[Federal Register Volume 89, Number 12 (Thursday, January 18, 2024)]
[Rules and Regulations]
[Pages 3354-3361]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-00171]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 281 and 282

[EPA-R04-UST-2023-0410; FRL-11400-02-R4]


Mississippi: Final Approval of State Underground Storage Tank 
Program Revisions, Codification, and Incorporation by Reference

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The State of Mississippi (Mississippi or State) has applied to 
the Environmental Protection Agency (EPA) for final approval of 
revisions to its Underground Storage Tank Program (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 UST Program. The EPA has 
reviewed Mississippi'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 Mississippi's revised 
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 March 18, 2024, unless the EPA receives 
adverse comment by February 20, 2024. 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 
March 18, 2024.

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-2023-0410 in the subject line of the message.
    Instructions: Submit your comments, identified by Docket ID No. 
EPA-R04-UST-2023-0410, 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.
    The EPA encourages electronic comment submittals, but if you are 
unable to submit electronically or need other assistance, please 
contact Upendra Giri, the contact listed in the FOR FURTHER INFORMATION 
CONTACT provision below. The index to the docket for this

[[Page 3355]]

action and all documents that form the basis of this action and 
associated publicly available docket materials are available 
electronically in https://www.regulations.gov. The EPA encourages 
electronic reviewing of these documents, but if you are unable to 
review these documents electronically, please contact Upendra Giri for 
alternative access to docket materials.
    Please also contact Upendra Giri 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 please visit us online at 
https://www.epa.gov/dockets.

FOR FURTHER INFORMATION CONTACT: Upendra Giri, 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) 
562-8185; email address: [email protected]. Please contact Upendra 
Giri by phone or email for further information.

SUPPLEMENTARY INFORMATION:

I. Approval of Revisions to Mississippi's 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?

    In accordance with 40 CFR 281.51(a), Mississippi submitted a 
complete program revision application (State Application) seeking 
approval of changes to its UST Program. The State Application was 
submitted on July 31, 2023 and amended on August 17, 2023. The program 
revisions described 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 UST 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 Mississippi's UST Program are no less 
stringent than the corresponding Federal requirements in subpart C of 
40 CFR part 281, and that the Mississippi UST Program continues to 
provide adequate enforcement of compliance. Therefore, the EPA grants 
Mississippi final approval to operate its UST Program with the 
revisions described in the State Application, and as outlined below. 
The Mississippi Department of Environmental Quality (MDEQ) is the lead 
implementing agency for the UST Program in Mississippi, except in 
Indian country as noted below in Section I.I.

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 UST Program, and 
therefore will be federally enforceable. Mississippi will continue to 
have primary enforcement authority and responsibility for its State 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 Mississippi, and are not changed 
by this action. This action merely approves the existing State 
regulations as being no less stringent than 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. Mississippi 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 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 Mississippi previously been approved?

    On October 2, 1989, Mississippi submitted a complete State program 
approval application seeking approval of its UST Program under subtitle 
I of RCRA. Effective July 11, 1990, the EPA granted final approval for 
Mississippi to administer its UST Program in lieu of the Federal UST 
program (55 FR 23549, June 11, 1990). Effective July 22, 1997, the EPA 
incorporated by reference and codified the federally approved 
Mississippi UST Program (62 FR 28364, May 23, 1997). 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 
UST Program to reflect the 2015 Federal Revisions. These changes are 
included in Mississippi's UST Rules at 11 Miss. Admin. Code Pt. 5, Ch. 
2, effective

[[Page 3356]]

October 5, 2018. The EPA is approving the State's changes because they 
are no less stringent than the Federal UST program, and because the 
revised Mississippi 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.
    MDEQ continues to be the lead implementing agency for the UST 
Program in Mississippi. MDEQ has broad statutory and regulatory 
authority to regulate the installation, operation, maintenance, and 
closure of USTs, as well as UST releases, under the Mississippi 
Underground Storage Tank Act (the UST Act) of 1988, Miss. Code Ann. 
sections 49-17-401 to 49-17-435 (2022), and the Mississippi UST Rules 
at 11 Miss. Admin. Code Pt. 5, Ch. 2 (2018).
    The following State authorities provide authority for compliance 
monitoring as required pursuant to 40 CFR 281.40: Miss. Code Ann. 
sections 49-17-31, 49-17-35, 49-17-39, 49-17-409, 49-17-413(1), 49-17-
415, and 49-17-427; and 11 Miss. Admin. Code Pt. 5, Ch 2, Rule 2.3, 
section 280.35.
    The following State authorities provide authority for enforcement 
response as required pursuant to 40 CFR 281.41: Miss. Code Ann. 
sections 49-17-27, 49-17-31, 49-17-33, 49-17-35, 49-17-37, 49-17-41, 
49-17-419, 49-17-427; and 11 Miss. Admin. Code Pt. 5, Ch 2, Rule 2.3, 
section 280.36.
    The following State authorities provide authority for enabling 
public participation in the State enforcement process, including 
citizen intervention and filing of complaints, required pursuant to 40 
CFR 281.42: Rule 24(a)(2) of the Mississippi Rules of Civil Procedure; 
Miss. Code Ann. sections 49-17-35, 49-17-41, and 49-17-431; and 11 
Miss. Admin. Code Pt. 5, Ch 2, Rule 2.6, section 280.67. Further, 
through a Memorandum of Agreement between MDEQ 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 MDEQ will not oppose citizen intervention when 
permissive intervention is allowed by statute, rule, or regulation. 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 UST Program with the EPA as required by 40 
CFR 281.43: Miss. Code Ann. sections 49-17-39 and 49-17-425. Further, 
through a Memorandum of Agreement between MDEQ 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 UST Program.
    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 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. Mississippi adopted all of the required 2015 Federal Revisions 
at 11 Miss. Admin. Code Pt. 5, Ch. 2 (2018).
    As part of the State Application, the Mississippi 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 Mississippi's 
regulations are considered more stringent than the Federal program, and 
upon approval, they will become part of the federally approved State 
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 Mississippi 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 UST Program:
Statutory Broader in Scope Provisions
    (i) Miss. Code. Ann. section 49-17-403(b), as to the definition of 
``Bonded distributor,'' insofar as it is associated with the regulation 
of entities other than owners and operators as these terms are defined 
in 40 CFR 280.12.
    (ii) Miss. Code. Ann. section 49-17-403(o), as to the definition of 
``Response action contractor,'' insofar as it is associated with the 
regulation of entities other than owners and operators as these terms 
are defined in 40 CFR 280.12.
    (iii) Miss. Code. Ann. section 49-17-403(p), as to the definition 
of ``Retailer,'' insofar as it is associated with the regulation of 
entities other than owners and operators as these terms are defined in 
40 CFR 280.12.
    (iv) Miss. Code. Ann. section 49-17-403(q), as to the definition of 
``Substantial compliance,'' insofar as it relates to a state fund.
    (v) Miss. Code. Ann. section 49-17-405, insofar as it provides for 
the creation of the Mississippi Groundwater Protection Trust Fund 
(State Fund), promulgation of regulations regarding the State Fund, 
criteria for qualified expenditure of funds, and liability of owners 
for fund expenditures.
    (vi) Miss. Code. Ann. section 49-17-407, insofar as it creates an 
environmental protection fee, provides limits on use of the State Fund, 
and addresses third party claims.
    (vii) Miss. Code. Ann. section 49-17-409, all except for the first 
sentence, insofar as these provisions provide for the eligibility 
requirements of the State Fund and reimbursement of costs from owners.
    (xiii) Miss. Code. Ann. section 49-17-421, insofar as it 
establishes an annual tank regulatory fee.
    (ix) Miss. Code. Ann. section 49-17-422, insofar as it creates an 
Underground Storage Tank Advisory Council.
    (x) Miss. Code. Ann. section 49-17-423, insofar as it pertains to 
the commission's administration of funds from the Leaking Underground 
Storage Tank Trust Fund.
    (xi) Miss. Code. Ann. section 49-17-429, insofar as it requires the 
certification of individuals to install, alter, or remove underground 
storage tanks and provides for the promulgation of regulations setting 
forth certification requirements.
Regulatory Broader in Scope Provisions
    (i) 11 Miss. Admin. Code Pt. 5, Ch. 1 (2009), insofar as these 
provisions

[[Page 3357]]

regulate Immediate Response Action Contractors, Environmental Response 
Action Contractors, and the State Fund.
    (ii) 11 Miss. Admin. Code Pt. 5, Ch. 2, R. 2.1, section 280.12, as 
to the definition of ``Ancillary equipment,'' insofar as it pertains to 
dispensers.
    (iii) 11 Miss. Admin. Code Pt. 5, Ch. 2, R. 2.1, section 280.12, as 
to the definition of ``Certificate of Operation,'' insofar as it 
requires UST systems to be permitted by MDEQ and the payment of tank 
regulatory fees.
    (iv) 11 Miss. Admin. Code Pt. 5, Ch. 2, R. 2.1, section 280.12, as 
to the definition of ``Motor fuel,'' insofar as it includes 100% 
biodiesel or ethanol.
    (v) 11 Miss. Admin. Code Pt. 5, Ch. 2, R. 2.1, section 280.12, as 
to the definition of ``New tank system,'' insofar as it includes 
dispensers as part of the new tank system.
    (vi) 11 Miss. Admin. Code Pt. 5, Ch. 2, R. 2.1, section 280.12, as 
to the definition of ``Register,'' insofar as it requires notification 
for installation, replacement, or change in the operational status of a 
dispenser.
    (vii) 11 Miss. Admin. Code Pt. 5, Ch. 2, R. 2.1, section 280.12, as 
to the definition of ``Replace,'' insofar as it considers replacement 
of a dispenser to constitute a new UST system.
    (viii) 11 Miss. Admin. Code Pt. 5, Ch. 2, R. 2.2, section 
280.20(j), insofar as it regulates shear valves.
    (ix) 11 Miss. Admin. Code Pt. 5, Ch. 2, R. 2.2, sections 280.22(a) 
and (b), insofar as these provisions regulate dispensers.
    (x) 11 Miss. Admin. Code Pt. 5, Ch. 2, R. 2.3, sections 280.34(g) 
through (i), insofar as these provisions regulate dispensers.
    (xi) 11 Miss. Admin. Code Pt. 5, Ch. 2, R. 2.3, section 
280.35(a)(4), insofar as it regulates dispensers.
    (xii) 11 Miss. Admin. Code Pt. 5, Ch. 2, R. 2.3, section 
280.35(b)(1), insofar as it regulates shear valves.
    (xiii) 11 Miss. Admin. Code Pt. 5, Ch. 2, R. 2.3, section 
280.38(b)(1)(iii), insofar as it regulates shear valves.
    (xiv) 11 Miss. Admin. Code Pt. 5, Ch. 3, insofar as these 
provisions provide for the certification and regulation of persons who 
install, alter, test, and permanently close underground storage tanks.

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

    The EPA's approval of Mississippi's UST Program does not extend to 
Indian country as defined in 18 U.S.C. 1151. The EPA will retain 
responsibility under RCRA for underground storage tanks in Indian 
country. Therefore, this action has no effect in Indian country. See 40 
CFR 281.12(a)(2).

II. Codification

A. What is codification?

    Codification is the process of placing 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 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.

B. What is the history of codification of Mississippi's UST Program?

    In 1997, the EPA incorporated by reference and codified 
Mississippi's approved UST Program at 40 CFR 282.74 (62 FR 28364, May 
23, 1997). Through this action, the EPA is amending 40 CFR 282.74 to 
incorporate by reference and codify Mississippi's revised 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 Mississippi UST 
Program, including the revisions made to the UST Program based on the 
2015 Federal Revisions. In accordance with the requirements of 1 CFR 
51.5, the EPA is incorporating by reference Mississippi'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 UST Program 
that will be in effect at the time the EPA's approval of the revisions 
to the Mississippi 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 Mississippi 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 Mississippi 
UST Program.
    Specifically, in 40 CFR 282.74(d)(1)(i), the EPA is incorporating 
by reference the EPA-approved Mississippi UST Program. Section 
282.74(d)(1)(ii) identifies the State's statutes and regulations that 
are part of the approved State UST Program, although not incorporated 
by reference for enforcement purposes, unless they impose obligations 
on the regulated entity. Section 282.74(d)(1)(iii) identifies the 
State's statutory and regulatory provisions that are broader in scope, 
external, or excluded for other reasons from the State's approved UST 
Program and therefore not incorporated by reference. Sections 
282.74(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 State UST Program under subtitle I of RCRA.

D. What is the effect of the EPA's codification of the federally 
approved Mississippi 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 Mississippi, 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 
Mississippi's procedural and enforcement authorities, although they are 
listed in 40 CFR 282.74(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 
UST Program are not part of the federally approved State 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

[[Page 3358]]

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 40 CFR part 282. In 
addition, some provisions are being excluded from incorporation by 
reference in 40 CFR part 282 for other reasons. For reference and 
clarity, 40 CFR 282.74(d)(1)(iii) lists the Mississippi statutory and 
regulatory provisions which are broader in scope than the Federal 
program, external to State UST program approval requirements, or being 
excluded for other reasons. 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 Mississippi's revised 
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 subject to review 
by the Office of Management and Budget under Executive Orders 12866 (58 
FR 51735, October 4, 1993) and 14094 (88 FR 21879, April 11, 2023);
     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 significant regulatory actions subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     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.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement 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 March 18, 2024.

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: December 21, 2023.
Jeaneanne M Gettle,
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. Amend Sec.  282.2 by revising paragraph (b)(4) as follows:


Sec.  282.2  Incorporation by reference.

* * * * *
    (b)(4) Region 4 (Alabama, Florida, Georgia, Kentucky, Mississippi, 
North Carolina, South Carolina, Tennessee): 61 Forsyth Street SW, 
Atlanta, Georgia 30303-8960; Phone Number: (404) 562-9900.
* * * * *

0
3. Revise Sec.  282.74 to read as follows:


Sec.  282.74  Mississippi State-Administered Program.

    (a) History of the approval of Mississippi's program. The State of 
Mississippi (Mississippi or State) is approved to administer and 
enforce an 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 Underground Storage Tank Program (UST Program), as administered 
by the Mississippi Department of Environmental Quality (MDEQ), was 
approved by EPA pursuant to 42 U.S.C. 6991c and part 281 of this 
chapter. EPA approved the Mississippi UST Program on June 11, 1990, and 
it was effective on July 11, 1990. A subsequent program revision was 
approved by EPA and became effective March 18, 2024.
    (b) Enforcement authority. Mississippi has primary responsibility 
for administering and enforcing its federally approved UST Program. 
However, EPA retains the authority to exercise its corrective action, 
inspection, and enforcement authorities under sections 9003(h), 9005, 
and 9006 of subtitle I of RCRA, 42 U.S.C. 6991b(h), 6991d, and 6991e, 
as well as under any other applicable statutory and regulatory 
provisions.
    (c) Retention of program approval. To retain program approval, 
Mississippi must revise its approved 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 Mississippi 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. Mississippi has final approval for the 
following elements of its UST Program submitted

[[Page 3359]]

to EPA and approved effective June 11, 1990, and the program revisions 
approved by EPA effective on March 18, 2024:
    (1) State statutes and regulations--(i) Incorporation by reference. 
The Mississippi materials cited in this paragraph (d)(1)(i), and listed 
in appendix A to this part, are incorporated by reference as part of 
the UST Program under subtitle I of RCRA, 42 U.S.C. 6991 et seq. (See 
Sec.  282.2 for incorporation by reference approval and inspection 
information.) You may obtain copies of the Mississippi statutes and 
regulations that are incorporated by reference in this paragraph 
(d)(1)(i) from the Mississippi Department of Environmental Quality, 
P.O. Box 2261, Jackson, MS 29335; Phone number: (601) 961-5171; 
website: https://www.mdeq.ms.gov/water/groundwater-assessment-and-remediation/underground-storage-tanks/.
    (A) ``Mississippi Statutory Requirements Applicable to the 
Underground Storage Tank Program,'' dated September 5, 2023.
    (B) ``Mississippi Regulatory Requirements Applicable to the 
Underground Storage Tank Program,'' dated September 5, 2023.
    (ii) Legal basis. EPA considered the following statutes and 
regulations which provide the legal basis for the State's 
implementation of the UST Program, but do not replace Federal 
authorities. Further, these provisions are not being incorporated by 
reference, unless the provisions place requirements on regulated 
entities.
    (A) Mississippi Underground Storage Tank Act (the UST Act) of 1988, 
Miss. Code Ann. sections 49-17-401 to 49-17-435 (2022).
    (1) Section 49-17-409, as to the first sentence, insofar as it 
provides for compliance monitoring and the promulgation of regulations 
for the reporting of releases.
    (2) Section 49-17-413(1), insofar as it provides for compliance 
monitoring, and the promulgation of regulations for the implementation 
of the State UST Program.
    (3) Section 49-17-415, insofar as it provides for compliance 
monitoring and establishes authority to conduct inspections, tests, and 
obtain information from owners.
    (4) Section 49-17-419, insofar as it establishes authority over 
corrective action.
    (5) Section 49-17-425, insofar as it provides for the sharing of 
information with EPA.
    (6) Section 49-17-427, insofar as it provides for enforcement 
response, enforcement of orders, assessment of penalties under the UST 
Act, proceedings before the commission, and limitations on liability.
    (7) Section 49-17-431, insofar as it provides for appeal of any 
decision by the commission or the director.
    (B) Mississippi Air and Water Pollution Control Law, Miss. Code 
Ann. sections 49-17-27 and 49-17-31 to 49-17-41 (2020).
    (1) Section 49-17-27, insofar as it provides for enforcement 
response and injunctive relief.
    (2) Section 49-17-31, insofar as it provides for enforcement 
response, notice of violations, enforcement of regulations and orders, 
procedures for contested cases, and assessment of penalties.
    (3) Section 49-17-33, insofar as it provides for hearing 
procedures, issuance of orders, and penalties.
    (4) Section 49-17-35, insofar as it provides for enforcement 
response, public participation, and citizen intervention.
    (5) Section 49-17-37, insofar as it provides for hearing procedures 
and transcripts.
    (6) Section 49-17-39, insofar as it provides for the sharing of 
information with EPA.
    (7) Section 49-17-41, insofar as it provides for appeal rights for 
aggrieved parties.
    (C) Mississippi's Underground Storage Tank Regulations, 11 Miss. 
Admin. Code Pt. 5, Ch. 2 (2018).
    (1) R. 2.3, 280.36, insofar as it provides for delivery prohibition 
and enforcement of the State UST Program.
    (2) R. 2.6, 280.67, insofar as it provides for public participation 
in the corrective action process.
    (D) Rule 24(a)(2) of the Mississippi Rules of Civil Procedure 
(1982), insofar as it provides for citizen intervention and public 
participation in the State enforcement process.
    (iii) Other provisions not incorporated by reference. The following 
statutory and regulatory provisions applicable to the Mississippi UST 
Program are broader in scope than the Federal program, external to the 
State UST program approval requirements, or are being excluded for 
other reasons as noted below. Therefore, these provisions are not part 
of the approved UST Program and are not incorporated by reference in 
this section:
    (A) Mississippi Underground Storage Tank Act (the UST Act) of 1988, 
Miss. Code Ann. sections 49-17-401 to 49-17-435 (2022).
    (1) 49-17-403(b) is broader in scope as to the definition of 
``Bonded distributor,'' insofar as it is associated with the regulation 
of entities other than owners and operators as these terms are defined 
in 40 CFR 280.12.
    (2) Section 49-17-403(o) is broader in scope as to the definition 
of ``Response action contractor,'' insofar as it is associated with the 
regulation of entities other than owners and operators as these terms 
are defined in 40 CFR 280.12.
    (3) Section 49-17-403(p) is broader in scope as to the definition 
of ``Retailer,'' insofar as it is associated with the regulation of 
entities other than owners and operators as these terms are defined in 
40 CFR 280.12.
    (4) Section 49-17-403(q) is broader in scope as to the definition 
of ``Substantial compliance,'' insofar as it relates to a State fund.
    (5) Section 49-17-405 is broader in scope insofar as it provides 
for the creation of the Mississippi Groundwater Protection Trust Fund 
(State Fund), promulgation of regulations regarding the State Fund, 
criteria for qualified expenditure of funds, and liability of owners 
for fund expenditures.
    (6) Section 49-17-407 is broader in scope insofar as it creates an 
environmental protection fee, provides limits on use of the State Fund, 
and addresses third party claims.
    (7) Section 49-17-409 is broader in scope, all except for the first 
sentence, insofar as it provides for the eligibility requirements of 
the State Fund and reimbursement of costs from owners.
    (8) Section 49-17-421 is broader in scope insofar as it establishes 
an annual tank regulatory fee.
    (9) Section 49-17-422 is broader in scope insofar as it creates an 
Underground Storage Tank Advisory Council.
    (10) Section 49-17-423 is broader in scope insofar as it pertains 
to the commission's administration of funds from the Leaking 
Underground Storage Tank Trust Fund.
    (11) Section 49-17-429 is broader in scope insofar as it requires 
the certification of individuals to install, alter, or remove 
underground storage tanks and provides for the promulgation of 
regulations setting forth certification requirements.
    (12) Section 49-17-433 is external insofar as it pertains to the 
severability of the State UST Act.
    (13) Section 49-17-435 is external insofar as it contains reporting 
obligations on the State agency, not a regulated entity.
    (B) Mississippi Air and Water Pollution Control Law, Miss. Code 
Ann. sections 49-17-27 and 49-17-31 to 49-17-41 (2020).

[[Page 3360]]

    (1) Section 49-17-32 is external insofar as it does not pertain to 
the State UST Program.
    (2) Section 49-17-34 is external insofar as it does not pertain to 
the State UST Program.
    (3) Section 49-17-36 is external insofar as it does not pertain to 
the State UST Program.
    (C) Mississippi's Groundwater Protection Trust Fund Regulations, 11 
Miss. Admin. Code Pt. 5, Ch. 1 (2009) is broader in scope insofar as 
these provisions regulate Immediate Response Action Contractors, 
Environmental Response Action Contractors, and the State Fund.
    (D) Mississippi's Underground Storage Tank Regulations, 11 Miss. 
Admin. Code Pt. 5, Ch. 2 (2018).
    (1) R. 2.1, 280.12 is broader in scope as to the definition of 
``Ancillary equipment,'' insofar as it pertains to dispensers.
    (2) R. 2.1, 280.12 is broader in scope as to the definition of 
``Certificate of Operation,'' insofar as it requires UST systems to be 
permitted by MDEQ and the payment of tank regulatory fees.
    (3) R. 2.1, 280.12 is broader in scope as to the definition of 
``Motor fuel,'' insofar as it includes 100% biodiesel or ethanol.
    (4) R. 2.1, 280.12 is broader in scope as to the definition of 
``New tank system,'' insofar as it includes dispensers as part of the 
new tank system.
    (5) R. 2.1, 280.12 is broader in scope as to the definition of 
``Register,'' insofar as it requires notification for installation, 
replacement, and change in operational status of a dispenser.
    (6) R. 2.1, 280.12 is broader in scope as to the definition of 
``Replace,'' insofar as it considers replacement of a dispenser to 
constitute a new UST system.
    (7) R. 2.2, 280.20(j) is broader in scope insofar as it regulates 
shear valves.
    (8) R. 2.2, 280.22(a) and (b) are broader in scope insofar as these 
provisions regulate dispensers.
    (9) R. 2.3, 280.34(g) through (i) are broader in scope insofar as 
these provisions regulate dispensers.
    (10) R. 2.3, 280.35(a)(4) is broader in scope insofar as it 
regulates dispensers.
    (11) R. 2.3, 280.35(b)(1) is broader in scope insofar as it 
regulates shear valves.
    (12) R. 2.3, 280.38(b)(1)(iii) is broader in scope insofar as it 
regulates shear valves.
    (13) R. 2.8, 280.91(e) and (f), are excluded for other reasons. 
Paragraph (e) is excluded only insofar as it includes Indian tribes as 
a ``local government entity,'' and paragraph (f) is excluded insofar as 
EPA retains responsibility for implementing the Federal UST program in 
Indian country.

    Note 1 to paragraph (d)(1)(iii)(D)(13).  MDEQ does not regulate 
any USTs on Indian lands and EPA retains responsibility for 
implementing the Federal UST program in Indian country. In a 
subsequent rulemaking, MDEQ will revise these provisions to remove 
references to the State's regulation of USTs in Indian country.

    (14) R. 2.8, 280.92, is excluded for other reasons only insofar as 
the definition of ``Local government'' includes Indian tribes.

    Note 2 to paragraph (d)(1)(iii)(D)(14). MDEQ does not regulate 
any USTs on Indian lands and the EPA retains responsibility for 
implementing the Federal UST program in Indian country. In a 
subsequent rulemaking, MDEQ will revise the definition of ``Local 
government'' to exclude Indian tribes.

    (15) R. 2.8, 280.100 is external insofar as it is not applicable in 
a State with an approved UST program.
    (E) Mississippi's Underground Storage Tank Regulations for the 
Certification of Persons Who Install, Alter, and Remove Underground 
Storage Tanks, 11 Miss. Admin. Code Pt. 5, Ch. 3 (2018) is broader in 
scope insofar as these provisions provide for the certification and 
regulation of persons who install, alter, test, and permanently close 
underground storage tanks.
    (2) Statement of legal authority. The Attorney General's Statement, 
signed by the Mississippi Attorney General on July 27, 2023, 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 in the 
application dated July 31, 2023, as amended on August 17, 2023, 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 submitted in the 
application dated July 31, 2023, as amended on August 17, 2023, 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.
    (5) Memorandum of Agreement. The Memorandum of Agreement between 
EPA Region 4 and the MDEQ, 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
4. Amend appendix A to part 282 by revising the entry for Mississippi 
to read as follows:

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

* * * * *

Mississippi

    (a) The statutory provisions include:

Mississippi Underground Storage Tank Act (the UST Act) of 1988, 
Miss. Code Ann. sections 49-17-401 to 49-17-435 (2022):
    49-17-401 Short Title.
    49-17-403 Definitions, except (b), (o), (p), and (q).
    49-17-411 Compliance with regulations.
    49-17-413 Rules and regulations, except for (1).
    49-17-417 Repealed.

    Note to paragraph (a) of Appendix A to Part 282.  Miss. Code 
Ann. section 49-17-413(2) is approved as part of the State UST 
Program to the extent that Mississippi will not grant a variance 
that makes its UST Program less stringent than the Federal 
regulations. In practice, Mississippi does not grant variances for 
the UST Program. Mississippi has agreed to execute a revised 
Memorandum of Agreement with EPA stating that Mississippi will limit 
the scope of its variance authority to only those situations where 
the Federal regulations allow the implementing agency to approve 
flexibilities.

    (b) The regulatory provisions include:

Mississippi's Underground Storage Tank Regulations, 11 Miss. Admin. 
Code Pt. 5, Ch. 2 (2018):
Rule 2.1 Program Scope and Interim Prohibition
    280.10 Applicability.
    280.11 Installation requirements for partially excluded UST 
systems.
    280.12 Definitions, except for ``dispensers'' in the definition 
of ``Ancillary equipment;'' the definition of ``Certificate of 
Operation;'' ``including 100% biodiesel or ethanol'' from the 
definition of ``Motor fuel;'' ``dispensers'' and (c) from the 
definition of ``New tank system;'' ``dispensers'' from the 
definition of ``Register;'' ``dispensers'' and (c) from the 
definition of ``Replace.''
    280.13 Industry codes and recommended practices.
Rule 2.2 UST Systems: Design, Construction, Installation and 
Notification
    280.20 Performance Standards for new UST systems, except for 
(j).
    280.21 Upgrading of existing UST systems.
    280.22 Notification requirements, except as applied to 
``dispensers'' in (a) and (b).
Rule 2.3 General Operating Requirements
    280.30 Operation and maintenance of spill and overfill 
prevention.
    280.31 Operation and maintenance of secondary containment.
    280.32 Operation and maintenance of corrosion protection.

[[Page 3361]]

    280.33 Compatibility.
    280.34 Repairs and replacements, except as applied to 
``dispenser(s)'' in (g), (h), and (i).
    280.35 Reporting recordkeeping, except as applied to 
``dispensers'' in (a)(4); and except as applied to ``shear valves'' 
in (b)(1).
    280.37 Operator training.
    280.38 Operation and maintenance walkthrough inspections, except 
for (b)(1)(iii).
Rule 2.4 Leak Detection
    280.40 General requirements for all UST systems.
    280.41 Requirements for petroleum UST systems.
    280.42 Requirements for hazardous substance UST systems.
    280.43 Methods of leak detection for tanks.
    280.44 Methods of leak detection for piping.
    280.45 Leak detection recordkeeping.
Rule 2.5 Leak Reporting, Release Reporting, Investigation, and 
Confirmation
    280.50 Reporting of leaks and suspected releases.
    280.51 Investigation due to off-site impacts.
    280.52 Release investigation and confirmation steps.
    280.53 Reporting and cleanup of spills and overfills.
Rule 2.6 Release Response and Corrective Action for UST Systems 
Containing Petroleum or Hazardous Substances
    280.60 General.
    280.61 Initial response.
    280.62 Initial abatement measures and site check.
    280.63 Initial site characterization.
    280.64 Free product removal.
    280.65 Investigations for soil and ground-water cleanup.
    280.66 Corrective action plan.
Rule 2.7 Out-of-Service UST Systems and Closure
    280.70 Temporary closure.
    280.71 Permanent closure and changes-in-service.
    280.72 Assessing the site at closure or change-in-service.
    280.73 Applicability to previously closed UST systems.
    280.74 Closure records.
Rule 2.8 Financial Responsibility
    280.90 Applicability.
    280.91 Compliance dates, except for ``including Indian tribes'' 
in (e), and (f).
    280.92 Definition of terms, except for ``and includes Indian 
tribes'' from the definition of ``Local government.''
    280.93 Amount and scope of required financial responsibility.
    280.94 Allowable mechanisms and combinations of mechanisms.
    280.95 Financial test of self-insurance.
    280.96 Guarantee.
    280.97 Insurance and risk retention group coverage.
    280.98 Surety bond.
    280.99 Letter of credit.
    280.101 State fund or other State assurance.
    280.102 Trust fund.
    280.103 Standby trust fund.
    280.104 Local government bond rating test.
    280.105 Local government financial test.
    280.106 Local government guarantee.
    280.107 Local government fund.
    280.108 Substitution of financial assurance mechanisms by owner 
or operator.
    280.109 Cancellation or nonrenewal by a provider of financial 
assurance.
    280.110 Reporting by owner or operator.
    280.111 Recordkeeping.
    280.112 Drawing on financial assurance mechanisms.
    280.113 Release from the requirements.
    280.114 Bankruptcy or other incapacity of owner or operator or 
provider of financial assurance.
    280.115 Replenishment of guarantees, letters of credit, or 
surety bonds.
    280.116 Suspension of enforcement. [Reserved]
Rule 2.9 Lender Liability
    280.120 Definitions.
    280.121 Participation in management.
    280.122 Ownership of an underground storage tank or underground 
storage tank system or facility or property on which an underground 
storage tank or underground storage tank system is located.
    280.123 Operating an underground storage tank or underground 
storage tank system.
Rule 2.10 UST Systems with Field-Constructed Tanks and Airport 
Hydrant Fuel Distribution Systems.
    280.130 Definitions.
    280.131 General requirements.
    280.132 Additions, exceptions, and alternatives for UST systems 
with field-constructed tanks and airport hydrant systems.

    Note to paragraph (b) of Appendix A to Part 282. 11 Miss. Admin. 
Code Pt. 5, Ch. 2, 280.42(b)(5) is approved as part of the UST 
Program only to the extent that Mississippi will not allow alternate 
release detection methods for hazardous substance UST systems 
installed on or after October 13, 2015. Sections 40 CFR 281.33(e) 
and 280.42(e) of the Federal regulations only allow alternate 
release detection methods for hazardous substance UST systems 
installed prior to October 13, 2015. Mississippi's section 
280.42(b)(5) does not contain an analogous limitation on the use of 
alternative release detection methods. In practice, MDEQ does not 
allow alternative release detection methods for hazardous substance 
tanks installed after October 1, 2008. In a subsequent rulemaking, 
MDEQ will revise 11 Miss. Admin. Code Pt. 5, Ch. 2, R. 2.4, section 
280.42(b)(5) to clarify this point.

    (C) Copies of the Mississippi statutes and regulations that are 
incorporated by reference are available from the Mississippi 
Department of Environmental Quality, P.O. Box 2261, Jackson, MS 
29335; Phone number: (601) 961-5171; website: https://www.mdeq.ms.gov/water/groundwater-assessment-and-remediation/underground-storage-tanks/.

[FR Doc. 2024-00171 Filed 1-17-24; 8:45 am]
BILLING CODE 6560-50-P