[Federal Register Volume 65, Number 8 (Wednesday, January 12, 2000)] [Rules and Regulations] [Pages 1814-1817] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 00-614] ----------------------------------------------------------------------- ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 257 and 258 [FRL-6521-4] Adequacy of State Permit Programs Under RCRA Subtitle D AGENCY: Environmental Protection Agency (EPA). ACTION: Direct final rule. ----------------------------------------------------------------------- SUMMARY: EPA is taking direct final action to streamline the approval process for specific state permit programs for solid waste disposal facilities other than municipal solid waste landfills (MSWLF) that receive conditionally exempt small quantity generator (CESQG) hazardous waste. States whose Subtitle D MSWLF permit programs or Subtitle C hazardous waste management programs have been reviewed and approved or authorized by EPA are eligible for this streamlined approval process if their state programs require the disposal of CESQG hazardous waste in suitable facilities. EPA is issuing an adequacy determination to the state programs for Kansas, Missouri, and Nebraska. Elsewhere in the proposed rule section of today's Federal Register, EPA is proposing the program adequacy of these states and soliciting comment on this decision. If relevant adverse comments are received, EPA will withdraw this direct final rule of program adequacy and address the comments in a subsequent final rule. EPA will not give additional opportunity for comment. If EPA receives relevant adverse comment concerning the adequacy of only certain state programs, the Agency's withdrawal of the direct final rule will only apply to those state programs. Comments on the inclusion or exclusion of one state permit program will not affect the timing of the decision on the other state permit programs. DATES: This direct final rule is effective on April 11, 2000 unless the Agency receives timely relevant adverse comments by February 11, 2000. Should the Agency receive such relevant adverse comments, EPA will publish a timely withdrawal of this direct final rule in the Federal Register informing the public that the rule will not take effect. ADDRESSES: Send or hand deliver an original and one copy of your comments referencing docket number R7/ARTD/SWPP-00-01 to: Region VII Information Resource Center, U.S. Environmental Protection Agency, 901 N. 5th Street, Kansas City, Kansas 66101. Comments may also be submitted electronically through the Internet to: [email protected]. Comments in electronic format should also be identified by the docket number listed above. All electronic comments must be submitted as an ASCII file avoiding the use of special characters and any form of encryption. You can view and copy documents pertaining to this regulatory docket in the Region VII Information Resource Center (Library), located on the Plaza Level at the address noted above. The Library is open from 9 a.m. to 3 p.m., Monday through Friday, excluding federal holidays. FOR FURTHER INFORMATION CONTACT: For general information, call (913) 551-7241 or TTY (913) 321-9516. For information on accessing paper and electronic copies of documents or supporting materials relating to the direct final rule, or for information on specific aspects of this rule, contact Wes Bartley, U.S. EPA Region VII, ARTD/SWPP, 901 N. 5th Street, Kansas City, Kansas 66101, [[Page 1815]] phone (913) 551-7632, or by e-mail at [email protected]. SUPPLEMENTARY INFORMATION: The official record for this action will be kept in paper form. Therefore, EPA will transfer all comments received electronically into paper form and place them in the official record, which will also include all comments submitted directly in writing. The official record is the paper record kept at the address in ADDRESSES at the beginning of this document. Responses to comments, whether the comments are written or electronic, will be in a document in the Federal Register as outlined in DATES above or in a response to comments document placed in the official record for this rulemaking. EPA will not immediately reply to commenters electronically other than to seek clarification of electronic comments that may be garbled in transmission or during conversion to paper form, as discussed above. A. Background Section 4010(c) of the Resource Conservation and Recovery Act (RCRA) requires EPA to revise the criteria for facilities that accept household hazardous waste and CESQG hazardous waste, or both. On October 9, 1991, EPA issued Criteria for Municipal Solid Waste Landfills (40 CFR part 258). These criteria include location restrictions and standards for design, operation, ground-water monitoring, corrective action, financial assurance, and closure/post- closure care for MSWLF. MSWLF typically receive both household hazardous waste and CESQG hazardous waste. On July 1, 1996, EPA issued the revised Criteria for Classification of Solid Waste Disposal Facilities and Practices to address solid waste disposal facilities other than MSWLF that receive CESQG waste (40 CFR part 257, subpart B). These criteria include location restrictions, ground-water monitoring, and corrective action standards. The 40 CFR part 257, subpart B, criteria and the 40 CFR part 258 criteria, referred to collectively as the ``Subtitle D federal revised criteria,'' establish minimum federal standards to ensure that all Subtitle D facilities that may receive CESQG wastes are designed and managed in a manner that is protective of human health and the environment. RCRA section 4005, as amended by the Hazardous and Solid Waste Amendments of 1984, requires states to develop permitting programs or other systems of prior approvals and conditions to ensure that solid waste disposal units that receive household hazardous waste and CESQG hazardous waste, or both, comply with the federal revised criteria. Section 4005 also requires EPA to determine the adequacy of these state permit programs. To fulfill this need, the Agency issued the State Implementation Rule (SIR) on October 23, 1998 (63 FR 57026) to give a process for approving state municipal solid waste permit programs. The SIR specifies the criteria that state MSWLF permit programs must satisfy to be determined adequate. The SIR also addresses the processes that should be used for approving state programs for non-MSWLF that receive CESQG hazardous waste. Throughout this direct final rule, the term ``approved state'' refers only to a state that has received approval for its MSWLF permit program under Subtitle D (40 CFR part 258) and the term ``authorized state'' refers only to a state that has an authorized hazardous waste permit program under Subtitle C (40 CFR part 264). Today's final adequacy determination is intended to give a streamlined approval process to address specific state programs that require the disposal of CESQG hazardous waste in suitable facilities and whose Subtitle D MSWLF permit programs or Subtitle C hazardous waste management programs have been reviewed and approved or authorized by the Agency. Today's direct final rule applies to the state programs for Kansas, Missouri, and Nebraska. Programs developed by these states for permitting either hazardous waste facilities or MSWLFs have been reviewed and approved or authorized by the Agency. The regulatory programs are more comprehensive and/or more stringent than the part 257, subpart B, criteria. The Agency has determined that the above states have submitted the documentation that would have been needed for the determination of permit program adequacy under 40 CFR part 257, subpart B. Further, the Agency has determined that the technical review conducted for either ``approval'' of MSWLF permitting programs or ``authorization'' of hazardous waste permitting programs can substitute for the technical review of the standards for 40 CFR part 257, subpart B, and their implementation by the states. The states that are today receiving a final determination of adequacy had previously submitted documentation of state statutory authorities and requirements that regulate solid waste disposal units that may receive CESQG waste. In each case, state statutes, regulations, and/or internal policies and practices were reviewed and found to serve as the basis for ensuring that the state permit program or other system of prior approvals and conditions had adequate authority to ensure compliance with the hazardous waste or MSWLF regulations, as appropriate. The technical requirements for part 257, subpart B, are location restrictions and requirements for ground-water monitoring, corrective action, and recordkeeping. These requirements have been met by the state programs listed in today's final determination. The three states considered in today's determination are ``authorized'' states that have authorized hazardous waste permit programs under Subtitle C (40 CFR part 264). These states have laws, regulations, or guidance in place providing that CESQG hazardous waste may be lawfully managed in a RCRA Subtitle C facility (see 61 FR 34264). Also, these states are ``approved'' states for MSWLF permit programs under Subtitle D (40 CFR part 258). However, only Kansas and Nebraska have laws, regulations, or guidance in place providing that CESQG hazardous waste may be lawfully managed in a MSWLF meeting or exceeding the requirements of 40 CFR part 258 (see 61 FR 34264). Management of CESQG hazardous waste is allowed in the three states only at facilities as described above. For all states, the state regulations have been reviewed by EPA, found to be equal to or more stringent than 40 CFR part 257, subpart B, and approved. Most state program regulations contain additional requirements and are more stringent than the federal requirements. The states covered by today's approval have permit programs or other systems of prior approval for all waste disposal units in their jurisdictions that may receive CESQG hazardous waste. These states provide for public participation in permit issuance and enforcement as specified in the SIR rule. Finally, EPA believes that these states have sufficient compliance monitoring and enforcement authorities to take action against any owner or operator that fails to comply with regulations applicable to waste disposal units that may receive CESQG hazardous waste. B. Decision After reviewing the states' previous submissions for approval under Subtitle D (40 CFR part 258) and authorization under Subtitle C (40 CFR part 264), the Agency concludes that the above states meet all of the statutory and regulatory requirements established by RCRA. Accordingly, the above states are granted a final determination of adequacy for all portions of their permit program for solid waste disposal units [[Page 1816]] that may receive CESQG hazardous waste. RCRA section 4005(a) provides that citizens may use the citizen suit provisions of RCRA section 7002 to enforce the Federal Criteria for Classification of Solid Waste Disposal Facilities and Practices in 40 CFR part 257, subpart B, independent of any state enforcement program. As explained in the preamble to 40 CFR part 257, subpart B, EPA expects that any owner or operator complying with the provisions of a state program approved by EPA requiring that CESQG hazardous waste be disposed of in either a Subtitle C facility or a Subtitle D MSWLF would be in compliance with the federal criteria. See 61 FR 34264 (July 1, 1996). Today's action will become effective on April 11, 2000 if no adverse comments are received. Related Acts of Congress and Executive Orders A. Executive Order 12866 Under Executive Order 12866, (58 FR 51735 (October 4, 1993)) the Agency must determine whether a regulatory action is ``significant'' and therefore subject to Office of Management and Budget (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 rule is not a ``significant regulatory action'' under the terms of Executive Order 12866 and is therefore not subject to OMB review. B. Regulatory Flexibility Act Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities (i.e., small businesses, small organizations, and small governmental jurisdictions). However, no regulatory flexibility analysis is required if the head of an agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. The SBREFA amended the Regulatory Flexibility Act to require federal agencies to provide a statement of the factual basis for certifying that a rule will not have a significant economic impact on a substantial number of small entities. The following discussion explains EPA's determination. This rule does not impose any new burdens on small entities. It merely confirms existing needs for the disposal of CESQG waste under state law. This proposal does not impose any new cost burdens. I hereby certify that this rule will not have a significant economic impact on a substantial number of small entities. This rule, therefore, does not need a regulatory flexibility analysis. C. The Paperwork Reduction Act Today's proposal is in compliance with the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. We found that no information is being collected from the states for this direct final rule, so we do not need to prepare an Information Collection Request. D. The Unfunded Mandates Reform Act Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 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 by state, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year. Before promulgating an EPA rule for which a written statement is needed, section 205 of 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 that 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 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 by EPA of regulatory proposals with significant federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements. The Agency's analysis of compliance with UMRA found that today's rule imposes no enforceable duty on any state, local, or tribal governments or the private sector; thus today's rule is not subject to the requirements of sections 202 and 205 of UMRA. E. Executive Order 13045 ``Protection of Children from Environmental Health Risks and Safety Risks'' (62 FR 19885 (April 23, 1997)) 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 rule is not subject to Executive Order 13045 because it is not an economically significant rule as defined by Executive Order 12866, and because it does not involve decisions based on environmental health or safety risks. F. National Technology Transfer and Advancement Act Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note) 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 standards bodies. The NTTAA directs EPA to [[Page 1817]] provide explanations to Congress, through OMB, when the Agency decides not to use available and applicable voluntary consensus standards. This proposed rulemaking does not involve technical standards. Therefore, EPA is not considering the use of any voluntary consensus standards. G. Executive Order 13132 Executive Order 13132 (Federalism, 64 FR 43255, August 10, 1999) revokes and replaces Executive Order 12612 (Federalism) and Executive Order 12875 (Enhancing the Intergovernmental Partnership). Executive Order 13132 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 the various levels of government.'' Under Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the federal government provides the funds necessary to pay the direct compliance costs incurred by state and local governments, or EPA consults with state and local officials early in the process of developing the proposed regulation. EPA also may not issue a regulation that has federalism implications and that preempts state law unless the Agency consults with state and local officials early in the process of developing the proposed regulation. This direct final rule 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. Thus, the requirements of section 6 of the Executive Order do not apply to this rule. H. Executive Order 13084 Under Executive Order 13084, EPA may not issue a regulation that is not required by statute, that significantly or uniquely affects the communities of Indian tribal governments, and that imposes substantial direct compliance costs on those communities, unless the federal government provides the funds necessary to pay the direct compliance costs incurred by the tribal governments, or EPA consults with those governments. If EPA complies by consulting, Executive Order 13084 requires EPA to provide OMB, in a separately identified section of the preamble to the rule, a description of the extent of EPA's prior consultation with representatives of affected tribal governments, a summary of the nature of their concerns, and a statement supporting the need to issue the regulation. In addition, Executive Order 13084 requires EPA to develop an effective process permitting elected officials and other representatives of Indian tribal governments ``to provide meaningful and timely input in the development of regulatory policies on matters that significantly or uniquely affect their communities.'' Today's rule does not significantly or uniquely affect the communities of Indian tribal governments. There is no impact to tribal governments as a result of the state plan approvals. Accordingly, the requirements of section 3(b) of Executive Order 13084 do not apply to this rule. I. Executive Order 12898 EPA is committed to addressing environmental justice concerns and is assuming a leadership role in environmental justice initiatives to enhance environmental quality for all residents of the United States. The Agency's goals are to ensure that no segment of the population, regardless of race, color, national origin, or income, bears disproportionately high and adverse human health and environmental effects as a result of EPA's policies, programs, and activities, and all people live in clean and sustainable communities. The Agency does not believe that today's rule granting state permit program approval will have a disproportionately high and adverse environmental or economic impact on any minority or low-income group, or on any other type of affected community. J. The Congressional Review Act The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 1996 SBREFA, 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 rule 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 of the rule 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). This rule will be effective April 11, 2000. Authority: This document is issued under the authority of sections 2002 and 4005 of the Solid Waste Disposal Act as amended, 42 U.S.C. 6912 and 6945. Dated: December 29, 1999. Dennis Grams, Regional Administrator, Region VII. [FR Doc. 00-614 Filed 1-11-00; 8:45 am] BILLING CODE 6560-50-P