[Federal Register Volume 61, Number 247 (Monday, December 23, 1996)]
[Rules and Regulations]
[Pages 67474-67476]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-32090]
[[Page 67474]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR PART 271
[FRL-5666-8]
New Mexico: Final Authorization of State Hazardous Waste
Management Program Revisions
AGENCY: Environmental Protection Agency (EPA).
ACTION: Immediate final rule.
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SUMMARY: The State of New Mexico has applied for authorization to
revise its hazardous waste program under the Resource Conservation and
Recovery Act (RCRA). The EPA reviewed New Mexico's application and
determined that its hazardous waste program revision satisfies all of
the requirements necessary to qualify for authorization. Unless adverse
written comments are received during the review and comment period
provided for public participation in this process, the EPA intends to
approve the New Mexico's hazardous waste program revision subject to
the authority retained by the EPA in accordance with Hazardous and
Solid Waste Amendments of 1984 (HSWA). New Mexico's application for the
program revision is available for public review and comment.
DATES: This authorization for New Mexico shall be effective March 10,
1997 unless EPA publishes a prior Federal Register (FR) action
withdrawing this Immediate Final Rule. All comments on New Mexico's
program revision application must be received by the close of business
February 6, 1997.
ADDRESSES: Copies of the New Mexico program revision application and
the materials which EPA used in evaluating the revision are available
for inspection and copying from 8:30 a.m. to 4 p.m. Monday through
Friday at the following addresses: New Mexico Environment Department,
1190 St Francis Drive, Santa Fe, New Mexico 87502, phone (505) 827-1558
and EPA, Region 6 Library, 12th Floor, First Interstate Bank Tower at
Fountain Place, 1445 Ross Avenue, Dallas, Texas 75202-2733, phone (214)
665-6444. Written comments, referring to Docket Number NM-96-1, should
be sent to Alima Patterson, Region 6 Authorization Coordinator, Grants
and Authorization Section (6PD-G), Multimedia Planning and Permitting
Division, EPA Region 6, First Interstate Bank Tower at Fountain Place,
1445 Ross Avenue, Dallas, Texas 75202-2733, Phone number: (214) 665-
8533.
FOR FURTHER INFORMATION CONTACT: Alima Patterson, Region 6
Authorization Coordinator, Grants and Authorization Section (6PD-G),
Multimedia Planning and Permitting Division, EPA Region 6, First
Interstate Bank Tower at Fountain Place, 1445 Ross Avenue, Dallas,
Texas 75202-2733, Phone number: (214) 665-8533.
SUPPLEMENTARY INFORMATION:
A. Background
States authorized under section 3006(b) of RCRA, 42 U.S.C. 6926(b),
have a continuing obligation to maintain a hazardous waste program that
is equivalent to, consistent with, and no less stringent than the
Federal hazardous waste program. Revisions to State hazardous waste
programs are necessary when Federal or State statutory or regulatory
authority is modified or when certain other changes occur. Most
commonly, State program revisions are necessitated by changes to the
EPA's regulations in 40 Code of Federal Regulations (CFR) parts 124,
260-262, 263, 264, 265, 266, 268, and 270.
B. New Mexico
The State of New Mexico received authorization January 25, 1985,
(50 FR 1515) to implement its base hazardous waste management program.
New Mexico received authorization for revisions to its program on April
10, 1990 (55 FR 4604), July 25, 1990 (55 FR 28397), December 4, 1992
(57 FR 45717), August 23, 1994 (59 FR 29734), December 21, 1994 (59 FR
51122), (60 FR 20238) July 10, 1995 and (61 FR 2450) January 2, 1996.
The authorized New Mexico RCRA program was incorporated by reference to
the CFR, effective December 13, 1993 (58 FR 52677) and November 18,
1996 (61 FR 49266). On September 16, 1996, New Mexico submitted a final
complete program revision application for additional program approvals.
Today, New Mexico is seeking approval of its program revision in
accordance with 40 CFR 271.21(b)(3).
On September 27, 1995, New Mexico promulgated 20 New Mexico
Administrative Code (NMAC) 4.1 which adopts the July 1, 1994, version
of 40 CFR part 261. Specifically, 20 NMAC 4.1, incorporates by
reference 40 CFR part 261 at 20 NMAC 4.1.200. This is the version that
is referred to in the Attorney General's Statement submitted with this
program revision. The 20 NMAC 4.1. became effective on November 1,
1995. The 20 NMAC 4.1.200 is inclusive of the identification and
listing amendments to 40 CFR part 261 promulgated January 4, 1994 at 59
FR 458. New Mexico Statutes Annotated (NMSA) 1978, Secs. 74-4-4A(1) and
74-4-4E (Replacement Pamphlet 1993) provides New Mexico with authority
to adopt federal regulations by reference including the sections on
identification and listing.
The EPA reviewed New Mexico's application and made an immediate
final decision that New Mexico's hazardous waste program revision
satisfies all of the requirements necessary to qualify for
authorization. Consequently, the EPA intends to grant authorization for
the additional program modifications to New Mexico. The public may
submit written comments on EPA's proposed final decision until February
6, 1997. Copies of New Mexico's application for program revision are
available for inspection and copying at the locations indicated in the
ADDRESSES section of this notice.
Approval of New Mexico's program revision shall become effective 75
days from the date this notice is published, unless an adverse written
comment pertaining to the State's revision discussed in this notice is
received by the end of the comment period. If an adverse written
comment is received, the EPA will publish either (1) A withdrawal of
the immediate final decision, or (2) a notice containing a response to
the comment that either affirms that the immediate final decision takes
effect or reverses the decision.
New Mexico's program revision application includes State regulatory
changes that are equivalent to the rules promulgated in the Federal
RCRA implementing regulations in 40 CFR parts 124, 260-263, 264, 265,
266, and 270 that were published in the FR through June 30, 1994. This
proposed approval includes the provisions that are listed in the chart
below. This chart also lists the State analogs that are being
recognized as equivalent to the appropriate Federal requirements.
[[Page 67475]]
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Federal citation State analog
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1. Requirements for Preparation, New Mexico Statutes Annotated
Adoption, and Submittal of (NMSA) 1978, Secs. 74-4-4A
Implementation Plans, [58 FR 38816] and 74-4-4E (Replacement
July 20, 1993. (Checklist 125). Pamphlet 1993); Hazardous
Waste Management, New Mexico
Environmental Improvement
Board, 20 New Mexico
Administrative Code (NMAC)
4.1.101, Subparts I, and VII,
.101, .102 and 700 as amended
November 1, 1995, effective
November 1, 1995.
2. Testing and Monitoring Activities, NMSA 1978, Secs. 74-4-4A(1)
[58 FR 46040] August 31, 1993. and 74-4-4E (Repl. Pamp.
(Checklist 126). 1993); 20 NMAC 4.1.101
Subparts I, II, V, VI, VIII,
and IX, .102, .200, .500, 501,
.600, .601, .800, and .900, as
amended November 1, 1995,
effective November 1, 1995.
3. Hazardous Waste Management Systems; NMSA 1978, Secs. 74-4-4A(1)
Identification and Listing of and 74-4-4E (Repl. Pamp.
Hazardous Waste from Wood Surface 1993); 20 NMAC 4.1.101, .102,
Protection, [59 FR 458] January 4, Subparts I, and II, .101, and
1994. (Checklist 128). .200, as amended September 23,
1994, effective November 1,
1995.
4. Recording Instructions, [59 FR NMSA 1978, Secs. 74-4-4A and
13891] March 24, 1994. (Checklist 131). 74-4-4E (Repl. Pamp. 1993); 20
NMAC 4.1.500, Subparts V, and
VI, .501, .600 and .601, as
amended November 1, 1995,
effective November 1, 1995.
5. Hazardous Waste Management System; NMSA 1978, Secs. 74-4-4A(1)
Identification and Listing of and 74-4-4E (Repl. Pamp.
Hazardous Wastes; Wastes from Wood 1993); 20 NMAC 4.1.101, .102,
Surface Protection; Correction, [59 FR Subpart I, as amended November
28484] June 2, 1994. (Checklist 132). 1, 1995, effective November
23, 1995.
6. Hazardous Waste Management System; NMSA 1978, Secs. 74-4-4A and
Correction of Listing of P015- 74-4-4E (Repl. Pamp. 1993); 20
Beryllium Powder, [59 FR 31551] June NMAC 4.1.800, Subparts II, and
20, 1994. (Checklist 134). VIII, .200, as amended
November 1, 1995, effective
November 1, 1995.
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New Mexico is not authorized to operate the Federal program on
Indian lands. This authority remains with EPA.
C. Decision
I conclude that New Mexico's application for a program revision
meets the statutory and regulatory requirements established by RCRA.
Accordingly, New Mexico is granted authorization to operate its
hazardous waste program as revised. New Mexico now has responsibility
for permitting treatment, storage, and disposal facilities within its
borders and for carrying out the aspects of the RCRA program described
in its revised program application, subject to the limitations of the
HSWA. New Mexico also has primary enforcement responsibilities,
although EPA retains the right to conduct inspections under section
3007 of RCRA, and to take enforcement actions under sections 3008,
3013, and 7003 of RCRA.
D. Codification in Part 272
The EPA uses 40 CFR part 272 for codification of the decision to
authorize New Mexico's program and for incorporation by reference of
those provisions of New Mexico's Statutes and regulations that the EPA
will enforce under section 3008, 3013, and 7003 of RCRA. Therefore, the
EPA is reserving amendment of 40 CFR part 272, subpart GG until a later
date.
Compliance With Executive Order 12866
The Office of Management and Budget has exempted this rule from the
requirements of Section 3 of Executive Order 12866.
Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), P. L.
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, the
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 the 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 the 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 EPA 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 the EPA regulatory proposals with
significant Federal intergovernmental mandates, and informing,
educating, and advising small governments on compliance with the
regulatory requirements.
The EPA 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's 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 the EPA.
The EPA 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 EPA does not anticipate that the approval of New
Mexico's hazardous waste program
[[Page 67476]]
referenced in today's notice will result in annual costs of $100
million or more. The EPA'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 now administer the program in
lieu of the EPA 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 EPA 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 EPA 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 and underground storage
tanks under the approved State program, the in lieu of the Federal
program.
Certification Under the Regulatory Flexibility Act
The EPA has determined that this authorization will not have a
significant economic impact on a substantial number of small entities.
The EPA 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 EPA 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) of the Administrative Procedures Act
(APA) as amended by the Small Business Regulatory Enforcement Fairness
Act of 1996, the EPA 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) of the
APA as amended.
List of Subjects in 40 CFR Part 271
Environmental protection, Administrative practice and procedure,
Confidential business information, Hazardous materials transportation,
Hazardous waste, Indian lands, Intergovernmental relations, Penalties,
Reporting and recordkeeping requirements, Water pollution control,
Water supply.
Authority
This notice 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: December 11, 1996.
Myron O. Knudson,
Acting Regional Administrator.
[FR Doc. 96-32090 Filed 12-20-96; 8:45 am]
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