    [Federal Register Volume 85, Number 168 (Friday, August 28, 2020)]
    [Rules and Regulations]
    [Pages 53179-53186]
    From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
    [FR Doc No: 2020-16273]

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    ENVIRONMENTAL PROTECTION AGENCY

    40 CFR Part 282

    [EPA-R06-UST-2018-0703; FRL-10011-49-Region 6]

    New Mexico: 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 New Mexico'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 New
    Mexico'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 Subtitle I of RCRA sections 9005 and 9006
    and other applicable statutory and regulatory provisions.

    DATES: This rule is effective October 27, 2020, unless EPA receives
    adverse comment by September 28, 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 October 27, 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: lincoln.audray@epa.gov.
        Instructions: Direct your comments to Docket ID No. EPA-R06-UST-
    2018-0703. 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 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.
        The index to the docket for this action is available electronically
    at https://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 https://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 4:00 p.m. Monday through Friday excluding

    [[Page 53180]]

    Federal holidays and facility closures. 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.

    FOR FURTHER INFORMATION CONTACT: Audray Lincoln, (214) 665-2239,
    lincoln.audray@epa.gov. 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 contract listed above if you
    need alternative access to material indexed but not provided in the
    docket.

    SUPPLEMENTARY INFORMATION:

    I. Approval of Revisions to New Mexico'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), 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 11, 2018, in accordance with 40 CFR 281.51(a), New
    Mexico 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 regulations and to the 1988 State program
    approval (SPA) regulations. 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 the revisions to New Mexico's
    UST program and determined they are no less stringent than the
    corresponding Federal requirements in subpart C of 40 CFR part 281, and
    the New Mexico program provides for adequate enforcement of compliance
    (40 CFR 281.11(b)). Therefore, the EPA grants New Mexico 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 New Mexico Environment Department (NMED) is the lead
    implementing agency for the UST program in New Mexico, 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 New Mexico, 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. New Mexico received comments during its
    comment period when the rules and regulations in this document were
    being considered and were proposed at the State level. All comments
    were addressed at the public hearing and/or are reflected in the
    adopted regulations. No opposing testimony was presented during the
    public hearing before the New Mexico Environmental Improvement Board on
    February 21 and 22, 2018.

    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
    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 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 New Mexico previously been approved?

        On September 17, 1990, EPA finalized a rule approving the UST
    program submitted by New Mexico in lieu of the Federal program. On
    January 18, 1996, EPA codified the approved New Mexico 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.

    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(b) and
    part 281, Subpart D. The NMED has broad statutory authority to regulate
    the installation, operation, maintenance, closure of USTs, and UST
    releases under the following New Mexico Statutes: Department of
    Environment Act, NMSA 1978, sections 9-7A-1 to 9-7A-15; Environmental
    Improvement Act, NMSA 1978 sections 74-1-1 to 74-1-17; Hazardous Waste
    Act, NMSA 1978, sections 74-4-1 to 74-4-14; Ground Water Protection
    Act, NMSA 1978, sections 74-6B-1 to 74-6B-14; Petroleum Products
    Loading Fee Act, NMSA 1978, sections 7-13A-1 to 7-13A-7; Tax
    Administration Act, NMSA 1978 sections 7-1-6; 7-1-6.1; 7-1-6.25; 7-1-
    6.39; 7-1-13.1; Gasoline Tax Act, NMSA 1978 sections 7-13-3; 7-13-4;
    and Special Fuels Supplier Tax Act, NMSA 1978 sections 7-16A-3.
        Specific authorities to regulate the installation, operation,
    maintenance, closure of USTs, and UST releases are found under Title 20
    Chapter 5 of the New Mexico Administrative Code (NMAC), Parts 101
    through 125 as amended effective July 24, 2018. The aforementioned
    regulations satisfy the

    [[Page 53181]]

    requirements of 40 CFR 281.40 and 281.41.
        New Mexico's Petroleum Storage Tank Bureau (PSTB) invites and
    encourages public participation. PSTB provides notice and opportunity
    for public comment on all proposed rules. The PSTB investigates and
    requires petroleum storage tank owners and operators to provide notice
    about contaminants and submissions of final remediation plans.
    Requirements for public participation and notification can be found in
    the New Mexico State Rules Act, NMSA 1978 section 14-4-5.2, and 20.1.1
    NMAC, 20.1.9 NMAC, 20.5.119 NMAC, and 20.5.120 NMAC. Additionally, the
    New Mexico Ground Water Protection Act, NMSA 1978 section 74-6B-4
    created an advisory committee, the Storage Tank Committee, that may
    review corrective actions and payments from the corrective action fund.
    Storage Tank Committee meetings are public meetings, and information on
    upcoming meetings is provided through legal notices in local and
    statewide newspapers as well as notices on the PSTB website pursuant to
    New Mexico's Open Meetings Act, NMSA 1978 sections 10-15-1 to 10-15-4.
    The PSTB submits semi-annual information to EPA, and all records
    pertaining to NMED PSTB-regulated UST systems and release sites are
    available to the EPA upon request. New Mexico 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). EPA added new
    operation and maintenance requirements and addressed UST systems
    deferred in the 1988 UST regulations. 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, and requirements 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.
        The NMED 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). Title 40 CFR 281.30 through 281.39
    contains 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 New Mexico Special Assistant
    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:
        Title 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. NMAC Title 20 Environmental Protection, Chapter 5
    Petroleum Storage Tanks, Parts 101, 102, 106, 113, and 114 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 parts 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.
        Title 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. NMAC Title 20 Environmental Protection, Chapter 5
    Petroleum Storage Tanks, Parts 106, 113, and 114 contain the
    appropriate requirements that UST systems be upgraded to prevent
    releases during their operating life due to corrosion, spills, or
    overfills.
        Title 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. Parts NMAC Title 20
    Environmental Protection, Chapter 5 Petroleum Storage Tanks, 107, 108,
    113, and 114 contain the necessary general operating requirements
    required by 40 CFR 281.32.
        Title 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. NMAC Title 20
    Environmental Protection, Chapter 5 Petroleum Storage Tanks, Parts 108,
    113, and 114 contain the necessary requirements for release detection
    as required by 40 CFR 281.33.
        Title 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. NMAC Title 20 Environmental Protection, Chapter 5
    Petroleum Storage Tanks, Part 118 contains the necessary requirements
    as required by 40 CFR 281.34 for release reporting, investigation, and
    confirmation.
        Title 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. NMAC Title 20 Environmental Protection, Chapter 5
    Petroleum Storage Tanks, Parts 119 and 120 contain the required
    provisions as listed in 40 CFR 281.35 for release response and
    corrective action.
        Title 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. NMAC Title 20 Environmental Protection, Chapter 5
    Petroleum Storage Tanks, Parts 114 and 115 contain the necessary
    requirements as listed in 40 CFR 281.36 for out of service UST systems
    and closures.
        Title 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. NMAC Title 20 Environmental Protection,
    Chapter 5 Petroleum Storage Tanks, Part 117 contains the necessary
    requirements as listed in 40 CFR 281.37 for financial responsibility
    for UST systems.
        Title 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 stringent than Federal requirements. NMAC Title 20
    Environmental Protection, Chapter 5 Petroleum Storage Tanks, Part 124
    contains the requirements for lender liability as listed in 40 CFR
    281.38.
        Title 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. NMAC Title 20
    Environmental Protection, Chapter 5 Petroleum Storage Tanks, Part 104
    contains the requirements for operator training as required by 40 CFR
    281.39.

    [[Page 53182]]

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

    Broader in Scope Provisions
        The following statutory and regulatory provisions are considered
    broader in scope than the Federal program:
        At 20.5.103 NMAC, New Mexico assesses an annual fee of $100 per
    tank and at 20.5.102.202 NMAC, requires that all regulated UST systems
    be registered within 60 days of placing a regulated substance in the
    tank.
        At 20.5.509 NMAC, New Mexico requires UST Installers provide proof
    of two years out of the last three years of experience in the
    installation, modification, repair, and replacement of UST systems. The
    UST Installers must pass a New Mexico Laws and Rules exam, an on-site
    exam that includes the complete installation of a UST system in order
    to gain their certification, and provide proof of passing a national
    technical UST installer's test administered by an approved
    certification educator. New Mexico requires UST Junior Installers to
    provide proof of one year of experience in the last three years of
    field experience in the installation, modification, replacement, or
    repair of spill and overfill prevention equipment. Junior UST
    installers must pass a New Mexico Laws and Rules exam, and provide
    proof of passing a national technical UST installer's test administered
    by an approved certification educator.
        At 20.5.106.614 NMAC, New Mexico requires owners and operators who
    install loading racks to design and construct then in accordance with
    the current edition of an industry standard or code of practice
    developed by a nationally recognized association or independent testing
    laboratory approved in advance by the department.
        NMED requires that all corrective action activities be performed by
    a qualified firm in accordance with 20.5.122 NMAC. All corrective
    action activities must be pre-approved in writing prior to any work
    being completed pursuant to 20.5.119.1900.G NMAC and 20.5.120.2000.G
    NMAC and be performed by a qualified firm pursuant to 20.5.119.1900.H
    NMAC and 20.5.120.2000.H NMAC.
        At 20.5.115.1501.C(3), 1501.E and 1501.G [for field-erected AST
    systems only] NMAC New Mexico includes multiple requirements specific
    to aboveground storage tanks (ASTs) that are broader in scope than the
    Federal program which does not regulate these types of tanks systems.
        At 20.5.115.1501.F(3) NMAC the State requires that owners/operators
    of temporarily closed tanks to pay all annual tank fees and accrued
    late fees prior to bringing a tank back into service. All fees are
    broader in scope.
        At NMSA 1978 section 74-4-4.4 New Mexico requires registration,
    certification, and fee payment for classes of individuals defined as
    tank installers and testers that are not included in the Federal
    program.
        At NMSA 1978 section 74-6B-9 the State assesses a storage tank fee
    to be paid by tank owners and operators.
        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
    in coverage than the Federal program:
        20.5.102.206.A(20) NMAC requires that new registrations must be
    submitted on a PSTB approved registration form and include specific
    tank details including whether any part of the system is within 1,000
    feet of a water supply well, certified installer signature, and owner
    signature. Registration certificates are valid for one year and issued
    upon payment of tank fees due July 1 of each year and/or upon
    registration of a new tank system. Owners and operators may not operate
    tanks without a valid registration certificate and may be found out of
    substantial compliance when a release has occurred and may be denied
    access to the corrective action fund (CAF) if a valid registration has
    not been obtained.
        At 20.5.115.1500 NMAC New Mexico requires that owners and operators
    of regulated UST systems must notify PSTB at least 30 days prior to a
    permanent closure, temporary closure, return to service, change in
    service, or removal of a tank and/or lines by submitting to PSTB a 30-
    Day Notification Form. Federal regulations require that owners and
    operators of regulated underground storage tank systems provide 30-day
    notification if their intent is to permanently close or make the
    change-in-service, unless such action is in response to corrective
    action.
        At 20.5.115.1501.G NMAC, the State requires owners and operators of
    field-constructed UST systems that have been in temporary closure for 3
    months or more to perform an internal inspection, perform a tightness
    test on all piping, and perform functionality testing.
        New Mexico requires all UST systems installed on or after April 4,
    2008 to be double walled and use interstitial monitoring for release
    detection for tanks and/or piping (20.5.106.606(B) and 205.107.702(C)
    NMAC).
        New Mexico requires a mechanism to prevent overfilling by sounding
    an alarm when the liquid level in the tank reaches 90 percent of
    capacity or automatically stops the delivery of liquid to the tank when
    the level in the tank reaches 95 percent of capacity (20.5.106.613.A(2)
    NMAC). In addition to these options, Federal regulations also allow UST
    owners to meet this requirement by restricting the flow 30 minutes
    prior to overfilling, alerting the transfer operator with a high level
    alarm one minute before overfilling, or automatically shut off flow
    into the tank so that none of the fittings on top of the tank are
    exposed to product due to overfilling. New Mexico does not allow the
    use of this additional option.
        New Mexico requires owners and operators to perform inspections of
    containment sumps as part of their monthly walk-through inspections
    (20.5.107.707(A)(3) NMAC).
        New Mexico requires owners and operators of UST systems that have
    been in temporary closure for 12 months or more to perform a site
    assessment, empty the tank(s) to less than one inch of a regulated
    substance, and pay all outstanding tank fees. Also, UST systems that
    have been in delivery prohibition for more than 12 months are required
    to permanently close in accordance with the requirements in 20.5.115
    NMAC (20.5.115.1501(D) and (F) NMAC).
        New Mexico requires owners and operators who use Statistical
    Inventory Reconciliation (SIR) for release detection on underground
    pressurized piping to conduct an annual line tightness test, whereas in
    Federal owners may choose to use another form of monthly monitoring
    instead. The line tightness test must be able to detect a release of
    0.1 gallons per hour at one and half times the operating pressure
    (20.5.108.810.B NMAC).
        New Mexico requires owners and operators to submit a written report
    within 14 days of the discovery or confirmations of a release
    (20.5.119.1903.B NMAC and 20.5.120.2003.B NMAC).
        New Mexico also regulates underground storage tank systems at
    marinas (20.5.106.611 NMAC).
        New Mexico regulates hybrid storage tank systems in the same manner
    as airport hydrant systems and UST systems with field-constructed
    tanks. (See specifically, 20.5.114 NMAC at sections 1403(D), 1404,
    1405, 1407, 1408(C), 1409, 1410, 1412, 1413, and 1414.)

    [[Page 53183]]

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

        New Mexico 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 RCRA sections 9005 and 9006 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 New Mexico's UST program?

        The EPA incorporated by reference New Mexico's then approved UST
    program effective March 18, 1996 (61 FR 1216; January 18, 1996). In
    this document, the EPA is revising 40 CFR 282.81 to include the
    approved revisions.

    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 New
    Mexico 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 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 New
    Mexico'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 New Mexico UST program addressed in this direct final
    rule become final. The document incorporates by reference New Mexico's
    UST regulations and clarifies which of these provisions are included in
    the approved and federally enforceable program. By codifying the
    approved New Mexico 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 New Mexico
    program.
        The EPA is incorporating by reference the New Mexico approved UST
    program in 40 CFR 282.81. Section 282.81(d)(1)(i)(A) incorporates by
    reference for enforcement purposes the State's statutes and
    regulations. Section 282.81 also references the Attorney General's
    Statement, the Demonstration of Procedures for Adequate Enforcement,
    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 New Mexico's codification on enforcement?

        The EPA retains the authority under Subtitle I of RCRA sections
    9003(h), 9005 and 9006, 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 analogues to these
    provisions. Therefore, the EPA is not incorporating by reference such
    particular, approved New Mexico procedural and enforcement authorities.
    Section 282.81(d)(1)(ii) of 40 CFR lists those approved New Mexico
    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. Title
    40 CFR 281.12(a)(3)(ii) states that where an approved State program has
    provisions that are broader in scope than the Federal program, those
    provisions are not a part of the federally approved program. As a
    result, State provisions which are ``broader in coverage'' than the
    Federal program are not incorporated by reference for purposes of
    enforcement in part 282. Section 282.81(d)(1)(iii) of the codification
    simply lists for reference and clarity the New Mexico statutory and
    regulatory provisions which are ``broader in scope'' than the Federal
    program and which are not, therefore, part of the approved program
    being codified today. Provisions that are ``broader in scope'' cannot
    be enforced by EPA; the State, however, will continue to implement and
    enforce such provisions under State law.

    III. Statutory and Executive Order Reviews

        This action only applies to New Mexico'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 New Mexico'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

    [[Page 53184]]

    (2 U.S.C. 1531-1538). For the same reason, this action also does not
    significantly or uniquely affect the communities of tribal governments,
    as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

    D. Executive Order 13132: Federalism

        This action will not have substantial direct effects on the States,
    on the relationship between the National Government and the States, or
    on the distribution of power and responsibilities among the various
    levels of government, as specified in Executive Order 13132 (64 FR
    43255, August 10, 1999), because it merely approves and codifies State
    requirements as part of the State RCRA underground storage tank program
    without altering the relationship or the distribution of power and
    responsibilities established by RCRA.

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

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

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

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

    G. National Technology Transfer and Advancement Act

        Under RCRA section 9004(b), EPA grants a State's application for
    approval as long as the State meets the criteria required by RCRA. It
    would thus be inconsistent with applicable law for EPA, when it reviews
    a State approval application, to require the use of any particular
    voluntary consensus standard in place of another standard that
    otherwise satisfies the requirements of RCRA. Thus, the requirements of
    section 12(d) of the National Technology Transfer and Advancement Act
    of 1995 (15 U.S.C. 272 note) do not apply.

    H. Executive Order 12988: Civil Justice Reform

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

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

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

    J. Paperwork Reduction Act

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

    K. Executive Order 12898: Federal Actions To Address Environmental
    Justice in Minority Populations and Low Income Populations

        Executive Order 12898 (59 FR 7629, February 16, 1994) establishes
    Federal executive policy on environmental justice. Its main provision
    directs Federal agencies, to the greatest extent practicable and
    permitted by law, to make environmental justice part of their mission
    by identifying and addressing, as appropriate, disproportionately high
    and adverse human health or environmental effects of their programs,
    policies, and activities on minority populations and low-income
    populations in the United States. Because this rule approves pre-
    existing State rules which are at least equivalent to, and no less
    stringent than existing Federal requirements, and imposes no additional
    requirements beyond those imposed by State law, and there are no
    anticipated significant adverse human health or environmental effects,
    the rule is not subject to Executive Order 12898.

    L. Congressional Review Act

        The Congressional Review Act, 5 U.S.C. 801-808, generally provides
    that before a rule may take effect, the agency promulgating the rule
    must submit a rule report, which includes a copy of the rule, to each
    House of the Congress and to the Comptroller General of the United
    States. EPA will submit a report containing this document and other
    required information to the U.S. Senate, the U.S. House of
    Representatives, and the Comptroller General of the United States prior
    to publication in the Federal Register. A major rule cannot take effect
    until 60 days after it is published in the Federal Register. This
    action is not a ``major rule'' as defined by 5 U.S.C. 804(2). However,
    this action will be effective October 27, 2020 because it is a direct
    final rule.

    List of Subjects in 40 CFR Part 282

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

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

        Dated: July 20, 2020.
    Kenley McQueen,
    Regional Administrator, 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.  282.81 to read as follows:

    Sec.  282.81  New Mexico State-Administered Program.

        (a) History of the approval of New Mexico's Program. The State of
    New Mexico 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 New
    Mexico Environment Department, 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 New Mexico underground storage tank
    base program effective on November 16, 1990. A subsequent program
    revision application was approved effective on October 27, 2020.
        (b) Enforcement authority. New Mexico 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
    Subtitle I of RCRA sections 9003(h), 9005 and 9006, 42

    [[Page 53185]]

    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, New
    Mexico must revise its approved program to adopt new changes to the
    Federal subtitle I program which make it more stringent, in accordance
    with RCRA section 9004, 42 U.S.C. 6991c, and 40 CFR part 281, subpart
    E. If New Mexico obtains approval for the revised requirements pursuant
    to RCRA section 9004, 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. New Mexico has final approval for the
    following elements of its program application originally submitted to
    EPA and approved effective November 16, 1990, and the program revision
    application approved by EPA effective on October 27, 2020:
        (1) State statutes and regulations--(i) Incorporation by reference.
    The New Mexico 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 the New
    Mexico regulations that are incorporated by reference in this paragraph
    from New Mexico State Records Center and Archives, 1205 Camino Carlos
    Rey, Santa Fe, NM 87507; Phone number: (505)-476-7941; website http://164.64.110.134/nmac/. 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 the material at NARA,
    email fedreg.legal@nara.gov or go to http://www.archives.gov/federal-register/cfr/ibr-locations.html.
        (A) ``EPA-Approved New Mexico Statutory and Regulatory Requirements
    Applicable to the Underground Storage Tank Program'', June 2020. Only
    those provisions that have been approved by EPA are incorporated by
    reference. 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: New Mexico Statutes Annotated
    (NMSA) 1978, as amended through May 16, 2018:
        (1) Tax Administration Act, section 7-1-6.25;
        (2) Department of Environment Act, sections 9-7A-2(A) through (C),
    9-7A-3 through 9-7A-12;
        (3) Open Meetings Act, sections 10-15-1 through 10-15-4;
        (4) Inspection of Public Records Act, sections 14-2-1 through 14-2-
    12;
        (5) State Rules Act, section 14-4-5.2;
        (6) Environmental Improvement Act, sections 74-1-2, 74-1-3(A), (B),
    (D), and (F), 74-1-4 through 74-1-6, 74-1-7(A) introductory paragraph
    and (A)(13), 74-1-8(A) introductory paragraph and (A)(13), 74-1-8.1,
    74-1-9, 74-1-10;
        (7) Hazardous Waste Act, sections 74-4-2, 74-4-3(A) through (D),
    (F), (M), (N), (Q), and (V), 74-4-4 (except (A), (J), and (K)), 74-4-
    4.3, 74-4-4.8, 74-4-5, 74-4-7, 74-4-8, 74-4-10, 74-4-11(C), 74-4-12
    through 74-4-14; and
        (8) Groundwater Protection Act, sections 74-6B-2 through 74-6B-8,
    74-6B-13, 74-6B-14.
        (B) The regulatory provisions include: New Mexico Administrative
    Code (NMAC) Title 20 Environmental Protection, Chapter 5 Petroleum
    Storage Tanks, as amended effective July 24, 2018: Part 107 General
    Operating Requirements for Underground Storage Tank Systems, section
    20.5.107.712 Department Review and Approval of Plans, Installation,
    Operation, and Maintenance;
        Part 116 Delivery Prohibition; Part 123 Corrective Action Fund
    Administration; and Part 125 Administrative Review.
        (iii) Provisions not incorporated by reference. The following
    specifically identified sections and rules applicable to the New Mexico
    underground storage tank program that are broader in scope than the
    Federal program, are not part of the approved program, and are not
    incorporated by reference herein for enforcement purposes:
        (A) New Mexico Statutes Annotated (NMSA) 1978, as amended through
    May 16, 2018: Hazardous Waste Act, section 74-4-4.4; and Groundwater
    Protection Act, section 74-6B-9 and 74-6B-10.
        (B) New Mexico Administrative Code (NMAC) Title 20 Environmental
    Protection, Chapter 5 Petroleum Storage Tanks, as amended effective
    July 24, 2018: Part 102, section 202 New Storage Tank Systems; Part 103
    Annual Fee; Part 105 Certification of Tank Installers and Junior
    Installers; Requirements for Testers, section 509 Experience
    Requirements; Part 106 New and Upgraded Underground Storage Tank
    Systems: Design, Construction, and Installation, section 20.5.106.614
    Loading Racks; Part 115 Out-of-Service Storage Tank Systems and
    Closure, sections 1501.C(3), 1501.E, 1501.F(3), and 1501.G [for field-
    erected AST systems only]; Part 119 Corrective Action for Storage
    Action Tank Systems Containing Petroleum Products, sections
    20.5.119.1900.G and 20.5.119.1900.H; Part 120 Corrective Action for UST
    Systems Containing Other Regulated Substances, sections 20.5.120.2000.G
    and 20.5.120.2000.H; and Part 122 Qualification of Persons Performing
    Corrective Action.
        (2) Statement of legal authority. The Attorney General's Statement,
    signed by the Special Assistant Attorney General of New Mexico June 25,
    1990, and revisions to that Statement dated October 5, 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
    ``Adequate Enforcement of Compliance'' submitted as part of the
    original application on September 25, 1989 and as part of the program
    revision application for approval on October 11, 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 September 25,
    1989 and as part of the program revision application October 11, 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 New Mexico Environment Department, 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 New
    Mexico to read as follows:

    [[Page 53186]]

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

    * * * * *

    New Mexico

        (a) The statutory provisions include: New Mexico Statutes
    Annotated (NMSA) 1978, as amended through May 16, 2018 (2018
    Cumulative Supplement): Chapter 74, Environmental Improvement,
    Article 4 Hazardous Waste, sections 74-4-3(J), (R), and (S).
        (b) The regulatory provisions include: New Mexico Administrative
    Code (NMAC), as amended effective July 24, 2018: Title 20
    Environmental Protection, Chapter 5 Petroleum Storage Tanks:
        Part 101: General Provisions--Sections 20.5.101.2 ``Scope'';
    20.5.101.7 ``Definitions'' (except ``above ground storage tank'' and
    ``AST system'');
        Part 102: Registration of Tanks--Sections 20.5.102.200
    ``Existing Tanks'', 20.5.102.201 ``Transfer of Ownership'', and,
    20.5.102.203 ``Substantially Modified Storage Tank Systems'' through
    20.5.102.207 ``Registration Certificate'';
        Part 104: Operator Training--Sections 20.5.104.400 ``Classes of
    Operators'' through 20.5.104.412 ``Documentation and
    Recordkeeping'';
        Part 105: Certification of Tank Installers and Junior
    Installers; Requirements for Testers--Sections 20.5.105.500
    ``General Requirements for Installer of UST Systems'' through
    20.5.105.508 ``Individual Certification for Junior Installer of UST
    Systems'', and 205.105.510 ``On-Site Examination for Installer''
    through 20.5.105.520 ``Airport Hydrant Fuel Distribution Systems,
    UST Systems with Field-Constructed Tanks and Hybrid Storage Tank
    Systems'';
        Part 106: New and Upgraded Underground Storage Tank Systems:
    Design, Construction, and Installation--Sections 20.5.106.600
    ``General Performance Standards for UST Systems'' through
    20.5.106.613 ``Spill and Overfill Protection'', and 20.5.106.615
    ``Required Notification Prior to Installation'' through 20.5.106.617
    ``Alternate Methods'';
        Part 107: General Operating Requirements for Underground Storage
    Tank Systems--Sections 20.5.107.700 ``Operation and Maintenance of
    Underground Storage Tank Systems'' through 20.5.107.711 ``Required
    Notification Prior to Replacement, Repair and Modification'';
    20.5.107.713 ``Alternate Methods'' through 20.5.107.715
    ``Reporting'';
        Part 108: Release Detection For Underground Storage Tank
    Systems--Sections 20.5.108.800 ``General Release Detection
    Requirements for UST Systems'' through 20.5.105.816 ``Reporting'';
        Part 113 Underground Storage Tank Emergency Generator Systems--
    Sections 20.5.113.1300 ``General Requirements'' through
    20.5.113.1308 ``Reporting'';
        Part 114: Airport Hydrant Fuel Distribution Systems, UST Systems
    with Field-Constructed Tanks, and Hybrid Storage Tank Systems--
    Sections 20.5.114.1400 ``General Requirements for Airport Hydrant
    Fuel Distribution Systems, UST Systems with Field-Constructed Tanks,
    and Hybrid Storage Tank Systems'' through 20.5.114.1414
    ``Reporting'';
        Part 115: Out-of-Service Storage Tank Systems and Closure--
    Sections 20.5.115.1500 ``Required Notification Prior to Temporary or
    Permanent Closure, Return to Service, Removal, or Change in
    Service''; 20.5.115.1501 ``Out-of-Service Storage Tank Systems and
    Closure'' (except 20.5.115.1501.C(3), 1501.E, 1501.F(3), and 1501.G
    [for field-erected AST systems only]); and 20.5.115.1502 ``Permanent
    Closure'' through 20.5.115.1506 ``Closure Records'';
        Part 117: Financial Responsibility--Sections 20.5.117.1700
    ``Applicability''; 20.53.117.1703 ``Amount and Scope of Required
    Financial Responsibility'' through 20.5.117.1772 ``Form Document for
    Drawing on Financial Assurance Mechanisms'';
        Part 118: Reporting and Investigation of Suspected and Confirmed
    Releases--Sections 20.5.118.1800 ``Reporting of Spill or Release''
    through 20.5.118.1803 ``Spills and Overfills'';
        Part 119: Corrective Action for Storage Tank Systems Containing
    Petroleum Products--Sections 20.5.119.1900 ``General'' (except
    20.5.119.1900.G and 205.119.1900.H) through 20.5.119.1933
    ``Reporting'';
        Part 120: Corrective Action for UST Systems Containing Other
    Regulated Substances--Sections 20.5.120.2000 ``General'' (except
    20.5.120.2000.G and 205.120.2000.H) through 20.5.120.2030
    ``Reporting'';
        Part 121: Corrective Action Fund Use and Expenditures--Sections
    20.5.121.2100 ``Permissible Fund Expenditures'' through
    20.5.121.2106 ``Reserved Money''; and
        Part 124: Lender Liability--Sections 20.5.124.7 ``Definitions''
    through 20.5.124.2405 ``Operating a Storage Tank or Storage Tank
    System After Foreclosure''.
        (c) Copies of the New Mexico regulations that are incorporated
    by reference are available from the New Mexico State Records Center
    and Archives, 1205 Camino Carlos Rey, Santa Fe, NM 87507; Phone
    number: (505) 476-7941; website http://164.64.110.134/nmac/.
    * * * * *
    [FR Doc. 2020-16273 Filed 8-27-20; 8:45 am]
    BILLING CODE 6560-50-P