(a) History of the approval of Mississippi's program. The State of Mississippi (Mississippi or State) is approved to administer and enforce an 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 Underground Storage Tank Program (UST Program), as administered by the Mississippi Department of Environmental Quality (MDEQ), was approved by EPA pursuant to 42 U.S.C. 6991c and part 281 of this chapter. EPA approved the Mississippi UST Program on June 11, 1990, and it was effective on July 11, 1990. A subsequent program revision was approved by EPA and became effective March 18, 2024.

(b) Enforcement authority. Mississippi has primary responsibility for administering and enforcing its federally approved UST Program. However, 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, Mississippi must revise its approved 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 Mississippi 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. Mississippi has final approval for the following elements of its UST Program submitted to EPA and approved effective June 11, 1990, and the program revisions approved by EPA effective on March 18, 2024:

(1) State statutes and regulations—(i) Incorporation by reference. The Mississippi materials cited in this paragraph (d)(1)(i), and listed in appendix A to this part, are incorporated by reference as part of the UST 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 Mississippi statutes and regulations that are incorporated by reference in this paragraph (d)(1)(i) from the Mississippi Department of Environmental Quality, P.O. Box 2261, Jackson, MS 29335; Phone number: (601) 961-5171; website: https://www.mdeq.ms.gov/water/groundwater-assessment-and-remediation/underground-storage-tanks/.

(A) “Mississippi Statutory Requirements Applicable to the Underground Storage Tank Program,” dated September 5, 2023.

(B) “Mississippi Regulatory Requirements Applicable to the Underground Storage Tank Program,” dated September 5, 2023.

(ii) Legal basis. EPA considered the following statutes and regulations which provide the legal basis for the State's implementation of the UST Program, but do not replace Federal authorities. Further, these provisions are not being incorporated by reference, unless the provisions place requirements on regulated entities.

(A) Mississippi Underground Storage Tank Act (the UST Act) of 1988, Miss. Code Ann. sections 49-17-401 to 49-17-435 (2022).

(1) Section 49-17-409, as to the first sentence, insofar as it provides for compliance monitoring and the promulgation of regulations for the reporting of releases.

(2) Section 49-17-413(1), insofar as it provides for compliance monitoring, and the promulgation of regulations for the implementation of the State UST Program.

(3) Section 49-17-415, insofar as it provides for compliance monitoring and establishes authority to conduct inspections, tests, and obtain information from owners.

(4) Section 49-17-419, insofar as it establishes authority over corrective action.

(5) Section 49-17-425, insofar as it provides for the sharing of information with EPA.

(6) Section 49-17-427, insofar as it provides for enforcement response, enforcement of orders, assessment of penalties under the UST Act, proceedings before the commission, and limitations on liability.

(7) Section 49-17-431, insofar as it provides for appeal of any decision by the commission or the director.

(B) Mississippi Air and Water Pollution Control Law, Miss. Code Ann. sections 49-17-27 and 49-17-31 to 49-17-41 (2020).

(1) Section 49-17-27, insofar as it provides for enforcement response and injunctive relief.

(2) Section 49-17-31, insofar as it provides for enforcement response, notice of violations, enforcement of regulations and orders, procedures for contested cases, and assessment of penalties.

(3) Section 49-17-33, insofar as it provides for hearing procedures, issuance of orders, and penalties.

(4) Section 49-17-35, insofar as it provides for enforcement response, public participation, and citizen intervention.

(5) Section 49-17-37, insofar as it provides for hearing procedures and transcripts.

(6) Section 49-17-39, insofar as it provides for the sharing of information with EPA.

(7) Section 49-17-41, insofar as it provides for appeal rights for aggrieved parties.

(C) Mississippi's Underground Storage Tank Regulations, 11 Miss. Admin. Code Pt. 5, Ch. 2 (2018).

(1) R. 2.3, 280.36, insofar as it provides for delivery prohibition and enforcement of the State UST Program.

(2) R. 2.6, 280.67, insofar as it provides for public participation in the corrective action process.

(D) Rule 24(a)(2) of the Mississippi Rules of Civil Procedure (1982), insofar as it provides for citizen intervention and public participation in the State enforcement process.

(iii) Other provisions not incorporated by reference. The following statutory and regulatory provisions applicable to the Mississippi UST Program are broader in scope than the Federal program, external to the State UST program approval requirements, or are being excluded for other reasons as noted below. Therefore, these provisions are not part of the approved UST Program and are not incorporated by reference in this section:

(A) Mississippi Underground Storage Tank Act (the UST Act) of 1988, Miss. Code Ann. sections 49-17-401 to 49-17-435 (2022).

(1) 49-17-403(b) is broader in scope as to the definition of “Bonded distributor,” insofar as it is associated with the regulation of entities other than owners and operators as these terms are defined in 40 CFR 280.12.

(2) Section 49-17-403(o) is broader in scope as to the definition of “Response action contractor,” insofar as it is associated with the regulation of entities other than owners and operators as these terms are defined in 40 CFR 280.12.

(3) Section 49-17-403(p) is broader in scope as to the definition of “Retailer,” insofar as it is associated with the regulation of entities other than owners and operators as these terms are defined in 40 CFR 280.12.

(4) Section 49-17-403(q) is broader in scope as to the definition of “Substantial compliance,” insofar as it relates to a State fund.

(5) Section 49-17-405 is broader in scope insofar as it provides for the creation of the Mississippi Groundwater Protection Trust Fund (State Fund), promulgation of regulations regarding the State Fund, criteria for qualified expenditure of funds, and liability of owners for fund expenditures.

(6) Section 49-17-407 is broader in scope insofar as it creates an environmental protection fee, provides limits on use of the State Fund, and addresses third party claims.

(7) Section 49-17-409 is broader in scope, all except for the first sentence, insofar as it provides for the eligibility requirements of the State Fund and reimbursement of costs from owners.

(8) Section 49-17-421 is broader in scope insofar as it establishes an annual tank regulatory fee.

(9) Section 49-17-422 is broader in scope insofar as it creates an Underground Storage Tank Advisory Council.

(10) Section 49-17-423 is broader in scope insofar as it pertains to the commission's administration of funds from the Leaking Underground Storage Tank Trust Fund.

(11) Section 49-17-429 is broader in scope insofar as it requires the certification of individuals to install, alter, or remove underground storage tanks and provides for the promulgation of regulations setting forth certification requirements.

(12) Section 49-17-433 is external insofar as it pertains to the severability of the State UST Act.

(13) Section 49-17-435 is external insofar as it contains reporting obligations on the State agency, not a regulated entity.

(B) Mississippi Air and Water Pollution Control Law, Miss. Code Ann. sections 49-17-27 and 49-17-31 to 49-17-41 (2020).

(1) Section 49-17-32 is external insofar as it does not pertain to the State UST Program.

(2) Section 49-17-34 is external insofar as it does not pertain to the State UST Program.

(3) Section 49-17-36 is external insofar as it does not pertain to the State UST Program.

(C) Mississippi's Groundwater Protection Trust Fund Regulations, 11 Miss. Admin. Code Pt. 5, Ch. 1 (2009) is broader in scope insofar as these provisions regulate Immediate Response Action Contractors, Environmental Response Action Contractors, and the State Fund.

(D) Mississippi's Underground Storage Tank Regulations, 11 Miss. Admin. Code Pt. 5, Ch. 2 (2018).

(1) R. 2.1, 280.12 is broader in scope as to the definition of “Ancillary equipment,” insofar as it pertains to dispensers.

(2) R. 2.1, 280.12 is broader in scope as to the definition of “Certificate of Operation,” insofar as it requires UST systems to be permitted by MDEQ and the payment of tank regulatory fees.

(3) R. 2.1, 280.12 is broader in scope as to the definition of “Motor fuel,” insofar as it includes 100% biodiesel or ethanol.

(4) R. 2.1, 280.12 is broader in scope as to the definition of “New tank system,” insofar as it includes dispensers as part of the new tank system.

(5) R. 2.1, 280.12 is broader in scope as to the definition of “Register,” insofar as it requires notification for installation, replacement, and change in operational status of a dispenser.

(6) R. 2.1, 280.12 is broader in scope as to the definition of “Replace,” insofar as it considers replacement of a dispenser to constitute a new UST system.

(7) R. 2.2, 280.20(j) is broader in scope insofar as it regulates shear valves.

(8) R. 2.2, 280.22(a) and (b) are broader in scope insofar as these provisions regulate dispensers.

(9) R. 2.3, 280.34(g) through (i) are broader in scope insofar as these provisions regulate dispensers.

(10) R. 2.3, 280.35(a)(4) is broader in scope insofar as it regulates dispensers.

(11) R. 2.3, 280.35(b)(1) is broader in scope insofar as it regulates shear valves.

(12) R. 2.3, 280.38(b)(1)(iii) is broader in scope insofar as it regulates shear valves.

(13) R. 2.8, 280.91(e) and (f), are excluded for other reasons. Paragraph (e) is excluded only insofar as it includes Indian tribes as a “local government entity,” and paragraph (f) is excluded insofar as EPA retains responsibility for implementing the Federal UST program in Indian country.

Note 1 to paragraph (d)(1)(iii)(D)(13).

MDEQ does not regulate any USTs on Indian lands and EPA retains responsibility for implementing the Federal UST program in Indian country. In a subsequent rulemaking, MDEQ will revise these provisions to remove references to the State's regulation of USTs in Indian country.

(14) R. 2.8, 280.92, is excluded for other reasons only insofar as the definition of “Local government” includes Indian tribes.

Note 2 to paragraph (d)(1)(iii)(D)(14).

MDEQ does not regulate any USTs on Indian lands and the EPA retains responsibility for implementing the Federal UST program in Indian country. In a subsequent rulemaking, MDEQ will revise the definition of “Local government” to exclude Indian tribes.

(15) R. 2.8, 280.100 is external insofar as it is not applicable in a State with an approved UST program.

(E) Mississippi's Underground Storage Tank Regulations for the Certification of Persons Who Install, Alter, and Remove Underground Storage Tanks, 11 Miss. Admin. Code Pt. 5, Ch. 3 (2018) is broader in scope insofar as these provisions provide for the certification and regulation of persons who install, alter, test, and permanently close underground storage tanks.

(2) Statement of legal authority. The Attorney General's Statement, signed by the Mississippi Attorney General on July 27, 2023, 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 in the application dated July 31, 2023, as amended on August 17, 2023, 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 submitted in the application dated July 31, 2023, as amended on August 17, 2023, 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.

(5) Memorandum of Agreement. The Memorandum of Agreement between EPA Region 4 and the MDEQ, 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.

[89 FR 3358, Jan. 18, 2024]