[Federal Register Volume 65, Number 12 (Wednesday, January 19, 2000)]
[Rules and Regulations]
[Pages 2897-2903]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-1067]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 271
[FRL-6525-5]
North Dakota: Final Authorization of State Hazardous Waste
Management Program Revision
AGENCY: Environmental Protection Agency (EPA).
[[Page 2898]]
ACTION: Immediate final rule.
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SUMMARY: North Dakota has applied to EPA for Final authorization of
changes to its hazardous waste program under the Resource Conservation
and Recovery Act (RCRA). EPA has determined that these changes satisfy
all requirements for Final authorization, and is authorizing the
State's changes through this immediate Final action. EPA is publishing
this rule to authorize the changes without a prior proposed rule
because we believe this action is not controversial. Unless we get
written comments opposing this authorization during the comment period,
the decision to authorize North Dakota's changes to their hazardous
waste program will take effect as provided below. If we receive
comments that oppose this action, we will publish a document in the
Federal Register withdrawing this rule before it takes effect. A
separate document in the proposed rules section of this Federal
Register will serve as the proposal to authorize the State's changes.
DATES: This immediate final rule will become effective March 20, 2000
unless EPA receives significant adverse or critical comments by
February 18, 2000. If written significant adverse or critical comments
are received, EPA will publish a timely withdrawal of the rule in the
Federal Register, informing the public that the rule will not take
effect.
ADDRESSES: Send written comments to Kris Shurr, 8P-HW, U.S. EPA,
Region VIII, 999 18th St, Ste 500, Denver, Colorado 80202-2466, phone
number: (303) 312-6139. You can view and copy North Dakota's
application at the following addresses: NDDH from 9:00 AM to 4:00 PM,
1200 Missouri Ave, Bismarck, ND, 58504-5264, contact: Curt Erickson,
phone number (701) 328-5166 and EPA Region VIII, from 8:00 AM to 3:00
PM, 999 18th Street, Suite 500, Denver, Colorado 80202-2466, contact:
Kris Shurr, phone number: (303) 312-6139.
FOR FURTHER INFORMATION CONTACT: Kris Shurr, EPA Region VIII, 999 18th
Street, Suite 500, Denver, Colorado 80202-2466, phone number: (303)
312-6139.
SUPPLEMENTARY INFORMATION:
A. Why Are Revisions To State Programs Necessary?
States that have received final authorization from EPA under RCRA
section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous waste
program 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 their 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 Decisions Have We Made In This Rule?
We conclude that North Dakota's application to revise its
authorized program meets all of the statutory and regulatory
requirements established by RCRA. Therefore, we grant North Dakota
Final authorization to operate its hazardous waste program with the
changes described in the authorization application. North Dakota has
responsibility for permitting Treatment, Storage, and Disposal
Facilities (TSDFs) within its borders, except in Indian Country, and
for carrying out those portions 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 EPA under the authority of
HSWA take effect immediately and will be implement by EPA until the
State is granted authorization.
C. What is The Effect of Today's Authorization Decision?
The effect of this decision is that a facility in North Dakota
subject to RCRA will now have to comply with the authorized State
requirements instead of the equivalent Federal requirements. North
Dakota has primary enforcement responsibilities under its state
hazardous waste program for violations of the program, but EPA retains
its authority under RCRA sections 3007, 3008, 3013, and 7003, which
include, among others, authority to:
conduct inspections, and require monitoring, tests,
analyses, or reports; and
enforce RCRA requirements and suspend or revoke permits.
This action does not impose additional requirements on the
regulated community because the regulations for which North Dakota is
being authorized are already effective, and are not changed by today's
action.
D. Why Wasn't There a Proposed Rule Before Today's Rule?
EPA did not publish a proposal before today's rule because we view
this as a routine program change and do not expect comments opposing
this approval. We are providing an opportunity for public comment at
this time. In addition, in the proposed rules section of today's
Federal Register, there is a separate document that proposes to
authorize the State program changes. If we receive comments opposing
this authorization, that document will serve as a proposal to authorize
the changes.
E. What Happens if EPA Receives Comments Opposing This Action?
If EPA receives comments opposing this authorization, we will
withdraw this rule by publishing a document in the Federal Register
before the rule becomes effective. We then will address all public
comments in a later Federal Register. You may not have another
opportunity to comment. If you want to comment on this action, you must
do so at this time.
If we receive comments opposing authorization of only a particular
change to the State hazardous waste program, we will withdraw that part
of the rule. However, the authorization of program changes that are not
opposed by any comments will become effective on the date specified
above. The Federal Register withdrawal document will specify which part
of the authorization will become effective and which part is being
withdrawn.
F. What Has North Dakota Previously Been Authorized For?
North Dakota initially received Final authorization on October 5,
1984, effective October 19, 1984 (49 FR 39328) to implement the RCRA
hazardous waste management program. We granted authorization for
changes to their program on June 25, 1990, effective August 24, 1990
(55 FR 25836), May 4, 1992, effective July 6, 1992 (57 FR 19087), and
April 7, 1994, effective June 6, 1994 (59 FR 16566).
G. What Changes Are We Authorizing With Today's Action?
In October 1994, North Dakota submitted a final revision
application, seeking authorization of program changes in accordance
with 40 CFR 271.21. At EPA's request, North Dakota amended its
application in July 1995, July 1997, August 1998, and September 1999.
We have determined that the manner in which the North Dakota
incorporates Federal regulations by reference may cause confusion
within the regulated community. During State rulemaking, North Dakota
publishes a Public Notice setting forth which Federal rules are adopted
by reference, including the date of those Federal rules. However,
[[Page 2899]]
publications of State rules after the Public Notice do not include the
date of applicable Federal rules. As a result, the regulated community
may need to read the North Dakota Public Notice to know which Federal
rule applies. With North Dakota's agreement, EPA is approving the
current application with the understanding that the State will include
Federal regulation dates in the next and all future incorporation-by-
reference rulemaking.
We now make an immediate final decision, subject to receipt of
written comments opposing this action, that North Dakota's hazardous
waste program revision satisfies all of the requirements necessary for
Final authorization. Therefore, we grant North Dakota Final
authorization for the following program changes:
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Description of Federal requirement Analogous State authority and effective date
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Exceptions to the Burning & Blending of Hazardous Waste NDCC 23-20.3-04/1987, NDAC 33-24-02-04; NDAC 33-24-02-
[HSWA 3004(q)(2)(A) & 3004 (r)(2) & (3)] (Non- 06.
checklist BB).
Hazardous & Used Oil Fuel Criminal Penalties [HSWA NDCC 23-20.3-09/1987 NDAC 33-24-05-600 thru 689.
3006(h), 3008(d), & 3014] (Non-checklist CP).
Sharing of Information With the Agency for Toxic NDCC 44-04-18/1987.
Substances & Disease Registry [HSWA 3019, 07/15/85]
(Non-checklist SI).
Surface Impoundment Requirements [HSWA 3005 (j)(1) & NDCC 23-20.3-04; 23-20.3-05/1987, NDAC 33-24-06-16.
(6)] (Non-checklist SR1).
Surface Impoundment Requirements [HSWA 3005 (j)(2)-(9) NDCC 23-20.3-04/1987, NDAC 33-24-06-16.
&(13)] (Non-checklist SR2).
Permit Modifications for Hazardous Waste Management 33-24-07-03; 33-24-05-29; 33-24-05-61; 33-24-05-67; 33-
Facilities [53 FR 37912-37942, 09/28/88 & 53 FR 41649, 24-06-16; 33-24-01-04; 33-24-06-10; 33-24-06-04; 33-24-
10/24/88] (Checklist 54 & 54.1). 06-11; 33-24-06-12; 33-24-06-14; 33-24-06-19.
Identification & Listing of Hazardous Waste; Removal of 33-24-02-18; 33-24-02, Appendix V.
Iron Dextran from the list of Hazardous Wastes [53 FR
43878-43881, 10/31/88] (Checklist 56).
Identification & Listing of Hazardous Waste; Removal of 33-24-02-18; 33-24-02, Appendix V.
Strontium Sulfide from the list of Hazardous Wastes
[53 FR 43881-43884, 10/31/88] (Checklist 57).
Changes to Interim Status Facilities for Hazardous 33-24-07-01; 33-24-07-11; 33-24-07-14; 33-24-06-01; 33-
Waste Management Permits; Procedures for Post-Closure 24-06-13; 33-24-06-14; 33-24-06-16.
Permitting [54 FR 9596-9609, 03/07/89] (Checklist 61).
Land Disposal Restrictions; Amendments to First Third 33-24-05-283.
Scheduled Wastes [54 FR 18836-18838, 05/02/89]
(Checklist 62).
Land Disposal Restrictions; Corrections to the First 33-24-05-250; 33-24-05-254; 33-24-05-254; 33-24-05-255;
Third Scheduled Wastes [54 FR 36967, 09/06/89 & 55 FR 33-24-05-256; 33-24-05-257; 33-24-05-272; 33-24-05-
23935, 06/13/90] (Checklist 66 & 66.1). 273; 33-24-05-284; 33-24-05-290.
Modification of F019 Listing [55 FR 5340-5342, 02/14/ 33-24-02-16.
90] (Checklist 72).
Listing of 1,1-Dimethylhydrazine Production Wastes [55 33-24-02-17; 33-24-02.
FR 18496-18506, 05/02/90] (Checklist 75).
Land Disposal Restrictions for Third Third Scheduled 33-24-02, App IV; 33-24-02-10 thru 14; 33-24-02-16; 33-
Wastes [55 FR 22520-22720, 06/01/90] (Checklist 78H & 24-02-18; 33-24-03-02; 33-24-03-12; 33-24-05,
N). Appendices VIII thru XI; 33-24-05, Appendix XIII 33-24-
05-04; 33-24-05-120; 33-24-05-133; 33-24-05-168; 33-24-
05-181; 33-24-05-185; 33-24-05-250 thru 252; 33-24-05-
256; 33-24-05-258; 33-24-05-275; 33-24-05-280 thru
283; 33-24-06-14; 33-24-06-16.
Toxicity Characteristic; Hydrocarbon Recovery 33-24-02-04.
Operations [55 FR 40834-40837, 10/05/90; 56 FR 3978,
02/01/91; 56 FR 13406-13411, 04/02/91] (Checklist 80,
80.1, & 80.2).
Petroleum Refinery Primary & Secondary Oil/Water/Solids 33-24-02, Appendix IV; 33-24-02-16.
Separation Sludge Listings (F037 & F038) [55 FR 46354-
46397, 11/02/90; 55 FR 51707, 12/17/90] (Checklist 81
& 81.1).
Wood Preserving Listings [55 FR 50450-50490, 12/6/90] 33-24-02, Table 1, Appendix III; 33-24-02, Appendices
(Checklist 82). IV & V; 33-24-01-04; 33-24-02-04; 33-24-02-16; 33-24-
02-19; 33-24-03-12; 33-24-05-103; 33-24-05-501 thru
506; 33-24-06-16; 33-24-06-17.
Land Disposal Restrictions for Third Third Scheduled 33-24-02-03; 33-24-02-10; 33-24-02-16; 33-24-03-02; 33-
Wastes; Technical Amendments [56 FR 3864-3928, 01/31/ 24-03-12; 33-24-05-251; 33-24-05-256; 33-24-05-258; 33-
91] (Checklist 83). 24-05-273; 33-24-05-275; 33-24-05-280 thru 283; 33-24-
05, Appendices I, V, VIII, IX, XI, & XIII.
Toxicity Characteristic; Chlorofluorocarbon 33-24-02-04.
Refrigerants [56 FR 5910-5915, 02/13/91] (Checklist
84).
Removal of Strontium Sulfide from the List of Hazardous 33-24-02, Appendix V; 33-24-02-18.
Wastes; Technical Amendment [56 FR 7567-7568, 02/25/
91] (Checklist 86).
Organic Air Emission Standards for Process Vents & 33-24-05-400; 33-24-05-403; 33-24-05-405; 33-24-05-422;
Equipment Leaks; Technical Amendment [56 FR 19290, 04/ 33-24-06-16; 33-24-06-17.
26/91] (Checklist 87).
Administrative Stay for K069 Listing [56 FR 19951, 05/ 33-24-02-17.
01/91] (Checklist 88).
Revision to the Petroleum Refining Primary & Secondary 33-24-02-16.
Oil/Water/Solids Separation Sludge Listings (F037 &
F038) [56 FR 21955-21960, 05/13/91] (Checklist 89).
Mining Waste Exclusion III [56 FR 27300-27330, 06/13/ 33-24-02-04.
91] (Checklist 90).
[[Page 2900]]
Wood Preserving Listings [56 FR 27332-27336, 06/13/91] 33-24-02-16; 33-24-05-504; 33-24-06-16.
(Checklist 91).
Wood Preserving Listings; Technical Corrections [56 FR 33-24-02-04; 33-24-02-19; 33-24-03-12; 33-24-05-501; 33-
30192-30198, 7/1/91] (Checklist 92). 24-05-502 thru 506; 33-24-06-16; 33-24-06-17.
Land Disposal Restrictions for Electric Arc Furnace 33-24-02-03; 33-24-02-04; 33-24-05-281; 33-24-05-282.
Dust (K061) [56 FR 41164-41178, 8/19/91] (Checklist
95).
Exports of Hazardous Waste; Technical Correction [56 FR 33-24-03-20; 33-24-03-23.
43704-43705] (Checklist 97).
Amendments to Interim Status Standards for Down- 33-24-01-04; 33-24-06-16.
gradient Ground-Water Monitoring Well Locations [56 FR
66365-66369, 12/23/91] (Checklist 99).
Liners & Leak Detection Systems for Hazardous Waste 33-24-01-04; 33-24-05-06; 33-24-05-10; 33-24-05-40; 33-
Land Disposal Units [57 FR 3462-3497, 1/29/92] 24-05-119; 33-24-05-120; 33-24-05-122; 33-24-05-126;
(Checklist 100). 33-24-05-127; 33-24-05-131; 33-24-05-132; 33-24-05-
137; 33-24-05-138; 33-24-05-177; 33-24-05-178; 33-24-
05-180; 33-24-05-187; 33-24-05-188; 33-24-06-10; 33-24-
06-14; 33-24-06-16; 33-24-06-17.
Administrative Stay for the Requirement that Existing 33-24-06-16.
Drip Pads Be Impregnable [57 FR 5859-5861, 2/18/92]
(Checklist 101).
Second Correction to the Third Third Land Disposal 33-24-05-04; 33-24-05-252; 33-24-05-281; 33-24-05-282;
Restrictions [57 FR 8086-8089, 3/6/92] (Checklist 102). 33-24-06-16
Hazardous Debris Case-by-Case Capacity Variance [57 FR
20766-20770, 5/15/92] (Checklist 103).
33-24-05-275...........................................
Used Oil Filter Exclusion [57 FR 21524-21534, 5/29/92] 33-24-02-04
(Checklist 104).
Lead-bearing Hazardous Materials Case-by-Case Capacity 33-24-05-275.
Variance [57 FR 28628-28632, 6/26/92] (Checklist 106).
Used Oil Filter Exclusion: Technical Corrections [57 FR 33-24-02-04.
29220, 7/1/92] (Checklist 107).
Toxicity Characteristics Revisions: Technical 33-24-02-04; 33-24-06-16.
Corrections [57 FR 30657-30658, 07/10/92] (Checklist
108).
Land Disposal Restrictions for Newly Listed Wastes & 33-24-01-04; 33-24-02-03; 33-24-03-12; 33-24-05,
Hazardous Debris [57 FR 37194-37282] (Checklist 109). Appendix VI; 33-24-05-59 thru 61; 33-24-05-74; 33-24-
05-76; 33-24-05-251; 33-24-05-254; 33-24-05-256; 33-24-
05-258; 33-24-05-265; 33-24-05-276; 33-24-05-280 thru
283; 33-24-05-285; 33-24-05-286; 33-24-05-290; 33-24-
05-475 thru 500; 33-24-06-14; 33-24-06-16; 33-24-06-
17.
Consolidated Liability Requirements [53 FR 33938-33960, 33-24-05-75; 33-24-05-77; 33-24-05-79; 33-24-05-81; 33-
9/1/88; 56 FR 30200, 7/1/91; 57 FR 42832-42844, 9/16/ 24-06-16.
92] (Checklist 113).
Chlorinated Toluenes Production Waste Listing [57 FR 33-24-02, Appendix IV; 33-24-02-17.
47376-47386, 10/15/92] (Checklist 115).
Hazardous Soil Case-By-Case Capacity Variance [57 FR 33-24-05-275.
47772-47776, 10/20/92] (Checklist 116).
Toxicity Characteristic Amendment [57 FR 23062-23063, 33-24-02-03.
06/01/92] (Checklist 117B).
Liquids in Landfills II [57 FR 54452-54461, 11/18/92] 33-24-05-04; 33-24-05-183; 33-24-05-185; 33-24-06-16.
(Checklist 118).
Toxicity Characteristic Revision; TCLP Correction [57 33-24-02, Appendix II.
FR 55114-55117, 11/24/92] (Checklist 119).
Wood Preserving: Revisions to Listings & Technical 33-24-02-16; 33-24-05-501 thru 504; 33-24-06-16.
Requirements [57 FR 61492-61505, 12/24/92] (Checklist
120).
Corrective Action Management Units & Temporary Units 33-24-01-04; 33-24-05-01; 33-24-05-58; 33-24-05-251; 33-
[58 FR 8658-8685, 2/16/93] (Checklist 121). 24-05-552; 33-24-05-553; 33-24-06-14; 33-24-06-16.
Land Disposal Restrictions; Renewal of the Hazardous 33-24-05-275.
Waste Debris Case-By-Case Capacity Variance [58 FR
28506-28511, 5/14/93] (Checklist 123).
Land Disposal Restrictions for Ignitable & Corrosive 33-24-05-01; 33-24-05-250; 33-24-05-251; 33-24-05-256;
Characteristic Wastes Whose Treatment Standards Were 33-24-05-258; 33-24-05-277; 33-24-05-280 thru 283; 33-
Vacated [58 FR 29860-29887, 5/24/93] (Checklist 124). 24-06-14; 33-24-6-16.
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\1\ North Dakota Administrative Code (NDAC), Article 33-24, as amended through January 1, 1994, unless otherwise
indicated.
H. Where Are the Revised State Rules Different Fromt he Federal
Rules?
We consider the following State requirements to be more stringent
than the Federal requirements: 33-24-01-04.27, because the State does
not allow a closed or closing unit to be designated as a corrective
action management unit; 33-24-02-04.2.i, because the State excludes
only discarded wood or wood products that fail for the Toxic
Characteristic Leaching Procedure for arsenic while Federal rules
exclude discarded wood or wood products that fail for Hazardous Waste
Codes D004 through D017; 33-24-03-12.1.a(1), because North Dakota
subjects containers to full status rather than interim status
standards; 33-24-03-12.1.a(2), because North Dakota subjects tanks to
full status rather than interim status standards; 33-24-03-12.1.a(1),
because North Dakota subjects containment buildings to full status
rather than interim status standards; 33-24-05-01.2, because the State
does not allow for interim status facilities; 33-
[[Page 2901]]
24-05-04.1.a, because the State does not allow owners/operators of
closed landfills to accept non-hazardous waste under certain
conditions; 33-24-05-256.2.e.(3), because the State does not allow a
treatment facility with interim status units to treat hazardous waste;
33-24-05-281.2, because the State does not differentiate between high
and low zinc non-wastewater (K061 wastes); 33-24-05-282.1.b and 33-24-
05-282.1, Table 1, because the State does not allow a treatment
facility with interim status units to treat hazardous waste; 33-24-05-
282.3.a, because the State does not allow a treatment facility with
interim status units to treat hazardous waste; 33-24-05-282.3.c,
because the State does not allow lab packs eligible for land disposal
to be disposed at interim status landfills; 33-24-05-283.3.a, because
the State does not allow a treatment facility with interim status units
to treat hazardous waste; 33-24-05-552.2.a.1 & 2.b, because the State
does not have an analog to 40 CFR 265.113 for interim facilities; North
Dakota does not have an equivalent to 40 CFR 265.145(f)(9) making the
State more stringent. Nevertheless, these requirements are part of
North Dakota's authorized program and are Federally enforceable.
We also consider the following State requirements to go beyond the
scope of the Federal program: 33-24-06-14(7)(a)(3), because the State
has requirements for newly regulated wastes and units that are not
required by Federal rules. Broader-in-scope requirements are not part
of the authorized program and EPA cannot enforce them. Although a
facility must comply with these requirements in accordance with State
law, they are not RCRA requirements.
EPA cannot delegate the Federal requirements at 40 CFR 268.5,
268.6, 268.42(b), and 268.44. EPA will continue to implement these
requirements.
I. Who Handles Permits After This Authorization Takes Effect?
North Dakota will issue and administer permits for all the
provisions for which it is authorized. EPA will continue to administer
any RCRA hazardous waste permits or portions of permits that we issued
prior to the effective date of this authorization. EPA will transfer
any pending permit applications, completed permits, or pertinent file
information to North Dakota within 30 days of this approval. We will
not issue any more new permits or new portions of permits for the
provisions listed in the Table above after the effective date of this
authorization. EPA and North Dakota have agreed to joint permitting and
enforcement for those HSWA requirements for which North Dakota is not
yet authorized.
J. How Does Today's Action Affect Indian Country (18 U.S.C. 115) in
North Dakota?
North Dakota is not authorized to carry out its hazardous waste
program in Indian country, as defined in 18 U.S.C. 1151. This includes:
1. Lands within the exterior boundaries of the following Indian
Reservations located within or abutting the State of North Dakota:
a. Fort Totten Indian Reservation
b. Fort Berthold Indian Reservation
c. Standing Rock Indian Reservation
d. Turtle Mountain Indian Reservation
2. Any land held in trust by the U.S. for an Indian tribe, and
3. Any other land, whether on or off a reservation that qualifies
as Indian country.
Therefore, this action has no effect in Indian country where EPA
will continue to implement and administer the RCRA program in these
lands.
In excluding Indian country from the scope of this program
revision, we are not making a determination that the State either has
adequate jurisdiction or lacks jurisdiction over sources in Indian
country. Should the State of North Dakota choose to seek program
authorization within Indian country, it may do so without prejudice.
Before EPA would approve the State's program for any portion of Indian
Country, we must be satisfied that the State has authority, either
pursuant to explicit Congressional authorization or applicable
principles of Federal Indian law, to enforce its laws against existing
and potential pollution sources within any geographical area for which
it seeks program approval and that such approval would constitute sound
administrative practice.
K. What is Codification and is EPA Codifying North Dakota's
Hazardous Waste Program as Authorized in this Rule?
Codification is the process of placing the State's authorized
hazardous waste program statutes and regulations into the Code of
Federal Regulations. We do this by referencing the authorized State
rules in 40 CFR part 272. We reserve the amendment of 40 CFR part 272,
subpart JJ for this authorization of North Dakota's program until a
later date.
L. Regulatory Analysis and Notices
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 to State, local, and tribal governments, in
the aggregate, or to 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 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 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 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.
EPA has determined that section 202 and 205 requirements do not
apply to today's action because this rule does not contain a Federal
mandate that may result in annual expenditures of $100 million or more
for State, local, and/or tribal governments in the aggregate, or the
private sector. Costs to State, local and/or tribal governments already
exist under the State program, and today's action does not impose any
additional obligations on regulated entities. In fact, EPA's approval
of State programs generally may reduce, not increase, compliance costs
for the private sector. Further, as it applies to the State, this
action does not impose a Federal intergovernmental mandate because
[[Page 2902]]
UMRA does not include duties arising from participation in a voluntary
federal program.
The requirements of section 203 of UMRA also do not apply to
today's action because this rule contains no regulatory requirements
that might significantly or uniquely affect small governments. Although
small governments may be hazardous waste generators, transporters, or
own and/or operate TSDFs, they are already subject to the regulatory
requirements under the existing State laws that are being authorized by
EPA, and, thus, are not subject to any additional significant or unique
requirements by virtue of this program approval.
Certification Under the Regulatory Flexibility Act (RFA), as amended by
the Small Business Regulatory Enforcement Fairness Act of 1996
(SBREFA), 5 U.S.C. 601 et seq.
The RFA generally requires an agency 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 action on small
entities, small entity is defined as: (1) A small business as specified
in the Small Business Administration regulations; (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.
After considering the economic impacts of this authorization on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. This action
does not impose any new requirements on small entities because small
entities that are hazardous waste generators, transporters, or that own
and/or operate TSDFs are already subject to the regulatory requirements
under the State laws which EPA is now authorizing. This action merely
authorizes for the purpose of RCRA section 3006 those existing State
requirements.
Compliance With Executive Order 12866
The Office of Management and Budget has exempted this rule from the
requirements of Executive Order 12866.
Compliance With 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 the various levels of government.''
Under section 6 of 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 authorization does not have federalism implications. It will
not have a substantial direct effect on 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, because this rule affects only
one State. This action simply approves the State's proposal to be
authorized for updated requirements of the hazardous waste program that
the State has voluntarily chosen to operate. Further, as a result of
this action, newly authorized provisions of the State's program now
apply in lieu of the equivalent Federal program provisions implemented
by EPA under HSWA. Affected parties are subject only to those
authorized State program provisions, as opposed to being subject to
both Federal and State regulatory requirements. Thus, the requirements
of section 6 of the Executive Order do not apply.
Compliance With Executive Order 13045
Executive Order 13045, ``Protection of Children from Environmental
Health Risks and Safety Risks,'' applies to any rule that: (1) the
Office of Management and Budget determines is ``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.
Compliance With 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 with consulting, Executive Order 13084
requires EPA to provide to the Office of Management and Budget, 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.''
This rule is not subject to Executive Order 13084 because it does
not significantly or uniquely affect the communities of Indian tribal
governments. North Dakota is not authorized to implement the RCRA
hazardous waste program in Indian country. This action has no effect on
the
[[Page 2903]]
hazardous waste program that EPA implements in the Indian country
within the State.
Paperwork Reduction Act
Under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., Federal
agencies must consider the paperwork burden imposed by any information
request contained in a proposed rule or a final rule. This rule will
not impose any information requirements upon the regulated community.
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 provide Congress, through OMB, explanations when the Agency decides
not to use available and applicable voluntary consensus standards.
This action does not involve technical standards. Therefore, EPA
did not consider 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 waste, Hazardous waste
transportation, Indian lands, Intergovernmental relations, Penalties,
Reporting and recordkeeping requirements, Water pollution control,
Water supply.
Authority: This 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: January 5, 2000.
Jack W. McGraw,
Acting Regional Administrator, Region 8.
[FR Doc. 00-1067 Filed 1-18-00; 8:45 am]
BILLING CODE 6560-50-P