(a) The State of New Hampshire 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 New Hampshire Department Environmental Services (NH DES), was approved by EPA pursuant to 42 U.S.C. 6991c and 40 CFR part 281. EPA approved the New Hampshire program on June 19, 1991, which was effective on July 19, 1991.
(b) New Hampshire has primary responsibility for administering and enforcing its federally approved underground storage tank program. However, EPA retains the authority to exercise its inspection and enforcement authorities under sections 9005 and 9006 of Subtitle I of RCRA, 42 U.S.C. 6991d and 6991e, as well as under any other applicable statutory and regulatory provisions.
(c) To retain program approval, New Hampshire 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 New Hampshire 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 notification of any change will be published in the Federal Register.
(d) New Hampshire has final approval for the following elements of its program application originally submitted to EPA and approved effective July 19, 1991, and the program revision application approved by EPA, effective on December 31, 2019.
(1) State statutes and regulations -
(i) Incorporation by reference . The material cited in this paragraph (d)(1)(i), 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 § 282.2 for incorporation by reference approval and inspection information.) You may obtain copies of the New Hampshire regulations and statutes that are incorporated by reference in this paragraph (d)(1)(i) from Oil Compliance Section Supervisor, New Hampshire DES, PO Box 29, Concord, NH 03302-0029; Phone number: 603-271-6058; Hours: Monday-Friday, 8:00 a.m. to 4:00 p.m.; link to statutes and regulations: NH RSA 21-O: http://www.gencourt.state.nh.us/rsa/html/l/21-O-mrg.htm; NH RSA 91-A: http://www.gencourt.state.nh.us/rsa/html/vi/91-a/91-a-mrg.htm; NH RSA 146-C: http://www.gencourt.state.nh.us/rsa/html/X/146-C/146-C-mrg.htm; NH RSA 485-C: http://www.gencourt.state.nh.us/rsa/html/NHTOC/NHTOC-L-485-C.htm; NHDES Env-Or 400: https://www.des.nh.gov/organization/commissioner/legal/rules/documents/env-or400.pdf; NHDES Env-Or 600: https://www.des.nh.gov/organization/commissioner/legal/rules/documents/env-or600.pdf.
(A) “New Hampshire Statutory and Regulatory Requirements Applicable to the Underground Storage Tank Program, October 2018.”
(B) [Reserved]
(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) New Hampshire Revised Statutes Annotated, Title I, The State and its Government, Chapter 21-O, Department of Environmental Services, Section 21-O:9. Waste Management Council; Section 21-O:14 Administrative Appeals.
(2) New Hampshire Revised Statutes Annotated, Title X, Public Health, Chapter 146-C Underground Storage Facilities, Section C:5 Records Required, Inspections; Section C:9-a Orders, Injunctions; Section C:10 Penalty; Section C:10-a Administrative Fines; Section C:11 Liability for Cleanup Costs, Municipal Regulations; Section C:13 Penalty, Persons Strictly Liable; Section C:14 Delivery Prohibition; Section C:15 Non-Compliant Storage Tanks or Facilities, Red-Tagging Procedure; Section C:16 Appeals.
(3) New Hampshire Revised Statutes Annotated, Title L, Water Management and Protection, Chapter 485-C Groundwater Protection Act, Section C:15 Investigation and Inspections; Section C:16 Cease and Desist Orders; Section C:17 Appeals; Section C:18 Administrative Fines; Section C:19 Penalties and Other Relief.
(4) New Hampshire Revised Statutes Annotated, Title LV, Proceedings in Special Cases, Chapter 541 Rehearings and Appeals in Certain Cases.
(B) The regulatory provisions include:
(1) New Hampshire Code of Administrative Rules, Chapter Env-Or 400 Underground Storage Tank Facilities: 404.05(b)(3) Signature Required; 404.11 Suspension or Revocation of Permit to Operate.
(2) [Reserved]
(iii) Provisions not incorporated by reference. The following specifically identified statutory and regulatory provisions applicable to the New Hampshire's UST program 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:
(A) New Hampshire Code of Administrative Rules, Chapter Env-Or 400 Underground Storage Tank Facilities: 405.05(f) and (g) Spill Containment; 405.07(a)(2) Dispensing Areas; 405.12(a) Day Tank Markings Required; 406.12(c) Spill Containment Integrity Testing; 407.01(a) Application for Approval of UST Systems; 407.06(b-e), (g) and (h) UST System Design Requirements; 408.05(f) Permanent Closure Required; Part Env-Or 409 Waivers.
(B) [Reserved]
(2) Statement of legal authority. The Attorney General's Statements, signed by the Attorney General of New Hampshire on November 1, 1990, and June 3, 2019, though not incorporated by reference, are referenced as part of the approved underground storage tank program under Subtitle I of RCRA, 42 U.S.C. 6991 et seq.
(3) Demonstration of procedures for adequate enforcement. The “Demonstration of Procedures for Adequate Enforcement” submitted as part of the original application on January 8, 1991, and as part of the program revision application for approval on June 24, 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.
(4) Program description. The program description and any other material submitted as part of the original application on January 8, 1991, and as part of the program revision application on June 24, 2019, 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 1 and the New Hampshire Department of Environmental Services, signed by the EPA Regional Administrator on February 12, 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.
[84 FR 58631, Nov. 1, 2019]