[Federal Register Volume 73, Number 101 (Friday, May 23, 2008)]
[Rules and Regulations]
[Pages 29987-29989]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-11648]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 271
[EPA-R08-RCRA-2006-0127; FRL-8569-9]
Utah: Final Authorization of State Hazardous Waste Management
Program Revisions
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Solid Waste Disposal Act, as amended, commonly referred to
as the Resource Conservation and Recovery Act (RCRA), allows the
Environmental Protection Agency (EPA) to authorize states to operate
their hazardous waste management programs in lieu of the federal
program. Utah has applied to EPA for final authorization of the changes
to its hazardous waste program under RCRA. EPA has determined that
these changes satisfy all requirements needed to qualify for final
authorization and is authorizing Utah's changes through this final
action.
DATES: This final authorization will become effective on May 23, 2008.
FOR FURTHER INFORMATION CONTACT: Carl Daly, Solid and Hazardous Waste
Program, EPA Region 8, 1595 Wynkoop Street, Denver, Colorado 80202,
(303) 312-6416, [email protected].
SUPPLEMENTARY INFORMATION:
A. Why Are Revisions to State Programs Necessary?
States that 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, states must
change their programs and ask EPA to authorize the changes. 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 40 Code of Federal Regulations (CFR) Parts 124,
260 through 266, 268, 270, 273 and 279.
[[Page 29988]]
Utah initially received Final Authorization on October 10, 1984,
effective October 24, 1984 (49 FR 39683) to implement its base
hazardous waste management program. Utah received authorization for
revisions to its program on February 21, 1989 (54 FR 7417), effective
March 7, 1989; May 23, 1991 (56 FR 23648) and August 6, 1991 (56 FR
37291), both effective July 22, 1991; May 15, 1992 (57 FR 20770),
effective July 14, 1992; February 12, 1993 (58 FR 8232) and May 5, 1993
(58 FR 26689), both effective April 13, 1993; October 14, 1994 (59 FR
52084), effective December 13, 1994; May 20, 1997 (62 FR 27501),
effective July 21, 1997; January 13, 1999 (64 FR 02144), effective
March 15, 1999; October 16, 2000 (65 FR 61109), effective January 16,
2001; May 7, 2002 (67 FR 30599), effective July 7, 2002; and June 11,
2003 (68 FR 34829), effective June 11, 2003.
On September 30, 2003, Utah submitted a complete program revision
application, seeking authorization of additional changes to its program
in accordance with 40 CFR 271.21. On March 7, 2008, EPA published both
an immediate final rule (73 FR 12277) granting Utah final authorization
for these revisions to its federally authorized hazardous waste
program, along with a companion proposed rule announcing EPA's proposal
to grant such a final authorization (73 FR 12340). EPA announced in
both notices that the immediate final rule and the proposed rule were
subject to a thirty-day public comment period. The public comment
period ended on April 7, 2008. Further, EPA stated in both notices that
if it received adverse comments on its intent to authorize Utah's
program revisions that it would (1) withdraw the immediate final rule;
(2) proceed with the proposed rule as the basis for the receipt and
evaluation of such comments, and (3) subsequently publish a final
determination responding to such comments and announce its final
decision as to whether or not to authorize Utah's program revisions.
EPA did receive two adverse comments during the public comment period,
and on April 23, 2008, EPA published a notice withdrawing the immediate
final rule (73 FR 21843).
Today's action responds to the comments EPA received and publishes
EPA's final determination granting Utah final authorization of its
program revisions. Further background on EPA's immediate final rule and
its tentative determination to grant authorization to Utah for its
program revisions appears in the aforementioned Federal Register
notices. The issues raised by the commenters are summarized and
responded to in section B below.
B. What Were the Comments and Responses to EPA's Proposal?
During the public comment period relevant and adverse comments were
received from two sources. The comments did not address specific
concerns with EPA's approval of the 14 additional RCRA regulatory
provisions in Utah's authorized hazardous waste program; rather the
comments were general in nature: Opposition to Utah accepting
additional hazardous wastes and an allegation that Utah's DSHW provides
misleading information to the public. In response to the first
commenter who stated that he does ``not want Utah to take more
hazardous waste than it already has,'' EPA notes that authorization of
the additional RCRA regulatory provisions specified in the immediate
final rule should not impact the amount or type of hazardous waste
imported into Utah. The state has already adopted these regulatory
provisions into the Utah Hazardous Waste Management Rules at R-315. In
addition, the types and quantity of hazardous waste accepted at
Treatment, Storage, and Disposal Facilities (TSDFs) in Utah are
controlled by their respective RCRA permits issued by the State of
Utah, and this authorization will not directly impact the conditions
and restrictions in these RCRA permits.
The commenter also states that bringing ``low-level radioactive
waste into the United States for disposal or storage'' sets a bad
precedent and that ``radioactive waste from Italy * * * should not be
accepted in any form or degree.'' EPA notes that, in general, this
authorization of additional RCRA regulatory provisions does not address
radioactive waste. The one regulatory provision approved in this
authorization that is related to radioactive waste is the Treatment
Variance for Radioactively Contaminated Batteries. This provision,
promulgated as a federal regulation on October 7, 2002, requires
radioactively contaminated batteries determined to also be hazardous
waste because of the heavy metal content of cadmium, mercury, or
silver, to be treated with macro-encapsulation and then disposed of in
a permitted disposal facility. Prior to this provision, radioactively
contaminated batteries were required to be thermally treated or
manually segregated to recover the heavy metals. EPA determined that
these treatment standards were technically inappropriate for
radioactively contaminated cadmium, mercury, and silver batteries. Our
review has determined that Utah has adopted an equivalent rule to the
federal hazardous waste regulation, specified in 40 CFR 268.40.
Therefore, we have determined that there is no basis to deny
authorization approval based on these comments.
In response to the second commenter, who expressed concerns
regarding the integrity of Utah's DSHW and raised allegations that the
DSHW provides misleading information to the public, EPA has no
documentation that indicates the Utah DSHW has provided misleading
information to the public related to the hazardous waste authorization
process. The DSHW has followed the process specified in 40 CFR 271.20
to provide public notice prior to submitting an application for
authorization to EPA. In addition, EPA conducts annual reviews of the
DSHW's hazardous waste program. The last review was completed at the
end of 2007. These reviews evaluate the DSHW's hazardous waste program
using 19 program criteria organized under four key program areas:
Program management, pollution prevention and hazardous waste
minimization, safe waste management, and corrective action. EPA's
program management review of the DSHW includes the following criteria:
Adoption and authorization of federal rules, resources and skill mix,
training program, data timeliness, accuracy and completeness, and
records management. EPA notes that, for 2007, Utah met or exceeded the
standards for all 19 program criteria. Therefore, we have determined
that there is no basis to deny authorization approval based on these
comments.
C. What Decisions Have We Made in This Rule?
Based on EPA's response to public comments, the Agency has
determined that approval of Utah's RCRA program revisions should
proceed. EPA has made a final determination that Utah's application to
revise its authorized program meets all of the statutory and regulatory
requirements established by RCRA. Therefore, we grant Utah final
authorization to operate its hazardous waste program with the changes
described in the authorization application. Utah has responsibility for
permitting TSDFs within its borders, except in Indian country as that
term is defined at 18 U.S.C. 1151, and for carrying out the aspects of
the RCRA program described in its revised program 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
[[Page 29989]]
the authority of HSWA take effect in authorized states before they are
authorized for the requirements. Thus, EPA will implement those
requirements and prohibitions in Utah, including issuing permits, until
Utah is authorized to do so. For further background on the scope and
effect of today's action to approve Utah's RCRA program revisions,
please refer to the preambles of EPA's March 7, 2008 proposed and
immediate final rules at 73 FR 12340 and 73 FR 12277, respectively.
D. Statutory and Executive Order Reviews
The Office of Management and Budget has exempted this action from
the requirements of Executive Order 12866, ``Regulatory Planning and
Review'' (58 FR 51735, October 4, 1993), and, therefore, this action is
not subject to review by OMB. This action authorizes state requirements
for the purpose of RCRA 3006 and imposes no additional requirements
beyond those imposed by state law. Accordingly, I certify that this
action will not have a significant economic impact on a substantial
number of small entities under the Regulatory Flexibility Act (5 U.S.C.
601 et seq.). Because this action authorizes 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 of 1995 (Pub. L. 104-4).
For the same reason, this action also does not significantly or
uniquely affect the communities of Tribal governments, as specified by
Executive Order 13175, ``Consultation and Coordination With Indian
Tribal Governments'' (65 FR 67249, November 9, 2000). This action 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 the various levels of government,
as specified in Executive Order 13132, ``Federalism'' (64 FR 43255,
August 10, 1999), because it merely authorizes state requirements as
part of the state RCRA hazardous waste program without altering the
relationship or the distribution of power and responsibilities
established by RCRA. This action also is not subject to Executive Order
13045, ``Protection of Children From Environmental Health Risks and
Safety Risks'' (62 FR 19885, April 23, 1997), because it is not
economically significant and it does not make decisions based on
environmental health or safety risks. 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
under Executive Order 12866.
Under RCRA 3006(b), EPA grants a state's application for
authorization as long as the state meets the criteria required by RCRA.
It would thus be inconsistent with applicable law for EPA, when it
reviews a state authorization application, to require the use of any
particular voluntary consensus standard in place of another standard
that otherwise satisfies the requirements of RCRA. Thus, the
requirements of section 12(d) of the National Technology Transfer and
Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required
by section 3 of Executive Order 12988, ``Civil Justice Reform'' (61 FR
4729, February 7, 1996), in issuing this rule, EPA has taken the
necessary steps to eliminate drafting errors and ambiguity, minimize
potential litigation, and provide a clear legal standard for affected
conduct. EPA has complied with Executive Order 12630, ``Governmental
Actions and Interference with Constitutionally Protected Property
Rights'' (53 FR 8859, March 15, 1988) by examining the takings
implications of the rule in accordance with the ``Attorney General's
Supplemental Guidelines for the Evaluation of Risk and Avoidance of
Unanticipated Takings'' issued under the executive order. This rule
does not impose an information collection burden under the provisions
of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
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 document 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 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 May 23, 2008.
List of Subjects in 40 CFR Part 271
Environmental protection, Administrative practice and procedure,
Confidential business information, Hazardous waste, Hazardous waste
transportation, Incorporation-by-reference, 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: May 12, 2008.
Carol Rushin,
Acting Regional Administrator, Region 8.
[FR Doc. E8-11648 Filed 5-22-08; 8:45 am]
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