Underground Storage Tank Program: Approved State Program for Mississippi

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 282

[FRL-5827-1]

Underground Storage Tank Program: Approved State Program for

Mississippi

AGENCY: Environmental Protection Agency (EPA).

ACTION: Immediate final rule.

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SUMMARY: The Resource Conservation and Recovery Act of 1976, as amended

(RCRA), authorizes the Environmental Protection Agency (EPA) to grant

approval to states to operate their underground storage tank programs

in lieu of the federal program. 40 CFR part 282 codifies EPA's decision

to approve state programs and incorporates by reference those

provisions of the state statutes and regulations that will be subject

to EPA's inspection and enforcement authorities under sections 9005 and

9006 of RCRA subtitle I and other applicable statutory and regulatory

provisions. This rule codifies in part 282 the prior approval of

Mississippi's underground storage tank program and incorporates by

reference appropriate provisions of state statutes and regulations.

DATES: This regulation is effective July 22, 1997 , unless EPA

publishes a prior Federal Register document withdrawing this immediate

final rule. All comments on the codification of Mississippi's

underground storage tank program must be received by the close of

business June 23, 1997. The incorporation by reference of certain

publications listed in the regulations is approved by the Director of

the Federal Register, as of July 22, 1997, in accordance with 5 U.S.C.

552(a).

ADDRESSES: Comments may be mailed to the Docket Clerk, U.S. EPA Region

4, Atlanta Federal Center, UST Section, 61 Forsyth Street, SW.,

Atlanta, GA 30303-3104. Comments received by EPA may be inspected in

the public docket, located in the EPA Region 4 Library from 8 a.m. to

4:30 p.m., Monday through Friday, excluding federal holidays.

FOR FURTHER INFORMATION CONTACT: John Mason, U.S. EPA Region 4, Atlanta

Federal Center, UST Section, 61 Forsyth Street, SW., Atlanta, GA 30303-

3104. Phone: John Mason (404) 562-9441.

SUPPLEMENTARY INFORMATION:

Background

Section 9004 of the Resource Conservation and Recovery Act of 1976,

as amended, (RCRA), 42 U.S.C. 6991c, allows the U.S. Environmental

Protection Agency to approve state underground storage tank programs to

operate in the state in lieu of the federal underground storage tank

program. EPA published a Federal Register document announcing its

decision to grant approval to Mississippi on June 11, 1990 (55 FR

23549). Approval was effective on July 11, 1990.

EPA codifies its approval of State programs in 40 CFR part 282 and

incorporates by reference therein the state statutes and regulations

that will be subject to EPA's inspection and enforcement authorities

under sections

[[Page 28365]]

9005 and 9006 of subtitle I of RCRA, 42 U.S.C. 6991d and 6991e, and

other applicable statutory and regulatory provisions. Today's

rulemaking codifies EPA's approval of Mississippi's underground storage

tank program. This codification reflects the state program in effect at

the time EPA granted Mississippi approval under section 9004(a), 42

U.S.C. 6991c(a) for its underground storage tank program. Notice and

opportunity for comment were provided earlier on the Agency's decision

to approve the Mississippi program, and EPA is not now reopening that

decision nor requesting comment on it.

This effort provides clear notice to the public of the scope of the

approved program in each state. By codifying the approved Mississippi

program and by amending the Code of Federal Regulations whenever a new

or different set of requirements is approved in Mississippi, the status

of federally approved requirements of the Mississippi program will be

readily discernible. Only those provisions of the Mississippi

underground storage tank program for which approval has been granted by

EPA will be incorporated by reference for enforcement purposes.

To codify EPA's approval of Mississippi's underground storage tank

program, EPA has added Sec. 282.74 to title 40 of the CFR. Section

282.74 incorporates by reference for enforcement purposes the State's

statutes and regulations. Section 282.74 also references the Attorney

General's Statement, Demonstration of Adequate Enforcement Procedures,

the Program Description, and the Memorandum of Agreement, which are

approved as part of the underground storage tank program under subtitle

I of RCRA.

The Agency retains the authority under sections 9005 and 9006 of

subtitle I of RCRA, 42 U.S.C. 6991d and 6991e, and other applicable

statutory and regulatory provisions to undertake inspections and

enforcement actions in approved states. With respect to such an

enforcement action, the Agency will rely on federal sanctions, federal

inspection authorities, and federal procedures rather than the state

authorized analogues to these provisions. Therefore, the approved

Mississippi enforcement authorities will not be incorporated by

reference. Section 282.74 lists those approved Mississippi authorities

that would fall into this category.

The public also needs to be aware that some provisions of the

State's underground storage tank program are not part of the federally

approved state program. These non-approved provisions are not part of

the RCRA subtitle I program because they are ``broader in scope'' than

subtitle I of RCRA. See 40 CFR 281.12(a)(3)(ii). As a result, state

provisions which are ``broader in scope'' than the federal program are

not incorporated by reference for purposes of enforcement in part 282.

Section 282.74 of the codification simply lists for reference and

clarity the Mississippi statutory and regulatory provisions which are

``broader in scope'' than the federal program and which are not,

therefore, part of the approved program being codified today. ``Broader

in scope'' provisions cannot be enforced by EPA; the State, however,

will continue to enforce such provisions.

Certification Under the Regulatory Flexibility Act

EPA has determined that this codification will not have a

significant economic impact on a substantial number of small entities.

Such small entities which own and/or operate USTs are already subject

to the state requirements authorized by EPA under 40 CFR part 281.

EPA's codification does not impose any additional burdens on these

small entities. This is because EPA's codification would simply result

in an administrative change, rather than a change in the substantive

requirements imposed on small entities.

Therefore, EPA provides the following certification under the

Regulatory Flexibility Act, as amended by the Small Business Regulatory

Enforcement Fairness Act. Pursuant to the provision at 5 U.S.C. 605(b),

I hereby certify that this codification will not have a significant

economic impact on a substantial number of small entities. This

codification incorporates Mississippi's requirements which have been

authorized by EPA under 40 CFR part 281 into the Code of Federal

Regulations. It does not impose any new burdens on small entities. This

rule, therefore, does not require a regulatory flexibility analysis.

Submission to Congress and the General Accounting Office

Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business

Regulatory Enforcement Fairness Act of 1996, EPA submitted a report

containing this rule and other required information to the U.S. Senate,

the U.S. House of Representatives and the Comptroller General of the

General Accounting Office prior to publication of the rule in today's

Federal Register. This rule is not a ``major rule'' as defined by 5

U.S.C. 804(2).

Unfunded Mandates Reform Act

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public

Law 104-4, establishes requirements for Federal agencies to assess the

effects of certain regulatory actions on State, local, and tribal

governments and the private sector. Under sections 202 and 205 of the

UMRA, EPA generally must prepare a written statement of economic and

regulatory alternatives analyses for proposed and final rules with

Federal mandates, as defined by the UMRA, that may result in

expenditures to State, local, and tribal governments, in the aggregate,

or to the private sector, of $100 million or more in any one year. The

section 202 and 205 requirements do not apply to today's action because

it is not a ``Federal mandate'' and because it does not impose annual

costs of $100 million or more.

Today's rule contains no Federal mandates for State, local or

tribal governments or the private sector for two reasons. First,

today's action does not impose new or additional enforceable duties on

any State, local or tribal governments or the private sector because it

merely makes federally enforceable existing requirements with which

regulated entities must already comply under State law. Second, the Act

also generally excludes from the definition of a ``Federal mandate''

duties that arise from participation in a voluntary Federal program.

The requirements being codified today are the result of Mississippi's

voluntary participation in accordance with RCRA Subtitle I.

Even if today's rule did contain a Federal mandate, this rule will

not result in annual expenditures of $100 million or more for State,

local, and/or tribal governments in the aggregate, or the private

sector because today's action merely codifies an existing State program

that EPA previously authorized. Thus, today's rule is not subject to

the requirements of sections 202 and 205 of the UMRA.

The requirements of section 203 of UMRA also do not apply to

today's action. Before EPA establishes any regulatory requirements that

may significantly or uniquely affect small governments, section 203 of

UMRA requires EPA to develop a small government agency plan. This rule

contains no regulatory requirements that might significantly or

uniquely affect small governments. The Agency recognizes that although

small governments may own and/or operate USTs, this codification

incorporates into the Code of Federal Regulations Mississippi's

requirements which have

[[Page 28366]]

already been authorized by EPA under 40 CFR Part 281 and, thus, small

governments are not subject to any additional significant or unique

requirements by virtue of this codification.

Compliance With Executive Order 12866

The Office of Management and Budget has exempted this rule from the

requirements of Section 6 of Executive Order 12866.

Paperwork Reduction Act

Under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., Federal

agencies must consider the paperwork burden imposed by any information

request contained in a proposed or final rule. This rule will not

impose any information requirements upon the regulated community.

List of Subjects In 40 CFR Part 282

Environmental protection, Hazardous substances, Incorporation by

reference, Intergovernmental relations, State program approval,

Underground storage tanks, Water pollution control.

Dated: May 8, 1997.

A. Stanley Meiburg,

Acting Regional Administrator, U.S. EPA Region 4.

For the reasons set forth in the preamble, 40 CFR part 282 is

amended as follows:

PART 282--APPROVED UNDERGROUND STORAGE TANK PROGRAMS

1. The authority citation for part 282 is revised to read as

follows:

Authority: 42 U.S.C. 6912, 6991c, 6991d, and 6991e.

Subpart B--Approved State Programs

2. Subpart B is amended by adding Sec. 282.74 to read as follows:

Sec. 282.74 Mississippi State-Administered Program.

(a) The State of Mississippi is approved to administer and enforce

an underground storage tank program in lieu of the federal program

under subtitle I of the Resource Conservation and Recovery Act of 1976

(RCRA), as amended, 42 U.S.C. 6991 et seq. The State's program, as

administered by the Mississippi Department of Environmental Quality,

was approved by EPA pursuant to 42 U.S.C. 6991c and part 281 of this

chapter. EPA approved the Mississippi program on June 11, 1990 and it

was effective on July 11, 1990.

(b) Mississippi has primary responsibility for enforcing its

underground storage tank program. However, EPA retains the authority to

exercise its inspection and enforcement authorities under sections 9005

and 9006 of subtitle I of RCRA, 42 U.S.C. 6991d and 6991e, as well as

under other statutory and regulatory provisions.

(c) To retain program approval, Mississippi must revise its

approved program to adopt new changes to the federal subtitle I program

which make it more stringent, in accordance with section 9004 of RCRA,

42 U.S.C. 6991c, and 40 CFR part 281, subpart E. If Mississippi obtains

approval for the revised requirements pursuant to section 9004 of RCRA,

42 U.S.C. 6991c, the newly approved statutory and regulatory provisions

will be added to this subpart and notice of any change will be

published in the Federal Register.

(d) Mississippi has final approval for the following elements

submitted to EPA in the State's program application for final approval

and approved by EPA on June 11, 1990. Copies may be obtained from the

Underground Storage Tank Program, Mississippi Department of

Environmental Quality, 2380 Highway 80 West, Jackson, MS 39289-0385.

(1) State statutes and regulations. (i) The provisions cited in

this paragraph are incorporated by reference as part of the underground

storage tank program under subtitle I of RCRA, 42 U.S.C. 6991 et seq.

(A) Mississippi Statutory Requirements Applicable to the

Underground Storage Tank Program, 1996.

(B) Mississippi Regulatory Requirements Applicable to the

Underground Storage Tank Program, 1996.

(ii) The following statutes and regulations are part of the

approved state program, although not incorporated by reference herein

for enforcement purposes.

(A) The statutory provisions include:

(1) Mississippi Code of 1972, Title 49, Sections 49-17-401 through

49-17-435, Underground Storage Tank Act of 1988, as amended.

49-17-415 Obligations of owners and operators of tanks; powers of

commission or representatives

49-17-427 Proceedings before commission; penalties for violations

of Sections 49-17-401 through 49-17-433

49-17-431 Appeal rights

(2) Mississippi Code of 1972, Title 49, Chapter 17, Pollution of

Waters, Streams, and Air.

49-17-17 Powers and duties

49-17-27 Emergency orders; public notice of emergency situations

49-17-31 Proceedings before commission

49-17-33 Hearings

49-17-35 Request for hearing

49-17-41 Administrative appeals; appeals to chancery court; appeals

to supreme court

49-17-43 Penalties

(3) Mississippi Code of 1972, Title 49, Chapter 2, Department of

Environmental Quality.

49-2-9 Commission on Environmental Quality; powers and duties

49-2-13 Powers and duties of executive director

(4) Mississippi Code of 1972, Title 17, Chapter 17, Solid Wastes

Disposal.

17-17-29 Penalties; injunction; recovery of cost of remedial

action; disposition of fines

(B) The regulatory provisions include:

(1) Mississippi Groundwater Protection Trust Fund Regulations.

Section XX Enforcement Actions

(iii) The following statutory and regulatory provisions are broader

in scope than the federal program, are not part of the approved

program, and are not incorporated by reference herein for enforcement

purposes.

(A) The statutory provisions include:

(1) Mississippi Code of 1972, Title 49, Sections 49-17-401 through

49-17-433, Underground Storage Tank Act of 1988.

49-17-429 Certification to install, alter or remove underground

storage tanks

(B) The regulatory provisions include:

(1) Underground Storage Tank Regulations for the Certification of

Persons who Install, Alter, and Remove Underground Storage Tanks.

Section I General Intent

Section II Legal Authority

Section III Definitions

Section IV Applicability

Section V General Requirements

Section VI Certification Requirements

Section VII Testing

Section VIII Certification

Section IX Certification Renewals

Section X Continuing Education

Section XI Lapsed Certification

Section XII Revocation, Denial, and Non-Renewal of Certificates

Section XIII Enforcement and Appeals

Section XIV Property Rights

(2) Mississippi Groundwater Protection Trust Fund Regulations.

Section IV Immediate Response Action Contractor (IRAC) Application

Process

Section V IRAC Application Review

Section VI IRAC Performance Standards

[[Page 28367]]

Section VII Denial of IRAC Applications

Section VIII Removal from the Approved List of IRAC's

Section IX Engineering Response Action Contractor (ERAC)

Application Process

Section X ERAC Submittal of Documentation Requested By the

Department

Section XI ERAC Performance Standards

Section XII Removal from the Approved List of ERAC's

Section XIII Denial of ERAC Applications

(2) Statement of legal authority. (i) ``Attorney General's

Statement for Final Approval'', signed by the State Attorney General on

August 15, 1989, though not incorporated by reference, is referenced as

part of the approved underground storage tank program under subtitle I

of RCRA, 42 U.S.C. 6991 et seq.

(ii) Letter from the Attorney General of Mississippi to EPA, August

15, 1989, though not incorporated by reference, is referenced as part

of the approved underground storage tank program under subtitle I of

RCRA, 42 U.S.C. 6991 et seq.

(3) Demonstration of procedures for adequate enforcement. The

``Demonstration of Procedures for Adequate Enforcement'' submitted as

part of the original application on August 14, 1989, though not

incorporated by reference, is referenced as part of the approved

underground storage tank program under subtitle I of RCRA, 42 U.S.C.

6991 et seq.

(4) Program Description. The program description and any other

material submitted as part of the original application on August 14,

1989, though not incorporated by reference, are referenced as part of

the approved underground storage tank program under subtitle I of RCRA,

42 U.S.C. 6991 et seq.

(5) Memorandum of Agreement. The Memorandum of Agreement between

EPA Region 4 and the Mississippi Department of Environmental Quality,

approved by the EPA Regional Administrator, as part of the delegation

package which received final program approval on June 11, 1990, though

not incorporated by reference, is referenced as part of the approved

underground storage tank program under subtitle I of RCRA, 42 U.S.C.

6991 et seq.

3. Appendix A to Part 282 is amended by adding in alphabetical

order ``Mississippi'' and its listings to read as follows:

Appendix A to Part 282--State Requirements Incorporated by Reference in

Part 282 of the Code of Federal Regulations

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Mississippi

(a) The statutory provisions include:

1. Mississippi Code of 1972, Title 49, Sections 49-17-401

through 49-17-435, Underground Storage Tank Act of 1988, as amended.

49-17-401 Short title

49-17-403 Definitions

49-17-405 Groundwater protection fund; duties of executive

director; liability of tank owners; limitation on provisions of

chapter and section

49-17-407 Environmental protection fee on motor fuels; deposit of

fees; limits on use of fund; third party claims

49-17-409 Reports of contamination incidents; no recourse against

tank owner; exceptions

49-17-411 Compliance with regulations

49-17-413 Rules and Regulations

49-17-417 Groundwater protection advisory committee

49-17-419 Authority of commission to take timely and effective

corrective action; use of funds from pollution emergency fund

49-17-421 Tank regulatory fee

49-17-423 Commission to administer funds from Leaking Underground

Storage Tank Trust Fund

49-17-425 Disclosure of records, reports, and information

49-17-433 Savings clause

49-17-435 Annual report on status of underground storage tank

program

(b) The regulatory provisions include:

1. Technical Standards and Corrective Action Requirements for

Owners and Operators of Underground Storage Tanks.

Subpart A--Program Scope and Interim Prohibition

280.10 Applicability

280.11 Interim Prohibition for deferred UST systems

280.12 Definitions

Subpart B--UST Systems: Design, Construction, Installation, and

Notification

280.20 Performance standards for new UST systems

280.21 Upgrading of existing UST systems

280.22 Notification requirements

Subpart C--General Operating Requirements

280.30 Spill and overfill control

280.31 Operation and maintenance of corrosion protection

280.32 Compatibility

280.33 Repairs allowed

280.34 Reporting and recordkeeping

Subpart D--Release Detection

280.40 General requirements for all UST systems

280.41 Requirements for petroleum UST systems

280.42 Requirements for hazardous substance UST systems

280.43 Methods of release detection for tanks

280.43 Methods of release detection for piping

280.44 Release detection recordkeeping

Subpart E--Release Reporting, Investigation, and Confirmation

280.50 Reporting of suspected releases

280.51 Investigation due to off-site impacts

280.52 Release investigation and confirmation steps

280.53 Reporting and cleanup of spills and overfills

Subpart F--Release Response and Corrective Action for UST Systems

Containing Petroleum or Hazardous Substances

280.60 General

280.61 Initial response

280.62 Initial abatement measures and site check

280.63 Initial site characterization

280.64 Free product removal

280.65 Investigations for soil and groundwater cleanup

280.66 Corrective action plan

280.67 Public participation

Subpart G--Out-of-Service UST Systems and Closure

280.70 Temporary closure

280.71 Permanent closure and changes-in-service

280.72 Assessing the site at closure or change-in-service

280.73 Applicability to previously closed UST systems

280.74 Closure records

2. Financial Responsibility Requirements for Underground Storage

Tanks Containing Petroleum.

280.90 Applicability

280.91 Compliance dates

280.92 Definition of terms

280.93 Amount and scope of required financial responsibility

280.94 Allowable mechanisms and combinations of mechanisms

280.95 Financial test of self-insurance

280.96 Guarantee

280.97 Insurance and risk retention group coverage

280.98 Surety bond

280.99 Letter of credit

280.100 Use of state-required mechanism

280.101 State fund or other state assurance

280.102 Trust fund

280.103 Standby trust fund

280.104 Substitution of financial assurance mechanisms by owner or

operator

280.105 Cancellation or nonrenewal by a provider of financial

assurance

280.106 Reporting by owner or operator

280.107 Recordkeeping

280.108 Drawing on financial assurance mechanisms

280.109 Release from the requirements

280.110 Bankruptcy or other incapacity of owner or operator or

provider of financial assurance

280.111 Replenishment of guarantees, letters of credit, or surety

bonds

3. Mississippi Groundwater Protection Trust Fund Regulations.

Section I General Intent

Section II Legal Authority

Section III Definitions

[[Page 28368]]

Section XIV Eligibility for Reimbursement from the Mississippi

Groundwater Protection Trust Fund

Section XV Reimbursable Costs

Section XVI Funds Disbursement

Section XVII Third Party Claims

Section XVIII Denial of Claims

Section XIX Tank Regulatory Fees

Section XXI Property Rights

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[FR Doc. 97-13215 Filed 5-22-97; 8:45 am]

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