02-26439. Ohio: Proposed Authorization of State Hazardous Waste Management Program Revision

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Proposed rule.

SUMMARY:

Ohio has applied to EPA for final authorization of certain changes to its hazardous waste program under the Resource Conservation and Recovery Act (RCRA). EPA has reviewed Ohio's application and has determined that these changes satisfy all requirements needed to qualify for final authorization, and is proposing to authorize the State's changes.

DATES:

If you have comments on Ohio's application for authorization for changes to its hazardous waste management program, you must submit them in writing by December 5, 2002.

ADDRESSES:

Send written comments to Ms. Judy Feigler, Ohio Regulatory Specialist, U.S. Environmental Protection Agency, Waste, Pesticides and Toxics Division (DM-7J), 77 W. Jackson Blvd., Chicago, Illinois 60604. You can view and copy Ohio's application during normal business hours at the following addresses: EPA Region 5, 77 W. Jackson Blvd., Chicago, Illinois, contact: Ms. Judy Feigler, phone number: [phone]; or Ohio Environmental Protection Agency, 122 S. Front St., Columbus, Ohio, contact: Ms. Kit Arthur, phone number [phone].

FOR FURTHER INFORMATION CONTACT:

Ms. Judy Feigler, Ohio Regulatory Specialist, U.S. Environmental Protection Agency, Waste, Pesticides and Toxics Division (DM-7J), 77 W. Jackson Blvd., Chicago, Illinois 60604, phone number: [phone].

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 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.

B. What Decisions Have We Made in This Rule?

EPA has determined that Ohio's application to revise its authorized program meets all of the statutory and regulatory requirements established by RCRA. Therefore, we are proposing to grant Ohio final authorization to operate its hazardous waste program with the changes described in the authorization application. Ohio will have responsibility for permitting Treatment, Storage, and Disposal Facilities (TSDFs) 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 EPA promulgates under the authority of HSWA take effect in authorized states before the states are authorized for the requirements. Thus, EPA will implement those requirements and prohibitions in Ohio, including issuing permits, until the State is granted authorization to do so.

C. What Will Be the Effect if Ohio Is Authorized for These Changes?

If Ohio is authorized for these changes, a facility in Ohio subject to RCRA will have to comply with the authorized State requirements in lieu of the corresponding federal requirements in order to comply with RCRA. Additionally, such persons will have to comply with any applicable federally-issued requirements, such as, for example, HSWA regulations issued by EPA for which the State has not received authorization, and RCRA requirements that are not supplanted by authorized State-issued requirements. Ohio continues to have enforcement responsibilities under its state hazardous waste management program for violations of such program, but EPA retains its 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 and suspend or revoke permits; and
• Take enforcement actions regardless of whether the State has taken its own actions.

The action to approve these revisions would not impose additional requirements on the regulated community because the regulations for which Ohio will be authorized are already effective under State law and are not changed by the act of authorization.

D. What Happens if EPA Receives Comments That Oppose This Action?

If EPA receives comments that oppose this authorization, we will address those 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.

E. What Has Ohio Previously Been Authorized For?

Ohio initially received final authorization effective June 30, 1989 (54 FR 27170-27174, June 28, 1989) to implement the RCRA hazardous waste management program. We granted authorization for changes to Ohio's program effective June 7, 1991 (56 FR 14203, April 8, 1991), as corrected effective August 19, 1991 (56 FR 28808, June 19, 1991)); effective September 25, 1995 (60 FR 51244, July 27, 1995); and effective December 23, 1996 (61 FR 54950, October 23, 1996).

F. What Changes Are We Proposing?

On June 25, 2002, Ohio submitted complete program revision applications, seeking authorization of its changes in accordance with 40 CFR 271.21. We have determined that Ohio's hazardous waste program revisions satisfy all of the requirements necessary to qualify for final authorization.

Ohio's program revisions are based on changes to the federal program and modifications initiated by the State. The federal and analogous State provisions involved in this proposed decision and the relevant corresponding checklists (if applicable) are listed in the following tables:

Program Revisions Based on Federal RCRA Changes

Checklist No.	Description of federal requirement	Federal Register, beginning page, and publication date	Analogous state authority being authorized
58	Renewal of uniform manifest form	54 FR 45089, November 8, 1988	3745-52-20, effective December 30, 1989.
59	Miscellaneous units standards for owners/operators; correction	54 FR 615, January 9, 1989	3745-50-44, effective December 7, 2000.
76	Criteria for listing toxic wastes; technical amendments	55 FR 18726, May 4, 1990	3745-51-11, effective December 7, 2000.
77	Double liners; correction	55 FR 19262, May 9, 1990	3745-56-21 and 3745-57-03, effective April 15, 1993.
81	Petroleum refiners primary and secondary oil/water/solids separation sludge listings, as amended	55 FR 46354, November 2, 1990; as amended at 55 FR 51707, December 17, 1990	3745-51-30 and 3745-51-31, effective December 7, 2000.
84	TCLP-chlorofluorocarbons	56 FR 5910, February 13, 1991	3745-51-04, effective July 27, 2001.
86	Removal of strontium sulfide from listings	56 FR 7657, February 25, 1991	3745-51-11 and 3745-51-33, effective December 7, 2000.
88	Administrative stay for K069 listing	56 FR 19951, May 1, 1991	3745-51-32, effective December 7, 2000.
89	Petroleum refiners primary and secondary oil/water/solids separation sludge listings; correction	56 FR 21955, May 13, 1991	3745-51-31, effective December 7, 2000.
90	Mining waste exclusion-final determination for several wastes	56 FR 27300, June 13, 1991	3745-51-04, effective July 27, 2001; and 3745-51-11, effective December 7, 2000.
97	Exports of hazardous waste; technical corrections	56 FR 43704, September 4, 1991	3745-52-53 and 3745-52-56, effective April 15, 1993.
99	Amendment to interim status standards for down-gradient ground water monitoring well locations at hazardous waste facilities	56 FR 66365, December 23,1991	3745-50-10, effective December 7, 2000.
104	Oil filter exemption	57 FR 21524, May 20, 1992	3745-51-04, effective July 27, 2001.
107	Oil filter exemption-technical correction	57 FR 29220, July 1, 1992	3745-51-04, effective July 27, 2001.
110	Reportable quantity adjustment, listing of coke by-products wastes	57 FR 37284, August 18, 1992	3745-51-04, effective July 27, 2001; and 3745-51-30 and 3745-51-32, effective September 2, 1997.
113	Liability requirements and financial responsibility	53 FR 33938, September 1, 1988, as amended at 56 FR 30200, July 1, 1991; and 57 FR 42832, September 16, 1992	3745-55-41 and 3745-55-47, effective September 2, 1997; and 3745-55-43, 3745-55-45, 3745-55-51, 3745-66-41, 3745-66-43, 3745-66-45, and 3745-66-47, effective December 7, 2000.
115	Reportable quantity adjustment, chlorinated toluene production wastes	57 FR 47376, October 15, 1992	3745-51-32 and 3745-51-30, effective December 7, 2000.
117B	TCLP revision	57 FR 23062, June 1, 1992	3745-51-03, effective December 7, 2000.
118	Liquids in landfills II	57 FR 54452, November 18, 1992	3745-68-14, effective September 2, 1997; and 3745-50-10, 3745-54-13, 3745-57-14, 3745-57-16, 3745-65-13, and 3745-68-16, effective December 7, 2000.
119	TCLP revision, as amended	57 FR 55114, November 24, 1992; as amended at 58 FR 6854, February 2, 1993	3745-51-24, effective September 2, 1997.
128	Wastes from wood surface protection	59 FR 458, January 4, 1994	3745-50-11 and 3745-51-11, effective December 7, 2000.
129	Treatability study sample exclusion	59 FR 8362, February 18, 1994	3745-51-04, effective July 27, 2001.
131	Recordkeeping instructions, technical amendment	59 FR 13891, March 24, 1994	3745-54-73 and 3745-65-73, effective December 7, 2000.
132	Wastes from wood surface protection, correction	59 FR 28484, June 2, 1994	3745-50-11, effective December 7, 2000.
133	Corrective action; treatment, storage, disposal facility, UST, and UIC systems; financial assurance; letter of credit	59 FR 29958, June 10, 1994	3745-55-51, effective December 7, 2000.
135	Recovered oil exclusion, petroleum refining industry	59 FR 38536, July 28, 1994	3745-51-03 and 3745-51-06, effective December 7, 2000; and 3745-51-04, effective July 27, 2001.
139	Testing and monitoring activities	60 FR 3089, January 13, 1995	3745-50-11, effective December 7, 2000.
140	Carbamate production and reportable quantities, as amended	60 FR 7824, February 9, 1995; as amended at 60 FR 19165, April 17, 1995; and 60 FR 25619, May 12, 1995	3745-51-03, 3745-51-11, 3745-51-30, 3745-51-32, and 3745-51-33, effective December 7, 2000.
141	Testing and monitoring activities; SW-846 amendments	60 FR 17001, April 4, 1995	3745-50-11, effective December 7, 2000.
145	Liquids in landfills, test method added	60 FR 35703, July 11, 1995	3745-68-14, effective September 2, 1997; and 3745-57-14, effective December 7, 2000.
150	Identification and listing, petroleum refining industry, correction	61 FR 13103, March 26, 1996	3745-51-04, effective July 27, 2001.
168	Comparable fuel exclusion	63 FR 33782, June 19, 1998	3745-50-51, 3745-51-04, and 3745-51-38, effective July 27, 2001.

State-Initiated Program Changes

State requirement		Analogous federal requirement—Federal rule
State rule	Effective date
3745-50-21	March 9, 2001	40 CFR 124.6
3745-50-22	March 9, 2001	40 CFR 124.8
3745-50-30	March 9, 2001	40 CFR 270.12
3745-50-41	November 11, 1999	40 CFR 270.10
3745-50-42	March 9, 2001	40 CFR 270.11
3745-50-45	December 7, 2000	40 CFR 270.1(c)
3745-50-47	March 9, 2001	40 CFR 264.115, 40 CFR 265.115
3745-50-54	March 9, 2001	40 CFR 270.50
3745-50-57	December 7, 2000	40 CFR 270.61
3745-50-58	November 11, 1999	40 CFR 270.30
3745-51-01	February 11, 1992	40 CFR 261.1
3745-51-02	October 20, 1998	40 CFR 261.2
3745-51-08	December 7, 2000	40 CFR 261.8
3745-52-10	February 11, 1992	40 CFR 262.10
3745-52-12	February 11, 1992	40 CFR 262.12
3745-52-40	March 9, 2001	40 CFR 262.40
3745-53-11	September 2, 1997	40 CFR 263.11
3745-53-30	March 9, 2001	40 CFR 263.30
3745-55-15	November 11, 1999	40 CFR 264.115
3745-55-18	November 11, 1999	40 CFR 264.118
3745-55-44	November 11, 1999	40 CFR 264.144
3745-55-77	February 14, 1995	40 CFR 264.177
3745-56-20	November 11, 1999	40 CFR 264.220
3745-56-57	February 14, 1995	40 CFR 264.257
3745-56-70	November 11, 1999	40 CFR 264.270
3745-57-91	February 14, 1995	40 CFR 264.601
3745-65-11	December 7, 2000	40 CFR 265.11
3745-65-15	December 7, 2000	40 CFR 265.15
3745-65-90	March 9, 2001	40 CFR 265.90
3745-65-92	November 11, 1999	40 CFR 265.92
3745-66-15	November 11, 1999	40 CFR 265.115
3745-66-44	November 11, 1999	40 CFR 265.144
3745-67-73	February 14, 1995	40 CFR 265.273
3745-68-10	November 11, 1999	40 CFR 265.310
3745-69-30	February 14, 1995	40 CFR 265.430

G. Who Handles Permits After the Authorization Takes Effect?

Ohio will issue permits for all the provisions for which it is authorized and will administer the permits it issues. All permits issued by EPA prior to EPA authorizing Ohio for these revisions will continue in force until the effective date of the State's issuance or denial of a State RCRA permit, or the permit otherwise expires or is revoked. EPA will administer any RCRA hazardous waste permits or portions of permits which EPA issued prior to the effective date of this authorization until such time as Ohio has issued a corresponding State permit. EPA will not issue any more new permits or new portions of permits for provisions for which Ohio is authorized after the effective date of this authorization. EPA will continue to implement and issue permits for HSWA requirements for which Ohio is not yet authorized.

H. What Is Codification and Is EPA Codifying Ohio'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 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 P for this authorization of Ohio's program changes until a later date.

I. How Would Authorizing Ohio for These Revisions Affect Indian Country (18 U.S.C. 1151) in Ohio?

Ohio is not authorized to carry out its hazardous waste program in Indian country, as defined in 18 U.S.C. 1151. Indian country includes:

1. All lands within the exterior boundaries of Indian reservations within or abutting the State of Ohio;

2. Any land held in trust by the U.S. for an Indian tribe; and

3. Any other land, whether on or off an Indian reservation that qualifies as Indian country.

Therefore, this action has no effect on Indian country. EPA retains the authority to implement and administer the RCRA program in Indian country. However, at this time, there is no Indian country within the State of Ohio.

J. Administrative Requirements

The Office of Management and Budget 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 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). This action does not have tribal implications within the meaning of 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 action 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. This action does not include environmental justice-related issues that require consideration under Executive Order 12898 (59 FR 7929, February 16, 1994).

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) do not apply. As required by section 3 of Executive Order 12988 (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 (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 action does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

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 proposed 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: September 26, 2002.

David A. Ullrich,

Acting Regional Administrator, Region 5.