[Federal Register Volume 74, Number 37 (Thursday, February 26, 2009)]
[Rules and Regulations]
[Pages 8757-8760]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-4121]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 271
[EPA-R09-RCRA-2008-0726; FRL-8771-8]
Nevada: Final Authorization of State Hazardous Waste Management
Program Revision
AGENCY: Environmental Protection Agency (EPA).
ACTION: Immediate final rule.
-----------------------------------------------------------------------
SUMMARY: The State of Nevada applied for final authorization of
revisions to its hazardous waste management program under the Resource
Conservation and Recovery Act (RCRA), as amended. The Environmental
Protection Agency (EPA) has determined that these changes satisfy all
of the requirements necessary to qualify for final authorization, and
is authorizing the State's changes through this immediate final rule.
EPA is publishing this rule to authorize the changes without a prior
proposal because we believe that this action is not controversial and
do not expect comments that oppose it. In the Proposed Rules section of
this Federal Register, EPA is also publishing a proposal to authorize
these changes to Nevada's hazardous waste management program. Unless we
receive written comments that oppose this authorization during the
comment period, the decision to authorize Nevada's changes to its
hazardous waste management program will take effect as provided below.
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 the separate document in the proposed rules section of this
Federal Register will serve as the proposal for purposes of this
rulemaking action. EPA will respond to public comments in a later final
rule based on the proposal. Nevada's application for program revision
is available for public review and comment. EPA may not provide further
opportunity for comment. Any parties interested in commenting on this
action should do so at this time.
DATES: Final authorization will become effective on April 27, 2009
unless EPA receives adverse written comment on or before March 30,
2009. If 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, identified by Docket ID No. EPA-R09-
RCRA-2008-0726 by one of the following methods:
http://www.regulations.gov: Follow the on-line
instructions for submitting comments.
E-mail: [email protected].
Fax: (415) 947-3533 (prior to faxing, please notify the
EPA contact listed below).
Mail: Send written comments to Jennifer Downey, Region IX
(WST-2), 75 Hawthorne Street, San Francisco, CA 94105.
Hand Delivery: Jennifer Downey, Region IX (WST-2), 75
Hawthorne Street, San Francisco, CA 94105. Such deliveries are only
accepted during the office's normal hours of operation, and special
arrangements should be made for deliveries of boxed information.
Instructions: Direct your comments to Docket ID No. EPA-R09-RCRA-
2008-0726. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
http://www.regulations.gov 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 http://www.regulations.gov Web site is an ``anonymous
access'' system, which means 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 docket
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, any form of encryption, and be free of any defects or
viruses. (For additional information about EPA's public docket, visit
the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm).
Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g. , CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in http://www.regulations.gov or in hard copy.
You may view and copy Nevada's application at the following
addresses: Nevada Department of Conservation and Natural Resources,
Division of Environmental Protection, 901 So. Stewart Street, Ste.
4001, Carson City, NV 89701, Phone: 775/687-4670, Business Hours: 9
a.m. to 5 p.m. Monday through Friday. U.S. EPA Region IX Library-
Information Center, 75 Hawthorne Street, San Francisco, CA 94105,
Phone: 415/947-4406, Business Hours: 9 a.m. to 12 p.m. and 1 p.m. to 4
p.m. Monday through Thursday.
FOR FURTHER INFORMATION CONTACT: Jennifer Downey, Region IX (WST-2), 75
Hawthorne Street, San Francisco, CA 94105, Phone: 415/972-3342. 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, consistent with, and no less stringent
than the Federal program. As the Federal program changes, States must
revise their programs and ask EPA to authorize the revisions. Revisions
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
[[Page 8758]]
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. States can also initiate their own changes to their
hazardous waste program and these changes must then be authorized.
B. What Decisions Have We Made in This Rule?
We conclude that Nevada's application to revise its authorized
program meets all of the statutory and regulatory requirements
established by RCRA. Therefore, we grant Nevada Final authorization to
operate its hazardous waste program with the changes described in this
rulemaking. Nevada has responsibility for permitting Treatment,
Storage, and Disposal Facilities (TSDFs) within its borders (except in
Indian Country) and for carrying out all authorized 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 HSWA regulations
take effect as a matter of federal law in authorized States before
those States are authorized for such requirements. Thus, EPA will
implement those requirements and prohibitions in Nevada, including
issuing permits, until the State is granted authorization to do so.
C. What Is the Effect of This Authorization Decision?
A facility in Nevada subject to RCRA will now have to comply with
the authorized State requirements instead of the corresponding Federal
requirements in order to comply with RCRA. Additionally, facilities
must comply with any applicable Federally issued requirements, such as,
for example, HSWA regulations issued by EPA for which Nevada has not
received authorization, and RCRA requirements that are not supplanted
by authorized State-issued requirements. Nevada continues to have
enforcement responsibilities under its State law to pursue violations
of its hazardous waste management program. EPA continues to have
independent authority under RCRA sections 3007, 3008, 3013, and 7003,
which include, among others, the authority to:
Do inspections, and require monitoring, tests, analyses or
reports;
Enforce RCRA requirements (including State-issued statutes
and regulations that are authorized by EPA, and any applicable
federally-issued statutes and regulations) and suspend or revoke
permits; and
Take enforcement actions regardless of whether the State
has taken its own actions.
This authorization action does not impose additional requirements
on the regulated community because the regulations for which Nevada is
being authorized are already effective under State law, and are not
changed by this authorization action.
D. Why Wasn't There a Proposed Rule Before This 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.
You may not have another opportunity to comment. 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 these State
program changes.
E. What Happens if EPA Receives Comments That Oppose This Action?
If 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. EPA will then use the proposal
mentioned in the previous paragraph in making any further decision on
the authorization of the State program changes. EPA will also address
all public comments in a later final rule. 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 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. What Has Nevada Previously Been Authorized For?
Nevada initially received final authorization for the base RCRA
program on August 19, 1985 effective October 18, 1985 (50 FR 33359).
Nevada has since received authorization for all revisions to the
Federal RCRA program through June 1999, except for 40 CFR section
260.22 and the final rule published on April 12, 1989 (61 FR 16289)
addressing Imports and Exports of Hazardous Waste. The following
Federal Register publication and effective dates apply to those
revisions: April 29, 1992 effective June 29, 1992 (57 FR 18083), May
27, 1994 effective July 26, 1994 (59 FR 27472), April 11, 1995
effective June 12, 1995 (60 FR 18358), June 24, 1996 effective August
23, 1996 (60 FR 32345), January 29, 1999 effective March 30, 1999 (64
FR 4596), and June 12, 2002 effective August 12, 2002 (67 FR 40229).
G. What Changes Are We Authorizing With This Action?
On May 27, 2004, August 30, 2004, January 25, 2005 and May 15,
2006, Nevada submitted final complete program revision applications for
changes and additions to the Federal RCRA implementing regulations that
occurred between July 7, 1999 and July 1, 2005, seeking authorization
of those changes, as well as miscellaneous changes to its previously
authorized regulations, 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 Nevada's hazardous waste management
program revision satisfies all of the requirements necessary to qualify
for final authorization. Therefore, EPA grants Nevada's final
authorization for the following program revisions:
1. Program Revision Changes for Federal Rules
Nevada adopts by reference the Federal RCRA regulations in effect
as of July 1, 2005 at Nevada Administrative Code (NAC), section
444.8632 as modified by sections 444.86325.1(d) and (f), 444.8633 and
444.8634 adopted effective May 6, 2006. Nevada adopts the Federal
requirements under the state statutory authorities as found in the
Nevada Revised Statutes (NRS), sections 459.485, 490, 500 and 550
effective 2005. The Federal requirements for which the state is being
authorized are as follows:
RCRA Cluster X (Federal Rules Published From July 7, 1999 to June 30,
2000)
(Adopted by Nevada as indicated in section 4 of LCB Petition No. R-
2001-02 (filed with the Secretary of State on December 6, 2000) and
as amended by LCB Petition 2001-02 [LCB R-037-01] (filed with the
Secretary of State on October 25, 2001)).
Hazardous Air Pollutant Standards for Combustors, Miscellaneous
Units, and Secondary Lead Smelters; Clarification of BIF
Requirements; Technical Correction to Fast-track Rule (64 FR 52828,
9/30/99 as amended 64 FR 63209, 11/19/99) (Checklist 182);
Land Disposal Restrictions Phase IV--Technical Corrections (64 FR
56469, 10/20/99) (Checklist 183);
[[Page 8759]]
Accumulation Time for Waste Water Treatment Sludges (65 FR 12378, 3/
8/00) (Checklist 184);
Vacatur of Organobromine Production Waste Listings (65 FR 14472, 3/
17/00) (Checklist 185);
Petroleum Refining Process Wastes--Clarification (65 FR 36365, 6/8/
00) (Checklist 187).
RCRA Cluster XI (Federal Rules Published From July 1, 2000 to June 30,
2001)
(Adopted by Nevada as indicated in section 4 of LCB Petition No. R-
2001-02 [LCB R-037-01] (filed with the Secretary of State on October
25, 2001)).
Hazardous Air Pollutant Standards; Technical corrections (65 FR
42292, 7/10/00 amended 66 FR 24270, 5/14/01 and 66 FR 35087, 7/3/01)
(Checklist 188);
Chlorinated Aliphatics Listing and LDRs for Newly Identified Wastes
(65 FR 67068, 11/8/00) (Checklist 189);
Land Disposal Restrictions Phase IV--Deferral for PCBs in Soil (65
FR 81373, 12/26/00) (Checklist 190);
Mixed Waste Rule 66 FR 27218, 5/16/01) (Checklist 191);
Mixture and Derived-From Rules Revisions (66 FR 27266, 5/16/01)
(Checklist 192A);
Land Disposal Restrictions Correction (66 FR 27266, 5/16/01)
(Checklist 192B);
Change of Official EPA Mailing Address (66 FR 34374, 6/28/01)
(Checklist 193).
RCRA Cluster XII (Federal Rules Published From July 1, 2001 to June 30,
2002)
(Adopted by Nevada as indicated in section 4 of LCB Petition No.
2002-11 [LCB R104-02] (filed with the Secretary of State on October
18, 2002)).
Mixture and Derived-From Rules Revision II (66 FR 50332, 10/3/01
amended 66 FR 60153, 12/3/01) (Checklist 194);
Inorganic Chemical Manufacturing Wastes Identification and Listing
(66 FR 58258, 11/20/01 amended 67 FR 17119, 4/9/02) (Checklist 195);
CAMU Amendments (67 FR 2962, 1/22/02) (Checklist 196);
Interim Standards for Hazardous Air Pollutants for Hazardous Waste
Combustors (67 FR 6792, 2/13/02) (Checklist 197);
Hazardous Air Pollutant Standards for Hazardous Waste Combustors (67
FR 6968, 2/14/02) (Checklist 198);
Vacatur of Mineral Processing Spent Materials Being Reclaimed as
Solid Wastes and TCLP Use With MGP Waste (67 FR 11251, 3/13/02)
(Checklist 199).
RCRA Cluster XIII (Federal Rules Published From July 1, 2002 to June
30, 2003)
(Adopted by Nevada as indicated in section 4 of LCB File No. R-126-
03 [SEC 2003-06] (filed with the Secretary of State on April 13,
2004) and as amended by LCB File No. R-208-03 [SEC 2003-08] (filed
with the Secretary of State on April 16, 2004)).
Zinc Fertilizers Made From Recycled Hazardous Secondary Material (67
FR 48393, 7/24/02) (Checklist 200);
Treatment Variance for Radioactively Contaminated Batteries (67 FR
62618, 10/7/02) (Checklist 201);
Hazardous Air Pollutant Standards for Combustors--Corrections 2 (67
FR 77687, 12/19/02) (Checklist 202).
RCRA Clusters XIV and XV (Federal Rules Published From July 1, 2003 to
June 30, 2005)
(Adopted by Nevada as indicated in LCB File Number R175-05,
effective May 4, 2006).
Recycled Used Oil Management Standards; Clarification (68 FR 44659,
7/30/03) (Checklist 203);
National Environmental Performance Track Program (69 FR 21737, 4/22/
04, as amended 69 FR 62217, 10/25/04) (Checklist 204);
NESHAP: Surface Coating of Automobiles and Light-Duty Trucks; Final
Rule (69 FR 22601, 4/26/04) (Checklist 205);
Nonwastewaters from Dyes and Pigments (70 FR 9138, 2/24/05)
(Checklist 206);
Uniform Hazardous Waste Manifest Rule (70 FR 10776, 3/4/05, as
amended 70 FR 35034, 06/16/05) (Checklist 207);
SW-846 Methods Innovation Rule (70 FR 34538, 06/14/05) (Checklist
208).
2. Miscellaneous Changes
During a review of Nevada's regulations in 2002, EPA identified a
variety of changes that Nevada had made to provisions EPA had
previously authorized, as well as a number of State provisions that
have never been authorized. In its program revision applications
described in Section G, Nevada also addressed additional State-
initiated changes. These miscellaneous changes, which are listed
following this paragraph, generally (1) update the CFR reference dates
to conform with the State's adoption of the Federal regulations, (2)
clarify and make the State's regulations more internally consistent, or
(3) bring the State regulations closer to the Federal language. EPA has
evaluated the changes addressed in this section and has determined that
the State's authorized hazardous waste program, as amended by these
provisions, remains equivalent to, consistent with, and no less
stringent than the Federal RCRA program for which the State is
authorized.
Nevada Administrative Code (NAC), as amended effective May 4,
2006, sections 444.84225 ``Class 3 modification''; 444.84235
``Delisted waste''; 444.8427 ``facility for community recycling'';
444.84275 ``facility for community storage''; 444.8428 ``facility
for the management of hazardous waste''; 444.843 ``hazardous waste''
except (b) and (c); 444.8432 ``management of hazardous waste'';
444.84335 ``new or expanding facility for the management of
hazardous waste''; 444.84375; 444.850(2); 444.8546 ``facility for
the management of hazardous waste''; 444.8565 ``hazardous waste''
except 444.8565(b); 444.861 ``used oil''; 444.8618; 444.86325(1)(a);
444.86325(1)(b); 444.8671; 444.8675(1)-(4); and 444.8688.
H. Where Are the Revised State Rules Different From the Federal Rules?
At NAC section 86325.1(f), Nevada has not adopted the Federal
exemption at 40 CFR 264.1050(h) and 265.1050(g), as addressed in the
final rule for Surface Coating of Automobiles and Light-Duty Trucks (69
FR 22602, April 26, 2004; Checklist 205), thus the State's regulation
is more stringent than the Federal requirement. In addition, Nevada is
more stringent with respect to the July 30, 2003 final rule for the
Recycled Used Oil Management Standards (68 FR 44659; Checklist 203)
because at NAC 86325.1(d), the State excludes 40 CFR 261.5(j) from its
incorporation by reference. In contrast to the Federal code which
directs conditionally-exempt small quantity generator hazardous waste
mixed with used oil to be handled according to the Part 279 standards
(used oil), Nevada subjects such mixed wastes to its hazardous wastes
regulations. Other than the April 26, 2004 and July 30, 2003 final
rules, Nevada incorporates by reference the remaining Federal rules
listed in Section G; therefore, there are no significant differences
between the remaining Federal rules and the revised State rules being
authorized today.
There is an outstanding issue in the revised Nevada program that
will not be authorized at this time. The issue is discussed in detail
here in order to alert the regulated community to the potential
conflict between the Federal and State programs as they currently
exist. The issue concerns Nevada's adoption of a program that regulates
antifreeze that is recycled and that either exhibits the toxicity
characteristic of hazardous waste, or is a listed hazardous waste in
the state of origin. Nevada's program requirements may be less
stringent than the federal program, and therefore EPA is not
authorizing Nevada's spent antifreeze recycling program at this time.
Generators and recyclers of used antifreeze determined to be hazardous
waste must continue to comply with the requirements of 40 CFR 261.6(b)-
(d) ``Requirements for Recyclable Materials'' as adopted by reference
by Nevada.
I. Who Handles Permits After The Authorization Takes Effect?
NDEP will issue permits for all the provisions for which it is
authorized and will administer the permits it issues. Section
3006(g)(1) of RCRA gives EPA the authority to issue or deny permits or
parts of permits for requirements for which the state is not
authorized. Therefore, whenever EPA adopts standards under HSWA for
[[Page 8760]]
activities or wastes not currently covered by the authorized program,
EPA may process RCRA permits in Nevada for the new or revised HSWA
standards until NDEP has received final authorization for such new or
revised HSWA standards. EPA and NDEP have agreed to a joint permitting
process for facilities covered by both the authorized program and
standards under HSWA for which the State is not yet authorized, and for
handling existing EPA permits after the State receives authorization.
J. How Does Today's Action Affect Indian Country (18 U.S.C. 1151) in
Nevada?
Nevada is not being authorized to operate any portion of the
hazardous waste management program in Indian country. Nevada is not
authorized to carry out its hazardous waste program in Indian country
within the State, which includes the following: The Confederated Tribes
of the Goshute Reservation; Duckwater Shoshone Tribe; Ely Shoshone
Tribe; Fort McDermitt Paiute and Shoshone Tribes; Fort Mohave Indian
Tribe; Las Vegas Tribe of Paiute Indians; Lovelock Paiute Tribe; Moapa
Band of Paiute Indians; Paiute-Shoshone Tribe of the Fallon Reservation
and Colony; Pyramid Lake Paiute Tribe; Reno-Sparks Indian Colony;
Shoshone-Paiute Tribes of Duck Valley Reservation; Summit Lake Paiute
Tribe; Te-Moak Tribes of Western Shoshone Indians; Walker River Paiute
Tribe; Washoe Tribe; Winnemucca Indian Colony; Yerington Paiute Tribe;
and the Yomba Shoshone Tribe. This authorization action has no effect
in Indian country. EPA will continue to implement and administer the
RCRA program in Indian country within the State.
K. What Is Codification and Is EPA Codifying Nevada's Hazardous Waste
Management 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
management 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 DD for this authorization of
Nevada's program changes.
L. 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.
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 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.
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
EO 13175 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 April
27, 2009.
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 notice 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: January 29, 2009.
Laura Yoshii,
Acting Regional Administrator, Region 9.
[FR Doc. E9-4121 Filed 2-25-09; 8:45 am]
BILLING CODE 6560-50-P