[Federal Register: July 17, 1998 (Volume 63, Number 137)]
[Rules and Regulations]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 282
Underground Storage Tank Program: Approved State Program for
AGENCY: Environmental Protection Agency (EPA).
ACTION: Immediate final rule.
SUMMARY: The Resource Conservation and Recovery Act of 1976, as amended
(RCRA), authorizes the Environmental Protection Agency (EPA) to grant
approval to states to operate their underground storage tank programs
in lieu of the federal program. 40 CFR part 282 codifies EPA's decision
to approve state programs and incorporates by reference those
provisions of the state statutes and regulations that will be subject
to EPA's inspection and enforcement authorities under sections 9005 and
9006 of RCRA Subtitle I and other applicable statutory and regulatory
provisions (42 U.S.C. 6991d and 6991e). This rule codifies in part 282
the prior approval of Nevada's underground storage tank program and
incorporates by reference appropriate provisions of state statutes and
DATES: The regulation is effective September 15, 1998, unless EPA
publishes a prior Federal Register document withdrawing this immediate
final rule. All comments on the codification of Nevada's underground
storage tank program must be received by the close of business on
August 17, 1998. The incorporation by reference of certain publications
listed in the regulations is approved by the Director of the Federal
Register, as of September 15, 1998, in accordance with 5 U.S.C. 552
ADDRESSES: Comments may be mailed to the U.S. EPA Office of Underground
Storage Tanks (WST-8), Waste Management Division, U.S. EPA Region 9, 75
Hawthorne Street, San Francisco, California, 94105-3901. Comments
received by EPA may be inspected in the public docket, located in the
Office of Underground Storage Tanks, at the above address, from 9 a.m.
to 4 p.m., Monday through Friday, excluding federal holidays.
Copies of Nevada's underground storage tank program may be obtained
from the Nevada State Office Library, Board Room, 100 Stewart Street,
Carson City, Nevada, 89710; the U.S. EPA Region 9 Library, 13th Floor,
75 Hawthorne Street, San Francisco, California, 94105-3901; and the
U.S. EPA Underground Storage Tank docket office and the U.S. EPA Office
of Underground Storage Tanks, both located at 401 M. Street SW,
Washington, D.C., 20460.
FOR FURTHER INFORMATION CONTACT: John Thayer, Nevada Program Manager,
Office of Underground Storage Tanks (WST-8), U.S.EPA Region 9, 75
Hawthorne Street, San Francisco, California 94105-3901, Phone: (415)
Section 9004 of the Resource Conservation and Recovery Act of 1976,
as amended, (RCRA), 42 U.S.C. 6991c, allows the U.S. Environmental
Protection Agency (EPA) to approve state underground storage tank
programs to operate in the state in lieu of the federal underground
storage tank program. On December 24, 1992, EPA published a Federal
Register notice announcing its tentative decision to grant approval to
Nevada. (See 57 FR 248,61376, December 24, 1992.) Approval was
effective on March 30, 1993.
EPA codifies its approval of state programs in Part 282 of Title
40, Code of Federal Regulations (CFR) and incorporates by reference
therein the state statutes and regulations that will be subject to
EPA's inspection and enforcement authorities under sections 9005 and
9006 of Subtitle I of RCRA, 42 U.S.C. 6991d and 6991e, and other
applicable statutory and regulatory provisions. Today's rulemaking
codifies EPA's approval of the Nevada underground storage tank program.
This codification reflects the state program in effect at the time EPA
granted Nevada approval under section 9004(a), 42 U.S.C. 6991c(a) for
its underground storage tank program. Notice and opportunity for
comment were provided earlier on the Agency's decision to approve the
Nevada program, and EPA is not now reopening that decision nor
requesting comment on it.
This effort provides clear notice to the public of the scope of the
approved program in each state. By codifying the approved Nevada
program and by amending the Code of Federal Regulations whenever a new
or different set of requirements is approved in Nevada, the status of
federally approved requirements of the Nevada program will be readily
discernible. Only those provisions of the Nevada underground storage
tank program for which approval has been granted by EPA will be
incorporated by reference for enforcement purposes.
To codify EPA's approval of Nevada's underground storage tank
program, EPA has added section 282.78 to Title 40 of the Code of
Federal Regulation. Section 282.78 incorporates by reference for
enforcement purposes the state's statutes and regulations. Section
282.78 also references the Attorney General's Statement, Demonstration
of Adequate Enforcement Procedures, the Program Description, and the
Memorandum of Agreement, which are approved as part of the underground
storage tank program under subtitle I of RCRA.
The Agency retains the authority under sections 9005 and 9006 of
Subtitle I of RCRA, 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. Therefore, the approved
Nevada enforcement authorities will not be incorporated by reference.
Section 282.78 lists those approved Nevada authorities that would fall
into this category.
The public also needs to be aware that some provisions of the
State's underground storage tank program are not part of the federally
approved state program. These non-approved provisions are not part of
the RCRA Subtitle I program because they are ``broader in scope'' than
Subtitle I of RCRA. (See 40 CFR 281.12(a)(3)(ii).) As a result, state
provisions, which are ``broader in scope'' than the federal program,
are not incorporated by reference for purposes of enforcement in part
282. Section 282.78 of the codification simply lists for reference and
clarity the Nevada statutory and regulatory provisions, which are
``broader in scope'' than the federal program and which are not,
therefore, part of the approved program being codified today. ``Broader
in scope'' provisions cannot be enforced by EPA; the state, however,
will continue to enforce such provisions.
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.
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, or to the private
sector, of $100 million or more in the aggregate 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
it merely makes federally enforceable existing requirements with which
regulated entities must already comply under 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.
The requirements being codified today are the result of Nevada's
voluntary participation in accordance with RCRA Subtitle I.
Even if today's rule did contain a federal mandate, this rule will
not result in annual expenditures of $100 million or more in the
aggregate for state, local, and/or tribal governments, or the private
sector, because today's action merely codifies an existing state
program that EPA previously approved. Thus, today's rule is not subject
to the requirements of sections 202 and 205 of the UMRA.
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
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, this codification
incorporates into the Code of Federal Regulations Nevada's requirements
which have already been approved by EPA under 40 CFR Part 281 and,
thus, small governments are not subject to any additional significant
or unique requirements by virtue of this codification.
Certification Under the Regulatory Flexibility Act
EPA has determined that this codification 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 state requirements authorized by EPA under 40 CFR Part 281.
EPA's codification does not impose any additional burdens on these
small entities. This is because EPA's codification would simply result
in an administrative change, rather than a change in the substantive
requirements imposed on 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 codification will not have a significant
economic impact on a substantial number of small entities. This
codification incorporates Nevada's requirements, which have been
approved by EPA under 40 CFR Part 281, into the Code of Federal
Regulations. It does not impose any new burdens on small entities. This
rule, therefore, does not require a regulatory flexibility analysis.
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).
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.
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 or final rule. This rule will not
impose any information requirements upon the regulated community.
List of Subjects In 40 CFR Part 282
Environmental protection, Hazardous substances, Incorporation by
reference, Intergovernmental relations, State program approval,
Underground storage tanks, Water pollution control.
Dated: May 25, 1998.
Regional Administrator, Region 9.
For the reasons set forth in the preamble, 40 CFR Part 282 is
amended as follows:
PART 282--APPROVED UNDERGROUND STORAGE TANK PROGRAMS
1. The authority citation for part 282 continues to read as
Authority: 42 U.S.C. 6912, 6991(c), 6991(d), and 6991(e).
Subpart B--Approved State Programs
2. Subpart B is amended by adding Sec. 282.78 to read as follows:
Sec. 282.78 Nevada State--Administered Program.
(a) The State of Nevada is approved to administer and enforce an
underground storage tank program in lieu of the federal program under
Subtitle I of the Resource Conservation and Recovery Act of 1976
(RCRA), as amended, 42 U.S.C. 6991 et seq. The state's program, as
administered by the Nevada Division of Environmental Protection was
approved by EPA pursuant to 42 U.S.C. 6991c and part 281 of this
chapter. EPA approved the Nevada program on December 24, 1992 and it
was effective March 30, 1993.
(b) Nevada has primary responsibility for enforcing its underground
storage tank program. However, EPA retains the authority to exercise
its inspection and enforcement authorities under sections 9005 and 9006
of Subtitle I of RCRA, 42 U.S.C. 6991d and 6991e, as well as under
other statutory and regulatory provisions.
(c) To retain program approval, Nevada must revise its approved
program to adopt new changes to the federal Subtitle I program, which
makes it more stringent in accordance with section 9004 of RCRA, 42
U.S.C. 6991c, and 40 CFR part 281, subpart E. If Nevada obtains
approval for the revised requirements pursuant to section 9004 of RCRA,
42 U.S.C. 6991c, the newly approved statutory and regulatory provisions
will be added to this subpart and notice of any change will be
published in the Federal Register.
(d) Nevada has final approval for the following elements submitted
to EPA in Nevada's program application for final approval and approved
by EPA on December 24, 1992. Copies may be obtained from the Nevada
State Office Library, Board Room, 100 Stewart Street, Carson City,
(1) State statutes and regulations. (i) The provisions cited in
this paragraph are incorporated by reference as part of the underground
storage tank program under Subtitle I of RCRA, 42. U.S.C. 6991 et seq.
(A) Nevada Statutory Requirements Applicable to the Underground
Storage Tank Program, 1992.
(B) Nevada Regulatory Requirements Applicable to the Underground
Storage Tank Program, 1992.
(ii) The following statutes and regulations are part of the
approved state program, although not incorporated by reference herein
for enforcement purposes.
(A) The statutory provisions include: Nevada Revised Statutes 459
Underground Storage Tank Program (1992) Sections 459.826, 459.830,
459.832, 459.834, 459.844, 459.846, 459.848, 459.850, 459.852, 459.854,
(B) The regulatory provisions include: none.
(iii) The following statutory and regulatory provisions are broader
in scope than the federal program, are not part of the approved
program, and are not incorporated by reference herein for enforcement
(2) Statement of legal authority. (i) ``Attorney General's
Statement of Final Approval,'' signed by the Attorney General of Nevada
on December 1, 1992, though not incorporated by reference, is
referenced as part of the approved underground storage tank program
under Subtitle I of RCRA, 42 U.S.C. 6991 et seq.
(ii) Letter from the Attorney General of Nevada to EPA, dated
December 1, 1992, though not incorporated by reference, is referenced
as part of the approved underground storage tank program under Subtitle
I of RCRA, 42 U.S.C. 6991 et seq.
(3) Demonstration of procedures for adequate enforcement. The
``Demonstration of Procedures for Adequate Enforcement'' submitted as
part of the original application of October 1, 1992, though not
incorporated by reference, is referenced as part of the approved
underground storage tank program under Subtitle I of RCRA, 42 U.S.C.
6991 et seq.
(4) Program description. The program description and any other
material submitted as part of the original application in October 1992,
though not incorporated by reference, are referenced as part of the
approved underground storage tank program under Subtitle I of RCRA, 42
U.S.C. 6991 et seq.
(5) Memorandum of Agreement. The Memorandum of Agreement between
EPA Region 9 and the Nevada Division of Environmental Protection,
signed by the EPA Regional Administrator on December 17, 1992, though
not incorporated by reference, is referenced as part of the approved
underground storage tank program under Subtitle I of RCRA, 42 U.S.C.
6991 et seq.
3. Appendix A to Part 282 is amended by adding in alphabetical
order ``Nevada'' and its listing.
Appendix A to Part 282--State Requirements Incorporated by Reference in
Part 282 of the Code of Federal Regulations
* * * * *
(a) The statutory provisions include:
(1) Nevada Revised Statute Chapter 459, Underground Storage Tank
Program (1992), Nevada Revised Statue 590, Petroleum Fund (1991).
(2) Nevada Revised Statute Chapter 459, Underground Storage Tank
Section 459.810 ``Operator'' defined.
Section 459.814 ``Person'' defined.
Section 459.816 ``Regulated Substance'' defined.
Section 459.818 ``Release'' defined.
Section 459.820 ``Storage Tanks'' defined.
Section 459.822 Department designated as state agency for
regulation of storage tanks.
Section 459.828 Owner or operator of storage tank to provide
department with certain information.
Section 459.838 Fund for the management of storage tanks:
Creation: Sources: Claims.
Section 459.840 Fund for the management of storage tanks: Use;
reimbursement; recovery by attorney general.
(3) Nevada Revised Statue 590, Petroleum Fund (1991):
Section 590.700 Definitions.
Section 590.710 ``Board'' defined.
Section 590.720 ``Department'' defined.
Section 590.725 ``Diesel fuel of grade number 1'' defined.
Section 590.726 ``Diesel fuel of grade number 2'' defined.
Section 590.730 ``Discharge'' defined.
Section 590.740 ``Division'' defined.
Section 590.750 ``Fund'' defined.
Section 590.760 ``Heating oil'' defined.
Section 590.765 ``Motor vehicle fuel'' defined.
Section 590.770 ``Operator'' defined.
Section 590.780 ``Person'' defined.
Section 590.790 ``Petroleum'' defined.
Section 590.800 ``Storage tank'' defined.
Section 590.810 Legislative findings.
Section 590.820 Board to review claims: Creation; members;
chairman; administrative Assistance; compensation of members.
Section 590.830 Fund for cleaning up discharges of petroleum:
administration by division; claims; interest.
Section 590.840 Collection of fee for certain fuels and heating
coil; exempt products; payment of expenses of department.
Section 590.850 Registration of storage tanks: Collection of
annual fee; exempt tanks; liability for noncompliance.
Section 590.860 Balance in fund to determine collection of fees
Section 590.870 Report of discharge from tank required; division
to clean up discharge; expectation; test of tank required for
Section 590.880 Allocation of costs resulting from discharge
from certain storage tanks for heating oil.
Section 590.890 Allocation of costs resulting from discharge
from other storage tanks.
Section 590.900 Liability for costs to clean up discharge caused
by willful or wanton misconduct, gross negligence or violation of
statute or regulation.
Section 590.910 Pro rata reduction required, if balance in fund
insufficient for full payment.
Section 590.920 Tanks exempted from provisions of Sections
590.850 to 590.910 inclusive; optional coverage of exempted tank.
(4) Nevada Civil Procedure, Rule 24 (1971):
Nevada Civil Procedure, Rule 24 .
(b) The regulatory provisions includes:
(1) Nevada Administrative Code 459, UST Program (1990):
Section 459.9929 ``Storage Tank'' defined.
Section 459.993 Compliance with federal regulations.
Section 459.995 Financial responsibility of owners and
Section 459.996 Releases: Reporting.
(2) Nevada Administrative Code 590, Petroleum Fund (1991):
Section 590.720 Adoption by reference of provisions of Code of
(3) Nevada Administrative Code, Reportable Quantities (1989):
Section 445.240 Notice required.
[FR Doc. 98-19133 Filed 7-16-98; 8:45 am]
BILLING CODE 6560-50-P
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