89 FR 236 pgs. 97550-97558 - Nebraska: Final Approval of State Underground Storage Tank Program Revisions, Codification, and Incorporation by Reference
Type: RULEVolume: 89Number: 236Pages: 97550 - 97558
Pages: 97550, 97551, 97552, 97553, 97554, 97555, 97556, 97557, 97558Docket number: [EPA-R07-UST-2024-0452; FRL-12274-03-R7]
FR document: [FR Doc. 2024-28140 Filed 12-6-24; 8:45 am]
Agency: Environmental Protection Agency
Official PDF Version: PDF Version
[top]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 282
[EPA-R07-UST-2024-0452; FRL-12274-03-R7]
Nebraska: Final Approval of State Underground Storage Tank Program Revisions, Codification, and Incorporation by Reference
AGENCY:
Environmental Protection Agency (EPA).
ACTION:
Direct final rule.
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 Nebraska's Underground Storage Tank (UST) program submitted by the Nebraska State Marshal (NSFM). This action also codifies EPA's approval of Nebraska's State program and incorporates by reference those provisions of the State regulations that we have determined meet the requirements for approval. The provisions will be subject to EPA's inspection and enforcement authorities under the RCRA and other applicable statutory and regulatory provisions.
DATES:
This rule is effective February 7, 2025, unless EPA receives adverse comment by January 8, 2025. If EPA receives adverse comments, it will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register, as of February 7, 2025, in accordance with 5 U.S.C. 552(a) and 1 CFR part 51.
ADDRESSES:
Submit your comments by one of the following methods:
1. Federal eRulemaking Portal: https://www.regulations.gov. Follow the on-line instructions for submitting comments.
2. Email: blankenship.marie@epa.gov.
Instructions: Direct your comments to Docket ID No. EPA-R07-UST-2024-0452.
EPA's policy is that all comments received will be included in the public docket without change and may be available online at https://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 https://www.regulations.gov, or email. The Federal https://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 https://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, EPA recommends that you include your name and other contact information in the body of your comment and also with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties, and cannot contact you for clarification, 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. EPA encourages electronic submittals, but if you are unable to submit electronically, please reach out to the EPA contact person listed in the document for assistance.
Docket: All documents in the docket are listed in the https://www.regulations.gov index. Although listed in the index, some information might not be publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Publicly available docket materials are available electronically through https://www.regulations.gov.
IBR and supporting material: You can view and copy the documents that form the basis for this codification and associated publicly available materials either through https://www.regulations.gov or by contacting Marie Blankenship at (913) 551-7908 or blankenship.marie@epa.gov. Please call or email the contact listed above if you need access to material indexed but not provided in the docket.
FOR FURTHER INFORMATION CONTACT:
Marie Blankenship, Tanks, Toxics, and Pesticides Branch, Land, Chemical, and Redevelopment Division, U.S. Environmental Protection Agency, Region 7, 11201 Renner Boulevard, Lenexa, Kansas 66219; telephone number: (913) 551-7908; email address: blankenship.marie@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Approval of Revisions to Nebraska's Underground Storage Tank Program
A. Why are revisions to State programs necessary?
[top] States that have received final approval from the EPA under section 9004(b) of RCRA, 42 U.S.C. 6991c(b), must maintain an underground storage tank program that is no less stringent than the Federal UST program. Either EPA or the approved State initiate program revision. When 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. Program revision may be necessary when the controlling Federal or State statutory or regulatory authority is modified or when responsibility for the State program is shifted to a new agency or agencies.
B. What decisions has the EPA made in this rule?
On September 8, 2023, in accordance with 40 CFR 281.51(a), Nebraska submitted a complete program revision application seeking the EPA approval for its UST program revisions (State Application). Nebraska'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 requesting approval, a description of the program and operating procedures, a demonstration of the State's procedures 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 Nebraska's UST program are no less stringent than the corresponding Federal requirements in subpart C of 40 CFR part 281, and that the Nebraska program provides for adequate enforcement of compliance (40 CFR 281.11(b)). Therefore, the EPA grants Nebraska 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 approval decision?
This action does not impose additional requirements on the regulated community because the regulations being approved by this rule are already effective in Nebraska and they 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 EPA using a direct final rule?
EPA is publishing this direct final rule concurrent with a proposed rule because we view this as a noncontroversial action and anticipate no adverse comment. EPA is providing an opportunity for public comment now.
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, providing opportunity for public comment. If EPA receives comments that oppose this approval, EPA will withdraw the direct final rule by publishing a document in the Federal Register before the rule becomes effective. The EPA will base any further decision on the approval of the State program changes after considering all comments received during the comment period. 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 Nebraska previously been approved?
On August 19, 2002, the EPA finalized a rule approving the Nebraska UST program, effective September 18, 2002, to operate in lieu of the Federal program. The State's program has not previously been codified.
G. What changes are we approving with this action?
On September 8, 2023, in accordance with 40 CFR 281.51(a), Nebraska submitted a complete application for final approval of its UST program revisions adopted on July 15, 2015. The EPA now makes an immediate final decision, subject to receipt of written comments that oppose this action, that Nebraska's UST program revisions satisfy all of the requirements necessary to qualify for final approval. Therefore, EPA grants Nebraska final approval for the following program changes:
| Required Federal element | Implementing State authority |
|---|---|
| 40 CFR 281.30, New UST Systems and Notification | Title 159 NAC Chapter 2; Chapter 3, intro; Chapter 4, section 001; Chapter 6, section 001. |
| 40 CFR 281.31, Upgrading Existing UST Systems | Title 159 NAC Chapter 6. |
| 40 CFR 281.32, General Operating Requirements | Title 159 NAC Chapter 4, section 001, section 001.1A; Chapter 5; Chapter 6, sections 001-007; Chapter 7, section 006; Chapter 10, section 006. |
| 40 CFR 281.33, Release Detection | Title 159 NAC Chapter 4; Chapter 7, sections 001-006; Chapter 14; Title 17 NAC Chapter 12. |
| 40 CFR 281.34, Release Reporting, Investigation, and Confirmation | Title 159 NAC Chapter 6, section 005; Chapter 8, section 001-005; Title 126 NAC Chapter 18, sections 002.01, 002.01C, 002.01D, 002.02-005, 007.02. |
| 40 CFR 281.35, Release Response and Corrective Action | Title 159 NAC Chapter 8, sections 001, 003-005; Title 126 NAC Chapter 18, sections 003-007; Title 118 NAC Chapter 1-2 6.002-7, 10-11 and appendix B; Title 115 NAC Chapter 3, sections 001, 001.02, 014, 016-018. |
| 40 CFR 281.36, Out-of-service Systems and Closure | Title 159 NAC Chapter 10, sections 001-005. |
| 40 CFR 281.37, Financial Responsibility for USTs Containing Petroleum | Title 159 NAC Chapter 9 as it references 40 CFR 280.90 through 280.115. |
| 40 CFR 281.38 Lender Liability | Title 159 NAC Chapter 9, section 002. |
| 40 CFR 281.39, Operator Training | Title 159 NAC Chapter 13, sections 001-002, 003.04-008.02. |
| 40 CFR 281.40 Legal Authorities for Compliance Monitoring | Title 159 NAC Chapter 6; Chapter 12; Chapter 13, section 002. |
| 40 CFR 281.41, Legal Authorities for Enforcement Response | Title 159 NAC Chapter 6; Title 126 NAC Chapter 18, section 008. |
[top] The State also demonstrates that its program provides adequate enforcement of compliance as described in 40 CFR 281.11(b) and part 281, subpart D. The Nebraska State Fire Marshal (NSFM) has broad statutory authority with respect to USTs to regulate installation, operation, maintenance, closure, and UST releases, and to the issuance of orders. These statutory authorities are found in Nebraska Revised Statutes, Chapters sections 81-15, 117 to 81-15, 127, sections 81-501 to 81-512, and section 66-1501 to 66-1531, and Nebraska Administrative Code, Title 159. The Nebraska Department of Environment and Energy (NDEE) has broad statutory authority for corrective action and the
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 not part of the federally-approved program and is not federally enforceable (40 CFR 281.12(a)(3)(ii)). The following Nebraska requirements are considered "broader in scope" than the Federal program:
The NSFM has responsibilities with a greater scope of coverage than required by Federal law. NRS section 81-502.
The NSFM has responsibilities for rules and regulations; enforcement; and State procedure with a greater scope of coverage than required by Federal law. NRS section 81-502.04.
The NSFM has duties with a greater scope of coverage than required by Federal law. NRS section 81-503.01(a)-(g), (i).
The NSFM has its own authority to enter and conduct inspections when authorized. NRS section 81-512.
The Nebraska Protection Act defines terms not subject to the UST program. NRS sections 81-1502(1)-(5), (8)-(9), (12)-(13), (15)-(19), (23), (28)-(29), and (31)-(38).
The NDEE has duties with a greater scope of coverage than required by Federal law. NRS section 81-1504(1)-(30), (33)-(58).
The Nebraska Environmental Quality Council has responsibilities to adopt and promulgate rules and regulations; standards of air, land and water with a greater scope of coverage than required by Federal law. NRS section 81-1505.
The Director of the NDEE is authorized to bring State enforcement for violations of State law under a state authority for hearings and issuing orders, requiring monitoring, investigations and corrective action. NRS section 81-1507.
The NDEE is authorized to pursue State civil penalties and injunctive relief. NRS sections 81-1508, 81-1508.01, and 81-1508.02.
The NDEE is authorized to perform inspections and execute search warrants under State authority. NRS section 81-1511.
Portions of the Nebraska UST provisions are applicable to heating oil tanks of greater than 1,100 gallon capacity. NRS section 81-15, 119(10)(b).
Nebraska requires that owners of farm, residential, and heating oil tank systems of less than 1,100 gallon capacity to register such tank systems and pay a one-time registration fee. NRS sections 81-15,119(10)(a) and 81-15-120.
Nebraska establishes permitting requirements on owners and operators of UST systems ( e.g., registration, operating, installation, closure). NRS section 81-15, 121.
Nebraska establishes procedures for the denial or revocation of State issued permits. NRS section 81-15-122.
Nebraska establishes procedures for a permit and registration system for all tanks; an inspection fee; inventory-control procedures; procedures for notification of temporarily or permanently abandoned tanks; and procedures for licensing tank installation and removal contractors. NRS sections 81-15-123(2)-(3), (4)(b), (5), (10), and (12) as it refers to certification and subcontractors.
Nebraska sets deadlines for NDEE approval or disapproval of remedial action plans; establishes procedures for the reimbursement of expenses paid by the owner or operator; establishes procedures for the NDEE to prepare a remedial action plan and implement the plan in the event of an unknown or unavailable owner or operator of a facility causing a release; provides that the Environmental Quality Council establish standards; provides access under State law; provides for NDEE briefing and certificates of completion for work completed under a remedial action plan. NRS sections 81-15, 124(2) second and third sentence, 81-15, 124(3) second sentence and full second paragraph, 81-15, 124.01-81-15, 124.02, 81-15, 124.04-81-15, 124.07.
Nebraska establishes a process for penalties and actions to enjoin for violations of the Petroleum Products and Hazardous Substances Storage and Handling act under State law. NSR section 81-15, 125-81-15, 126.
Nebraska requires notice of registration and duty to provide the notice. NSR section 81-15, 127.
The Nebraska remedial fund is structured to reimburse owners and operators of both USTs and aboveground storage tanks for allowable costs of remedial action and third party claims. NRS section 66-1501, et seq.
Nebraska provides intervention in a matter in litigation under State law. NSR section 25-328.
Nebraska requires contractor licensure and certification for tank installation and removal contractors. Title 159 NAC Chapter 3.001-3.004.
Nebraska requires all owners and operators to comply with Nebraska financial responsibilities requirements for all categories of UST system owner or operators as of the effective date of the regulations with no extensions or deferrals or comply with the federal financial responsibility requirements. Title 159 NAC Chapter 9.001 and Title 200 NAC Chapter 1 [entire regulation].
Nebraska mandates that fuel distributors, or any person who deposits regulated substances in an UST system, are required to notify owners and operators of the registration requirements. Title 159 NAC Chapter 11.004.
Nebraska establishes approval standards for UST training courses and trainers. Title 159 NAC Chapter 13.003.01-13.003.03.
Nebraska establishes minimum requirements for public hearings for permit decisions which by statue or other agency regulations provide for public notice, public review and comment, and an opportunity to request a public hearing before making a final permit decision. Title 115 NAC Chapter 3.001.01, 3.002-3.013, and 3.015.
Nebraska establishes antidegradation; beneficial uses; narrative and numerical standards and sample collections. Title 118 NAC Chapter 3.
Nebraska has procedures to establish narrative and numerical standards for groundwater classification. Title 118 NAC Chapter 4.
Nebraska establishes procedures for changing a groundwater classification. Title 118 NAC Chapter 5.
Nebraska establishes remedial action provisions for point source pollution events for non-petroleum releases. Title 118 NAC Chapter 6.001 and appendix A.
Nebraska establishes definitions for the management of waste with a greater scope of coverage than required by Federal law. Title 126, NAC Chapter 1.002-1.004, 1.006-1.010, 1.012, 1.014-1.019, 1.023, 1.025-1.029, 1.030.02, 1.032, 1.035, 1.039, 1.041-1.044, 1.046-1.047.
Nebraska establishes provisions for waste management permits and licenses; land application of paunch; and fertilizer and pesticide wastewater with a greater scope of coverage than required by Federal law. Nebraska also reserves chapters for future use. Title 126 NAC Chapters 2-17, 19 and appendix I.
[top] Nebraska establishes provisions for rules and regulations related to:
The following definitions associated with well installation are not applicable to the UST program: Abandoned Water Well, Driven Sandpoint Well, Ground Water Heat Pump Well, Illegal Water Well, Inactive Status Water Well, Injection Well, Open Hole Well, Service connection, Special Irrigation District. Title 178 NAC Chapter 12-002.
Nebraska establishes procedures for the installation of potable well construction; non-potable well construction; public water supply systems; ground water heat pump wells; installation of pumps and pumping equipment as it relates to disinfection associated with potable wells; and procedures for driven sandpoint wells and closed loop heat pump wells. Nebraska further offers a Waiver of Disinfection. Title NAC 178 Chapter 12-04-12-05, 12-08, 12-10, 12-011.01B2, 12-012.08C, 12-012.08G, and Waiver of Disinfection.
Nebraska requires owners and operators of UST systems that permanently closed between December 22, 1988, and January 1, 1989, to close such UST systems when directed to do so by the NSFM. NFPA 30: Flammable and Combustible Liquids Code (21.7.4.3.1-21.7.4.3.3) 2012 Version.
Nebraska requires UST system owners and operators to have a tightness test performed on tanks and piping prior to placing the tank system back into service after receiving an extension to the 12-month temporary closure period. National Fire Protection Association 30: Flammable and Combustible Liquids Code (21.7.4.3.1-21.7.4.3.3) 2012 Version.
More Stringent Provisions
Nebraska limits the means by which owners and operators can demonstrate compliance with installation of a new UST system. Only an installer that has been certified or licensed by the State can provide certification of compliance on the UST notification form. Title 159 NAC Chapter 3 as it incorporates 40 CFR 280.20(e)(2).
Nebraska requires additional design and installation standards for new UST systems. Title 159 NAC Chapter 4.001.01-4.001.07.
The Federal program requires all cathodic protection systems to be tested within 6 months of installation. Nebraska general operating requirements for existing UST systems require annual testing for impressed current cathodic protection systems after the initial testing. Title 159 NAC Chapter 6.002.01A1.
Nebraska general operating requirements for existing UST systems requires repaired tanks, piping, overfill, and spill prevention equipment be tested prior to placing the system back into service, or 30 days following the date of completion of the repair, whichever occurs first. Title 159 NAC Chapter 6.004.01.
Nebraska general operating requirements for existing UST systems requires additional record-keeping and reporting. Title 159 NAC Chapter 6.005-6.006.
Nebraska general operating requirements for existing UST systems requires that if a ball float is to be abandoned in place, a drop tube shut off or audible alarm will be set at 85 percent tank capacity to prevent overfill. Title 159 NAC Chapter 6.006.01.
Nebraska excludes all UST systems larger than 1,100 gallons used to store heating oil from all release detection requirements except that they must instead perform the manual tank gauging procedures in 40 CFR 280.43(b) on a monthly basis from April 1 to November 1. Title 159 NAC Chapter 7.001.01.
Nebraska release detection requirements require owners and operators to conduct and record the daily product inventory control requirements as described in 40 CFR 280.43(a)(1)-(6) for all new and existing UST systems. However, UST systems eligible for and utilizing manual tank gauging in accordance with 40 CFR 280.43(b), do not need to meet the daily inventory requirement. Title 159 NAC Chapter 7.004.
Nebraska release and suspected release reporting requires notification to NSFM and NDEE within 24 hours by the owner and operator of the tank. Title 159 NAC Chapter 8.005.
Nebraska site assessment at closure or change-in-service requires sampling analysis, in- place closure assessment, removal closure assessment, tank excavation requirements, line excavation assessment, and reporting requirements. Title 159 NAC Chapter 10.003-10.004.
Nebraska operator training requirements for Class A, Class B, and Class C operators establish owner and operator responsibilities, operator training requirements, operator examination requirements, reciprocity, timing of operator training, operator retraining and owner and operator documentation. Title 159 NAC Chapter 13.001-13.002, 13.003.04-13.003.05, 13.004-13.008.
Nebraska establishes ground water quality standards and use classifications for ground water regulatory programs. Title 118 NAC Chapter 1-2, 6.002, 7, appendix B.
[top] Nebraska establishes water well construction, pump installation and water well decommissioning standards for dewatering wells, ground water monitoring and recovery wells, and test holes. Nebraska further provides for declaratory orders about substantially equivalent procedures or materials and variances. Title 178 NAC Chapter 12.001, 12-03, 12-06-12-07, 12-09, 12-011.01-12-011.01B1, 12-011.01C-12-012.08B, 12-012.08D-12-012.08F2, 12-012.09-12-14, the tables and figures, and the following definitions found at Title 178, Chapter 12-002 Annular Fill, Annular Space, Aquifer, Aquifer Seal, Primary Aquifer Seal, Surface Seal, Backflow Preventer, Bentonite, Bentonite Seal, Bored or Dug Well, Casing, Cesspool, Clay, Community Water System, Confining Layer, Construction of Water Wells, Contamination, Decommissioned when used in relation to a water well, Department, Dewatering Well, Discharge Pipe, Distribution Piping, Good Cause, Gravel Pack, Ground Water, Grout, Installation of Pumps and Pumping Equipment, Monitoring Well, Non-potable Well, Observation Well, Person, Pitless Unit, Pollution, Potable Well, Primary Aquifer Seal, Public Water System, (Licensed) Pump Installation Contractor, (Licensed) Pump Installation Supervisor, Pumps and Pumping Equipment, Recovery Well, Sanitary Well Seal, Screen Apertures, Screened Vent, Secure Cover or Cap, Seepage Pit, Septic Tank, Soil Absorption System (Septic Lateral Field), Static Water Level, Substantially Equivalent, Subsurface Disposal System, Supervision or its derivatives, Surface Seal, Test Hole, Tremie Pipe, Watertight Casing, Watertight Secure Cover, Water Well, (Licensed) Water Well Contractor, (Licensed) Water Well Drilling Supervisor, Well Development, Well Pit, Well Screen.
II. Codification
A. What is codification?
Codification is the process of placing a State's statutes and regulations that comprise the State approved UST program into the CFR. Section 9004(b) of RCRA, as amended, allows the EPA to approve State UST programs to operate in lieu of the Federal program. The EPA codifies its authorization of State programs 40 CFR part 282 and incorporates by reference State statutes and regulations that the EPA will enforce under sections 9005 and 9006 of RCRA and any other applicable state provisions. The incorporation by reference of State authorized programs in the CFR should substantially enhance the public's ability to discern the current status of the approved State program and State requirements that can be federally enforced. This effort provides clear notice to the public of the scope of the approved program in each State.
B. What is the history of codification of Nebraska's UST program?
The EPA has not previously incorporated by reference and codified Nebraska's approved UST program. Through this action, the EPA is incorporating by reference and codifying Nebraska's State program in 40 CFR 282.77 to include the program and the approved revisions.
C. What codification decisions have we made in this rule?
Incorporation by reference: In this rule, we are finalizing regulatory text that includes incorporation by reference. In accordance with the requirements of 1 CFR 51.5, we are finalizing the incorporation by reference of the federally approved Nebraska UST program described in the amendments to 40 CFR part 282 set forth below. The EPA has made, and will continue to make, this document generally available through https://www.regulations.gov or by contacting the EPA Region 7 contact listed in the ADDRESSES section of this preamble.
The purpose of this Federal Register document is to codify Nebraska's approved UST program. The codification reflects the State program that would be in effect at the time EPA's approved revisions to the Nebraska UST program addressed in this direct final rule become final. The document incorporates by reference Nebraska's UST statutes and regulations and clarifies which of these provisions are included in the approved and federally enforceable program. By codifying the approved Nebraska program and by amending the CFR, the public will more easily be able to discern the status of the federally-approved requirements of the Nebraska program.
EPA is incorporating by reference the Nebraska approved UST program in 40 CFR 282.77. Section 282.77(d)(1)(i) incorporates by reference for enforcement purposes the State's statutes and regulations.
Section 282.77 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 UST program under Subtitle I of RCRA. These documents are not incorporated by reference.
D. What is the effect of Nebraska's codification on enforcement?
The EPA 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 and to issue orders in approved States. With respect to these actions, EPA will rely on Federal sanctions, Federal inspection authorities, and Federal procedures rather than the State authorized analogues to these provisions. Therefore, the EPA is not incorporating by reference such particular, approved Nebraska procedural and enforcement authorities. Section 282.77(d)(1)(ii) of 40 CFR lists those approved Nebraska authorities that would fall into this category.
E. What State provisions are not part of the codification?
The public also needs to be aware that some provisions of the State's UST program are not part of the federally approved State program. Such provisions are not part of the RCRA Subtitle I program because they are "broader in scope" than Subtitle I of RCRA. Section 281.12(a)(3)(ii) of 40 CFR states that where an approved State program has provisions that are broader in scope than the Federal program, those provisions are not a part of the federally approved program. As a result, State provisions which are broader in scope than the Federal program are not incorporated by reference for purposes of federal enforcement in part 282. Section 282.77(d)(1)(iii) lists for reference and clarity the Nebraska 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 in this document. Provisions that are broader in scope cannot be enforced by EPA; the State, however, will continue to implement and enforce such provisions under State law.
III. Statutory and Executive Order Reviews
This action only applies to Nebraska's UST Program requirements pursuant to RCRA section 9004 and imposes no requirements other than those imposed by State law. It complies with applicable Executive Orders (EOs) and statutory provisions as follows:
Additional information about these statutes and Executive Orders can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.
A. Executive Order 12866: Regulatory Planning and Review and Executive Order 14094: Modernizing Regulatory Review
This action is not a significant regulatory action as defined in Executive Order 12866 (58 FR 51735, October 4, 1993), as amended by Executive Order 14094 (88 FR 21879, April 11, 2023), because this action approves and codifies State requirements for the purpose of RCRA section 9004 and imposes no additional requirements beyond those imposed by State. Therefore, this action was not subject to a requirement for Executive Order 12866 review.
B. Paperwork Reduction Act (PRA)
This rule does not impose an information collection burden under the provisions of the PRA, 44 U.S.C. 3501 et seq. Burden is defined at 5 CFR 1320.3(b).
C. Regulatory Flexibility Act (RFA)
I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA, 5 U.S.C. 601 et seq., because this action authorizes State requirements pursuant to RCRA section 9004 and imposes no requirements beyond those imposed by State.
D. Unfunded Mandates Reform Act (UMRA)
[top] This action does not contain any unfunded mandates as described in UMRA, 2 U.S.C. 1501 et seq., and does not significantly or uniquely affect small 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.
E. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments
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).
F. Executive Order 13132: Federalism
This action will not have substantial direct effects on the States, on the relationship between the National Government and the State on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 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.
G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks
EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern environmental health or safety risks that EPA has reason to believe may disproportionately affect children, per the definition of "covered regulatory action" in section 2-202 of the Executive Order. Therefore, this action is not subject to Executive Order 13045 because it approves a State program.
H. 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.
I. National Technology Transfer and Advancement Act (NTTAA)
Under RCRA section 9004(b), EPA grants a State's application for approval as long as the States the criteria required by RCRA. It would thus be inconsistent with applicable law for EPA, when it reviews a State approved 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 NTTAA, 15 U.S.C. 272 note, do not apply to this action.
J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations; and Executive Order 14096: Revitalizing Our Nation's Commitment to Environmental Justice for All
Executive Order 12898 (59 FR 7629, February 16, 1994) and Executive Order 14096 (88 FR 25251, April 26, 2023) direct 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 (people of color and/or Indigenous peoples) and low-income populations. Because this action approves pre-existing State rules that are no less stringent than existing Federal requirements and imposes no additional requirements beyond those imposed by State and there are no anticipated significant adverse human health or environmental effects, this rule is not subject to Executive Order 12898 or Executive Order 14096.
K. Congressional Review Act (CRA)
This action is subject to the CRA, 5 U.S.C. 801 et seq., and EPA will submit a rule report containing this document and other required information to each House of the Congress 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 February 7, 2025 because it is a direct final rule.
Authority:
This rule is issued under the authority of sections 2002(a), 7004(b), and 9004 of the Solid Waste Disposal Act, as amended, 42 U.S.C. 6912, 6991c, 6991d, and 6991e.
List of Subjects in 40 CFR Part 282
Environmental protection, Administrative practice and procedure, Confidential business information, Hazardous substances, Incorporation by reference, Indians-lands, Insurance, Intergovernmental relations, Oil pollution, Penalties, Petroleum, Reporting and recordkeeping requirements, State and local governments, Surety bonds, Underground storage tanks, Water pollution control, Water supply.
Dated: November 22, 2024.
Meghan A. McCollister,
Regional Administrator, EPA Region 7.
For the reasons set forth in the preamble, EPA is amending 40 CFR part 282 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, 6991c, 6991d, and 6991e.
2. Add §?282.77 to read as follows:
§?282.77 Nebraska State-Administered Program.
(a) History of the approval of Nebraska's program. The State of Nebraska 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 program, as administered by the Nebraska State Fire Marshal, was approved by EPA pursuant to 42 U.S.C. 6991c and part 281 of this Chapter. EPA approved the Nebraska program on August 19, 2002, and it was effective on September 18, 2002. A subsequent program revision application was approved by EPA and became effective on February 7, 2025.
(b) Enforcement authority. Nebraska has primary responsibility for administering and enforcing its federally approved 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 any other applicable statutory and regulatory provisions.
[top] (c) Retaining program approval. To retain program approval, Nebraska 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 Nebraska 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) Final program approval. Nebraska has final approval for the following elements of its program application originally submitted to EPA and approved on August 19, 2002 and effective September 18, 2002, and the program revision application approved by EPA, effective on February 7, 2025:
(1) State statutes and regulations- (i) Incorporation by reference. The provisions cited in this paragraph, and listed in appendix A to part 282, are incorporated by reference as part of the underground storage tank program under Subtitle I of RCRA, 42 U.S.C. 6991 et seq. The Director of the Federal Register approves this incorporation by reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. You may obtain copies of the Nebraska regulations and statutes that are incorporated by reference in this paragraph from the Nebraska State Fire Marshal website at: https://sfm.nebraska.gov or the Nebraska State Fire Marshal Agency, 246 South 14th Street, Suite 1, Lincoln, NE 68508-1804. You may inspect all approved material at the EPA Region 7 Office, 11201 Renner Boulevard, Lenexa, KS 66219; telephone number: (913) 551-7908; or the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, visit www.archives.gov/federal-register/cfr/ibr-locations or email fr.inspection@nara.gov.
(A) EPA-Approved Nebraska Statutory Requirements Applicable to the Underground Storage Tank Program, September 2024.
(B) EPA-Approved Nebraska Regulatory Requirements Applicable to the Underground Storage Tank Program, September 2024.
(ii) Legal basis. EPA evaluated the following statutes and regulations, which provide the legal basis for the State's implementation of the underground storage tank program, but they are not being incorporated by reference for enforcement purposes and do not replace Federal authorities:
(A) Nebraska Revised Statutes section 81-502.
(B) Nebraska Revised Statutes section 81-502.04.
(C) Nebraska Revised Statutes section 81-503.01.
(D) Nebraska Revised Statutes section 81-512.
(E) Nebraska Revised Statutes section 81-1502.
(F) Nebraska Revised Statutes section 81-1504.
(G) Nebraska Revised Statutes section 81-1505.
(H) Nebraska Revised Statutes section 81-1507.
(I) Nebraska Revised Statutes sections 81-1508, 81-1508.01-81-1508.02.
(J) Nebraska Revised Statutes section 81-1511.
(K) Nebraska Revised Statutes section 81-15, 117.
(L) Nebraska Revised Statutes section 81-15, 118.
(M) Nebraska Revised Statutes section 81-15, 119.
(N) Nebraska Revised Statutes section 81-15, 120.
(O) Nebraska Revised Statutes section 81-15, 121.
(P) Nebraska Revised Statutes section 81-15, 122.
(Q) Nebraska Revised Statutes section 81-15, 123.
(R) Nebraska Revised Statutes sections 81-15, 124, 81-15, 124.01-81-15, 124.07.
(S) Nebraska Revised Statutes section 81-15, 125.
(T) Nebraska Revised Statutes section 81-15, 126.
(U) Nebraska Revised Statutes section 81-15, 127.
(V) Nebraska Revised Statutes section 66-1531, et seq.
(W) Nebraska Revised Statutes section 25-328.
(X) Nebraska Administrative Code Title 159 Chapters 1-14.
(Y) Nebraska Administrative Code Title 115 Chapter 3.
(Z) Nebraska Administrative Code Title 118 Chapters 1-7, appendix A and B.
(AA) Nebraska Administrative Code Title 126 Chapters 1-19, appendix A.
(BB) Nebraska Administrative Code Title 178 Chapters 1-24.
(CC) Nebraska Administrative Code Title 200 Chapter 1.
(DD) National Fire Protection Association 30: Flammable and Combustible Liquids Code (21.7.4.3.1-21.7.4.3.3) 2012 Version.
(iii) Provisions not incorporated by reference. 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 in this section for enforcement purposes:
(A) Nebraska Revised Statutes section 81-502.
(B) Nebraska Revised Statutes section 81-502.04.
(C) Nebraska Revised Statutes section 81-503.01(1)(a)-(g), (i).
(D) Nebraska Revised Statutes section 81-512.
(E) Nebraska Revised Statutes section 81-1502(1)-(5), (8)-(9), (12)-(13), (15)-(19), (23), (28)-(29), and (31)-(38).
(F) Nebraska Revised Statutes section 81-1504(1)-(30), (33)-(58).
(G) Nebraska Revised Statutes section 81-1505.
(H) Nebraska Revised Statutes section 81-1507.
(I) Nebraska Revised Statutes sections 81-1508, 81-1508.01, 81-1508.02.
(J) Nebraska Revised Statutes section 81-1511.
(K) Nebraska Revised Statutes section 81-15, 119(10)(a)-(b).
(L) Nebraska Revised Statutes section 81-15, 120.
(M) Nebraska Revised Statutes section 81-15, 121.
(N) Nebraska Revised Statutes section 81-15, 122.
(O) Nebraska Revised Statutes section 81-15, 123(2)-(3), (4)(b), (5), (10), (12) as it refers to certification and subcontractors.
(P) Nebraska Revised Statutes sections 81-15, 124(2) second and third sentence, 81-15,124(3) second sentence and full second paragraph, 81-15, 124.01-81-15, 124.02, 81-15, 124.04-81-15, 124.07.
(Q) Nebraska Revised Statutes section 81-15, 125.
(R) Nebraska Revised Statutes section 81-15, 126.
(S) Nebraska Revised Statutes section 81-15, 127.
(T) Nebraska Revised Statutes section 66-1501, et seq. [entire statute].
(U) Nebraska Revised Statutes section 25-328.
(V) Nebraska Administrative Code, Title 159 Chapter 3.001-3.004.
(W) Nebraska Administrative Code, Title 159 NAC Chapter 9.001.
(X) Nebraska Administrative Code, Title 159 Chapter 11.004.
(Y) Nebraska Administrative Code, Title 159 Chapter 13.003.01-13.003.03.
(Z) Nebraska Administrative Code Title 115 Chapter 3.001.01, 3.002-3.013, 3.015.
(AA) Nebraska Administrative Code Title 118 Chapter 3.
(BB) Nebraska Administrative Code Title 118 Chapter 4.
(CC) Nebraska Administrative Code Title 118 Chapter 5.
(DD) Nebraska Administrative Code Title 118 Chapter 6.001.
(EE) Nebraska Administrative Code Title 118 appendix A.
(FF) Nebraska Administrative Code Title 126 Chapter 1.002-1.004, 1.006-1.010, 1.012, 1.014-1.019, 1.023, 1.025-1.029, 1.030.02, 1.032, 1.035, 1.039, 1.041-1.044, 1.046-1.047.
(GG) Nebraska Administrative Code Title 126 Chapter 2.
(HH) Nebraska Administrative Code Title 126 Chapter 3.
(II) Nebraska Administrative Code Title 126 Chapter 4.
[top] (JJ) Nebraska Administrative Code Title 126 Chapter 5.
(KK) Nebraska Administrative Code Title 126 Chapter 6.
(LL) Nebraska Administrative Code Title 126 Chapter 7.
(MM) Nebraska Administrative Code Title 126 Chapter 8.
(NN) Nebraska Administrative Code Title 126 Chapter 9.
(OO) Nebraska Administrative Code Title 126 Chapter 10.
(PP) Nebraska Administrative Code Title 126 Chapter 11.
(QQ) Nebraska Administrative Code Title 126 Chapter 12.
(RR) Nebraska Administrative Code Title 126 Chapter 13.
(SS) Nebraska Administrative Code Title 126 Chapter 14.
(TT) Nebraska Administrative Code Title 126 Chapter 15.
(UU) Nebraska Administrative Code Title 126 Chapter 16.
(VV) Nebraska Administrative Code Title 126 Chapter 17.
(WW) Nebraska Administrative Code Title 126 Chapter 19.
(XX) Nebraska Administrative Code Title 126 appendix I.
(YY) Nebraska Administrative Code Title 178 Chapter 1.
(ZZ) Nebraska Administrative Code Title 178 Chapter 2.
(AAA) Nebraska Administrative Code Title 178 Chapter 3.
(BBB) Nebraska Administrative Code Title 178 Chapter 4.
(CCC) Nebraska Administrative Code Title 178 Chapter 5.
(DDD) Nebraska Administrative Code Title 178 Chapter 6.
(EEE) Nebraska Administrative Code Title 178 Chapter 7.
(FFF) Nebraska Administrative Code Title 178 Chapter 8.
(GGG) Nebraska Administrative Code Title 178 Chapter 9.
(HHH) Nebraska Administrative Code Title 178 Chapter 10.
(III) Nebraska Administrative Code Title 178 Chapter 11.
(JJJ) Nebraska Administrative Code Title 178 Chapters 12-04-12-05, 12-08, 12-10, 12-011.01B2, 12-012.08C, 12-012.08G, the Waiver of Disinfection, and the following definitions found at Title 178, Chapter 12-002: Abandoned Water Well, Driven Sandpoint Well, Ground Water Heat Pump Well, Illegal Water Well, Inactive Status Water Well, Injection Well, Open Hole Well, Service connection, Special Irrigation District.
(KKK) Nebraska Administrative Code Title 178 Chapter 13.
(LLL) Nebraska Administrative Code Title 178 Chapter 14.
(MMM) Nebraska Administrative Code Title 178 Chapter 15.
(NNN) Nebraska Administrative Code Title 178 Chapter 16.
(OOO) Nebraska Administrative Code Title 178 Chapter 17.
(PPP) Nebraska Administrative Code Title 178 Chapter 18.
(QQQ) Nebraska Administrative Code Title 178 Chapter 19.
(RRR) Nebraska Administrative Code Title 178 Chapter 20.
(SSS) Nebraska Administrative Code Title 178 Chapter 21.
(TTT) Nebraska Administrative Code Title 178 Chapter 22.
(UUU) Nebraska Administrative Code Title 178 Chapter 23.
(VVV) Nebraska Administrative Code Title 178 Chapter 24.
(WWW) Nebraska Administrative Code Title 200 Chapter 1 [entire regulation].
(XXX) National Fire Protection Association 30: Flammable and Combustible Liquids Code (21.7.4.3.1-21.7.4.3.3) 2012 Version.
(2) Statement of legal authority. The "State of Nebraska Office of the Attorney General Letter", signed by the Nebraska Attorney General on August 17, 2022, 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.
(3) Demonstration of procedures for adequate enforcement. The "Demonstration of Adequate Enforcement Procedures" submitted as part of the original application on September 8, 2023, and as part of the program revision application on September 8, 2023, 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 on September 8, 2023, and as part of the program revision application on September 8, 2023, 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 7 and the Nebraska Department of Environmental Quality and the Nebraska State Fire Marshal's Office, signed by the EPA Regional Administrator on February 10, 2019, 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 an entry for "Nebraska" to read as follows:
Appendix A to Part 282-State Requirements Incorporated by Reference in Part 282 of the Code of Federal Regulations
Nebraska
(a) The statutory provisions include:
(1) Nebraska Revised Statutes section 81-503.01(1)(h).
(2) Nebraska Revised Statutes section 81-1502(6)-(7), (10)-(11), (14), (20)-(22), (24)-(27), and (30).
(3) Nebraska Revised Statutes section 81-1504(31)-(32).
(4) Nebraska Revised Statutes section 81-15, 117.
(5) Nebraska Revised Statutes section 81-15, 118.
(6) Nebraska Revised Statutes section 81-15, 119(1)-(10), (10)(c)-(11).
(7) Nebraska Revised Statutes section 81-15, 123(1), (4)(a), (6)-(9), (11), (12) as it refers to training operators.
(8) Nebraska Revised Statutes sections 81-15, 124(1)-(2) and (3) first sentence.
(9) Nebraska Revised Statutes sections 81-15, 124.03.
(b) The regulatory provisions include:
(1) Nebraska Administrative Code Title 159 Chapter 1.
(2) Nebraska Administrative Code Title 159 Chapter 2.
(3) Nebraska Administrative Code, Title 159 Chapter 3 as it references 40 CFR 80.20(e)(2).
(4) Nebraska Administrative Code Title 159 Chapter 4.
(5) Nebraska Administrative Code Title 159 Chapter 5.
(6) Nebraska Administrative Code Title 159 Chapter 6.
(7) Nebraska Administrative Code Title 159 Chapter 7.
(8) Nebraska Administrative Code Title 159 Chapter 8.
(9) Nebraska Administrative Code Title 159 Chapter 9 as it adopts 40 CFR 280.90 through 280.115 by reference and 9.002.
(10) Nebraska Administrative Code Title 159 Chapter 10.
(11) Nebraska Administrative Code Title 159 Chapter 11.001-11.0003.02.
(12) Nebraska Administrative Code Title 159 Chapter 12.
(13) Nebraska Administrative Code Title 159 Chapter 13.001-13.002, 13.004-13.008.
(14) Nebraska Administrative Code Title 159 Chapter 14.
(15) Nebraska Administrative Code Title 115 Chapter 3.001.02, 3.014, 3.016-3.018.
(16) Nebraska Administrative Code Title 118 Chapter 1.
(17) Nebraska Administrative Code Title 118 Chapter 2.
(18) Nebraska Administrative Code Title 118 Chapter 6.002.
(19) Nebraska Administrative Code Title 118 Chapter 7.
[top] (20) Nebraska Administrative Code Title 118 appendix B.
(21) Nebraska Administrative Code Title 126 Chapter 1.001, 1.005, 1.011, 1.013, 1.020-1.022, 1.024, 1.030.01, 1.031, 1.033-1.034, 1.036-1.038, 1.040, 1.045.
(22) Nebraska Administrative Code Title 126 Chapter 18.
(23) Nebraska Administrative Code Title 178 Chapters 12.001, 12-03, 12-06-12-07, 12-09, 12-011.01-12-011.01B1, 12-011.01C-12-012.08B, 12-012.08D-12-012.08F2, 12-012.09-12-14, the tables and figures, and the following definitions found at Title 178, Chapter 12-002 Annular Fill, Annular Space, Aquifer, Aquifer Seal, Primary Aquifer Seal, Surface Seal, Backflow Preventer, Bentonite, Bentonite Seal, Bored or Dug Well, Casing, Cesspool, Clay, Community Water System, Confining Layer, Construction of Water Wells, Contamination, Decommissioned when used in relation to a water well, Department, Dewatering Well, Discharge Pipe, Distribution Piping, Good Cause, Gravel Pack, Ground Water, Grout, Installation of Pumps and Pumping Equipment, Monitoring Well, Non-potable Well, Observation Well, Person, Pitless Unit, Pollution, Potable Well, Primary Aquifer Seal, Public Water System, (Licensed) Pump Installation Contractor, (Licensed) Pump Installation Supervisor, Pumps and Pumping Equipment, Recovery Well, Sanitary Well Seal, Screen Apertures, Screened Vent, Secure Cover or Cap, Seepage Pit, Septic Tank, Soil Absorption System (Septic Lateral Field), Static Water Level, Substantially Equivalent, Subsurface Disposal System, Supervision or its derivatives, Surface Seal, Test Hole, Tremie Pipe, Watertight Casing, Watertight Secure Cover, Water Well, (Licensed) Water Well Contractor, (Licensed) Water Well Drilling Supervisor, Well Development, Well Pit, Well Screen.
[FR Doc. 2024-28140 Filed 12-6-24; 8:45 am]
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