Section 282.92 - Tennessee State-Administered Program(a)History of the approval of Tennessee's program. The State of Tennessee (Tennessee or State) is approved to administer and enforce a petroleum underground storage tank (UST) program in lieu of the Federal program under subtitle I of the Resource Conservation and Recovery Act of 1976 (RCRA), as amended, 42 U.S.C. 6991 et seq. The State's Petroleum Underground Storage Tank Program (Petroleum UST Program), as administered by the Tennessee Department of Environment and Conservation (TDEC), was approved by the EPA pursuant to 42 U.S.C. 6991c and part 281 of this chapter. The EPA approved the Tennessee Petroleum UST Program on November 17, 1998, and it was effective on January 15, 1999. A subsequent program revision was approved by the EPA and became effective November 8, 2021.(b)Enforcement authority. Tennessee has primary responsibility for administering and enforcing its federally approved Petroleum UST Program. However, the EPA retains the authority to exercise its corrective action, inspection, and enforcement authorities under sections 9003(h), 9005, and 9006 of subtitle I of RCRA, 42 U.S.C. 6991b(h) , 6991d , and 6991e , as well as under any other applicable statutory and regulatory provisions. The EPA also retains all authority to operate the hazardous substance underground storage tank program.(c)Retention of program approval. To retain program approval, Tennessee must revise its approved Petroleum UST Program to adopt new changes to the Federal subtitle I program which make it more stringent, in accordance with section 9004 of RCRA, 42 U.S.C. 6991c , and 40 CFR part 281, subpart E. If Tennessee obtains approval for revised requirements pursuant to section 9004 of RCRA, 42 U.S.C. 6991c , the newly approved statutory and regulatory provisions will be added to this subpart and notice of any change will be published in the FEDERAL REGISTER.(d)Final approval. Tennessee has final approval for the following elements of its Petroleum UST Program submitted to the EPA and approved effective January 15, 1999, and the program revisions approved by the EPA effective on November 8, 2021. (1)State statutes and regulations-(i)Incorporation by reference. The Tennessee materials cited in this paragraph (d)(1)(i) and listed in appendix A to this part, are incorporated by reference as part of the Petroleum UST Program under subtitle I of RCRA, 42 U.S.C. 6991 et seq. The Director of the Federal Register approves this incorporation by reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51 . You may access copies of the Tennessee statutes and regulations that are incorporated by reference in this paragraph (d)(1)(i) from the Tennessee Department of Environment and Conservation, Division of Underground Storage Tanks, William R. Snodgrass Tennessee Tower, 12th Floor, 312 Rosa L. Parks Ave., Nashville, TN 37243; Phone number: (615) 532-0730; website: https://www.tn.gov/environment/program-areas/ust-underground-storage-tanks/ust/act-rules-and-policies.html. You may inspect all approved material at the EPA Region 4, 61 Forsyth Street SW, Atlanta, Georgia 30303; Phone number: (404) 562-9900; or the National Archives and Records Administration (NARA), email: fedreg.legal@nara.gov; website: https://www.archives.gov/federal-register/cfr/ibr-locations.html.(A) "Tennessee Statutory Requirements Applicable to the Petroleum Underground Storage Tank Program," dated May 11, 2021.(B) "Tennessee Regulatory Requirements Applicable to the Petroleum Underground Storage Tank Program," dated May 11, 2021.(ii)Legal basis. The EPA considered the following statutes and regulations which provide the legal basis for the State's implementation of the Petroleum UST Program, but these provisions do not replace Federal authorities. Further, these provisions are not being incorporated by reference, unless the provisions place requirements on regulated entities. (A)Tennessee Petroleum Underground Storage Tank Act (the UST Act) of 1988, Tenn. Code Ann. sections 68-215-101 to 68-215-204 (2018).(1) Section 68-215-106(c), (e), and (f), insofar as these provisions provide for delivery prohibition and enforcement of the Petroleum UST Program.(2) Section 68-215-106(d), insofar as it provides for criminal prosecution under the UST Act.(3) Section 68-215-107(a), insofar as it establishes authority over the placement and storage of petroleum substances in underground storage tanks, release prevention, release detection, release correction, closure, and post-closure care of petroleum underground storage tanks in Tennessee.(4) Section 68-215-107(b), insofar as it provides for the issuance of orders to enforce the Petroleum UST Program.(5) Section 68-215-107(c) and (d), insofar as these provisions identify specific authorities for release response and corrective actions, including in response to an imminent and substantial danger.(6) Section 68-215-107(e), insofar as it identifies specific authorities for compliance monitoring and enforcement.(7) Section 68-215-107(f), insofar as it provides for the promulgation of regulations for the implementation of the Petroleum UST Program.(8) Section 68-215-107(g)(1), insofar as it provides evaluation considerations for the State's approval of a cleanup plan.(9) Section 68-215-108, insofar as it provides for the protection of "proprietary" information and sharing of information in the files obtained or used in the administration of the Petroleum UST Program with the EPA.(10) Section 68-215-114, insofar as it provides for the issuance and enforcement of correction orders; and establishes liability costs for responsible parties.(11) Section 68-215-116, insofar as it provides for an assessment of penalties under the UST Act.(12) Section 68-215-117, insofar as it provides for immunity from liability under the UST Act in certain circumstances.(13) Section 68-215-118, insofar as it identifies authorities for enforcement response, specifically authority over governmental entities, under the UST Act.(14) Section 68-215-119, insofar as it identifies authorities for enforcement response and provides for review of orders and appeal of any determination by the Tennessee Department of Environment and Conservation (TDEC) under the UST Act.(15) Section 68-215-120, insofar as it provides for criminal prosecution under the UST Act.(16) Section 68-215-121, insofar as it identifies authorities for enforcement response and public participation, provides for assessment of civil penalties and damages, and establishes third-party intervention under the UST Act.(17) Section 68-215-122, insofar as it identifies authorities for enforcement response and provides for injunctions as a legal remedy under the UST Act.(18) Section 68-215-123, insofar as it identifies specific authorities for compliance monitoring and public participation and provides for any person to submit a complaint against any person for violating the UST Act.(19) Section 68-215-126, insofar as it establishes authority in relation to local laws or regulations.(20) Section 68-215-127, insofar as it establishes authority over releases of petroleum from underground storage tanks and creates the soil and groundwater classification and cleanup criteria.(B)Tennessee's Underground Storage Tank Regulations, Tenn. Comp. R. & Regs. 0400-18-01-.01 to .17 (2018). (1) 0400-18-01-.01(5)(e), insofar as it provides for the State's sharing of information with the EPA.(2) 0400-18-01-.03(2), insofar as it identifies specific authorities for compliance monitoring and provides for reporting and maintenance of records.(3) 0400-18-01-.06(11), insofar as it provides for public participation in the corrective action process.(4) 0400-18-01-.08(20) and (21), insofar as these provisions provide procedures governing the forfeiture of financial assurance and release of financial assurance mechanism documents.(5) 0400-18-01-.09(17), insofar as it provides for assessment of civil penalties for failure to comply with orders issued under the UST Act.(6) 0400-18-01-.11, insofar as it provides for appeal of any determination by TDEC under the provisions of Tennessee's Underground Storage Tank Regulations, procedures for contested cases, and the State Administrative Procedures Act.(7) 0400-18-01-.15, insofar as it identifies specific authorities for enforcement response and delivery prohibition requirements.(C)Tennessee's Uniform Administrative Procedures Act, Part 3-Contested Cases, Tenn. Code Ann. sections 4-5-301 to 4-5-325 (2018).(1) Section 4-5-308(a) through (c), insofar as these provisions identify authorities for public participation and provide for the filing of pleadings, briefs, motions, and other documents.(2) Section 4-5-310, insofar as it identifies authorities for public participation and provides for intervention in contested case proceedings.(3) Section 4-5-313, insofar as it identifies authorities for enforcement response and provides procedures for contested cases.(iii)Other provisions not incorporated by reference. The following statutory and regulatory provisions applicable to the Tennessee Petroleum UST Program are broader in scope than the Federal program or external to the State UST program approval requirements. Therefore, these provisions are not part of the approved Petroleum UST Program and are not incorporated by reference in this section: (A)Tennessee Petroleum Underground Storage Tank Act (the UST Act) of 1988, Tenn. Code Ann. sections 68-215-101 to 68-215-204 (2018).(1) Section 68-215-102 is external insofar as it contains the State's public policy for regulating underground storage tanks.(2) Section 68-215-103(17)(A)(iii) and (iv), as to the definition of "Responsible party," insofar as these provisions include entities other than owners and operators, as these terms are defined in 40 CFR 280.12 .(3) Section 68-215-104(3), insofar as it refers to the payment of fees associated with the Petroleum UST Program.(4) Section 68-215-104(4), insofar as it refers to reimbursement from Tennessee's Petroleum Underground Storage Tank Fund (State Fund).(5) Section 68-215-106(a)(6), insofar as it places notification requirements on persons other than owners and operators, as these terms are defined in 40 CFR 280.12 .(6) Section 68-215-106(b)(1) and (2) are external insofar as these provisions contain obligations on the State agency, not a regulated entity.(7) Section 68-215-109, insofar as it establishes annual tank fees and provides for promulgation of regulations regarding these fees.(8) Section 68-215-110(b) through (h), insofar as these provisions provide for the creation of the State Fund and environmental assurance fee.(9) Section 68-215-111, insofar as it provides criteria for the qualified expenditure of funds, requirements for fund eligibility, and promulgation of regulations regarding the State Fund.(10) Section 68-215-115, insofar as it provides the procedures for the State to recover its costs for investigation, identification, containment, or cleanup of a particular site.(11) Section 68-215-125, insofar as it prohibits the State Fund from being considered an insurance company or a member of the Tennessee Insurance Guaranty Association.(12) Section 68-215-129, insofar as it provides criteria for cleanup contracts and reimbursement from the State Fund.(B)Tennessee's Underground Storage Tank Regulations, Tenn. Comp. R. & Regs. 0400-18-01-.01 to .17 (2018). (1) 0400-18-01-.01(4)1.(iii) and (iv), as to the definition for "Responsible party," insofar as these provisions include entities other than owners and operators, as these terms are defined in 40 CFR 280.12 . (2) 0400-18-01-.01(5)(a) through (d) are external insofar as these provisions contain obligations on the State agency with respect to proprietary information, not a regulated entity.(3) 0400-18-01-.02(1)(a)2., insofar as it requires owners to submit annual tank fees as part of the notification requirement.(4) 0400-18-01-.02(4)(c)6.(ii)(II)IV., insofar as it refers to tank fees and late penalties.(5) 0400-18-01-.04(1)(e), insofar as it requires inspection of dispensers.(6) 0400-18-01-.05(1)(b) and (c), insofar as these provisions contain requirements for coverage and reimbursement from the State Fund.(7) 0400-18-01-.06(2)(b)1., as to the text "The fund shall not reimburse the owner, operator, and/or other responsible party of [the] petroleum UST system for the cost of generating duplicate data," insofar as this text pertains to the State Fund.(8) 0400-18-01-.06(3)(f), insofar as it provides eligibility requirements for the State Fund.(9) 0400-18-01-.06(7)(c), insofar as it provides for reimbursement from the State Fund.(10) Appendix 0400-18-01-.07-A, as to the text "transport and" in (4)(a) and (4)(e), insofar as these provisions pertain to the transportation of a tank.(11) 0400-18-01-.08(5)(a) and (b), insofar as these provisions establish eligibility requirements for the State Fund.(12) 0400-18-01-.09(1) through (16), insofar as these provisions regulate disbursements, coverage, and fund eligibility regarding the State Fund and provide for approval of corrective action contractors and recovery of State costs.(13) 0400-18-01-.09(18) is external insofar as it pertains to the severability of the rule.(14) 0400-18-01-.10, insofar as it establishes a system and schedule for the collection of fees under the UST Act.(15) 0400-18-01-.12(3), insofar as it establishes eligibility requirements for the State Fund.(16) 0400-18-01-.12(4), insofar as it pertains to the payment of annual tank fees.(17) 0400-18-01-.14 is external insofar as it contains record retention obligations on the State agency, not a regulated entity. (2)Statement of legal authority. The Attorney General's Statement, signed on October 3, 2018, though not incorporated by reference, is referenced as part of the approved underground storage tank program under subtitle I of RCRA, 42 U.S.C. 6991 et seq.(3)Demonstration of procedures for adequate enforcement. The "Demonstration of Adequate Enforcement Procedures" submitted on October 15, 2018, though not incorporated by reference, is referenced as part of the approved underground storage tank program under subtitle I of RCRA, 42 U.S.C. 6991 et seq.(4)Program description. The program description and any other material submitted on October 15, 2018, though not incorporated by reference, are referenced as part of the approved underground storage tank program under subtitle I of RCRA, 42 U.S.C. 6991 et seq.(5)Memorandum of Agreement. The Memorandum of Agreement between EPA Region 4 and TDEC, signed by the EPA Regional Administrator on October 12, 2018, though not incorporated by reference, is referenced as part of the approved underground storage tank program under subtitle I of RCRA, 42 U.S.C. 6991 et seq.86 FR 50475, Sept. 9, 2021