[Federal Register Volume 68, Number 112 (Wednesday, June 11, 2003)]
[Rules and Regulations]
[Pages 34829-34831]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-14748]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 271

[FRL-7511-1 ]


Utah: Final Authorization of State Hazardous Waste Management 
Program Revision

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: Utah 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 Utah's hazardous waste 
management program will become effective June 11, 2003.

FOR FURTHER INFORMATION CONTACT: Kris Shurr, 8P-HW, U.S. EPA, Region 
VIII, 999 18th Street, Suite 300, Denver, Colorado 80202-2466, phone 
number: (303) 312-6139 or e-mail: [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.
    Utah initially received Final Authorization on October 10, 1984, 
effective October 24, 1984 (49 FR 39683) to implement its base 
hazardous waste management program. Utah received authorization for 
revisions to its program on February 21, 1989 (54 FR 7417), effective 
March 7, 1989; May 23, 1991 (56 FR 23648) and August 6, 1991 (56 FR 
37291), both effective July 22, 1991; May 15, 1992 (57 FR 20770), 
effective July 14, 1992; February 12, 1993 (58 FR 8232) and May 5, 1993 
(58 FR 26689), both effective April 13, 1993; October 14, 1994 (59 FR 
52084), effective December 13, 1994; May 20, 1997 (62 FR 27501), 
effective July 21, 1997; January 13, 1999 (64 FR 02144), effective 
March 15, 1999; October 16, 2000 (65 FR 61109), effective January 16, 
2001, and May 7, 2002 (67 FR 30599), effective July 7, 2002.
    On February 12, 2003, Utah submitted a final complete program 
revision application, seeking authorization of additional changes to 
its program in accordance with 40 CFR 271.21. On April 10, 2003, EPA 
published both an Immediate Final Rule (68 FR 17556) granting Utah 
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 
17577). 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 May 12, 2003. EPA did receive 
identical written comments from two commenters during the public 
comment period. Today's action responds to the comments EPA received 
and publishes EPA's Final determination granting Utah Final 
authorization of its program revisions. Further background on EPA's 
Immediate Final Rule and its tentative determination to grant 
authorization to Utah for its program revisions appears in the 
aforementioned Federal Register notices. The issues raised by the 
commenters are summarized and responded to in Item B.

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

    Both commenters challenged Region VIII's process for authorizing 
revisions

[[Page 34830]]

to Utah'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 program revision authorizations. Rather, we have proceeded in 
accordance with 40 CFR 271.21, which does not require public hearings. 
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 VIII believes it adhered to the governing 
regulations regarding opportunities for public hearings during the EPA 
approval process for State program revisions. We also believe, 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 40 CFR part 266, subpart C. They appear to 
have concerns about the provisions of Utah 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.'' They argue that Utah'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 Utah's program were authorized by EPA as part of Utah's first 
program revision, which took effect on March 7, 1989--over fourteen 
years ago. Utah's rules currently incorporate the Federal rules by 
reference making them identical. Utah's current revision application, 
for which we recently published a tentative approval, with an 
opportunity for public comment, does not include any regulatory 
revisions to 40 CFR part 266, subpart C. Since the comment we has 
received on ``use constituting disposal'' is not part of Utah's most 
recent program revision application, we believe the public comments on 
``use constituting disposal'' are not within the scope of this Agency 
action.
    Both commenters raised concerns that the ``Express RCRA 
Authorization'' process circumvents the requirements of 40 CFR 271.7. 
They feel that the use of this process fails to identify deficiencies 
in the State program and does not allow the State to have regulations 
that are more protective than the Federal minimum requirements.
    The ``Express RCRA Authorization'' initiative should not be 
confused with the ``Abbreviated Authorization Revisions'' discussed at 
40 CFR 271.21(h). The Abbreviated Authorization Revision process is an 
optional process, may only be used under limited circumstances, and the 
prerequisite provisions must be listed in 40 CFR 271.21, Table 1. Any 
change to this process must be publicly noticed and opportunity for 
public comment provided.
    The ``Express RCRA Authorization'' initiative is only a 
restructuring of the components submitted by the State in an 
authorization revision application. It was designed to make the 
application process more efficient and less resource intensive for the 
States and EPA. Although the submittal format is significantly 
different from what was previously used, all the components required by 
40 CFR 271.21 (and thus, 40 CFR 271.7) are still provided in the 
revision application. Since there was no change in the required 
components, a public notice and public comment period was not required.
    An Express Authorization application now requires a simplified 
State Attorney General's statement which certifies the State's 
statutory authority along with a table identifying the applicable State 
statutes. In the past, the State Attorney General had to submit a 
complex statutory and regulatory statement that could obscure the 
State's statutory authority and often duplicated the rule checklists 
(which are still provided and used as a tool to identify the State's 
equivalent rules). This new statement actually makes the State's 
statutory authority more apparent, rather than less, while maintaining 
all the requirements of 40 CFR 271.7. In addition to clarifying the 
State's statutory authority, the new format also makes it more apparent 
to the Region where the State's rules are different from the Federal 
rules, especially those that are more stringent or broader-in-scope, 
thereby reducing the time to review and approve a revision application. 
The Express Authorization approach does not restrict, in any way, the 
State's ability to adopt rules that are either more protective of human 
health and the environment or broader in scope than the Federal 
program. Nor does it limit the requirement for EPA to make a 
determination that the State's rules are equivalent and no less 
stringent than the Federal rules.
    Both commenters point out that Utah's Solid and Hazardous Waste Act 
at 19-6-102(17)(b)(iii) exempts certain wastes, specifically: fly ash 
waste, bottom ash waste, slag waste, and flue gas emission control 
waste generated primarily for the combustion of coal or other fossil 
fuels, from the definition of solid waste that are not exempt from the 
Federal definition of solid waste at 40 CFR 261.4(b)(4).
    An authorization review generally compares Federal regulations to 
State regulations. We would compare a State statute to a Federal 
regulation only if the State does not adopt a regulation and uses the 
State statute as its equivalent provision. In addition, the review of a 
State program revision focuses on the changes identified by the EPA-
generated checklist (a tool used by both the State and EPA to identify 
all required changes) and any other changes identified by the State. A 
review of a State's entire program is conducted periodically using a 
different review process.
    Our review has determined that Utah has adopted equivalent rules to 
40 CFR

[[Page 34831]]

261.4(b)(4) at R315-2-4(b)(4) where it lists ``fly ash waste, bottom 
ash waste, slag waste, and flue gas emission control waste generated 
primarily for the combustion of coal or other fossil fuels, * * *'' as 
solid wastes which are not hazardous wastes. Since neither the federal 
nor state rules consider these wastes as hazardous wastes, Utah's 
exclusion in its Statutes of these wastes from the definition of solid 
waste is not within the scope of this action.

C. What Decisions Have We Made in This Rule?

    Based on EPA's response to public comments, the Agency has 
determined that approval of Utah's RCRA program revisions should 
proceed. EPA has made a final determination that Utah's application to 
revise its authorized program meets all of the statutory and regulatory 
requirements established by RCRA. Therefore, we grant Utah Final 
authorization to operate its hazardous waste program with the changes 
described in its application for program revisions. Utah 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 adopts 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 
Utah, 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 Utah's RCRA program revisions, please 
refer to the preambles of EPA's April 10, 2003 Proposed and Immediate 
Final Rules at 68 FR 17577 and 68 FR 17556, 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 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 June 11, 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).

    Dated: June 2, 2003.
Robert E. Roberts,
Regional Administrator, Region VIII.
[FR Doc. 03-14748 Filed 6-10-03; 8:45 am]
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