(a) The State of West Virginia's underground storage tank program is approved in lieu of the Federal program in accordance with 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 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.

(b) West Virginia has primary responsibility for enforcing its underground storage tank program. However, EPA retains the authority to exercise its inspection and enforcement authorities in accordance with 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 in accordance with other 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 make 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 submitted to EPA in the State's program application for final approval. On September 23, 1997, EPA published notice of approval of the State's program in the Federal Register, 62 FR 49620. That approval became effective on February 10, 1998 (63 FR 6667). Copies of West Virginia's program application may be obtained from the West Virginia Department of Environmental Protection, 1356 Hansford Street, Charleston, WV 25301-1401.

(1) State statutes and regulations.

(i) The provisions cited in this paragraph, 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.

(A) West Virginia Statutory Requirements Applicable to the Underground Storage Tank Program, 1997.

(B) West Virginia Regulatory Requirements Applicable to the Underground Storage Tank Program, 1997.

(ii) EPA considered the following statutes in evaluating the State program, but did not incorporate them by reference.

(A) The statutory provisions include:

(1) Code of West Virginia, Article 17: Underground Storage Tanks

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) [Reserved]

(iii) 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, Article 17: Underground Storage Tanks

Section 22-17-6   Promulgation of rules and standards by director, §22-17-6.(b)(12)

Section 22-17-7   Underground storage tank advisory committee; purpose

Section 22-17-19   Disclosures required in deeds and leases

Section 22-17-20   Appreciation 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: Office of 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

Section 33-30-4   Notification Requirements, §33-30-4.2.b and 4.4.b

Section 33-30-5   Carriers

(2) West Virginia Code of State Regulations, Title 33: Office of Waste Management Rule, Series 31: Underground Storage Tank Fee Assessments

(3) West Virginia Code of State Regulations, Title 33: Office of Waste Management Rule, Series 32: Underground Storage Tank Insurance Trust Fund

(2) Statement of legal authority.

(i) “Attorney General's Statement”, signed by the State Attorney General on June 30, 1997, though not incorporated by reference, is referenced as part of the approved underground storage tank program in accordance with Subtitle I of RCRA, 42 U.S.C. 6991 et seq.

(ii) Letter from the Attorney General of West Virginia to EPA, June 30, 1997, though not incorporated by reference, is referenced as part of the approved underground storage tank program in accordance with 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 July 7, 1997, though not incorporated by reference, is referenced as part of the approved underground storage tank program in accordance with 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 July 7, 1997, though not incorporated by reference, are referenced as part of the approved underground storage tank program in accordance with Subtitle I of RCRA, 42 U.S.C. 6991 et seq.

(5) Memorandum of Agreement. The Memorandum of Agreement between EPA Region III and the West Virginia Division of Environmental Protection, signed by the EPA Regional Administrator on September 15, 1997, though not incorporated by reference, is referenced as part of the approved underground storage tank program in accordance with Subtitle I of RCRA, 42 U.S.C. 6991 et seq.

[69 FR 33311, June 15, 2004]