(a) The State of Massachusetts is approved to administer and enforce an underground storage tank program in lieu of the federal program under Subtitle I of the Resource Conservation and Recovery Act of 1976 (RCRA), as amended, 42 U.S.C. 6991 et seq. The State's program, as administered by the Massachusetts Department Environmental Protection (MassDEP), was approved by EPA pursuant to 42 U.S.C. 6991c and 40 CFR part 281 of this Chapter. EPA approved the Massachusetts program on March 3, 1995, which was effective on April 17, 1995.

(b) Massachusetts has primary responsibility for administering and enforcing its federally approved underground storage tank program. However, EPA retains the authority to exercise its inspection and enforcement authorities under sections 9005 and 9006 of Subtitle I of RCRA, 42 U.S.C. 6991d and 6991e, as well as under any other applicable statutory and regulatory provisions.

(c) To retain program approval, Massachusetts must revise its approved program to adopt new changes to the federal Subtitle I program which makes it more stringent, in accordance with section 9004 of RCRA, 42 U.S.C. 6991c and 40 CFR part 281, subpart E. If Massachusetts obtains approval for the revised requirements pursuant to section 9004 of RCRA, 42 U.S.C. 6991c, the newly approved statutory and regulatory provisions will be added to this subpart and notification of any change will be published in the Federal Register.

(d) Massachusetts has final approval for the following elements of its program application originally submitted to EPA and approved effective April 17, 1995, and the program revision application approved by EPA, effective on September 16, 2019.

(1) State statutes and regulations—(i) Incorporation by reference. The material cited in this paragraph, and listed in appendix A to part 282, 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 §282.2 for incorporation by reference approval and inspection information.) You may obtain copies of the Massachusetts statutes and regulations that are incorporated by reference in this paragraph from the State Bookstore, State House, Room 116, Boston, MA 02133; Phone number: 617-727-2834; Hours: Monday-Friday, 8:45 a.m. to 5:00 p.m.; website: http://www.sec.state.ma.us/spr/sprcat/catidx.htm.

(A) “Massachusetts Statutory and Regulatory Requirements Applicable to the Underground Storage Tank Program, March 2019.”

(B) [Reserved]

(ii) Legal basis. EPA evaluated the following statutes and regulations which are part of the approved program, but they are not being incorporated by reference for enforcement purposes, and do not replace Federal authorities:

(A) The statutory provisions include:

(1) Massachusetts General Laws, Chapter 21A, Executive Office of Energy and Environmental Affairs, Section 16, Civil Administrative Penalties.

(2) Massachusetts General Laws, Chapter 21E, Massachusetts Oil and Hazardous Material Release Prevention and Response Act (2014), Sections 4 through 6, 8 through 12 and 15 through 18.

(3) Massachusetts General Laws, Chapter 21J, Underground Petroleum Product Cleanup Fund, Chapters 11 through 14.

(4) Massachusetts General Laws, Chapter 21O, Operation and Removal of Underground Storage Tanks, Section 4, Sections 6 through 9.

(B) The regulatory provisions include:

(1) Code of Massachusetts Regulations, 310 CMR 80, Underground Storage Tank (UST) Systems: 80.10 Duty to Provide Information; 80.12 Presumption of Irreparable Harm; 80.13, Department Access to UST Facilities and Records; 80.48, Delivery Prohibition; 80.50, Enforcement and Appeals.

(2) Code of Massachusetts Regulations, 310 CMR 40, Massachusetts Contingency Plan: 40.0010, Effect of Orders and Appeals; 40.0011, Confidentiality of Information; 40.0013, Presumption of Irreparable Harm; 40.0019, Violations of Environmental Restrictions; 40.0020, Violations of a Permanent Solution or Temporary Solution; 40.0021, Unlawful Interference with Response Actions; 40.0050, Appeals of Orders and Permits; 40.0051, Appeals Relative to Administrative Penalties; 40.0160, Departmental Notice to Responsible Parties and Potentially Responsible Parties; 40.0165, Department Request for Information (RFI); 40.0166, Department Right of Entry; 40.0171, Failure to Perform a Response Action.

(iii) Provisions not incorporated by reference. The following specifically identified statutory and regulatory provisions applicable to the Massachusetts' UST program are broader in scope than the federal program, are not part of the approved program, and are not incorporated by reference herein for enforcement purposes:

(A) Massachusetts General Laws, Chapter 21O: Operation and Removal of Underground Storage Tanks, Section 1, Removal or relocation of underground flammable or combustible fluid tanks; permits; abandoned underground residential tanks; Massachusetts General Laws, Chapter 21E: Massachusetts Oil and Hazardous Material Release Prevention and Response Act, Sections 3A, 3B, Sections 13, 14, and 19 through 22;

(B) Code of Massachusetts Regulations, Title 310 CMR Chapter 80, Underground Storage Tank Systems: General Provisions Section, Applicability, 80.04(6)(c), (8) through (12); Design, Construction and Installation Requirements Section, 80.16(7); Requirements for Compliance Certification Section, 80.34; Class A, B, and C Operator Requirements and Certifications, 80.37; Third Party Inspections Section, 80.49; 310 CMR Chapter 40, Massachusetts Contingency Plan: Subpart B: Organization and Responsibilities, The Role of Licensed Site Professionals Section, 40.0169; and other provisions of Chapter 40.0000 Subparts A-P insofar as they do not relate to underground storage tanks and with respect to underground storage tanks insofar as they are broader in scope than the federal requirements.

(2) Statement of Legal Authority. The Attorney General's Statements, signed by the Attorney General of Massachusetts on August 18, 1993, and March 2, 2017, though not incorporated by reference, are referenced as part of the approved underground storage tank program under Subtitle I of RCRA, 42 U.S.C. 6991 et seq.

(3) Demonstration of procedures for adequate enforcement. The “Demonstration of Procedures for Adequate Enforcement” submitted as part of the original application on October 5, 1992, and as part of the program revision application for approval on June 21, 2017 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 October 5, 1992, and as part of the program revision application on June 21, 2017, though not incorporated by reference, are referenced as part of the approved underground storage tank program under Subtitle I of RCRA, 42 U.S.C. 6991 et seq.

(5) Memorandum of Agreement. The Memorandum of Agreement between EPA Region 1 and the Massachusetts Department of Environmental Protection, signed by the EPA Regional Administrator on November 21, 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.

[84 FR 34318, July 18, 2019]