03-9044. Texas: Final Authorization of State Hazardous Waste Management Program Revisions

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Immediate final rule.

SUMMARY:

The State of Texas has applied for Final authorization of its revisions to its Hazardous Waste Program under the Resource Conservation and Recovery Act (RCRA). The EPA has determined that these revisions satisfy all requirements needed to qualify for final authorization, and is authorizing the State's revisions through this immediate final action. The EPA is publishing this rule to authorize the revisions without a prior proposal because it believes this action is not controversial and does not expect adverse comments. Unless the EPA receives adverse comments which oppose this authorization during the comment period, the decision to authorize the State of Texas' revisions to their hazardous waste program will take effect. If adverse comments are received, the EPA will publish a document in the Federal Register either: withdrawing this immediate final decision; or a notice containing a response to comments and which either affirms that the immediate final decision takes effect or reverses the decision.

DATES:

This immediate final rule is effective on June 16, 2003, unless EPA receives adverse written comment by May 15, 2003. Should the EPA receive such comments, it will publish a timely document either: withdrawing the immediate final publication or affirming the publication and responding to comments.

ADDRESSES:

Written comments, referring to Docket Number TX-01-02, should be sent to Alima Patterson Region 6 Regional Authorization Coordinator, Grants and Authorization Section (6PD-G), Multimedia Planning and Permitting Division, EPA Region 1145 Ross Avenue, Dallas Texas 75202-2733. Copies of the State of Texas program revision application and the materials which EPA used in evaluating the revision are available for inspection and copying from 8:30 a.m. to 4 p.m. Monday through Friday at the following addresses: Texas Commission on Environmental Quality (TCEQ), 12100 Park S. Circle, Austin TX 78753-3087, [phone] and EPA, Region 6, 1445 Ross Avenue, Dallas, Texas 75202-2733, [phone].

FOR FURTHER INFORMATION CONTACT:

Alima Patterson [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 Hazardous Waste 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 CFR parts 124, 260-266, 268, 270, 273, and 279.

B. What Is the Effect of Today's Authorization Decision?

The effect of this decision is that a facility in Texas subject to RCRA will now have to comply with the authorized State requirements (in RCRA Clusters VII through X listed in this document) instead of the equivalent federal requirements in order to comply with RCRA. Texas has enforcement responsibilities under its state hazardous waste program for violations of such program, but EPA retains its authority under RCRA sections 3007, 3008, 3013, and 7003, which include, among others, authority to: (1) Do inspections, and require monitoring, tests, analyses or reports; (2) enforce RCRA requirements and suspend or revoke permits; and (3) take enforcement actions after notice to, and consultation with the State . This action does not impose additional requirements on the regulated community because the regulations for which Texas is being authorized by today's action are already effective, and are not changed by today's action.

C. What Has The State Of Texas Previously Been Authorized For?

Texas received final authorization to implement its Hazardous Waste Management Program on December 12, 1984, effective December 26, 1984 (49 FR 48300). This authorization was clarified in a notice published in the FR on March 26, 1985 (50 FR 11858). Texas received final authorization for revisions to its program in notices published in the Federal Register on January 31, 1986, effective October 4, 1985 (51 FR 3952); on December 18, 1986, effective February 17, 1987 (51 FR 45320). EPA authorized the following revisions: March 1, 1990, effective March 15, 1990 (55 FR 7318); on May 24, 1990, effective July 23, 1990 (55 FR 21383); on August 22, 1991, effective October 21, 1991 (56 FR 41626); on October 5, 1992, effective December 4, 1992 (57 FR 45719); on April 11, 1994, effective June 27, 1994, (59 FR 16987); on April 12, 1994, effective June 27, 1994 (59 FR 17273); September 12, 1997, effective November 26, 1997 (62 FR 47947); and on August 18, 1999, effective October 18, 1999 (64 FR 44836) and July 13, 2000, effective September 11, 2000 (65 FR 43246). EPA incorporated by reference the State of Texas Base Program and additional program revisions in RCRA Clusters III and IV into the CFR on September 14, 1999 (64 FR 49673); effective November 15, 1999.

On March 28, 2002, Texas submitted a final complete program revision application, seeking authorization of its program revision in accordance with 40 CFR 271.21. In 1991, Texas Senate Bill 2 created the Texas Natural Resource Conservation Commission (TNRCC) which combined the functions of the former Texas Water Commission and the former Texas Air Control Board. The transfer of functions to the TNRCC from the two agencies became effective on September 1, 1993. House Bill 2912, Article 18, of the 77th Texas Legislature, 2001, changed the name of the TNRCC to the Texas Commission on Environmental Quality (TCEQ) and directed the TNRCC to adopt a timetable for phasing in the change of the agency's name. The TNRCC decided to make the change of the agency's name to the TCEQ effective September 1, 2002. The change of name became effective September 1, 2002, and the legislative history of the name change is documented in the Attorney General Statement. The TCEQ may perform any act authorized by law either as the TNRCC or as the TCEQ. Id. Therefore, references to the TCEQ are references to TNRCC and to its successor, the TCEQ. For further legislative history on the name-change (See, Act of June 15, 2001, 77th Leg. R. S., Ch 965, section 18.01, 2001 Tex. Gen. Laws 1985).

The TCEQ has primary responsibility for administration of laws and regulations concerning hazardous waste, under the Texas Solid Waste Disposal Act (codified in Chapter 361 of the Texas Health & Safety Code). The TCEQ is authorized to administer the RCRA program. However, the Railroad Commission (RRC) has jurisdiction over the discharge, storage, handing, transportation, reclamation, or disposal of waste materials (both hazardous and non hazardous) that result from the activities associated with the exploration, development, or production of oil or gas or geothermal resources and other activities regulated by the RRC. See, Tex. Water Code Ann. section 26.131 and Ch. 27 (Vernon 2000). A list of activities that generate wastes that are subject to the jurisdiction of the RRC is found at 16 Tex. Admin. Code section 3.8(a)(30) and at 30 Tex. Admin. Code section 335.1. Such wastes are termed “oil and gas wastes.” The TCEQ has responsibility to administer the RCRA program, however, hazardous waste generated at natural gas or natural gas liquids processing plants or reservoir pressure maintenance or repressurizing plants are subject to the jurisdiction of the TCEQ until the RRC is authorized by EPA to administer those waste under RCRA. When the RRC is authorized by EPA to administer the RCRA program for these wastes, jurisdiction over such hazardous waste will transfer from the TCEQ to the RRC. The EPA has designated the TCEQ as the lead agency to coordinate RCRA activities between the two agencies. The EPA is responsible for the regulation of any hazardous waste for which TCEQ has not been previously authorized.

Further clarification of the jurisdiction between the TCEQ and the RRC can be found in a separate document. This document, a Memorandum of Understanding (MOU), became effective on May 31, 1998. The MOU clarified the jurisdictional boundaries between the agencies for the management and regulation of waste associated with exploration, development, production and refining of oil and gas. The MOU has been adopted by rule, which is an adoption by reference of the RRC's rule, and describes the division of responsibilities as well as the procedures for coordination between the two agencies. See, TCEQ's rule 30 Tex. Admin. Code section 7.117 and RRC's rule at 16 Tex. Admin. Code section 3.30.

The TCEQ has the rules necessary to implement EPA's RCRA Clusters VII through X revisions to the Federal Hazardous Waste Program promulgated from July 1, 1995, to June 30, 2000. The TCEQ authority to incorporate Federal rules by reference can be found at Texas Government Code Annotated section 311.027 (Vernon 1998) and adoption of the hazardous waste rules in general are pursuant to the following statutory provisions: (1) Tex. Water Code Ann. section 5.103 (Vernon 2000), effective September 1995, as amended, (TCEQ's authority to adopt any rules necessary to carry out its powers and duties); (2) Tex. Health & Safety Code Ann. section 361.024 (Vernon 2001), effective September 1, 1995, as amended (authority to adopt rules necessary to “establish minimum standards of operation for the management and control of solid waste”); and (3) Tex. Health & Safety Code Ann. section 361.078 (Vernon 2001), effective September 1, 1989 (specifically recognizing TCEQ's authority to adopt hazardous waste rules and to issue and enforce permits to the extent necessary to receive and maintain RCRA authorization). The TCEQ partially adopted the Hazardous Remediation Waste Management Requirements (HWIR-Media). The following are the federal rules: 40 CFR 260.10, 261.4(g) through 261.4(g)(2)(ii), 264.1(j)(3)(i) through 264.1(j)(3), 264.554 through 264.554(m), 265.1(b), 268.2(c), 268.50(g) and 270.42 Appendix I because the HWIR-Media rule is an optional rule, States can partially adopt the rule if the State has in place other mechanism to address those hazardous waste. The TCEQ did not adopt 40 CFR 270.11(d)(1)-(3), 270.68, 270.73(a), 270.79, 270.80(a)-(f), 270.85(a)-(c), 270.95, 270.100, 270.105, 270.110 introduction through 270.110(i), 270.115, 270.120, 270.125, 270.130(a)-(b), 270.135 introduction through 270.135(c), 270.140 introduction through 270.140(c), 270.145(a) introduction through 270.145(d)(3), 270.150(a)-(g), 270.155(a) introduction through 270.155(b), 270.160 introduction through 270.160(c), 270.165, 270.170, 270.175(a) introduction through 270.175(c), 270.180(a)-(b), 270.185, 270.190(a)-(d), 270.195, 270.200, 270.205, 270.210 introduction through 270.210(b), 270.215(a), 270.215(a)-(d), 270.220(a)-(b), 270.225, and 270.230(a) through 270.230(e)(2). However, the TCEQ has a Office of Remediation which is responsible for the cleanup of releases of hazardous waste and pollutants so that threats to human health and the environment are controlled or eliminated. The TCEQ rules which address the Remedial Action Plan requirement of the HWIR-media rule are covered in the Texas Risk Reduction Program rules at 30 Tex. Admin. Code Ch. 350 and 30 Tex. Admin. Code section 350.75.

D. What Changes Are We Authorizing With Today's Action?

The State of Texas applied for final approval of its revision to its complete program in accordance with 40 CFR 271.21. Texas' revisions consist of regulations which specifically govern Federal Hazardous Waste promulgated from July 1, 1995, to June 30, 2000 (RCRA Clusters VII through X). Texas requirements are included in a chart with this document. The EPA is now making an immediate final decision, subject to receipt of written comments that oppose this action, that Texas' Hazardous Waste Program revision satisfies all of the requirements necessary to qualify for final authorization. Therefore, we grant Texas final authorization for the following program revisions:

Federal citation	State analog
1. Criteria for Classification of Solid Waste Disposal Facilities and Practices; Identification and Listing of Hazardous Waste; Requirements for Authorization of State Hazardous Waste Programs; [61 FR 34252] July 01, 1996. (Checklist 153)	Texas Water Code Annotated section 5.103 (Vernon 2000), effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.017 (Vernon 2001) effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.024 (Vernon 2001), effective September 1, 1989, as amended; Texas health & Safety Code Annotated section 361.078 (Vernon 2001), effective September 1, 1989, as amended; 30 Texas Administrative Code section 335.78(f)(3)(A)-G and (g)(3)(A)-(G), effective October 19, 1998.
2. Hazardous Waste Treatment; Storage and Disposal Facilities and Hazardous Waste Generators; Organic Air Emission Standards for Tanks, Surface Impoundments and Containers; [61 FR 59931] November 25, 1996; [59 FR 62896] December 6, 1994; [60 FR 26828] May 19, 1995; [60 FR 50426] September 29, 1995; [60 FR 56952] November 13, 1995; [61 FR 4903]; [61 FR 28508] June 5, 1996]. (Checklists 154, 154.1, 154.2, 154.3, 154.4, 154.5, and 154.6)	Texas Water Code Annotated section 5.103 (Vernon 2000), effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.017 (Vernon 2001) effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.024 (Vernon 2001), effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.061 (Vernon 2001), effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.078 (Vernon 2002), effective September 1, 1989, as amended; 30 Texas Administrative Code section 335.31, effective November 15, 2001, as amended; section 335.24(e), and, effective April 4, 1999, as amended, section 335.69(f)(2), 335.69(a)(1)(A)-(B), effective November 15, 2001, as amended; section 335.152(a)(1), 335.152(a)(4), 335.152(a)(7)-(9), 335.152(a)(16)-(19), effective November 18, 2001; 335.111(a), effective November 15, 2001; 335.112(a)(1), 335.112(a)(4), 335.112(a)(8)-(10), 335.112(a)(19)-(21), 335.112(a)(24), effective November 18, 2001; 305.122(a), effective November 15, 2001, as amended and 305.50(a)(A), effective November 18, 2001, as amended.
3. Land Disposal Restrictions Phase III—Emergency Extension of the K088 Capacity Variance, [62 FR 1992] January 14, 1997. (Checklist 155)	Texas Water Code Annotated section 5.103 (Vernon 2000), effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.017 (Vernon 2001) effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.024 (Vernon 2001), effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.078 (Vernon 2001), effective September 1, 1989, as amended; 30 Texas Administrative Code section 335.341(c), effective April 30, 2000.
4. Military Munitions Rule; Hazardous Waste Identification and Management Explosives Emergencies; Manifest Exemptions for Transport of Hazardous Waste on Right-of-Ways on Contiguous Properties, [62 FR 6622] February 12, 1997. (Checklist 156)	Texas Water Code Annotated section 5.103 (Vernon 2000), effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.017 (Vernon 2001) effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.024 (Vernon 2001), effective September 1, 1989, as amended; Texas Health & Safety Code Annotated section 361.061 (Vernon 2001), effective September 1, 1995, as amended; Texas Health & Safety Code Annotated Texas Health & Safety Code Annotated section 361.078 (Vernon 2001), effective September 1, 1989, as amended; 30 Texas Administrative Code section 335.1, and 335.61, effective April 12, 2001, as amended; section 335.10(h), effective May 20, 1999, 335.91(f), and (g), 335.41(d)(2), effective April 12, 2001, as amended, 335.271, 335.272, effective April 12, 2001, as amended, 335.271, 335.272, effective April 12, 2001, as amended; 335.152(a)(4), 335.152(a)(20), 335.112(a)(4), 335.112(a)(22), effective November 18, 2001, as amended and 305.69(j) effective April 12, 2001, as amended.
5. Land disposal Restrictions—Phase IV: Treatment Standards for Wood Preserving Wastes, Paperwork Reduction and Streamlining, Exemptions From RCRA for Certain Processed Materials; and Miscellaneous Hazardous Waste Provisions, [62 FR 25998] May 12, 1997. (Checklist 157)	Texas Water Code Annotated section 5.103 (Vernon 2000), effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.017 (Vernon 2001) effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.024 (Vernon 2001), effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.078 (Vernon 2001), effective September 1, 30 Texas Administrative Code section 335.1 (definition of solid waste), effective May 30, 2001, as amended; 335.17(a)(9)-(12), and 335.24(c)(2), effective April 4, 1999. The State law is more stringent than the Federal rule because the State does not have provisions equivalent to 40 CFR 268.(a)(10) regarding tolling agreements. State law has no provision equivalent to 40 CFR 268.44(a), under which EPA may assure a variance from an applicable treatment standard.
6. Hazardous Waste Management System; Testing and Monitoring Activities, [62 FR 32452] June 13, 1997. (Checklist 158)	Texas Water Code Annotated section 5.103 (Vernon 2000), effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.017 (Vernon 2001) effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.024 (Vernon 2001), effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.078 (Vernon 2001), effective September 1, 1989, as amended; 30 Texas Administrative Code section 335.31, effective October 19, 1998; section 335.132(a)(17)-(18), 335.152(a)(22)(E), 335.112(a)(19)-(20), effective April 12, 2001; 335.221(a)(15), 335.221(17)-(18), effective April 4, 1999 and 335.221(a), effective April 4, 1999.
7. Hazardous Waste Management System; Carbamate Production, Identification and Listing of Hazardous Waste; Land Disposal Restrictions, [62 FR 32974] June 17, 1997. (Checklist 159)	Texas Water Code Annotated section 5.103 (Vernon 2000), effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.003 (Vernon 2001), effective September 1, 1991, as amended; Texas Health & Safety Code Annotated section 361.017 (Vernon 2001) effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.024 (Vernon 2001), effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.078 (Vernon 2001), effective September 1, 1989, section 335.431(c)(1), effective April 20, 2000.
8. Land Disposal Restrictions Phase III—Emergency Extension of the K088 National Capacity Variance, [62 FR 37694] July 14, 1997. (Checklist 160)	Texas Water Code Annotated section 5.103 (Vernon 2000), effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.017 (Vernon 2001) effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.024 (Vernon 2001), effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.078 (Vernon 2001), effective September 1, 1989, as amended; 30 Texas Administrative Code section 335.431(c), effective April 30, 2000.
9. Second Emergency Revision of the Land Disposal Restrictions (LDR) Treatment Standards for Listed Hazardous Wastes From Carbamate Production, [62 FR 45568] August 28, 1997. (Checklist 161)	Texas Water Code Annotated section 5.103 (Vernon 2000), effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.017 (Vernon 2001) effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.024 (Vernon 2001), effective September 1, 1989, as amended; Texas Health & Safety Code Annotated section 361.078 (Vernon 2001), effective September 1, 1989, as amended; 30 Texas Administrative Code section 335.431, effective April 30, 2000.
10. Organic Air Emission Standards for Tanks, Surface Impoundments, and Containers; Clarification and Technical Amendments, [62 FR 64636] December 8, 1997. (Checklist 163)	Texas Water Code Annotated section 5.103 (Vernon 2000), effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.017 (Vernon 2001) effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.024 (Vernon 2001), effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.078 (Vernon 2001), effective September 1, 1989, as amended; 30 Texas Administrative Code section 335.152(a)(1), 335.152(a)(4), 335.152(a)(17)-(19); 335.112(a)(1), 335.112(a)(4), 335.112(a)(19)-(21), 335.112(a)(24), effective November 18, 2001, as amended; 305.50(4)(A), effective March 21, 2000.
11. Kraft Mill Steam Stripper Condensate Exclusion, [63 FR 18504] April 15, 1998. (Checklist 164)	Texas Water Code Annotated section 5.103 (Vernon 2000), effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.017 (Vernon 2001) effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.024 (Vernon 2001), effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.078 (Vernon 2001), effective September 1, 1989, as amended; 30 Texas Administrative Code section 335.1 (definition of solid waste)(A)(iv), effective November 15, 2001.
12. Recycled Used Oil Management Standards; Technical Correction and Clarification, [63 FR 24963] May 6, 1998. (Checklist 166)	Texas Water Code Annotated section 5.103 (Vernon 2000), effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.017 (Vernon 2001) effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.024 (Vernon 2001), effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.078 (Vernon 2001), effective September 1, 1989, as amended; Texas Health & Safety Code Annotated Chapter 371, effective September 1, 1991, as amended; 30 Texas Administrative Code section 3355.78(j), effective October 19, 1998; section 335.24(c)(4)(A)-(C), effective April 14, 1999; section section 324.1, 324.3, 324.6, 324.11-14, effective August 8, 1999.
13. Land Disposal Restrictions Phase IV-Treatment Standards for Metal Wastes and Mineral Processing Wastes, [63 FR 28556] May 26, 1998. (Checklist 167 A)	Texas Water Code Annotated section 5.103 (Vernon 2000), effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.017 (Vernon 2001) effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.024 (Vernon 2001), effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.078 (Vernon 2001), effective September 1,
14. Land Disposal Phase IV—Hazardous Soils Treatment Standards and Exclusions, [63 FR 28556] May 26, 1998. (Checklist 167 B)	Texas Water Code Annotated section 5.103 (Vernon 2000), effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.017 (Vernon 2001) effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.024 (Vernon 2001), effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.078 (Vernon 2001), effective September 1, 1989, as amended; 30 Texas Administrative Code section 335.69(f)(4)(C), effective March 18, 2001; section 335.431(c), effective November 15, 2001. State law has no provision equivalent to 40 CFR 268.44(a), under which EPA may assure a variance from an applicable treatment standard.
15. Land disposal Restrictions Phase IV—Corrections, [63 FR 28556] May 26, 1998. (Checklist 167 C)	Texas Water Code Annotated section 5.103 (Vernon 2000), effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.017 (Vernon 2001) effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.024 (Vernon 2001), effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.078 (Vernon 2001), effective September 1, 1989, as amended; 30 Texas Administrative Code section 335.431(c), effective November 15, 2001 and section 335.431, effective April 30, 2000, as amended. State law has no provision equivalent to 40 CFR 268.44(a), under which EPA may assure a variance from an applicable treatment standard.
16. Mineral Processing Secondary Material Exclusion, [63 FR 28556] May 26, 1998. (Checklist 167 D)	Texas Water Code Annotated section 5.103 (Vernon 2000), effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.017 (Vernon 2001) effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.024 (Vernon 2001), effective September 1, 1989, as amended; Texas Health & Safety Code Annotated section 361.078 (Vernon 2001), effective September 1,
17. Bevil Exclusion Revision and Clarification, [63 FR 28556] May 26, 1998. (Checklist 167 E)	Texas Water Code Annotated section 5.103 (Vernon 2000), effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.017 (Vernon 2001) effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.024 (Vernon 2001), effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.078 (Vernon 2001), effective September 1, 1989, as amended; 30 Texas Administrative Code section 335.1 (definition of solid waste) (A)(iv), effective May 30, 2001 as amended; 335.1 (definition of hazardous waste, effective January 26, 1994, as amended.
18. Exclusion of Recycled Wood Preserving Wastewater, [63 FR 28556] May 26, 1998. (Checklist 167 F)	Texas Water Code Annotated section 5.103 (Vernon 2000), effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.017 (Vernon 2001) effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.024 (Vernon 2001), effective September 1, 1989, as amended; Texas Health & Safety Code Annotated section 361.078 (Vernon 2001), effective September 1, 1989, as amended; 30 Texas Administrative Code section 335.1 (definition of solid waste) (A)(iv), effective May 30, 2001 as amended; 335.1 (definition of a hazardous waste, effective January 26, 1994, as amended.
19. Hazardous Waste Combustors Revised Standards [63 FR 33782] June 19, 1998. (Checklist 168)	Texas Water Code Annotated section 5.103 (Vernon 2000), effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.017 (Vernon 2001) effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.024 (Vernon 2001), effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.078 (Vernon 2001), effective September 1, 1989, as amended; 30 Texas Administrative Code section 335.1 (definition of solid waste) (A)(iv), effective May 30, 2001; section 305.69(i), 305.69(k), effective April 12, 2001; 305.51(a)(8), effective December 5,
20. Petroleum Refining Process, [63 FR 42110] August 6, 1998; [63 FR 54356] October 9, 1998. (Checklist 169 & 169.1)	Texas Water Code Annotated section 5.103 (Vernon 2000), effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.017 (Vernon 2001) effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.024 (Vernon 2001), effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.078 (Vernon 2001), effective September 1, 1989, as amended; 30 Texas Administrative Code section 335.1 (definition of hazardous waste) effective January 26, 1994, as amended, 335.1(129)(A)(iv) (definition of a solid waste), effective May 30, 2001, as amended; 335.431, effective April 30, 2000, as amended.
21. Land Disposal Restrictions Phase IV—Zinc Micronutrient Fertilizers, Administrative Stay, [63 FR 46332] August 31, 1998. (Checklist 170)	Texas Water Code Annotated section 5.103 (Vernon 2000), effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.017 (Vernon 2001) effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.024 (Vernon 2001), effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.078 (Vernon 2001), effective September 1, 1989, as amended; 30 Texas Administrative Code section 335.431, effective April 30, 2000 as amended.
22. Emergency Revision of Land Disposal Restrictions (LDR) Treatment Standards for Listed Hazardous Waste from Carbamate Production, [63 FR 47409] September 4, 1998. (Checklist 171)	Texas Water Code Annotated section 5.103 (Vernon 2000), effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.017 (Vernon 2001) effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.024 (Vernon 2001), effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.078 (Vernon 2001), effective September 1, 1989, as amended; 30 Texas Administrative Code section 335.431, effective April 30, 2000, as amended.
23. Land Disposal Restrictions Phase IV—Extension of Compliance Date for Characteristic Slags, [63 FR 48124] September 9, 1998. (Checklist 172)	Texas Water Code Annotated section 5.103 (Vernon 2000), 1995, as amended; Texas Health & Safety Code Annotated section 361.078 (Vernon 2001), effective September 1, 1989, as amended; 30 Texas Administrative Code section 335.431, effective November 15, 2001, as amended.
24. Land Disposal Restrictions—Treatment Standards for Spent Potliners from Primary Aluminum Reduction (K088), [63 FR 51254] September 24, 1998. (Checklist 173)	Texas Water Code Annotated section 5.103 (Vernon 2000), effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.017 (Vernon 2001) effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.024 (Vernon 2001), effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.078 (Vernon 2001), effective September 1, 1989, as, amended; 30 Texas Administrative Code section 335.431(c), effective November 15, 2001.
25. Hazardous Remediation Waste Management Requirements (HWIR-Media), [63 FR 65874] November 30, 1998. (Checklist 175)	Texas Water Code Annotated section 5.103 (Vernon 2000), effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.017 (Vernon 2001) effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.024 (Vernon 2001), effective September 1, 1995, as amended; Texas Heath & Safety Code Annotated section 361.078 (Vernon 2001) effective September 1, 1989, as amended; 30 Texas Administrative Code section 335.1 (definition of a hazardous waste), effective January 26, 1994, as amended; section 335.1 (definition of staging pile), and 335.111(a), effective November 15, 2001; 335.431, effective November 15, 2001; and 335.152(a)(14), effective November 18, 2001.
26. Universal Waste Rule—Technical Amendments, [63 FR 71225] December 24, 1998. (Checklist 176)	Texas Waste Code Annotated section 5.103 (Vernon 2000), effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.017 (Vernon 2001) effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.024 (Vernon 2001), effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.078 (Vernon 2001),
27. Organic Air Emission Standards: Clarification and Technical Amendments [64 FR 3382, January 21, 1999. (Checklist 177)	Texas Water Code Annotated section 5.103 (Vernon 2000), effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.017 (Vernon 2001) effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.024 (Vernon 2001), effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.078 (Vernon 2001), effective September 1, 1989, as amended; 30 Texas Administrative Code section 335.69(a)(1)(A)-(B) effective March 18, 2001; 335.152(a)(17), (19) and (21), effective November 18, 2002.
28. Petroleum Refining Process Wastes—Leachate Exemption, [64 FR 6806] February 11, 1999. (Checklist 178)	Texas Water Code Annotated section 5.103 (Vernon 2000), effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.017 (Vernon 2001) effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.024 (Vernon 2001), effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.078 (Vernon 2001), effective September 1, 1989, as amended; 30 Texas Administrative Code section 335.1 (definition of a hazardous waste), effective January 26, 1994, as amended.
29. Land Disposal Restrictions Phase IV—Technical Corrections and Clarifications to Treatment Standards, [64 FR 25408] May 11, 1999. (Checklist 179)	Texas Water Code Annotated section 5.103 (Vernon 2000), effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.017 (Vernon 2001) effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.024 (Vernon 2001), effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.078 (Vernon 2001), effective September 1, 1989, as amended; 30 Texas Administrative Code section 335.1 (definition of a hazardous waste), effective January 26, 1994, as amended; section 335.1 (definition of solid waste), effective May 30, 2001; section 335.431(c), effective November 15, 2001.
30. Guideline for Establishing Test Procedures for the Analysis of Oil and Grease and Non-Polar Material Under the Clean Water Act and Resource Conservation and Recovery Act, [64 FR 26315] June 14, 1999. (Checklist 180)	Texas Water Code Annotated section 5.103 (Vernon 2000), effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.017 (Vernon 2001) effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.024 (Vernon 2001), effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.078 (Vernon 2001), effective September 1, 1989, as amended; 30 Taxes Administrative Code section 335.31, effective November 15, 2001.
31. Universal Waste Rule: Specific Provisions for Hazardous Waste Lamps, [64 FR 36466] July 6, 1999. (Checklist 181)	Texas Water Code Annotated section 5.103 (Vernon 2000), effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.017 (Vernon 2001) effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.024 (Vernon 2001), effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.078 (Vernon 2001), effective September 1, 1989, as amended; 30 Texas Administrative Code section 335.1 (definition of universal waste), effective May 30, 2001; section 335.2(1), effective April 30, 2000; section 335.41(j), effective April 12, 2001; section 335.151(b), effective February 22, 1994; section 335.261(a)-(b), effective April 30, 2000; and section 335.431(b)(3), effective November 15, 2001.
32. NESHAPS: Final Standards for Hazardous Air Pollutants for Hazardous Waste Combustors, Miscellaneous Units, and Secondary Lead Smelters; Clarification of BIF Requirements Technical Correction to Fast-track Rule (MACT Rule), [64 FR 52827] September 30, 1999; [64 FR 63209] November 19, 1999. (Checklist 182 & 182.1)	Texas Water Code Annotated section 51.03 (Vernon 2000), effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.017 (Vernon 2001) effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.024 (Vernon 2001), effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.078 (Vernon 200), effective September 1, 1989, as amended; 30 Texas Administrative Code section 335.1 (129)(A)(iv) (Definition of solid waste), effective November 15, 2001, 335.152(a)(13), 335.112(a)(14), effective November 18, 2001; section 305.50(4)(A), section 305.69(i), effective November 15, 2001; section 335.1 (definitions), 335.221(a), 335.221(a)(1), 305.50(4)(A), 305.571(b), and 335.222(a)(c), effective November 15, 2001.
33. Land Disposal Restrictions Phase IV—Technical Corrections, [64 FR 56469] October 20, 1999. (Checklist 183)	Texas Water Code Annotated section 5.103 (Vernon 2000), effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.017 (Vernon 2001) effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.024 (Vernon 2001), effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.078 (Vernon 2001), effective September 1, 1989, as amended; 30 Texas Administrative Code section 335.1 (definition of a hazardous waste), effective January 26, 1994, as amended; section 335.431(c) effective November 15, 2001.
34. Waste Water Treatment Sludges from Metal Finishing Industry; 180-day Accumulation time. [65 FR 12378] March 8, 2000. (Checklist 184)	Texas Water Code Annotated section 5.103 (Vernon 2000), effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.017 (Vernon 2001) effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.024 (Vernon 2001), effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.078 (Vernon 2001), effective September 1, 1989, as amended; 30 Texas Administrative Code section 335.69(j)-(l) effective March 18, 2001.
35. Organobromine Production Waste, [65 FR 14472] March 17, 2000. (Checklist 185)	Texas Water Code Annotated section 5.103 (Vernon 2000), effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.017 (Vernon 2001) effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.024 (Vernon 2001), effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.078 (Vernon 2001), effective September 1, 1989, as amended; 30 Texas Administrative Code section 335.1 (definition of a — —
36. Organobromine Production Waste and Petroleum Refining Process Waste; Technical Correction, [65 FR 36365 June 8, 2000. (Checklist 187)	Texas Water Code Annotated section 5.103 (Vernon 2000), effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.017 (Vernon 2001) effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.024 (Vernon 2001), effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.078 (Vernon 2001), effective September 1, 1989, as amended; 30 Texas Administrative Code section 335.1 (Definition of a hazardous waste), effective January 26, 1994, as amended; section 335.431(c) effective November 15, 2001.

E. What Is the Relationship Between the Resource Conservation and Recovery Act and the Hazardous Waste Combustor MACT? How Does This Affect Delegation of This Standard to Texas Commission on Environmental Quality's Authorization?

In this authorization document, the State of Texas is also seeking authorization for the Post-Closure Permit Requirement and Closure Process, (Checklist 174). On September 30, 1999, the EPA finalized the National Emission Standards for Hazardous Air Pollutants (NESHAP) for three categories waste combustors (HWCs): Incinerators, cement kilns and light-weight aggregate kilns (64 FR 52828). The EPA promulgated this rule under joint authority of the Clean Air Act (CAA) and (RCRA). Before this rule went into effect, the air emissions from these three types of HWCs were primarily regulated under the authority of RCRA (see 40 CFR parts 264, 265, 266, and 270). However, with the release of the final HWC NESHAP (see 40 CFR part 63 subpart EEE), the air emissions from these sources are now regulated under RCRA and the CAA. Even though both statutes give the EPA the authority to regulate these emissions, the EPA has determined that having emissions standards and permitting requirements in both sets of implementing regulations would be duplicative. For this reason, using the authority provided by section 1006(b) of RCRA, the EPA deferred the RCRA requirements for HWC emission controls to the CAA requirements of 40 CFR part 63 subpart EEE.

Therefore, with today's authorization of the State of Texas for the RCRA provisions of the September 30, 1999, HWC NESHAP rule, the RCRA waste management standards for air emissions from these units will no longer apply after the facility has demonstrated compliance with 40 CFR part 63 subpart EEE. One notable exception concerns section 3005(c)(3) of RCRA, which requires that each RCRA permit contain the terms and conditions necessary to protect human health and the environment. Under this provision of RCRA, if a regulatory authority determines that more stringent conditions than the HWC NESHAP are necessary to protect human health and environment for a particular facility, then the regulatory authority may impose those conditions in the facility's RCRA permit. (See the HWC MACT rule preamble discussion on the interrelationship of the MACT rule with the RCRA Omnibus provision and site specific risk assessment at 64 FR 52828, pages 52839-52843, September 30, 1999, and RCRA Site-Specific Risk Assessment Policy for Hazardous Waste Combustion Facilities dated June, 2000, for more information.

E. What Decisions Has the EPA Made?

The EPA concludes that Texas' application to revise its authorized program meets all of the statutory and regulatory requirements established by RCRA. Therefore, the EPA grants Texas final authorization to operate its hazardous waste program with the changes described in the authorization application. Texas has the responsibility for permitting treatment, storage, and disposal facilities 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 they are authorized for the requirements. Thus, EPA will implement those requirements and prohibitions in Texas, including issuing permits, until the State is granted authorization to do so.

F. How Do the Revised State Rules Differ From the Federal Rules?

The EPA considers the following state requirement to be more stringent than the federal: The state law is more stringent than the federal rule because the State does not have provisions equivalent to 40 CFR 268.(a)(10) regarding tolling agreements. State law has no provision equivalent to 40 CFR 268.44(a), under which EPA may approve a variance from an applicable treatment standard. In this authorization, there are no broader in scope provisions. The EPA cannot enforce broader in scope requirements.

G. Who Handles Permits After This Authorization Takes Effect?

The State will issue permits for all the provisions for which it is authorized and will administer the permits it issues. The EPA will continue to administer any RCRA hazardous waste permits or portions of permits which we issued prior to the effective date of this authorization. Upon authorization of the State program, EPA will suspend issuance of Federal permits for hazardous waste treatment, storage, and disposal facilities for which the State is receiving authorization. EPA will not issue any more new permits or new portions of permits for the provisions listed in the Table above after the effective date of this authorization. The EPA will continue to implement and issue permits for HSWA requirements for which Texas is not yet authorized.

H. Why Wasn't There a Proposed Rule Before Today's Notice?

The EPA is authorizing the State's changes through this immediate final action and is publishing this rule without a prior proposal to authorize the changes because EPA believes it is not controversial and does not expect comments that oppose this action. The EPA is providing an opportunity for public comment in the proposed rules section of today's Federal Register, where we are publishing a separate document that proposes to authorize the State changes. If EPA receives comments which oppose this authorization, that document will serve as a proposal to authorize the changes.

I. Where Do I Send My Comments and When Are They Due?

You should send written comments to Alima Patterson, Regional Authorization Coordinator, Grants and Authorization Section (6PD-G), Multimedia Planning and Permitting Division, EPA Region 6, 1445 Ross Avenue, Dallas, Texas 75202-2733, [phone]. Please refer to Docket Number TX-01-02. We must receive your comments by May 15, 2003. You may not have an opportunity to comment again. If you want to comment on this action. You must do so at this time.

J. What Happens if EPA Receives Comments Opposing This Action?

If EPA receives comments which oppose this authorization, we will withdraw this rule by publishing a document in the Federal Register before the rule becomes effective. The EPA will base any further decision on the authorization of the State program changes on the proposal mentioned in the previous paragraph. EPA will then address all public 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.

K. When Will This Approval Take Effect?

Unless EPA receives comments that oppose this action, this final authorization approval will become effective without further notice on June 16, 2003.

L. Where Can I Review the State's Applications?

You can view and copy the State of Texas' application from 8:30 a.m. to 4 p.m., Monday through Friday at the following addresses: Texas Commission on Environmental Quality, 12100 Park 35 Circle, Austin TX 78753-3087, [phone] and EPA, Region 6, 1445 Ross Avenue, Dallas, Texas 75202-2733, [phone]. For further information contact Alima Patterson, Regional Authorization Coordinator, Grants and Authorization Section (6PD-G), Multimedia Planning and Permitting Division, EPA Region 6, 1445 Ross Avenue, Dallas, Texas 75202-2733, [phone].

M. How Does Today's Action Affect Indian Country in Texas?

Texas is not authorized to carry out its Hazardous Waste Program in Indian country within the State. This authority remains with EPA. Therefore, this action has no effect in Indian country.

N. What Is Codification?

Codification is the process of placing the State's statutes and regulations that comprise the State's authorized Hazardous Waste Program into the CFR. The EPA does this by referencing the authorized State rules in 40 CFR part 272. The EPA reserves the amendment of 40 CFR part 272, subpart SS for this codification of Texas' program changes until a later date.

Statutory and Executive Order Reviews

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 rule incorporated by reference Texas' authorized hazardous waste management regulations, and imposes no additional requirements beyond those imposed by State law. This final rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). Incorporation by reference will not impose any new burdens on small entities. 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 rule merely incorporates by reference certain existing State hazardous waste management program requirements which EPA already approves under 40 CFR part 271, 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 (Public Law 104-4).

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 (1999)), because it merely incorporates by reference existing State hazardous waste management program requirements without altering the relationship or the distribution of power and responsibilities established by RCRA. This action also does not have Tribal implications within the meaning of Executive Order 13175 (65 FR 67249(2000)).

This action also is not subject to Executive Order 13045 (62 FR 19885 (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 28344 (2001)) because it is not a significant regulatory action under Executive Order 12866.

Under RCRA 3006(b), EPA grants a State's application for incorporation by reference 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 incorporation by reference 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. The final rule does not include environmental justice issues that require consideration under Executive Order 12898 (59 FR 7629, February 16, 1994). 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. 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.

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, 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 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 June 16, 2003.

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 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: March 27, 2003.

Lawrence E. Starfield,

Acting Regional Administrator, Region 6.