[Federal Register Volume 85, Number 108 (Thursday, June 4, 2020)]
[Rules and Regulations]
[Pages 34361-34369]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-09941]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 282
[EPA-R06-UST-2018-0702; FRL-10008-89-Region 6]
Louisiana: Final Approval of State Underground Storage Tank
Program Revisions and Incorporation by Reference
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: Pursuant to the Resource Conservation and Recovery Act (RCRA
or Act), the Environmental Protection Agency (EPA) is taking direct
final action to approve revisions to the State of Louisiana's
Underground Storage Tank (UST) program submitted by the State. EPA has
determined that these
[[Page 34362]]
revisions satisfy all requirements needed for program approval. This
action also codifies EPA's approval of Louisiana's state program and
incorporates by reference those provisions of the State regulations
that we have determined meet the requirements for approval. The
provisions will be subject to EPA's inspection and enforcement
authorities under sections 9005 and 9006 of RCRA subtitle I and other
applicable statutory and regulatory provisions.
DATES: This rule is effective August 3, 2020, unless EPA receives
adverse comment by July 6, 2020. If 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 August 3, 2020, in
accordance with 5 U.S.C. 552(a) and 1 CFR part 51.
ADDRESSES: Submit your comments by one of the following methods:
1. Federal eRulemaking Portal: https://www.regulations.gov. Follow
the on-line instructions for submitting comments.
2. Email: [email protected].
Instructions: Direct your comments to Docket ID No. EPA-R06-UST-
2018-0702. 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. 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.
The index to the docket for this action is available electronically
at www.regulations.gov.
You can view and copy the documents that form the basis for this
codification and associated publicly available docket materials are
available either through www.regulations.gov or at the Environmental
Protection Agency, Region 6, 1201 Elm Street, Suite #500, Dallas, Texas
75270. The facility is open from 8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding Federal holidays and facility closures due to COVID
19. We recommend that you telephone Audray Lincoln, Environmental
Protection Specialist, at (214) 665-2239, before visiting the Region 6
office. Interested persons wanting to examine these documents should
make an appointment with the office at least two weeks in advance.
FOR FURTHER INFORMATION CONTACT: Audray Lincoln, (214) 665-2239,
[email protected]. Out of an abundance of caution for members of
the public and our staff, the EPA Region 6 office will be closed to the
public to reduce the risk of transmitting COVID-19. We encourage the
public to submit comments via https://www.regulations.gov, as there
will be a delay in processing mail and no courier or hand deliveries
will be accepted. Please call or email the contact listed above if you
need alternative access to material indexed but not provided in the
docket.
SUPPLEMENTARY INFORMATION:
I. Approval of Revisions to Louisiana'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 EPA makes revisions to the regulations that govern the
UST program, states must revise their programs to comply with the
updated regulations and submit these revisions to the EPA for approval.
Changes to state UST programs may be necessary when Federal or State
statutory or regulatory authority is modified or when certain other
changes occur. 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 EPA.
B. What decisions has the EPA made in this rule?
On October 2, 2018, in accordance with 40 CFR 281.51(a), Louisiana
submitted a complete program revision application seeking approval for
its UST program revisions which correspond to the EPA final rule
published on July 15, 2015 (80 FR 41566). This rule finalized revisions
to the 1988 UST regulation and to the 1988 state program approval (SPA)
regulation. As required by 40 CFR 281.20, the State submitted 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 application and have determined that the
revisions to Louisiana's UST program are no less stringent than the
corresponding Federal requirements in subpart C of 40 CFR part 281.
Additionally, we have found that the Louisiana program provides for
adequate enforcement of compliance as required by 40 CFR 281.11(b).
Therefore, the EPA grants Louisiana 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. The Louisiana
Department of Environmental Quality (LDEQ) is the lead implementing
agency for the UST program in Louisiana, except in Indian Country.
C. What is the effect of this approval decision?
This action does not impose additional requirements on the
regulated community because the regulations being approved by this rule
are already effective in the State of Louisiana, and they are not
changed by this action. This action merely approves the existing State
regulations as meeting the Federal requirements and renders them
federally enforceable.
[[Page 34363]]
D. Why is 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
anticipate no adverse comment. Louisiana did not receive any comments
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, 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
revision, providing opportunity for public comment. If EPA receives
comments that oppose this approval, EPA will withdraw the direct final
rule by publishing a document in the Federal Register before the rule
becomes effective. The EPA will consider all comments received during
the comment period and will address them in a later final rule. You
will 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 Louisiana previously been approved?
On August 5, 1992, EPA finalized a rule approving the UST program
submitted by Louisiana to be implemented by LDEQ in lieu of the Federal
program.\1\ On January 18, 1996, EPA codified the approved Louisiana
program that is subject to EPA's inspection and enforcement authorities
under RCRA sections 9005 and 9006, 42 U.S.C. 6991d and 6991e, and other
applicable statutory and regulatory provisions.\2\
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\1\ 57 FR 34519 (August 5, 1992).
\2\ 61 FR 1211 (January 18, 1996).
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G. What changes are we approving with this action?
In order to be approved, the program must provide for adequate
enforcement of compliance as described in 40 CFR 40 CFR 281.11 and part
281, subpart D. The LDEQ has broad statutory authority to regulate the
installation, operation, maintenance, closure of USTs, and UST releases
under Louisiana Revised Statutes (La. R.S.), Title 30, Subtitle II,
Environmental Quality; Chapter 1--General, Chapter 2--Department of
Environmental Quality, Chapter 2-4--Enforcement Procedure and Judicial
Review, Chapter 4--Louisiana Water Control Law, Chapter 9--Hazardous
Waste Control Law, and Chapter 12--Liability for Hazardous Substance
Remedial Action, Part I General Provisions.
Specific authorities to regulate the installation, operation,
maintenance, closure of USTs, and UST releases are found under
Louisiana Administrative Code (LAC), Title 33, Part XI. Underground
Storage Tanks, Chapter 15. Enforcement, Sections 1501.A, 1501.A.2,
1501.A.4, and 1501.B; LAC 33:XI. Chapter 5. General Operating
Requirements, Section 509; LAC 33:XI. Chapter 1. Office of the
Secretary, Chapter 7. Penalties; LAC 33:XI. Chapter 8. Expedited
Penalty Agreement; and LAC 33:XI. Underground Storage Tanks, Chapter 4.
Delivery Prohibition. The aforementioned regulations satisfy the
requirements of 40 CFR 281.40 and 281.41.\3\
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\3\ Please see the TSD located in the docket for this rulemaking
for a more in depth explanation of how the State's program satisfies
the RCRA and its corresponding regulations.
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The LDEQ Enforcement Division requires that respondents provide
notice and opportunity for public comment on all proposed settlements
of civil enforcement actions, except where immediate emergency action
is necessary to adequately protect human health, safety, and the
environment. The LDEQ Underground Storage Tank Division (USTD)
investigates and provides responses to citizen complaints about
violations. Additionally, the LDEQ Enforcement Division does not oppose
citizen intervention when permissive intervention is allowed by
statute, rule, or regulation. Requirements for public participation can
be found in the Louisiana Code of Civil Procedure, Article 1091;
La.R.S.30:2025(E)(5), La.R.S.30:2026, La.R.S. 20:2050.4(B), La.R.S.
30:2050.7(B), (C), and (D); and LAC Title 33.XI.Chapter 7 at section
715(H). Louisiana has met the public participation requirements found
in 40 CFR 281.42.
To qualify for final approval, a state's program must be ``no less
stringent'' than the Federal program which was revised on July 15, 2015
(80 FR 41566).\4\ EPA added new operation and maintenance requirements
and addressed UST systems which were deferred in the 1988 UST
regulation. The changes also added secondary containment requirements
for new and replaced tanks and piping, operator training requirements,
periodic operation and maintenance requirements for UST systems, and
requirements to ensure UST system compatibility before storing certain
biofuel blends. It removed past deferrals for emergency generator
tanks, field constructed tanks, and airport hydrant systems.
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\4\ See 40 CFR 281.11(b).
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The LDEQ made updates to their regulations to ensure that they were
no less stringent than the Federal regulations which were revised on
July 15, 2015 (80 FR 41566). Title 40 CFR 281.30 through 281.39 contain
the ``no less stringent than'' criteria that a state must meet in order
to have its UST program approved. In the State's application for
approval of its UST program, the Louisiana Attorney General certified
that it meets the requirements listed in 40 CFR 281.30 through 281.39.
EPA has relied on this certification in addition to the analysis
submitted by the State in making our determination. For further
information on EPA's analysis of the State's application, see the chart
in the Technical Support Document (TSD) contained in the docket for
this rulemaking. The corresponding State regulations are as follows:
Title 40 CFR 281.30 lists the Federal requirements for new UST
system design, construction, installation, and notification with which
a state must comply in order to be found to be no less stringent than
Federal requirements. LAC 33:XI.101. Applicability, LAC 33:XI.301.
Registration Requirements, LAC 33:XI.303. Standards for UST Systems,
LAC 33:XI.305. Installation Requirements for Partially-Deferred UST
Systems, LAC 33:XI.801. General Requirements, LAC 33:XI.509 Reporting
and Recordkeeping, and LAC 33:XI.803. Additions, Exceptions, and
Alternatives for UST Systems with Field-Constructed Tanks and Airport
Hydrant Systems require that USTs be designed, constructed, and
installed in a manner that will prevent releases for their operating
life due to manufacturing defects, structural failure, or corrosion and
be provided with equipment to prevent spills and tank overfills when
new tanks are installed or existing tanks are upgraded, unless the tank
does not receive more than 25 gallons at one time. These parts also
require UST system owners and operators to notify the implementing
agency of any new UST systems, including instances where one assumes
ownership of an existing UST.
Title 40 CFR 281.31 requires that most existing UST systems meet
the design, construction, installation, and notification requirements
of Sec. 281.30, are upgraded to prevent releases for their operating
life due to corrosion, spills, or overfills, or are permanently closed.
LAC 33:XI.303. Standards for
[[Page 34364]]
UST Systems, LAC 33:XI.801. General Requirements, and LAC 33:XI.803.
Additions, Exceptions, and Alternatives for UST Systems with Field-
Constructed Tanks and Airport Hydrant Systems contain the appropriate
requirements that UST systems be upgraded to prevent releases during
their operating life due to corrosion, spills, or overfills.
Title 40 CFR 281.32 contains the general operating requirements
that must be met in order for the State's submission to be considered
no less stringent than the Federal requirements. These requirements are
designed to prevent spills and overfills. LAC 33:XI.501. Spill and
Overfill Control, LAC 33:XI.503. Operation and Maintenance of Corrosion
Protection, LAC 33:XI.505. Compatibility, LAC 33:XI.507. Repairs
Allowed, LAC 33:XI.509. Reporting and Recordkeeping, LAC 33:XI.511.
Periodic Testing of Spill Prevention Equipment and Containment Sumps
used for Interstitial Monitoring of Piping and Periodic Inspection of
Overfill Prevention Equipment, LAX 33:XI.907.A. Assessing the Site at
Closure or Change-in-Service, LAC 33:XI.705 Release Detection
Recordkeeping, and LAC 33:XI.513. Periodic Operation and Maintenance
Walkthrough Inspections contain the necessary general operating
requirements required by 40 CFR 281.32.
Title 40 CFR 281.33 contains the requirements for release detection
that must be met in order for the State's submission to be considered
no less stringent than Federal requirements. LAC 33:XI.701. Methods of
Release Detection, LAC 33:XI.703. Requirements for Use of Release
Detection Methods, and LAC 33:XI.803. Additions, Exceptions, and
Alternatives for UST Systems with Field-Constructed Tanks and Airport
Hydrant Systems contain the necessary requirements for release
detection as required by 40 CFR 281.33.
Title 40 CFR 281.34 contains the requirements for release
reporting, investigation, and confirmation that must be met in order
for the State's submission to be considered no less stringent than
Federal requirements. LAC 33:XI.501. Spill and Overfill Control, LAC
33:XI.707. Reporting of Suspected Releases, LAC 33:XI.709.
Investigation Due to Off-Site Impacts, LAC 33:XI.711 Release
Investigation and Confirmation Steps, LAC 33:XI.715 Release Response
and Corrective Action for UST Systems Containing Petroleum, Motor Fuel,
or Hazardous Substances, and LAC 33:XI.713. Reporting and Cleanup of
Spills and Overfills contain the necessary requirements as required by
40 CFR 281.34 for release reporting, investigation, and confirmation.
Title 40 CFR 281.35 contains the requirements for release response
and corrective action that must be met in order for the State's
submission to be considered no less stringent than Federal
requirements. LAC 33:XI.715. Release Response and Corrective Action for
UST Systems Containing Petroleum, Motor Fuel, or Hazardous Substances
contains the required provisions as listed in 40 CFR 281.35 for release
response and corrective action.
Title 40 CFR 281.36 contains the requirements for out of service
UST systems and closures that must be met in order for the State's
submission to be considered no less stringent than Federal
requirements. LAC 33:XI.803. Additions, Exceptions, and Alternatives
for UST Systems with Field-Constructed Tanks and Airport Hydrant
Systems, LAC 33:XI.901. Applicability to Previously Closed UST Systems,
LAC 33:XI.903. Temporary Closure, LAC 33:XI.905. Permanent Closure and
Change-in-Service, and LAC 33:XI.907. Assessing the Site at Closure or
Change-in-Service contain the necessary requirements as listed in 40
CFR 281.36 for out of service UST systems and closures.
Title 40 CFR 281.37 contains the requirements for financial
responsibility for UST systems containing petroleum that must be met in
order for the State's submission to be considered no less stringent
than Federal requirements. LAC 33:XI.Chapter 11. Financial
Responsibility contains the necessary requirements as listed in 40 CFR
281.37 for financial responsibility for UST systems.
Title 40 CFR 281.38 contains the requirements for lender liability
that must be met in order for the State's submission to be considered
no less stringent than Federal requirements. LAC 33:XI.103. Definitions
and La. R.S. 30:2277(4) contain the requirements for lender liability
as listed in 40 CFR 281.38.
Title 40 CFR 281.39 contains the requirements for operator training
that must be met in order for the State's submission to be considered
no less stringent than Federal requirements LAC 33:XI.Chapter 6.
Operator Training contains the requirements for operator training as
required by 40 CFR 281.39.
H. Where are the revised rules different from the Federal rules?
Broader in Scope Provisions
The following statutory and regulatory provisions are considered
broader than the Federal program:
Louisiana's definition of owner (LAC 33:XI.103. Definitions)
includes the current owner of the land under which the tank is or was
buried, any legal owner of the tank, any known operator of the tank,
any lessee, and any lessor; and the definition provides that if one
person defined as an owner complies it shall be deemed compliance by
all persons defined as owners. The Federal definition does not include
operators, lessees, or lessors as owners; thus, these elements of the
State definition are broader in scope than the Federal program.
Louisiana provides definitions for on staff, registered tank,
registration certificate, response action contractor and technical
services in LAC 33:XI.103 that apply to state-specific program elements
outside the scope of the Federal program.
Louisiana requires any person who acquires a UST system to pay all
current and unpaid annual fees along with any late payment fees prior
to receiving a registration certificate in LAC 33:XI.301.C.6. These
fees are outside of the scope of the Federal program.
Louisiana requires annual fees for USTs in LAC 33:XI.307. These
fess are outside of the scope of the Federal program.
Louisiana has specific regulations that pertain to the use of the
Louisiana Motor Fuels Underground Storage Tank Trust Fund (MFUSTTF)
(LAC 33:XI.1121). Louisiana requires the use of department-approved
response action contractors for all assessment and remediation
activities associated with UST releases that are covered by the MFUSTTF
(LAC 33:XI. Chapter 12).
The last sentence of LAC 33:XI.715.A which requires all
investigations and corrective actions to be conducted in accordance
with the state-specific out of scope LAC 33:I. Chapter 13. Risk
Evaluation/Corrective Action Program.
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. 40 CFR 281.12(a)(3)(ii).
More Stringent Provisions
The following statutory and regulatory provisions are considered
more stringent in coverage than the Federal program:
Louisiana requires that UST owners use a specific registration form
(UST-REG) which is more detailed than the EPA registration form. For
example, a to-scale site diagram must accompany the UST-REG form for
all installations and renovations. An updated UST-REG form must be
submitted to LDEQ any
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time any of the information on the previously submitted registration
form changes, and the State requires a phase-in schedule to ensure that
all UST owners have submitted a UST-REG form prior to September 20,
2021 (LAC 33:XI.301.C.1 through 301.C.3). Additionally, Louisiana
requires UST owners to keep a current copy of their registration form
and registration certificate (LAC 33:XI.301.C.8 and 9).
Louisiana requires all UST systems installed between December 22,
1988 and December 20, 2008 located within 50 feet of an active or
abandoned water well to meet the secondary containment requirements for
hazardous substance UST systems (LAC 33:XI.303.B).
Louisiana requires all underground storage tanks and piping
installed after December 20, 2008 to be secondarily contained and use
interstitial monitoring (LAC 33:XI.303.C.1).
Louisiana requires under-dispenser containment for dispensers
installed or replaced (when certain conditions apply) after December
20, 2008 (LAC 33:XI.303.D.4).
Louisiana requires secondary containment for submersible turbine
pumps installed under certain conditions after December 20, 2008 (LAC
33:XI.303.D.5).
Louisiana regulations require that only State certified installers
may certify the installation of a UST in Louisiana (LAC
33:XI.303.D.6.b) whereas in the Federal regulations (Sec. 280.20(e))
there are other allowable options.
Louisiana requires annual tank tightness testing for tanks that
have had corrosion protection installed when the tank was over 10 years
old and when tank integrity assessment records cannot be provided (LAC
33:XI.303.E.3.b.vi).
Louisiana requires that UST owners inspect, by removal, overfill
devices within seven days of an overfill event (LAC 33:XI.501.D). Tank
overfills caused by tank or manifold piping issues are not allowed in
Louisiana, and the UST system must be immediately taken out of service
and repaired, replaced, permanently closed, or placed into temporary
closure following the procedures outlined in LAC 33:XI.711.A.1.a.ii
(LAC 33:XI.501.E).
Louisiana requires UST owners and operators to notify the
department prior to a repair unless the repair is an emergency repair,
then notification is provided to the department within 30 days of the
emergency. (LAC 33:XI.507.A.1).
Louisiana requires that after January 20, 1992, only contractors
certified by the department under LAC 33:XI.Chapter 13 can perform
certain UST repairs (LAC 33:XI.507.A.2).
Louisiana requires that if 25% or more of a piping run is replaced
or repaired, the entire piping run must be replaced with secondarily
contained piping and interstitial monitoring must be conducted on the
piping run (LAC 33:XI.303.D.2.g and LAC 33:XI.507.A.7).
Louisiana requires retaining walkthrough inspection records for
three years (LAC 33:XI.513.B).
Louisiana requires annual testing of shear valves to ensure that
they operate properly (LAC 33:XI.515).
At LAC 33:XI.609 the State requires retraining Class A and B
operators every three years.
Louisiana requires that the annual line leak detector tests ensure
that the submersible turbine pumps do not run continuously
(LAC33:XI.701.B.1.c.).
Louisiana requires UST owners and operators of temporarily closed
UST systems that have internal liners that are not inspected within 1
year of the inspection due date or cannot be repaired in accordance
with a code of practice permanently close the UST system (LAC
33:XI.903.A.4.a).
Louisiana requires all UST systems that store fuel solely for use
by emergency power generators installed on or after August 9, 2009, to
be secondarily contained and use interstitial monitoring (LAC
33:XI.101.A.1.c).
Louisiana requires that failed equipment must be repaired or
replaced within 30 days of failing the test or inspection unless an
alternative timeframe is granted by the department in writing (LAC
33:XI.511.D.1).
Louisiana requires that failed spill prevention equipment or
containment sumps used for interstitial monitoring be repaired or
replaced within 30 days of failing an inspection unless an alternative
timeframe is granted by the department in writing (LAC 33:XI.513.C.1).
Louisiana has a specific minimum recordkeeping requirement for each
release detection method (LAC 33:XI.705.A.2.a-l).
Louisiana requires UST owners submit records of results of the
investigation at permanent closure (LAC 33:XI.509.A.5), results of
temporary closure site assessments (LAC 33:XI.509.A.6), and
notifications before and after repairs (LAC 33:XI.509.A.8) to the
department.
Louisiana requires that UST owners maintain records of corrosion
expert's design documentation for field-installed corrosion protection
systems (LAC 33:XI.509.B.1), most current registration forms (LAC
33:XI.509.B.5), type and construction of tank, piping, leak detection
equipment, corrosion protection equipment, and spill and overfill
equipment in use (LAC 33:XI.509.B.6), and shear valve inspection and
testing (LAC 33:XI.509.B.11).
Louisiana prohibits the use of monthly inventory control or manual
tank gauging (for certain size tanks) in combination with tightness
testing (or its equivalent) conducted every five years as an acceptable
form of monthly release detection after December 20, 2018 (LAC
33:XI.703.B.1.a.i).
Louisiana requires UST owners, operators, employees, agents,
contractors, or assigns having knowledge of any of the listed
conditions to notify the department and owners and operators to follow
the release investigation and confirmation steps outlined in LAC
33:XI.711 whenever released substances are discovered at the UST site
or surrounding area (LAC 33:XI.707.A.1), whenever an unusual operating
condition is discovered (LAC 33:XI.707.A.2), and whenever a release
detection method indicates that a release may have occurred or the
interstitial space may have been compromised (LAC 33:XI.707.A.3).
Louisiana requires UST owners and operators of temporarily closed
UST systems with galvanic systems that are not tested within 1 year of
the test due date or are not repaired within 1 year of failing a CP
test permanently close the UST system (LAC 33:XI.903.A.3.a).
Louisiana requires UST owners and operators submit a notification
to the department whenever UST systems have been temporarily closed
(LAC 33:XI.903.C.3).
Louisiana specifies that UST systems that do not meet new tank
standards, have not been upgraded, and have been in temporary closure
for more than 6 months must be permanently closed (LAC 33:XI.903.D).
Louisiana requires UST owners and operators conduct the release
investigation and confirmation steps outlined in LAC 33:XI.711.A.1 in
the event that the UST owner or operator goes directly into corrective
action after a release occurs (LAC 33:XI.715.C.1.g).
Louisiana requires UST owners and operators to conduct a site
assessment whenever all UST systems located in the same tank hold at a
facility have been in temporary closure for 24 months under certain
conditions (LAC 33:XI.903.E).
Louisiana requires UST owners and operators conduct tank, line, and
leak detector testing within 5 days of bringing a temporarily closed
UST system back into service (LAC 33:XI.903.F).
[[Page 34366]]
Louisiana requires that UST owners and operators to notify the
department prior to UST system installation in LAC 33:XI.303.D.6.c.
Louisiana requires UST owners and operators submit a notification
to the department within 30 days of bringing a temporarily closed UST
system back into service (LAC 33:XI.903.G).
Louisiana requires UST owners and/or certified workers notify the
department prior to any UST system closure-critical junctures (LAC
33:XI.905.A.2).
Louisiana requires use of DEQ-approved certified workers for all
UST system closure-critical junctures (LAC 33:XI.905.A.3).Louisiana
prohibits the re-use of single-walled piping that was attached to a
tank that is permanently closed (LAC 33:XI.905.B).
Louisiana requires UST owners and operators of temporarily closed
UST systems with impressed current systems that are inoperative for
more than 6 months or not repaired within 9 months of failing a CP test
have the CP system repaired, re-tested, and recommissioned under
supervision of a corrosion expert within 90 days or permanently close
the UST system (LAC 33:XI.903.A.1.a).
Louisiana requires conducting UST system closure site assessments
in accordance with the department's UST closure guidance document in
order to determine if there are any present or any past releases, does
not allow the use of release detection device sampling to satisfy the
closure assessment requirement, and requires UST owners and operators
submit the results of the closure site assessment to the department
within 60 days following permanent closure or change-in-service (LAC
33:XI.907.A).
I. How does this action affect Indian Country (18 U.S.C. 1151) in
Louisiana?
Louisiana is not authorized to carry out its Program in Indian
Country (18 U.S.C. 1151) within the State. This authority remains with
EPA. 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 Louisiana's UST program?
The EPA incorporated by reference Louisiana's then approved UST
program effective March 18, 1996 (61 FR 1211; January 18, 1996). In
this document, the EPA is revising 40 CFR 282.68 to include the
approval revision actions.
C. What codification decisions have we made in this rule?
In this rule, we are finalizing regulatory text that includes
incorporation by reference. In accordance with the requirements of 1
CFR 51.5, we are finalizing the incorporation by reference of the
Louisiana 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 www.regulations.gov and in hard
copy at the EPA Region 6 office (see the ADDRESSES section of this
preamble for more information).
The purpose of this Federal Register document is to codify
Louisiana'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 Louisiana UST program addressed in this direct final
rule become final. The document incorporates by reference Louisiana's
UST regulations and clarifies which of these provisions are included in
the approved and federally enforceable program. By codifying the
approved Louisiana 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 Louisiana program.
The EPA is incorporating by reference the Louisiana approved UST
program in 40 CFR 282.68. Section 282.68(d)(1)(i)(A) incorporates by
reference for enforcement purposes the State's regulations. Section
282.68 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.
D. What is the effect of Louisiana's codification 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. With respect to these actions, EPA will rely on
Federal sanctions, Federal inspection authorities, and Federal
procedures rather than the state authorized analogues to these
provisions. Therefore, the EPA is not incorporating by reference such
particular, approved Louisiana procedural and enforcement authorities.
Section 282.68(d)(1)(ii) of 40 CFR lists those approved Louisiana
authorities that would fall into this category.
E. What State provisions are not part of the codification?
The public also needs to be aware that some provisions of the
State's UST program are not part of the federally approved State
program. Such provisions are not part of the RCRA Subtitle I program
because they are ``broader in 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. Section 282.68(d)(1)(iii) of the codification
simply lists for reference and clarity the Louisiana 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 today. 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 Reviews
This action only applies to Louisiana's UST Program requirements
pursuant to RCRA Section 9004 and imposes no requirements other than
those imposed by State law. It complies with applicable EOs and
statutory provisions as follows:
[[Page 34367]]
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, October 4,
1993) and 13563 (76 FR 3821, January 21, 2011). This action approves
and codifies State requirements for the purpose of RCRA section 9004
and imposes no additional requirements beyond those imposed by State
law. Therefore, this action is not subject to review by OMB.
B. Executive Order 13771: Reducing Regulations and Controlling
Regulatory Costs
This action is not an Executive Order 13771 (82 FR 9339, February
3, 2017) regulatory action because actions such as this final approval
of Louisiana'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, August 10, 1999), because it merely approves and codifies State
requirements as part of the State RCRA underground storage tank program
without altering the relationship or the distribution of power and
responsibilities established by RCRA.
E. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
This action also is not subject to Executive Order 13045 (62 FR
19885, April 23, 1997), because it is not economically significant and
it does not make decisions based on environmental health or safety
risks.
F. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This rule is not subject to Executive Order 13211, ``Actions
Concerning Regulations that Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355, May 22, 2001) because it is not a
``significant regulatory action'' as defined under Executive Order
12866.
G. National Technology Transfer and Advancement Act
Under RCRA section 9004(b), EPA grants a State's application for
approval as long as the State meets the criteria required by RCRA. It
would thus be inconsistent with applicable law for EPA, when it reviews
a State approval application, to require the use of any particular
voluntary consensus standard in place of another standard that
otherwise satisfies the requirements of RCRA. Thus, the requirements of
section 12(d) of the National Technology Transfer and Advancement Act
of 1995 (15 U.S.C. 272 note) do not apply.
H. Executive Order 12988: Civil Justice Reform
As required by section 3 of Executive Order 12988 (61 FR 4729,
February 7, 1996), in issuing this rule, EPA has taken the necessary
steps to eliminate drafting errors and ambiguity, minimize potential
litigation, and provide a clear legal standard for affected conduct.
I. Executive Order 12630: Governmental Actions and Interference With
Constitutionally Protected Property Rights
EPA has complied with Executive Order 12630 (53 FR 8859, March 15,
1988) by examining the takings implications of the rule in accordance
with the ``Attorney General's Supplemental Guidelines for the
Evaluation of Risk and Avoidance of Unanticipated Takings'' issued
under the Executive order.
J. Paperwork Reduction Act
This rule does not impose an information collection burden under
the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
et seq.). ``Burden'' is defined at 5 CFR 1320.3(b).
K. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low Income Populations
Executive Order 12898 (59 FR 7629, February 16, 1994) establishes
Federal executive policy on environmental justice. Its main provision
directs Federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States. Because this rule approves pre-
existing State rules which are at least equivalent to, and no less
stringent than existing Federal requirements, and imposes no additional
requirements beyond those imposed by State law, and there are no
anticipated significant adverse human health or environmental effects,
the rule is not subject to Executive Order 12898.
L. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801-808, generally provides
that before a rule may take effect, the agency promulgating the rule
must submit a rule report, which includes a copy of the rule, to each
House of the Congress and to the Comptroller General of the United
States. EPA will submit a report containing this document and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication in the Federal Register. A major rule cannot take effect
until 60 days after it is published in the Federal Register. This
action is not a ``major rule'' as defined by 5 U.S.C. 804(2). However,
this action will be effective August 3, 2020 because it is a direct
final rule.
List of Subjects in 40 CFR Part 282
Environmental protection, Administrative practice and procedure,
Hazardous substances, Incorporation by reference, Insurance,
Intergovernmental relations, Oil pollution, Petroleum, Reporting and
recordkeeping requirements, Surety bonds, Water pollution control,
Water supply.
Dated: April 30, 2020.
Kenley McQueen,
Regional Administrator, EPA Region 6.
For the reasons set forth in the preamble, EPA is amending 40 CFR
part 282 as follows:
[[Page 34368]]
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. 282.68 to read as follows:
Sec. 282.68 Louisiana State-Administered Program.
(a) History of the approval of Louisiana's program. The State of
Louisiana 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
Louisiana Department of Environmental Quality, was approved by EPA
pursuant to 42 U.S.C. 6991c and part 281 of this chapter. EPA published
the notice of final determination approving the Louisiana underground
storage tank base program effective on September 4, 1992. A subsequent
program revision application was approved effective on August 3, 2020.
(b) Enforcement authority. Louisiana has primary responsibility for
administering and enforcing its federally approved underground storage
tank 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) Retaining program approval. To retain program approval,
Louisiana must revise its approved 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 Louisiana 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 program approval. Louisiana has final approval for the
following elements of its program application originally submitted to
EPA and approved effective September 4, 1992, and the program revision
application approved by EPA effective on August 3, 2020.
(1) State statutes and regulations--(i) Incorporation by reference.
The provisions cited in this paragraph (d)(1)(i) are incorporated by
reference as part of the underground storage tank 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 obtain copies of Louisiana UST
regulations that are incorporated by reference in this paragraph
(d)(1)(i) from the Louisiana Office of the State Register, P.O. Box
94095, Baton Rouge, LA 70804-9095; Phone number: (225) 342-5015;
website: https://www.doa.la.gov/Pages/osr/lac/LAC-33.aspx; or Louisiana
Department of Environmental Quality's website: http://www.deq.louisiana.gov/resources/category/regulations-lac-title-33. You
may inspect all approved material at the EPA Region 6, 1201 Elm Street,
Suite #500, Dallas, Texas 75270 (phone number (214) 665-2239) or the
National Archives and Records Administration (NARA). For information on
the availability of the material at NARA, email [email protected]
or go to http://www.archives.gov/federal-register/cfr/ibr-locations.html.
(A) ``Louisiana Regulatory Requirements Applicable to the
Underground Storage Tank Program, September 2019''. Those provisions
are listed in appendix A to this part.
(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) Louisiana Revised Statutes, Title 30, Subtitle II,
Environmental Quality (Environmental Quality Act):
(i) Chapter 2. Department of Environmental Quality, Section 2011.
Department of Environmental Quality created; duties; powers; structure,
paragraphs (A) through (C), (D) introductory paragraph through (D)(10),
(D)(13) through (D)(15), (D)(17) through (D)(23), (D)(25), and (E)
through (G); Section 2012. Enforcement inspections; Section 2025.
Enforcement; Section 2026. Citizen suits; Section 2030. Confidential
information; restricted access via the internet; Section 2043. Public
records; forms and methods; electronic signatures.
(ii) Chapter 2-A. Enforcement Procedure and Judicial Law, Section
2050.4. Enforcement; final action; Section 2050.7. Enforcement;
settlement or compromise; Section 2050.8. Enforcement; cease and desist
orders.
(iii) Chapter 4. Louisiana Water Control Law, Section 2077.
Remediation of pollution;
(iv) Chapter 9. Hazardous Waste Control Law, Section 2194.
Underground Storage Tanks; registration, paragraphs (C) introductory
paragraph, (B)(6), (B)(8), (B)(9), (B)(15), and (C) through (E);
Section 2194.1. Prohibitions; Section 2195.9 Financial responsibility;
2195.10 Financial responsibility for noncompliance; 2195.11 Voluntary
cleanup; private contracts; exemptions.
(v) Chapter 12, Liability for Hazardous Substance Remedial Action,
Part I. General provisions, Section 2277. Defenses, Subsection (4).
(2) Louisiana Code of Civil Procedure Section 4 Intervention,
Article 1091 Third person may intervene.
(B) The regulatory provisions include:
(1) Louisiana Administrative Code, Title 33; effective September
20, 2018:
(i) Part I. Office of the Secretary, Chapter 7--Penalty
Regulations, Chapter 8--Expedited Penalty Regulations, Chapter 13--Risk
Evaluation/Corrective Action Program Regulations, Chapter 39--
Notification Regulations and procedures for Unauthorized Discharges,
section 3915 Notification Requirements for Unauthorized Discharges That
Cause Emergency Conditions and section 3923 Notification Requirements
for Other Regulatorily Required Reporting.
(ii) Part XI. Underground Storage Tanks, Chapter 3, section 301.C.9
through C.12; Chapter 4 Delivery Prohibition, section 401 purpose and
section 403 delivery prohibition of regulated substances to underground
storage tank systems; Chapter 7. Methods of Release Detection and
Release reporting, Investigation, Confirmation, and Response, section
715.H public participation; Chapter 15. Enforcement.
(2) [Reserved]
(iii) Provisions not incorporated by reference. The following
specifically identified sections and rules applicable to the Louisiana
underground storage tank program are broader in coverage than the
Federal program, are not part of the approved program, and are not
incorporated by reference in this section for enforcement purposes:
(A) Louisiana Revised Statutes, Title 30, Subtitle II,
Environmental Quality (Environmental Quality Act).
(B) Louisiana Administrative Code, Title 33, Part XI. Underground
Storage Tanks, Chapter 1, Section 103, definitions of owner (as it
refers to operators, lessees, or lessors as owners),
[[Page 34369]]
on staff, registered tank, registration certificate, response action
contractor, and technical services; Chapter 3, Sections 301. C.6,
Section 307; Chapter 7, Section 715.A; Chapter 11, Section 1121;
Chapter 12; Chapter 13.
(2) Statement of legal authority. The Attorney General's
Statements, signed by the Attorney General of Louisiana on September
12, 1991 and September 27, 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.
(3) Demonstration of procedures for adequate enforcement. The
``Demonstration of Procedures for Adequate Enforcement'' submitted as
part of the original application on October 9, 1991 and as part of the
program revision application for approval on October 2, 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 October 9,
1991 and as part of the program revision application on October 2,
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 6 and the Louisiana Department of Environmental Quality,
signed by the EPA Regional Administrator on May 8, 2019 though not
incorporated by reference, is referenced as part of the approved
underground storage tank program under subtitle I of RCRA, 42 U.S.C.
6991 et seq.
0
3. Appendix A to part 282 is amended by revising the entry for
Louisiana to read as follows:
Appendix A to Part 282--State Requirements Incorporated by Reference in
Part 282 of the Code of Federal Regulations
* * * * *
Louisiana
(a) The regulatory provisions include:
Louisiana Administrative Code, Title 33, Part XI. Underground
Storage Tanks; effective September 20, 2018:
1. Chapter 1. Program Applicability and Definitions
Section 101. Applicability
Section 103. Definitions except for sections a.i, iv, and v of the
definition of owner; and the definitions of on staff, registered
tank, response action contractor, and technical services
2. Chapter 3. Registration Requirements, Standards, and Fee Schedule
Section 301. Registration Requirements, all sections except 301.C.6
Section 303. Standards for UST Systems
Section 305. Installation Requirements for Partially-Deferred UST
Systems
3. Chapter 5. General Operating Requirements
Section 501. Spill and overfill Control
Section 503. Operation and Maintenance of Corrosion Protection
Section 505. Compatibility
Section 507. Repairs Allowed
Section 509. Reporting and Recordkeeping
Section 511. Periodic Testing of Spill Prevention Equipment and
Containment Sumps used for Interstitial Monitoring of Piping and
Periodic Inspection of Overfill Prevention Equipment
Section 513. Periodic Operation and Maintenance Walkthrough
Inspection
4. Chapter 6. Training Requirements for Underground Storage Tank System
Operators
Section 601. Purpose
Section 603. Underground Storage Tank Operator Classes
Section 605. Acceptable UST Operator Training and Certification
Processes
Section 607. Underground Storage Tank Operator Training Deadlines
Section 609. Underground Storage Tank Operator Training Frequency
Section 611. Documentation of Underground Storage Tank Operator
Training
5. Chapter 7. Methods of Release Detection and Release Reporting,
Investigation, Confirmation, and Response
Section 701. Methods of Release Detection
Section 703. Requirements for Use of Release Detection Methods
Section 705. Release Detection Recordkeeping
Section 707. Reporting of Suspected Releases
Section 709. Investigation Due to Off-Site Impacts
Section 711. Release Investigation and Confirmation Steps
Section 713. Reporting and Cleanup of Spills and Overfills
Section 715. Release Response and Corrective Action for UST Systems
Containing Petroleum, Motor Fuel, or Hazardous Substances, all
sections except the last sentence of 715.A, and 715.H
6. Chapter 8. UST Systems with Field-Constructed tanks and Airport
Hydrant Fuel Distribution Systems
Section 801. General Requirements
Section 803. Additions, Exceptions, and Alternatives for UST Systems
with Field-Constructed Tanks and Airport Hydrant Systems
7. Chapter 9. Out-of-Service UST Systems and Closure
Section 901. Applicability to Previously Closed UST Systems
Section 903. Temporary Closure
Section 905. Permanent Closure and Changes-in-Service
Section 907. Assessing the Site at Closure or Change-in-Service
8. Chapter 11. Financial responsibility
Section 1101. Applicability
Section 1103. Compliance Dates
Section 1105. Definition of Terms
Section 1107. Amount and Scope of Required Financial Responsibility
Section 1109. Allowable Mechanisms and Combinations of Mechanisms
Section 1111. Financial Test of Self-Insurance
Section 1113. Guarantee
Section 1115. Insurance and Risk Retention Group Coverage
Section 1117. Surety Bond
Section 1119. Letter of Credit
Section 1123. Trust Fund
Section 1125. Standby Trust Fund
Section 1127. Substitution of Financial Assurance Mechanisms by
Owner or Operator
Section 1129. Cancellation or Nonrenewal by a Provider of Financial
Assurance
Section 1131. Reporting by Owner or Operator
Section 1133. Recordkeeping
Section 1135. Drawing on Financial Assurance Mechanisms
Section 1137. Release from the Requirements
Section 1139. Bankruptcy or Other Incapacity of Owner or Operator or
provider of Financial Assurance
Section 1141. Replenishment of Guarantees, Letters of Credit, or
Surety Bonds
(b) Copies of the Louisiana UST regulations that are
incorporated by reference are available from the Louisiana Office of
the State Register, P.O. Box 94095, Baton Rouge, LA 70804-9095;
Phone number: (225) 342-5015; website: https://www.doa.la.gov/Pages/osr/lac/LAC-33.aspx; or Louisiana Department of Environmental
Quality's website: http://www.deq.louisiana.gov/resources/category/regulations-lac-title-33.
* * * * *
[FR Doc. 2020-09941 Filed 6-3-20; 8:45 am]
BILLING CODE 6560-50-P