[Federal Register Volume 60, Number 14 (Monday, January 23, 1995)]
[Rules and Regulations]
[Pages 4380-4382]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-1645]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 271
[FRL-5142-2]
Louisiana; Final Authorization of State Hazardous Waste
Management Program Revisions
AGENCY: Environmental Protection Agency.
ACTION: Review of immediate final rule; response to public comments.
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SUMMARY: The State of Louisiana applied for final authorization of
revisions to its hazardous waste program under the Resource
Conservation and Recovery Act (RCRA). The Environmental Protection
Agency (EPA) reviewed the Louisiana Department of Environmental
Quality's (LDEQ) application and made a decision, subject to public
review and comment, that Louisiana's hazardous waste program revision
satisfied all of the requirements necessary to qualify for final
authorization of many of the provisions of the Hazardous and Solid
Waste Amendments of 1984 (HSWA) to RCRA. As such, EPA published an
Immediate Final Rule on November 7, 1994, for a 45-day public review
and comment period.
During the public comment period, EPA received comments from three
commentors opposed to the Agency granting authorization to Louisiana
for this program revision, which includes corrective action. Two
commentors expressed concern about LDEQ having adequate resources and
the will to enforce RCRA regulations, based on its handling of reported
violations at Bayou Steel Corporation (Bayou Steel), LaPlace,
Louisiana. The third commentor raised concerns about LDEQ's current
appeal scheme and position on public participation in settlements.
Today's publication is EPA's response to the comments received
regarding this program revision authorization, which contains most
rules referred to by EPA as HSWA Cluster I.
DATES: This response to the public comments received regarding final
authorization for Louisiana affirms the immediate final decision
previously published and notifies the public that the final
authorization shall be effective on January 23, 1995.
FOR FURTHER INFORMATION CONTACT: Dick Thomas, Region 6 Authorization
Coordinator, Grants and Authorization Section, RCRA Programs Branch,
U.S. EPA Region 6, First Interstate Bank [[Page 4381]] Tower at
Fountain Place, 1445 Ross Avenue, Dallas, Texas 75202, phone (214) 665-
8528.
SUPPLEMENTARY INFORMATION:
Response to Public Comments
Two commentors stated that LDEQ consistently and repeatedly ignored
complaints regarding violations of RCRA and other environmental laws at
Bayou Steel. One supplied LDEQ with an independent environmental audit
report of conditions at Bayou Steel to support both commentors' claims,
and believed LDEQ's lack of enforcement response to those and other
complaints demonstrated the State's inability to take on additional
program revisions, and unwillingness to appropriately address
complaints. Also, the commentors questioned if LDEQ had adequate
resources to enforce the RCRA corrective action provisions in this
program revision. The incidents the commentors listed do not
specifically refer to laws and regulations that are a part of this
final authorization, but refer to RCRA or HSWA laws and regulations.
EPA reviewed the commentors' assertions and LDEQ's actions
regarding complaints about Bayou Steel. EPA noted LDEQ's files
contained numerous complaints regarding Bayou Steel activities,
including those from the commentors. The files showed LDEQ initiated
investigations to address all but one complaint within seven days of
receipt, and in that instance the investigation was initiated within
seven days of a records review. State records further revealed that
while LDEQ investigated all Bayou Steel complaints in an appropriate
and timely manner, including those from the commentors, all were
unfounded. LDEQ's inspection reports, the State's only written response
to complaints, were in permanent files and available for public review.
Copies of requested portions of these files were available to the
public upon written request.
The State's records also showed the various divisions of LDEQ
conducted twenty-nine inspections at Bayou Steel since 1993. Some
resulted in enforcement actions, including penalties, for the
facility's violations of Louisiana's hazardous waste regulations.
However, all violations were found during State-initiated inspections
that occurred prior to LDEQ receiving complaints about the facility.
Also, EPA remained convinced LDEQ has adequate resources to take on
the additional portions of RCRA included in this program revision. As
noted above, various divisions of LDEQ initiated many inspections at
Bayou Steel since 1993, dedicating significant resources to them. These
inspections, covering all media, were in addition to inspections and
investigations performed by LDEQ at other facilities in the State.
Because of the number and variety of complaints LDEQ received regarding
Bayou Steel, the State requested EPA use its extensive resources and
experience to perform a complete multi-media facility inspection. EPA
considered this an entirely appropriate response based on the
complaints and LDEQ's prior inspection findings. EPA initiated the
Bayou Steel multi-media inspection in June 1994, and is compiling the
results. In large measure, EPA's inspection findings at the facility
agreed with LDEQ's.
Additionally, some complaints to the State alleged violations of
Solid Waste Management Units (SWMU) or involved corrective action
proceedings at Bayou Steel. During the time LDEQ inspected the
facility, EPA had not authorized the State to regulate or address SWMUs
or corrective action in lieu of the Agency. This lack of authority also
triggered LDEQ's request to EPA for a Bayou Steel multi-media
inspection.
The third commentor expressed concern about the appeal procedures
and public participation rights of LDEQ's hazardous waste permitting
program. The commentor asserted that LDEQ's Program Description (PD)
for this program revision, obtained via a Freedom of Information Act
request for documents, did not adequately describe the current State
appellate review procedures.
EPA revisited the State's PD submitted with this program revision
and determined it agreed with the commentor. As a result, EPA requested
LDEQ to revise its PD so it more accurately reflected the State's
current statutes regarding appeal procedures. LDEQ provided EPA with a
revised PD that addressed these concerns.
The commentor also raised concerns about Louisiana's de novo review
provisions of hazardous waste permitting decisions. The commentor
asserted that the de novo review provisions could allow the District
Court to become the permitting authority in Louisiana, and cited the
case of Pardue v. Stevens, 558 So.2d 1149 (La.App.1 Cir. 1989) to
support the concern. The Pardue court noted in its decision that a
trial de novo in a judicial proceeding meant a trial anew, or from the
beginning. Thus, in a trial de novo of an administrative proceeding,
the Appellate Court could make its own factual determinations, exercise
its own discretion, and substitute its judgment for that of the
administrative agency. The Appellate Court could act as the court or
agency of original jurisdiction and the entire case would be open for
decision.
EPA interpreted Louisiana's de novo provisions as allowing a
District Court judge the right of review of the record only. EPA
considered Louisiana's ``de novo review'' provision to not be the same
as ``trial de novo'' (new trial), and under the de novo review the
reviewing court can exercise only appellate jurisdiction (review of the
record). The Louisiana legislature enacted laws that mandate the
Secretary of LDEQ to grant or deny permits, not the judiciary.
Louisiana Revised Statutes, (R.S.) Sec. 30:2011(D)(2) provides: The
Secretary shall have the following powers and duties: to grant or deny
permits, licenses, * * * as are provided for in this Subtitle.
Additionally, R.S. Sec. 30:2014(A) provides, in part, that the
Secretary shall act as the primary public trustee of the environment,
and shall consider and follow the will and intent of the Louisiana
Constitution and Louisiana statutory law in making any determination
relative to the granting or denying of permits, * * * authorized by
this Subtitle. This matter is also clarified in LDEQ's revised PD,
which refers to the review as a de novo review of the record.
Another concern raised by the commentor was the right of citizens
to appeal Louisiana hazardous waste permitting decisions. The commentor
asserted that although LDEQ represented in the PD submitted with this
program revision that any person aggrieved by a final permitting
decision could appeal to the Court of Appeal for relief, it has taken
contrary positions when its decisions were appealed. The commentor
alleged LDEQ argued the courts only have jurisdiction to review its
decisions where the decision resulted from an LDEQ mandatory
adjudicatory hearing. Only commercial hazardous waste permits are
issued after a mandatory adjudicatory hearing. Thus, none of LDEQ's
hazardous waste permitting decisions, with the possible exception of
commercial transporter, storage, or disposal facility permits, would be
subject to judicial review. However, EPA considered this issue resolved
by the Louisiana Supreme Court in Matter of American Waste and
Pollution Control Co, where the Court ruled that LDEQ decisions are
appealable whether or not they result from a mandatory adjudicatory
hearing.
The commentor also expressed concern about LDEQ's being required to
provide assurance that it will provide an opportunity for public notice
and comment on settlements of civil [[Page 4382]] enforcement actions.
EPA determined LDEQ has a policy of public noticing settlement
agreements and soliciting public comment. LDEQ assured EPA it will
maintain this policy and included a restatement of its position in the
revised PD.
EPA notes that even as LDEQ becomes authorized for additional RCRA
provisions, the Agency will continue to be actively involved in
Louisiana's hazardous waste program. EPA retains oversight authority of
the delegated program and complete Federal authority over many
regulations under HSWA. In addition, EPA retains Federal enforcement
authority under RCRA sections 3008, 7003, and 7013.
For almost ten years, EPA and LDEQ have worked closely to address
environmental issues in Louisiana. During that time, LDEQ has
demonstrated its desire and ability to respond to citizen complaints
and concerns about the environment. Further, prior to EPA authorizing
Louisiana for the HSWA provisions in this approval, the State
demonstrated it had the capability to administer a hazardous waste
program that could implement the proposed authorization, as well as
effectively implement its currently authorized program. In the spirit
of authorization, LDEQ and EPA will monitor and review Louisiana's
hazardous waste program to ensure it remains consistent with,
equivalent to, and as stringent as the Federal requirements.
EPA will continue its involvement and presence in the
implementation and enforcement of LDEQ's hazardous waste program until
such time in the future that the State is fully authorized for all
applicable Federal laws and regulations, and continuously demonstrates
the capability to implement the program to the satisfaction of EPA.
Even then, EPA will retain the authority to enforce against violators,
even in an authorized State, under RCRA sections 3008, 7003, and 7013.
EPA has reevaluated its decision to approve this final
authorization for the State's hazardous waste program and all
documentation, including the authorization application with revised PD,
and several EPA mid-year and end-of-year evaluation reports on LDEQ.
Additionally, EPA considered the LDEQ HSWA capability assessment, and
the State/EPA corrective action plan to resolve any Agency concerns in
it. EPA hereby affirms its decision to approve this final
authorization. This authorization is effective January 23, 1995.
Dated: January 13, 1995.
Barbara J. Goetz,
Acting Regional Administrator.
[FR Doc. 95-1645 Filed 1-20-95; 8:45 am]
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