[Federal Register Volume 60, Number 118 (Tuesday, June 20, 1995)]
[Rules and Regulations]
[Pages 32110-32112]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-15016]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 272
[FRL-5188-7]
Hazardous Waste Management Program: Incorporation by Reference of
Approved State Hazardous Waste Program for Arkansas
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 Arkansas 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 Arkansas' 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
Arkansas 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
Arkansas' program.
Effective December 13, 1993 (see 58 FR 52674), EPA incorporated by
reference Arkansas' then authorized hazardous waste program. Effective
December 21, 1994 (see 59 FR 51115), EPA granted authorization to
Arkansas for additional program revisions. In this document, EPA is
incorporating the currently authorized State hazardous waste program in
Arkansas.
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 Arkansas. 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 Arkansas program and by amending the Code of Federal
Regulations whenever a new or different set of requirements is
authorized in Arkansas, the status of Federally approved requirements
of the Arkansas program will be readily discernible.
The Agency will only enforce those provisions of the Arkansas
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. [[Page 32111]]
Arkansas Authorized Hazardous Waste Program
EPA is incorporating by reference the Arkansas authorized hazardous
waste program in subpart E of 40 CFR part 272. The State statutes and
regulations are incorporated by reference at Sec. 272.201(b)(1) and the
Memorandum of Agreement, the Attorney General's Statement and the
Program Description are referenced at Sec. 272.201 (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 Arkansas enforcement authorities. Section 272.201(b)(2) of
40 CFR lists those authorized Arkansas 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 Arkansas 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 272.201(b)(3) of 40 CFR lists for reference
and clarity the Arkansas 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.
Arkansas has adopted but is not authorized for the September 1,
1988 (53 FR 33938) and the July 1, 1991 (see 56 FR 30200) amendments to
Parts 264 and 265 addressing liability requirements. Thus, the portions
of the Arkansas Hazardous Waste Management code, chapter 2, sections
3a(5) and 3a(6) incorporating the September 1, 1988 and the July 1,
1991 amendments are not part of the State's authorized program and are
not part of the incorporation by reference addressed by today's Federal
Register document.
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 272.201(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 Arkansas hazardous waste
regulations incorporated by reference at 272.201(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
Arkansas 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 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 Arkansas' 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, [[Page 32112]] Reporting and
recordkeeping requirements, Water pollution control, Water supply.
Dated: March 30, 1995.
Myron O. Knudson,
Acting Regional Administrator.
For the reasons set forth in the preamble, subpart E 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 E is amended by revising Sec. 272.201
to read as follows:
Sec. 272.201 Arkansas State-Administered Program: Final Authorization.
(a) Pursuant to Section 3006(b) of RCRA, 42 U.S.C. 6926(b),
Arkansas has final authorization for the following elements as
submitted to EPA in Arkansas' base program application for final
authorization which was approved by EPA effective on January 25, 1985.
Subsequent program revision applications were approved effective on
August 23, 1985, May 29, 1990, November 18, 1991, December 4, 1992 and
December 21, 1994.
(b) State Statutes and Regulations. (1) The Arkansas 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 Arkansas Statutory Requirements Applicable to the
Hazardous Waste Management Program, dated March, 1995.
(ii) EPA Approved Arkansas 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) Arkansas Hazardous Waste Management Act of 1979, as amended,
Arkansas Code of 1987 Annotated (A.C.A.), 1993 Replacement, Sections 8-
7-204 (except 8-7-204(e)(3)(B)), 8-7-205 through 8-7-214, 8-7-217, 8-7-
218, 8-7-220, 8-7-222, 8-7-224 and 8-7-225(b) through 8-7-225(d).
(ii) Arkansas Resource Reclamation Act of 1979, as amended,
Arkansas Code of 1987 Annotated (A.C.A.), 1993 Replacement, Sections 8-
7-302(3), 8-7-303, 8-7-308(1), and 8-7-308(4).
(iii) Arkansas Department of Pollution Control and Ecology (ADPC&E)
Regulation No. 23, Hazardous Waste Management, as amended August 27,
1993, effective September 21, 1993, chapter two, sections 3a(11), 3b,
3c, 4, 6a, 6d through 6m, 7, 8, 12b(7), 12c (except 12(c)(10) and
12(c)(11)), 12d, 12e, 14a, 17; chapter three, sections 19 and 20;
chapter five, section 26.
(iv) Arkansas Department of Pollution Control and Ecology,
Regulation No. 7, Civil Penalties, May 25, 1984.
(v) Arkansas Department of Pollution Control and Ecology,
Regulation No. 8, Administrative Procedures, July 6, 1984.
(3) 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:
(i) Arkansas Hazardous Waste Management Act, as amended, Arkansas
Code of 1987 Annotated (A.C.A.), 1993 Replacement, Section 8-7-226.
(ii) Arkansas Department of Pollution Control and Ecology
Regulation No. 23, Hazardous Waste Management, as amended as amended
August 27, 1993, effective September 21, 1993, chapter two, sections
2a(5) (only the second sentence), 2b(11), 3a(10), 11, 16a, and portions
of sections 16c and 16d that refer to PCBs; and chapter four, section
23.
(4) Unauthorized State Provisions: Arkansas has adopted but is not
authorized for the September 1, 1988 (53 FR 33938) and the July 1, 1991
(56 FR 30200) amendments to Parts 264 and 265 addressing liability
requirements. Thus, the portions of the Arkansas Hazardous Waste
Management code, chapter 2, sections 3a(5) and 3a(6) adopting the
September 1, 1988 and the July 1, 1991 amendments are not part of the
State's authorized program and are not Federally enforceable.
(5) Memorandum of Agreement. The Memorandum of Agreement between
EPA Region 6 and the State of Arkansas signed by the EPA Regional
Administrator on November 3, 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 Arkansas
on July 9, 1984 and revisions, supplements and addenda to that
Statement dated September 24, 1987, February 24, 1989, December 11,
1990, May 7, 1992, and by the Independent Legal Counsel on May 10, 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 ``Arkansas'' to read as follows:
Appendix A to Part 272--State Requirements
* * * * *
Arkansas
The statutory provisions include:
Arkansas Hazardous Waste Management Act, as amended, Arkansas Code
of 1987 Annotated (A.C.A.), 1993 Replacement, Sections 8-7-202, 8-7-
203, 8-7-215, 8-7-216, 8-7-219, 8-7-221, 8-7-223 and 8-7-225(a), as
published by The Michie Company, Law Publishers, 1 Town Hall Square,
Charlottesville, Virginia 22906-7587.
The regulatory provisions include:
Arkansas Department of Pollution Control and Ecology Regulation No.
23, Hazardous Waste Management, as amended August 27, 1993, effective
September 21, 1993, chapter one; chapter two, sections 2a (except the
second sentence of 2a(5)), 2b (except 2b(11)), 2c, 3a (except 3a(10),
3a(11) and 3a(13)), 5, 6 introductory paragraph, 6b, 6c, 9, 10, 12
introductory paragraph, 12a, 12b (except 12b(7) and 12b(8)), 12c(10),
12c(11), 13a introductory paragraph, 13a(1) through 13a(7), 13a(11), 14
introductory paragraph, 14b, 15, 16 introductory paragraph, 16b, 16c
introductory paragraph, 16c(1) (except the phrase `or the letters
``PCB'' for PCB shipments' in 16c(1)(e)), 16c(2) through 16c(6), 16c(7)
(except the second and third sentences), 16c(8) through 16c(12), 16d(1)
(except the phrase ``(including PCBs and PCB contaminated wastes)'' in
the first sentence), 16d(1)(a) through 16d(1)(d), 16d(1)(e) (except the
phrase `or ``PCBs'' ' in the first sentence), and 16d(1)(f) through
16e. Copies of the Arkansas regulations can be obtained from the
Arkansas Register, Secretary of State, State Capitol Building, Little
Rock, Arkansas 72201.
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[FR Doc. 95-15016 Filed 6-19-95; 8:45 am]
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