Title 40
SECTION 282.98
282.98 West Virginia State-Administered Program.
§ 282.98 West Virginia State-Administered Program.(a) The State of West Virginia 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 West Virginia Department of Environmental Protection, was approved by EPA pursuant to 42 U.S.C. 6991c and 40 CFR part 281 of this chapter. EPA approved the West Virginia underground storage tank program on September 23, 1997, and approval was effective on February 10, 1998. A subsequent program revision application was approved by EPA and became effective on November 10, 2020.
(b) West Virginia has primary responsibility for administering and enforcing its federally-approved underground storage tank program. However, EPA retains the authority to exercise its inspection and enforcement authorities under sections 9005 and 9006 of Subtitle I of RCRA, 42 U.S.C. 6991d and 6991e, regardless of whether the State has taken its own actions, as well as under any other applicable statutory and regulatory provisions.
(c) To retain program approval, West Virginia must revise its approved program to adopt new changes to the federal Subtitle I program which makes it more stringent, in accordance with Section 9004 of RCRA, 42 U.S.C. 6991c and 40 CFR part 281, subpart E. If West Virginia obtains approval for the revised requirements pursuant to section 9004 of RCRA, 42 U.S.C. 6991c, the newly approved statutory and regulatory provisions will be added to this subpart and notice of any change will be published in the Federal Register.
(d) West Virginia has final approval for the following elements of its program application originally submitted to EPA and approved on September 23, 1997 and effective February 10, 1998, and the program revision application approved by EPA, effective on November 10, 2020.
(1) State statutes and regulations. - (i) Incorporation by reference. The provisions cited in this paragraph, and listed in Appendix A to Part 282, with the exception of the provisions cited in paragraphs (d)(1)(ii) and (iii) of this section, are incorporated by reference as part of the approved underground storage tank program in accordance with Subtitle I of RCRA, 42 U.S.C. 6991 et seq. (See § 282.2 for incorporation by reference approval and inspection information.) The Director of the Federal Register approves this incorporation by reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. You may obtain copies of the West Virginia regulations and statutes that are incorporated by reference in this paragraph from Terry Fletcher, Acting Communications Director, West Virginia Department of Environmental Protection, 601 57th St. SE, Charleston, WV 25304; Phone number: 304-926-0499 ext 49720; email address, [email protected]; Hours: Monday-Friday, 7:00 a.m. to 3:30 p.m. You may inspect all approved material at the EPA Region 3 Office, 1650 Arch Street, Philadelphia, PA 19103-2029 (Phone number: 215-814-2953); or the National Archives and Records Administration (NARA). For information on the availability of the material at NARA, email [email protected] or go to http://www.archives.gov/federal-register/cfr/ibr-locations.html.
(A) West Virginia Statutory Requirements Applicable to the Underground Storage Tank Program, June 2011.
(B) West Virginia Regulatory Requirements Applicable to the Underground Storage Tank Program, June 2018.
(ii) Legal basis. EPA evaluated the following statutes and regulations, which are part of the approved program, but they are not being incorporated by reference for enforcement purposes and do not replace federal authorities:
(A) The statutory provisions include:
(1) Code of West Virginia, Chapter 22, Article 17: Underground Storage Tank Act
Section 22-17-5 Powers and duties of director; integration with other acts Section 22-17-6 Promulgation of rules and standards by director, § 22-17-6.(b)(13) Section 22-17-12 Confidentiality, § 22-17-12.(b) Section 22-17-13 Inspections, monitoring, and testing Section 22-17-15 Administrative orders; injunctive relief; requests for reconsideration Section 22-17-16 Civil penalties Section 22-17-17 Public participation Section 22-17-18 Appeal to environmental quality board Section 22-17-23 Duplicative enforcement prohibited(2) Code of West Virginia, Chapter 22, Article 1: Department of Environmental Protection
Section 22-1-2 Definitions(B) The regulatory provisions include:
(1) West Virginia Code of State Regulations, Title 33: Waste Management Rule, Series 30: Underground Storage Tanks
Section 33-30-5 Delivery Prohibition(iii) Provisions not incorporated by reference. The following statutory and regulatory provisions are “broader in scope” than the federal program, are not part of the approved program, and are not incorporated by reference. These provisions are not federally enforceable.
(A) The statutory provisions include:
(1) Code of West Virginia, Chapter 22, Article 17: Underground Storage Tank Act
Section 22-17-6 Promulgation of rules and standards by director, § 22-17-6.(b)(12) (except as to installation) Section 22-17-7 Underground storage tank advisory committee; purpose Section 22-17-19 Disclosures required in deeds and leases Section 22-17-20 Appropriation of funds; underground storage tank administrative fund Section 22-17-21 Leaking underground storage tank response fund(2) [Reserved]
(B) The regulatory provisions include:
(1) West Virginia Code of State Regulations, Title 33: Waste Management Rule, Series 30: Underground Storage Tanks
Section 33-30-3 Certification Requirements for Individuals who Install, Repair, Retrofit, Upgrade, Perform Change-in-Service, Close or Tightness Test Underground Storage Tank Systems (except as to Individuals who Install) Section 33-30-6 Operator Training Requirements(2) West Virginia Code of State Regulations, Title 33: Office of Waste Management Rule, Series 31: Underground Storage Tank Fee Assessments
(2) Statement of Legal Authority. “Attorney General's Statement”, signed by the Acting General Counsel, Chief of the Office of Legal Services, West Virginia Department of Environmental Protection, on June 8, 2017, though not incorporated by reference, is referenced as part of the approved underground storage tank program under Subtitle I of RCRA, 42 U.S.C. 6991 et seq.
(3) Demonstration of Procedures for Adequate Enforcement. The “Demonstration of Procedures for Adequate Enforcement” submitted as part of the program revision application on June 24, 2018, though not incorporated by reference, is referenced as part of the approved underground storage tank program under Subtitle I of RCRA, 42 U.S.C. 6991 et seq.
(4) Program Description. The program description and any other material submitted as part of the program revision application on June 24, 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.
(5) Memorandum of Agreement. The Memorandum of Agreement between EPA Region 3 and the West Virginia Department of Environmental Protection, signed by the EPA Regional Administrator on July 8, 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.
[85 FR 56176, Sept. 11, 2020]