[Federal Register: August 1, 2003 (Volume 68, Number 148)]
[Proposed Rules]
[Page 45192-45195]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01au03-25]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 271
[FRL-7528-6]
Idaho: Proposed Authorization of State Hazardous Waste Management
Program Revision
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: Idaho has applied to EPA for final authorization of certain
changes to its hazardous waste program under the Resource Conservation
and Recovery Act (RCRA). EPA has reviewed Idaho's application, has
preliminarily determined that these changes satisfy all requirements
needed to qualify for final authorization, and is proposing to
authorize the state's changes.
DATES: Comments on this proposed rule must be received in writing by
September 15, 2003.
ADDRESSES: Send written comments to Jeff Hunt, U.S. Environmental
Protection Agency Region 10, Office of Waste and Chemicals (WCM-122),
1200 Sixth Ave, Seattle, Washington 98101. You can view and copy
Idaho's application during normal business hours at the following
addresses: U.S. Environmental Protection Agency Region 10, Office of
Waste and Chemicals, 1200 Sixth Ave, Seattle, Washington, contact: Jeff
Hunt, phone number: (206) 553-0256; or Idaho Department of
Environmental Quality, 1410 N. Hilton, Boise, Idaho, contact: John
Brueck, phone number (208) 373-0458.
FOR FURTHER INFORMATION CONTACT: Jeff Hunt, U.S. Environmental
Protection
[[Page 45193]]
Agency Region 10, Office of Waste and Chemicals (WCM-122), 1200 Sixth
Ave, Seattle, Washington 98101, phone number: (206) 553-0256.
SUPPLEMENTARY INFORMATION:
A. Why Are Revisions to State Programs Necessary?
States which have received final authorization from EPA under RCRA
section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous waste
program that is equivalent to, consistent with, and no less stringent
than the federal program. As the federal program changes, states must
change their programs and ask EPA to authorize the changes. Changes to
state 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
EPA's regulations in 40 Code of Federal Regulations (CFR) parts 124,
260 through 266, 268, 270, 273 and 279.
B. What Preliminary Decisions Have We Made in This Rule?
EPA has preliminarily determined that Idaho's application to revise
its authorized program meets all of the statutory and regulatory
requirements established by RCRA. Therefore, we are proposing to grant
Idaho final authorization to operate its hazardous waste program with
the changes described in the authorization application. Idaho will have
responsibility for permitting Treatment, Storage, and Disposal
Facilities (TSDFs) within its borders (except in Indian country) and
for carrying out the aspects of the RCRA program described in its
revised program application, subject to the limitations of the
Hazardous and Solid Waste Amendments of 1984 (HSWA). New federal
requirements and prohibitions imposed by federal regulations that EPA
promulgates under the authority of HSWA take effect in authorized
states before the states are authorized for the requirements. Thus, EPA
will implement those requirements and prohibitions in Idaho, including
issuing permits, until the State is granted authorization to do so.
C. What Will Be the Effect if Idaho Is Authorized for These Changes?
If Idaho is authorized for these changes, a facility in Idaho
subject to RCRA will have to comply with the authorized State
requirements in lieu of the corresponding federal requirements in order
to comply with RCRA. Additionally, such persons will have to comply
with any applicable federally-issued requirements, such as, for
example, HSWA regulations issued by EPA for which the State has not
received authorization, and RCRA requirements that are not supplanted
by authorized State-issued requirements. Idaho continues to have
enforcement responsibilities under its state hazardous waste management
program for violations of such program, but EPA retains its authority
under RCRA sections 3007, 3008, 3013, and 7003, which include, among
others, the authority to:
[sbull] Conduct inspections; require monitoring, tests, analyses or
reports;
[sbull] Enforce RCRA requirements; suspend or revoke permits; and
[sbull] Take enforcement actions regardless of whether the State
has taken its own actions.
The action to approve these revisions would not impose additional
requirements on the regulated community because the regulations for
which Idaho will be authorized are already effective under State law
and are not changed by the act of authorization.
D. What Happens If EPA Receives Comments That Oppose This Action?
If EPA receives comments that oppose this authorization, we will
address those comments in a later final rule. You may not have another
opportunity to comment. If you want to comment on this authorization,
you must do so at this time.
E. What Has Idaho Previously Been Authorized for?
Idaho initially received final authorization on March 26, 1990,
effective April 9, 1990 (55 FR 11015) to implement the RCRA hazardous
waste management program. EPA granted authorization for changes to
their program on April 6, 1992, effective June 5, 1992 (57 FR 11580),
June 11, 1992, effective August 10, 1992 (57 FR 24757), April 12, 1995,
effective June 11, 1995 (60 FR 18549), October 21, 1998, effective
January 19, 1999 (63 FR 56086), and July 1, 2001, effective July 1,
2001 (67 FR 44069).
F. What Changes Are We Proposing?
On June 6, 2003, Idaho submitted a complete program revision
application, seeking authorization for all delegable federal hazardous
waste regulations codified as of July 1, 2001, as incorporated by
reference in IDAPA 58.01.05.(002)-(016) and 58.01.05.997, except
specific portions of the post closure rule noted in the paragraphs
below \1\. We have preliminarily determined that Idaho's hazardous
waste program revision satisfies all of the requirements necessary to
qualify for final authorization, and EPA is proposing to authorize the
state's changes.
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\1\ Sections of the Federal hazardous waste program are not
delegable to the states. These sections are 40 CFR part 262,
subparts, E, F, & H; 40 CFR 268.5; 40 CFR 268.42(b); 40 CFR
268.44(a)-(g); and 40 CFR 268.6. Authority for implementing the
provisions contained in these sections remains with EPA.
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In this program revision application, Idaho is seeking partial
authorization of the Post Closure Rule promulgated on October 22, 1998
(63 FR 56710). Idaho is not seeking authorization for 40 CFR
270.1(c)(7), Enforceable documents for post-closure care, 40 CFR
265.121 Post-closure requirements for facilities that obtain
enforceable documents in lieu of post-closure permits, 40 CFR
265.110(c), and 40 CFR 265.118(c)(4). These provisions are described in
the rule preamble at 63 FR 56712 section a. Post-closure care under
alternatives to permits. Idaho is seeking authorization for 40 CFR
264.90(f), 264.110(c), 264.140(d), 265.90(f), 265.110(d), and
265.140(d), as described in the rule preamble at 63 FR 56713, b.
Remediation requirements for land-based units with releases to the
environment. Idaho is also seeking authorization of 40 CFR 270.28, as
described in the rule preamble at 63 FR 56713, c. Post-closure permit
information submission requirements.
Idaho is seeking authorization for 40 CFR 264.90(e), 264.90(f),
264.110(c), 264.112(b)(8), 264.112(c)(2)(iv), 264.118(b)(4),
264.118(d)(2)(iv), 264.140(d), 265.90(f), 265.110(d), 265.112(b)(8),
265.118(c)(5), 265.140(d), 270.1(c) introduction, and 270.28, except
where those sections reference the use of enforceable documents. Idaho
does not seek authorization for language in those sections which states
as follows: ``* * * or in an enforceable document (as defined in
270.1(c)(7).''
G. Who Handles Permits After the Authorization Takes Effect?
Idaho will issue permits for all the provisions for which it is
authorized and will administer the permits it issues. All permits
issued by EPA prior to EPA authorizing Idaho for these revisions will
continue in force until the effective date of the State's issuance or
denial of a State RCRA permit, or until the permit otherwise expires or
is revoked. However, EPA will administer any RCRA hazardous waste
permits or portions of permits which EPA issued prior to the effective
date of this authorization and until such time as Idaho's is effective
and EPA's has expired. EPA will not issue any more
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new permits or new portions of permits for provisions for which Idaho
is authorized after the effective date of this authorization. EPA will
continue to implement and issue permits for HSWA requirements for which
Idaho is not yet authorized.
H. What Is Codification and Is EPA Codifying Idaho's Hazardous Waste
Program as Authorized in This Rule?
Codification is the process of placing the State's statutes and
regulations that comprise the State's authorized hazardous waste
program into the Code of Federal Regulations. We do this by referencing
the authorized State rules in 40 CFR part 272. Through three
codification actions dated December 6, 1990 (55 FR 50327), June 11,
1992 (57 FR 24757), and June 25, 1999 (64 FR 34180) the EPA codified at
40 CFR part 272, subpart N all authorization actions for the State of
Idaho RCRA program, except the most recent authorization revision
published on July 1, 2001.
We reserve the amendment of 40 CFR part 272, subpart N for this
authorization of Idaho's program changes until a later date.
I. How Would Authorizing Idaho for These Revisions Affect Indian
Country (18 U.S.C. 1151) in Idaho?
Idaho is not authorized to carry out its hazardous waste program in
Indian country, as defined in 18 U.S.C. 1151. Indian country includes:
1. All lands within the exterior boundaries of Indian reservations
within or abutting the State of Idaho;
2. Any land held in trust by the U.S. for an Indian tribe; and
3. Any other land, whether on or off an Indian reservation that
qualifies as Indian country. Therefore, this action has no effect on
Indian country. EPA retains the authority to implement and administer
the RCRA program in Indian country.
J. Statutory and Executive Order Reviews
1. Executive Order 12866
Under Executive Order 12866 (58 FR 51735, October 4,1993), the
Agency must determine whether the regulatory action is ``significant,''
and therefore subject to OMB review and the requirements of the
Executive Order. The Order defines ``significant regulatory action'' as
one that is likely to result in a rule that may: (1) Have an annual
effect on the economy of $100 million or more, or adversely affect in a
material way, the economy, a sector of the economy, productivity,
competition, jobs, the environment, public health or safety, or State,
local or tribal governments or communities; (2) create a serious
inconsistency or otherwise interfere with an action taken or planned by
another agency; (3) materially alter the budgetary impact of
entitlements, grants, user fees, or loan programs, or the rights and
obligations of recipients thereof; or (4) raise novel legal or policy
issues arising out of legal mandates, the President's priorities, or
the principles set forth in the Executive Order. It has been determined
that this proposed Rule is not a ``significant regulatory action''
under the terms of Executive Order 12866 and is therefore not subject
to OMB review.
2. Paperwork Reduction Act
The Paperwork Reduction Act, 44 U.S.C. 3501, et seq., is intended
to minimize the reporting and recordkeeping burden on the regulated
community, as well as to minimize the cost of Federal information
collection and dissemination. In general, the Act requires that
information requests and record-keeping requirements affecting ten or
more non-Federal respondents be approved by OPM. Since the proposed
Rule does not establish or modify any information or recordkeeping
requirements for the regulated community, it is not subject to the
provisions of the Paperwork Reduction Act.
3. Regulatory Flexibility
The Regulatory Flexibility Act (RFA), as amended by the Small
Business Regulatory Enforcement Fairness Act (SBREFA), 5 U.S.C. 601 et.
seq., generally requires federal agencies to prepare a regulatory
flexibility analysis of any rule subject to notice and comment
rulemaking requirements under the Administrative Procedure Act or any
other statute unless the agency certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
Small entities include small businesses, small organizations, and small
governmental jurisdictions. For purposes of assessing the impacts of
today's rule on small entities, small entity is defined as: (1) A small
business, as codified in the Small Business Size Regulations at 13 CFR
part 121; (2) a small governmental jurisdiction that is a government of
a city, county, town, school district or special district with a
population of less than 50,000; and (3) a small organization that is
any not-for-profit enterprise which is independently owned and operated
and is not dominant in its field. EPA has determined that this action
will not have a significant impact on small entities because the
proposed Rule will only have the effect of authorizing pre-existing
requirements under State law. After considering the economic impacts of
today's proposed rule, I certify that this action will not have a
significant economic impact on a substantial number of small entities.
We continue to be interested in the potential impacts of the proposed
rule on small entities and welcome comments on issues related to such
impacts.
4. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act (UMRA) of 1995 (Pub.
L. 104-4) establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
year. Before promulgating an EPA rule for which a written statement is
needed, section 205 of the UMRA generally requires EPA to identify and
consider a reasonable number of regulatory alternatives and adopt the
least costly, most cost-effective or least burdensome alternative that
achieves the objectives of the rule. The provisions of section 205 do
not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why the
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments to have meaningful and timely
input in the development of EPA regulatory proposals with significant
Federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with the regulatory
requirements.
This proposed rule contains no Federal mandates (under the
regulatory provisions of Title II of the UMRA) for State, local or
tribal governments or the private sector. The proposed rule authorizes
pre-existing requirements
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under State law and imposes no new enforceable duty on any State, local
or tribal governments or the private sector. Similarly, EPA has also
determined that this proposed rule contains no regulatory requirements
that might significantly or uniquely affect small government entities.
Thus, the requirements of section 203 of the UMRA do not apply to this
rule.
5. Executive Order 13132: Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that 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 various levels of government.''
This proposed rule does not have federalism implications. It 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 various levels of government, as
specified in Executive Order 13132. This proposed rule only authorizes
existing State rules as part of the State RCRA hazardous waste program.
6. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' This proposed rule does not
have tribal implications, as specified in Executive Order 13175. The
rule proposes to authorize existing state rules and does not establish
any regulatory policy with tribal implications. Thus, Executive Order
13175 does not apply to this proposed rule. EPA specifically solicits
additional comment on this proposed rule from tribal officials.
7. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
Executive Order 13045 applies to any rule that: (1) Is determined
to be ``economically significant'' as defined under Executive Order
12866, and (2) concerns an environmental health or safety risk that EPA
has reason to believe may have a disproportionate effect on children.
If the regulatory action meets both criteria, the Agency must evaluate
the environmental health or safety effects of the planned rule on
children, and explain why the planned regulation is preferable to other
potentially effective and reasonably feasible alternatives considered
by the Agency.
This proposed rule is not subject to Executive Order 13045 because
it is not economically significant as defined in Executive Order 12866
and because the Agency does not have reason to believe the
environmental health or safety risks addressed by this proposed action
present a disproportionate risk to children.
8. 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.
9. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTAA''), Public Law 104-113, section 12(d) (15 U.S.C.
272) directs EPA to use voluntary consensus standards in its regulatory
activities unless to do so would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., materials specifications, test methods, sampling
procedures, and business practices) that are developed or adopted by
voluntary consensus bodies. The NTAA directs EPA to provide Congress,
through the OMB, explanations when the Agency decides not to use
available and applicable voluntary consensus standards. This proposed
rulemaking does not involve ``technical standards'' as defined by the
NTAA. Therefore, EPA is not considering the use of any voluntary
consensus standards.
List of Subjects in 40 CFR Part 271
Environmental protection, Administrative practice and procedure,
Confidential business information, Hazardous materials transportation,
Hazardous waste, Indians-lands, Intergovernmental relations, Penalties,
Reporting and recordkeeping requirements.
Authority: This proposed action is issued under the authority of
sections 2002(a), 3006 and 7004(b) of the Solid Waste Disposal Act
as amended 42 U.S.C. 6912(a), 6926, 6974(b).
Dated: July 9, 2003.
Ronald Kreizenbeck,
Acting Regional Administrator, Region 10.
[FR Doc. 03-18738 Filed 7-31-03; 8:45 am]
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