[Federal Register Volume 69, Number 43 (Thursday, March 4, 2004)]
[Rules and Regulations]
[Pages 10171-10174]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-4820]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 271

[FRL-7631-4]


Delaware: Final Authorization of State Hazardous Waste Management 
Program Revision

AGENCY: Environmental Protection Agency (EPA).

ACTION: Immediate final rule.

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SUMMARY: Delaware has applied to EPA for final authorization of 
revisions to its hazardous waste program under the Resource 
Conservation and Recovery Act (RCRA). EPA has determined that these 
revisions satisfy all requirements needed to qualify for final 
authorization and is authorizing Delaware's changes through this 
immediate final action. EPA is publishing this rule to authorize the 
revisions without a prior proposal because we believe this action is 
not controversial and do not expect comments that oppose it. Unless we 
receive written comments which oppose this authorization during the 
comment period, the decision to authorize Delaware's revisions to its 
hazardous waste program will take effect. If we receive comments that 
oppose this action, or portions thereof, we will publish a document in 
the Federal Register withdrawing the relevant portions of this rule, 
before they take effect, and a separate document in the proposed rules 
section of this Federal Register will serve as a proposal to authorize 
the revisions to Delaware's program that were the subject of adverse 
comment.

DATES: This final authorization will become effective on May 3, 2004, 
unless EPA receives adverse written comments by April 5, 2004. If EPA 
receives any such comment, it will publish a timely withdrawal of this 
immediate final rule in the Federal Register and inform the public that 
this authorization, or portions thereof, will not take effect as 
scheduled.

ADDRESSES: Send written comments to Lillie Ellerbe, Mailcode 3WC21, 
RCRA State Programs Branch, U.S. EPA Region III, 1650 Arch Street, 
Philadelphia, PA 19103, Phone number: (215) 814-5454. Comments may also 
be submitted

[[Page 10172]]

electronically to: [email protected] or by facsimile at (215) 814-
3163. Comments in electronic format should identify this specific 
notice. You may inspect and copy Delaware's application from 8 a.m. to 
4:30 p.m., at the following addresses: Delaware Department of Natural 
Resources & Environmental Control, Division of Air & Waste Management, 
Solid and Hazardous Waste Management Branch, 89 Kings Highway, Dover, 
DE 19901, Phone number 302-739-3689 and EPA Region III, Library, 2nd 
Floor, 1650 Arch Street, Philadelphia, PA 19103, Phone number: (215) 
814-5254.

FOR FURTHER INFORMATION CONTACT: Lillie Ellerbe, Mailcode 3WC21, RCRA 
State Programs Branch, U.S. EPA Region III, 1650 Arch Street, 
Philadelphia, PA 19103, Phone number: (215) 814-5454.

SUPPLEMENTARY INFORMATION:

A. Why Are Revisions to State Programs Necessary?

    States which have received final authorization from EPA under RCRA 
section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous waste 
program that is equivalent to, consistent with, and no less stringent 
than the Federal program. As the Federal program changes to become more 
stringent or broader in scope, States must revise their programs and 
apply to EPA to authorize the revisions. Authorization of 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 revise 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 Has EPA Made in This Rule?

    EPA concludes that Delaware's application to revise its authorized 
program meets all of the statutory and regulatory requirements 
established by RCRA. Therefore, we grant Delaware final authorization 
to operate its hazardous waste program with the revisions described in 
its application for program revisions, subject to the procedures 
described in section E, below. Delaware has responsibility for 
permitting treatment, storage, and disposal facilities (TSDFs) within 
its borders and for carrying out the aspects of the RCRA program 
described in its application, subject to the limitations of the 
Hazardous and Solid Waste Amendments of 1984 (HSWA). New Federal 
requirements and prohibitions imposed by Federal regulations that EPA 
promulgates under the authority of HSWA take effect in authorized 
States before they are authorized for the requirements. Thus, EPA will 
implement those HSWA requirements and prohibitions for which Delaware 
has not been authorized, including issuing HSWA permits, until the 
State is granted authorization to do so.

C. What Is the Effect of Today's Authorization Decision?

    This decision serves to authorize revisions to Delaware's 
authorized hazardous waste program. This action does not impose 
additional requirements on the regulated community because the 
regulations for which Delaware is being authorized by today's action 
are already effective and are not changed by today's action. Delaware 
has enforcement responsibilities under its state hazardous waste 
program for violations of its program, but EPA retains its authority 
under RCRA sections 3007, 3008, 3013, and 7003, which include, among 
others, authority to:
    [sbull] Perform inspections, and require monitoring, tests, 
analyses or reports;
    [sbull] Enforce RCRA requirements and suspend or revoke permits; 
and
    [sbull] Take enforcement actions regardless of whether Delaware has 
taken its own actions.

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 that oppose 
this approval. We are providing an opportunity for public comment now. 
In addition to this rule, in the proposed rules section of today's 
Federal Register we are publishing a separate document that proposes to 
authorize Delaware's program revisions. If EPA receives comments which 
oppose this authorization, or portions thereof, that document will 
serve as a proposal to authorize the revisions to Delaware's program 
that were the subject of adverse comment.

E. What Happens if EPA Receives Comments That Oppose This Action?

    If EPA receives comments that oppose this authorization, or 
portions thereof, we will withdraw this rule, or portions thereof, as 
appropriate, by publishing a document in the Federal Register before 
the rule would become effective. EPA will base any further decision on 
the authorization of Delaware's program changes on the proposal 
mentioned in the previous section. We will then address all public 
comments in a later final rule. You may not have another opportunity to 
comment. If you want to comment on this authorization, you must do so 
at this time.
    If we receive comments that oppose the authorization of a 
particular revision to the State's hazardous waste program, we 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 withdrawal document will 
specify which part of the authorization will become effective, and 
which part is being withdrawn.

F. What Has Delaware Previously Been Authorized for?

    Initially, Delaware received final authorization to implement its 
hazardous waste management program effective June 22, 1984 (53 FR 
23837). EPA granted authorization for revisions to Delaware's 
regulatory program effective October 7, 1996 (61 FR 41345); October 19, 
1998 (63 FR 44152); September 11, 2000 (65 FR 42871); and August 8, 
2002 (67 FR 51478).

G. What Changes Are We Authorizing With Today's Action?

    On November 28, 2003, Delaware submitted a program revision 
application, seeking authorization of additional revisions to its 
program in accordance with 40 CFR 271.21. Delaware's revision 
application includes various regulations which are equivalent to, and 
no less stringent than, changes to the Federal hazardous waste program, 
as published in the Federal Register on November 8, 2000, June 28, 
2001, November 20, 2001 and April 9, 2002. We now make an immediate 
final decision, subject to receipt of written comments that oppose this 
action, that Delaware's hazardous waste program revision satisfies all 
of the requirements necessary to qualify for final authorization. 
Therefore, EPA grants Delaware's final authorization for the following 
program revisions:
    Delaware seeks authority to administer the Federal requirements 
that are listed in Table 1. This Table lists the State analogs that are 
being recognized as no less stringent than the appropriate Federal 
requirements. Unless otherwise stated, the State's statutory references 
are to the Delaware Regulations Governing Hazardous Waste (DRGHW), 
amended and effective July 1, 2002 and July 11, 2002. The statutory 
references are to 7 Delaware Code Annotated (1991).

[[Page 10173]]



                                 Table 1
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   Description of Federal Requirement
       (Revision Checklists \1\)           Analogous Delaware Authority
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                                         RCRA Cluster IX, \2\ HSWA
Chlorinated Aliphatics Listing and LDRs  7 Delaware Code (7 Del. Code)
 for Newly Identified Wastes, 65 FR       Chapter 63, Sec.   6305
 67068-67133, 11/08/00 Revision           Delaware Regulations Governing
 Checklist 189.                           Hazardous Waste (DRGHW)
                                          261.32, 261 Appendices VII and
                                          VIII, 268.33, 268.40/Table
                                         RCRA Cluster XI, non-HSWA
Change of Official EPA Mailing Address,  7 Del. Code, Sec.   6305 DRGHW
 66 FR 34374-34376, 06/28/01, Revision    260.11(a)(11)
 Checklist 193.
                                         RCRA Cluster XII, HSWA/non-HSWA
Inorganic Manufacturing Chemical         7 Del. Code, Sec.  Sec.   6304,
 Manufacturing Wastes Identification      6305 DRGHW 261.4(b)(15),
 and Listing, 66 FR 58258-58300; 67 FR    261.32, 261 Appendix VII,
 17119-17120, 11/20/01; 04/09/02,         268.36 (New paragraph), 268.40/
 Revision Checklist 195.                  Table
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\1\ A Revision Checklist is a document that addresses the specific
  changes made to the Federal regulations by one or more related final
  rules published in the Federal Register. EPA develops these checklists
  as tools to assist States in developing their authorization
  applications and in documenting specific State analogs to the Federal
  Regulations. For more information see EPA's RCRA State Authorization
  Web page at http://www.epa.gov/epaoswer/hazwaste/state.
\2\ A RCRA ``Cluster'' is a set of Revision Checklists for Federal
  rules, typically promulgated between July 1 and June 30 of the
  following year.

    In addition, Delaware will be authorized to carry out, in lieu of 
the Federal program, State-initiated revisions to provisions of the 
State's Program. The following State-initiated revisions equivalent and 
analogous to the numerically-identical RCRA provisions found at Title 
40 of the Code of Federal Regulations: DRGHW 254.53, 264.344(c)(1), 
265.1085(i), Part 265 Appendix I, Part 268 Appendix VIII, 279.11 Table 
1. Another State-initiated revision being authorized by this notice is 
DRGHW 122.1(c)(7), which is equivalent and analogous to 40 CFR 
270.1(c)(7). Delaware will also be authorized to carry out, in lieu of 
the Federal program, State-initiated revisions to provisions of the 
State's Program which are more stringent than is required by the RCRA 
program and are presented in section H.

H. Where Are the Revised Delaware Rules Different From the Federal 
Rules?

    The Delaware hazardous waste program contains some provisions which 
are more stringent than is required by the RCRA program. The more 
stringent provisions are being recognized as a part of the Federally-
authorized program and include the following:
    1. At DRGHW 261.21(a)(1) and (3) Delaware deleted outdated language 
that referred to the approval of equivalent test methods. The State 
does not allow alternative test methods and thereby still remains more 
stringent.
    2. At DRGHW 264.1033(l)(3)(ii), 264.1052(c)(2), (d)(6)(iii), 
264.1053(g)(2), 264.1057(d)(2), 264.1058(c)(2), 264.1084(k)(1), 
264.1085(f)(1), and 264.1086(c)(4)(iii) Delaware is more stringent 
because it requires a facility to make a first effort at repair of a 
defective pollution control device or component to be within one 
calendar day after detection instead of five calendar days as EPA 
requires.
    3. At DRGHW 265.37 Delaware is more stringent because it clarifies 
that an owner or operator must require written documentation of receipt 
to establish arrangements for emergency services. EPA states 
arrangements must be made but does not require written documentation.
    4. At DRGHW 265.1033(k)(3)(ii), 265.1052(d)(6)(ii), 255.1053(g)(2), 
265.1057(d)(2), 265.1058(c)(2), 265.1085(k)(1), 265.1086(f)(1), and 
265.1087(c)(4)(iii) Delaware is more stringent because it requires a 
facility to make a first effort at repair of a defective pollution 
control device or component to be within one calendar day after 
detection instead of five calendar days as EPA requires.
    5. At DRGHW 279.42(b) Delaware is more stringent because it only 
allows used oil transporters the use of the State's form when 
requesting EPA identification (ID) numbers. EPA allows the use of the 
form or a letter for EPA ID numbers.

I. Who Handles Permits After This Authorization Takes Effect?

    After authorization, Delaware will issue permits for all the 
provisions for which it is authorized and will administer the permits 
it issues. EPA will continue to administer any RCRA hazardous waste 
permits or portions of permits which it issued prior to the effective 
date of this authorization. Until such time as formal transfer of EPA 
permit responsibility to Delaware occurs and EPA terminates its permit, 
EPA and Delaware agree to coordinate the administration of permits in 
order to maintain consistency. EPA will not issue any additional new 
permits or new portions of permits for the provisions listed in section 
G after the effective date of this authorization. EPA will continue to 
implement and issue permits for HSWA requirements for which Delaware is 
not yet authorized.

J. How Does Today's Action Affect Indian Country (18 U.S.C. 115) in 
Delaware?

    Delaware is not seeking authorization to operate the program on 
Indian lands, since there are no Federally-recognized Indian lands in 
Delaware.

K. What Is Codification and Is EPA Codifying Delaware'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 rules in 40 CFR part 272. EPA reserves 
the amendment of 40 CFR part 272, subpart I, for this authorization of 
Delaware's program changes until a later date.

L. Statutory and Executive Order Reviews

    This rule only authorizes hazardous waste requirements pursuant to 
RCRA 3006 and imposes no requirements other than those imposed by State 
law (see Supplementary Information: section A. Why are Revisions to 
State Programs Necessary?). Therefore, this rule complies with 
applicable executive orders and statutory provisions as follows.
    1. Executive Order 12866: Regulatory Planning Review--The Office of 
Management and Budget has exempted this rule from its review under 
Executive Order 12866. 2. Paperwork Reduction Act--This rule does not 
impose an information collection burden under the Paperwork Reduction 
Act. 3. Regulatory Flexibility Act--After considering the economic 
impacts of

[[Page 10174]]

today's rule on small entities under the Regulatory Flexibility Act, I 
certify that this rule will not have a significant economic impact on a 
substantial number of small entities. 4. Unfunded Mandates Reform Act--
Because this rule approves 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. 5. Executive Order 13132: Federalism--
Executive Order 12132 does not apply to this rule because it will not 
have federalism implications (i.e., 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). 6. Executive Order 13175: Consultation 
and Coordination with Indian Tribal Governments--Executive Order 13175 
does not apply to this rule because it will not have tribal 
implications (i.e., substantial direct effects on one or more Indian 
tribes, on the relationship between the Federal government and Indian 
tribes, or on the distribution of power and responsibilities between 
the Federal Government and Indian tribes). 7. Executive Order 13045: 
Protection of Children from Environmental Health & Safety Risks--This 
rule is not subject to Executive Order 13045 because it is not 
economically significant and it is not based on health or safety risks. 
8. Executive Order 13211: Actions that Significantly Affect Energy 
Supply, Distribution, or Use--This rule is not subject to Executive 
Order 13211 because it is not a significant regulatory action as 
defined in Executive Order 12866. 9. National Technology Transfer 
Advancement Act--EPA approves State programs as long as they meet 
criteria required by RCRA, so it would be inconsistent with applicable 
law for EPA, in its review of a State program, to require the use of 
any particular voluntary consensus standard in place of another 
standard that meets the requirements of RCRA. Thus, section 12(d) of 
the National Technology Transfer and Advancement Act does not apply to 
this rule. 10. Congressional Review Act--EPA will submit a report 
containing this rule and other information required by the 
Congressional Review Act (5 U.S.C. 801 et seq.) 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 on May 3, 2004.

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: February 20, 2004.
James W. Newsom,
Acting Regional Administrator, EPA Region III.
[FR Doc. 04-4820 Filed 3-3-04; 8:45 am]
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