[Federal Register Volume 69, Number 52 (Wednesday, March 17, 2004)]
[Rules and Regulations]
[Pages 12544-12547]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-5641]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 271
[FRL-7633-2]
Arizona: Final Authorization of State Hazardous Waste Management
Program Revisions
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: On October 27, 2000, we published an immediate final rule at
65 FR 64369 to authorize revisions to Arizona's hazardous waste program
under the Resource Conservation and Recovery Act (RCRA). At that time,
we determined that the identified revisions to Arizona's hazardous
waste program
[[Page 12545]]
satisfied all requirements for final authorization and authorized the
changes through an immediate final rule. The immediate final rule was
to be effective on December 26, 2000, unless written comments opposing
the authorization were received during the comment period. At the same
time, in the event we received written comments, we also published a
proposed rule at 65 FR 64403 proposing these same changes to the
Arizona hazardous waste program.
As a result of comments received on the immediate final rule, we
withdrew the immediate final rule on December 22, 2000 at 65 FR 80790.
By this action, we are issuing a final rule authorizing the revisions
to the Arizona hazardous waste program as listed in the immediate final
rule at 65 FR 64369 and responding below to each of the comments
received.
EFFECTIVE DATE: Final authorization for Arizona shall be effective on
March 17, 2004.
FOR FURTHER INFORMATION CONTACT: Lisa McClain-Vanderpool, WST-2, U.S.
EPA Region 9, 75 Hawthorne Street, San Francisco 94105-3901, (415) 972-
3316.
SUPPLEMENTARY INFORMATION: The reader should also refer to the proposed
rule at 65 FR 64403 and the immediate final rule at 65 FR 64369, both
published on October 27, 2000.
A. Background
We received written comments from five parties during the comment
period. Only one party submitted comments which opposed the
authorization. One comment expressed reservations about the ability of
the State to administer the hazardous waste program and noted that
there are numerous facilities in Arizona still operating under interim
status. One comment expressed concern about the propriety of this
authorization when two Title VI (civil rights) administrative
complaints against Arizona are pending. Another comment expressed
concern that Arizona does not have adequate permitting staff in the
hazardous waste program to review and process permit applications. One
comment expressed concern that Arizona is not adequately monitoring
hazardous waste Treatment, Storage and Disposal facilities (TSDFs) in
the State, and that Arizona does not have an adequate compliance and
enforcement program. Finally, four parties commented on EPA's statement
in the immediate final rule that EPA ``continues to have independent
authority under RCRA . . . [to] take enforcement action regardless of
whether the State has taken its own actions.'' 65 FR 64369.
Specifically, the comments indicated that this statement conflicts with
the Eighth Circuit decision in Harmon Industries, Inc. v. Browner, 1919
F.3d 894 (8th Circuit 1999).
B. What Were the Comments and Responses to EPA's Proposal?
1. Comment: EPA received four comment letters objecting to EPA's
assertion in the immediate final rule approving Arizona's RCRA program
revisions that EPA retains the authority to take enforcement actions
regardless of whether the State has taken its own actions. They assert
that EPA's statement is in conflict with the holding in Harmon
Industries, Inc. v. Browner, 191 F .3d 894 (8th Cir. 1999). In this
decision, the court found ``no support either in the text of the
statute or the legislative history for the proposition that the EPA is
allowed to duplicate a state's enforcement authority with its own
enforcement action.''
EPA's Response: EPA has considered the comments it received
regarding the effect of state authorization on federal enforcement. The
Agency, however, does not agree with the commenters and has not changed
the statement in the final rule. EPA continues to believe that the
statement in the preamble reflects the correct reading of RCRA Sec.
3008(a) which provides that EPA may bring an enforcement action in a
State with an authorized program. The only restriction placed on EPA's
authority to enforce in a State with an authorized program is that EPA
shall give notice to the State prior to issuing an order or commencing
a civil action. See 42 U.S.C. 3008(a)(2). EPA has simply restated a
longstanding position taken in civil actions, administrative
adjudications, and regulations. See, e.g., Power Engineering Co. v.
U.S., 303 F.3d 1232 (10th Cir. 2002), cert. denied, 123 S.Ct. 1929
(2003); In re: Bil-Dry Corp., 1998 WL 743914 (E.P.A. Oct. 8, 1998).
2. In a fifth comment letter, the commenter objected to
authorization and expressed several concerns about the Arizona
hazardous waste program.
Comment: EPA should not authorize the Arizona Department of
Environmental Quality's (ADEQ) RCRA program revisions when there are
two outstanding Title VI (civil rights) administrative complaints that
have been filed against ADEQ.
EPA's Response: Title VI of the Civil Rights Act prohibits
recipients of federal money, such as ADEQ, from discriminating against
persons on the basis of color, race or national origin. Title VI
prohibits both intentional and unintentional discrimination.
Unintentional discrimination may be demonstrated if there is evidence
that a recipient administers its programs in a way that results in a
discriminatory effect. Two complaints related to hazardous waste
management were filed on behalf of the communities located near two
Arizona facilities, Heritage Environmental Services (Heritage) and
Innovative Waste Utilization (IWU). The complaints alleged that ADEQ
violated Title VI of the Civil Rights Act when it issued or considered
issuing the facilities' RCRA permits. Both Complaints were investigated
and dismissed by EPA's Office of Civil Rights (OCR).
Title VI complaints were filed in OCR, which has the legal
authority and responsibility to investigate Title VI complaints filed
with EPA. The complaints undergo a thorough, independent review,
investigation and final decision. As of this date, both the complaint
related to the IWU facility and the complaint related to the Heritage
facility have been dismissed. In each case, OCR found no violations of
Title VI or EPA's Title VI implementing regulations.
Comment: EPA should not authorize ADEQ's program revisions while
there are numerous facilities in Arizona that are operating under
interim status permits.
EPA's Response: EPA has been focusing on ADEQ's permitting
activities and the need to complete permit processing for Arizona
facilities. In the last two-year grant and in the current grant, ADEQ
has committed to completion of all interim status permits. Staff and
management vacancies in the past and, more recently, ADEQ's increased
community involvement have delayed the permit approval process. ADEQ
has however committed to meet EPA's national goal for permit decisions
at facilities in the regulated universe by 2005. EPA is closely
monitoring ADEQ's progress in meeting this commitment and we are
confident they will make the agreed upon goal. Currently, there are six
facilities operating under interim status, a significant decrease in
the number of interim status facilities since 1998. There are ten
facilities designated as interim status, inactive or closing. ADEQ
estimates that they will be processing several additional closures
within the next two years, which will further reduce the interim status
universe. EPA is satisfied that ADEQ's progress on completion of the
interim status permits is reasonable and adequate for purposes of this
authorization decision.
Comment: The commenter raised the issue of ADEQ's staff competence
in reviewing and approving permit
[[Page 12546]]
applications. Specifically, the commenter questioned ADEQ's approval of
the permit for Innovative Waste Utilization, Inc. (IWU) in spite of a
deficient emergency plan.
EPA's Response: ADEQ reviewed the draft permit application from IWU
and found that it met all regulatory requirements, including those for
the contingency plan (emergency plan). As a result of public comment,
ADEQ revised the permit adding specificity as well as voluntary
requirements in several sections, and adding conditions restricting
transportation by schools, community education on potential emergencies
and establishing a five year compliance and safety review to determine
permit continuance. For example, compatibility testing requirements
were added that include commonly accepted scientific references for
compatibility, such as those identified in the EPA document Technical
Resources Document for the Storage and Treatment of Hazardous Waste in
Tank Systems (NIS PB 87-134391), and A Method for Determining the
Compatibility of Hazardous Waste written by the California Department
of Health Services (EPA Document 600/2-80-076). This information was
not a requirement but rather supplemental information ADEQ chose to
include to satisfy public concern.
EPA monitors ADEQ's permit activities regularly and often reviews
draft permit decisions to ensure the protection of human health and the
environment. EPA is satisfied with the quality of ADEQ's permit
decisions and the competence of the staff.
Comment: The commenter questioned whether ADEQ was adequately
monitoring (inspecting) Treatment, Storage and Disposal Facilities
(TSDFs).
EPA's Response: There are 26 Treatment, Storage and Disposal
Facilities (TSDFs) in Arizona's universe of regulated hazardous waste
facilities. RCRA requires that each TSDF be inspected every two years.
ADEQ ensures that the appropriate number of RCRA inspections are
conducted in Arizona, although at times ADEQ or EPA may inspect TSDFs
more often. Every other year EPA conducts oversight of ADEQ inspections
to determine the adequacy of their inspection program. In the oversight
inspections, EPA has been satisfied with the quality of inspections as
well as the competence of the inspection staff. In addition, EPA has
not observed significant violations at these TSDFs. EPA also monitors
ADEQ's program through reporting on grant work plan commitments, annual
on-site evaluations and oversight inspections, conference calls and
joint inspections. EPA is satisfied that ADEQ provides adequate
coverage of the universe of hazardous waste facilities and we continue
to monitor and oversee this program to ensure that the public and the
environment are protected.
Comment: In this comment, ADEQ's regulation of a particular
facility, SONAS, was questioned. A lack of inspections at the facility
was cited as evidence of ADEQ's failure to aggressively monitor
compliance. The commenter also expressed concern about the treatment of
contaminated soils at SONAS and the applicability of new rules on the
treatment standards for metal wastes and mineral processing wastes to
these soils.
EPA's Response: The SONAS facility is not a hazardous waste
facility; it is a solid non-hazardous waste facility. ADEQ's regulation
of the SONAS facility is therefore not specifically applicable to EPA's
authorization of revisions to Arizona's hazardous waste management
program. The petroleum contaminated soil (PCS) and the metals
contaminated waste accepted at the SONAS facility are not RCRA
hazardous wastes. These soils are defined as solid waste in the Arizona
regulations. Therefore, the newly promulgated treatment standards for
metal wastes do not apply. The approved solid waste facility plan for
SONAS is available for public review at ADEQ. The ADEQ Solid Waste
Section and the ADEQ Air Quality Division have conducted inspections at
this facility and oversee facility operations. Additionally, a joint
inspection by EPA and ADEQ's Hazardous Waste Section was conducted in
May 2002.
Comment: The commenter raised questions regarding ADEQ's ability to
carry out an adequate and equivalent RCRA compliance and enforcement
program.
EPA's Response: As a result of program evaluations and grant
negotiations with EPA, ADEQ is implementing an escalated enforcement
policy which has shown significant program improvements in state fiscal
year 2002-2003. ADEQ has revised internal procedures and created and
filled a new enforcement coordinator position. The Inspections and
Compliance Unit has also undertaken a vigorous staff hiring and
training program. EPA is satisfied that ADEQ is developing a strong and
consistent compliance and enforcement program that is equivalent to
EPA's program.
C. What Decisions Have We Made in This Rule?
EPA has determined that approval of Arizona's RCRA program
revisions identified in the October 27, 2000 immediate final rule (65
FR 64369) and Proposed Rule (65 FR 64403) should proceed. After
reviewing the public comments received in response to the proposed
authorization, EPA has made a final determination that Arizona's
application to revise its authorized program meets all the statutory
and regulatory requirements established by RCRA. Therefore, we grant
Arizona final authorization to operate its hazardous waste program with
the changes described in its application for program revisions
previously identified. Arizona 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 any such HSWA
requirements and prohibitions in Arizona, until the State is granted
authorization to do so. ADEQ and EPA have agreed to a joint permitting
process for RCRA permits for those provisions of HSWA for which ADEQ
does not have authorization.
For further information on the scope and effect of today's action
to approve Arizona's RCRA program revisions, please refer to the
preambles of EPA's October 27, 2000 Immediate Final Rule (65 FR 64369)
and Proposed Rule (65 FR 64403), as well as the withdrawal of those
rules on December 22, 2000 (65 FR 80790).
D. 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. 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 (EO) 12866.
[[Page 12547]]
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
EO 13132 does not apply to this rule because it will not have
federalism implications (i.e., substantial direct effects on the State,
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 described in EO 13132.
6. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
EO13175 does not apply to this rule because it will not have tribal
implication (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 EO 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 EO 13211 because it is not a
significant regulatory action as defined in EO 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 Advance 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 March
17, 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 29, 2004.
Laura Yoshii,
Acting Regional Administrator, Region 9.
[FR Doc. 04-5641 Filed 3-16-04; 8:45 am]
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