[Federal Register Volume 66, Number 151 (Monday, August 6, 2001)]
[Proposed Rules]
[Pages 40954-40957]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-19561]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 281
[FRL-7023-6]
Minnesota; Tentative Approval of State Underground Storage Tank
Program
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule; notice of tentative determination on application
of State of Minnesota for final approval, public hearing and public
comment period.
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SUMMARY: The State of Minnesota has applied for approval of its
underground storage tank program under Subtitle I of the Resource
Conservation and Recovery Act (RCRA). The Environmental Protection
Agency (EPA) has reviewed the Minnesota application and has made the
tentative decision that Minnesota's underground storage tank program
satisfies all of the requirements necessary to qualify for approval.
The Minnesota application for approval is available for public review
and comment. A public hearing will be held to solicit comments on the
application, unless insufficient public interest is expressed.
DATES: A public hearing is scheduled for September 28, 2001, unless
insufficient public interest is expressed in holding a hearing. EPA
reserves the right to cancel the public hearing if sufficient public
interest is not communicated to EPA in writing by August 27, 2001. EPA
will determine by September 5, 2001, whether there is significant
interest to hold the public hearing. The State of Minnesota will
participate in the public hearing held by EPA on this subject. Written
comments on the Minnesota approval application, as well as requests to
present oral testimony, must be received by the close of business on
September 28,2001.
ADDRESSES: Copies of the Minnesota approval application are available
at the following addresses for inspection and copying:
Minnesota Pollution Control Agency, Regular Facilities Section,
Metro District, 520 Lafayette Road North, St. Paul, Minnesota 55155,
Telephone: (651) 296-7790, 8 am through 4 pm, Central Daylight Savings
Time.
U.S. EPA Docket Clerk, Office of Underground Storage Tanks, c/o
RCRA Information Center, 1235 Jefferson Davis Highway, Arlington,
Virginia 22202, Telephone: (703) 603-9230, 9:00 am through 4:00 pm,
Eastern Daylight Savings Time; and
U.S. EPA Region 5 Library, 77 West Jackson Blvd., Chicago, Illinois
60604, Telephone: (312) 353-2022, 10 am through 4 pm, Central Daylight
Savings Time.
Written comments should be sent to Mr. Andrew Tschampa, Chief of
Underground Storage Tank Section, U.S. EPA Region 5, 77 West Jackson
Blvd., Chicago, Illinois 60604, Telephone: (312) 886-6136.
Unless insufficient public interest is expressed, EPA will hold a
public hearing on the State of Minnesota's application for program
approval on September 28, 2001, at 9:00 am, Central Daylight Savings
Time, at the Minnesota Pollution Control Agency (MPCA), MPCA Board
Room, Lower Level, 520 Lafayette Road North, St. Paul, Minnesota.
Anyone who wishes to learn whether or not the public hearing on the
State's application has been cancelled should telephone the following
contacts after September 5, 2001:
Mr. Andrew Tschampa, Chief, Underground Storage Tank Section, U.S.
EPA Region 5, 77 West Jackson Blvd., Chicago, Illinois 60604,
Telephone: (312) 886-6136, or
Mr. Bob Dullinger, Supervisor, Tanks Program, Regular Facilities
Section, Metro District, Minnesota Pollution Control Agency, 520
Lafayette Road North, St. Paul, Minnesota 55155, Telephone: (651) 297-
8608.
FOR FURTHER INFORMATION CONTACT: Mr. Andrew Tschampa, Chief,
Underground Storage Tank Section, U.S. EPA Region 5, 77 West Jackson
Blvd., Chicago, Illinois, Telephone: (312) 886-6136.
SUPPLEMENTARY INFORMATION:
I. Background
Section 9004 of the Resource Conservation and Recovery Act (RCRA)
authorizes EPA to approve State underground storage tank programs to
operate in the State in lieu of the Federal underground storage tank
(UST) program. Program approval may be granted by EPA pursuant to RCRA
section 9004(b), if the Agency finds that the State program: is ``no
less stringent'' than the Federal program for the seven elements set
forth at RCRA section 9004(a)(1) through (7); includes the notification
requirements of RCRA section 9004(a)(8); and provides for adequate
enforcement of compliance with UST standards of RCRA section 9004(a).
Note that RCRA sections 9005 (on information-gathering) and 9006 (on
federal enforcement) by their terms apply even in states with programs
approved by EPA under RCRA section 9004. Thus, the Agency retains its
authority under RCRA sections 9005 and 9006, 42 U.S.C. 6991d and 6991e,
and other applicable statutory and regulatory provisions to undertake
inspections and enforcement actions in approved states. With respect to
such an enforcement action, the Agency will rely on federal sanctions,
federal inspection authorities, and federal procedures rather than the
state authorized analogues to these provisions.
II. Minnesota
The Minnesota Pollution Control Agency (MPCA) is the implementing
agency for underground storage tank activities (UST) activities in the
State.
On July 13, 1991, Minnesota adopted UST program regulations for
petroleum and hazardous substance underground storage tanks. Prior to
the adoption of
[[Page 40955]]
the regulations, Minnesota solicited public comments on the draft UST
program regulations.
The MPCA submitted their application for State Program Approval
(SPA) of Minnesota's UST program to U.S. EPA by letter dated May 11,
2000. The EPA reviewed the application for completeness and determined
before the application could be considered complete a number of items
had to be addressed. All the outstanding items were addressed. EPA
notified the MPCA in a February 26, 2001, letter that the Minnesota
application was complete. In addition, EPA has reviewed the MPCA
application and has tentatively determined that the State's UST program
meets all of the requirements necessary to qualify for final approval.
EPA will hold a public hearing on its tentative decision on
September 28, 2001, unless insufficient public interest is expressed.
The public may also submit written comments on EPA's tentative
determination until September 28, 2001. Copies of the Minnesota
application are available for inspection and copying at the locations
indicated in the ADDRESSES section of this document.
EPA will consider all public comments on its tentative
determination received at the hearing, or received in writing during
the public comment period. Issues raised by those comments may be the
basis for a decision to deny final approval to Minnesota. EPA expects
to make a final decision on whether or not to approve Minnesota's
program within 60 days of the close of the public comment period, and
will give notice of it in the Federal Register. The document will
include a summary of the reasons for the final determination and a
response to all major comments.
Included in the State's Application is an Attorney General's
statement. The Attorney General's statement provides an outline of the
State's statutory and regulatory authority and details concerning areas
where the State program is broader in scope or more stringent than the
federal program.
In addition to the areas noted in the Attorney General's statement,
several aspects of the State's program should be noted.
1. Corrective Action Requirements and Program Implementation
The MPCA requirements for corrective action are found in State
statutes, rules, and MPCA procedures and guidance documents. The term
``waters of the state'' found in Minnesota Statute Section 115.061(a)
provides the legal foundation for the State's corrective action
requirements and program. MPCA broadly interprets the ``waters of the
state'' definition to include waters, including but not limited to,
ponds, waterways, aquifers, and drainage systems. The MPCA requires
that all spills, except petroleum spills of five gallons or less, be
reported to the agency. Minnesota Statute 115.061(a) also requires that
responsible persons must recover as rapidly and as thoroughly as
possible the spilled material and take other actions to minimize or
abate pollution.
The MPCA implements its corrective action program through broad
statutory language, as summarized in the Attorney General's statement,
in conjunction with commissioner's orders, and program guidance, and
other documentation. In addition, the MPCA developed fact sheets and
forms to provide technical guidance for all phases of petroleum release
reporting, investigation, and cleanup. Through the enforcement of
commissioner's orders, incorporating technical guidance documents by
reference, the MPCA has the authority to require responsible persons to
carry out effective corrective actions to address UST releases.
2. Financial Responsibility Requirements
The MPCA's requirements for financial responsibility are found in
State statutes and rules that ensure the availability of sufficient
resources to clean up a petroleum release. Minnesota Statute Section
115C.03 requires a responsible person to take corrective action for
underground storage tank releases. Minnesota Statute 115C.07
establishes the Petroleum Tank Release Compensation Board (the ``Petro
Board'') and Section 115C.08 establishes the Petrofund to provide for
reimbursement of expenditures for cleanup of petroleum releases. If the
responsible person fails to complete corrective action as required, the
MPCA is authorized to complete all appropriate corrective actions,
using funds from the Petrofund, and to seek to recovery of those costs
from the responsible person. Therefore, EPA believes the Petrofund
program meets the financial responsibility objective under 40 CFR
281.37.
It should be noted in Minnesota, tank facilities, including
pipeline terminals, with more than 1 million gallons of total petroleum
storage capacity at the tank facility are excluded from the Petrofund
reimbursement program. Most product stored at these sites is in
aboveground storage tanks. The MPCA has determined that currently only
six of these sites also have UST systems. The EPA directly contacted
each of the six facilities to determine if these facilities meet the
federal financial responsibility requirements found at 40 CFR part 280,
subpart H. EPA determined that each facility was in compliance with
those requirements.
The Minnesota Petrofund is an essential component in the State's
program in meeting the financial responsibility State program approval
objective. Therefore, any future changes to the Petrofund could impact
State program approval. Minnesota Statute Section 115C.13 contains a
Repealer provision which includes and affects Section 115C.08, the
Petroleum Tank Fund. Specifically, the Petrofund is scheduled to be
repealed on June 30, 2005. If the Petrofund expires in 2005, the State
of Minnesota will need to adopt other requirements to meet the Federal
financial responsibility objective to retain State Program Approval.
3. Indian Lands/Country Clarification
Minnesota is not authorized to carry out the Federal underground
storage tank program in Indian country within the State, as defined in
18 U.S.C. 1151. This includes:
1. All lands within the exterior boundaries of federally recognized
Indian reservations within or abutting the State of Minnesota;
2. Any land held in trust by the U.S. for an Indian tribe, and
3. Any other land, whether on or off a federally recognized Indian
reservation that qualifies as Indian country pursuant to 18 U.S.C.
1151.
Therefore, this action has no effect on Indian country. EPA will
continue to implement and administer the RCRA, Subtitle I program on
these lands.
4. Heating Oil Tanks Clarification
In Minnesota, 1100 gallon or greater USTs that contain heating oil
for consumptive purposes must comply with the State tank notification
requirements. In the Federal UST regulations, all USTs storing heating
oil for consumptive use on the premises are exempt from regulation.
Therefore, we consider Minnesota's program to be broader in scope in
this area because the State requires tank notifications for these types
of USTs.
III. Administrative Requirements
Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local,
[[Page 40956]]
and tribal governments and the private sector. Under section 202 of the
UMRA, EPA generally must prepare a written statement, including a cost-
benefit analysis, for proposed and final rules with ``Federal
mandates'' that may result in expenditures to State, local, and tribal
governments, in the aggregate, or to the private sector, of $100
million or more in any one year. Before promulgating an EPA rule for
which a written statement is needed, section 205 of the UMRA generally
requires EPA to identify and consider a reasonable number of regulatory
alternatives and adopt the least costly, most cost-effective or least
burdensome alternative that achieves the objectives of the rule. The
provisions of section 205 do not apply when they are inconsistent with
applicable law. Moreover, section 205 allows EPA to adopt an
alternative other than the least costly, most cost-effective or least
burdensome alternative if the Administrator publishes with the final
rule an explanation why that alternative was not adopted. Before EPA
establishes any regulatory requirements that may significantly or
uniquely affect small governments, including tribal governments, it
must have developed under section 203 of the UMRA a small government
agency plan. The plan must provide for notifying potentially affected
small governments, enabling officials of affected small governments to
have meaningful and timely input in the development of EPA regulatory
proposals with significant Federal intergovernmental mandates, and
informing, educating, and advising small governments on compliance with
the regulatory requirements.
Today's rule contains no Federal mandates (under the regulatory
provisions of Title II of the UMRA) for State, local or tribal
governments or the private sector. The UMRA generally excludes from the
definition of ``Federal intergovernmental mandate'' duties that arise
from participation in a voluntary Federal program. Minnesota's
participation in EPA's state program approval process under RCRA
Subtitle I is voluntary. Thus, today's rule is not subject to the
requirements of sections 202 and 205 of the UMRA.
In addition, EPA has determined that this rule contains no
regulatory requirements that might significantly or uniquely affect
small governments. Although small governments may own and/or operate
underground storage tanks, they are already subject to the regulatory
requirements under the existing State requirements that EPA is now
approving and, thus, are not subject to any additional significant or
unique requirements by virtue of this action. Thus, the requirements of
section 203 of the UMRA also do not apply to today's rule.
Regulatory Flexibility Act (RFA) (as amended by the Small Business
Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et
seq.)
The RFA generally requires an agency to prepare a regulatory
flexibility analysis of any rule subject to notice and comment
rulemaking requirements under the Administrative Procedure Act or any
other statute unless the agency certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
Small entities include small businesses, small organizations, and small
governmental jurisdictions.
For purposes of assessing the impacts of today's action on small
entities, small entity is defined as: (1) A small business as specified
in the Small Business Administration regulations; (2) a small
governmental jurisdiction that is a government of a city, county, town,
school district or special district with a population of less than
50,000; and (3) a small organization that is any not-for-profit
enterprise which is independently owned and operated and is not
dominant in its field.
After considering the economic impacts of this action on small
entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. This action
does not impose any new requirements on small entities because small
entities that own and/or operate underground storage tanks are already
subject to the State underground storage tank requirements which EPA is
now approving. This action merely approves for the purpose of RCRA
section 9004 those existing State requirements.
Compliance With Executive Order 12866
The Office of Management and Budget has exempted this rule from the
requirements of Executive Order 12866.
Compliance With Executive Order 13045 (Children's Health)
Executive Order 13045, ``Protection of Children from Environmental
Health Risks and Safety Risks,'' applies to any rule that: (1) The
Office of Management and Budget determines is ``economically
significant'' as defined under Executive Order 12866, and (2) concerns
an environmental health or safety risk that EPA has reason to believe
may have a disproportionate effect on children. If the regulatory
action meets both criteria, the Agency must evaluate the environmental
health or safety effects of the planned rule on children and explain
why the planned regulation is preferable to other potentially effective
and reasonably feasible alternatives considered by the Agency.
EPA interprets Executive Order 13045 as applying only to those
regulatory actions that are based on health or safety risks, such that
the analysis required under section 5-501 of the Order has the
potential to influence the regulation. This rule is not subject to
Executive Order 13045 because it approves a state program.
Compliance With Executive Order 13175 (Consultation and Coordination
With Indian Tribal Governments)
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' ``Policies that have tribal
implications'' is defined in the Executive Order to include regulations
that have ``substantial direct effects on one or more Indian tribes, on
the relationship between the Federal government and the Indian tribes,
or on the distribution of power and responsibilities between the
federal government and Indian tribes.''
This rule does not have tribal implications. It will not have
substantial direct effects on tribal governments, on the relationship
between the Federal government and Indian tribes, or on the
distribution of power and responsibilities between the Federal
government and Indian tribes, as specified in Executive Order 13175.
Minnesota is not approved to implement the RCRA underground storage
tank program in Indian country. This action has no effect on the
underground storage tank program that EPA implements in the Indian
country within the State. Thus, Executive Order 13175 does not apply to
this rule.
Compliance With Executive Order 13132 (Federalism)
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and
[[Page 40957]]
the States, or on the distribution of power and responsibilities among
the various levels of government.'' Under section 6 of Executive Order
13132, EPA may not issue a regulation that has federalism implications,
that imposes substantial direct compliance costs, and that is not
required by statute, unless the Federal government provides the funds
necessary to pay the direct compliance costs incurred by State and
local governments, or EPA consults with State and local officials early
in the process of developing the proposed regulation. EPA also may not
issue a regulation that has federalism implications and that preempts
State law unless the Agency consults with State and local officials
early in the process of developing the proposed regulation.
This action does not have federalism implications. It will not have
a substantial direct effect on 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, because it affects only one State. This
action simply provides EPA approval of Minnesota's voluntary proposal
for its State underground storage tank program to operate in lieu of
the Federal underground storage tank program in that State. Thus, the
requirements of section 6 of the Executive Order do not apply.
National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note)
directs EPA to use voluntary consensus standards in its regulatory
activities unless to do so would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., materials specifications, test methods, sampling
procedures, and business practices) that are developed or adopted by
voluntary consensus standards bodies. The NTTAA directs EPA to provide
Congress, through OMB, explanations when the Agency decides not to use
available and applicable voluntary consensus standards.
This action does not involve technical standards. Therefore, EPA is
not considering the use of any voluntary consensus standards.
Paperwork Reduction Act
Under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., Federal
agencies must consider the paperwork burden imposed by any information
request contained in a proposed rule or a final rule. This rule will
not impose any information requirements upon the regulated community.
List of Subjects in 40 CFR Part 281
Environmental protection, Administrative practice and procedure,
Hazardous substances, Intergovernmental relations, Reporting and
recordkeeping requirements.
Authority: This document is issued under the authority of
section 9004 of the Solid Waste Disposal Act as amended 42 U.S.C.
6912(a), 6926, 6974(b).
Dated: July 13, 2001.
Gary Gulezian,
Acting Regional Administrator, Region 5.
[FR Doc. 01-19561 Filed 8-3-01; 8:45 am]
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