[Federal Register Volume 68, Number 110 (Monday, June 9, 2003)]
[Rules and Regulations]
[Pages 34334-34336]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-14459]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 271

[FRL-7510-1]


Nebraska: Final Authorization of State Hazardous Waste Management 
Program Revision

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule and response to comments.

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SUMMARY: Nebraska 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 satisfy all requirements needed to qualify 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 (HSWA) of 1984.

DATES: Final authorization for the revisions to Nebraska's hazardous 
waste management program will become effective June 9, 2003.

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

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.
    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).
    On July 23, 2002, Nebraska submitted a final complete program 
revision application, seeking authorization of its changes in 
accordance with 40 CFR 271.21. On April 10, 2003, EPA published both an 
Immediate Final Rule (68 FR 17553) granting Nebraska 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 a Final authorization (68 FR 17576). EPA 
announced in both documents that the Immediate Final Rule and the 
Proposed Rule were subject to a thirty-day public comment period. The 
public comment period ended on May 12, 2003. EPA received written 
comments from one commenter during the public comment period. Today's 
action responds to the comments EPA received and publishes EPA's Final 
determination granting Nebraska Final authorization of its program 
revisions. Further background on EPA's Immediate Final Rule and its 
tentative determination to grant authorization to Nebraska for its 
program revisions appears in the aforementioned Federal Register 
notices. The issues raised by the

[[Page 34335]]

commenter are summarized and responded to as follows.

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

    The commenter argued that Region VII's process for authorizing 
revisions to Nebraska's program should require a public hearing, which, 
the commenter believed, is required by 40 CFR 271.20. EPA disagrees. 40 
CFR 271.21 applies only to initial program authorization, and not, as 
in the instant matter, to program revisions. For this program revision, 
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 07540, EPA 
promulgated amendments to 40 CFR 271.21 that eliminated public hearing 
requirements 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 07541).
    Consequently, EPA Region VII believes it adhered to the governing 
regulations regarding opportunities for public hearings during the EPA 
approval process for State program revisions. EPA Region VII 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.
    The commenter expressed a concern about Nebraska's adoption of the 
provisions of 40 CFR part 266, subpart C. EPA understands this comment 
to state concerns about the provisions of the Nebraska regulations 
(which incorporate the Federal rules by reference) that allow, under 
certain conditions, ``hazardous wastes,'' like lime-based slag, to be 
used as a ``fertilizer.'' This comment addresses an issue which is not 
part of the referenced revision application. Specifically, with regard 
to the provisions of 40 CFR part 266, subpart C, in the context of 
fertilizer applications, these provisions in Nebraska's program were 
authorized by EPA as part of Nebraska's first program revision, which 
took effect on December 3, 1989--over thirteen years ago. Nebraska'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 Nebraska's most recent program revision application, EPA 
believes the public comments on ``use constituting disposal'' are not 
within the scope of this Agency action. The commenter expressed further 
concern regarding ``EPA's failure to require the Nebraska Attorney 
General to review Nebraska's statutes based on rule-by-rule authority 
as required under 40 CFR 271.7.'' The commenter asserts that 
``checklists do not provide for as comprehensive a review.'' EPA uses 
checklists to review State rules in detail. 40 CFR 271.7 requires the 
State Attorney General to submit a statement that the laws of the State 
provide adequate authority to carry out the program described under 40 
CFR 271.6. This statement should include citations to the specific 
statutes, administrative regulations and, where appropriate, judicial 
decisions which demonstrate adequate authority. The State of Nebraska 
has done this. 40 CFR 271.7 further requires that the State statutes 
and regulations cited by the State Attorney General shall be in the 
form of lawfully adopted State statutes and regulations at the time the 
statement is signed and shall be fully effective by the time the 
program is approved. Nebraska's Attorney General has submitted a 
statement which satisfies this requirement.

C. What Decisions Have We Made in This Rule?

    Based on EPA's response to public comments, the Agency has 
determined that approval of Nebraska's RCRA program revisions should 
proceed. EPA has made a final determination 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 its application for program revisions. 
Nebraska has responsibility for carrying out the aspects of the RCRA 
program described in its approved program applications, 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 Nebraska, 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 Nebraska's RCRA program 
revisions, please refer to the preambles of EPA's April 10, 2003, 
Proposed and Immediate Final Rules at 68 FR 17576 and 68 FR 17553, 
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), 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 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 (Pub. L. 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

[[Page 34336]]

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). This 
action will be effective August 8, 2003.

List of Subjects in 40 CFR Part 271

    Environmental protection, Administrative practice and procedure, 
Confidential business information, Hazardous waste, Hazardous waste 
transportation, Incorporation-by-Reference, 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).

James B. Gulliford,
Regional Administrator, Region 7.
[FR Doc. 03-14459 Filed 6-6-03; 8:45 am]
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