[Federal Register Volume 61, Number 183 (Thursday, September 19, 1996)]
[Rules and Regulations]
[Pages 49265-49269]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-23910]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 272
[FRL-5601-5]
Hazardous Waste Management Program: Incorporation by Reference of
Approved State Hazardous Waste Program for New Mexico
AGENCY: Environmental Protection Agency.
ACTION: Immediate final rule.
-----------------------------------------------------------------------
[[Page 49266]]
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. The 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 Sections 3008, 3013 and
7003. 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 November 18, 1996 unless EPA
publishes a prior Federal Register (FR) action withdrawing this
immediate final rule. All comments on this action must be received by
the close of business October 21, 1996. The incorporation by reference
of certain New Mexico statutes and regulations was approved by the
Director of the Federal Register as of November 18, 1996 in accordance
with 5 U.S.C. 552(a) and 1 CFR part 51.
ADDRESSES: Written comments should be sent to Alima Patterson,
Authorization Coordinator for Region 6, Grants and Authorization
Section (6PD-G), Multimedia Planning and Permitting Division, EPA
Region 6, First Interstate Bank Tower at Fountain Place, 1445 Ross
Avenue, Suite 1200, Dallas, TX 75202, Phone number: 214-665-8533.
FOR FURTHER INFORMATION CONTACT: Alima Patterson, Authorization
Coordinator for Region 6, Grants and Authorization Section (6PD-G),
Multimedia Planning and Permitting Division, EPA Region 6, First
Interstate Bank Tower at Fountain Place, 1445 Ross Avenue, Suite 1200,
Dallas, TX 75202, Phone number: 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 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 and August 21, 1995, Environmental
Protection Agency incorporated by reference New Mexico's then
authorized hazardous waste program (see 58 FR 52677 and 60 FR 32113).
Effective July 10, 1995 and January 2, 1996 (see 60 FR 20238 and 60 FR
53708, respectively), Environmental Protection Agency 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.
The Environmental Protection Agency 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 sections 3008, 3013 and 7003 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
The Environmental Protection Agency 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 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
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); 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
[[Page 49267]]
13406); amendments to the F037 and F038 listings as published on May
13, 1991 (56 FR 21955) and amendments to 40 CFR Parts 260, 261, 264,
265 and 266 relative to the Recycled Used Oil Management Standards, as
published on September 10, 1992 (57 FR 41566) and May 3, 1993 (58 FR
26420). Therefore, these Federal amendments included in New Mexico's
adoption by reference of Federal code at Title 20, Chapter 4, Part 1,
New Mexico Administrative Code (20 NMAC 4.1), Subparts 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 nonauthorized States. Thus, Environmental Protection Agency has
immediate authority to implement a HSWA requirement or prohibition once
it is effective. A HSWA requirement or prohibition supersedes 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, the Environmental
Protection Agency 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. The
Environmental Protection Agency 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), Environmental Protection Agency
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.
Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 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. Before promulgating an Environmental Protection Agency rule
for which a written statement is needed, 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
the Environmental Protection Agency 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, enabling
officials of affected small governments to have meaningful and timely
input in the development of Environmental Protection Agency regulatory
proposals with significant Federal intergovernmental mandates, and
informing, educating, and advising small governments on compliance with
the regulatory requirements. The Environmental Protection Agency 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. The EPA does not anticipate that the approval of New Mexico'
hazardous waste program referenced in today's notice will result in
annual costs of $100 million or more.
Today's rule contains no Federal mandates for State, local or
tribal governments or the private sector. The Act excludes from the
definition of a ``Federal mandate'' duties that arise from
participation in a voluntary Federal program, except in certain cases
where a ``federal intergovernmental mandate'' affects an annual federal
entitlement program of $500 million or more that are not applicable
here. New Mexico's request for approval of a hazardous waste program is
voluntary; if a state chooses not to seek authorization for
administration of a hazardous waste program under RCRA Subtitle C, RCRA
regulation is left to EPA.
In any event, the Environmental Protection Agency has determined
that this rule does not contain a Federal mandate that may result in
expenditures $100 million or more for state, local, and tribal
governments in the aggregate, or the private sector in any one year.
The Environmental Protection Agency does not anticipate that the
approval of New Mexico's hazardous waste program referenced in today's
notice will result in annual costs of $100 million or more. The
Environmental Protection Agency's approval of state programs generally
may reduce, not increase, compliance costs for the private sector since
the State, by virtue of the approval, may
[[Page 49268]]
now administer the program in lieu of Environmental Protection Agency
and exercise primary enforcement. Hence, owners and operators of
treatment, storage, or disposal facilities (TSDFs) generally no longer
face dual federal and state compliance requirements, thereby reducing
overall compliance costs. Thus, today's rule is not subject to the
requirements of sections 202 and 205 of the UMRA.
The Environmental Protection Agency 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 and are
not subject to any additional significant or unique requirements by
virtue of this program approval. Once the Environmental Protection
Agency 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 under the approved state program,
in lieu of the Federal program.
Certification Under the Regulatory Flexibility Act
The Environmental Protection Agency has determined that this
authorization will not have a significant economic impact on a
substantial number of small entities. The Environmental Protection
Agency recognizes that small entities may own and/or operate TSDFs that
will become subject to the requirements of an approved state hazardous
waste program. However, since such small entities which own and/or
operate TSDFs are already subject to the requirements in 40 CFR Parts
264, 265 and 270, this authorization does not impose any additional
burdens on these small entities. This is because EPA's authorization
would result in an administrative change (i.e., whether the
Environmental Protection Agency or the state administers the RCRA
Subtitle C program in that state), rather than result in a change in
the substantive requirements imposed on small entities. Once EPA
authorizes a state to administer its own hazardous waste program and
any revisions to that program, these same small entities will be able
to own and operate their TSDFs under the approved state program, in
lieu of the federal program. Moreover, this authorization, in approving
a state program to operate in lieu of the federal program, eliminates
duplicative requirements for owners and operators of TSDFs in that
particular state.
Therefore, EPA provides the following certification under the
Regulatory Flexibility Act, as amended by the Small Business Regulatory
Enforcement Fairness 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 New Mexico'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.
Submission to Congress and the General Accounting Office
Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business
Regulatory Enforcement Fairness Act of 1996, the Environmental
Protection Agency submitted a report containing this rule and other
required information to the U.S. Senate, the U. S. House of
Representatives and the Comptroller General of the General Accounting
Office prior to publication of the rule in today's Federal Register.
This rule is not a ``major rule'' as defined by 5 U.S.C. 804(2).
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: August 19, 1996.
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 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, December 21,
1994, July 10, 1995, and January 2, 1996.
(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 April, 1996.
(ii) EPA Approved New Mexico Regulatory Requirements Applicable to
the Hazardous Waste Management Program, dated April, 1996.
(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
[[Page 49269]]
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) Title 20, Chapter 4, Part 1, New Mexico Administrative Code
(20 NMAC 4.1), effective September, 23, 1994, Subpart IX, Section 902
(except 902.B.1 through 902.B.6); and Subpart XI, Sections 1101, 1105,
and 1106.
(3)(i) The following statutory 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:
------------------------------------------------------------------------
Federal Register Publication
Federal requirement reference date
------------------------------------------------------------------------
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 Hydrocarbon 49 FR 5308.............. 02/10/84
Listing (F024).
National Uniform Manifest........ 49 FR 10490............. 03/20/84
Recycled Used Oil................ 57 FR 41566: Amendments 09/10/92
to 40 CFR Parts 260,
261 and 266.
Management Standards............. 58 FR 26420: Amendments 05/03/93
to 40 CFR Parts 261,
264 and 265.
------------------------------------------------------------------------
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.
------------------------------------------------------------------------
Federal Register Publication
Federal requirement reference date
------------------------------------------------------------------------
Toxicity Characteristic;......... 55 FR 40834............. 10/05/90
Hydrocarbon Recovery............. 56 FR 3978.............. 02/01/91
Operations....................... 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).
------------------------------------------------------------------------
(5) Memorandum of Agreement. The Memorandum of Agreement between
EPA Region 6 and the State of New Mexico signed by the EPA Regional
Administrator on December 18, 1995 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
on 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, August 11,
1994, November 28, 1994, and August 24, 1995, 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.
Appendix A to Part 272--[Amended]
3. Appendix A to part 272, State Requirements, is amended by
revising the listing for ``New Mexico'' to read as follows:
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:
Title 20, Chapter 4, Part 1, New Mexico Annotated Code (20 NMAC
4.1), Subparts I through Subpart VIII; Subpart IX, Sections 901,
902.B.1 through 902.B.6; and Subpart XI, Section 1103. Copies of the
New Mexico regulations can be obtained from the New Mexico
Commission of Public Records, State Records Center and Archives,
State Rules Division, 404 Montezuma, Santa Fe, NM 87501.
[FR Doc. 96-23910 Filed 9-18-96; 8:45 am]
BILLING CODE 6560-50-P
