[Federal Register Volume 62, Number 100 (Friday, May 23, 1997)]
[Rules and Regulations]
[Pages 28364-28368]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-13215]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 282

[FRL-5827-1]


Underground Storage Tank Program: Approved State Program for 
Mississippi

AGENCY: Environmental Protection Agency (EPA).

ACTION: Immediate final rule.

-----------------------------------------------------------------------

SUMMARY: The Resource Conservation and Recovery Act of 1976, as amended 
(RCRA), authorizes the Environmental Protection Agency (EPA) to grant 
approval to states to operate their underground storage tank programs 
in lieu of the federal program. 40 CFR part 282 codifies EPA's decision 
to approve state programs and incorporates by reference those 
provisions of the state statutes and regulations that will be subject 
to EPA's inspection and enforcement authorities under sections 9005 and 
9006 of RCRA subtitle I and other applicable statutory and regulatory 
provisions. This rule codifies in part 282 the prior approval of 
Mississippi's underground storage tank program and incorporates by 
reference appropriate provisions of state statutes and regulations.

DATES: This regulation is effective July 22, 1997 , unless EPA 
publishes a prior Federal Register document withdrawing this immediate 
final rule. All comments on the codification of Mississippi's 
underground storage tank program must be received by the close of 
business June 23, 1997. The incorporation by reference of certain 
publications listed in the regulations is approved by the Director of 
the Federal Register, as of July 22, 1997, in accordance with 5 U.S.C. 
552(a).

ADDRESSES: Comments may be mailed to the Docket Clerk, U.S. EPA Region 
4, Atlanta Federal Center, UST Section, 61 Forsyth Street, SW., 
Atlanta, GA 30303-3104. Comments received by EPA may be inspected in 
the public docket, located in the EPA Region 4 Library from 8 a.m. to 
4:30 p.m., Monday through Friday, excluding federal holidays.

FOR FURTHER INFORMATION CONTACT: John Mason, U.S. EPA Region 4, Atlanta 
Federal Center, UST Section, 61 Forsyth Street, SW., Atlanta, GA 30303-
3104. Phone: John Mason (404) 562-9441.

SUPPLEMENTARY INFORMATION:

Background

    Section 9004 of the Resource Conservation and Recovery Act of 1976, 
as amended, (RCRA), 42 U.S.C. 6991c, allows the U.S. Environmental 
Protection Agency to approve state underground storage tank programs to 
operate in the state in lieu of the federal underground storage tank 
program. EPA published a Federal Register document announcing its 
decision to grant approval to Mississippi on June 11, 1990 (55 FR 
23549). Approval was effective on July 11, 1990.
    EPA codifies its approval of State programs in 40 CFR part 282 and 
incorporates by reference therein the state statutes and regulations 
that will be subject to EPA's inspection and enforcement authorities 
under sections

[[Page 28365]]

9005 and 9006 of subtitle I of RCRA, 42 U.S.C. 6991d and 6991e, and 
other applicable statutory and regulatory provisions. Today's 
rulemaking codifies EPA's approval of Mississippi's underground storage 
tank program. This codification reflects the state program in effect at 
the time EPA granted Mississippi approval under section 9004(a), 42 
U.S.C. 6991c(a) for its underground storage tank program. Notice and 
opportunity for comment were provided earlier on the Agency's decision 
to approve the Mississippi program, and EPA is not now reopening that 
decision nor requesting comment on it.
    This effort provides clear notice to the public of the scope of the 
approved program in each state. By codifying the approved Mississippi 
program and by amending the Code of Federal Regulations whenever a new 
or different set of requirements is approved in Mississippi, the status 
of federally approved requirements of the Mississippi program will be 
readily discernible. Only those provisions of the Mississippi 
underground storage tank program for which approval has been granted by 
EPA will be incorporated by reference for enforcement purposes.
    To codify EPA's approval of Mississippi's underground storage tank 
program, EPA has added Sec. 282.74 to title 40 of the CFR. Section 
282.74 incorporates by reference for enforcement purposes the State's 
statutes and regulations. Section 282.74 also references the Attorney 
General's Statement, Demonstration of Adequate Enforcement Procedures, 
the Program Description, and the Memorandum of Agreement, which are 
approved as part of the underground storage tank program under subtitle 
I of RCRA.
    The Agency retains the authority under sections 9005 and 9006 of 
subtitle I of RCRA, 42 U.S.C. 6991d and 6991e, and other applicable 
statutory and regulatory provisions to undertake inspections and 
enforcement actions in approved states. With respect to such an 
enforcement action, the Agency will rely on federal sanctions, federal 
inspection authorities, and federal procedures rather than the state 
authorized analogues to these provisions. Therefore, the approved 
Mississippi enforcement authorities will not be incorporated by 
reference. Section 282.74 lists those approved Mississippi authorities 
that would fall into this category.
    The public also needs to be aware that some provisions of the 
State's underground storage tank program are not part of the federally 
approved state program. These non-approved provisions are not part of 
the RCRA subtitle I program because they are ``broader in scope'' than 
subtitle I of RCRA. See 40 CFR 281.12(a)(3)(ii). As a result, state 
provisions which are ``broader in scope'' than the federal program are 
not incorporated by reference for purposes of enforcement in part 282. 
Section 282.74 of the codification simply lists for reference and 
clarity the Mississippi statutory and regulatory provisions which are 
``broader in scope'' than the federal program and which are not, 
therefore, part of the approved program being codified today. ``Broader 
in scope'' provisions cannot be enforced by EPA; the State, however, 
will continue to enforce such provisions.

Certification Under the Regulatory Flexibility Act

    EPA has determined that this codification will not have a 
significant economic impact on a substantial number of small entities. 
Such small entities which own and/or operate USTs are already subject 
to the state requirements authorized by EPA under 40 CFR part 281. 
EPA's codification does not impose any additional burdens on these 
small entities. This is because EPA's codification would simply result 
in an administrative change, rather than a change in the substantive 
requirements imposed on small entities.
    Therefore, EPA provides the following certification under the 
Regulatory Flexibility Act, as amended by the Small Business Regulatory 
Enforcement Fairness Act. Pursuant to the provision at 5 U.S.C. 605(b), 
I hereby certify that this codification will not have a significant 
economic impact on a substantial number of small entities. This 
codification incorporates Mississippi's requirements which have been 
authorized by EPA under 40 CFR part 281 into the Code of Federal 
Regulations. It does not impose any new burdens on small entities. This 
rule, therefore, does not require a regulatory flexibility analysis.

Submission to Congress and the General Accounting Office

    Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business 
Regulatory Enforcement Fairness Act of 1996, EPA submitted a report 
containing this rule and other required information to the U.S. Senate, 
the U.S. House of Representatives and the Comptroller General of the 
General Accounting Office prior to publication of the rule in today's 
Federal Register. This rule is not a ``major rule'' as defined by 5 
U.S.C. 804(2).

Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of certain regulatory actions on State, local, and tribal 
governments and the private sector. Under sections 202 and 205 of the 
UMRA, EPA generally must prepare a written statement of economic and 
regulatory alternatives analyses for proposed and final rules with 
Federal mandates, as defined by the UMRA, that may result in 
expenditures to State, local, and tribal governments, in the aggregate, 
or to the private sector, of $100 million or more in any one year. The 
section 202 and 205 requirements do not apply to today's action because 
it is not a ``Federal mandate'' and because it does not impose annual 
costs of $100 million or more.
    Today's rule contains no Federal mandates for State, local or 
tribal governments or the private sector for two reasons. First, 
today's action does not impose new or additional enforceable duties on 
any State, local or tribal governments or the private sector because it 
merely makes federally enforceable existing requirements with which 
regulated entities must already comply under State law. Second, the Act 
also generally excludes from the definition of a ``Federal mandate'' 
duties that arise from participation in a voluntary Federal program. 
The requirements being codified today are the result of Mississippi's 
voluntary participation in accordance with RCRA Subtitle I.
    Even if today's rule did contain a Federal mandate, this rule will 
not result in annual expenditures of $100 million or more for State, 
local, and/or tribal governments in the aggregate, or the private 
sector because today's action merely codifies an existing State program 
that EPA previously authorized. Thus, today's rule is not subject to 
the requirements of sections 202 and 205 of the UMRA.
    The requirements of section 203 of UMRA also do not apply to 
today's action. Before EPA establishes any regulatory requirements that 
may significantly or uniquely affect small governments, section 203 of 
UMRA requires EPA to develop a small government agency plan. This rule 
contains no regulatory requirements that might significantly or 
uniquely affect small governments. The Agency recognizes that although 
small governments may own and/or operate USTs, this codification 
incorporates into the Code of Federal Regulations Mississippi's 
requirements which have

[[Page 28366]]

already been authorized by EPA under 40 CFR Part 281 and, thus, small 
governments are not subject to any additional significant or unique 
requirements by virtue of this codification.

Compliance With Executive Order 12866

    The Office of Management and Budget has exempted this rule from the 
requirements of Section 6 of Executive Order 12866.

Paperwork Reduction Act

    Under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., Federal 
agencies must consider the paperwork burden imposed by any information 
request contained in a proposed or final rule. This rule will not 
impose any information requirements upon the regulated community.

List of Subjects In 40 CFR Part 282

    Environmental protection, Hazardous substances, Incorporation by 
reference, Intergovernmental relations, State program approval, 
Underground storage tanks, Water pollution control.

    Dated: May 8, 1997.
A. Stanley Meiburg,
Acting Regional Administrator, U.S. EPA Region 4.
    For the reasons set forth in the preamble, 40 CFR part 282 is 
amended as follows:

PART 282--APPROVED UNDERGROUND STORAGE TANK PROGRAMS

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

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

Subpart B--Approved State Programs

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


Sec. 282.74  Mississippi State-Administered Program.

    (a) The State of Mississippi is approved to administer and enforce 
an underground storage tank program in lieu of the federal program 
under subtitle I of the Resource Conservation and Recovery Act of 1976 
(RCRA), as amended, 42 U.S.C. 6991 et seq. The State's program, as 
administered by the Mississippi Department of Environmental Quality, 
was approved by EPA pursuant to 42 U.S.C. 6991c and part 281 of this 
chapter. EPA approved the Mississippi program on June 11, 1990 and it 
was effective on July 11, 1990.
    (b) Mississippi has primary responsibility for enforcing its 
underground storage tank program. However, EPA retains the authority to 
exercise its inspection and enforcement authorities under sections 9005 
and 9006 of subtitle I of RCRA, 42 U.S.C. 6991d and 6991e, as well as 
under other statutory and regulatory provisions.
    (c) To retain program approval, Mississippi must revise its 
approved program to adopt new changes to the federal subtitle I program 
which make it more stringent, in accordance with section 9004 of RCRA, 
42 U.S.C. 6991c, and 40 CFR part 281, subpart E. If Mississippi obtains 
approval for the revised requirements pursuant to section 9004 of RCRA, 
42 U.S.C. 6991c, the newly approved statutory and regulatory provisions 
will be added to this subpart and notice of any change will be 
published in the Federal Register.
    (d) Mississippi has final approval for the following elements 
submitted to EPA in the State's program application for final approval 
and approved by EPA on June 11, 1990. Copies may be obtained from the 
Underground Storage Tank Program, Mississippi Department of 
Environmental Quality, 2380 Highway 80 West, Jackson, MS 39289-0385.
    (1) State statutes and regulations. (i) The provisions cited in 
this paragraph are incorporated by reference as part of the underground 
storage tank program under subtitle I of RCRA, 42 U.S.C. 6991 et seq.
    (A) Mississippi Statutory Requirements Applicable to the 
Underground Storage Tank Program, 1996.
    (B) Mississippi Regulatory Requirements Applicable to the 
Underground Storage Tank Program, 1996.
    (ii) The following statutes and regulations are part of the 
approved state program, although not incorporated by reference herein 
for enforcement purposes.
    (A) The statutory provisions include:
    (1) Mississippi Code of 1972, Title 49, Sections 49-17-401 through 
49-17-435, Underground Storage Tank Act of 1988, as amended.

49-17-415  Obligations of owners and operators of tanks; powers of 
commission or representatives
49-17-427  Proceedings before commission; penalties for violations 
of Sections 49-17-401 through 49-17-433
49-17-431  Appeal rights

    (2) Mississippi Code of 1972, Title 49, Chapter 17, Pollution of 
Waters, Streams, and Air.

49-17-17  Powers and duties
49-17-27  Emergency orders; public notice of emergency situations
49-17-31  Proceedings before commission
49-17-33  Hearings
49-17-35  Request for hearing
49-17-41  Administrative appeals; appeals to chancery court; appeals 
to supreme court
49-17-43  Penalties

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

49-2-9  Commission on Environmental Quality; powers and duties
49-2-13  Powers and duties of executive director

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

17-17-29  Penalties; injunction; recovery of cost of remedial 
action; disposition of fines

    (B) The regulatory provisions include:
    (1) Mississippi Groundwater Protection Trust Fund Regulations.

Section XX  Enforcement Actions

    (iii) The following statutory and regulatory provisions are broader 
in scope than the federal program, are not part of the approved 
program, and are not incorporated by reference herein for enforcement 
purposes.
    (A) The statutory provisions include:
    (1) Mississippi Code of 1972, Title 49, Sections 49-17-401 through 
49-17-433, Underground Storage Tank Act of 1988.

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

    (B) The regulatory provisions include:
    (1) Underground Storage Tank Regulations for the Certification of 
Persons who Install, Alter, and Remove Underground Storage Tanks.

Section I  General Intent
Section II  Legal Authority
Section III  Definitions
Section IV  Applicability
Section V  General Requirements
Section VI  Certification Requirements
Section VII  Testing
Section VIII  Certification
Section IX  Certification Renewals
Section X  Continuing Education
Section XI  Lapsed Certification
Section XII  Revocation, Denial, and Non-Renewal of Certificates
Section XIII  Enforcement and Appeals
Section XIV  Property Rights

    (2) Mississippi Groundwater Protection Trust Fund Regulations.

Section IV  Immediate Response Action Contractor (IRAC) Application 
Process
Section V  IRAC Application Review
Section VI  IRAC Performance Standards

[[Page 28367]]

Section VII  Denial of IRAC Applications
Section VIII  Removal from the Approved List of IRAC's
Section IX  Engineering Response Action Contractor (ERAC) 
Application Process
Section X  ERAC Submittal of Documentation Requested By the 
Department
Section XI  ERAC Performance Standards
Section XII  Removal from the Approved List of ERAC's
Section XIII  Denial of ERAC Applications
    (2) Statement of legal authority. (i) ``Attorney General's 
Statement for Final Approval'', signed by the State Attorney General on 
August 15, 1989, though not incorporated by reference, is referenced as 
part of the approved underground storage tank program under subtitle I 
of RCRA, 42 U.S.C. 6991 et seq.
    (ii) Letter from the Attorney General of Mississippi to EPA, August 
15, 1989, though not incorporated by reference, is referenced as part 
of the approved underground storage tank program under subtitle I of 
RCRA, 42 U.S.C. 6991 et seq.
    (3) Demonstration of procedures for adequate enforcement. The 
``Demonstration of Procedures for Adequate Enforcement'' submitted as 
part of the original application on August 14, 1989, though not 
incorporated by reference, is referenced as part of the approved 
underground storage tank program under subtitle I of RCRA, 42 U.S.C. 
6991 et seq.
    (4) Program Description. The program description and any other 
material submitted as part of the original application on August 14, 
1989, though not incorporated by reference, are referenced as part of 
the approved underground storage tank program under subtitle I of RCRA, 
42 U.S.C. 6991 et seq.
    (5) Memorandum of Agreement. The Memorandum of Agreement between 
EPA Region 4 and the Mississippi Department of Environmental Quality, 
approved by the EPA Regional Administrator, as part of the delegation 
package which received final program approval on June 11, 1990, though 
not incorporated by reference, is referenced as part of the approved 
underground storage tank program under subtitle I of RCRA, 42 U.S.C. 
6991 et seq.
    3. Appendix A to Part 282 is amended by adding in alphabetical 
order ``Mississippi'' and its listings to read as follows:

Appendix A to Part 282--State Requirements Incorporated by Reference in 
Part 282 of the Code of Federal Regulations

* * * * *

Mississippi

    (a) The statutory provisions include:
    1. Mississippi Code of 1972, Title 49, Sections 49-17-401 
through 49-17-435, Underground Storage Tank Act of 1988, as amended.

49-17-401  Short title
49-17-403  Definitions
49-17-405  Groundwater protection fund; duties of executive 
director; liability of tank owners; limitation on provisions of 
chapter and section
49-17-407  Environmental protection fee on motor fuels; deposit of 
fees; limits on use of fund; third party claims
49-17-409  Reports of contamination incidents; no recourse against 
tank owner; exceptions
49-17-411  Compliance with regulations
49-17-413  Rules and Regulations
49-17-417  Groundwater protection advisory committee
49-17-419  Authority of commission to take timely and effective 
corrective action; use of funds from pollution emergency fund
49-17-421  Tank regulatory fee
49-17-423  Commission to administer funds from Leaking Underground 
Storage Tank Trust Fund
49-17-425  Disclosure of records, reports, and information
49-17-433  Savings clause
49-17-435  Annual report on status of underground storage tank 
program

    (b) The regulatory provisions include:
    1. Technical Standards and Corrective Action Requirements for 
Owners and Operators of Underground Storage Tanks.

Subpart A--Program Scope and Interim Prohibition

280.10  Applicability
280.11  Interim Prohibition for deferred UST systems
280.12  Definitions

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

280.20  Performance standards for new UST systems
280.21  Upgrading of existing UST systems
280.22  Notification requirements

Subpart C--General Operating Requirements

280.30  Spill and overfill control
280.31  Operation and maintenance of corrosion protection
280.32  Compatibility
280.33  Repairs allowed
280.34  Reporting and recordkeeping

Subpart D--Release Detection

280.40  General requirements for all UST systems
280.41  Requirements for petroleum UST systems
280.42  Requirements for hazardous substance UST systems
280.43  Methods of release detection for tanks
280.43  Methods of release detection for piping
280.44  Release detection recordkeeping

Subpart E--Release Reporting, Investigation, and Confirmation

280.50  Reporting of suspected releases
280.51  Investigation due to off-site impacts
280.52  Release investigation and confirmation steps
280.53  Reporting and cleanup of spills and overfills
Subpart F--Release Response and Corrective Action for UST Systems 
Containing Petroleum or Hazardous Substances
280.60  General
280.61  Initial response
280.62  Initial abatement measures and site check
280.63  Initial site characterization
280.64  Free product removal
280.65  Investigations for soil and groundwater cleanup
280.66  Corrective action plan
280.67  Public participation

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

280.70  Temporary closure
280.71  Permanent closure and changes-in-service
280.72  Assessing the site at closure or change-in-service
280.73  Applicability to previously closed UST systems
280.74  Closure records

    2. Financial Responsibility Requirements for Underground Storage 
Tanks Containing Petroleum.

280.90  Applicability
280.91  Compliance dates
280.92  Definition of terms
280.93  Amount and scope of required financial responsibility
280.94  Allowable mechanisms and combinations of mechanisms
280.95  Financial test of self-insurance
280.96  Guarantee
280.97  Insurance and risk retention group coverage
280.98  Surety bond
280.99  Letter of credit
280.100  Use of state-required mechanism
280.101  State fund or other state assurance
280.102  Trust fund
280.103  Standby trust fund
280.104  Substitution of financial assurance mechanisms by owner or 
operator
280.105  Cancellation or nonrenewal by a provider of financial 
assurance
280.106  Reporting by owner or operator
280.107  Recordkeeping
280.108  Drawing on financial assurance mechanisms
280.109  Release from the requirements
280.110  Bankruptcy or other incapacity of owner or operator or 
provider of financial assurance
280.111  Replenishment of guarantees, letters of credit, or surety 
bonds

    3. Mississippi Groundwater Protection Trust Fund Regulations.

Section I  General Intent
Section II  Legal Authority
Section III  Definitions

[[Page 28368]]

Section XIV  Eligibility for Reimbursement from the Mississippi 
Groundwater Protection Trust Fund
Section XV  Reimbursable Costs
Section XVI  Funds Disbursement
Section XVII  Third Party Claims
Section XVIII  Denial of Claims
Section XIX  Tank Regulatory Fees
Section XXI  Property Rights
* * * * *
[FR Doc. 97-13215 Filed 5-22-97; 8:45 am]
BILLING CODE 6560-50-P