Rule2024-16812
Massachusetts: 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
August 2, 2024
Effective
October 1, 2024
Issuing agencies
Environmental Protection Agency
Abstract
Pursuant to the Resource Conservation and Recovery Act (RCRA or Act), the Environmental Protection Agency (EPA) is taking direct final action to approve revisions to the State of Massachusetts' Underground Storage Tank (UST) program submitted by the Massachusetts Department of Environmental Protection (MassDEP). This action also codifies EPA's approval of Massachusetts' state program and incorporates by reference those provisions of the State statutes and regulations that we have determined meet the requirements for approval. The provisions 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.
Full Text
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<title>Federal Register, Volume 89 Issue 149 (Friday, August 2, 2024)</title>
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[Federal Register Volume 89, Number 149 (Friday, August 2, 2024)]
[Rules and Regulations]
[Pages 63101-63108]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-16812]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 282
[EPA-R01-UST-2023-0321; FRL-11752-02-R1]
Massachusetts: 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: Pursuant to the Resource Conservation and Recovery Act (RCRA
or Act), the Environmental Protection Agency (EPA) is taking direct
final action to approve revisions to the State of Massachusetts'
Underground Storage Tank (UST) program submitted by the Massachusetts
Department of Environmental Protection (MassDEP). This action also
codifies EPA's approval of Massachusetts' state program and
incorporates by reference those provisions of the State statutes and
regulations that we have determined meet the requirements for approval.
The provisions 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.
DATES: This rule is effective October 1, 2024, unless EPA receives
adverse comment by September 3, 2024. If EPA receives adverse comments,
it will publish a timely withdrawal in the Federal Register informing
the public that the rule will not take effect. The incorporation by
reference of a certain publication listed in the regulations is
approved by the Director of the Federal Register, as of October 1,
2024, in accordance with 5 U.S.C. 552(a) and 1 CFR part 51.
ADDRESSES: Submit your comments by one of the following methods:
1. Federal eRulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Follow
the online instructions for submitting comments.
2. Email: <a href="/cdn-cgi/l/email-protection#bad9d5c3d6df94d0d5dbd4fadfcadb94ddd5cc"><span class="__cf_email__" data-cfemail="3a595543565f1450555b547a5f4a5b145d554c">[email protected]</span></a>.
Instructions: Direct your comments to Docket ID No. EPA-R01-UST-
2023-0321. EPA's policy is that all comments received will be included
in the public
[[Page 63102]]
docket without change and may be available online at <a href="https://www.regulations.gov">https://www.regulations.gov</a>, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit information that you consider to
be CBI or otherwise protected through <a href="https://www.regulations.gov">https://www.regulations.gov</a>, or
email. The Federal <a href="https://www.regulations.gov">https://www.regulations.gov</a> website is an
``anonymous access'' system, which means the EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an email comment directly to the EPA without
going through <a href="https://www.regulations.gov">https://www.regulations.gov</a>, your email address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment. If EPA
cannot read your comment due to technical difficulties, and cannot
contact you for clarification, EPA may not be able to consider your
comment. Electronic files should avoid the use of special characters,
any form of encryption, and be free of any defects or viruses. EPA
encourages electronic submittals, but if you are unable to submit
electronically, please reach out to the EPA contact person listed in
the notice for assistance.
Docket: All documents in the docket are listed in the <a href="https://www.regulations.gov">https://www.regulations.gov</a> index. Although listed in the index, some
information might not be publicly available, e.g., CBI or other
information whose disclosure is restricted by statute. Certain other
material, such as copyrighted material, might be publicly available
only in hard copy form. Publicly available docket materials are
available either electronically through <a href="http://www.regulations.gov">www.regulations.gov</a> or in hard
copy.
IBR and supporting material: The EPA encourages electronic
reviewing of these documents, but if you are unable to review these
documents electronically, please contact Joan Coyle to schedule an
appointment to view the documents at the EPA Region 1 Library, 5 Post
Office Square, 1st floor, Boston, MA 02109-3912. The facility is open
from 8:30 a.m. to 4:00 p.m., Monday through Friday, excluding Federal
holidays. Interested persons wanting to examine these documents should
make an appointment at least two weeks in advance. For further
information on EPA Docket Center services and the current status,
please visit us online at <a href="https://www.epa.gov/dockets">https://www.epa.gov/dockets</a>.
FOR FURTHER INFORMATION CONTACT: Joan Coyle, (617) 918-1303,
<a href="/cdn-cgi/l/email-protection#80e3eff9ece5aeeaefe1eec0e5f0e1aee7eff6"><span class="__cf_email__" data-cfemail="e685899f8a83c88c898788a6839687c8818990">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Approval of Revisions to Massachusetts' Underground Storage Tank
Program
A. Why are revisions to state programs necessary?
States that have received final approval from the EPA under RCRA
section 9004(b) of RCRA, 42 U.S.C. 6991c(b), must maintain an
underground storage tank program that is equivalent to, consistent
with, and no less stringent than the Federal UST program. Either EPA or
the approved state may initiate program revision. When EPA makes
revisions to the regulations that govern the UST program, states must
revise their programs to comply with the updated regulations and submit
these revisions to the EPA for approval. Program revision may be
necessary when the controlling Federal or state statutory or regulatory
authority is modified or when responsibility for the state program is
shifted to a new agency or agencies.
B. What decisions has the EPA made in this rule?
On December 21, 2022, in accordance with 40 CFR 281.51(a),
Massachusetts submitted a complete program revision application seeking
EPA approval for its UST program revisions (State Application).
Massachusetts' revisions correspond to the EPA final rule published on
July 15, 2015 (80 FR 41566), which revised the 1988 UST regulations and
the 1988 State program approval (SPA) regulations (2015 Federal
Revisions). As required by 40 CFR 281.20, the State Application
contains the following: a transmittal letter requesting approval, a
description of the program and operating procedures, a demonstration of
the State's procedures to ensure adequate enforcement, a Memorandum of
Agreement outlining the roles and responsibilities of the EPA and the
implementing agency, a statement of certification from the Attorney
General, and copies of all relevant State statutes and regulations. We
have reviewed the State Application and determined that the revisions
to Massachusetts' UST program are equivalent to, consistent with, and
no less stringent than the corresponding Federal requirements in
subpart C of 40 CFR part 281, and that the Massachusetts program
provides for adequate enforcement of compliance (40 CFR 281.11(b)).
Therefore, the EPA grants Massachusetts final approval to operate its
UST program with the changes described in the program revision
application, and as outlined below in section I.G. of this document.
C. What is the effect of this approval decision?
This action does not impose additional requirements on the
regulated community because the regulations being approved by today's
rule are already effective in Massachusetts, and they are not changed
by today's action. This action merely approves the existing state
regulations as meeting the federal requirements and renders them
federally enforceable.
D. Why is EPA using a direct final rule?
EPA is publishing this direct final rule concurrent with a proposed
rule because we view this as a noncontroversial action and anticipate
no adverse comment. EPA is providing an opportunity for public comment
now.
E. What happens if the EPA receives comments that oppose this action?
Along with this direct final, the EPA is 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
revision, providing opportunity for public comment. If EPA receives
comments that oppose this approval, EPA will withdraw the direct final
rule by publishing a document in the Federal Register before the rule
becomes effective. The EPA will base any further decision on the
approval of the State program changes on the proposal to approve after
considering all comments received during the comment period. EPA will
then address all public comments in a later final rule. You may not
have another opportunity to comment. If you want to comment on this
approval, you must do so at this time.
F. For what has Massachusetts previously been approved?
On March 17, 1995, effective April 17, 1995 (60 FR 14371), EPA
approved the State's UST program administered at that time by the
Massachusetts Department of Fire Services (DFS). Effective December 30,
1996 (61 FR 56135), EPA codified the Massachusetts' statutes and
regulations comprising the State's approved UST program, incorporating
by reference those
[[Page 63103]]
approved provisions that are subject to EPA's inspection and
enforcement authorities under RCRA sections 9005 and 9006, 42 U.S.C.
6991d and 6991e, and other applicable statutory and regulatory
provisions.
The responsibility for administering the underground storage tank
program was transferred to the Massachusetts Department of
Environmental Protection (MassDEP), effective July 1, 2009. MassDEP
adopted UST regulations (310 CMR 80.00) which became effective on
January 2, 2015. These maintained the basic requirements established by
the DFS (Board of Fire Prevention Regulations 527 CMR 9.00) and
authorized by EPA in 1995. On July 18, 2019, the EPA approved these
Massachusetts UST program revisions, effective September 16, 2019.
G. What changes are we approving with today's action?
On December 21, 2022, in accordance with 40 CFR 281.51(a),
Massachusetts submitted a complete application for final approval of
its UST program revisions, adopted on October 1, 2021. The EPA now
makes an immediate final decision, subject to receipt of written
comments that oppose this action, that Massachusetts' UST program
revisions satisfy all the requirements necessary to qualify for final
approval. Therefore, EPA grants Massachusetts final approval for the
following program changes:
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Required Federal element Implementing State authority
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40 CFR 281.30, New UST Systems and 310 CMR 80.14; 80.16; 80.17(1) and
Notification. (2); 80.18; 80.21(1); 80.22; 80.23;
80.64; M.G.L. c.21O,Sec. 5.
40 CFR 281.31, Upgrading Existing 310 CMR 80.19; 80.21; 80.22; 80.64;
UST Systems. M.G.L. c.21O,Sec. 5.
40 CFR 281.32, General Operating 310 CMR 80.03; 80.10; 80.18; 80.22;
Requirements. 80.26; 80.27; 80.28; 80.29; 80.30;
80.31; 80.32; 80.33; 80.35; 80.36;
80.64; M.G.L. c.21OSec. 5.
40 CFR 281.33, Release Detection.. 310 CMR 80.04; 80.19; 80.26; 80.31;
80.35; 80.64; M.G.L. c.21O, Sec.
5.
40 CFR 281.34, Release Reporting, 310 CMR 80.23; 80.26; 80.31(1)-(3);
Investigation, and Confirmation. 80.32; 80.38(2); 80.39; 80.40;
80.64; M.G.L. c.21O,Sec. 5;
M.G.L. c.21E Sec. Sec. 3A, 5, 7,
8, 9.
40 CFR 281.35, Release Response 310 CMR 80.33; 310 CMR 80.38-80.40;
and Corrective Action. 80.64.
40 CFR 281.36, Out-of-service 310 CMR 80.42; 80.43; 80.46; 80.47;
Systems and Closure. 80.64.
40 CFR 281.37, Financial 310 CMR 80.04; 80.36; 80.52-80.57;
Responsibility for USTs 80.59-80.60; 80.64.
Containing Petroleum.
40 CFR 281.38, Lender Liability... No security interest exemption
40 CFR 281.39, Operator Training.. 310 CMR 80.37; 80.64
40 CFR 281.40, Requirements for 310 CMR 80.10; 80.13; M.G.L. c. 21O,
Compliance Monitoring and Sec. 6
Authority.
40 CFR 281.41, Requirements for 310 CMR 80.48; 80.50; 310 CMR 5.00;
Enforcement Authority. M.G.L. c. 21O, Sec. Sec. 7 and
8.
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The State also demonstrates that its program provides adequate
enforcement of compliance as described in 40 CFR 281.11(b) and part
281, Subpart D. The MassDEP has broad statutory authority with respect
to USTs to regulate installation, operation, maintenance, closure, and
UST releases, and to the issuance of orders. These statutory
authorities are found in: Massachusetts General Laws, Chapter 21O,
Operation and Removal of Underground Storage Tanks; Massachusetts
General Laws, Chapter 21E, Massachusetts Oil and Hazardous Material
Release Prevention and Response Act; and Massachusetts General Laws,
Chapter 21J, Underground Storage Tank Petroleum Product Cleanup Fund.
H. Where are the revised rules different from the Federal rules?
Broader in Scope Provisions
The following statutory and regulatory provisions are considered
broader in scope than the federal program, and are therefore not
enforceable as a matter of federal law:
The Owner or Operator of an underground storage tank used for the
keeping or storage of flammable or combustible fluids may need to
obtain a permit from the fire department in which the UST system is
located for closure or relocation of the UST system. It is the
responsibility of the Owner or Operator to obtain any required
permit(s).
Owners and operators of UST systems containing low level
radioactive waste or its mixture with hazardous waste regulated by the
Nuclear Regulatory Commission and the Department of Public Health must
ensure that the UST systems will prevent releases due to corrosion or
structural failure, be cathodically protected against corrosion, be
constructed of non-corrodible material, and be constructed or lined
with material that is compatible with the stored regulated substance.
Massachusetts requires that consumptive use (CU) tanks of 1,100
gallons or less must comply with release response requirements and, if
installed on and after March 21, 2008, be double walled and equipped
with continuous interstitial monitoring. Consumptive use tanks greater
than 1,100 gallons installed on and after January 1, 1989 must comply
with most of the regulatory requirements, except registration and fill
pipe cover requirements. If CU tanks greater than 1,100 gallons were
installed before January 1, 1989, they must meet most requirements
except those for installation, leak detection, tank specifications, and
corrosion protection.
Farm and residential tanks having a capacity of 1,100 gallons or
less used exclusively for the storage of motor fuel must be double
walled and must comply with release response requirements.
UST systems used solely for emergency spill or overflow containment
of a regulated substance installed on or after January 1, 1989, must be
double walled, protected from corrosion, comply with registration and
release response requirements, and be emptied within 72 hours of
introduction of product.
Owners or operators must maintain, until the UST system is removed
or permanently closed in place, a scaled drawing or set of as-built
plans of all UST systems prepared by the installer or a registered
professional engineer, with specific information, and must submit a
copy of the as-built plans to the Department.
[[Page 63104]]
Owners and operators of UST systems are required to hire certified
Third-Party Inspectors (TPIs) to conduct compliance inspections of
those systems every three years. MassDEP's TPI Certification Program
requires that qualified individuals must pass a written exam and meet
certain minimum eligibility requirements, are certified for five years,
and need to apply for renewal at least 90 days before their current
certifications expire.
Owners or operators of all UST systems must submit a performance-
based compliance certification to the Department in accordance with the
Environmental Results Program Certification requirements.
Massachusetts requires that an owner or operator hire a Licensed
Site Professional (LSP) to work on their behalf to oversee the
assessment and cleanup of contaminated properties. Massachusetts
provisions that are broader in scope than the federal program are not
incorporated by reference and are not part of the federally-approved
program.
More Stringent Provisions
The following statutory and regulatory provisions are considered
more stringent than the federal program and are therefore enforceable
as a matter of federal law:
All single-walled steel tanks in-service and temporarily out-of-
service must be permanently closed and removed from the ground, or be
permanently closed in-place, by August 7, 2017, except for consumptive
use tanks, and tanks that were relined prior to August 8, 2007.
Groundwater monitoring is not permitted as a form of release
detection.
After January 2, 2017, owners and operators may no longer use soil
vapor monitoring as a primary form of release detection.
Regulated substance dispensers installed, repaired, or replaced on
or after March 21, 2008 must be equipped with a dispenser sump that is
continuously monitored with a dispenser sump sensor.
All turbine sumps, including intermediate sumps, shall be
continuously monitored for liquids utilizing a sump sensor.
Turbine, intermediate, and dispenser sumps must pass a tightness
test at installation to ensure the sump is liquid tight.
All high-level alarms installed on and after January 2, 2015 must
be visible and audible, and be clearly labeled as a tank overfill
alarm.
Owners or Operators shall inspect and test the overfill prevention
equipment annually to ensure that it is operational and will activate
at the correct level.
Massachusetts requires all UST systems, regardless of the amount of
regulated product received at one time, to have a spill bucket. Spill
buckets must be at least five gallons in capacity, if installed after
January 2, 2015. If installed before that date, must have a minimum
capacity of three gallons. Spill buckets must pass a tightness test at
installation.
All submersible pumps that do not have a turbine containment sump
shall be visually inspected every 30 days.
Single-walled and double-walled sumps without continuous monitoring
sensors in the sump must be inspected every 90 days.
Impressed current cathodic protection systems must be tested every
12 months.
All cathodic protection systems must be tested within 60 days of a
repair.
Owners or operators of regulated tanks that are not double-walled
and do not have continuous monitoring must conduct daily and monthly
inventory monitoring, with the exception of emergency generator tanks
installed before January 2, 2015.
Financial responsibility must be maintained and demonstrated for
UST systems containing hazardous substances.
When an UST system is taken temporarily out of service, all
regulated substances must be removed from the tank and the UST rendered
inert. Vent lines must be kept open and functioning and all other lines
capped, locked, and secured.
II. Codification
A. What is codification?
Codification is the process of placing a state's statutes and
regulations that comprise the state's approved UST program into the
CFR. Section 9004(b) of RCRA, as amended, allows the EPA to approve
State UST programs to operate in lieu of the Federal program. The EPA
codifies its authorization of state programs in 40 CFR part 282 and
incorporates by reference state regulations that the EPA will enforce
under sections 9005 and 9006 of RCRA and any other applicable statutory
provisions. The incorporation by reference of state authorized programs
in the CFR should substantially enhance the public's ability to discern
the current status of the approved state program and state requirements
that can be federally enforced. This effort provides clear notice to
the public of the scope of the approved program in each state.
B. What is the history of codification of Massachusetts' UST program?
EPA incorporated by reference the Massachusetts DFS approved UST
program effective December 30, 1996 (61 FR 56135; October 31, 1996). In
this document, EPA is revising 40 CFR 282.71 to include the approval
revision actions.
C. What codification decisions have we made in this rule?
Incorporation by reference: In this rule, we are finalizing the
Federal regulatory text that incorporates by reference the federally
authorized Massachusetts UST Program. In accordance with the
requirements of 1 CFR 51.5, we are finalizing the incorporation by
reference of the Massachusetts statutes and regulations described in
the amendments to 40 CFR part 282 set forth below. The EPA has made,
and will continue to make, this document generally available through
<a href="http://www.regulations.gov">www.regulations.gov</a> and at the EPA Region 1 office (see the ADDRESSES
section of this preamble for more information).
The purpose of this Federal Register document is to codify
Massachusetts' approved UST program. The codification reflects the
State program in effect at the time EPA's approved revisions to the
Massachusetts UST program addressed in this direct final rule become
final. The document incorporates by reference Massachusetts' UST
statutes and regulations and clarifies which of these provisions are
included in the approved and federally enforceable program. By
codifying the approved Massachusetts program and by amending the CFR,
the public will more easily be able to discern the status of the
federally-approved requirements of the Massachusetts program.
EPA is incorporating by reference the Massachusetts approved UST
program in 40 CFR 282.71. Section 282.71(d)(1)(i)(A) incorporates by
reference for enforcement purposes the State's statutes and
regulations. Section 282.71 also references the Attorney General's
Statement, Demonstration of Adequate Enforcement Procedures, the
Program Description, and the Memorandum of Agreement, which are
approved as part of the UST program under Subtitle I of RCRA.
D. What is the effect of Massachusetts' codification on enforcement?
The EPA retains the authority under sections 9005 and 9006 of
Subtitle I of RCRA, 42 U.S.C. 6991d and 6991e, and other applicable
statutory and
[[Page 63105]]
regulatory provisions to undertake inspections and enforcement actions
and to issue orders in approved states. With respect to these actions,
EPA will rely on federal sanctions, federal inspection authorities, and
federal procedures rather than the state authorized analogues to these
provisions. Therefore, the EPA is not incorporating by reference such
particular, approved Massachusetts procedural and enforcement
authorities. Section 282.71(d)(1)(ii) of 40 CFR lists those approved
Massachusetts authorities that would fall into this category.
E. What State provisions are not part of the codification?
The public also needs to be aware that some provisions of the
State's UST program are not part of the federally approved State
program. Such provisions are not part of the RCRA Subtitle I program
because they are ``broader in scope'' than Subtitle I of RCRA. 40 CFR
281.12(a)(3)(ii) states that where an approved state program has
provisions that are broader in scope than the federal program, those
provisions are not a part of the federally approved program. As a
result, State provisions which are broader in scope than the federal
program are not incorporated by reference for purposes of enforcement
in part 282. Section 282.71(d)(1)(iii) of the codification simply lists
for reference and clarity the Massachusetts 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. Provisions that are broader in scope cannot be enforced by EPA;
the State, however, will continue to implement and enforce such
provisions under State law.
III. Statutory and Executive Order Reviews
This action only applies to Massachusetts' UST Program requirements
pursuant to RCRA Section 9004 and imposes no requirements other than
those imposed by State law. It complies with applicable Executive
Orders (EOs) and statutory provisions as follows:
Additional information about these statutes and Executive Orders
can be found at <a href="https://www.epa.gov/laws-regulations/laws-and-executive-orders">https://www.epa.gov/laws-regulations/laws-and-executive-orders</a>.
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 14094: Modernizing Regulatory Review
This action is not a significant regulatory action as defined in
Executive Order 12866 (58 FR 51735, October 4, 1993), as amended by
Executive Order 14094 (88 FR 21879, April 11, 2023), because this
action approves and codifies State requirements for the purpose of RCRA
section 9004 and imposes no additional requirements beyond those
imposed by State law. Therefore, this action was not subject to a
requirement for Executive Order 12866 review.
B. Paperwork Reduction Act (PRA)
This rule does not impose an information collection burden under
the provisions of the PRA, 44 U.S.C. 3501 et seq. Burden is defined at
5 CFR 1320.3(b).
C. Regulatory Flexibility Act (RFA)
I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA, 5
U.S.C. 601 et seq., because this action authorizes State requirements
pursuant to RCRA section 9004 and imposes no requirements beyond those
imposed by State law.
D. Unfunded Mandates Reform Act (UMRA)
This action does not contain any unfunded mandates as described in
UMRA, 2 U.S.C. 1501 et seq., and does not significantly or uniquely
affect small governments because this action approves and codifies pre-
existing requirements under State law and does not impose any
additional enforceable duty beyond that required by State law.
E. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Because this action approves and codifies pre-existing requirements
under State law and does not impose any additional enforceable duty
beyond that required by State law, it does not contain any unfunded
mandate or significantly or uniquely affect small governments, as
described in the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-
1538). As discussed above, EPA is not acting on approval to operate the
State's UST program as it applies to Tribal lands in the State.
Therefore, this action also does not significantly or uniquely affect
the communities of Tribal governments, as specified by Executive Order
13175 (65 FR 67249, November 9, 2000).
F. Executive Order 13132: Federalism
This action will not have substantial direct effects on the States,
on the relationship between the national government and the States, or
on the distribution of power and responsibilities among the various
levels of government, as specified in Executive Order 13132 (64 FR
43255, August 10, 1999), because it merely approves and codifies State
requirements as part of the State RCRA underground storage tank program
without altering the relationship or the distribution of power and
responsibilities established by RCRA.
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997)
as applying only to those regulatory actions that concern environmental
health or safety risks that EPA has reason to believe may
disproportionately affect children, per the definition of ``covered
regulatory action'' in section 2-202 of the Executive Order. Therefore,
this action is not subject to Executive Order 13045 because it approves
a State program.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This rule is not subject to Executive Order 13211 (66 FR 28355, May
22, 2001) because it is not a ``significant regulatory action'' as
defined under Executive Order 12866.
I. National Technology Transfer and Advancement Act (NTTAA)
Under RCRA section 9004(b), EPA grants a State's application for
approval as long as the State meets the criteria required by RCRA. It
would thus be inconsistent with applicable law for EPA, when it reviews
a State approval application, to require the use of any particular
voluntary consensus standard in place of another standard that
otherwise satisfies the requirements of RCRA. Thus, the requirements of
section 12(d) of the NTTAA, 15 U.S.C. 272 note, do not apply to this
action.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898 (59 FR 7629, February 16, 1994) directs
Federal agencies, to the greatest extent practicable and permitted by
law, to make environmental justice part of their mission by identifying
and addressing, as appropriate, disproportionately high
[[Page 63106]]
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations (people of color and/
or Indigenous peoples) and low-income populations. Because this action
approves pre-existing State rules that are no less stringent than
existing Federal requirements and imposes no additional requirements
beyond those imposed by State law, and there are no anticipated
significant adverse human health or environmental effects, this rule is
not subject to Executive Order 12898.
K. Congressional Review Act (CRA)
This action is subject to the CRA, 5 U.S.C. 801 et seq., and EPA
will submit a rule report containing this document and other required
information to each House of the Congress and the Comptroller General
of the United States prior to publication in the Federal Register. A
major rule cannot take effect until 60 days after it is published in
the Federal Register. This action is not a ``major rule'' as defined by
5 U.S.C. 804(2). However, this action will be effective October 1, 2024
because it is a direct final rule.
List of Subjects in 40 CFR Part 282
Environmental Protection, Administrative practice and procedure,
Confidential Business Information, Hazardous substances, Incorporation
by Reference, Insurance, Intergovernmental relations, Penalties,
Petroleum, Reporting and recordkeeping requirements, Surety bonds,
Water supply.
David W. Cash,
Regional Administrator, EPA Region 1.
For the reasons set forth in the preamble, 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. Revise Sec. 282.2 by revising and republishing the introductory
text of paragraph (b) and paragraph (b)(1) to read as follows:
Sec. 282.2 Incorporation by reference.
* * * * *
(b) Copies of materials incorporated by reference may be inspected
at the National Archives and Records Administration (NARA). For
information on the availability of this material at NARA, email:
<a href="/cdn-cgi/l/email-protection#a3c5d18dcacdd0d3c6c0d7cacccde3cdc2d1c28dc4ccd5"><span class="__cf_email__" data-cfemail="6c0a1e4205021f1c090f180503022c020d1e0d420b031a">[email protected]</span></a>, or go to: <a href="http://www.archives.gov/federal-register/crf/ibr-locations">www.archives.gov/federal-register/crf/ibr-locations</a>. Copies of materials incorporated by reference may be
obtained or inspected at the EPA UST Docket, located at 1235 Jefferson
Davis Highway, First Floor, Arlington, VA 22202 (telephone number: 703-
603-9231), or send mail to Mail Code 5305G, 1200 Pennsylvania Ave. NW,
Washington, DC 20460, and at the library of the appropriate Regional
Office listed below:
(1) Region 1 (Connecticut, Maine, Massachusetts, New Hampshire,
Rhode Island, Vermont): 5 Post Office Square, 1st floor, Boston, MA
02109-3912; Phone Number: (617) 918-1303.
* * * * *
0
3. Revise and republish Sec. 282.71 to read as follows:
Sec. 282.71 Massachusetts State-Administered Program.
(a) Massachusetts 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 Massachusetts Department Environmental Protection
(MassDEP), was approved by EPA pursuant to 42 U.S.C. 6991c and 40 CFR
part 281 of this Chapter. EPA approved the Massachusetts program on
March 3, 1995, which was effective on April 17, 1995.
(b) Massachusetts has primary responsibility for administering and
enforcing its federally approved underground storage tank program.
However, EPA retains the authority to exercise its inspection and
enforcement authorities under sections 9005 and 9006 of Subtitle I of
RCRA, 42 U.S.C. 6991d and 6991e, as well as under any other applicable
statutory and regulatory provisions.
(c) To retain program approval, Massachusetts must revise its
approved program to adopt new changes to the federal Subtitle I program
which makes it more stringent, in accordance with section 9004 of RCRA,
42 U.S.C. 6991c and 40 CFR part 281, subpart E. If Massachusetts
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 notification of any change
will be published in the Federal Register.
(d) Massachusetts has final approval for the following elements of
its program application originally submitted to EPA and approved
effective April 17, 1995, and the program revision application approved
by EPA, effective on October 1, 2024.
(1) State statutes and regulations.
(i) Incorporation by reference. The material cited in this
paragraph, and listed in appendix A to part 282, is incorporated by
reference as part of the underground storage tank 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 Massachusetts regulations and statutes that
are incorporated by reference in this paragraph from the State
Bookstore, State House, Room 116, Boston, MA 02133; phone number: (617)
727-2834; Hours: Monday-Friday, 8:45 a.m. to 5:00 p.m.; website:
<a href="https://www.sec.state.ma.us/divisions/bookstore/agencies/310-environmental-protection.htm">https://www.sec.state.ma.us/divisions/bookstore/agencies/310-environmental-protection.htm</a>.
(A) ``EPA Approved Massachusetts Statutory and Regulatory
Requirements Applicable to the Underground Storage Tank Program, March
2024.''
(B) [Reserved]
(ii) Legal basis. EPA evaluated the following statutes and
regulations which are part of the approved program, but they are not
being incorporated by reference for enforcement purposes, and do not
replace Federal authorities:
(A) The statutory provisions include:
(1) Massachusetts General Laws, Chapter 21A, Executive Office of
Energy and Environmental Affairs, section 16, Civil Administrative
Penalties.
(2) Massachusetts General Laws, Chapter 21E, Massachusetts Oil and
Hazardous Material Release Prevention and Response Act (2014), sections
4 through 6, 8 through 12 and 15 through 18.
(3) Massachusetts General Laws, Chapter 21J, Underground Petroleum
Product Cleanup Fund, sections 11 through 14.
(4) Massachusetts General Laws, Chapter 21O, Operation and Removal
of Underground Storage Tanks, section 4, sections 6 through 9.
(B) The regulatory provisions include:
(1) Code of Massachusetts Regulations, 310 CMR 80, Underground
Storage Tank (UST) Systems: 80.11, Submittals to the Department; 80.12
Presumption of Irreparable Harm; 80.13, Department Access to UST
Facilities and Records; 80.48, Delivery Prohibition; 80.50, Enforcement
and Appeals.
(2) Code of Massachusetts Regulations, 310 CMR 40, Massachusetts
Contingency Plan: 40.0010, Effect of Orders and Appeals;
[[Page 63107]]
40.0011, Confidentiality of Information; 40.0013, Presumption of
Irreparable Harm; 40.0019, Violations of Environmental Restrictions;
40.0020, Violations of a Permanent Solution or Temporary Solution;
40.0021, Unlawful Interference with Response Actions; 40.0050, Appeals
of Orders and Permits; 40.0051, Appeals Relative to Administrative
Penalties; 40.0160, Departmental Notice to Responsible Parties and
Potentially Responsible Parties; 40.0165, Department Request for
Information (RFI); 40.0166, Department Right of Entry; 40.0171, Failure
to Perform a Response Action.
(iii) Provisions not incorporated by reference.
The following specifically identified statutory and regulatory
provisions applicable to the Massachusetts' UST program 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) Massachusetts General Laws, Chapter 21E: Massachusetts Oil and
Hazardous Material Release Prevention and Response Act, sections 3A,
3B, sections 13, 14, and 19 through 22; Chapter 21J: Underground
Petroleum Product Cleanup Fund, sections 1 through 10; Chapter 21O:
Operation and Removal of Underground Storage Tanks, section 1, Removal
or relocation of underground flammable or combustible fluid tanks;
permits; abandoned underground residential tanks;
(B) Code of Massachusetts Regulations, Title 310 CMR Chapter 80,
Underground Storage Tank Systems: General Provisions section,
Applicability, 80.04(6)(c), (8) through (12); Design, Construction And
Installation Requirements section, Installation requirements, 80.16(7);
Specifications for Tanks, 80.17(3); Requirements for Turbine,
Intermediate and Dispenser Sumps, 80.20(6); Requirements for Spill
Buckets and Overfill Prevention Equipment, 80.21(1)(d); General
Operating Requirements section, Requirements for Registration and
Reporting, 80.23(1)(b)(2); Requirements for a UST System or UST
Component Emergency Response, 80.25; Requirements for Compliance
Certification section, 80.34; Change-In-Product, Out Of Service Systems
And Closure section, Requirements for Removal and permanent Closure In-
place, 80.43(7); Third Party Inspections section, 80.49; 310 CMR
Chapter 40, Massachusetts Contingency Plan: Subpart B: Organization and
Responsibilities, The Role of Licensed Site Professionals section,
40.0169; and other provisions of Chapter 40.0000 Subparts A-P insofar
as they do not relate to underground storage tanks and with respect to
underground storage tanks insofar as they are broader in scope than the
federal requirements.
(2) Statement of Legal Authority. The Attorney General's
Statements, signed by the Attorney General of Massachusetts on August
18, 1993, March 2, 2017, and December 13, 2022, though not incorporated
by reference, are referenced as part of the approved underground
storage tank program under Subtitle I of RCRA, 42 U.S.C. 6991 et seq.
(3) Demonstration of procedures for adequate enforcement. The
``Demonstration of Procedures for Adequate Enforcement'' submitted as
part of the original application on October 5, 1992, and as part of the
program revision applications for approval on June 21, 2017 and
December 21, 2022, 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 October 5,
1992, and as part of the program revision applications on June 21, 2017
and December 21, 2022, 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 1 and the Massachusetts Department of Environmental
Protection, signed by the EPA Regional Administrator on November 21,
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. Appendix A to part 282 is amended by revising the entry for
Massachusetts as follows:
Appendix A to Part 282--State Requirements Incorporated by Reference in
Part 282 of the Code of Federal Regulations
* * * * *
Massachusetts
(a) The statutory provisions include:
Massachusetts General Laws, Part I, Title II
1. Chapter 21E, Massachusetts Oil and Hazardous Material Release
Prevention and Response Act
Section 1: Short title; section 2: Definitions; section 3:
Implementation; regulations; response actions; section 7: Notice of
release or threat of release.
2. Chapter 21O, Operation and Removal of Underground Storage
Tanks
Section 2: Notification of operation of underground storage
tanks; definitions; section 3: Notification of operation of
underground storage tanks; requirements; exceptions; section 5:
Notification of operation of underground storage tanks; regulations
for requirements and standards of tanks;
(b) The regulatory provisions include:
1. Code of Massachusetts Regulations, Title 310 CMR Chapter 80,
Underground Storage Tank Systems: (effective October 1, 2021)
General Provisions section, 80.01: Authority; 80.02: Purpose;
80.03: Definitions; 80.04: Applicability, (1) through (13), except
(6)(c), and (8) through (12); 80.05: Rules of Construction; 80.06:
Computation of Time; 80.07: Accurate and Timely Submittals to the
Department and Record Keeping; 80.08: Accurate and Complete Record
Keeping; 80.09: Accurate Monitoring; 80.10: Duty to Provide
Information.
Design, Construction, and Installation Requirements section,
80.14: General Requirements; 80.15: General Prohibitions; 80.16:
Installation Requirements, except (7); 80.17: Specifications for
Tanks, except (3); 80.18: Specifications for Regulated Substance
Piping; 80.19: Leak Detection; 80.20: Requirements for Turbine,
Intermediate and Dispenser Sumps, except (6); 80.21: Requirements
for Spill Buckets and Overfill Prevention Equipment, except (1)(d);
80.22: Requirements for Corrosion Protection.
General Operating Requirements section, 80.23: Requirements for
Registration and Reporting, except (1)(b) 2; 80.24: General
Requirements; 80.26: Requirements for Leak Detection Systems; 80.27:
Requirements for Turbine, Intermediate and Dispenser Sumps; 80.28:
Requirements for Spill Buckets and Overfill Prevention Equipment;
80.29: Requirements for Corrosion Protection; 80.30: Requirements
for Compatibility; 80.31: Requirements for Inventory Monitoring;
80.32: Requirements for Tank and Pipe/Line Tightness Testing; 80.33:
Requirements for Repairs and Replacements; 80.35: Requirements for
Periodic Inspections, except (2)(c); 80.36: Requirements for
Recordkeeping;
Operator Training section, 80.37: Class A, B, and C Operator
Requirement and Certifications
Leakage and Release: Response, Reporting and Remediation
section, 80.38: Response to a Release; 80.39: Response to Leakage;
80.40: Reportable Releases.
Change-In-Product, Out of Service Systems and Closure section,
80.41: Requirements for Change-in-product; 80.42: Requirements for
Taking a UST System Temporarily Out-of-service; 80.43: Requirements
for Removal and Permanent Closure In-place, except (7); 80.44:
Requirements for a Tank within a Tank; 80.45: UST Systems
Temporarily Out-of-service for over Five Years; 80.46: Requirements
for Previously Closed-in-place UST Systems; 80.47: Standards for
Cleaning and Closure.
Financial Responsibility section, 80.51: Definitions; 80.52:
Requirements for Amount
[[Page 63108]]
and Scope of Financial Responsibility; 80.53: Allowable Mechanisms
and Combinations of Mechanisms; 80.54: Requirements for Financial
Responsibility Mechanisms; 80.55: Requirements for a Standby Trust;
80.56: Substitution of Financial Assurance Mechanisms by Owner or
Operator; 80.57: Cancellation or Nonrenewal by a Provider of
Financial Assurance; 80.58: Requirements for Reporting by Owner or
Operator; 80.59: Requirements for Recordkeeping; 80.60: Requirements
for Drawing on Financial Assurance Mechanisms; 80.61: Release from
Financial Responsibility Requirements; 80.62: Bankruptcy or Other
Incapacity of Owner or Operator or Provider of Financial Assurance;
80.63: Requirements for Replenishment of Local Government
Guarantees, Letters of Credit, or Surety Bonds.
Requirements for Airport Hydrant Fuel Distribution Systems
section, 80.64: Requirements for Airport Hydrant Fuel Distribution
Systems.
2. Code of Massachusetts Regulations, Title 310 CMR 40:
Massachusetts Contingency Plan (effective March 1, 2024) only
insofar as they pertain to the regulation of underground storage
tanks in Massachusetts and only insofar as they are incorporated by
reference and are not broader in scope than the federal
requirements. Note that reserved sections of 310 CMR 40.0000 et seq.
are not incorporated by reference:
Subpart A: General Provisions, except 40.0010 through 40.0013,
40.0016 through 40.0021, and 40.0030 through 40.0070; Subpart B:
Organization and Responsibilities, except 40.0160 through 40.0171;
Subpart C: Notification of Releases and Threats of Release of Oil
and Hazardous Material; Identification and Listing of Oil and
Hazardous Material; Subpart D: Preliminary Response Actions and Risk
Reduction Measures.
(c) Official copies of 310 CMR 80.00, the Massachusetts
regulations that are incorporated by reference, are available at:
State Bookstore, State House, Room 116, Boston, MA 02133; Phone
number: 617-727-2834; Hours: Monday-Friday, 8:45 a.m. to 5:00 p.m.;
website: <a href="https://www.sec.state.ma.us/divisions/bookstore/agencies/310-environmental-protection.htm">https://www.sec.state.ma.us/divisions/bookstore/agencies/310-environmental-protection.htm</a>.
* * * * *
[FR Doc. 2024-16812 Filed 8-1-24; 8:45 am]
BILLING CODE 6560-50-P
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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.