[Federal Register: September 11, 2003 (Volume 68, Number 176)]
[Rules and Regulations]
[Page 53520-53523]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11se03-14]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 281
[FRL-7557-4]
Pennsylvania: Final Approval of State Underground Storage Tank
Program
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
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SUMMARY: The Commonwealth of Pennsylvania (Commonwealth or State) has
applied for final approval of its underground storage tank (UST)
program under Subtitle I of the Resource Conservation and Recovery Act
(RCRA). The Environmental Protection Agency (EPA) has reviewed
Pennsylvania's application and has made a determination that the
Commonwealth's UST program satisfies all of the requirements necessary
to qualify for final approval.
EFFECTIVE DATE: Final approval of Pennsylvania's UST program shall be
effective on September 11, 2003.
FOR FURTHER INFORMATION CONTACT: Carletta Parlin, Mailcode 3WC21, RCRA
State Programs Branch, U.S. EPA Region III, 1650 Arch Street,
Philadelphia, Pennsylvania 19103-2029, telephone number (215) 814-3380.
SUPPLEMENTARY INFORMATION:
A. Background
Section 9004 of the Resource Conservation and Recovery Act (RCRA),
42 U.S.C. 6991c, authorizes EPA to approve state underground storage
tank programs to operate in lieu of the Federal UST program. EPA may
approve a state program if the Agency finds pursuant to RCRA section
9004(b), 42 U.S.C. 6991c(b), that the state's program is ``no less
stringent'' than the Federal program in all seven elements set forth at
RCRA section 9004(a) (1) through (7), 42 U.S.C. 6991c(a)(1) through
(7), meets the notification requirements of RCRA section 9004(a)(8), 42
U.S.C. 6991c(a)(8), and also provides for adequate enforcement of
compliance with UST standards in accordance with RCRA section 9004(a),
42 U.S.C. 6991c(a).
On November 25, 2002, Pennsylvania submitted to EPA a complete
program application, in accordance with 40 CFR part 281, seeking
authorization of its UST program. On January 3, 2003, EPA published a
proposed rule announcing its tentative determination to approve
Pennsylvania's UST program. EPA announced that the proposed rule was
subject to a thirty-day public comment period. The public comment
period ended on February 13, 2003. Further, EPA stated that if it
received adverse comments on its intent to authorize Pennsylvania's UST
program, it would subsequently publish a final determination responding
to such comments and announce its final decision as to whether or not
to authorize Pennsylvania's program. EPA received adverse written
comments during the public comment period. Today's action responds to
those
[[Page 53521]]
adverse public comments EPA received and announces EPA's final
determination to approve Pennsylvania's UST program.
B. What Were the Comments and Responses to EPA's Proposal?
Two parties submitted written comments regarding EPA's tentative
approval of Pennsylvania's UST program during the 30-day public comment
period. One party requested that EPA conduct a public hearing, but
later withdrew that request. A third party submitted comments and
requested a public hearing after the close of the comment period. EPA
had already taken steps to cancel the tentatively scheduled public
hearing and, as a result, no public hearing was held on EPA's tentative
determination to approve Pennsylvania's UST Program. All three sets of
comments EPA received questioned EPA's tentative decision to approve
the Commonwealth of Pennsylvania's UST program asserting that
Pennsylvania does not provide for adequate public participation.
Collectively, the three parties submitting comments asserted that
Pennsylvania's UST program has deficiencies in three areas: (1) Public
notification of releases from USTs, (2) public participation in UST
cleanup activities, and (3) public involvement in UST enforcement cases
initiated by the Pennsylvania Department of Environmental Protection
(PADEP). EPA's responses to each of these comments are set forth below.
EPA has determined that none of the concerns raised warrants
disapproval of Pennsylvania's UST program.
1. Comments Regarding Public Notification of UST Releases
All three parties asserted that Pennsylvania's UST Program does not
meet the federal requirements for state program approval at 40 CFR
281.35(f) regarding public notification of UST releases. This
regulation provides as follows: `` In accordance with Sec. 280.67, the
state must notify the affected public of all confirmed releases
requiring a plan for soil and ground water remediation, and upon
request provide or make available information to inform the interested
public of the nature of the release and the corrective measures planned
or taken.''
The referenced regulation at 40 CFR 280.67(a) states the following:
``For each confirmed release that requires a corrective action plan,
the implementing agency must provide notice to the public by means
designed to reach those members of the public directly affected by the
release and the planned corrective action. This notice may include, but
is not limited to, public notice in local newspapers, block
advertisements, public service announcements, publication in a state
register, letters to individual households, or personal contacts by
field staff.''
One of the parties noted as follows: ``The Commonwealth
acknowledges in the General Counsel and Attorney General Verification
and Legal Statement included with the application that EPA does not
believe notifying the municipality satisfies the objective of
Sec. Sec. 281.35(f) and 280.67 to 'notify the affected public'.'' Two
of the commenters expressed their concern about Pennsylvania using the
State Program Approval Memorandum of Agreement (MOA) with EPA to
address an inadequate public notification process for UST releases,
which they perceive as a ``flaw'' or ``deficiency'' in Pennsylvania's
UST Program.
During the review of Pennsylvania's UST Program, EPA did discuss
public notification procedures for UST releases with PADEP. In its
assessment, EPA recognized that, in accordance with Sec. 245.305(e) of
Pennsylvania's UST regulations, owners and operators are required to
inform the Commonwealth and affected municipalities of confirmed
releases. EPA believes this is a suitable first step toward public
notification, because once local and state governments are informed,
they can subsequently take steps to notify the affected public. During
its review, EPA asked PADEP to clarify how such notification to the
state would result in notification of the public directly affected by
UST releases. EPA recognized that, pursuant to Sec. 245.305(g) of
Pennsylvania's rules, PADEP may ``implement reasonable procedures to
provide the public with appropriate information.'' For the purpose of
state program approval, PADEP has the legal authority to notify the
affected public of UST releases. However, EPA recognized that this
authority provided PADEP with a certain discretion of the type
contemplated when EPA published its original UST regulations at Sec.
280.67 on September 23, 1988 (see 53 FR 37180-37181). Specifically, EPA
noted in the preamble to its regulations that ``* * * mandating public
participation for all CAPs (Corrective Action Plans) could divert
implementing agency resources from other cleanup activities such as
oversight of ongoing cleanup operations.'' The preamble went on to say:
``EPA agrees with the party who urged that implementing agencies strike
a balance between the involvement of the public and the sometimes
competing need to protect human health and the environment through
quick and effective responses to an UST release. To acknowledge these
sometimes conflicting objectives, the final rule for public
participation establishes a flexible approach that ensures public
access to available information on UST cleanups, although the public
need not be involved, as a matter of routine, in all CAPs.''
During EPA's evaluation of the Commonwealth's UST program, PADEP
described to EPA that it intended to exercise its discretion to notify
the public about UST releases by posting relevant information on the
internet. Although the internet was not in existence at the time EPA
published its regulations in 1988, today, EPA believes the internet is
a powerful and effective mechanism for providing the public with
information. EPA believes that providing public access to information
about UST releases on the internet is a means designed to reach those
members of the public directly affected by the release and the planned
corrective action. The internet has revolutionized how the public can
gain access to all kinds of information. The internet can be accessed
from home, at work, at school, and at local libraries. Information on
the internet can be updated more easily, timely and cost-effectively
than printed publications. One party who provided comments on EPA's
proposed state program approval decision stated that he: ``* * *
supports the use of the internet to educate and inform the public about
DEP's regulatory programs and the status of confirmed releases and
planned cleanups* * *'' PADEP and EPA have dedicated significant
resources to provide the public with timely and comprehensive
information about their numerous programs through the internet.
Recognizing the need for PADEP to balance its responsibilities to clean
up expeditiously UST releases and inform the public, EPA and PADEP used
the MOA to specify and clarify how PADEP will exercise its discretion
in striking this balance and to acknowledge formally PADEP's commitment
to internet notification of UST releases. EPA does not believe that use
of the MOA to describe Pennsylvania's approach to public notification
is intended to ``fix'' a flaw or deficiency in Pennsylvania's UST
program, but rather the MOA is an appropriate means to define how PADEP
will exercise its responsibilities, within its discretion and
authorities, to
[[Page 53522]]
notify the public of UST releases under an EPA-authorized UST program.
To establish specific provisions in the MOA to define appropriate
public notification, EPA and PADEP relied on provisions of 40 CFR
280.67(a). Therefore, the MOA provides the following commitments: ``In
addition to placing notices of confirmed releases requiring corrective
action on its internet site, DEP agrees to use additional mechanisms to
notify the affected public of those releases, which may have the
potential to cause a more immediate or serious risk to public health
and the environment. Furthermore, DEP agrees to use additional methods
of public notification and outreach as a particular situation may
warrant. Pursuant to 40 CFR 280.67 (Public Participation), such notices
may include, but are not limited to, public notice in local newspapers,
block advertisements, public service announcements, publication in the
Pennsylvania Bulletin, letters to individual households, and/or
personal contacts by field staff.'' Having drawn the provisions for the
MOA directly from EPA's regulations, EPA is satisfied that PADEP's
authorities and procedures for public notification of UST releases, as
prescribed in the MOA, meet the requirements for state program approval
found at 40 CFR 281.35(f).
On a separate but related point, one commenter referenced RCRA
section 9004(a) stating that RCRA enumerates ``* * *criteria that a
State Program must meet in order to receive delegation of authority.''
EPA points out that, beyond the federal regulations discussed
extensively above, section 9004 of RCRA does not include any
independent requirements for States to include public notification in
their UST Programs in order to be approved by EPA.
The commenter who supported using the internet to inform the public
did note, however, that, the internet ``* * * is no substitute for
direct notice by DEP to the affected public.'' EPA points out, however
that neither RCRA nor its implementing regulations requires ``direct
notice to the affected public.'' These regulations state that notice to
the public must be designed ``* * * to reach those members of the
public directly affected by the release and the planned corrective
action'' but not necessarily by a direct (or personal) notice as was
suggested by the commenter.
One commenter expressed a concern over a failed attempt to access
PADEP's information about a particular fuel distribution facility via
the internet and questioned the effectiveness of PADEP's internet
notification process. EPA is aware that PADEP had experienced some
technical difficulties with its Web site and Internet access while
efforts were underway to upgrade its system. Such temporary
difficulties with gaining access to electronic data systems during
maintenance activities are not uncommon. In May and August 2003, EPA
Region III accessed PADEP's Web site and determined site accessibility,
as well as the scope and content of site information about UST
releases, to be complete and acceptable for public notification
purposes.
The final comment regarding inadequate public notification of UST
releases asserted that federal regulations require ``the affected
public be notified of all confirmed releases.'' EPA disagrees, since
EPA's state program approval regulations do not require state programs
to have provisions to notify the public of all confirmed releases, only
those requiring a plan for soil and ground water remediation. See 40
CFR 281.35(f) which states that ``In accordance with Sec. 280.67, the
state must notify the affected public of all confirmed releases
requiring a plan for soil and ground water remediation* * *'' (emphasis
added).
Summary: With respect to public comments alleging deficiencies in
Pennsylvania's program regarding public notification of UST releases,
EPA has determined that Pennsylvania's UST program, as described in its
State Program Approval Application, provides for adequate notification
procedures to inform the public about confirmed UST releases requiring
a plan for remediation. PADEP's reliance on the internet to post
information on UST releases has been determined by EPA to be an
acceptable means of informing the public.
2. Comments Regarding Public Participation in UST Cleanup Activities
The second set of concerns voiced by all three commenters related
to the public's inability to be informed about, and to participate in,
corrective measure activities. With regard to concerns about ``public
notification'' of planned corrective measure activities, EPA refers to
its previous discussion which addresses this issue. The MOA commits
PADEP to maintain on its internet site the status of all corrective
measures planned or taken, and PADEP agrees to make information
available to the public, upon request, about the nature of identified
releases and corrective measures planned or taken.
With regard to public participation in the corrective action
process, EPA notes that its regulations focus on public notification,
yet rely on state administrative procedures to provide the public the
opportunity to participate in the decision-making process associated
with cleaning up UST releases. The preamble to EPA's September 23, 1988
UST regulations (53 FR 37233) states, ``EPA does not intend to
prescribe the nature and extent of the public involvement procedures to
be followed by the state. Rather, EPA's intention is that a forum be
provided that is in keeping with the state's administrative procedures
for the interested public to express its views on the proposed
corrective actions for serious (emphasis added) UST releases.'' The
preamble goes on to say that this objective is intended to be met by
ensuring states provide for open access to information on UST releases
and planned corrective actions. Pennsylvania's UST program meets this
obligation by providing for the public availability of this
information. The MOA is PADEP's assurance that such information will be
available via the internet for notification purposes, and more detailed
information on site activities will be made available upon public
request. PADEP has also agreed in the MOA to expand its method of
public notification and involvement activities, as particular
situations may warrant, specifically in those instances where releases
may have the potential to cause an immediate or ``serious risk'' to
public health and the environment. EPA believes there is adequate
opportunity for the public to be notified of UST releases and to
participate in UST cleanup activities.
Summary: EPA has evaluated Pennsylvania's UST authorities and
PADEP's commitment in the MOA to provide for public notification of UST
releases and public access to related information. Based on EPA's State
Program Approval regulations and relevant preamble language which rely
on a state's own administrative procedures for the interested public to
express its views on proposed corrective actions, EPA has determined
that Pennsylvania's UST program meets EPA's state program approval
requirements for public notification and public involvement regarding
UST releases and their cleanups.
3. Comments Regarding Public Involvement in UST Enforcement Cases
The third area on which EPA received comments related to public
participation in Pennsylvania's enforcement process. One commenter
questioned whether the Commonwealth's program meets the state program
approval requirements of
[[Page 53523]]
40 CFR 281.42 (``Requirements for public participation''), which
provides that ``Any state administering a program must provide for
public participation in the state enforcement process by providing any
one of the following three options: (emphasis added) (a) Authority that
allows intervention analogous to Federal Rule 24(a)(2), and assurance
by the appropriate state enforcement agency that it will not oppose
intervention under the state analogue to Rule 24(a)(2) on the ground
that the applicant's interest is adequately represented by the State.
(b) * * * (c) * * *'' The Commonwealth chose the option set forth in 40
CFR 281.42(a) to support its State Program Approval Application. The
party submitting the comments stated that ``* * * it is not clear how
the affected public is supposed to receive notice when such actions are
taken so they may decide whether to exercise their right to intervene''
and suggested that the Commonwealth * * * should be required to publish
notice in the Pennsylvania Bulletin whenever a formal enforcement
action is commenced and when it is resolved.''
In its application for program approval, the Commonwealth provided
an explanation of how its authorities meet the requirements of 40 CFR
281.42(a), but it did not discuss any procedures it may have for public
notice of enforcement actions. Such notice is not required for state
program approval, as such notice is not a component of Rule 24(a)(2) of
the Federal Rules of Civil Procedure. Therefore, the lack of a
provision in Pennsylvania's regulations to provide for public notice of
enforcement actions and the absence of a related discussion in
Pennsylvania's UST State Program Approval Application are not valid
reasons for EPA to disapprove Pennsylvania's UST Program.
Summary: Since PADEP is not required to provide for, or explain in
its State Program Approval Application, how the public is notified
about enforcement actions initiated by the state, EPA has determined
that this is no basis for disapproving Pennsylvania's UST program.
Conclusion: Based on the above responses to all of the adverse
comments received, EPA sees no basis for disapproving Pennsylvania's
UST program pursuant to 40 CFR part 281 and is hereby proceeding with a
final determination to approve Pennsylvania's UST program.
Statutory and Executive Order Reviews
This rule will only approve State underground storage tank
requirements pursuant to RCRA Section 9004 and imposes no requirements
other than those imposed by State law (see Supplementary Information,
section A. Background). Therefore, this rule complies with applicable
executive orders and statutory provisions as follows:
1. Executive Order 12866: Regulatory Planning Review--The Office of
Management and Budget has exempted this rule from its review under
Executive Order 12866. 2. Paperwork Reduction Act--This rule will not
impose an information collection burden under the Paperwork Reduction
Act. 3. Regulatory Flexibility Act--After considering the economic
impacts of today's rule on small entities under the Regulatory
Flexibility Act, I certify that this proposed rule will not have a
significant economic impact on a substantial number of small entities.
4. Unfunded Mandates Reform Act--Because this rule approves pre-
existing requirements under state law and does not impose any
additional enforceable duty beyond that required by state law, it does
not contain any unfunded mandate or significantly or uniquely affect
small governments, as described in the Unfunded Mandates Reform Act. 5.
Executive Order 13132: Federalism--Executive Order 13132 does not apply
to this rule because it will not have federalism implications (i.e.,
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). 6.
Executive Order 13175: Consultation and Coordination with Indian Tribal
Governments--Executive Order 13175 does not apply to this rule because
it will not have tribal implications (i.e., substantial direct effects
on one or more Indian tribes, on the relationship between the Federal
Government and Indian tribes, or on the distribution of power and
responsibilities between the Federal Government and Indian tribes). 7.
Executive Order 13045: Protection of Children from Environmental Health
& Safety Risks--This rule is not subject to Executive Order 13045
because it is not economically significant and it is not based on
health or safety risks. 8. Executive Order 13211: Actions that
Significantly Affect Energy Supply, Distribution, or Use--This rule is
not subject to Executive Order 13211 because it is not a significant
regulatory action as defined in Executive Order 12866. 9. National
Technology Transfer Advancement Act--EPA approves State programs as
long as they meet criteria required by RCRA, so it would be
inconsistent with applicable law for EPA, in its review of a State
program, to require the use of any particular voluntary consensus
standard in place of another standard that meets the requirements of
RCRA. Thus, section 12(d) of the National Technology Transfer and
Advance Act does not apply to this rule. 10. Congressional Review Act--
EPA will submit a report containing this rule and other information
required by the Congressional Review Act (5 U.S.C. 801 et seq.) to the
U.S. Senate, the U.S. House of Representatives, and the Comptroller
General of the United States prior to publication in the Federal
Register. A major rule cannot take effect until 60 days after it is
published in the Federal Register. This action is not a ``major rule''
as defined by 5 U.S.C. 804(2). This action will be effective September
11, 2003.
List of Subjects in 40 CFR Part 281
Environmental protection, Administrative practice and procedures,
Hazardous substances, Intergovernmental relations, Reporting and
recordkeeping requirements.
Authority: This document is issued under the authority of
section 9004 of the Resource Conservation and Recovery Act as
amended 42 U.S.C. 6991c.
Thomas Voltaggio,
Acting Regional Administrator,
[FR Doc. 03-23164 Filed 9-10-03; 8:45 am]
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