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Federal Register / Vol. 86, No. 39 / Tuesday, March 2, 2021 / Rules and Regulations C. What codification decisions has EPA
made in this rule?
Incorporation by reference: In this rule, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with the requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of the Virginia statutes and regulations described in the amendments to 40 CFR
part 282 set forth below. EPA has made, and will continue to make, these documents generally available through https www.regulations.gov and at the EPA Region 3 office see the FOR
FURTHER INFORMATION CONTACT section of this preamble for more information.
One purpose of this Federal Register document is to codify Virginias approved UST program. The codification reflects the State program that will be in effect at the time EPAs approved revisions to the Virginia UST
program addressed in this direct final rule become final. If, however, EPA
receives any significant negative comment opposing the proposed rulemaking then this codification will not take effect, and the State rules that are approved after EPA considers public comment will be codified instead. The document incorporates by reference Virginias UST statutes and regulations and clarifies which of these provisions are included in the approved and federally-enforceable program. By codifying the approved Virginia program and by amending the CFR, the public will more easily be able to discern the status of the federallyapproved requirements of the Virginia program.
EPA is incorporating by reference the Virginia approved UST program in 40
CFR 282.96. Section 282.96d1iA
and B incorporates by reference for enforcement purposes the States statutes and regulations.
Section 282.96 also references the Attorney Generals 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.

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D. What is the effect of Virginias codification on enforcement?
The EPA retains the authority under sections 9005 and 9006 of Subtitle I of RCRA, 42 U.S.C. 6991d and 6991e, and other applicable statutory and regulatory provisions to undertake inspections and enforcement actions and to issue orders in approved States.
If EPA determines it will take such
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actions in Virginia, EPA will rely on federal sanctions, federal inspection authorities, and federal procedures rather than the States authorized analogs to these provisions. Therefore, EPA is not incorporating by reference such approved Virginia procedural and enforcement authorities. Section 282.96d1ii of 40 CFR lists those approved Virginia authorities that would fall into this category.
E. What State provisions are not part of the codification?
The public also needs to be aware that some provisions of the States UST
program are not part of the federallyapproved State program. Such provisions are not part of the RCRA
Subtitle I program because they are broader in scope than Subtitle I of RCRA. 40 CFR 281.12a3ii states that where an approved state program has a greater scope of coverage than required by federal law, the additional coverage is not a part of the federally-approved program. As a result, State provisions that are broader in scope than the federal program are not incorporated by reference for purposes of enforcement in part 282. Section 282.96d1iii lists for reference and clarity the Virginia statutory and regulatory provisions that are broader in scope than the federal program and which are not, therefore, part of the approved program being codified in this action. Provisions that are broader in scope cannot be enforced by EPA; the State, however, will continue to implement and enforce such provisions under State law.
III. Statutory and Executive Order Reviews This action only applies to Virginias UST Program requirements pursuant to RCRA section 9004 and imposes no requirements other than those imposed by State law. It complies with applicable Executive Orders 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 Order 12866 58 FR 51735, October 4, 1993
and 13563 76 FR 3821, January 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.

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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 Virginias 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 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 of 1995
2 U.S.C. 15311538. 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, August 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.
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, April 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, Actions Concerning Regulations that Significantly Affect
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