[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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