[Federal Register Volume 67, Number 153 (Thursday, August 8, 2002)]
[Rules and Regulations]
[Pages 51478-51480]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-20096]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 271

[FRL-7256-8]


Delaware: Final Authorization of State Hazardous Waste Management 
Program Revision

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: Delaware applied to EPA for final authorization of revisions 
to its hazardous waste program under the Resource Conservation and 
Recovery Act (RCRA). EPA has reached a final determination that these 
changes to the Delaware hazardous waste program satisfy all 
requirements necessary for final authorization. Thus, with respect to 
these revisions, EPA is granting final authorization to the State to 
operate its program subject to the limitations on its authority 
retained by EPA in accordance with RCRA, including the Hazardous and 
Solid Waste Amendments of 1984.

EFFECTIVE DATE: Final authorization for the revisions to Delaware's 
hazardous waste management program shall be effective on August 8, 
2002.

FOR FURTHER INFORMATION CONTACT: Lillie Ellerbe, Mailcode 3WC21, RCRA 
State Programs Branch, U.S. EPA Region III, 1650 Arch Street, 
Philadelphia, PA 19103-2029, Phone number: (215) 814-5454.

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 
revise their programs accordingly and ask EPA to authorize the 
revisions. Revisions to State programs may be necessary when Federal or 
State statutory or regulatory authority is changed. For example, most 
commonly, States must revise their programs when EPA promulgates 
changes to its regulations in 40 Code of Federal Regulations (CFR) 
parts 124, 260 through 266, 268, 270, 273 and 279.
    Delaware received final authorization on June 8, 1984, effective 
June 22, 1984 (53 FR 23837), to implement a hazardous waste management 
program in lieu of the Federal Program. EPA subsequently granted 
authorization for revisions to Delaware's program on August 8, 1996, 
effective October 7, 1996 (61 FR 41345); August 18, 1998, effective 
October 19, 1998 (63 FR 44152); and July 12, 2000, effective September 
11, 2000 (65 FR 42871).
    Please note that in the aforementioned authorization action 
effective September 11, 2000, Checklist 152 was listed in the program 
revision summary table. This checklist includes certain import/export 
provisions for which States cannot receive authorization. While 
Delaware adopted the provisions listed in Checklist 152, the revisions 
listed in 40 CFR 262, Subparts E and H, will continue to be 
administered by EPA.
    On January 11, 2002, Delaware submitted to EPA a complete program 
revision application, in accordance with 40 CFR 271.21, seeking 
authorization of additional changes to its program. On February 27, 
2002, EPA published both an immediate final rule (67 FR 8900-8902) 
granting Delaware final authorization for these revisions to its 
federally-authorized hazardous waste program, along with a companion 
proposed rule announcing EPA's proposal to grant such final 
authorization (67 FR 8925-8926). EPA announced in both notices that the 
immediate final rule and the proposed rule were subject to a thirty-day 
public comment period. The public comment period ended on March 29, 
2002. Further, EPA stated in both notices that if it received adverse 
comments on its intent to authorize Delaware's program revisions that 
it would (1) withdraw the immediate final rule; (2) proceed with the 
proposed rule as the basis for the receipt and evaluation of such 
comments, and (3) subsequently publish a final determination responding 
to such comments and announce its final decision whether or not to 
authorize Delaware's program revisions. EPA did receive written 
comments from two commenters during the public comment period and on 
April 25, 2002, published a notice withdrawing the immediate final rule 
(67 FR 20446). Today's action responds to the comments EPA received and 
publishes EPA's final determination granting Delaware final 
authorization of its program revisions. Further background on EPA's 
immediate final rule and its tentative determination to grant 
authorization to Delaware for its program revisions appears in the 
aforementioned Federal Register notices. The issues raised by the 
commenters are summarized and responded to as follows.

B. What Were the Comments and Responses to EPA's Proposal?

    Both commenters challenged Region III's process for authorizing 
revisions to Delaware's program in not providing for a public hearing, 
which, they state, is required by 40 CFR 271.20. EPA disagrees. The 
regulations relied upon by the commenters apply to initial program 
authorization, and not, as in the instant matter, to program revisions. 
Rather, EPA has proceeded in accordance with 40 CFR 271.21 pursuant to 
which public hearings are not required. On March 4, 1986, at 51 FR 
7540-7542, EPA promulgated amendments to 40 CFR 271.21 that eliminated 
public hearing requirements

[[Page 51479]]

for program revisions. In this March 4, 1986 Federal Register EPA 
stated: ``As discussed in the proposal, the new procedures do not 
require public hearings to be held in conjunction with EPA's 
authorization decisions. Since there is no legal requirement to provide 
for hearings on revision decisions and little public interest has been 
shown to date in attending hearings on initial authorization of State 
programs, we think the opportunity to provide written comments is 
adequate. Only one comment was received on the elimination of routine 
public hearings, and that comment favored the rule change. However, 
while the regulatory requirement is deleted, a Regional Administrator, 
in his discretion, could decide to hold a hearing.'' (51 FR 7541).
    Consequently, EPA Region III believes it adhered to the governing 
regulations regarding opportunities for public hearings during the EPA 
approval process for State program revisions. EPA Region III also 
believes that due to the nature and limited number of comments 
received, the opportunity to provide for written comments, in lieu of a 
public hearing, was an adequate process to obtain public comment.
    Both commenters shared a concern about the ``use constituting 
disposal'' provisions of subpart C of 40 CFR part 266. They appear to 
have concerns about the provisions of Delaware regulations (which are 
identical to EPA's) that allow, under certain conditions, ``hazardous 
wastes,'' like lime-based slag, to be used as a ``fertilizer.'' They 
argue that Delaware's statute (like RCRA) does not allow the land 
application of hazardous wastes (beneficial or not) unless it occurs at 
a permitted disposal facility. For the reasons set forth below, EPA 
disagrees.
    EPA's regulations accommodate the proper reuse, recycling and 
reclamation of as many resources destined for disposal as possible, 
while regulating hazardous wastes and hazardous waste residuals that 
must be discarded.
    EPA's regulations at 40 CFR part 266, subpart C, place controls on 
the management of hazardous wastes before such wastes are made into a 
fertilizer. Producing fertilizer from an otherwise hazardous waste is a 
type of recycling which, in EPA's regulations, is referred to as ``use 
constituting disposal.'' Rather than prohibiting the use of waste-
derived fertilizers, EPA promulgated regulations to require that 
hazardous wastes that are going to be made into fertilizers be managed 
in accordance with all applicable hazardous waste management 
requirements until the wastes are actually made into a fertilizer.
    With regard to the ``use constituting disposal'' provisions of 40 
CFR part 266--subpart C, in the context of fertilizer applications, 
these provisions in Delaware's program were authorized by EPA as part 
of Delaware's first program revision, which took effect on October 7, 
1996--over five years ago. As is Delaware's practice, Delaware adopted 
EPA's rules verbatim. Therefore, in the State's revision authorization 
application, Delaware claimed its rules were equivalent to EPA's.
    Delaware's current revision application, for which EPA recently 
published its tentative approval, with an opportunity for public 
comment, does not include any regulatory revisions to 40 CFR part 266--
subpart C. Since the comment EPA has received on ``use constituting 
disposal'' is not part of Delaware's most recent program revision 
application, EPA believes the public comments on ``use constituting 
disposal'' are not within the scope of this Agency action.
    One commenter raised a third issue and claimed that Delaware's EPA-
delegated National Pollutant Discharge Elimination System (NPDES) 
program is not being effectively carried out. The commenter questioned 
why EPA would grant additional hazardous waste management authority to 
a State agency that is allegedly not performing well in another program 
area. EPA has determined that there is no basis in 40 CFR part 271 that 
requires EPA to evaluate the effectiveness of any other environmental 
program's management in Delaware before authorizing revisions to 
Delaware's hazardous waste program. Based on EPA's oversight of 
Delaware's hazardous waste program over the years, EPA has determined 
that DNREC implements an effective hazardous waste program, and EPA 
sees no reason not to proceed with authorizing Delaware's hazardous 
waste program revisions.

C. What Decisions Have We Made in This Rule?

    Based on EPA's response to public comments, the Agency has 
determined that approval of Delaware's RCRA program revisions should 
proceed. EPA has made a final determination that Delaware's application 
to revise its authorized program meets all of the statutory and 
regulatory requirements established by RCRA. Therefore, we grant 
Delaware final authorization to operate its hazardous waste program 
with the changes described in its application for program revisions. 
Delaware has responsibility for permitting Treatment, Storage, and 
Disposal Facilities (TSDFs) within its borders and for carrying out the 
aspects of the RCRA program described in its 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 any such HSWA requirements and 
prohibitions in Delaware, including issuing HSWA permits, until the 
State is granted authorization to do so.
    For further background on the scope and effect of today's action to 
approve Delaware's RCRA program revisions, please refer to the 
preambles of EPA's February 27, 2002 proposed and immediate final rules 
to grant authorization to Delaware for its program revisions, at 67 FR 
8925-8926 and 67 FR 8900-8902, respectively.

D. Administrative Requirements

    The Office of Management and Budget has exempted this action from 
the requirements of Executive Order 12866 (58 FR 51735, October 4, 
1993); therefore, this action is not subject to review by OMB. This 
action authorizes State requirements for the purpose of RCRA 3006 and 
imposes no additional requirements beyond those imposed by State law. 
Accordingly, I certify that this action will not have a significant 
economic impact on a substantial number of small entities under the 
Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this action 
authorizes pre-existing requirements under State law and does not 
impose any additional enforceable duty beyond that required by State 
law, it does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Public Law 104-4). For the same reason, 
this action does not have tribal implications within meaning of 
Executive Order 13175 (65 FR 68249, November 6, 2000). This action does 
not have substantial direct effects on tribal governments, on the 
relationship between the Federal government and the Indian tribes, or 
on the distribution of power and responsibilities between the Federal 
government and Indian tribes, as specified in Executive Order 13175. 
This action 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

[[Page 51480]]

levels of government, as specified in Executive Order 13132 (64 FR 
43255, August 10, 1999), because it merely authorizes State 
requirements as part of the State RCRA hazardous waste program without 
altering the relationship or the distribution of power and 
responsibilities established by RCRA. This action also is not subject 
to Executive Order 13045 (62 FR 19885, April 23, 1997) because it is 
not economically significant and does not make decisions based on 
environmental health or safety risks. This rule is not subject to 
Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355 
(May 22, 2001)) because it is not a significant regulatory action under 
Executive Order 12866.
    Under RCRA 3006(b), EPA grants a State's application for 
authorization as long as the State meets the criteria required by RCRA. 
It would thus be inconsistent with applicable law for EPA, when it 
reviews a State authorization application, to require the use of any 
particular voluntary consensus standard in place of another standard 
that otherwise satisfies the requirements of RCRA. Thus, the 
requirements of section 12(d) of the National Technology Transfer and 
Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required 
by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), 
in issuing this rule, EPA has taken the necessary steps to eliminate 
drafting errors and ambiguity, minimize potential litigation, and 
provide a clear legal standard for affected conduct. EPA has complied 
with Executive Order 12630 (53 FR 8859, March 15, 1998) by examining 
the takings implications of the rule in accordance with the Attorney 
General's ``Supplemental Guidelines for the Evaluation of Risk and 
Avoidance of Unanticipated Takings' issued under the executive order. 
This rule does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et 
seq.).
    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. EPA will submit a report containing this document 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 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 
action will be effective on August 8, 2002.

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: August 1, 2002.
Donald S. Welsh,
Regional Administrator, Region III.
[FR Doc. 02-20096 Filed 8-7-02; 8:45 am]
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