[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

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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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