[Federal Register Volume 69, Number 194 (Thursday, October 7, 2004)]
[Rules and Regulations]
[Pages 60091-60094]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-22592]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 271
[FRL-7825-5]
Delaware: Final Authorization of State Hazardous Waste Management
Program Revisions
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 revisions 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 that 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
revisions to Delaware's program that were the subject of adverse
comments.
DATES: This final authorization will become effective on December 6,
2004, unless EPA receives adverse written comments by November 8, 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: Submit your comments, identified by FRL-7825-5 by one of the
following methods:
1. Federal eRulemaking Portal: http://www.regulations.gov. Follow
the on-line instructions for submitting comments.
2. E-mail: [email protected]
3. Mail: Lillie Ellerbe, Mailcode 3WC21, RCRA State Programs
Branch, U.S. EPA Region III, 1650 Arch Street, Philadelphia, PA 19103-
2029.
4. Hand Delivery: At the previously-listed EPA Region III address.
Such deliveries are only accepted during normal hours of operation, and
special arrangements should be made for deliveries of boxed
information.
You may inspect and copy Delaware's application from 8 a.m. to 4:30
p.m., Monday through Friday 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, Attn:
Karen J'Anthony, and EPA Region III, Library, 2nd Floor, 1650 Arch
Street, Philadelphia, PA 19103-2029, Phone number: (215) 814-5254.
Instructions: Direct your comments to FRL-7825-5. EPA's policy is
that all comments received will be included in the public file without
change, including any personal information provided, unless the comment
includes information claimed to be Confidential Business Information
(CBI) or other information whose disclosure is restricted by statute.
Do not submit information that you consider to be CBI or otherwise
protected through http://www.regulations.gov or e-mail. The Federal
http://www.regulations.gov Web site is an ``anonymous access'' system
which means that EPA will not know your identity or contact information
unless you provide it in the body of your comment. If you send an e-
mail comment directly to EPA without going through http://www.regulations.gov, your e-mail address will be automatically captured
and included as part of the comment that is placed in the public file
and made available on the Internet. If you submit an electronic
comment, EPA recommends that you include your name and other contact
information in the body of your comment and with any disk or CD-ROM you
submit. If EPA cannot read your comment due to technical difficulties
and cannot contact you for clarification, EPA may not be able to
consider your comment. Electronic files should avoid the use of special
characters and any form of encryption, and be free of any defects or
viruses.
FOR FURTHER INFORMATION CONTACT: Lillie Ellerbe, Mailcode 3WC21, RCRA
State Programs Branch, U.S. EPA Region III, 1650 Arch Street,
Philadelphia, PA 19103-2029, Phone number: (215) 814-5454.
SUPPLEMENTARY INFORMATION:
A. Why Are Revisions to State Programs Necessary?
States that have received final authorization from EPA under RCRA
[[Page 60092]]
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 revisions to become
more stringent or broader in scope, States must revise their programs
and apply to EPA to authorize the revisions. Authorization of revisions
to State programs may be necessary when Federal or State statutory or
regulatory authority is modified or when certain other revisions occur.
Most commonly, States must revise their programs because of revisions
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?
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:
Perform inspections, and require monitoring, tests,
analyses or reports;
Enforce RCRA requirements and suspend or revoke permits;
and
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 that
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, 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 revisions 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); August 8, 2002
(67 FR 51478), and May 3, 2004 (69 FR 10171).
G. What Revisions Are We Authorizing With Today's Action?
On August 23, 2004, 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 that are equivalent to, and no
less stringent than, revisions to the Federal hazardous waste program,
as published in the Federal Register through April 26, 2004. 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:
1. Program Revision Changes for Federal Rules
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 analogous 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, July 11, 2002, March 21, 2004 and
August 21, 2004. The statutory references are to 7 Delaware Code
Annotated (1991).
Table 1
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Description of federal requirement
(revision checklists 1) Analogous Delaware authority
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RCRA Cluster XI \2\, Non-HSWA:
Mixed Waste Rule, 66 FR 27218- 7 Delaware Code (7 Del. Code)
27266, 5/16/01, Checklist 191. Chapter 63, Sec. Sec. 6304,
6305, 6306, 6307; Delaware
Regulations Governing
Hazardous Waste (DRGHW) New
Subpart N to Part 266 (Sec.
Sec. 266.210 through
266.360)
[[Page 60093]]
RCRA Cluster XI, HSWA /Non-HSWA:
Mixture and Derived-From Rules 7 Del. Code, Sec. Sec. 6304,
Revisions, 66 FR 27266-27297, 5/16/ 6305; DRGHW 261.3(a)(2)(iii),
01, Checklist 192A. 261.3(a)(2)(iv),
261.3(c)(2)(i), 261.3(g)(1)-
(3), 261.3(h)
RCRA Cluster XI, HSWA:
Land Disposal Restrictions 7 Del. Code, Sec. Sec. 6304,
Correction, 66 FR 27266-27297, 5/ 6305; DRGHW Appendix VII to
16/01, Checklist 192B. Part 268, Table 1
RCRA Cluster XII, HSWA/Non-HSWA:
Mixture and Derived-From Rules 7 Del. Code, Sec. Sec. 6304,
Revision II, 66 FR 50332-50334, 10/ 6305; DRGHW 261.3(a)(2)(iv)
03/01, Checklist 194.
RCRA Cluster XII, HSWA:
CAMU Amendments, 67 FR 2962-3029, 7 Del. Code, Sec. Sec. 6304,
01/22/02, Checklist 196. 6305, 6306, 6307; DRGHW
260.10, 264.550, 264.551,
264.552, 264.554(a)(1)-(2),
264.555
RCRA Cluster XII, Non-HSWA:
Vacatur of Mineral Processing Spent 7 Del. Code, Sec. Sec. 6304,
Materials Being Reclaimed as Solid 6305, 6306; DRGHW 261.2(c)(3),
Wastes and TCLP Use with MGP 261.4(a)(17)
Waste, 67 FR 11251-11254, 03/13/
02, Checklist 199.
RCRA Cluster XIII, HWSA/Non-HSWA:
Zinc Fertilizer Rule, 67 FR 48393- 7 Del. Code, Sec. Sec. 6304,
48415, 07/24/02, Checklist 200. 6305, 6306, 6307; DRGHW
266.20, 268.40 More stringent
provisions: 261.4(a)(20)-(21),
266.20(d)
RCRA Cluster XIII, HWSA:
Treatment Variance for 7 Del. Code, Sec. Sec. 6304,
Radioactively Contaminated 6305, 6306, 6307; DRGHW 268.40/
Batteries, 67 FR 62618-62625, 10/ Table
07/02, Checklist 201.
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1 A Revision Checklist is a document that addresses the specific
revisions 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 over a 12-month period starting on July 1 and
ending on June 30 of the following year.
2. State-Initiated Revisions
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. These State-initiated revisions to some of Delaware's
existing regulations are for the purpose of correcting errors and
adding consistency or clarification to the existing regulations. The
following State-initiated revisions are equivalent and analogous to the
numerically-identical RCRA provisions found at Title 40 of the Code of
Federal Regulations: DRGHW 260.10; 261.1(c)(8); 261.32; Part 261,
Appendix VIII; 264.145(a)(1); 264.1050(h); and 265.1050(g). One other
State-initiated revision being authorized by this notice is DRGHW
122.20 title and paragraph (a)(1), which is equivalent and analogous to
40 CFR 270.20 title and paragraph (a)(1).
H. Where Are the Revised Delaware Rules Different From the Federal
Rules?
1. Delaware Requirements That Are Broader in Scope Than the Federal
Program
The Delaware hazardous waste program contains certain provisions
that are beyond the scope of the Federal program. These broader in
scope provisions are not part of the program being authorized by
today's action. EPA cannot enforce requirements that are broader in
scope, although compliance with such provisions is required by Delaware
law. Examples of broader in scope provisions of Delaware's program
include, but are not limited to, the following:
(a) Delaware's regulation at DRGHW 263.102(c) amends requirements
for permit termination, etc.
(b) Delaware's regulation at DRGHW 263.103(d) increases the time an
application to replace an expiring permit must be submitted from 60
days to 90 days.
(c) Delaware's regulation at DRGHW 265.55 adds language clarifying
that the emergency coordinator must receive annual training in
assessing possible hazards to human health and the environment that may
result from a release, fire or explosion.
2. Delaware Requirements That Are More Stringent Than the Federal
Program
The Delaware hazardous waste program contains some provisions that
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:
(a) Delaware's regulations at DRGHW 265.195(c) and 265.201(c) are
more stringent because the State adds a requirement for written
inspection records for tanks.
(b) Delaware's regulation at DRGHW 273.19 is more stringent because
the State adds a requirement for written records for shipments of
universal waste.
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 that we issued prior to the effective
date of this authorization until the timing and process for effective
transfer to the State are mutually agreed upon. Until such time as
formal transfer of EPA permit responsibility to the State occurs and
EPA terminates its permit, EPA and the State agree to coordinate the
administration of permits in order to maintain consistency. We will not
issue any more new permits or new portions of permits for the
provisions listed in section G above 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.
[[Page 60094]]
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. We do this by referencing
the authorized State rules in 40 CFR part 272. We reserve the amendment
of 40 CFR part 272, subpart I, for this authorization of Delaware's
program revisions until a later date.
L. Statutory and Executive Order Reviews
This rule only authorizes hazardous waste requirements pursuant to
RCRA section 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 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 13132 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 and 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
December 6, 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: September 17, 2004.
Thomas C. Voltaggio,
Acting Regional Administrator, EPA Region III.
[FR Doc. 04-22592 Filed 10-6-04; 8:45 am]
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