[Federal Register Volume 61, Number 22 (Thursday, February 1, 1996)]
[Rules and Regulations]
[Pages 3599-3600]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-2142]



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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 281

[FRL-5406-6]


Montana; Final Approval of State Underground Storage Tank Program

AGENCY: Environmental Protection Agency.

ACTION: Notice of final determination on State of Montana application 
for final approval.

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SUMMARY: The State of Montana has applied for final 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 Montana application and has reached a 
final determination that Montana's underground storage tank (UST) 
program satisfies all of the requirements necessary to qualify for 
final approval. Thus, EPA is granting final approval to the State to 
operate its program in lieu of the Federal program.

EFFECTIVE DATE: Final approval for Montana shall be effective at 1:00 
pm Eastern Time on March 4, 1996.

FOR FURTHER INFORMATION CONTACT: Kris Knutson, U.S. EPA, Region 8, 
Montana Office, DWR 10096, 301 South Park, Helena, Montana 59626-0096, 
phone: (406) 441-1130, extension 225.

SUPPLEMENTARY INFORMATION:

A. Background

    Section 9004 of the Resource Conservation and Recovery Act (RCRA) 
enables 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 is granted by EPA if the Agency finds 
that the State program: (1) is ``no less stringent'' than the Federal 
program in all seven elements, and includes notification requirements 
of section 9004(a)(8), 42 U.S.C. 6991c(a)(8); and (2) provides for 
adequate enforcement of compliance with UST standards (section 9004(a), 
42 U.S.C. 6991c(a)).
    On February 22, 1995, Montana submitted an application for 
``complete'' program approval which includes regulation of both 
petroleum and hazardous substance tanks. The State of Montana 
established authority through an amendment to the 1981 Montana 
Hazardous Waste Act to implement an underground storage tank program. 
The State changed the title of the Act to the Montana Hazardous Waste 
and Underground Storage Tank Act in April 1985, and further amended the 
Act in 1989 to expand rulemaking authority. Another amendment in 1993 
provided the State with rulemaking authority to assess civil penalties.
    On September 22, 1995, EPA published a tentative decision 
announcing its intent to grant Montana final approval. Further 
background on the tentative decision to grant approval appears at 60 FR 
49239, September 22, 1995. Along with the tentative determination, EPA 
announced the availability of the application for public comment and 
provided notice that a public hearing would be provided if significant 
public interest was shown. EPA received only one comment on the 
application and no request for a public hearing. Therefore, a hearing 
was not held.

B. Decision

    I conclude that Montana's application for final approval meets all 
of the statutory and regulatory requirements established by Subtitle I 
of RCRA. Accordingly, Montana is granted final approval to operate its 
underground storage tank program in lieu of the Federal program. 
Montana now has the responsibility for managing underground storage 
tank facilities within its borders and carrying out all aspects of the 
UST program except with regard to ``Indian Country,'' as defined in 18 
U.S.C. 1151, where EPA will retain and otherwise exercise regulatory 
authority. ``Indian Country'' includes the following Indian 
reservations in the State of Montana:
    1. Blackfeet;
    2. Crow;
    3. Flathead;
    4. Fort Belknap;
    5. Fort Peck;
    6. Northern Cheyenne; and
    7. Rocky Boys.
    The Environmental Protection Agency retains all underground storage 
tank authority under RCRA which applies to ``Indian Country'' in 
Montana.
    Before EPA would be able to approve the State of Montana UST 
program for any portion of ``Indian Country,'' the State would have to 
provide an appropriate analysis of the State's jurisdiction to enforce 
in these areas. In order for a state to satisfy this requirement, it 
must demonstrate to the EPA's satisfaction that it has authority 
pursuant to applicable principles of Federal Indian Law to enforce its 
laws against existing and potential pollution sources within any 
geographical area for which it seeks program approval. EPA has reason 
to believe that disagreement exists with regard to the State's 
jurisdiction over ``Indian Country,'' and EPA is not satisfied that 
Montana has, at this time, made the requisite showing of its authority 
with respect to such lands.
    In withholding program approval for these areas, EPA is not making 
a determination that the State either has adequate jurisdiction or 
lacks such jurisdiction. Should the State of Montana choose to submit 
analysis with regard to its jurisdiction over all or part of ``Indian 
Country'' in the State, it may do so without prejudice.
    EPA's future evaluation of whether to approve the Montana program 
for ``Indian Country,'' to include Indian reservation lands, will be 
governed by EPA's judgement as to whether the State has demonstrated 
adequate authority to 

[[Page 3600]]
justify such approval, based upon its understanding of the relevant 
principles of Federal Indian law and sound administrative practice. The 
State may wish to consider EPA's discussion of the related issue of 
tribal jurisdiction found in the preamble to the Indian Water Quality 
Standards Regulation (see 56 FR 64876, December 12, 1991).
    Montana also has primary enforcement responsibility, although EPA 
retains the right to conduct inspections under section 9005 of RCRA 42 
U.S.C. 6991d and to take enforcement actions under section 9006 of RCRA 
42 U.S.C. 6991e.

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.

Certification under the Regulatory Flexibility Act

    Pursuant to the provisions of 5 U.S.C. 605(b), I hereby certify 
that this approval will not have a significant economic impact on a 
substantial number of small entities. The approval effectively suspends 
the applicability of certain Federal regulations in favor of Montana's 
program, thereby eliminating duplicative requirements for owners and 
operators of underground storage tanks in the State. It does not impose 
any new burdens on small entities. This rule, therefore, does not 
require a regulatory flexibility analysis.

List of Subjects in 40 CFR Part 281

    Environmental protection, Administrative practice and procedure, 
Hazardous materials, State program approval, Underground storage tanks.

    Authority: This notice is issued under the authority of sections 
2002(a), 7004(b), and 9004 of the Solid Waste Disposal Act as 
amended, 42 U.S.C. 6912(a), 6974(b), and 6991(c).

    Dated: December 14, 1995.
Jack McGraw,
Acting Regional Administrator.
[FR Doc. 96-2142 Filed 1-31-96; 8:45 am]
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