
[Federal Register Volume 83, Number 243 (Wednesday, December 19, 2018)]
[Rules and Regulations]
[Pages 65104-65107]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-27420]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 281

[EPA-R08-UST-2018-0728; FRL-9986-98-Region 8]


North Dakota: Final Approval of State Underground Storage Tank 
Program Revisions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: Pursuant to the Resource Conservation and Recovery Act (RCRA 
or Act), the Environmental Protection Agency (EPA) is taking direct 
final action to approve revisions to the State of North Dakota's 
Underground Storage Tank (UST) program submitted by the State. The EPA 
has determined that these revisions satisfy all requirements needed for 
program approval. The State's federally-authorized and codified UST 
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 rule is effective March 15, 2019, unless the EPA receives 
adverse comment by January 18, 2019. If the EPA receives substantive 
adverse comment, it will publish a timely document either: Withdrawing 
the direct final publication or affirming the publication and 
responding to comments.

ADDRESSES: Submit your comments by one of the following methods:
    1. Federal eRulemaking Portal: http://www.regulations.gov. Follow 
the online instructions for submitting comments.
    2. Email: Bents.Benjamin@epa.gov.
    3. Mail: Benjamin Bents, Resource Conservation and Recovery 
Program, Office of Partnerships and Regulatory Assistance (8P-R), EPA 
Region 8, 1595 Wynkoop Street, Denver, Colorado 80202-1129.
    4. Hand Delivery or Courier: Deliver your comments to Benjamin 
Bents, Region 8, Resource Conservation and Recovery Program, Office of 
Partnerships and Regulatory Assistance (8P-R), EPA Region 8, 1595 
Wynkoop Street, Denver, Colorado 80202-1129.
    Instructions: Direct your comments to Docket ID No. EPA-R08-UST-
2018-0728. The EPA's policy is that all comments received will be 
included in the public docket without change and may be available 
online at http://www.regulations.gov, 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 http://www.regulations.gov, or email. The federal http://www.regulations.gov 
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 http://www.regulations.gov, 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.
    You can view and copy the documents that form the basis for this 
action and associated publicly available materials from 8:30 a.m. to 
4:00 p.m., Monday through Friday at the following location: EPA Region 
8, 1595 Wynkoop Street, Denver, Colorado 80202-1129, phone number (303) 
312-6284. Interested persons wanting to examine these documents should 
make an appointment with the office at least 2 days in advance.

FOR FURTHER INFORMATION CONTACT: Benjamin Bents, (303) 312-6435, 
Bents.Benjamin@epa.gov. To inspect the hard copy materials, please 
schedule an appointment with Benjamin Bents at (303) 312-6435.

SUPPLEMENTARY INFORMATION: 

I. Approval of Revisions to North Dakota's Underground Storage Tank 
Program

A. Why are revisions to state programs necessary?

    States which 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 that is equivalent to, consistent 
with, and no less stringent than the federal underground storage tank 
program.

[[Page 65105]]

When the EPA makes revisions to 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 rule?

    On July 26, 2018, in accordance with 40 CFR 281.51(a), North Dakota 
submitted a complete program revision application seeking the EPA 
approval for its UST program revisions (State Application). North 
Dakota's revisions correspond to the EPA 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, and copies of all relevant state statutes and regulations. We 
have reviewed the State Application and determined that the revisions 
to North Dakota'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 North Dakota program 
provides for adequate enforcement of compliance (40 CFR 281.11(b)). 
Therefore, the EPA grants North Dakota 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.
    The State of North Dakota adopted state Senate Bill No. 2327 [S.L. 
2017, ch. 199, section 75] which separated the Environmental Health 
Section from the North Dakota Department of Health (NDDOH) to create a 
stand-alone Department of Environmental Quality (NDDEQ). Per S.L. 2017, 
ch. 199, Section 75, the transfer of authority, power, and duties 
related to environmental quality from NDDOH to NDDEQ will become 
effective upon the North Dakota Legislative Council's receipt of the 
certification by the Chief of the Environmental Health Section of the 
State Department of Health attesting that all necessary federal 
approvals have been obtained and all necessary federal and other 
agreements have been amended to ensure the state will continue to meet 
the authorization requirements it currently satisfies after the 
transfer of authority, powers, and duties from the NDDOH to the NDDEQ. 
The EPA understands that the State intends to take the necessary 
additional steps as specified in S.L. 2017, ch. 199, Section 75, to 
ensure that NDDEQ comes into existence and that the NDDEQ rules are 
effective as a matter of State law prior to the effective date of the 
EPA's approval of these revisions. This direct final rule constitutes 
the EPA approval of the transfer of all duties and responsibilities of 
the State relating to the existing federal underground storage tank 
program in North Dakota from the NDDOH to the NDDEQ.

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 rule 
are already in effect in the State of North Dakota 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 rule?

    The EPA is publishing this direct final rule without a prior 
proposed rule because we view this as a noncontroversial action and we 
anticipate no adverse comment. Unless the EPA receives adverse written 
comments during the review and comment period, the decision to 
authorize North Dakota's UST program revision will take effect as 
provided below.

E. What happens if the EPA receives comments that oppose this action?

    Along with this direct final rule, the EPA is publishing a separate 
document in the ``Proposed Rules'' section of this issue of the 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 substantive comments that oppose this approval, the EPA will 
withdraw this direct final rule 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 rule. 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 North Dakota previously been approved?

    On December 10, 1991, the EPA finalized a rule approving the UST 
program that North Dakota proposed to administer in lieu of the federal 
UST program. On August 21, 1995, the EPA codified the provisions of the 
approved North Dakota program that are part of the underground storage 
tank program under subtitle I of RCRA, and therefore are subject to the 
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 Subpart B (Components of a Program Application); Subpart C 
(Criteria for No Less Stringent); and Subpart D (Adequate Enforcement 
of Compliance). This also is 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 North Dakota 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.
    Once the State takes the necessary additional steps as specified in 
S.L. 2017, ch. 199, Section 75: The NDDEQ and its rules and statutes 
would be effective as a matter of state law; and the authority, power, 
and duties of the NDDOH as the implementing agency for the UST program 
in North Dakota (except in Indian country) would transfer to the NDDEQ.
    The State continues to have broad statutory authority to regulate 
the installation, operation, maintenance, and closure of USTs, as well 
as UST releases under North Dakota Century Code, Sections 23.1-04. The 
North

[[Page 65106]]

Dakota UST Program obtains its enforcement authority from N.D.C.C. 
section 23.1-03. The NDDEQ has the responsibility for the 
administration and enforcement of this chapter. It has the power, and 
its duties are, to: (1) Administer the state hazardous waste management 
and underground storage tank programs, (2) Prepare, adopt, promulgate, 
modify, repeal, and enforce rules and regulations governing the 
management of hazardous waste and underground storage tanks, and (3) 
Enter into agreements or letters of understanding with other local, 
state, or federal agencies regarding responsibilities for regulating 
hazardous wastes and underground storage tanks in order to promote 
consistency in enforcement and to avoid duplication in regulation 
(N.D.C.C. section 23.1-03).
    Specific authorities to regulate the installation, operation, 
maintenance, and closure of USTs, as well as UST releases are found 
under N.D.C.C. section 23.1-04-06 and 23.1-04.1, as amended effective 
as provided by S.L. 2017, ch. 199, section 75. The aforementioned 
statutory sections and regulations satisfy the requirements of 40 CFR 
281.40 and 281.41.
    Through a Memorandum of Agreement between the State of North Dakota 
and the EPA, signed by the EPA on November 9, 2018 (MOA), the State 
maintains procedures for receiving and ensuring proper consideration of 
information about violations submitted by the public. In the MOA, the 
State agrees to comply with public participation provisions contained 
in 40 CFR 281.42 including the requirement that the State will not 
oppose intervention under its State rule analogous to Rule 24(a)(2) of 
the Title IV of the Federal Rules of Civil Procedure on the grounds 
that the applicant's interest is adequately represented by the State. 
North Dakota, therefore, has met the public participation requirements 
found in 40 CFR 281.42.
    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.
    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. North 
Dakota did not incorporate by reference federal requirements for 
operator training, and has promulgated and is implementing its own 
operator training provisions under N.D.A.C. sections 33.1-24-08-45 to 
33.1-24-08-48. After a thorough review, the EPA has determined that 
North Dakota's operator training requirements are equivalent to, 
consistent with, and no less stringent than federal requirements.
    As part of the State Application, the North Dakota Attorney General 
certified that the State revisions meet the requirements ``equivalent 
to, consistent with, and no less stringent'' 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 that 
the DEQ 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. For further information on 
the EPA's analysis of the State's application, see the chart in the 
Technical Support Document (TSD) contained in the docket for this 
rulemaking.

H. Where are the revised rules different from the federal rules?

    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)(ii))
    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:
    At N.D.A.C. section 33.1-24-08-03.52, the State defines piping as 
replaced when more than 10 feet of piping is removed and other piping 
is installed.
    At N.D.A.C. section 33.1-24-08-45, North Dakota requires facility 
owners and operators notify the department and provide the name of each 
designated Class A and B operator for each UST facility, including any 
changes to the Class A or B operators.

I. How does this action affect Indian country (18 U.S.C. 1151) in North 
Dakota?

    The EPA's approval of the North Dakota Underground Storage Tank 
Program (State Program) does not extend to Indian country, as defined 
in 18 U.S.C. 1151. Indian country in North Dakota generally includes:
    1. Lands within the exterior boundaries of the following Indian 
Reservations located within North Dakota:
    a. Fort Berthold Indian Reservation
    b. Spirit Lake Reservation
    c. Standing Rock Sioux Reservation
    d. Turtle Mountain Indian Reservation
    2. Any land held in trust by the United States for an Indian tribe, 
and
    3. Any other areas that are ``Indian country'' within the meaning 
of 18 U.S.C. 1151.
    Therefore, this program revision does not extend to Indian country; 
the EPA will retain responsibilities under the Resource Conservation 
Recovery Act of 1976 (RCRA) in Indian country.

II. Statutory and Executive Order (E.O.) Reviews

    This action only applies to North Dakota'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 Order 12866 (58 FR 51735, Oct. 4, 
1993) and 13563 (76 FR 3821, Jan. 21, 2011). This action approves and 
codifies 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. Executive Order 13771: Reducing Regulations and Controlling 
Regulatory Costs

    This action is not an Executive Order 13771 (82 FR 9339, February 
3, 2017) regulatory action because actions such as this final approval 
of North Dakota's revised underground storage tank program under RCRA 
are exempted under Executive Order 12866. Accordingly, I certify that 
this action will not have a significant economic impact on a 
substantial number of small

[[Page 65107]]

entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

C. Unfunded Mandates Reform Act and Executive Order 13175: Consultation 
and Coordination With Indian Tribal Governments

    Because this action approves and codifies 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).

D. 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 and codifies 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.

E. 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.

F. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This rule 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.

G. 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.

H. Executive Order 12988: Civil Justice Reform

    As required by section 3 of Executive Order 12988 (61 FR 4729, 
February 7, 1996), in issuing this rule, 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.

I. Executive Order 12630: Governmental 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 rule in 
accordance with the ``Attorney General's Supplemental Guidelines for 
the Evaluation of Risk and Avoidance of Unanticipated Takings'' issued 
under the executive order.

J. Paperwork Reduction Act

    This rule 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).

K. 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 rule 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 rule is not subject to Executive Order 12898.

L. 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 March 15, 2019, because it is a direct 
final rule.

    Authority:  This rule 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 Part 281

    Environmental protection, Administrative practice and procedure, 
Hazardous substances, State program approval, and Underground storage 
tanks.

    Dated: December 13, 2018.
Douglas Benevento,
Regional Administrator, Region 8.
[FR Doc. 2018-27420 Filed 12-18-18; 8:45 am]
 BILLING CODE 6560-50-P


