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60 FR 49239-49241 September 22, 1995 (Volume 60, Number 184) 40 CFR Part 281 [FRL-5299-2] Montana; Final Approval of State Underground Storage Tank Program

[Federal Register: September 22, 1995 (Volume 60, Number 184)]
[Proposed Rules]               
[Page 49239-49241]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]


40 CFR Part 281


Montana; Final Approval of State Underground Storage Tank Program

AGENCY: Environmental Protection Agency.

ACTION: Notice of Tentative Determination on Application of State of 
Montana for Final Approval, Public Hearing and Public Comment Period.


SUMMARY: The State of Montana has applied for final 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 Montana application and has made the 
tentative decision that Montana's underground storage tank (UST) 
program satisfies all of the requirements necessary to qualify for 
final approval. Notably, the State of Montana's statute authorizes the 
issuance of regulations that are broader in scope than the Federal 
regulations. EPA intends to grant final approval to the State to 
operate its program in lieu of the Federal program. The State of 
Montana's application for final approval is available for public review 
and comment.

DATES: All comments on Montana's final approval application must be 
received by the close of business on October 23, 1995. The public 
hearing is tentatively scheduled for November 13, 1995.

[[Page 49240]]

ADDRESSES: Written comments should be sent to U.S. EPA, Attention: 
Kristine Knutson, DWR 10096, 301 South Park, Helena, Montana 59626-
    If the public hearing is held it will be at the Department of 
Health and Environmental Sciences, 2209 Phoenix Avenue, Helena, 
Montana, at 1 p.m.
    Copies of Montana's final approval application are available during 
normal working days at the following addresses for inspection and 
copying: from 8 a.m.--5 p.m. at the Montana Department of Health and 
Environmental Sciences, 2209 Phoenix Avenue, Helena, Montana 59620-
0901, phone: (406) 444-5970; and from 12 p.m.--4 p.m. at the U.S. EPA 
Region 8, Library, Suite 144, 999 18th Street, Denver, Colorado 80202, 
phone: (303) 294-7616.

Montana Office, DWR 10096, 301 South Park, Helena, Montana 59626-0096, 
phone: (406) 449-5414, extension 225.

PUBLIC HEARING: EPA has tentatively scheduled a public hearing on this 
determination. If a sufficient number of people express interest in 
participating in a hearing by writing to EPA or calling the contact 
within 30 days of the date of publication of this notice, EPA will hold 
a hearing on the date given above in the DATES section. EPA will notify 
all persons who submit comments on this notice if it decides to hold 
the hearing. In addition, anyone who wishes to learn whether the 
hearing will be held may call the person listed in the FOR FURTHER 


A. Background

    Section 9004 of the Resource Conservation and Recovery Act (RCRA) 
enables 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 is granted by EPA if the Agency finds 
that the State program: (1) Is ``no less stringent'' than the Federal 
program in all seven elements, and includes notification requirements 
of section 9004(a)(8), 42 U.S.C. 6991c(a)(8); and (2) provides for 
adequate enforcement of compliance with UST standards (Section 9004(a), 
42 U.S.C. 6991c(a)).

B. State of Montana

    In April 1985, the State of Montana established authority through 
an amendment to the 1981 Montana Hazardous Waste Act to implement an 
underground storage tank program. The State changed the title of the 
Act to the Montana Hazardous Waste and Underground Storage Tank Act in 
April 1989, and further amended the Act in 1989 to expand rulemaking 
authority. Another amendment in 1993 provided the State with rulemaking 
authority to assess civil penalties.
    The State submitted a draft application for state program approval 
in December 1992. Supplemental information was provided in January 
1993. EPA reviewed and commented on the draft application and requested 
additional information to be included in the final application.
    On February 22, 1995, Montana submitted an official application for 
final approval. Prior to its submission, Montana provided an 
opportunity for public notice and comment in the development of its 
underground storage tank program as required under Sec. 281.50(b). EPA 
has reviewed Montana's application, and has tentatively determined that 
the State's program meets all of the requirements necessary to qualify 
for final approval. Consequently, EPA intends to grant final approval 
to Montana to operate its program in lieu of the Federal program.
    This tentative determination to approve the Montana UST program 
applies to all activities in Montana outside of ``Indian Country,'' as 
defined in 18 U.S.C. section 1151, including the following Indian 
reservations in the State of Montana:

1. Blackfeet;
2. Crow;
3. Flathead;
4. Fort Belknap;
5. Fort Peck;
6. Northern Cheyenne; and
7. Rocky Boys.

The Environmental Protection Agency retains all underground storage 
tank authority under RCRA which applies to Indian Country in Montana.
    Before EPA would be able to approve the State of Montana UST 
program for any portion of ``Indian Country,'' the State would have to 
provide an appropriate analysis of the State's jurisdiction to enforce 
in these areas. In order for a state to satisfy this requirement, it 
must demonstrate to the EPA's satisfaction that it has authority 
pursuant to applicable principles of Federal Indian Law to enforce its 
laws against existing and potential pollution sources within any 
geographical area for which it seeks program approval. EPA has reason 
to believe that disagreement exists with regard to the State's 
jurisdiction over ``Indian Country,'' and EPA is not satisfied that 
Montana has, at this time, made the requisite showing of its authority 
with respect to such lands.
    In withholding program approval for these areas, EPA is not making 
a determination that the State either has adequate jurisdiction or 
lacks such jurisdiction. Should the State of Montana choose to submit 
analysis with regard to its jurisdiction over all or part of ``Indian 
Country'' in the State, it may do so without prejudice.
    EPA's future evaluation of whether to approve the Montana program 
for ``Indian Country,'' to include Indian reservation lands, will be 
governed by EPA's judgment as to whether the State has demonstrated 
adequate authority to justify such approval, based upon its 
understanding of the relevant principles of Federal Indian law and 
sound administrative practice. The State may wish to consider EPA's 
discussion of the related issue of tribal jurisdiction found in the 
preamble to the Indian Water Quality Standards Regulation (see 56 FR 
64876, December 12, 1991).
    In accordance with Section 9004 of RCRA 42 U.S.C. 6991c and 40 CFR 
281.50(e), the Agency will accept written comments on EPA's tentative 
determination until October 23, 1995. Copies of Montana's application 
are available for inspection and copying at the locations indicated in 
the ``Addresses'' section of this notice.
    EPA will consider all public comments on its tentative 
determination received during the public comment period. Issues raised 
by those comments may be the basis for a decision to deny final 
approval to Montana. EPA expects to make a final decision on whether or 
not to approve Montana's program by December 21, 1995, and will give 
notice of it in the Federal Register. The notice will include a summary 
of the reasons for the final determination and a response to all major 
    The Office of Management and Budget has exempted this rule from the 
requirements of Section 6 of Executive Order 12866.
    Pursuant to the provisions of 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. The approval effectively suspends 
the applicability of certain Federal regulations in favor of Montana's 
program, thereby eliminating duplicative requirements for owners and 
operators of underground storage tanks in the State. It does not impose 
any new burdens on small entities. This rule, therefore, does not 
require a regulatory flexibility analysis.

List of Subjects in 40 CFR Part 281

    Environmental protection, Administrative practice and procedure, 

[[Page 49241]]
    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. 6991c.

    Dated: August 1, 1995.
Kerrigan Clough,
Acting Regional Administrator.
[FR Doc. 95-23574 Filed 9-21-95; 8:45 am]

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