[Federal Register Volume 67, Number 126 (Monday, July 1, 2002)]
[Rules and Regulations]
[Pages 44069-44073]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-16465]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 271
[FRL-7239-7]
Idaho: Final Authorization of State Hazardous Waste Management
Program Revision
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: Idaho applied to the Environmental Protection Agency (EPA) for
final authorization of changes to its hazardous waste program under the
Resource Conservation and Recovery Act (RCRA). The EPA has reached a
final determination that these changes to the Idaho hazardous waste
management program satisfy all of the requirements necessary to qualify
for final authorization. Thus, with respect to these revisions, EPA is
granting final authorization to the State to operate its program
subject to the limitations on its authority retained by EPA in
accordance with RCRA, including the Hazardous and Solid Waste
Amendments of 1984 (HSWA).
EFFECTIVE DATE: Final authorization for the revisions to the hazardous
waste program in Idaho shall be effective at 1 p.m. on July 1, 2002.
FOR FURTHER INFORMATION CONTACT: Jeff Hunt, WCM-122, U.S. EPA Region
10, Office of Waste and Chemicals Management, 1200 Sixth Avenue, Mail
Stop WCM-122, Seattle, Washington, 98101, phone (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 and consistent with the Federal program.
States are required to have enforcement authority which is adequate to
enforce compliance with the requirements of the hazardous waste
program. Under RCRA Section 3009, States are not allowed to impose any
requirements which are less stringent
[[Page 44070]]
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 Title 40 of the Code of Federal Regulations (CFR)
parts 124, 260 through 266, 268, 270, 273 and 279.
Idaho initially received final authorization on March 26, 1990,
effective April 9, 1990 (55 FR 11015), to implement the State's
hazardous waste management program. EPA also granted authorization for
changes to Idaho's 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), and October 21,
1998, effective January 19, 1999 (63 FR 56086).
On May 1, 2001, Idaho submitted a final program revision
application to EPA in accordance with 40 CFR 271.21 seeking
authorization of changes to the State program. On August 22, 2001, EPA
published proposed and immediate final rules announcing its intent to
grant Idaho final authorization for revisions to Idaho's hazardous
waste program. The proposed rule can be found at 66 FR 44107, August
22, 2001. The immediate final rule appears at 66 FR 44071, August 22,
2001.
B. What Were the Comments to EPA's Proposed and Immediate Final Rule?
Along with its intent to immediately authorize revisions to the
Idaho hazardous waste management program, EPA announced the
availability of the authorization revision application and rulemaking
for public comment. EPA received one adverse comment during the comment
period in the form of a ``Petition to the United States Environmental
Protection Agency to Commence Proceedings for Withdrawal of the Idaho
Department of Environmental Quality (IDEQ) as the RCRA Authority for
the State of Idaho'' (Petition) challenging the administration and
enforcement of the hazardous waste program by the State of Idaho and
seeking withdrawal of authorization. EPA withdrew its Immediate Final
Rule on October 5, 2001, 66 FR 50833, in order to respond to the
adverse comment. EPA's proposed rule, 66 FR 44107, was not withdrawn
and was retained for later consideration. EPA has taken into
consideration comments in the Petition relating to the Idaho hazardous
waste management program in taking today's action. The significant
issues raised by the Commentors for purposes of this revision
authorization and EPA's responses follow below.
Today's action is not a determination on the merits of the Petition
to withdraw federal authorization for environmental programs in Idaho.
In response to the Petition, EPA initiated an informal investigation of
the authorized hazardous waste program in Idaho. Based on the results
of that investigation, on March 7, 2002, the Regional Administrator for
Region 10 found no basis to commence withdrawal proceedings and denied
the Petition. That response is included in the administrative record
for this rulemaking. The Petition raised many issues not relevant to
the revision authorization. EPA considered those issues fully in its
response to the Petition.
This rulemaking considers and responds to the comments relevant to
the revision authorization. Commentors raised issues in the following
areas: (1) IDEQ's compliance with the permitting requirements for
authorized hazardous waste programs; (2) IDEQ's enforcement of the
authorized hazardous waste program; (3) IDEQ's compliance with the
Memorandum of Agreement (MOA) for the authorized hazardous waste
program; and (4) IDEQ's funding and staffing of the authorized program.
Comment area #1: EPA received comment relating to IDEQ's
implementation of RCRA permitting. The comments generally asserted that
the IDEQ was not issuing permits as required but was allowing
facilities to operate under interim status without permits, and was for
those permits issued, not issuing permits which conformed to the
requirements of 40 CFR part 271. Commentors specifically focused on
permitting issues involving the Idaho National Environmental and
Engineering Laboratory (``INEEL'') facility, a mixed (radioactive and
hazardous) waste facility in Idaho. Commentors claimed that IDEQ had
not issued permits to units at INEEL and had allowed units to illegally
operate without permits. Commentors also claimed that permits issued by
IDEQ to the INEEL facility were incomplete and failed to provide for
full public participation.
Response: To meet EPA approval standards for authorization, State
programs must include requirements for permitting. See 40 CFR 271.1(c).
States with authorized hazardous waste programs under 40 CFR part 271
must have legal authority to implement permitting provisions as set
forth in 40 CFR 271.13 ``Requirements with respect to permits and
permit applications.'' 40 CFR 270.13(a) provides: ``State law must
require permits for owners and operators of all hazardous waste
management facilities required to obtain a permit under 40 CFR part 270
and prohibit the operation of any hazardous waste management facility
without such a permit, except that States may, if adequate legal
authority exists, authorize owners and operators of any facility which
would qualify for interim status under the Federal program to remain in
operation until a final decision is made on the permit application, * *
* .'' Idaho's legal authorities are reviewed with each revision to the
authorized program and were reviewed prior to EPA's issuance of the
August 22, 2001 immediate final rule. EPA's review of Idaho legal
authorities did not disclose any lack of authority in Idaho law to
require hazardous waste management facilities to obtain a permit or to
operate as an interim status facility.
40 CFR 271.14, ``Requirements for permitting,'' mandates that:
``All State programs under this subpart must have legal authority to
implement each of the following provisions and must be administered in
conformance with each; except that States are not precluded from
omitting or modifying any provisions to impose more stringent
requirements * * * .'' The regulation then specifies that 40 CFR
270.1(c)(1), 270.4, 270.5, 270.10 through 33; 270.40, 270.41, 270.43,
270.50, 270.60, 270.61, 270.64 are mandatory. Idaho incorporates the
federal regulations by reference and as a consequence of that
incorporation, each of these requisite provisions is included in
Idaho's hazardous waste regulations. Idaho's authority to compel
permitting is established. EPA next turns to Idaho's implementation of
that authority.
Idaho's authorized hazardous waste program contains a small
universe of facilities subject to the requirement to obtain a final
RCRA permit and of this universe the INEEL facility represents the
largest and most complex facility subject to RCRA permitting
requirements in the State. EPA's database shows that all facilities
subject to the hazardous waste permitting requirements of the
authorized program in Idaho have been issued final RCRA permits with
the exception of the INEEL facility, which has been partially
permitted. The federal program allows a facility to receive a partial
permit. 40 CFR 270.1(c)(4) provides: ``EPA may issue or deny a permit
for one or more units at a facility without simultaneously issuing or
denying a permit to all of the units at the facility.
[[Page 44071]]
The interim status of any unit for which a permit has not been issued
or denied is not affected by the issuance or denial of a permit to any
other unit at the facility.'' Idaho's hazardous waste program, which
incorporated the federal regulation at 40 CFR 270.1(c)(4) by reference,
has been authorized to allow partial permitting, replacing ``EPA may
issue'' with ``IDEQ may issue.'' See IDAPA 16.01.05.012.
The Commentors maintain permitting less than all units at a
facility results in an incomplete permit and is consequently non-
compliant with the requirement to obtain a RCRA permit for the
facility. The regulations clearly allow for the use of partial
permitting and such use is in compliance with the RCRA permitting
requirements. At a complex federal facility, such as INEEL with 137
hazardous waste management units, partial permitting is an appropriate
and compliant approach to permitting the facility. Those units which
have not yet been permitted are required to comply with the interim
status standards until permitted, thus there is no regulatory gap in
managing hazardous wastes at a facility where partial permits have been
issued.
The Commentors also generally asserted that the IDEQ did not allow
full public participation in permit decision making. Those requirements
are found at 40 CFR part 124. Idaho incorporated 40 CFR part 124
subparts A and B by reference and is authorized for those regulations.
Public participation requirements are applicable at the time of
permitting and are applicable to partial permits. Commentors will have
an opportunity to comment on units not addressed in a partial permit
when those units are themselves permitted.
EPA does not agree that IDEQ failed to comply with the Expanded
Public Participation Rule for certain permitting activities at the
INEEL facility. The permitting activities occurred before the State of
Idaho enacted the rule as part of its hazardous waste program. Idaho
enacted the Expanded Public Participation Rule on July 2, 1997; the
Idaho hazardous waste program was authorized for the rule on October
21, 1998. Prior to the 1997 enactment, the rule was not a requirement
of the hazardous waste program in Idaho and the State could not require
compliance with the federal rule. The rule is applicable to permit
applications in Idaho currently and must be complied with. Information
provided by Commentors on related matters shows that Commentors have
availed themselves of the opportunity to comment on permits issued by
the IDEQ as allowed under the Expanded Public Participation Rule.
Comment area #2: EPA received comment relating to the IDEQ's
enforcement of the authorized hazardous waste program. The Commentors
generally asserted that the IDEQ failed to act on violations of permits
or program requirements, failed to seek adequate penalties, failed to
inspect and monitor hazardous waste activities and failed to initiate
closure for non-complaint facilities. The Commentors enforcement
concerns focused on enforcement at the INEEL facility.
Response: IDEQ provided EPA with a statistical summary of
enforcement actions taken by IDEQ since 1990 at INEEL. IDEQ issued
INEEL Notices of Violation at least eight times and assessed cash
penalties of $906,031.89 and Supplemental Environmental Projects valued
at $342,606.00. EPA, in two separate program reviews, did not find
IDEQ's enforcement of its hazardous waste program at INEEL to be
problematic and has not found the State's enforcement of the authorized
hazardous waste program at INEEL to be inadequate. The Commentors
contention that IDEQ failed to close non-compliant facilities is
inaccurate and is based on the Commentors' belief that a full permit
for all units is required for a facility to be compliant with RCRA. As
has been discussed, partial permitting of certain units, while allowing
others to remain subject to the interim status standards, does not
result in non-compliance for those units not addressed by the partial
permit.
Comment area #3: The Commentors asserted that IDEQ was not in
compliance with the MOA, a required element of the authorized hazardous
waste program.
Response: States are required, for purposes of administering an
authorized hazardous waste program, to execute an MOA with EPA. See 40
CFR 271.8. The MOA includes, among others, mandatory provisions to
coordinate enforcement and inspection efforts between the state and
EPA, including the sharing of information on facilities and permits.
The Commentors did not point to any specific area of the MOA where IDEQ
was out of compliance with the agreement but discussed concerns with
IDEQ's permitting activities at the INEEL facility.
EPA has not found any failure on the part of IDEQ to comply with
the currently authorized MOA. Nor, as discussed above, does EPA have
cause to find that IDEQ failed to implement the authorized program at
the INEEL facility. Although Commentors may disagree with the issuance
of partial permits at INEEL, partial permitting is allowed under the
federal regulations and is an authorized part of the Idaho hazardous
waste program and is not inconsistent with the MOA.
EPA notes that IDEQ submitted a revised MOA as a part of the
application package for this rulemaking. The revised MOA will become
part of the authorized program as a result of this final rule.
Comment area #4: The Commentors expressed concern over IDEQ's
funding and staffing levels and generally asserted that the IDEQ was
underfunded and understaffed to carry out an authorized hazardous waste
program.
Response: In response to this concern, EPA looked at OSWER
Directive 9540.00-10 ``Capability Assessment Guidance,'' January 30,
1992 for ``Resources and Skills Mix'' used in assessing overall state
capability. The guidance specifies that EPA look at the demonstrated
ability of the State to bring sufficient and appropriate resources to
the program, regardless of short-term staffing shortages, unpredictable
legislative activities regarding appropriations for the state program,
and regardless of competing demands for resources available for program
priorities. OSWER Directive 9540.00-10. Unacceptable capability would
be identified where, for example, a State was significantly
understaffed, had a high turnover rate of staff resulting in poor work
product and had not made an effort to correct the situation. EPA's
review of IDEQ's program description and attachments, which were
submitted as part of the authorization package for this revision to the
authorized hazardous waste program, did not find the program to be
understaffed or to be experiencing a high turnover rate of staff.
Rather, the full time equivalent (FTE) personnel devoted to the IDEQ
hazardous waste management program adequately meet the staffing
component of skills and personnel necessary for an authorized hazardous
waste program.
With respect to funding resources available, EPA reviewed funding
guidance issued by the Office of Solid Waste (OSW) in 1996. This
guidance was issued in the context of providing federal grant money to
the states pursuant to Section 3011 of RCRA. The guidance established a
minimum funding requirement of $466,666 for maintaining hazardous waste
programs in small states , such as Idaho, and with small universes of
hazardous waste activities. Idaho's authorization application package
for this rulemaking included information indicating that Idaho's
contribution to the minimum
[[Page 44072]]
funding requirement was $943,900, well above the minimum level set by
EPA's own guidance.
C. What Decisions Have We Made in this Rule?
EPA has made a final determination that Idaho's application for
authorization of the revisions to the Idaho authorized program meets
all of the statutory and regulatory requirements established by RCRA.
Therefore, with respect to the revisions, we are granting Idaho final
authorization to operate its hazardous waste program as described in
the revision authorization application. Idaho's authorized program will
be responsible for carrying out the aspects of the RCRA program
described in its revised program application, subject to the
limitations of RCRA, including the Hazardous and Solid Waste Amendments
of 1984 (HSWA). Idaho's authorized program does not extend to Indian
country. EPA retains jurisdiction and authority to implement and
enforce RCRA in Indian country within the State boundaries.
New Federal requirements and prohibitions imposed by Federal
regulations that EPA promulgates under the authority of HSWA are
implemented by EPA and take effect in States with authorized programs
before such programs are authorized for the requirements. Thus, EPA
will implement those HSWA requirement and prohibitions in Idaho,
including issuing permits or portions of permits, until the State is
granted authorization to do so.
D. What Will Be the Effect of Today's Action?
The effect of today's action is that a facility in Idaho subject to
RCRA must comply with the authorized State program requirements and
with any applicable Federally-issued requirement, such as, for example,
the federal HSWA provisions for which the State is not authorized, and
RCRA requirements that are not supplanted by authorized State-issued
requirements, in order to comply with RCRA. Idaho has enforcement
responsibilities under its State hazardous waste program for violations
of its currently authorized program and will have enforcement
responsibilities for the revisions which are the subject of this final
rule. EPA continues to have independent enforcement authority under
RCRA sections 3007, 3008, 3013, and 7003, which include, among others,
authority to:
--Do inspections, and require monitoring, tests, analyses or reports;
--Enforce RCRA requirements, including State program requirements that
are authorized by EPA and any applicable Federally-issued statutes and
regulations, and suspend or revoke permits; and
--Take enforcement actions regardless of whether the State has taken
its own actions.
This final action approving these revisions will not impose
additional requirements on the regulated community because the
regulations for which Idaho's program is being authorized are already
effective under State law.
E. What Rules Are We Authorizing With Today's Action?
EPA is granting final authorization for the revisions to Idaho's
federally authorized program described in Idaho's final complete
program revision application, submitted to EPA on May 1, 2001. We have
made a final determination that Idaho's hazardous waste program
revisions, as described in this rule, satisfy the requirements
necessary for final authorization. Therefore, we grant Idaho final
authorization for all delegable hazardous waste regulations promulgated
as of July 1, 1998, as incorporated by reference in IDAPA
16.01.05.(002)-(016) and 16.01.05.997. \1\ Any subsequent changes to
the Federal program or to State law that occurred after July 1, 1998
are not part of Idaho's authorized RCRA program. EPA is not authorizing
IDAPA 16.01.05.000; 16.01.05.001; 16.01.05.006(02);
16.01.05.016(02)(a),(b); 16.01.05.017-996; 16.01.05.998; and
16.01.05.999.
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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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F. Who Handles Permits After This 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 or
portions of permits issued by EPA Region 10 prior to final
authorization of this revision will continue to be administered by EPA
Region 10 until the issuance or re-issuance after modification of a
State RCRA permit and until EPA takes action on its permit or portion
of permit. HSWA provisions for which the State is not authorized will
continue in effect under the EPA-issued permit or portion of permit.
EPA will continue to issue permits or portions of permits for HSWA
requirements for which Idaho is not yet authorized.
G. 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. EPA does this by
referencing the authorized State's authorized rules in 40 CFR part 272.
EPA is reserving the amendment of 40 CFR part 272, subpart F for
codification of Idaho's program at a later date.
H. How Does Today's Action Affect Indian Country (18 U.S.C. Section
1151) in Idaho?
EPA's decision to authorize the Idaho hazardous waste program does
not include any land that is, or becomes after the date of this
authorization, ``Indian Country,'' as defined in 18 U.S.C. 1151. This
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 jurisdiction over ``Indian Country'' as defined in 18 U.S.C.
1151.
I. Administrative Requirements
The Office of Management and Budget has exempted this action from
the requirements of Executive Order 12866 (58 FR 51735, October 4,
1993), and therefore this action is not subject to review by OMB. This
action authorizes State requirements for the purpose of RCRA 3006 and
imposes no additional requirements beyond those imposed by State law.
Accordingly, I certify that this action will not have a significant
economic impact on a substantial number of small entities under the
Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this action
authorizes pre-existing requirements under State law and does not
impose any additional enforceable duty beyond that required by State
law, it does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Public Law 104-4). For the same reason,
this action also does not have Tribal implications within the meaning
of Executive Order 13175 (65 FR 67249, November 6, 2000). It does not
have substantial direct effects on tribal governments, on the
relationships between the Federal government and the Indian Tribes, or
on
[[Page 44073]]
the distribution of power and responsibilities between the Federal
government and Indian tribes, as specified in Executive Order 13175.
This action will not have substantial direct effects on the States, on
the relationship between the national government and the States, or on
the distribution of power and responsibilities among the various levels
of government, as specified in Executive Order 13132 (64 FR 43255,
August 10, 1999), because it merely authorizes State requirements as
part of the State RCRA hazardous waste program without altering the
relationship or the distribution of power and responsibilities
established by RCRA. This action also is not subject to Executive Order
13045 (62 FR 19885, April 23, 1997), because it is not economically
significant and it does not make decisions based on environmental
health or safety risks. This rule is not subject to Executive Order
13211, ``Actions Concerning Regulations That Significantly Affect
Energy Supply Distribution or Use'' (66 FR 28344, May 22, 2001) because
it is not a significant regulatory action under Executive Order 12866.
This action does not include environmental justice issues that require
consideration under Executive Order 12898 (59 FR 7629, February 16,
1994).
Under RCRA 3006(b), EPA grants a State's application for
authorization as long as the State meets the criteria required by RCRA.
It would thus be inconsistent with applicable law for EPA, when it
reviews a State authorization application, to require the use of any
particular voluntary consensus standard in place of another standard
that otherwise satisfies the requirements of RCRA. Thus, the
requirements of section 12(d) of the National Technology Transfer and
Advancement Act of 1995 (15 U.S.C. 272) do not apply. As required by
section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in
issuing this rule, EPA has taken the necessary steps to eliminate
drafting errors and ambiguity, minimize potential litigation, and
provide a clear legal standard for affected conduct. EPA has complied
with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining
the takings implications of the rule in accordance with the ``Attorney
General's Supplemental Guidelines for the Evaluation of Risk and
Avoidance of Unanticipated Takings' issued under the executive order.
This final rule does not impose an information collection burden under
the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
et seq.).
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.
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: June 20, 2002.
L. John Iani,
Regional Administrator, Region 10.
[FR Doc. 02-16465 Filed 6-28-02; 8:45 am]
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