[Federal Register Volume 84, Number 158 (Thursday, August 15, 2019)]
[Rules and Regulations]
[Pages 41636-41643]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-17408]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 282

[EPA-R08-UST-2018-0827; FRL-9997-44-Region 8]


Montana: 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 Montana's Underground 
Storage Tank (UST) program submitted by the State. The EPA has 
determined that these revisions satisfy all requirements needed for 
program approval. This action also codifies the EPA's approval of 
Montana's State program and incorporates by reference those provisions 
of the State's statutes and regulations that we have determined meet 
the requirements for approval. The EPA continues to retain its 
inspection and enforcement authorities under sections 9005 and 9006 of 
RCRA Subtitle I and other applicable statutory and regulatory 
provisions in the State of Montana.

DATES: This rule is effective October 15, 2019, unless the EPA receives 
adverse comment by September 16, 2019. If the EPA receives adverse 
comment, it will publish a timely withdrawal in the Federal Register 
informing the public that the rule will not take effect. The 
incorporation by reference of certain publications listed in the 
regulations is approved by the Director of the Federal Register, as of 
October 15, 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: https://www.regulations.gov. Follow 
the online instructions for submitting comments.
    2. Email: [email protected].
    3. Mail: Theresa Martella, Region 8, Environmental Scientist, RCRA 
Branch, (8LCR-RC), Land, Chemicals and Redevelopment Division, EPA 
Region 8, 1595 Wynkoop Street, Denver, Colorado 80202-1129.
    4. Hand Delivery or Courier: Deliver your comments to Theresa 
Martella, Region 8, Environmental Scientist, RCRA Branch, (8LCR-RC), 
Land, Chemicals and Redevelopment Division, 1595 Wynkoop Street, 
Denver, Colorado 80202-1129.
    Instructions: Direct your comments to Docket ID No. EPA-R08-UST-
2018-0827. The EPA's policy is that all comments received will be 
included in the public docket without change and may be available 
online at https://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 https://www.regulations.gov or email. The Federal https://www.regulations.gov 
website is an ``anonymous access'' system, which means the EPA will not 
know your identity or contact information unless you provide it in the 
body of your comment. If you send an email comment directly to the EPA 
without going through https://www.regulations.gov, your email address 
will be automatically captured and included as part of the comment

[[Page 41637]]

that is placed in the public docket and made available on the internet. 
If you submit an electronic comment, the EPA recommends that you 
include your name and other contact information in the body of your 
comment and with any disk or CD-ROM you submit. If the EPA cannot read 
your comment due to technical difficulties and cannot contact you for 
clarification, the 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.
    You can view and copy the documents that form the basis for this 
action and associated publicly available materials from 8:30 a.m. to 
4:00 p.m., Monday through Friday, at the following location: EPA Region 
8, 1595 Wynkoop Street, Denver, Colorado 80202-1129, phone number (303) 
312-6329. Interested persons wanting to examine these documents should 
make an appointment with the office at least two days in advance.

FOR FURTHER INFORMATION CONTACT: Theresa Martella, (303) 312-6329, 
[email protected]. To inspect the hard copy materials, please 
schedule an appointment with Theresa Martella at (303) 312-6329.

SUPPLEMENTARY INFORMATION:

I. Approval of Revisions to Montana's Underground Storage Tank Program

A. Why are revisions to State programs necessary?

    States which 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 underground storage tank 
program. When the EPA makes revisions to the regulations that govern 
the Federal UST program, states must revise their programs to comply 
with the updated regulations and submit these revisions to the EPA for 
approval. Most commonly, states must change their programs because of 
changes to the EPA's regulations in 40 Code of Federal Regulations 
(CFR) part 280. States can also initiate changes on their own to their 
underground storage tank program, and these changes must then be 
approved by the EPA.

B. What decisions has the EPA made in this rule?

    On November 13, 2018, in accordance with 40 CFR 281.51(a), Montana 
submitted a complete program revision application seeking the EPA 
approval for its UST program revisions (State Application). Montana's 
revisions correspond to the EPA final rule published on July 15, 2015 
(80 FR 41566), which revised the 1988 Federal UST regulations and the 
1988 State Program Approval (SPA) regulations (2015 Federal Revisions). 
As required by 40 CFR 281.20, the State Application contains the 
following: A transmittal letter from the Governor requesting approval, 
a description of the program and operating procedures, a demonstration 
of the State's procedures to ensure adequate enforcement, a Memorandum 
of Agreement outlining the roles and responsibilities of the EPA and 
the implementing agency, a statement of certification from the Attorney 
General, and copies of all relevant State statutes and regulations. We 
have reviewed the State Application and determined that the revisions 
to Montana's UST program are equivalent to, consistent with, and no 
less stringent than the corresponding Federal requirements in subpart C 
of 40 CFR part 281, and that the Montana program provides for adequate 
enforcement of compliance (40 CFR 281.11(b)). Therefore, the EPA grants 
Montana final approval to operate its UST program with the changes 
described in the program revision application and as outlined below in 
section I.G of this document.

C. What is the effect of this action on the regulated community?

    This action does not impose additional requirements on the 
regulated community because the regulations being approved by this rule 
are already in effect in the State of Montana and are not changed by 
this action. This action merely approves the existing State regulations 
as meeting the federal requirements and renders them federally 
enforceable.

D. Why is the EPA using a direct final rule?

    The EPA is publishing this direct final rule without a prior 
proposed rule because we view this as a noncontroversial action, and we 
anticipate no adverse comment. Montana did not receive any comments 
during its comment period when the rules and regulations being 
considered were proposed at the State level.

E. What happens if the EPA receives comments that oppose this action?

    Along with this direct final rule, the EPA is publishing a separate 
document in the ``Proposed Rules'' section of this Federal Register 
that serves as the proposal to approve the State's UST program 
revisions and provides an opportunity for public comment. If the EPA 
receives comments that oppose this approval, the EPA will withdraw this 
direct final rule by publishing a document in the Federal Register 
before it becomes effective. The EPA will base any further decision on 
approval of the State Application after considering all comments 
received during the comment period. The EPA will then address all 
public comments in a later final rule. You may not have another 
opportunity to comment. If you want to comment on this approval, you 
must do so at this time.

F. For what has Montana previously been approved?

    On March 4, 1996, the EPA finalized a rule approving the UST 
program that Montana proposed to administer in lieu of the Federal UST 
program. The State's program has not previously been codified.

G. What changes are we approving with this action and what standards do 
we use for review?

    In order to be approved, each State program application must meet 
the general requirements in 40 CFR 281.11, and specific requirements in 
40 CFR subpart B (Components of a Program Application); subpart C 
(Criteria for No Less Stringent); and subpart D (Adequate Enforcement 
of Compliance). This also is true for proposed revisions to approved 
State programs.
    As more fully described below, the State has made the changes to 
its approved UST program to reflect the 2015 Federal Revisions. The EPA 
is approving the State's changes because they are equivalent to, 
consistent with, and no less stringent than the Federal UST program and 
because the EPA has confirmed that the Montana UST program will 
continue to provide for adequate enforcement of compliance as described 
in 40 CFR 281.11(b) and part 281, subpart D after this approval.
    The Montana Department of Environmental Quality (Department) is the 
lead implementing agency for the UST program in Montana, except in 
Indian country.
    The Department continues to have broad statutory authority to 
regulate the installation, operation, maintenance, and closure of USTs, 
as well as to address releases from USTs under Montana Code Annotated 
(MCA) (2017), Title 75 Environmental Protection, Chapter 11 Underground 
Storage Tanks, part 5 Montana Underground Storage Tank Act, selected 
provisions from sections 75-11-501, et seq. and part 2 Montana 
Underground Storage Tank

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Installer and Inspector Licensing and Permitting Act, selected 
provisions from sections 75-11-201, et seq. The Montana UST Program 
gets its enforcement authority from the powers of the Department of 
Environmental Quality found in MCA sections 75-11-203(2), (3), (6), and 
(7); 75-11-204(1) introductory paragraph; 75-11-218 through 75-11-220; 
75-11-223; 75-11-224; 75-11-232; 75-11-504; 75-11-505(1), except 
(1)(f); 75-11-510 through 75-11-521; 75-11-525; and 75-11-526. Under 
MCA 75-11-510(2)(a), an employee or agent of the Department has the 
authority to enter and inspect any property premises or place where 
regulated substances are stored at any reasonable time. In the case of 
a release, MCA section 75-11-510 provides employees or agents of the 
Department the authority to take such action as necessary, including 
the authority to enter any property, premises or place where an UST is 
located for inspection, in order to conduct sampling and to have access 
to records. MCA section 75-11-505(1)(c) provides the Department with 
rulemaking authority for corrective action. Notice of violation may be 
issued and penalties for noncompliance with Montana's UST Act may be 
assessed under MCA section 75-11-512. Additionally, Montana's 
enforcement program has a policy with respect to Spill Management and 
Reporting that relies, for enforcement purposes, on the following 
statutes and the administrative rules adopted thereunder: The 
Comprehensive Environmental Cleanup and Responsibility Act, MCA section 
75-10-701, et seq.; the Hazardous Waste Act, MCA section 75-10-401, et 
seq.; the Solid Waste Management Act MCA section 75-10-201, et seq.; 
and, the Water Quality Act MCA section 75-5-101, et seq. The State also 
includes requirements for delivery prohibitions in the event of 
noncompliance as described in Administrative Rules of Montana (ARM) 
section 17.56.312.
    Specific authorities to regulate the installation, operation, 
maintenance, and closure of USTs, as well as UST releases, are found 
under MCA 75-11-505, in addition to the regulatory provisions of ARM 
Chapter 17.56 Underground Storage Tanks Petroleum and Chemical 
Substance, as amended effective October 6, 2018; Reporting and 
recordkeeping requirements are found under ARM section 17.56.305. The 
aforementioned statutory and regulatory sections satisfy the 
requirements of 40 CFR 281.40 and 281.41.
    Through a Memorandum of Agreement between the State of Montana and 
the EPA, signed by the EPA Region 8 Regional Administrator on September 
25, 2018, the State maintains procedures for receiving and ensuring 
proper consideration of information about violations submitted by the 
public. The State agrees to comply with public participation provisions 
contained in 40 CFR 281.42, including the provision that the State will 
not oppose intervention under Rule 24 of the Montana Code Annotated 
Title 25 Civil Procedure, Chapter 20 Rules of Civil Procedure, on the 
grounds that the applicant's interest is adequately represented by the 
State and the right of aggrieved parties to be admitted as party to 
agency proceeding. Montana has met the public participation 
requirements found in 40 CFR 281.42.
    To qualify for final approval, revisions to a State's program must 
be ``equivalent to, consistent with, and no less stringent'' than the 
2015 Federal Revisions. In the 2015 Federal Revisions, the EPA 
addressed UST systems deferred in the 1988 UST regulations and added, 
among other things, new operation and maintenance requirements, 
secondary containment requirements for new and replaced tanks and 
piping, operator training requirements, and a requirement to ensure UST 
system compatibility before storing certain biofuel blends. In 
addition, the EPA removed past deferrals for emergency generator tanks, 
field constructed tanks, and airport hydrant systems. The EPA analyzes 
revisions to approved State programs pursuant to the criteria found in 
40 CFR 281.30 through 281.39.
    The Department has revised its regulations to help ensure that the 
State's UST program revisions are equivalent to, consistent with, and 
no less stringent than the 2015 Federal Revisions. In particular, the 
Department has amended the Administrative Rules of Montana to 
incorporate the revised requirements of 40 CFR part 280, including the 
requirements added by the 2015 Federal Revisions. The State, therefore, 
has ensured that the criteria found in 40 CFR 281.30 through 281.38 are 
met.
    Title 40 CFR 281.39 describes the State operator training 
requirements that must be met in order to be considered equivalent to, 
consistent with, and no less stringent than Federal requirements. 
Montana has promulgated and is implementing its own operator training 
provisions under Administrative Rules of Montana section 17.56.1501, et 
seq. After a thorough review, the EPA has determined that Montana's 
operator training requirements are equivalent to, consistent with, and 
no less stringent than Federal requirements.
    As part of the State Application, the Acting Chief Counsel of the 
Montana Department of Environmental Quality certified that the laws 
provide adequate authority to carry out the ``no less stringent'' 
technical requirements submitted by the State in order to meet the 
criteria in 40 CFR 281.30 through 281.39. The EPA is relying on this 
certification in addition to the analysis submitted by the State in 
making our determination.
    For further information on the EPA's analysis of the State's 
application, see the chart in the Technical Support Document (TSD) 
contained in the docket for this rulemaking.

H. Where are the revised rules different from the Federal rules?

Broader in Scope Provisions
    Where an approved State program has a greater scope of coverage 
than required by Federal law, the additional coverage is not part of 
the federally approved program and is not federally enforceable (40 CFR 
281.12(a)(3)(ii)). The following regulatory requirements are considered 
broader in coverage than the Federal program. These regulations are not 
required by Federal regulation and so are implemented by the State in 
addition to the federally approved program:
    Administrative Rules of Montana (ARM) Title 17 Environmental 
Quality, chapter 56 Underground Storage Tanks Petroleum and Chemical 
Substances, section 17.56.102(3)(e), because the State applies the 
provision to aboveground storage tanks (ASTs).
    Sections 17.56.903(3) and 17.56.1001 are broader in scope because 
fees are not imposed by the Federal program.
    Section 17.56.402(1)(a)(iii) is broader in scope because the State 
regulates farm and residential tanks used for storing motor fuel for 
noncommercial purposes and heating oil for consumptive use, and 
emergency power generator tanks by requiring yearly tank gauging, which 
the Federal program does not require.
    Sections 17.56.308, 17.56.310, 17.56.701(4), 17.56.1502(1), and 
subchapter 13, sections 1301 through 1309 are broader in scope because 
these regulations contain provisions relative to State-only operating 
permits not required by the Federal program.
    Subchapter 14, sections 1401 through 1426, is broader in scope 
because the State requires State-only licensing of UST installers not 
required by the Federal program.
    The following statutory provisions are considered broader in scope 
than the

[[Page 41639]]

Federal program, as these State-only program elements do not have 
counterparts in the Federal program and are implemented by the State in 
addition to the federally approved program:
    Under Montana Code Annotated Chapter 75-11:
    Sections 75-11-203(1), (4), (5), (8)-(10), (14), and (15); 75-11-
204(1)(a)-(h) and (2); 75-11-209 through 75-11-214; 75-11-225 through 
75-11-227; 75-11-503(8) ``underground storage tank'' or ``tank'' as it 
applies to aboveground storage tanks; 75-11-505(1)(f); and 75-11-509.
More Stringent Provisions
    Where an approved State program includes requirements that are 
considered more stringent than required by Federal law, the more 
stringent requirements become part of the federally approved program 
(40 CFR 281.12(a)(3)(i)).
    The following regulatory requirements are considered more stringent 
than the Federal program, and on approval, they become part of the 
federally approved program and are federally enforceable:
    Under Administrative Rules of Montana (ARM) 17.56:
    At section 17.56.104, Montana subjects very small tanks (i.e., 
those 100 gallons or less) to standards that these small tanks are not 
subjected to under the Federal program, making the State requirements 
more stringent in this respect.
    Montana does not have an analog to the following Federal 
requirements which allow certain USTs or UST systems to be installed 
without or with limited corrosion protection in specific circumstances: 
Sec. Sec.  280.11(b), 280.20(a)(4), 280.20(b)(3), 280.34(b)(1). Because 
Montana requires that all UST systems be installed with corrosion 
protection, the State is more stringent than the Federal program for 
these requirements.
    At section 17.56.304(3)(c) and (d), Montana includes additional 
State-only requirements regarding manufacturer warranty and the 
possibility of excavation of an UST for repair that are not in the 
Federal UST regulations; therefore, the State is more stringent than 
the Federal program.
    At the introductory paragraphs of sections 17.56.407(1)(e) and 
(1)(f), Montana includes the requirement that vapor and groundwater 
monitoring as forms of release detection, respectively, will only be 
allowed until October 13, 2023. These limitations are not found in the 
Federal program, making Montana more stringent.
    At 17.56.407(1)(d)(ii), (1)(e)(viii), (1)(f)(x), (1)(g)(i)(B) and 
17.56.408(2), the State requires the use of a leak-detection console to 
temporarily disable pumping systems attached to tanks and piping that 
have failed a leak test, making the State provision more stringent than 
the Federal program.
    At 17.56.408(3) and (4), Montana requires piping for UST systems 
installed after the (compliance deadline) to employ interstitial 
monitoring as the primary release detection method; whereas, the 
Federal program allows other methods, making the State provision more 
stringent than the Federal program.
    At 17.56.409(1)(d) through (1)(f), the State has additional 
recordkeeping requirements associated with release detection, making 
the State provision more stringent than the Federal program.
    At 17.56.602(1)(d), Montana requires that a free product removal 
report be submitted within 30 days; whereas, the Federal program allows 
up to 45 days for this submittal. This makes the State provision more 
stringent than the Federal program.
    At 17.56.701(2) and 17.56-702(2), Montana has additional, more 
stringent closure requirements not found in the Federal program: 
Requiring temporarily closed tanks to be emptied and not allowing the 
closure in place of permanently closed tanks, respectively.
    At 17.56.825, Montana does not allow owners/operators of UST 
facilities undergoing a change in service to use this as a factor to 
release those individuals from financial responsibility requirements as 
they would be under the Federal program, making the State provision 
more stringent than the Federal program.
    At 17.56.1504, Montana requires that facilities' training records 
be kept for at least 3 years after the trained individual served as an 
operator at a facility, in lieu of the Federal requirements that 
facilities keep these records only as long as the individuals are 
designated as an operator; in other words, a timeline that ends when an 
individual leaves a particular facility.
    At 17.56.205, Montana has a State-only provision that requires 
anti-siphon equipment in certain circumstances to prevent releases at 
facilities, making the State provision more stringent than the Federal 
program.
    At 17.56.506 Montana requires an additional State-only notification 
for confirmed releases in addition to the federally mandated suspected 
release and initial abatement reporting of 280 subparts E and F, making 
the State provision more stringent than the Federal program.

I. How does this action affect Indian country (18 U.S.C. 1151) in 
Montana?

    The EPA's approval of Montana's program, including this action, 
does not extend to Indian country as defined in 18 U.S.C. 1151. Indian 
country generally includes lands within the exterior boundaries of the 
following Indian reservations located within Montana: The Blackfeet, 
Crow, Flathead, Fort Belknap, Fort Peck, Northern Cheyenne and Rocky 
Boys, any land held in trust by the United States for an Indian tribe, 
and any other areas that are ``Indian country'' within the meaning of 
18 U.S.C. 1151. Any lands removed from an Indian reservation status by 
Federal court action are not considered reservation lands, even if 
located within the exterior boundaries of an Indian reservation. The 
EPA will retain responsibilities under RCRA for underground storage 
tanks in Indian country. Therefore, this action has no effect in Indian 
country. See 40 CFR 281.12(a)(2).

II. Codification

A. What is codification?

    Codification is the process of placing a State's statutes and 
regulations that comprise the State's approved UST program into the 
CFR. section 9004(b) of RCRA, as amended, allows the EPA to approve 
State UST programs to operate in lieu of the Federal program. The EPA 
codifies its authorization of State programs in 40 CFR part 282 and 
incorporates by reference State regulations that the EPA will enforce 
under sections 9005 and 9006 of RCRA and any other applicable statutory 
provisions. The incorporation by reference of State authorized programs 
in the CFR should substantially enhance the public's ability to discern 
the current status of the approved State program and State requirements 
that can be federally enforced. This effort provides clear notice to 
the public of the scope of the approved program in each State.

B. What is the history of codification of Montana's UST program?

    The EPA has not previously incorporated by reference and codified 
Montana's approved UST program. Through this action, the EPA is 
incorporating by reference and codifying Montana's State program in 40 
CFR 282.76 to include the program and the approved revisions.

[[Page 41640]]

C. What codification decisions have we made in this rule?

    In this rule we are finalizing the Federal regulatory text that 
incorporates by reference the federally authorized Montana UST program. 
In accordance with the requirements of 1 CFR 51.5, we are finalizing 
the incorporation by reference of the Montana rules 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 
https://www.regulations.gov and/or in hard copy at the EPA Region 8 
office (see the ADDRESSES section of this preamble for more 
information).
    One purpose of this Federal Register document is to codify 
Montana's approved UST program. The codification reflects the State 
program that would be in effect at the time the EPA's approved 
revisions to the Montana UST program addressed in this direct final 
rule become final. If, however, the EPA receives substantive comment on 
the proposed rule, then this codification will not take effect, and the 
State rules that are approved after the EPA considers public comment 
will be codified instead. By codifying the approved Montana program and 
by amending the Code of Federal Regulations (CFR), the public will more 
easily be able to discern the status of the federally approved 
requirements of the Montana program.
    The EPA is incorporating by reference the Montana approved UST 
program in 40 CFR 282.76. Section 282.76(d)(1)(i)(A) incorporates by 
reference for enforcement purposes the State's regulations. Section 
282.76 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 EPA's codification of the federally authorized 
State UST program on enforcement?

    The EPA retains the authority under sections 9003(h), 9005 and 9006 
of Subtitle I of RCRA, 42 U.S.C. 6991b(h), 6991d and 6991e, and other 
applicable statutory and regulatory provisions to undertake corrective 
action, inspections, and enforcement actions, and to issue orders in 
approved states. If the EPA determines it will take such actions in 
Montana, the EPA will rely on Federal sanctions, Federal inspection 
authorities, and other Federal procedures, rather than the State 
analogs. Therefore, though the EPA has approved the State procedures 
listed in 40 CFR 282.76(d)(1)(ii), the EPA is not incorporating by 
reference Montana's procedural and enforcement authorities.

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 coverage'' than Subtitle I of RCRA. Title 
40 CFR 281.12(a)(3)(ii) states that where an approved State program has 
provisions that are broader in coverage than the Federal program, those 
provisions are not a part of the federally approved program. As a 
result, state provisions which are ``broader in coverage'' than the 
Federal program are not incorporated by reference for purposes of 
enforcement in part 282. Title 40 CFR 282.76(d)(1)(iii) lists for 
reference and clarity the Montana statutory and regulatory provisions 
which are ``broader in coverage'' than the Federal program and which 
are not, therefore, part of the approved program being codified. 
Provisions that are ``broader in coverage'' cannot be enforced by EPA. 
The State, however, will continue to implement and enforce such 
provisions under State law.

III. Statutory and Executive Order (E.O.) Reviews

    This action only applies to Montana's UST Program requirements 
pursuant to RCRA section 9004 and imposes no requirements other than 
those imposed by State law. It complies with applicable E.O.s 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, Oct. 4, 
1993) and 13563 (76 FR 3821, Jan. 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 this final approval 
of Montana's 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, Aug. 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 is not subject to Executive Order 13045 (62 FR 19885, 
Apr. 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 (66 FR 28355, May 
22, 2001) because it is not a ``significant regulatory action'' as 
defined under Executive Order 12866.

[[Page 41641]]

G. National Technology Transfer and Advancement Act

    Under RCRA section 9004(b), the 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 the 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, the 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

    The EPA has complied with Executive Order 12630 (53 FR 8859, Mar. 
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, Feb. 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, consistent with, 
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. The EPA will submit a report containing this document and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication in the Federal Register. A major rule cannot take effect 
until 60 days after it is published in the Federal Register. This 
action is not a ``major rule'' as defined by 5 U.S.C. 804(2). However, 
this action will be effective October 15, 2019 because it is a direct 
final rule.

    Authority: This rule is issued under the authority of sections 
2002(a), 7004(b), and 9004, 9005 and 9006 of the Solid Waste 
Disposal Act, as amended, 42 U.S.C. 6912(a), 6974(b), and 6991c, 
6991d, and 6991e.

List of Subjects in 40 CFR Part 282

    Environmental protection, Administrative practice and procedure, 
Hazardous substances, Incorporation by reference, State program 
approval, and Underground storage tanks.

    Dated: August 7, 2019.
Gregory Sopkin,
Regional Administrator, EPA Region 8.

    For the reasons set forth in the preamble, the EPA is amending 40 
CFR part 282 as follows:

PART 282--APPROVED UNDERGROUND STORAGE TANK PROGRAMS

0
1. The authority citation for part 282 reads as follows:

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


0
2. Add Sec.  282.76 to read as follows:


Sec.  282.76   Montana State-Administered Program.

    (a) History of the approval of Montana's Program. The State of 
Montana 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 
Montana Department of Environmental Quality (MDEQ), was approved by the 
EPA pursuant to 42 U.S.C. 6991c and Part 281 of this chapter. The EPA 
published the notice of final determination approving the Montana 
underground storage tank base program effective on March 4, 1996. A 
subsequent program revision application was approved by the EPA and 
became effective on October 15, 2019.
    (b) Enforcement authority. Montana has primary responsibility for 
administering and enforcing its federally approved underground storage 
tank program. However, the EPA retains the authority to exercise its 
corrective action, inspection, and enforcement authorities under 
sections 9003(h), 9005, and 9006 of Subtitle I of RCRA, 42 U.S.C. 
6991b(h), 6991d and 6991e, as well as under any other applicable 
statutory and regulatory provisions.
    (c) Retention of program approval. To retain program approval, 
Montana must revise its approved program to adopt new changes to the 
Federal Subtitle I program, in accordance with section 9004 of RCRA, 42 
U.S.C. 6991c, and 40 CFR part 281, subpart E. If Montana 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) Final approval. Montana has final approval for the following 
elements of its program application originally submitted to the EPA and 
approved effective March 4, 1996, and the program revision application 
approved by EPA effective on October 15, 2019:
    (1) State statutes and regulations--(i) Incorporation by reference. 
The material cited in this paragraph 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.) The Director of the Federal 
Register approves this incorporation by reference in accordance with 5 
U.S.C. 552(a) and 1 CFR part 51. You may obtain copies of the Montana 
statutes and regulations that are incorporated by reference in this 
paragraph from Montana Legislative Services Division, P.O. Box 201706, 
Helena, MT 59620-1706; Phone number: (406) 444-3064; email: 
[email protected]; website: https://leg.mt.gov/statute/, and Montana's 
Secretary of State's Administrative

[[Page 41642]]

Rules Services, P.O. Box 202801, Helena, MT 59620-2801; Phone number: 
406-444-9000; email: [email protected]; website: http://www.mtrules.org/.
    (A) ``EPA-Approved Montana Statutory and Regulatory Requirements 
Applicable to the Underground Storage Tank Program'' dated May 2019.
    (B) [Reserved]
    (ii) Legal basis. EPA evaluated the following statutes and 
regulations which provide the legal basis for the State's 
implementation of the underground storage tank program, but they are 
not being incorporated by reference and do not replace Federal 
authorities:
    (A) The statutory provisions include:
    (1) Montana Code Annotated (2017), Title 75 Environmental 
Protection, Chapter 11 Underground Storage Tanks, Part 2 Underground 
Storage Tank Installer and Inspector Licensing and Permitting Act. 
Sections 75-11-203(2), (3), (6), and (7); 75-11-204(1) introductory 
paragraph; 75-11-218 through 75-11-220; 75-11-223; 75-11-224; and 75-
11-232;
    (2) Montana Code Annotated (2017), Title 75 Environmental 
Protection, Chapter 11 Underground Storage Tanks, Part 5 Montana 
Underground Storage Tank Act. Sections 75-11-504; 75-11-505(1); 75-11-
510 through 75-11-521; 75-11-525; and 75-11-526; and
    (3) Additional statutes. The following additional statutes that the 
State relies on for its enforcement program with respect to Spill 
Management and Reporting: The Comprehensive Environmental Cleanup and 
Responsibility Act, MCA section 75-10-701 et seq.; the Hazardous Waste 
Act, MCA Section 75-10-401 et seq.; the Solid Waste Management Act MCA 
section 75-10-201 et seq.; and, the Water Quality Act MCA section 75-5-
101 et seq.
    (B) The regulatory provisions include:
    (1) Administrative Rules of Montana (October 6, 2018), Title 17 
Department of Environmental Quality, Chapter 56 Underground Storage 
Tanks Petroleum and Chemical Substances. Section 17.56.105 Variances; 
17.56.309 Requirements for Compliance Inspections; 17.56.311 Permanent 
Non-Expiring Tags; 17.56.312 Delivery Prohibition; 17.56.508 Numbering 
Petroleum Releases; section 17.56.606 Public Participation; 17.56.607 
Release Categorization; and 17.56.706 Requirement to empty 
noncompliance USTs.
    (2) [Reserved]
    (iii) Provisions not incorporated by reference. The following 
specifically identified statutes and rules applicable to the Montana 
underground storage tank program that are broader in coverage than the 
Federal program, are not part of the approved program, and are not 
incorporated by reference in this part for enforcement purposes:
    (A) Administrative Rules of Montana (October 6, 2018), Title 17 
Department of Environmental Quality, Chapter 56 Underground Storage 
Tanks Petroleum and Chemical Substances. Sections 17.56.102(3)(e); 
17.56.308; 17.56.310; 17.56.402(1)(a)(iii); 17.56.701(4); 17.56.903(3); 
17.56.1001; and 17.56.1502(1) as it applies to permits; subchapter 13, 
sections 17.56.1301 through 17.56.1309 and subchapter 14, sections 
17.56.1401 through 17.56.1426.
    (B) Montana Code Annotated (2017), Title 75 Environmental 
Protection, Chapter 11 Underground Storage Tanks, Part 5 Montana 
Underground Storage Tank Act. Sections 75-11-203(1), (4), (5), (8)-
(10), (14), and (15); 75-11-204(1)(a)-(h) and (2); 75-11-209 through 
75-11-214; 75-11-225 through 75-11-227; 75-11-503(8) ``underground 
storage tank'' or ``tank'' as it applies to aboveground storage tanks; 
75-11-505(1)(f); and 75-11-509.
    (2) Statement of legal authority. The Attorney General's 
Certification, signed by the Acting Chief Counsel, Special Assistant 
Attorney General for the State of Montana on November 13, 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.
    (3) Demonstration of procedures for adequate enforcement. The 
``Demonstration of Procedures for Adequate Enforcement'' submitted as 
part of the original application on February 22, 1995, and as part of 
the program revision application on November 13, 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.
    (4) Program description. The program description and any other 
material submitted as part of the original application on February 22, 
1995, and as part of the program revision application on November 13, 
2018, 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 8 and the Montana Department of Environmental Quality, 
signed by the EPA Regional Administrator on September 25, 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 adding an entry for Montana in 
alphabetical order by State to read as follows:

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

* * * * *

Montana

    (a) The statutory provisions include:
    (1) Montana Code Annotated (2017), Title 75 Environmental 
Protection, Chapter 11 Underground Storage Tanks, Part 2 Montana 
Underground Storage Tank Installer and Inspector Licensing and 
Permitting Act: Sections 75-11-203(11) ``operator'' 75-11-203(12) 
``owner''.
    (2) Montana Code Annotated (2017), Title 75 Environmental 
Protection, Chapter 11 Underground Storage Tanks, Part 5 Montana 
Underground Storage Tank Act: Sections 75-11-503(4) ``person'', (8) 
``underground storage tank'' or ``tank'', except as it applies to 
aboveground storage tanks.
    (b) The regulatory provisions include:
    (1) Administrative Rules of Montana (October 6, 2018), Title 17 
Department of Environmental Quality, Chapter 56 Underground Storage 
Tanks Petroleum and Chemical Substances:
    Subchapter 1 General Provisions:
    Sections 17.56.101 Definitions; 17.56.102 Applicability, except 
17.56.102(3)(e); 17.56.104 Tank Standards for Excluded UST Systems;
    Subchapter 2 UST Systems: Design, Construction, and 
Installation:
    Section 17.56.201 Performance Standards for New Tank Systems; 
17.56.202 Upgrading of Existing UST Systems; 17.56.203 Additional 
Performance Standards for New Underground Piping Connected to 
Aboveground Tanks or to Underground Tanks with a Capacity of 660 
Gallons or Less Used to Store Heating Oil; 17.56.204 Secondary 
Containment, Under-Dispenser Containment, and Interstitial 
Monitoring; 17.56.205 Anti-Siphon Requirements;
    Subchapter 3 General Operating Requirements:
    Sections 17.56.301 Spill and Overfill Control; 17.56.302 
Operation and Maintenance of Corrosion Protection; 17.56.303 
Compatibility; 17.56.304 Repairs; 17.56.305 Reporting and 
Recordkeeping; 17.56.306 Periodic Testing of Spill Prevention 
Equipment and Containment Sumps Used for Interstitial Monitoring of 
Piping and Periodic Inspection of Overfill Prevention Equipment; 
17.56.307 Periodic Operation and Maintenance Walkthrough 
Inspections;
    Subchapter 4 Release Detection:
    Sections 17.56.401 General Requirements for all UST Systems; 
17.56.402 Requirements for Petroleum UST Systems, except 
17.56.402(1)(a)(iii); 17.56.403 Requirements

[[Page 41643]]

for Hazardous Substance UST Systems; 17.56.407 Methods of Release 
Detection for Tanks; 17.56.408 Methods of Release Detection for 
Piping; 17.56.409 Release Detection Recordkeeping;
    Subchapter 5 Release Reporting, Investigation, and Confirmation:
    Sections 17.56.501 General; 17.56.502 Reporting of Suspected 
Releases; 17.56.503 Investigation Due to Off-site Impacts; 17.56.504 
Release Investigation and Confirmation Steps; 17.56.505 Reporting 
and Cleanup of Spills and Overfills; 17.56.506 Reporting of 
Confirmed Releases; 17.56.507 Adoption by Reference;
    Subchapter 6 Release Response and Corrective Action for Tanks 
Containing Petroleum or Hazardous Substances:
    Sections 17.56.601 General; 17.56.602 Initial Response and 
Abatement Measures; 17.56.603 Initial Site History; 17.56.604 
Remedial Investigation; 17.56.605 Cleanup Plan; 17.56.608 Adoption 
by Reference;
    Subchapter 7 Out-of-Service UST Systems and Closure:
    Sections 17.56.701 Inactive and Out-of-Service UST Systems, 
except 17.56.701(4); 17.56.702 Permanent Closure and Changes in 
Service; 17.56.703 Assessing the Site at Closure or Change in 
Service; 17.56.704 Applicability to Previously Closed UST Systems; 
17.56.705 Closure Records;
    Subchapter 8 Financial Responsibility:
    Sections 17.56.801 Applicability; 17.56.802 Compliance Dates; 
17.56.803 Definition of Terms; 17.56.804 Incorporation by Reference; 
17.56.805 Amount and Scope of Required Financial Responsibility; 
17.56.806 Allowable Mechanisms and Combinations of Mechanisms; 
17.56.807 Financial Test of Self-Insurance; 17.56.808 Guarantee; 
17.56.809 Insurance and Risk Retention Group Coverage; 17.56.810 
Surety Bond; 17.56.811 Letter of Credit; 17.56.815 Montana Petroleum 
Tank Release Cleanup Fund; 17.56.816 Trust Fund; 17.56.817 Standby 
Trust Fund; 17.56.820 Substitution of Financial Assurance Mechanisms 
by Owner or Operator; 17.56.821 Cancellation or Nonrenewal by a 
Provider of Financial Assurance; 17.56.822 Reporting by Owner or 
Operator; 17.56.823 Recordkeeping; 17.56.824 Drawing on Financial 
Assurance Mechanisms; 17.56.825 Release from the Requirements; 
17.56.827 Bankruptcy or Other Incapacity of Owner or Operator or 
Provider of Financial Assurance; 17.56.828 Replenishment of 
Guarantees, Letters of Credit, or Surety Bonds;
    Subchapter 9 Notification:
    Sections 17.56.901 Interim Notification Requirements; 17.56.902 
Notification Requirements; 17.56.903 Change in Ownership, except 
17.56.903(3);
    Subchapter 15 Underground Storage Tank Operator Training:
    Sections 17.56.1501 Operator Training Definitions; 17.56.1502 
Operator Training, except the permit requirement in 17.56.1502(1); 
17.56.1503 Operator Training: Authorized Providers; and Required 
Subjects; 17.56.1504 Operator Training: Recordkeeping; 17.56.1505 
Operator Training: Third-Party Training Course Approval; and
    Subchapter 16 Underground Storage Tank Systems with Field 
Constructed Tanks:
    Section 17.56.1601 UST Systems with Field Constructed Tanks and 
Airport Hydrant Fuel Distribution Systems;
    (c) Copies of the Montana statutes and regulations that are 
incorporated by reference are available from the following offices:
    Statutes--Montana Legislative Services Division, P.O. Box 
201706, Helena, MT 59620-1706; Phone number: 406-444-3064; email: 
[email protected]; website: https://leg.mt.gov/statute/.
    Regulations--Secretary of State's Administrative Rules Services, 
P.O. Box 202801, Helena, MT 59620-2801; Phone number: 406-444-9000; 
email: [email protected]; website: http://www.mtrules.org/.
* * * * *
[FR Doc. 2019-17408 Filed 8-14-19; 8:45 am]
BILLING CODE 6560-50-P