[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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