§ 272.1751 - North Dakota State-administered program: Final authorization.

§ 272.1751 North Dakota State-administered programAdministered Program: Final authorization.

Cross Reference

Link to an amendment published at 84 FR 67877, Dec. 12, 2019.

Authorization.

(a) History of the State of North Dakota authorization. Pursuant to section 3006(b) of RCRA, 42 U.S.C. 6926(b), North Dakota has final authorization for the following elements as submitted to the EPA in North Dakota's base program application for final authorization which was approved by the EPA effective on October 19, 1984. Subsequent program revision applications were approved effective on August 24, 1990, July 6, 1992, June 6, 1994, March 20, 2000, November 25, 2005, April 14, 2008, and October April 30, 20182019.

(b) Enforcement authority. The State of North Dakota has primary responsibility for enforcing its hazardous waste management program. However, the EPA retains the authority to exercise its inspection and enforcement authorities in accordance with sections 3007, 3008, 3013, 7003 of RCRA, 42 U.S.C. 6927, 6928, 6934, 6973, and any other applicable statutory and regulatory provisions, regardless of whether the state State has taken its own actions, as well as in accordance with other statutory and regulatory provisions.

(c) State Statutes and Regulations - :

(1) Incorporation by reference. The North Dakota statutes and regulations cited in paragraph (c)(1)(i) of this section are incorporated by reference as part of the hazardous waste management program under Subtitle C of RCRA, 42 U.S.C. 6921 et seq. This incorporation by reference is approved by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. You may obtain copies of the North Dakota regulations provisions that are incorporated by reference in this paragraph from the North Dakota Legislative Council, Second Floor, State Capitol, 600 E Boulevard AvenueAve., Bismarck, North Dakota 58505, phone [phone]. You may inspect a copy at EPA Region 8, 1595 Wynkoop Street, Denver, Colorado, phone number [phone], or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call [phone]email [e-mail], or go to: http:/ www.archives.gov/federal-register/cfr/ibr-locations.html.

(i) The Binder entitled “EPA-Approved North Dakota Statutory and Regulatory Requirements Applicable to the Hazardous Waste Management Program,” dated April 20182019.

(ii) [Reserved]

(2) Legal basis. The EPA considered the following statutes and regulations in evaluating the state State program but is not incorporating them herein for enforcement purposes:

(i) North Dakota Century Code (NDCC), Volume 13A, 2012 Replacement, . North Dakota Constitution, Article XI: Sections 5 and 6.

(ii) North Dakota Century Code NDCC, Volume 4A, 2012 Replacement2017 Cumulative Supplement. Chapter 23.1-01 “State Department “Department of HealthEnvironmental Quality,” Section Sections 23.1-01-04 and 23.1-01-11; Chapter 23.1-20.3 04 “Hazardous Waste Management,” Sections 23-20.31-04-01(1) through (4), 23-20.31-04-02 introductory paragraph, (2), (3) through (8), (1012) , (13) through (1615), and (1817); 23-20.31-04-03; 23-20.31-04-05; 23-20.31-0504-08(3), (54), and (6), and (8); 23-20.31-06 04-12 through 23-20.31-1004-16; and Chapter 23.1-29 08 “Solid Waste Management and Land Protection,” Section 23.1-2908-0403.

(iii) North Dakota Century Code, Volume 4A, 2015 Pocket Supplement. Chapter 23-01 “State Department of Health,” Section 23-01-36.

(iv) North Dakota Century Code, Volume

NDCC, Volume 5, 2012 Replacement. Chapter 28-32 “Administrative Agencies Practice Act,”

Section

Sections 28-32-16 and 28-32-21.1

“Actions against administrative agencies - Attorney's fees and costs

.

”

(v) North Dakota Century Code NDCC, Volume 6, 2012 Replacement. Chapter 32-40 “Environmental Law Enforcement,” Sections 32-40-03 through 32-40-11.

(vi) North Dakota Century Code NDCC, Volume 9A, 2012 Replacement, as amended by the 2015 2017 Pocket Supplement. Chapter 44-04 “Duties, records and meetings,” Sections 44-04-18 through 19.1.

(vii) North Dakota Administrative Code (NDAC), Article 33.1-24, Hazardous Waste Management, as amended through effective January 1, 20162019. Sections 33.1-24-01-15; 33.1-24-01-16; 33.1-24-06-05, except .2.c; 33.1-24-06-06.2; 33.1-24-06-09; 33.1-24-06-15.1.6 through .3.b; 33.1-24-07-03.4; 33.1-24-07-04 through 33.1-24-07-14; 33.1-24-07-25 through 33.1-24-07-27; and 33.1-24-07-40 through 33.1-24-07-54.

(3) Related legal provisions. The following statutory and regulatory provisions are broader in scope than the federal Federal program, are not part of the authorized program, are not incorporated by reference, and are not federally enforceable:

(i) North Dakota Century Code, 2012 Replacement NDCC, 2017 Cumulative Supplement, Volume 4A, Chapter 23.1-01 “State Department “Department of HealthEnvironmental Quality,” Section 23.1-01-0405. 1

(

6).

(ii) North Dakota Century Code, Volume 4A, 2012 Replacement2017 Cumulative Supplement. Chapter 23.1-20.3 04 “Hazardous Waste Management,” Sections 23-20.31-04-02(1); and 23-20.3-05.1; 23-20.3-05.2; and 23-20.3-05.3. 04-09 through 23.1-04-11.

(iii) North Dakota Administrative Code, Article 33.1-24, “Hazardous Waste Management,” as amended through effective January 1, 20162019, Sections 33-24-01-09.4; 33-24-01-10.4; 33-24-01-19.1.d; 33-24-02-04.1.y; 33-24-03-03.4; 33.1-24-04-02.3; 33.1-24-05-02 second sentence; 33.1-24-06-14.3.a(4); and 33.1-24-06-21.

(iv) North Dakota's hazardous waste regulations set forth additional transporter requirements including permit requirements at 33.1-24-04-02. The transporter permit requirements are broader in scope than the federal Federal program.

(4) Unauthorized State amendments and provisions.:

(i) North Dakota has partially or fully adopted, but is not authorized to implement, the federal Federal rule published in the Federal Register on October 22, 1998, titled Standards Applicable to Owners and Operators of Closed and Closing Hazardous Waste Management Facilities: Post-Closure Permit Requirement and Closure Process; Final Rule (HSWA/non-HSWA). The EPA will continue to implement the federal Federal HSWA requirements for which North Dakota is not authorized until the state State receives specific authorization for those requirements.

(ii) The following federal rules Federal rules listed in the following table are not delegable to states. North Dakota has adopted these provisions and left the authority to the EPA for implementation and enforcement: Imports and Exports of Hazardous Waste: Implementation of OECD Council Decision C(92)39 Concerning the Control of Transfrontier Movements of Wastes Destined for Recovery Operations, published April 12, 1996; and Revisions to the Requirements for: Transboundary Shipments of Hazardous Wastes Between OECD Member Countries, Export Shipments of Spent Lead-Acid Batteries, Submitting Exception Reports for Export Shipments of Hazardous Wastes, and Imports of Hazardous Wastes, published January 8, 2010.

(iii) North Dakota has adopted the following federal Federal provisions from the Revisions to the Definition of Solid Waste Rule, published January 13, 2015, which have since been vacated by the U.S. Court of Appeals for the District of Columbia Circuit in Am. Petroleum Inst. v. EPA, 862 F.3d 50 (D.C. Cir. 2017) and Am. Petroleum Inst. v. EPA, No. 09-1038 (D.C. Cir. Mar. 6, 2018) (vacating both the Factor 4 Legitimacy Test and the Verified Recycler Exclusion aspects of the 2015 DSW Rule): One criterion in the determination of whether recycling is legitimate at 40 CFR 260.43(a)(4); the verified recycler exclusion, which allowed generators to send their hazardous secondary materials to certain reclaimers at 40 CFR 261.4(a1)(24); and the associated provisions at 40 CFR 260.30(d) and 260.31(d), which address the criteria in the variance determination for exceptions to the classification of hazardous secondary materials as a solid waste. As a result, those state provisions will be considered broader in scope than the federal program, as it pertains to the specific vacated provisions, and are listed in § 272.1751

(

c)(3)(iii) with the rest of North Dakota's broader in scope regulatory provisions).

(5) Memorandum of Agreement.: The Memorandum of Agreement between the EPA Region 8 and the State of North Dakota, signed by the Environmental Health Section EPA Region 8 Regional Administrator on December 5, 2018 and the Director of the North Dakota Department of Health on July 18, 2016Environmental Quality on December 4, 2018, although not incorporated by reference, is referenced as part of the authorized hazardous waste management program under subtitle C of RCRA, 42 U.S.C. 6921 et seq.

(6) Statement of Legal Authority.: “Attorney General's Statement: Hazardous Waste Management Program” signed by the Attorney General of North Dakota on June 8, 1984, and revisions, supplements, and addenda to that Statement dated February 22, 1989, February 11, 1984, October 13, 1999, April 23, 2004, August 19, 2004, and December 5, 2016, and September 29, 2018, although not incorporated by reference, are referenced as part of the authorized hazardous waste management program under subtitle C of RCRA, 42 U.S.C. 6921 et seq.

(7) Program Description.: The Program Description and any other materials submitted as supplements thereto, although not incorporated by reference, are referenced as part of the authorized hazardous waste management program under subtitle C of RCRA, 42 U.S.C. 6921 et seq.

[83 84 FR 5452367877, OctDec. 3012, 20182019]