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66 FR 40954-40957 August 6, 2001 (Volume 66, Number 151) 40 CFR Part 281 [FRL-7023-6] Minnesota; Tentative Approval of State Underground Storage Tank Program

[Federal Register: August 6, 2001 (Volume 66, Number 151)]
[Proposed Rules]               
[Page 40954-40957]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06au01-42]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 281

[FRL-7023-6]

 
Minnesota; Tentative Approval of State Underground Storage Tank 
Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule; notice of tentative determination on application 
of State of Minnesota for final approval, public hearing and public 
comment period.

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SUMMARY: The State of Minnesota has applied for 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 Minnesota application and has made the 
tentative decision that Minnesota's underground storage tank program 
satisfies all of the requirements necessary to qualify for approval. 
The Minnesota application for approval is available for public review 
and comment. A public hearing will be held to solicit comments on the 
application, unless insufficient public interest is expressed.

DATES: A public hearing is scheduled for September 28, 2001, unless 
insufficient public interest is expressed in holding a hearing. EPA 
reserves the right to cancel the public hearing if sufficient public 
interest is not communicated to EPA in writing by August 27, 2001. EPA 
will determine by September 5, 2001, whether there is significant 
interest to hold the public hearing. The State of Minnesota will 
participate in the public hearing held by EPA on this subject. Written 
comments on the Minnesota approval application, as well as requests to 
present oral testimony, must be received by the close of business on 
September 28,2001.

ADDRESSES: Copies of the Minnesota approval application are available 
at the following addresses for inspection and copying:
    Minnesota Pollution Control Agency, Regular Facilities Section, 
Metro District, 520 Lafayette Road North, St. Paul, Minnesota 55155, 
Telephone: (651) 296-7790, 8 am through 4 pm, Central Daylight Savings 
Time.
    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, 9:00 am through 4:00 pm, 
Eastern Daylight Savings Time; and
    U.S. EPA Region 5 Library, 77 West Jackson Blvd., Chicago, Illinois 
60604, Telephone: (312) 353-2022, 10 am through 4 pm, Central Daylight 
Savings Time.
    Written comments should be sent to Mr. Andrew Tschampa, Chief of 
Underground Storage Tank Section, U.S. EPA Region 5, 77 West Jackson 
Blvd., Chicago, Illinois 60604, Telephone: (312) 886-6136.
    Unless insufficient public interest is expressed, EPA will hold a 
public hearing on the State of Minnesota's application for program 
approval on September 28, 2001, at 9:00 am, Central Daylight Savings 
Time, at the Minnesota Pollution Control Agency (MPCA), MPCA Board 
Room, Lower Level, 520 Lafayette Road North, St. Paul, Minnesota. 
Anyone who wishes to learn whether or not the public hearing on the 
State's application has been cancelled should telephone the following 
contacts after September 5, 2001:
    Mr. Andrew Tschampa, Chief, Underground Storage Tank Section, U.S. 
EPA Region 5, 77 West Jackson Blvd., Chicago, Illinois 60604, 
Telephone: (312) 886-6136, or
    Mr. Bob Dullinger, Supervisor, Tanks Program, Regular Facilities 
Section, Metro District, Minnesota Pollution Control Agency, 520 
Lafayette Road North, St. Paul, Minnesota 55155, Telephone: (651) 297-
8608.

FOR FURTHER INFORMATION CONTACT: Mr. Andrew Tschampa, Chief, 
Underground Storage Tank Section, U.S. EPA Region 5, 77 West Jackson 
Blvd., Chicago, Illinois, Telephone: (312) 886-6136.

SUPPLEMENTARY INFORMATION:

I. Background

    Section 9004 of the Resource Conservation and Recovery Act (RCRA) 
authorizes 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 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 (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.

II. Minnesota

    The Minnesota Pollution Control Agency (MPCA) is the implementing 
agency for underground storage tank activities (UST) activities in the 
State.
    On July 13, 1991, Minnesota adopted UST program regulations for 
petroleum and hazardous substance underground storage tanks. Prior to 
the adoption of

[[Page 40955]]

the regulations, Minnesota solicited public comments on the draft UST 
program regulations.
    The MPCA submitted their application for State Program Approval 
(SPA) of Minnesota's UST program to U.S. EPA by letter dated May 11, 
2000. The EPA reviewed the application for completeness and determined 
before the application could be considered complete a number of items 
had to be addressed. All the outstanding items were addressed. EPA 
notified the MPCA in a February 26, 2001, letter that the Minnesota 
application was complete. In addition, EPA has reviewed the MPCA 
application and has tentatively determined that the State's UST program 
meets all of the requirements necessary to qualify for final approval.
    EPA will hold a public hearing on its tentative decision on 
September 28, 2001, unless insufficient public interest is expressed. 
The public may also submit written comments on EPA's tentative 
determination until September 28, 2001. Copies of the Minnesota 
application are available for inspection and copying at the locations 
indicated in the ADDRESSES section of this document.
    EPA will consider all public comments on its 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 Minnesota. EPA expects 
to make a final decision on whether or not to approve Minnesota's 
program within 60 days of the close of the public comment period, and 
will give notice of it in the Federal Register. The document will 
include a summary of the reasons for the final determination and a 
response to all major comments.
    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 regulatory authority and details concerning areas 
where the State program is broader in scope or more stringent than the 
federal program.
    In addition to the areas noted in the Attorney General's statement, 
several aspects of the State's program should be noted.

1. Corrective Action Requirements and Program Implementation

    The MPCA requirements for corrective action are found in State 
statutes, rules, and MPCA procedures and guidance documents. The term 
``waters of the state'' found in Minnesota Statute Section 115.061(a) 
provides the legal foundation for the State's corrective action 
requirements and program. MPCA broadly interprets the ``waters of the 
state'' definition to include waters, including but not limited to, 
ponds, waterways, aquifers, and drainage systems. The MPCA requires 
that all spills, except petroleum spills of five gallons or less, be 
reported to the agency. Minnesota Statute 115.061(a) also requires that 
responsible persons must recover as rapidly and as thoroughly as 
possible the spilled material and take other actions to minimize or 
abate pollution.
    The MPCA implements its corrective action program through broad 
statutory language, as summarized in the Attorney General's statement, 
in conjunction with commissioner's orders, and program guidance, and 
other documentation. In addition, the MPCA developed fact sheets and 
forms to provide technical guidance for all phases of petroleum release 
reporting, investigation, and cleanup. Through the enforcement of 
commissioner's orders, incorporating technical guidance documents by 
reference, the MPCA has the authority to require responsible persons to 
carry out effective corrective actions to address UST releases.

2. Financial Responsibility Requirements

    The MPCA's requirements for financial responsibility are found in 
State statutes and rules that ensure the availability of sufficient 
resources to clean up a petroleum release. Minnesota Statute Section 
115C.03 requires a responsible person to take corrective action for 
underground storage tank releases. Minnesota Statute 115C.07 
establishes the Petroleum Tank Release Compensation Board (the ``Petro 
Board'') and Section 115C.08 establishes the Petrofund to provide for 
reimbursement of expenditures for cleanup of petroleum releases. If the 
responsible person fails to complete corrective action as required, the 
MPCA is authorized to complete all appropriate corrective actions, 
using funds from the Petrofund, and to seek to recovery of those costs 
from the responsible person. Therefore, EPA believes the Petrofund 
program meets the financial responsibility objective under 40 CFR 
281.37.
    It should be noted in Minnesota, tank facilities, including 
pipeline terminals, with more than 1 million gallons of total petroleum 
storage capacity at the tank facility are excluded from the Petrofund 
reimbursement program. Most product stored at these sites is in 
aboveground storage tanks. The MPCA has determined that currently only 
six of these sites also have UST systems. The EPA directly contacted 
each of the six facilities to determine if these facilities meet the 
federal financial responsibility requirements found at 40 CFR part 280, 
subpart H. EPA determined that each facility was in compliance with 
those requirements.
    The Minnesota Petrofund is an essential component in the State's 
program in meeting the financial responsibility State program approval 
objective. Therefore, any future changes to the Petrofund could impact 
State program approval. Minnesota Statute Section 115C.13 contains a 
Repealer provision which includes and affects Section 115C.08, the 
Petroleum Tank Fund. Specifically, the Petrofund is scheduled to be 
repealed on June 30, 2005. If the Petrofund expires in 2005, the State 
of Minnesota will need to adopt other requirements to meet the Federal 
financial responsibility objective to retain State Program Approval.
3. Indian Lands/Country Clarification
    Minnesota is not authorized to carry out the Federal underground 
storage tank program in Indian country within the State, as defined in 
18 U.S.C. 1151. This includes:
    1. All lands within the exterior boundaries of federally recognized 
Indian reservations within or abutting the State of Minnesota;
    2. Any land held in trust by the U.S. for an Indian tribe, and
    3. Any other land, whether on or off a federally recognized Indian 
reservation that qualifies as Indian country pursuant to 18 U.S.C. 
1151.
    Therefore, this action has no effect on Indian country. EPA will 
continue to implement and administer the RCRA, Subtitle I program on 
these lands.

4. Heating Oil Tanks Clarification

    In Minnesota, 1100 gallon or greater USTs that contain heating oil 
for consumptive purposes must comply with the State tank notification 
requirements. In the Federal UST regulations, all USTs storing heating 
oil for consumptive use on the premises are exempt from regulation. 
Therefore, we consider Minnesota's program to be broader in scope in 
this area because the State requires tank notifications for these types 
of USTs.

III. 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,

[[Page 40956]]

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. Minnesota'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. 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.

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 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. 
Minnesota 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

[[Page 40957]]

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 affects only one State. This 
action simply provides EPA approval of Minnesota'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, 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 is 
not considering 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), 6926, 6974(b).

    Dated: July 13, 2001.
Gary Gulezian,
Acting Regional Administrator, Region 5.
[FR Doc. 01-19561 Filed 8-3-01; 8:45 am]
BILLING CODE 6560-50-P
    

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