[Federal Register Volume 86, Number 172 (Thursday, September 9, 2021)]
[Rules and Regulations]
[Pages 50470-50477]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-19339]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 281 and 282
[EPA-R04-UST-2020-0614; FRL-8817-01-R4]
Tennessee: Final Approval of State Petroleum Underground Storage
Tank Program Revisions, Codification, and Incorporation by Reference
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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[[Page 50471]]
SUMMARY: The State of Tennessee (Tennessee or State) has applied to the
Environmental Protection Agency (EPA) for final approval of revisions
to its Petroleum Underground Storage Tank Program (Petroleum UST
Program) under subtitle I of the Resource Conservation and Recovery Act
(RCRA). Pursuant to RCRA, the EPA is taking direct final action,
subject to public comment, to approve revisions to the Petroleum UST
Program. The EPA has reviewed Tennessee's revisions and has determined
that these revisions satisfy all requirements needed for approval. In
addition, this action also codifies the EPA's approval of Tennessee's
revised Petroleum UST Program and incorporates by reference those
provisions of the State statutes and regulations that the EPA has
determined meet the requirements for approval.
DATES: This rule is effective November 8, 2021, unless the EPA receives
adverse comment by October 12, 2021. If the EPA receives adverse
comment, it will publish a timely withdrawal in the Federal Register
informing the public that the rule will not take effect. The
incorporation by reference of certain publications listed in the
regulations is approved by the Director of the Federal Register as of
November 8, 2021.
ADDRESSES: Submit your comments by one of the following methods:
Federal eRulemaking Portal: https://www.regulations.gov
(our preferred method). Follow the online instructions for submitting
comments.
Email: [email protected]. Include the Docket ID No. EPA-
R04-UST-2020-0614 in the subject line of the message.
Instructions: Submit your comments, identified by Docket ID No.
EPA-R04-UST-2020-0614, via the Federal eRulemaking Portal at https://www.regulations.gov. Follow the online instructions for submitting
comments. Once submitted, comments cannot be edited or removed from
https://www.regulations.gov. The EPA may publish any comment received
to its public docket. Do not submit electronically any information you
consider to be Confidential Business Information (CBI) or other
information whose disclosure is restricted by statute. Multimedia
submissions (audio, video, etc.) must be accompanied by a written
comment. The written comment is considered the official comment and
should include discussion of all points you wish to make. The EPA will
generally not consider comments or comment contents located outside of
the primary submission (i.e., on the web, cloud, or other file sharing
system). For additional submission methods, the full EPA public comment
policy, information about CBI or multimedia submissions, and general
guidance on making effective comments, please visit: https://www.epa.gov/dockets/commenting-epa-dockets.
Out of an abundance of caution for members of the public and our
staff, the public's access to the EPA Region 4 Offices is by
appointment only to reduce the risk of transmitting COVID-19. We
encourage the public to submit comments via https://www.regulations.gov
or via email. The EPA encourages electronic comment submittals, but if
you are unable to submit electronically or need other assistance,
please contact Winston Smith, the contact listed in the FOR FURTHER
INFORMATION CONTACT provision below. The index to the docket for this
action and all documents that form the basis of this codification and
associated publicly available docket materials are available for review
on the https://www.regulations.gov website. The EPA encourages
electronic reviewing of these documents, but if you are unable to
review these documents electronically, please contact Winston Smith to
schedule an appointment to view the documents at the Region 4 Offices.
Interested persons wanting to examine these documents should make an
appointment at least two weeks in advance. EPA Region 4 requires all
visitors to adhere to the COVID-19 protocol. Please contact Winston
Smith for the COVID-19 protocol requirements for your appointment.
Please also contact Winston Smith if you need assistance in a
language other than English or if you are a person with disabilities
who needs a reasonable accommodation at no cost to you. For further
information on EPA Docket Center services and the current status,
please visit us online at https://www.epa.gov/dockets.
The EPA continues to carefully and continuously monitor information
from the Centers for Disease Control and Prevention (CDC), local area
health departments, and our Federal partners so that we can respond
rapidly as conditions change regarding COVID-19.
FOR FURTHER INFORMATION CONTACT: Winston Smith, RCRA Programs and
Cleanup Branch, Land, Chemicals, and Redevelopment Division, U.S.
Environmental Protection Agency, Region 4, Atlanta Federal Center, 61
Forsyth Street SW, Atlanta, Georgia 30303-8960; Phone number: (404)
562-9467; email address: [email protected]. Please contact Winston Smith
by phone or email for further information.
SUPPLEMENTARY INFORMATION:
I. Approval of Revisions to Tennessee's Petroleum Underground Storage
Tank Program
A. Why are revisions to state UST programs necessary?
States that have received final approval from the EPA under section
9004(b) of RCRA, 42 U.S.C. 6991c(b), must maintain a UST program that
is no less stringent than the Federal program. When the EPA revises 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. Most commonly, states must change
their programs because of changes to the EPA's regulations in title 40
of the Code of Federal Regulations (CFR) part 280. States can also
initiate changes on their own to their UST programs and these changes
must then be approved by the EPA.
B. What decision has the EPA made in this rule?
On October 15, 2018, in accordance with 40 CFR 281.51(a), Tennessee
submitted a complete program revision application (State Application)
seeking approval of changes to its Petroleum UST Program. The program
revisions addressed in the State Application correspond to the EPA
final rule published on July 15, 2015 (80 FR 41566), which revised the
1988 UST regulations and the 1988 state program approval (SPA)
regulations (2015 Federal Revisions). As required by 40 CFR 281.20, the
State Application contains the following: A transmittal letter from the
Governor requesting approval; a description of the program and
operating procedures; a demonstration of the State's procedures to
ensure adequate enforcement; a Memorandum of Agreement outlining the
roles and responsibilities of the EPA and the implementing agency; an
Attorney General's Statement; and copies of all relevant State statutes
and regulations. The EPA has reviewed the State Application and has
determined that the revisions to Tennessee's Petroleum UST Program are
no less stringent than the corresponding Federal requirements in
subpart C of 40 CFR part 281, and that the Tennessee Petroleum UST
Program continues to provide adequate enforcement of compliance.
Therefore, the EPA grants Tennessee final approval to operate its
Petroleum UST Program with the revisions described in the State
Application, and as outlined below. As the Tennessee UST program is a
partially approved program, this approval covers petroleum underground
[[Page 50472]]
storage tanks only and does not include hazardous substance underground
storage tanks under subtitle I of RCRA. The Tennessee Department of
Environment and Conservation (TDEC) is the lead implementing agency for
the Petroleum UST Program in Tennessee.
C. What is the effect of this approval on the regulated community?
Section 9004(b) of RCRA, 42 U.S.C. 6991c(b), as amended, allows the
EPA to approve state UST programs to operate in lieu of the Federal
program. With this approval, the changes described in the State
Application will become part of the approved State Petroleum UST
Program, and therefore will be federally enforceable. Tennessee will
continue to have primary enforcement authority and responsibility for
its Petroleum UST Program. This action does not impose additional
requirements on the regulated community because the regulations being
approved by this rule are already in effect in the State of Tennessee
and are not changed by this action. This action merely approves the
existing State regulations as meeting the 2015 Federal Revisions and
rendering them federally enforceable.
D. Why is the EPA using a direct final rule?
The EPA is publishing this direct final rule without a prior
proposed rule because we view this as a noncontroversial action, and we
anticipate no adverse comment. Tennessee addressed all comments it
received during its comment period when the rules and regulations being
considered in this document were proposed at the State level.
E. What happens if the EPA receives comments that oppose this action?
Along with this direct final rule, the EPA is simultaneously
publishing a separate document in the ``Proposed Rules'' section of
this Federal Register that serves as the proposal to approve the
State's Petroleum UST Program revisions and provides an opportunity for
public comment. If the EPA receives comments that oppose this approval,
the EPA will withdraw this direct final rule by publishing a document
in the Federal Register before it becomes effective. The EPA will make
any further decision on approval of the State Application after
considering all comments received during the comment period. The EPA
will then address all public comments in a later final rule. You may
not have another opportunity to comment. If you want to comment on this
approval, you must do so at this time.
F. For what has Tennessee previously been approved?
On September 1, 1996, Tennessee submitted a complete State program
approval application seeking approval of its Petroleum UST Program
under subtitle I of RCRA. Tennessee did not request approval of the
underground storage tank program for hazardous substances. Effective
January 19, 1999, the EPA granted final approval for Tennessee to
administer its Petroleum UST Program in lieu of the Federal UST program
(63 FR 63793, Nov. 17, 1998). Effective July 27, 1999, the EPA
incorporated by reference and codified the federally approved Tennessee
Petroleum UST Program (64 FR 28927, May 28, 1999). As a result of the
EPA's approval, these provisions became subject to the EPA's corrective
action, inspection, and enforcement authorities under RCRA sections
9003(h), 9005, and 9006, 42 U.S.C. 6991b(h), 6991d, and 6991e, and
other applicable statutory and regulatory provisions.
G. What changes is the EPA approving with this action and what
standards do we use for review?
In order to be approved, each state program revision application
must meet the general requirements in 40 CFR 281.11 (General
Requirements), and the specific requirements in 40 CFR part 281,
subpart B (Components of a Program Application), subpart C (Criteria
for No Less Stringent), and subpart D (Adequate Enforcement of
Compliance).
As more fully described below, the State has made changes to its
Petroleum UST Program to reflect the 2015 Federal Revisions. These
changes are included in Tennessee's UST Rules at Tenn. Comp. R. & Regs.
0400-18-01-.01 to .17, effective October 13, 2018. The EPA is approving
the State's changes because they are no less stringent than the Federal
UST program, and because the revised Tennessee Petroleum UST Program
will continue to provide for adequate enforcement of compliance as
required by 40 CFR 281.11(b) and part 281, subparts C and D, after this
approval.
TDEC continues to be the lead implementing agency for the Petroleum
UST Program in Tennessee. TDEC has broad statutory and regulatory
authority to regulate the installation, operation, maintenance, and
closure of USTs, as well as UST releases, under the Tennessee Petroleum
Underground Storage Tank Act (the UST Act) of 1988, Tenn. Code Ann.
sections 68-215-101 to 68-215-204 (2018), and the Tennessee UST Rules
at Tenn. Comp. R. & Regs. 0400-18-01-.01 to .17 (2018).
The following State authorities provide authority for compliance
monitoring as required by 40 CFR 281.40: Tenn. Code Ann. sections 68-
215-107(e)(1) through (4) and 68-215-123; and Tenn. Comp. R. & Regs.
0400-18-01-.03(2).
The following State authorities provide authority for enforcement
response as required by 40 CFR 281.41: Tenn. Code Ann. sections 68-215-
106(c), (e), and (f), 68-215-107(b), (c), (d), (e)(5), and (e)(6), 68-
215-114, 68-215-116, 68-215-118, 68-215-119, 68-215-121, 68-215-122,
and 4-5-313; and Tenn. Comp. R. & Regs. 0400-18-01-.09(17) and 0400-18-
01-.15.
The following State authorities provide authority for enabling
public participation in the State enforcement process, including
citizen intervention and the submission of complaints, as required by
40 CFR 281.42: Tenn. Code Ann. sections 68-215-121(e), 68-215-123, 4-5-
308(a) through (c), and 4-5-310; and Tenn. Comp. R. & Regs. 0400-18-
01-.06(11). Further, through a Memorandum of Agreement between TDEC and
the EPA, effective October 12, 2018, the State maintains procedures for
receiving and ensuring proper consideration of information about
violations submitted by the public, and TDEC will not oppose citizen
intervention when permissive intervention is allowed by statute, rule,
or regulation.
Pursuant to 40 CFR 281.43, the State is required to provide
authority for enabling the sharing of information in the State files
obtained or used in the administration of the State Petroleum UST
Program with the EPA. Through a Memorandum of Agreement between TDEC
and the EPA, effective October 12, 2018, the State agrees to furnish
the EPA, upon request, any information in State files obtained or used
in the administration of the State Petroleum UST Program. Further, the
following State authorities provide authority for enabling the sharing
of information in the State files obtained or used in the
administration of the State Petroleum UST Program with the EPA as
required by 40 CFR 281.43: Tenn. Code Ann. section 68-215-108 and Tenn.
Comp. R. & Regs. 0400-18-01-.01(5)(e).
To qualify for final approval, revisions to a state's UST program
must be no less stringent than the 2015 Federal Revisions. In the 2015
Federal Revisions, the EPA addressed UST systems deferred in the 1988
UST regulations, and added, among other things: New operation and
maintenance requirements; secondary containment
[[Page 50473]]
requirements for new and replaced tanks and piping; operator training
requirements; and a requirement to ensure UST system compatibility
before storing certain biofuel blends. In addition, the EPA removed
past deferrals for emergency generator tanks, field constructed tanks,
and airport hydrant systems. Tennessee adopted all of the required 2015
Federal Revisions at Tenn. Comp. R. & Regs. 0400-18-01-.01 to .17
(2018).
As part of the State Application, the Tennessee Attorney General
has certified that the State regulations provide for adequate
enforcement of compliance and meet the no less stringent criteria in 40
CFR part 281, subparts C and D. The EPA is relying on this
certification, in addition to the analysis submitted by the State, in
approving the State's changes.
H. Where are the revised State rules different from the Federal rules?
States may enact laws that are more stringent than their Federal
counterparts. See RCRA section 9008, 42 U.S.C. 6991g. When an approved
state program includes requirements that are considered more stringent
than those required by Federal law, the more stringent requirements
become part of the federally approved program in accordance with 40 CFR
281.12(a)(3)(i). The EPA has determined that some of Tennessee's
regulations are considered more stringent than the Federal program, and
upon approval, they will become part of the federally approved State
Petroleum UST Program and therefore federally enforceable.
In addition, states may enact laws which are broader in scope than
their Federal counterparts in accordance with 40 CFR 281.12(a)(3)(ii).
State requirements that go beyond the scope of the Federal program are
not part of the federally approved program and the EPA cannot enforce
them. Although these requirements are enforceable by the State in
accordance with Tennessee law, they are not Federal RCRA requirements.
The EPA considers the following State requirements to be broader in
scope than the Federal program and therefore not part of the federally
approved State Petroleum UST Program:
Statutory Broader in Scope Provisions
i. Tenn. Code Ann. section 68-215-103(17)(A)(iii) and (iv), as to
the definition of ``Responsible party,'' insofar as these provisions
include entities other than owners and operators, as these terms are
defined in 40 CFR 280.12.
ii. Tenn. Code Ann. section 68-215-104(3), insofar as it refers to
the payment of fees associated with the Petroleum UST Program.
iii. Tenn. Code Ann. section 68-215-104(4), insofar as it refers to
reimbursement from Tennessee's Petroleum Underground Storage Tank Fund
(State Fund).
iv. Tenn. Code Ann. section 68-215-106(a)(6), insofar as it places
notification requirements on persons other than owners and operators,
as these terms are defined in 40 CFR 280.12.
v. Tenn. Code Ann. section 68-215-109, insofar as it establishes
annual tank fees and provides for promulgation of regulations regarding
these fees.
vi. Tenn. Code Ann. section 68-215-110(b) through (h), insofar as
these provisions provide for the creation of the State Fund and
environmental assurance fee.
vii. Tenn. Code Ann. section 68-215-111, insofar as it provides
criteria for the qualified expenditure of funds, requirements for fund
eligibility, and promulgation of regulations regarding the State Fund.
viii. Tenn. Code Ann. section 68-215-115, insofar as it provides
the procedures for the State to recover its costs for investigation,
identification, containment, or clean up of a particular site.
ix. Tenn. Code Ann. section 68-215-125, insofar as it prohibits the
State Fund from being considered an insurance company or a member of
the Tennessee Insurance Guaranty Association.
x. Tenn. Code Ann. section 68-215-129, insofar as it provides
criteria for cleanup contracts and reimbursement from the State Fund.
Regulatory Broader in Scope Provisions
i. Tenn. Comp. R. & Regs. 0400-18-01-.01(4)1.(iii) and (iv), as to
the definition for ``Responsible party,'' insofar as these provisions
include entities other than owners and operators, as these terms are
defined in 40 CFR 280.12.
ii. Tenn. Comp. R. & Regs. 0400-18-01-.02(1)(a)2., insofar as it
requires owners to submit annual tank fees as part of the notification
requirement.
iii. Tenn. Comp. R. & Regs. 0400-18-01-.02(4)(c)6.(ii)(II)IV.,
insofar as it refers to tank fees and late penalties.
iv. Tenn. Comp. R. & Regs. 0400-18-01-.04(1)(e), insofar as it
requires inspection of dispensers.
v. Tenn. Comp. R. & Regs. 0400-18-01-.05(1)(b) and (c), insofar as
these provisions contain requirements for coverage and reimbursement
from the State Fund.
vi. Tenn. Comp. R. & Regs. 0400-18-01-.06(2)(b)1., as to the text
``The fund shall not reimburse the owner, operator, and/or other
responsible party of [the] petroleum UST system for the cost of
generating duplicate data,'' insofar as this text pertains to the State
Fund.
vii. Tenn. Comp. R. & Regs. 0400-18-01-.06(3)(f), insofar as it
provides eligibility requirements for the State Fund.
viii. Tenn. Comp. R. & Regs. 0400-18-01-.06(7)(c), insofar as it
provides for reimbursement from the State Fund.
ix. Tenn. Comp. R. & Regs. Appendix 0400-18-01-.07-A, as to the
text ``transport and'' in (4)(a) and (4)(e), insofar as these
provisions pertain to the transportation of a tank.
x. Tenn. Comp. R. & Regs. 0400-18-01-.08(5)(a) and (b), insofar as
these provisions establish eligibility requirements for the State Fund.
xi. Tenn. Comp. R. & Regs. 0400-18-01-.09(1) through (16), insofar
as these provisions regulate disbursements, coverage, and fund
eligibility regarding the State Fund and provide for approval of
corrective action contractors and recovery of State costs.
xii. Tenn. Comp. R. & Regs. 0400-18-01-.10, insofar as it
establishes a system and schedule for the collection of fees under the
UST Act.
xiii. Tenn. Comp. R. & Regs. 0400-18-01-.12(3), insofar as it
establishes eligibility requirements for the State Fund.
xiv. Tenn. Comp. R. & Regs. 0400-18-01-.12(4), insofar as it
pertains to the payment of annual tank fees.
II. Codification
A. What is codification?
Codification is the process of placing citations and references to
a state's statutes and regulations that comprise a state's approved UST
program into the CFR. The EPA codifies its approval of state programs
in 40 CFR part 282 and incorporates by reference state statutes and
regulations that the EPA can enforce, after the approval is final,
under sections 9005 and 9006 of RCRA, and any other applicable
statutory provisions. The incorporation by reference of the EPA-
approved state programs in the CFR should substantially enhance the
public's ability to discern the status of the approved state UST
programs 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.
[[Page 50474]]
B. What is the history of codification of Tennessee's Petroleum UST
Program?
In 1999, the EPA incorporated by reference and codified Tennessee's
approved Petroleum UST Program at 40 CFR 282.92 (64 FR 28927, May 28,
1999). Through this action, the EPA is amending 40 CFR 282.92 to
incorporate by reference and codify Tennessee's revised Petroleum UST
Program.
C. What codification decisions is the EPA making in this rule?
In this rule, the EPA is finalizing regulatory text that
incorporates by reference the federally approved Tennessee Petroleum
UST Program, including the revisions made to the Petroleum UST Program
based on the 2015 Federal Revisions. In accordance with the
requirements of 1 CFR 51.5, the EPA is incorporating by reference
Tennessee's statutes and regulations as described in the amendments to
40 CFR part 282 set forth below. These documents are available through
https://www.regulations.gov. This codification reflects the State
Petroleum UST Program that will be in effect at the time the EPA's
approval of the revisions to the Tennessee Petroleum UST Program
addressed in this direct final rule becomes final. If, however, the EPA
receives substantive comment on the proposed rule, the EPA will
withdraw this direct final rule and this codification will not take
effect. The EPA will consider all comments and will make a decision on
program approval and codification in a future final rule. By codifying
the approved Tennessee Petroleum UST Program and by amending the CFR,
the public will more easily be able to discern the status of the
federally approved requirements of the Tennessee Petroleum UST Program.
Specifically, in 40 CFR 282.92(d)(1)(i), the EPA is incorporating
by reference the EPA-approved Tennessee Petroleum UST Program. Section
282.92(d)(1)(ii) identifies the State's statutes and regulations that
are part of the approved State Petroleum UST Program, although not
incorporated by reference for enforcement purposes, unless they impose
obligations on the regulated entity. Section 282.92(d)(1)(iii)
identifies the State's statutory and regulatory provisions that are
broader in scope or external to the State's approved Petroleum UST
Program and therefore not incorporated by reference. Section
282.92(d)(2) through (5) reference the Attorney General's Statement,
Demonstration of Adequate Enforcement Procedures, Program Description,
and Memorandum of Agreement, which are part of the State Application
and part of the Petroleum UST Program under subtitle I of RCRA.
D. What is the effect of the EPA's codification of the federally
approved Tennessee Petroleum UST Program on enforcement?
The EPA retains the authority under sections 9003(h), 9005, and
9006 of subtitle I of RCRA, 42 U.S.C. 6991b(h), 6991d, and 6991e, and
other applicable statutory and regulatory provisions, to undertake
corrective action, inspections, and enforcement actions, and to issue
orders in approved states. If the EPA determines it will take such
actions in Tennessee, the EPA will rely on Federal sanctions, Federal
inspection authorities, and other Federal procedures rather than the
State analogs. Therefore, the EPA is not incorporating by reference
Tennessee's procedural and enforcement authorities, although they are
listed in 40 CFR 282.92(d)(1)(ii).
E. What State provisions are not part of the codification?
As discussed in section I.H. above, some provisions of the State's
Petroleum UST Program are not part of the federally approved State
Petroleum UST Program because they are broader in scope than the
Federal UST program. Where an approved state program has provisions
that are broader in scope than the Federal program, those provisions
are not a part of the federally approved program. As a result, State
provisions which are broader in scope than the Federal program are not
incorporated by reference for purposes of enforcement in part 282. See
40 CFR 281.12(a)(3)(ii). In addition, provisions that are external to
the state UST program approval requirements, but included in the State
Application, are also being excluded from incorporation by reference in
part 282. For reference and clarity, 40 CFR 282.92(d)(1)(iii) lists the
Tennessee statutory and regulatory provisions which are broader in
scope than the Federal program or external to State UST program
approval requirements. These provisions are, therefore, not part of the
approved UST Program that the EPA is codifying. Although these
provisions cannot be enforced by the EPA, the State will continue to
implement and enforce such provisions under State law.
III. Statutory and Executive Order (E.O.) Reviews
The EPA's actions merely approve and codify Tennessee's revised
Petroleum UST Program requirements pursuant to RCRA section 9004, and
do not impose additional requirements other than those imposed by State
law. For that reason, these actions:
Are not significant regulatory actions and have been
exempted from review by the Office of Management and Budget under
Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR
3821, January 21, 2011);
Do not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Are certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Do not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Do not have federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Are not economically significant regulatory actions based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Are not subject to Executive Order 13211 (66 FR 28355, May
22, 2001) because they are not ``significant regulatory actions'' under
Executive Order 12866 (58 FR 51735, October 4, 1993);
Are not subject to the requirements of section 12(d) of
the National Technology Transfer and Advancement Act of 1995 (15 U.S.C.
272 note) because application of those requirements would be
inconsistent with RCRA;
Do not provide the EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994); and
Do not apply on any Indian reservation land or in any
other area where the EPA or an Indian tribe has demonstrated that a
tribe has jurisdiction. The rule does not have tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor
will it impose substantial direct costs on tribal governments or
preempt tribal law.
As required by section 3 of Executive Order 12988 (61 FR 4729,
February 7, 1996), in issuing this rule, the EPA has taken the
necessary steps to eliminate drafting errors and ambiguity, minimize
potential litigation, and provide a clear legal standard for affected
conduct.
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement
[[Page 50475]]
Fairness Act of 1996, generally provides that before a rule may take
effect, the agency promulgating the rule must submit a rule report,
which includes a copy of the rule, to each House of the Congress and to
the Comptroller General of the United States. The EPA will submit a
report containing this document and other required information to the
U.S. Senate, the U.S. House of Representatives, and the Comptroller
General of the United States prior to publication in the Federal
Register. A major rule cannot take effect until 60 days after it is
published in the Federal Register. This action is not a ``major rule''
as defined by 5 U.S.C. 804(2). This final action will be effective
November 8, 2021.
List of Subjects in 40 CFR Parts 281 and 282
Environmental protection, Administrative practice and procedure,
Hazardous substances, Incorporation by reference, Indian country,
Petroleum, Reporting and recordkeeping requirements, State program
approval, Underground storage tanks.
Authority: This action is issued under the authority of sections
2002(a), 7004(b), 9004, 9005, and 9006 of the Solid Waste Disposal
Act, as amended, 42 U.S.C. 6912(a), 6974(b), 6991c, 6991d, and
6991e.
Dated: August 30, 2021.
John Blevins,
Acting Regional Administrator, Region 4.
For the reasons set forth in the preamble, the EPA is amending 40
CFR part 282 as follows:
PART 282--APPROVED UNDERGROUND STORAGE TANK PROGRAMS
0
1. The authority citation for part 282 continues to read as follows:
Authority: 42 U.S.C. 6912, 6991c, 6991d, and 6991e.
0
2. Revise Sec. 282.92 to read as follows:
Sec. 282.92 Tennessee State-Administered Program.
(a) History of the approval of Tennessee's program. The State of
Tennessee (Tennessee or State) is approved to administer and enforce a
petroleum underground storage tank (UST) 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
Petroleum Underground Storage Tank Program (Petroleum UST Program), as
administered by the Tennessee Department of Environment and
Conservation (TDEC), was approved by the EPA pursuant to 42 U.S.C.
6991c and part 281 of this chapter. The EPA approved the Tennessee
Petroleum UST Program on November 17, 1998, and it was effective on
January 15, 1999. A subsequent program revision was approved by the EPA
and became effective November 8, 2021.
(b) Enforcement authority. Tennessee has primary responsibility for
administering and enforcing its federally approved Petroleum UST
Program. However, the EPA retains the authority to exercise its
corrective action, inspection, and enforcement authorities under
sections 9003(h), 9005, and 9006 of subtitle I of RCRA, 42 U.S.C.
6991b(h), 6991d, and 6991e, as well as under any other applicable
statutory and regulatory provisions. The EPA also retains all authority
to operate the hazardous substance underground storage tank program.
(c) Retention of program approval. To retain program approval,
Tennessee must revise its approved Petroleum UST 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 Tennessee obtains approval for revised
requirements pursuant to section 9004 of RCRA, 42 U.S.C. 6991c, the
newly approved statutory and regulatory provisions will be added to
this subpart and notice of any change will be published in the Federal
Register.
(d) Final approval. Tennessee has final approval for the following
elements of its Petroleum UST Program submitted to the EPA and approved
effective January 15, 1999, and the program revisions approved by the
EPA effective on November 8, 2021.
(1) State statutes and regulations--(i) Incorporation by reference.
The Tennessee materials cited in this paragraph (d)(1)(i) and listed in
appendix A to this part, are incorporated by reference as part of the
Petroleum UST 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
access copies of the Tennessee statutes and regulations that are
incorporated by reference in this paragraph (d)(1)(i) from the
Tennessee Department of Environment and Conservation, Division of
Underground Storage Tanks, William R. Snodgrass Tennessee Tower, 12th
Floor, 312 Rosa L. Parks Ave., Nashville, TN 37243; Phone number: (615)
532-0730; website: https://www.tn.gov/environment/program-areas/ust-underground-storage-tanks/ust/act-rules-and-policies.html. You may
inspect all approved material at the EPA Region 4, 61 Forsyth Street
SW, Atlanta, Georgia 30303; Phone number: (404) 562-9900; or the
National Archives and Records Administration (NARA), email:
[email protected]; website: https://www.archives.gov/federal-register/cfr/ibr-locations.html.
(A) ``Tennessee Statutory Requirements Applicable to the Petroleum
Underground Storage Tank Program,'' dated May 11, 2021.
(B) ``Tennessee Regulatory Requirements Applicable to the Petroleum
Underground Storage Tank Program,'' dated May 11, 2021.
(ii) Legal basis. The EPA considered the following statutes and
regulations which provide the legal basis for the State's
implementation of the Petroleum UST Program, but these provisions do
not replace Federal authorities. Further, these provisions are not
being incorporated by reference, unless the provisions place
requirements on regulated entities.
(A) Tennessee Petroleum Underground Storage Tank Act (the UST Act)
of 1988, Tenn. Code Ann. sections 68-215-101 to 68-215-204 (2018). (1)
Section 68-215-106(c), (e), and (f), insofar as these provisions
provide for delivery prohibition and enforcement of the Petroleum UST
Program.
(2) Section 68-215-106(d), insofar as it provides for criminal
prosecution under the UST Act.
(3) Section 68-215-107(a), insofar as it establishes authority over
the placement and storage of petroleum substances in underground
storage tanks, release prevention, release detection, release
correction, closure, and post-closure care of petroleum underground
storage tanks in Tennessee.
(4) Section 68-215-107(b), insofar as it provides for the issuance
of orders to enforce the Petroleum UST Program.
(5) Section 68-215-107(c) and (d), insofar as these provisions
identify specific authorities for release response and corrective
actions, including in response to an imminent and substantial danger.
(6) Section 68-215-107(e), insofar as it identifies specific
authorities for compliance monitoring and enforcement.
(7) Section 68-215-107(f), insofar as it provides for the
promulgation of regulations for the implementation of the Petroleum UST
Program.
(8) Section 68-215-107(g)(1), insofar as it provides evaluation
considerations for the State's approval of a cleanup plan.
[[Page 50476]]
(9) Section 68-215-108, insofar as it provides for the protection
of ``proprietary'' information and sharing of information in the files
obtained or used in the administration of the Petroleum UST Program
with the EPA.
(10) Section 68-215-114, insofar as it provides for the issuance
and enforcement of correction orders; and establishes liability costs
for responsible parties.
(11) Section 68-215-116, insofar as it provides for an assessment
of penalties under the UST Act.
(12) Section 68-215-117, insofar as it provides for immunity from
liability under the UST Act in certain circumstances.
(13) Section 68-215-118, insofar as it identifies authorities for
enforcement response, specifically authority over governmental
entities, under the UST Act.
(14) Section 68-215-119, insofar as it identifies authorities for
enforcement response and provides for review of orders and appeal of
any determination by the Tennessee Department of Environment and
Conservation (TDEC) under the UST Act.
(15) Section 68-215-120, insofar as it provides for criminal
prosecution under the UST Act.
(16) Section 68-215-121, insofar as it identifies authorities for
enforcement response and public participation, provides for assessment
of civil penalties and damages, and establishes third-party
intervention under the UST Act.
(17) Section 68-215-122, insofar as it identifies authorities for
enforcement response and provides for injunctions as a legal remedy
under the UST Act.
(18) Section 68-215-123, insofar as it identifies specific
authorities for compliance monitoring and public participation and
provides for any person to submit a complaint against any person for
violating the UST Act.
(19) Section 68-215-126, insofar as it establishes authority in
relation to local laws or regulations.
(20) Section 68-215-127, insofar as it establishes authority over
releases of petroleum from underground storage tanks and creates the
soil and groundwater classification and cleanup criteria.
(B) Tennessee's Underground Storage Tank Regulations, Tenn. Comp.
R. & Regs. 0400-18-01-.01 to .17 (2018). (1) 0400-18-01-.01(5)(e),
insofar as it provides for the State's sharing of information with the
EPA.
(2) 0400-18-01-.03(2), insofar as it identifies specific
authorities for compliance monitoring and provides for reporting and
maintenance of records.
(3) 0400-18-01-.06(11), insofar as it provides for public
participation in the corrective action process.
(4) 0400-18-01-.08(20) and (21), insofar as these provisions
provide procedures governing the forfeiture of financial assurance and
release of financial assurance mechanism documents.
(5) 0400-18-01-.09(17), insofar as it provides for assessment of
civil penalties for failure to comply with orders issued under the UST
Act.
(6) 0400-18-01-.11, insofar as it provides for appeal of any
determination by TDEC under the provisions of Tennessee's Underground
Storage Tank Regulations, procedures for contested cases, and the State
Administrative Procedures Act.
(7) 0400-18-01-.15, insofar as it identifies specific authorities
for enforcement response and delivery prohibition requirements.
(C) Tennessee's Uniform Administrative Procedures Act, Part 3--
Contested Cases, Tenn. Code Ann. sections 4-5-301 to 4-5-325 (2018).
(1) Section 4-5-308(a) through (c), insofar as these provisions
identify authorities for public participation and provide for the
filing of pleadings, briefs, motions, and other documents.
(2) Section 4-5-310, insofar as it identifies authorities for
public participation and provides for intervention in contested case
proceedings.
(3) Section 4-5-313, insofar as it identifies authorities for
enforcement response and provides procedures for contested cases.
(iii) Other provisions not incorporated by reference. The following
statutory and regulatory provisions applicable to the Tennessee
Petroleum UST Program are broader in scope than the Federal program or
external to the State UST program approval requirements. Therefore,
these provisions are not part of the approved Petroleum UST Program and
are not incorporated by reference in this section:
(A) Tennessee Petroleum Underground Storage Tank Act (the UST Act)
of 1988, Tenn. Code Ann. sections 68-215-101 to 68-215-204 (2018). (1)
Section 68-215-102 is external insofar as it contains the State's
public policy for regulating underground storage tanks.
(2) Section 68-215-103(17)(A)(iii) and (iv), as to the definition
of ``Responsible party,'' insofar as these provisions include entities
other than owners and operators, as these terms are defined in 40 CFR
280.12.
(3) Section 68-215-104(3), insofar as it refers to the payment of
fees associated with the Petroleum UST Program.
(4) Section 68-215-104(4), insofar as it refers to reimbursement
from Tennessee's Petroleum Underground Storage Tank Fund (State Fund).
(5) Section 68-215-106(a)(6), insofar as it places notification
requirements on persons other than owners and operators, as these terms
are defined in 40 CFR 280.12.
(6) Section 68-215-106(b)(1) and (2) are external insofar as these
provisions contain obligations on the State agency, not a regulated
entity.
(7) Section 68-215-109, insofar as it establishes annual tank fees
and provides for promulgation of regulations regarding these fees.
(8) Section 68-215-110(b) through (h), insofar as these provisions
provide for the creation of the State Fund and environmental assurance
fee.
(9) Section 68-215-111, insofar as it provides criteria for the
qualified expenditure of funds, requirements for fund eligibility, and
promulgation of regulations regarding the State Fund.
(10) Section 68-215-115, insofar as it provides the procedures for
the State to recover its costs for investigation, identification,
containment, or cleanup of a particular site.
(11) Section 68-215-125, insofar as it prohibits the State Fund
from being considered an insurance company or a member of the Tennessee
Insurance Guaranty Association.
(12) Section 68-215-129, insofar as it provides criteria for
cleanup contracts and reimbursement from the State Fund.
(B) Tennessee's Underground Storage Tank Regulations, Tenn. Comp.
R. & Regs. 0400-18-01-.01 to .17 (2018). (1) 0400-18-01-.01(4)1.(iii)
and (iv), as to the definition for ``Responsible party,'' insofar as
these provisions include entities other than owners and operators, as
these terms are defined in 40 CFR 280.12.
(2) 0400-18-01-.01(5)(a) through (d) are external insofar as these
provisions contain obligations on the State agency with respect to
proprietary information, not a regulated entity.
(3) 0400-18-01-.02(1)(a)2., insofar as it requires owners to submit
annual tank fees as part of the notification requirement.
(4) 0400-18-01-.02(4)(c)6.(ii)(II)IV., insofar as it refers to tank
fees and late penalties.
(5) 0400-18-01-.04(1)(e), insofar as it requires inspection of
dispensers.
(6) 0400-18-01-.05(1)(b) and (c), insofar as these provisions
contain requirements for coverage and reimbursement from the State
Fund.
(7) 0400-18-01-.06(2)(b)1., as to the text ``The fund shall not
reimburse the
[[Page 50477]]
owner, operator, and/or other responsible party of [the] petroleum UST
system for the cost of generating duplicate data,'' insofar as this
text pertains to the State Fund.
(8) 0400-18-01-.06(3)(f), insofar as it provides eligibility
requirements for the State Fund.
(9) 0400-18-01-.06(7)(c), insofar as it provides for reimbursement
from the State Fund.
(10) Appendix 0400-18-01-.07-A, as to the text ``transport and'' in
(4)(a) and (4)(e), insofar as these provisions pertain to the
transportation of a tank.
(11) 0400-18-01-.08(5)(a) and (b), insofar as these provisions
establish eligibility requirements for the State Fund.
(12) 0400-18-01-.09(1) through (16), insofar as these provisions
regulate disbursements, coverage, and fund eligibility regarding the
State Fund and provide for approval of corrective action contractors
and recovery of State costs.
(13) 0400-18-01-.09(18) is external insofar as it pertains to the
severability of the rule.
(14) 0400-18-01-.10, insofar as it establishes a system and
schedule for the collection of fees under the UST Act.
(15) 0400-18-01-.12(3), insofar as it establishes eligibility
requirements for the State Fund.
(16) 0400-18-01-.12(4), insofar as it pertains to the payment of
annual tank fees.
(17) 0400-18-01-.14 is external insofar as it contains record
retention obligations on the State agency, not a regulated entity.
(2) Statement of legal authority. The Attorney General's Statement,
signed on October 3, 2018, though not incorporated by reference, is
referenced as part of the approved underground storage tank program
under subtitle I of RCRA, 42 U.S.C. 6991 et seq.
(3) Demonstration of procedures for adequate enforcement. The
``Demonstration of Adequate Enforcement Procedures'' submitted 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 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 4 and TDEC, signed by the EPA Regional Administrator on
October 12, 2018, though not incorporated by reference, is referenced
as part of the approved underground storage tank program under subtitle
I of RCRA, 42 U.S.C. 6991 et seq.
0
3. Amend appendix A to part 282 by revising the entry for Tennessee to
read as follows:
Appendix A to Part 282--State Requirements Incorporated by Reference in
Part 282 of the Code of Federal Regulations
* * * * *
Tennessee
(A) The statutory provisions include:
Tennessee Petroleum Underground Storage Tank Act (the UST Act)
of 1988, Tenn. Code Ann. sections 68-215-101 to 68-215-204 (2018):
68-215-101 Short Title.
68-215-103 Definitions, except (17)(A)(iii) and (iv).
68-215-104 Prohibitions, except (3) and (4).
68-215-105 Minimum standards.
68-215-106 Notice; certificates and certification; except
(a)(6), (b)(1), (b)(2), and (c) through (f).
68-215-107 Supervision; orders; enforcement; rules and
regulations; except (a) through (g)(1).
68-215-110 Fund; environmental assurance fee; except (b) through
(h).
68-215-112 Repealed.
68-215-113 Repealed.
68-215-124 Exemptions.
68-215-128 Obsolete.
68-215-130 Repealed.
68-215-201 Definitions.
68-215-202 Ownership of petroleum site or petroleum underground
storage tank or property on which a petroleum site or petroleum
underground tank is located.
68-215-203 Operation prior to and after foreclosure.
68-215-204 Participation in the management.
(B) The regulatory provisions include:
Tennessee's Underground Storage Tank Regulations, Tenn. Comp. R.
& Regs. 0400-18-01-.01 to .17 (2018):
0400-18-01-.01 Program Scope, Definitions, and Proprietary
Information Applicability; except (4)1.(iii) and (iv) of the
definition for ``Responsible party'' and (5).
0400-18-01-.02 UST Systems: Installation and Operation; except
(1)(a)2. and (4)(c)6.(ii)(II)IV.
0400-18-01-.03 Notifications, Reporting, and Record Keeping.
0400-18-01-.04 Release Detection; except (1)(e).
0400-18-01-.05 Release Reporting, Investigation, and
Confirmation; except (1)(b) and (c).
0400-18-01-.06 Petroleum Release Response, Remediation, and Risk
Management; except for the text ``The fund shall not reimburse the
owner, operator, and/or other responsible party of petroleum UST
system for the cost of generating duplicate data'' in (2)(b)1. Also,
except (3)(f), (7)(c), and (11)(b) and (c).
0400-18-01-.07 Out-of-Service UST Systems and Closure; as to
Appendix 0400-18-01-.07-A, except for the text ``transport and'' in
(4)(a). Also, except (4)(e).
0400-18-01-.08 Financial Responsibility; except (5)(a), (5)(b),
(20), and (21).
0400-18-01-.12 Indicia of Ownership; except (3) and (4).
0400-18-01-.13 Reserved.
0400-18-01-.16 Certified Operator Program.
0400-18-01-.17 UST Systems with Field-Constructed Tanks and
Airport Hydrant Systems.
(C) Copies of the Tennessee statutes and regulations that are
incorporated by reference are available from the Tennessee
Department of Environment and Conservation, Division of Underground
Storage Tanks, William R. Snodgrass Tennessee Tower, 12th Floor, 312
Rosa L. Parks Ave., Nashville, TN 37243; Phone number: (615) 532-
0730; website: https://www.tn.gov/environment/program-areas/ust-underground-storage-tanks/ust/act-rules-and-policies.html.
* * * * *
[FR Doc. 2021-19339 Filed 9-8-21; 8:45 am]
BILLING CODE 6560-50-P