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61 FR 56135-56137 October 31, 1996 (Volume 61, Number 212) 40 CFR Part 282 [FRL-5617-2] Underground Storage Tank Program: Approved State Program for Massachusetts

[Federal Register: October 31, 1996 (Volume 61, Number 212)]
[Rules and Regulations]               
[Page 56135-56137]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr31oc96-10]


[[Page 56135]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 282

[FRL-5617-2]

 
Underground Storage Tank Program: Approved State Program for 
Massachusetts

AGENCY: Environmental Protection Agency (EPA).

ACTION: Immediate final rule.

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SUMMARY: The Resource Conservation and Recovery Act of 1976, as amended 
(RCRA), authorizes the Environmental Protection Agency (EPA) to grant 
approval to states to operate their underground storage tank programs 
in lieu of the federal program. 40 CFR Part 282 codifies EPA's decision 
to approve state programs and incorporates by reference those 
provisions of the state statutes and regulations that will be subject 
to EPA's inspection and enforcement authorities under Sections 9005 and 
9006 of RCRA Subtitle I and other applicable statutory and regulatory 
provisions. This rule codifies in 40 CFR Part 282 the prior approval of 
Massachusetts's underground storage tank program and incorporates by 
reference appropriate provisions of state statutes and regulations.

DATES: This regulation shall be effective December 30, 1996, unless EPA 
publishes a prior Federal Register notice withdrawing this immediate 
final rule. All comments on the codification of Massachusetts's 
underground storage tank program must be received by the close of 
business December 2, 1996. The incorporation by reference of certain 
publications listed in the regulations is approved by the Director of 
the Federal Register, as of December 30, 1996, in accordance with 5 
U.S.C. 552(a).

ADDRESSES: Comments may be mailed to the Docket Clerk (Docket No. UST 
5-5), Underground Storage Tank Program, HBO, U.S. EPA-New England, 
J.F.K. Federal Building, Boston, MA 02203-2211. Comments received by 
EPA may be inspected in the public docket, located in the Office of 
Site Remediation & Restoration Record Center, 90 Canal St., Boston, MA 
02203 from 9 a.m. to 4 p.m., Monday through Friday, excluding federal 
holidays.

FOR FURTHER INFORMATION CONTACT: Myra Schwartz, Underground Storage 
Tank Program, HBO, U.S. EPA-New England, J.F.K. Federal Building, 
Boston, MA 02203-2211. Phone: (617) 573-5743.

SUPPLEMENTARY INFORMATION:

Background

    Section 9004 of the Resource Conservation and Recovery Act of 1976, 
as amended, (RCRA), 42 U.S.C. 6991c, allows the U.S. Environmental 
Protection Agency to approve state underground storage tank programs to 
operate in the state in lieu of the federal underground storage tank 
program. EPA published a Federal Register document announcing its 
decision to grant approval to Massachusetts. (60 FR 14371, March 17, 
1995). Approval was effective on April 17, 1995.
    EPA codifies its approval of State programs in 40 CFR Part 282 and 
incorporates by reference therein the state statutes and regulations 
that will be subject to EPA's inspection and enforcement authorities 
under Sections 9005, and 9006 of Subtitle I of RCRA, 42 U.S.C. 6991d 
and 6991e, and other applicable statutory and regulatory provisions. 
Today's rulemaking codifies EPA's approval of the Massachusetts 
underground storage tank program. This codification reflects only the 
state underground storage tank program in effect at the time EPA 
granted Massachusetts approval under Section 9004(a), 42 U.S.C. 
6991c(a). EPA provided notice and opportunity for comment earlier on 
the Agency's decision to approve the Massachusetts program. EPA is not 
now reopening that decision nor requesting comment on it.
    Codification provides clear notice to the public of the scope of 
the approved program in each state. By codifying the approved 
Massachusetts program and by amending the Code of Federal Regulations 
whenever a new or different set of requirements is approved in 
Massachusetts, the status of federally approved requirements of the 
Massachusetts program will be readily discernible. Only those 
provisions of the Massachusetts underground storage tank program for 
which approval has been granted by EPA will be incorporated by 
reference for enforcement purposes.
    To codify EPA's approval of Massachusetts' underground storage tank 
program, EPA has added Section 282.71 to Title 40 of the CFR. Section 
282.71 incorporates by reference for enforcement purposes the State's 
statutes and regulations. Section 282.71 also references the Attorney 
General's Statement, Demonstration of Adequate Enforcement Procedures, 
the Program Description, and the Memorandum of Agreement, which are 
approved as part of the State's underground storage tank program under 
Subtitle I of RCRA, but are not incorporated by reference with this 
codification.
    EPA retains the authority under Sections 9005 and 9006 of Subtitle 
I of RCRA, 42 U.S.C. 6991d and 6991e, and other applicable statutory 
and regulatory provisions to undertake inspections and enforcement 
actions in approved states. With respect to such an enforcement action, 
EPA will rely on federal sanctions, federal inspection authorities, and 
federal procedures rather than the state authorized analogs to these 
provisions. Therefore, the approved Massachusetts enforcement 
authorities are specifically not be incorporated by reference. Forty 
CFR Section 282.71 lists those approved Massachusetts authorities that 
would fall into this category.
    The public also needs to be aware that certain provisions of 
Massachusetts's underground storage tank program are not part of the 
federally approved state program. These include, for example, 
requirements for new or replacement underground tanks for consumptive 
use on the premises.
    These non-approved provisions are not part of the RCRA Subtitle I 
program because they are ``broader in scope'' than Subtitle I of RCRA. 
See 40 CFR 281.12(a)(3)(ii). 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. Section 282.71 of 
the codification simply lists for reference and clarity the 
Massachusetts statutory and regulatory provisions which are ``broader 
in scope'' than the federal program and which are not, therefore, part 
of the approved program being codified today. ``Broader in scope'' 
provisions cannot be enforced by EPA. The State, however, will continue 
to enforce such provisions.

Certification Under the Regulatory Flexibility Act

    EPA has determined that this codification will not have a 
significant economic impact on a substantial number of small entities. 
Such small entities which own and/or operate underground storage tanks 
are already subject to the state requirements authorized by EPA under 
40 CFR Part 281. EPA's codification does not impose any additional 
burdens on these small entities. This is because EPA's codification 
would simply result in an administrative change, rather than a change 
in the substantive requirements imposed on small entities. Moreover, 
this codification will eliminate any confusion that owners and 
operators of underground storage tanks in Massachusetts may have 
regarding which set of requirements they must comply with in 
Massachusetts.

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    Therefore, EPA provides the following certification under the 
Regulatory Flexibility Act, as amended by the Small Business Regulatory 
Enforcement Fairness Act. Pursuant to the provision at 5 U.S.C. 605(b), 
I hereby certify that this codification will not have a significant 
economic impact on a substantial number of small entities. This 
codification incorporates Massachusetts' requirements, which have been 
authorized by EPA under 40 CFR Part 281, into the Code of Federal 
Regulations, thereby eliminating any confusion over the applicable 
requirements for owners and operators of underground storage tanks in 
Massachusetts. It does not impose any new burdens on small entities. 
This rule, therefore, does not require a regulatory flexibility 
analysis.

Submission to Congress and the General Accounting Office

    Under 5 U.S.C 801(a)(1)(A) as added by the Small Business 
Regulatory Enforcement Fairness Act of 1996, EPA submitted a report 
containing this rule and other required information to the U.S. Senate, 
the U.S. House of Representatives and the Comptroller General of the 
General Accounting Office prior to publication of the rule in today's 
Federal Register. This rule is not a ``major rule'' as defined by 5 
U.S.C. 804(2).

Compliance With Executive Order 12866

    The Office of Management and Budget has exempted this rule from the 
requirements of Section 6 of Executive Order 12866.

Paperwork Reduction Act

    Under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., Federal 
agencies must consider the paperwork burden imposed by any information 
request contained in a proposed or final rule. This rule will not 
impose any information requirements upon the regulated community.

List of Subjects in 40 CFR Part 282

    Environmental protection, Hazardous substances, Incorporation by 
reference, Intergovernmental relations, State program approval, 
Underground storage tanks, Water pollution control.

    Dated: September 2, 1996.
John P. DeVillars,
Regional Administrator.

    For the reasons set forth in the preamble, 40 CFR Part 282 is 
proposed to be added as follows:

PART 282--APPROVED UNDERGROUND STORAGE TANK PROGRAMS

    1. The authority citation for Part 282 continues to read as 
follows:

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

Subpart B--Approved State Programs

    2. Subpart B is amended by adding Sec. 282.71 to read as follows:


Sec. 282.71  Massachusetts State-Administered Program.

    (a) The State of Massachusetts is approved to administer and 
enforce an underground storage tank program in lieu of the federal 
program under Subtitle I of the Resource Conservation and Recovery Act 
of 1976 (RCRA), as amended, 42 U.S.C. 6991 et seq. The State's program, 
as administered by the Massachusetts Department of Public Safety (now 
called the Massachusetts Department of Fire Services) and the 
Massachusetts Department of Environmental Protection, was approved by 
EPA pursuant to 42 U.S.C. 6991c and 40 CFR Part 281 EPA approved the 
Massachusetts program on March 3, 1995, which was effective on April 
17, 1995.
    (b) Massachusetts has primary responsibility for enforcing its 
underground storage tank program. However, EPA retains the authority to 
exercise its inspection and enforcement authorities under Sections 9005 
and 9006 of RCRA, 42 U.S.C. 6991d and 6991e, as well as under other 
statutory and regulatory provisions.
    (c) To retain program approval, Massachusetts must revise its 
approved program to adopt new changes to the federal subtitle I program 
which make it more stringent, in accordance with Section 9004 of RCRA, 
42 U.S.C. 6991c, and 40 CFR Part 281, subpart E. If Massachusetts 
obtains approval for the revised requirements pursuant to Section 9004 
of RCRA, 42 U.S.C. 6991c, the newly approved statutory and regulatory 
provisions will be added to this subpart and notice of any change will 
be published in the Federal Register.
    (d) Massachusetts has final approval for the following elements 
submitted to EPA in Massachusetts' program application for final 
approval and approved by EPA on March 3, 1995. Copies may be obtained 
from the Underground Storage Tank Program, Massachusetts Department of 
Environmental Protection, 1 Winter Street, Boston, MA 02108 or 
Massachusetts Department of Fire Services, P.O. Box 1025, State Road, 
Stowe, MA 01775. The elements are listed below:
    (1) State statutes and regulations. (i) The provisions cited in 
this paragraph are incorporated by reference as part of the underground 
storage tank program under Subtitle I of RCRA, 42 U.S.C. 6991 et seq.
    (A) Massachusetts Statutory Requirements Applicable to the 
Underground Storage Tank Program at Massachusetts General Laws, Chapter 
148, Section 13 Paragraph 3 and Sections 38, 38A-38C, and 38E; 
Massachusetts General Laws, Chapter 21E, Sections 2, 3A(e) and 3(c), 4, 
5, 6, 8.
    (B) Massachusetts Regulatory Requirements Applicable to the 
Underground Storage Tank Program at 527 CMR 9.00-9.02 and 9.05, 
9.06(C), (D) and (E), and 9.07(A)-(I) and 9.07((K)-(L); and those 
provisions of 310 CMR Sections 40.0000 subparts A-O only insofar as 
they pertain to the regulation of underground storage tanks in 
Massachusetts and only insofar as they are not broader in scope than 
the federal requirements. Note that reserved sections of 310 CMR 
40.0000 et seq. are not incorporated by reference.
    (ii) The following statutes and regulations are part of the 
approved state program, although not incorporated by reference herein 
for enforcement purposes.
    (A) The statutory provisions include: Massachusetts General Laws, 
Chapter 148, Section 4; Sections 38D, 38F, 38I through 38H; 
Massachusetts General Law, Chapter 21E, The Massachusetts Oil and 
Hazardous Materials Release Prevention and Response Act, Amended 1992 
Massachusetts General Laws, Sections 7, 9, and 11, and Chapter 21J, 
Sections 2-4; and, Massachusetts General Law, Chapter 185, Section 3.
    (B) The regulatory provisions include: Massachusetts Board of Fire 
Prevention Rules, 527 CMR Sections 9.07(J); and, Massachusetts 
Environmental Protection Rules, and those provisions of 310 CMR 
Sections 40.0000 Subparts A-O only insofar as they pertain to the 
regulation of underground storage tanks in Massachusetts and are not 
incorporated by reference and only insofar as they are not broader in 
scope than the federal requirements.
    (iii) The following statutory and regulatory provisions are broader 
in scope than the federal program, are not part of the approved 
program, and are not incorporated by reference herein for enforcement 
purposes.
    (A) Massachusetts Board of Fire Prevention Rules, Sections 9.03 
through 9.04 which pertain to aboveground tanks; 9.05A(4) insofar as it 
refers to

[[Page 56137]]

upgrade requirements for new or replacement underground tanks for 
consumptive use on the premises; 9.06 (A) and (B) insofar as they refer 
to aboveground tanks; and 9.07(J) insofar as it refers to aboveground 
tanks, and those provisions of 310 CMR 40.0000 Subparts A-O insofar as 
they do not relate to underground storage tanks and with respect to 
underground storage tanks insofar as they are broader in scope than the 
federal requirements.
    (2) Statement of legal authority. (i) ``Attorney General's 
Statement for Final Approval'', signed by the Attorney General of 
Massachusetts on August 18, 1993, though not incorporated by reference, 
is part of the approved underground storage tank program under Subtitle 
I of RCRA, 42 U.S.C. 6991 et seq.
    (ii) Letter from the Attorney General of Massachusetts to EPA, 
August 18, 1993, though not incorporated by reference, is part of the 
approved underground storage tank program under Subtitle I of RCRA, 42 
U.S.C. 6991 et seq.
    (3) Demonstration of procedures for adequate enforcement. The 
``Demonstration of Procedures for Adequate Enforcement'' submitted as 
part of the original application in December 1991, though not 
incorporated by reference, is 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 (PD) and any other 
material submitted as part of the original application in December 
1991, though not incorporated by reference, are 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 April 30, 1995, EPA and the 
Massachusetts Department of Public Safety and the Massachusetts 
Department of Environmental Protection Memorandum of Agreement (MOA), 
though not incorporated by reference, is part of the approved 
underground storage tank program under Subtitle I of RCRA, 42 U.S.C. 
6991 et seq.
    3. Appendix A to part 282 is amended by adding in alphabetical 
order ``Massachusetts'' and its listing to read as follows:

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

* * * * *

Massachusetts

    (a) The statutory provisions include: General Laws of 
Massachusetts, Chapter 148, Section 38, 38A, B, C, and E:

Chapter 148

Section 38--Rules and Regulations
Section 38A--Prohibition of Removal of Certain Gasoline Tanks 
without Permit
Section 38B--Underground Storage Tanks; Definitions
Section 38C--Notification of Department of Public Health by Owners 
of Underground Storage Tanks
Section 38E--Regulations Governing Underground Storage Tanks

    Massachusetts General Law, Chapter 21E, The Massachusetts Oil 
and Hazardous Materials Release Prevention and Response Act, July 1, 
1992.

Section 1--Title of Chapter
Section 2--Definitions
Section 3--Securing of benefits of FWPCA, CERCLA, etc. Massachusetts 
Contingency Plan; promulgation of necessary regulations
Section 4--Response actions to release or threatened release of oil 
or hazardous material; assessment, containment, and removal actions 
in accordance with Massachusetts contingency plan
Section 5--Liability of release or threat of release of oil or 
hazardous material; apportionment of costs; treble damages; 
nullification of indemnification, hold harmless, or similar 
agreements
Section 6--Prevention of control of release of hazardous materials; 
regulations of department; contingency plans; monitoring equipment
Section 7--Notice of requirements; release or threat of release of 
oil or hazardous material; exceptions

    (b) The regulatory provisions include: State of Massachusetts, 
Board of Fire Prevention Regulations, 527 CMR 9.00-9.02 and 9.05, 
9.06(C)-(E), and 9.07(A)-(I) and (K)-(L) (effective July 3, 1993); 
and Massachusetts Environmental Protection Rules, 310 CMR 40.0000 
Subparts A-O insofar as they pertain to underground storage tanks 
and are not broader in scope than the federal requirements, as set 
forth below:
    (1) State of Massachusetts, Board of Fire Prevention 
Regulations, 527 CMR 9.00: Tanks and Containers, (effective July 3, 
1993):

Section 9.01--Purpose and Scope
Section 9.02--Definitions
Section 9.05--Underground Storage Tanks
Section 9.05(A)(1)-(3) and (5)-(8)--Design and Construction of New 
or Replacement Underground Tanks
Section 9.05(B)--Underground Piping
Section 9.05(C)--Underground Tank Installation
Section 9.05(D)--Leak Detection Equipment, Testing and/or Inventory 
Requirements for Underground Tanks
Section 9.05(E)--Inventory Methods for Underground Tanks
Section 9.05(F)--Testing for Tightness of Underground Storage 
Facilities
Section 9.05(G)--Upgrading of Existing Underground Storage Tank 
Systems
Section 9.06(C)--Upgrade of Existing Underground Waste Oil Storage 
Tank Systems
Section 9.06(D)--Product Transfer
Section 9.06(E)--Non-Flammable Hazardous Substances
Section 9.07--General Provisions
Section 9.07(A)--Material and Construction of All Tanks and 
Containers
Section 9.07(B)--Fill and Vent Pipes for All Tanks and Containers
Section 9.07(C)--Piping for All Tanks
Section 9.07(D)--Pumping System
Section 9.07(E)--Pressure Vessels
Section 9.07(F)--Response to Leaks
Section 9.07(G)--Tank Repair and Relining
Section 9.07(H)--Tanks Abandoned and Temporarily Out of Service
Section 9.07(I)--Tank Removal
Section 9.07(K)--Permits
Section 9.07(L)--Financial Responsibility Requirements
    (2) Massachusetts Environmental Protection Rules, 310 CMR, 
Section 40.000, Massachusetts Contingency Plan, (effective October 
1, 1993) only insofar as they pertain to the regulation of 
underground storage tanks in Massachusetts and only insofar as they 
are incorporated by reference and are not broader in scope than the 
federal requirements. Note that reserved sections of 310 CMR 40.0000 
et seq. are not incorporated by reference:

Subpart A--General Provisions
Subpart B--Organization and Responsibility
Subpart C--Notification of Releases and Threats of Release of Oil 
and Hazardous Material; Identification and Listing of Oil and 
Hazardous Materials
Subpart D--Preliminary Response Action and Risk Reduction Measures
Subpart E--Tier Classification and Response Action Deadlines
Subpart F--Transition Provisions
Subpart G--Tier I Permits
Subpart H--Comprehensive Response Action
Subpart I--Risk Characterization
Subpart J--Response Action Outcomes
Subpart K--Audits and Compliance Assistance
Subpart L--Cost Recovery, Lien Hearings and Petitions for 
Reimbursement of Incurred Costs
Subpart M--Administrative Record
Subpart N--Public Involvement and Technical Grants
Subpart O--Numerical Ranking System and Scoring Instructions

[FR Doc. 96-27585 Filed 10-30-96; 8:45 am]
BILLING CODE 6560-50-P

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