[Federal Register Volume 63, Number 137 (Friday, July 17, 1998)]
[Rules and Regulations]
[Pages 38498-38501]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-19133]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 282

[FRL-6118-1]


Underground Storage Tank Program: Approved State Program for 
Nevada

AGENCY: Environmental Protection Agency (EPA).

ACTION: Immediate final rule.

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SUMMARY: The Resource Conservation and Recovery Act of 1976, as amended 
(RCRA), authorizes the Environmental Protection Agency (EPA) to grant 
approval to states to operate their underground storage tank programs 
in lieu of the federal program. 40 CFR part 282 codifies EPA's decision 
to approve state programs and incorporates by reference those 
provisions of the state statutes and regulations that will be subject 
to EPA's inspection and enforcement authorities under sections 9005 and 
9006 of RCRA Subtitle I and other applicable statutory and regulatory 
provisions (42 U.S.C. 6991d and 6991e). This rule codifies in part 282 
the prior approval of Nevada's underground storage tank program and 
incorporates by reference appropriate provisions of state statutes and 
regulations.

DATES: The regulation is effective September 15, 1998, unless EPA 
publishes a prior Federal Register document withdrawing this immediate 
final rule. All comments on the codification of Nevada's underground 
storage tank program must be received by the close of business on 
August 17, 1998. The incorporation by reference of certain publications 
listed in the regulations is approved by the Director of the Federal 
Register, as of September 15, 1998, in accordance with 5 U.S.C. 552 
(a).

ADDRESSES: Comments may be mailed to the U.S. EPA Office of Underground 
Storage Tanks (WST-8), Waste Management Division, U.S. EPA Region 9, 75 
Hawthorne Street, San Francisco, California, 94105-3901. Comments 
received by EPA may be inspected in the public docket, located in the 
Office of Underground Storage Tanks, at the above address, from 9 a.m. 
to 4 p.m., Monday through Friday, excluding federal holidays.
    Copies of Nevada's underground storage tank program may be obtained 
from the Nevada State Office Library, Board Room, 100 Stewart Street, 
Carson City, Nevada, 89710; the U.S. EPA Region 9 Library, 13th Floor, 
75 Hawthorne Street, San Francisco, California, 94105-3901; and the 
U.S. EPA Underground Storage Tank docket office and the U.S. EPA Office 
of Underground Storage Tanks, both located at 401 M. Street SW, 
Washington, D.C., 20460.

FOR FURTHER INFORMATION CONTACT: John Thayer, Nevada Program Manager, 
Office of Underground Storage Tanks (WST-8), U.S.EPA Region 9, 75 
Hawthorne Street, San Francisco, California 94105-3901, Phone: (415) 
744-2092.

SUPPLEMENTARY INFORMATION:

Background

    Section 9004 of the Resource Conservation and Recovery Act of 1976, 
as amended, (RCRA), 42 U.S.C. 6991c, allows the U.S. Environmental 
Protection Agency (EPA) to approve state underground storage tank 
programs to operate in the state in lieu of the federal underground 
storage tank program. On December 24, 1992, EPA published a Federal 
Register notice announcing its tentative decision to grant approval to 
Nevada. (See 57 FR 248,61376, December 24, 1992.) Approval was 
effective on March 30, 1993.
    EPA codifies its approval of state programs in Part 282 of Title 
40, Code of Federal Regulations (CFR) and incorporates by reference 
therein the state statutes and regulations that will be subject to 
EPA's inspection and enforcement authorities under sections 9005 and 
9006 of Subtitle I of RCRA, 42 U.S.C. 6991d and 6991e, and other 
applicable statutory and regulatory provisions. Today's rulemaking 
codifies EPA's approval of the Nevada underground storage tank program. 
This codification reflects the state program in effect at the time EPA 
granted Nevada approval under section 9004(a), 42 U.S.C. 6991c(a) for 
its underground storage tank program. Notice and opportunity for 
comment were provided earlier on the Agency's decision to approve the 
Nevada program, and EPA is not now reopening that decision nor 
requesting comment on it.
    This effort provides clear notice to the public of the scope of the 
approved program in each state. By codifying the approved Nevada 
program and by amending the Code of Federal Regulations whenever a new 
or different set of requirements is approved in Nevada, the status of 
federally approved requirements of the Nevada program will be readily 
discernible. Only those provisions of the Nevada underground storage 
tank program for which approval has been granted by EPA will be 
incorporated by reference for enforcement purposes.
    To codify EPA's approval of Nevada's underground storage tank 
program, EPA has added section 282.78 to Title 40 of the Code of 
Federal Regulation. Section 282.78 incorporates by reference for 
enforcement purposes the state's statutes and regulations. Section 
282.78 also references the Attorney General's Statement, Demonstration 
of Adequate Enforcement Procedures, the Program Description, and the 
Memorandum of Agreement, which are approved as part of the underground 
storage tank program under subtitle I of RCRA.
    The Agency retains the authority under sections 9005 and 9006 of 
Subtitle I of RCRA, 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

[[Page 38499]]

inspection authorities, and federal procedures, rather than the state 
authorized analogues to these provisions. Therefore, the approved 
Nevada enforcement authorities will not be incorporated by reference. 
Section 282.78 lists those approved Nevada authorities that would fall 
into this category.
    The public also needs to be aware that some provisions of the 
State's underground storage tank program are not part of the federally 
approved state program. These non-approved provisions are not part of 
the RCRA Subtitle I program because they are ``broader in scope'' than 
Subtitle I of RCRA. (See 40 CFR 281.12(a)(3)(ii).) As a result, state 
provisions, which are ``broader in scope'' than the federal program, 
are not incorporated by reference for purposes of enforcement in part 
282. Section 282.78 of the codification simply lists for reference and 
clarity the Nevada statutory and regulatory provisions, which are 
``broader in scope'' than the federal program and which are not, 
therefore, part of the approved program being codified today. ``Broader 
in scope'' provisions cannot be enforced by EPA; the state, however, 
will continue to enforce such provisions.

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.

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, or to the private 
sector, of $100 million or more in the aggregate 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 
it merely makes federally enforceable existing requirements with which 
regulated entities must already comply under 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. 
The requirements being codified today are the result of Nevada's 
voluntary participation in accordance with RCRA Subtitle I.
    Even if today's rule did contain a federal mandate, this rule will 
not result in annual expenditures of $100 million or more in the 
aggregate for state, local, and/or tribal governments, or the private 
sector, because today's action merely codifies an existing state 
program that EPA previously approved. Thus, today's rule is not subject 
to the requirements of sections 202 and 205 of the UMRA.
    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 
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, this codification 
incorporates into the Code of Federal Regulations Nevada's requirements 
which have already been approved by EPA under 40 CFR Part 281 and, 
thus, small governments are not subject to any additional significant 
or unique requirements by virtue of this codification.

Certification Under the Regulatory Flexibility Act

    EPA has determined that this codification 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 state requirements authorized by EPA under 40 CFR Part 281. 
EPA's codification does not impose any additional burdens on these 
small entities. This is because EPA's codification would simply result 
in an administrative change, rather than a change in the substantive 
requirements imposed on 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 codification will not have a significant 
economic impact on a substantial number of small entities. This 
codification incorporates Nevada's requirements, which have been 
approved by EPA under 40 CFR Part 281, into the Code of Federal 
Regulations. It does not impose any new burdens on small entities. This 
rule, therefore, does not require a regulatory flexibility analysis.

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).

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.

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 or final rule. This rule will not 
impose any information requirements upon the regulated community.

[[Page 38500]]

List of Subjects In 40 CFR Part 282

    Environmental protection, Hazardous substances, Incorporation by 
reference, Intergovernmental relations, State program approval, 
Underground storage tanks, Water pollution control.

    Dated: May 25, 1998.
Felicia Marcus,
Regional Administrator, Region 9.

    For the reasons set forth in the preamble, 40 CFR Part 282 is 
amended as follows:

PART 282--APPROVED UNDERGROUND STORAGE TANK PROGRAMS

    1. The authority citation for part 282 continues to read as 
follows:

    Authority: 42 U.S.C. 6912, 6991(c), 6991(d), and 6991(e).

Subpart B--Approved State Programs

    2. Subpart B is amended by adding Sec. 282.78 to read as follows:


Sec. 282.78  Nevada State--Administered Program.

    (a) The State of Nevada is approved to administer and enforce an 
underground storage tank program in lieu of the federal program under 
Subtitle I of the Resource Conservation and Recovery Act of 1976 
(RCRA), as amended, 42 U.S.C. 6991 et seq. The state's program, as 
administered by the Nevada Division of Environmental Protection was 
approved by EPA pursuant to 42 U.S.C. 6991c and part 281 of this 
chapter. EPA approved the Nevada program on December 24, 1992 and it 
was effective March 30, 1993.
    (b) Nevada has primary responsibility for enforcing its underground 
storage tank program. However, EPA retains the authority to exercise 
its inspection and enforcement authorities under sections 9005 and 9006 
of Subtitle I of RCRA, 42 U.S.C. 6991d and 6991e, as well as under 
other statutory and regulatory provisions.
    (c) To retain program approval, Nevada must revise its approved 
program to adopt new changes to the federal Subtitle I program, which 
makes it more stringent in accordance with section 9004 of RCRA, 42 
U.S.C. 6991c, and 40 CFR part 281, subpart E. If Nevada obtains 
approval for the revised requirements pursuant to section 9004 of RCRA, 
42 U.S.C. 6991c, the newly approved statutory and regulatory provisions 
will be added to this subpart and notice of any change will be 
published in the Federal Register.
    (d) Nevada has final approval for the following elements submitted 
to EPA in Nevada's program application for final approval and approved 
by EPA on December 24, 1992. Copies may be obtained from the Nevada 
State Office Library, Board Room, 100 Stewart Street, Carson City, 
Nevada 89710.
    (1) State statutes and regulations. (i) The provisions cited in 
this paragraph are incorporated by reference as part of the underground 
storage tank program under Subtitle I of RCRA, 42. U.S.C. 6991 et seq.
    (A) Nevada Statutory Requirements Applicable to the Underground 
Storage Tank Program, 1992.
    (B) Nevada Regulatory Requirements Applicable to the Underground 
Storage Tank Program, 1992.
    (ii) The following statutes and regulations are part of the 
approved state program, although not incorporated by reference herein 
for enforcement purposes.
    (A) The statutory provisions include: Nevada Revised Statutes 459 
Underground Storage Tank Program (1992) Sections 459.826, 459.830, 
459.832, 459.834, 459.844, 459.846, 459.848, 459.850, 459.852, 459.854, 
and 459.856.
    (B) The regulatory provisions include: none.
    (iii) The following statutory and regulatory provisions are broader 
in scope than the federal program, are not part of the approved 
program, and are not incorporated by reference herein for enforcement 
purposes: none.
    (2) Statement of legal authority. (i) ``Attorney General's 
Statement of Final Approval,'' signed by the Attorney General of Nevada 
on December 1, 1992, though not incorporated by reference, is 
referenced as part of the approved underground storage tank program 
under Subtitle I of RCRA, 42 U.S.C. 6991 et seq.
    (ii) Letter from the Attorney General of Nevada to EPA, dated 
December 1, 1992, though not incorporated by reference, is referenced 
as part of the approved underground storage tank program under Subtitle 
I of RCRA, 42 U.S.C. 6991 et seq.
    (3) Demonstration of procedures for adequate enforcement. The 
``Demonstration of Procedures for Adequate Enforcement'' submitted as 
part of the original application of October 1, 1992, though not 
incorporated by reference, is referenced as part of the approved 
underground storage tank program under Subtitle I of RCRA, 42 U.S.C. 
6991 et seq.
    (4) Program description. The program description and any other 
material submitted as part of the original application in October 1992, 
though not incorporated by reference, are referenced as part of the 
approved underground storage tank program under Subtitle I of RCRA, 42 
U.S.C. 6991 et seq.
    (5) Memorandum of Agreement. The Memorandum of Agreement between 
EPA Region 9 and the Nevada Division of Environmental Protection, 
signed by the EPA Regional Administrator on December 17, 1992, though 
not incorporated by reference, is referenced as part of the approved 
underground storage tank program under Subtitle I of RCRA, 42 U.S.C. 
6991 et seq.
    3. Appendix A to Part 282 is amended by adding in alphabetical 
order ``Nevada'' and its listing.

Appendix A to Part 282--State Requirements Incorporated by Reference in 
Part 282 of the Code of Federal Regulations

* * * * *

Nevada

    (a) The statutory provisions include:
    (1) Nevada Revised Statute Chapter 459, Underground Storage Tank 
Program (1992), Nevada Revised Statue 590, Petroleum Fund (1991).
    (2) Nevada Revised Statute Chapter 459, Underground Storage Tank 
Program (1992):

    Section 459.810 ``Operator'' defined.
    Section 459.814 ``Person'' defined.
    Section 459.816 ``Regulated Substance'' defined.
    Section 459.818 ``Release'' defined.
    Section 459.820 ``Storage Tanks'' defined.
    Section 459.822 Department designated as state agency for 
regulation of storage tanks.
    Section 459.828 Owner or operator of storage tank to provide 
department with certain information.
    Section 459.838 Fund for the management of storage tanks: 
Creation: Sources: Claims.
    Section 459.840 Fund for the management of storage tanks: Use; 
reimbursement; recovery by attorney general.

    (3) Nevada Revised Statue 590, Petroleum Fund (1991):

    Section 590.700 Definitions.
    Section 590.710 ``Board'' defined.
    Section 590.720 ``Department'' defined.
    Section 590.725 ``Diesel fuel of grade number 1'' defined.
    Section 590.726 ``Diesel fuel of grade number 2'' defined.
    Section 590.730 ``Discharge'' defined.
    Section 590.740 ``Division'' defined.
    Section 590.750 ``Fund'' defined.
    Section 590.760 ``Heating oil'' defined.
    Section 590.765 ``Motor vehicle fuel'' defined.
    Section 590.770 ``Operator'' defined.
    Section 590.780 ``Person'' defined.
    Section 590.790 ``Petroleum'' defined.
    Section 590.800 ``Storage tank'' defined.
    Section 590.810 Legislative findings.
    Section 590.820 Board to review claims: Creation; members; 
chairman; administrative Assistance; compensation of members.
    Section 590.830 Fund for cleaning up discharges of petroleum: 
Creation;

[[Page 38501]]

administration by division; claims; interest.
    Section 590.840 Collection of fee for certain fuels and heating 
coil; exempt products; payment of expenses of department.
    Section 590.850 Registration of storage tanks: Collection of 
annual fee; exempt tanks; liability for noncompliance.
    Section 590.860 Balance in fund to determine collection of fees 
by department.
    Section 590.870 Report of discharge from tank required; division 
to clean up discharge; expectation; test of tank required for 
coverage.
    Section 590.880 Allocation of costs resulting from discharge 
from certain storage tanks for heating oil.
    Section 590.890 Allocation of costs resulting from discharge 
from other storage tanks.
    Section 590.900 Liability for costs to clean up discharge caused 
by willful or wanton misconduct, gross negligence or violation of 
statute or regulation.
    Section 590.910 Pro rata reduction required, if balance in fund 
insufficient for full payment.
    Section 590.920 Tanks exempted from provisions of Sections 
590.850 to 590.910 inclusive; optional coverage of exempted tank.

    (4) Nevada Civil Procedure, Rule 24 (1971):
    Nevada Civil Procedure, Rule 24 .
    (b) The regulatory provisions includes:
    (1) Nevada Administrative Code 459, UST Program (1990):

    Section 459.9929 ``Storage Tank'' defined.
    Section 459.993 Compliance with federal regulations.
    Section 459.995 Financial responsibility of owners and 
operators.
    Section 459.996 Releases: Reporting.

    (2) Nevada Administrative Code 590, Petroleum Fund (1991):
    Section 590.720 Adoption by reference of provisions of Code of 
Federal Regulations.

    (3) Nevada Administrative Code, Reportable Quantities (1989):
    Section 445.240 Notice required.

[FR Doc. 98-19133 Filed 7-16-98; 8:45 am]
BILLING CODE 6560-50-P