[Federal Register Volume 65, Number 102 (Thursday, May 25, 2000)]
[Rules and Regulations]
[Pages 33774-33778]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-12953]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 271

[FRL-6704-7]


Minnesota: Final Authorization of State Hazardous Waste 
Management Program Revisions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Immediate final rule.

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SUMMARY: Minnesota has applied to EPA for Final authorization of the 
changes to its hazardous waste program under the Resource Conservation 
and Recovery Act (RCRA). EPA has determined that these changes satisfy 
all requirements needed to qualify for Final authorization, and is 
authorizing the State's changes through this immediate final action. 
EPA is publishing this rule to authorize the changes without a prior 
proposal because we believe this action is not controversial and do not 
expect comments that oppose it. Unless we get written comments which 
oppose this authorization during the comment period, the decision to 
authorize Minnesota's changes to their hazardous waste program will 
take effect as provided below. If we get comments that oppose this 
action, we will publish a document in the Federal Register withdrawing 
this rule before it takes effect and a separate document in the 
proposed rules section of this Federal Register will serve as a 
proposal to authorize the changes.

DATES: This Final authorization will become effective on August 23, 
2000 unless EPA receives adverse written comment by June 26, 2000. If 
EPA receives such comment, it will publish a timely withdrawal of this 
immediate final rule in the Federal Register and inform the public that 
this authorization will not take effect.

ADDRESSES: Send written comments referring to Docket Number Minnesota 
ARA 8, to Gary Westefer, Minnesota Regulatory Specialist, U.S. EPA 
Region 5, DM-7J, 77 West Jackson Boulevard, Chicago, Illinois 60604, 
(312) 886-7450. We must receive your comments by June 26, 2000. You can 
view and copy Minnesota's application from 9:00 am to 4:00 pm at the 
following addresses: Minnesota Pollution Control Agency, 520 Lafayette 
Road, North, St. Paul, Minnesota 55155, contact Nathan Cooley at (651) 
297-7544; or EPA Region 5, contact Gary Westefer at the following 
address.

FOR FURTHER INFORMATION CONTACT: Gary Westefer, Minnesota Regulatory 
Specialist, U.S. EPA Region 5, DM-7J, 77 West Jackson Boulevard, 
Chicago, Illinois 60604, (312) 886-7450.

SUPPLEMENTARY INFORMATION:

A. Why Are Revisions to State Programs Necessary?

    States which have received final authorization from EPA under RCRA 
section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous waste 
program that is equivalent to, consistent with, and no less stringent 
than the Federal program. As the Federal program changes, States must 
change their programs and ask EPA to authorize the changes. Changes to 
State programs may be necessary when Federal or State statutory or 
regulatory authority is modified or when certain other changes occur. 
Most commonly, States must change their programs because of changes to 
EPA's regulations in 40 Code of Federal Regulations (CFR) parts 124, 
260 through 266, 268, 270, 273 and 279.

B. What Decisions Have We Made in This Rule?

    We conclude that Minnesota's application to revise its authorized 
program meets all of the statutory and regulatory requirements 
established by RCRA. Therefore, we grant Minnesota Final authorization 
to operate its hazardous waste program with the changes described in 
the authorization application. Minnesota has responsibility for 
permitting Treatment, Storage, and Disposal Facilities (TSDFs) within 
its borders (except in Indian Country) and for carrying out the aspects 
of the RCRA program described in its revised program application, 
subject to the limitations of the Hazardous and Solid Waste Amendments 
of 1984 (HSWA). New federal requirements and prohibitions imposed by 
Federal regulations that EPA promulgates under the authority of HSWA 
take effect in authorized States before they are authorized for the 
requirements. Thus, EPA will implement those requirements and 
prohibitions in Minnesota, including issuing permits, until the State 
is granted authorization to do so.

C. What Is the Effect of Today's Authorization Decision?

    The effect of this decision is that a facility in Minnesota subject 
to RCRA will now have to comply with the authorized State requirements 
instead of the equivalent federal requirements in order to comply with 
RCRA. Minnesota has enforcement responsibilities under its state 
hazardous waste program for violations of such program, but EPA 
maintains independent authority under RCRA sections 3007, 3008, 3013, 
and 7003, which include, among others, the authority to conduct 
inspections and require monitoring, tests, analyses or reports and to 
enforce RCRA requirements and suspend or revoke permits.
    This action does not impose additional requirements on the 
regulated community because the regulations for which Minnesota is 
being authorized by today's action are already effective, and are not 
changed by today's action.

[[Page 33775]]

D. Why Wasn't There a Proposed Rule Before Today's Rule?

    EPA did not publish a proposal before today's rule because we view 
this as a routine program change and do not expect comments that oppose 
this approval. We are providing an opportunity for public comment now. 
In addition to this rule, in the proposed rules section of today's 
Federal Register, we are publishing a separate document that proposes 
to authorize the state program changes.

E. What Happens If EPA Receives Comments That Oppose This Action?

    If EPA receives appropriate comments that oppose this 
authorization, we will withdraw this rule by publishing a document in 
the Federal Register before the rule becomes effective. EPA will base 
any further decision on the authorization of the state program changes 
on the proposal mentioned in the previous paragraph. We will then 
address all public comments in a later final rule. You may not have 
another opportunity to comment. If you want to comment on this 
authorization, you must do so at this time.
    If we receive comments that oppose only the authorization of a 
particular change to the State hazardous waste program, we will 
withdraw that part of this rule, but the authorization of the program 
changes that the comments do not oppose will become effective on the 
date specified above. The Federal Register withdrawal document will 
specify which part of the authorization will become effective, and 
which part is being withdrawn.

F. What Has Minnesota Previously Been Authorized For?

    Minnesota initially received Final authorization on January 28, 
1985, effective February 11, 1985 (50 FR 3756), to implement the RCRA 
hazardous waste management program. We granted authorization for 
changes to their program on July 20, 1987, effective September 18, 1987 
(52 FR 27199), on April 24, 1989, effective June 23, 1989 (54 FR 
16361), amended June 28, 1989 (54 FR 27170), on June 15, 1990, 
effective August 14, 1990 (55 FR 24232), on June 24, 1991, effective 
August 23, 1991 (56 FR 28709), on March 19, 1992, effective May 18, 
1992 (57 FR 9501), on March 17, 1993, effective May 17, 1993 (58 FR 
14321), and on January 20, 1994, effective March 21, 1994 (59 FR 2998).

G. What Changes Are We Authorizing With Today's Action?

    On March 7, 2000, Minnesota submitted a final complete program 
revision application, seeking authorization of program changes in 
accordance with 40 CFR 271.21. EPA reviewed Minnesota's application, 
and we now make an immediate final decision, subject to receipt of 
adverse written comments that oppose this action, that Minnesota's 
hazardous waste program revision satisfies all of the requirements 
necessary to qualify for Final authorization. Therefore, we grant 
Minnesota Final authorization for the following program changes:

------------------------------------------------------------------------
                                   Federal Register
     Description of Federal       date and page [and/   Analogous State
           requirement             or RCRA statutory       authority
                                      authority]
------------------------------------------------------------------------
Petroleum Refinery Primary and    November 2, 1990,   Minnesota Rules
 Secondary Oil/Water/Solids        55 FR 46354.        7045.0135,
 Separation Sludge Listings       December 17, 1990,   7045.0139;
 (F037 and F038) Checklist 81 as   55 FR 51707.        effective March
 amended Checklist 81.1.                               1, 1994.
Wood Preserving Listings          December 6, 1990,   Minnesota Rules
 Checklist 82.                     55 FR 50450.        7045.0020,
                                                       7045.0120,
                                                       7045.0135,
                                                       7045.0139,
                                                       7045.0141,
                                                       7045.0145,
                                                       7045.0292,
                                                       7045.0528,
                                                       7045.0541,
                                                       7045.0552,
                                                       7045.0623,
                                                       7045.0628,
                                                       7045.0644;
                                                       effective January
                                                       31, 1994, as
                                                       amended October
                                                       2, 1995.
Organic Air Emission Standards    April 26, 1991, 56  Minnesota Rules
 for Process Vents and Equipment   FR 19290.           7001.0625,
 Leaks; Technical Amendment                            7001.0626,
 Checklist 87.                                         7045.0547,
                                                       7045.0548,
                                                       7045.0564,
                                                       7045.0584,
                                                       7045.0647,
                                                       7045.0648;
                                                       effective March
                                                       1, 1994.
Revision to F037 and F038         May 13, 1991, 56    Minnesota Rules
 Listings Checklist 89.            FR 21955.           7045.0135
                                                       effective March
                                                       1, 1994.
Wood Preserving Listing:          July 1, 1991, 56    Minnesota Rules
 Technical Correction Checklist    FR 30192.           7001.0623
 92.                                                   7045.0120,
                                                       7045.0145,
                                                       7045.0292,
                                                       7045.0541,
                                                       7045.0644;
                                                       effective January
                                                       31, 1994 as
                                                       amended October
                                                       2, 1995.
Second Correction to the Third    March 6, 1992, 57   Minnesota Rules
 Third Land Disposal               FR 8086.            7045.0458,
 Restrictions Checklist 102.                           7045.0564,
                                                       7045.1305,
                                                       7045.1355,
                                                       7045.1360;
                                                       effective March
                                                       1, 1994.
Hazardous Debris Case-by-Case     May 15, 1992, 57    Minnesota Rules
 Capacity Variance Checklist 103.  FR 20766.           7045.1335;
                                                       effective March
                                                       1, 1994.
Lead-Bearing Hazardous Materials  June 26, 1992, 57   Minnesota Rules
 Case-by-Case Capacity Variance    FR 28628.           7045.1335;
 Checklist 106.                                        effective March
                                                       1, 1994.
Wood Preserving: Amendments to    December 24, 1992,  Minnesota Rules
 Listings and Technical            57 FR 61492.        7045.0541,
 Requirements Checklist 120.                           7045.0644;
                                                       effective January
                                                       31, 1994, as
                                                       amended October
                                                       2, 1995.
------------------------------------------------------------------------

H. Where Are the Revised State Rules Different From the Federal 
Rules?

    In the changes currently being made to Minnesota's program, we 
consider the following State requirement to be more stringent than the 
Federal requirements:
     Minnesota Rules 7001.0623, because the State does not 
allow for an exemption to Subpart F of 40 CFR part 264, as provided for 
in 40 CFR 270.26(b), making the State requirements more stringent.

More stringent rules are part of Minnesota's authorized program and are 
Federally enforceable.
    Broader-in-scope requirements are not part of the authorized 
program and EPA cannot enforce them. Although you must comply with 
these requirements in accordance with state law, they are not RCRA 
requirements. There are no broader-in-scope provisions in these 
changes.

[[Page 33776]]

I. Who Handles Permits After This Authorization Takes Effect?

    Minnesota will issue permits for all the provisions for which it is 
authorized, and will administer the permits that it issues. EPA will 
continue to administer any RCRA hazardous waste permits, or portions of 
permits, that we issued prior to the effective date of this 
authorization until they expire or are terminated. We will not issue 
any more new permits or portions of permits for the provisions listed 
in the Table above after the effective date of this authorization. EPA 
will continue to implement and issue permits for HSWA requirements for 
which Minnesota is not yet authorized.

J. How Does Today's Action Affect Indian Country (18 U.S.C. 1151) 
in Minnesota?

    Minnesota is not authorized to carry out its hazardous waste 
program in Indian country within the State, as defined in 18 U.S.C. 
1151. This includes:
    1. All lands within the exterior boundaries of the following Indian 
Reservations, located within or abutting the State of Minnesota:
a. Bois Forte Indian Reservation
b. Fond Du Lac Indian Reservation
c. Grand Portage Indian Reservation
d. Leech Lake Indian Reservation
e. Lower Sioux Indian Reservation
f. Mille Lacs Indian Reservation
g. Prairie Island Indian Reservation
h. Red Lake Indian Reservation
i. Shakopee Mdewankanton Indian Reservation
j. Upper Sioux Indian Reservation
k. White Earth Indian Reservation

    2. Any land held in trust by the U.S. for an Indian tribe, and
    3. Any other land, whether on or off a reservation that qualifies 
as Indian country.
    Therefore, this action has no effect in Indian country where EPA 
will continue to implement and administer the RCRA program in these 
lands.

K. What Is Codification and Is EPA Codifying Minnesota's Hazardous 
Waste Program as Authorized in This Rule?

    Codification is the process of placing the State's statutes and 
regulations that comprise the State's authorized hazardous waste 
program into the Code of Federal Regulations. We do this by referencing 
the authorized State rules in 40 CFR part 272. The authorized Minnesota 
RCRA program was incorporated by reference into 40 CFR part 272 on May 
15, 1989, effective July 14, 1989 (54 FR 20851). Minnesota's 
Incorporation by Reference was amended on March 16, 1990, effective May 
15, 1990 (55 FR 9880), on October 15, 1992, effective December 14, 1992 
(57 FR 47265), and on September 6, 1994, effective November 7, 1994 (59 
FR 45986).
    We reserve the amendment of 40 CFR part 272, subpart Y for this 
authorization of Minnesota's program changes until a later date.

L. Regulatory Analysis and Notices

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 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 EPA rule for which a written statement 
is needed, section 205 of the 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 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 EPA regulatory proposals with significant 
Federal intergovernmental mandates, and informing, educating, and 
advising small governments on compliance with the regulatory 
requirements.
    EPA has determined that 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. Costs to State, local and/or tribal governments already 
exist under the Minnesota program, and today's action does not impose 
any additional obligations on regulated entities. In fact, EPA's 
approval of State programs generally may reduce, not increase, 
compliance costs for 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.
    The requirements of section 203 of UMRA also do not apply to 
today's action because 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 TSDFs, they are already subject to the regulatory 
requirements under the existing State laws that are being authorized by 
EPA, and, thus, are not subject to any additional significant or unique 
requirements by virtue of this program approval.

Certification Under the Regulatory Flexibility Act (RFA), as Amended by 
the Small Business Regulatory Enforcement Fairness Act of 1996 
(SBREFA), 5 U.S.C. 601 et seq.

    The RFA generally requires an agency to prepare a regulatory 
flexibility analysis of any rule subject to notice and comment 
rulemaking requirements under the Administrative Procedure Act or any 
other statute, unless the agency certifies that the rule will not have 
a significant economic impact on a substantial number of small 
entities. Small entities include small businesses, small organizations, 
and small governmental jurisdictions.
    For purposes of assessing the impacts of today's action on small 
entities, small entity is defined as: (1) a small business as specified 
in the Small Business Administration regulations; (2) a small 
governmental jurisdiction that is a government of a city, county, town, 
school district or special district with a population of less than 
50,000; and (3) a small organization that is any not-for-profit 
enterprise which is independently owned and operated and is not 
dominant in its field.
    After considering the economic impacts of this authorization on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. This action 
does not impose any new requirements on small entities because small 
entities that are hazardous waste

[[Page 33777]]

generators, transporters, or that own and/or operate TSDFs are already 
subject to the regulatory requirements under the State laws which EPA 
is now authorizing. This action merely authorizes, for the purpose of 
RCRA section 3006, those existing State requirements.

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).

Compliance With Executive Order 12866

    The Office of Management and Budget has exempted this rule from the 
requirements of Executive Order 12866.

Compliance With Executive Order 13132 (Federalism)

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), 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 section 6 of 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 authorization does not have federalism implications. It will 
not have a substantial direct effect on 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, because this rule affects only 
one State. This action simply approves Minnesota's proposal to be 
authorized for updated requirements of the hazardous waste program that 
the State has voluntarily chosen to operate. Further, as a result of 
this action, newly authorized provisions of the State's program now 
apply in Minnesota in lieu of the equivalent Federal program provisions 
implemented by EPA under HSWA. Affected parties are subject only to 
those authorized State program provisions, as opposed to being subject 
to both Federal and State regulatory requirements. Thus, the 
requirements of section 6 of the Executive Order do not apply.

Compliance With Executive Order 13045

    Executive Order 13045, ``Protection of Children from Environmental 
Health Risks and Safety Risks,'' applies to any rule that: (1) the 
Office of Management and Budget determines is ``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.
    EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that are based on health or safety risks, such that 
the analysis required under section 5-501 of the Order has the 
potential to influence the regulation. This rule is not subject to 
Executive Order 13045 because it authorizes a State program.

Compliance With 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 with consulting, Executive Order 13084 
requires EPA to 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 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.''
    This rule is not subject to Executive Order 13084 because it does 
not significantly or uniquely affect the communities of Indian tribal 
governments. Minnesota is not authorized to implement the RCRA 
hazardous waste program in Indian country. This action has no effect on 
the hazardous waste program that EPA implements in the Indian country 
within the State.

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.

National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, 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 provide 
Congress, through OMB, explanations when the Agency decides not to use 
available and applicable voluntary consensus standards.

[[Page 33778]]

    This action does not involve technical standards. Therefore, EPA 
did not consider the use of any voluntary consensus standards.

List of Subjects in 40 CFR Part 271

    Environmental protection, Administrative practice and procedure, 
Confidential business information, Hazardous waste, Hazardous waste 
transportation, Indian lands, Intergovernmental relations, Penalties, 
Reporting and recordkeeping requirements.

    Authority: This action 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: May 3, 2000.
Elissa Speizman,
Acting Regional Administrator, Region 5.
[FR Doc. 00-12953 Filed 5-24-00; 8:45 am]
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