[Federal Register Volume 86, Number 187 (Thursday, September 30, 2021)]
[Rules and Regulations]
[Pages 54107-54111]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-20859]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 281 and 282

[EPA-R09-UST-2021-0597; FRL-8977-02-R9]


Approval of State Underground Storage Tank Program Revisions; 
Nevada

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final action.

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SUMMARY: Pursuant to the Resource Conservation and Recovery Act (RCRA 
or Act), as amended, the Environmental Protection Agency (EPA) is 
taking direct final action to approve revisions to the State of 
Nevada's Underground Storage Tank (UST) program since the previous 
authorization on July 17, 1998. This action is based on the EPA's 
determination that these revisions satisfy all requirements needed for 
program approval. The State's federally authorized program, as revised 
pursuant to this action, will remain subject to the EPA's inspection 
and enforcement authorities under sections 9005 and 9006 of RCRA 
subtitle I and other applicable statutory and regulatory provisions.

DATES: This authorization is effective on November 29, 2021 without 
further notice, unless the EPA receives adverse comment by November 1, 
2021. If the EPA receives adverse comment, we will publish a timely 
withdrawal in the Federal Register informing the public that the 
authorization will not take effect.

ADDRESSES: Submit any comments, identified by EPA-R09-UST-2021-0597, by 
one of the following methods:
    1. Federal eRulemaking Portal: https://www.regulations.gov. Follow 
the

[[Page 54108]]

on-line instructions for submitting comments.
    2. Email: [email protected].
    Instructions: Direct your comments to Docket ID No. EPA-R09-UST-
2021-0597. The EPA's policy is that all comments received will be 
included in the public docket without change and may be available 
online at https://www.regulations.gov, including any personal 
information provided, unless the comment includes information claimed 
to be Confidential Business Information (CBI) or other information 
whose disclosure is restricted by statute. Do not submit information 
that you consider to be CBI or otherwise protected through https://www.regulations.gov, or email. The Federal https://www.regulations.gov 
website is an ``anonymous access'' system, which means the EPA will not 
know your identity or contact information unless you provide it in the 
body of your comment. If you send an email comment directly to the EPA 
without going through https://www.regulations.gov, your email address 
will be automatically captured and included as part of the comment that 
is placed in the public docket and made available on the internet. If 
you submit an electronic comment, the EPA recommends that you include 
your name and other contact information in the body of your comment and 
with any disk or CD-ROM you submit. If the EPA cannot read your comment 
due to technical difficulties, and cannot contact you for 
clarification, the EPA may not be able to consider your comment. 
Electronic files should avoid the use of special characters, any form 
of encryption, and be free of any defects or viruses.
    The EPA encourages electronic submittals, but if you are unable to 
submit electronically, please reach out to the EPA contact person 
listed in the notice for assistance with additional submission methods.
    You can view and copy the documents that form the basis for this 
action and associated publicly available materials through 
www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Simona Platukyte, Project Officer, 
Underground Storage Tank Program, EPA Region 9, phone number (415) 972-
3310, email address: [email protected]. Out of an abundance of 
caution for members of the public and our staff, the EPA Region 9 
office will be closed to the public to reduce the risk of transmitting 
COVID-19. We encourage the public to submit comments via https://www.regulations.gov, as no mail, courier, or hand deliveries will be 
accepted. Please call or email the contact listed above if you need 
alternative access to material indexed but not provided in the docket.

SUPPLEMENTARY INFORMATION:

I. Approval of Revisions to Nevada's Underground Storage Tank Program

A. Why are revisions to state programs necessary?

    States that have received final approval from the EPA under RCRA 
section 9004(b) of RCRA, 42 U.S.C. 6991c(b), must maintain an 
underground storage tank program equivalent to, consistent with, and no 
less stringent than the Federal underground storage tank program. When 
the EPA revises the regulations that govern the UST program, states 
must revise their programs to comply with the updated regulations and 
submit these revisions to the EPA for approval. Most commonly, states 
must change their programs because of changes to the EPA's regulations 
in 40 Code of Federal Regulations (CFR) part 280. States can also 
initiate changes on their own to their underground storage tank program 
and these changes must then be approved by the EPA.

B. What decisions has the EPA made in this authorization?

    On November 20, 2018, in accordance with 40 CFR 281.51(a), Nevada 
submitted a program revision application seeking the EPA's approval for 
its UST program revisions (State Application). On July 29, 2021, Nevada 
submitted amendments to the revision application, based on comments 
from the EPA. Nevada's revisions correspond to the EPA's final rule 
published on July 15, 2015 (80 FR 41566), which revised the 1988 UST 
regulations and the 1988 state program approval (SPA) regulations (2015 
Federal Revisions). As required by 40 CFR 281.20, the State Application 
contains the following: A transmittal letter from the Governor 
requesting approval, a description of the program and operating 
procedures, a demonstration of the State's procedures to ensure 
adequate enforcement, a Memorandum of Agreement outlining the roles and 
responsibilities of the EPA and the implementing agency, a statement of 
certification from the Attorney General, copies of all relevant state 
statutes and regulations, and an application addendum submitted on July 
29, 2021. We have reviewed the State Application and determined that 
the revisions to Nevada's UST program are equivalent to, consistent 
with, and no less stringent than the corresponding Federal requirements 
in subpart C of 40 CFR part 281, and that the Nevada program provides 
for adequate enforcement of compliance (40 CFR 281.11(b)). Therefore, 
the EPA grants Nevada final approval to operate its UST program with 
the changes described in the program revision application and as 
outlined below in Section I.G of this document.

C. What is the effect of this action on the regulated community?

    This action does not impose additional requirements on the 
regulated community because the regulations being approved by this 
authorization are already in effect in the State of Nevada, and are not 
changed by this action. This action merely approves the existing State 
regulations as meeting the Federal requirements and renders them 
federally enforceable.

D. Why is the EPA using a direct final authorization?

    The EPA is publishing this direct final authorization without a 
prior proposal because we view this as a noncontroversial action and we 
anticipate no adverse comment. Nevada did not receive any comments 
during its comment period when the rules and regulations being 
considered in this document were proposed at the State level.

E. What happens if the EPA receives comments that oppose this action?

    Along with this direct final authorization, the EPA is publishing a 
separate document in the ``Proposed Rules'' section of this Federal 
Register that serves as the proposal to approve the State's UST program 
revisions, and provides an opportunity for public comment. If the EPA 
receives comments that oppose this approval, the EPA will withdraw this 
direct final authorization by publishing a document in the Federal 
Register before it becomes effective. The EPA will base any further 
decision on approval of the State Application after considering all 
comments received during the comment period. The EPA will then address 
all public comments in a later final authorization. You may not have 
another opportunity to comment. If you want to comment on this 
approval, you must do so at this time.

F. For what has Nevada previously been approved?

    On March 30, 1993, the EPA finalized a rule approving the UST 
program that Nevada proposed to administer in lieu of the Federal UST 
program. On July 17, 1998, the EPA codified the approved Nevada program 
that is subject to the

[[Page 54109]]

EPA's inspection and enforcement authorities under RCRA sections 9005 
and 9006, 42 U.S.C. 6991d and 6991e, and other applicable statutory and 
regulatory provisions.

G. What changes are we approving with this action and what standards do 
we use for review?

    In order to be approved, each state program application must meet 
the general requirements in 40 CFR 281.11, and specific requirements in 
40 CFR part 281, subpart B (Components of a Program Application), 
subpart C (Criteria for No Less Stringent), and subpart D (Adequate 
Enforcement of Compliance). This is also true for proposed revisions to 
approved state programs.
    As more fully described below, the State has made the changes to 
its approved UST program to reflect the 2015 Federal Revisions. The EPA 
is approving the State's changes because they are equivalent to, 
consistent with, and no less stringent than the Federal UST program and 
because the EPA has confirmed that the Nevada UST program will continue 
to provide for adequate enforcement of compliance as described in 40 
CFR 281.11(b) and part 281, subpart D, after this approval. There 
remains a typographical error in NAC 445C.230, in the Cleanup of 
Discharged Petroleum section, which indicates that Nevada adopts by 
reference the relevant Federal regulations as they existed on July 1, 
1990, rather than as they existed on October 13, 2015. The correct date 
is referenced in NAC 459.993, in the Storage Tanks section. Nevada's 
July 29, 2021 submittal describes the steps it will take to revise the 
regulation.
    The Nevada Division of Environmental Protection (NDEP or Division) 
is the lead implementing agency for the UST program in Nevada, except 
in Indian country.
    NDEP continues to have broad statutory authority to regulate the 
installation, operation, maintenance, and closure of USTs, as well as 
UST releases under selected provisions from Nevada Revised Statutes 
(NRS), Chapters 233B, Nevada Administrative Procedures Act; Chapter 439 
Administration of Public Health; Chapter 445A, Water Controls; and 
Chapter 459, Hazardous Materials. The Nevada UST Program gets its 
enforcement authority from the powers of the Nevada State Environmental 
Commission found at NRS 445A.675, 445A.690, 459.842, 459.844, 459.846, 
459.848, 459.850, 459.852. 459.854 and 459.856 and administrative rules 
under the Nevada Administrative Code (NAC) at NAC 459.9941 through 
459.9944 regarding delivery prohibition.
    Specific authorities to regulate the installation, operation, 
maintenance, and closure of USTs, as well as UST releases, are found 
under NRS 459, in addition to the regulatory provisions of NAC 459 and 
selected sections from NAC 445A, effective November 2, 2018; Reporting 
and recordkeeping requirements are also found in selected provisions of 
NAC 459. The aforementioned statutory and regulatory sections satisfy 
the requirements of 40 CFR 281.40 and 281.41.
    Through a Memorandum of Agreement between the State of Nevada and 
the EPA, signed by the EPA Region 9 Regional Administrator April 3, 
2019, the State maintains procedures for receiving and ensuring proper 
consideration of information about violations submitted by the public. 
The State agrees to comply with public participation provisions 
contained in 40 CFR 281.42 by incorporating by reference the Federal 
provisions at NAC 459.993 and providing authority to hold hearings as 
deemed necessary to obtain public testimony at NAC 445.22755.
    To qualify for final approval, revisions to a state's program must 
be ``equivalent to, consistent with, and no less stringent'' than the 
2015 Federal Revisions. In the 2015 Federal Revisions, the EPA 
addressed UST systems deferred in the 1988 UST regulations, and added, 
among other things, new operation and maintenance requirements; 
secondary containment requirements for new and replaced tanks and 
piping; operator training requirements; and a requirement to ensure UST 
system compatibility before storing certain biofuel blends. In 
addition, the EPA removed past deferrals for emergency generator tanks, 
field constructed tanks, and airport hydrant systems. The EPA analyzes 
revisions to approved state programs pursuant to the criteria found in 
40 CFR 281.30 through 281.39.
    The Division has revised its regulations to help ensure that the 
State's UST program revisions are equivalent to, consistent with, and 
no less stringent than the 2015 Federal Revisions. In particular, the 
Division has amended the NAC to incorporate the revised requirements of 
40 CFR part 280, including the requirements added by the 2015 Federal 
Revisions. The State, therefore, has ensured that the criteria found in 
40 CFR 281.30 through 281.38 are met.
    Title 40 CFR 281.39 describes the state operator training 
requirements that must be met in order to be considered equivalent to, 
consistent with, and no less stringent than Federal requirements. 
Nevada has incorporated by reference the Federal requirements at NAC 
459.993 with certain additional provisions at NAC 459.99395(1) and (2). 
After a thorough review, the EPA has determined that Nevada's operator 
training requirements are equivalent to, consistent with, and no less 
stringent than Federal requirements.
    As part of the State Application, the Senior Deputy Attorney 
General for the Division certified that the laws of the State provide 
adequate authority to carry out the ``no less stringent'' technical 
requirements submitted by the state in order to meet the criteria in 40 
CFR 281.30 through 281.39. The EPA is relying on this certification in 
addition to the analysis submitted by the State in making our 
determination.

H. Where are the revised rules different from the Federal rules?

Broader in Scope Provisions
    Where an approved state program has a greater scope of coverage 
than required by Federal law, the additional coverage is considered 
``broader in scope'' and is not part of the federally-approved program 
and are not federally enforceable (40 CFR 281.12(a)(3)(ii)). The 
following regulatory requirements are considered broader in scope than 
the Federal program as these State-only regulations are not required by 
Federal regulation and are implemented by the State in addition to the 
federally approved program: NAC 459.99285, which provides the State-
only definition of ``marina storage tank,'' is outside the scope of the 
Federal program because these types of tanks do not fall under the 
applicability of the UST program; and NAC 445.2271 and 445A.2273, which 
deal with specific types of corrective action plans, contain references 
that are outside the scope of the Federal UST program with respect to 
contamination by hazardous waste, which is regulated under RCRA 
Subtitle C. Nevada also has multiple additional state-only provisions 
at NAC 459.9933 through 459.9938 that only apply to marina storage 
tanks. Marina storage tanks are defined as a type of aboveground 
storage tank and these types of tanks are broader in scope than the 
Federal RCRA Subtitle I program.
    The following statutory provisions are considered broader in scope 
than the Federal program: Nevada Revised Statutes (NRS) Chapter 445C, 
Environmental Requirements, Cleanup of Discharged Petroleum is broader 
in scope than the Federal program because this provision concerns the 
relocation of the State's Petroleum Fund, a State-only

[[Page 54110]]

fund; NRS 459.812(2) and 459.820(2) are broader in scope than the 
Federal underground storage tank program because these particular 
definitions are exclusive to aboveground storage tanks; and NRS 
459.836(3), 459.838, and 459.840 are broader in scope than the Federal 
program because they are applicable to certain State-only fees and 
funds, and fees and funds are not included in the Federal program and 
are broader in scope.
More Stringent Provisions
    Where an approved state program includes requirements that are 
considered more stringent than required by Federal law, the more 
stringent requirements become part of the federally-approved program 
(40 CFR 281.12(a)(3)(i)).
    The following regulatory requirements are considered more stringent 
than the Federal program, and on approval, they become part of the 
federally-approved program and are federally enforceable:
    NAC 459.9945 requires secondary containment of tanks beginning with 
those installed on or after July 1, 2008, which is more stringent than 
the Federal program that subjected tanks to the secondary containment 
requirement in 2015;
    NAC 459.994 includes an additional provision related to tank 
tightness testing that is more stringent than the Federal program (for 
example, NAC 459.994(2) requires the testing to be performed by a 
contractor certified by the Division and that a certificate issued by 
the contractor be retained by the owner or operator, and NAC 459.994(3) 
allows the testing to be waived for ``abandoned underground storage 
tanks'' if there is a threat to human health or the environment.);
    NAC 445A Water Controls, section 445A.22695(1) requires ``immediate 
action . . . under certain circumstances; Director may waive certain 
requirements'', which is more stringent than the Federal program 
because Nevada requires immediate action in certain circumstances where 
the Federal program does not; and
    NAC 445A.227 and 445A.22725, which include a provision that the 
Director may consider certain factors when determining whether a 
corrective action is required, making the State provisions more 
stringent than the Federal program because Nevada may require owners/
operators to take corrective action in circumstances not required by 
the Federal program.

I. How does this action affect Indian country (18 U.S.C. 1151) in 
Nevada?

    The EPA's approval of Nevada's Program does not extend to Indian 
country as defined in 18 U.S.C. 1151. Indian country generally includes 
any land held in trust by the United States for an Indian tribe, and 
any other areas that are ``Indian country'' within the meaning of 18 
U.S.C. 1151. Any lands removed from an Indian reservation status by 
Federal court action are not considered reservation lands even if 
located within the exterior boundaries of an Indian reservation. The 
EPA will retain responsibilities under RCRA for underground storage 
tanks in Indian country. Therefore, this action has no effect in Indian 
country. See 40 CFR 281.12(a)(2).

II. Statutory and Executive Order (E.O.) Reviews

    This action only applies to Nevada's UST Program requirements 
pursuant to RCRA section 9004 and imposes no requirements other than 
those imposed by State law. It complies with applicable EOs and 
statutory provisions as follows.

A. Executive Order 12866 Regulatory Planning and Review, Executive 
Order 13563: Improving Regulation and Regulatory Review

    The Office of Management and Budget (OMB) has exempted this action 
from the requirements of Executive Orders 12866 (58 FR 51735, Oct. 4, 
1993) and 13563 (76 FR 3821, Jan. 21, 2011). This action approves State 
requirements for the purpose of RCRA section 9004 and imposes no 
additional requirements beyond those imposed by State law. Therefore, 
this action is not subject to review by OMB.

B. Unfunded Mandates Reform Act and Executive Order 13175: Consultation 
and Coordination With Indian Tribal Governments

    Because this action approves 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 (2 U.S.C. 1531-1538). For the same 
reason, this action also does not significantly or uniquely affect the 
communities of tribal governments, as specified by Executive Order 
13175 (65 FR 67249, November 9, 2000).

C. Executive Order 13132: Federalism

    This 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, Aug. 10, 1999), because it merely approves State requirements as 
part of the State RCRA Underground Storage Tank Program without 
altering the relationship or the distribution of power and 
responsibilities established by RCRA.

D. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    This action also is not subject to Executive Order 13045 (62 FR 
19885, Apr. 23, 1997), because it is not economically significant and 
it does not make decisions based on environmental health or safety 
risks.

E. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This authorization is not subject to Executive Order 13211 (66 FR 
28355, May 22, 2001) because it is not a ``significant regulatory 
action'' as defined under Executive Order 12866.

F. National Technology Transfer and Advancement Act

    Under RCRA section 9004(b), the EPA grants a state's application 
for approval as long as the state meets the criteria required by RCRA. 
It would thus be inconsistent with applicable law for the EPA, when it 
reviews a state approval 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.

G. Executive Order 12988: Civil Justice Reform

    As required by section 3 of Executive Order 12988 (61 FR 4729, 
February 7, 1996), in issuing this authorization, the EPA has taken the 
necessary steps to eliminate drafting errors and ambiguity, minimize 
potential litigation, and provide a clear legal standard for affected 
conduct.

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H. Executive Order 12630: Govern- mental Actions and Interference With 
Constitutionally Protected Property Rights

    The EPA has complied with Executive Order 12630 (53 FR 8859, Mar. 
15, 1988) by examining the takings implications of the authorization in 
accordance with the ``Attorney General's Supplemental Guidelines for 
the Evaluation of Risk and Avoidance of Unanticipated Takings'' issued 
under the Executive order.

I. Paperwork Reduction Act

    This authorization does not impose an information collection burden 
under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501 et seq.). ``Burden'' is defined at 5 CFR 1320.3(b).

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low Income Populations

    Executive Order 12898 (59 FR 7629, Feb. 16, 1994) establishes 
Federal executive policy on environmental justice. Its main provision 
directs Federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States. Because this authorization approves 
pre-existing State rules which are at least equivalent to, consistent 
with, and no less stringent than existing Federal requirements, and 
imposes no additional requirements beyond those imposed by State law, 
and there are no anticipated significant adverse human health or 
environmental effects, the authorization is not subject to Executive 
Order 12898.

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801-808, 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 document 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 in the Federal Register. A major rule cannot take effect 
until 60 days after it is published in the Federal Register. This 
action is not a ``major rule'' as defined by 5 U.S.C. 804(2). However, 
this action will be effective November 29, 2021 because it is a direct 
final authorization.

    Authority:  This authorization is issued under the authority of 
sections 2002(a), 7004(b), and 9004, 9005 and 9006 of the Solid 
Waste Disposal Act, as amended, 42 U.S.C. 6912(a), 6974(b), and 
6991c, 6991d, and 6991e.

List of Subjects in 40 CFR Parts 281 and 282

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

    Dated: September 19, 2021.
Deborah Jordan,
Acting Regional Administrator, Region 9.
[FR Doc. 2021-20859 Filed 9-29-21; 8:45 am]
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