[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     
------------------------------------------------------------------------
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     
------------------------------------------------------------------------
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).                                                       
------------------------------------------------------------------------

    (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]
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