[Federal Register: November 30, 2001 (Volume 66, Number 231)]
[Rules and Regulations]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 281
Minnesota; Final Approval of State Underground Storage Tank
AGENCY: Environmental Protection Agency.
ACTION: Notice of final determination on the State of Minnesota's
application for final approval.
SUMMARY: The State of Minnesota has applied for approval of its
Underground Storage Tank Program for petroleum and hazardous substances
under Subtitle I of the Resource Conservation and Recovery Act (RCRA).
The Environmental Protection Agency (EPA) has reviewed Minnesota's
application and has reached a final determination that Minnesota's
Underground Storage Tank Program for petroleum and hazardous substances
satisfies all of the requirements necessary to qualify for approval.
Thus, the EPA is granting final approval to the State of Minnesota to
operate its Underground Storage Tank Program for petroleum and
EFFECTIVE DATE: Final approval for the State of Minnesota's Underground
Storage Tanks Program shall be effective on December 31, 2001.
FOR FURTHER INFORMATION CONTACT: Mr. Andrew Tschampa, Chief,
Underground Storage Tank Section, U.S. EPA, Region 5, 77 West Jackson
Blvd., Chicago, Illinois, Telephone: (312) 886-6136.
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 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 the 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 provisions.
On May 11, 2000, the State of Minnesota submitted an official
application to obtain final program approval to administer the
Underground Storage Tank Program for petroleum and hazardous
substances. On August 6, 2001, the EPA published a tentative decision
announcing its intent to grant Minnesota final approval. Further
background on the tentative decision to grant approval appears at 66 FR
40954-40957, August 6, 2001.
Along with the tentative determination, the EPA announced the
availability of the application for public comment and the date of a
public hearing on the application. The 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 the
EPA's approval of Minnesota's Underground Storage Tank Program.
The State of Minnesota is not approved to operate the Underground
Storage Tank Program in Indian Country within the State's borders.
I conclude that the State of Minnesota's application for final
program approval meets all of the statutory and regulatory requirements
established by Subtitle I of RCRA. Accordingly, Minnesota is granted
final approval to operate its Underground Storage Tank Program for
petroleum and hazardous substances. The State of Minnesota now has the
responsibility for managing all regulated underground storage tank
facilities within its border and carrying out all aspects of the
Underground Storage Tank Program except with regard to Indian Country
where the EPA will have regulatory authority. Minnesota also has
primary enforcement responsibility, although the 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, the
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 the 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 the 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 the 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 the EPA regulatory proposals with significant Federal
intergovernmental mandates, and informing, educating, and advising
small governments on compliance with the regulatory requirements.
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. Minnesota's
participation in the 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, the 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 the 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 rule
making 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, a 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 the EPA is now approving. This action merely
approves for the purpose of RCRA Section 9004 those existing State
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. The 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 the 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.
The 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 the 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.
Minnesota 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 the 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 the 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, the 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. The 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
a 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 the EPA approval of Minnesota'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
As noted in the proposed rule, 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 the 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 the 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, the
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 Fed. Reg. 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, Reporting and
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: November 14, 2001.
Acting Regional Administrator, Region V.
[FR Doc. 01-29778 Filed 11-29-01; 8:45 am]
BILLING CODE 6560-50-P
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