New Mexico: Final Approval of State Underground Storage Tank Program Revisions and Incorporation by Reference, 53179-53186 [2020-16273]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

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


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 282

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


New Mexico: Final Approval of State Underground Storage Tank 
Program Revisions and Incorporation by Reference

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: Pursuant to the Resource Conservation and Recovery Act (RCRA 
or Act), the Environmental Protection Agency (EPA) is taking direct 
final action to approve revisions to the State of New Mexico's 
Underground Storage Tank (UST) program submitted by the State. EPA has 
determined that these revisions satisfy all requirements needed for 
program approval. This action also codifies EPA's approval of New 
Mexico's State program and incorporates by reference those provisions 
of the State regulations that we have determined meet the requirements 
for approval. The provisions will be subject to EPA's inspection and 
enforcement authorities under Subtitle I of RCRA sections 9005 and 9006 
and other applicable statutory and regulatory provisions.

DATES: This rule is effective October 27, 2020, unless EPA receives 
adverse comment by September 28, 2020. If EPA receives adverse comment, 
it will publish a timely withdrawal in the Federal Register informing 
the public that the rule will not take effect. The incorporation by 
reference of certain publications listed in the regulations is approved 
by the Director of the Federal Register, as of October 27, 2020, in 
accordance with 5 U.S.C. 552(a) and 1 CFR part 51.

ADDRESSES: Submit your comments by one of the following methods:
    1. Federal eRulemaking Portal: https://www.regulations.gov. Follow 
the on-line instructions for submitting comments.
    2. Email: [email protected].
    Instructions: Direct your comments to Docket ID No. EPA-R06-UST-
2018-0703. EPA's policy is that all comments received will be included 
in the public docket without change and may be available online at 
https://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through https://www.regulations.gov, or email. The Federal https://www.regulations.gov 
website is an ``anonymous access'' system, which means the EPA will not 
know your identity or contact information unless you provide it in the 
body of your comment. If you send an email comment directly to the EPA 
without going through https://www.regulations.gov, your email address 
will be automatically captured and included as part of the comment that 
is placed in the public docket and made available on the internet. If 
you submit an electronic comment, the EPA recommends that you include 
your name and other contact information in the body of your comment and 
with any disk or CD-ROM you submit. If the EPA cannot read your comment 
due to technical difficulties, and cannot contact you for 
clarification, the EPA may not be able to consider your comment. 
Electronic files should avoid the use of special characters, any form 
of encryption, and be free of any defects or viruses.
    The index to the docket for this action is available electronically 
at https://www.regulations.gov. You can view and copy the documents 
that form the basis for this codification and associated publicly 
available docket materials are available either through https://www.regulations.gov or at the Environmental Protection Agency, Region 
6, 1201 Elm Street, Suite #500, Dallas, Texas 75270. This facility is 
open from 8:30 a.m. to 4:00 p.m. Monday through Friday excluding

[[Page 53180]]

Federal holidays and facility closures. We recommend that you telephone 
Audray Lincoln, Environmental Protection Specialist at (214) 665-2239 
before visiting the Region 6 Office. Interested persons wanting to 
examine these documents should make an appointment with the office at 
least two weeks in advance.

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

SUPPLEMENTARY INFORMATION:

I. Approval of Revisions to New Mexico's Underground Storage Tank 
Program

A. Why are revisions to State programs necessary?

    States which have received final approval from the EPA under RCRA 
section 9004(b), 42 U.S.C. 6991c(b), must maintain an underground 
storage tank program that is equivalent to, consistent with, and no 
less stringent than the Federal underground storage tank program. When 
EPA makes revisions to the regulations that govern the UST program, 
States must revise their programs to comply with the updated 
regulations and submit these revisions to the EPA for approval. Changes 
to State UST programs may be necessary when Federal or State statutory 
or regulatory authority is modified or when certain other changes 
occur. Most commonly, States must change their programs because of 
changes to the EPA's regulations in 40 Code of Federal Regulations 
(CFR) part 280. States can also initiate changes on their own to their 
underground storage tank program and these changes must then be 
approved by EPA.

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

    On October 11, 2018, in accordance with 40 CFR 281.51(a), New 
Mexico submitted a complete program revision application seeking 
approval for its UST program revisions corresponding to the EPA final 
rule published on July 15, 2015 (80 FR 41566), which finalized 
revisions to the 1988 UST regulations and to the 1988 State program 
approval (SPA) regulations. As required by 40 CFR 281.20, the State 
submitted the following: A transmittal letter from the Governor 
requesting approval, a description of the program and operating 
procedures, a demonstration of the State's procedures to ensure 
adequate enforcement, a Memorandum of Agreement outlining the roles and 
responsibilities of the EPA and the implementing agency, a statement of 
certification from the Attorney General, and copies of all relevant 
State statutes and regulations.
    We have reviewed the application and the revisions to New Mexico's 
UST program and determined they are no less stringent than the 
corresponding Federal requirements in subpart C of 40 CFR part 281, and 
the New Mexico program provides for adequate enforcement of compliance 
(40 CFR 281.11(b)). Therefore, the EPA grants New Mexico final approval 
to operate its UST program with the changes described in the program 
revision application, and as outlined below in Section I.G of this 
document. The New Mexico Environment Department (NMED) is the lead 
implementing agency for the UST program in New Mexico, except in Indian 
Country.

C. What is the effect of this approval decision?

    This action does not impose additional requirements on the 
regulated community because the regulations being approved by this rule 
are already effective in the State of New Mexico, and they are not 
changed by this action. This action merely approves the existing State 
regulations as meeting the Federal requirements and renders them 
federally enforceable.

D. Why is EPA using a direct final rule?

    The EPA is publishing this direct final rule without a prior 
proposed rule because we view this as a noncontroversial action and 
anticipate no adverse comment. New Mexico received comments during its 
comment period when the rules and regulations in this document were 
being considered and were proposed at the State level. All comments 
were addressed at the public hearing and/or are reflected in the 
adopted regulations. No opposing testimony was presented during the 
public hearing before the New Mexico Environmental Improvement Board on 
February 21 and 22, 2018.

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

    Along with this direct final rule, the EPA is publishing a separate 
document in the ``Proposed Rules'' section of this Federal Register 
that serves as the proposal to approve the State's UST program 
revision, providing opportunity for public comment. If EPA receives 
comments that oppose this approval, EPA will withdraw the direct final 
rule by publishing a document in the Federal Register before the rule 
becomes effective. The EPA will base any further decision on the 
approval of the State program changes on the proposal to approve after 
considering all comments received during the comment period. EPA will 
then address all public comments in a later final rule. You may not 
have another opportunity to comment. If you want to comment on this 
approval, you must do so at this time.

F. For what has New Mexico previously been approved?

    On September 17, 1990, EPA finalized a rule approving the UST 
program submitted by New Mexico in lieu of the Federal program. On 
January 18, 1996, EPA codified the approved New Mexico program that is 
subject to EPA's inspection and enforcement authorities under RCRA 
sections 9005 and 9006, 42 U.S.C. 6991d and 6991e, and other applicable 
statutory and regulatory provisions.

G. What changes are we approving with this action?

    In order to be approved, the program must provide for adequate 
enforcement of compliance as described in 40 CFR 40 CFR 281.11(b) and 
part 281, Subpart D. The NMED has broad statutory authority to regulate 
the installation, operation, maintenance, closure of USTs, and UST 
releases under the following New Mexico Statutes: Department of 
Environment Act, NMSA 1978, sections 9-7A-1 to 9-7A-15; Environmental 
Improvement Act, NMSA 1978 sections 74-1-1 to 74-1-17; Hazardous Waste 
Act, NMSA 1978, sections 74-4-1 to 74-4-14; Ground Water Protection 
Act, NMSA 1978, sections 74-6B-1 to 74-6B-14; Petroleum Products 
Loading Fee Act, NMSA 1978, sections 7-13A-1 to 7-13A-7; Tax 
Administration Act, NMSA 1978 sections 7-1-6; 7-1-6.1; 7-1-6.25; 7-1-
6.39; 7-1-13.1; Gasoline Tax Act, NMSA 1978 sections 7-13-3; 7-13-4; 
and Special Fuels Supplier Tax Act, NMSA 1978 sections 7-16A-3.
    Specific authorities to regulate the installation, operation, 
maintenance, closure of USTs, and UST releases are found under Title 20 
Chapter 5 of the New Mexico Administrative Code (NMAC), Parts 101 
through 125 as amended effective July 24, 2018. The aforementioned 
regulations satisfy the

[[Page 53181]]

requirements of 40 CFR 281.40 and 281.41.
    New Mexico's Petroleum Storage Tank Bureau (PSTB) invites and 
encourages public participation. PSTB provides notice and opportunity 
for public comment on all proposed rules. The PSTB investigates and 
requires petroleum storage tank owners and operators to provide notice 
about contaminants and submissions of final remediation plans. 
Requirements for public participation and notification can be found in 
the New Mexico State Rules Act, NMSA 1978 section 14-4-5.2, and 20.1.1 
NMAC, 20.1.9 NMAC, 20.5.119 NMAC, and 20.5.120 NMAC. Additionally, the 
New Mexico Ground Water Protection Act, NMSA 1978 section 74-6B-4 
created an advisory committee, the Storage Tank Committee, that may 
review corrective actions and payments from the corrective action fund. 
Storage Tank Committee meetings are public meetings, and information on 
upcoming meetings is provided through legal notices in local and 
statewide newspapers as well as notices on the PSTB website pursuant to 
New Mexico's Open Meetings Act, NMSA 1978 sections 10-15-1 to 10-15-4. 
The PSTB submits semi-annual information to EPA, and all records 
pertaining to NMED PSTB-regulated UST systems and release sites are 
available to the EPA upon request. New Mexico has met the public 
participation requirements found in 40 CFR 281.42.
    To qualify for final approval, a State's program must be ``no less 
stringent'' than the Federal program in all elements of the revised EPA 
final rule published on July 15, 2015 (80 FR 41566). EPA added new 
operation and maintenance requirements and addressed UST systems 
deferred in the 1988 UST regulations. The changes also added secondary 
containment requirements for new and replaced tank and piping, operator 
training requirements, periodic operation and maintenance requirements 
for UST systems, and requirements to ensure UST system compatibility 
before storing certain biofuel blends. It removed past deferrals for 
emergency generator tanks, field constructed tanks and airport hydrant 
systems.
    The NMED made updates to their regulations to ensure that they were 
no less stringent than the Federal regulations which were revised on 
July 15, 2015 (80 FR 41566). Title 40 CFR 281.30 through 281.39 
contains the ``no less stringent than'' criteria that a State must meet 
in order to have its UST program approved. In the State's application 
for approval of its UST program, the New Mexico Special Assistant 
Attorney General certified that it meets the requirements listed in 40 
CFR 281.30 through 281.39. EPA has relied on this certification in 
addition to the analysis submitted by the State in making our 
determination. For further information on EPA's analysis of the State's 
application, see the chart in the Technical Support Document (TSD) 
contained in the docket for this rulemaking. The corresponding State 
regulations are as follows:
    Title 40 CFR 281.30 lists the Federal requirements for new UST 
system design, construction, installation, and notification with which 
a State must comply in order to be found to be no less stringent than 
Federal requirements. NMAC Title 20 Environmental Protection, Chapter 5 
Petroleum Storage Tanks, Parts 101, 102, 106, 113, and 114 require that 
USTs be designed, constructed, and installed in a manner that will 
prevent releases for their operating life due to manufacturing defects, 
structural failure, or corrosion and be provided with equipment to 
prevent spills and tank overfills when new tanks are installed or 
existing tanks are upgraded, unless the tank does not receive more than 
25 gallons at one time. These parts also require UST system owners and 
operators to notify the implementing agency of any new UST systems, 
including instances where one assumes ownership of an existing UST.
    Title 40 CFR 281.31 requires that most existing UST systems meet 
the requirements of 281.30, are upgraded to prevent releases for their 
operating life due to corrosion, spills, or overfills, or are 
permanently closed. NMAC Title 20 Environmental Protection, Chapter 5 
Petroleum Storage Tanks, Parts 106, 113, and 114 contain the 
appropriate requirements that UST systems be upgraded to prevent 
releases during their operating life due to corrosion, spills, or 
overfills.
    Title 40 CFR 281.32 contains the general operating requirements 
that must be met in order for the State's submission to be considered 
no less stringent than the Federal requirements. Parts NMAC Title 20 
Environmental Protection, Chapter 5 Petroleum Storage Tanks, 107, 108, 
113, and 114 contain the necessary general operating requirements 
required by 40 CFR 281.32.
    Title 40 CFR 281.33 contains the requirements for release detection 
that must be met in order for the State's submission to be considered 
no less stringent than Federal requirements. NMAC Title 20 
Environmental Protection, Chapter 5 Petroleum Storage Tanks, Parts 108, 
113, and 114 contain the necessary requirements for release detection 
as required by 40 CFR 281.33.
    Title 40 CFR 281.34 contains the requirements for release 
reporting, investigation, and confirmation that must be met in order 
for the State's submission to be considered no less stringent than 
Federal requirements. NMAC Title 20 Environmental Protection, Chapter 5 
Petroleum Storage Tanks, Part 118 contains the necessary requirements 
as required by 40 CFR 281.34 for release reporting, investigation, and 
confirmation.
    Title 40 CFR 281.35 contains the requirements for release response 
and corrective action that must be met in order for the State's 
submission to be considered no less stringent than Federal 
requirements. NMAC Title 20 Environmental Protection, Chapter 5 
Petroleum Storage Tanks, Parts 119 and 120 contain the required 
provisions as listed in 40 CFR 281.35 for release response and 
corrective action.
    Title 40 CFR 281.36 contains the requirements for out of service 
UST systems and closures that must be met in order for the State's 
submission to be considered no less stringent than Federal 
requirements. NMAC Title 20 Environmental Protection, Chapter 5 
Petroleum Storage Tanks, Parts 114 and 115 contain the necessary 
requirements as listed in 40 CFR 281.36 for out of service UST systems 
and closures.
    Title 40 CFR 281.37 contains the requirements for financial 
responsibility for UST systems containing petroleum that must be met in 
order for the State's submission to be considered no less stringent 
than Federal requirements. NMAC Title 20 Environmental Protection, 
Chapter 5 Petroleum Storage Tanks, Part 117 contains the necessary 
requirements as listed in 40 CFR 281.37 for financial responsibility 
for UST systems.
    Title 40 CFR 281.38 contains the requirements for lender liability 
that must be met in order for the State's submission to be considered 
no less stringent than Federal requirements. NMAC Title 20 
Environmental Protection, Chapter 5 Petroleum Storage Tanks, Part 124 
contains the requirements for lender liability as listed in 40 CFR 
281.38.
    Title 40 CFR 281.39 contains the requirements for operator training 
that must be met in order for the State's submission to be considered 
no less stringent than Federal requirements. NMAC Title 20 
Environmental Protection, Chapter 5 Petroleum Storage Tanks, Part 104 
contains the requirements for operator training as required by 40 CFR 
281.39.

[[Page 53182]]

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

Broader in Scope Provisions
    The following statutory and regulatory provisions are considered 
broader in scope than the Federal program:
    At 20.5.103 NMAC, New Mexico assesses an annual fee of $100 per 
tank and at 20.5.102.202 NMAC, requires that all regulated UST systems 
be registered within 60 days of placing a regulated substance in the 
tank.
    At 20.5.509 NMAC, New Mexico requires UST Installers provide proof 
of two years out of the last three years of experience in the 
installation, modification, repair, and replacement of UST systems. The 
UST Installers must pass a New Mexico Laws and Rules exam, an on-site 
exam that includes the complete installation of a UST system in order 
to gain their certification, and provide proof of passing a national 
technical UST installer's test administered by an approved 
certification educator. New Mexico requires UST Junior Installers to 
provide proof of one year of experience in the last three years of 
field experience in the installation, modification, replacement, or 
repair of spill and overfill prevention equipment. Junior UST 
installers must pass a New Mexico Laws and Rules exam, and provide 
proof of passing a national technical UST installer's test administered 
by an approved certification educator.
    At 20.5.106.614 NMAC, New Mexico requires owners and operators who 
install loading racks to design and construct then in accordance with 
the current edition of an industry standard or code of practice 
developed by a nationally recognized association or independent testing 
laboratory approved in advance by the department.
    NMED requires that all corrective action activities be performed by 
a qualified firm in accordance with 20.5.122 NMAC. All corrective 
action activities must be pre-approved in writing prior to any work 
being completed pursuant to 20.5.119.1900.G NMAC and 20.5.120.2000.G 
NMAC and be performed by a qualified firm pursuant to 20.5.119.1900.H 
NMAC and 20.5.120.2000.H NMAC.
    At 20.5.115.1501.C(3), 1501.E and 1501.G [for field-erected AST 
systems only] NMAC New Mexico includes multiple requirements specific 
to aboveground storage tanks (ASTs) that are broader in scope than the 
Federal program which does not regulate these types of tanks systems.
    At 20.5.115.1501.F(3) NMAC the State requires that owners/operators 
of temporarily closed tanks to pay all annual tank fees and accrued 
late fees prior to bringing a tank back into service. All fees are 
broader in scope.
    At NMSA 1978 section 74-4-4.4 New Mexico requires registration, 
certification, and fee payment for classes of individuals defined as 
tank installers and testers that are not included in the Federal 
program.
    At NMSA 1978 section 74-6B-9 the State assesses a storage tank fee 
to be paid by tank owners and operators.
    Where an approved State program has a greater scope of coverage 
than required by Federal law, the additional coverage is not part of 
the federally-approved program. 40 CFR 281.12(a)(3)(ii).
More Stringent Provisions
    The following regulatory provisions are considered more stringent 
in coverage than the Federal program:
    20.5.102.206.A(20) NMAC requires that new registrations must be 
submitted on a PSTB approved registration form and include specific 
tank details including whether any part of the system is within 1,000 
feet of a water supply well, certified installer signature, and owner 
signature. Registration certificates are valid for one year and issued 
upon payment of tank fees due July 1 of each year and/or upon 
registration of a new tank system. Owners and operators may not operate 
tanks without a valid registration certificate and may be found out of 
substantial compliance when a release has occurred and may be denied 
access to the corrective action fund (CAF) if a valid registration has 
not been obtained.
    At 20.5.115.1500 NMAC New Mexico requires that owners and operators 
of regulated UST systems must notify PSTB at least 30 days prior to a 
permanent closure, temporary closure, return to service, change in 
service, or removal of a tank and/or lines by submitting to PSTB a 30-
Day Notification Form. Federal regulations require that owners and 
operators of regulated underground storage tank systems provide 30-day 
notification if their intent is to permanently close or make the 
change-in-service, unless such action is in response to corrective 
action.
    At 20.5.115.1501.G NMAC, the State requires owners and operators of 
field-constructed UST systems that have been in temporary closure for 3 
months or more to perform an internal inspection, perform a tightness 
test on all piping, and perform functionality testing.
    New Mexico requires all UST systems installed on or after April 4, 
2008 to be double walled and use interstitial monitoring for release 
detection for tanks and/or piping (20.5.106.606(B) and 205.107.702(C) 
NMAC).
    New Mexico requires a mechanism to prevent overfilling by sounding 
an alarm when the liquid level in the tank reaches 90 percent of 
capacity or automatically stops the delivery of liquid to the tank when 
the level in the tank reaches 95 percent of capacity (20.5.106.613.A(2) 
NMAC). In addition to these options, Federal regulations also allow UST 
owners to meet this requirement by restricting the flow 30 minutes 
prior to overfilling, alerting the transfer operator with a high level 
alarm one minute before overfilling, or automatically shut off flow 
into the tank so that none of the fittings on top of the tank are 
exposed to product due to overfilling. New Mexico does not allow the 
use of this additional option.
    New Mexico requires owners and operators to perform inspections of 
containment sumps as part of their monthly walk-through inspections 
(20.5.107.707(A)(3) NMAC).
    New Mexico requires owners and operators of UST systems that have 
been in temporary closure for 12 months or more to perform a site 
assessment, empty the tank(s) to less than one inch of a regulated 
substance, and pay all outstanding tank fees. Also, UST systems that 
have been in delivery prohibition for more than 12 months are required 
to permanently close in accordance with the requirements in 20.5.115 
NMAC (20.5.115.1501(D) and (F) NMAC).
    New Mexico requires owners and operators who use Statistical 
Inventory Reconciliation (SIR) for release detection on underground 
pressurized piping to conduct an annual line tightness test, whereas in 
Federal owners may choose to use another form of monthly monitoring 
instead. The line tightness test must be able to detect a release of 
0.1 gallons per hour at one and half times the operating pressure 
(20.5.108.810.B NMAC).
    New Mexico requires owners and operators to submit a written report 
within 14 days of the discovery or confirmations of a release 
(20.5.119.1903.B NMAC and 20.5.120.2003.B NMAC).
    New Mexico also regulates underground storage tank systems at 
marinas (20.5.106.611 NMAC).
    New Mexico regulates hybrid storage tank systems in the same manner 
as airport hydrant systems and UST systems with field-constructed 
tanks. (See specifically, 20.5.114 NMAC at sections 1403(D), 1404, 
1405, 1407, 1408(C), 1409, 1410, 1412, 1413, and 1414.)

[[Page 53183]]

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

    New Mexico is not authorized to carry out its Program in Indian 
Country (18 U.S.C. 1151) within the State. This authority remains with 
EPA. Therefore, this action has no effect in Indian Country. See 40 CFR 
281.12(a)(2).

II. Codification

A. What is codification?

    Codification is the process of placing a State's statutes and 
regulations that comprise the State's approved UST program into the 
CFR. Section 9004(b) of RCRA, as amended, allows the EPA to approve 
State UST programs to operate in lieu of the Federal program. The EPA 
codifies its authorization of State programs in 40 CFR part 282 and 
incorporates by reference State regulations that the EPA will enforce 
under RCRA sections 9005 and 9006 and any other applicable statutory 
provisions. The incorporation by reference of State authorized programs 
in the CFR should substantially enhance the public's ability to discern 
the current status of the approved State program and State requirements 
that can be Federally enforced. This effort provides clear notice to 
the public of the scope of the approved program in each State.

B. What is the history of codification of New Mexico's UST program?

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

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

    In this rule, we are finalizing regulatory text that includes 
incorporation by reference. In accordance with the requirements of 1 
CFR 51.5, we are finalizing the incorporation by reference of the New 
Mexico rules described in the amendments to 40 CFR part 282 set forth 
below. The EPA has made, and will continue to make, these documents 
generally available through https://www.regulations.gov and in hard 
copy at the EPA Region 6 office (see the ADDRESSES section of this 
preamble for more information).
    The purpose of this Federal Register document is to codify New 
Mexico's approved UST program. The codification reflects the State 
program that would be in effect at the time the EPA's approved 
revisions to the New Mexico UST program addressed in this direct final 
rule become final. The document incorporates by reference New Mexico's 
UST regulations and clarifies which of these provisions are included in 
the approved and federally enforceable program. By codifying the 
approved New Mexico program and by amending the Code of Federal 
Regulations (CFR), the public will more easily be able to discern the 
status of the federally-approved requirements of the New Mexico 
program.
    The EPA is incorporating by reference the New Mexico approved UST 
program in 40 CFR 282.81. Section 282.81(d)(1)(i)(A) incorporates by 
reference for enforcement purposes the State's statutes and 
regulations. Section 282.81 also references the Attorney General's 
Statement, the Demonstration of Procedures for Adequate Enforcement, 
the Program Description, and the Memorandum of Agreement, which are 
approved as part of the UST program under subtitle I of RCRA.

D. What is the effect of New Mexico's codification on enforcement?

    The EPA retains the authority under Subtitle I of RCRA sections 
9003(h), 9005 and 9006, 42 U.S.C. 6991b(h), 6991d and 6991e, and other 
applicable statutory and regulatory provisions to undertake corrective 
action, inspections and enforcement actions and to issue orders in 
approved States. With respect to these actions, EPA will rely on 
Federal sanctions, Federal inspection authorities, and Federal 
procedures rather than the State authorized analogues to these 
provisions. Therefore, the EPA is not incorporating by reference such 
particular, approved New Mexico procedural and enforcement authorities. 
Section 282.81(d)(1)(ii) of 40 CFR lists those approved New Mexico 
authorities that would fall into this category.

E. What State provisions are not part of the codification?

    The public also needs to be aware that some provisions of the 
State's UST program are not part of the federally approved State 
program. Such provisions are not part of the RCRA Subtitle I program 
because they are ``broader in coverage'' than Subtitle I of RCRA. Title 
40 CFR 281.12(a)(3)(ii) states that where an approved State program has 
provisions that are broader in scope than the Federal program, those 
provisions are not a part of the federally approved program. As a 
result, State provisions which are ``broader in coverage'' than the 
Federal program are not incorporated by reference for purposes of 
enforcement in part 282. Section 282.81(d)(1)(iii) of the codification 
simply lists for reference and clarity the New Mexico statutory and 
regulatory provisions which are ``broader in scope'' than the Federal 
program and which are not, therefore, part of the approved program 
being codified today. Provisions that are ``broader in scope'' cannot 
be enforced by EPA; the State, however, will continue to implement and 
enforce such provisions under State law.

III. Statutory and Executive Order Reviews

    This action only applies to New Mexico's UST Program requirements 
pursuant to RCRA section 9004 and imposes no requirements other than 
those imposed by State law. It complies with applicable EOs and 
statutory provisions as follows:

A. Executive Order 12866 Regulatory Planning and Review, Executive 
Order 13563: Improving Regulation and Regulatory Review

    The Office of Management and Budget (OMB) has exempted this action 
from the requirements of Executive Order 12866 (58 FR 51735, October 4, 
1993) and 13563 (76 FR 3821, January 21, 2011). This action approves 
and codifies State requirements for the purpose of RCRA section 9004 
and imposes no additional requirements beyond those imposed by State 
law. Therefore, this action is not subject to review by OMB.

B. Executive Order 13771: Reducing Regulations and Controlling 
Regulatory Costs

    This action is not an Executive Order 13771 (82 FR 9339, February 
3, 2017) regulatory action because actions such as this final approval 
of New Mexico's revised underground storage tank program under RCRA are 
exempted under Executive Order 12866. Accordingly, I certify that this 
action will not have a significant economic impact on a substantial 
number of small entities under the Regulatory Flexibility Act (5 U.S.C. 
601 et seq.).

C. Unfunded Mandates Reform Act and Executive Order 13175: Consultation 
and Coordination With Indian Tribal Governments

    Because this action approves and codifies pre-existing requirements 
under State law and does not impose any additional enforceable duty 
beyond that required by State law, it does not contain any unfunded 
mandate or significantly or uniquely affect small governments, as 
described in the Unfunded Mandates Reform Act of 1995

[[Page 53184]]

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

D. Executive Order 13132: Federalism

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

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

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

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

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

G. National Technology Transfer and Advancement Act

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

H. Executive Order 12988: Civil Justice Reform

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

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

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

J. Paperwork Reduction Act

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

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

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

L. Congressional Review Act

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

List of Subjects in 40 CFR Part 282

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

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

    Dated: July 20, 2020.
Kenley McQueen,
Regional Administrator, Region 6.

    For the reasons set forth in the preamble, EPA is amending 40 CFR 
part 282 as follows:

PART 282--APPROVED UNDERGROUND STORAGE TANK PROGRAMS

0
1. The authority citation for part 282 continues to read as follows:

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

0
2. Revise Sec.  282.81 to read as follows:


Sec.  282.81  New Mexico State-Administered Program.

    (a) History of the approval of New Mexico's Program. The State of 
New Mexico is approved to administer and enforce an underground storage 
tank program in lieu of the Federal program under Subtitle I of the 
Resource Conservation and Recovery Act of 1976 (RCRA), as amended, 42 
U.S.C. 6991, et seq. The State's program, as administered by the New 
Mexico Environment Department, was approved by EPA pursuant to 42 
U.S.C. 6991c and Part 281 of this Chapter. EPA published the notice of 
final determination approving the New Mexico underground storage tank 
base program effective on November 16, 1990. A subsequent program 
revision application was approved effective on October 27, 2020.
    (b) Enforcement authority. New Mexico has primary responsibility 
for administering and enforcing its federally approved underground 
storage tank program. However, EPA retains the authority to exercise 
its corrective action, inspection and enforcement authorities under 
Subtitle I of RCRA sections 9003(h), 9005 and 9006, 42

[[Page 53185]]

U.S.C. 6991b(h), 6991d and 6991e, as well as under any other applicable 
statutory and regulatory provisions.
    (c) Retaining Program Approval. To retain program approval, New 
Mexico must revise its approved program to adopt new changes to the 
Federal subtitle I program which make it more stringent, in accordance 
with RCRA section 9004, 42 U.S.C. 6991c, and 40 CFR part 281, subpart 
E. If New Mexico obtains approval for the revised requirements pursuant 
to RCRA section 9004, 42 U.S.C. 6991c, the newly approved statutory and 
regulatory provisions will be added to this subpart and notice of any 
change will be published in the Federal Register.
    (d) Final Program Approval. New Mexico has final approval for the 
following elements of its program application originally submitted to 
EPA and approved effective November 16, 1990, and the program revision 
application approved by EPA effective on October 27, 2020:
    (1) State statutes and regulations--(i) Incorporation by reference. 
The New Mexico provisions cited in this paragraph are incorporated by 
reference as part of the underground storage tank program under 
Subtitle I of RCRA, 42 U.S.C. 6991 et seq. The Director of the Federal 
Register approves this incorporation by reference in accordance with 5 
U.S.C. 552(a) and 1 CFR part 51. You may obtain copies of the New 
Mexico regulations that are incorporated by reference in this paragraph 
from New Mexico State Records Center and Archives, 1205 Camino Carlos 
Rey, Santa Fe, NM 87507; Phone number: (505)-476-7941; website https://164.64.110.134/nmac/. You may inspect all approved material at the EPA 
Region 6, 1201 Elm Street, Suite 500, Dallas, Texas 75270 (Phone number 
(214) 665-2239 or the National Archives and Records Administration 
(NARA). For information on the availability of the material at NARA, 
email [email protected] or go to https://www.archives.gov/federal-register/cfr/ibr-locations.html.
    (A) ``EPA-Approved New Mexico Statutory and Regulatory Requirements 
Applicable to the Underground Storage Tank Program'', June 2020. Only 
those provisions that have been approved by EPA are incorporated by 
reference. Those provisions are listed in Appendix A to Part 282.
    (B) [Reserved]
    (ii) Legal basis. EPA evaluated the following statutes and 
regulations which provide the legal basis for the State's 
implementation of the underground storage tank program, but they are 
not being incorporated by reference and do not replace Federal 
authorities:
    (A) The statutory provisions include: New Mexico Statutes Annotated 
(NMSA) 1978, as amended through May 16, 2018:
    (1) Tax Administration Act, section 7-1-6.25;
    (2) Department of Environment Act, sections 9-7A-2(A) through (C), 
9-7A-3 through 9-7A-12;
    (3) Open Meetings Act, sections 10-15-1 through 10-15-4;
    (4) Inspection of Public Records Act, sections 14-2-1 through 14-2-
12;
    (5) State Rules Act, section 14-4-5.2;
    (6) Environmental Improvement Act, sections 74-1-2, 74-1-3(A), (B), 
(D), and (F), 74-1-4 through 74-1-6, 74-1-7(A) introductory paragraph 
and (A)(13), 74-1-8(A) introductory paragraph and (A)(13), 74-1-8.1, 
74-1-9, 74-1-10;
    (7) Hazardous Waste Act, sections 74-4-2, 74-4-3(A) through (D), 
(F), (M), (N), (Q), and (V), 74-4-4 (except (A), (J), and (K)), 74-4-
4.3, 74-4-4.8, 74-4-5, 74-4-7, 74-4-8, 74-4-10, 74-4-11(C), 74-4-12 
through 74-4-14; and
    (8) Groundwater Protection Act, sections 74-6B-2 through 74-6B-8, 
74-6B-13, 74-6B-14.
    (B) The regulatory provisions include: New Mexico Administrative 
Code (NMAC) Title 20 Environmental Protection, Chapter 5 Petroleum 
Storage Tanks, as amended effective July 24, 2018: Part 107 General 
Operating Requirements for Underground Storage Tank Systems, section 
20.5.107.712 Department Review and Approval of Plans, Installation, 
Operation, and Maintenance;
    Part 116 Delivery Prohibition; Part 123 Corrective Action Fund 
Administration; and Part 125 Administrative Review.
    (iii) Provisions not incorporated by reference. The following 
specifically identified sections and rules applicable to the New Mexico 
underground storage tank program that are broader in scope than the 
Federal program, are not part of the approved program, and are not 
incorporated by reference herein for enforcement purposes:
    (A) New Mexico Statutes Annotated (NMSA) 1978, as amended through 
May 16, 2018: Hazardous Waste Act, section 74-4-4.4; and Groundwater 
Protection Act, section 74-6B-9 and 74-6B-10.
    (B) New Mexico Administrative Code (NMAC) Title 20 Environmental 
Protection, Chapter 5 Petroleum Storage Tanks, as amended effective 
July 24, 2018: Part 102, section 202 New Storage Tank Systems; Part 103 
Annual Fee; Part 105 Certification of Tank Installers and Junior 
Installers; Requirements for Testers, section 509 Experience 
Requirements; Part 106 New and Upgraded Underground Storage Tank 
Systems: Design, Construction, and Installation, section 20.5.106.614 
Loading Racks; Part 115 Out-of-Service Storage Tank Systems and 
Closure, sections 1501.C(3), 1501.E, 1501.F(3), and 1501.G [for field-
erected AST systems only]; Part 119 Corrective Action for Storage 
Action Tank Systems Containing Petroleum Products, sections 
20.5.119.1900.G and 20.5.119.1900.H; Part 120 Corrective Action for UST 
Systems Containing Other Regulated Substances, sections 20.5.120.2000.G 
and 20.5.120.2000.H; and Part 122 Qualification of Persons Performing 
Corrective Action.
    (2) Statement of legal authority. The Attorney General's Statement, 
signed by the Special Assistant Attorney General of New Mexico June 25, 
1990, and revisions to that Statement dated October 5, 2018, though not 
incorporated by reference, are referenced as part of the approved 
underground storage tank program under Subtitle I of RCRA, 42 U.S.C. 
6991 et seq.
    (3) Demonstration of procedures for adequate enforcement. The 
``Adequate Enforcement of Compliance'' submitted as part of the 
original application on September 25, 1989 and as part of the program 
revision application for approval on October 11, 2018, though not 
incorporated by reference, is referenced as part of the approved 
underground storage tank program under Subtitle I of RCRA, 42 U.S.C. 
6991 et seq.
    (4) Program description. The program description and any other 
material submitted as part of the original application September 25, 
1989 and as part of the program revision application October 11, 2018, 
though not incorporated by reference, are referenced as part of the 
approved underground storage tank program under Subtitle I of RCRA, 42 
U.S.C. 6991 et seq.
    (5) Memorandum of Agreement. The Memorandum of Agreement between 
EPA Region 6 and the New Mexico Environment Department, signed by the 
EPA Regional Administrator on July 29, 2019 though not incorporated by 
reference, is referenced as part of the approved underground storage 
tank program under Subtitle I of RCRA, 42 U.S.C. 6991 et seq.

0
3. Appendix A to part 282 is amended by revising the entry for New 
Mexico to read as follows:

[[Page 53186]]

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

* * * * *

New Mexico

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