E8-11648. Utah: Final Authorization of State Hazardous Waste Management Program Revisions

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

The Solid Waste Disposal Act, as amended, commonly referred to as the Resource Conservation and Recovery Act (RCRA), allows the Environmental Protection Agency (EPA) to authorize states to operate their hazardous waste management programs in lieu of the federal program. Utah has applied to EPA for final authorization of the changes to its hazardous waste program under RCRA. EPA has determined that these changes satisfy all requirements needed to qualify for final authorization and is authorizing Utah's changes through this final action.

DATES:

This final authorization will become effective on May 23, 2008.

FOR FURTHER INFORMATION CONTACT:

Carl Daly, Solid and Hazardous Waste Program, EPA Region 8, 1595 Wynkoop Street, Denver, Colorado 80202, [phone], [e-mail].

SUPPLEMENTARY INFORMATION:

A. Why Are Revisions to State Programs Necessary?

States that 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 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 Code of Federal Regulations (CFR) Parts 124, 260 through 266, 268, 270, 273 and 279.

Utah initially received Final Authorization on October 10, 1984, effective October 24, 1984 (49 FR 39683) to implement its base hazardous waste management program. Utah received authorization for revisions to its program on February 21, 1989 (54 FR 7417), effective March 7, 1989; May 23, 1991 (56 FR 23648) and August 6, 1991 (56 FR 37291), both effective July 22, 1991; May 15, 1992 (57 FR 20770), effective July 14, 1992; February 12, 1993 (58 FR 8232) and May 5, 1993 (58 FR 26689), both effective April 13, 1993; October 14, 1994 (59 FR 52084), effective December 13, 1994; May 20, 1997 (62 FR 27501), effective July 21, 1997; January 13, 1999 (64 FR 02144), effective March 15, 1999; October 16, 2000 (65 FR 61109), effective January 16, 2001; May 7, 2002 (67 FR 30599), effective July 7, 2002; and June 11, 2003 (68 FR 34829), effective June 11, 2003.

On September 30, 2003, Utah submitted a complete program revision application, seeking authorization of additional changes to its program in accordance with 40 CFR 271.21. On March 7, 2008, EPA published both an immediate final rule (73 FR 12277) granting Utah final authorization for these revisions to its federally authorized hazardous waste program, along with a companion proposed rule announcing EPA's proposal to grant such a final authorization (73 FR 12340). EPA announced in both notices that the immediate final rule and the proposed rule were subject to a thirty-day public comment period. The public comment period ended on April 7, 2008. Further, EPA stated in both notices that if it received adverse comments on its intent to authorize Utah's program revisions that it would (1) withdraw the immediate final rule; (2) proceed with the proposed rule as the basis for the receipt and evaluation of such comments, and (3) subsequently publish a final determination responding to such comments and announce its final decision as to whether or not to authorize Utah's program revisions. EPA did receive two adverse comments during the public comment period, and on April 23, 2008, EPA published a notice withdrawing the immediate final rule (73 FR 21843).

Today's action responds to the comments EPA received and publishes EPA's final determination granting Utah final authorization of its program revisions. Further background on EPA's immediate final rule and its tentative determination to grant authorization to Utah for its program revisions appears in the aforementioned Federal Register notices. The issues raised by the commenters are summarized and responded to in section B below.

B. What Were the Comments and Responses to EPA's Proposal?

During the public comment period relevant and adverse comments were received from two sources. The comments did not address specific concerns with EPA's approval of the 14 additional RCRA regulatory provisions in Utah's authorized hazardous waste program; rather the comments were general in nature: Opposition to Utah accepting additional hazardous wastes and an allegation that Utah's DSHW provides misleading information to the public. In response to the first commenter who stated that he does “not want Utah to take more hazardous waste than it already has,” EPA notes that authorization of the additional RCRA regulatory provisions specified in the immediate final rule should not impact the amount or type of hazardous waste imported into Utah. The state has already adopted these regulatory provisions into the Utah Hazardous Waste Management Rules at R-315. In addition, the types and quantity of hazardous waste accepted at Treatment, Storage, and Disposal Facilities (TSDFs) in Utah are controlled by their respective RCRA permits issued by the State of Utah, and this authorization will not directly impact the conditions and restrictions in these RCRA permits.

The commenter also states that bringing “low-level radioactive waste into the United States for disposal or storage” sets a bad precedent and that “radioactive waste from Italy * * * should not be accepted in any form or degree.” EPA notes that, in general, this authorization of additional RCRA regulatory provisions does not address radioactive waste. The one regulatory provision approved in this authorization that is related to radioactive waste is the Treatment Variance for Radioactively Contaminated Batteries. This provision, promulgated as a federal regulation on October 7, 2002, requires radioactively contaminated batteries determined to also be hazardous waste because of the heavy metal content of cadmium, mercury, or silver, to be treated with macro-encapsulation and then disposed of in a permitted disposal facility. Prior to this provision, radioactively contaminated batteries were required to be thermally treated or manually segregated to recover the heavy metals. EPA determined that these treatment standards were technically inappropriate for radioactively contaminated cadmium, mercury, and silver batteries. Our review has determined that Utah has adopted an equivalent rule to the federal hazardous waste regulation, specified in 40 CFR 268.40. Therefore, we have determined that there is no basis to deny authorization approval based on these comments.

In response to the second commenter, who expressed concerns regarding the integrity of Utah's DSHW and raised allegations that the DSHW provides misleading information to the public, EPA has no documentation that indicates the Utah DSHW has provided misleading information to the public related to the hazardous waste authorization process. The DSHW has followed the process specified in 40 CFR 271.20 to provide public notice prior to submitting an application for authorization to EPA. In addition, EPA conducts annual reviews of the DSHW's hazardous waste program. The last review was completed at the end of 2007. These reviews evaluate the DSHW's hazardous waste program using 19 program criteria organized under four key program areas: Program management, pollution prevention and hazardous waste minimization, safe waste management, and corrective action. EPA's program management review of the DSHW includes the following criteria: Adoption and authorization of federal rules, resources and skill mix, training program, data timeliness, accuracy and completeness, and records management. EPA notes that, for 2007, Utah met or exceeded the standards for all 19 program criteria. Therefore, we have determined that there is no basis to deny authorization approval based on these comments.

C. What Decisions Have We Made in This Rule?

Based on EPA's response to public comments, the Agency has determined that approval of Utah's RCRA program revisions should proceed. EPA has made a final determination that Utah's application to revise its authorized program meets all of the statutory and regulatory requirements established by RCRA. Therefore, we grant Utah final authorization to operate its hazardous waste program with the changes described in the authorization application. Utah has responsibility for permitting TSDFs within its borders, except in Indian country as that term is defined at 18 U.S.C. 1151, 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 Utah, including issuing permits, until Utah is authorized to do so. For further background on the scope and effect of today's action to approve Utah's RCRA program revisions, please refer to the preambles of EPA's March 7, 2008 proposed and immediate final rules at 73 FR 12340 and 73 FR 12277, respectively.

D. Statutory and Executive Order Reviews

The Office of Management and Budget has exempted this action from the requirements of Executive Order 12866, “Regulatory Planning and Review” (58 FR 51735, October 4, 1993), and, therefore, this action is not subject to review by OMB. This action authorizes state requirements for the purpose of RCRA 3006 and imposes no additional requirements beyond those imposed by state law. 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 action authorizes pre-existing requirements under state law 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 (Pub. L. 104-4). For the same reason, this action also does not significantly or uniquely affect the communities of Tribal governments, as specified by Executive Order 13175, “Consultation and Coordination With Indian Tribal Governments” (65 FR 67249, November 9, 2000). 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, “Federalism” (64 FR 43255, August 10, 1999), because it merely authorizes state requirements as part of the state RCRA hazardous waste program without altering the relationship or the distribution of power and responsibilities established by RCRA. This action also is not subject to Executive Order 13045, “Protection of Children From Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant and it does not make decisions based on environmental health or safety risks. This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001), because it is not a significant regulatory action under Executive Order 12866.

Under RCRA 3006(b), EPA grants a state's application for authorization 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 authorization 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 note) do not apply. As required by section 3 of Executive Order 12988, “Civil Justice Reform” (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. EPA has complied with Executive Order 12630, “Governmental Actions and Interference with Constitutionally Protected Property Rights” (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. This 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.).

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. EPA will submit a report containing this document and other required information to the U.S. Senate, the U.S. House of Representatives, and 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 May 23, 2008.

List of Subjects in 40 CFR Part 271

• Environmental protection
• Administrative practice and procedure
• Confidential business information
• Hazardous waste
• Hazardous waste transportation
• Incorporation-by-reference
• Indian lands
• Intergovernmental relations
• Penalties
• Reporting and recordkeeping requirements

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: May 12, 2008.

Carol Rushin,

Acting Regional Administrator, Region 8.