[Federal Register Volume 70, Number 140 (Friday, July 22, 2005)]
[Rules and Regulations]
[Pages 42273-42276]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-14545]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 271
[FRL-7942-9]
Idaho: Final Authorization of State Hazardous Waste Management
Program Revision
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
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SUMMARY: Idaho applied to the United States Environmental Protection
Agency (EPA) for final authorization of changes to its hazardous waste
program under the Resource Conservation and Recovery Act (RCRA). On May
16, 2005, EPA published a proposed rule to authorize the changes and
opened a public comment period. The comment period closed on June 15,
2005. EPA has decided that these revisions to the Idaho hazardous waste
management program satisfy all of the requirements necessary to qualify
for final authorization and is authorizing these revisions to Idaho's
authorized hazardous waste management program in today's final rule.
DATES: Final authorization for the revisions to the hazardous waste
program in Idaho shall be effective at 1 p.m. E.S.T. on July 22, 2005.
FOR FURTHER INFORMATION CONTACT: Jeff Hunt, Mail Stop AWT-122, U.S. EPA
Region 10, Office of Air, Waste, and Toxics, 1200 Sixth Avenue,
Seattle, Washington 98101, phone (206) 553-0256. E-mail:
[email protected].
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 and consistent with the Federal program.
States are required to have enforcement authority which is adequate to
enforce compliance with the requirements of the hazardous waste
program. Under RCRA Section 3009, States are not allowed to impose any
requirements which are less stringent than the Federal program. 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 change their programs because of changes to
EPA's regulations in title 40 of the Code of Federal Regulations (CFR)
parts 124, 260 through 266, 268, 270, 273 and 279.
Idaho's hazardous waste management program received final
authorization effective on April 9, 1990 (55 FR 11015, March 29, 1990).
EPA also granted authorization for revisions to Idaho's program
effective on June 5, 1992 (57 FR 11580, April 6, 1992), on August 10,
1992 (57 FR 24757, June 11, 1992), on June 11, 1995 (60 FR 18549, April
12, 1995), on January 19, 1999 (63 FR 56086, October 21, 1998), on July
1, 2002 (67 FR 44069, July 1, 2002), and on March 10, 2004 (69 FR
11322).
Today's final rule addresses a program revision application that
Idaho submitted to EPA in September 2004, in accordance with 40 CFR
271.21, seeking authorization of changes to the State program. On May
16, 2005, EPA published a proposed rule announcing its intent to grant
Idaho final authorization for revisions to Idaho's hazardous waste
program and provided a period of time for the receipt of public
comments. The proposed rule can be found at 70 FR 25798.
B. What Were the Comments to EPA's Proposed Rule?
EPA received two letters during the public comment period. One
letter was dated June 3, 2005, from Mr. Chuck Broscious on behalf of
the Environmental Defense Institute and a second letter was dated June
14, 2005, from Mr. Chuck Broscious on behalf of the Environmental
Defense Institute, Keep Yellowstone Nuclear Free, and David B. McCoy,
collectively the commenters.
The comment letters focused on issues originally raised in
petitions submitted to EPA on August 8, 2000, and September 13, 2001,
and on numerous follow up letters and correspondence related to those
petitions. The petitions themselves centered on issues related to
specific units located at the Idaho National Laboratory (INL) in Idaho
Falls, Idaho. The comment letters also raised a concern about nuclear
defense activities at the same INL facility. In response to this aspect
of the commenters' letter EPA observes that defense activities related
to nuclear production and propulsion programs will generally not meet
the definition of solid waste under the RCRA regulations and may be
regulated by other federal authorities. With respect to mixed waste,
Idaho's hazardous waste program is authorized for mixed waste.
In the September 13, 2001, petition which commenters refer to in
their current comments, the commenters as petitioners sought EPA's
withdrawal of Idaho's authorization to implement the hazardous waste
program under RCRA
[[Page 42274]]
because of petitioners' concerns with hazardous waste issues at the INL
facility. EPA in response to that withdrawal petition request conducted
an informal investigation and determined that sufficient evidence did
not exist to initiate formal withdrawal proceedings. The investigation
findings were issued on March 20, 2002, with a follow up response on
June 20, 2002. The supporting documentation was provided to the
commenters and the documentation is currently available to the public
under the Freedom of Information Act.
On February 6, 2003, the EPA Office of Inspector General (OIG)
requested that Region 10 conduct a second investigation to answer a
series of follow up questions related to the September 13, 2001,
petition. EPA Region 10 conducted a second investigation and issued its
findings on April 10, 2003. The investigation results were provided to
Mr. David McCoy, one of the current commenters, as part of an October
13, 2004, Freedom of Information Act response. On February 5, 2004,
after conducting independent field work, the OIG issued a final
evaluation report which concluded, ``Region 10 generally relied on
appropriate regulatory requirements and standards in reaching its
conclusion that evidence did not exist to commence proceedings to
withdraw the State of Idaho's authority to run its RCRA Hazardous Waste
program.''
While the evaluation report concluded that evidence did not exist
to commence withdrawal proceedings, the OIG did identify areas of
concern for further Regional and State follow up. As detailed in the
Evaluation Report, the OIG and EPA Region 10 agreed to specific follow
up actions. To document resolution of these action items, EPA Region 10
submitted quarterly progress reports to the Region 10 OIG Audit Liaison
on January 13, 2004, April 16, 2004, July 15, 2004, October 12, 2004,
February 9, 2005, and April 8, 2005. These reports document the steps
taken by EPA and the Idaho Department of Environmental Quality to meet
the specific actions recommended by the OIG. The first three of these
quarterly reports were sent to the commenters and the OIG as part of a
July 26, 2004, letter from then Regional Administrator, L. John Iani.
Hardcopies of all the quarterly reports were made directly available to
the public as part of the authorization docket for the proposed
authorization with repositories in Seattle, Washington and the
University of Idaho in Moscow. These quarterly reports are also
currently available to the public under the Freedom of Information Act.
While the Region will continue its ongoing obligation to conduct
state oversight, EPA considers the follow up to the September 13, 2001,
withdrawal petition and the February 5, 2004, OIG Evaluation Report
complete. The information documenting EPA's follow up to the February
5, 2004, OIG Evaluation Report was contained in the authorization
docket available to the public through the Region 10 Library in
Seattle, Washington, as well as through the Freedom of Information Act
process. In response to a request by Mr. Chuck Broscious, EPA made a
hardcopy version of the docket available to the public at the
University of Idaho Library in Moscow, Idaho. Furthermore, in response
to a request from the Shoshone Bannock Tribe, and Mr. Chuck Broscious,
EPA electronically scanned the State of Idaho's authorization
application and made this document available on the Region 10 Web site
at: http://yosemite.epa.gov/R10/OWCM.NSF/ed6c817875102d2d8825650f00714a59/2b89088c6ed73517882570140081e7f9?OpenDocument Document.
Based on the follow up actions that were taken in response to the
OIG Evaluation Report, EPA disagrees with comments submitted on June 3
and 14, 2005, alleging that EPA and the Idaho Department of
Environmental Quality have not sufficiently responded to the issues
raised by the February 5, 2004, OIG Evaluation report. Therefore, EPA
has determined that these comments do not constitute basis for
continued delay or denial of Idaho's application for program revision.
C. What Decisions Have We Made in This Rule?
EPA has made a final determination that Idaho's revisions to the
Idaho authorized hazardous waste program meet all of the statutory and
regulatory requirements established by RCRA for authorization.
Therefore, EPA is authorizing the revisions to the Idaho hazardous
waste program and authorizing the State of Idaho to operate its
hazardous waste program as described in the revision authorization
application. Idaho's authorized program will be responsible for
carrying out the aspects of the RCRA program described in its revised
program application, subject to the limitations of RCRA, including 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 are
implemented by EPA and take effect in States with authorized programs
before such programs are authorized for the requirements. Thus, EPA
will implement those HSWA requirements and prohibitions in Idaho,
including issuing permits or portions of permits, until the State is
authorized to do so.
D. What Will Be the Effect of Today's Action?
The effect of today's action is that a facility in Idaho subject to
RCRA must comply with the authorized State program requirements and
with any applicable federally-issued requirement, such as, for example,
the federal HSWA provisions for which the State is not authorized, and
RCRA requirements that are not supplanted by authorized State-issued
requirements, in order to comply with RCRA. Idaho has enforcement
responsibilities under its State hazardous waste program for violations
of its currently authorized program and will have enforcement
responsibilities for the revisions which are the subject of this final
rule. EPA continues to have independent enforcement authority under
RCRA sections 3007, 3008, 3013, and 7003, which include, among others,
authority to:
--Conduct inspections; require monitoring, tests, analyses or reports;
--Enforce RCRA requirements, including State program requirements that
are authorized by EPA and any applicable Federally-issued statutes and
regulations; suspend, modify or revoke permits; and
--Take enforcement actions regardless of whether the State has taken
its own actions.
This final action approving these revisions will not impose
additional requirements on the regulated community because the
regulations for which Idaho's program is being authorized are already
effective under State law.
E. What Rules Are We Authorizing With Today's Action?
In September 2004, Idaho submitted a complete program revision
application, seeking authorization for all delegable federal hazardous
waste regulations codified as of July 1, 2003, as incorporated by
reference in IDAPA 58.01.05.(002)-(016) and 58.01.05.997, including
previously unauthorized portions of the Post Closure Rule promulgated
on October 22, 1998 (63 FR 56710).
F. Who Handles Permits After This Authorization Takes Effect?
Idaho will issue permits for all the provisions for which it is
authorized and will administer the permits it
[[Page 42275]]
issues. All permits or portions of permits issued by EPA prior to final
authorization of this revision will continue to be administered by EPA
until the effective date of the issuance, re-issuance after
modification, or denial of a State RCRA permit or until the permit
otherwise expires or is revoked, and until EPA takes action on its
permit or portion of permit. HSWA provisions for which the State is not
authorized will continue in effect under the EPA-issued permit or
portion of permit. EPA will continue to issue permits or portions of
permits for HSWA requirements for which Idaho is not yet authorized.
G. What Is Codification and Is EPA Codifying Idaho'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's authorized rules in 40 CFR part 272.
EPA is reserving the amendment of 40 CFR part 272, subpart F for
codification of Idaho's program at a later date.
H. How Does Today's Action Affect Indian Country (18 U.S.C. 1151) in
Idaho?
EPA's decision to authorize the Idaho hazardous waste program does
not include any land that is, or becomes after the date of this
authorization, ``Indian Country,'' as defined in 18 U.S.C. 1151. This
includes: (1) All lands within the exterior boundaries of Indian
reservations within or abutting the State of Idaho; (2) Any land held
in trust by the U.S. for an Indian tribe; and (3) Any other land,
whether on or off an Indian reservation that qualifies as Indian
country. Therefore, this action has no effect on Indian country. EPA
retains jurisdiction over ``Indian Country'' as defined in 18 U.S.C.
1151.
I. Statutory and Executive Order Reviews
1. Executive Order 12866
Under Executive Order 12866 (58 FR 51735, October 4,1993), the
Agency must determine whether the regulatory action is ``significant'',
and therefore subject to OMB review and the requirements of the
Executive Order. The Order defines ``significant regulatory action'' as
one that is likely to result in a rule that may: (1) Have an annual
effect on the economy of $100 million or more, or adversely affect in a
material way, the economy, a sector of the economy, productivity,
competition, jobs, the environment, public health or safety, or State,
local or tribal governments or communities; (2) create a serious
inconsistency or otherwise interfere with an action taken or planned by
another agency; (3) materially alter the budgetary impact of
entitlements, grants, user fees, or loan programs, or the rights and
obligations of recipients thereof; or (4) raise novel legal or policy
issues arising out of legal mandates, the President's priorities, or
the principles set forth in the Executive Order. It has been determined
that this final rule is not a ``significant regulatory action'' under
the terms of Executive Order 12866 and is therefore not subject to OMB
review.
2. Paperwork Reduction Act
The Paperwork Reduction Act, 44 U.S.C. 3501, et seq., is intended
to minimize the reporting and recordkeeping burden on the regulated
community, as well as to minimize the cost of Federal information
collection and dissemination. In general, the Act requires that
information requests and recordkeeping requirements affecting ten or
more non-Federal respondents be approved by OPM. Since this final rule
does not establish or modify any information or recordkeeping
requirements for the regulated community, it is not subject to the
provisions of the Paperwork Reduction Act.
3. Regulatory Flexibility
The Regulatory Flexibility Act (RFA), as amended by the Small
Business Regulatory Enforcement Fairness Act (SBREFA), 5 U.S.C. 601 et
seq., generally requires federal agencies to prepare a regulatory
flexibility analysis of any rule subject to notice and comment
rulemaking requirements under the Administrative Procedure Act or any
other statute unless the agency certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
Small entities include small businesses, small organizations, and small
governmental jurisdictions. For purposes of assessing the impacts of
today's rule on small entities, small entity is defined as: (1) A small
business, as codified in the Small Business Size Regulations at 13 CFR
part 121; (2) a small governmental jurisdiction that is a government of
a city, county, town, school district or special district with a
population of less than 50,000; and (3) a small organization that is
any not-for-profit enterprise which is independently owned and operated
and is not dominant in its field. EPA has determined that this action
will not have a significant impact on small entities because the final
rule will only have the effect of authorizing pre-existing requirements
under State law. After considering the economic impacts of today's
rule, I certify that this action will not have a significant economic
impact on a substantial number of small entities.
4. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act (UMRA) of 1995 (Pub.
L. 104-4) establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
year. Before promulgating an EPA rule for which a written statement is
needed, section 205 of the UMRA generally requires EPA to identify and
consider a reasonable number of regulatory alternatives and adopt the
least costly, most cost-effective or least burdensome alternative that
achieves the objectives of the rule. The provisions of section 205 do
not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why the
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments to have meaningful and timely
input in the development of EPA regulatory proposals with significant
Federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with the regulatory
requirements.
This rule contains no Federal mandates (under the regulatory
provisions of Title II of the UMRA) for State, local or tribal
governments or the private sector. It imposes no new enforceable duty
on any State, local or tribal governments or the private sector.
Similarly, EPA has also determined that this rule contains no
regulatory
[[Page 42276]]
requirements that might significantly or uniquely affect small
government entities. Thus, the requirements of section 203 of the UMRA
do not apply to this rule.
5. Executive Order 13132: Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``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 various levels of government.''
This rule does not have federalism implications. It will not have
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 various levels of government, as specified
in Executive Order 13132. This rule addresses the authorization of pre-
existing State rules. Thus, Executive Order 13132 does not apply to
this rule.
6. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' This rule does not have
tribal implications, as specified in Executive Order 13175. Thus,
Executive Order 13175 does not apply to this rule.
7. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
Executive Order 13045 applies to any rule that: (1) Is determined
to be ``economically significant'' as defined under Executive Order
12866, and (2) concerns an environmental health or safety risk that EPA
has reason to believe may have a disproportionate effect on children.
If the regulatory action meets both criteria, the Agency must evaluate
the environmental health or safety effects of the planned rule on
children, and explain why the planned regulation is preferable to other
potentially effective and reasonably feasible alternatives considered
by the Agency.
This rule is not subject to Executive Order 13045 because it is not
economically significant as defined in Executive Order 12866 and
because the Agency does not have reason to believe the environmental
health or safety risks addressed by this action present a
disproportionate risk to children.
8. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
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'' as defined under Executive Order
12866.
9. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272)
directs EPA to use voluntary consensus standards in its regulatory
activities unless to do so would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., materials specifications, test methods, sampling
procedures, and business practices) that are developed or adopted by
voluntary consensus bodies. The NTTAA directs EPA to provide Congress,
through the OMB, explanations when the Agency decides not to use
available and applicable voluntary consensus standards. This rule does
not involve ``technical standards'' as defined by the NTTAA. Therefore,
EPA is not considering the use of any voluntary consensus standards.
10. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low Income Populations
To the greatest extent practicable and permitted by law, and
consistent with the principles set forth in the report on the National
Performance Review, each Federal agency must make achieving
environmental justice part of its mission by identifying and
addressing, as appropriate, disproportionately high and adverse human
health and environmental effects of its programs, policies, and
activities on minority populations and low-income populations in the
United States and its territories and possessions, the District of
Columbia, the Commonwealth of Puerto Rico, and the Commonwealth of the
Mariana Islands. Because this rule addresses authorizing pre-existing
State rules and there are no anticipated significant adverse human
health or environmental effects, the rule is not subject to Executive
Order 12898.
11. Congressional Review Act
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 rule and 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 of the rule 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 rule will be effective on the date the rule is published
in the Federal Register.
List of Subjects in 40 CFR Part 271
Environmental protection, Administrative practice and procedure,
Confidential business information, Hazardous materials transportation,
Hazardous waste, Indians-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: July 14, 2005.
Michelle Pirzadeh,
Acting Regional Administrator, Region 10.
[FR Doc. 05-14545 Filed 7-21-05; 8:45 am]
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