[Federal Register Volume 60, Number 118 (Tuesday, June 20, 1995)]
[Rules and Regulations]
[Pages 32113-32116]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-15015]
[[Page 32113]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 272
[FRL-5188-8]
Hazardous Waste Management Program: Incorporation by Reference of
Approved State Hazardous Waste Program for New Mexico
AGENCY: Environmental Protection Agency.
ACTION: Immediate final rule.
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SUMMARY: Under the Resource Conservation and Recovery Act of 1976, as
amended (RCRA), the United States Environmental Protection Agency (EPA)
may grant Final Authorization to States to operate their hazardous
waste management programs in lieu of the Federal program. EPA uses part
272 of Title 40 Code of Federal Regulations (CFR) to provide notice of
the authorization status of State programs, and to incorporate by
reference those provisions of the State statutes and regulations that
EPA will enforce under RCRA Section 3008. Thus, EPA intends to codify
the New Mexico authorized State program in 40 CFR Part 272. The purpose
of this action is to incorporate by reference EPA's approval of recent
revisions to New Mexico's program.
DATES: This document will be effective on August 21, 1995 unless EPA
publishes a prior Federal Register action withdrawing this immediate
final rule. All comments on this action must be received by the close
of business on July 20, 1995. The incorporation by reference of certain
New Mexico statutes and regulations was approved by the Director of the
Federal Register as of August 21, 1995 in accordance with 5 U.S.C.
552(a) and 1 CFR part 51.
ADDRESSES: Written comments should be sent to Alima Patterson, Region 6
AR-NM Authorization Coordinator, Grants and Authorization Section (6H-
HS), RCRA Programs Branch, U.S. EPA Region 6, First Interstate Bank
Tower at Fountain Place, 1445 Ross Avenue, Suite 1200, Dallas, TX
75202, Phone #: 214-665-8533.
FOR FURTHER INFORMATION CONTACT: Alima Patterson, Region 6 AR-NM
Authorization Coordinator, Grants and Authorization Section (6H-HS),
RCRA Programs Branch, U.S. EPA Region 6, First Interstate Bank Tower at
Fountain Place, 1445 Ross Avenue, Suite 1200, Dallas, TX 75202, Phone
#: 214-665-8533.
SUPPLEMENTARY INFORMATION:
Background
Section 3006 of the Resource Conservation and Recovery Act of 1976,
as amended (RCRA), 42 U.S.C. 6926 et seq., allows the U.S.
Environmental Protection Agency (EPA) to authorize State hazardous
waste programs to operate in the State in lieu of the Federal hazardous
waste program. The purpose of today's Federal Register document is to
incorporate by reference EPA's approval of recent revisions to New
Mexico's program.
Effective December 13, 1993 (see 58 FR 52677), EPA incorporated by
reference New Mexico's then authorized hazardous waste program.
Effective December 21, 1994 (see 59 FR 51122), EPA granted
authorization to New Mexico for additional program revisions. In this
document, EPA is incorporating the currently authorized State hazardous
waste program in New Mexico.
EPA provides both notice of its approval of State programs in 40
CFR part 272 and incorporates by reference therein the State statutes
and regulations that EPA will enforce under section 3008 of RCRA. This
effort will provide clearer notice to the public of the scope of the
authorized program in New Mexico. Such notice is particularly important
in light of the Hazardous and Solid Waste Act Amendments of 1984
(HSWA), Public Law 98-616. Revisions to State hazardous waste programs
are necessary when Federal statutory or regulatory authority is
modified. Because HSWA extensively amended RCRA, State programs must be
modified to reflect those amendments. By incorporating by reference the
authorized New Mexico program and by amending the Code of Federal
Regulations whenever a new or different set of requirements is
authorized in New Mexico, the status of Federally approved requirements
of the New Mexico program will be readily discernible.
The Agency will only enforce those provisions of the New Mexico
hazardous waste management program for which authorization approval has
been granted by EPA. This document incorporates by reference provisions
of State hazardous waste statutes and regulations and clarifies which
of these provisions are included in the authorized and Federally
enforceable program. Concerning HSWA, some State requirements may be
similar to HSWA requirements that are in effect under Federal statutory
authority in that State. However, a State's HSWA-type requirements are
not authorized and will not be codified into the CFR until the Regional
Administrator publishes his final decision to authorize the State for
specific HSWA requirements. Until such time, EPA will enforce the HSWA
requirements and not the State analogues.
New Mexico Authorized Hazardous Waste Program
EPA is incorporating by reference the New Mexico authorized
hazardous waste program in subpart GG of 40 CFR part 272. The State
statutes and regulations are incorporated by reference at
Sec. 272.1601(b)(1) and the Memorandum of Agreement, the Attorney
General's Statement and the Program Description are referenced at
Sec. 272.1601(b)(5), (b)(6) and (b)(7), respectively.
The Agency retains the authority under Sections 3007, 3008, 3013
and 7003 of RCRA to undertake enforcement actions in authorized States.
With respect to such an enforcement action, the Agency will rely on
Federal sanctions, Federal inspection authorities, and the Federal
Administrative Procedure Act rather than the authorized State analogues
to these requirements. Therefore, the Agency does not intend to
incorporate by reference for purposes of enforcement such particular,
authorized New Mexico enforcement authorities. Section 272.1601(b)(2)
of 40 CFR lists those authorized New Mexico authorities that are part
of the authorized program but are not incorporated by reference.
The public also needs to be aware that some provisions of the
State's hazardous waste management program are not part of the
Federally authorized State program. These non-authorized provisions
include:
(1) Provisions that are not part of the RCRA Subtitle C program
because they are ``broader in scope'' than RCRA Subtitle C (see 40 CFR
271.1(i)); and
(2) Federal rules for which New Mexico is not authorized, but which
have been incorporated into the State regulations because of the way
the State adopted Federal regulations by reference.
State provisions which are ``broader in scope'' than the Federal
program are not incorporated by reference for purposes of enforcement
in 40 CFR part 272. Section 272.1601(b)(3) of 40 CFR lists for
reference and clarity the New Mexico statutory and regulatory
provisions which are ``broader in scope'' than the Federal program and
which are not, therefore, part of the authorized program being
incorporated by reference. ``Broader in scope'' provisions will not be
enforced by EPA; the State, however, will continue to enforce such
provisions.
New Mexico has adopted but is not authorized for the Federal rules
[[Page 32114]] published in the Federal Register from January 28, 1983
through March 20, 1984 (48 FR 3977, 48 FR 39611, 48 FR 52718, 49 FR
5308, and 49 FR 10490); the Federal rules regarding corrective action
published on July 15, 1985 (50 FR 28702) and December 1, 1987 (52 FR
45788); the September 1, 1988 (53 FR 33938) and the July 1, 1991 (56 FR
30200) amendments to parts 264 and 265 addressing liability
requirements; amendments to the Toxicity Characteristic rule as
published on October 5, 1990 (55 FR 40834), February 1, 1991 (56 FR
3978), February 13, 1991 (56 FR 5910) and April 2, 1991 (56 FR 13406);
and amendments to the F037 and F038 listings as published on May 13,
1991 (56 FR 21955). Therefore, these Federal amendments included in New
Mexico's adoption by reference of Federal code at Parts I, II, III, V,
VI, and IX are not Federally enforceable.
Since EPA cannot enforce a State's requirements which have not been
reviewed and approved according to the Agency's authorization
standards, it is important that EPA clarify any limitations on the
scope of a State's approved hazardous waste program. Thus, in those
instances where a State's method of adopting Federal law by reference
has the effect of including unauthorized requirements, EPA will provide
this clarification by: (1) Incorporating by reference the relevant
State legal authorities according to the requirements of the Office of
Federal Register; and (2) subsequently identifying in 272.1601(b)(4)
any requirements which while adopted and incorporated by reference, are
not authorized by EPA, and therefore are not Federally enforceable.
Thus, notwithstanding the language in the New Mexico hazardous waste
regulations incorporated by reference at 272.1601(b)(1), EPA would only
enforce the State provisions that are actually authorized by EPA. With
respect to HSWA requirements for which the State has not yet been
authorized, EPA will continue to enforce the Federal HSWA standards
until the State receives specific HSWA authorization from EPA.
HSWA Provisions
As noted above, the Agency is not amending part 272 to include HSWA
requirements and prohibitions that are immediately effective in New
Mexico and other States. Section 3006(g) of RCRA provides that any
requirement or prohibition of HSWA (including implementing regulations)
takes effect in authorized States at the same time that it takes effect
in non-authorized States. Thus, EPA has immediate authority to
implement a HSWA requirement or prohibition once it is effective. A
HSWA requirement or prohibition supercedes any less stringent or
inconsistent State provision which may have been previously authorized
by EPA (see 50 FR 28702, July 15, 1985).
Because of the vast number of HSWA statutory and regulatory
requirements taking effect over the next few years, EPA expects that
many previously authorized and incorporated by reference State
provisions will be affected. The States are required to revise their
programs to adopt the HSWA requirements and prohibitions by the
deadlines set forth in 40 CFR Sec. 271.21, and then to seek
authorization for those revisions pursuant to part 271. EPA expects
that the States will be modifying their programs substantially and
repeatedly. Instead of amending the part 272 every time a new HSWA
provision takes effect under the authority of RCRA 3006(g), EPA will
wait until the State receives authorization for its analog to the new
HSWA provision before amending the State's part 272 incorporation by
reference. In the interim, persons wanting to know whether a HSWA
requirement or prohibition is in effect should refer to 40 CFR
271.1(j), as amended, which lists each such provision.
The incorporation by reference of State authorized programs in the
CFR should substantially enhance the public's ability to discern the
current status of the authorized State program and clarify the extent
of Federal enforcement authority. This will be particularly true as
more State program revisions to adopt HSWA provisions are authorized.
Certification Under The Regulatory Flexibility Act
Pursuant to the provisions of 5 U.S.C. 605(b), I hereby certify
that this action will not have a significant economic impact on a
substantial number of small entities. It intends to incorporate by
reference the decisions already made to authorize New Mexico's program
and has no separate effect on handlers of hazardous waste in the State
or upon small entities. This rule, therefore, does not require a
regulatory flexibility analysis.
Compliance With Executive Order 12866
The Office of Management and Budget has exempted this rule from the
requirements of Section 6 of Executive Order 12866.
Paperwork Reduction Act
Under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., Federal
agencies must consider the paperwork burden imposed by any information
request contained in a proposed rule or a final rule. This rule will
not impose any information requirements upon the regulated community.
List of Subjects in 40 CFR Part 272
Environmental protection, Administrative practice and procedure,
Confidential business information, Hazardous waste transportation,
Hazardous waste, Incorporation by reference, Indian lands,
Intergovernmental relations, Penalties, Reporting and recordkeeping
requirements, Water pollution control, Water supply.
Dated: March 30, 1995.
Allyn M. Davis,
Acting Regional Administrator.
For the reasons set forth in the preamble, subpart GG of 40 CFR
part 272 is amended as follows:
PART 272--APPROVED STATE HAZARDOUS WASTE MANAGEMENT PROGRAMS
1. The authority citation for part 272 continues to read as
follows:
Authority: Secs. 2002(a), 3006, and 7004(b) of the Solid Waste
Disposal Act, as amended by the Resource Conservation and Recovery
Act of 1976, as amended, 42 U.S.C. 6912(a), 6926, and 6974(b).
2. 40 CFR part 272, subpart GG is amended by revising Sec. 272.1601
to read as follows:
Sec. 272.1601 New Mexico State-Administered Program: Final
Authorization.
(a) Pursuant to Section 3006(b) of RCRA, 42 U.S.C. 6926(b), New
Mexico has final authorization for the following elements as submitted
to EPA in New Mexico's base program application for final authorization
which was approved by EPA effective on January 25, 1985. Subsequent
program revision applications were approved effective on April 10,
1990, July 25, 1990, December 4, 1992, August 23, 1994 and December 21,
1994.
(b) State Statutes and Regulations. (1) The New Mexico statutes and
regulations cited in this paragraph are incorporated by reference as
part of the hazardous waste management program under Subtitle C of
RCRA, 42 U.S.C. 6921 et. seq.
(i) EPA Approved New Mexico Statutory Requirements Applicable to
the Hazardous Waste Management Program, dated March, 1995.
[[Page 32115]]
(ii) EPA Approved New Mexico Regulatory Requirements Applicable to
the Hazardous Waste Management Program, dated March, 1995.
(2) The following statutes and regulations concerning State
enforcement, although not incorporated by reference, are part of the
authorized State program:
(i) New Mexico Statutes 1978 Annotated, Inspection of Public
Records Act, Chapter 14, Article 2, (1994 Cumulative Supplement),
Sections 14-2-1 et seq.
(ii) New Mexico Statutes 1978 Annotated, Hazardous Waste Act,
Chapter 74, Article 4, (1993 Replacement Pamphlet), Sections 74-4-4
(except 74-4-4C), 74-4-4.1, 74-4-4.2C through 74-4-4.2F, 74-4-4.2G(1),
74-4-4.2H, 74-4-4.2I, 74-4-4.3 (except 74-4-4.3A(2) and 74-4-4.3F), 74-
4-4.7B, 74-4-4.7C, 74-4-5, 74-4-7, 74-4-10, 74-4-10.1 (except 74-4-
10.1C), 74-4-11 through 74-4-14.
(iii) New Mexico Hazardous Waste Management Regulations,
Environmental Improvement Board (EIB), HWMR-7, as amended, October 21,
1992, Part IX, Sections 902 (except 902.B.1 through 902.B.6); and Part
X, Sections 1001, 1004 and 1005.
(3)(i) The following statutory and regulatory provisions are
broader in scope than the Federal program, are not part of the
authorized program, and are not incorporated by reference:
(ii) New Mexico Statutes 1978 Annotated, Hazardous Waste Act,
Chapter 74, Article 4, (1993 Replacement Pamphlet), Sections 74-4-3.3
and 74-4-4.2J.
(4) Unauthorized State Provisions: The State's adoption of the
Federal rules listed below is not approved by EPA and are, therefore,
not enforceable:
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Publication
Federal requirement Federal Register reference date
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Biennial Report............ 48 FR 3977................. 01/28/83
Permit Rules; Settlement 48 FR 39611................ 09/01/83
Agreement.
Interim Status Standards; 48 FR 52718................ 11/22/83
Applicability.
Chlorinated Aliphatic 49 FR 5308................. 02/10/84
Hydrocarbon Listing (F024).
National Uniform Manifest.. 49 FR 10490................ 03/20/84
Liability Requirements..... 53 FR 33938................ 09/01/88
Liability Requirements; 56 FR 30200................ 07/01/91
Technical Amendment.
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Additionally, New Mexico has adopted but is not authorized to
implement the HSWA rules that are listed below in lieu of EPA. EPA will
continue to enforce the Federal HSWA standards for which New Mexico is
not authorized until the State receives specific authorization from
EPA.
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Publication
Federal requirement Federal Register reference date
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Corrective Action.......... 50 FR 28702: Amendments to 07/15/85
264.90(a), 264.101(a)&(b),
270.60(b)(3) and
270.60(c)(3)(vii).
Permit Application 52 FR 45788: Amendments to 12/01/87
Requirements Regarding 270.14(c), 270.14(d),
Corrective Action. 270.14(d)(1)(i)-(v),
270.14(d)(2) and
270.14(d)(3).
Corrective Action Beyond 52 FR 45788: Amendments to 12/01/87
Facility Boundary. 264.100(e), 264.100(e)(1),
264.100(e)(2) and
264.101(c).
Corrective Action for 52 FR 45788: Amendments to 12/01/87
Injection Wells. 265.1(c)(2) and
270.60(b)(3)(i)&(ii)).
Toxicity Characteristic; 55 FR 40834................ 10/05/90
Hydrocarbon Recovery
Operations.
56 FR 3978................. 02/01/91
56 FR 13406................ 04/02/91
Toxicity Characteristic; 56 FR 5910................. 02/13/91
Chlorofluorocarbon
Refrigerants.
Revisions to the Petroleum 56 FR 21955................ 05/13/91
Refining Primary and
Secondary Oil/Water/Solids
Separation Sludge Listings
(F037 and F038).
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(5) Memorandum of Agreement. The Memorandum of Agreement between
EPA Region VI and the State of New Mexico signed by the EPA Regional
Administrator on May 19, 1994, is referenced as part of the authorized
hazardous waste management program under Subtitle C of RCRA, 42 U.S.C.
6921 et seq.
(6) Statement of Legal Authority. ``Attorney General's Statement
for Final Authorization'', signed by the Attorney General of New Mexico
in January, 1985, and revisions, supplements and addenda to that
Statement dated April 13, 1988, September 14, 1988, July 19, 1989, July
23, 1992, February 14, 1994, July 18, 1994, July 20, 1994 and August
11, 1994 are referenced as part of the authorized hazardous waste
management program under Subtitle C of RCRA, 42 U.S.C. 6921 et seq.
(7) Program Description. The Program Description and any other
materials submitted as part of the original application or as
supplements thereto are referenced as part of the authorized hazardous
waste management program under Subtitle C of RCRA, 42 U.S.C. 6921 et
seq.
3. Appendix A to part 272, State Requirements, is amended by
revising the listing for ``New Mexico'' to read as follows:
Appendix A to Part 272--State Requirements
* * * * *
New Mexico
The statutory provisions include:
New Mexico Statutes 1978 Annotated, Hazardous Waste Act, Chapter
74, Article 4, (1993 Replacement Pamphlet), Sections 74-4-2, 74-4-3
(except 74-4-3L, 74-4-3O and 74-4-3R), 74-4-3.1, 74-4-4.2A, 74-4-
4.2B, 74-4-4.2G introductory paragraph, 74-4-4.2G(2), 74-4-4.3F, 74-
4-4.7 (except 74-4-4.7B and 74-4-4.7C), 74-4-9 and 74-4-10.1C, as
published by the Michie Company, Law Publishers, 1 Town Hall Square,
Charlottesville, Virginia 22906-7587.
The regulatory provisions include:
New Mexico Hazardous Waste Management Regulations, Environmental
[[Page 32116]] Improvement Board (EIB), HWMR-7, as amended, October
21, 1992, Part I through Part VIII; Part IX, Sections 901, 902.B.1
through 902.B.6; and Part X, Section 1003. Copies of the New Mexico
regulations can be obtained from the New Mexico Register, New Mexico
Information Systems, P. O. Box 6703, Santa Fe, NM 87502.
* * * * *
[FR Doc. 95-15015 Filed 6-19-95; 8:45 am]
BILLING CODE 6560-50-P
