[Federal Register Volume 60, Number 192 (Wednesday, October 4, 1995)]
[Rules and Regulations]
[Pages 51925-51927]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-24657]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 271
[FRL-5311-7]
Wyoming; Final Authorization of State Hazardous Waste Management
Program
AGENCY: Environmental Protection Agency.
ACTION: Notice of final determination on Wyoming's application for
final authorization.
-----------------------------------------------------------------------
SUMMARY: Wyoming has applied for final authorization under the Resource
Conservation and Recovery Act (RCRA). The United States Environmental
Protection Agency (EPA) has reviewed Wyoming's application and has
reached a final determination that Wyoming's hazardous waste program
satisfies all of the requirements necessary to qualify for final
authorization. Thus, EPA is granting final authorization to Wyoming to
operate its program, subject to the authority retained by EPA in
accordance with the Hazardous and Solid Waste Amendments of 1984.
EFFECTIVE DATE: Final authorization for Wyoming shall be effective at
1:00 p.m. on October 18, 1995.
FOR FURTHER INFORMATION CONTACT: Marcella DeVargas, (8HWM-WM) 999 18th
Street, Suite 500, Denver, Colorado 80202-2466, phone 303/293-1670.
SUPPLEMENTARY INFORMATION:
A. Background
Section 3006 of the Resource Conservation and Recovery Act (RCRA)
allows the Environmental Protection Agency (EPA) to authorize State
hazardous waste programs to operate in the State in lieu of the Federal
hazardous waste program. To qualify for final authorization, a State's
program must (1) be ``equivalent'' to the Federal program, (2) be
consistent with the Federal program and other State programs, and (3)
provide for adequate enforcement. Section 3006(b) of RCRA, 42 U.S.C.
6926(b).
On July 17, 1995, Wyoming submitted an official application to
obtain final authorization to administer the RCRA program. On July 27,
1995, EPA published a tentative decision announcing its intent to grant
Wyoming final authorization. Further background on the tentative
decision to grant authorization appears at 60 FR 38537, July 27, 1995.
Along with the tentative determination EPA announced the
availability of the application for public comment and the date of a
public hearing on the application. The public hearing was held on
August 29, 1995.
EPA did not receive any written comments. At the public hearing,
several oral comments were made expressing support for EPA's tentative
determination. One commenter asked if the State had chosen to be more
or less stringent than the Federal rules in regard to the RCRA publicly
owned treatment works exclusion. The response was the State law
requires the State to regulate the same universe of hazardous wastes as
is regulated under RCRA, therefore, the State has adopted the federal
exclusion for hazardous waste discharged to publicly owned treatment
works. The commenter also suggested the Clean Water Act Pretreatment
rules also be delegated to the State of Wyoming. Delegation of the
pretreatment program is not the subject of this action today.
Because EPA Region VIII and the State worked closely to develop the
authorization package, most EPA concerns were addressed before
submittal of the application by the State. The State also conducted
four (4) public meetings throughout the State, and solicited comments
on the draft program description and the draft Memorandum of Agreement
from facilities, industry organizations, and environmental groups.
Wyoming's program is ``broader in scope'' than the Federal program
in two significant ways. First, Wyoming rules require an applicant for
a permit to demonstrate fitness by requiring that the past performance
of the applicant or any partners, executive officers, or corporate
directors, be reviewed. Second, county commissions must approve certain
hazardous waste management facilities, and certain hazardous waste
management facilities must also obtain an industrial siting permit.
These portions of Wyoming's program, because they are broader in scope,
are not a part of the Federally approved program.
EPA will administer the RCRA permits or portion of permits or
administrative orders it has issued to facilities in the State until
they expire or are terminated. The State may issue comparable State
permits in accordance with the procedures found in Chapter 3 of the
Wyoming rules. For facilities without RCRA permits, or for facilities
where the State makes technical changes prior to federal permits, the
State will call in Part B permit applications.
The regulations under Section 7 of the Endangered Species Act (at
50 CFR Part 402) require that EPA consult with the United States Fish
and Wildlife Service (the ``Service'') regarding this decision. EPA has
done so and the Service has concurred with EPA's determination that
this authorization is not likely to adversely affect listed species or
critical habitat.
The Agency's general policy in authorizing state programs under
various federal authorities has been to develop informal coordination
procedures with the Service to ensure protection of listed species and
critical habitat, and only to consult under section 7 of the ESA after
authorization in those instances where EPA is itself the permitting
agency subject to section 7 requirements. In addition, the Agency
believes that issues related to protection of endangered species and
habitat are most effectively addressed in the context of broader
programmatic strategies worked out with the states, and EPA will
continue to move in this direction with interested parties.
In the case of this RCRA base program authorization for Wyoming,
EPA Region VIII and the State have agreed to work closely with the
Service to address impacts to listed species or critical habitat that
may result from the issuance of RCRA permits by the State. EPA Region
VIII's decision to follow the processes described in the EPA/Wyoming
MOA and correspondence with the Service does not subject EPA after
authorization to the consultation requirements of the ESA, nor does it
create any rights by any person to enforce the provisions of the ESA
against EPA.
Today's decision to authorize the Wyoming hazardous waste
regulatory program does not extend to ``Indian Country,'' as defined in
18 U.S.C. 1151, including the Wind River Reservation.
Should Wyoming decide in the future to apply for authorization of
its hazardous waste program on Indian Country the State would have to
provide an appropriate analysis of the State's jurisdiction to enforce
in these areas. In order for a state (or Tribe) to satisfy this
requirement, it must demonstrate to the EPA's satisfaction that it has
authority either pursuant to explicit Congressional authorization or
applicable principles of Federal Indian law to enforce its laws against
existing
[[Page 51926]]
and potential pollution sources within any geographical area for which
it seeks program approval.
EPA is not making a determination that the State either has
adequate jurisdiction or lacks such jurisdiction. Should the State of
Wyoming choose to submit an analysis with regard to jurisdiction of the
State over all or part of Indian Country in the State, it may do so
without prejudice.
Any future EPA evaluation of whether to approve the Wyoming program
for Indian Country to include Indian reservation lands, would be
governed by EPA's judgment as to whether the State has demonstrated
adequate authority to justify such approval, based upon its
understanding of the relevant principles of Federal Indian law and
sound administrative practice. The State may wish to consider EPA's
discussion of the related issue of Tribal jurisdiction found in the
preamble to the Indian Water Quality Standards Regulation (see 56 FR
64876, December 12, 1991).
B. Decision
After reviewing the public comments, I conclude that Wyoming's
application for final authorization meets all of the statutory and
regulatory requirements established by RCRA. Accordingly, Wyoming is
granted final authorization for the Federal RCRA program in effect as
of July 8, 1984; Pre-cluster rules, non-HSWA revision clusters I, II,
III, IV, V, and VI; and for HSWA clusters I and II; RCRA cluster I, II,
III, (except for 279.10 (b)(2)), and IV, and the following RCRA cluster
V rules: Recovered Oil Exclusion, 59 FR 38536, July 28, 1994, (Code
Rule 135), Removal of the Conditional Exemption for Certain Slag
Residuals, 59 FR 43496, August 24, 1994, (Code Rule 136), Universal
Treatment Standards and Treatment Standards for Organic Toxicity
Characteristic Wastes and Newly Listed Wastes, 59 FR 47482, September
19, 1994, and the Land Disposal Restriction Phase II rules, 60 FR 242,
January 3, 1995. Accordingly, Wyoming is granted final authorization to
operate its hazardous waste program, subject to the limitations on its
authority imposed by the Hazardous and Solid Waste Amendments of 1984
(Public Law 98-616, November 8, 1984) (HSWA). Wyoming now has the
responsibility for permitting treatment, storage and disposal
facilities within its borders and carrying out the other aspects of the
RCRA program, subject to the HSWA. Wyoming also has primary enforcement
responsibility, although EPA retains the right to conduct inspections
under Section 3007 of RCRA and to take enforcement actions under
Sections 3008, 3013 and 7003 of RCRA.
As stated above, Wyoming's authority to operate a hazardous waste
program under Subtitle C of RCRA is limited by the HSWA. Prior to that
date, a State with final authorization administered its hazardous waste
program entirely in lieu of the EPA. The Federal requirements no longer
applied in the authorized State, and EPA could not issue permits for
any facilities the State was authorized to permit. When new, more
stringent Federal requirements were promulgated or enacted, the State
was obligated to enact equivalent authority within specified time
frames. New Federal requirements did not take effect in an authorized
State until the State adopted the requirements as State law.
In contrast, under Section 3006(g) of RCRA, 42 U.S.C. 6926(g), new
requirements and prohibitions imposed by the HSWA take effect in
authorized States at the same time as they take effect in non-
authorized States. EPA is directed to carry out those requirements and
prohibitions in authorized States, including the issuance of full or
partial permits, until the State is granted authorization to do so.
While States must still adopt HSWA-related provisions as State law to
retain final authorization, the HSWA applies in authorized States in
the interim.
As a result of the HSWA, there is a dual State/Federal regulatory
program in Wyoming. To the extent the authorized State program is
unaffected by the HSWA, the State program will operate in lieu of the
Federal program. Where HSWA-related requirements apply, however, EPA
will administer and enforce these portions of the HSWA in Wyoming until
the State receives authorization to do so. Among other things, this may
entail the issuance of Federal RCRA permits for those areas in which
the State is not yet authorized. Once the State is authorized to
implement a HSWA requirement or prohibition, the State program in that
area will operate in lieu of the Federal program. Until that time the
State will assist EPA's implementation of the HSWA under a Cooperative
Agreement.
Any State requirement that is more stringent than a HSWA provision
remains in effect; thus, the universe of the more stringent provisions
in the HSWA and the approved State program define the applicable
Subtitle C requirements in Wyoming.
EPA has published a Federal Register notice that explains in detail
the HSWA and its effect on authorized States. That notice was published
at 50 FR 28702-28755, July 15, 1985.
Compliance with Executive Order 12826: The Office of Management and
Budget has exempted this rule from the requirements of Section 3 of
Executive Order 12826.
Unfunded Mandates Reform Act: Title II of the Unfunded Mandates
Reform Act of 1995 (UMRA), P.L. 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 to
State, local, and tribal governments, in the aggregate, or to the
private sector, of $100 million or more in any one year. When a written
statement is needed for an EPA rule, section 205 of the 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 the UMRA a small government
agency plan. The plan must provide for notifying potentially affected
small governments, giving them meaningful and timely input in the
development of EPA regulatory proposals with significant Federal
intergovernmental mandates, and informing, educating, and advising them
on compliance with the regulatory requirements.
EPA has determined that this rule does not contain a Federal
mandate that may result in expenditures of $100 million or more for
State, local, and tribal governments, in the aggregate, or the private
sector in any one year. EPA does not anticipate that the approval of
Wyoming's hazardous waste program referenced in today's notice will
result in annual costs of $100 million or more.
EPA's approval of state programs generally have a deregulatory
effect on the private sector because once it is determined that a state
hazardous waste program meets the requirements of RCRA section 3006(b)
and the
[[Page 51927]]
regulations promulgated thereunder at 40 CFR Part 271, owners and
operators of hazardous waste treatment, storage, or disposal facilities
(TSDFs) may take advantage of the flexibility that an approved state
may exercise. Such flexibility will reduce, not increase, compliance
costs for the private sector. Thus, today's rule is not subject to the
requirements of sections 202 and 205 of the UMRA.
EPA has determined that this rule contains no regulatory
requirements that might significantly or uniquely affect small
governments. The Agency recognizes that small governments may own and/
or operate TSDFs that will become subject to the requirements of an
approved state hazardous waste program. However, such small governments
which own and/or operate TSDFs are already subject to the requirements
in 40 CFR Parts 264, 265 and 270. Once EPA authorizes a state to
administer its own hazardous waste program and any revisions to that
program, these same small governments will be able to own and operate
their TSDFs with increased levels of flexibility provided under the
approved State program.
Certification under the Regulatory Flexibility Act: Pursuant to the
provisions of 5 U.S.C. 605(b), I hereby certify that this authorization
will not have a significant economic impact on a substantial number of
small entities. This authorization effectively suspends the
applicability of certain Federal regulations in favor of Wyoming's
program, thereby eliminating duplicative requirements for handlers of
hazardous waste in the State. It does not impose any new burdens on
small entities. This rule, therefore, does not require a regulatory
flexibility analysis.
List of Subjects in 40 CFR Part 271
Administrative practice and procedure, Confidential business
information, Hazardous materials transportation, Hazardous waste,
Indian lands, Intergovernmental relations, Penalties, Reporting and
recordkeeping requirements, Water pollution control, Water supply.
Authority: This notice is issued under the authority of Sections
2002(a), 3006, and 7004(b) of RCRA, 42 U.S.C. 6912(a), 6926,
6974(b).
Dated: September 26, 1995.
William P. Yellowtail,
Regional Administrator.
[FR Doc. 95-24657 Filed 10-3-95; 8:45 am]
BILLING CODE 6560-50-P
