[Federal Register Volume 63, Number 221 (Tuesday, November 17, 1998)]
[Rules and Regulations]
[Pages 63793-63796]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-30720]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 281

[FRL-6186-1]


Tennessee; Final Approval of State Petroleum Underground Storage 
Tank Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of final determination on the State of Tennessee's 
application for final approval.

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SUMMARY: The State of Tennessee has applied for partial approval of its 
underground storage tank program for petroleum under subtitle I of the 
Resource Conservation and Recovery Act (RCRA). The State of Tennessee 
is not requesting approval of the underground storage tank program for 
hazardous substances. The Environmental Protection Agency (EPA) has 
reviewed Tennessee's application and has reached a final determination 
that Tennessee's underground storage tank program for petroleum 
satisfies all of the requirements necessary to qualify for approval. 
Thus, EPA is granting final approval to the State of Tennessee to 
operate its underground storage tank program for petroleum. This 
approval does not include hazardous substance underground storage tanks 
under subtitle I of RCRA.

EFFECTIVE DATE: Final approval for the State of Tennessee's petroleum 
underground storage tank program shall be effective at 1:00 pm Eastern 
Standard Time on January 15, 1999.

FOR FURTHER INFORMATION CONTACT: Mr. John K. Mason, Chief, Underground 
Storage Tank Section, U.S. EPA, Region 4, Atlanta Federal Center, 61 
Forsyth Street S.W., Atlanta, Georgia 30303, phone number: (404) 562-
9441.

SUPPLEMENTARY INFORMATION:

A. Background

    Section 9004 of the Resource Conservation and Recovery Act (RCRA) 
authorizes the Environmental Protection Agency (EPA) to approve State 
underground storage tank programs to operate in the State in lieu of 
the federal underground storage tank (UST) program. To qualify for 
final authorization, a state's program must: (1) Be ``no less 
stringent'' than the federal program for the seven elements set forth 
at RCRA section 9004(a) (1) through (7); and (2) provide for adequate 
enforcement of compliance with UST standards of RCRA Ssction 9004(a).
    On September 1, 1996, the State of Tennessee submitted an official

[[Page 63794]]

application to obtain final partial program approval to administer the 
underground storage tank program for petroleum. On July 10, 1998, EPA 
published a tentative decision announcing its intent to grant Tennessee 
final approval for petroleum. Further background on the tentative 
decision to grant approval appears at 63 FR 37311, July 10, 1998.
    Along with the tentative determination, EPA announced the 
availability of the application for public comment and the date of a 
public hearing on the application. EPA requested advance notice for 
testimony and reserved the right to cancel the public hearing for lack 
of public interest. Since there was no public request, the public 
hearing was canceled. No public comments were received regarding EPA's 
approval of Tennessee's underground storage tank program.
    The following statutory provisions are broader in scope than the 
federal program and are not part of the approved program: Tennessee 
Code Annotated, Title 68, Chapter 215--section 102(a)(3), insofar as it 
refers to the intent to develop long range plans to meet future 
petroleum underground storage tank demands; section 102(a)(5), insofar 
as it provides for a fund; section 104, insofar as it applies to 
persons other than underground storage tank owners and operators; 
section 106(a)(6), insofar as it requires any person who deposits 
petroleum in underground storage tanks to notify the owner or operator 
of state notification requirements; section 106(c)(2), insofar as it 
applies to persons other than owners and operators placing petroleum 
substances in an underground storage tank; section 107(f)(9), insofar 
as it provides for rule development for the assessment and collections 
of fees; section 109, insofar as it allows for levying and collection 
of annual fees to operate the UST fund and develop rules; section 110, 
insofar as it establishes a petroleum underground storage tank fund; 
section 111, insofar as it refers to uses of the state underground 
storage tank fund; section 112, insofar as it establishes a petroleum 
underground storage tank board; section 113, insofar as it establishes 
board meetings, public hearings, and board compensation; section 115, 
insofar as it establishes cost recovery and apportionment of liability 
for cleanups; section 117, insofar as it applies to persons other than 
underground storage tank owners and operators; section 125, insofar as 
it applies to the state UST fund; and section 128, insofar as it 
requires a report to the General Assembly.
    The following regulatory provisions are broader in scope than the 
federal program and not part of the approved program: Tennessee 
Department of Environment and Conservation, Underground Storage Tank 
Program Rules, Chapter 1200-1-15--section-.09, insofar as it refers to 
guidelines and procedures for administering the Tennessee petroleum 
underground storage tank fund; section-.10, insofar as it refers to 
annual fees, the use, collection and failure to pay fees; and 
section-.11, insofar as it requires underground storage tank fees, use, 
collection failure to pay, and fee notices.

B. Decision

    I conclude that the State of Tennessee's application for final 
program approval meets all of the statutory and regulatory requirements 
established by Subtitle I of RCRA. Accordingly, Tennessee is granted 
final approval to operate its underground storage tank program for 
petroleum. The State of Tennessee now has the responsibility for 
managing all regulated petroleum underground storage tank facilities 
within its border and carrying out all aspects of the underground 
storage tank program except with regard to hazardous substance 
underground storage tanks where EPA will retain regulatory authority. 
Tennessee also has primacy enforcement responsibility for petroleum 
underground storage tanks, although EPA retains the right to conduct 
enforcement actions for all regulated underground storage tanks under 
section 9006 of RCRA.

C. Administrative Requirements

1. 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.

2. Executive Order 12875: Enhancing the Intergovernmental Partnership

    Under Executive Order 12875, EPA may not issue a regulation that is 
not required by statute and that creates a mandate upon a State, local 
or tribal government, unless the Federal government provides the funds 
necessary to pay the direct compliance costs incurred by those 
governments, or EPA consults with those governments. If EPA complies by 
consulting, Executive Order 12875 requires EPA to provide to the Office 
of Management and Budget a description of the extent of EPA's prior 
consultation with representatives of affected State, local and tribal 
governments, the nature of their concerns, any written communications 
from the governments, and a statement supporting the need to issue the 
regulation. In addition, Executive Order 12875 requires EPA to develop 
an effective process permitting elected officials and other 
representatives of State, local and tribal governments ``to provide 
meaningful and timely input in the development of regulatory proposals 
containing significant unfunded mandates.''
    Today's rule does not create a mandate on State, local or tribal 
governments. The rule does not impose any enforceable duties on these 
entities. The State administers its underground storage tank program 
voluntarily, and any duties on other State, local or tribal 
governmental entities arise from that program, not from today's action. 
Accordingly, the requirements of section 1(a) of Executive Order 12875 
do not apply to this rule.

3. Executive Order 13084: Consultation and Coordination With Indian 
Tribal Governments

    Under Executive Order 13084, EPA may not issue a regulation that is 
not required by statute, that significantly or uniquely affects the 
communities of Indian tribal governments, and that imposes substantial 
direct compliance costs on those communities, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by the tribal governments, or EPA consults with those 
governments. If EPA complies by consulting, Executive Order 13084 
requires EPA to provide to the Office of Management and Budget, in a 
separately identified section of the preamble to the rule, a 
description of the extent of EPA's prior consultation with 
representatives of affected tribal governments, a summary of the nature 
of their concerns, and a statement supporting the need to issue the 
regulation. In addition, Executive Order 13084 requires EPA to develop 
an effective process permitting elected officials and other 
representatives of Indian tribal governments ``to provide meaningful 
and timely input in the development of regulatory policies on matters 
that significantly or uniquely affect their communities.''
    Today's rule does not significantly or uniquely affect the 
communities of Indian tribal governments. Tennessee is not approved to 
implement the underground storage tank program in Indian Country. This 
rule has no effect on the underground storage tank program that EPA 
implements in the Indian Country within the State. Accordingly, the 
requirements of

[[Page 63795]]

section 3(b) of Executive Order 13084 do not apply to this rule.

4. Compliance With Executive Order 13045

    Executive Order 13045 applies to any rule that the Office of 
Management and Budget determines is ``economically significant'' as 
defined under Executive Order 12866, and that EPA determines that the 
environmental health or safety risk addressed by the rule has 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.
    The Agency has determined that the final rule is not a covered 
regulatory action as defined in the Executive Order because it is not 
economically significant and does not address environmental health and 
safety risks. As such, the final rule is not subject to the 
requirements of Executive Order 13045.

5. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, section 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 
did not consider the use of any voluntary consensus standards.

6. 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 certain regulatory actions on State, local, and tribal 
governments and the private sector. Under sections 202 and 205 of the 
UMRA, EPA generally must prepare a written statement of economic and 
regulatory alternatives analyses for proposed and final rules with 
Federal mandates, as defined by the UMRA, 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. The 
section 202 and 205 requirements do not apply to today's action because 
it is not a ``Federal mandate'' and because it does not impose annual 
costs of $100 million or more.
    Today's rule contains no Federal mandates for State, local or 
tribal governments or the private sector for two reasons. First, 
today's action does not impose new or additional enforceable duties on 
any State, local or tribal governments or the private sector because 
the requirements of the Tennessee program are already imposed by the 
State and subject to State law. Second, the Act also generally excludes 
from the definition of a ``Federal mandate'' duties that arise from 
participation in a voluntary Federal program. Tennessee's participation 
in an approved UST program is voluntary.
    Even if today's rule did contain a Federal mandate, this rule will 
not result in annual expenditures of $100 million or more for State, 
local, and/or tribal governments in the aggregate, or the private 
sector. Costs to State, local and/or tribal governments already exist 
under the Tennessee program, and today's action does not impose any 
additional obligations on regulated entities. In fact, EPA's approval 
of state programs generally may reduce, not increase, compliance costs 
for the private sector.
    The requirements of section 203 of UMRA also do not apply to 
today's action. Before EPA establishes any regulatory requirements that 
may significantly or uniquely affect small governments, section 203 of 
the UMRA requires EPA to develop a small government agency plan. This 
rule contains no regulatory requirements that might significantly or 
uniquely affect small governments. The Agency recognizes that although 
small governments may own and/or operate USTs, they are already subject 
to the regulatory requirements under existing state law which are being 
approved by EPA, and, thus, are not subject to any additional 
significant or unique requirements by virtue of this program approval.

7. Certification Under the Regulatory Flexibility Act

    EPA has determined that this approval will not have a significant 
economic impact on a substantial number of small entities. Such small 
entities which own and/or operate USTs are already subject to the 
regulatory requirements under existing State law which are being 
approved by EPA. EPA's approval does not impose any additional burdens 
on these small entities. This is because EPA's approval would simply 
result in an administrative change, rather than a change in the 
substantive requirements imposed on these small entities.
    Therefore, EPA provides the following certification under the 
Regulatory Flexibility Act, as amended by the Small Business Regulatory 
Enforcement Fairness Act. Pursuant to the provision at 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. This rule 
approves regulatory requirements under existing State law to which 
small entities are already subject. It does not impose any new burdens 
on small entities. This rule, therefore, does not require a regulatory 
flexibility analysis.

8. Submission to Congress and the General Accounting Office

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each house of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives and the Comptroller General of the United States prior 
to publication of the rule in today's Federal Register. This rule is 
not a ``major rule'' as defined by 5 U.S.C. 804(2).

9. Paperwork Reduction Act

    Under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., Federal 
agencies must consider the paperwork burden imposed by an 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 materials, State program approval, Underground storage tanks.

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


[[Page 63796]]


    Dated: October 19, 1998.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
[FR Doc. 98-30720 Filed 11-16-98; 8:45 am]
BILLING CODE 6560-50-U