[Federal Register Volume 85, Number 120 (Monday, June 22, 2020)]
[Rules and Regulations]
[Pages 37347-37354]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-10065]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 282

[EPA-R06-UST-2018-0704; FRL-10009-03-Region 6]


Texas: Final Approval of State Underground Storage Tank Program 
Revisions 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 Texas's Underground 
Storage Tank (UST) program submitted by the State. EPA has determined 
that these revisions satisfy all requirements needed for program 
approval. This action also codifies EPA's approval of Texas's 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 August 21, 2020, unless EPA receives 
adverse comment by July 22, 2020. If 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 August 21, 2020, 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 on-line instructions for submitting comments.
    2. Email: [email protected].
    Instructions: Direct your comments to Docket ID No. EPA-R06-UST-
2018-0704. 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 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. 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.
    The index to the docket for this action is available electronically 
at www.regulations.gov.
    You can view and copy the documents that form the basis for this 
codification and associated publicly available docket materials are 
available either through www.regulations.gov or at the Environmental 
Protection Agency, Region 6, 1201 Elm Street, Suite #500, Dallas, Texas 
75270. This facility is open from 8:30 a.m. to 4:30 p.m., Monday 
through Friday, excluding Federal holidays and facility closures due to 
COVID-19. We recommend that you telephone Audray Lincoln, Environmental 
Protection Specialist, at (214) 665-2239, before visiting the Region 6 
office. Interested persons wanting to examine these documents should 
make an appointment with the office at least two weeks in advance.

[[Page 37348]]


FOR FURTHER INFORMATION CONTACT: Audray Lincoln, (214) 665-2239, 
[email protected]. Out of an abundance of caution for members of 
the public and our staff, the EPA Region 6 office will be closed to the 
public to reduce the risk of transmitting COVID-19. We encourage the 
public to submit comments via https://www.regulations.gov, as there 
will be a delay in processing mail and no courier or hand deliveries 
will be accepted. Please call or email the contact listed above if you 
need alternative access to material indexed but not provided in the 
docket.

SUPPLEMENTARY INFORMATION: 

I. Approval of Revisions to Texas'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 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. 
Changes to State UST programs may be necessary when Federal or State 
statutory or regulatory authority is modified or when certain other 
changes occur. 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 EPA.

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

    On October 15, 2018, in accordance with 40 CFR 281.51(a), Texas 
submitted a complete program revision application seeking approval for 
its UST program revisions corresponding to the EPA final rule published 
on July 15, 2015 (80 FR 41566) which finalized revisions to the 1988 
UST regulation and to the 1988 State program approval (SPA) regulation. 
As required by 40 CFR 281.20, the State submitted 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 application and have determined that the 
revisions to Texas's UST program are no less stringent than the 
corresponding Federal requirements in subpart C of 40 CFR part 281 and 
the Texas program provides for adequate enforcement of compliance (40 
CFR 281.11(b)). Therefore, the EPA grants Texas 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. The Texas Commission on Environmental Quality (TCEQ) is the 
lead implementing agency for the UST program in Texas, except in Indian 
Country.

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 this rule 
are already effective in the State of Texas, and they 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 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 
anticipate no adverse comment. Texas did not receive any comments 
during its comment period when the rules and regulations being 
considered today were proposed at the State level.

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

    Along with this direct final, the EPA is publishing a separate 
document in the ``Proposed Rules'' section of this Federal Register 
that serves as the proposal to approve the State's UST program 
revision, providing opportunity for public comment. If EPA receives 
comments that oppose this approval, EPA will withdraw the direct final 
rule by publishing a document in the Federal Register before the rule 
becomes effective. The EPA will base any further decision on the 
approval of the State program changes on the proposal to approve after 
considering all comments received during the comment period. EPA will 
then address all public comments in a later final rule. You will 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 Texas previously been approved?

    On April 17, 1995, EPA finalized a rule approving the UST program 
submitted by Texas to be implemented by TCEQ in lieu of the Federal 
program.\1\ On March 18, 1996, EPA codified the approved Texas program 
that is 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.\2\
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    \1\ 60 FR 14372 (March 17, 1995).
    \2\ 61 FR 1223 (January 18, 1996).
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G. What changes are we approving with this action?

    In order to be approved, the program must provide for adequate 
enforcement of compliance as described in 40 CFR 40 CFR 281.11 and part 
281, Subpart D. The TCEQ has broad statutory authority to regulate the 
installation, operation, maintenance, closure of USTs, and UST releases 
under Texas Water Code (TWC), as amended, effective October 2018, Title 
2, Water Administration: Subtitle A, Executive Agencies, Chapter 5, 
Texas Commission on Environmental Quality and Chapter 7, Enforcement; 
Subtitle D, Water Quality Control, Chapter 26, Water Quality Control.
    Specific authorities to regulate the installation, operation, 
maintenance, closure of USTs, and UST releases are found under Texas 
Administrative Code (TAC), Title 30 Environmental Quality, Part I Texas 
Commission on Environmental Quality, Chapter 334 Underground and 
Aboveground Storage Tanks, as amended effective through May 31, 2018. 
The aforementioned regulations satisfy the requirements of 40 CFR 
281.40 and 281.41.\3\
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    \3\ Please see the TSD located in the docket for this rulemaking 
for a more in depth explanation of how the State's program satisfies 
the RCRA and its corresponding regulations.
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    The TCEQ Office of Compliance and Enforcement requires that 
respondents provide notice and opportunity for public comment on all 
proposed settlements of civil enforcement actions, except where 
immediate emergency action is necessary to adequately protect human 
health, safety, and the environment. The TCEQ investigates and provides 
responses to citizen complaints about violations. Requirements for 
public participation can be found in the Texas Government Code Chapter 
552, the Texas Water Code at Chapters 5 and 7, and TAC Title

[[Page 37349]]

30 Part I, Texas Commission on Environmental Quality, Chapter 334 at 
section 334.82. Texas has met the public participation requirements 
found in 40 CFR 281.42.
    To qualify for final approval, a State's program must be ``no less 
stringent'' than the Federal program in all elements of the revised EPA 
final rule published on July 15, 2015 (80 FR 41566).\4\ EPA added new 
operation and maintenance requirements and addressed UST systems 
deferred in the 1988 UST regulation. The changes also added secondary 
containment requirements for new and replaced tank and piping, operator 
training requirements, periodic operation and maintenance requirements 
for UST systems, requirement to ensure UST system compatibility before 
storing certain biofuel blends. It removed past deferrals for emergency 
generator tanks, field constructed tanks and airport hydrant systems.
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    \4\ See 40 CFR 281.11(b).
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    The TCEQ made updates to their regulations to ensure that they were 
no less stringent than the Federal regulations which were revised on 
July 15, 2015 (80 FR 41566). 40 CFR 281.30 through 281.39 contain the 
``no less stringent than'' criteria that a State must meet in order to 
have its UST program approved. In the State's application for approval 
of its UST program, the Texas Attorney General certified that it meets 
the requirements listed in 40 CFR 281.30 through 281.39. EPA has relied 
on this certification in addition to the analysis submitted by the 
State in making our determination. For further information on EPA's 
analysis of the State's application, see the chart in the Technical 
Support Document (TSD) contained in the docket for this rulemaking. The 
corresponding State regulations are as follows:
    40 CFR 281.30 lists the Federal requirements for new UST system 
design, construction, installation, and notification with which a State 
must comply in order to be found to be no less stringent than Federal 
requirements. 30 TAC 334.1 Applicability, 334.2 Definitions, 334.5 
General Prohibitions for Underground Storage Tanks (USTs) and UST 
Systems, 334.7 Registration for Underground Storage Tanks (USTs) and 
UST Systems, 334.8 Certification for Underground Storage Tanks (USTs) 
and UST Systems, 334.10 Reporting and Recordkeeping, 334.44 
Implementation Schedules, 334.45 Technical Standards for New 
Underground Storage Tank Systems, 334.46 Installation Standards for New 
Underground Storage Tank Systems, 334.49 Corrosion Protection, 334.50 
Release Detection, 334.51 Spill and Overfill Prevention and Control, 
and 334.71 Applicability and Deadlines require that USTs be designed, 
constructed, and installed in a manner that will prevent releases for 
their operating life due to manufacturing defects, structural failure, 
or corrosion and be provided with equipment to prevent spills and tank 
overfills when new tanks are installed or existing tanks are upgraded, 
unless the tank does not receive more than 25 gallons at one time. 
These sections also require UST system owners and operators to notify 
the implementing agency of any new UST systems, including instances 
where one assumes ownership of an existing UST.
    40 CFR 281.31 requires that most existing UST systems meet the 
requirements of 281.30, are upgraded to prevent releases for their 
operating life due to corrosion, spills, or overfills, or are 
permanently closed. 30 TAC 334.1(b) and 334.71(a) Applicability, 
334.44. Implementation Schedules, 334.47 Technical Standards for 
Existing Underground Storage Tank Systems, 334.49 Corrosion Protection, 
334.50 Release Detection, and 334.52 Underground Storage Tank System 
Repairs and Relining contain the appropriate requirements that UST 
systems be upgraded to prevent releases during their operating life due 
to corrosion, spills, or overfills.
    40 CFR 281.32 contains the general operating requirements that must 
be met in order for the State's submission to be considered no less 
stringent than the Federal requirements. 30 TAC 334.7 Registration for 
Underground Storage Tanks (USTs) and UST Systems, 334.10 Reporting and 
Recordkeeping, 334.42 General Standards, 334.45 Technical Standards for 
New Underground Storage Tank Systems, 334.48 General Operating and 
Management Requirements, 334.49 Corrosion Protection, 334.50 Release 
Detection, 334.51 Spill and Overfill Prevention and Control, and TAC 
334.52 Underground Storage Tank System Repairs and Relining contain the 
necessary general operating requirements required by 40 CFR 281.32.
    40 CFR 281.33 contains the requirements for release detection that 
must be met in order for the State's submission to be considered no 
less stringent than Federal requirements. 30 TAC 334.1 Purpose and 
Availability, 334.48 General Operating and Management Requirements, 
334.50 Release Detection, and 334.71 Applicability and Deadlines 
contain the necessary requirements for release detection as required by 
40 CFR 281.33.
    40 CFR 281.34 contains the requirements for release reporting, 
investigation, and confirmation that must be met in order for the 
State's submission to be considered no less stringent than Federal 
requirements. 30 TAC 334.72 Reporting of Suspected Releases, 334.73 
Investigation Due to Off-Site Impacts, 334.74 Release Investigation and 
Confirmation Steps, and 334.75 Reporting and Cleanup of Surface Spills 
and Overfills contain the necessary requirements as required by 40 CFR 
281.34 for release reporting, investigation, and confirmation.
    40 CFR 281.35 contains the requirements for release response and 
corrective action that must be met in order for the State's submission 
to be considered no less stringent than Federal requirements. 30 TAC 
334.76 Initial Response to Releases, 334.77 Initial Abatement Measures 
and Site Check, 334.78 Site Assessment, 334.79 Removal of Non-Aqueous 
Phase Liquids, 334.80 Investigation for Soil and Groundwater Cleanup, 
334.81 Corrective Action Plan, and 334.82 Public Participation contain 
the required provisions as listed in 40 CFR 281.35 for release response 
and corrective action.
    40 CFR 281.36 contains the requirements for out of service UST 
systems and closures that must be met in order for the State's 
submission to be considered no less stringent than Federal 
requirements. 30 TAC 334.1 Purpose and Applicability, 334.50 Release 
Detection, 334.54 Temporary Removal from Service, 334.55 Permanent 
Removal from Service, 334.56 Change to Exempt or Excluded Status, and 
334.71 Applicability and Deadlines contain the necessary requirements 
as listed in 40 CFR 281.36 for out of service UST systems and closures.
    40 CFR 281.37 contains the requirements for financial 
responsibility for UST systems containing petroleum that must be met in 
order for the State's submission to be considered no less stringent 
than Federal requirements. 30 TAC 37.371 Local Government Financial 
Test, 37.381 Local Government Guarantee, and Chapter 37, Subchapter I, 
Financial Assurance for Petroleum Underground Storage Tanks (37.801 
through 37.895) contain the necessary requirements as listed in 40 CFR 
281.37 for financial responsibility for UST systems.
    40 CFR 281.38 contains the requirements for lender liability that 
must be met in order for the State's submission to be considered no 
less

[[Page 37350]]

stringent than Federal requirements. 30 TAC 334.15 Limits on Liability 
of Lender contains the requirements for lender liability as listed in 
40 CFR 281.38.
    40 CFR 281.39 contains the requirements for operator training that 
must be met in order for the State's submission to be considered no 
less stringent than Federal requirements. 30 TAC Chapter 334 Subchapter 
N (334.601 through 334.606) Operator Training contains the requirements 
for operator training as required by 40 CFR 281.39.

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

Broader in Scope Provisions
    The following statutory and regulatory provisions are considered 
broader than the Federal program:
    Texas includes in their statutes references to the broader in scope 
aboveground storage tank program. The following provisions are broader 
in scope because they contain references to Aboveground Storage Tanks 
(ASTs) or apply only to ASTs: Texas Water Code, Title 2, Subtitle D, 
Chapter 26: Water Quality Control, Sections 26.341(b)(1), 26.342(9), 
(12)(A), (14), (15), 26.344, 26.3441, 26.345, 26.346, 26.349, 26.351, 
26.3511, 26.3514 through 26.3516. 26.354 through 26.356, and 26.358.
    The following provisions from Texas Water Code, Title 2, Subtitle 
D, Chapter 26: Water Quality Control are broader in scope than the 
Federal program for the reasons stated:
    These items are associated with the State-only clean up and 
remediation funds--Sections 26.342(2), (4), (16), and (18), 26.3512, 
26.3571, 26.3573, 26.35731, and 26.361;
    The provision at 26.342(16-a) is associated with the State-only 
broader in scope contaminated soil program;
    The provisions at 26.3574 and 26.35745 are associated with fees and 
reporting for State-only fees;
    The provisions at 26.364 through 26.367 are associated with the 
State-only registration of contractors who perform or supervise 
corrective action; and
    The provisions at 26.451, 26.452 and 26.456 describe State-only 
occupational licensing and registration for occupations not covered 
under the Federal program.
    The Texas regulatory provisions definition section at 30 TAC 334.2 
contains a definition (at 334.2(4)) and references to Aboveground 
Storage Tanks (ASTs) that are broader in scope than the Federal 
program.
    At Section 334.9 Texas requires a tank seller to disclose to a 
purchaser certain obligations with respect to State notification and 
other regulatory information.
    At Sections 334.15 and 334.18 there are references to ASTs that are 
broader in scope than the Federal program.
    State fees are generally broader in scope. Texas includes state-
specific fee requirements at 30 TAC 334.19 Fee on Delivery of Petroleum 
Product, Subchapter B. Underground Storage Tank Fees (TAC 334.21 
through 334.23).
    Texas includes a State-only Reimbursement Program at 30 TAC Chapter 
334, Subchapter H. Reimbursement Program (TAC 334.301 through 334.322) 
and Subchapter M. Reimbursable Cost Specifications for the Petroleum 
Storage Tank Reimbursement Program. These are State-only programs with 
no Federal counterparts and are broader in coverage.
    Texas includes State-only licensing and registration of occupations 
that are not included in the Federal program at 30 TAC Chapter 334 
Subchapter I. Underground Storage Tank On-site Supervisor Licensing and 
Contract Registration (TAC 334.401, 334.407, and 334.424).
    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. 40 CFR 281.12(a)(3)(ii).
More Stringent Provisions
    The following regulatory provisions are considered more stringent 
than the Federal rules and are included in the state's federally 
approved program:
    Texas requires that professional engineers and geoscientists be 
licensed by the State (30 TAC 334.10(a)(10)).
    Texas requires owners and operators to maintain records for five 
years (30 TAC 334.51(c)(2) and 334.48(g)(3)(A)&(B). This is longer than 
the three years required by the federal rules at 40 CFR 280.35(c), 
therefore the Texas requirement is more stringent.
    Texas requires that all corrective action services be performed by 
or be coordinated by a person or entity registered as a corrective 
action specialist (30 TAC 334.451(b)).
    Texas does not allow exceptions to the secondary containment 
requirements for piping that are allowed by the Federal program (at 40 
CFR280.252(a)); therefore, the State is more stringent with respect to 
this requirement (30 TAC 334.45(d)(1)(E)).

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

    Texas is not authorized to carry out its Program in Indian Country 
(18 U.S.C. 1151) within the State. This authority remains with EPA. 
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 Texas' UST program?

    The EPA incorporated by reference Texas' then approved UST program 
effective March 18, 1996 (61 FR 1223; January 18, 1996). In this 
document, the EPA is revising 40 CFR 282.93 to include the approval 
revision actions.

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

    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 Texas 
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 www.regulations.gov and in hard copy at the EPA 
Region 6 office (see the ADDRESSES section of this preamble for more 
information).
    The purpose of this Federal Register document is to codify Texas'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 
Texas UST program addressed in this direct final rule become final. The 
document incorporates by reference Texas's UST regulations and 
clarifies which of these provisions are included in the approved and 
federally enforceable program. By

[[Page 37351]]

codifying the approved Texas 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 Texas 
program.
    The EPA is incorporating by reference the Texas approved UST 
program in 40 CFR 282.93. Section 282.93(d)(1)(i)(A) incorporates by 
reference for enforcement purposes the State's regulations. Section 
282.93 also references the Attorney General's Statement, Demonstration 
of Adequate Enforcement Procedures, the Program Description, and the 
Memorandum of Agreement, which are approved as part of the UST program 
under Subtitle I of RCRA.

D. What is the effect of Texas's codification 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. With respect to these actions, EPA will rely on 
Federal sanctions, Federal inspection authorities, and Federal 
procedures rather than the State authorized analogs to these 
provisions. Therefore, the EPA is not incorporating by reference such 
particular, approved Texas procedural and enforcement authorities. 
Section 282.93(d)(1)(ii) of 40 CFR lists those approved Texas 
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 coverage'' 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 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. Section 282.93(d)(1)(iii) of the codification 
simply lists for reference and clarity the Texas 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 today. 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 Reviews

    This action only applies to Texas's UST Program requirements 
pursuant to RCRA Section 9004 and imposes no requirements other than 
those imposed by State law. It complies with applicable 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 this final approval 
of Texas'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, 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.

[[Page 37352]]

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 
action is not a ``major rule'' as defined by 5 U.S.C. 804(2). However, 
this action will be effective August 21, 2020 because it is a direct 
final rule.

List of Subjects in 40 CFR Part 282

    Environmental protection, Administrative practice and procedure, 
Confidential business information, Hazardous substances, Incorporation 
by reference, Insurance, Intergovernmental relations, Oil pollution, 
Penalties, Petroleum, Reporting and recordkeeping requirements, Surety 
bonds, Water pollution control, Water supply.

    Dated: May 5, 2020.
Kenley McQueen,
Regional Administrator, EPA Region 6.

    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.  282.93 to read as follows:


Sec.  282.93   Texas State-Administered Program.

    (a) History of the approval of Texas's program. The State of Texas 
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 Texas 
Department of Environmental Quality, was approved by EPA pursuant to 42 
U.S.C. 6991c and Part 281 of this Chapter. EPA published the notice of 
final determination approving the Texas underground storage tank base 
program effective on April 17, 1995. A subsequent program revision 
application was approved effective on August 21, 2020.
    (b) Enforcement authority. Texas has primary responsibility for 
administering and enforcing its federally approved underground storage 
tank program. However, 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) Retaining program approval. To retain program approval, Texas 
must revise its approved program to adopt new changes to the Federal 
Subtitle I program which make it more stringent, in accordance with 
section 9004 of RCRA, 42 U.S.C. 6991c, and 40 CFR part 281, subpart E. 
If Texas 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 program approval. Texas 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 August 21, 2020:
    (1) State statutes and regulations--(i) Incorporation by reference. 
The provisions cited in this paragraph are incorporated by reference as 
part of the underground storage tank program under Subtitle I of RCRA, 
42 U.S.C. 6991 et seq. 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 Texas UST regulations that are 
incorporated by reference in this paragraph from Thomson Reuters, 610 
Opperman Drive, Eagan, MN 55123; Phone: 1-888-728-7677; website: http://legalsolutions.thomsonreuters.com or the Texas Secretary of State 
office website at https://texreg.sos.state.tx.us/public/
readtac$ext.ViewTAC?tac_view=4&ti=30&pt=1&ch=334. You may inspect all 
approved material at the EPA Region 6, 1201 Elm Street, Suite #500, 
Dallas, Texas 75270 (phone number (214) 665-2239) or the National 
Archives and Records Administration (NARA). For information on the 
availability of this material at NARA, email [email protected], or 
go to: http://www.archives.gov/federal-register/cfr/ibr-locations.html.
    (A) ``EPA-Approved Texas Regulatory Requirements Applicable to the 
Underground Storage Tank Program, October 2019''. Those provisions are 
listed in Appendix A to Part 282.
    (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) Texas Water Code, as amended, effective October 2018. Title 2, 
Water Administration, Subtitle A, Executive Agencies:

[[Page 37353]]

    (i) Chapter 5. Texas Commission on Environmental Quality, 
Subchapter B. Organization of the Texas Natural Resource Conservation 
Commission, Section 5.012, Subchapter D. General Powers and Duties of 
the Commission, Sections 5.103, and 5.105; Subchapter E. Administrative 
Provision for Commission, Sections 5.173, 5.176, 5.1765, and 5.177; 
Subchapter L. Emergency and Temporary Orders, Sections 5.510, 5.511, 
5.515, and 5.516;
    (ii) Chapter 7. Enforcement, Subchapter A, General Provisions, 
Sections 7.002 and 7.006; Subchapter B. Corrective Action and 
Injunctive Relief, Section 7.032; Subchapter C. Administrative 
Penalties, Sections 7.053 and 7.075; Subchapter D. Civil Penalties, 
Sections 7.101, 7.102, 7.103, 7.105, 7.106, 7.107, 7.108, and 7.110; 
Subchapter E. Criminal Offenses and Penalties, Sections 7.149 and 
7.156.
    (2) Texas Water Code, as amended, effective October 2018. Title 2, 
Water Administration, Subtitle D, Water Quality Control: Chapter 26. 
Water Quality Control, Subchapter B, General Powers and Duties, 
Sections 26.011, 26.013, 26.014, 26.015, 26.0151, 26.017, 26.019, 
26.020, 26.021, 26.022, 26.039, and 26.042; Subchapter D. Prohibition 
Against Pollution; Enforcement, Sections 26.341 (except 26.341(b)(1), 
26.342 (except 26.342(2), (4), (5), (16), (16-a), (18), and references 
to aboveground storage tanks at (9), (12), (14), (15), 26.343 (except 
26.343(a)(1)), 26.344 (except reference to aboveground storage tanks), 
26.3441, 26.345 (except reference to aboveground storage tanks), 26.346 
(except reference to aboveground storage tanks), 26.3465, 26.3467, 
26.347, 26.348, 26.349 (except reference to aboveground storage tanks), 
26.350, 26.351 and 26.3511 (except references to aboveground storage 
tanks), 25.3512 (except reference to petroleum storage tank remediation 
account), 26.3513, 26.3514 through 26.3516 (except references to 
aboveground storage tanks), 26.352, 26.354 through 26.356 (except 
references to aboveground storage tanks), 26.357, 26.3572, 26.35735, 
26.359, 26.362 and 26.363.
    (B) The regulatory provisions include:
    (1) Texas Administrative Code, Title 30, Part I. Texas Commission 
on Environmental Quality, Chapter 334 Underground and Aboveground 
Storage Tanks, effective May 31, 2018, Section 334.14 Memorandum of 
Understanding between the Attorney General of Texas and the Texas 
Natural Resource Conservation Commission, 334.82 Public Participation, 
and 334.83 Enforcement.
    (2) [Reserved]
    (iii) Provisions not incorporated by reference. The following 
specifically identified sections and rules applicable to the Texas 
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 herein for enforcement purposes:
    (A) Texas Water Code, as amended, effective October 2018, Title 2, 
Water Administration, Subtitle D, Water Quality Control: Chapter 26 
Water Quality Control, Sections 26.341(b)(1), 26.342(2), 26.342(4), 
26.342(9) as it applies to aboveground storage tanks, 26.342(12) as it 
applies to aboveground storage tanks, 26.342(14) and 26.342(15) as they 
apply to aboveground storage tanks, 26.342(16), 26.342(16-a), 
26.342(18), 26.343(a)(1), 26.344 as it applies to aboveground storage 
tanks, 26.3441, 26.345 and 26.346 as they apply to aboveground storage 
tanks, 26.349 as it applies to aboveground storage tanks, 26.351 and 
26.3511 as they apply to aboveground storage tanks, 26.3512 as it 
applies to petroleum storage tank remediation account, 26.3514 through 
26.3516 as they apply to aboveground storage tanks, 26.354 through 
26.356 as they apply to aboveground storage tanks, 26.3571, 26.3573, 
26.35731, 26.3574, 26.35745, 26.358, 26.361, 26.364 through 26.367; 
Subchapter K. Occupational Licensing and Registration, Sections 26.451, 
26.452 and 26.456.
    (B) Texas Administrative Code, Title 30, Part I. Texas Commission 
on Environmental Quality, Chapter 334 Underground and Aboveground 
Storage Tanks, effective May 31, 2018: Sections 334.2 ``Definitions'' 
as applied to aboveground storage tanks (ASTs), 334.9 ``Seller's 
Disclosure'', 334.19 ``Fee on Delivery of Petroleum Product, 334.21 
``Fee Assessment'' through 334.23 ``Disposition of Fees, Interest, and 
Penalties'', 334.121 ``Purpose and Applicability for Aboveground 
Storage Tanks (ASTs)'' through 334.132 ``Other General Provisions for 
Aboveground Storage Tanks (ASTs)'', 334.201 ``Purpose, Applicability, 
and Deadlines'' through 334.208 ``Model Institutional Controls'', 
334.301 ``Applicability of this Subchapter'' through 334.322 
``Subchapter H Definitions'', 334.401 ``License and Registration 
Required'', 334.407 ``Other Requirements for an Underground Storage 
Tank Contractor'', 334.424 ``Other Requirements for an On-site 
Supervisor'' and 334.560 ``Reimbursable Cost Specifications''.
    (2) Statement of legal authority. The Attorney General's 
Statements, signed by the Attorney General of Texas on January 11, 1994 
and October 22, 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.
    (3) Demonstration of procedures for adequate enforcement. The 
``Demonstration of Procedures for Adequate Enforcement'' submitted as 
part of the original application on April 28, 1994 and as part of the 
program revision application for approval on October 15, 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 April 28, 
1994 and as part of the program revision application on October 15, 
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 6 and the Texas Department of Environmental Quality, signed 
by the EPA Regional Administrator on July 29, 2019, 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 Texas to 
read as follows:

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

* * * * *
    Texas
    (a) The regulatory provisions include:
    1. Texas Administrative Code, Title 30, Part I. Texas Commission 
on Environmental Quality, Chapter 37 Financial Assurance, as amended 
effective through May 31, 2018:

Subchapter I. Financial Assurance for Petroleum Underground Storage 
Tank Systems
Section 37.801 Applicability
Section 37.802 Definitions
Section 37.815 Amount and Scope of Required Financial Assurance
Section 37.820 Allowable Mechanisms and Combinations of Mechanisms
Section 37.825 Financial Test of Self-Insurance
Section 37.830 Guarantee
Section 37.835 Insurance and Risk Retention Group Coverage
Section 37.840 Surety Bond
Section 37.845 Letter of Credit
Section 37.850 Trust Fund
Section 37.855 Standby Trust Fund

[[Page 37354]]

Section 37.860 Substitution of Financial Assurance Mechanisms by 
Owner or Operator
Section 37.865 Cancellation or Non-Renewal by a Provider of 
Financial Assurance
Section 37.867 Duty to Empty Tanks After Termination of Financial 
Assurance
Section 37.870 Reporting, Registration, and Certification
Section 37.875 Financial Assurance Recordkeeping
Section 37.880 Drawing on Financial Assurance Mechanisms
Section 37.885 Release from the Requirements
Section 37.890 Bankruptcy or Other Incapacity of Owner or Operator 
or Provider of Financial Assurance
Section 37.895 Replenishment of Guarantees, Letters of Credit or 
Surety Bonds

    2. Texas Administrative Code, Title 30, Part I. Texas Commission 
on Environmental Quality, Chapter 334 Underground and Aboveground 
Storage Tanks; effective May 31, 2018:

Subchapter A. General Provisions:
    Section 334.1 ``Purpose and Applicability''
    Section 334.2 ``Definitions'' (except as they apply to 
aboveground storage tanks (ASTs))
    Section 334.3 ``Exemptions for Underground Storage Tanks (USTs) 
and UST Systems''
    Section 334.4 ``Exclusions for Underground Storage Tanks (USTs) 
and UST Systems''
    Section 334.5 ``General Prohibitions for Underground Storage 
Tanks (USTs) and UST Systems''
    Section 334.6 ``Construction Notification for Underground 
Storage Tanks (USTs) and UST Systems''
    Section 334.7 ``Registration for Underground Storage Tanks 
(USTs) and UST Systems''
    Section 334.8 ``Certification for Underground Storage Tanks 
(USTs) and UST Systems''
    Section 334.10 ``Reporting and Recordkeeping''
    Section 334.12 ``Other General Provisions''
    Section 334.15 ``Limits on Liability of Lender'' (except as it 
applies to aboveground storage tanks (ASTs))
    Section 334.16 ``Limits on Liability of Corporate Fiduciary''
    Section 334.18 ``Limits on Liability of Taxing Unit'' (except as 
it applies to aboveground storage tanks (ASTs))

Subchapter C. Technical Standards:
    Section 334.41 ``Applicability''
    Section 334.42 ``General Standards''
    Section 334.43 ``Variances and Alternative Procedures''
    Section 334.44 ``Implementation Schedules''
    Section 334.45 ``Technical Standards for New Underground Storage 
Tank Systems''
    Section 334.46 ``Installation Standards for New Underground 
Storage Tank Systems''
    Section 334.47 ``Technical Standards for Existing Underground 
Storage Tank Systems''
    Section 334.48 ``General Operating and Management Requirements''
    Section 334.49 ``Corrosion Protection''
    Section 334.50 ``Release Detection''
    Section 334.51 ``Spill and Overfill Prevention and Control''
    Section 334.52 ``Underground Storage Tank System Repairs and 
Relining''
    Section 334.53 ``Reuse of Used Tanks''
    Section 334.54 ``Temporary Removal from Service''
    Section 334. 55 ``Permanent Removal from Service''
    Section 334.56 ``Change to Exempt or Excluded Status''

Subchapter D. Release Reporting and Corrective Action:
    Section 334.71 ``Applicability and Deadlines''
    Section 334.72 ``Reporting of Suspected Releases''
    Section 334.73 ``Investigation Due to Off-Site Impacts''
    Section 334.74 ``Release Investigation and Confirmation Steps''
    Section 334.75 ``Reporting and Cleanup of Surface Spills and 
Overfills''
    Section 334.76 ``Initial Response to Releases''
    Section 334.77 ``Initial Abatement Measures and Site Check''
    Section 334.78 ``Site Assessment''
    Section 334.79 ``Removal of Non-Aqueous Phase Liquids (NAPLs)''
    Section 334.80 ``Investigation of Soil and Groundwater Cleanup''
    Section 334.81 ``Corrective Action Plan''
    Section 334.84 ``Corrective Action by the Agency''
    Section 334.85 ``Management of Wastes''

Subchapter J. Leaking Petroleum Storage Tank Corrective Action 
Specialist Registration and Project Manager Licensing:
    Section 334.451 ``Applicability of Subchapter J''
    Section 334.454 ``Exception for Emergency Abatement Actions''
    Section 334.455 ``Notice to Owner or Operator''

Subchapter N. Operator Training:
    Section 334.601 ``Purpose and Applicability''
    Section 334.602 ``Designation and Training of Classes of 
Operators''
    Section 334.603 ``Acceptable Operator Training and Certification 
Processes''
    Section 334.604 ``Operator Training Deadlines''
    Section 334.605 ``Operator Training Frequency''
    Section 334.606 ``Documentation of Operator Training''

    (b) Copies of the Texas UST regulations that are incorporated by 
reference are available from Thomson Reuters, 610 Opperman Drive, 
Eagan, MN 55123; Phone: 1-888-728-7677; website: http://legalsolutions.thomsonreuters.com; or the Texas Secretary of State 
office website at https://texreg.sos.state.tx.us/public/
readtac$ext.ViewTAC?tac_view=4&ti=30&pt=1&ch=334.

[FR Doc. 2020-10065 Filed 6-19-20; 8:45 am]
BILLING CODE 6560-50-P