[Federal Register Volume 63, Number 183 (Tuesday, September 22, 1998)]
[Rules and Regulations]
[Pages 50531-50534]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-25321]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 271

[FRL-6165-3]


Washington: Final Authorization of State Hazardous Waste 
Management Program Revision

agency: Environmental Protection Agency (EPA).

action: Response to comment and final rule.

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summary: On July 7, 1998, the EPA published a proposed rule (63 FR 
36652) and an immediate final rule (63 FR 36587) to approve a revision 
to the State of Washington hazardous waste management program which 
would give the program jurisdiction over ``non-trust lands'' within the 
exterior boundaries of the Puyallup Indian reservation located in 
Tacoma, Washington. The EPA stated in the immediate final rule that if 
the Agency received adverse written comment it would publish a notice 
withdrawing the immediate final rule before its effective date, and 
then would address comments in a final rule based on the proposed rule. 
Because EPA received an adverse comment, the Agency withdrew the 
immediate final rule in a withdrawal notice published on August 21, 
1998 in the Federal Register (63 FR 44795). The EPA has reviewed and 
analyzed the concerns raised by the comment, and now issues this final 
rule. After consideration of these concerns, EPA is approving the State 
of Washington authorization revision to include non-trust lands within 
the 1873 Survey Area as part of its approved program.

dates: This final rule will become effective on October 22, 1998.

for further information contact: Nina Kocourek, U.S. Environmental 
Protection Agency, Region 10, 1200 Sixth Avenue, WCM-122, Seattle, WA 
98101, Telephone: (206) 553-6502.

supplementary information:

A. Background

    The State of Washington seeks revision of its authorized program to 
include ``non-trust lands'' within the exterior boundaries of the 
Puyallup Indian reservation (hereafter referred to as the ``1873 Survey 
Area'' or ``Survey Area'') pursuant to a settlement agreement finalized 
in 1988 and ratified by Congress in 1989, which allows Washington to 
seek authorization under federal environmental laws for such lands 
after consultation and communication with the Puyallup Tribe. The 
revision requested by Washington in its current application is not a 
result of a change to EPA's rules or regulations, nor is it a result of 
changes to Washington's rules and regulations. Rather, Washington's 
application for revision results from the unique agreements between 
Washington, the United States and the Puyallup Tribe of Indians. A 
complete discussion of the background of the matter addressed by this 
final rule can be found in the immediate final rule located in the 
final rules section of the July 7, 1998 (63 FR 36587) Federal Register.

B. Comment Regarding the Immediate Final Decision

    Reichhold Chemical, Inc. (Reichhold), which has an EPA-issued RCRA 
corrective action permit for it's Tacoma facility, commented that its 
permit and the corrective action process should not be subjected to the 
jurisdictional uncertainties that it believes would result if EPA 
authorizes the revisions to the Washington program. Reichhold wrote 
that it is negotiating with the Puyallup Tribe of Indians (the Tribe) 
and Puyallup International, Inc. concerning the acquisition and/or 
long-term lease of all or a portion of the Reichhold property. 
Reichhold is concerned that transferring jurisdiction authority to the 
State for Reichhold's permit will cause delays and uncertainty should 
the Tribe acquire a fee or leasehold interest in the land. Reichhold 
did not specify what it considers to be ``jurisdictional 
uncertainties.'' They claim that EPA's authorization of the Washington 
program will further delay Reichhold's ability to make the property 
available to the Tribe or any other suitable user for productive use 
consistent with the RCRA program and public health and safety. 
Reichhold requested that EPA withdraw its approval until the issues of 
jurisdiction over the Tribe's activities on Reichhold's property are 
resolved.
    The EPA has reviewed the issues raised by Reichhold, and does not 
find sufficient merit to its objection to withhold approval of this 
authorization revision. Reichhold did not dispute that the State has 
the authority to implement the hazardous waste program on non-trust 
lands pursuant to the agreement and did not assert the state program 
fails to meet the statutory criteria of being equivalent and 
consistent, and providing adequate enforcement. The information 
Reichhold provided did not address how ``jurisdictional uncertainties'' 
will interfere with Washington's ability to properly administer the 
hazardous waste management program at the Reichhold facility in Tacoma.
    The EPA, the State of Washington and the Puyallup Tribe already 
have established a process for working together to address issues of 
jurisdiction under the Settlement Agreement. As part of the process to 
revise the Washington authorization, EPA, the Tribe, and Washington 
consulted on implementation of the programs in a cooperative fashion, 
and EPA expects that the cooperation established in the Settlement 
Agreement and other agreements will continue to provide avenues for 
addressing issues that arise

[[Page 50532]]

in a timely and efficient manner. Specifically, the State and EPA 
developed an addendum to its Memorandum of Agreement (May 1998), which 
includes an agreed upon implementation strategy for how the EPA and 
Ecology will share information and communicate all jurisdictional 
changes within the 1873 Survey Area.
    In addition, the approval in today's document specifically 
addresses an aspect of Reichhold's concerns by clarifying that the 
revised program does not extend to Indian or Indian activities within 
the 1873 Survey Area. EPA will retain jurisdiction over trust lands and 
over Indians and Indian activities on non-trust lands within the Survey 
Area. Should Reichhold transfer ownership of all or a portion of the 
facility to the Tribe, EPA and Washington, in consultation with the 
Tribe, will address any effects in accordance with the May 1998, State 
and EPA Memorandum of Agreement Addendum.

C. Today's Action

    EPA is today taking final action to grant final authorization 
revising the State of Washington's hazardous waste program to include 
non-trust lands within the 1873 Survey Area of the Puyallup Indian 
Reservation, but limiting the authorization so that the revised program 
does not extend to Indian or Indian activities within the 1873 Survey 
Area.
    Washington will implement the revised authorized program in the 
same manner that the program is implemented elsewhere in the State. 
This includes all aspects of the authorized State program such as waste 
designation requirements; generator, transporter, and recycling 
requirements; treatment, storage and disposal (TSD) facility 
requirements; all permitting procedures; corrective action 
requirements; and compliance monitoring, and enforcement procedures. 
EPA will continue to implement and enforce Hazardous and Solid Waste 
Amendments of 1984 (HSWA) provisions for which the State is not 
authorized.
    All permits issued by U.S. EPA Region 10 on non-trust lands within 
the 1873 Survey Area prior to final authorization of this revision will 
continue to be administered by U.S. EPA Region 10 until the issuance or 
reissuance after modification of a State RCRA permit. Upon the 
effective date of the issuance, or reissuance after modification to 
incorporate authorized State requirements, of a State RCRA permit, 
those EPA-issued permit provisions which the State is authorized to 
administer and enforce will expire. HSWA provisions for which the State 
is not authorized will continue in effect under the EPA-issued permit.
    I conclude that Washington's application for a program revision 
meets all of the statutory and regulatory requirements established by 
RCRA. Accordingly, Washington is granted Final Authorization to operate 
its hazardous waste program as revised for the non-trust lands within 
the 1873 Survey Area except over Indians and Indian activities within 
the 1873 Survey Area. Washington now has responsibility for carrying 
out the aspects of the RCRA program described in its revised program 
application, subject to the limitations of the HSWA and excluding from 
its revised program authority over Indians or Indian activities within 
the 1873 Survey Area. Washington also has primary enforcement 
responsibilities for the non-trust lands within the 1873 Survey Area 
except over Indians and Indian activities within the 1873 Survey Area. 
EPA will retain jurisdiction over trust lands and over Indians and 
Indian activities on non-trust lands within the Survey Area. EPA 
retains the right to conduct inspections under section 3007 of RCRA, 42 
U.S.C. 6927, and to take enforcement actions under sections 3008, 3013 
and 7003 of RCRA, 42 U.S.C. sections 6928, 6934 and 6973.

D. Codification in Part 272

    The EPA uses 40 CFR part 272 for codification of the decision to 
authorize Washington's program and for incorporation by reference of 
those provisions of the State's authorized statutes and regulations EPA 
will enforce under sections 3008, 3013 and 7003 of RCRA. Therefore, EPA 
is reserving amendment of 40 CFR part 272, subpart WW, until a later 
date.

E. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub. 
L. 104-4, establishes requirements for Federal agencies to assess the 
effects of certain regulatory actions on state, local, and tribal 
governments and the private sector. Under sections 202 and 205 of the 
UMRA, EPA generally must prepare a written statement of economic and 
regulatory alternatives analyses for proposed and final rules with 
Federal mandates, as defined by the UMRA, 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. The 
section 202 and 205 requirements do not apply to today's action because 
this rule does not contain a Federal mandate that may result in annual 
expenditures of $100 million or more for State, local and/or tribal 
governments in the aggregate, or the private sector. Further, as it 
applies to the State, this action does not impose a Federal 
intergovernmental mandate because UMRA does not include duties arising 
from participation in a voluntary federal program. Today's rule effects 
an administrative change by authorizing the State to implement its 
hazardous waste program in lieu of the Federal RCRA program for the 
non-trust lands within the 1873 Survey Area except over Indians and 
Indian activities within the 1873 Survey Area. To the extent that the 
State's hazardous waste program is more stringent than the Federal 
program, any new requirements imposed on the regulated community apply 
by virtue of state law, not because of any new Federal requirement 
imposed pursuant to today's rule.
    The requirements of section 203 of UMRA also do not apply today's 
action. Before EPA establishes any regulatory requirements that may 
significantly or uniquely affect small governments, including tribal 
governments, section 203 of the UMRA requires EPA to develop a small 
government agency plan. This rule contains no regulatory requirements 
that might significantly or uniquely affect small governments.

F. Certification Under the Regulatory Flexibility Act

    Pursuant to the Regulatory Flexibility Act ( 5 U.S.C. 601, et seq., 
as amended by the Small Business Regulatory Enforcement Fairness Act of 
1996), whenever an agency is required to publish a notice of proposed 
rulemaking under the Administrative Procedure Act or any other statute, 
it must prepare and make available for public comment a regulatory 
flexibility analysis that describes the effect of the rule on small 
entities (i.e., small businesses, small organizations, and small 
governmental jurisdictions). This analysis is not required, however, if 
the agency's administrator certifies that the rule will not have a 
significant economic impact on a substantial number of small entities.
    The EPA has determined that this rule will not have a significant 
economic impact on a substantial number of small entities. Today's rule 
does not impose any federal requirements on regulated entities, whether 
large or small. Instead, today's rule effects an administrative change 
by authorizing the State to implement its hazardous waste program in 
lieu of the Federal RCRA program for the non-trust lands within the 
1873 Survey Area except over Indians and

[[Page 50533]]

Indian activities within the 1873 Survey Area. Today's rule carries out 
Congress' intent under both RCRA and the Settlement Act that states 
should be authorized to implement their own hazardous waste programs as 
long as those programs are equivalent to, and no less stringent than, 
the Federal hazardous waste program. In this case, to the extent that 
the State's hazardous waste program is more stringent than the Federal 
program, any new requirements imposed on the regulated community apply 
by virtue of state law, not because of any new Federal requirement 
imposed pursuant to today's rule.
    Pursuant to the provision at 5 U.S.C. 605(b), the Agency hereby 
certifies that this rule will not have a significant economic impact on 
a substantial number of small entities. This rule, therefore, does not 
require a regulatory flexibility analysis.

G. Submission to Congress and the Comptroller General

    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. The EPA will submit 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 United States 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).

H. 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.

I. Compliance With Executive Order 12875: Enhancing 
Intergovernmental Partnerships

    Under Executive Order 12875, EPA may not issue a regulation that is 
not required by statute and that creates a mandate upon a State, local 
or tribal government, unless the Federal government provides the funds 
necessary to pay the direct compliance costs incurred by those 
governments. If the mandate is unfunded, EPA must provide to the Office 
of Management and Budget a description of the extent of EPA's prior 
consultation with representatives of affected State, local and tribal 
governments, the nature of their concerns, copies of any written 
communications from the governments, and a statement supporting the 
need to issue the regulation. In addition, Executive Order 12875 
requires EPA to develop an effective process permitting elected 
officials and other representatives of State, local and tribal 
governments ``to provide meaningful and timely input in the development 
of regulatory proposals containing significant unfunded mandates.'' 
Today's rule does not impose a mandate upon a State, local or Tribal 
government.
    Today's rule effects an administrative change by authorizing the 
State to implement its hazardous waste program in lieu of the Federal 
RCRA program for the non-trust lands within the 1873 Survey Area except 
over Indians and Indian activities within the Area. As such, the final 
rule is not subject to the requirements of Executive Order 12875.

J. Compliance With Executive Order 13045

    Executive Order 13045 applies to any rule that the Office of 
Management and Budget determines is ``economically significant,'' as 
defined under Executive Order 12866, and where EPA determines the 
environment health or safety risk addressed by the rule has a 
disproportionate effect on children. If the regulatory action meets 
both criteria, the Agency must evaluate the environmental health or 
safety effects of the planned rule on children and explain why the 
planned regulation is preferable to other potentially effective and 
reasonably feasible alternatives considered by the Agency.
    The Agency has determined that the final rule is not a covered 
regulatory action as defined in the Executive Order because it is not 
economically significant and is not a health or safety risk-based 
determination. Today's rule effects an administrative change by 
authorizing the State to implement its hazardous waste program in lieu 
of the Federal RCRA program for the non-trust lands within the 1873 
Survey Area except over Indians and Indian activities within the 1873 
Survey Area. As such, the final rule is not subject to the requirements 
of Executive Order 13045.

K. Executive Order 13084: Consultation and Coordination with Indian 
Tribal Governments

    Under Executive Order 13084, EPA may not issue a regulation that is 
not required by statute, that significantly or uniquely affects the 
communities of Indian tribal governments, and that imposes substantial 
direct compliance costs on those communities, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by the tribal governments. If the mandate is unfunded, 
EPA must provide to the Office of Management and Budget, in a 
separately identified section of the preamble to the rule, a 
description of the extent of EPA's prior consultation with 
representatives of affected tribal governments, a summary of the nature 
of their concerns, and a statement supporting the need to issue the 
regulation. In addition, Executive Order 13084 requires EPA to develop 
an effective process permitting elected and other representatives of 
Indian tribal governments ``to provide meaningful and timely input in 
the development of regulatory policies on matters that significantly or 
uniquely affect their communities.''
    Today's rule does not significantly or uniquely affect the 
communities of Indian tribal governments. The rule specifically grants 
Washington Final Authorization to operate its hazardous waste program 
as revised for the non-trust lands within the 1873 Survey Area except 
over Indians and Indian activities within the 1873 Survey Area. EPA 
will retain jurisdiction over trust lands and over Indians and Indian 
activities on non-trust lands within the Survey Area. Accordingly, the 
requirements of section 3(b) of Executive Order 13084 do not apply to 
this rule.

L. 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.

M. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Pub. L. No. 104-113, section 12(d)(15 U.S.C. 
272), directs EPA to use voluntary consensus standards in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standards bodies. The NTTAA directs EPA 
to

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provide Congress, through OMB, explanations when the Agency decides not 
to use available and applicable voluntary consensus standards.
    This action does not involve technical standards. Therefore, EPA 
did not consider the use of any voluntary standards.

List of Subjects in 40 CFR Part 27

    Environmental protection, Administrative practice and procedure, 
Confidential business information, Hazardous waste, Hazardous waste 
transportation, 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. sections 6912(a), 6926, 6974(b).

    Dated: September 10, 1998.
Chuck Clarke,
Regional Administrator, Region 10.
[FR Doc. 98-25321 Filed 9-21-98; 8:45 am]
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