[Federal Register Volume 68, Number 69 (Thursday, April 10, 2003)]
[Rules and Regulations]
[Pages 17553-17556]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-8835]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 271

[FRL-7480-9]


Nebraska: Final Authorization of State Hazardous Waste Management 
Program Revision

AGENCY: Environmental Protection Agency (EPA).

ACTION: Immediate final rule.

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SUMMARY: Nebraska 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 receive written comments 
which oppose this authorization during the comment period, the decision 
to authorize Nebraska's changes to its hazardous waste program will 
take effect. If we receive 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 June 9, 2003 
unless EPA receives adverse written comment by May 12, 2003. 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.

[[Page 17554]]


ADDRESSES: Send written comments to Lisa V. Haugen, U.S. EPA Region 7, 
ARTD/RESP, 901 North 5th Street, Kansas City, Kansas 66101. You can 
view and copy Nebraska's application during normal business hours at 
the following addresses: Nebraska Department of Environmental Quality, 
Suite 400, The Atrium, 1200 ``N'' Street, Lincoln, Nebraska 68509-8922, 
(402) 471-2186; and EPA Region 7, Library, 901 North 5th Street, Kansas 
City, Kansas 66101, (913) 551-7877, Lisa V. Haugen.

FOR FURTHER INFORMATION CONTACT: Lisa V. Haugen, U.S. EPA Region 7, 
ARTD/RESP, 901 North 5th Street, Kansas City, Kansas 66101, (913) 551-
7877.

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 Nebraska's application to revise its authorized 
program meets all of the statutory and regulatory requirements 
established by RCRA. Therefore, we grant Nebraska Final authorization 
to operate its hazardous waste program with the changes described in 
the authorization application. Nebraska has responsibility for 
permitting treatment, storage, and disposal facilities 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 Nebraska, 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 Nebraska 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. Nebraska has enforcement responsibilities under its State 
hazardous waste program for violations of such program, but EPA retains 
its authority under RCRA sections 3007, 3008, 3013, and 7003, which 
include, among others, authority to:
    [sbull] Do inspections, and require monitoring, tests, analyses, or 
reports
    [sbull] Enforce RCRA requirements and suspend or revoke permits
    This action does not impose additional requirements on the 
regulated community because the regulations for which Nebraska is being 
authorized by today's action are already effective under state law, and 
are not changed by today's action.

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 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 only 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. For What Has Nebraska Previously Been Authorized?

    Nebraska initially received Final authorization on January 24, 
1985, effective February 7, 1985 (50 FR 3345), to implement the RCRA 
hazardous waste management program. We granted authorization for 
changes to its program on October 4, 1985, effective December 3, 1988 
(53 FR 38950), June 25, 1996, effective August 26, 1996 (61 FR 32699), 
and June 4, 2002, effective April 22, 2002 (67 FR 38418).

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

    On July 23, 2002, Nebraska submitted a final complete program 
revision application, seeking authorization of its changes in 
accordance with 40 CFR 271.21. We now make an immediate final decision, 
subject to EPA's receipt of written comments that oppose this action, 
that Nebraska's hazardous waste program revision satisfies all of the 
requirements necessary to qualify for Final authorization. Therefore, 
we grant Nebraska Final authorization for the following program 
changes:

------------------------------------------------------------------------
                                 Federal Register
    Description of Federal        date and page
     requirement  (include         (and/or RCRA       Analogous State
    checklist , if         statutory          authority \1\
           relevant)                authority)
------------------------------------------------------------------------
Toxicity Characteristic         55 FR 11798-       Title 128 2-009.07; 2-
 Revisions (Toxicity Leaching    11877, March 29,   009.09-.10; 2-016; 3-
 Procedure)--Checklist 74.       1990.              010.01-.02; 3-011.02-
                                                    .03; 21-014; 22-011;
                                                    22-013 (effective
                                                    June 18, 2001, with
                                                    amendments to
                                                    Chapters 3, 4, 10,
                                                    12, 14, 16, 25, and
                                                    Appendix V,
                                                    effective April
                                                    2002)

[[Page 17555]]

 
Universal Waste: General        60 FR 25492-       Nebraska Revised
 Provisions--Checklist 142A;     25551, May 11,     Statues Sec.   81-
 Specific Provisions for         1995.              1504(15)(b) (2000);
 Batteries--Checklist 142B;                         Title 128 1-004; 1-
 Specific Provisions for                            053; 1-086; 1-129; 2-
 Pesticides--Checklist 142C;                        001.07; 4-002.04; 6-
 Specific Provisions for                            001; 7-002.03-.04; 7-
 Thermostats--Checklist 142D;                       002.06-.09; 7-011; 8-
 Petition Provisions to Add a                       003; 8-006.03; 9-002-
 New Universal Waste.                               003; 9-007.01; 10-
                                                    001.03-.05; 12-
                                                    001.03H; 20-001.06;
                                                    21-001; 22-001.01K;
                                                    Chapter 25
                                                    (effective June 18,
                                                    2001, with
                                                    amendments to
                                                    Chapters 3, 4, 10,
                                                    12, 14, 16, 25, and
                                                    Appendix V,
                                                    effective April
                                                    2002)
------------------------------------------------------------------------

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

    In this authorization of the State of Nebraska's program revisions 
for Federal Revision Checklists 71 and 142A-D, there are no provisions 
that are more stringent or broader in scope. Broader in scope 
requirements are not part of the authorized program and EPA cannot 
enforce them.

I. Who Handles Permits After the Authorization Takes Effect?

    Nebraska will issue permits for all the provisions for which it is 
authorized and will administer the permits it issues. EPA will continue 
to administer any RCRA hazardous waste permits or portions of permits 
which we issued prior to the effective date of this authorization. We 
will not issue any more new permits or new 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 Nebraska is not yet authorized.

J. What Is Codification and Is EPA Codifying Nebraska'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 CFR. We do this by referencing the authorized State 
rules in 40 CFR part 272. We reserve the amendment of 40 CFR part 272, 
subpart CC for this authorization of Nebraska's program changes until a 
later date.

K. Administrative Requirements

    The Office of Management and Budget (OMB) has exempted this action 
from the requirements of Executive Order 12866 (58 FR 51735, October 4, 
1993), and 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 preexisting 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 also 
does not significantly or uniquely affect the communities of Tribal 
governments, as specified by Executive Order 13175 (65 FR 67249, 
November 9, 2000). 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 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 it 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, 1988) 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).

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

[[Page 17556]]

7004(b) of the Solid Waste Disposal Act as amended 42 U.S.C. 
6912(a), 6926, 6974(b).

    Dated: March 17, 2003.
Nat Scurry,
Acting Regional Administrator, Region 7.
[FR Doc. 03-8835 Filed 4-9-03; 8:45 am]
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