[Federal Register Volume 66, Number 116 (Friday, June 15, 2001)]
[Rules and Regulations]
[Pages 32564-32566]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-14896]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 281

[FRL-6976-4]


North Carolina; Final Approval of State Underground Storage Tank 
Program

AGENCY: Environmental Protection Agency.

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

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SUMMARY: The State of North Carolina has applied for approval of its 
underground storage tank program for petroleum and hazardous substances 
under Subtitle I of the Resource Conservation and Recovery Act (RCRA). 
The Environmental Protection Agency (EPA) has reviewed North Carolina's 
application and has reached a final determination that North Carolina's 
underground storage tank program for petroleum and hazardous substances 
satisfies all of the requirements necessary to qualify for approval. 
Thus, EPA is granting final approval to the State of North Carolina to 
operate its underground storage tank program for petroleum and 
hazardous substances.

EFFECTIVE DATE: Final approval for the State of North Carolina's 
underground storage tanks program shall be effective August 14, 2001.

FOR FURTHER INFORMATION CONTACT: Mr. John K. Mason, Chief, Underground 
Storage Tank Section, U.S. EPA, Region 4, Sam Nunn Federal Center, 61 
Forsyth Street SW., 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 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.
    On January 16, 1998, the State of North Carolina submitted an 
official application to obtain final program approval to administer the 
underground storage tank program for petroleum and hazardous 
substances. On August 10, 1999, EPA published a tentative decision 
announcing its intent to grant North Carolina final approval. Further 
background on the tentative decision to grant approval appears at 64 FR 
43336, August 10, 1999.
    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 cancelled. No public comments were received regarding EPA's 
approval of North Carolina's underground storage tank program.
    The State of North Carolina is not approved to operate the 
underground storage tank program on Indian lands within the State's 
borders.

B. Decision

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

C. 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, 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. North Carolina'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.

[[Page 32565]]

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.

Submission to Congress and the Comptroller General

    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. The 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).

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 final 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. 
This rule is not subject to Executive Order 13175 because it does not 
significantly or uniquely affect the communities of Indian tribal 
governments. This rule merely incorporates by reference the North 
Carolina underground storage tank program requirements that EPA has 
already approved. North Carolina 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 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

[[Page 32566]]

affects only one state. This action simply provides EPA approval of 
North Carolina'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, section 12(d) (15 U.S.C. 
272) 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.

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), 6974(b), 6991c.

    Dated: April 26, 2001.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
[FR Doc. 01-14896 Filed 6-14-01; 8:45 am]
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