[Federal Register Volume 60, Number 120 (Thursday, June 22, 1995)]
[Rules and Regulations]
[Pages 32469-32471]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-15173]



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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 282

[FRL-5205-7]


Underground Storage Tank Program: Approved State Program for 
North Dakota

AGENCY: Environmental Protection Agency (EPA).

ACTION: Immediate final rule.

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SUMMARY: The Resource Conservation and Recovery Act of 1976, as amended 
(RCRA), authorizes the U.S. Environmental Protection Agency (EPA) to 
grant approval to states to operate their underground storage tank 
programs in lieu of the federal program. 40 CFR part 282 codifies EPA's 
decision to approve state programs and incorporates by reference those 
provisions of state statutes and regulations that will be subject to 
EPA's inspection and enforcement authorities under sections 9005 and 
9006 of RCRA subtitle I and other applicable statutory and regulatory 
provisions. This rule codifies in part 282 the prior approval of North 
Dakota's underground storage tank program and incorporates by reference 
appropriate provisions of state statutes and regulations.

DATES: This regulation is effective on August 21, 1995, unless EPA 
publishes a prior Federal Register document withdrawing this immediate 
final rule. All comments on the codification of North Dakota's 
underground storage tank program must be received by the close of 
business on July 24, 1995. The incorporation by reference of certain 
publications listed in the regulations is approved by the Director of 
the Federal Register, as of August 21, 1995, in accordance with 5 
U.S.C. 552(a).

ADDRESSES: Comments may be mailed to Jo Taylor, 8HWM-WM, Hazardous 
Waste Management Division, Underground Storage Tank Program, U.S. EPA 
Region 8, 999 18th Street, Suite 500, Denver, Colorado, 80202-2466. 
Comments received may be inspected in the U.S. EPA Region 8 Library, 
Suite 144, at the above address from 12:00 p.m. to 4:00 p.m., Monday 
through Friday, excluding federal holidays.

FOR FURTHER INFORMATION CONTACT: Jo Taylor, Underground Storage Tank 
Program, U.S. EPA Region VIII, 999-18th Street, Suite 500, Denver, CO 
80202-2466. Phone: (303) 293-1511.

SUPPLEMENTARY INFORMATION:

Background

    Section 9004 of the Resource Conservation and Recovery Act of 1976, 
as amended, (RCRA), 42 U.S.C. 6991c, allows the U.S. Environmental 
Protection Agency (EPA) to approve state underground storage tank 
programs to operate in the state in lieu of the federal underground 
storage tank program. EPA published a Federal Register document 
announcing its decision to grant approval to North Dakota (56 FR 51333, 
October 11, 1991). Approval was effective on December 10, 1991. 
[[Page 32470]] 
    EPA codifies its approval of State programs in 40 CFR part 282 and 
incorporates by reference therein the state statutes and regulations 
that will be subject to EPA's inspection and enforcement authorities 
under sections 9005 and 9006 of subtitle I of RCRA, 42 U.S.C. 6991d and 
6991e, and other applicable statutory and regulatory provisions. 
Today's rulemaking codifies EPA's approval of the North Dakota 
underground storage tank program. This codification reflects the state 
program in effect at the time EPA granted North Dakota approval under 
section 9004(a), 42 U.S.C. 6991c(a) for its underground storage tank 
program. Notice and opportunity for comment were provided earlier on 
the Agency's decision to approve the North Dakota program, and EPA is 
not now reopening that decision nor requesting comment on it.
    This effort provides clear notice to the public of the scope of the 
approved program in each state. By codifying the approved North Dakota 
program and by amending the Code of Federal Regulations whenever a new 
or different set of requirements is approved in North Dakota, the 
status of federally approved requirements of the North Dakota program 
will be readily discernible. Only those provisions of the North Dakota 
underground storage tank program for which approval has been granted by 
EPA will be incorporated by reference for enforcement purposes.
    To codify EPA's approval of North Dakota's underground storage tank 
program, EPA has added section 282.84 to title 40 of the CFR. Section 
282.84 incorporates by reference for enforcement purposes the State's 
statutes and regulations. Section 282.84 also references the Attorney 
General's Statement, Demonstration of Adequate Enforcement Procedures, 
the Program Description, and the Memorandum of Agreement, which are 
approved as part of the underground storage tank program under subtitle 
I of RCRA.
    The Agency 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 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 analogs to these provisions. Therefore, the approved North 
Dakota enforcement authorities will not be incorporated by reference. 
Section 282.84 lists those approved North Dakota authorities that would 
fall into this category.
    The public also needs to be aware that some provisions of the 
State's underground storage tank program are not part of the federally 
approved state program. These non-approved provisions are not part of 
the RCRA Subtitle I program because they are ``broader in scope'' than 
subtitle I of RCRA. See 40 CFR 281.12(a)(3)(ii). As a result, state 
provisions which are ``broader in scope'' than the federal program are 
not incorporated by reference for purposes of enforcement in part 282. 
Section 282.84 of codification simply lists for reference and clarity 
the North Dakota statutory and regulatory provisions which are 
``broader in scope'' than the federal program and which are not, 
therefore, part of the approved program being codified today. ``Broader 
in scope'' provisions cannot be enforced by EPA; the State, however, 
will continue to enforce such provisions.

Certification Under the Regulatory Flexibility Act

    This rule codifies the decision already made (56 FR 51333, October 
11, 1991) to approve the North Dakota underground storage tank program 
and thus has no separate effect. Therefore, this rule does not require 
a regulatory flexibility analysis. Thus, pursuant to section 605(b) of 
the Regulatory Flexibility Act, 5 U.S.C. 605(b), I hereby certify that 
this rule will not have a significant economic impact on a substantial 
number of small entities.

Compliance With Executive Order 12866

    The Office of Management and Budget has exempted this rule from the 
requirements of Section 6 of Executive Order 12866.

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 or final rule. This rule will not 
impose any information requirements upon the regulated community.

List of Subjects in 40 CFR Part 282

    Environmental protection, Hazardous substances, Incorporation by 
reference, Intergovernmental relations, State program approval, 
Underground storage tanks, Water pollution control.

    Dated: May 2, 1995.
Jack McGraw,
Acting Regional Administrator.
    For the reasons set forth in the preamble, 40 CFR part 282 is 
proposed to be amended as follows:

PART 282--APPROVED UNDERGROUND STORAGE TANK PROGRAMS

    1. The authority citation for part 282 continues to read as 
follows:

    Authority: 42 U.S.C. 6912, 6991c, 6991d, and 6991e.

Subpart B--Approved State Programs

    2. Subpart B is amended by adding Sec. 282.84 to read as follows:


Sec. 282.84  North Dakota State-Administered Program.

    (a) The State of North Dakota 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 North Dakota Department of Health and Consolidated 
Laboratories, was approved by EPA pursuant to 42 U.S.C. 6991c and part 
281 of this Chapter. EPA approved the North Dakota program on October 
11, 1991 and it was effective on December 10, 1991.
    (b) North Dakota has primary responsibility for enforcing its 
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 other statutory and regulatory provisions.
    (c) To retain program approval, North Dakota 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 North Dakota 
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) North Dakota has final approval for the following elements 
submitted to EPA in North Dakota's program application for final 
approval and approved by EPA on October 11, 1991. Copies may be 
obtained from the Underground Storage Tank Program, North Dakota 
Department of Health Consolidated Laboratories, 1200 Missouri Avenue, 
Bismarck, ND 58502-5520.
    (1) State Statutes and Regulations. (i) The provisions cited in 
this paragraph are incorporated by reference as part of the underground 
storage tank program [[Page 32471]] under subtitle I of RCRA, 42 U.S.C. 
6991 et seq.
    (A) North Dakota Statutory Requirements Applicable to the 
Underground Storage Tank Program, 1995.
    (B) North Dakota Regulatory Requirements Applicable to the 
Underground Storage Tank Program, 1995.
    (ii) The following statutes and regulations are part of the 
approved state program, although not incorporated by reference herein 
for enforcement purposes.
    (A) The statutory provisions include: North Dakota Century Code 
(NDCC), Chapter 23-20.3, Sections 23-20.3-06, 23-20.3-07 and 23-20.3-
09.
    (B) The regulatory provisions include: North Dakota Administrative 
Code, Chapter 33-24-08, Sections 33-24-08-56, 33-24-08-57 and 33-24-08-
98.
    (2) Statement of Legal Authority. (i) ``Attorney General's 
Statement for Final Approval'', signed by the Attorney General of North 
Dakota on February 28, 1991, 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.
    (ii) Letter from the Attorney General of North Dakota to EPA, 
February 28, 1991, 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.
    (3) Demonstration of Procedures for Adequate Enforcement. The 
``Demonstration of Procedures For Adequate Enforcement'' submitted as 
part of the original application in April 1991, 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 in April 1991, 
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 VIII and the North Dakota Department of Health and 
Consolidated Laboratories, signed by the EPA Regional Administrator on 
September 10, 1993, 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.
    3. Appendix A to Part 282 is amended by adding in alphabetical 
order ``North Dakota'' and its listing.

Appendix A to Part 282--State Requirements Incorporated by 
Reference in Part 282 of the Code of Federal Regulations

* * * * *

North Dakota

    (a) The statutory provisions include: North Dakota Century Code 
(NDCC), Chapter 23-20.3, Hazardous Waste Management Act:

Section 23-20.3-01  Declaration of Purpose.
Section 23-20.3-02  Definitions.
Section 23-20.3-03  Powers and Duties of the Department.
Section 23-20.3-04  Hazardous Waste Regulations.
Section 23-20.3-04.1  Underground Storage Tank Regulations.
Section 23-20.3-05  Permits.
Section 23-20.3-05.1  Fees--Deposit in Operating Fund.
Section 23-20.3-05.2  Commercial Facility Permits and Ordinances.
Section 23-20.3-08  Imminent Hazard.
Section 23-20.3-10  Applicability.

    (b) The regulatory provisions include: North Dakota 
Administrative Code (NDAC), Chapter 33-24-08, Technical Standards 
and Corrective Action Requirements for Owners and Operators of 
Underground Storage Tanks, Amended April 1992:

Section 33-24-08-01  Applicability.
Section 33-24-08-02  Interim Prohibition for Deferred Underground 
Storage Tank Systems.
Section 33-24-08-03  Definitions (Technical Standards and Corrective 
Action).
Section 33-24-08-10  Performance Standards for New Underground 
Storage Tank Systems.
Section 33-24-08-11  Upgrading of Existing Underground Storage Tank 
Systems.
Section 33-24-08-12  Notification Requirements.
Section 33-24-08-20  Spill and Overfill Control.
Section 33-24-08-21  Operation and Maintenance of Corrosion 
Protection.
Section 33-24-08-22  Compatibility.
Section 33-24-08-23  Repairs Allowed.
Section 33-24-08-24  Reporting and Recordkeeping.
Section 33-24-08-30  General Release Detection Requirements for All 
Underground Storage Tank Systems.
Section 33-24-08-31  Release Detection Requirements for Petroleum 
Underground Storage Tank Systems.
Section 33-24-08-32  Release Detection Requirements for Hazardous 
Substance Underground Storage Tank Systems.
Section 33-24-08-33  Methods of Release Detection for Tanks.
Section 33-24-08-34  Methods of Release Detection for Piping.
Section 33-24-08-35  Release Detection Recordkeeping.
Section 33-24-08-40  Reporting of Suspected Releases.
Section 33-24-08-41  Investigation Due to Offsite Impacts.
Section 33-24-08-42  Release Investigation and Confirmation Steps.
Section 33-24-08-43  Reporting and Cleanup of Spills and Overfills.
Section 33-24-08-50  General Release Response and Corrective Action 
for Underground Storage Tank Systems Containing Petroleum or 
Hazardous Substances.
Section 33-24-08-51  Initial Response.
Section 33-24-08-52  Initial Abatement Measures and Site Check.
Section 33-24-08-53  Initial Site Characterization.
Section 33-24-08-54  Free Product Removal.
Section 33-24-08-55  Investigations for Soil and Ground Water 
Cleanup.
Section 33-24-08-60  Temporary Closure.
Section 33-24-08-61  Permanent Closure and Changes in Service.
Section 33-24-08-62  Assessing the Site at Closure or Change in 
Service.
Section 33-24-08-63  Applicability to Previously Closed Underground 
Storage Tank Systems.
Section 33-24-08-64  Closure Records.
Section 33-24-08-80  Applicability (financial responsibility).
Section 33-24-08-81  Financial Responsibility Compliance Dates.
Section 33-24-08-82  Definitions (financial responsibility).
Section 33-24-08-83  Amount and Scope of Required Financial 
Responsibility.
Section 33-24-08-84  Allowable Mechanisms and Combinations of 
Mechanisms.
Section 33-24-08-85  Financial Test of Self-Insurance.
Section 33-24-08-86  Guarantee.
Section 33-24-08-87  Insurance and Risk Retention Group Coverage.
Section 33-24-08-88  Surety Bond.
Section 33-24-08-89  Letter of Credit.
Section 33-24-08-92  Trust Fund.
Section 33-24-08-93  Standby Trust Fund.
Section 33-24-08-94  Substitution of Financial Assurance mechanisms 
by Owner or Operator.
Section 33-24-08-95  Cancellation or Nonrenewal by Provider of 
Financial Assurance.
Section 33-24-08-96  Reporting by Owner or Operator.
Section 33-24-08-97  Recordkeeping.
Section 33-24-08-99  Release from Requirements.
Section 33-24-08-100  Bankruptcy or Other Incapacity of Owner or 
Operator or Provider of Financial Assurance.
Section 33-24-08-101  Replenishment of Guarantees, Letters of 
Credit, or Surety Bonds.

[FR Doc. 95-15173 Filed 6-21-95; 8:45 am]
BILLING CODE 6560-50-P