[Federal Register Volume 67, Number 241 (Monday, December 16, 2002)]
[Rules and Regulations]
[Pages 76995-76998]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-31015]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 271
[FRL-7412-6]
New Jersey: Final Authorization of State Hazardous Waste Program
Revision
AGENCY: Environmental Protection Agency.
ACTION: Immediate final rule.
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SUMMARY: Pursuant to the Resource Conservation and Recovery Act, as
amended, 42 U.S.C. 6901 et seq. (``RCRA''), and the regulations
thereunder, the State of New Jersey (the ``State'') applied for final
authorization of changes to its hazardous waste program. These
revisions were adopted by the State in January 1999. The Environmental
Protection Agency, Region 2 (``EPA'') has reviewed the State's
application and has determined that the State's revisions to its
hazardous waste program satisfy all of the requirements necessary to
qualify for final authorization. Accordingly, EPA is today approving
and authorizing the State's revisions through this immediate final
rule. EPA did not publish a proposal before today's rule because it
views this as a routine program change to the State's hazardous waste
program and does not expect comments that oppose this approval.
Consequently, unless EPA receives written comments which oppose this
authorization during the comment period, the decision to authorize the
revisions to the State's hazardous waste program will take effect as
provided below. If EPA receives comments that oppose this action, EPA
shall publish a document in the Federal Register withdrawing this rule
before it takes effect. In addition to this rule, EPA is publishing in
the proposed rules section of today's Federal Register, a separate
notice that proposes to authorize the State's program revisions. This
proposal ( the ``companion proposal'') will serve as a proposal to
authorize the State's program revisions, if necessary, as explained
more fully below in the section identifying the effective date of this
rule as well as in the companion proposal itself.
DATES: This rule will become effective on February 14, 2003, unless
adverse comments are received by January 15, 2003. If EPA receives such
comment, EPA will publish a timely withdrawal of this rule in the
Federal Register and inform the public that this rule will not take
effect.
ADDRESSES: Written comments should be sent to Walter M. Mugdan,
Director, Division of Environmental Planning and Protection, U.S. EPA,
Region 2, 290 Broadway, New York, New York 10007-1866, (212) 637-3724.
For further information contact Clifford Ng, Division of Environmental
Planning and Protection, USEPA, Region 2, 290 Broadway (22nd Floor) New
York, NY 10007-1866; telephone (212) 637-4113; E mail--
[email protected].
Copies of the State's application for authorization are available
for inspection and copying as follows:
The New Jersey Department of Environmental Protection (``NJDEP'')
Address: Public Access Center, NJDEP, 401 East State Street, 1st
Floor, Trenton, NJ 08625.
Hours: Monday through Friday (excluding holidays), 8:30 a.m.-1
p.m., 2 p.m.-4:30 p.m.
Telephone: (609) 777-3373.
EPA
Address: EPA Library, 16th Floor, 290 Broadway, New York, NY 10007-
1866.
Hours: Monday through Thursday (excluding holidays), 9 a.m.-4:30
p.m., Friday (excluding holidays), 9 a.m.-1 p.m.
Telephone: (212) 637-3185.
FOR FURTHER INFORMATION CONTACT: Clifford Ng, (212) 637-4113.
SUPPLEMENTARY INFORMATION: This rule will become effective on February
14, 2003, unless adverse comments are received during the comment
period. In the event that such adverse comments are received, EPA will
publish in the Federal Register a notice withdrawing this rule before
it becomes effective. EPA will then base any further decision on the
authorization of the State's program revisions on the companion
proposal published in today's Federal Register and will address all
public comments in a later final rule. Interested persons may not have
another opportunity to comment. Therefore, if you want to comment on
this authorization, you must do so at this time. If EPA receives
comments that oppose only the authorization of a particular revision to
the State's hazardous waste program, EPA will withdraw that part of
this rule, but the authorization of the program revisions that the
comments do not oppose will become effective on the date specified
above. The Federal Register notice of withdrawal will specify which
part of the authorization will become effective, and which part is
being withdrawn.
I. State Authorization Under RCRA
Pursuant to section 3006 of RCRA, 42 U.S.C. 6926, EPA may, upon
application by a state, authorize the applicant state's hazardous waste
program to operate in the state in lieu of the federal hazardous waste
program. For purposes of authorization, the federal hazardous waste
program (the ``Federal Program'') is comprised of the regulations
published in Title 40 of the Code of Federal Regulations (``CFR'')
under the authority of RCRA. To qualify for final authorization, a
state's hazardous waste program must: (1) Be equivalent with the
Federal Program; (2) be consistent with the Federal Program; and (3)
provide for adequate enforcement. RCRA section 3006(b), 42 U.S.C.
6926(b).
II. Background--History of RCRA Authorization Within the State
In 1985, the State was granted final authorization by EPA for the
RCRA base program, effective February 21, 1985 (50 FR 5260, 2/7/85). At
that time the base
[[Page 76996]]
program covered the essential core of the Federal Program as reflected
in the initial enactment of RCRA prior to its amendment by the
Hazardous and Solid Waste Amendments of 1984. In 1988 and 1993 EPA
authorized the State for a small number of additional regulations (53
FR 30054, 8/10/88, and 58 FR 59370, 11/9/93).
On October 21, 1996, the State repealed its regulations comprising
its then existing hazardous waste program, including those regulations
authorized by EPA, and adopted a new program (N.J.A.C. 7:26G-1.1 et
seq., 28 New Jersey Register 4606, 10/21/96). As part of this October
21, 1996 adoption, the State adopted, with certain exceptions and
modifications, 40 CFR Parts 124, 260-266, 268 and 270 as set forth in
the July 1, 1993 CFR, by incorporation by reference, and designated
these provisions N.J.A.C. 7:26G-4 through N.J.A.C. 7:26G-13, inclusive.
(28 New Jersey Register 4652-4668, 10/21/96. N.J.A.C. 7:26G-4 through
N.J.A.C. 7:26G-13 are referred to below as the ``State Program'').
Under cover of a letter dated January 13, 1999, the State submitted an
application meeting the requirements of 40 CFR Part 271, requesting
authorization of the State Program.\1\ In August 1999, EPA published a
Federal Register notice in which it authorized the State Program. (64
FR 41823, 8/2/99).
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\1\ The State's redesignation of the Parts of the Federal
Program adopted by incorporation by reference on October 21, 1996,
and comprising the State Program, is as follows: N.J.A.C. 7:26G-4
(40 CFR Part 260); N.J.A.C. 7:26G-5 (40 CFR Part 261); N.J.A.C.
7:26G-6 (40 CFR Part 262); N.J.A.C. 7:26G-7 (40 CFR Part 263);
N.J.A.C. 7:26G-8 (40 CFR Part 264); N.J.A.C. 7:26G-9 (40 CFR Part
265); N.J.A.C. 7:26G-10 (40 CFR Part 266); N.J.A.C. 7:26G-11 (40 CFR
Part 268); N.J.A.C. 7:26G-12 (40 CFR Part 270); and N.J.A.C. 7:26G-
13 (40 CFR Part 124).
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III. The January 1999 Adoption and the Scope of the Authorization for
Which the State Has Applied
On September 8, 1998, the State proposed various amendments to the
State Program, as well as amendments to the procedures by which
revisions to the state Program would subsequently be adopted. (30
N.J.R. 3128, 9/8/98). On January 19, 1999, the State adopted the
proposed amendments with changes responsive to public comment. (31
N.J.R. 166, 1/19/99, the ``Adoption''). In terms of process, the
Adoption amended the New Jersey Administrative Code (``N.J.A.C.'') by
establishing a procedure pursuant to which the regulations comprising
the Federal Program would subsequently be adopted by prospective
incorporation by reference. (N.J.A.C. 7:26G-1.4(b), (c), (e) and (j)-
(l), 31 N.J.R. 169-70, 1/19/99). Substantively, the Adoption revised
the State Program by incorporating by reference all of the changes to
the Federal Program promulgated by EPA from July 2, 1993 through July
31, 1998, with certain specified modifications, and by prospectively
incorporating the Federal Program as thereafter amended and
supplemented. Since the CFR is current through July 1 of the calendar
year in which it is published, this means that in effect the State
incorporated by reference the Federal Program as set forth in the July
1998 version of 40 CFR; incorporated by reference all amendments or
additions to the Federal Program adopted by EPA from July 2 through
July 31, 1998, of which there was only one: 63 FR 37780 (7/14/98),
amending subsection 40 CFR 261.5(j); and prospectively incorporated by
reference the regulations comprising the Federal Program as
subsequently amended and supplemented. (The period from July 2, 1993
through July 31, 1998, shall be referred to below as the ``relevant
period'').
Under cover of a letter dated August 22, 2002, the State submitted
an application meeting the requirements of 40 CFR Part 271, requesting
final authorization of the State Program revisions made in the Adoption
with a specified limitation. Thus, in its application, the State
limited its request for authorization to those of its regulations which
incorporate by reference the changes to the Federal Program promulgated
by EPA during the relevant period. Conversely, the State in its
application is not requesting to be authorized for those of its
regulations which were adopted by means of prospective incorporation by
reference of federal regulations promulgated by EPA subsequent to July
31, 1998. (The revisions to the State Program for which the State has
requested authorization shall be referred to below as the ``1999
Program Revisions'').
IV. Decision
A. Authorization of the 1999 Program Revisions and the State Program As
Revised
EPA has reviewed the State's application and has determined that
the 1999 Program Revisions possess the requisite equivalence and
consistency with the Federal Program. Furthermore, the State's
application indicates that the State possesses the necessary
enforcement resources and is prepared to utilize those resources to
provide adequate enforcement of the State Program as revised.
Accordingly, EPA has determined that the 1999 Program Revisions qualify
for authorization and hereby approves and authorizes them.
As noted above, the Adoption adopts the changes to the Federal
Program promulgated by EPA during the relevant period, with certain
specified modifications. These modifications, however, are not
substantive. Rather, they reflect appropriate substitutions of State
citations for federal citations, the substitution of State terminology
for federal terminology where the subject federal terms are not
replaced globally in the State Program's definitions (7:26G-4.2), the
exclusion from said definitional section of certain required federal
terminology, technical corrections to State rules, and the nonadoption
of federal regulations applicable only to facilities outside the State
or not otherwise required for authorization. None of these
nonsubstantive modifications impact the requisite equivalence or
consistency of the State Program as revised, and therefore, pose no
obstacle to authorization.
EPA notes that its determination to authorize the 1999 Program
Revisions is based on the information submitted to EPA by the State. If
the criteria upon which EPA bases its approval subsequently change for
any reason, including without limitation changes in State laws,
regulations or administrative procedures, or major budgetary changes,
which negate the equivalency or consistency of one or more provisions
of the 1999 Program Revisions, or in any way limit the State's ability
to enforce or properly administer the State Program as revised, EPA may
revisit its approval. In such event, EPA may exercise its authority,
provided in 40 CFR 271.22, to afford the State an opportunity to
correct any program deficiencies, or EPA may withdraw authorization of
the 1999 Program Revisions, in whole or in part. Furthermore,
authorization of the 1999 Program Revisions by EPA shall not be deemed
in any way as a waiver by EPA of any of its statutory rights under RCRA
including but not limited to sections 3004(v), 3005(c)(3), 3007, 3008,
3013, 3020(c) and 7003 (42 U.S.C. 6924(v), 6925(c)(3), 6927, 6928,
6934, 6939b(c) and 6973).
B. Exceptions
In 1999, when EPA authorized the State Program, it did so with two
important exceptions. These two exceptions are in no way altered by
today's action authorizing the 1999 Program Revisions. These two
exceptions to EPA's authorization of the State Program, as revised, are
specified below.
[[Page 76997]]
(1) Corrective Action In its October 1996 adoption, in N.J.A.C.
7:26G-8.1(a), the State incorporated by reference 40 CFR Part 264 , the
part of the Federal Program fixing the standards for the owners and
operators of hazardous waste treatment, storage and disposal
facilities. In the remaining subparagraphs of 7:26G-8.1 [(b) through
(h)] the State neither omitted 40 CFR 264.101, 264.552 and 264.553, nor
adopted these federal regulations with modifications. Thus, in 1996 the
State adopted 40 CFR 264.101, 264.552 and 264.553 by means of
incorporation by reference through 7:26G-8.1(a). The above three
sections of the Federal Program are the sections implementing the
corrective action provisions of RCRA, which provisions were
incorporated into RCRA upon the enactment of the Hazardous and Solid
Waste Amendments of 1984. The State, despite its adoption of 40 CFR
264.101, 264.552 and 264.553, informed EPA in its 1999 application for
authorization of the State Program that it was not applying for
authorization for corrective action at that time, and would apply for
corrective action authorization under a separate application in the
future. Accordingly, in its 1999 Federal Register notice authorizing
the State Program, while EPA authorized N.J.A.C. 7:26G-8.1(a), EPA did
not authorize the State for corrective action, and stated explicitly
that 40 CFR 264.101, 264.552 and 264.553 would remain in full force and
effect, and that until the State is authorized for corrective action,
EPA would continue to issue corrective action permits within the State.
(64 FR at 41824, 8/2/99).
In its current application, the State again has not sought
authorization for corrective action. Consequently, the State remains
unauthorized for corrective action; 40 CFR 264.101, 264.552 and 264.553
remain in full force and effect; and EPA shall continue to issue
corrective action permits within the State pursuant to federal
permitting regulations, until the State is authorized for corrective
action.
(2) Loss of Interim Status The second exception evolves the
regulations governing the loss of interim status. In its October 1996
adoption, in N.J.A.C. 7:26G-12.1(a), the State incorporated by
reference 40 CFR 270.73(a) and (b). The State, however, did not
incorporate by reference 40 CFR 270.73(c)-(g). Rather, the State
replaced these subparagraphs of 40 CFR 270.73 with 7:26G-12.1(c)(16).
Title 40 CFR 270.73 is the regulation in the Federal Program governing
the loss of interim status (RCRA section 3005(c)(2)(C) and (e)(2)(3),
42 U.S.C. 6925(c)(2)(C) and (e)(2)(3)). N.J.A.C. 7:26G-12.1(c)(16)
provides that the State may terminate interim status at its discretion,
under a variety of circumstances subject to a hearing, if requested. By
contrast, the federal loss of interim status regulations, excluded by
the State and replaced by 7:26G-12.1(c)(16), are non-discretionary and
operate automatically, without the opportunity for a hearing, if the
requirements cited in these federal provisions are not met. Since
7:26G-12.1(c)(16) is discretionary and lacks automatic application, it
is not equivalent to 40 CFR 270.73(c)-(g), is less stringent than 40
CFR 270.73(c)-(g), and therefore, could not be authorized.
Consequently, in its 1999 Federal Register notice authorizing the State
Program, EPA did not authorize the State for N.J.A.C. 7:26G-
12.1(c)(16), and stated explicitly that 40 CFR 270.73(c)-(g) would
remain in full force and effect.
In the 1999 Program Revisions, the State did not alter the
provisions of N.J.A.C. 7:26G-12.1(c)(16) which previously precluded its
authorization. Consequently, EPA today is not authorizing the State for
N.J.A.C. 7:26G-12.1(c)(16), and 40 CFR 270.73(c)-(g) shall remain in
full force and effect.
V. 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 the State's 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 (Pub. L. 104-4). For the same reason, this
action does not have tribal implications within the meaning of
Executive Order 13175 (65 FR 67249, November 9, 2000). It does not have
substantial direct effects on tribal governments, on the relationship
between the Federal government and the Indian tribes, as specified in
Executive Order 13175. This action will not have substantial direct
effects on the states, on the relationship between the Federal
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 of New
Jersey's 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 28355 (May 22, 2001)) because it is not a significant
regulatory action under Executive Order 12866.
Under RCRA 3006(b), EPA grants a state's application for
authorization as long as such 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 note) 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 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.).
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, 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 document and
[[Page 76998]]
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 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
action will be effective 60 days after publication of this notice, or
later, if adverse comment is received.
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 rule is issued under the authority of Sections
2002(a), 3006 and 7004(b) of RCRA, 42 U.S.C. 6912(a), 6926, 6974(b).
Dated: October 28, 2002.
William J. Muszynski,
Deputy Regional Administrator, Region II.
[FR Doc. 02-31015 Filed 12-13-02; 8:45 am]
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