Rule2021-20859
Approval of State Underground Storage Tank Program Revisions; Nevada
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
September 30, 2021
Effective
November 29, 2021
Issuing agencies
Environmental Protection Agency
Abstract
Pursuant to the Resource Conservation and Recovery Act (RCRA or Act), as amended, the Environmental Protection Agency (EPA) is taking direct final action to approve revisions to the State of Nevada's Underground Storage Tank (UST) program since the previous authorization on July 17, 1998. This action is based on the EPA's determination that these revisions satisfy all requirements needed for program approval. The State's federally authorized program, as revised pursuant to this action, will remain subject to the EPA's inspection and enforcement authorities under sections 9005 and 9006 of RCRA subtitle I and other applicable statutory and regulatory provisions.
Full Text
<html>
<head>
<title>Federal Register, Volume 86 Issue 187 (Thursday, September 30, 2021)</title>
</head>
<body><pre>
[Federal Register Volume 86, Number 187 (Thursday, September 30, 2021)]
[Rules and Regulations]
[Pages 54107-54111]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-20859]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 281 and 282
[EPA-R09-UST-2021-0597; FRL-8977-02-R9]
Approval of State Underground Storage Tank Program Revisions;
Nevada
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final action.
-----------------------------------------------------------------------
SUMMARY: Pursuant to the Resource Conservation and Recovery Act (RCRA
or Act), as amended, the Environmental Protection Agency (EPA) is
taking direct final action to approve revisions to the State of
Nevada's Underground Storage Tank (UST) program since the previous
authorization on July 17, 1998. This action is based on the EPA's
determination that these revisions satisfy all requirements needed for
program approval. The State's federally authorized program, as revised
pursuant to this action, will remain subject to the EPA's inspection
and enforcement authorities under sections 9005 and 9006 of RCRA
subtitle I and other applicable statutory and regulatory provisions.
DATES: This authorization is effective on November 29, 2021 without
further notice, unless the EPA receives adverse comment by November 1,
2021. If the EPA receives adverse comment, we will publish a timely
withdrawal in the Federal Register informing the public that the
authorization will not take effect.
ADDRESSES: Submit any comments, identified by EPA-R09-UST-2021-0597, by
one of the following methods:
1. Federal eRulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Follow
the
[[Page 54108]]
on-line instructions for submitting comments.
2. Email: <a href="/cdn-cgi/l/email-protection#9feff3feebeaf4e6ebfab1ecf6f2f0f1fedffaeffeb1f8f0e9"><span class="__cf_email__" data-cfemail="d7a7bbb6a3a2bcaea3b2f9a4bebab8b9b697b2a7b6f9b0b8a1">[email protected]</span></a>.
Instructions: Direct your comments to Docket ID No. EPA-R09-UST-
2021-0597. The EPA's policy is that all comments received will be
included in the public docket without change and may be available
online at <a href="https://www.regulations.gov">https://www.regulations.gov</a>, including any personal
information provided, unless the comment includes information claimed
to be Confidential Business Information (CBI) or other information
whose disclosure is restricted by statute. Do not submit information
that you consider to be CBI or otherwise protected through <a href="https://www.regulations.gov">https://www.regulations.gov</a>, or email. The Federal <a href="https://www.regulations.gov">https://www.regulations.gov</a>
website is an ``anonymous access'' system, which means the EPA will not
know your identity or contact information unless you provide it in the
body of your comment. If you send an email comment directly to the EPA
without going through <a href="https://www.regulations.gov">https://www.regulations.gov</a>, your email address
will be automatically captured and included as part of the comment that
is placed in the public docket and made available on the internet. If
you submit an electronic comment, the EPA recommends that you include
your name and other contact information in the body of your comment and
with any disk or CD-ROM you submit. If the EPA cannot read your comment
due to technical difficulties, and cannot contact you for
clarification, the EPA may not be able to consider your comment.
Electronic files should avoid the use of special characters, any form
of encryption, and be free of any defects or viruses.
The EPA encourages electronic submittals, but if you are unable to
submit electronically, please reach out to the EPA contact person
listed in the notice for assistance with additional submission methods.
You can view and copy the documents that form the basis for this
action and associated publicly available materials through
<a href="http://www.regulations.gov">www.regulations.gov</a>.
FOR FURTHER INFORMATION CONTACT: Simona Platukyte, Project Officer,
Underground Storage Tank Program, EPA Region 9, phone number (415) 972-
3310, email address: <a href="/cdn-cgi/l/email-protection#aadac6cbdedfc1d3decf84d9c3c7c5c4cbeacfdacb84cdc5dc"><span class="__cf_email__" data-cfemail="196975786d6c72606d7c376a7074767778597c6978377e766f">[email protected]</span></a>. Out of an abundance of
caution for members of the public and our staff, the EPA Region 9
office will be closed to the public to reduce the risk of transmitting
COVID-19. We encourage the public to submit comments via <a href="https://www.regulations.gov">https://www.regulations.gov</a>, as no mail, courier, or hand deliveries will be
accepted. Please call or email the contact listed above if you need
alternative access to material indexed but not provided in the docket.
SUPPLEMENTARY INFORMATION:
I. Approval of Revisions to Nevada's Underground Storage Tank Program
A. Why are revisions to state programs necessary?
States that have received final approval from the EPA under RCRA
section 9004(b) of RCRA, 42 U.S.C. 6991c(b), must maintain an
underground storage tank program equivalent to, consistent with, and no
less stringent than the Federal underground storage tank program. When
the EPA revises the regulations that govern the UST program, states
must revise their programs to comply with the updated regulations and
submit these revisions to the EPA for approval. Most commonly, states
must change their programs because of changes to the EPA's regulations
in 40 Code of Federal Regulations (CFR) part 280. States can also
initiate changes on their own to their underground storage tank program
and these changes must then be approved by the EPA.
B. What decisions has the EPA made in this authorization?
On November 20, 2018, in accordance with 40 CFR 281.51(a), Nevada
submitted a program revision application seeking the EPA's approval for
its UST program revisions (State Application). On July 29, 2021, Nevada
submitted amendments to the revision application, based on comments
from the EPA. Nevada's revisions correspond to the EPA's final rule
published on July 15, 2015 (80 FR 41566), which revised the 1988 UST
regulations and the 1988 state program approval (SPA) regulations (2015
Federal Revisions). As required by 40 CFR 281.20, the State Application
contains the following: A transmittal letter from the Governor
requesting approval, a description of the program and operating
procedures, a demonstration of the State's procedures to ensure
adequate enforcement, a Memorandum of Agreement outlining the roles and
responsibilities of the EPA and the implementing agency, a statement of
certification from the Attorney General, copies of all relevant state
statutes and regulations, and an application addendum submitted on July
29, 2021. We have reviewed the State Application and determined that
the revisions to Nevada's UST program are equivalent to, consistent
with, and no less stringent than the corresponding Federal requirements
in subpart C of 40 CFR part 281, and that the Nevada program provides
for adequate enforcement of compliance (40 CFR 281.11(b)). Therefore,
the EPA grants Nevada final approval to operate its UST program with
the changes described in the program revision application and as
outlined below in Section I.G of this document.
C. What is the effect of this action on the regulated community?
This action does not impose additional requirements on the
regulated community because the regulations being approved by this
authorization are already in effect in the State of Nevada, and are not
changed by this action. This action merely approves the existing State
regulations as meeting the Federal requirements and renders them
federally enforceable.
D. Why is the EPA using a direct final authorization?
The EPA is publishing this direct final authorization without a
prior proposal because we view this as a noncontroversial action and we
anticipate no adverse comment. Nevada did not receive any comments
during its comment period when the rules and regulations being
considered in this document were proposed at the State level.
E. What happens if the EPA receives comments that oppose this action?
Along with this direct final authorization, the EPA is publishing a
separate document in the ``Proposed Rules'' section of this Federal
Register that serves as the proposal to approve the State's UST program
revisions, and provides an opportunity for public comment. If the EPA
receives comments that oppose this approval, the EPA will withdraw this
direct final authorization by publishing a document in the Federal
Register before it becomes effective. The EPA will base any further
decision on approval of the State Application after considering all
comments received during the comment period. The EPA will then address
all public comments in a later final authorization. You may not have
another opportunity to comment. If you want to comment on this
approval, you must do so at this time.
F. For what has Nevada previously been approved?
On March 30, 1993, the EPA finalized a rule approving the UST
program that Nevada proposed to administer in lieu of the Federal UST
program. On July 17, 1998, the EPA codified the approved Nevada program
that is subject to the
[[Page 54109]]
EPA's inspection and enforcement authorities under RCRA sections 9005
and 9006, 42 U.S.C. 6991d and 6991e, and other applicable statutory and
regulatory provisions.
G. What changes are we approving with this action and what standards do
we use for review?
In order to be approved, each state program application must meet
the general requirements in 40 CFR 281.11, and specific requirements in
40 CFR part 281, subpart B (Components of a Program Application),
subpart C (Criteria for No Less Stringent), and subpart D (Adequate
Enforcement of Compliance). This is also true for proposed revisions to
approved state programs.
As more fully described below, the State has made the changes to
its approved UST program to reflect the 2015 Federal Revisions. The EPA
is approving the State's changes because they are equivalent to,
consistent with, and no less stringent than the Federal UST program and
because the EPA has confirmed that the Nevada UST program will continue
to provide for adequate enforcement of compliance as described in 40
CFR 281.11(b) and part 281, subpart D, after this approval. There
remains a typographical error in NAC 445C.230, in the Cleanup of
Discharged Petroleum section, which indicates that Nevada adopts by
reference the relevant Federal regulations as they existed on July 1,
1990, rather than as they existed on October 13, 2015. The correct date
is referenced in NAC 459.993, in the Storage Tanks section. Nevada's
July 29, 2021 submittal describes the steps it will take to revise the
regulation.
The Nevada Division of Environmental Protection (NDEP or Division)
is the lead implementing agency for the UST program in Nevada, except
in Indian country.
NDEP continues to have broad statutory authority to regulate the
installation, operation, maintenance, and closure of USTs, as well as
UST releases under selected provisions from Nevada Revised Statutes
(NRS), Chapters 233B, Nevada Administrative Procedures Act; Chapter 439
Administration of Public Health; Chapter 445A, Water Controls; and
Chapter 459, Hazardous Materials. The Nevada UST Program gets its
enforcement authority from the powers of the Nevada State Environmental
Commission found at NRS 445A.675, 445A.690, 459.842, 459.844, 459.846,
459.848, 459.850, 459.852. 459.854 and 459.856 and administrative rules
under the Nevada Administrative Code (NAC) at NAC 459.9941 through
459.9944 regarding delivery prohibition.
Specific authorities to regulate the installation, operation,
maintenance, and closure of USTs, as well as UST releases, are found
under NRS 459, in addition to the regulatory provisions of NAC 459 and
selected sections from NAC 445A, effective November 2, 2018; Reporting
and recordkeeping requirements are also found in selected provisions of
NAC 459. The aforementioned statutory and regulatory sections satisfy
the requirements of 40 CFR 281.40 and 281.41.
Through a Memorandum of Agreement between the State of Nevada and
the EPA, signed by the EPA Region 9 Regional Administrator April 3,
2019, the State maintains procedures for receiving and ensuring proper
consideration of information about violations submitted by the public.
The State agrees to comply with public participation provisions
contained in 40 CFR 281.42 by incorporating by reference the Federal
provisions at NAC 459.993 and providing authority to hold hearings as
deemed necessary to obtain public testimony at NAC 445.22755.
To qualify for final approval, revisions to a state's program must
be ``equivalent to, consistent with, and no less stringent'' than the
2015 Federal Revisions. In the 2015 Federal Revisions, the EPA
addressed UST systems deferred in the 1988 UST regulations, and added,
among other things, new operation and maintenance requirements;
secondary containment requirements for new and replaced tanks and
piping; operator training requirements; and a requirement to ensure UST
system compatibility before storing certain biofuel blends. In
addition, the EPA removed past deferrals for emergency generator tanks,
field constructed tanks, and airport hydrant systems. The EPA analyzes
revisions to approved state programs pursuant to the criteria found in
40 CFR 281.30 through 281.39.
The Division has revised its regulations to help ensure that the
State's UST program revisions are equivalent to, consistent with, and
no less stringent than the 2015 Federal Revisions. In particular, the
Division has amended the NAC to incorporate the revised requirements of
40 CFR part 280, including the requirements added by the 2015 Federal
Revisions. The State, therefore, has ensured that the criteria found in
40 CFR 281.30 through 281.38 are met.
Title 40 CFR 281.39 describes the state operator training
requirements that must be met in order to be considered equivalent to,
consistent with, and no less stringent than Federal requirements.
Nevada has incorporated by reference the Federal requirements at NAC
459.993 with certain additional provisions at NAC 459.99395(1) and (2).
After a thorough review, the EPA has determined that Nevada's operator
training requirements are equivalent to, consistent with, and no less
stringent than Federal requirements.
As part of the State Application, the Senior Deputy Attorney
General for the Division certified that the laws of the State provide
adequate authority to carry out the ``no less stringent'' technical
requirements submitted by the state in order to meet the criteria in 40
CFR 281.30 through 281.39. The EPA is relying on this certification in
addition to the analysis submitted by the State in making our
determination.
H. Where are the revised rules different from the Federal rules?
Broader in Scope Provisions
Where an approved state program has a greater scope of coverage
than required by Federal law, the additional coverage is considered
``broader in scope'' and is not part of the federally-approved program
and are not federally enforceable (40 CFR 281.12(a)(3)(ii)). The
following regulatory requirements are considered broader in scope than
the Federal program as these State-only regulations are not required by
Federal regulation and are implemented by the State in addition to the
federally approved program: NAC 459.99285, which provides the State-
only definition of ``marina storage tank,'' is outside the scope of the
Federal program because these types of tanks do not fall under the
applicability of the UST program; and NAC 445.2271 and 445A.2273, which
deal with specific types of corrective action plans, contain references
that are outside the scope of the Federal UST program with respect to
contamination by hazardous waste, which is regulated under RCRA
Subtitle C. Nevada also has multiple additional state-only provisions
at NAC 459.9933 through 459.9938 that only apply to marina storage
tanks. Marina storage tanks are defined as a type of aboveground
storage tank and these types of tanks are broader in scope than the
Federal RCRA Subtitle I program.
The following statutory provisions are considered broader in scope
than the Federal program: Nevada Revised Statutes (NRS) Chapter 445C,
Environmental Requirements, Cleanup of Discharged Petroleum is broader
in scope than the Federal program because this provision concerns the
relocation of the State's Petroleum Fund, a State-only
[[Page 54110]]
fund; NRS 459.812(2) and 459.820(2) are broader in scope than the
Federal underground storage tank program because these particular
definitions are exclusive to aboveground storage tanks; and NRS
459.836(3), 459.838, and 459.840 are broader in scope than the Federal
program because they are applicable to certain State-only fees and
funds, and fees and funds are not included in the Federal program and
are broader in scope.
More Stringent Provisions
Where an approved state program includes requirements that are
considered more stringent than required by Federal law, the more
stringent requirements become part of the federally-approved program
(40 CFR 281.12(a)(3)(i)).
The following regulatory requirements are considered more stringent
than the Federal program, and on approval, they become part of the
federally-approved program and are federally enforceable:
NAC 459.9945 requires secondary containment of tanks beginning with
those installed on or after July 1, 2008, which is more stringent than
the Federal program that subjected tanks to the secondary containment
requirement in 2015;
NAC 459.994 includes an additional provision related to tank
tightness testing that is more stringent than the Federal program (for
example, NAC 459.994(2) requires the testing to be performed by a
contractor certified by the Division and that a certificate issued by
the contractor be retained by the owner or operator, and NAC 459.994(3)
allows the testing to be waived for ``abandoned underground storage
tanks'' if there is a threat to human health or the environment.);
NAC 445A Water Controls, section 445A.22695(1) requires ``immediate
action . . . under certain circumstances; Director may waive certain
requirements'', which is more stringent than the Federal program
because Nevada requires immediate action in certain circumstances where
the Federal program does not; and
NAC 445A.227 and 445A.22725, which include a provision that the
Director may consider certain factors when determining whether a
corrective action is required, making the State provisions more
stringent than the Federal program because Nevada may require owners/
operators to take corrective action in circumstances not required by
the Federal program.
I. How does this action affect Indian country (18 U.S.C. 1151) in
Nevada?
The EPA's approval of Nevada's Program does not extend to Indian
country as defined in 18 U.S.C. 1151. Indian country generally includes
any land held in trust by the United States for an Indian tribe, and
any other areas that are ``Indian country'' within the meaning of 18
U.S.C. 1151. Any lands removed from an Indian reservation status by
Federal court action are not considered reservation lands even if
located within the exterior boundaries of an Indian reservation. The
EPA will retain responsibilities under RCRA for underground storage
tanks in Indian country. Therefore, this action has no effect in Indian
country. See 40 CFR 281.12(a)(2).
II. Statutory and Executive Order (E.O.) Reviews
This action only applies to Nevada's UST Program requirements
pursuant to RCRA section 9004 and imposes no requirements other than
those imposed by State law. It complies with applicable EOs and
statutory provisions as follows.
A. Executive Order 12866 Regulatory Planning and Review, Executive
Order 13563: Improving Regulation and Regulatory Review
The Office of Management and Budget (OMB) has exempted this action
from the requirements of Executive Orders 12866 (58 FR 51735, Oct. 4,
1993) and 13563 (76 FR 3821, Jan. 21, 2011). This action approves State
requirements for the purpose of RCRA section 9004 and imposes no
additional requirements beyond those imposed by State law. Therefore,
this action is not subject to review by OMB.
B. Unfunded Mandates Reform Act and Executive Order 13175: Consultation
and Coordination With Indian Tribal Governments
Because this action approves 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 (2 U.S.C. 1531-1538). For the same
reason, this action also does not significantly or uniquely affect the
communities of tribal governments, as specified by Executive Order
13175 (65 FR 67249, November 9, 2000).
C. Executive Order 13132: Federalism
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, Aug. 10, 1999), because it merely approves State requirements as
part of the State RCRA Underground Storage Tank Program without
altering the relationship or the distribution of power and
responsibilities established by RCRA.
D. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
This action also is not subject to Executive Order 13045 (62 FR
19885, Apr. 23, 1997), because it is not economically significant and
it does not make decisions based on environmental health or safety
risks.
E. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This authorization is not subject to Executive Order 13211 (66 FR
28355, May 22, 2001) because it is not a ``significant regulatory
action'' as defined under Executive Order 12866.
F. National Technology Transfer and Advancement Act
Under RCRA section 9004(b), the EPA grants a state's application
for approval as long as the state meets the criteria required by RCRA.
It would thus be inconsistent with applicable law for the EPA, when it
reviews a state approval 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.
G. Executive Order 12988: Civil Justice Reform
As required by section 3 of Executive Order 12988 (61 FR 4729,
February 7, 1996), in issuing this authorization, the EPA has taken the
necessary steps to eliminate drafting errors and ambiguity, minimize
potential litigation, and provide a clear legal standard for affected
conduct.
[[Page 54111]]
H. Executive Order 12630: Govern- mental Actions and Interference With
Constitutionally Protected Property Rights
The EPA has complied with Executive Order 12630 (53 FR 8859, Mar.
15, 1988) by examining the takings implications of the authorization in
accordance with the ``Attorney General's Supplemental Guidelines for
the Evaluation of Risk and Avoidance of Unanticipated Takings'' issued
under the Executive order.
I. Paperwork Reduction Act
This authorization does not impose an information collection burden
under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C.
3501 et seq.). ``Burden'' is defined at 5 CFR 1320.3(b).
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low Income Populations
Executive Order 12898 (59 FR 7629, Feb. 16, 1994) establishes
Federal executive policy on environmental justice. Its main provision
directs Federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States. Because this authorization approves
pre-existing State rules which are at least equivalent to, consistent
with, and no less stringent than existing Federal requirements, and
imposes no additional requirements beyond those imposed by State law,
and there are no anticipated significant adverse human health or
environmental effects, the authorization is not subject to Executive
Order 12898.
K. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801-808, 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 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). However,
this action will be effective November 29, 2021 because it is a direct
final authorization.
Authority: This authorization is issued under the authority of
sections 2002(a), 7004(b), and 9004, 9005 and 9006 of the Solid
Waste Disposal Act, as amended, 42 U.S.C. 6912(a), 6974(b), and
6991c, 6991d, and 6991e.
List of Subjects in 40 CFR Parts 281 and 282
Environmental protection, Administrative practice and procedure,
Hazardous substances, State program approval, and Underground storage
tanks.
Dated: September 19, 2021.
Deborah Jordan,
Acting Regional Administrator, Region 9.
[FR Doc. 2021-20859 Filed 9-29-21; 8:45 am]
BILLING CODE 6560-50-P
</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>Indexed from Federal Register on September 30, 2021.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.