[Federal Register: November 17, 1998 (Volume 63, Number 221)]
[Rules and Regulations]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 281
Tennessee; Final Approval of State Petroleum Underground Storage
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of final determination on the State of Tennessee's
application for final approval.
SUMMARY: The State of Tennessee has applied for partial approval of its
underground storage tank program for petroleum under subtitle I of the
Resource Conservation and Recovery Act (RCRA). The State of Tennessee
is not requesting approval of the underground storage tank program for
hazardous substances. The Environmental Protection Agency (EPA) has
reviewed Tennessee's application and has reached a final determination
that Tennessee's underground storage tank program for petroleum
satisfies all of the requirements necessary to qualify for approval.
Thus, EPA is granting final approval to the State of Tennessee to
operate its underground storage tank program for petroleum. This
approval does not include hazardous substance underground storage tanks
under subtitle I of RCRA.
EFFECTIVE DATE: Final approval for the State of Tennessee's petroleum
underground storage tank program shall be effective at 1:00 pm Eastern
Standard Time on January 15, 1999.
FOR FURTHER INFORMATION CONTACT: Mr. John K. Mason, Chief, Underground
Storage Tank Section, U.S. EPA, Region 4, Atlanta Federal Center, 61
Forsyth Street S.W., Atlanta, Georgia 30303, phone number: (404) 562-
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 Ssction 9004(a).
On September 1, 1996, the State of Tennessee submitted an official
application to obtain final partial program approval to administer the
underground storage tank program for petroleum. On July 10, 1998, EPA
published a tentative decision announcing its intent to grant Tennessee
final approval for petroleum. Further background on the tentative
decision to grant approval appears at 63 FR 37311, July 10, 1998.
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 canceled. No public comments were received regarding EPA's
approval of Tennessee's underground storage tank program.
The following statutory provisions are broader in scope than the
federal program and are not part of the approved program: Tennessee
Code Annotated, Title 68, Chapter 215--section 102(a)(3), insofar as it
refers to the intent to develop long range plans to meet future
petroleum underground storage tank demands; section 102(a)(5), insofar
as it provides for a fund; section 104, insofar as it applies to
persons other than underground storage tank owners and operators;
section 106(a)(6), insofar as it requires any person who deposits
petroleum in underground storage tanks to notify the owner or operator
of state notification requirements; section 106(c)(2), insofar as it
applies to persons other than owners and operators placing petroleum
substances in an underground storage tank; section 107(f)(9), insofar
as it provides for rule development for the assessment and collections
of fees; section 109, insofar as it allows for levying and collection
of annual fees to operate the UST fund and develop rules; section 110,
insofar as it establishes a petroleum underground storage tank fund;
section 111, insofar as it refers to uses of the state underground
storage tank fund; section 112, insofar as it establishes a petroleum
underground storage tank board; section 113, insofar as it establishes
board meetings, public hearings, and board compensation; section 115,
insofar as it establishes cost recovery and apportionment of liability
for cleanups; section 117, insofar as it applies to persons other than
underground storage tank owners and operators; section 125, insofar as
it applies to the state UST fund; and section 128, insofar as it
requires a report to the General Assembly.
The following regulatory provisions are broader in scope than the
federal program and not part of the approved program: Tennessee
Department of Environment and Conservation, Underground Storage Tank
Program Rules, Chapter 1200-1-15--section-.09, insofar as it refers to
guidelines and procedures for administering the Tennessee petroleum
underground storage tank fund; section-.10, insofar as it refers to
annual fees, the use, collection and failure to pay fees; and
section-.11, insofar as it requires underground storage tank fees, use,
collection failure to pay, and fee notices.
I conclude that the State of Tennessee's application for final
program approval meets all of the statutory and regulatory requirements
established by Subtitle I of RCRA. Accordingly, Tennessee is granted
final approval to operate its underground storage tank program for
petroleum. The State of Tennessee now has the responsibility for
managing all regulated petroleum underground storage tank facilities
within its border and carrying out all aspects of the underground
storage tank program except with regard to hazardous substance
underground storage tanks where EPA will retain regulatory authority.
Tennessee also has primacy enforcement responsibility for petroleum
underground storage tanks, although EPA retains the right to conduct
enforcement actions for all regulated underground storage tanks under
section 9006 of RCRA.
C. Administrative Requirements
1. 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.
2. Executive Order 12875: Enhancing the Intergovernmental Partnership
Under Executive Order 12875, EPA may not issue a regulation that is
not required by statute and that creates a mandate upon a State, local
or tribal government, unless the Federal government provides the funds
necessary to pay the direct compliance costs incurred by those
governments, or EPA consults with those governments. If EPA complies by
consulting, Executive Order 12875 requires EPA to provide to the Office
of Management and Budget a description of the extent of EPA's prior
consultation with representatives of affected State, local and tribal
governments, the nature of their concerns, any written communications
from the governments, and a statement supporting the need to issue the
regulation. In addition, Executive Order 12875 requires EPA to develop
an effective process permitting elected officials and other
representatives of State, local and tribal governments ``to provide
meaningful and timely input in the development of regulatory proposals
containing significant unfunded mandates.''
Today's rule does not create a mandate on State, local or tribal
governments. The rule does not impose any enforceable duties on these
entities. The State administers its underground storage tank program
voluntarily, and any duties on other State, local or tribal
governmental entities arise from that program, not from today's action.
Accordingly, the requirements of section 1(a) of Executive Order 12875
do not apply to this rule.
3. Executive Order 13084: Consultation and Coordination With Indian
Under Executive Order 13084, EPA may not issue a regulation that is
not required by statute, that significantly or uniquely affects the
communities of Indian tribal governments, and that imposes substantial
direct compliance costs on those communities, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by the tribal governments, or EPA consults with those
governments. If EPA complies by consulting, Executive Order 13084
requires EPA to provide to the Office of Management and Budget, in a
separately identified section of the preamble to the rule, a
description of the extent of EPA's prior consultation with
representatives of affected tribal governments, a summary of the nature
of their concerns, and a statement supporting the need to issue the
regulation. In addition, Executive Order 13084 requires EPA to develop
an effective process permitting elected officials and other
representatives of Indian tribal governments ``to provide meaningful
and timely input in the development of regulatory policies on matters
that significantly or uniquely affect their communities.''
Today's rule does not significantly or uniquely affect the
communities of Indian tribal governments. Tennessee is not approved to
implement the underground storage tank program in Indian Country. This
rule has no effect on the underground storage tank program that EPA
implements in the Indian Country within the State. Accordingly, the
section 3(b) of Executive Order 13084 do not apply to this rule.
4. 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.
5. 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 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
did not consider the use of any voluntary consensus standards.
6. 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, in the aggregate,
or to the private sector, of $100 million or more 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
the requirements of the Tennessee program are already imposed by the
State and subject to 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. Tennessee's participation
in an approved UST program is voluntary.
Even if today's rule did contain a Federal mandate, this rule will
not result in annual expenditures of $100 million or more for State,
local, and/or tribal governments in the aggregate, or the private
sector. Costs to State, local and/or tribal governments already exist
under the Tennessee program, and today's action does not impose any
additional obligations on regulated entities. In fact, EPA's approval
of state programs generally may reduce, not increase, compliance costs
for the private sector.
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
the 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, they are already subject
to the regulatory requirements under existing state law which are being
approved by EPA, and, thus, are not subject to any additional
significant or unique requirements by virtue of this program approval.
7. Certification Under the Regulatory Flexibility Act
EPA has determined that this approval 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
regulatory requirements under existing State law which are being
approved by EPA. EPA's approval does not impose any additional burdens
on these small entities. This is because EPA's approval would simply
result in an administrative change, rather than a change in the
substantive requirements imposed on these 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 approval will not have a significant
economic impact on a substantial number of small entities. This rule
approves regulatory requirements under existing State law to which
small entities are already subject. It does not impose any new burdens
on small entities. This rule, therefore, does not require a regulatory
8. 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).
9. Paperwork Reduction Act
Under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., Federal
agencies must consider the paperwork burden imposed by an 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 materials, State program approval, Underground storage tanks.
Authority: This notice is issued under the authority of section
9004 of the Solid Waste Disposal Act as amended 42 U.S.C. 6912(a),
Dated: October 19, 1998.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
[FR Doc. 98-30720 Filed 11-16-98; 8:45 am]
BILLING CODE 6560-50-U
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