[Federal Register Volume 65, Number 8 (Wednesday, January 12, 2000)]
[Rules and Regulations]
[Pages 1814-1817]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-614]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 257 and 258

[FRL-6521-4]


Adequacy of State Permit Programs Under RCRA Subtitle D

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action to streamline the approval 
process for specific state permit programs for solid waste disposal 
facilities other than municipal solid waste landfills (MSWLF) that 
receive conditionally exempt small quantity generator (CESQG) hazardous 
waste. States whose Subtitle D MSWLF permit programs or Subtitle C 
hazardous waste management programs have been reviewed and approved or 
authorized by EPA are eligible for this streamlined approval process if 
their state programs require the disposal of CESQG hazardous waste in 
suitable facilities. EPA is issuing an adequacy determination to the 
state programs for Kansas, Missouri, and Nebraska.
    Elsewhere in the proposed rule section of today's Federal Register, 
EPA is proposing the program adequacy of these states and soliciting 
comment on this decision. If relevant adverse comments are received, 
EPA will withdraw this direct final rule of program adequacy and 
address the comments in a subsequent final rule. EPA will not give 
additional opportunity for comment. If EPA receives relevant adverse 
comment concerning the adequacy of only certain state programs, the 
Agency's withdrawal of the direct final rule will only apply to those 
state programs. Comments on the inclusion or exclusion of one state 
permit program will not affect the timing of the decision on the other 
state permit programs.

DATES: This direct final rule is effective on April 11, 2000 unless the 
Agency receives timely relevant adverse comments by February 11, 2000. 
Should the Agency receive such relevant adverse comments, EPA will 
publish a timely withdrawal of this direct final rule in the Federal 
Register informing the public that the rule will not take effect.

ADDRESSES: Send or hand deliver an original and one copy of your 
comments referencing docket number R7/ARTD/SWPP-00-01 to: Region VII 
Information Resource Center, U.S. Environmental Protection Agency, 901 
N. 5th Street, Kansas City, Kansas 66101. Comments may also be 
submitted electronically through the Internet to: [email protected]. 
Comments in electronic format should also be identified by the docket 
number listed above. All electronic comments must be submitted as an 
ASCII file avoiding the use of special characters and any form of 
encryption.
    You can view and copy documents pertaining to this regulatory 
docket in the Region VII Information Resource Center (Library), located 
on the Plaza Level at the address noted above. The Library is open from 
9 a.m. to 3 p.m., Monday through Friday, excluding federal holidays.

FOR FURTHER INFORMATION CONTACT: For general information, call (913) 
551-7241 or TTY (913) 321-9516. For information on accessing paper and 
electronic copies of documents or supporting materials relating to the 
direct final rule, or for information on specific aspects of this rule, 
contact Wes Bartley, U.S. EPA Region VII, ARTD/SWPP, 901 N. 5th Street, 
Kansas City, Kansas 66101,

[[Page 1815]]

phone (913) 551-7632, or by e-mail at [email protected].

SUPPLEMENTARY INFORMATION: The official record for this action will be 
kept in paper form. Therefore, EPA will transfer all comments received 
electronically into paper form and place them in the official record, 
which will also include all comments submitted directly in writing. The 
official record is the paper record kept at the address in ADDRESSES at 
the beginning of this document.
    Responses to comments, whether the comments are written or 
electronic, will be in a document in the Federal Register as outlined 
in DATES above or in a response to comments document placed in the 
official record for this rulemaking. EPA will not immediately reply to 
commenters electronically other than to seek clarification of 
electronic comments that may be garbled in transmission or during 
conversion to paper form, as discussed above.

A. Background

    Section 4010(c) of the Resource Conservation and Recovery Act 
(RCRA) requires EPA to revise the criteria for facilities that accept 
household hazardous waste and CESQG hazardous waste, or both. On 
October 9, 1991, EPA issued Criteria for Municipal Solid Waste 
Landfills (40 CFR part 258). These criteria include location 
restrictions and standards for design, operation, ground-water 
monitoring, corrective action, financial assurance, and closure/post-
closure care for MSWLF. MSWLF typically receive both household 
hazardous waste and CESQG hazardous waste. On July 1, 1996, EPA issued 
the revised Criteria for Classification of Solid Waste Disposal 
Facilities and Practices to address solid waste disposal facilities 
other than MSWLF that receive CESQG waste (40 CFR part 257, subpart B). 
These criteria include location restrictions, ground-water monitoring, 
and corrective action standards. The 40 CFR part 257, subpart B, 
criteria and the 40 CFR part 258 criteria, referred to collectively as 
the ``Subtitle D federal revised criteria,'' establish minimum federal 
standards to ensure that all Subtitle D facilities that may receive 
CESQG wastes are designed and managed in a manner that is protective of 
human health and the environment.
    RCRA section 4005, as amended by the Hazardous and Solid Waste 
Amendments of 1984, requires states to develop permitting programs or 
other systems of prior approvals and conditions to ensure that solid 
waste disposal units that receive household hazardous waste and CESQG 
hazardous waste, or both, comply with the federal revised criteria. 
Section 4005 also requires EPA to determine the adequacy of these state 
permit programs. To fulfill this need, the Agency issued the State 
Implementation Rule (SIR) on October 23, 1998 (63 FR 57026) to give a 
process for approving state municipal solid waste permit programs. The 
SIR specifies the criteria that state MSWLF permit programs must 
satisfy to be determined adequate. The SIR also addresses the processes 
that should be used for approving state programs for non-MSWLF that 
receive CESQG hazardous waste.
    Throughout this direct final rule, the term ``approved state'' 
refers only to a state that has received approval for its MSWLF permit 
program under Subtitle D (40 CFR part 258) and the term ``authorized 
state'' refers only to a state that has an authorized hazardous waste 
permit program under Subtitle C (40 CFR part 264). Today's final 
adequacy determination is intended to give a streamlined approval 
process to address specific state programs that require the disposal of 
CESQG hazardous waste in suitable facilities and whose Subtitle D MSWLF 
permit programs or Subtitle C hazardous waste management programs have 
been reviewed and approved or authorized by the Agency. Today's direct 
final rule applies to the state programs for Kansas, Missouri, and 
Nebraska.
    Programs developed by these states for permitting either hazardous 
waste facilities or MSWLFs have been reviewed and approved or 
authorized by the Agency. The regulatory programs are more 
comprehensive and/or more stringent than the part 257, subpart B, 
criteria.
    The Agency has determined that the above states have submitted the 
documentation that would have been needed for the determination of 
permit program adequacy under 40 CFR part 257, subpart B. Further, the 
Agency has determined that the technical review conducted for either 
``approval'' of MSWLF permitting programs or ``authorization'' of 
hazardous waste permitting programs can substitute for the technical 
review of the standards for 40 CFR part 257, subpart B, and their 
implementation by the states.
    The states that are today receiving a final determination of 
adequacy had previously submitted documentation of state statutory 
authorities and requirements that regulate solid waste disposal units 
that may receive CESQG waste. In each case, state statutes, 
regulations, and/or internal policies and practices were reviewed and 
found to serve as the basis for ensuring that the state permit program 
or other system of prior approvals and conditions had adequate 
authority to ensure compliance with the hazardous waste or MSWLF 
regulations, as appropriate.
    The technical requirements for part 257, subpart B, are location 
restrictions and requirements for ground-water monitoring, corrective 
action, and recordkeeping. These requirements have been met by the 
state programs listed in today's final determination.
    The three states considered in today's determination are 
``authorized'' states that have authorized hazardous waste permit 
programs under Subtitle C (40 CFR part 264). These states have laws, 
regulations, or guidance in place providing that CESQG hazardous waste 
may be lawfully managed in a RCRA Subtitle C facility (see 61 FR 
34264).
    Also, these states are ``approved'' states for MSWLF permit 
programs under Subtitle D (40 CFR part 258). However, only Kansas and 
Nebraska have laws, regulations, or guidance in place providing that 
CESQG hazardous waste may be lawfully managed in a MSWLF meeting or 
exceeding the requirements of 40 CFR part 258 (see 61 FR 34264).
    Management of CESQG hazardous waste is allowed in the three states 
only at facilities as described above. For all states, the state 
regulations have been reviewed by EPA, found to be equal to or more 
stringent than 40 CFR part 257, subpart B, and approved. Most state 
program regulations contain additional requirements and are more 
stringent than the federal requirements.
    The states covered by today's approval have permit programs or 
other systems of prior approval for all waste disposal units in their 
jurisdictions that may receive CESQG hazardous waste. These states 
provide for public participation in permit issuance and enforcement as 
specified in the SIR rule. Finally, EPA believes that these states have 
sufficient compliance monitoring and enforcement authorities to take 
action against any owner or operator that fails to comply with 
regulations applicable to waste disposal units that may receive CESQG 
hazardous waste.

B. Decision

    After reviewing the states' previous submissions for approval under 
Subtitle D (40 CFR part 258) and authorization under Subtitle C (40 CFR 
part 264), the Agency concludes that the above states meet all of the 
statutory and regulatory requirements established by RCRA. Accordingly, 
the above states are granted a final determination of adequacy for all 
portions of their permit program for solid waste disposal units

[[Page 1816]]

that may receive CESQG hazardous waste.
    RCRA section 4005(a) provides that citizens may use the citizen 
suit provisions of RCRA section 7002 to enforce the Federal Criteria 
for Classification of Solid Waste Disposal Facilities and Practices in 
40 CFR part 257, subpart B, independent of any state enforcement 
program. As explained in the preamble to 40 CFR part 257, subpart B, 
EPA expects that any owner or operator complying with the provisions of 
a state program approved by EPA requiring that CESQG hazardous waste be 
disposed of in either a Subtitle C facility or a Subtitle D MSWLF would 
be in compliance with the federal criteria. See 61 FR 34264 (July 1, 
1996).
    Today's action will become effective on April 11, 2000 if no 
adverse comments are received.

Related Acts of Congress and Executive Orders

A. Executive Order 12866

    Under Executive Order 12866, (58 FR 51735 (October 4, 1993)) the 
Agency must determine whether a regulatory action is ``significant'' 
and therefore subject to Office of Management and Budget (OMB) review 
and the requirements of the Executive Order. The Order defines 
``significant regulatory action'' as one that is likely to result in a 
rule that may: (1) Have an annual effect on the economy of $100 million 
or more or 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; (2) create a serious inconsistency or otherwise interfere 
with an action taken or planned by another agency; (3) materially alter 
the budgetary impact of entitlements, grants, user fees, or loan 
programs or the rights and obligations of recipients thereof; or (4) 
raise novel legal or policy issues arising out of legal mandates, the 
President's priorities, or the principles set forth in the Executive 
Order.'' It has been determined that this rule is not a ``significant 
regulatory action'' under the terms of Executive Order 12866 and is 
therefore not subject to OMB review.

B. 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 
(SBREFA) 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). 
However, no regulatory flexibility analysis is required if the head of 
an agency certifies that the rule will not have a significant economic 
impact on a substantial number of small entities.
    The SBREFA amended the Regulatory Flexibility Act to require 
federal agencies to provide a statement of the factual basis for 
certifying that a rule will not have a significant economic impact on a 
substantial number of small entities. The following discussion explains 
EPA's determination.
    This rule does not impose any new burdens on small entities. It 
merely confirms existing needs for the disposal of CESQG waste under 
state law. This proposal does not impose any new cost burdens. I hereby 
certify that this rule will not have a significant economic impact on a 
substantial number of small entities. This rule, therefore, does not 
need a regulatory flexibility analysis.

C. The Paperwork Reduction Act

    Today's proposal is in compliance with the Paperwork Reduction Act, 
44 U.S.C. 3501 et seq. We found that no information is being collected 
from the states for this direct final rule, so we do not need to 
prepare an Information Collection Request.

D. The 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 their regulatory actions on state, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, 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 by state, local, and tribal governments, in 
the aggregate, or by the private sector, of $100 million or more in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of UMRA generally requires 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 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 EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including tribal governments, it must have developed under 
section 203 of 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 by EPA of regulatory proposals with 
significant federal intergovernmental mandates, and informing, 
educating, and advising small governments on compliance with the 
regulatory requirements.
    The Agency's analysis of compliance with UMRA found that today's 
rule imposes no enforceable duty on any state, local, or tribal 
governments or the private sector; thus today's rule is not subject to 
the requirements of sections 202 and 205 of UMRA.

E. Executive Order 13045

    ``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 19885 (April 23, 1997)) applies to any rule that: (1) is 
determined to be ``economically significant'' as defined under 
Executive Order 12866, and (2) concerns an environmental health or 
safety risk that EPA has reason to believe may have 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.
    This rule is not subject to Executive Order 13045 because it is not 
an economically significant rule as defined by Executive Order 12866, 
and because it does not involve decisions based on environmental health 
or safety risks.

F. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 
note) 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 explanations to Congress, through OMB, when the Agency decides 
not to use available and applicable voluntary consensus standards. This 
proposed rulemaking does not involve technical standards. Therefore, 
EPA is not considering the use of any voluntary consensus standards.

G. Executive Order 13132

    Executive Order 13132 (Federalism, 64 FR 43255, August 10, 1999) 
revokes and replaces Executive Order 12612 (Federalism) and Executive 
Order 12875 (Enhancing the Intergovernmental Partnership). Executive 
Order 13132 requires EPA to develop an accountable process to ensure 
``meaningful and timely input by state and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the states, on the relationship between the national 
government and the states, or on the distribution of power and 
responsibilities among the various levels of government.'' Under 
Executive Order 13132, EPA may not issue a regulation that has 
federalism implications, that imposes substantial direct compliance 
costs, and that is not required by statute, unless the federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by state and local governments, or EPA consults with 
state and local officials early in the process of developing the 
proposed regulation. EPA also may not issue a regulation that has 
federalism implications and that preempts state law unless the Agency 
consults with state and local officials early in the process of 
developing the proposed regulation.
    This direct final rule will not have substantial direct effects on 
the states, on the relationship between the national government and the 
states, or on the distribution of power and responsibilities among the 
various levels of government, as specified in Executive Order 13132. 
Thus, the requirements of section 6 of the Executive Order do not apply 
to this rule.

H. Executive Order 13084

    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, or EPA consults with those 
governments. If EPA complies by consulting, Executive Order 13084 
requires EPA to provide OMB, 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 
officials 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. There is no impact to tribal 
governments as a result of the state plan approvals. Accordingly, the 
requirements of section 3(b) of Executive Order 13084 do not apply to 
this rule.

I. Executive Order 12898

    EPA is committed to addressing environmental justice concerns and 
is assuming a leadership role in environmental justice initiatives to 
enhance environmental quality for all residents of the United States. 
The Agency's goals are to ensure that no segment of the population, 
regardless of race, color, national origin, or income, bears 
disproportionately high and adverse human health and environmental 
effects as a result of EPA's policies, programs, and activities, and 
all people live in clean and sustainable communities.
    The Agency does not believe that today's rule granting state permit 
program approval will have a disproportionately high and adverse 
environmental or economic impact on any minority or low-income group, 
or on any other type of affected community.

J. The Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
1996 SBREFA, 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. 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 the Federal Register. 
A major rule cannot take effect until 60 days after it is published in 
the Federal Register. This action is not a ``major rule'' as defined by 
5 U.S.C. 804(2). This rule will be effective April 11, 2000.

    Authority: This document is issued under the authority of 
sections 2002 and 4005 of the Solid Waste Disposal Act as amended, 
42 U.S.C. 6912 and 6945.

    Dated: December 29, 1999.
Dennis Grams,
Regional Administrator, Region VII.
[FR Doc. 00-614 Filed 1-11-00; 8:45 am]
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