[Federal Register Volume 62, Number 100 (Friday, May 23, 1997)] [Rules and Regulations] [Pages 28364-28368] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 97-13215] ----------------------------------------------------------------------- ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 282 [FRL-5827-1] Underground Storage Tank Program: Approved State Program for Mississippi AGENCY: Environmental Protection Agency (EPA). ACTION: Immediate final rule. ----------------------------------------------------------------------- SUMMARY: The Resource Conservation and Recovery Act of 1976, as amended (RCRA), authorizes the Environmental Protection Agency (EPA) to grant approval to states to operate their underground storage tank programs in lieu of the federal program. 40 CFR part 282 codifies EPA's decision to approve state programs and incorporates by reference those provisions of the state statutes and regulations that will be subject to EPA's inspection and enforcement authorities under sections 9005 and 9006 of RCRA subtitle I and other applicable statutory and regulatory provisions. This rule codifies in part 282 the prior approval of Mississippi's underground storage tank program and incorporates by reference appropriate provisions of state statutes and regulations. DATES: This regulation is effective July 22, 1997 , unless EPA publishes a prior Federal Register document withdrawing this immediate final rule. All comments on the codification of Mississippi's underground storage tank program must be received by the close of business June 23, 1997. The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register, as of July 22, 1997, in accordance with 5 U.S.C. 552(a). ADDRESSES: Comments may be mailed to the Docket Clerk, U.S. EPA Region 4, Atlanta Federal Center, UST Section, 61 Forsyth Street, SW., Atlanta, GA 30303-3104. Comments received by EPA may be inspected in the public docket, located in the EPA Region 4 Library from 8 a.m. to 4:30 p.m., Monday through Friday, excluding federal holidays. FOR FURTHER INFORMATION CONTACT: John Mason, U.S. EPA Region 4, Atlanta Federal Center, UST Section, 61 Forsyth Street, SW., Atlanta, GA 30303- 3104. Phone: John Mason (404) 562-9441. SUPPLEMENTARY INFORMATION: Background Section 9004 of the Resource Conservation and Recovery Act of 1976, as amended, (RCRA), 42 U.S.C. 6991c, allows the U.S. Environmental Protection Agency to approve state underground storage tank programs to operate in the state in lieu of the federal underground storage tank program. EPA published a Federal Register document announcing its decision to grant approval to Mississippi on June 11, 1990 (55 FR 23549). Approval was effective on July 11, 1990. EPA codifies its approval of State programs in 40 CFR part 282 and incorporates by reference therein the state statutes and regulations that will be subject to EPA's inspection and enforcement authorities under sections [[Page 28365]] 9005 and 9006 of subtitle I of RCRA, 42 U.S.C. 6991d and 6991e, and other applicable statutory and regulatory provisions. Today's rulemaking codifies EPA's approval of Mississippi's underground storage tank program. This codification reflects the state program in effect at the time EPA granted Mississippi approval under section 9004(a), 42 U.S.C. 6991c(a) for its underground storage tank program. Notice and opportunity for comment were provided earlier on the Agency's decision to approve the Mississippi program, and EPA is not now reopening that decision nor requesting comment on it. This effort provides clear notice to the public of the scope of the approved program in each state. By codifying the approved Mississippi program and by amending the Code of Federal Regulations whenever a new or different set of requirements is approved in Mississippi, the status of federally approved requirements of the Mississippi program will be readily discernible. Only those provisions of the Mississippi underground storage tank program for which approval has been granted by EPA will be incorporated by reference for enforcement purposes. To codify EPA's approval of Mississippi's underground storage tank program, EPA has added Sec. 282.74 to title 40 of the CFR. Section 282.74 incorporates by reference for enforcement purposes the State's statutes and regulations. Section 282.74 also references the Attorney General's Statement, Demonstration of Adequate Enforcement Procedures, the Program Description, and the Memorandum of Agreement, which are approved as part of the underground storage tank program under subtitle I of RCRA. The Agency retains the authority under sections 9005 and 9006 of subtitle I of RCRA, 42 U.S.C. 6991d and 6991e, and other applicable statutory and regulatory provisions to undertake inspections and enforcement actions in approved states. With respect to such an enforcement action, the Agency will rely on federal sanctions, federal inspection authorities, and federal procedures rather than the state authorized analogues to these provisions. Therefore, the approved Mississippi enforcement authorities will not be incorporated by reference. Section 282.74 lists those approved Mississippi authorities that would fall into this category. The public also needs to be aware that some provisions of the State's underground storage tank program are not part of the federally approved state program. These non-approved provisions are not part of the RCRA subtitle I program because they are ``broader in scope'' than subtitle I of RCRA. See 40 CFR 281.12(a)(3)(ii). As a result, state provisions which are ``broader in scope'' than the federal program are not incorporated by reference for purposes of enforcement in part 282. Section 282.74 of the codification simply lists for reference and clarity the Mississippi statutory and regulatory provisions which are ``broader in scope'' than the federal program and which are not, therefore, part of the approved program being codified today. ``Broader in scope'' provisions cannot be enforced by EPA; the State, however, will continue to enforce such provisions. Certification Under the Regulatory Flexibility Act EPA has determined that this codification will not have a significant economic impact on a substantial number of small entities. Such small entities which own and/or operate USTs are already subject to the state requirements authorized by EPA under 40 CFR part 281. EPA's codification does not impose any additional burdens on these small entities. This is because EPA's codification would simply result in an administrative change, rather than a change in the substantive requirements imposed on small entities. Therefore, EPA provides the following certification under the Regulatory Flexibility Act, as amended by the Small Business Regulatory Enforcement Fairness Act. Pursuant to the provision at 5 U.S.C. 605(b), I hereby certify that this codification will not have a significant economic impact on a substantial number of small entities. This codification incorporates Mississippi's requirements which have been authorized by EPA under 40 CFR part 281 into the Code of Federal Regulations. It does not impose any new burdens on small entities. This rule, therefore, does not require a regulatory flexibility analysis. Submission to Congress and the General Accounting Office Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business Regulatory Enforcement Fairness Act of 1996, EPA submitted a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives and the Comptroller General of the General Accounting Office prior to publication of the rule in today's Federal Register. This rule is not a ``major rule'' as defined by 5 U.S.C. 804(2). Unfunded Mandates Reform Act Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of certain regulatory actions on State, local, and tribal governments and the private sector. Under sections 202 and 205 of the UMRA, EPA generally must prepare a written statement of economic and regulatory alternatives analyses for proposed and final rules with Federal mandates, as defined by the UMRA, that may result in expenditures to State, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. The section 202 and 205 requirements do not apply to today's action because it is not a ``Federal mandate'' and because it does not impose annual costs of $100 million or more. Today's rule contains no Federal mandates for State, local or tribal governments or the private sector for two reasons. First, today's action does not impose new or additional enforceable duties on any State, local or tribal governments or the private sector because it merely makes federally enforceable existing requirements with which regulated entities must already comply under State law. Second, the Act also generally excludes from the definition of a ``Federal mandate'' duties that arise from participation in a voluntary Federal program. The requirements being codified today are the result of Mississippi's voluntary participation in accordance with RCRA Subtitle I. Even if today's rule did contain a Federal mandate, this rule will not result in annual expenditures of $100 million or more for State, local, and/or tribal governments in the aggregate, or the private sector because today's action merely codifies an existing State program that EPA previously authorized. Thus, today's rule is not subject to the requirements of sections 202 and 205 of the UMRA. The requirements of section 203 of UMRA also do not apply to today's action. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, section 203 of UMRA requires EPA to develop a small government agency plan. This rule contains no regulatory requirements that might significantly or uniquely affect small governments. The Agency recognizes that although small governments may own and/or operate USTs, this codification incorporates into the Code of Federal Regulations Mississippi's requirements which have [[Page 28366]] already been authorized by EPA under 40 CFR Part 281 and, thus, small governments are not subject to any additional significant or unique requirements by virtue of this codification. Compliance With Executive Order 12866 The Office of Management and Budget has exempted this rule from the requirements of Section 6 of Executive Order 12866. Paperwork Reduction Act Under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., Federal agencies must consider the paperwork burden imposed by any information request contained in a proposed or final rule. This rule will not impose any information requirements upon the regulated community. List of Subjects In 40 CFR Part 282 Environmental protection, Hazardous substances, Incorporation by reference, Intergovernmental relations, State program approval, Underground storage tanks, Water pollution control. Dated: May 8, 1997. A. Stanley Meiburg, Acting Regional Administrator, U.S. EPA Region 4. For the reasons set forth in the preamble, 40 CFR part 282 is amended as follows: PART 282--APPROVED UNDERGROUND STORAGE TANK PROGRAMS 1. The authority citation for part 282 is revised to read as follows: Authority: 42 U.S.C. 6912, 6991c, 6991d, and 6991e. Subpart B--Approved State Programs 2. Subpart B is amended by adding Sec. 282.74 to read as follows: Sec. 282.74 Mississippi State-Administered Program. (a) The State of Mississippi is approved to administer and enforce an underground storage tank program in lieu of the federal program under subtitle I of the Resource Conservation and Recovery Act of 1976 (RCRA), as amended, 42 U.S.C. 6991 et seq. The State's program, as administered by the Mississippi Department of Environmental Quality, was approved by EPA pursuant to 42 U.S.C. 6991c and part 281 of this chapter. EPA approved the Mississippi program on June 11, 1990 and it was effective on July 11, 1990. (b) Mississippi has primary responsibility for enforcing its underground storage tank program. However, EPA retains the authority to exercise its inspection and enforcement authorities under sections 9005 and 9006 of subtitle I of RCRA, 42 U.S.C. 6991d and 6991e, as well as under other statutory and regulatory provisions. (c) To retain program approval, Mississippi must revise its approved program to adopt new changes to the federal subtitle I program which make it more stringent, in accordance with section 9004 of RCRA, 42 U.S.C. 6991c, and 40 CFR part 281, subpart E. If Mississippi 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) Mississippi has final approval for the following elements submitted to EPA in the State's program application for final approval and approved by EPA on June 11, 1990. Copies may be obtained from the Underground Storage Tank Program, Mississippi Department of Environmental Quality, 2380 Highway 80 West, Jackson, MS 39289-0385. (1) State statutes and regulations. (i) The provisions cited in this paragraph are incorporated by reference as part of the underground storage tank program under subtitle I of RCRA, 42 U.S.C. 6991 et seq. (A) Mississippi Statutory Requirements Applicable to the Underground Storage Tank Program, 1996. (B) Mississippi Regulatory Requirements Applicable to the Underground Storage Tank Program, 1996. (ii) The following statutes and regulations are part of the approved state program, although not incorporated by reference herein for enforcement purposes. (A) The statutory provisions include: (1) Mississippi Code of 1972, Title 49, Sections 49-17-401 through 49-17-435, Underground Storage Tank Act of 1988, as amended. 49-17-415 Obligations of owners and operators of tanks; powers of commission or representatives 49-17-427 Proceedings before commission; penalties for violations of Sections 49-17-401 through 49-17-433 49-17-431 Appeal rights (2) Mississippi Code of 1972, Title 49, Chapter 17, Pollution of Waters, Streams, and Air. 49-17-17 Powers and duties 49-17-27 Emergency orders; public notice of emergency situations 49-17-31 Proceedings before commission 49-17-33 Hearings 49-17-35 Request for hearing 49-17-41 Administrative appeals; appeals to chancery court; appeals to supreme court 49-17-43 Penalties (3) Mississippi Code of 1972, Title 49, Chapter 2, Department of Environmental Quality. 49-2-9 Commission on Environmental Quality; powers and duties 49-2-13 Powers and duties of executive director (4) Mississippi Code of 1972, Title 17, Chapter 17, Solid Wastes Disposal. 17-17-29 Penalties; injunction; recovery of cost of remedial action; disposition of fines (B) The regulatory provisions include: (1) Mississippi Groundwater Protection Trust Fund Regulations. Section XX Enforcement Actions (iii) The following statutory and regulatory provisions are broader in scope than the federal program, are not part of the approved program, and are not incorporated by reference herein for enforcement purposes. (A) The statutory provisions include: (1) Mississippi Code of 1972, Title 49, Sections 49-17-401 through 49-17-433, Underground Storage Tank Act of 1988. 49-17-429 Certification to install, alter or remove underground storage tanks (B) The regulatory provisions include: (1) Underground Storage Tank Regulations for the Certification of Persons who Install, Alter, and Remove Underground Storage Tanks. Section I General Intent Section II Legal Authority Section III Definitions Section IV Applicability Section V General Requirements Section VI Certification Requirements Section VII Testing Section VIII Certification Section IX Certification Renewals Section X Continuing Education Section XI Lapsed Certification Section XII Revocation, Denial, and Non-Renewal of Certificates Section XIII Enforcement and Appeals Section XIV Property Rights (2) Mississippi Groundwater Protection Trust Fund Regulations. Section IV Immediate Response Action Contractor (IRAC) Application Process Section V IRAC Application Review Section VI IRAC Performance Standards [[Page 28367]] Section VII Denial of IRAC Applications Section VIII Removal from the Approved List of IRAC's Section IX Engineering Response Action Contractor (ERAC) Application Process Section X ERAC Submittal of Documentation Requested By the Department Section XI ERAC Performance Standards Section XII Removal from the Approved List of ERAC's Section XIII Denial of ERAC Applications (2) Statement of legal authority. (i) ``Attorney General's Statement for Final Approval'', signed by the State Attorney General on August 15, 1989, though not incorporated by reference, is referenced as part of the approved underground storage tank program under subtitle I of RCRA, 42 U.S.C. 6991 et seq. (ii) Letter from the Attorney General of Mississippi to EPA, August 15, 1989, though not incorporated by reference, is referenced as part of the approved underground storage tank program under subtitle I of RCRA, 42 U.S.C. 6991 et seq. (3) Demonstration of procedures for adequate enforcement. The ``Demonstration of Procedures for Adequate Enforcement'' submitted as part of the original application on August 14, 1989, 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 August 14, 1989, 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 4 and the Mississippi Department of Environmental Quality, approved by the EPA Regional Administrator, as part of the delegation package which received final program approval on June 11, 1990, though not incorporated by reference, is referenced as part of the approved underground storage tank program under subtitle I of RCRA, 42 U.S.C. 6991 et seq. 3. Appendix A to Part 282 is amended by adding in alphabetical order ``Mississippi'' and its listings to read as follows: Appendix A to Part 282--State Requirements Incorporated by Reference in Part 282 of the Code of Federal Regulations * * * * * Mississippi (a) The statutory provisions include: 1. Mississippi Code of 1972, Title 49, Sections 49-17-401 through 49-17-435, Underground Storage Tank Act of 1988, as amended. 49-17-401 Short title 49-17-403 Definitions 49-17-405 Groundwater protection fund; duties of executive director; liability of tank owners; limitation on provisions of chapter and section 49-17-407 Environmental protection fee on motor fuels; deposit of fees; limits on use of fund; third party claims 49-17-409 Reports of contamination incidents; no recourse against tank owner; exceptions 49-17-411 Compliance with regulations 49-17-413 Rules and Regulations 49-17-417 Groundwater protection advisory committee 49-17-419 Authority of commission to take timely and effective corrective action; use of funds from pollution emergency fund 49-17-421 Tank regulatory fee 49-17-423 Commission to administer funds from Leaking Underground Storage Tank Trust Fund 49-17-425 Disclosure of records, reports, and information 49-17-433 Savings clause 49-17-435 Annual report on status of underground storage tank program (b) The regulatory provisions include: 1. Technical Standards and Corrective Action Requirements for Owners and Operators of Underground Storage Tanks. Subpart A--Program Scope and Interim Prohibition 280.10 Applicability 280.11 Interim Prohibition for deferred UST systems 280.12 Definitions Subpart B--UST Systems: Design, Construction, Installation, and Notification 280.20 Performance standards for new UST systems 280.21 Upgrading of existing UST systems 280.22 Notification requirements Subpart C--General Operating Requirements 280.30 Spill and overfill control 280.31 Operation and maintenance of corrosion protection 280.32 Compatibility 280.33 Repairs allowed 280.34 Reporting and recordkeeping Subpart D--Release Detection 280.40 General requirements for all UST systems 280.41 Requirements for petroleum UST systems 280.42 Requirements for hazardous substance UST systems 280.43 Methods of release detection for tanks 280.43 Methods of release detection for piping 280.44 Release detection recordkeeping Subpart E--Release Reporting, Investigation, and Confirmation 280.50 Reporting of suspected releases 280.51 Investigation due to off-site impacts 280.52 Release investigation and confirmation steps 280.53 Reporting and cleanup of spills and overfills Subpart F--Release Response and Corrective Action for UST Systems Containing Petroleum or Hazardous Substances 280.60 General 280.61 Initial response 280.62 Initial abatement measures and site check 280.63 Initial site characterization 280.64 Free product removal 280.65 Investigations for soil and groundwater cleanup 280.66 Corrective action plan 280.67 Public participation Subpart G--Out-of-Service UST Systems and Closure 280.70 Temporary closure 280.71 Permanent closure and changes-in-service 280.72 Assessing the site at closure or change-in-service 280.73 Applicability to previously closed UST systems 280.74 Closure records 2. Financial Responsibility Requirements for Underground Storage Tanks Containing Petroleum. 280.90 Applicability 280.91 Compliance dates 280.92 Definition of terms 280.93 Amount and scope of required financial responsibility 280.94 Allowable mechanisms and combinations of mechanisms 280.95 Financial test of self-insurance 280.96 Guarantee 280.97 Insurance and risk retention group coverage 280.98 Surety bond 280.99 Letter of credit 280.100 Use of state-required mechanism 280.101 State fund or other state assurance 280.102 Trust fund 280.103 Standby trust fund 280.104 Substitution of financial assurance mechanisms by owner or operator 280.105 Cancellation or nonrenewal by a provider of financial assurance 280.106 Reporting by owner or operator 280.107 Recordkeeping 280.108 Drawing on financial assurance mechanisms 280.109 Release from the requirements 280.110 Bankruptcy or other incapacity of owner or operator or provider of financial assurance 280.111 Replenishment of guarantees, letters of credit, or surety bonds 3. Mississippi Groundwater Protection Trust Fund Regulations. Section I General Intent Section II Legal Authority Section III Definitions [[Page 28368]] Section XIV Eligibility for Reimbursement from the Mississippi Groundwater Protection Trust Fund Section XV Reimbursable Costs Section XVI Funds Disbursement Section XVII Third Party Claims Section XVIII Denial of Claims Section XIX Tank Regulatory Fees Section XXI Property Rights * * * * * [FR Doc. 97-13215 Filed 5-22-97; 8:45 am] BILLING CODE 6560-50-P