[Federal Register Volume 74, Number 56 (Wednesday, March 25, 2009)]
[Rules and Regulations]
[Pages 12625-12628]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-6677]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 271
[EPA-R06-RCRA-2008-0756-; FRL-8784-9]
New Mexico: Final Authorization of State Hazardous Waste
Management Program Revision
AGENCY: Environmental Protection Agency (EPA).
ACTION: Immediate final rule.
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SUMMARY: The State of New Mexico has applied to the EPA for final
authorization to administer the provisions of the Used Oil program
under the Resource Conservation and Recovery Act (RCRA). The EPA has
determined that the statutes and regulations of the State of New Mexico
Used Oil program satisfy all requirements needed to qualify for final
authorization, and is authorizing the State's changes through this
immediate final action. The EPA is publishing this rule to authorize
the changes 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 New Mexico's changes to its
hazardous waste program will take effect. If we receive comments that
oppose this action, we will publish a document in the Federal Register
withdrawing this rule before it takes effect, and a separate document
in the proposed rules section of this Federal Register will serve as a
proposal to authorize the changes.
DATES: This final authorization will become effective on May 26, 2009
unless the EPA receives adverse written comment by April 24, 2009. If
the EPA receives such comment, it will publish a timely withdrawal of
this immediate final rule in the Federal Register and inform the public
that this authorization will not take effect.
ADDRESSES: Submit your comments 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: Alima Patterson, Region 6, Regional Authorization
Coordinator, State/Tribal Oversight Section (6PD-O), Multimedia
Planning and Permitting Division, EPA Region 6, 1445 Ross Avenue,
Dallas, Texas 75202-2733.
4. Hand Delivery or Courier. Deliver your comments to Alima
Patterson,
[[Page 12626]]
Region 6, Regional Authorization Coordinator, State/Tribal Oversight
Section (6PD-O), Multimedia Planning and Permitting Division, EPA
Region 6, 1445 Ross Avenue, Dallas, Texas 75202-2733.
Instructions: Do not submit information that you consider to be CBI
or otherwise protected through regulations.gov, or e-mail. The Federal
regulations.gov Web site is an ``anonymous access'' system, which means
the 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 the EPA without going through regulations.gov, your e-mail
address will be automatically captured and included as part of the
comment that is placed in the public docket and made available on the
Internet. If you submit an electronic comment, the 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 the EPA cannot read
your comment due to technical difficulties and cannot contact you for
clarification, the EPA may not be able to consider your comment.
Electronic files should avoid the use of special characters, any form
of encryption, and be free of any defects or viruses. You can view and
copy New Mexico's application and associated publicly available
materials from 8:30 a.m. to 4 p.m. Monday through Friday at the
following locations: New Mexico Environment Department, 2905 Rodeo Park
Drive East, Building 1, Santa Fe, New Mexico 87505-6303, phone number
(505) 476-6035 and EPA, Region 6, 1445 Ross Avenue, Dallas, Texas
75202-2733, phone number (214) 665-8533. Interested persons wanting to
examine these documents should make an appointment with the office at
least two weeks in advance.
FOR FURTHER INFORMATION CONTACT: Alima Patterson, Region 6 Regional
Authorization Coordinator, State/Tribal Oversight Section (6PD-O),
Multimedia Planning and Permitting Division, (214) 665-8533), EPA
Region 1445 Ross Avenue, Dallas, Texas 75202-2733, and E-mail address
[email protected].
SUPPLEMENTARY INFORMATION:
A. Why Are Revisions to State Programs Necessary?
States which have received final authorization from the 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 the 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 the 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?
We conclude that New Mexico's application to revise its authorized
program meets all of the statutory and regulatory requirements
established by RCRA. Therefore, we grant New Mexico final authorization
to operate its hazardous waste program with the changes described in
the authorization application. New Mexico has responsibility for
permitting treatment, storage, and disposal facilities within its
borders (except in Indian Country) 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 the EPA promulgates under the authority of HSWA take
effect in authorized States before they are authorized for the
requirements. Thus, the EPA will implement those requirements and
prohibitions in New Mexico including issuing permits, until the State
is granted authorization to do so.
C. What Is the Effect of Today's Authorization Decision?
The effect of this decision is that a facility in New Mexico
subject to RCRA will now have to comply with the authorized State
requirements instead of the equivalent Federal requirements in order to
comply with RCRA. New Mexico has enforcement responsibilities under its
State hazardous waste program for violations of such program, but the
EPA retains its authority under RCRA sections 3007, 3008, 3013, and
7003, which include, among others, authority to:
--Do inspections, and require monitoring, tests, analyses, or reports;
--Enforce RCRA requirements and suspend or revoke permits; and
--Take enforcement actions after notice to and consultation with the
State.
This action does not impose additional requirements on the
regulated community because the regulations for which New Mexico is
being authorized by today's action are already effective under State
law, and are not changed by today's action.
D. Why Wasn't There a Proposed Rule Before Today's Rule?
The 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 the State program changes.
E. What Happens if the EPA Receives Comments That Oppose This Action?
If the EPA receives comments that oppose this authorization, we
will withdraw this rule by publishing a document in the Federal
Register before the rule becomes effective. The EPA will base any
further decision on the authorization of the State program changes on
the proposal mentioned in the previous paragraph. 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 only
the authorization of a particular change to the State hazardous waste
program, we will withdraw only that part of this rule, but the
authorization of the program changes 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. For What Has New Mexico Previously Been Authorized?
The State of New Mexico initially received final authorization on
January 25, 1985, (50 FR 1515) to implement its base hazardous waste
management program. New Mexico received authorization for revisions to
its program on February 9, 1990 (55 FR 4604) effective April 10, 1990;
March 19, 1990 (55 FR 10076); July 11, 1990 (55 FR 28397) effective
July 25, 1990; October 5, 1992 (57 FR 45717) effective December 4,
1992; June 9, 1994 ( 59 FR 29734) effective August 23, 1994; October 7,
1994 (59 FR 51122) effective December 21, 1994; April 25, 1995 (60 FR
20238) effective July 10, 1995; (61 FR 2450) January 2, 1996; December
23, 1996 (61 FR 67474) effective March 10,
[[Page 12627]]
1997 and August 10, 2001 (66 FR 42140) effective October 9, 2001. The
authorized New Mexico RCRA program was incorporated by reference to the
CFR, effective December 13, 1993 (58 FR 52677); November 18, 1996 (61
FR 49265); July 13, 1998 (63 FR 23221); effective October 27, 2003 and
(72 FR 46165) effective October 16, 2007. On August 22, 2008, New
Mexico applied for approval of its program revisions for the Used Oil
provisions which includes Rule Checklists 104, 107, 112, 122, 122.1,
130, 166, and 166.1 listed in this document in accordance with 40 CFR
271.21.
The NMED petitioned the New Mexico Environmental Improvement Board
(EIB) on March 10, 2003 for a hearing to amend the HWMR, 20.4.1 for the
EPA Federal rules promulgated through July 1, 2002, including the Used
Oil program. The EIB adopted the amendments to Hazardous Waste
Management Regulations (HWMR) on August 5, 2003 as permanent rules
which included the Used Oil program.
Thus, 20.4.1 NMAC provides equivalent and no less stringent
authority than the adoption of Federal RCRA Subtitle C program in
effect through July 1, 2002. This is the version that is referred to in
the Attorney General's Statement and Certification for submitted with
this program revision. The 20 NMAC 4.1 became effective on October 1,
2003. New Mexico Statutes Annotated (NMAC) 1978 Sections 74-4-4A(1) and
74-4-4F (2002) provides New Mexico with authority to adopt Federal
regulations by reference with exceptions to federal rules that are not
delegated to the State of New Mexico. Since the latest authorization
the scope, structure, coverage, and processes have not materially
changed. The Used Oil program has been adopted within the Hazardous
Waste Management Program, New Mexico does now have the statutory
authority for criminal penalties as required by EPA for program
authorization. Therefore, we are authorizing the State of New Mexico
for the Used Oil regulations in this Federal Register document.
New Mexico, through the HWMR, has incorporated by reference the
following federal RCRA regulations as amended through July 1, 2002: 40
CFR parts 260-270, 40 CFR Part 270; 40 CFR Part 273; and 40 CFR Part
279 with the exception of 40 CFR 260.1(b)(6), 260.20, 260.22, 260.30,
260.31, 260.32, 260.33, 263.20(e), 264.1(f), 264.149, 264.150,
264.301(l), 264.1030(d), 264.1050(g), 264.1080(e), 264.1080(f),
264.1080(g), 265.1(c)(4), 265.149, 265.150, 265.1030(c), 265.1050(f),
265.1080(e), 265.1080(f), 265.1080(g); 268.5, 268.6, 268.42(b),
268.44(a) through (g). New Mexico has incorporated by reference 40 CFR
Part 124, Sec. Sec. 124.31, 124.32, and 124.33 with exception to 40
CFR parts 124.1 and 124.2. Also, it has adopted regulations at
20.4.1.901 NMAC, Permitting Procedures, that are equivalent to and no
less stringent than the procedures of 40 CFR part 124 and required by
40 CFR Part 271.14.
G. What Changes Are We Authorizing With Today's Action?
On August 22, 2008, New Mexico submitted a final complete program
revision application, seeking authorization of their changes in
accordance with 40 CFR 271.21. We now make an immediate final decision,
subject to receipt of written comments that oppose this action, that
New Mexico's hazardous waste program revision satisfies all of the
requirements necessary to qualify for Final authorization. Therefore,
we grant the State of New Mexico Final authorization for the following
changes: The State of New Mexico's program revisions consist of
regulations which specifically govern Checklists 112, 122, 122.1, 130,
166, and 166.1 are documented in this Federal Register document.
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Federal Register
Description of federal date and page
requirement (include checklist (and/or RCRA Analogous state
, if relevant) statutory authority
authority)
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1. Recycled Used Oil Management 57 FR 41566-41626 New Mexico Statute
Standards. (Checklist 112). September 10, Annotated (NMSA)
1992. 1978, Sections 74-
4-4A(1) and 74-4-
4F (2002).
Hazardous Waste
Regulations
(HWMR), New
Mexico
Environmental
Improvement
Board, 20 NMAC,
20.4.1. 100,
20.4.1.200,
20.4.1.700 and
20.4.1.1002, as
adopted August 5,
2003, effective
October 1, 2003.
2. Recycled Used Oil Management 58 FR 26420-26426 New Mexico Statute
Standards; Technical Amendments May 3, 1993. Annotated (NMSA)
and Corrections 1. (Checklist 1978, Sections 74-
122). 4-4A(1) and 74-4-
4F (2002).
Hazardous Waste
Regulations
(HWMR), New
Mexico
Environmental
Improvement
Board, 20 NMAC,
20.4.1. 200,
20.4.1.500,
20.4.1.600, and
20.4.1.1002 as
adopted August 5,
2003, effective
October 1, 2003.
3. Recycled Used Oil Management 59 FR 10550-10560 New Mexico Statute
Standards; Technical Amendments March 4, 1994. Annotated (NMSA)
and Corrections II. (Checklist 1978, Sections 74-
130). 4-4A(1) and 74-4-
4F (2002).
Hazardous Waste
Regulations
(HWMR), New
Mexico
Environmental
Improvement
Board, 20 NMAC,
20.4.1. 1002, as
adopted August 5,
2003, effective
October 1, 2003.
4. Recycled Used Oil Management 63 FR 24963-24969 New Mexico Statute
Standards; Technical Correction May 6, 1998; as Annotated (NMSA)
and Clarification. (Checklist amended July 14, 1978, Sections 74-
166 & 166.1). 1998, at 63 FR 4-4A(1) and 74-4-
37780-37782. 4F (2002).
Hazardous Waste
Regulations
(HWMR), New
Mexico
Environmental
Improvement
Board, 20 NMAC,
20.4.1.200 and
20.4.1.1002,
adopted August 5,
2003, effective
October 1, 2003.
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[[Page 12628]]
H. Where Are the Revised State Rules Different From the Federal Rules?
In this authorization of the State of New Mexico's program
revisions for the Used Oil provisions, there are no provisions that are
more stringent or broader in scope.
I. Who Handles Permits After the Authorization Takes Effect?
New Mexico will issue permits for all the provisions for which it
is authorized and will administer the permits it issues. The EPA will
continue to administer any RCRA hazardous waste permits or portions of
permits which we issued prior to the effective date of this
authorization. We will not issue any more new permits or new portions
of permits for the provisions listed in the Table in this document
after the effective date of this authorization. The EPA will continue
to implement and issue permits for HSWA requirements for which New
Mexico is not yet authorized.
J. What Is Codification and Is the EPA Codifying New Mexico'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 CFR. We do this by referencing the authorized State
rules in 40 CFR part 272. We reserve the amendment of 40 CFR part 272,
subpart T for this authorization of New Mexico's program changes until
a later date. In this authorization application the EPA is not
codifying the rules documented in this Federal Register notice.
K. Statutory and Executive Order Reviews
The Office of Management and Budget (OMB) has exempted this action
from the requirements of Executive Order 12866 (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 preexisting 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 (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
(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 (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), the 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 the 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 (61 FR 4729, February 7, 1996),
in issuing this rule, the EPA has taken the necessary steps to
eliminate drafting errors and ambiguity, minimize potential litigation,
and provide a clear legal standard for affected conduct. The EPA has
complied with Executive Order 12630 (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 a rule must submit report, which includes a copy
of the rule, to each House of the Congress and to the Comptroller
General of the United States. The 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 26, 2009.
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: March 5, 2009.
Lawrence E. Starfield,
Acting Regional Administrator, Region 6.
[FR Doc. E9-6677 Filed 3-24-09; 8:45 am]
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