[Federal Register Volume 65, Number 8 (Wednesday, January 12, 2000)]
[Rules and Regulations]
[Pages 1814-1817]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-614]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 257 and 258
[FRL-6521-4]
Adequacy of State Permit Programs Under RCRA Subtitle D
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: EPA is taking direct final action to streamline the approval
process for specific state permit programs for solid waste disposal
facilities other than municipal solid waste landfills (MSWLF) that
receive conditionally exempt small quantity generator (CESQG) hazardous
waste. States whose Subtitle D MSWLF permit programs or Subtitle C
hazardous waste management programs have been reviewed and approved or
authorized by EPA are eligible for this streamlined approval process if
their state programs require the disposal of CESQG hazardous waste in
suitable facilities. EPA is issuing an adequacy determination to the
state programs for Kansas, Missouri, and Nebraska.
Elsewhere in the proposed rule section of today's Federal Register,
EPA is proposing the program adequacy of these states and soliciting
comment on this decision. If relevant adverse comments are received,
EPA will withdraw this direct final rule of program adequacy and
address the comments in a subsequent final rule. EPA will not give
additional opportunity for comment. If EPA receives relevant adverse
comment concerning the adequacy of only certain state programs, the
Agency's withdrawal of the direct final rule will only apply to those
state programs. Comments on the inclusion or exclusion of one state
permit program will not affect the timing of the decision on the other
state permit programs.
DATES: This direct final rule is effective on April 11, 2000 unless the
Agency receives timely relevant adverse comments by February 11, 2000.
Should the Agency receive such relevant adverse comments, EPA will
publish a timely withdrawal of this direct final rule in the Federal
Register informing the public that the rule will not take effect.
ADDRESSES: Send or hand deliver an original and one copy of your
comments referencing docket number R7/ARTD/SWPP-00-01 to: Region VII
Information Resource Center, U.S. Environmental Protection Agency, 901
N. 5th Street, Kansas City, Kansas 66101. Comments may also be
submitted electronically through the Internet to: r7-library@epa.gov.
Comments in electronic format should also be identified by the docket
number listed above. All electronic comments must be submitted as an
ASCII file avoiding the use of special characters and any form of
encryption.
You can view and copy documents pertaining to this regulatory
docket in the Region VII Information Resource Center (Library), located
on the Plaza Level at the address noted above. The Library is open from
9 a.m. to 3 p.m., Monday through Friday, excluding federal holidays.
FOR FURTHER INFORMATION CONTACT: For general information, call (913)
551-7241 or TTY (913) 321-9516. For information on accessing paper and
electronic copies of documents or supporting materials relating to the
direct final rule, or for information on specific aspects of this rule,
contact Wes Bartley, U.S. EPA Region VII, ARTD/SWPP, 901 N. 5th Street,
Kansas City, Kansas 66101,
[[Page 1815]]
phone (913) 551-7632, or by e-mail at bartley.wes@epa.gov.
SUPPLEMENTARY INFORMATION: The official record for this action will be
kept in paper form. Therefore, EPA will transfer all comments received
electronically into paper form and place them in the official record,
which will also include all comments submitted directly in writing. The
official record is the paper record kept at the address in ADDRESSES at
the beginning of this document.
Responses to comments, whether the comments are written or
electronic, will be in a document in the Federal Register as outlined
in DATES above or in a response to comments document placed in the
official record for this rulemaking. EPA will not immediately reply to
commenters electronically other than to seek clarification of
electronic comments that may be garbled in transmission or during
conversion to paper form, as discussed above.
A. Background
Section 4010(c) of the Resource Conservation and Recovery Act
(RCRA) requires EPA to revise the criteria for facilities that accept
household hazardous waste and CESQG hazardous waste, or both. On
October 9, 1991, EPA issued Criteria for Municipal Solid Waste
Landfills (40 CFR part 258). These criteria include location
restrictions and standards for design, operation, ground-water
monitoring, corrective action, financial assurance, and closure/post-
closure care for MSWLF. MSWLF typically receive both household
hazardous waste and CESQG hazardous waste. On July 1, 1996, EPA issued
the revised Criteria for Classification of Solid Waste Disposal
Facilities and Practices to address solid waste disposal facilities
other than MSWLF that receive CESQG waste (40 CFR part 257, subpart B).
These criteria include location restrictions, ground-water monitoring,
and corrective action standards. The 40 CFR part 257, subpart B,
criteria and the 40 CFR part 258 criteria, referred to collectively as
the ``Subtitle D federal revised criteria,'' establish minimum federal
standards to ensure that all Subtitle D facilities that may receive
CESQG wastes are designed and managed in a manner that is protective of
human health and the environment.
RCRA section 4005, as amended by the Hazardous and Solid Waste
Amendments of 1984, requires states to develop permitting programs or
other systems of prior approvals and conditions to ensure that solid
waste disposal units that receive household hazardous waste and CESQG
hazardous waste, or both, comply with the federal revised criteria.
Section 4005 also requires EPA to determine the adequacy of these state
permit programs. To fulfill this need, the Agency issued the State
Implementation Rule (SIR) on October 23, 1998 (63 FR 57026) to give a
process for approving state municipal solid waste permit programs. The
SIR specifies the criteria that state MSWLF permit programs must
satisfy to be determined adequate. The SIR also addresses the processes
that should be used for approving state programs for non-MSWLF that
receive CESQG hazardous waste.
Throughout this direct final rule, the term ``approved state''
refers only to a state that has received approval for its MSWLF permit
program under Subtitle D (40 CFR part 258) and the term ``authorized
state'' refers only to a state that has an authorized hazardous waste
permit program under Subtitle C (40 CFR part 264). Today's final
adequacy determination is intended to give a streamlined approval
process to address specific state programs that require the disposal of
CESQG hazardous waste in suitable facilities and whose Subtitle D MSWLF
permit programs or Subtitle C hazardous waste management programs have
been reviewed and approved or authorized by the Agency. Today's direct
final rule applies to the state programs for Kansas, Missouri, and
Nebraska.
Programs developed by these states for permitting either hazardous
waste facilities or MSWLFs have been reviewed and approved or
authorized by the Agency. The regulatory programs are more
comprehensive and/or more stringent than the part 257, subpart B,
criteria.
The Agency has determined that the above states have submitted the
documentation that would have been needed for the determination of
permit program adequacy under 40 CFR part 257, subpart B. Further, the
Agency has determined that the technical review conducted for either
``approval'' of MSWLF permitting programs or ``authorization'' of
hazardous waste permitting programs can substitute for the technical
review of the standards for 40 CFR part 257, subpart B, and their
implementation by the states.
The states that are today receiving a final determination of
adequacy had previously submitted documentation of state statutory
authorities and requirements that regulate solid waste disposal units
that may receive CESQG waste. In each case, state statutes,
regulations, and/or internal policies and practices were reviewed and
found to serve as the basis for ensuring that the state permit program
or other system of prior approvals and conditions had adequate
authority to ensure compliance with the hazardous waste or MSWLF
regulations, as appropriate.
The technical requirements for part 257, subpart B, are location
restrictions and requirements for ground-water monitoring, corrective
action, and recordkeeping. These requirements have been met by the
state programs listed in today's final determination.
The three states considered in today's determination are
``authorized'' states that have authorized hazardous waste permit
programs under Subtitle C (40 CFR part 264). These states have laws,
regulations, or guidance in place providing that CESQG hazardous waste
may be lawfully managed in a RCRA Subtitle C facility (see 61 FR
34264).
Also, these states are ``approved'' states for MSWLF permit
programs under Subtitle D (40 CFR part 258). However, only Kansas and
Nebraska have laws, regulations, or guidance in place providing that
CESQG hazardous waste may be lawfully managed in a MSWLF meeting or
exceeding the requirements of 40 CFR part 258 (see 61 FR 34264).
Management of CESQG hazardous waste is allowed in the three states
only at facilities as described above. For all states, the state
regulations have been reviewed by EPA, found to be equal to or more
stringent than 40 CFR part 257, subpart B, and approved. Most state
program regulations contain additional requirements and are more
stringent than the federal requirements.
The states covered by today's approval have permit programs or
other systems of prior approval for all waste disposal units in their
jurisdictions that may receive CESQG hazardous waste. These states
provide for public participation in permit issuance and enforcement as
specified in the SIR rule. Finally, EPA believes that these states have
sufficient compliance monitoring and enforcement authorities to take
action against any owner or operator that fails to comply with
regulations applicable to waste disposal units that may receive CESQG
hazardous waste.
B. Decision
After reviewing the states' previous submissions for approval under
Subtitle D (40 CFR part 258) and authorization under Subtitle C (40 CFR
part 264), the Agency concludes that the above states meet all of the
statutory and regulatory requirements established by RCRA. Accordingly,
the above states are granted a final determination of adequacy for all
portions of their permit program for solid waste disposal units
[[Page 1816]]
that may receive CESQG hazardous waste.
RCRA section 4005(a) provides that citizens may use the citizen
suit provisions of RCRA section 7002 to enforce the Federal Criteria
for Classification of Solid Waste Disposal Facilities and Practices in
40 CFR part 257, subpart B, independent of any state enforcement
program. As explained in the preamble to 40 CFR part 257, subpart B,
EPA expects that any owner or operator complying with the provisions of
a state program approved by EPA requiring that CESQG hazardous waste be
disposed of in either a Subtitle C facility or a Subtitle D MSWLF would
be in compliance with the federal criteria. See 61 FR 34264 (July 1,
1996).
Today's action will become effective on April 11, 2000 if no
adverse comments are received.
Related Acts of Congress and Executive Orders
A. Executive Order 12866
Under Executive Order 12866, (58 FR 51735 (October 4, 1993)) the
Agency must determine whether a regulatory action is ``significant''
and therefore subject to Office of Management and Budget (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 rule is not a ``significant
regulatory action'' under the terms of Executive Order 12866 and is
therefore not subject to OMB review.
B. Regulatory Flexibility Act
Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq.,
as amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996), whenever an agency is required to publish a notice
of rulemaking for any proposed or final rule, it must prepare and make
available for public comment a regulatory flexibility analysis that
describes the effect of the rule on small entities (i.e., small
businesses, small organizations, and small governmental jurisdictions).
However, no regulatory flexibility analysis is required if the head of
an agency certifies that the rule will not have a significant economic
impact on a substantial number of small entities.
The SBREFA amended the Regulatory Flexibility Act to require
federal agencies to provide a statement of the factual basis for
certifying that a rule will not have a significant economic impact on a
substantial number of small entities. The following discussion explains
EPA's determination.
This rule does not impose any new burdens on small entities. It
merely confirms existing needs for the disposal of CESQG waste under
state law. This proposal does not impose any new cost burdens. I hereby
certify that this rule will not have a significant economic impact on a
substantial number of small entities. This rule, therefore, does not
need a regulatory flexibility analysis.
C. The Paperwork Reduction Act
Today's proposal is in compliance with the Paperwork Reduction Act,
44 U.S.C. 3501 et seq. We found that no information is being collected
from the states for this direct final rule, so we do not need to
prepare an Information Collection Request.
D. The Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 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 by state, local, and tribal governments, in
the aggregate, or by the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of 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 that
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 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 by EPA of regulatory proposals with
significant federal intergovernmental mandates, and informing,
educating, and advising small governments on compliance with the
regulatory requirements.
The Agency's analysis of compliance with UMRA found that today's
rule imposes no enforceable duty on any state, local, or tribal
governments or the private sector; thus today's rule is not subject to
the requirements of sections 202 and 205 of UMRA.
E. Executive Order 13045
``Protection of Children from Environmental Health Risks and Safety
Risks'' (62 FR 19885 (April 23, 1997)) 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
an economically significant rule as defined by Executive Order 12866,
and because it does not involve decisions based on environmental health
or safety risks.
F. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272
note) 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 standards bodies. The NTTAA directs EPA
to
[[Page 1817]]
provide explanations to Congress, through OMB, when the Agency decides
not to use available and applicable voluntary consensus standards. This
proposed rulemaking does not involve technical standards. Therefore,
EPA is not considering the use of any voluntary consensus standards.
G. Executive Order 13132
Executive Order 13132 (Federalism, 64 FR 43255, August 10, 1999)
revokes and replaces Executive Order 12612 (Federalism) and Executive
Order 12875 (Enhancing the Intergovernmental Partnership). Executive
Order 13132 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 the various levels of government.'' Under
Executive Order 13132, EPA may not issue a regulation that has
federalism implications, that imposes substantial direct compliance
costs, and that is not required by statute, unless the federal
government provides the funds necessary to pay the direct compliance
costs incurred by state and local governments, or EPA consults with
state and local officials early in the process of developing the
proposed regulation. EPA also may not issue a regulation that has
federalism implications and that preempts state law unless the Agency
consults with state and local officials early in the process of
developing the proposed regulation.
This direct final rule 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.
Thus, the requirements of section 6 of the Executive Order do not apply
to this rule.
H. Executive Order 13084
Under Executive Order 13084, EPA may not issue a regulation that is
not required by statute, that significantly or uniquely affects the
communities of Indian tribal governments, and that imposes substantial
direct compliance costs on those communities, unless the federal
government provides the funds necessary to pay the direct compliance
costs incurred by the tribal governments, or EPA consults with those
governments. If EPA complies by consulting, Executive Order 13084
requires EPA to provide OMB, in a separately identified section of the
preamble to the rule, a description of the extent of EPA's prior
consultation with representatives of affected tribal governments, a
summary of the nature of their concerns, and a statement supporting the
need to issue the regulation. In addition, Executive Order 13084
requires EPA to develop an effective process permitting elected
officials and other representatives of Indian tribal governments ``to
provide meaningful and timely input in the development of regulatory
policies on matters that significantly or uniquely affect their
communities.''
Today's rule does not significantly or uniquely affect the
communities of Indian tribal governments. There is no impact to tribal
governments as a result of the state plan approvals. Accordingly, the
requirements of section 3(b) of Executive Order 13084 do not apply to
this rule.
I. Executive Order 12898
EPA is committed to addressing environmental justice concerns and
is assuming a leadership role in environmental justice initiatives to
enhance environmental quality for all residents of the United States.
The Agency's goals are to ensure that no segment of the population,
regardless of race, color, national origin, or income, bears
disproportionately high and adverse human health and environmental
effects as a result of EPA's policies, programs, and activities, and
all people live in clean and sustainable communities.
The Agency does not believe that today's rule granting state permit
program approval will have a disproportionately high and adverse
environmental or economic impact on any minority or low-income group,
or on any other type of affected community.
J. The Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
1996 SBREFA, 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 April 11, 2000.
Authority: This document is issued under the authority of
sections 2002 and 4005 of the Solid Waste Disposal Act as amended,
42 U.S.C. 6912 and 6945.
Dated: December 29, 1999.
Dennis Grams,
Regional Administrator, Region VII.
[FR Doc. 00-614 Filed 1-11-00; 8:45 am]
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