[Federal Register Volume 64, Number 90 (Tuesday, May 11, 1999)]
[Proposed Rules]
[Pages 25258-25260]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-11710]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 271

[FRL-6339-2]


New Jersey: Authorization of State Hazardous Waste Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: Pursuant to the Resource Conservation and Recovery Act, as 
amended, 42 U.S.C. 6901 et seq. (``RCRA''), and the regulations 
thereunder, the State of New Jersey (the ``State'') has applied for 
final authorization of its hazardous waste program adopted in October 
1996. The Environmental Protection Agency, Region 2 (``EPA'') has 
reviewed the State's application and has made a decision, subject to 
EPA's receipt and evaluation of public comment, that the State's 
hazardous waste program satisfies all of the requirements necessary to 
qualify for final authorization. Accordingly, EPA proposes to approve 
and authorize the State's hazardous waste program.

DATES: Comments on this proposed rule must be received by the close of 
business on June 10, 1999.

ADDRESSES: Written comments should be sent to Ms. Kathleen C. Callahan, 
Director, Division of Environmental Planning and Protection, U.S. EPA, 
Region II, 290 Broadway, New York, New York 10007-1866, (212) 637-3724.
    Copies of the State's application for authorization are available 
for inspection and copying as follows:

The New Jersey Department of Environmental Protection (``NJDEP'')
    Address: Public Access Center, NJDEP, 401 East State Street, 1st 
Floor, Trenton, NJ 08625
    Hours: Monday through Friday (excluding holidays), 8:30AM-1:00PM, 
2:00PM-4:30PM
    Telephone: (609) 777-3373

EPA
    Address: EPA's Library, 16th Floor, 290 Broadway, New York, NY 
10007-1866
    Hours: Monday through Thursday (excluding holidays), 9:00AM-4:30PM, 
Friday (excluding holidays), 9:00AM-1:00PM
    Telephone: (212) 637-3185

FOR FURTHER INFORMATION CONTACT: Call Elizabeth Butler at (212) 637-
4163.

Summary

I. State Authorization Under RCRA

    Pursuant to section 3006 of RCRA, 42 U.S.C. 6926, EPA may, upon 
application by a state, authorize the applicant state's hazardous waste 
program to operate in the state in lieu of the federal hazardous waste 
program. The federal hazardous waste program (the ``Federal Program'') 
is comprised of the regulations published in Title 40 of the Code of 
Federal Regulations under the authority of RCRA. To qualify for final 
authorization, a state's hazardous waste program must: (1) be 
equivalent with the Federal Program; (2) be consistent with the Federal 
Program; and (3) provide for adequate enforcement. RCRA section 
3006(b), 42 U.S.C. 6926(b).

II. Background--History of RCRA Authorization Within the State

    In 1985, the State was granted final authorization by EPA for the 
RCRA base program, effective February 21, 1985 (50 FR 5260, 2/7/85). At 
that time the base program covered the essential core of the Federal 
Program as reflected in the initial enactment of RCRA prior to its 
amendment by the Hazardous and Solid Waste Amendments of 1984. In 1988 
and 1993 EPA authorized the State for a small number of additional 
regulations (53 FR 30054, 8/10/88, and 58 FR 59370, 11/9/93).
    On October 21, 1996, the State repealed its then existing hazardous 
waste program, including the authorized provisions, and adopted a new 
program (N.J.A.C. 7:26G-1.1 et seq., 28 New Jersey Register 4606, 10/
21/96). As part of this October 21, 1996 adoption, the State adopted, 
with certain exceptions and modifications, 40 CFR parts 124, 260-266, 
268 and 270 as set forth in the July 1, 1993 CFR, by incorporation by 
reference, and designated these provisions N.J.A.C. 7:26G-4 through 
N.J.A.C. 7:26G-13, inclusive. (28 New Jersey Register 4652-4668, 10/21/
96. N.J.A.C. 7:26G-4 through N.J.A.C. 7:26G-13 are referred to below as 
the ``State Program''). Under cover of a letter dated January 13, 1999, 
the State submitted an application meeting the requirements of 40 CFR 
part 271, requesting authorization of the State Program.1
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    \1\ The State's redesignation of the Parts of the Federal 
Program adopted by incorporation by reference on October 21, 1996, 
and comprising the State Program, is as follows: N.J.A.C. 7:26G-4 
(40 CFR part 260); N.J.A.C. 7:26G-5 (40 CFR part 261); N.J.A.C. 
7:26G-6 (40 CFR part 262); N.J.A.C. 7:26G-7 (40 CFR part 263); 
N.J.A.C. 7:26G-8 (40 CFR part 264); N.J.A.C. 7:26G-9 (40 CFR part 
265); N.J.A.C. 7:26G-10 (40 CFR part 266); N.J.A.C. 7:26G-11 (40 CFR 
part 268); N.J.A.C. 7:26G-12 (40 CFR part 270); and N.J.A.C. 7:26G-
13 (40 CFR part 124).

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[[Page 25259]]

III. Decision

A. Proposed Authorization
    EPA has reviewed the State's application and has determined that 
the State Program, with limited exceptions, possesses the requisite 
equivalence and consistency with the Federal Program. Furthermore, the 
State's application indicates that the State possesses the necessary 
enforcement resources and is prepared to utilize those resources to 
provide adequate enforcement of the State Program. Accordingly, EPA has 
determined that the State Program qualifies for authorization and is 
proposing today, subject to public comment, to authorize the State 
Program, with the exceptions noted below.
    In several instances the State has not incorporated a federal 
regulation by reference and has not adopted a substitute regulation. 
These instances are all clearly indicated in the State's October 21, 
1996 adoption. None of these omitted federal regulations, however, are 
required to be adopted for authorization, for various reasons 
including, for example, that they are not applicable or delegable to 
states. Thus, the State's failure to either adopt these particular 
federal regulations, or to adopt substitute regulations, in no way 
impairs the equivalence or consistency of the State Program.
    EPA notes that its determination to authorize the State Program is 
based on the information submitted to EPA by the State. If, after 
public comment, EPA authorizes the State Program, should the criteria 
upon which EPA bases its approval subsequently change for any reason, 
including without limitation changes in State laws, regulations or 
administrative procedures which negate the equivalency or consistency 
of one or more provisions of the State Program, or in any way limit the 
State's ability to enforce or properly administer the State Program, 
EPA may revisit its approval. In such event, EPA may exercise its 
authority, provided in 40 CFR 271.22, to afford the State an 
opportunity to correct any program deficiencies, or EPA may withdraw 
authorization of the State Program, in whole or in part. Furthermore, 
ultimate authorization of the State Program by EPA shall not be deemed 
in any way as a waiver by EPA of any of its statutory rights under RCRA 
including but not limited to sections 3004(v), 3005(c)(3), 3007, 3008, 
3013, 3020(c) and 7003 (42 U.S.C. 6924(v), 6925(c)(3), 6927, 6928, 
6934, 6939b(c) and 6973 ).
B. Exceptions
    In N.J.A.C. 7:26G-8.1(a), the State incorporates by reference 40 
CFR part 264 , the part of the Federal Program fixing the standards for 
the owners and operators of hazardous waste treatment, storage and 
disposal facilities. In the remaining subparagraphs of 7:26G-8.1 [(b) 
through (h)] the State neither omits 40 CFR 264.101, 264.552 and 
264.553, nor adopts these federal regulations with modifications. Thus, 
the State has adopted 40 CFR 264.101, 264.552 and 264.553 by means of 
incorporation by reference through 7:26G-8.1(a). The above three 
sections of the Federal Program are the sections implementing the 
corrective action provisions of RCRA, which provisions were 
incorporated into RCRA upon the enactment of the Hazardous and Solid 
Waste Amendments of 1984. The State, despite its adoption of 40 CFR 
264.101, 264.552 and 264.553, informed EPA in its application that it 
was not applying for authorization for corrective action at this time, 
and would apply for corrective action authorization under a separate 
application in the future. Accordingly, while EPA is today proposing to 
authorize N.J.A.C. 7:26G-8.1(a), EPA is not proposing to authorize the 
State for corrective action at this time, and 40 CFR 264.101, 264.552 
and 264.553 shall remain in full force and effect. Consequently, until 
the State is authorized for corrective action, EPA shall continue to 
issue corrective action permits within the State.
    In N.J.A.C. 7:26G-12.1(a), the State incorporates by reference 40 
CFR 270.73(a) and (b). The State, however, does not incorporate by 
reference 40 CFR 270.73(c)-(g). Rather, the State replaces these 
subparagraphs of 40 CFR 270.73 with 7:26G-12.1(c)(16). Title 40 CFR 
270.73 is the regulation in the Federal Program governing the loss of 
interim status (RCRA section 3005(c)(2)(C) and (e)(2)(3), 42 U.S.C. 
6925(c)(2)(C) and (e)(2)(3)). N.J.A.C. 7:26G-12.1(c)(16) provides that 
the State may terminate interim status at its discretion, under a 
variety of circumstances subject to a hearing, if requested. By 
contrast, the federal loss of interim status regulations, excluded by 
the State and replaced by 7:26G-12.1(c)(16), are non-discretionary and 
operate automatically, without the opportunity for a hearing, if the 
requirements cited in these federal provisions are not met. Since 
7:26G-12.1(c)(16) is discretionary and lacks automatic application, it 
is not equivalent to 40 CFR 270.73(c)-(g), is less stringent than 40 
CFR 270.73(c)-(g), and therefore, cannot be authorized. Consequently, 
EPA is not proposing to authorize the State for N.J.A.C. 7:26G-
12.1(c)(16), and 40 CFR 270.73(c)-(g) shall remain in full force and 
effect.

IV. Regulatory Requirements

A. Unfunded Mandates Reform Act
    Title II of the Unfunded Mandates Reform Act of 1995 (``UMRA''), 
Public Law 104-4, establishes requirements for federal agencies to 
assess the effects of certain regulatory actions on state, local, and 
tribal governments, and upon the private sector. Under section 202 of 
UMRA, EPA must prepare a budgetary impact statement to accompany any 
proposed or final rule that includes a federal mandate that may result 
in estimated costs to state or local governments in the aggregate, or 
to the private sector, of $100 million or more. EPA has determined that 
today's proposed rule does not include a federal mandate that may 
result in estimated costs of $100 million or more to either state or 
local governments in the aggregate, or to the private sector. This 
federal action approves preexisting requirements of State law, and 
imposes no new requirements. Accordingly, no additional costs to State 
or local governments, or to the private sector, result from this 
action.
    UMRA, section 203, further provides that before EPA establishes any 
regulatory requirements that may significantly or uniquely affect small 
governments it must develop a small government agency plan. The plan 
must provide for notifying potentially affected small governments, 
enabling officials of such governments to have meaningful and timely 
input in the development of EPA regulatory proposals with significant 
federal intergovernmental mandates, and informing, educating, and 
advising small governments on compliance with the regulatory 
requirements. Like section 202, the requirements of section 203 of UMRA 
do not apply to today's proposed rule, since this rule contains no 
regulatory requirements that might significantly or uniquely affect 
small governments. Although small governments may be hazardous waste 
generators, transporters, or own and/or operate treatment, storage or 
disposal facilities, they are already subject to the regulatory 
requirements under existing State law which are proposed to be 
authorized by EPA, and thus, are not subject to any additional 
significant or unique requirements by virtue of today's proposed 
authorization of the State Program.

[[Page 25260]]

B. 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 rulemaking 
for any proposed or final rule, 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 
unnecessary, however, if the agency's administrator certifies that the 
rule will not have a significant economic impact on a substantial 
number of small entities.
    EPA has determined that today's proposed rule will not have a 
significant economic impact on a substantial number of small entities. 
Such small entities which are hazardous waste generators, transporters, 
or which own and/or operate treatment, storage or disposal facilities 
are already subject to the regulatory requirements of existing State 
law which EPA proposes to authorize. EPA's proposed authorization 
therefore, will not add any burdens, since authorization will result 
only in an administrative change, rather than a change in the 
substantive requirements imposed on these small entities.
    Accordingly, pursuant to 5 U.S.C. 605(b), I hereby certify that 
authorization of the State Program will not have a significant economic 
impact on a substantial number of small entities. This authorization 
approves regulatory requirements under existing State law to which 
small entities are already subject. It does not impose any new burdens 
on small entities. This rule, therefore, does not require a regulatory 
flexibility analysis.
C. 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 or final rule. Authorization of the 
State Program will not impose any additional information requirements 
upon the regulated community.
D. National Technology Transfer and Advancement Act
    The National Technology Transfer and Advancement Act of 1995 
(``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C. 272 note, 
Utilization of Consensus Technical Standards by Federal Agencies) 
directs all federal agencies 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 
federal agencies to provide Congress, through the Office of Management 
and Budget, with an explanation in any instance where they decide not 
to use available and applicable voluntary consensus standards. 
Authorization of the State Program does not involve technical 
standards. Therefore, EPA did not consider the use of any voluntary 
consensus standards.
E. Compliance With Executive Order 12866
    The Office of Management and Budget has exempted this proposed rule 
from the requirements of section 6 of E.O. 12866.
F. Compliance With Executive Order 12875
    E.O. 12875 is intended to develop an effective process to permit 
elected officials and other representatives of state or local 
governments to provide meaningful input in the development of 
regulatory proposals containing significant unfunded mandates. Since 
today's rule proposes authorization of preexisting requirements of 
State law, no new unfunded mandates result from this action. (See also 
the discussion under IV.A, above, Unfunded Mandates Reform Act).
G. Compliance With Executive Order 13045
    E.O.13045, Protection of Children from Environmental Health Risks 
and Safety Risks, applies only to federal rules that are ``economically 
significant'' as defined under Executive Order 12866 (i.e., a rule 
``that has an annual effect on the economy of $100 million or more or 
would adversely affect in a material way the economy, a sector of the 
economy, productivity, competition , jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities'', E.O. 13045, 62 FR 19885, 4/23/97 ). EPA has determined 
that the authorization of the State Program will not have a significant 
effect on the economy within the meaning of E.O. 12866, since today's 
rule proposes authorization of preexisting requirements of State law, 
and imposes no new requirements. (See also IV.A and F above). 
Accordingly, E.O. 13045 is inapplicable to today's proposed rule.

    Authority: This document is issued under the authority of 
sections 2002(a), 3006 and 7004(b) of RCRA, 42 U.S.C. 6912(a), 6926, 
6974(b).

    Dated: April 19, 1999.
William J. Muszynski,
Acting Regional Administrator, Region 2.
[FR Doc. 99-11710 Filed 5-10-99; 8:45 am]
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