[Federal Register Volume 84, Number 158 (Thursday, August 15, 2019)]
[Unknown Section]
[Pages 41636-41643]
[FR Doc No: 2019-17408]

=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 282

[EPA-R08-UST-2018-0827; FRL-9997-44-Region 8]

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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

-----------------------------------------------------------------------

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 Montana's Underground
Storage Tank (UST) program submitted by the State. The EPA has
determined that these revisions satisfy all requirements needed for
program approval. This action also codifies the EPA's approval of
Montana's State program and incorporates by reference those provisions
of the State's statutes and regulations that we have determined meet
the requirements for approval. The EPA continues to retain its
inspection and enforcement authorities under sections 9005 and 9006 of
RCRA Subtitle I and other applicable statutory and regulatory
provisions in the State of Montana.

DATES: This rule is effective October 15, 2019, unless the EPA receives
adverse comment by September 16, 2019. 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
October 15, 2019, 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 online instructions for submitting comments.
    2. Email: [email protected].
    3. Mail: Theresa Martella, Region 8, Environmental Scientist, RCRA
Branch, (8LCR-RC), Land, Chemicals and Redevelopment Division, EPA
Region 8, 1595 Wynkoop Street, Denver, Colorado 80202-1129.
    4. Hand Delivery or Courier: Deliver your comments to Theresa
Martella, Region 8, Environmental Scientist, RCRA Branch, (8LCR-RC),
Land, Chemicals and Redevelopment Division, 1595 Wynkoop Street,
Denver, Colorado 80202-1129.
    Instructions: Direct your comments to Docket ID No. EPA-R08-UST-
2018-0827. The EPA's policy is that all comments received will be
included in the public docket without change and may be available
online at https://www.regulations.gov, including any personal
information provided, unless the comment includes information claimed
to be Confidential Business Information (CBI) or other information
whose disclosure is restricted by statute. Do not submit information
that you consider to be CBI or otherwise protected through https://www.regulations.gov or email. The Federal https://www.regulations.gov
website is an ``anonymous access'' system, which means the EPA will not
know your identity or contact information unless you provide it in the
body of your comment. If you send an email comment directly to the EPA
without going through https://www.regulations.gov, your email address
will be automatically captured and included as part of the comment

that is placed in the public docket and made available on the internet.
If you submit an electronic comment, the EPA recommends that you
include your name and other contact information in the body of your
comment and with any disk or CD-ROM you submit. If the EPA cannot read
your comment due to technical difficulties and cannot contact you for
clarification, the EPA may not be able to consider your comment.
Electronic files should avoid the use of special characters, any form
of encryption, and be free of any defects or viruses.
    You can view and copy the documents that form the basis for this
action and associated publicly available materials from 8:30 a.m. to
4:00 p.m., Monday through Friday, at the following location: EPA Region
8, 1595 Wynkoop Street, Denver, Colorado 80202-1129, phone number (303)
312-6329. Interested persons wanting to examine these documents should
make an appointment with the office at least two days in advance.

FOR FURTHER INFORMATION CONTACT: Theresa Martella,<PHONE_NUMBER>,
[email protected]. To inspect the hard copy materials, please
schedule an appointment with Theresa Martella at<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

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

A. Why are revisions to State programs necessary?

    States which have received final approval from the EPA under RCRA
section 9004(b) 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 underground storage tank
program. When the EPA makes revisions to the regulations that govern
the Federal 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 40 Code of Federal Regulations
(CFR) part 280. States can also initiate changes on their own to their
underground storage tank program, and these changes must then be
approved by the EPA.

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

    On November 13, 2018, in accordance with 40 CFR 281.51(a), Montana
submitted a complete program revision application seeking the EPA
approval for its UST program revisions (State Application). Montana's
revisions correspond to the EPA final rule published on July 15, 2015
(80 FR 41566), which revised the 1988 Federal 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, 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 Montana'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 Montana program provides for adequate
enforcement of compliance (40 CFR 281.11(b)). Therefore, the EPA grants
Montana 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 action on the regulated community?

    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 Montana and 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 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. Montana did not receive any comments
during its comment period when the rules and regulations being
considered 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 publishing a separate
document in the ``Proposed Rules'' section of this Federal Register
that serves as the proposal to approve the State's UST program
revisions and provides an opportunity for public comment. If the EPA
receives comments that oppose this approval, the EPA will withdraw this
direct final rule by publishing a document in the Federal Register
before it becomes effective. The EPA will base 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 Montana previously been approved?

    On March 4, 1996, the EPA finalized a rule approving the UST
program that Montana proposed to administer in lieu of the Federal UST
program. The State's program has not previously been codified.

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

    In order to be approved, each State program application must meet
the general requirements in 40 CFR 281.11, and specific requirements in
40 CFR subpart B (Components of a Program Application); subpart C
(Criteria for No Less Stringent); and subpart D (Adequate Enforcement
of Compliance). This also is true for proposed revisions to approved
State programs.
    As more fully described below, the State has made the changes to
its approved UST program to reflect the 2015 Federal Revisions. The EPA
is approving the State's changes because they are equivalent to,
consistent with, and no less stringent than the Federal UST program and
because the EPA has confirmed that the Montana UST program will
continue to provide for adequate enforcement of compliance as described
in 40 CFR 281.11(b) and part 281, subpart D after this approval.
    The Montana Department of Environmental Quality (Department) is the
lead implementing agency for the UST program in Montana, except in
Indian country.
    The Department continues to have broad statutory authority to
regulate the installation, operation, maintenance, and closure of USTs,
as well as to address releases from USTs under Montana Code Annotated
(MCA) (2017), Title 75 Environmental Protection, Chapter 11 Underground
Storage Tanks, part 5 Montana Underground Storage Tank Act, selected
provisions from sections 75-11-501, et seq. and part 2 Montana
Underground Storage Tank

Installer and Inspector Licensing and Permitting Act, selected
provisions from sections 75-11-201, et seq. The Montana UST Program
gets its enforcement authority from the powers of the Department of
Environmental Quality found in MCA sections 75-11-203(2), (3), (6), and
(7); 75-11-204(1) introductory paragraph; 75-11-218 through 75-11-220;
75-11-223; 75-11-224; 75-11-232; 75-11-504; 75-11-505(1), except
(1)(f); 75-11-510 through 75-11-521; 75-11-525; and 75-11-526. Under
MCA 75-11-510(2)(a), an employee or agent of the Department has the
authority to enter and inspect any property premises or place where
regulated substances are stored at any reasonable time. In the case of
a release, MCA section 75-11-510 provides employees or agents of the
Department the authority to take such action as necessary, including
the authority to enter any property, premises or place where an UST is
located for inspection, in order to conduct sampling and to have access
to records. MCA section 75-11-505(1)(c) provides the Department with
rulemaking authority for corrective action. Notice of violation may be
issued and penalties for noncompliance with Montana's UST Act may be
assessed under MCA section 75-11-512. Additionally, Montana's
enforcement program has a policy with respect to Spill Management and
Reporting that relies, for enforcement purposes, on the following
statutes and the administrative rules adopted thereunder: The
Comprehensive Environmental Cleanup and Responsibility Act, MCA section
75-10-701, et seq.; the Hazardous Waste Act, MCA section 75-10-401, et
seq.; the Solid Waste Management Act MCA section 75-10-201, et seq.;
and, the Water Quality Act MCA section 75-5-101, et seq. The State also
includes requirements for delivery prohibitions in the event of
noncompliance as described in Administrative Rules of Montana (ARM)
section 17.56.312.
    Specific authorities to regulate the installation, operation,
maintenance, and closure of USTs, as well as UST releases, are found
under MCA 75-11-505, in addition to the regulatory provisions of ARM
Chapter 17.56 Underground Storage Tanks Petroleum and Chemical
Substance, as amended effective October 6, 2018; Reporting and
recordkeeping requirements are found under ARM section 17.56.305. The
aforementioned statutory and regulatory sections satisfy the
requirements of 40 CFR 281.40 and 281.41.
    Through a Memorandum of Agreement between the State of Montana and
the EPA, signed by the EPA Region 8 Regional Administrator on September
25, 2018, the State maintains procedures for receiving and ensuring
proper consideration of information about violations submitted by the
public. The State agrees to comply with public participation provisions
contained in 40 CFR 281.42, including the provision that the State will
not oppose intervention under Rule 24 of the Montana Code Annotated
Title 25 Civil Procedure, Chapter 20 Rules of Civil Procedure, on the
grounds that the applicant's interest is adequately represented by the
State and the right of aggrieved parties to be admitted as party to
agency proceeding. Montana has met the public participation
requirements found in 40 CFR 281.42.
    To qualify for final approval, revisions to a State's program must
be ``equivalent to, consistent with, and no less stringent'' than the
2015 Federal Revisions. In the 2015 Federal Revisions, the EPA
addressed UST systems deferred in the 1988 UST regulations and added,
among other things, new operation and maintenance requirements,
secondary containment requirements for new and replaced tanks and
piping, operator training requirements, and a requirement to ensure UST
system compatibility before storing certain biofuel blends. In
addition, the EPA removed past deferrals for emergency generator tanks,
field constructed tanks, and airport hydrant systems. The EPA analyzes
revisions to approved State programs pursuant to the criteria found in
40 CFR 281.30 through 281.39.
    The Department has revised its regulations to help ensure that the
State's UST program revisions are equivalent to, consistent with, and
no less stringent than the 2015 Federal Revisions. In particular, the
Department has amended the Administrative Rules of Montana to
incorporate the revised requirements of 40 CFR part 280, including the
requirements added by the 2015 Federal Revisions. The State, therefore,
has ensured that the criteria found in 40 CFR 281.30 through 281.38 are
met.
    Title 40 CFR 281.39 describes the State operator training
requirements that must be met in order to be considered equivalent to,
consistent with, and no less stringent than Federal requirements.
Montana has promulgated and is implementing its own operator training
provisions under Administrative Rules of Montana section 17.56.1501, et
seq. After a thorough review, the EPA has determined that Montana's
operator training requirements are equivalent to, consistent with, and
no less stringent than Federal requirements.
    As part of the State Application, the Acting Chief Counsel of the
Montana Department of Environmental Quality certified that the laws
provide adequate authority to carry out the ``no less stringent''
technical requirements submitted by the State in order to meet the
criteria in 40 CFR 281.30 through 281.39. The EPA is relying on this
certification in addition to the analysis submitted by the State in
making our determination.
    For further information on the EPA's analysis of the State's
application, see the chart in the Technical Support Document (TSD)
contained in the docket for this rulemaking.

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

Broader in Scope Provisions
    Where an approved State program has a greater scope of coverage
than required by Federal law, the additional coverage is not part of
the federally approved program and is not federally enforceable (40 CFR
281.12(a)(3)(ii)). The following regulatory requirements are considered
broader in coverage than the Federal program. These regulations are not
required by Federal regulation and so are implemented by the State in
addition to the federally approved program:
    Administrative Rules of Montana (ARM) Title 17 Environmental
Quality, chapter 56 Underground Storage Tanks Petroleum and Chemical
Substances, section 17.56.102(3)(e), because the State applies the
provision to aboveground storage tanks (ASTs).
    Sections 17.56.903(3) and 17.56.1001 are broader in scope because
fees are not imposed by the Federal program.
    Section 17.56.402(1)(a)(iii) is broader in scope because the State
regulates farm and residential tanks used for storing motor fuel for
noncommercial purposes and heating oil for consumptive use, and
emergency power generator tanks by requiring yearly tank gauging, which
the Federal program does not require.
    Sections 17.56.308, 17.56.310, 17.56.701(4), 17.56.1502(1), and
subchapter 13, sections 1301 through 1309 are broader in scope because
these regulations contain provisions relative to State-only operating
permits not required by the Federal program.
    Subchapter 14, sections 1401 through 1426, is broader in scope
because the State requires State-only licensing of UST installers not
required by the Federal program.
    The following statutory provisions are considered broader in scope
than the

Federal program, as these State-only program elements do not have
counterparts in the Federal program and are implemented by the State in
addition to the federally approved program:
    Under Montana Code Annotated Chapter 75-11:
    Sections 75-11-203(1), (4), (5), (8)-(10), (14), and (15); 75-11-
204(1)(a)-(h) and (2); 75-11-209 through 75-11-214; 75-11-225 through
75-11-227; 75-11-503(8) ``underground storage tank'' or ``tank'' as it
applies to aboveground storage tanks; 75-11-505(1)(f); and 75-11-509.
More Stringent Provisions
    Where an approved State program includes requirements that are
considered more stringent than required by Federal law, the more
stringent requirements become part of the federally approved program
(40 CFR 281.12(a)(3)(i)).
    The following regulatory requirements are considered more stringent
than the Federal program, and on approval, they become part of the
federally approved program and are federally enforceable:
    Under Administrative Rules of Montana (ARM) 17.56:
    At section 17.56.104, Montana subjects very small tanks (i.e.,
those 100 gallons or less) to standards that these small tanks are not
subjected to under the Federal program, making the State requirements
more stringent in this respect.
    Montana does not have an analog to the following Federal
requirements which allow certain USTs or UST systems to be installed
without or with limited corrosion protection in specific circumstances:
Sec. Sec.  280.11(b), 280.20(a)(4), 280.20(b)(3), 280.34(b)(1). Because
Montana requires that all UST systems be installed with corrosion
protection, the State is more stringent than the Federal program for
these requirements.
    At section 17.56.304(3)(c) and (d), Montana includes additional
State-only requirements regarding manufacturer warranty and the
possibility of excavation of an UST for repair that are not in the
Federal UST regulations; therefore, the State is more stringent than
the Federal program.
    At the introductory paragraphs of sections 17.56.407(1)(e) and
(1)(f), Montana includes the requirement that vapor and groundwater
monitoring as forms of release detection, respectively, will only be
allowed until October 13, 2023. These limitations are not found in the
Federal program, making Montana more stringent.
    At 17.56.407(1)(d)(ii), (1)(e)(viii), (1)(f)(x), (1)(g)(i)(B) and
17.56.408(2), the State requires the use of a leak-detection console to
temporarily disable pumping systems attached to tanks and piping that
have failed a leak test, making the State provision more stringent than
the Federal program.
    At 17.56.408(3) and (4), Montana requires piping for UST systems
installed after the (compliance deadline) to employ interstitial
monitoring as the primary release detection method; whereas, the
Federal program allows other methods, making the State provision more
stringent than the Federal program.
    At 17.56.409(1)(d) through (1)(f), the State has additional
recordkeeping requirements associated with release detection, making
the State provision more stringent than the Federal program.
    At 17.56.602(1)(d), Montana requires that a free product removal
report be submitted within 30 days; whereas, the Federal program allows
up to 45 days for this submittal. This makes the State provision more
stringent than the Federal program.
    At 17.56.701(2) and 17.56-702(2), Montana has additional, more
stringent closure requirements not found in the Federal program:
Requiring temporarily closed tanks to be emptied and not allowing the
closure in place of permanently closed tanks, respectively.
    At 17.56.825, Montana does not allow owners/operators of UST
facilities undergoing a change in service to use this as a factor to
release those individuals from financial responsibility requirements as
they would be under the Federal program, making the State provision
more stringent than the Federal program.
    At 17.56.1504, Montana requires that facilities' training records
be kept for at least 3 years after the trained individual served as an
operator at a facility, in lieu of the Federal requirements that
facilities keep these records only as long as the individuals are
designated as an operator; in other words, a timeline that ends when an
individual leaves a particular facility.
    At 17.56.205, Montana has a State-only provision that requires
anti-siphon equipment in certain circumstances to prevent releases at
facilities, making the State provision more stringent than the Federal
program.
    At 17.56.506 Montana requires an additional State-only notification
for confirmed releases in addition to the federally mandated suspected
release and initial abatement reporting of 280 subparts E and F, making
the State provision more stringent than the Federal program.

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

    The EPA's approval of Montana's program, including this action,
does not extend to Indian country as defined in 18 U.S.C. 1151. Indian
country generally includes lands within the exterior boundaries of the
following Indian reservations located within Montana: The Blackfeet,
Crow, Flathead, Fort Belknap, Fort Peck, Northern Cheyenne and Rocky
Boys, any land held in trust by the United States for an Indian tribe,
and any other areas that are ``Indian country'' within the meaning of
18 U.S.C. 1151. Any lands removed from an Indian reservation status by
Federal court action are not considered reservation lands, even if
located within the exterior boundaries of an Indian reservation. The
EPA will retain responsibilities under RCRA for underground storage
tanks in Indian country. Therefore, this action has no effect in Indian
country. See 40 CFR 281.12(a)(2).

II. Codification

A. What is codification?

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

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

    The EPA has not previously incorporated by reference and codified
Montana's approved UST program. Through this action, the EPA is
incorporating by reference and codifying Montana's State program in 40
CFR 282.76 to include the program and the approved revisions.

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

    In this rule we are finalizing the Federal regulatory text that
incorporates by reference the federally authorized Montana UST program.
In accordance with the requirements of 1 CFR 51.5, we are finalizing
the incorporation by reference of the Montana rules described in the
amendments to 40 CFR part 282 set forth below. The EPA has made, and
will continue to make, these documents generally available through
https://www.regulations.gov and/or in hard copy at the EPA Region 8
office (see the ADDRESSES section of this preamble for more
information).
    One purpose of this Federal Register document is to codify
Montana's approved UST program. The codification reflects the State
program that would be in effect at the time the EPA's approved
revisions to the Montana UST program addressed in this direct final
rule become final. If, however, the EPA receives substantive comment on
the proposed rule, then this codification will not take effect, and the
State rules that are approved after the EPA considers public comment
will be codified instead. By codifying the approved Montana program and
by amending the Code of Federal Regulations (CFR), the public will more
easily be able to discern the status of the federally approved
requirements of the Montana program.
    The EPA is incorporating by reference the Montana approved UST
program in 40 CFR 282.76. Section 282.76(d)(1)(i)(A) incorporates by
reference for enforcement purposes the State's regulations. Section
282.76 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 EPA's codification of the federally authorized
State 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
Montana, the EPA will rely on Federal sanctions, Federal inspection
authorities, and other Federal procedures, rather than the State
analogs. Therefore, though the EPA has approved the State procedures
listed in 40 CFR 282.76(d)(1)(ii), the EPA is not incorporating by
reference Montana's procedural and enforcement authorities.

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

    The public also needs to be aware that some provisions of the
State's UST program are not part of the federally approved State
program. Such provisions are not part of the RCRA Subtitle I program
because they are ``broader in coverage'' than Subtitle I of RCRA. Title
40 CFR 281.12(a)(3)(ii) states that where an approved State program has
provisions that are broader in coverage than the Federal program, those
provisions are not a part of the federally approved program. As a
result, state provisions which are ``broader in coverage'' than the
Federal program are not incorporated by reference for purposes of
enforcement in part 282. Title 40 CFR 282.76(d)(1)(iii) lists for
reference and clarity the Montana statutory and regulatory provisions
which are ``broader in coverage'' than the Federal program and which
are not, therefore, part of the approved program being codified.
Provisions that are ``broader in coverage'' cannot be enforced by EPA.
The State, however, will continue to implement and enforce such
provisions under State law.

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

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

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

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

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

    This action is not an Executive Order 13771 (82 FR 9339, February
3, 2017) regulatory action because actions such as this final approval
of Montana'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). For the same reason, this action also does not significantly or
uniquely affect the communities of tribal governments, as specified by
Executive Order 13175 (65 FR 67249, November 9, 2000).

D. Executive Order 13132: Federalism

    This action will not have substantial direct effects on the States,
on the relationship between the national government and the States, or
on the distribution of power and responsibilities among the various
levels of government, as specified in Executive Order 13132 (64 FR
43255, Aug. 10, 1999), because it merely approves and codifies State
requirements as part of the State RCRA Underground Storage Tank Program
without altering the relationship or the distribution of power and
responsibilities established by RCRA.

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

    This action is not subject to Executive Order 13045 (62 FR 19885,
Apr. 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 (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), the 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 the 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, 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.

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

    The EPA has complied with Executive Order 12630 (53 FR 8859, Mar.
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, Feb. 16, 1994) establishes
Federal executive policy on environmental justice. Its main provision
directs Federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States. Because this rule approves pre-
existing State rules which are at least equivalent to, consistent with,
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. 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). However,
this action will be effective October 15, 2019 because it is a direct
final rule.

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

List of Subjects in 40 CFR Part 282

    Environmental protection, Administrative practice and procedure,
Hazardous substances, Incorporation by reference, State program
approval, and Underground storage tanks.

    Dated: August 7, 2019.
Gregory Sopkin,
Regional Administrator, EPA Region 8.

    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 reads as follows:

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

0
2. Add Sec.  282.76 to read as follows:

Sec.  282.76   Montana State-Administered Program.

    (a) History of the approval of Montana's Program. The State of
Montana 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
Montana Department of Environmental Quality (MDEQ), was approved by the
EPA pursuant to 42 U.S.C. 6991c and Part 281 of this chapter. The EPA
published the notice of final determination approving the Montana
underground storage tank base program effective on March 4, 1996. A
subsequent program revision application was approved by the EPA and
became effective on October 15, 2019.
    (b) Enforcement authority. Montana has primary responsibility for
administering and enforcing its federally approved underground storage
tank 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.
    (c) Retention of program approval. To retain program approval,
Montana must revise its approved program to adopt new changes to the
Federal Subtitle I program, in accordance with section 9004 of RCRA, 42
U.S.C. 6991c, and 40 CFR part 281, subpart E. If Montana obtains
approval for the revised requirements pursuant to section 9004 of RCRA,
42 U.S.C. 6991c, the newly approved statutory and regulatory provisions
will be added to this subpart and notice of any change will be
published in the Federal Register.
    (d) Final approval. Montana has final approval for the following
elements of its program application originally submitted to the EPA and
approved effective March 4, 1996, and the program revision application
approved by EPA effective on October 15, 2019:
    (1) State statutes and regulations--(i) Incorporation by reference.
The material cited in this paragraph 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.) The Director of the Federal
Register approves this incorporation by reference in accordance with 5
U.S.C. 552(a) and 1 CFR part 51. You may obtain copies of the Montana
statutes and regulations that are incorporated by reference in this
paragraph from Montana Legislative Services Division, P.O. Box 201706,
Helena, MT 59620-1706; Phone number:<PHONE_NUMBER>; email:
[email protected]; website: https://leg.mt.gov/statute/, and Montana's
Secretary of State's Administrative

Rules Services, P.O. Box 202801, Helena, MT 59620-2801; Phone number:
406-444-9000; email: [email protected]; website: http://www.mtrules.org/.
    (A) ``EPA-Approved Montana Statutory and Regulatory Requirements
Applicable to the Underground Storage Tank Program'' dated May 2019.
    (B) [Reserved]
    (ii) Legal basis. EPA evaluated the following statutes and
regulations which provide the legal basis for the State's
implementation of the underground storage tank program, but they are
not being incorporated by reference and do not replace Federal
authorities:
    (A) The statutory provisions include:
    (1) Montana Code Annotated (2017), Title 75 Environmental
Protection, Chapter 11 Underground Storage Tanks, Part 2 Underground
Storage Tank Installer and Inspector Licensing and Permitting Act.
Sections 75-11-203(2), (3), (6), and (7); 75-11-204(1) introductory
paragraph; 75-11-218 through 75-11-220; 75-11-223; 75-11-224; and 75-
11-232;
    (2) Montana Code Annotated (2017), Title 75 Environmental
Protection, Chapter 11 Underground Storage Tanks, Part 5 Montana
Underground Storage Tank Act. Sections 75-11-504; 75-11-505(1); 75-11-
510 through 75-11-521; 75-11-525; and 75-11-526; and
    (3) Additional statutes. The following additional statutes that the
State relies on for its enforcement program with respect to Spill
Management and Reporting: The Comprehensive Environmental Cleanup and
Responsibility Act, MCA section 75-10-701 et seq.; the Hazardous Waste
Act, MCA Section 75-10-401 et seq.; the Solid Waste Management Act MCA
section 75-10-201 et seq.; and, the Water Quality Act MCA section 75-5-
101 et seq.
    (B) The regulatory provisions include:
    (1) Administrative Rules of Montana (October 6, 2018), Title 17
Department of Environmental Quality, Chapter 56 Underground Storage
Tanks Petroleum and Chemical Substances. Section 17.56.105 Variances;
17.56.309 Requirements for Compliance Inspections; 17.56.311 Permanent
Non-Expiring Tags; 17.56.312 Delivery Prohibition; 17.56.508 Numbering
Petroleum Releases; section 17.56.606 Public Participation; 17.56.607
Release Categorization; and 17.56.706 Requirement to empty
noncompliance USTs.
    (2) [Reserved]
    (iii) Provisions not incorporated by reference. The following
specifically identified statutes and rules applicable to the Montana
underground storage tank program that are broader in coverage than the
Federal program, are not part of the approved program, and are not
incorporated by reference in this part for enforcement purposes:
    (A) Administrative Rules of Montana (October 6, 2018), Title 17
Department of Environmental Quality, Chapter 56 Underground Storage
Tanks Petroleum and Chemical Substances. Sections 17.56.102(3)(e);
17.56.308; 17.56.310; 17.56.402(1)(a)(iii); 17.56.701(4); 17.56.903(3);
17.56.1001; and 17.56.1502(1) as it applies to permits; subchapter 13,
sections 17.56.1301 through 17.56.1309 and subchapter 14, sections
17.56.1401 through 17.56.1426.
    (B) Montana Code Annotated (2017), Title 75 Environmental
Protection, Chapter 11 Underground Storage Tanks, Part 5 Montana
Underground Storage Tank Act. Sections 75-11-203(1), (4), (5), (8)-
(10), (14), and (15); 75-11-204(1)(a)-(h) and (2); 75-11-209 through
75-11-214; 75-11-225 through 75-11-227; 75-11-503(8) ``underground
storage tank'' or ``tank'' as it applies to aboveground storage tanks;
75-11-505(1)(f); and 75-11-509.
    (2) Statement of legal authority. The Attorney General's
Certification, signed by the Acting Chief Counsel, Special Assistant
Attorney General for the State of Montana on November 13, 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 Procedures for Adequate Enforcement'' submitted as
part of the original application on February 22, 1995, and as part of
the program revision application on November 13, 2018, though not
incorporated by reference, is referenced as part of the approved
underground storage tank program under Subtitle I of RCRA, 42 U.S.C.
6991 et seq.
    (4) Program description. The program description and any other
material submitted as part of the original application on February 22,
1995, and as part of the program revision application on November 13,
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 8 and the Montana Department of Environmental Quality,
signed by the EPA Regional Administrator on September 25, 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. Appendix A to part 282 is amended by adding an entry for Montana in
alphabetical order by State to read as follows:

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

* * * * *

Montana

    (a) The statutory provisions include:
    (1) Montana Code Annotated (2017), Title 75 Environmental
Protection, Chapter 11 Underground Storage Tanks, Part 2 Montana
Underground Storage Tank Installer and Inspector Licensing and
Permitting Act: Sections 75-11-203(11) ``operator'' 75-11-203(12)
``owner''.
    (2) Montana Code Annotated (2017), Title 75 Environmental
Protection, Chapter 11 Underground Storage Tanks, Part 5 Montana
Underground Storage Tank Act: Sections 75-11-503(4) ``person'', (8)
``underground storage tank'' or ``tank'', except as it applies to
aboveground storage tanks.
    (b) The regulatory provisions include:
    (1) Administrative Rules of Montana (October 6, 2018), Title 17
Department of Environmental Quality, Chapter 56 Underground Storage
Tanks Petroleum and Chemical Substances:
    Subchapter 1 General Provisions:
    Sections 17.56.101 Definitions; 17.56.102 Applicability, except
17.56.102(3)(e); 17.56.104 Tank Standards for Excluded UST Systems;
    Subchapter 2 UST Systems: Design, Construction, and
Installation:
    Section 17.56.201 Performance Standards for New Tank Systems;
17.56.202 Upgrading of Existing UST Systems; 17.56.203 Additional
Performance Standards for New Underground Piping Connected to
Aboveground Tanks or to Underground Tanks with a Capacity of 660
Gallons or Less Used to Store Heating Oil; 17.56.204 Secondary
Containment, Under-Dispenser Containment, and Interstitial
Monitoring; 17.56.205 Anti-Siphon Requirements;
    Subchapter 3 General Operating Requirements:
    Sections 17.56.301 Spill and Overfill Control; 17.56.302
Operation and Maintenance of Corrosion Protection; 17.56.303
Compatibility; 17.56.304 Repairs; 17.56.305 Reporting and
Recordkeeping; 17.56.306 Periodic Testing of Spill Prevention
Equipment and Containment Sumps Used for Interstitial Monitoring of
Piping and Periodic Inspection of Overfill Prevention Equipment;
17.56.307 Periodic Operation and Maintenance Walkthrough
Inspections;
    Subchapter 4 Release Detection:
    Sections 17.56.401 General Requirements for all UST Systems;
17.56.402 Requirements for Petroleum UST Systems, except
17.56.402(1)(a)(iii); 17.56.403 Requirements

for Hazardous Substance UST Systems; 17.56.407 Methods of Release
Detection for Tanks; 17.56.408 Methods of Release Detection for
Piping; 17.56.409 Release Detection Recordkeeping;
    Subchapter 5 Release Reporting, Investigation, and Confirmation:
    Sections 17.56.501 General; 17.56.502 Reporting of Suspected
Releases; 17.56.503 Investigation Due to Off-site Impacts; 17.56.504
Release Investigation and Confirmation Steps; 17.56.505 Reporting
and Cleanup of Spills and Overfills; 17.56.506 Reporting of
Confirmed Releases; 17.56.507 Adoption by Reference;
    Subchapter 6 Release Response and Corrective Action for Tanks
Containing Petroleum or Hazardous Substances:
    Sections 17.56.601 General; 17.56.602 Initial Response and
Abatement Measures; 17.56.603 Initial Site History; 17.56.604
Remedial Investigation; 17.56.605 Cleanup Plan; 17.56.608 Adoption
by Reference;
    Subchapter 7 Out-of-Service UST Systems and Closure:
    Sections 17.56.701 Inactive and Out-of-Service UST Systems,
except 17.56.701(4); 17.56.702 Permanent Closure and Changes in
Service; 17.56.703 Assessing the Site at Closure or Change in
Service; 17.56.704 Applicability to Previously Closed UST Systems;
17.56.705 Closure Records;
    Subchapter 8 Financial Responsibility:
    Sections 17.56.801 Applicability; 17.56.802 Compliance Dates;
17.56.803 Definition of Terms; 17.56.804 Incorporation by Reference;
17.56.805 Amount and Scope of Required Financial Responsibility;
17.56.806 Allowable Mechanisms and Combinations of Mechanisms;
17.56.807 Financial Test of Self-Insurance; 17.56.808 Guarantee;
17.56.809 Insurance and Risk Retention Group Coverage; 17.56.810
Surety Bond; 17.56.811 Letter of Credit; 17.56.815 Montana Petroleum
Tank Release Cleanup Fund; 17.56.816 Trust Fund; 17.56.817 Standby
Trust Fund; 17.56.820 Substitution of Financial Assurance Mechanisms
by Owner or Operator; 17.56.821 Cancellation or Nonrenewal by a
Provider of Financial Assurance; 17.56.822 Reporting by Owner or
Operator; 17.56.823 Recordkeeping; 17.56.824 Drawing on Financial
Assurance Mechanisms; 17.56.825 Release from the Requirements;
17.56.827 Bankruptcy or Other Incapacity of Owner or Operator or
Provider of Financial Assurance; 17.56.828 Replenishment of
Guarantees, Letters of Credit, or Surety Bonds;
    Subchapter 9 Notification:
    Sections 17.56.901 Interim Notification Requirements; 17.56.902
Notification Requirements; 17.56.903 Change in Ownership, except
17.56.903(3);
    Subchapter 15 Underground Storage Tank Operator Training:
    Sections 17.56.1501 Operator Training Definitions; 17.56.1502
Operator Training, except the permit requirement in 17.56.1502(1);
17.56.1503 Operator Training: Authorized Providers; and Required
Subjects; 17.56.1504 Operator Training: Recordkeeping; 17.56.1505
Operator Training: Third-Party Training Course Approval; and
    Subchapter 16 Underground Storage Tank Systems with Field
Constructed Tanks:
    Section 17.56.1601 UST Systems with Field Constructed Tanks and
Airport Hydrant Fuel Distribution Systems;
    (c) Copies of the Montana statutes and regulations that are
incorporated by reference are available from the following offices:
    Statutes--Montana Legislative Services Division, P.O. Box
201706, Helena, MT 59620-1706; Phone number:<PHONE_NUMBER>; email:
[email protected]; website: https://leg.mt.gov/statute/.
    Regulations--Secretary of State's Administrative Rules Services,
P.O. Box 202801, Helena, MT 59620-2801; Phone number:<PHONE_NUMBER>;
email: [email protected]; website: http://www.mtrules.org/.
* * * * *
[FR Doc. 2019-17408 Filed 8-14-19; 8:45 am]
BILLING CODE 6560-50-P