[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]
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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.
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SUMMARY: The Resource Conservation and Recovery Act of 1976, as amended
(RCRA), authorizes the Environmental Protection Agency (EPA) to grant
approval to states to operate their underground storage tank programs
in lieu of the federal program. 40 CFR part 282 codifies EPA's decision
to approve state programs and incorporates by reference those
provisions of the state statutes and regulations that will be subject
to EPA's inspection and enforcement authorities under sections 9005 and
9006 of RCRA subtitle I and other applicable statutory and regulatory
provisions. 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
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[FR Doc. 97-13215 Filed 5-22-97; 8:45 am]
BILLING CODE 6560-50-P
