Washington: Final Approval of State Underground Storage Tank Program Revisions, Codification and Incorporation by Reference, 57757-57763 [2021-22596]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 86, Number 199 (Tuesday, October 19, 2021)]
[Rules and Regulations]
[Pages 57757-57763]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-22596]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 282

[EPA-R10-RCRA-2021-0452; FRL 8849-02-R10]


Washington: 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 Washington'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 
Washinton'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 December 20, 2021, unless the EPA 
receives adverse comment by November 18, 2021. If EPA receives adverse 
comment, the EPA 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 material listed in the 
regulations is approved by the Director of the Federal Register, as of 
December 20, 2021.

ADDRESSES: Submit your comments by one of the following methods:
    1. Federal eRulemaking Portal: https://www.regulations.gov. Follow 
the online instructions for submitting comments.
    2. Email: [email protected].
    3. Mail: Charlotte Boulind-Yeung, Land, Chemicals and Redevelopment 
Division, EPA Region 10, 1200 Sixth Avenue, Suite 155, MS: 15-H04, 
Seattle, Washington 98101.
    4. Hand Delivery or Courier: Deliver your comments to Charlotte 
Boulind-Yeung, Land, Chemicals and Redevelopment Division, EPA Region 
10, 1200 Sixth Avenue, Suite 155, MS: 15-H04, Seattle, Washington 
98101.
    Instructions: Submit your comments, identified by Docket ID No. 
EPA-R10-RCRA-2021-0452, at https://www.regulations.gov. Follow the 
online instructions for submitting comments. Once submitted, comments 
cannot be edited or removed from Regulations.gov. The EPA may publish 
any comment received to its public docket. Do not submit electronically 
any information you consider to be Confidential Business Information 
(CBI) or other information whose disclosure is restricted by statute. 
Multimedia submissions (audio, video, etc.) must be accompanied by a 
written comment. The written comment is considered the official comment 
and should include discussion of all points you wish to make. The EPA 
will generally not consider comments or comment contents located 
outside of the primary submission (i.e., on the web, cloud, or other 
file sharing system). For additional submission methods, the full EPA 
public comment policy, information about CBI or multimedia submissions, 
and general guidance on making effective comments, please visit https://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Charlotte Boulind-Yeung, (206) 553-
6315, [email protected]. To inspect the hard copy 
materials, please schedule an appointment with Charlotte Boulind-Yeung 
at (206) 553-6315.

SUPPLEMENTARY INFORMATION: 

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

A. Why are revisions to state programs necessary?

    States that have received final approval from the EPA under RCRA 
section 9004(b) of RCRA, 42 U.S.C. 6991c(b), must maintain an 
underground storage tank program that is equivalent to, consistent 
with, and no less stringent than the Federal 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 June 30, 2021, in accordance with 40 CFR 281.51(a), Washington 
submitted a complete program revision application seeking the EPA 
approval for its UST program revisions (State Application). 
Washington's revisions correspond to the EPA final rule published on 
July 15, 2015 (80 FR 41566, July 15, 2015), 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 Washington'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 Washington program provides for adequate enforcement of 
compliance with these requirements (40 CFR 281.11(b)). Therefore, the 
EPA grants Washington 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 Washington, 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 the EPA using a direct final rule?

    The EPA is publishing this direct final rule without a prior 
proposed rulemaking because we view this action as noncontroversial and 
we anticipate

[[Page 57758]]

no adverse comment. Washington did not receive any substantive comments 
during its comment period when the rules and regulations being 
considered in this direct final rule were proposed at the state level.

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

    This direct final rule provides an opportunity for public comment. 
If the 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 consider all 
comments received during the comment period before making any further 
decision on approval of the State Application. 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 Washington previously been approved?

    On October 8, 1993, the EPA finalized a rule approving the UST 
program that Washington proposed to administer in lieu of the Federal 
UST program.

G. What changes are we approving with this action and what standards do 
we use for review?

    To be approved, each state program application must meet the 
general requirements in 40 CFR 281.11, and specific requirements in 40 
CFR part 281, subpart B (Components of a Program Application); subpart 
C (Criteria for No Less Stringent); and subpart D (Adequate Enforcement 
of Compliance). This is also 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 Washington UST program will 
continue to provide for adequate enforcement of compliance with these 
requirements as described in 40 CFR 281.11(b) and part 281, subpart D 
after this approval.
    The Washington Department of Ecology (``Ecology'') is the lead 
implementing agency for the UST program in Washington, except in Indian 
country.
    Ecology continues to have broad statutory authority to regulate the 
installation, operation, maintenance, and closure of USTs, as well as 
UST releases under two Washington statutes, chapter 70A.355 Revised 
Code of Washington (RCW), ``Underground Storage Tanks,'' and chapter 
70A.305 RCW, ``Hazardous Waste Cleanup--Model Toxics Control Act.'' The 
Washington UST Program gets its enforcement authority from the powers 
and duties of Ecology, found in RCW 70A.355.020. Under RCW 70A.355.050, 
Ecology is authorized to require an owner to furnish records, conduct 
monitoring or testing, and provide access to tanks. Ecology is 
authorized to issue, modify, suspend, revoke or refuse to renew a 
permit under RCW 70A.355.020 and RCW 70A.355.040. Penalties for non-
compliance may be assessed under RCW 70A.355.060 and 70A.355.070.
    Specific authorities to regulate the installation, operation, 
maintenance, and closure of USTs, as well as UST releases are found 
under the Washington Administrative Code (WAC), as amended, in WAC 173-
360A, ``Underground Storage Tank Regulations,'' adopted on July 18, 
2018 and effective on October 1, 2018, and in WAC 173-340, ``Model 
Toxics Control Act--Cleanup,'' amended October 12, 2007. Ecology may 
prohibit delivery to any UST identified by Ecology as ineligible for 
delivery under WAC 173-360A-0270 and -0280. Reporting and recordkeeping 
requirements are found under WAC 173-360A-0230, -0240, -0700, -0740 and 
-0750, as well as WAC 173-340-450. 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 Washington 
and the EPA, effective December 20, 2021, the State maintains 
procedures for receiving and ensuring proper consideration of 
information about violations submitted by the public. Washington has 
met the public participation requirements found in 40 CFR 281.42 by 
allowing intervention in the State enforcement process as provided 
under WAC 173-360A-0270(4). Ecology will not oppose intervention of 
right under Superior Court Civil Rule 24 (a)(2) in a civil enforcement 
action taken under WAC 173-360A or chapter 90.76 RCW on the grounds 
that the person's interest is adequately represented by the State.
    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.
    Ecology has revised its regulations to help ensure that the State's 
UST program revisions are equivalent to, consistent with, and no less 
stringent than the 2015 Federal Revisions.
    Title 40 CFR 281.39 describes the state operator training 
requirements that must be met to be considered equivalent to, 
consistent with, and no less stringent than Federal requirements. 
Washington did not incorporate by reference Federal requirements for 
operator training, but rather has promulgated and is implementing its 
own operator training provisions under WAC 173-360A-0500 through -0560. 
After a thorough review, the EPA has determined that Washington's 
operator training requirements are equivalent to, consistent with, and 
no less stringent than Federal requirements.
    As part of the State Application, the Washington Attorney General 
certified that the State revisions meet the ``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.

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 is 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:
    In addition to any person who sells a regulated UST system to a new 
owner, any person who leases a regulated UST system also must notify 
new operators of UST notification obligations. WAC 173-360A-0230(7).

[[Page 57759]]

    UST operator training requirements for Class A also includes 
licensing and fees, facility compliance tags, authority to accept 
product delivery and certification and use of service providers. WAC 
170-360A-0530(1).
    Ecology expanded the reporting requirement for spills or overfills 
such that spills and overfills must be reported if they pose a threat 
to human health or the environment regardless of the volume of the 
regulated substance, rather than the 25-gallon spill and overfill 
reporting level in the Federal rules. WAC 173-360A-0740.
    The State rules also include requirements for UST service providers 
by establishing a certification program, specifying the 
responsibilities of service providers, and identifying which services 
on UST systems must be performed by certified service providers. WAC 
173-360A-0900 through -0940.
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:
    Local governments may designate environmentally sensitive areas, 
with Ecology's approval. In these areas, the local government may 
impose more stringent standards, and an additional local fee of no more 
than half the state fee may be imposed if necessary, to implement the 
local standards. WAC 173-360A-0130.
    Fees and permits are required by the State's UST statute. USTs must 
be in compliance with the applicable requirements to obtain a permit. 
WAC 173-360A-0200 and -0210.
    The State rules require that any changes affecting information 
reported on the initial notification form about an UST system be 
reported to Ecology. WAC 173-360A-0230(2).
    Product deliverers and waste oil collectors must report any spill 
or overfill of regulated substances to the owner or operator. WAC 173-
360A-0230(9).
    Notice of intent to install an UST is required at least 30 days 
prior to tank installation. Owners or operators must notify Ecology and 
certify proper installation no later than 30 days after installation of 
the UST. Washington also requires additional documentation--a 
manufacturer's installation checklist completed by the service provider 
and an as-built plan of the UST facility--when an UST system is 
installed and the owner or operator is applying for a license. WAC 173-
360A-0300.
    Cathodic protection systems must be tested when they are installed 
or repaired and again between one and six months after installation and 
at least every three years thereafter. WAC 173-360A-0430(2).
    Class B operators must meet the same requirements as Class A 
operators, which is more stringent than the Federal requirement. WAC-
170-360A-0530(1).
    If Ecology determines that the owners and operators of an UST 
system are in noncompliance, then Ecology may require owners and 
operators to develop and maintain an operation and maintenance plan for 
each UST system. WAC 173-360A-0545.
    The State rule requires that owners and operators post and maintain 
signage at each UST facility providing emergency response information. 
WAC 173-360A-0550(2).
    Owners and operators must notify Ecology in writing within 30 days 
after any change in release detection methods used. WAC 173-360A-
0600(4).
    For reporting of suspected releases, owners and operators using 
inventory control must immediately investigate all larger-than-normal 
or reoccurring variations and report such variations if they are 
unaccounted for without waiting to obtain a second month of data. WAC 
173-360A-0700(3)(c).
    Owners and operators conducting a site check as part of a release 
investigation must complete the site check within 30 days of 
identifying a suspected release or receiving notice that the department 
requires investigation of a suspected release. The Federal rule at 40 
CFR 280.52(b) does not specify a timeframe. WAC 173-360A-0720(2).
    For site assessments at closure and site checks to investigate a 
possible release, Ecology established specific requirements regarding 
the selection of service providers, the determination of sample types, 
locations, and measurement methods, and what information must be in the 
final report. Records are to be kept for at least six years after the 
UST system is permanently closed or undergoes a change-in-service, 
versus the three years required by 40 CFR 280.74. Ecology requires that 
a sampling and analysis plan be submitted for review at least 30 days 
before any sampling is performed. WAC 173-360A-0730.
    If a release is confirmed, then the UST system must be secured 
within 24 hours of confirming the release to prevent further delivery 
or deposit of regulated substances until the defective UST system 
components are repaired, replaced or closed. WAC 173-360A-0750(2).
    Prior to putting back into service an UST system that has been 
closed for 90 days or more, the State rule requires that the owner and 
operator complete a tank tightness test, inspections and tests of spill 
and overfill protection equipment, and release detection and 
containment testing and inspection. WAC 173-360A-0800(5)(b).
    Only certified individuals may carry out UST system installation, 
closure, retrofit and tightness testing, and installation and 
maintenance of cathodic protection equipment. WAC 173-360A-0150(65), -
0920, and -0930).
    Site checks and site assessments can only be performed by a service 
provider who is certified by the International Code Council (ICC) via a 
Washington-specific site assessment certification or is licensed as a 
professional engineer or hydrogeologist in Washington. WAC 173-360A-
0730(2) and -0930.

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

    The EPA's approval of Washington'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 Washington's state borders: Chehalis, 
Colville, Cowlitz, Hoh, Jamestown S'Klallam, Kalispel, Lower Elwha 
Klallam, Lummi, Makah, Muckleshoot, Nisqually, Nooksack, Port Gamble, 
Puyallup, Quileute, Quinault, Samish, Sauk-Suiattle, Shoalwater Bay, 
Skokomish, Snoqualmie, Spokane, Squaxin Island, Stillaguamish, 
Suquamish (Port Madison), Swinomish, Tulalip, Upper Skagit, and Yakama 
Reservations; 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. See 40 CFR 281.12(a)(2). 
The one exception regards all USTs located on non-trust and non-
restricted lands inside the boundaries of the Puyallup Reservation. The 
State of Washington has been delegated primary jurisdiction over these 
USTs as a result of a 1988 settlement agreement between the

[[Page 57760]]

Puyallup Tribe of Indians, local governments in Pierce County, the 
State of Washington, the United States, and certain property owners, 
ratified at 25 U.S.C. 1773.

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 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 Washington's UST program?

    The EPA incorporated by reference Washington's approved UST program 
in 40 CFR 282.97, effective October 8, 1993 (77 FR 25368, April 30, 
2012). Through this action, the EPA is incorporating by reference and 
codifying Washington's state program in 40 CFR 282.97 to include the 
approved revisions.

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

    In this rule, the EPA is finalizing the regulatory text that 
incorporates by reference the federally authorized Washington UST 
Program. In accordance with the requirements of 1 CFR 51.5, we are 
finalizing the incorporation by reference of the Washington 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 10 office 
(see the ADDRESSES section of this preamble for more information).
    One purpose of this Federal Register document is to codify 
Washington'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 Washington UST program addressed in this direct final 
rule become final. If, however, the EPA receives substantive comment on 
this 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 Washington program and by 
amending the Code of Federal Regulations, the public will more easily 
be able to discern the status of the federally approved requirements of 
the Washington program.
    The EPA is incorporating by reference the Washington approved UST 
program in 40 CFR 282.97. Section 282.97(d)(1)(i)(A) and (B) 
incorporate by reference for enforcement purposes the State's relevant 
statutes and regulations. Section 282.97 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 
Washington, then 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 282.97(d)(1)(i), the EPA is not 
incorporating by reference Washington'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. 40 
CFR 281.12(a)(3)(ii) states that 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. As a result, 
state provisions which are ``broader in coverage'' than the Federal 
program are not incorporated by reference for purposes of enforcement 
in 40 CFR part 282. Title 40 CFR 282.97(d)(1)(iii) lists for reference 
and clarity the Washington 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 in this rule. 
Provisions that are broader in coverage cannot be enforced by the 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 Washington'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

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is 
therefore not subject to review under Executive Orders 12866 and 13563 
(76 FR 3821, January 21, 2011).

B. 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).

C. 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

[[Page 57761]]

distribution of power and responsibilities established by RCRA.

D. 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, April 23, 1997), because it is not economically significant, as 
defined in Executive Order 12866, and because the EPA does not believe 
the environmental health or safety risks addressed by this action 
present a disproportionate risk to children.

E. 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.

F. 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 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.

G. 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.

H. Executive Order 12630: Governmental Actions and Interference With 
Constitutionally Protected Property Rights

    The 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.

I. 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).

J. 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, 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.

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. 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 December 20, 2021 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: September 30, 2021.
Michelle L. Pirzadeh,
Acting Regional Administrator, Region 10.

    For the reasons set forth in the preamble, the 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.

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2. Add Sec.  282.97 to read as follows:


Sec.  282.97  Washington State-Administered Program.

    (a) History of the approval of Washington's program. The State of 
Washington 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 
Washington Department of Ecology (Ecology), was approved by the EPA 
pursuant to 42 U.S.C. 6991c and part 281 of this chapter. The EPA 
published the notice of final determination approving the Washington 
underground storage tank base program effective on October 8, 1993. A 
subsequent program revision application was approved by the EPA and 
became effective on December 20, 2021.
    (b) Enforcement authority. Washington has primary responsibility 
for administering and enforcing its federally approved underground 
storage tank program. However, the 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) Retention of program approval. To retain program approval, 
Washington 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 Washington 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

[[Page 57762]]

and notice of any change will be published in the Federal Register.
    (d) Final approval. Washington has final approval for the following 
elements of its program application originally submitted to the EPA and 
approved effective October 8, 1993, and the program revision 
application approved by the EPA effective on December 20, 2021:
    (1) State statutes and regulations--(i) Incorporation by reference. 
The materials cited in this paragraph (d)(1) are incorporated by 
reference as part of the underground storage tank program under 
subtitle I of RCRA, 42 U.S.C. 6991 et seq. with the approval of the 
Director of the Federal Register under 5 U.S.C. 552(a) and 1 CFR part 
51. To enforce any edition other than that specified in this section, 
the EPA must publish a document in the Federal Register and the 
material must be available to the public. All approved material is 
available for inspection at EPA Region 10, 1200 Sixth Avenue, Suite 
155, Seattle, Washington 98101, phone number (206) 553-6693. Copies of 
Washington's program application may be obtained from the Underground 
Storage Tank Program, Washington Department of Ecology, P.O. Box 4765, 
Olympia, Washington 98504. All approved material is also available for 
inspection at the National Archives and Records Administration (NARA). 
For information on the availability of the material at NARA, email 
[email protected] or go to www.archives.gov/federal-register/cfr/ibr-locations.html.
    (A) ``Washington Statutory Requirements Applicable to the 
Underground Storage Tank Program,'' June 2021.
    (B) ``Washington Regulatory Requirements Applicable to the 
Underground Storage Tank Program,'' June 2021.
    (ii) Legal basis. The EPA evaluated the statutes and regulations 
listed in appendix B to this part that provide the legal basis for the 
State's implementation of the underground storage tank program but are 
not incorporated by reference and do not replace Federal authorities.
    (iii) Broader in scope. The specifically identified sections and 
rules applicable to the Washington underground storage tank program 
listed in appendix C to this part are broader in scope than the Federal 
program, are not part of the approved program, and are not incorporated 
by reference herein for enforcement purposes.
    (2) Statement of legal authority. The Attorney General Statement, 
signed on October 10, 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.
    (3) Demonstration of procedures for adequate enforcement. The 
``Demonstration of Procedures for Adequate Enforcement'' submitted as 
part of the application for approval on June 30, 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 June 30, 
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 10 and the Washington Department of Ecology, signed by the 
EPA Regional Administrator on March 19, 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.

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3. Amend appendix A to part 282 by adding an entry for ``Washington'' 
in alphabetical order by State to read as follows:

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

* * * * *

Washington

    (a) The statutory provisions include:
    (1) Chapter 70A.355 RCW, ``Underground Storage Tanks'': Sections 
70A.355.010, ``Definitions''; 70A.355.020, ``Department's Powers and 
Duties--Rule-Making Authority'', Subsections 020(1), 020(2), 020(3); 
70A.355.030, ``Environmentally Sensitive Areas''; 70A.355.090, 
``Underground storage tank account''; 70A.355.100, ``Preemption''; 
70A.355.900, ``Captions not law''; 70A.355.901 ``Severability--1989 
c 346''; and 70A.355.902, ``Effective Date--1989 c 346''.
    (b) The regulatory provisions include:
    (1) Washington Administrative Code, Chapter 173-360A:

173-360A-0100 Purpose of chapter
173-360A-0110 Applicability of chapter
173-360A-0120 Preemption of local programs
173-360A-0130 Approval of more stringent local requirements
173-360A-0150 Definitions, except subsections -150(24), -150(54), 
and -150(56)
173-360A-0190 Severability
173-360A-0230 Reporting requirements, except subsections -0230(1), 
(7), (8) and (9)
173-360A-0240 Recordkeeping requirements, except subsection -0240(5)
173-360A-0260 Information sharing
173-360A-0300 Installation of UST systems and components
173-360A-0310 Performance standards for new UST systems and 
components
173-360A-0320 Upgrade requirements for existing UST systems
173-360A-0330 Upgrade requirements for previously deferred UST 
systems
173-360A-0340 Performance standards for partially exempt UST systems
173-360A-0350 Compatibility requirements for UST systems
173-360A-0400 Transfer of reguated substances--Owners and operators
173-360A-0405 Transfer of regulated substances--Product deliverers 
and waste oil collectors
173-360A-0410 Change in regulated substances
173-360A-0420 Operation and maintenance walkthrough inspections
173-360A-0430 Operation and maintenance corrosion protection
173-360A-0440 Operation and maintenance internal linings
173-360A-0450 Operation and maintenance of containment sumps used 
for interstitial monitoring of piping
173-360A-460 Operation and maintenance of spill prevention equipment
173-360A-0470 Operation and maintenance of overfill protection 
equipment
173-360A-0480 Operation and maintenance of release detection 
equipment
173-360A-0500 Purpose and applicability
173-360A-0510 Designation of Class A, Class B, and Class C operators
173-360A-0520 Timing of operator training
173-360A-0530 Requirements for operator training, except subsection 
-530(1)(b)(i)(A), 0530(1)(b)(i)(B), 0530(1)(b)(i)(C) and 
0530(1)(b)(ii)
173-360A-0540 Retraining requirements for Class A and Class B 
operators
173-360A-0545 Operation and maintenance plans
173-360A-0550 Emergency response requirements
173-360A-0560 Documentation and recordkeeping
173-360A-0600 General release detection requirements
173-360A-0610 Release detection requirements for tanks
173-360A-0615 Release detection requirements for piping
173-360A-0620 Inventory control
173-360A-0625 Weekly manual tank gauging
173-360A-0630 Automatic tank gauging
173-360A-0635 Tank tightness testing
173-360A-0640 Automatic line leak detectors
173-360A-0650 Line tightness testing
173-360A-0655 Interstitial monitoring
173-360A-0660 Vapor monitoring
173-360A-0665 Groundwater monitoring
173-360A-0670 Statistical inventory reconciliation
173-360A-0675 Other release detection methods
173-360A-0700 Reporting of suspected releases
173-360A-0710 Investigation due to off-facility impacts

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173-360A-0720 Release investigation and confirmation steps
173-360A-0730 Site assessment requirements
173-360A-0740 Reporting and cleanup of spills and overfills, except 
subsection -0740(1)(a) in sofaras not to include groundwater 
contamination
173-360A-0750 Reporting and cleanup of confirmed releases
173-360A-0800 Temporary closure of UST systems
173-360A-0810 Permanent closure of UST systems
173-360A-0820 Change-in-service of UST systems
173-360A-0830 Previously closed UST systems
173-360A-1000 Applicability
173-360A-1005 Definition of terms
173-360A-1010 Period of financial responsibility
173-360A-1015 Scope and amount of financial responsibility
173-360A-1020 Allowable mechanisms and combination of mechanisms
173-360A-1025 Substitution of mechanisms by owners or operators
173-360A-1030 Termination of mechanisms by providers
173-360A-1035 Responsibilities upon bankruptcy or other incapacity 
of owner or operator or provider of financial assurance
173-360A-1040 Recordkeeping by ownerd and operators
173-360A-1045 Reporting by owners and operators
173-360A-1050 Use of standby trusts
173-360A-1055 Use of local government guarantees without standby 
trusts
173-360A-1060 Mechanism--Financial test of self-insurance
173-360A-1061 Mechanism--Guarantee
173-360A-1062 Mechanism--Insurance and risk retention group coverage
173-360A-1063 Mechanism--Surety bond
173-360A-1064 Mechanism--Letter of credit
173-360A-1065 Mechanism--Trust fund
173-360A-1066 Mechanism--Standby trust fund
173-360A-1070 Mechanism--Local government bond rating test
173-360A-1071 Mechanism--Local government financial test
173-360A-1072 Mechanism--Local government guarantee
173-360A-1073 Mechanism--Local government fund
173-360A-1080 Appendi A--Letter from chief financial officer
173-360A-1081 Appendix B--Guarantee
173-360A-1082 Appendix C--Endorsement
173-360A-1083 Appendix D--Certificate of insurance
173-360A-1084 Appendix E--Performance bond
173-360A-1085 Appendix F--Irrevocable standby letter of credit
173-360A-1086 Appendix G--Trust agreement
173-360A-1087 Appendix H--Certification of acknowledgement
173-360A-1088 Appendix I--Local government bond rating test--Letter 
from chief financial officer of general purpose local governments
173-360A-1089 Appendix J--Local government bond rating test--Letter 
from chief financial officer of nongeneral purpose local governments
173-360A-1090 Appendix K--Local government financial test--Letter 
from chief financial officer
173-360A-1091 Appendix L--Local government guarantee with standby 
trust made by a state
173-360A-1092 Appendix M--Local government guarantee with standby 
trust made by a local government
173-360A-1093 Appendix N--Local government guarantee without standby 
trust made by a state
173-360A-1094 Appendix O--Local government guarantee without standby 
trust made by a local government
173-360A-1095 Appendix P--Local government fund--Letter from chief 
financial officer
173-360A-1096 Appendix Q--Certification of financial responsibility
173-360A-1097 Appendix R--Certification of valid claim

    (2) Washington Administrative Code, Chapter 173-340, ``Model 
Toxics Control Act Cleanup Regulation'':

173-340-450 Releases from underground storage tanks
173-340-600 Public notice and participation
* * * * *

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4. Add appendix B to part 282 to read as follows:

Appendix B to Part 282--State Requirements Not Incorporated by 
Reference in Part 282 of the Code of Federal Regulations

    The EPA evaluated the following statutes and regulations that 
are part of the approved program but are not being incorporated by 
reference for enforcement purposes and do not replace Federal 
authorities.

Washington

    (a) The statutory provisions include:
    (1) RCW 70A.355, ``Underground Storage Tanks,'' Sections 
70A.355.005, 020(5), 020(6), 040(2), 050, 060, and 070.
    (2) RCW 43.21B, ``Environmental Land Use & Hearing Office--
Pollution Control Hearings Board'' insofar as the provisions and 
procedures serve to implement the underground storage tank program.
    (b) The regulatory provisions, insofar as these sections 
identify specific authorities for the implementation, compliance 
monitoring and enforcement of the underground storage tank program, 
include:
    (1) WAC 173-360A (July 18, 2018), ``Underground Storage Tank 
Regulations,'' Sections:

173-360A-0140, ``Intergovernmental agreements''
173-360A-0150(24), ``Facility compliance tags''
173-360A-0150(54), ``Product deliverer''
173-360A-0150(56), ``Red tag''
173-360A-0220, ``Facility compliance tags''
173-360A-0250, ``Compliance monitoring, investigation, and access''
173-360A-0270, ``Enforcement''
173-360A-0280, ``Delivery Prohibition''
173-360A-0290, ``Civil penalties''
    (2) WAC 371-08-485(2) and (3), ``Practice and Procedure.''
    (3) Washington Superior Court Civil Rule 24(a)(2).

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5. Add appendix C to part 282 to read as follows:

Appendix C to Part 282--Other State Provisions Not Incorporated by 
Reference in Part 282 of the Code of Federal Regulations

    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 herein. These 
provisions are not federally enforceable.

Washington

    (a) The statutory provisions include:
    (1) RCW 70A.355, ``Underground Storage Tanks'': Sections 020(4), 
020(7), 020(8), 040(1), 040(3) and 080.
    (2) RCW 70A.305, ``Hazardous Waste Cleanup--Model Toxics Control 
Act'' insofar as the provisions and procedures serve to implement 
the underground storage tank program.
    (3) RCW 70A.325, ``Underground Petroleum Tanks'' insofar as the 
provisions and procedures serve to implement the underground storage 
tank program.
    (4) RCW 70A.330, ``Petroleum Storage Tank Systems Pollution 
Liability Protection Act'' insofar as the provisions and procedures 
serve to implement the underground storage tank program.
    (5) RCW 70A.345, ``Underground Storage Tank Revolving Loan and 
Grant Program'' insofar as the provisions and procedures serve to 
implement the underground storage tank program.
    (6) RCW 82.23A, ``Petroleum Products--Underground Storage Tank 
Program Funding'' insofar as the provisions and procedures serve to 
implement the underground storage tank program.
    (b) The regulatory provisions include:
    (1) WAC 173-360A (July 18, 2018), ``Underground Storage Tank 
Regulations,'' Sections 0200, 0210, 0230(1), (7) and (8), 0240(5), 
0530(1)(i)(A), 0530(1)(b)(i)(B), 0530(1)(b)(i)(C) and 
0530(1)(b)(ii), 0740(1)(a), and 0900 through 0940.

[FR Doc. 2021-22596 Filed 10-18-21; 8:45 am]
BILLING CODE 6560-50-P