utah's UST Act 
may be assessed under Title 19, Chapter 6, Part 4, Section 425(1). A 
delivery prohibition tag may be placed on a tank for failure to have a 
certificate of compliance, spill and overfill prevention, and required 
tank and/or piping leak detection or corrosion protection.
    Specific authorities to regulate the installation, operation, 
maintenance, and closure of USTs, as well as UST releases are found 
under Utah Administrative Code (UAC), as amended effective January 1, 
2017, R311-200 through R311-212, Underground Storage Tanks; Reporting 
and recordkeeping requirements are found under UAC R311-202-280.34; 
Environmental Quality Administrative Rules are found under UAC, as 
amended February 1, 2018, R305-1 through R305-9; and maintenance and 
management of records for individual sites and projects is required 
under Utah Statutes (2008), Title 63G, Chapter 2, Part 1 through Part 
9. The aforementioned statutory sections and regulations satisfy the 
requirements of 40 CFR 281.40 and 281.41.
    Through a Memorandum of Agreement between the State of Utah and the 
EPA, effective June 27, 2017, the State maintains procedures for 
receiving and ensuring proper consideration of information about 
violations submitted by the public. The State agrees to comply with 
public participation provisions contained in 40 CFR 281.42 including 
the provision that the State will not oppose intervention under Rule 
24(a)(2) of the Utah Rules of Civil Procedure on the grounds that the 
applicant's interest is adequately represented by the State. Utah has 
met the public participation requirements found in 40 CFR 281.42.
    To qualify for final approval, revisions to a state's program must 
be ``equivalent to, consistent with, and no less stringent'' than the 
2015 Federal Revisions. In the 2015 Federal Revisions the EPA addressed 
UST systems deferred in the 1988 UST regulations, and added, among 
other things, new operation and maintenance requirements; secondary 
containment requirements for new and replaced tanks and piping; 
operator training requirements; and a requirement to ensure UST system 
compatibility before storing certain biofuel blends. In addition, the 
EPA removed past deferrals for emergency generator tanks, field 
constructed tanks, and airport hydrant systems. The EPA analyzes 
revisions to approved state programs pursuant to the criteria found in 
40 CFR 281.30 through 281.39.
    The DERR has revised its regulations to help ensure that the 
State's UST program revisions are equivalent to,

[[Page 55288]]

consistent with, and no less stringent than the 2015 Federal Revisions. 
In particular, the DERR has amended Utah Administrative Code R311-202-1 
to incorporate by reference (into the Utah regulations) the 
requirements of 40 CFR part 280, including the requirements added by 
the 2015 Federal Revisions, except for 40 CFR Subpart J (Operator 
Training) and the definitions of Class A, B and C operators. (We note 
that R311-206-2(a)(2) also incorporates by reference the necessary 
requirements for financial responsibility for UST systems.) The State, 
therefore, has ensured that the criteria found in 40 CFR 281.30 through 
281.38 are met.
    Title 40 CFR 281.39 describes the state operator training 
requirements that must be met in order to be considered equivalent to, 
consistent with, and no less stringent than federal requirements. Utah 
did not incorporate by reference federal requirements for operator 
training, and has promulgated and is implementing its own operator 
training provisions under Utah Administrative Code R311-201-12. After a 
thorough review, the EPA has determined that Utah's operator training 
requirements are equivalent to, consistent with, and no less stringent 
than federal requirements.
    As part of the State Application the Utah Attorney General 
certified that the State revisions meet the requirements ``equivalent 
to, consistent with, and no less stringent'' criteria in 40 CFR 281.30 
through 281.39. The EPA is relying on this certification in addition to 
the analysis submitted by the State in making our determination.
    For further information on the EPA's analysis of the State's 
application, see the chart in the Technical Support Document (TSD) 
contained in the docket for this rulemaking.

H. Where are the revised rules different from the Federal rules?

Broader in Scope Provisions
    Where an approved state program has a greater scope of coverage 
than required by federal law, the additional coverage is not part of 
the federally-approved program and are not federally enforceable. (40 
CFR 281.12(a)(3)(ii)) The following statutory and regulatory 
requirements are considered broader in coverage than the federal 
program as these state-only regulations are not required by federal 
regulation and are implemented by the State in addition to the 
federally approved program:
    Utah Administrative Code R311-206-2(a)(1) and (b) allows owners and 
operators, meeting requirements for participation, to use the State-
only Environmental Assurance Program to demonstrate financial 
assurance.
    Under Utah Statutes, Title 19, Chapter 6, Part 4--Underground 
Storage Tank Act, Section 412(6), certificates of compliance are 
required to operate regulated UST systems and are issued by the State 
for facilities that are registered, have financial assurance, comply 
with federal and state rules, and meet tank testing requirements. Under 
Utah Statutes, Title 19, Chapter 6, Part 4--Underground Storage Tank 
Act, Section 411(7), the DERR Director shall issue certificates of 
compliance and the Waste Management and Radiation Control Board shall 
make rules for identifying USTs that do not qualify for a certificate 
of compliance.
    Under Utah Administrative Code R311-201-2, Utah requires that UST 
consultants, inspectors, testers, installers, removers, and groundwater 
and soil samplers be certified by the State. Under Utah Administrative 
Code R311-201-2, Utah allows individuals to apply for certification, 
and under Utah Administrative Code R311-201-4, Utah lists eligibility 
requirements for certification of UST consultants, inspectors, testers, 
and installers. Under Utah Administrative Code R311-203-3, Utah 
requires certified installers to pay a permit fee for installation at 
facilities that do not qualify for a certificate of compliance and to 
notify the DERR Director of the completion of installation. Under Utah 
Administrative Code R311-201-5 through 10, Utah allows for renewal of 
certificates, provides standards of performance, gives the DERR 
Director the ability to deny certification, and allows for appeal, 
inactivation, revocation, and reciprocity.
    Under Utah Administrative Code R311-203-3, Utah requires installers 
to provide notification to the State 10 days prior to installation of 
UST systems and components, and requires an UST installation permit 
fee. Under Utah Administrative Code R311-203-4, Utah requires UST 
registration fees.
More Stringent Provisions
    Where an approved state program includes requirements that are 
considered more stringent than required by federal law, the more 
stringent requirements become part of the federally approved program. 
(40 CFR 281.12(a)(3)(ii))
    The following statutory and regulatory requirements are considered 
more stringent than the federal program, and on approval, they become 
part of the federally approved program and are federally enforceable:
    Under Utah Administrative Code R311-201-12(f), Utah requires third-
party Class B operators to be certified as UST testers, installers, or 
meet the requirements of certified UST inspectors. Under Utah 
Administrative Code R311-203-5, Utah requires that UST testers report 
test results. Under Utah Administrative Code R311-203-7(a), Utah 
requires that walkthrough inspections conducted under 40 CFR 280.36 be 
conducted by or under the direction of a Class B Operator. Under Utah 
Administrative Code R311-203-7(c), Utah requires UST facilites with 
temporarily closed tanks to conduct annual operator inspections. Under 
Utah Administrative Code R311-211-12(h)(2) and (3), Utah requires Class 
A and B operators to submit a registration application to the DERR 
Director, documenting proper training with its renewal registration 
application prior to expiration of their existing certification.

I. How does this action affect Indian country (18 U.S.C. 1151) in Utah?

    The EPA's approval of Utah's Program does not extend to Indian 
country as defined in 18 U.S.C. 1151. Indian country generally includes 
lands within the exterior boundaries of the following Indian 
reservations located within Utah: The Washakie Reservation 
(Northwestern Band of the Shoshone Nation), reservation lands of the 
Paiute Indian Tribe of Utah (Cedar Band of Paiutes, Kanosh Band of 
Paiutes, Koosharem Band of Paiutes, Indian Peaks Band of Paiutes, and 
Shivwits Band of Paiutes), the Skull Valley Indian Reservation, the 
Uintah & Ouray Reservation, the Goshute Reservation, and the Navajo 
Nation; any land held in trust by the United States for an Indian 
tribe; and any other areas that are ``Indian country'' within the 
meaning of 18 U.S.C. 1151. Any lands removed from an Indian reservation 
status by federal court action are not considered reservation lands 
even if located within the exterior boundaries of an Indian 
reservation. The EPA will retain responsibilities under RCRA for 
underground storage tanks in Indian country. Therefore, this action has 
no effect in Indian country. See 40 CFR 281.12(a)(2).

II. Codification

A. What is codification?

    Codification is the process of placing a state's statutes and 
regulations that comprise the state's approved UST program into the 
CFR. Section 9004(b) of RCRA, as amended, allows the EPA to approve 
State UST programs to operate in lieu of the federal program.

[[Page 55289]]

The EPA codifies its authorization of state programs in 40 CFR part 282 
and incorporates by reference state regulations that the EPA will 
enforce under sections 9005 and 9006 of RCRA and any other applicable 
statutory provisions. The incorporation by reference of state 
authorized programs in the CFR should substantially enhance the 
public's ability to discern the current status of the approved state 
program and state requirements that can be federally enforced. This 
effort provides clear notice to the public of the scope of the approved 
program in each state.

B. What is the history of codification of Utah's UST program?

    The EPA incorporated by reference and codified Utah's then-approved 
UST program in 40 CFR 282.94, effective April 7, 1995 (60 FR 12709; 
March 8, 1995). Through this action, the EPA is incorporating by 
reference and codifying Utah's state program in 40 CFR 282.94 to 
include the approved revisions.

C. What codification decisions have we made in this rule?

    In this rule, we are finalizing the federal regulatory text that 
incorporates by reference the federally authorized Utah UST Program. In 
accordance with the requirements of 1 CFR 51.5, we are finalizing the 
incorporation by reference of the Utah rules 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 8 office (see the ADDRESSES 
section of this preamble for more information).
    One purpose of this Federal Register document is to codify Utah's 
approved UST program. The codification reflects the State program that 
would be in effect at the time the EPA's approved revisions to the Utah 
UST program addressed in this direct final rule become final. If, 
however, the EPA receives substantive comment on the proposed rule then 
this codification will not take effect, and the State rules that are 
approved after the EPA considers public comment will be codified 
instead. By codifying the approved Utah program and by amending the 
Code of Federal Regulations (CFR), the public will more easily be able 
to discern the status of the federally-approved requirements of the 
Utah program.
    The EPA is incorporating by reference the Utah approved UST program 
in 40 CFR 282.94. Section 282.94(d)(1)(ii)(B) incorporates by reference 
for enforcement purposes the State's regulations. Section 282.94 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.

D. What is the effect of EPA's codification of the federally authorized 
State UST Program on enforcement?

    The EPA retains the authority under sections 9003(h), 9005 and 9006 
of subtitle I of RCRA, 42 U.S.C. 6991b(h), 6991d and 6991e, and other 
applicable statutory and regulatory provisions to undertake corrective 
action, inspections, and enforcement actions, and to issue orders in 
approved States. If the EPA determines it will take such actions in 
Utah, the EPA will rely on federal sanctions, federal inspection 
authorities, and other federal procedures rather than the state 
analogs. Therefore, though the EPA has approved the State procedures 
listed in 40 CFR 282.94(d)(1)(ii), the EPA is not incorporating by 
reference Utah's procedural and enforcement authorities.

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 coverage'' 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 coverage than the federal program, those 
provisions are not a part of the federally approved program. As a 
result, State provisions which are ``broader in coverage'' than the 
federal program are not incorporated by reference for purposes of 
enforcement in part 282. Title 40 CFR 282.94(d)(1)(iii) lists for 
reference and clarity the Utah statutory and regulatory provisions 
which are ``broader in coverage'' than the federal program and which 
are not, therefore, part of the approved program being codified today. 
Provisions that are ``broader in coverage'' cannot be enforced by EPA; 
the State, however, will continue to implement and enforce such 
provisions under State law.

III. Statutory and Executive Order (E.O.) Reviews

    This action only applies to Utah's UST Program requirements 
pursuant to RCRA Section 9004 and imposes no requirements other than 
those imposed by State law. It complies with applicable 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, Oct. 4, 
1993) and 13563 (76 FR 3821, Jan. 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 Utah'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, Aug. 10, 1999), because it merely approves and codifies state 
requirements as part of the State RCRA Underground Storage Tank Program

[[Page 55290]]

without altering the relationship or the distribution of power and 
responsibilities established by RCRA.

E. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    This action also is not subject to Executive Order 13045 (62 FR 
19885, Apr. 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 (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), the 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 the 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, the 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

    The EPA has complied with Executive Order 12630 (53 FR 8859, Mar. 
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, Feb. 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, consistent with, 
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. The 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 January 4, 2019 because it is a direct 
final rule.

    Authority: This rule is issued under the authority of Sections 
2002(a), 7004(b), and 9004, 9005 and 9006 of the Solid Waste 
Disposal Act, as amended, 42 U.S.C. 6912(a), 6974(b), and 6991c, 
6991d, and 6991e.

List of Subjects in 40 CFR Part 282

    Environmental protection, Administrative practice and procedure, 
Hazardous substances, Incorporation by reference, State program 
approval, and Underground storage tanks.

    Dated: October 26, 2018.
Douglas Benevento,
Regional Administrator, EPA Region 8.

    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.  282.94 to read as follows:


Sec.  282.94  Utah State-Administered Program.

    (a) History of the approval of Utah's Program. The State of Utah 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 Utah 
Department of Environmental Quality (DEQ), Division of Environmental 
Response and Remediation (DERR), was approved by EPA pursuant to 42 
U.S.C. 6991c and Part 281 of this Chapter. EPA published the notice of 
final determination approving the Utah underground storage tank base 
program effective on April 7, 1995. A subsequent program revision 
application was approved by EPA and became effective on January 4, 
2019.
    (b) Enforcement authority. Utah has primary responsibility for 
administering and enforcing its federally approved underground storage 
tank program. However, EPA retains the authority to exercise its 
corrective action, inspection, and enforcement authorities under 
sections 9003(h), 9005, and 9006 of subtitle I of RCRA, 42 U.S.C. 
6991b(h),6991d and 6991e, as well as under any other applicable 
statutory and regulatory provisions.
    (c) To retain program approval, Utah 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 Utah 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) Utah has final approval for the following elements of its 
program

[[Page 55291]]

application originally submitted to EPA and approved effective April 7, 
1995, and the program revision application approved by EPA effective on 
January 4, 2019:
    (1) State statutes and regulations--(i) Incorporation by reference. 
The Utah provisions cited in this paragraph, and listed in Appendix A 
to part 282, are incorporated by reference as part of the underground 
storage tank program under subtitle I of RCRA, 42 U.S.C. 6991 et seq. 
The Director of the Federal Register approves this incorporation by 
reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. You may 
obtain copies of the Utah regulations that are incorporated by 
reference in this paragraph from Utah's Office of Administrative Rules, 
Office Coordinator, P.O. Box 141007, Salt Lake City, UT 84114-1007; 
Phone number: 801-538-3003; website: https://rules.utah.gov/publications/utah-adm-code/. You may inspect all approved material at 
the EPA Region 8, 1595 Wynkoop Street, Denver, Colorado 80202 (Phone 
number (303) 312-6284 or the National Archives and Records 
Administration (NARA). For information on the availability of the 
material at NARA, call 202-741-6030 or go to http://www.archives.gov/federal-register/cfr/ibr-locations.html.
    (A) Utah 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 provide the legal basis for the State's 
implementation of the underground storage tank program, but they are 
not being incorporated by reference and do not replace Federal 
authorities:
    (A) The statutory provisions include: Utah Code (May 8, 2018), 
Title 19, ``Environmental Quality Code,'' Chapter 6, ``Hazardous 
Substances,'' Part 4 ``Underground Storage Tank Act'': Sections 19-6-
402 (14); 19-6-404(2)(f), (j), and (m); 19-6-407(2); 19-6-414; 19-6-
416; 19-6-418; 19-6-420(2), (4)(a), (5)(b), (8), and (9)(b); 19-6-
424.5; 19-6-425; 19-6-426(5) and (6); 19-6-427, and 19-5-429(1).
    (B) The regulatory provisions include:
    (1) Utah Administrative Code (January 1, 2017), Title 311: 
``Environmental Quality, Environmental Response and Remediation'': 
Sections R311-206-7(a) and (f); R311-208-1 through R311-208-5.
    (2) Utah Administrative Code (January 1, 2017), Title 305: 
``Environmental Quality, Administrative Procedures'': Sections R305-7-
101 through R305-7-113; R305-7-200 through R305-7-217; R305-7-301 
through R305-7-320; R305-7-401 through R305-7-403; R305-7-501 through 
R305-7-503; and R305-7-601 through R305-7-623.
    (iii) Provisions not incorporated by reference. The following 
specifically identified sections and rules applicable to the Utah 
underground storage tank program that are broader in coverage than the 
federal program, are not part of the approved program, and are not 
incorporated by reference herein for enforcement purposes:
    (A) Utah Code (May 8, 2018), Title 19: ``Environmental Quality 
Code,'' Chapter 6, ``Hazardous Substances,'' Part 4 ``Underground 
Storage Tank Act'': Sections 19-6-412(6); and 19-6-411(7).
    (B) Utah Administrative Code (January 1, 2017), Title 311: 
``Environmental Quality, Environmental Response and Remediation'': 
Sections R311-201-2; R311-201-4; R311-201-5 through 10; R311-203-3(b), 
(c) and (g); R311-203-4; R311-206-2(a)(1), (b) and (c); and R311-206-
8(a)(1)--(4) and (f)(1)(A).
    (2) Statement of legal authority. The Attorney General's 
Statements, signed by the Assistant Attorney General and Director of 
the Environment and Health Division of the Utah Attorney General's 
Office of the State of Utah on October 2, 2017, 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 February 28, 2018, though not 
incorporated by reference, is referenced as part of the approved 
underground storage tank program under subtitle I of RCRA, 42 U.S.C. 
6991 et seq.
    (4) Program description. The program description and any other 
material submitted as part of the original application on February 28, 
2018, 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 8 and the Utah Department of Environmental Quality, signed 
by the EPA Acting Regional Administrator on July 27, 2017, 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 Utah to 
read as follows:

Appendix A to Part 282--State Requirements Incorporated by Reference in 
Part 282 of the Code of Federal Regulations

* * * * *

Utah

    (a) The statutory provisions include: Utah Code, Title 19: 
``Environmental Quality Code,'' Chapter 1, ``General Provisions, 
Part 2, Powers,'' (May 8, 1991) and Chapter 6, ``Hazardous 
Substances, Part 4, Underground Storage Tank Act'' (May 8, 2018):
    Section 19-1-203, Representatives of department authorized to 
enter regulated premises.
    Section 19-6-402, Definitions, except (3), (4), (8), (9), (11), 
(14), (15), (20), (23) and (26).
    Section 19-6-402.5, Retroactive effect.
    Section 19-6-403, Powers and duties of board, except (1)(a)(i), 
(1)(a)(vi) and (1)(a)(vii).
    Section 19-6-404, Powers and duties of director, except 2(c), 
2(f), 2(j) and 2(m).
    Section 19-6-407, Underground storage tank registration--Change 
of ownership or operation--civil penalty, except (2) and (3).
    Section 19-6-413, Tank tightness test--Action required after 
testing.
    Section 19-6-420 Abatement actions--Corrective actions, except 
(1) through (3)(b), (4)(a), (5)(b) and (c), (6), and 9(b).
    (b) Administrative Rules of the State of Utah, Title 311 
Environmental Quality, Environmental Response and Remediation, Utah 
Administrative Code (April 1, 2018):
    (1) Section R311-200-1, Underground Storage Tanks: Definitions, 
except (b)(2), (b)(5), (b)(6), (b)(7), (b)(10), (b)(11), (b)(12), 
(b)(13), (b)(20), (b)(22), (b)(28), (b)(34), (b)(38), (b)(44), 
(b)(45), (b)(49), (b)(51), (b)(55), (b)(56), (b)(58), and (b)(59).
    Section R311-201-1, Underground Storage Tanks: Definitions, 
except those definitions listed as excepted under R311-200-1.
    Section R311-201-12, Underground Storage Tanks: Certification 
Programs and UST Operator Training, UST Operator Training and 
Registration, except (d)(2) and (f).
    Section R311-202-1, Federal Underground Storage Tank 
Regulations, Incorporation by reference, except (a), (b), (c), and 
(d).
    Section R311-203-1, Underground Storage Tanks: Technical 
Standards, Definitions, except those definitions listed as excepted 
under R311-200-1.
    Section R311-203-2, Notification.
    Section R311-203-3, New installations, permits, except (b), (c), 
and (g).
    Section R311-203-5, UST testing requirements.
    Section R311-203-6, Secondary containment and under-dispenser 
containment.
    Section R311-203-7, Operator inspections.
    Section R311-203-8, Unattended facilities.
    Section R311-204-1, Underground Storage Tanks: Closure and 
Remediation, Definitions, except those definitions listed as 
excepted under R311-200-1.

[[Page 55292]]

    Section R311-204-2, Underground Storage Tank Closure Plan.
    Section R311-204-3, Disposal.
    Section R311-204-4, Closure notice.
    Section R311-205-1, Underground Storage Tanks: Site Assessment 
Protocol, Definitions, except those definitions listed as excepted 
under R311-200-1.
    Section R311-205-2, Site assessment protocol.
    Section R311-206-1, Underground Storage Tanks: Certificate of 
Compliance and Financial Assurance Mechanisms, Definitions, except 
those definitions listed as excepted under R311-200-1.
    Section R311-206-2, Declaration of financial assurance 
mechanisms, except (a)(1), (b), and (c).
    Section R311-206-3, Requirements for issuance of certificates of 
compliance, except (7) and (8).
    Section R311-206-5, Requirements for owners and operators 
demonstrating financial assurance by other methods, except (b) and 
(b)(2).
    Section R311-206-8, Delivery prohibition, except (a)(1)--(4) and 
(f)(1)(A).
    (c) Copies of the Utah regulations that are incorporated by 
reference are available from the Utah's Office of Administrative 
Rules, Office Coordinator, P.O. Box 141007, Salt Lake City, UT 
84114-1007; Phone number: 801-538-3003; website: https://rules.utah.gov/publications/utah-adm-code/.

[FR Doc. 2018-24062 Filed 11-2-18; 8:45 am]
 BILLING CODE 6560-50-P