[Federal Register Volume 84, Number 97 (Monday, May 20, 2019)]
[Rules and Regulations]
[Pages 22727-22733]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-10413]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 282

[EPA-R08-UST-2018-0729; FRL-9991-41-Region 8]


Colorado; Final Approval of State Underground Storage Tank 
Program Revisions and Codification

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 Colorado'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 
Colorado'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 July 19, 2019, unless the EPA receives 
adverse comment by June 19, 2019. If the EPA receives adverse comment, 
it will publish a timely withdrawal in the Federal Register informing 
the public that the rule will not take effect. The incorporation by 
reference of certain publications listed in the regulations is approved 
by the Director of the Federal Register, as of July 19, 2019, in 
accordance with 5 U.S.C. 552(a) and 1 CFR part 51.

ADDRESSES: Submit your comments by one of the following methods:
    1. Federal eRulemaking Portal: https://www.regulations.gov. Follow 
the online instructions for submitting comments.
    2. Email: Hendrix.Mark@epa.gov.
    3. Mail: Mark Hendrix, Region 8, Project Officer, UST, Solid Waste 
and PCB Unit, Resource Conservation and Recovery Program, Office of 
Partnerships and Regulatory Assistance (Mail Code: 8P-R), EPA Region 8, 
1595 Wynkoop Street, Denver, Colorado 80202-1129.
    4. Hand Delivery or Courier: Deliver your comments to Mark Hendrix, 
Region 8, Project Officer, UST, Solid Waste and PCB Unit, Resource 
Conservation and Recovery Program, Office of Partnerships and 
Regulatory Assistance (Mail Code: 8P-R), EPA Region 8, 1595 Wynkoop 
Street, Denver, Colorado 80202-1129.
    Instructions: Direct your comments to Docket ID No. EPA-R08-UST-
2018-0729. The 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 submit an electronic comment, the EPA recommends that you include 
your name and other contact information in the body of your comment and 
with any disk or CD-ROM you submit. If the EPA cannot read your comment 
due to technical difficulties and cannot contact you for clarification, 
the EPA may not be able to consider your comment. Electronic files 
should avoid the use of special characters, any form of encryption, and 
be free of any defects or viruses.
    You can view and copy the documents that form the basis for this 
action and associated publicly available materials from 8:30 a.m. to 
4:00 p.m., Monday through Friday, at the following location: EPA Region 
8, 1595 Wynkoop Street, Denver, Colorado 80202-1129, phone number (303) 
312-6561. Interested persons wanting to examine these documents should 
make an appointment with the office at least 2 days in advance.

FOR FURTHER INFORMATION CONTACT: Mark Hendrix, (303) 312-6561, 
Hendrix.Mark@epa.gov. To inspect the hard copy materials, please 
schedule an appointment with Mark Hendrix at (303) 312-6561.

SUPPLEMENTARY INFORMATION:

I. Approval of Revisions to Colorado'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 July 6, 2018, in accordance with 40 CFR 281.51(a), Colorado 
submitted a complete program revision application seeking the EPA's 
approval of Colorado's revisions corresponding to the EPA final rule 
published on July 15, 2015, (80 FR 41566), which revised the 1988 UST 
regulations and the 1988 State program approval (SPA) regulations (2015 
Federal Revisions). As required by 40 CFR 281.20, the State application 
contains the following: A transmittal letter from the Governor 
requesting approval, a description of the program and operating 
procedures, a demonstration of the State's procedures to ensure 
adequate enforcement, a Memorandum of Agreement outlining the roles and 
responsibilities of the EPA and the implementing agency, a statement of 
certification from the Attorney General, and copies of all relevant 
State statutes and regulations. We have reviewed the State application 
and determined that the revisions to Colorado'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 Colorado program provides for adequate enforcement of

[[Page 22728]]

compliance (40 CFR 281.11(b)). Therefore, the EPA grants Colorado 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 Colorado, and are not changed by 
this action. This action merely approves the existing State regulations 
as meeting the Federal requirements and renders them federally 
enforceable.

D. Why is EPA using a direct final rule?

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

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

    Along with this direct final rule, the EPA is publishing a separate 
document in the ``Proposed Rules'' section of this Federal Register 
that serves as the proposal to approve the State's UST program 
revisions and provides an opportunity for public comment. If 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 base any further decision on 
approval of the State application on the proposal to approve after 
considering all comments received during the comment period. The EPA 
will then address all public comments in a later final rule. You may 
not have another opportunity to comment. If you want to comment on this 
approval, you must do so at this time.

F. For what has Colorado previously been approved?

    On April 23, 2007, the EPA finalized a rule approving the UST 
program that Colorado proposed to administer in lieu of the Federal UST 
program. The State's program has not previously been codified.

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

    In order to be approved, each state program application must meet 
the general requirements in 40 CFR 281.11, and specific requirements in 
the following subparts of 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 also is true for 
proposed revisions to approved state programs.
    As more fully described below, the State has made the changes to 
its approved UST program to reflect the 2015 Federal Revisions. The EPA 
is approving the State's changes because they are equivalent to, 
consistent with, and no less stringent than the Federal UST program and 
because the EPA has confirmed that the Colorado UST program will 
continue to provide for adequate enforcement of compliance as described 
in 40 CFR 281.11(b) and part 281, subpart D after this approval.
    The Colorado Department of Labor and Employment, Division of Oil 
and Public Safety (Department) is the lead implementing agency for the 
UST program in Colorado, except in Indian country.
    The Department continues to have broad statutory authority to 
regulate the installation, operation, maintenance, and closure of USTs, 
as well as UST releases under Colorado Revised Statutes (C.R.S.) 
(2018), Title 8 Labor and Industry, Article 20 Fuel Products, selected 
provisions from Sections 8-20-101, et seq. and Article 20.5 Petroleum 
Storage Tanks, Sections 8-20.5-101, et seq. The Colorado UST Program 
enforcement authority arises from the powers and duties granted to the 
Department Director (Director), which grants are found in C.R.S. 
Sections 8-20-102(1), 8-20-104, 8-20-209(1), 8-20.5-107, 8-20.5-202(1), 
8-20.5-208(4) and 8-20.5-209. C.R.S. Sections 8-20-104 and 8-20.5-107 
provide the Director with broad enforcement authority. Under C.R.S. 
Section 8-20-209(1), any duly authorized agent or employee of the 
Division of Oil and Public Safety has the authority to enter an UST 
facility during regular business hours for inspections. In the case of 
a release, C.R.S. Section 8-20.5-208(4) provides the Director the 
authority to take such action as necessary, including the authority to 
enter any property, premises, or place where an UST is located for 
inspection, to conduct monitoring and testing, and to require an owner 
to furnish records, conduct monitoring or testing and provide access to 
tanks. C.R.S. Sections 8-20-228 and 8-20.5-209 provide the Director 
with specific corrective action authority. Notices of violation may be 
issued, and penalties for non-compliance with Colorado's UST Act may be 
assessed under C.R.S. Section 8-20.5-107. A delivery prohibition tag 
may be placed on each tank that has been determined to meet any of the 
criteria for delivery prohibition as described in 7 Code of Colorado 
Regulations 1101-14, Section 6-2-1.
    Specific authorities to regulate the installation, operation, 
maintenance, and closure of USTs, as well as UST releases are found 
under C.R.S. Section 8-20-228, 8-20.5-102(1) and (2), and Title 8, 
Article 20.5, Part 2 Underground Storage Tanks, in addition to the 
regulatory provisions of 7 CCR 1101-14, Article 2, Underground Storage 
Tanks, as amended effective May 1, 2018; Reporting and recordkeeping 
requirements are found under 7 CCR 1101-14, Section 2-3-7. The 
aforementioned statutory and regulations sections satisfy the 
requirements of 40 CFR 281.40 and 281.41.
    Through a Memorandum of Agreement between the State of Colorado and 
the EPA, signed by the EPA Region 8 Regional Administrator on February 
13, 2018, the State maintains procedures for receiving and ensuring 
proper consideration of information about violations submitted by the 
public. The State agrees to comply with public participation provisions 
contained in 40 CFR 281.42, including: The provision that the State 
will not oppose intervention under Rule 24 of the Colorado Rules of 
Civil Procedure for Courts of Record in Colorado on the grounds that 
the applicant's interest is adequately represented by the State; and 
the right of aggrieved parties to be admitted as party to agency 
proceedings under C.R.S. Title 24, Article 4, Part 1, Section 24-4-
105(2)(c). Colorado has met the public participation requirements found 
in 40 CFR 281.42.
    To qualify for final approval, revisions to a state's program must 
be ``equivalent to, consistent with, and no less stringent'' than the 
2015 Federal Revisions. In the 2015 Federal Revisions the EPA addressed 
UST systems deferred in the 1988 UST regulations and added, among other 
things, new operation and maintenance requirements; secondary 
containment requirements for new and replaced tanks and piping; 
operator training requirements; and a requirement to ensure UST system 
compatibility before storing certain biofuel blends. In

[[Page 22729]]

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 enumerated in 40 CFR 281.30 through 281.39, and has 
concluded that the Department has revised its regulations to help 
ensure that the State's UST program continues to be equivalent to, 
consistent with, and no less stringent than the 2015 Federal Revisions. 
In particular, the Department has amended the Code of Colorado 
Regulations to incorporate the revised requirements of 40 CFR part 280, 
including the requirements added by the 2015 Federal Revisions. The 
State, therefore, has ensured that the criteria found in 40 CFR 281.30 
through 281.38 are met.
    Title 40 CFR 281.39 describes the state operator training 
requirements that must be met in order to be considered equivalent to, 
consistent with, and no less stringent than Federal requirements. 
Colorado has promulgated and is implementing its own operator training 
provisions under Code of Colorado Regulations 7 CCR 1101-14 Section 2-
3-1, et seq. After a thorough review, the EPA has determined that 
Colorado's operator training requirements are equivalent to, consistent 
with, and no less stringent than Federal requirements.
    As part of the State Application, the Colorado 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.
    For further information on the EPA's analysis of the State's 
application, see the chart in the Technical Support Document (TSD) 
contained in the docket for this rulemaking.

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

Broader in Scope Provisions
    Where an approved state program has a greater scope of coverage 
than required by Federal law, the additional coverage is not part of 
the federally approved program and are not federally enforceable (40 
CFR 281.12(a)(3)(ii)). The following 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:
    7 Code of Colorado Regulations (CCR) 1101-14, Section 1-5 
Definitions ``motor fuel'' because, and to the extent that the State 
includes fuel products not restricted to use as fuel in UST systems.
    7 CCR 1101-14, Sections 2-2-3(a) and 2-2-3(j) are broader in scope 
because fees are not imposed by the Federal program.
    7 CCR 1101-14, Section 2-3-7(d) is broader in scope because the 
State requires extra documentation and recordkeeping to support the 
reimbursement of funds from the State Petroleum Storage Tank fund.
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 and 
enforceable program (40 CFR 281.12(a)(3)(i)).
    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:
    Under 7 Code of Colorado Regulations (CCR) 1101-14:
    At Section 1-5, definition of ``replace'' and 2-2-1(b) introductory 
paragraph, third sentence, Colorado has a shorter threshold for the 
length of piping that triggers a designation of replacement than the 
Federal program.
    At Section 2-2-1(c)(1)(ii), Colorado maintains more restrictive 
overfill prevention equipment requirements than the Federal program.
    At Sections 2-2-2-3(a), 2-3-6-2(a)(1) and (2), and 2-3-6-2(a)(7) 
and (c), Colorado has State-only inspection requirements that are 
additional to those found in the Federal program.
    At Sections 2-2-1(d)(1), introductory paragraph--(d)(1)(iii), the 
State has additional criteria for defining new dispenser systems, which 
would regulate as new more types of dispenser systems than Federal.
    At Sections 2-2-3(a) and (b), Colorado has an additional State-only 
annual tank registration requirement.
    At Sections 2-3-7(b)(9), 2-4-3(e), 4-1(a) and (e), and in the lack 
of a State analog to Federal Sec.  280.50(b)(1), Colorado maintains 
reporting requirements additional to those found in the Federal 
program.
    Colorado does not have an analog to the Federal recordkeeping 
timeline requirement found at Sec.  280.45(b)(1) and (3); therefore, 
the State requirement for maintaining the records until the UST system 
is permanently closed or undergoes a change in service must be 
observed, which is more stringent than the 3 years required under the 
Federal program for these types of records.
    At Sections 2-4-1(a), (f), and (g), 2-4-3(a)-(c), and due to the 
lack of a State analog to the last sentence of Sec.  280.70(a) and the 
exception to the spill and overfill requirements at Sec.  280.70(c), 
the Colorado program sets forth additional requirements relative to the 
State's temporary tank closure requirements that are not found in the 
Federal regulations.
    At Section 2-3-1-6(c), Colorado has additional requirements for the 
identification and designation of Class A and B operators.
    At Section 7-3(d)(2)(i), the State has an additional filing option 
for the required financial responsibility filing and a shorter timeline 
under which the filing must take place than the Federal program.

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

    The EPA's approval of Colorado's program does not extend to Indian 
country as defined in 18 U.S.C. 1151. Indian country generally includes 
all lands within the exterior boundaries of the following Indian 
reservations located within Colorado: The Ute Mountain Ute and Southern 
Ute Indian 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. Therefore, this action has 
no effect in Indian country. See 40 CFR 281.12(a)(2).

II. Codification

A. What is codification?

    Codification is the process of placing a state's statutes and 
regulations that comprise the State's approved UST program into the 
CFR. Section 9004(b) of RCRA, as amended, authorizes 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

[[Page 22730]]

the public's ability to discern the current status of the federally 
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 Colorado's UST program?

    The EPA has not previously incorporated by reference and codified 
Colorado's approved UST program. Through this action, the EPA is 
incorporating by reference and codifying Colorado's State program in 40 
CFR 282.55 to include the program and the approved revisions.

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

    In this rule we are finalizing the Federal regulatory text that 
incorporates by reference the federally authorized Colorado UST 
program. In accordance with the requirements of 1 CFR 51.5, we are 
finalizing the incorporation by reference of the Colorado 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 https://www.regulations.gov and/or in hard copy at 
the EPA Region 8 office (see the ADDRESSES section of this preamble for 
more information).
    One purpose of this Federal Register document is to codify 
Colorado'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 Colorado UST program addressed in this direct final 
rule become final. If, however, the EPA receives substantive comment on 
the proposed rule, then this codification will not take effect, and the 
State rules that are approved after the EPA considers public comment 
will be codified instead. By codifying the approved Colorado program 
and by amending the Code of Federal Regulations (CFR), the public will 
more easily be able to discern the status of the federally approved 
requirements of the Colorado program.
    The EPA is incorporating by reference the Colorado approved UST 
program in 40 CFR 282.55. Section 282.55(d)(1)(i)(A) incorporates by 
reference for enforcement purposes the State's regulations.
    Section 282.55 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 the 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 
Colorado, 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 282.55(d)(1)(ii), the EPA is not incorporating by 
reference Colorado's procedural and enforcement authorities.

E. What state provisions are not part of the codification?

    The public also needs to be aware that some provisions of the 
State's UST program are not part of the federally approved state 
program. Such provisions are not part of the RCRA Subtitle I program 
because they are ``broader in coverage'' than Subtitle I of RCRA. Title 
40 CFR 281.12(a)(3)(ii) states that where an approved state program has 
provisions that are broader in coverage than the Federal program, those 
provisions are not a part of the federally approved program. As a 
result, state provisions which are ``broader in coverage'' than the 
Federal program are not incorporated by reference for purposes of 
enforcement in part 282. Title 40 CFR 282.55(d)(1)(iii) lists for 
reference and clarity the Colorado 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. 
Provisions that are ``broader in coverage'' cannot be enforced by EPA. 
The State, however, will continue to implement and enforce such 
provisions under State law.

III. Statutory and Executive Order (EO) Reviews

    This action only applies to Colorado's UST program requirements 
pursuant to RCRA Section 9004 and imposes no requirements other than 
those imposed by State law. It complies with applicable EOs and 
statutory provisions as follows:

A. Executive Order 12866: Regulatory Planning and Review, Executive 
Order 13563: Improving Regulation and Regulatory Review

    The Office of Management and Budget (OMB) has exempted this action 
from the requirements of Executive Orders 12866 (58 FR 51735, Oct. 4, 
1993) and 13563 (76 FR 3821, Jan. 21, 2011). This action approves and 
codifies state requirements for the purpose of RCRA Section 9004 and 
imposes no additional requirements beyond those imposed by state law. 
Therefore, this action is not subject to review by OMB.

B. Executive Order 13771: Reducing Regulations and Controlling 
Regulatory Costs

    This action is not an Executive Order 13771 (82 FR 9339, February 
3, 2017) regulatory action because actions such as this final approval 
of Colorado's revised underground storage tank program under RCRA are 
exempted under Executive Order 12866. Accordingly, I certify that this 
action will not have a significant economic impact on a substantial 
number of small entities under the Regulatory Flexibility Act (5 U.S.C. 
601 et seq.).

C. Unfunded Mandates Reform Act and Executive Order 13175: Consultation 
and Coordination With Indian Tribal Governments

    Because this action approves and codifies preexisting requirements 
under State law and does not impose any additional enforceable duty 
beyond that required by State law, it does not contain any unfunded 
mandate or significantly or uniquely affect small governments, as 
described in the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-
1538). For the same reason, this action also does not significantly or 
uniquely affect the communities of tribal governments, as specified by 
Executive Order 13175 (65 FR 67249, November 9, 2000).

D. Executive Order 13132: Federalism

    This action will not have substantial direct effects on the states, 
on the relationship between the national government and the states, or 
on the distribution of power and responsibilities among the various 
levels of government, as specified in Executive Order 13132 (64 FR 
43255, Aug. 10, 1999), because it merely approves and codifies state 
requirements as part of the State RCRA Underground Storage Tank Program 
without altering the relationship or the distribution of power and 
responsibilities established by RCRA.

[[Page 22731]]

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

    This action also is not subject to Executive Order 13045 (62 FR 
19885, Apr. 23, 1997), because it is not economically significant, and 
it does not make decisions based on environmental health or safety 
risks.

F. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This rule is not subject to Executive Order 13211 (66 FR 28355, May 
22, 2001) because it is not a ``significant regulatory action'' as 
defined under Executive Order 12866.

G. National Technology Transfer and Advancement Act

    Under RCRA section 9004(b), the EPA grants a state's application 
for approval as long as the state meets the criteria required by RCRA. 
It would thus be inconsistent with applicable law for the EPA, when it 
reviews a state approval application, to require the use of any 
particular voluntary consensus standard in place of another standard 
that otherwise satisfies the requirements of RCRA. Thus, the 
requirements of Section 12(d) of the National Technology Transfer and 
Advancement Act of 1995 (15 U.S.C. 272 note) do not apply.

H. Executive Order 12988: Civil Justice Reform

    As required by Section 3 of Executive Order 12988 (61 FR 4729, 
February 7, 1996), in issuing this rule, the EPA has taken the 
necessary steps to eliminate drafting errors and ambiguity, minimize 
potential litigation, and provide a clear legal standard for affected 
conduct.

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

    The EPA has complied with Executive Order 12630 (53 FR 8859, Mar. 
15, 1988) by examining the takings implications of the rule in 
accordance with the ``Attorney General's Supplemental Guidelines for 
the Evaluation of Risk and Avoidance of Unanticipated Takings'' issued 
under the executive order.

J. Paperwork Reduction Act

    This rule does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 
et seq.). ``Burden'' is defined at 5 CFR 1320.3(b).

K. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629, Feb. 16, 1994) establishes 
Federal executive policy on environmental justice. Its main provision 
directs Federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States. Because this rule approves 
preexisting State rules which are at least equivalent to, consistent 
with, and no less stringent than existing Federal requirements and 
imposes no additional requirements beyond those imposed by State law, 
and there are no anticipated significant adverse human health or 
environmental effects, the rule is not subject to Executive Order 
12898.

L. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801-808, generally provides 
that before a rule may take effect, the agency promulgating the rule 
must submit a rule report, which includes a copy of the rule, to each 
House of the Congress and to the Comptroller General of the United 
States. The EPA will submit a report containing this document and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication in the Federal Register. A major rule cannot take effect 
until 60 days after it is published in the Federal Register. This 
action is not a ``major rule'' as defined by 5 U.S.C. 804(2). However, 
this action will be effective July 19, 2019 because it is a direct 
final rule.

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

List of Subjects in 40 CFR Part 282

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

    Dated: April 29, 2019.
Debra Thomas,
Acting Regional Administrator, EPA Region 8.

    For the reasons set forth in the preamble, EPA is amending 40 CFR 
part 282 as follows:

PART 282--APPROVED UNDERGROUND STORAGE TANK PROGRAMS

0
1. The authority citation for part 282 continues to read as follows:

    Authority: 42 U.S.C. 6912, 6991c, 6991d, and 6991e.


0
2. Add Sec.  282.55 to read as follows:


Sec.  282.55  Colorado State-Administered Program.

    (a) The State of Colorado 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 Colorado Department of Environmental Quality (DEQ), 
Division of Environmental Response and Remediation (DERR), was approved 
by EPA pursuant to 42 U.S.C. 6991c and part 281 of this chapter. EPA 
published the notice of final determination approving the Colorado 
underground storage tank base program effective on April 23, 2007. A 
subsequent program revision application was approved by EPA and became 
effective on July 19, 2019.
    (b) Colorado has primary responsibility for administering and 
enforcing its federally approved underground storage tank program. 
However, EPA retains the authority to exercise its corrective action, 
inspection, and enforcement authorities under Sections 9003(h), 9005, 
and 9006 of Subtitle I of RCRA, 42 U.S.C. 6991b(h),6991d and 6991e, as 
well as under any other applicable statutory and regulatory provisions.
    (c) To retain program approval, Colorado 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 Colorado 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.

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    (d) Colorado has final approval for the following elements of its 
program application originally submitted to the EPA and approved 
effective April 23, 2007, and the program revision application approved 
by the EPA effective on July 19, 2019:
    (1) State statutes and regulations--(i) Incorporation by reference. 
The material cited in this paragraph (d)(1), and listed in appendix A 
to this part, is incorporated by reference as part of the underground 
storage tank program under Subtitle I of RCRA, 42 U.S.C. 6991 et seq. 
(See Sec.  282.2 for incorporation by reference approval and inspection 
information.) You may obtain copies of the Colorado regulations and 
statutes that are incorporated by reference in this paragraph (d)(1) 
from Colorado's Secretary of State, 1700 Broadway, Denver, CO 80290; 
Attn: Code of Colorado Regulations and Administrative Rules; Phone 
number: (303) 894-2200 ext. 6418; email: rules@sos.state.co.us; 
website: https://www.sos.state.co.us/CCR/Welcome.do.
    (A) ``EPA-Approved Colorado Statutory and Regulatory Requirements 
Applicable to the Underground Storage Tank Program'' dated February 
2019.
    (B) [Reserved]
    (ii) Legal basis. The EPA evaluated the following statutes and 
regulations which provide the legal basis for the State's 
implementation of the underground storage tank program, but they are 
not being incorporated by reference and do not replace Federal 
authorities:
    (A) The statutory provisions include:
    (1) Colorado Revised Statutes (2018), Title 8 Labor and Industry, 
Article 20 Fuel Products: Sections 8-20-102(1), 8-20-104 except 8-20-
104(4)(b) and (7), 8-20-209(1), 8-20-223.5(1) and (2), 8-20-228.
    (2) Colorado Revised Statutes (2018), Title 8 Labor and Industry, 
Article 20.5 Petroleum Underground Storage Tanks: Sections 8-20.5-101, 
except (2), (10)(a)(III), (16) and references to aboveground storage 
tanks (ASTs); 8-20.5-102; 8-20.5-105; 8-20.5-106; 8-20.5-107; 8-20.5-
202(1), (1.5), (2), (3), and (4); 8-20.5-203; 8-20.5-204; 8-20.5-205; 
8-20.5-206; 8-20.5-208; and 8-20.5-209.
    (3) Colorado Revised Statutes (2018), Title 24 Government--State 
Administration, Article 4 Rule-Making and Licensing Procedures by State 
Agencies: Section 24-4-105(2)(c).
    (B) The regulatory provisions include:
    (1) Code of Colorado Regulations (May 1, 2018), 7 CCR 1101-14 
``Department of Labor and Employment, Division of Oil and Public 
Safety, Storage Tank Regulations,'' Article 6 Enforcement: Section 6-1 
Enforcement Program; Subsections 6-1-1 Notice of Violation; 6-1-2 
Enforcement Order; 6-1-3 Informal Conference; Section 6-2 Underground 
Storage Tank Delivery Prohibition Subsections 6-2-1 Criteria for 
Delivery Prohibition; 6-2-2 Red Tag Mechanisms Used to Identify 
Ineligible USTs; 6-2-3 Notification Processes for UST Owners/Operators 
and Product Deliverers; 6-2-4 Reclassifying Ineligible USTs as Eligible 
to Receive Product; 6-2-5 Delivery Prohibition Deferral in Rural and 
Remote Areas; 6-2-6 Delivery Prohibition Deferral in Emergency 
Situations; 6-2-7 Removal of Red Tag from Emergency Generator Tank 
Systems.
    (2) [Reserved]
    (iii) Provisions not incorporated by reference. The following 
specifically identified statutes and rules applicable to the Colorado 
underground storage tank program that are broader in coverage than the 
Federal program, are not part of the approved program, and are not 
incorporated by reference in this part for enforcement purposes:
    (A) Code of Colorado Regulations (May 1, 2018), 7 CCR 1101-14 
``Department of Labor and Employment, Division of Oil and Public 
Safety, Storage Tank Regulations'': Sections 1-5 ``motor fuel''; 2-2-
3(a); 2-2-3(j); and 2-3-7(d).
    (B) Colorado Revised Statutes (2018), Title 8 Labor and Industry, 
Article 20 Fuel Products: Sections 8-20-209(2), 8-20-212, 8-20-215, 8-
20-218, 8-20-223.5(3), 8-20-230, and 8-20-231; Article 20.5 Petroleum 
Storage Tanks, Sections 8-20.5-102(3) and (4), and 8-20.5-207.
    (2) Statement of legal authority. The Attorney General's Statement, 
signed by the Attorney General of the State of Colorado Department of 
Law on December 7, 2001, and by the Assistant Attorney General on 
November 23, 2016, 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 original application on November 13, 2002, and as part of 
the program revision application on November 1, 2016, 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 November 13, 
2002, and as part of the program revision application on November 1, 
2016, though not incorporated by reference, are referenced as part of 
the approved underground storage tank program under Subtitle I of RCRA, 
42 U.S.C. 6991 et seq.
    (5) Memorandum of Agreement. The Memorandum of Agreement between 
EPA Region 8 and the Colorado Department of Labor and Employment, 
Division of Oil and Public Safety, signed by the EPA Regional 
Administrator on February 13, 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.

0
3. Appendix A to part 282 is amended by adding the entry for Colorado 
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

* * * * *

Colorado

    (a) The statutory provisions include: Colorado Revised Statutes 
(2018), Title 8 Labor and Industry, Article 20.5 Petroleum Storage 
Tanks, Part 1 Administration: Section 8-20.5-101(16) definition of 
``tank''.
    (b) The regulatory provisions include:
    (1) Code of Colorado Regulations (May 1, 2018), 7 CCR 1101-14 
``Department of Labor and Employment, Division of Oil and Public 
Safety, Storage Tank Regulations'':
    Article 1 General Provisions:
    Section 1-5 Definitions, except ``aboveground storage tank'' 
(AST), ``aboveground storage tank (AST) system,'' ``fire resistant 
tank,'' ``motor fuel,'' the phrase ``or above ground'' in the 
definition of ``operator,'' Item (3) in the definition of ``owner'' 
relative to ASTs, and paragraph relative to ASTs in the definition 
of ``secondary containment''; 1-6 Glossary of Acronyms and 
Initializations;
    Article 2 Underground Storage Tanks:
    Section 2-1 UST Program Scope and Applicability; Subsections 2-
1-1 Applicability; 2-1-2 Determination of ownership and use;
    Section 2-2 UST Design, Construction, Installation and 
Registration; Subsections 2-2-1 Design and Performance standards for 
new and replaced UST systems; 2-2-2 Installation; 2-2-2-1 
Installation Application; 2-2-2-2 Installation Requirements; 2-2-2-3 
Installation Inspection; 2-2-3 UST System Registration; 2-2-4 
Upgrading existing UST System; 2-2-5 Repairs;
    Section 2-3 Operation; Subsections 2-3-1 Operator training; 2-3-
1-1 Classes of Operators; 2-3-1-2 Class A Operator; 2-3-1-3 Class B 
Operator; 2-3-1-4 Class C

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Operator; 2-3-1-5 Acceptable Training and Certification Processes; 
2-3-1-6 Training and Certification Deadlines and Schedules; 2-3-1-7 
Retraining Requirements; 2-3-1-8 Documentation; 2-3-2 Spill and 
Overfill Prevention; 2-3-3 Corrosion Protection; 2-3-4 Release 
Detection; 2-3-4-1 General requirements for all UST systems; 2-3-4-2 
Requirements for regulated substance UST Systems; 2-3-4-3 
Requirements for Piping; 2-3-4-4 Requirements for hazardous 
substance UST systems; 2-3-5 Periodic testing of spill prevision 
equipment and containment sumps used for interstitial monitoring of 
piping and periodic inspection of overfill prevention equipment; 2-
3-6 Compliance inspections; 2-3-6-1 Monthly Compliance Inspections; 
2-3-6-2 Annual Operational Compliance Inspections; 2-3-6-3 
Inspections Conducted by the Director; 2-3-7 Reporting and Record 
Keeping;
    Section 2-4 Closure of UST Systems; Subsections 2-4-1 Temporary 
Closure; 2-4-2 Permanent Closure; 2-4-3 Site Assessment;
    Section 2-5 UST Systems with Field-Constructed Tanks and Airport 
Hydrant Fuel Distribution Systems; Subsections 2-5-1 Definitions; 2-
5-2 General requirements; 2-5-3 Additions, exceptions, and 
alternatives for UST systems with field-constructed tanks and 
airport hydrant systems;
    Article 4 Release Identification And Reporting:
    Sections 4-1 Suspected Releases; 4-2 Response to Suspected 
Releases; 4-3 Confirmed Releases;
    Article 5 Release Response:
    Section 5-1 Response to Confirmed Releases; Subsections 5-1-1 
Acute human health hazards; 5-1-2 Chronic and secondary human health 
hazards and other environmental impacts; Section 5-2 Site 
Characterization;
    Section 5-3 Corrective Action;
    Section 5-4 No Further Action Request;
    Article 7 Financial Responsibility Requirements For Owners/
Operators Of Petroleum Underground Storage Tanks:
    Section 7-1 Applicability;
    Section 7-2 Financial Responsibility Mechanisms;
    Section 7-3 Maintenance of Financial Responsibility.
    (c) Copies of the Colorado statutes and regulations that are 
incorporated by reference are available from the following offices:
    Statutes--Colorado Revisor of Statutes, 200 E. Colfax Avenue, 
Denver, CO 80203; Attn: Office of Legislative Legal Services; Phone 
number: (303) 866-2045; website: https://leg.colorado.gov/agencies/office-legislative-legal-services/colorado-revised-statutes.
    Regulations--Colorado's Secretary of State, 1700 Broadway, 
Denver, CO 80290; Attn: Code of Colorado Regulations and 
Administrative Rules; Phone number: (303) 894-2200 ext. 6418; email: 
rules@sos.state.co.us; website: https://www.sos.state.co.us/CCR/Welcome.do.
* * * * *
[FR Doc. 2019-10413 Filed 5-17-19; 8:45 am]
BILLING CODE 6560-50-P


