[Federal Register Volume 67, Number 45 (Thursday, March 7, 2002)]
[Proposed Rules]
[Pages 10353-10354]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-5452]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 281
[FRL-7154-2]
Nebraska: Tentative Approval of Nebraska Underground Storage Tank
Program
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule; tentative determination on application of State
of Nebraska for final approval; public comment period.
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SUMMARY: Nebraska has applied to EPA for final approval of its
underground storage tank (UST) program under Subtitle I of the Resource
Conservation and Recovery Act (RCRA). EPA has reviewed the Nebraska
application and has made a tentative determination that Nebraska's UST
program satisfies all of the requirements necessary to qualify for
final approval. Thus, by this proposed rule, EPA is providing notice
that EPA intends to grant final approval to Nebraska to operate its UST
program in lieu of the Federal program. Nebraska's application for
approval is available for public review and comment, and a public
hearing will be held to solicit comments on the application, if there
is significant public interest expressed.
DATES: A public hearing will be scheduled if there is sufficient public
interest communicated to EPA by April 8, 2002. EPA will determine by
April 22, 2002, whether there is significant interest to hold the
public hearing. The State of Nebraska will participate in such public
hearing held by EPA on this subject. Written comments on the Nebraska
approval application, as well as requests to present oral testimony,
must be received by the close of business on April 8, 2002.
ADDRESSES: Send written comments to Linda Garwood, EPA Region 7, ARTD/
USTB, 901 North 5th Street, Kansas City, Kansas 66101. You can view and
copy Nebraska's application during normal business hours at the
following addresses: The Nebraska Department of Environmental Quality,
Suite 400, The Atrium, 1200 N Street, Lincoln, Nebraska, 68509,
telephone: (402) 471-3557; The 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,
and EPA Region 7, Library, 901 N. 5th Street, Kansas City, KS 66101. If
sufficient public interest is expressed, EPA will hold a public hearing
on the State of Nebraska's application for program approval. Anyone
wishing to learn the status of the public hearing on the State's
application may telephone the following contacts after April 22, 2002:
Linda Garwood, EPA Region 7, ARTD/USTB, 901 North 5th Street, Kansas
City, Kansas 66101, (913) 551-7268; David Chambers, Supervisor, Leaking
Underground Storage Tanks Program, Nebraska Department of Environmental
Quality, Suite 400, The Atrium, 1200 N Street, Lincoln, Nebraska 68509,
(402) 471-4230.
FOR FURTHER INFORMATION CONTACT: Linda Garwood, EPA Region 7, ARTD/
USTB, 901 North 5th Street, Kansas City, Kansas 66101.
SUPPLEMENTARY INFORMATION:
A. Background
Subtitle I of the Resource Conservation and Recovery Act (RCRA), as
amended, requires that the EPA develop standards for Underground
Storage Tanks (UST) systems as may be necessary to protect human health
and the environment, and procedures for approving State programs in
lieu of the Federal program. EPA promulgated State program approval
procedures at 40 CFR part 281. 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 (information-
gathering) and 9006 (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.
B. Nebraska UST Program
The UST program in Nebraska is implemented jointly by the Nebraska
Department of Environmental Quality (NDEQ) and the Nebraska State Fire
Marshal (NSFM). Section 81-15, 118 of the Nebraska Revised Statutes
(N.R.S.) designates NDEQ as the lead agency for the UST program, but
specifies that NSFM will conduct preventative activities under an
interagency agreement with NDEQ.
The State of Nebraska initially submitted a state program approval
application to EPA by letter dated December 15, 2000. Additional
information was provided by Nebraska on March 21, 2001. EPA evaluated
that information as well as other issues and determined the application
package met all requirements for a complete program application. On
December 5, 2001, EPA notified Nebraska that the application package
was complete.
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
[[Page 10354]]
regulatory authority and details concerning areas where the State
program is broader in scope or more stringent than the Federal program.
Also included was a transmittal letter from the Governor of Nebraska
requesting program approval, a description of the Nebraska UST program,
a demonstration of Nebraska's procedures to ensure adequate
enforcement, a Memorandum of Agreement outlining the roles and
responsibilities of EPA and the Nebraska Department of Environmental
Quality, and copies of all applicable state statutes and regulations.
EPA has reviewed the application and supplementary materials, and has
tentatively determined that the State's UST program meets all of the
requirements necessary to qualify for final approval.
Specifically, the Nebraska UST program has requirements that are no
less stringent than the federal requirements at: 40 CFR 281.30 New UST
system design, construction, installation, and notification; 40 CFR
281.31 Upgrading existing UST systems; 40 CFR 281.32 General operating
requirements; 40 CFR 281.33 Release detection; 40 CFR 281.34 Release
reporting, investigation, and confirmation; 40 CFR 281.35 Release
response and corrective action; 40 CFR 281.36 Out-of-service UST
systems and closure; 40 CFR 281.37 Financial responsibility for UST
systems containing petroleum; and 40 CFR 281.39 Lender Liability.
Additionally, the Nebraska UST program has adequate enforcement of
compliance, as described at: 40 CFR 281.40 Requirements for compliance
monitoring program and authority; 40 CFR 281.41 Requirements for
enforcement authority; 40 CFR 281.42 Requirements for public
participation; and 40 CFR 281.43 Sharing of information.
Notice of Public Hearing
EPA will hold a public hearing on the tentative decision, if
sufficient public interest is expressed. Anyone wishing to learn the
status of the public hearing on the State's application may telephone
the contacts listed in the Addresses section above, after April 22,
2002. EPA will consider all public comments on the 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 Nebraska. EPA expects to
make a final decision on whether or not to approve Nebraska's program
and will give notice of it in the Federal Register. The notice will
include a summary of the reasons for the final determination and a
response to all major comments.
Administrative Requirements
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 therefore this action is not subject to review by OMB. This
action proposes to authorize State requirements for the purpose of RCRA
9004 and would impose no additional requirements beyond those imposed
by State law. Accordingly, the Administrator certifies 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). Because this proposed action proposes to authorize 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
(Pub. L. 104-4). For the same reason, this proposed action does not
have tribal implications within the meaning of Executive Order 13175
(65 FR 67249, November 6, 2000). It does not have substantial direct
effects on tribal governments, 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, as
specified in Executive Order 13175. This proposed 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 proposes to authorize State requirements as part of
the State underground storage tank program without altering the
relationship or the distribution of power and responsibilities
established by RCRA. This proposed action also is not subject to
Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not
economically significant. This proposed action is not subject to
Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355
(May 22, 2001)) because it is not a significant regulatory action under
Executive Order 12866.
Under RCRA 9004, EPA grants approval of a State's program as long
as the State meets the criteria required by RCRA. It would thus be
inconsistent with applicable law for EPA, when it reviews a State
program application, to require the use of any particular voluntary
consensus standard in place of another standard that otherwise
satisfies the requirements of RCRA. Thus, the requirements of section
12(d) of the National Technology Transfer and Advancement Act of 1995
(15 U.S.C. 272 note) do not apply. As required by section 3 of
Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this
proposed rule, EPA has taken the necessary steps to eliminate drafting
errors and ambiguity, minimize potential litigation, and provide a
clear legal standard for affected conduct. EPA has complied with
Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the
takings implications of the proposed action in accordance with the
``Attorney General's Supplemental Guidelines for the Evaluation of Risk
and Avoidance of Unanticipated Takings'' issued under the executive
order. This proposed action does not impose an information collection
burden under the provisions of the Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.).
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: January 18, 2002.
Nat Scurry,
Acting Regional Administrator, Region 7.
[FR Doc. 02-5452 Filed 3-6-02; 8:45 am]
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