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67 FR 53743-53745 August 19, 2002 (Volume 67, Number 160) 40 CFR Part 281 [FRL-7261-9] Nebraska; Final Approval of State Underground Storage Tank Program

[Federal Register: August 19, 2002 (Volume 67, Number 160)]
[Rules and Regulations]               
[Page 53743-53745]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



40 CFR Part 281


Nebraska; Final Approval of State Underground Storage Tank 

AGENCY: Environmental Protection Agency.

[[Page 53744]]

ACTION: Final rule; final determination on application of State of 
Nebraska for final approval.


SUMMARY: The State of Nebraska has applied for final approval of its 
underground storage tank (UST) program under Subtitle I of the Resource 
Conservation and Recovery Act (RCRA). The Environmental Protection 
Agency (EPA) has reviewed Nebraska's application and has reached a 
final determination that Nebraska's underground storage tank program 
satisfies all of the requirements necessary to qualify for final 
approval. Thus, EPA is granting final approval to the State of Nebraska 
to operate its program.

EFFECTIVE DATE: Final approval for Nebraska shall be effective 
September 18, 2002.

USTB, 901 North 5th Street, Kansas City, Kansas 66101, (913) 551-7268.


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 

B. State of Nebraska

    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.
    The Nebraska program provides for regulation of both petroleum and 
hazardous substance tanks. Nebraska also regulates UST systems used to 
store fuel solely for use by emergency power generators, regulates 
certain USTs used to store heating oil, regulates any tank used for 
consumptive on-site purposes and not for resale, requires registration 
of permanently abandoned systems, regulates above ground storage tanks 
for those tanks to be eligible for reimbursement from the state cleanup 
fund, imposes licensing and certification requirements on tank 
installation and removal contractors, licenses and imposes a remedial 
action fee on certain refiners and suppliers, and requires any person 
who deposits regulated substances in a tank to make certain 
notifications to owners and operators of UST systems, and subjects UST 
systems previously closed between December 22, 1988 and January 1, 1989 
to being directed to close in accordance with the state closure 
requirements. However, these parts of the Nebraska program are broader 
in scope than the Federal program and are not included in this final 
approval. Additionally, the Nebraska program is not as broad as the 
federal program because Nebraska does not regulate tank systems 
installed between December 22, 1988 and January 1, 1989 as new tank 
systems. However, for tank systems installed within this 9-day window, 
through the Nebraska and EPA Memorandum of Agreement included in the 
State Program Approval application, EPA has agreed to assume all 
related enforcement responsibilities.
    On March 7, 2002, EPA published a tentative decision announcing its 
intent to grant Nebraska final approval. Further background on the 
tentative decision to grant approval is available by contacting Linda 
Garwood, EPA Region 7, ARTD/USTB, 901 North 5th Street, Kansas City, 
Kansas 66101, (913) 551-7268.
    Along with the tentative determination, EPA announced the 
opportunity for public comment. Also, EPA provided notice that a public 
hearing would be provided but only if significant public interest on 
substantive issues was shown. EPA did not receive any significant 
comments and no public hearing was held.

C. Decision

    I conclude that the State of Nebraska's application for final 
approval meets all the statutory and regulatory requirements 
established by Subtitle I of RCRA. Accordingly, Nebraska is granted 
final approval to operate its UST program. The State of Nebraska now 
has the responsibility for managing all regulated UST facilities within 
its borders and carrying out all aspects of the UST program, except 
with regard to Indian lands, where EPA will retain and otherwise 
exercise regulatory authority. Nebraska also has primary enforcement 
responsibility, for the UST's it regulates, although EPA retains the 
right to conduct inspections under Section 9005 of RCRA, 42 U.S.C. 
6991d, and to take enforcement actions under Section 9006 of RCRA, 42 
U.S.C. 6991e.

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 authorizes State requirements for the purpose of RCRA 9004 and 
imposes no additional requirements beyond those imposed by State law. 
Accordingly, I certify 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 action 
authorizes 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 
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

[[Page 53745]]

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 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 authorizes 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 action also is not subject to Executive Order 
13045 (62 FR 19885, April 23, 1997), because it is not economically 
significant and it does not make decisions based on environmental 
health or safety risks. This rule 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 
    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 
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 rule 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 rule 
does not impose an information collection burden under the provisions 
of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
    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 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).

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), 
6926, 6974(b).

    Dated: July 25, 2002.
James B. Gulliford,
Regional Administrator, Region 7.
[FR Doc. 02-20987 Filed 8-16-02; 8:45 am]

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