[Federal Register Volume 84, Number 138 (Thursday, July 18, 2019)]
[Rules and Regulations]
[Pages 34313-34319]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-15226]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 282

[EPA-R01-UST-2018-0085; FRL-9996-56-Region 1]


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 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 September 16, 2019, unless EPA receives 
adverse comment by August 19, 2019. 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 certain publications listed in the regulations is approved 
by the Director of the Federal Register, as of September 16, 2019, 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: http://www.regulations.gov. Follow 
the on-line instructions for submitting comments.
    2. Email: [email protected].
    3. Mail: Joan Coyle, RCRA Waste Management, UST, and Pesticides 
Section; Land, Chemicals, and Redevelopment Division; EPA Region 1, 5 
Post Office Square, Suite 100, (Mail Code 07-1), Boston, MA 02109-3912.
    4. Hand Delivery or Courier: Deliver your comments to Joan Coyle, 
RCRA Waste Management, UST, and Pesticides Section; Land, Chemicals, 
and Redevelopment Division; EPA Region 1, 5 Post Office Square, Suite 
100, (Mail Code O07-1), Boston, MA 02109-3912. Such deliveries are only 
accepted during the Regional Office's normal hours of operation.
    Instructions: Direct your comments to Docket ID No. EPA-R01-UST-
2018-0085. EPA's policy is that all comments received will be included 
in the public docket without change and may be available online at 
http://www.regulations.gov, 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 http://www.regulations.gov, or email. The Federal website, http://www.regulations.gov, 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 http://www.regulations.gov, 
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 and also with any disk or CD-ROM you submit. 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.
    Docket: All documents in the docket are listed in the http://www.regulations.gov 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 www.regulations.gov or in hard 
copy.
    IBR and supporting material: You can view and copy the documents 
that form the basis for this codification and associated publicly 
available materials from 8:30 a.m. to 4:00 p.m. Monday through Friday 
at the following location: EPA Region 1 Library, 5 Post Office Square, 
1st floor, Boston, MA 02109-3912; by appointment only; tel: (617) 918-
1990. Interested persons wanting to examine these documents should make

[[Page 34314]]

an appointment with the office at least two weeks in advance.

FOR FURTHER INFORMATION CONTACT: Joan Coyle, (617) 918-1303, 
[email protected].

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?

    The responsibility for administering the underground storage tank 
program was transferred from the Massachusetts Department of Fire 
Services (DFS) to the Massachusetts Department of Environmental 
Protection (MassDEP), effective July 1, 2009. The transfer was 
authorized by the Massachusetts Legislature in Chapter 4 of the Acts of 
2009, which also established M.G.L c 21O, Operation and Removal of 
Underground Storage Tanks. On January 2, 2015, MassDEP adopted UST 
regulations (310 CMR 80.00) that maintained the basic requirements 
established by DFS (Board of Fire Prevention Regulations 527 CMR 9.00) 
and authorized by EPA in 1995.
    On March 17, 1995, effective April 17, 1995 (60 FR 14371), EPA 
approved the State's UST program administered by the 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 approved provisions that EPA could 
enforce. When the new state UST regulations, 310 CMR 80.00, became 
effective on January 2, 2015, the existing DFS regulations that were 
enforceable by EPA were withdrawn. At that time, EPA determined that 
until the State updates, revises, adopts, and receives approval for 
their DEP UST regulations to meet the EPA final rule published on July 
15, 2015 (80 FR 41566), EPA does not have the authority to enforce the 
State's current regulations. For that reason, the EPA seeks to approve 
the revised Massachusetts program at this time and to incorporate by 
reference those provisions that will be subject to EPA's inspection and 
enforcement authorities under sections 9005 and 9006 of RCRA and any 
other applicable statutory provisions. On June 21, 2017, in accordance 
with 40 CFR 281.51(a), Massachusetts submitted a complete application 
for final approval of its UST program revisions corresponding to the 
statutory and regulatory requirements established by Subtitle I of RCRA 
in effect in 1988, not including those outlined in the EPA final rule 
that was published on July 15, 2015. EPA concludes that the application 
and revisions to Massachusetts' UST program are no less stringent than 
the corresponding federal requirements in subpart C of 40 CFR part 281 
promulgated in 1988 and that the Massachusetts program provides for 
adequate enforcement of compliance with these requirements (40 CFR 
281.11(b)). Therefore, the EPA grants Massachusetts approval to operate 
its UST program with the revisions described in the program approval 
application.

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 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, the EPA finalized a rule approving the UST 
program, effective April 17, 1995, to operate in lieu of the Federal 
program. On October 31, 1996, effective December 30, 1996, the EPA 
codified the approved Massachusetts program, incorporating by reference 
the state statutes and regulatory 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.

G. What changes are we approving with today's action?

    On June 21, 2017, in accordance with 40 CFR 281.51(a), 
Massachusetts submitted a complete application for final approval of 
its UST program revisions adopted on January 2, 2015. The EPA now makes 
an immediate final decision, subject to receipt of written comments 
that oppose this action, that Massachusetts' UST program revision 
satisfies all of the requirements necessary to qualify for final 
approval. Therefore, EPA grants Massachusetts final approval for the 
following program changes:

------------------------------------------------------------------------
        Required Federal element           Implementing State authority
------------------------------------------------------------------------
40 CFR Sec.   281.30, New UST Systems    310 CMR 80.04; 80.14; 80.16-
 and Notification.                        80.23.
40 CFR Sec.   281.31, Upgrading          310 CMR 80.19; 80.21; 80.22.
 Existing UST Systems.

[[Page 34315]]

 
40 CFR Sec.   281.32, General Operating  310 CMR 80.03; 80.04; 80.18;
 Requirements.                            80.22; 80.27; 80.28; 80.29;
                                          80.30; 80.33; 80.36.
40 CFR Sec.   281.33, Release Detection  310 CMR 80.03; 80.04; 80.19;
                                          80.26; 80.31.
40 CFR Sec.   281.34, Release            310 CMR 80.26; 80.31-80.33;
 Reporting, Investigation, and            80.38; 80.39.
 Confirmation.
40 CFR Sec.   281.35, Release Response   310 CMR 80.33; 310 CMR 80.38-
 and Corrective Action.                   80.40.
40 CFR Sec.   281.36, Out-of-service     310 CMR 80.42; 80.43; 310 CMR
 Systems and Closure.                     80.46; 80.47.
40 CFR Sec.   281.37, Financial          310 CMR 80.04; 80.36; 80.53-
 Responsibility for USTs Containing       80.57; 80.59; 80.60.
 Petroleum.
40 CFR Sec.   281.40, Legal Authorities  310 CMR 80.10; 80.13.
 for Compliance Monitoring.
40 CFR Sec.   281.41, Legal Authorities  310 CMR 80.50.
 for Enforcement Response.
------------------------------------------------------------------------

    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: No underground tank which has 
been used for the keeping or storage of flammable or combustible fluids 
shall be removed or relocated unless a permit has first been obtained 
from the state fire marshal or the official designated by it to grant 
permits in the city, town or district where such tank is located.
    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 must comply with most of the regulatory 
requirements, except financial responsibility and registration. If CU 
tanks greater than 1,100 gallons were installed before January 1, 1989, 
they must meet most requirements except the leak detection and the 
corrosion protection requirements.
    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.
    Emergency spill or overflow UST systems must be double walled and 
comply with registration and release response requirements. They must 
also be emptied within 72 hours of the introduction of regulated 
substances.
    Owners or operators must maintain, until the UST system is removed 
or permanently closed, a scaled drawing or set of as-built plans 
prepared by the installer or a registered professional engineer, of all 
UST systems installed on and after January 2, 2015, with specific 
information.
    Owners and operators of most UST systems are required to hire 
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.
    Owners and operators must ensure that at least one certified Class 
A, B, and C operator is designated to each UST system.
    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.
    New tanks installed after January 1, 1989, are required to be 
double walled with interstitial monitoring.
    Regulated substance piping installed in UST systems after January 
1, 1989, except European suction systems and siphon lines between 
tanks, are required to be installed with secondary containment.
    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.
    Emergency generator tanks are required to have 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.
    Tanks installed after March 21, 2008, that have a submersible pump 
must be equipped with a turbine sump that is continuously monitored 
with a sump sensor.
    Turbine, intermediate, and dispenser sumps must pass a tightness 
test at installation to ensure the sump is liquid tight.
    Spill buckets must be at least five gallons in capacity, if 
installed after

[[Page 34316]]

January 2, 2015. Spill buckets must pass a tightness test at 
installation.
    On or after January 2, 2015, new or replacement ball float valves 
are prohibited from being used as the primary overfill prevention 
device.
    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.
    Massachusetts requires all UST systems, regardless of the amount of 
regulated product received at one time, to have a spill bucket and an 
overfill prevention device.
    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, and single-walled and double-walled sumps with 
continuous monitoring that do not meet criteria in 80.27(5)(b)1-(b) 3 
must be inspected every 90 days.
    All turbine, intermediate and dispenser sumps shall be tested on or 
before January 2, 2017 to ensure the sump is liquid tight by using 
vacuum or hydrostatic testing.
    Spill buckets must be tested to ensure the spill bucket is liquid 
tight by using vacuum or hydrostatic testing on or before January 2, 
2017 and once every five years thereafter.
    Overfill prevention equipment must be inspected and tested as 
required by the manufacturer's specifications to verify that the 
overfill protection is operational, or if no manufacturer's 
specifications exist, annually.
    If sacrificial or galvanic anode cathodic protection systems test 
results indicate a negative voltage of between -0.85 and -0.90, the 
system shall be tested annually.
    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.
    On and after January 1, 2018, tank and piping/line tightness 
testing shall be capable of detecting a release or leakage of 0.05 
gallon per hour.
    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 statutes and regulations that the EPA 
will enforce under sections 9005 and 9006 of RCRA and any other 
applicable state 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 
regulatory text that includes incorporation by reference. 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, these documents 
generally available through www.regulations.gov 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 that will be 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. These documents are 
not incorporated by reference.

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 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

[[Page 34317]]

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:

A. Executive Order 12866 Regulatory Planning and Review, Executive 
Order 13563: Improving Regulation and Regulatory Review

    The Office of Management and Budget (OMB) has exempted this action 
from the requirements of Executive Order 12866 (58 FR 51735, October 4, 
1993) and 13563 (76 FR 3821, January 21, 2011). 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 is not subject to review by OMB.

B. Executive Order 13771: Reducing Regulations and Controlling 
Regulatory Costs

    This action is not an Executive Order 13771 (82 FR 9339, February 
3, 2017) regulatory action because actions such as today's final 
approval of Massachusetts' revised underground storage tank program 
under RCRA are exempted under Executive Order 12866. Accordingly, I 
certify that this action will not have a significant economic impact on 
a substantial number of small entities under the Regulatory Flexibility 
Act (5 U.S.C. 601 et seq.).

C. Unfunded Mandates Reform Act and 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). For the same reason, 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).

D. 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.

E. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    This action also is not subject to Executive Order 13045 (62 FR 
19885, April 23, 1997), because it is not economically significant, and 
it does not make decisions based on environmental health or safety 
risks.

F. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This rule is not subject to Executive Order 13211, ``Actions 
Concerning Regulations that Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355, May 22, 2001) because it is not a 
``significant regulatory action'' as defined under Executive Order 
12866.

G. National Technology Transfer and Advancement Act

    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 National Technology Transfer and Advancement Act 
of 1995 (15 U.S.C. 272 note) do not apply.

H. Executive Order 12988: Civil Justice Reform

    As required by Section 3 of Executive Order 12988 (61 FR 4729, 
February 7, 1996), in issuing this rule, EPA has taken the necessary 
steps to eliminate drafting errors and ambiguity, minimize potential 
litigation, and provide a clear legal standard for affected conduct.

I. Executive Order 12630: Governmental Actions and Interference With 
Constitutionally Protected Property Rights

    EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 
1988) by examining the takings implications of the rule in accordance 
with the ``Attorney General's Supplemental Guidelines for the 
Evaluation of Risk and Avoidance of Unanticipated Takings'' issued 
under the executive order.

J. Paperwork Reduction Act

    This rule does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 
et seq.). ``Burden'' is defined at 5 CFR 1320.3(b).

K. 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) establishes 
Federal executive policy on environmental justice. Its main provision 
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 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States. Because this rule approves pre-
existing State rules which are at least equivalent to, and 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, 
the rule is not subject to Executive Order 12898.

L. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801-808, generally provides 
that before a rule may take effect, the agency promulgating the rule 
must submit a rule report, which includes a copy of the rule, to each 
House of the Congress and to the Comptroller General of the United 
States. EPA will submit a report containing this document and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication in the Federal Register. A major rule cannot take effect 
until 60 days after it is published in the Federal Register. This

[[Page 34318]]

action is not a ``major rule'' as defined by 5 U.S.C. 804(2). However, 
this action will be effective September 16, 2019 because it is a direct 
final rule.

    Authority: This rule is issued under the authority of Sections 
2002(a), 7004(b), and 9004 of the Solid Waste Disposal Act, as 
amended, 42 U.S.C. 6912, 6991c, 6991d, and 6991e.

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.

    Dated: June 20, 2019.
Deborah A. Szaro,
Acting 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.  282.71 to read as follows:


Sec.  282.71  Massachusetts State-Administered Program.

    (a) The State of 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 September 16, 2019.
    (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 statutes and 
regulations 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: http://www.sec.state.ma.us/spr/sprcat/catidx.htm.
    (A) ``Massachusetts Statutory and Regulatory Requirements 
Applicable to the Underground Storage Tank Program, March 2019.''
    (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, Chapters 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: 80.10 Duty to Provide Information; 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; 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 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; 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;
    (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, 80.16(7); Requirements for 
Compliance Certification Section, 80.34; Class A, B, and C Operator 
Requirements and Certifications, 80.37; Third Party Inspections 
Section, 80.49; 310 CMR Chapter 40, Massachusetts Contingency Plan: 
Subpart B: Organization and Responsibilities, The Role of Licensed

[[Page 34319]]

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, and March 2, 2017, 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 application for approval on June 21, 2017 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 application on June 21, 2017, 
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 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
3. Appendix A to part 282 is amended by revising the entry for 
Massachusetts to read 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 January 2, 2015)
    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; 80.11: Submittals to the 
Department.
    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; 80.18: Specifications for Regulated Substance Piping; 80.19: 
Leak Detection; 80.20: Requirements for Turbine, Intermediate and 
Dispenser Sumps; 80.21: Requirements for Spill Buckets and Overfill 
Prevention Equipment; 80.22: Requirements for Corrosion Protection.
    General Operating Requirements Section, 80.23: Requirements for 
Registration and Reporting; 80.24: General Requirements; 80.25: 
Requirements for a UST system or UST Component Emergency Response; 
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 
Monthly Inspections; 80.36: Requirements for Recordkeeping.
    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; 80.44: Requirements for 
Out-of-use UST Systems; 80.45: Requirements for Bringing Out-of-use 
UST Systems Back into Service; 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 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.
    2. Code of Massachusetts Regulations, Title 310 CMR Chapter 40: 
Massachusetts Contingency Plan (effective April 24, 2014) 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, 40.0019 through 40.0021, 40.0050, 40.0051; Subpart B: 
Organization and Responsibilities, except 40.0160, 40.0165, 40.0166, 
40.0169, 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; Subpart E: Tier Classification 
and Response Action Deadlines; Subpart H: Comprehensive Response 
Actions; Subpart I: Risk Characterization; Subpart J: Permanent and 
Temporary Solutions; Subpart K: Audits; Subpart L: Cost Recovery, 
Lien Hearings and Petitions for Reimbursement of Incurred Costs; 
Subpart M: Administrative Record; Subpart N: Public Involvement and 
Technical Assistance Grants.
    (c) Official copies of the Massachusetts statutes and 
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: http://www.sec.state.ma.us/spr/sprcat/catidx.htm.
* * * * *
[FR Doc. 2019-15226 Filed 7-17-19; 8:45 am]
BILLING CODE 6560-50-P