Rule2024-00171
Mississippi: Final Approval of State Underground Storage Tank Program Revisions, Codification, and Incorporation by Reference
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
January 18, 2024
Effective
March 18, 2024
Issuing agencies
Environmental Protection Agency
Abstract
The State of Mississippi (Mississippi or State) has applied to the Environmental Protection Agency (EPA) for final approval of revisions to its Underground Storage Tank Program (UST Program) under subtitle I of the Resource Conservation and Recovery Act (RCRA). Pursuant to RCRA, the EPA is taking direct final action, subject to public comment, to approve revisions to the UST Program. The EPA has reviewed Mississippi's revisions and has determined that these revisions satisfy all requirements needed for approval. In addition, this action also codifies the EPA's approval of Mississippi's revised UST Program and incorporates by reference those provisions of the State statutes and regulations that the EPA has determined meet the requirements for approval.
Full Text
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<title>Federal Register, Volume 89 Issue 12 (Thursday, January 18, 2024)</title>
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[Federal Register Volume 89, Number 12 (Thursday, January 18, 2024)]
[Rules and Regulations]
[Pages 3354-3361]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-00171]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 281 and 282
[EPA-R04-UST-2023-0410; FRL-11400-02-R4]
Mississippi: Final Approval of State Underground Storage Tank
Program Revisions, Codification, and Incorporation by Reference
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: The State of Mississippi (Mississippi or State) has applied to
the Environmental Protection Agency (EPA) for final approval of
revisions to its Underground Storage Tank Program (UST Program) under
subtitle I of the Resource Conservation and Recovery Act (RCRA).
Pursuant to RCRA, the EPA is taking direct final action, subject to
public comment, to approve revisions to the UST Program. The EPA has
reviewed Mississippi's revisions and has determined that these
revisions satisfy all requirements needed for approval. In addition,
this action also codifies the EPA's approval of Mississippi's revised
UST Program and incorporates by reference those provisions of the State
statutes and regulations that the EPA has determined meet the
requirements for approval.
DATES: This rule is effective March 18, 2024, unless the EPA receives
adverse comment by February 20, 2024. If the EPA receives adverse
comment, 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
March 18, 2024.
ADDRESSES: Submit your comments by one of the following methods:
<bullet> Federal eRulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>
(our preferred method). Follow the online instructions for submitting
comments.
<bullet> Email: <a href="/cdn-cgi/l/email-protection#a3c4cad1ca8dd6d3c6cdc7d1c2e3c6d3c28dc4ccd5"><span class="__cf_email__" data-cfemail="31565843581f4441545f554350715441501f565e47">[email protected]</span></a>. Include the Docket ID No.
EPA-R04-UST-2023-0410 in the subject line of the message.
Instructions: Submit your comments, identified by Docket ID No.
EPA-R04-UST-2023-0410, via the Federal eRulemaking Portal at <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Follow the online instructions for submitting
comments. Once submitted, comments cannot be edited or removed from
<a href="https://www.regulations.gov">https://www.regulations.gov</a>. The EPA may publish any comment received
to its public docket. Do not submit electronically any information you
consider to be Confidential Business Information (CBI) or other
information whose disclosure is restricted by statute. Multimedia
submissions (audio, video, etc.) must be accompanied by a written
comment. The written comment is considered the official comment and
should include discussion of all points you wish to make. The EPA will
generally not consider comments or comment contents located outside of
the primary submission (i.e., on the web, cloud, or other file sharing
system). For additional submission methods, the full EPA public comment
policy, information about CBI or multimedia submissions, and general
guidance on making effective comments, please visit: <a href="https://www.epa.gov/dockets/commenting-epa-dockets">https://www.epa.gov/dockets/commenting-epa-dockets</a>.
The EPA encourages electronic comment submittals, but if you are
unable to submit electronically or need other assistance, please
contact Upendra Giri, the contact listed in the FOR FURTHER INFORMATION
CONTACT provision below. The index to the docket for this
[[Page 3355]]
action and all documents that form the basis of this action and
associated publicly available docket materials are available
electronically in <a href="https://www.regulations.gov">https://www.regulations.gov</a>. The EPA encourages
electronic reviewing of these documents, but if you are unable to
review these documents electronically, please contact Upendra Giri for
alternative access to docket materials.
Please also contact Upendra Giri if you need assistance in a
language other than English or if you are a person with disabilities
who needs a reasonable accommodation at no cost to you. For further
information on EPA Docket Center services please visit us online at
<a href="https://www.epa.gov/dockets">https://www.epa.gov/dockets</a>.
FOR FURTHER INFORMATION CONTACT: Upendra Giri, RCRA Programs and
Cleanup Branch, Land, Chemicals, and Redevelopment Division, U.S.
Environmental Protection Agency, Region 4, Atlanta Federal Center, 61
Forsyth Street SW, Atlanta, Georgia 30303-8960; Phone number: (404)
562-8185; email address: <a href="/cdn-cgi/l/email-protection#d8bfb1aab1f6ada8bdb6bcaab998bda8b9f6bfb7ae"><span class="__cf_email__" data-cfemail="9ef9f7ecf7b0ebeefbf0faecffdefbeeffb0f9f1e8">[email protected]</span></a>. Please contact Upendra
Giri by phone or email for further information.
SUPPLEMENTARY INFORMATION:
I. Approval of Revisions to Mississippi's Underground Storage Tank
Program
A. Why are revisions to state UST programs necessary?
States that have received final approval from the EPA under section
9004(b) of RCRA, 42 U.S.C. 6991c(b), must maintain a UST program that
is no less stringent than the Federal program. When the EPA revises the
regulations that govern the UST program, states must revise their
programs to comply with the updated regulations and submit these
revisions to the EPA for approval. Most commonly, states must change
their programs because of changes to the EPA's regulations in title 40
of the Code of Federal Regulations (CFR) part 280. States can also
initiate changes on their own to their UST programs and these changes
must then be approved by the EPA.
B. What decision has the EPA made in this rule?
In accordance with 40 CFR 281.51(a), Mississippi submitted a
complete program revision application (State Application) seeking
approval of changes to its UST Program. The State Application was
submitted on July 31, 2023 and amended on August 17, 2023. The program
revisions described in the State Application correspond to the EPA
final rule published on July 15, 2015 (80 FR 41566), which revised the
1988 UST regulations and the 1988 state program approval (SPA)
regulations (2015 Federal Revisions). As required by 40 CFR 281.20, the
State Application contains the following: a transmittal letter from the
Governor requesting approval; a description of the UST Program and
operating procedures; a demonstration of the State's procedures to
ensure adequate enforcement; a Memorandum of Agreement outlining the
roles and responsibilities of the EPA and the implementing agency; an
Attorney General's Statement; and copies of all relevant State statutes
and regulations. The EPA has reviewed the State Application and has
determined that the revisions to Mississippi's UST Program are no less
stringent than the corresponding Federal requirements in subpart C of
40 CFR part 281, and that the Mississippi UST Program continues to
provide adequate enforcement of compliance. Therefore, the EPA grants
Mississippi final approval to operate its UST Program with the
revisions described in the State Application, and as outlined below.
The Mississippi Department of Environmental Quality (MDEQ) is the lead
implementing agency for the UST Program in Mississippi, except in
Indian country as noted below in Section I.I.
C. What is the effect of this approval on the regulated community?
Section 9004(b) of RCRA, 42 U.S.C. 6991c(b), as amended, allows the
EPA to approve state UST programs to operate in lieu of the Federal
program. With this approval, the changes described in the State
Application will become part of the approved State UST Program, and
therefore will be federally enforceable. Mississippi will continue to
have primary enforcement authority and responsibility for its State UST
Program. This action does not impose additional requirements on the
regulated community because the regulations being approved by this rule
are already in effect in the State of Mississippi, and are not changed
by this action. This action merely approves the existing State
regulations as being no less stringent than the 2015 Federal Revisions
and rendering them federally enforceable.
D. Why is the EPA using a direct final rule?
The EPA is publishing this direct final rule without a prior
proposed rule because we view this as a noncontroversial action and we
anticipate no adverse comment. Mississippi addressed all comments it
received during its comment period when the rules and regulations being
considered in this document were proposed at the State level.
E. What happens if the EPA receives comments that oppose this action?
Along with this direct final rule, the EPA is simultaneously
publishing a separate document in the ``Proposed Rules'' section of
this Federal Register that serves as the proposal to approve the
State's UST Program revisions and provides an opportunity for public
comment. If the EPA receives comments that oppose this approval, the
EPA will withdraw this direct final rule by publishing a document in
the Federal Register before it becomes effective. The EPA will make any
further decision on approval of the State Application after considering
all comments received during the comment period. The EPA will then
address all public comments in a later final rule. You may not have
another opportunity to comment. If you want to comment on this
approval, you must do so at this time.
F. For what has Mississippi previously been approved?
On October 2, 1989, Mississippi submitted a complete State program
approval application seeking approval of its UST Program under subtitle
I of RCRA. Effective July 11, 1990, the EPA granted final approval for
Mississippi to administer its UST Program in lieu of the Federal UST
program (55 FR 23549, June 11, 1990). Effective July 22, 1997, the EPA
incorporated by reference and codified the federally approved
Mississippi UST Program (62 FR 28364, May 23, 1997). As a result of the
EPA's approval, these provisions became subject to the EPA's corrective
action, inspection, and enforcement authorities under RCRA sections
9003(h), 9005, and 9006, 42 U.S.C. 6991b(h), 6991d, and 6991e, and
other applicable statutory and regulatory provisions.
G. What changes is the EPA approving with this action and what
standards do we use for review?
In order to be approved, each state program revision application
must meet the general requirements in 40 CFR 281.11 (General
Requirements), and the specific requirements in 40 CFR part 281,
subpart B (Components of a Program Application), subpart C (Criteria
for No Less Stringent), and subpart D (Adequate Enforcement of
Compliance).
As more fully described below, the State has made changes to its
UST Program to reflect the 2015 Federal Revisions. These changes are
included in Mississippi's UST Rules at 11 Miss. Admin. Code Pt. 5, Ch.
2, effective
[[Page 3356]]
October 5, 2018. The EPA is approving the State's changes because they
are no less stringent than the Federal UST program, and because the
revised Mississippi UST Program will continue to provide for adequate
enforcement of compliance as required by 40 CFR 281.11(b) and part 281,
subparts C and D, after this approval.
MDEQ continues to be the lead implementing agency for the UST
Program in Mississippi. MDEQ has broad statutory and regulatory
authority to regulate the installation, operation, maintenance, and
closure of USTs, as well as UST releases, under the Mississippi
Underground Storage Tank Act (the UST Act) of 1988, Miss. Code Ann.
sections 49-17-401 to 49-17-435 (2022), and the Mississippi UST Rules
at 11 Miss. Admin. Code Pt. 5, Ch. 2 (2018).
The following State authorities provide authority for compliance
monitoring as required pursuant to 40 CFR 281.40: Miss. Code Ann.
sections 49-17-31, 49-17-35, 49-17-39, 49-17-409, 49-17-413(1), 49-17-
415, and 49-17-427; and 11 Miss. Admin. Code Pt. 5, Ch 2, Rule 2.3,
section 280.35.
The following State authorities provide authority for enforcement
response as required pursuant to 40 CFR 281.41: Miss. Code Ann.
sections 49-17-27, 49-17-31, 49-17-33, 49-17-35, 49-17-37, 49-17-41,
49-17-419, 49-17-427; and 11 Miss. Admin. Code Pt. 5, Ch 2, Rule 2.3,
section 280.36.
The following State authorities provide authority for enabling
public participation in the State enforcement process, including
citizen intervention and filing of complaints, required pursuant to 40
CFR 281.42: Rule 24(a)(2) of the Mississippi Rules of Civil Procedure;
Miss. Code Ann. sections 49-17-35, 49-17-41, and 49-17-431; and 11
Miss. Admin. Code Pt. 5, Ch 2, Rule 2.6, section 280.67. Further,
through a Memorandum of Agreement between MDEQ and the EPA, effective
October 12, 2018, the State maintains procedures for receiving and
ensuring proper consideration of information about violations submitted
by the public, and MDEQ will not oppose citizen intervention when
permissive intervention is allowed by statute, rule, or regulation. The
following State authorities provide authority for enabling the sharing
of information in the State files obtained or used in the
administration of the State UST Program with the EPA as required by 40
CFR 281.43: Miss. Code Ann. sections 49-17-39 and 49-17-425. Further,
through a Memorandum of Agreement between MDEQ and the EPA, effective
October 12, 2018, the State agrees to furnish the EPA, upon request,
any information in State files obtained or used in the administration
of the State UST Program.
To qualify for final approval, revisions to a state's UST program
must be no less stringent than the 2015 Federal Revisions. In the 2015
Federal Revisions, the EPA addressed UST systems deferred in the 1988
UST regulations, and added, among other things: new operation and
maintenance requirements; secondary containment requirements for new
and replaced tanks and piping; operator training requirements; and a
requirement to ensure UST system compatibility before storing certain
biofuel blends. In addition, the EPA removed past deferrals for
emergency generator tanks, field constructed tanks, and airport hydrant
systems. Mississippi adopted all of the required 2015 Federal Revisions
at 11 Miss. Admin. Code Pt. 5, Ch. 2 (2018).
As part of the State Application, the Mississippi Attorney General
has certified that the State regulations provide for adequate
enforcement of compliance and meet the no less stringent criteria in 40
CFR part 281, subparts C and D. The EPA is relying on this
certification, in addition to the analysis submitted by the State, in
approving the State's changes.
H. Where are the revised State rules different from the Federal rules?
States may enact laws that are more stringent than their Federal
counterparts. See RCRA section 9008, 42 U.S.C. 6991g. When an approved
state program includes requirements that are considered more stringent
than those required by Federal law, the more stringent requirements
become part of the federally approved program in accordance with 40 CFR
281.12(a)(3)(i). The EPA has determined that some of Mississippi's
regulations are considered more stringent than the Federal program, and
upon approval, they will become part of the federally approved State
UST Program and therefore federally enforceable.
In addition, states may enact laws which are broader in scope than
their Federal counterparts in accordance with 40 CFR 281.12(a)(3)(ii).
State requirements that go beyond the scope of the Federal program are
not part of the federally approved program and the EPA cannot enforce
them. Although these requirements are enforceable by the State in
accordance with Mississippi law, they are not Federal RCRA
requirements. The EPA considers the following State requirements to be
broader in scope than the Federal program and therefore not part of the
federally approved State UST Program:
Statutory Broader in Scope Provisions
(i) Miss. Code. Ann. section 49-17-403(b), as to the definition of
``Bonded distributor,'' insofar as it is associated with the regulation
of entities other than owners and operators as these terms are defined
in 40 CFR 280.12.
(ii) Miss. Code. Ann. section 49-17-403(o), as to the definition of
``Response action contractor,'' insofar as it is associated with the
regulation of entities other than owners and operators as these terms
are defined in 40 CFR 280.12.
(iii) Miss. Code. Ann. section 49-17-403(p), as to the definition
of ``Retailer,'' insofar as it is associated with the regulation of
entities other than owners and operators as these terms are defined in
40 CFR 280.12.
(iv) Miss. Code. Ann. section 49-17-403(q), as to the definition of
``Substantial compliance,'' insofar as it relates to a state fund.
(v) Miss. Code. Ann. section 49-17-405, insofar as it provides for
the creation of the Mississippi Groundwater Protection Trust Fund
(State Fund), promulgation of regulations regarding the State Fund,
criteria for qualified expenditure of funds, and liability of owners
for fund expenditures.
(vi) Miss. Code. Ann. section 49-17-407, insofar as it creates an
environmental protection fee, provides limits on use of the State Fund,
and addresses third party claims.
(vii) Miss. Code. Ann. section 49-17-409, all except for the first
sentence, insofar as these provisions provide for the eligibility
requirements of the State Fund and reimbursement of costs from owners.
(xiii) Miss. Code. Ann. section 49-17-421, insofar as it
establishes an annual tank regulatory fee.
(ix) Miss. Code. Ann. section 49-17-422, insofar as it creates an
Underground Storage Tank Advisory Council.
(x) Miss. Code. Ann. section 49-17-423, insofar as it pertains to
the commission's administration of funds from the Leaking Underground
Storage Tank Trust Fund.
(xi) Miss. Code. Ann. section 49-17-429, insofar as it requires the
certification of individuals to install, alter, or remove underground
storage tanks and provides for the promulgation of regulations setting
forth certification requirements.
Regulatory Broader in Scope Provisions
(i) 11 Miss. Admin. Code Pt. 5, Ch. 1 (2009), insofar as these
provisions
[[Page 3357]]
regulate Immediate Response Action Contractors, Environmental Response
Action Contractors, and the State Fund.
(ii) 11 Miss. Admin. Code Pt. 5, Ch. 2, R. 2.1, section 280.12, as
to the definition of ``Ancillary equipment,'' insofar as it pertains to
dispensers.
(iii) 11 Miss. Admin. Code Pt. 5, Ch. 2, R. 2.1, section 280.12, as
to the definition of ``Certificate of Operation,'' insofar as it
requires UST systems to be permitted by MDEQ and the payment of tank
regulatory fees.
(iv) 11 Miss. Admin. Code Pt. 5, Ch. 2, R. 2.1, section 280.12, as
to the definition of ``Motor fuel,'' insofar as it includes 100%
biodiesel or ethanol.
(v) 11 Miss. Admin. Code Pt. 5, Ch. 2, R. 2.1, section 280.12, as
to the definition of ``New tank system,'' insofar as it includes
dispensers as part of the new tank system.
(vi) 11 Miss. Admin. Code Pt. 5, Ch. 2, R. 2.1, section 280.12, as
to the definition of ``Register,'' insofar as it requires notification
for installation, replacement, or change in the operational status of a
dispenser.
(vii) 11 Miss. Admin. Code Pt. 5, Ch. 2, R. 2.1, section 280.12, as
to the definition of ``Replace,'' insofar as it considers replacement
of a dispenser to constitute a new UST system.
(viii) 11 Miss. Admin. Code Pt. 5, Ch. 2, R. 2.2, section
280.20(j), insofar as it regulates shear valves.
(ix) 11 Miss. Admin. Code Pt. 5, Ch. 2, R. 2.2, sections 280.22(a)
and (b), insofar as these provisions regulate dispensers.
(x) 11 Miss. Admin. Code Pt. 5, Ch. 2, R. 2.3, sections 280.34(g)
through (i), insofar as these provisions regulate dispensers.
(xi) 11 Miss. Admin. Code Pt. 5, Ch. 2, R. 2.3, section
280.35(a)(4), insofar as it regulates dispensers.
(xii) 11 Miss. Admin. Code Pt. 5, Ch. 2, R. 2.3, section
280.35(b)(1), insofar as it regulates shear valves.
(xiii) 11 Miss. Admin. Code Pt. 5, Ch. 2, R. 2.3, section
280.38(b)(1)(iii), insofar as it regulates shear valves.
(xiv) 11 Miss. Admin. Code Pt. 5, Ch. 3, insofar as these
provisions provide for the certification and regulation of persons who
install, alter, test, and permanently close underground storage tanks.
I. How does this action affect Indian country (18 U.S.C. 1151) in
Mississippi?
The EPA's approval of Mississippi's UST Program does not extend to
Indian country as defined in 18 U.S.C. 1151. The EPA will retain
responsibility under RCRA for underground storage tanks in Indian
country. Therefore, this action has no effect in Indian country. See 40
CFR 281.12(a)(2).
II. Codification
A. What is codification?
Codification is the process of placing citations and references to
a state's statutes and regulations that comprise a state's approved UST
program into the CFR. The EPA codifies its approval of state programs
in 40 CFR part 282 and incorporates by reference state statutes and
regulations that the EPA can enforce, after the approval is final,
under sections 9005 and 9006 of RCRA, and any other applicable
statutory provisions. The incorporation by reference of EPA-approved
state programs in the CFR should substantially enhance the public's
ability to discern the status of the approved state UST programs 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 Mississippi's UST Program?
In 1997, the EPA incorporated by reference and codified
Mississippi's approved UST Program at 40 CFR 282.74 (62 FR 28364, May
23, 1997). Through this action, the EPA is amending 40 CFR 282.74 to
incorporate by reference and codify Mississippi's revised UST Program.
C. What codification decisions is the EPA making in this rule?
In this rule, the EPA is finalizing regulatory text that
incorporates by reference the federally approved Mississippi UST
Program, including the revisions made to the UST Program based on the
2015 Federal Revisions. In accordance with the requirements of 1 CFR
51.5, the EPA is incorporating by reference Mississippi's statutes and
regulations as described in the amendments to 40 CFR part 282 set forth
below. These documents are available through <a href="https://www.regulations.gov">https://www.regulations.gov</a>. This codification reflects the State UST Program
that will be in effect at the time the EPA's approval of the revisions
to the Mississippi UST Program addressed in this direct final rule
becomes final. If, however, the EPA receives substantive comment on the
proposed rule, the EPA will withdraw this direct final rule and this
codification will not take effect. The EPA will consider all comments
and will make a decision on program approval and codification in a
future final rule. By codifying the approved Mississippi UST Program
and by amending the CFR, the public will more easily be able to discern
the status of the federally-approved requirements of the Mississippi
UST Program.
Specifically, in 40 CFR 282.74(d)(1)(i), the EPA is incorporating
by reference the EPA-approved Mississippi UST Program. Section
282.74(d)(1)(ii) identifies the State's statutes and regulations that
are part of the approved State UST Program, although not incorporated
by reference for enforcement purposes, unless they impose obligations
on the regulated entity. Section 282.74(d)(1)(iii) identifies the
State's statutory and regulatory provisions that are broader in scope,
external, or excluded for other reasons from the State's approved UST
Program and therefore not incorporated by reference. Sections
282.74(d)(2) through (5) reference the Attorney General's Statement,
Demonstration of Adequate Enforcement Procedures, Program Description,
and Memorandum of Agreement, which are part of the State Application
and part of the State UST Program under subtitle I of RCRA.
D. What is the effect of the EPA's codification of the federally
approved Mississippi UST Program on enforcement?
The EPA retains the authority under sections 9003(h), 9005, and
9006 of subtitle I of RCRA, 42 U.S.C. 6991b(h), 6991d, and 6991e, and
other applicable statutory and regulatory provisions, to undertake
corrective action, inspections, and enforcement actions, and to issue
orders in approved States. If the EPA determines it will take such
actions in Mississippi, the EPA will rely on Federal sanctions, Federal
inspection authorities, and other Federal procedures rather than the
State analogs. Therefore, the EPA is not incorporating by reference
Mississippi's procedural and enforcement authorities, although they are
listed in 40 CFR 282.74(d)(1)(ii).
E. What State provisions are not part of the codification?
As discussed in section I.H. above, some provisions of the State's
UST Program are not part of the federally approved State UST Program
because they are broader in scope than the Federal UST Program. 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 enforcement in part 282. See 40 CFR 281.12(a)(3)(ii). In
[[Page 3358]]
addition, provisions that are external to the State UST program
approval requirements, but included in the State Application, are also
being excluded from incorporation by reference in 40 CFR part 282. In
addition, some provisions are being excluded from incorporation by
reference in 40 CFR part 282 for other reasons. For reference and
clarity, 40 CFR 282.74(d)(1)(iii) lists the Mississippi statutory and
regulatory provisions which are broader in scope than the Federal
program, external to State UST program approval requirements, or being
excluded for other reasons. These provisions are, therefore, not part
of the approved UST Program that the EPA is codifying. Although these
provisions cannot be enforced by the EPA, the State will continue to
implement and enforce such provisions under State law.
III. Statutory and Executive Order (E.O.) Reviews
The EPA's actions merely approve and codify Mississippi's revised
UST Program requirements pursuant to RCRA section 9004, and do not
impose additional requirements other than those imposed by State law.
For that reason, these actions:
<bullet> Are not significant regulatory actions subject to review
by the Office of Management and Budget under Executive Orders 12866 (58
FR 51735, October 4, 1993) and 14094 (88 FR 21879, April 11, 2023);
<bullet> Do not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
<bullet> Are certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
<bullet> Do not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
<bullet> Do not have federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
<bullet> Are not economically significant regulatory actions based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
<bullet> Are not significant regulatory actions subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
<bullet> Are not subject to the requirements of section 12(d) of
the National Technology Transfer and Advancement Act of 1995 (15 U.S.C.
272 note) because application of those requirements would be
inconsistent with RCRA;
<bullet> Do not provide the EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994); and
<bullet> Do not apply on any Indian reservation land or in any
other area where the EPA or an Indian tribe has demonstrated that a
tribe has jurisdiction. The rule does not have Tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor
will it impose substantial direct costs on Tribal governments or
preempt Tribal law.
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. The EPA will submit a report containing this document
and other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication in the Federal Register. A major rule cannot take effect
until 60 days after it is published in the Federal Register. This
action is not a ``major rule'' as defined by 5 U.S.C. 804(2). This
final action will be effective March 18, 2024.
List of Subjects in 40 CFR Parts 281 and 282
Environmental protection, Administrative practice and procedure,
Hazardous substances, Incorporation by reference, Indian country,
Petroleum, Reporting and recordkeeping requirements, State program
approval, Underground storage tanks.
Authority: This action is issued under the authority of sections
2002(a), 7004(b), 9004, 9005, and 9006 of the Solid Waste Disposal
Act, as amended, 42 U.S.C. 6912(a), 6974(b), 6991c, 6991d, and
6991e.
Dated: December 21, 2023.
Jeaneanne M Gettle,
Acting Regional Administrator, Region 4.
For the reasons set forth in the preamble, the EPA is amending 40
CFR part 282 as follows:
PART 282--APPROVED UNDERGROUND STORAGE TANK PROGRAMS
0
1. The authority citation for part 282 continues to read as follows:
Authority: 42 U.S.C. 6912, 6991c, 6991d, and 6991e.
0
2. Amend Sec. 282.2 by revising paragraph (b)(4) as follows:
Sec. 282.2 Incorporation by reference.
* * * * *
(b)(4) Region 4 (Alabama, Florida, Georgia, Kentucky, Mississippi,
North Carolina, South Carolina, Tennessee): 61 Forsyth Street SW,
Atlanta, Georgia 30303-8960; Phone Number: (404) 562-9900.
* * * * *
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3. Revise Sec. 282.74 to read as follows:
Sec. 282.74 Mississippi State-Administered Program.
(a) History of the approval of Mississippi's program. The State of
Mississippi (Mississippi or State) is approved to administer and
enforce an underground storage tank (UST) 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 Underground Storage Tank Program (UST Program), as administered
by the Mississippi Department of Environmental Quality (MDEQ), was
approved by EPA pursuant to 42 U.S.C. 6991c and part 281 of this
chapter. EPA approved the Mississippi UST Program on June 11, 1990, and
it was effective on July 11, 1990. A subsequent program revision was
approved by EPA and became effective March 18, 2024.
(b) Enforcement authority. Mississippi has primary responsibility
for administering and enforcing its federally approved UST Program.
However, EPA retains the authority to exercise its corrective action,
inspection, and enforcement authorities under sections 9003(h), 9005,
and 9006 of subtitle I of RCRA, 42 U.S.C. 6991b(h), 6991d, and 6991e,
as well as under any other applicable statutory and regulatory
provisions.
(c) Retention of program approval. To retain program approval,
Mississippi must revise its approved UST 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 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 approval. Mississippi has final approval for the
following elements of its UST Program submitted
[[Page 3359]]
to EPA and approved effective June 11, 1990, and the program revisions
approved by EPA effective on March 18, 2024:
(1) State statutes and regulations--(i) Incorporation by reference.
The Mississippi materials cited in this paragraph (d)(1)(i), and listed
in appendix A to this part, are incorporated by reference as part of
the UST Program under subtitle I of RCRA, 42 U.S.C. 6991 et seq. (See
Sec. 282.2 for incorporation by reference approval and inspection
information.) You may obtain copies of the Mississippi statutes and
regulations that are incorporated by reference in this paragraph
(d)(1)(i) from the Mississippi Department of Environmental Quality,
P.O. Box 2261, Jackson, MS 29335; Phone number: (601) 961-5171;
website: <a href="https://www.mdeq.ms.gov/water/groundwater-assessment-and-remediation/underground-storage-tanks/">https://www.mdeq.ms.gov/water/groundwater-assessment-and-remediation/underground-storage-tanks/</a>.
(A) ``Mississippi Statutory Requirements Applicable to the
Underground Storage Tank Program,'' dated September 5, 2023.
(B) ``Mississippi Regulatory Requirements Applicable to the
Underground Storage Tank Program,'' dated September 5, 2023.
(ii) Legal basis. EPA considered the following statutes and
regulations which provide the legal basis for the State's
implementation of the UST Program, but do not replace Federal
authorities. Further, these provisions are not being incorporated by
reference, unless the provisions place requirements on regulated
entities.
(A) Mississippi Underground Storage Tank Act (the UST Act) of 1988,
Miss. Code Ann. sections 49-17-401 to 49-17-435 (2022).
(1) Section 49-17-409, as to the first sentence, insofar as it
provides for compliance monitoring and the promulgation of regulations
for the reporting of releases.
(2) Section 49-17-413(1), insofar as it provides for compliance
monitoring, and the promulgation of regulations for the implementation
of the State UST Program.
(3) Section 49-17-415, insofar as it provides for compliance
monitoring and establishes authority to conduct inspections, tests, and
obtain information from owners.
(4) Section 49-17-419, insofar as it establishes authority over
corrective action.
(5) Section 49-17-425, insofar as it provides for the sharing of
information with EPA.
(6) Section 49-17-427, insofar as it provides for enforcement
response, enforcement of orders, assessment of penalties under the UST
Act, proceedings before the commission, and limitations on liability.
(7) Section 49-17-431, insofar as it provides for appeal of any
decision by the commission or the director.
(B) Mississippi Air and Water Pollution Control Law, Miss. Code
Ann. sections 49-17-27 and 49-17-31 to 49-17-41 (2020).
(1) Section 49-17-27, insofar as it provides for enforcement
response and injunctive relief.
(2) Section 49-17-31, insofar as it provides for enforcement
response, notice of violations, enforcement of regulations and orders,
procedures for contested cases, and assessment of penalties.
(3) Section 49-17-33, insofar as it provides for hearing
procedures, issuance of orders, and penalties.
(4) Section 49-17-35, insofar as it provides for enforcement
response, public participation, and citizen intervention.
(5) Section 49-17-37, insofar as it provides for hearing procedures
and transcripts.
(6) Section 49-17-39, insofar as it provides for the sharing of
information with EPA.
(7) Section 49-17-41, insofar as it provides for appeal rights for
aggrieved parties.
(C) Mississippi's Underground Storage Tank Regulations, 11 Miss.
Admin. Code Pt. 5, Ch. 2 (2018).
(1) R. 2.3, 280.36, insofar as it provides for delivery prohibition
and enforcement of the State UST Program.
(2) R. 2.6, 280.67, insofar as it provides for public participation
in the corrective action process.
(D) Rule 24(a)(2) of the Mississippi Rules of Civil Procedure
(1982), insofar as it provides for citizen intervention and public
participation in the State enforcement process.
(iii) Other provisions not incorporated by reference. The following
statutory and regulatory provisions applicable to the Mississippi UST
Program are broader in scope than the Federal program, external to the
State UST program approval requirements, or are being excluded for
other reasons as noted below. Therefore, these provisions are not part
of the approved UST Program and are not incorporated by reference in
this section:
(A) Mississippi Underground Storage Tank Act (the UST Act) of 1988,
Miss. Code Ann. sections 49-17-401 to 49-17-435 (2022).
(1) 49-17-403(b) is broader in scope as to the definition of
``Bonded distributor,'' insofar as it is associated with the regulation
of entities other than owners and operators as these terms are defined
in 40 CFR 280.12.
(2) Section 49-17-403(o) is broader in scope as to the definition
of ``Response action contractor,'' insofar as it is associated with the
regulation of entities other than owners and operators as these terms
are defined in 40 CFR 280.12.
(3) Section 49-17-403(p) is broader in scope as to the definition
of ``Retailer,'' insofar as it is associated with the regulation of
entities other than owners and operators as these terms are defined in
40 CFR 280.12.
(4) Section 49-17-403(q) is broader in scope as to the definition
of ``Substantial compliance,'' insofar as it relates to a State fund.
(5) Section 49-17-405 is broader in scope insofar as it provides
for the creation of the Mississippi Groundwater Protection Trust Fund
(State Fund), promulgation of regulations regarding the State Fund,
criteria for qualified expenditure of funds, and liability of owners
for fund expenditures.
(6) Section 49-17-407 is broader in scope insofar as it creates an
environmental protection fee, provides limits on use of the State Fund,
and addresses third party claims.
(7) Section 49-17-409 is broader in scope, all except for the first
sentence, insofar as it provides for the eligibility requirements of
the State Fund and reimbursement of costs from owners.
(8) Section 49-17-421 is broader in scope insofar as it establishes
an annual tank regulatory fee.
(9) Section 49-17-422 is broader in scope insofar as it creates an
Underground Storage Tank Advisory Council.
(10) Section 49-17-423 is broader in scope insofar as it pertains
to the commission's administration of funds from the Leaking
Underground Storage Tank Trust Fund.
(11) Section 49-17-429 is broader in scope insofar as it requires
the certification of individuals to install, alter, or remove
underground storage tanks and provides for the promulgation of
regulations setting forth certification requirements.
(12) Section 49-17-433 is external insofar as it pertains to the
severability of the State UST Act.
(13) Section 49-17-435 is external insofar as it contains reporting
obligations on the State agency, not a regulated entity.
(B) Mississippi Air and Water Pollution Control Law, Miss. Code
Ann. sections 49-17-27 and 49-17-31 to 49-17-41 (2020).
[[Page 3360]]
(1) Section 49-17-32 is external insofar as it does not pertain to
the State UST Program.
(2) Section 49-17-34 is external insofar as it does not pertain to
the State UST Program.
(3) Section 49-17-36 is external insofar as it does not pertain to
the State UST Program.
(C) Mississippi's Groundwater Protection Trust Fund Regulations, 11
Miss. Admin. Code Pt. 5, Ch. 1 (2009) is broader in scope insofar as
these provisions regulate Immediate Response Action Contractors,
Environmental Response Action Contractors, and the State Fund.
(D) Mississippi's Underground Storage Tank Regulations, 11 Miss.
Admin. Code Pt. 5, Ch. 2 (2018).
(1) R. 2.1, 280.12 is broader in scope as to the definition of
``Ancillary equipment,'' insofar as it pertains to dispensers.
(2) R. 2.1, 280.12 is broader in scope as to the definition of
``Certificate of Operation,'' insofar as it requires UST systems to be
permitted by MDEQ and the payment of tank regulatory fees.
(3) R. 2.1, 280.12 is broader in scope as to the definition of
``Motor fuel,'' insofar as it includes 100% biodiesel or ethanol.
(4) R. 2.1, 280.12 is broader in scope as to the definition of
``New tank system,'' insofar as it includes dispensers as part of the
new tank system.
(5) R. 2.1, 280.12 is broader in scope as to the definition of
``Register,'' insofar as it requires notification for installation,
replacement, and change in operational status of a dispenser.
(6) R. 2.1, 280.12 is broader in scope as to the definition of
``Replace,'' insofar as it considers replacement of a dispenser to
constitute a new UST system.
(7) R. 2.2, 280.20(j) is broader in scope insofar as it regulates
shear valves.
(8) R. 2.2, 280.22(a) and (b) are broader in scope insofar as these
provisions regulate dispensers.
(9) R. 2.3, 280.34(g) through (i) are broader in scope insofar as
these provisions regulate dispensers.
(10) R. 2.3, 280.35(a)(4) is broader in scope insofar as it
regulates dispensers.
(11) R. 2.3, 280.35(b)(1) is broader in scope insofar as it
regulates shear valves.
(12) R. 2.3, 280.38(b)(1)(iii) is broader in scope insofar as it
regulates shear valves.
(13) R. 2.8, 280.91(e) and (f), are excluded for other reasons.
Paragraph (e) is excluded only insofar as it includes Indian tribes as
a ``local government entity,'' and paragraph (f) is excluded insofar as
EPA retains responsibility for implementing the Federal UST program in
Indian country.
Note 1 to paragraph (d)(1)(iii)(D)(13). MDEQ does not regulate
any USTs on Indian lands and EPA retains responsibility for
implementing the Federal UST program in Indian country. In a
subsequent rulemaking, MDEQ will revise these provisions to remove
references to the State's regulation of USTs in Indian country.
(14) R. 2.8, 280.92, is excluded for other reasons only insofar as
the definition of ``Local government'' includes Indian tribes.
Note 2 to paragraph (d)(1)(iii)(D)(14). MDEQ does not regulate
any USTs on Indian lands and the EPA retains responsibility for
implementing the Federal UST program in Indian country. In a
subsequent rulemaking, MDEQ will revise the definition of ``Local
government'' to exclude Indian tribes.
(15) R. 2.8, 280.100 is external insofar as it is not applicable in
a State with an approved UST program.
(E) Mississippi's Underground Storage Tank Regulations for the
Certification of Persons Who Install, Alter, and Remove Underground
Storage Tanks, 11 Miss. Admin. Code Pt. 5, Ch. 3 (2018) is broader in
scope insofar as these provisions provide for the certification and
regulation of persons who install, alter, test, and permanently close
underground storage tanks.
(2) Statement of legal authority. The Attorney General's Statement,
signed by the Mississippi Attorney General on July 27, 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.
(3) Demonstration of procedures for adequate enforcement. The
``Demonstration of Adequate Enforcement Procedures'' submitted in the
application dated July 31, 2023, as amended on August 17, 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 submitted in the
application dated July 31, 2023, as amended on August 17, 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.
(5) Memorandum of Agreement. The Memorandum of Agreement between
EPA Region 4 and the MDEQ, signed by the EPA Regional Administrator on
October 12, 2018, 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.
0
4. Amend appendix A to part 282 by revising the entry for Mississippi
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:
Mississippi Underground Storage Tank Act (the UST Act) of 1988,
Miss. Code Ann. sections 49-17-401 to 49-17-435 (2022):
49-17-401 Short Title.
49-17-403 Definitions, except (b), (o), (p), and (q).
49-17-411 Compliance with regulations.
49-17-413 Rules and regulations, except for (1).
49-17-417 Repealed.
Note to paragraph (a) of Appendix A to Part 282. Miss. Code
Ann. section 49-17-413(2) is approved as part of the State UST
Program to the extent that Mississippi will not grant a variance
that makes its UST Program less stringent than the Federal
regulations. In practice, Mississippi does not grant variances for
the UST Program. Mississippi has agreed to execute a revised
Memorandum of Agreement with EPA stating that Mississippi will limit
the scope of its variance authority to only those situations where
the Federal regulations allow the implementing agency to approve
flexibilities.
(b) The regulatory provisions include:
Mississippi's Underground Storage Tank Regulations, 11 Miss. Admin.
Code Pt. 5, Ch. 2 (2018):
Rule 2.1 Program Scope and Interim Prohibition
280.10 Applicability.
280.11 Installation requirements for partially excluded UST
systems.
280.12 Definitions, except for ``dispensers'' in the definition
of ``Ancillary equipment;'' the definition of ``Certificate of
Operation;'' ``including 100% biodiesel or ethanol'' from the
definition of ``Motor fuel;'' ``dispensers'' and (c) from the
definition of ``New tank system;'' ``dispensers'' from the
definition of ``Register;'' ``dispensers'' and (c) from the
definition of ``Replace.''
280.13 Industry codes and recommended practices.
Rule 2.2 UST Systems: Design, Construction, Installation and
Notification
280.20 Performance Standards for new UST systems, except for
(j).
280.21 Upgrading of existing UST systems.
280.22 Notification requirements, except as applied to
``dispensers'' in (a) and (b).
Rule 2.3 General Operating Requirements
280.30 Operation and maintenance of spill and overfill
prevention.
280.31 Operation and maintenance of secondary containment.
280.32 Operation and maintenance of corrosion protection.
[[Page 3361]]
280.33 Compatibility.
280.34 Repairs and replacements, except as applied to
``dispenser(s)'' in (g), (h), and (i).
280.35 Reporting recordkeeping, except as applied to
``dispensers'' in (a)(4); and except as applied to ``shear valves''
in (b)(1).
280.37 Operator training.
280.38 Operation and maintenance walkthrough inspections, except
for (b)(1)(iii).
Rule 2.4 Leak 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 leak detection for tanks.
280.44 Methods of leak detection for piping.
280.45 Leak detection recordkeeping.
Rule 2.5 Leak Reporting, Release Reporting, Investigation, and
Confirmation
280.50 Reporting of leaks and 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.
Rule 2.6 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 ground-water cleanup.
280.66 Corrective action plan.
Rule 2.7 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.
Rule 2.8 Financial Responsibility
280.90 Applicability.
280.91 Compliance dates, except for ``including Indian tribes''
in (e), and (f).
280.92 Definition of terms, except for ``and includes Indian
tribes'' from the definition of ``Local government.''
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.
280.101 State fund or other State assurance.
280.102 Trust fund.
280.103 Standby trust fund.
280.104 Local government bond rating test.
280.105 Local government financial test.
280.106 Local government guarantee.
280.107 Local government fund.
280.108 Substitution of financial assurance mechanisms by owner
or operator.
280.109 Cancellation or nonrenewal by a provider of financial
assurance.
280.110 Reporting by owner or operator.
280.111 Recordkeeping.
280.112 Drawing on financial assurance mechanisms.
280.113 Release from the requirements.
280.114 Bankruptcy or other incapacity of owner or operator or
provider of financial assurance.
280.115 Replenishment of guarantees, letters of credit, or
surety bonds.
280.116 Suspension of enforcement. [Reserved]
Rule 2.9 Lender Liability
280.120 Definitions.
280.121 Participation in management.
280.122 Ownership of an underground storage tank or underground
storage tank system or facility or property on which an underground
storage tank or underground storage tank system is located.
280.123 Operating an underground storage tank or underground
storage tank system.
Rule 2.10 UST Systems with Field-Constructed Tanks and Airport
Hydrant Fuel Distribution Systems.
280.130 Definitions.
280.131 General requirements.
280.132 Additions, exceptions, and alternatives for UST systems
with field-constructed tanks and airport hydrant systems.
Note to paragraph (b) of Appendix A to Part 282. 11 Miss. Admin.
Code Pt. 5, Ch. 2, 280.42(b)(5) is approved as part of the UST
Program only to the extent that Mississippi will not allow alternate
release detection methods for hazardous substance UST systems
installed on or after October 13, 2015. Sections 40 CFR 281.33(e)
and 280.42(e) of the Federal regulations only allow alternate
release detection methods for hazardous substance UST systems
installed prior to October 13, 2015. Mississippi's section
280.42(b)(5) does not contain an analogous limitation on the use of
alternative release detection methods. In practice, MDEQ does not
allow alternative release detection methods for hazardous substance
tanks installed after October 1, 2008. In a subsequent rulemaking,
MDEQ will revise 11 Miss. Admin. Code Pt. 5, Ch. 2, R. 2.4, section
280.42(b)(5) to clarify this point.
(C) Copies of the Mississippi statutes and regulations that are
incorporated by reference are available from the Mississippi
Department of Environmental Quality, P.O. Box 2261, Jackson, MS
29335; Phone number: (601) 961-5171; website: <a href="https://www.mdeq.ms.gov/water/groundwater-assessment-and-remediation/underground-storage-tanks/">https://www.mdeq.ms.gov/water/groundwater-assessment-and-remediation/underground-storage-tanks/</a>.
[FR Doc. 2024-00171 Filed 1-17-24; 8:45 am]
BILLING CODE 6560-50-P
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</html>Indexed from Federal Register on January 18, 2024.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.