[Federal Register: August 28, 2002 (Volume 67, Number 167)]
[Rules and Regulations]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 281
South Carolina; Final Approval of State Underground Storage Tank
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of final determination on the State of South Carolina's
application for final approval.
SUMMARY: The State of South Carolina has applied for final approval of
its underground storage tank program for petroleum and hazardous
substances under subtitle I of the Resource Conservation and Recovery
Act (RCRA). The EPA has reviewed the State of South Carolina's
application and has reached a final determination that South Carolina's
underground storage tank program for petroleum and hazardous substances
satisfies all of the requirements necessary to qualify for final
approval. Thus, EPA is granting final approval to the State of South
Carolina to operate its underground storage tank program for petroleum
and hazardous substances.
EFFECTIVE DATE: Final approval for the State of South Carolina's
underground storage tank program shall be effective on September 27,
FOR FURTHER INFORMATION CONTACT: Mr. John K. Mason, Chief, Underground
Storage Tank Section, U.S. EPA, Region 4, Sam Nunn Federal Center, 61
Forsyth Street SW., Atlanta, Georgia 30303, phone number: (404) 562-
Section 9004 of 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. 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 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, EPA 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, EPA will rely on Federal sanctions, Federal
inspection authorities, and Federal procedures rather than the State
authorized analogues to these provisions.
On January 7, 1999, the State of South Carolina submitted an
official application to obtain final program approval to administer the
underground storage tank program for petroleum and hazardous
substances. On January 29, 2002, EPA published a tentative decision
announcing its intent to grant South Carolina final approval. Further
background on the tentative decision to grant approval appears at 67 FR
4225, January 29, 2002.
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 cancelled. No public comments were received regarding EPA's
approval of South Carolina's underground storage tank program.
The State of South Carolina is not approved to operate the
underground storage tank program in Indian Country within the State's
I conclude that the State of South Carolina's application for final
program approval meets all of the statutory and regulatory requirements
established by subtitle I of RCRA. Accordingly, South Carolina is
granted final approval to operate its underground storage tank program
for petroleum and hazardous substances. The State of South Carolina now
has responsibility for managing all regulated underground storage tank
facilities within its borders and carrying out all aspects of the
underground storage tank program except with regard to Indian Country,
where the EPA will retain regulatory authority. South Carolina also has
primary enforcement responsibility, although EPA retains the right to
conduct enforcement actions under section 9006 of RCRA.
C. 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, 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
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. South Carolina'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
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
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.
Submission to Congress and the Comptroller General
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 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.
South Carolina 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
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 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
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 South Carolina'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
National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, Sec. 12(d) (15 U.S.C. 272)
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.
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.
Executive Order 13211 (Energy Effects)
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 12866.
List of Subjects in 40 CFR Part 281
Environmental protection, Administrative practice and procedure,
Hazardous substances, Intergovernmental relations.
Authority: This rule is issued under the authority of Section
9004 of the Solid Waste Disposal Act as amended 42 U.S.C. 6912(a),
Dated: August 13, 2002.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
[FR Doc. 02-21938 Filed 8-27-02; 8:45 am]
BILLING CODE 6560-50-P
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