Kansas: Final Approval of State Underground Storage Tank Program Revisions, Codification, and Incorporation by Reference, 49253-49259 [2021-18914]
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PART 52—APPROVAL AND
PROMULGATION OF
IMPLEMENTATION PLANS
List of Subjects in 40 CFR Part 52
■
Environmental protection, Air
pollution control, Incorporation by
reference, Nitrogen Dioxide,
Intergovernmental Relations, Ozone,
Reporting and recordkeeping
requirements, Volatile Organic
Compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: August 27, 2021.
Walter Mugdan,
Acting Regional Administrator, Region 2.
Part 52, chapter I, title 40 of the Code
of Federal Regulations is amended as
follows:
49253
1. The authority citation for part 52
continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart HH—New York
2. In § 52.1670, the table in paragraph
(e) is amended by adding entries for
‘‘Section 110(a)(2)
Infrastructure Requirements for the
2015 ozone NAAQS’’ and ‘‘Section
110(a)(2)(G)
Infrastructure Requirements for the
2015 ozone NAAQS’’ at the end of the
table to read as follows:
■
§ 52.1670
*
Identification of plan.
*
*
(e) * * *
*
*
EPA–APPROVED NEW YORK NONREGULATORY AND QUASI–REGULATORY PROVISION
New York
submittal date
EPA approval date
*
*
*
Section 110(a)(2) InfrastrucStatewide ...............................
ture Requirements for the
2015 Ozone NAAQS.
*
09/25/2018
*
9/2/2021, [insert Federal
Register citation].
Section 110(a)(2)(G) Infrastructure Requirements for
the 2015 Ozone NAAQS.
07/10/2019
9/2/2021, [insert Federal
Register citation].
Action/SIP element
Applicable geographic or
nonattainment area
Statewide ...............................
[FR Doc. 2021–18989 Filed 9–1–21; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 282
[EPA–R07–UST–2021–0345; FRL–8775–02–
R7]
Kansas: Final Approval of State
Underground Storage Tank Program
Revisions, Codification, and
Incorporation by Reference
Environmental Protection
Agency (EPA).
ACTION: Direct final rule.
AGENCY:
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 Kansas’s Underground Storage Tank
(UST) program submitted by the Kansas
Department of Health and Environment
(KDHE). This action also codifies EPA’s
approval of Kansas’s State program and
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SUMMARY:
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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 November
1, 2021, unless EPA receives adverse
comment by October 4, 2021. 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 November 1, 2021, 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:
https://www.regulations.gov. Follow the
on-line instructions for submitting
comments.
2. Email: mance.cassandra@epa.gov.
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Explanation
*
*
Full approval. This action addresses the following CAA
elements: 110(a)(2)(A), (B),
(C), (D)(i)(II), (D)(ii), (E),
(F), (H), (J), (K), (L), (M).
Full approval.
Instructions: Direct your comments to
Docket ID No. EPA–R07–UST–2021–
0345. EPA’s policy is that all comments
received will be included in the public
docket without change and may be
available online at https://
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 https://
www.regulations.gov, or email. The
Federal https://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 https://
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
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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. EPA encourages electronic
submittals, but if you are unable to
submit electronically, please reach out
to the EPA contact person listed in the
document for assistance.
Docket: All documents in the docket
are listed in the https://
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
restricted by statute. Publicly available
docket materials are available
electronically through
www.regulations.gov.
IBR and supporting material: You can
view and copy the documents that form
the basis for this codification and
associated publicly available materials
either through www.regulations.gov or
by contacting Cassandra Mance at (913)
551–7355 or mance.cassandra@epa.gov.
Out of an abundance of caution for
members of the public and our staff, the
EPA Region 7 office will be closed to the
public to reduce the risk of transmitting
COVID–19. Please call or email the
contact listed above if you need access
to material indexed but not provided in
the docket.
FOR FURTHER INFORMATION CONTACT:
Cassandra Mance, Tanks, Toxics, and
Pesticides Branch, Land, Chemical, and
Redevelopment Division, U.S.
Environmental Protection Agency,
Region 7, 11201 Renner Boulevard,
Lenexa, Kansas 66219; (913) 551–7355;
mance.cassandra@epa.gov.
SUPPLEMENTARY INFORMATION:
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I. Approval of Revisions to Kansas’s
Underground Storage Tank Program
A. Why are revisions to state programs
necessary?
States that have received final
approval from the EPA under 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
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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 February 11, 2021, in accordance
with 40 CFR 281.51(a), Kansas
submitted a complete program revision
application seeking the EPA approval
for its UST program revisions (State
Application). Kansas’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 Kansas’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 Kansas
program provides for adequate
enforcement of compliance (40 CFR
281.11(b)). Therefore, the EPA grants
Kansas 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 Kansas 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.
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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 rule, 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 Kansas previously been
approved?
On June 6, 1994, the EPA finalized a
rule approving the UST program,
effective July 6, 1994, to operate in lieu
of the Federal program. On September
27, 1994, effective November 28, 1994,
the EPA codified the approved Kansas
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 February 11, 2021, in accordance
with 40 CFR 281.51(a), Kansas
submitted a complete application for
final approval of its UST program
revisions adopted on July 6, 2020. The
EPA now makes an immediate final
decision, subject to receipt of written
comments that oppose this action, that
Kansas’s UST program revisions satisfy
all of the requirements necessary to
qualify for final approval. Therefore,
EPA grants Kansas final approval for the
following program changes:
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Required Federal element
Implementing State authority
40 CFR 281.30, New UST Systems and Notification ..............................
40 CFR 281.31, Upgrading Existing UST Systems .................................
40 CFR 281.32, General Operating Requirements .................................
40 CFR 281.33, Release Detection .........................................................
40 CFR 281.34, Release Reporting, Investigation, and Confirmation .....
40 CFR 281.35, Release Response and Corrective Action ....................
40 CFR 281.36, Out-of-service Systems and Closure ............................
40 CFR 281.37, Financial Responsibility for USTs Containing Petroleum.
40 CFR 281.39, Operator Training ..........................................................
40 CFR 281.41, Legal Authorities for Enforcement Response ...............
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
KDHE 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: Kansas Statutes
Annotated, Chapter 65, Article 34,
Section 100 et seq., and Kansas
Administrative Regulations, Chapter 28,
Article 44.
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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
pursuant to 40 CFR 281.12(a)(3)(ii):
Kansas statutes and regulations
include references to the aboveground
storage tank program, which is broader
in scope than the Federal program. KSA
65–34 Sections 105(a)(2), 105(a)(13),
106(a), 118, 129, and 130; KAR 28–44
Section 29.
Agreements between the secretary and
local governments or agencies to act as
the secretary’s agent in order to carry
out provisions of the Kansas Storage
Tank Act are broader in scope than the
Federal program. KSA 65–34
Section112.
Kansas statutory provisions related to
the petroleum storage tank release trust
funds, environmental assurance fee, and
storage tank fee fund are broader in
scope than the Federal program. KSA
65–34 Sections 114, 117, 119–125, and
128.
Kansas statutory provisions related to
the third-party liability insurance plan
and severability are broader in scope
than the Federal program. KSA 65–34
Sections 126 and 127.
Kansas statutory provisions related to
the UST redevelopment fund are
broader in scope. KSA 65–34 Sections
131–134.
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KAR
KAR
KAR
KAR
KAR
KAR
KAR
KAR
28–44
28–44
28–44
28–44
28–44
28–44
28–44
28–44
Sections 13; 14; 16; 17(a); 17(c); 19; 23; and 31.
Sections 16(a)–(b) and 31.
Sections 19 and 23.
Sections 23 and 31.
Section 24.
Section 25.
Sections 26 and 31.
Section 27.
KAR 28–44 Section 30.
KAR 28–44 Section 12.
Each person installing, removing, or
testing a UST or UST system must be
licensed in Kansas, submit
nonrefundable initial licensing and
annual renewal fees, and may have a
license suspended or revoked if the
requirements are not met. KSA 65–34
Sections 105(a)(8), 105(a)(11),
105(a)(12), 110, and 111; KAR 28–44
Sections 12(c), 12(d), 20, 21, and 22.
Each owner must obtain an
installation or modification permit from
the department before installing or
modifying a UST or UST system and
submit an installation application fee.
KSA 65–34 Sections 105(a)(10) and 106;
KAR 28–44 Sections 12(d) and 15.
Each owner of a UST must submit a
registration fee and an annual operating
fee for each tank. If an owner fails to
submit the completed registration
notification form or secure an annual
operating permit within the statespecified timeframe, the owner will be
assessed penalty fees. KSA 65–34
Section 105(a)(10); KAR 28–44 Sections
12(d), 17(b), 17(c) as it applies to
penalty fees, 17(d), 17(e), and 17(f).
Any owner or operator of a
nonregulated tank may register that tank
with the department for the purpose of
qualifying the owner or operator to
participate in the petroleum storage tank
release trust funds. KAR 28–44 Section
18.
More Stringent Provisions
The following 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 pursuant to 40
CFR 281.12(a)(3)(i):
UST systems with impressed current
cathodic protection systems must be
inspected every 30 days to ensure the
equipment is running properly. KAR
28–44 Section 19(a)(2).
In addition to the recordkeeping
requirements listed at 40 CFR 280.34(b),
owners and operators of UST systems
shall also maintain records on the drop
tickets for the preceding 12 months.
Kansas defines drop tickets as a bill of
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lading, invoice, or similar document
that reflects fuel delivery by a petroleum
transport company to a specific facility
and includes the deliverer’s name, the
delivery date, and the quantity
delivered. KAR 28–44 Sections 14(c)(1)
and 19(a)(8)(B)(iii).
Only field-constructed tanks and
airport hydrant fuel distribution systems
can use vapor monitoring as an
approved leak detection method. KAR
28–44 Section 23(e).
Groundwater monitoring is not an
approved leak detection method. KAR
28–44 Section 23(f).
Within 15 days of permanent closure,
each owner or operator shall ensure that
each contractor submits a completed
permanent tank abandonment form to
the department. KAR 28–44 Section
26(a)(3)(C).
No comparable exam is accepted for
operator training. KAR 28–44 Section
30(a)(1)(A).
Each Class A operator of a facility or
group of facilities shall reside or be
stationed within four hours of each
managed facility to respond to
emergencies as needed. KAR 28–44
Section 30(a)(1)(C).
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
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
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scope of the approved program in each
state.
B. What is the history of codification of
Kansas’s UST program?
EPA incorporated by reference the
KDHE approved UST program effective
November 28, 1994 (59 FR 186;
September 27, 1994). In this document,
EPA is revising 40 CFR 282.66 to
include the approved revisions.
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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 federally approved Kansas UST
program described in the amendments
to 40 CFR part 282 set forth below. The
EPA has made, and will continue to
make, this document generally available
through www.regulations.gov or by
contacting the EPA Region 7 contact
listed in the ADDRESSES section of this
preamble.
The purpose of this Federal Register
document is to codify Kansas’s
approved UST program. The
codification reflects the State program
that would be in effect at the time EPA’s
approved revisions to the Kansas UST
program addressed in this direct final
rule become final. The document
incorporates by reference Kansas’s UST
statutes and regulations and clarifies
which of these provisions are included
in the approved and federally
enforceable program. By codifying the
approved Kansas program and by
amending the CFR, the public will more
easily be able to discern the status of the
federally-approved requirements of the
Kansas program.
EPA is incorporating by reference the
Kansas approved UST program in 40
CFR 282.66. Section 282.66(d)(1)(i)
incorporates by reference for
enforcement purposes the State’s
statutes and regulations.
Section 282.66 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 Kansas’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
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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 Kansas procedural
and enforcement authorities. Section
282.66(d)(1)(ii) of 40 CFR lists those
approved Kansas 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. Section 281.12(a)(3)(ii) of 40 CFR
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 federal enforcement in part 282.
Section 282.66(d)(1)(iii) lists for
reference and clarity the Kansas
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 Kansas’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 Orders
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
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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. 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).
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
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.
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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) do not
apply.
H. 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.
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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. 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.
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K. 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 November 1, 2021
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 protection,
Administrative practice and procedure,
Confidential business information,
Hazardous substances, Incorporation by
reference, Insurance, Intergovernmental
relations, Oil pollution, Penalties,
Petroleum, Reporting and recordkeeping
requirements, Surety bonds, Water
pollution control, Water supply.
Dated: August 24, 2021.
Edward H. Chu,
Acting Regional Administrator, EPA Region
7.
For the reasons set forth in the
preamble, EPA is amending 40 CFR part
282 as follows:
PART 282—APPROVED
UNDERGROUND STORAGE TANK
PROGRAMS
1. The authority citation for part 282
continues to read as follows:
■
Authority: 42 U.S.C. 6912, 6991c, 6991d,
and 6991e.
■
2. Revise § 282.66 to read as follows:
§ 282.66 Kansas State-Administered
Program.
(a) History of the approval of Kansas’s
program. The State of Kansas 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
Kansas Department of Health and
Environment, was approved by EPA
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49257
pursuant to 42 U.S.C. 6991c and part
281 of this Chapter. EPA approved the
Kansas program on June 6, 1994, and it
was effective on July 6, 1994. A
subsequent program revision
application was approved by EPA and
became effective on November 1, 2021.
(b) Enforcement authority. Kansas 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) Retaining program approval. To
retain program approval, Kansas 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 Kansas 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) Final program approval. Kansas
has final approval for the following
elements of its program application
originally submitted to EPA and
approved on June 6, 1994 and effective
July 6, 1994, and the program revision
application approved by EPA, effective
on November 1, 2021.
(1) State statutes and regulations—(i)
Incorporation by reference. The
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 Kansas regulations
and statutes that are incorporated by
reference in this paragraph from the
Kansas Department of Health and
Environment website at:
www.kdheks.gov/tanks/regs.html or the
KDHE Storage Tank Section, 1000 SW
Jackson, Suite 410, Topeka, KS 66612;
Phone number: (785) 296–1678. You
may inspect all approved material at the
EPA Region 7 Office, 11201 Renner
Boulevard, Lenexa, KS 66219; Phone
Number: (913) 551–7355; or the
National Archives and Records
Administration (NARA), Email:
fedreg.legal@nara.gov, website: https://
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49258
Federal Register / Vol. 86, No. 168 / Thursday, September 2, 2021 / Rules and Regulations
www.archives.gov/federal-register/cfr/
ibr-locations.html.
(A) EPA-Approved Kansas Statutory
Requirements Applicable to the
Underground Storage Tank Program,
July 2015.
(B) EPA-Approved Kansas Regulatory
Requirements Applicable to the
Underground Storage Tank Program,
July 2020.
(ii) Legal basis. EPA evaluated the
following statutes, which provide the
legal basis for the State’s
implementation of the underground
storage tank program, but they are not
being incorporated by reference for
enforcement purposes and do not
replace Federal authorities: Kansas
Statutes Annotated, Chapter 65, Public
Health, Article 34, Kansas Storage Tank
Act, Sections: 108—Enforcement of act:
Duties of owner or operator; records,
reports, documents, other information;
109—Unlawful acts: penalties; and
113—Civil penalties and remedies for
violations.
(iii) Provisions not incorporated by
reference. The following statutory and
regulatory provisions are broader in
scope than the Federal program, are not
part of the approved program, and are
not incorporated by reference in this
section for enforcement purposes:
(A) Kansas Statutes Annotated,
Chapter 65, Public Health, Article 34,
Kansas Storage Tank Act, Sections:
105(a)(2) and 105(a)(13) as they apply to
aboveground storage tanks; 105(a)(8) as
it applies to tank tightness tester
qualifications; 105(a)(10) as it applies to
registration and permit fees; 105(a)(11)
and 105(a)(12) as they apply to licensing
tank installers and/or contractors and
fees for these licenses; 106 as it applies
to aboveground storage tanks and
permits to construct, install, or modify
storage tanks; 110 as it applies to
licensing tank installers and contractors;
111 as it applies to suspension of
licenses; 112 as it applies to agreements
between secretary and local
governments; 114 as it applies to the
underground petroleum storage tank
release trust fund; 117 as it applies to
the environmental assurance fee; 118 as
it applies to corrective action for
aboveground storage tanks; 119–125 as
they apply to the petroleum storage tank
release trust funds; 126 and 127 as they
apply to the third party liability
insurance plan; 128 as it applies to the
storage tank fee fund; 129 and 130 as
they apply to the aboveground
petroleum storage tank release trust
fund; 131–134 and 139 as they apply to
the UST redevelopment fund.
(B) Kansas Department of Health and
Environment Permanent Administrative
Regulations, Chapter 28, Article 44,
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Petroleum Products Storage Tanks,
Sections: 12(c) as it applies to the
suspension and revocation of licenses;
12(d) as it applies to fee payments; 15
as it applies to underground storage
tank installation or modification permits
and the fees for these permits; 17(b)–(f)
as they apply to the fees for
underground storage tank registration
and annual operating permits and the
associated penalties; 18 as it applies to
registration of non-regulated
underground storage tanks; 20–22 as
they apply to licensing underground
storage tank contractors, installers,
testers, and removers, fees for these
licenses, and the suspension or
revocation of tester licenses; 29 as it
applies to aboveground storage tanks.
(2) Statement of legal authority. The
‘‘Attorney General’s Letter of
Certification’’, signed by the Kansas
Attorney General on August 23, 1993,
and December 4, 2020, 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 Adequate
Enforcement Procedures’’ submitted as
part of the original application on July
2, 1992, and as part of the program
revision application on February 11,
2021, 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 July 2, 1992, and as part
of the program revision application on
February 11, 2021, 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 7 and the Kansas
Department of Health and Environment,
signed by the EPA Regional
Administrator on March 25, 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.
3. Appendix A to part 282 is amended
by revising the entry for ‘‘Kansas’’ to
read as follows:
■
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Appendix A to Part 282—State
Requirements Incorporated by
Reference in Part 282 of the Code of
Federal Regulations
*
*
*
*
*
Kansas
(a) The statutory provisions include Kansas
Statutes Annotated, 2015; Chapter 65, Public
Health; Article 34, Solid and Hazardous
Waste; Section 100 et seq., Kansas Storage
Tank Act:
Section 100 Statement of legislative
findings
Section 101 Citation of Act
Section 102 Definitions
Section 103 Exceptions to application of
Act
Section 104 Notification to department of
tank’s existence
Section 105 Rules and regulations, except
for 65–34, 105 (a)(2), the following words in
(a)(8), ‘‘including determination of the
qualifications of persons performing or
offering to perform such testing,’’ (a)(10),
(a)(11), (a)(12) and the following words in
(a)(13), ‘‘and aboveground storage tanks in
existence on July 1, 1992’’ and ‘‘and
aboveground storage tanks placed in service
prior to July 1, 1992’’
Section 106 Permit to construct, install,
modify, or operate storage tank, except the
following words in the title and (a),
‘‘construct, install, modify or’’ and ‘‘and any
aboveground storage tank registered with the
department on July 1, 1992,’’
Section 107 Evidence of financial
responsibility required; limitation of liability
Section 115 Liability for costs of
corrective action
Section 118 Corrective action; duties of
owners and operators; duties of Secretary;
consent agreement; contents, except for the
following words in (b), ‘‘or from the
aboveground fund, if the release was from an
aboveground petroleum storage tank.’’ and
‘‘or from the aboveground fund, if the release
was from an aboveground petroleum storage
tank.’’
Section 135 Underground storage tank
operators, training program, requirements
Section 138 Underground storage tank
systems; secondary containment
(b) The regulatory provisions include
Kansas Administrative Regulations, 2020;
Chapter 28, Department of Health and
Environment; Article 44, Petroleum Products
Storage Tanks:
Section 12 General provisions, except (c)
and (d)
Section 13 Program scope and interim
prohibition
Section 14 Definitions
Section 16 Underground storage tank
systems: Design, construction, installation,
modification, and notification
Section 17 Underground storage tank
registration and operating permit, except (b),
the following words in (c), ‘‘be assessed a
penalty fee of $50.00 for each tank if the
owner fails to’’, (d), (e), and (f)
Section 19 General operating
requirements
Section 23 Release detection
Section 24 Release reporting,
investigation, and confirmation
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Federal Register / Vol. 86, No. 168 / Thursday, September 2, 2021 / Rules and Regulations
Section 25 Release response and
corrective action for UST systems
Section 26 Out-of-service UST systems
and closure
Section 27 Financial responsibility
Section 30 Operating training and
requirements
Section 31 UST systems with fieldconstructed tanks and airport hydrant fuel
distribution systems
*
*
*
*
In accordance with § 679.20(d)(2), the
Administrator, Alaska Region, NMFS
(Regional Administrator), has
determined that the 2021 ‘‘other
rockfish’’ TAC in the Western and
Central Regulatory Areas of the GOA
will soon be reached. Therefore, NMFS
is requiring that ‘‘other rockfish’’ in the
Western and Central Regulatory Areas of
the GOA be treated as prohibited
species in accordance with § 679.21(b),
as described under § 679.21(a), for the
remainder of the year, except other
rockfish species in the Western and
Central Regulatory Areas of the GOA
caught by catcher vessels using hookand-line, pot, or jig gear as described in
§ 679.20(j).
*
[FR Doc. 2021–18914 Filed 9–1–21; 8:45 am]
BILLING CODE 6560–50–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 679
Classification
[Docket No. 210210–0018]
RTID 0648–XB388
Fisheries of the Exclusive Economic
Zone Off Alaska; ‘‘Other Rockfish’’ in
the Western and Central Regulatory
Areas of the Gulf of Alaska
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Temporary rule; closure.
AGENCY:
NMFS is prohibiting retention
of ‘‘other rockfish’’ in the Western and
Central Regulatory Areas of the Gulf of
Alaska (GOA). This action is necessary
to prevent exceeding the 2021 total
allowable catch of ‘‘other rockfish’’ in
the Western and Central Regulatory
Areas of the GOA.
DATES: Effective 1200 hours, Alaska
local time (A.l.t.), August 30, 2021,
through 2400 hours, A.l.t., December 31,
2021.
FOR FURTHER INFORMATION CONTACT:
Steve Whitney, 907–586–7228.
SUPPLEMENTARY INFORMATION: NMFS
manages the groundfish fishery in the
GOA exclusive economic zone
according to the Fishery Management
Plan for Groundfish of the Gulf of
Alaska (FMP) prepared by the North
Pacific Fishery Management Council
under authority of the MagnusonStevens Fishery Conservation and
Management Act. Regulations governing
fishing by U.S. vessels in accordance
with the FMP appear at subpart H of 50
CFR parts 600 and 679.
The 2021 total allowable catch (TAC)
of ‘‘other rockfish’’ in the Western and
Central Regulatory Areas of the GOA is
940 metric tons (mt) as established by
the final 2021 and 2022 harvest
specifications for groundfish of the GOA
(86 FR 10184, February 19, 2021).
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SUMMARY:
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NMFS issues this action pursuant to
section 305(d) of the Magnuson-Stevens
Act. This action is required by 50 CFR
part 679, which was issued pursuant to
section 304(b), and is exempt from
review under Executive Order 12866.
Pursuant to 5 U.S.C. 553(b)(B), there
is good cause to waive prior notice and
an opportunity for public comment on
this action, as notice and comment
would be impracticable and contrary to
the public interest, as it would prevent
NMFS from responding to the most
recent fisheries data in a timely fashion
and would delay prohibiting retention
of ‘‘other rockfish’’ in the Western and
Central Regulatory Areas of the GOA.
NMFS was unable to publish a notice
providing time for public comment
because the most recent, relevant data
only became available as of August 26,
2021.
The Assistant Administrator for
Fisheries, NOAA also finds good cause
to waive the 30-day delay in the
effective date of this action under 5
U.S.C. 553(d)(3). This finding is based
upon the reasons provided above for
waiver of prior notice and opportunity
for public comment.
Authority: 16 U.S.C. 1801 et seq.
Dated: August 30, 2021.
Jennifer M. Wallace,
Acting Director, Office of Sustainable
Fisheries, National Marine Fisheries Service.
[FR Doc. 2021–18990 Filed 8–30–21; 4:15 pm]
BILLING CODE 3510–22–P
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49259
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 679
[Docket No. 210210–0018; RTID 0648–
XB321]
Fisheries of the Exclusive Economic
Zone Off Alaska; Pacific Cod by
Catcher Vessels Greater Than or Equal
to 50 Feet Length Overall Using Hookand-Line Gear in the Central
Regulatory Area of the Gulf of Alaska
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Temporary rule; closure.
AGENCY:
NMFS is prohibiting directed
fishing for Pacific cod by catcher vessels
greater than or equal to 50 feet length
overall (LOA) using hook-and-line gear
in the Central Regulatory Area of the
Gulf of Alaska (GOA). This action is
necessary to prevent exceeding the 2021
Pacific cod total allowable catch
apportioned to catcher vessels greater
than or equal to 50 feet LOA using hookand-line gear in the Central Regulatory
Area of the GOA.
DATES: Effective 1200 hours, Alaska
local time (A.l.t.), September 1, 2021,
through 2400 hours, A.l.t., December 31,
2021.
FOR FURTHER INFORMATION CONTACT:
Allyson Olds, 907–586–7228.
SUPPLEMENTARY INFORMATION: NMFS
manages the groundfish fishery in the
GOA exclusive economic zone
according to the Fishery Management
Plan for Groundfish of the Gulf of
Alaska (FMP) prepared by the North
Pacific Fishery Management Council
under authority of the MagnusonStevens Fishery Conservation and
Management Act. Regulations governing
fishing by U.S. vessels in accordance
with the FMP appear at subpart H of 50
CFR part 600 and 50 CFR part 679.
Regulations governing sideboard
protections for GOA groundfish
fisheries appear at subpart B of 50 CFR
part 680.
The 2021 Pacific cod total allowable
catch (TAC) apportioned to catcher
vessels greater than or equal to 50 feet
LOA using hook-and-line gear in the
Central Regulatory Area of the GOA is
680 metric tons (mt), as established by
the final 2021 and 2022 harvest
specifications for groundfish of the GOA
(86 FR 10184, February 19, 2021).
In accordance with § 679.20(d)(1)(i),
the Administrator, Alaska Region,
SUMMARY:
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]]>Agencies
[Federal Register Volume 86, Number 168 (Thursday, September 2, 2021)]
[Rules and Regulations]
[Pages 49253-49259]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-18914]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 282
[EPA-R07-UST-2021-0345; FRL-8775-02-R7]
Kansas: Final Approval of State Underground Storage Tank Program
Revisions, Codification, and Incorporation by Reference
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
-----------------------------------------------------------------------
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 Kansas's Underground
Storage Tank (UST) program submitted by the Kansas Department of Health
and Environment (KDHE). This action also codifies EPA's approval of
Kansas'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 November 1, 2021, unless EPA receives
adverse comment by October 4, 2021. 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 November 1, 2021, 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: https://www.regulations.gov. Follow
the on-line instructions for submitting comments.
2. Email: [email protected].
Instructions: Direct your comments to Docket ID No. EPA-R07-UST-
2021-0345. EPA's policy is that all comments received will be included
in the public docket without change and may be available online at
https://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 https://www.regulations.gov, or email. The Federal https://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 https://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
[[Page 49254]]
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. EPA encourages electronic submittals, but if
you are unable to submit electronically, please reach out to the EPA
contact person listed in the document for assistance.
Docket: All documents in the docket are listed in the https://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 restricted by statute. Publicly
available docket materials are available electronically through
www.regulations.gov.
IBR and supporting material: You can view and copy the documents
that form the basis for this codification and associated publicly
available materials either through www.regulations.gov or by contacting
Cassandra Mance at (913) 551-7355 or [email protected]. Out of an
abundance of caution for members of the public and our staff, the EPA
Region 7 office will be closed to the public to reduce the risk of
transmitting COVID-19. Please call or email the contact listed above if
you need access to material indexed but not provided in the docket.
FOR FURTHER INFORMATION CONTACT: Cassandra Mance, Tanks, Toxics, and
Pesticides Branch, Land, Chemical, and Redevelopment Division, U.S.
Environmental Protection Agency, Region 7, 11201 Renner Boulevard,
Lenexa, Kansas 66219; (913) 551-7355; [email protected].
SUPPLEMENTARY INFORMATION:
I. Approval of Revisions to Kansas's Underground Storage Tank Program
A. Why are revisions to state programs necessary?
States that have received final approval from the EPA under 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 February 11, 2021, in accordance with 40 CFR 281.51(a), Kansas
submitted a complete program revision application seeking the EPA
approval for its UST program revisions (State Application). Kansas'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 Kansas'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 Kansas program provides for adequate
enforcement of compliance (40 CFR 281.11(b)). Therefore, the EPA grants
Kansas 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 Kansas 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 rule, 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 Kansas previously been approved?
On June 6, 1994, the EPA finalized a rule approving the UST
program, effective July 6, 1994, to operate in lieu of the Federal
program. On September 27, 1994, effective November 28, 1994, the EPA
codified the approved Kansas 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 February 11, 2021, in accordance with 40 CFR 281.51(a), Kansas
submitted a complete application for final approval of its UST program
revisions adopted on July 6, 2020. The EPA now makes an immediate final
decision, subject to receipt of written comments that oppose this
action, that Kansas's UST program revisions satisfy all of the
requirements necessary to qualify for final approval. Therefore, EPA
grants Kansas final approval for the following program changes:
[[Page 49255]]
------------------------------------------------------------------------
Required Federal element Implementing State authority
------------------------------------------------------------------------
40 CFR 281.30, New UST Systems and KAR 28-44 Sections 13; 14; 16;
Notification. 17(a); 17(c); 19; 23; and 31.
40 CFR 281.31, Upgrading Existing UST KAR 28-44 Sections 16(a)-(b)
Systems. and 31.
40 CFR 281.32, General Operating KAR 28-44 Sections 19 and 23.
Requirements.
40 CFR 281.33, Release Detection....... KAR 28-44 Sections 23 and 31.
40 CFR 281.34, Release Reporting, KAR 28-44 Section 24.
Investigation, and Confirmation.
40 CFR 281.35, Release Response and KAR 28-44 Section 25.
Corrective Action.
40 CFR 281.36, Out-of-service Systems KAR 28-44 Sections 26 and 31.
and Closure.
40 CFR 281.37, Financial Responsibility KAR 28-44 Section 27.
for USTs Containing Petroleum.
40 CFR 281.39, Operator Training....... KAR 28-44 Section 30.
40 CFR 281.41, Legal Authorities for KAR 28-44 Section 12.
Enforcement Response.
------------------------------------------------------------------------
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 KDHE 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: Kansas Statutes Annotated, Chapter 65, Article 34,
Section 100 et seq., and Kansas Administrative Regulations, Chapter 28,
Article 44.
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 pursuant to 40 CFR
281.12(a)(3)(ii):
Kansas statutes and regulations include references to the
aboveground storage tank program, which is broader in scope than the
Federal program. KSA 65-34 Sections 105(a)(2), 105(a)(13), 106(a), 118,
129, and 130; KAR 28-44 Section 29.
Agreements between the secretary and local governments or agencies
to act as the secretary's agent in order to carry out provisions of the
Kansas Storage Tank Act are broader in scope than the Federal program.
KSA 65-34 Section112.
Kansas statutory provisions related to the petroleum storage tank
release trust funds, environmental assurance fee, and storage tank fee
fund are broader in scope than the Federal program. KSA 65-34 Sections
114, 117, 119-125, and 128.
Kansas statutory provisions related to the third-party liability
insurance plan and severability are broader in scope than the Federal
program. KSA 65-34 Sections 126 and 127.
Kansas statutory provisions related to the UST redevelopment fund
are broader in scope. KSA 65-34 Sections 131-134.
Each person installing, removing, or testing a UST or UST system
must be licensed in Kansas, submit nonrefundable initial licensing and
annual renewal fees, and may have a license suspended or revoked if the
requirements are not met. KSA 65-34 Sections 105(a)(8), 105(a)(11),
105(a)(12), 110, and 111; KAR 28-44 Sections 12(c), 12(d), 20, 21, and
22.
Each owner must obtain an installation or modification permit from
the department before installing or modifying a UST or UST system and
submit an installation application fee. KSA 65-34 Sections 105(a)(10)
and 106; KAR 28-44 Sections 12(d) and 15.
Each owner of a UST must submit a registration fee and an annual
operating fee for each tank. If an owner fails to submit the completed
registration notification form or secure an annual operating permit
within the state-specified timeframe, the owner will be assessed
penalty fees. KSA 65-34 Section 105(a)(10); KAR 28-44 Sections 12(d),
17(b), 17(c) as it applies to penalty fees, 17(d), 17(e), and 17(f).
Any owner or operator of a nonregulated tank may register that tank
with the department for the purpose of qualifying the owner or operator
to participate in the petroleum storage tank release trust funds. KAR
28-44 Section 18.
More Stringent Provisions
The following 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 pursuant to 40
CFR 281.12(a)(3)(i):
UST systems with impressed current cathodic protection systems must
be inspected every 30 days to ensure the equipment is running properly.
KAR 28-44 Section 19(a)(2).
In addition to the recordkeeping requirements listed at 40 CFR
280.34(b), owners and operators of UST systems shall also maintain
records on the drop tickets for the preceding 12 months. Kansas defines
drop tickets as a bill of lading, invoice, or similar document that
reflects fuel delivery by a petroleum transport company to a specific
facility and includes the deliverer's name, the delivery date, and the
quantity delivered. KAR 28-44 Sections 14(c)(1) and 19(a)(8)(B)(iii).
Only field-constructed tanks and airport hydrant fuel distribution
systems can use vapor monitoring as an approved leak detection method.
KAR 28-44 Section 23(e).
Groundwater monitoring is not an approved leak detection method.
KAR 28-44 Section 23(f).
Within 15 days of permanent closure, each owner or operator shall
ensure that each contractor submits a completed permanent tank
abandonment form to the department. KAR 28-44 Section 26(a)(3)(C).
No comparable exam is accepted for operator training. KAR 28-44
Section 30(a)(1)(A).
Each Class A operator of a facility or group of facilities shall
reside or be stationed within four hours of each managed facility to
respond to emergencies as needed. KAR 28-44 Section 30(a)(1)(C).
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 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
[[Page 49256]]
scope of the approved program in each state.
B. What is the history of codification of Kansas's UST program?
EPA incorporated by reference the KDHE approved UST program
effective November 28, 1994 (59 FR 186; September 27, 1994). In this
document, EPA is revising 40 CFR 282.66 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 federally approved Kansas UST program
described in the amendments to 40 CFR part 282 set forth below. The EPA
has made, and will continue to make, this document generally available
through www.regulations.gov or by contacting the EPA Region 7 contact
listed in the ADDRESSES section of this preamble.
The purpose of this Federal Register document is to codify Kansas's
approved UST program. The codification reflects the State program that
would be in effect at the time EPA's approved revisions to the Kansas
UST program addressed in this direct final rule become final. The
document incorporates by reference Kansas's UST statutes and
regulations and clarifies which of these provisions are included in the
approved and federally enforceable program. By codifying the approved
Kansas program and by amending the CFR, the public will more easily be
able to discern the status of the federally-approved requirements of
the Kansas program.
EPA is incorporating by reference the Kansas approved UST program
in 40 CFR 282.66. Section 282.66(d)(1)(i) incorporates by reference for
enforcement purposes the State's statutes and regulations.
Section 282.66 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 Kansas'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 Kansas procedural
and enforcement authorities. Section 282.66(d)(1)(ii) of 40 CFR lists
those approved Kansas 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. Section
281.12(a)(3)(ii) of 40 CFR 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 federal
enforcement in part 282. Section 282.66(d)(1)(iii) lists for reference
and clarity the Kansas 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 Kansas'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 Orders 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. 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).
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
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.
[[Page 49257]]
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) do not apply.
H. 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.
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. 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.
K. 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 November 1, 2021 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 protection, Administrative practice and procedure,
Confidential business information, Hazardous substances, Incorporation
by reference, Insurance, Intergovernmental relations, Oil pollution,
Penalties, Petroleum, Reporting and recordkeeping requirements, Surety
bonds, Water pollution control, Water supply.
Dated: August 24, 2021.
Edward H. Chu,
Acting Regional Administrator, EPA Region 7.
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. 282.66 to read as follows:
Sec. 282.66 Kansas State-Administered Program.
(a) History of the approval of Kansas's program. The State of
Kansas 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 Kansas
Department of Health and Environment, was approved by EPA pursuant to
42 U.S.C. 6991c and part 281 of this Chapter. EPA approved the Kansas
program on June 6, 1994, and it was effective on July 6, 1994. A
subsequent program revision application was approved by EPA and became
effective on November 1, 2021.
(b) Enforcement authority. Kansas 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) Retaining program approval. To retain program approval, Kansas
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 Kansas 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) Final program approval. Kansas has final approval for the
following elements of its program application originally submitted to
EPA and approved on June 6, 1994 and effective July 6, 1994, and the
program revision application approved by EPA, effective on November 1,
2021.
(1) State statutes and regulations--(i) Incorporation by reference.
The 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 Kansas regulations and statutes that are
incorporated by reference in this paragraph from the Kansas Department
of Health and Environment website at: www.kdheks.gov/tanks/regs.html or
the KDHE Storage Tank Section, 1000 SW Jackson, Suite 410, Topeka, KS
66612; Phone number: (785) 296-1678. You may inspect all approved
material at the EPA Region 7 Office, 11201 Renner Boulevard, Lenexa, KS
66219; Phone Number: (913) 551-7355; or the National Archives and
Records Administration (NARA), Email: [email protected], website:
https://
[[Page 49258]]
www.archives.gov/federal-register/cfr/ibr-locations.html.
(A) EPA-Approved Kansas Statutory Requirements Applicable to the
Underground Storage Tank Program, July 2015.
(B) EPA-Approved Kansas Regulatory Requirements Applicable to the
Underground Storage Tank Program, July 2020.
(ii) Legal basis. EPA evaluated the following statutes, which
provide the legal basis for the State's implementation of the
underground storage tank program, but they are not being incorporated
by reference for enforcement purposes and do not replace Federal
authorities: Kansas Statutes Annotated, Chapter 65, Public Health,
Article 34, Kansas Storage Tank Act, Sections: 108--Enforcement of act:
Duties of owner or operator; records, reports, documents, other
information; 109--Unlawful acts: penalties; and 113--Civil penalties
and remedies for violations.
(iii) Provisions not incorporated by reference. The following
statutory and regulatory provisions are broader in scope than the
Federal program, are not part of the approved program, and are not
incorporated by reference in this section for enforcement purposes:
(A) Kansas Statutes Annotated, Chapter 65, Public Health, Article
34, Kansas Storage Tank Act, Sections: 105(a)(2) and 105(a)(13) as they
apply to aboveground storage tanks; 105(a)(8) as it applies to tank
tightness tester qualifications; 105(a)(10) as it applies to
registration and permit fees; 105(a)(11) and 105(a)(12) as they apply
to licensing tank installers and/or contractors and fees for these
licenses; 106 as it applies to aboveground storage tanks and permits to
construct, install, or modify storage tanks; 110 as it applies to
licensing tank installers and contractors; 111 as it applies to
suspension of licenses; 112 as it applies to agreements between
secretary and local governments; 114 as it applies to the underground
petroleum storage tank release trust fund; 117 as it applies to the
environmental assurance fee; 118 as it applies to corrective action for
aboveground storage tanks; 119-125 as they apply to the petroleum
storage tank release trust funds; 126 and 127 as they apply to the
third party liability insurance plan; 128 as it applies to the storage
tank fee fund; 129 and 130 as they apply to the aboveground petroleum
storage tank release trust fund; 131-134 and 139 as they apply to the
UST redevelopment fund.
(B) Kansas Department of Health and Environment Permanent
Administrative Regulations, Chapter 28, Article 44, Petroleum Products
Storage Tanks, Sections: 12(c) as it applies to the suspension and
revocation of licenses; 12(d) as it applies to fee payments; 15 as it
applies to underground storage tank installation or modification
permits and the fees for these permits; 17(b)-(f) as they apply to the
fees for underground storage tank registration and annual operating
permits and the associated penalties; 18 as it applies to registration
of non-regulated underground storage tanks; 20-22 as they apply to
licensing underground storage tank contractors, installers, testers,
and removers, fees for these licenses, and the suspension or revocation
of tester licenses; 29 as it applies to aboveground storage tanks.
(2) Statement of legal authority. The ``Attorney General's Letter
of Certification'', signed by the Kansas Attorney General on August 23,
1993, and December 4, 2020, 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 Adequate Enforcement Procedures'' submitted as part
of the original application on July 2, 1992, and as part of the program
revision application on February 11, 2021, 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 July 2, 1992,
and as part of the program revision application on February 11, 2021,
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 7 and the Kansas Department of Health and Environment,
signed by the EPA Regional Administrator on March 25, 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
``Kansas'' to read as follows:
Appendix A to Part 282--State Requirements Incorporated by Reference in
Part 282 of the Code of Federal Regulations
* * * * *
Kansas
(a) The statutory provisions include Kansas Statutes Annotated,
2015; Chapter 65, Public Health; Article 34, Solid and Hazardous
Waste; Section 100 et seq., Kansas Storage Tank Act:
Section 100 Statement of legislative findings
Section 101 Citation of Act
Section 102 Definitions
Section 103 Exceptions to application of Act
Section 104 Notification to department of tank's existence
Section 105 Rules and regulations, except for 65-34, 105 (a)(2),
the following words in (a)(8), ``including determination of the
qualifications of persons performing or offering to perform such
testing,'' (a)(10), (a)(11), (a)(12) and the following words in
(a)(13), ``and aboveground storage tanks in existence on July 1,
1992'' and ``and aboveground storage tanks placed in service prior
to July 1, 1992''
Section 106 Permit to construct, install, modify, or operate
storage tank, except the following words in the title and (a),
``construct, install, modify or'' and ``and any aboveground storage
tank registered with the department on July 1, 1992,''
Section 107 Evidence of financial responsibility required;
limitation of liability
Section 115 Liability for costs of corrective action
Section 118 Corrective action; duties of owners and operators;
duties of Secretary; consent agreement; contents, except for the
following words in (b), ``or from the aboveground fund, if the
release was from an aboveground petroleum storage tank.'' and ``or
from the aboveground fund, if the release was from an aboveground
petroleum storage tank.''
Section 135 Underground storage tank operators, training
program, requirements
Section 138 Underground storage tank systems; secondary
containment
(b) The regulatory provisions include Kansas Administrative
Regulations, 2020; Chapter 28, Department of Health and Environment;
Article 44, Petroleum Products Storage Tanks:
Section 12 General provisions, except (c) and (d)
Section 13 Program scope and interim prohibition
Section 14 Definitions
Section 16 Underground storage tank systems: Design,
construction, installation, modification, and notification
Section 17 Underground storage tank registration and operating
permit, except (b), the following words in (c), ``be assessed a
penalty fee of $50.00 for each tank if the owner fails to'', (d),
(e), and (f)
Section 19 General operating requirements
Section 23 Release detection
Section 24 Release reporting, investigation, and confirmation
[[Page 49259]]
Section 25 Release response and corrective action for UST
systems
Section 26 Out-of-service UST systems and closure
Section 27 Financial responsibility
Section 30 Operating training and requirements
Section 31 UST systems with field-constructed tanks and airport
hydrant fuel distribution systems
* * * * *
[FR Doc. 2021-18914 Filed 9-1-21; 8:45 am]
BILLING CODE 6560-50-P
