Tennessee: Final Approval of State Petroleum Underground Storage Tank Program Revisions, Codification, and Incorporation by Reference, 50470-50477 [2021-19339]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 86, Number 172 (Thursday, September 9, 2021)]
[Rules and Regulations]
[Pages 50470-50477]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-19339]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 281 and 282

[EPA-R04-UST-2020-0614; FRL-8817-01-R4]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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[[Page 50471]]

SUMMARY: The State of Tennessee (Tennessee or State) has applied to the 
Environmental Protection Agency (EPA) for final approval of revisions 
to its Petroleum Underground Storage Tank Program (Petroleum UST 
Program) under subtitle I of the Resource Conservation and Recovery Act 
(RCRA). Pursuant to RCRA, the EPA is taking direct final action, 
subject to public comment, to approve revisions to the Petroleum UST 
Program. The EPA has reviewed Tennessee's revisions and has determined 
that these revisions satisfy all requirements needed for approval. In 
addition, this action also codifies the EPA's approval of Tennessee's 
revised Petroleum UST Program and incorporates by reference those 
provisions of the State statutes and regulations that the EPA has 
determined meet the requirements for approval.

DATES: This rule is effective November 8, 2021, unless the EPA receives 
adverse comment by October 12, 2021. If the EPA receives adverse 
comment, it will publish a timely withdrawal in the Federal Register 
informing the public that the rule will not take effect. The 
incorporation by reference of certain publications listed in the 
regulations is approved by the Director of the Federal Register as of 
November 8, 2021.

ADDRESSES: Submit your comments by one of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov 
(our preferred method). Follow the online instructions for submitting 
comments.
     Email: [email protected]. Include the Docket ID No. EPA-
R04-UST-2020-0614 in the subject line of the message.
    Instructions: Submit your comments, identified by Docket ID No. 
EPA-R04-UST-2020-0614, via the Federal eRulemaking Portal at https://www.regulations.gov. Follow the online instructions for submitting 
comments. Once submitted, comments cannot be edited or removed from 
https://www.regulations.gov. The EPA may publish any comment received 
to its public docket. Do not submit electronically any information you 
consider to be Confidential Business Information (CBI) or other 
information whose disclosure is restricted by statute. Multimedia 
submissions (audio, video, etc.) must be accompanied by a written 
comment. The written comment is considered the official comment and 
should include discussion of all points you wish to make. The EPA will 
generally not consider comments or comment contents located outside of 
the primary submission (i.e., on the web, cloud, or other file sharing 
system). For additional submission methods, the full EPA public comment 
policy, information about CBI or multimedia submissions, and general 
guidance on making effective comments, please visit: https://www.epa.gov/dockets/commenting-epa-dockets.
    Out of an abundance of caution for members of the public and our 
staff, the public's access to the EPA Region 4 Offices is by 
appointment only to reduce the risk of transmitting COVID-19. We 
encourage the public to submit comments via https://www.regulations.gov 
or via email. The EPA encourages electronic comment submittals, but if 
you are unable to submit electronically or need other assistance, 
please contact Winston Smith, the contact listed in the FOR FURTHER 
INFORMATION CONTACT provision below. The index to the docket for this 
action and all documents that form the basis of this codification and 
associated publicly available docket materials are available for review 
on the https://www.regulations.gov website. The EPA encourages 
electronic reviewing of these documents, but if you are unable to 
review these documents electronically, please contact Winston Smith to 
schedule an appointment to view the documents at the Region 4 Offices. 
Interested persons wanting to examine these documents should make an 
appointment at least two weeks in advance. EPA Region 4 requires all 
visitors to adhere to the COVID-19 protocol. Please contact Winston 
Smith for the COVID-19 protocol requirements for your appointment.
    Please also contact Winston Smith if you need assistance in a 
language other than English or if you are a person with disabilities 
who needs a reasonable accommodation at no cost to you. For further 
information on EPA Docket Center services and the current status, 
please visit us online at https://www.epa.gov/dockets.
    The EPA continues to carefully and continuously monitor information 
from the Centers for Disease Control and Prevention (CDC), local area 
health departments, and our Federal partners so that we can respond 
rapidly as conditions change regarding COVID-19.

FOR FURTHER INFORMATION CONTACT: Winston Smith, RCRA Programs and 
Cleanup Branch, Land, Chemicals, and Redevelopment Division, U.S. 
Environmental Protection Agency, Region 4, Atlanta Federal Center, 61 
Forsyth Street SW, Atlanta, Georgia 30303-8960; Phone number: (404) 
562-9467; email address: [email protected]. Please contact Winston Smith 
by phone or email for further information.

SUPPLEMENTARY INFORMATION:

I. Approval of Revisions to Tennessee's Petroleum Underground Storage 
Tank Program

A. Why are revisions to state UST programs necessary?

    States that have received final approval from the EPA under section 
9004(b) of RCRA, 42 U.S.C. 6991c(b), must maintain a UST program that 
is no less stringent than the Federal program. When the EPA revises the 
regulations that govern the UST program, states must revise their 
programs to comply with the updated regulations and submit these 
revisions to the EPA for approval. Most commonly, states must change 
their programs because of changes to the EPA's regulations in title 40 
of the Code of Federal Regulations (CFR) part 280. States can also 
initiate changes on their own to their UST programs and these changes 
must then be approved by the EPA.

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

    On October 15, 2018, in accordance with 40 CFR 281.51(a), Tennessee 
submitted a complete program revision application (State Application) 
seeking approval of changes to its Petroleum UST Program. The program 
revisions addressed in the State Application correspond to the EPA 
final rule published on July 15, 2015 (80 FR 41566), which revised the 
1988 UST regulations and the 1988 state program approval (SPA) 
regulations (2015 Federal Revisions). As required by 40 CFR 281.20, the 
State Application contains the following: A transmittal letter from the 
Governor requesting approval; a description of the program and 
operating procedures; a demonstration of the State's procedures to 
ensure adequate enforcement; a Memorandum of Agreement outlining the 
roles and responsibilities of the EPA and the implementing agency; an 
Attorney General's Statement; and copies of all relevant State statutes 
and regulations. The EPA has reviewed the State Application and has 
determined that the revisions to Tennessee's Petroleum UST Program are 
no less stringent than the corresponding Federal requirements in 
subpart C of 40 CFR part 281, and that the Tennessee Petroleum UST 
Program continues to provide adequate enforcement of compliance. 
Therefore, the EPA grants Tennessee final approval to operate its 
Petroleum UST Program with the revisions described in the State 
Application, and as outlined below. As the Tennessee UST program is a 
partially approved program, this approval covers petroleum underground

[[Page 50472]]

storage tanks only and does not include hazardous substance underground 
storage tanks under subtitle I of RCRA. The Tennessee Department of 
Environment and Conservation (TDEC) is the lead implementing agency for 
the Petroleum UST Program in Tennessee.

C. What is the effect of this approval on the regulated community?

    Section 9004(b) of RCRA, 42 U.S.C. 6991c(b), as amended, allows the 
EPA to approve state UST programs to operate in lieu of the Federal 
program. With this approval, the changes described in the State 
Application will become part of the approved State Petroleum UST 
Program, and therefore will be federally enforceable. Tennessee will 
continue to have primary enforcement authority and responsibility for 
its Petroleum UST Program. This action does not impose additional 
requirements on the regulated community because the regulations being 
approved by this rule are already in effect in the State of Tennessee 
and are not changed by this action. This action merely approves the 
existing State regulations as meeting the 2015 Federal Revisions and 
rendering them federally enforceable.

D. Why is the EPA using a direct final rule?

    The EPA is publishing this direct final rule without a prior 
proposed rule because we view this as a noncontroversial action, and we 
anticipate no adverse comment. Tennessee addressed all comments it 
received during its comment period when the rules and regulations being 
considered in this document were proposed at the State level.

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

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

F. For what has Tennessee previously been approved?

    On September 1, 1996, Tennessee submitted a complete State program 
approval application seeking approval of its Petroleum UST Program 
under subtitle I of RCRA. Tennessee did not request approval of the 
underground storage tank program for hazardous substances. Effective 
January 19, 1999, the EPA granted final approval for Tennessee to 
administer its Petroleum UST Program in lieu of the Federal UST program 
(63 FR 63793, Nov. 17, 1998). Effective July 27, 1999, the EPA 
incorporated by reference and codified the federally approved Tennessee 
Petroleum UST Program (64 FR 28927, May 28, 1999). As a result of the 
EPA's approval, these provisions became subject to the EPA's corrective 
action, inspection, and enforcement authorities under RCRA sections 
9003(h), 9005, and 9006, 42 U.S.C. 6991b(h), 6991d, and 6991e, and 
other applicable statutory and regulatory provisions.

G. What changes is the EPA approving with this action and what 
standards do we use for review?

    In order to be approved, each state program revision application 
must meet the general requirements in 40 CFR 281.11 (General 
Requirements), and the specific requirements in 40 CFR part 281, 
subpart B (Components of a Program Application), subpart C (Criteria 
for No Less Stringent), and subpart D (Adequate Enforcement of 
Compliance).
    As more fully described below, the State has made changes to its 
Petroleum UST Program to reflect the 2015 Federal Revisions. These 
changes are included in Tennessee's UST Rules at Tenn. Comp. R. & Regs. 
0400-18-01-.01 to .17, effective October 13, 2018. The EPA is approving 
the State's changes because they are no less stringent than the Federal 
UST program, and because the revised Tennessee Petroleum UST Program 
will continue to provide for adequate enforcement of compliance as 
required by 40 CFR 281.11(b) and part 281, subparts C and D, after this 
approval.
    TDEC continues to be the lead implementing agency for the Petroleum 
UST Program in Tennessee. TDEC has broad statutory and regulatory 
authority to regulate the installation, operation, maintenance, and 
closure of USTs, as well as UST releases, under the Tennessee Petroleum 
Underground Storage Tank Act (the UST Act) of 1988, Tenn. Code Ann. 
sections 68-215-101 to 68-215-204 (2018), and the Tennessee UST Rules 
at Tenn. Comp. R. & Regs. 0400-18-01-.01 to .17 (2018).
    The following State authorities provide authority for compliance 
monitoring as required by 40 CFR 281.40: Tenn. Code Ann. sections 68-
215-107(e)(1) through (4) and 68-215-123; and Tenn. Comp. R. & Regs. 
0400-18-01-.03(2).
    The following State authorities provide authority for enforcement 
response as required by 40 CFR 281.41: Tenn. Code Ann. sections 68-215-
106(c), (e), and (f), 68-215-107(b), (c), (d), (e)(5), and (e)(6), 68-
215-114, 68-215-116, 68-215-118, 68-215-119, 68-215-121, 68-215-122, 
and 4-5-313; and Tenn. Comp. R. & Regs. 0400-18-01-.09(17) and 0400-18-
01-.15.
    The following State authorities provide authority for enabling 
public participation in the State enforcement process, including 
citizen intervention and the submission of complaints, as required by 
40 CFR 281.42: Tenn. Code Ann. sections 68-215-121(e), 68-215-123, 4-5-
308(a) through (c), and 4-5-310; and Tenn. Comp. R. & Regs. 0400-18-
01-.06(11). Further, through a Memorandum of Agreement between TDEC and 
the EPA, effective October 12, 2018, the State maintains procedures for 
receiving and ensuring proper consideration of information about 
violations submitted by the public, and TDEC will not oppose citizen 
intervention when permissive intervention is allowed by statute, rule, 
or regulation.
    Pursuant to 40 CFR 281.43, the State is required to provide 
authority for enabling the sharing of information in the State files 
obtained or used in the administration of the State Petroleum UST 
Program with the EPA. Through a Memorandum of Agreement between TDEC 
and the EPA, effective October 12, 2018, the State agrees to furnish 
the EPA, upon request, any information in State files obtained or used 
in the administration of the State Petroleum UST Program. Further, the 
following State authorities provide authority for enabling the sharing 
of information in the State files obtained or used in the 
administration of the State Petroleum UST Program with the EPA as 
required by 40 CFR 281.43: Tenn. Code Ann. section 68-215-108 and Tenn. 
Comp. R. & Regs. 0400-18-01-.01(5)(e).
    To qualify for final approval, revisions to a state's UST program 
must be no less stringent than the 2015 Federal Revisions. In the 2015 
Federal Revisions, the EPA addressed UST systems deferred in the 1988 
UST regulations, and added, among other things: New operation and 
maintenance requirements; secondary containment

[[Page 50473]]

requirements for new and replaced tanks and piping; operator training 
requirements; and a requirement to ensure UST system compatibility 
before storing certain biofuel blends. In addition, the EPA removed 
past deferrals for emergency generator tanks, field constructed tanks, 
and airport hydrant systems. Tennessee adopted all of the required 2015 
Federal Revisions at Tenn. Comp. R. & Regs. 0400-18-01-.01 to .17 
(2018).
    As part of the State Application, the Tennessee Attorney General 
has certified that the State regulations provide for adequate 
enforcement of compliance and meet the no less stringent criteria in 40 
CFR part 281, subparts C and D. The EPA is relying on this 
certification, in addition to the analysis submitted by the State, in 
approving the State's changes.

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

    States may enact laws that are more stringent than their Federal 
counterparts. See RCRA section 9008, 42 U.S.C. 6991g. When an approved 
state program includes requirements that are considered more stringent 
than those required by Federal law, the more stringent requirements 
become part of the federally approved program in accordance with 40 CFR 
281.12(a)(3)(i). The EPA has determined that some of Tennessee's 
regulations are considered more stringent than the Federal program, and 
upon approval, they will become part of the federally approved State 
Petroleum UST Program and therefore federally enforceable.
    In addition, states may enact laws which are broader in scope than 
their Federal counterparts in accordance with 40 CFR 281.12(a)(3)(ii). 
State requirements that go beyond the scope of the Federal program are 
not part of the federally approved program and the EPA cannot enforce 
them. Although these requirements are enforceable by the State in 
accordance with Tennessee law, they are not Federal RCRA requirements. 
The EPA considers the following State requirements to be broader in 
scope than the Federal program and therefore not part of the federally 
approved State Petroleum UST Program:
Statutory Broader in Scope Provisions
    i. Tenn. Code Ann. section 68-215-103(17)(A)(iii) and (iv), as to 
the definition of ``Responsible party,'' insofar as these provisions 
include entities other than owners and operators, as these terms are 
defined in 40 CFR 280.12.
    ii. Tenn. Code Ann. section 68-215-104(3), insofar as it refers to 
the payment of fees associated with the Petroleum UST Program.
    iii. Tenn. Code Ann. section 68-215-104(4), insofar as it refers to 
reimbursement from Tennessee's Petroleum Underground Storage Tank Fund 
(State Fund).
    iv. Tenn. Code Ann. section 68-215-106(a)(6), insofar as it places 
notification requirements on persons other than owners and operators, 
as these terms are defined in 40 CFR 280.12.
    v. Tenn. Code Ann. section 68-215-109, insofar as it establishes 
annual tank fees and provides for promulgation of regulations regarding 
these fees.
    vi. Tenn. Code Ann. section 68-215-110(b) through (h), insofar as 
these provisions provide for the creation of the State Fund and 
environmental assurance fee.
    vii. Tenn. Code Ann. section 68-215-111, insofar as it provides 
criteria for the qualified expenditure of funds, requirements for fund 
eligibility, and promulgation of regulations regarding the State Fund.
    viii. Tenn. Code Ann. section 68-215-115, insofar as it provides 
the procedures for the State to recover its costs for investigation, 
identification, containment, or clean up of a particular site.
    ix. Tenn. Code Ann. section 68-215-125, insofar as it prohibits the 
State Fund from being considered an insurance company or a member of 
the Tennessee Insurance Guaranty Association.
    x. Tenn. Code Ann. section 68-215-129, insofar as it provides 
criteria for cleanup contracts and reimbursement from the State Fund.
Regulatory Broader in Scope Provisions
    i. Tenn. Comp. R. & Regs. 0400-18-01-.01(4)1.(iii) and (iv), as to 
the definition for ``Responsible party,'' insofar as these provisions 
include entities other than owners and operators, as these terms are 
defined in 40 CFR 280.12.
    ii. Tenn. Comp. R. & Regs. 0400-18-01-.02(1)(a)2., insofar as it 
requires owners to submit annual tank fees as part of the notification 
requirement.
    iii. Tenn. Comp. R. & Regs. 0400-18-01-.02(4)(c)6.(ii)(II)IV., 
insofar as it refers to tank fees and late penalties.
    iv. Tenn. Comp. R. & Regs. 0400-18-01-.04(1)(e), insofar as it 
requires inspection of dispensers.
    v. Tenn. Comp. R. & Regs. 0400-18-01-.05(1)(b) and (c), insofar as 
these provisions contain requirements for coverage and reimbursement 
from the State Fund.
    vi. Tenn. Comp. R. & Regs. 0400-18-01-.06(2)(b)1., as to the text 
``The fund shall not reimburse the owner, operator, and/or other 
responsible party of [the] petroleum UST system for the cost of 
generating duplicate data,'' insofar as this text pertains to the State 
Fund.
    vii. Tenn. Comp. R. & Regs. 0400-18-01-.06(3)(f), insofar as it 
provides eligibility requirements for the State Fund.
    viii. Tenn. Comp. R. & Regs. 0400-18-01-.06(7)(c), insofar as it 
provides for reimbursement from the State Fund.
    ix. Tenn. Comp. R. & Regs. Appendix 0400-18-01-.07-A, as to the 
text ``transport and'' in (4)(a) and (4)(e), insofar as these 
provisions pertain to the transportation of a tank.
    x. Tenn. Comp. R. & Regs. 0400-18-01-.08(5)(a) and (b), insofar as 
these provisions establish eligibility requirements for the State Fund.
    xi. Tenn. Comp. R. & Regs. 0400-18-01-.09(1) through (16), insofar 
as these provisions regulate disbursements, coverage, and fund 
eligibility regarding the State Fund and provide for approval of 
corrective action contractors and recovery of State costs.
    xii. Tenn. Comp. R. & Regs. 0400-18-01-.10, insofar as it 
establishes a system and schedule for the collection of fees under the 
UST Act.
    xiii. Tenn. Comp. R. & Regs. 0400-18-01-.12(3), insofar as it 
establishes eligibility requirements for the State Fund.
    xiv. Tenn. Comp. R. & Regs. 0400-18-01-.12(4), insofar as it 
pertains to the payment of annual tank fees.

II. Codification

A. What is codification?

    Codification is the process of placing citations and references to 
a state's statutes and regulations that comprise a state's approved UST 
program into the CFR. The EPA codifies its approval of state programs 
in 40 CFR part 282 and incorporates by reference state statutes and 
regulations that the EPA can enforce, after the approval is final, 
under sections 9005 and 9006 of RCRA, and any other applicable 
statutory provisions. The incorporation by reference of the EPA-
approved state programs in the CFR should substantially enhance the 
public's ability to discern the status of the approved state UST 
programs and state requirements that can be federally enforced. This 
effort provides clear notice to the public of the scope of the approved 
program in each state.

[[Page 50474]]

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

    In 1999, the EPA incorporated by reference and codified Tennessee's 
approved Petroleum UST Program at 40 CFR 282.92 (64 FR 28927, May 28, 
1999). Through this action, the EPA is amending 40 CFR 282.92 to 
incorporate by reference and codify Tennessee's revised Petroleum UST 
Program.

C. What codification decisions is the EPA making in this rule?

    In this rule, the EPA is finalizing regulatory text that 
incorporates by reference the federally approved Tennessee Petroleum 
UST Program, including the revisions made to the Petroleum UST Program 
based on the 2015 Federal Revisions. In accordance with the 
requirements of 1 CFR 51.5, the EPA is incorporating by reference 
Tennessee's statutes and regulations as described in the amendments to 
40 CFR part 282 set forth below. These documents are available through 
https://www.regulations.gov. This codification reflects the State 
Petroleum UST Program that will be in effect at the time the EPA's 
approval of the revisions to the Tennessee Petroleum UST Program 
addressed in this direct final rule becomes final. If, however, the EPA 
receives substantive comment on the proposed rule, the EPA will 
withdraw this direct final rule and this codification will not take 
effect. The EPA will consider all comments and will make a decision on 
program approval and codification in a future final rule. By codifying 
the approved Tennessee Petroleum UST Program and by amending the CFR, 
the public will more easily be able to discern the status of the 
federally approved requirements of the Tennessee Petroleum UST Program.
    Specifically, in 40 CFR 282.92(d)(1)(i), the EPA is incorporating 
by reference the EPA-approved Tennessee Petroleum UST Program. Section 
282.92(d)(1)(ii) identifies the State's statutes and regulations that 
are part of the approved State Petroleum UST Program, although not 
incorporated by reference for enforcement purposes, unless they impose 
obligations on the regulated entity. Section 282.92(d)(1)(iii) 
identifies the State's statutory and regulatory provisions that are 
broader in scope or external to the State's approved Petroleum UST 
Program and therefore not incorporated by reference. Section 
282.92(d)(2) through (5) reference the Attorney General's Statement, 
Demonstration of Adequate Enforcement Procedures, Program Description, 
and Memorandum of Agreement, which are part of the State Application 
and part of the Petroleum UST Program under subtitle I of RCRA.

D. What is the effect of the EPA's codification of the federally 
approved Tennessee Petroleum UST Program on enforcement?

    The EPA retains the authority under sections 9003(h), 9005, and 
9006 of subtitle I of RCRA, 42 U.S.C. 6991b(h), 6991d, and 6991e, and 
other applicable statutory and regulatory provisions, to undertake 
corrective action, inspections, and enforcement actions, and to issue 
orders in approved states. If the EPA determines it will take such 
actions in Tennessee, the EPA will rely on Federal sanctions, Federal 
inspection authorities, and other Federal procedures rather than the 
State analogs. Therefore, the EPA is not incorporating by reference 
Tennessee's procedural and enforcement authorities, although they are 
listed in 40 CFR 282.92(d)(1)(ii).

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

    As discussed in section I.H. above, some provisions of the State's 
Petroleum UST Program are not part of the federally approved State 
Petroleum UST Program because they are broader in scope than the 
Federal UST program. Where an approved state program has provisions 
that are broader in scope than the Federal program, those provisions 
are not a part of the federally approved program. As a result, State 
provisions which are broader in scope than the Federal program are not 
incorporated by reference for purposes of enforcement in part 282. See 
40 CFR 281.12(a)(3)(ii). In addition, provisions that are external to 
the state UST program approval requirements, but included in the State 
Application, are also being excluded from incorporation by reference in 
part 282. For reference and clarity, 40 CFR 282.92(d)(1)(iii) lists the 
Tennessee statutory and regulatory provisions which are broader in 
scope than the Federal program or external to State UST program 
approval requirements. These provisions are, therefore, not part of the 
approved UST Program that the EPA is codifying. Although these 
provisions cannot be enforced by the EPA, the State will continue to 
implement and enforce such provisions under State law.

III. Statutory and Executive Order (E.O.) Reviews

    The EPA's actions merely approve and codify Tennessee's revised 
Petroleum UST Program requirements pursuant to RCRA section 9004, and 
do not impose additional requirements other than those imposed by State 
law. For that reason, these actions:
     Are not significant regulatory actions and have been 
exempted from review by the Office of Management and Budget under 
Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 
3821, January 21, 2011);
     Do not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Are certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Do not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Do not have federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Are not economically significant regulatory actions based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Are not subject to Executive Order 13211 (66 FR 28355, May 
22, 2001) because they are not ``significant regulatory actions'' under 
Executive Order 12866 (58 FR 51735, October 4, 1993);
     Are not subject to the requirements of section 12(d) of 
the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 
272 note) because application of those requirements would be 
inconsistent with RCRA;
     Do not provide the EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994); and
     Do not apply on any Indian reservation land or in any 
other area where the EPA or an Indian tribe has demonstrated that a 
tribe has jurisdiction. The rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor 
will it impose substantial direct costs on tribal governments or 
preempt tribal law.
    As required by section 3 of Executive Order 12988 (61 FR 4729, 
February 7, 1996), in issuing this rule, the EPA has taken the 
necessary steps to eliminate drafting errors and ambiguity, minimize 
potential litigation, and provide a clear legal standard for affected 
conduct.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement

[[Page 50475]]

Fairness Act of 1996, generally provides that before a rule may take 
effect, the agency promulgating the rule must submit a rule report, 
which includes a copy of the rule, to each House of the Congress and to 
the Comptroller General of the United States. The EPA will submit a 
report containing this document and other required information to the 
U.S. Senate, the U.S. House of Representatives, and the Comptroller 
General of the United States prior to publication in the Federal 
Register. A major rule cannot take effect until 60 days after it is 
published in the Federal Register. This action is not a ``major rule'' 
as defined by 5 U.S.C. 804(2). This final action will be effective 
November 8, 2021.

List of Subjects in 40 CFR Parts 281 and 282

    Environmental protection, Administrative practice and procedure, 
Hazardous substances, Incorporation by reference, Indian country, 
Petroleum, Reporting and recordkeeping requirements, State program 
approval, Underground storage tanks.

    Authority: This action is issued under the authority of sections 
2002(a), 7004(b), 9004, 9005, and 9006 of the Solid Waste Disposal 
Act, as amended, 42 U.S.C. 6912(a), 6974(b), 6991c, 6991d, and 
6991e.

    Dated: August 30, 2021.
John Blevins,
Acting Regional Administrator, Region 4.

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

PART 282--APPROVED UNDERGROUND STORAGE TANK PROGRAMS

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

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

0
2. Revise Sec.  282.92 to read as follows:


Sec.  282.92  Tennessee State-Administered Program.

    (a) History of the approval of Tennessee's program. The State of 
Tennessee (Tennessee or State) is approved to administer and enforce a 
petroleum underground storage tank (UST) program in lieu of the Federal 
program under subtitle I of the Resource Conservation and Recovery Act 
of 1976 (RCRA), as amended, 42 U.S.C. 6991 et seq. The State's 
Petroleum Underground Storage Tank Program (Petroleum UST Program), as 
administered by the Tennessee Department of Environment and 
Conservation (TDEC), was approved by the EPA pursuant to 42 U.S.C. 
6991c and part 281 of this chapter. The EPA approved the Tennessee 
Petroleum UST Program on November 17, 1998, and it was effective on 
January 15, 1999. A subsequent program revision was approved by the EPA 
and became effective November 8, 2021.
    (b) Enforcement authority. Tennessee has primary responsibility for 
administering and enforcing its federally approved Petroleum UST 
Program. However, the EPA retains the authority to exercise its 
corrective action, inspection, and enforcement authorities under 
sections 9003(h), 9005, and 9006 of subtitle I of RCRA, 42 U.S.C. 
6991b(h), 6991d, and 6991e, as well as under any other applicable 
statutory and regulatory provisions. The EPA also retains all authority 
to operate the hazardous substance underground storage tank program.
    (c) Retention of program approval. To retain program approval, 
Tennessee must revise its approved Petroleum UST Program to adopt new 
changes to the Federal subtitle I program which make it more stringent, 
in accordance with section 9004 of RCRA, 42 U.S.C. 6991c, and 40 CFR 
part 281, subpart E. If Tennessee obtains approval for revised 
requirements pursuant to section 9004 of RCRA, 42 U.S.C. 6991c, the 
newly approved statutory and regulatory provisions will be added to 
this subpart and notice of any change will be published in the Federal 
Register.
    (d) Final approval. Tennessee has final approval for the following 
elements of its Petroleum UST Program submitted to the EPA and approved 
effective January 15, 1999, and the program revisions approved by the 
EPA effective on November 8, 2021.
    (1) State statutes and regulations--(i) Incorporation by reference. 
The Tennessee materials cited in this paragraph (d)(1)(i) and listed in 
appendix A to this part, are incorporated by reference as part of the 
Petroleum UST Program under subtitle I of RCRA, 42 U.S.C. 6991 et seq. 
The Director of the Federal Register approves this incorporation by 
reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. You may 
access copies of the Tennessee statutes and regulations that are 
incorporated by reference in this paragraph (d)(1)(i) from the 
Tennessee Department of Environment and Conservation, Division of 
Underground Storage Tanks, William R. Snodgrass Tennessee Tower, 12th 
Floor, 312 Rosa L. Parks Ave., Nashville, TN 37243; Phone number: (615) 
532-0730; website: https://www.tn.gov/environment/program-areas/ust-underground-storage-tanks/ust/act-rules-and-policies.html. You may 
inspect all approved material at the EPA Region 4, 61 Forsyth Street 
SW, Atlanta, Georgia 30303; Phone number: (404) 562-9900; or the 
National Archives and Records Administration (NARA), email: 
[email protected]; website: https://www.archives.gov/federal-register/cfr/ibr-locations.html.
    (A) ``Tennessee Statutory Requirements Applicable to the Petroleum 
Underground Storage Tank Program,'' dated May 11, 2021.
    (B) ``Tennessee Regulatory Requirements Applicable to the Petroleum 
Underground Storage Tank Program,'' dated May 11, 2021.
    (ii) Legal basis. The EPA considered the following statutes and 
regulations which provide the legal basis for the State's 
implementation of the Petroleum UST Program, but these provisions do 
not replace Federal authorities. Further, these provisions are not 
being incorporated by reference, unless the provisions place 
requirements on regulated entities.
    (A) Tennessee Petroleum Underground Storage Tank Act (the UST Act) 
of 1988, Tenn. Code Ann. sections 68-215-101 to 68-215-204 (2018). (1) 
Section 68-215-106(c), (e), and (f), insofar as these provisions 
provide for delivery prohibition and enforcement of the Petroleum UST 
Program.
    (2) Section 68-215-106(d), insofar as it provides for criminal 
prosecution under the UST Act.
    (3) Section 68-215-107(a), insofar as it establishes authority over 
the placement and storage of petroleum substances in underground 
storage tanks, release prevention, release detection, release 
correction, closure, and post-closure care of petroleum underground 
storage tanks in Tennessee.
    (4) Section 68-215-107(b), insofar as it provides for the issuance 
of orders to enforce the Petroleum UST Program.
    (5) Section 68-215-107(c) and (d), insofar as these provisions 
identify specific authorities for release response and corrective 
actions, including in response to an imminent and substantial danger.
    (6) Section 68-215-107(e), insofar as it identifies specific 
authorities for compliance monitoring and enforcement.
    (7) Section 68-215-107(f), insofar as it provides for the 
promulgation of regulations for the implementation of the Petroleum UST 
Program.
    (8) Section 68-215-107(g)(1), insofar as it provides evaluation 
considerations for the State's approval of a cleanup plan.

[[Page 50476]]

    (9) Section 68-215-108, insofar as it provides for the protection 
of ``proprietary'' information and sharing of information in the files 
obtained or used in the administration of the Petroleum UST Program 
with the EPA.
    (10) Section 68-215-114, insofar as it provides for the issuance 
and enforcement of correction orders; and establishes liability costs 
for responsible parties.
    (11) Section 68-215-116, insofar as it provides for an assessment 
of penalties under the UST Act.
    (12) Section 68-215-117, insofar as it provides for immunity from 
liability under the UST Act in certain circumstances.
    (13) Section 68-215-118, insofar as it identifies authorities for 
enforcement response, specifically authority over governmental 
entities, under the UST Act.
    (14) Section 68-215-119, insofar as it identifies authorities for 
enforcement response and provides for review of orders and appeal of 
any determination by the Tennessee Department of Environment and 
Conservation (TDEC) under the UST Act.
    (15) Section 68-215-120, insofar as it provides for criminal 
prosecution under the UST Act.
    (16) Section 68-215-121, insofar as it identifies authorities for 
enforcement response and public participation, provides for assessment 
of civil penalties and damages, and establishes third-party 
intervention under the UST Act.
    (17) Section 68-215-122, insofar as it identifies authorities for 
enforcement response and provides for injunctions as a legal remedy 
under the UST Act.
    (18) Section 68-215-123, insofar as it identifies specific 
authorities for compliance monitoring and public participation and 
provides for any person to submit a complaint against any person for 
violating the UST Act.
    (19) Section 68-215-126, insofar as it establishes authority in 
relation to local laws or regulations.
    (20) Section 68-215-127, insofar as it establishes authority over 
releases of petroleum from underground storage tanks and creates the 
soil and groundwater classification and cleanup criteria.
    (B) Tennessee's Underground Storage Tank Regulations, Tenn. Comp. 
R. & Regs. 0400-18-01-.01 to .17 (2018). (1) 0400-18-01-.01(5)(e), 
insofar as it provides for the State's sharing of information with the 
EPA.
    (2) 0400-18-01-.03(2), insofar as it identifies specific 
authorities for compliance monitoring and provides for reporting and 
maintenance of records.
    (3) 0400-18-01-.06(11), insofar as it provides for public 
participation in the corrective action process.
    (4) 0400-18-01-.08(20) and (21), insofar as these provisions 
provide procedures governing the forfeiture of financial assurance and 
release of financial assurance mechanism documents.
    (5) 0400-18-01-.09(17), insofar as it provides for assessment of 
civil penalties for failure to comply with orders issued under the UST 
Act.
    (6) 0400-18-01-.11, insofar as it provides for appeal of any 
determination by TDEC under the provisions of Tennessee's Underground 
Storage Tank Regulations, procedures for contested cases, and the State 
Administrative Procedures Act.
    (7) 0400-18-01-.15, insofar as it identifies specific authorities 
for enforcement response and delivery prohibition requirements.
    (C) Tennessee's Uniform Administrative Procedures Act, Part 3--
Contested Cases, Tenn. Code Ann. sections 4-5-301 to 4-5-325 (2018). 
(1) Section 4-5-308(a) through (c), insofar as these provisions 
identify authorities for public participation and provide for the 
filing of pleadings, briefs, motions, and other documents.
    (2) Section 4-5-310, insofar as it identifies authorities for 
public participation and provides for intervention in contested case 
proceedings.
    (3) Section 4-5-313, insofar as it identifies authorities for 
enforcement response and provides procedures for contested cases.
    (iii) Other provisions not incorporated by reference. The following 
statutory and regulatory provisions applicable to the Tennessee 
Petroleum UST Program are broader in scope than the Federal program or 
external to the State UST program approval requirements. Therefore, 
these provisions are not part of the approved Petroleum UST Program and 
are not incorporated by reference in this section:
    (A) Tennessee Petroleum Underground Storage Tank Act (the UST Act) 
of 1988, Tenn. Code Ann. sections 68-215-101 to 68-215-204 (2018). (1) 
Section 68-215-102 is external insofar as it contains the State's 
public policy for regulating underground storage tanks.
    (2) Section 68-215-103(17)(A)(iii) and (iv), as to the definition 
of ``Responsible party,'' insofar as these provisions include entities 
other than owners and operators, as these terms are defined in 40 CFR 
280.12.
    (3) Section 68-215-104(3), insofar as it refers to the payment of 
fees associated with the Petroleum UST Program.
    (4) Section 68-215-104(4), insofar as it refers to reimbursement 
from Tennessee's Petroleum Underground Storage Tank Fund (State Fund).
    (5) Section 68-215-106(a)(6), insofar as it places notification 
requirements on persons other than owners and operators, as these terms 
are defined in 40 CFR 280.12.
    (6) Section 68-215-106(b)(1) and (2) are external insofar as these 
provisions contain obligations on the State agency, not a regulated 
entity.
    (7) Section 68-215-109, insofar as it establishes annual tank fees 
and provides for promulgation of regulations regarding these fees.
    (8) Section 68-215-110(b) through (h), insofar as these provisions 
provide for the creation of the State Fund and environmental assurance 
fee.
    (9) Section 68-215-111, insofar as it provides criteria for the 
qualified expenditure of funds, requirements for fund eligibility, and 
promulgation of regulations regarding the State Fund.
    (10) Section 68-215-115, insofar as it provides the procedures for 
the State to recover its costs for investigation, identification, 
containment, or cleanup of a particular site.
    (11) Section 68-215-125, insofar as it prohibits the State Fund 
from being considered an insurance company or a member of the Tennessee 
Insurance Guaranty Association.
    (12) Section 68-215-129, insofar as it provides criteria for 
cleanup contracts and reimbursement from the State Fund.
    (B) Tennessee's Underground Storage Tank Regulations, Tenn. Comp. 
R. & Regs. 0400-18-01-.01 to .17 (2018). (1) 0400-18-01-.01(4)1.(iii) 
and (iv), as to the definition for ``Responsible party,'' insofar as 
these provisions include entities other than owners and operators, as 
these terms are defined in 40 CFR 280.12.
    (2) 0400-18-01-.01(5)(a) through (d) are external insofar as these 
provisions contain obligations on the State agency with respect to 
proprietary information, not a regulated entity.
    (3) 0400-18-01-.02(1)(a)2., insofar as it requires owners to submit 
annual tank fees as part of the notification requirement.
    (4) 0400-18-01-.02(4)(c)6.(ii)(II)IV., insofar as it refers to tank 
fees and late penalties.
    (5) 0400-18-01-.04(1)(e), insofar as it requires inspection of 
dispensers.
    (6) 0400-18-01-.05(1)(b) and (c), insofar as these provisions 
contain requirements for coverage and reimbursement from the State 
Fund.
    (7) 0400-18-01-.06(2)(b)1., as to the text ``The fund shall not 
reimburse the

[[Page 50477]]

owner, operator, and/or other responsible party of [the] petroleum UST 
system for the cost of generating duplicate data,'' insofar as this 
text pertains to the State Fund.
    (8) 0400-18-01-.06(3)(f), insofar as it provides eligibility 
requirements for the State Fund.
    (9) 0400-18-01-.06(7)(c), insofar as it provides for reimbursement 
from the State Fund.
    (10) Appendix 0400-18-01-.07-A, as to the text ``transport and'' in 
(4)(a) and (4)(e), insofar as these provisions pertain to the 
transportation of a tank.
    (11) 0400-18-01-.08(5)(a) and (b), insofar as these provisions 
establish eligibility requirements for the State Fund.
    (12) 0400-18-01-.09(1) through (16), insofar as these provisions 
regulate disbursements, coverage, and fund eligibility regarding the 
State Fund and provide for approval of corrective action contractors 
and recovery of State costs.
    (13) 0400-18-01-.09(18) is external insofar as it pertains to the 
severability of the rule.
    (14) 0400-18-01-.10, insofar as it establishes a system and 
schedule for the collection of fees under the UST Act.
    (15) 0400-18-01-.12(3), insofar as it establishes eligibility 
requirements for the State Fund.
    (16) 0400-18-01-.12(4), insofar as it pertains to the payment of 
annual tank fees.
    (17) 0400-18-01-.14 is external insofar as it contains record 
retention obligations on the State agency, not a regulated entity.
    (2) Statement of legal authority. The Attorney General's Statement, 
signed on October 3, 2018, though not incorporated by reference, is 
referenced as part of the approved underground storage tank program 
under subtitle I of RCRA, 42 U.S.C. 6991 et seq.
    (3) Demonstration of procedures for adequate enforcement. The 
``Demonstration of Adequate Enforcement Procedures'' submitted on 
October 15, 2018, though not incorporated by reference, is referenced 
as part of the approved underground storage tank program under subtitle 
I of RCRA, 42 U.S.C. 6991 et seq.
    (4) Program description. The program description and any other 
material submitted on October 15, 2018, though not incorporated by 
reference, are referenced as part of the approved underground storage 
tank program under subtitle I of RCRA, 42 U.S.C. 6991 et seq.
    (5) Memorandum of Agreement. The Memorandum of Agreement between 
EPA Region 4 and TDEC, signed by the EPA Regional Administrator on 
October 12, 2018, though not incorporated by reference, is referenced 
as part of the approved underground storage tank program under subtitle 
I of RCRA, 42 U.S.C. 6991 et seq.

0
3. Amend appendix A to part 282 by revising the entry for Tennessee to 
read as follows:

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

* * * * *

Tennessee

    (A) The statutory provisions include:
    Tennessee Petroleum Underground Storage Tank Act (the UST Act) 
of 1988, Tenn. Code Ann. sections 68-215-101 to 68-215-204 (2018):
    68-215-101 Short Title.
    68-215-103 Definitions, except (17)(A)(iii) and (iv).
    68-215-104 Prohibitions, except (3) and (4).
    68-215-105 Minimum standards.
    68-215-106 Notice; certificates and certification; except 
(a)(6), (b)(1), (b)(2), and (c) through (f).
    68-215-107 Supervision; orders; enforcement; rules and 
regulations; except (a) through (g)(1).
    68-215-110 Fund; environmental assurance fee; except (b) through 
(h).
    68-215-112 Repealed.
    68-215-113 Repealed.
    68-215-124 Exemptions.
    68-215-128 Obsolete.
    68-215-130 Repealed.
    68-215-201 Definitions.
    68-215-202 Ownership of petroleum site or petroleum underground 
storage tank or property on which a petroleum site or petroleum 
underground tank is located.
    68-215-203 Operation prior to and after foreclosure.
    68-215-204 Participation in the management.
    (B) The regulatory provisions include:
    Tennessee's Underground Storage Tank Regulations, Tenn. Comp. R. 
& Regs. 0400-18-01-.01 to .17 (2018):
    0400-18-01-.01 Program Scope, Definitions, and Proprietary 
Information Applicability; except (4)1.(iii) and (iv) of the 
definition for ``Responsible party'' and (5).
    0400-18-01-.02 UST Systems: Installation and Operation; except 
(1)(a)2. and (4)(c)6.(ii)(II)IV.
    0400-18-01-.03 Notifications, Reporting, and Record Keeping.
    0400-18-01-.04 Release Detection; except (1)(e).
    0400-18-01-.05 Release Reporting, Investigation, and 
Confirmation; except (1)(b) and (c).
    0400-18-01-.06 Petroleum Release Response, Remediation, and Risk 
Management; except for the text ``The fund shall not reimburse the 
owner, operator, and/or other responsible party of petroleum UST 
system for the cost of generating duplicate data'' in (2)(b)1. Also, 
except (3)(f), (7)(c), and (11)(b) and (c).
    0400-18-01-.07 Out-of-Service UST Systems and Closure; as to 
Appendix 0400-18-01-.07-A, except for the text ``transport and'' in 
(4)(a). Also, except (4)(e).
    0400-18-01-.08 Financial Responsibility; except (5)(a), (5)(b), 
(20), and (21).
    0400-18-01-.12 Indicia of Ownership; except (3) and (4).
    0400-18-01-.13 Reserved.
    0400-18-01-.16 Certified Operator Program.
    0400-18-01-.17 UST Systems with Field-Constructed Tanks and 
Airport Hydrant Systems.
    (C) Copies of the Tennessee statutes and regulations that are 
incorporated by reference are available from the Tennessee 
Department of Environment and Conservation, Division of Underground 
Storage Tanks, William R. Snodgrass Tennessee Tower, 12th Floor, 312 
Rosa L. Parks Ave., Nashville, TN 37243; Phone number: (615) 532-
0730; website: https://www.tn.gov/environment/program-areas/ust-underground-storage-tanks/ust/act-rules-and-policies.html.
* * * * *
[FR Doc. 2021-19339 Filed 9-8-21; 8:45 am]
BILLING CODE 6560-50-P