Rhode Island: Final Approval of State Underground Storage Tank Program Revisions, Codification, and Incorporation by Reference, 79872-79879 [2020-25831]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 85, Number 239 (Friday, December 11, 2020)]
[Rules and Regulations]
[Pages 79872-79879]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-25831]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 282

[EPA-R01-UST-2020-0207; FRL-10015-22-Region 1]


Rhode Island: 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: 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 Rhode Island's 
Underground Storage Tank (UST) program submitted by the Rhode Island 
Department of Environmental Management (RI DEM). This action also 
codifies EPA's approval of Rhode Island's State program and 
incorporates by reference those

[[Page 79873]]

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 sections 9005 and 9006 of 
RCRA Subtitle I and other applicable statutory and regulatory 
provisions.

DATES: This rule is effective February 9, 2021, unless EPA receives 
adverse comment by January 11, 2021. If EPA receives adverse comments, 
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 February 9, 2021, 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-R01-UST-
2020-0207. 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, EPA recommends that you include your 
name and other contact information in the body of your comment and also 
with any disk or CD-ROM you submit. If EPA cannot read your comment due 
to technical difficulties, and cannot contact you for clarification, 
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. EPA encourages electronic submittals, 
but if you are unable to submit electronically, please reach out to the 
EPA contact person listed in the notice for assistance.
    Docket: All documents in the docket are listed in the https://www.regulations.gov index. Although listed in the index, some 
information might not be publicly available, e.g., CBI or other 
information whose disclosure is restricted by statute. Certain other 
material, such as copyrighted material, might be publicly available 
only in hard copy form. Publicly available docket materials are 
available either electronically through www.regulations.gov or in hard 
copy.
    IBR and supporting material: You can view and copy the documents 
that form the basis for this codification and associated publicly 
available materials either through www.regulations.gov or at the EPA 
Region 1 Office, 5 Post Office Square, 1st floor, Boston, MA 02109-
3912. The facility is open from 8:30 a.m. to 4:00 p.m., Monday through 
Friday, excluding Federal holidays and facility closures due to COVID-
19. We recommend that you telephone Andrea Beland, RCRA Waste 
Management, UST, and Pesticides Section, at (617) 918-1313, before 
visiting the Region 1 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: Andrea Beland, (617) 918-1313, 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Approval of Revisions to Rhode Island's Underground Storage Tank 
Program

A. Why are revisions to state programs necessary?

    States that have received final approval from the EPA under RCRA 
section 9004(b) of RCRA, 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 UST program. Either EPA or 
the approved state may initiate program revision. 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. Program revision may be 
necessary when the controlling Federal or state statutory or regulatory 
authority is modified or when responsibility for the state program is 
shifted to a new agency or agencies.

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

    On February 4, 2020, in accordance with 40 CFR 281.51(a), Rhode 
Island submitted a complete program revision application seeking the 
EPA approval for its UST program revisions (State Application). Rhode 
Island's revisions 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 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 State Application and determined that the revisions 
to Rhode Island's UST program are equivalent to, consistent with, and 
no less stringent than the corresponding Federal requirements in 
subpart C of 40 CFR part 281, and that the Rhode Island program 
provides for adequate enforcement of compliance (40 CFR 281.11(b)). 
Therefore, the EPA grants Rhode Island 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.

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 Rhode Island, 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?

    EPA is publishing this direct final rule concurrent with a proposed 
rule because we view this as a noncontroversial action and anticipate 
no adverse comment. EPA is providing an opportunity for public comment 
now.

[[Page 79874]]

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 issue of the Federal 
Register that serves as the proposal to approve the State's UST program 
revisions, 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 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 Rhode Island previously been approved?

    On February 3, 1993, the EPA finalized a rule approving the UST 
program, effective March 5, 1993, to operate in lieu of the Federal 
program. On February 20, 1996, effective April 22, 1996, the EPA 
codified the approved Rhode Island program, incorporating by reference 
the State statutes and regulatory provisions that are 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?

    On February 4, 2020, in accordance with 40 CFR 281.51(a), Rhode 
Island submitted a complete application for final approval of its UST 
program revisions adopted on November 20, 2018. The EPA now makes an 
immediate final decision, subject to receipt of written comments that 
oppose this action, that Rhode Island's UST program revisions satisfy 
all of the requirements necessary to qualify for final approval. 
Therefore, EPA grants Rhode Island final approval for the following 
program changes:

------------------------------------------------------------------------
        Required federal element           Implementing state authority
------------------------------------------------------------------------
40 CFR 281.30, New UST Systems and       250-RICR-140-25 Part(s): 1.4;
 Notification.                            1.7; 1.8; 1.11; 1.11(C);
                                          1.11(L); and 1.12.
40 CFR 281.31, Upgrading Existing UST    250-RICR-140-25 Part(s):
 Systems.                                 1.10(E); and 1.15.
40 CFR 281.32, General Operating         250-RICR-140-25 Part(s): 1.4(I)
 Requirements.                            1.5(A)(8) and (27);
                                          1.7P(2)(b); 1.10(B)(4) and
                                          (5); 1.10(E); 1.10(F)(1)(f);
                                          1.10(G)(2)(d); 1.10(N);
                                          1.10(N)(3); 1.10(U)(9);
                                          1.11(C)(6); 1.11(D); 1.12(C)
                                          and (D); 1.12(D)(1)(g); and
                                          1.13.
40 CFR 281.33, Release Detection.......  250-RICR-140-25-1 Part(s):
                                          1.10(A), (F), (G) and (M);
                                          1.11(A), (N), (O) and (P).
40 CFR 281.34, Release Reporting,        250-RICR-140-25-1 Part(s):
 Investigation, and Confirmation.         1.14.
40 CFR 281.35, Release Response and      250-RICR-140-25-1 Part(s):
 Corrective Action.                       1.14.
40 CFR 281.36, Out-of-service Systems    250-RICR-140-25-1 Part(s):
 and Closure.                             1.15(C); 1.15(D); and
                                          1.15(D)(12).
40 CFR 281.37, Financial Responsibility  250-RICR-140-25-1 Part(s): 1.8;
 for USTs Containing Petroleum.           and 1.9.
40 CFR 281.39, Operator Training.......  250-RICR-140-25-1 Part(s):
                                          1.10(U).
40 CFR 281.40, Legal Authorities for     250-RICR-140-25-1 Part(s): 1.4;
 Compliance Monitoring.                   1.10; 1.13; 1.14(I); 1.16.
40 CFR 281.41, Legal Authorities for     250-RICR-140-25-1 Part(s):
 Enforcement Response.                    1.10(T).
------------------------------------------------------------------------

    The State also demonstrates that its program provides adequate 
enforcement of compliance as described in 40 CFR 281.11(b) and part 
281, subpart D. The RI DEM has broad statutory authority with respect 
to USTs to regulate installation, operation, maintenance, closure, and 
UST releases, and to the issuance of orders. These statutory 
authorities are found in: Rhode Island General Laws, Title 38: Public 
Records, Chapters 38-1, 2, and 3; Rhode Island General Laws, Title 42: 
State Affairs and Government, Chapter 42-17.1-2(20), Department of 
Environmental Management; and Rhode Island General Laws, Title 46: 
Waters and Navigation, Chapter 46-12: Water Pollution, Section 12-3, 
Sections 12-9 and 10, 12-13 through 15, and Section 46-12-22.

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, and are therefore not 
enforceable as a matter of Federal law:
    The State of Rhode Island regulates heating oil of all grades at 
non-residential locations and partially regulates residential tanks 
storing heating oil at one, two, or three-unit dwellings; farm tanks 
storing heating oil for non-commercial purposes, and holding tanks.
    All owners and operators of USTs must comply with registration 
requirements, with the exception of those exempted under 250-RICR-140-
25 section 1.4(D). Registration applies to all farm and residential 
tanks containing heating or fuel oils consumed on-site and containing 
motor fuels for on-site use.
    The Rhode Island Underground Storage Tank Financial Responsibility 
Fund (RI UST FR Fund) was established to provide a mechanism to comply 
with financial responsibility requirements and to ensure that the 
environmental and public health impacts of leaks from USTs are 
addressed in an effective and timely manner.
    Owners/operators must ensure that their facilities comply with 
Rhode Island's UST regulations by conducting their own inspections and 
certifying their compliance by completing and submitting the 
Environmental Results Program Certification (ERP) Booklet. At least 
every three years the RI DEM will issue an ERP Certification Booklet to 
all operating UST facilities.
    With the exception of UST systems that store fuel oil of any grade 
consumed on-site for heating, all single-walled tanks and/or piping 
installed before May 8, 1985 were required to be permanently closed by 
December 22, 2017. All single-walled tanks and/or piping installed 
between May 8, 1985 and July 20, 1992, shall be permanently closed 
within thirty-two (32) years of the date of installation. If the 
installation date is not known, then any single-walled tank and/or 
piping shall be permanently closed immediately.
    All USTs containing heating oil of any grade at commercial or 
industrial facilities are required to be tested for tightness beginning 
in 2021.

[[Page 79875]]

    Remote pumping systems, including dispensers, shall be equipped 
with an emergency shut-off valve designed to close automatically in the 
event that a dispensing unit is significantly impacted or exposed to 
fire.
    New USTs are prohibited from being installed in wellhead protection 
areas for community water systems. However, USTs registered before 
November 20, 2018 that were not abandoned or removed for more than 180 
days are permitted to be replaced with tanks of equivalent size, or 
less, and substance stored.
    The installation of an UST within 200 feet of a public drilled 
(rock), driven, or dug well or within 400 feet of a gravel-packed or 
gravel-developed well is prohibited.
    USTs are to be installed as far away as possible from private 
wells.
    Construction of a new tank system or replacement tank system, and 
modification (including product piping replacement) to any UST facility 
for which an application for a certificate of registration is required, 
is prohibited without prior written notification to, and approval by, 
the Director.
    Before installing or replacing any USTs or product piping, the 
owner is required to submit a completed UST Registration Form; a 
completed Equipment List Addendum; a completed UST Installation/
Modification/Upgrade Supplemental Information form; a site plan, 
including all of the information listed in 250-RICR-140-25 section 
1.7(D)(1)(a)(3) which must be reviewed and stamped by a registered 
Professional Engineer; specifications or a diagram indicating depth of 
excavation, bedding, and backfill, supports and anchorage used, 
distance between tanks, and dimensions (including thickness) of traffic 
pad; and the appropriate registration fees.
    All new and replacement tanks and piping (primary and secondary) 
shall be tightness tested after all paving over the tanks and piping 
has been completed and before commencing regular UST operation.
    USTs storing heating oil used onsite for heating purposes only with 
aboveground fill pipes do not require spill containment as long as the 
ground around the fill pipe is covered with a positive-limiting barrier 
constructed of material impervious to the substance stored and can 
contain spills less than three gallons; the fill pipe extends a minimum 
of six inches above the finished grade; and aboveground fill pipes in 
high traffic areas are protected by concrete-filled bollards.
    When permanently closing any UST system and/or product pipeline, a 
$75.00 per UST fee must be submitted at least 10 days prior to the 
removal date.
    No person can conduct tightness or interstitial testing on USTs or 
tank components in Rhode Island unless they are in compliance with the 
licensing and other provisions of these regulations. Any individual 
wishing to be licensed must submit a completed application with the 
required documentation and application fee. Any business who employs or 
subcontracts licensed testers to conduct tank and/or piping tests are 
required to submit a completed application for a tank testing business 
license to the RI DEM.
    Any owner/operator of a facility, or person subject to these 
regulations may submit a written request to the Director for a variance 
from some or all provisions of these regulations.
More Stringent Provisions
    Facilities subject to leak detection requirements must post or 
provide, in a location readily accessible to the facility staff, 
emergency response procedures, including instructions on responding to 
alarms, releases, spills, and other abnormal events, and include 
current contact information for the Class A and B operator or a 24-hour 
call center or spill response hotline.
    All USTs and product piping installed after 1992 are required to 
have liquid-tight secondary containment and be equipped with continuous 
monitoring of the interstitial space.
    Double-walled USTs with a dry interstice (except those for heating 
fuels for on-site use, emergency generators, and waste or motor oil) 
must have a tightness test of the interstitial space completed every 
two years once the tanks have been installed for 20 years. If the test 
fails, the primary wall must be tested within 48 hours. Any product 
remaining in the tank can be consumed for up to 30 days if the primary 
tank tests tight. If the primary wall is unable to be tested or fails, 
the tank must be taken out of service, the contents removed within 24 
hours, and the tank tester must notify DEM immediately. Within 30 days 
and before adding product to the repaired tank, an additional 
interstitial tightness test must be done to confirm the repair. All 
failed USTs must be repaired or replaced within 60 days or be 
temporarily closed. Test results are to be maintained on-site at all 
times as permanent records.
    If a piping interstitial space tightness test fails, and there is 
no evidence of a release, the primary product pipeline wall must be 
tested for tightness within 48 hours. If it is tight, any product 
remaining in the failed product pipeline and all USTs directly 
connected to that pipeline may be consumed for no longer than 30 days. 
No additional product may be added to any UST connected to the failed 
product pipeline until it has been repaired or replaced and passes a 
final tightness test. The repaired pipeline must be re-tested within 30 
days and before placing it back into regular service. Test results are 
to be maintained on-site at all times as permanent records.
    If the primary wall of the piping is unable to be tested or fails, 
the failed line must be taken out of service immediately, the contents 
removed, and the tank tester must notify the RI DEM immediately. No 
product may be added to an UST that services the failed pipeline until 
it has been repaired or replaced and passed a final tightness test to 
confirm the repair. All failed USTs must be repaired or replaced within 
60 days or be temporarily closed. Test results are to be maintained on-
site at all times as permanent records.
    All single-walled USTs and all single-walled product pipelines, 
including pressurized, U.S. suction, and European suction, must be 
tested for tightness by a third-party licensed tester on an annual 
basis, regardless of age or installation date.
    Statistical inventory reconciliation, groundwater, and vapor 
monitoring are not accepted as leak detection methods.
    Owners/Operators of single-walled USTs are required to operate an 
approved automatic tank gauging system that tests for loss or gain of 
the contents stored, perform a leak test capable of detecting a leak 
rate of 0.2 gal/hour or less at least once per month, perform daily and 
monthly inventory recordkeeping, and perform a tank tightness test 
annually.
    Interior lining is no longer accepted as a method of corrosion 
protection. USTs lined prior to November 20, 2018, must be inspected 
within 10 years after lining, and every five years thereafter. Any 
pitting, tearing, discoloration, failure to adhere to the tank 
structure, or other damage will be considered a lining failure. The 
USTs must be removed from service and permanently closed within 90 
days. Failed lining inspections must be reported to the RI DEM by the 
inspector within 24 hours and the final report/results are to be 
submitted within 30 calendar days. Records of all tank lining 
inspections are required to be permanently kept.
    Impressed current cathodic protection systems are required to be 
tested every 2 years.
    All facilities are required to have a trained and certified Class A 
and Class B operator registered with RI DEM who

[[Page 79876]]

are required to perform monthly walk-through inspections and complete 
the Department's monthly inspection checklist. Class A and B operator 
certification is valid for five years from the date of passing provided 
the facility remains in compliance with these regulations. Class C 
operators must be trained every two years, by a Class A or B operator.
    Written approval is needed to operate as an unmanned facility 
before operating without a Class C operator being present during all 
operating hours. Certified Class A and Class B operators must be 
designated to the facility and registered with the RI DEM. A sign must 
be posted with the names and telephone numbers of the Class A and B 
operators, facility owner/operator, 911, local emergency responders, 
and must include a statement advising persons to call these numbers to 
report a spill or other emergency. This sign must be visible for the 
person fueling the vehicle or the USTs to read. A designated person(s) 
must be available to respond to emergencies immediately when the owner 
or operator is contacted.
    Airport hydrant fuel distribution systems and UST systems with 
field-constructed tanks shall meet release detection requirements for 
tanks and piping systems. Piping associated with airport hydrant 
distribution systems and field constructed UST systems shall have 
secondary containment.
    All new and replacement spill containment basins must be capable of 
holding a minimum of three gallons, be double-walled and capable of 
periodic interstitial monitoring. Single-walled spill containment 
basins are prohibited from being installed as of November 20, 2018.
    USTs and/or their associated piping can be modified or repaired 
only once.
    Owners and operators of all UST facilities must maintain the 
following records for three years beyond the facility's operational 
life: Data used in the certificate of registration application; 
modifications or repairs to pipes, fittings, or other UST system 
components; storage of regulated substances greater than 10% ethanol 
and 20% biodiesel, and the UST system compatibility of those 
substances; annual test results of leak detection equipment and 
systems; records of closure activities; tank and line tightness test 
results; corrosion protection methods documentation; records of leaks, 
spills, releases, overfill, site investigations, and remedial response 
activities; equipment warranties and manufacturers' checklists; 
monitoring, testing, and/or inspections for single-walled and double-
walled spill prevention equipment, containment sumps, and overfill 
prevention equipment.
    All confirmed and suspected leaks or releases from USTs must be 
immediately reported.
    A temporary closure application must be submitted to the RI DEM for 
approval at least 15 days prior to the requested closure date. Class A, 
Class B, or Class A/B operator must be registered with RI DEM for the 
entire duration of the temporary closure, must visit the site 
biannually to ensure the facility and the UST components are in good 
condition, there are no missing components, and no unsafe situations 
exist on the property. The operator must complete the monthly 
inspection checklist and at least once per year measure the product and 
water level in the tanks. The RI DEM must be notified within 24 hours 
if there is any change in the product or water level, and corrective 
action may be required. The facility owner/operator must notify RI DEM 
30 days before re-opening the UST system and must receive written 
approval before adding or dispensing any regulated substances or 
hazardous materials.
    Prior approval and oversight from the RI DEM is required for the 
permanent closure of any UST, UST system, or an UST and product 
pipeline.

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 statutes and regulations that the EPA 
will enforce under sections 9005 and 9006 of RCRA and any other 
applicable state 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 Rhode Island's UST program?

    EPA incorporated by reference the Rhode Island DEM approved UST 
program effective April 22, 1996 (61 FR 6320; February 20, 1996). In 
this document, EPA is revising 40 CFR 282.89 to include the approved 
revisions.

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

    Incorporation by reference: 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 federally approved Rhode Island UST 
program described in the amendments to 40 CFR part 282 set forth below. 
The EPA has made, and will continue to make, this document generally 
available through www.regulations.gov and at the EPA Region 1 office 
(see the ADDRESSES Section of this preamble for more information).
    The purpose of this Federal Register document is to codify Rhode 
Island's approved UST program. The codification reflects the State 
program that would be in effect at the time EPA's approved revisions to 
the Rhode Island UST program addressed in this direct final rule become 
final. The document incorporates by reference Rhode Island's UST 
statutes and regulations and clarifies which of these provisions are 
included in the approved and federally enforceable program. By 
codifying the approved Rhode Island program and by amending the CFR, 
the public will more easily be able to discern the status of the 
federally-approved requirements of the Rhode Island program.
    EPA is incorporating by reference the Rhode Island approved UST 
program in 40 CFR 282.89. Section 282.89(d)(1)(i)(A) incorporates by 
reference for enforcement purposes the State's statutes and 
regulations.
    Section 282.89 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 UST program under Subtitle I of RCRA. These documents are 
not incorporated by reference.

D. What is the effect of Rhode Island's codification on enforcement?

    The 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 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

[[Page 79877]]

authorized analogues to these provisions. Therefore, the EPA is not 
incorporating by reference such particular, approved Rhode Island 
procedural and enforcement authorities. Section 282.89(d)(1)(ii) of 40 
CFR lists those approved Rhode Island 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 scope'' than Subtitle I of RCRA. Section 
281.12(a)(3)(ii) of 40 CFR 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 scope than the Federal 
program are not incorporated by reference for purposes of enforcement 
in Part 282. Section 282.89(d)(1)(iii) lists for reference and clarity 
the Rhode Island 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 in this document. 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 Rhode Island's UST Program requirements 
pursuant to RCRA section 9004 and imposes no requirements other than 
those imposed by State law. It complies with applicable Executive 
orders (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 Orders 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 a regulatory action subject to Executive Order 
13771 (82 FR 9339, February 3, 2017) because actions such as this final 
approval of Rhode Island'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 (2 U.S.C. 1531-
1538). As discussed above, EPA is not acting on approval to operate the 
State's UST program as it applies to Tribal lands in the State. 
Therefore, 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: Services 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

[[Page 79878]]

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 February 9, 2021 because it is a direct 
final rule.

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

List of Subjects in 40 CFR Part 282

    Environmental protection, Administrative practice and procedure, 
Confidential business information, Hazardous substances, Incorporation 
by reference, Insurance, Intergovernmental relations, Penalties, 
Petroleum, Reporting and recordkeeping requirements, Surety bonds, 
Underground storage tanks, Water supply.

    Dated: November 10, 2020.
Dennis Deziel,
Regional Administrator, EPA Region 1.

    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.  282.89 to read as follows:


Sec.  282.89  Rhode Island State-Administered Program.

    (a) The State of Rhode Island 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 Rhode Island Department of Environmental Management 
(RI DEM), was approved by EPA pursuant to 42 U.S.C. 6991c and 40 CFR 
part 281. EPA approved the Rhode Island program on February 3, 1993, 
which was effective on March 5, 1993.
    (b) Rhode Island has primary responsibility for administering and 
enforcing its federally approved underground storage tank program. 
However, EPA retains the authority to exercise its inspection and 
enforcement authorities under sections 9005 and 9006 of Subtitle I of 
RCRA, 42 U.S.C. 6991d and 6991e, as well as under any other applicable 
statutory and regulatory provisions.
    (c) To retain program approval, Rhode Island must revise its 
approved program to adopt new changes to the Federal Subtitle I program 
which makes it more stringent, in accordance with section 9004 of RCRA, 
42 U.S.C. 6991c and 40 CFR part 281, subpart E. If Rhode Island 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 notification of any change will be 
published in the Federal Register.
    (d) Rhode Island has final approval for the following elements of 
its program application originally submitted to EPA and approved 
effective March 5, 1993, and the program revision application approved 
by EPA, effective on February 9, 2021.
    (1) State statutes and regulations--(i) Incorporation by reference. 
The material cited in this paragraph (d)(1)(i), and listed in appendix 
A to this part, is incorporated by reference as part of the underground 
storage tank 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 Rhode Island regulations and 
statutes that are incorporated by reference in this paragraph (d)(1)(i) 
from Kevin Gillen, Rhode Island DEM, 235 Promenade Street, Providence, 
RI 02908-5767; Phone number: 401-222-2797; [email protected], 
Hours: Monday-Friday, 7:00 a.m. to 3:30 p.m.; link to statutes and 
regulations: State of Rhode Island General Laws: https://webserver.rilin.state.ri.us/Statutes/; https://www.dem.ri.gov/programs/wastemanagement/ust/. You may inspect all approved material at the EPA 
Region 1 Office, 5 Post Office Square, 1st floor, Boston, MA 02109-
3912; Phone Number: (617) 918-1313; or the National Archives and 
Records Administration (NARA), Email: [email protected], website: 
https://www.archives.gov/federal-register/cfr/ibr-locations.html.
    (A) ``EPA-Approved Rhode Island Statutory and Regulatory 
Requirements Applicable to the Underground Storage Tank Program, May 
2020.''
    (B) [Reserved]
    (ii) Legal basis. EPA evaluated the following statutes and 
regulations which are part of the approved program, but they are not 
being incorporated by reference for enforcement purposes, and do not 
replace Federal authorities:
    (A) The statutory provisions include:
    (1) Rhode Island General Laws, Title 38: Public Records; Chapter 
38-1, Custody and Protection of Public Records; Chapter 38-2, Access to 
Public Records; and 38-3, Administration of Public Records.
    (2) Rhode Island General Laws, Title 42--Affairs and Government; 
Chapter 42-17.1-2(20), Department of Environmental Management, Powers 
and Duties to Enter, Examine or Survey for Criminal Investigations; 
Chapter 42-17.6, Administrative Penalties for Environmental Violations.
    (3) Rhode Island General Laws, Title 46--Waters and Navigation; 
Chapter 46-12--Water Pollution, Section 12-3, Powers and Duties of the 
Director, except (21); Section 12-9, Notices of Violation and 
Compliance Orders; 12-10, Emergency Powers; 12-13, Civil Penalties; 12-
14, Criminal Penalties; 12-15, Inspection Powers--Rules and 
Regulations; and Section 12-22. Access of Enforcement Officers to 
Premises.
    (B) The regulatory provisions include:
    (1) Title 250--Department of Environmental Management, Chapter 
140--Waste and Materials Management, Subchapter 25--Oil and Underground 
Tanks, Part 1--Rhode Island Rules and Regulations for Underground 
Storage Facilities Used for Regulated Substances

[[Page 79879]]

and Hazardous Materials, adopted as 250-RICR-140-25-1, Section: 1.10(T) 
Delivery Prohibition; 1.16(F) Suspension or Revocation of License; 
1.16(G) Procedure for Suspension and Revocation; 1.16(H) Requests for 
Hearings; 1.21 Appeals; 1.22 Penalties.
    (2) Title 250--Department of Environmental Management, Chapter 20--
Legal Services, Subchapter 00--N/A, Part 1--Administrative Rules of 
Practice and Procedure for the Department of Environmental Management 
20-00-1, adopted as 250-RICR-20-00-1.
    (3) Title 250--Department of Environmental Management, Chapter 
130--Compliance and Inspection, Subchapter 00--N/A, Part 1--Rules and 
Regulations for Assessment of Penalties, adopted as 250-RICR-130-00-1.
    (iii) Provisions not incorporated by reference. The following 
specifically identified statutory and regulatory provisions applicable 
to the Rhode Island's UST program are broader in scope than the Federal 
program, are not part of the approved program, and are not incorporated 
by reference in this section for enforcement purposes:
    (A) Rhode Island Rules and Regulations for Underground Storage 
Facilities Used for Regulated Substances and Hazardous Materials, 250-
RICR-140-25-1, Section: 1.4(E) Partial regulation of residential tanks 
storing heating oil at one, two, or three-unit dwellings and farm tanks 
storing heating oil for non-commercial purposes; 1.4(G) Partial 
regulation of holding tanks; 1.7(A) Registration applies to all farm 
and residential tanks containing heating or fuel oils consumed on-site 
and containing motor fuels for on-site use; 1.9 The Rhode Island UST 
Financial Responsibility Fund; 1.10 Minimum UST Operation and 
Maintenance Requirements, (C), (D), (F)(4) and (J); 1.11 New and 
Replacement UST System Requirements, (B)(1-3) and (5), (C)(1), (J)(1), 
and (L)(2); 1.12 Facility Modifications or Repairs, (A); 1.15 Closure, 
(D)(5); 1.16 Approval of Tank and/or Line Tightness Tests, Leak 
Detection Methods and Licensing Requirements, (B), (D), and (E); 1.19 
Holding Tanks; 1.20 Variances.
    (B) [Reserved]
    (2) Statement of legal authority. The Attorney General's 
Statements, signed by the Attorney General of Rhode Island on July 1, 
1992, and January 23, 2020, 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 
``Demonstration of Procedures for Adequate Enforcement'' submitted as 
part of the original application on July 2, 1992, and as part of the 
program revision application for approval on February 4, 2020, 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 on July 2, 1992, 
and as part of the program revision application on February 4, 2020, 
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 1 and the Rhode Island Department of Environmental Services, 
signed by the EPA Regional Administrator on February 12, 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 Rhode 
Island to read as follows:

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

* * * * *

Rhode Island

    (a) The statutory provisions include:
    1. Rhode Island General Laws, Title 42: State Affairs and 
Government; Chapter 42-17.1, Department of Environmental Management; 
Section 42-17.1-2, Powers and Duties.
    (31) standards for the quality of air, and water, and the 
location, design, construction, and operation of all underground 
storage facilities used for storing petroleum products or hazardous 
materials.
    2. Rhode Island General Laws, Title 46: Waters and Navigation; 
Chapter 46-12. Water Pollution; Section 46-12-3, Powers and Duties 
of the Director.
    (4) accepting and administering loans and grants.
    (21) standards for location, design, construction, maintenance, 
and operation of underground storage facilities used for storing 
petroleum products or hazardous materials to prevent, abate, and 
remedy the discharge of petroleum products and hazardous materials 
into the waters of the state.
    (22) promulgate regulations for monitoring wells.
    (b) The regulatory provisions include:
    1. Rhode Island Rules and Regulations for Underground Storage 
Facilities Used for Regulated Substances and Hazardous Materials, 
250-RICR-140-25-1, (effective November 20, 2018)
    Section 1.1 Purpose.
    Section 1.2. Authority.
    Section 1.3 Incorporated Materials.
    Section 1.4 Applicability, except (E) and (G).
    Section 1.5 Definitions.
    Section 1.6 Administrative Findings.
    Section 1.7 Facility Registration.
    Section 1.8 Financial Responsibility, except (D).
    Section 1.10 Minimum UST Operation and Maintenance Requirements, 
except (C), (D), and (F)(4) and (T).
    Section 1.11 New and Replacement UST System Requirements, except 
(B)(1-3) and (5), (C)(1), (J)(1), and (L)(2).
    Section 1.12 Facility Modifications or Repairs, except (A).
    Section 1.13 Maintaining Records.
    Section 1.14 Leak and Spill Response.
    Section 1.15 Closure, except (D)(5).
    Section 1.16 Approval of Tank and/or Line Tightness Tests, Leak 
Detection Methods and Licensing Requirements, except (B), (D), (E), 
(F), (G) and (H).
    Section 1.17 Signatories to Registration and Closure 
Applications.
    Section 1.18 Transfer of Certificates of Registration and 
Closure.
* * * * *
[FR Doc. 2020-25831 Filed 12-10-20; 8:45 am]
BILLING CODE 6560-50-P