[Federal Register Volume 68, Number 148 (Friday, August 1, 2003)]
[Proposed Rules]
[Pages 45192-45195]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-18738]


=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 271

[FRL-7528-6]


Idaho: Proposed Authorization of State Hazardous Waste Management 
Program Revision

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: Idaho has applied to EPA for final authorization of certain 
changes to its hazardous waste program under the Resource Conservation 
and Recovery Act (RCRA). EPA has reviewed Idaho's application, has 
preliminarily determined that these changes satisfy all requirements 
needed to qualify for final authorization, and is proposing to 
authorize the state's changes.

DATES: Comments on this proposed rule must be received in writing by 
September 15, 2003.

ADDRESSES: Send written comments to Jeff Hunt, U.S. Environmental 
Protection Agency Region 10, Office of Waste and Chemicals (WCM-122), 
1200 Sixth Ave, Seattle, Washington 98101. You can view and copy 
Idaho's application during normal business hours at the following 
addresses: U.S. Environmental Protection Agency Region 10, Office of 
Waste and Chemicals, 1200 Sixth Ave, Seattle, Washington, contact: Jeff 
Hunt, phone number: (206) 553-0256; or Idaho Department of 
Environmental Quality, 1410 N. Hilton, Boise, Idaho, contact: John 
Brueck, phone number (208) 373-0458.

FOR FURTHER INFORMATION CONTACT: Jeff Hunt, U.S. Environmental 
Protection

[[Page 45193]]

Agency Region 10, Office of Waste and Chemicals (WCM-122), 1200 Sixth 
Ave, Seattle, Washington 98101, phone number: (206) 553-0256.

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 Preliminary Decisions Have We Made in This Rule?

    EPA has preliminarily determined that Idaho's application to revise 
its authorized program meets all of the statutory and regulatory 
requirements established by RCRA. Therefore, we are proposing to grant 
Idaho final authorization to operate its hazardous waste program with 
the changes described in the authorization application. Idaho will have 
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 the states are authorized for the requirements. Thus, EPA 
will implement those requirements and prohibitions in Idaho, including 
issuing permits, until the State is granted authorization to do so.

C. What Will Be the Effect if Idaho Is Authorized for These Changes?

    If Idaho is authorized for these changes, a facility in Idaho 
subject to RCRA will have to comply with the authorized State 
requirements in lieu of the corresponding federal requirements in order 
to comply with RCRA. Additionally, such persons will have to comply 
with any applicable federally-issued requirements, such as, for 
example, HSWA regulations issued by EPA for which the State has not 
received authorization, and RCRA requirements that are not supplanted 
by authorized State-issued requirements. Idaho continues to have 
enforcement responsibilities under its state hazardous waste management 
program for violations of such program, but EPA retains its authority 
under RCRA sections 3007, 3008, 3013, and 7003, which include, among 
others, the authority to:
    [sbull] Conduct inspections; require monitoring, tests, analyses or 
reports;
    [sbull] Enforce RCRA requirements; suspend or revoke permits; and
    [sbull] Take enforcement actions regardless of whether the State 
has taken its own actions.
    The action to approve these revisions would not impose additional 
requirements on the regulated community because the regulations for 
which Idaho will be authorized are already effective under State law 
and are not changed by the act of authorization.

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

    If EPA receives comments that oppose this authorization, we will 
address those 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.

E. What Has Idaho Previously Been Authorized for?

    Idaho initially received final authorization on March 26, 1990, 
effective April 9, 1990 (55 FR 11015) to implement the RCRA hazardous 
waste management program. EPA granted authorization for changes to 
their program on April 6, 1992, effective June 5, 1992 (57 FR 11580), 
June 11, 1992, effective August 10, 1992 (57 FR 24757), April 12, 1995, 
effective June 11, 1995 (60 FR 18549), October 21, 1998, effective 
January 19, 1999 (63 FR 56086), and July 1, 2001, effective July 1, 
2001 (67 FR 44069).

F. What Changes Are We Proposing?

    On June 6, 2003, Idaho submitted a complete program revision 
application, seeking authorization for all delegable federal hazardous 
waste regulations codified as of July 1, 2001, as incorporated by 
reference in IDAPA 58.01.05.(002)-(016) and 58.01.05.997, except 
specific portions of the post closure rule noted in the paragraphs 
below \1\. We have preliminarily determined that Idaho's hazardous 
waste program revision satisfies all of the requirements necessary to 
qualify for final authorization, and EPA is proposing to authorize the 
state's changes.
---------------------------------------------------------------------------

    \1\ Sections of the Federal hazardous waste program are not 
delegable to the states. These sections are 40 CFR part 262, 
subparts, E, F, & H; 40 CFR 268.5; 40 CFR 268.42(b); 40 CFR 
268.44(a)-(g); and 40 CFR 268.6. Authority for implementing the 
provisions contained in these sections remains with EPA.
---------------------------------------------------------------------------

    In this program revision application, Idaho is seeking partial 
authorization of the Post Closure Rule promulgated on October 22, 1998 
(63 FR 56710). Idaho is not seeking authorization for 40 CFR 
270.1(c)(7), Enforceable documents for post-closure care, 40 CFR 
265.121 Post-closure requirements for facilities that obtain 
enforceable documents in lieu of post-closure permits, 40 CFR 
265.110(c), and 40 CFR 265.118(c)(4). These provisions are described in 
the rule preamble at 63 FR 56712 section a. Post-closure care under 
alternatives to permits. Idaho is seeking authorization for 40 CFR 
264.90(f), 264.110(c), 264.140(d), 265.90(f), 265.110(d), and 
265.140(d), as described in the rule preamble at 63 FR 56713, b. 
Remediation requirements for land-based units with releases to the 
environment. Idaho is also seeking authorization of 40 CFR 270.28, as 
described in the rule preamble at 63 FR 56713, c. Post-closure permit 
information submission requirements.
    Idaho is seeking authorization for 40 CFR 264.90(e), 264.90(f), 
264.110(c), 264.112(b)(8), 264.112(c)(2)(iv), 264.118(b)(4), 
264.118(d)(2)(iv), 264.140(d), 265.90(f), 265.110(d), 265.112(b)(8), 
265.118(c)(5), 265.140(d), 270.1(c) introduction, and 270.28, except 
where those sections reference the use of enforceable documents. Idaho 
does not seek authorization for language in those sections which states 
as follows: ``* * * or in an enforceable document (as defined in 
270.1(c)(7).''

G. Who Handles Permits After the Authorization Takes Effect?

    Idaho will issue permits for all the provisions for which it is 
authorized and will administer the permits it issues. All permits 
issued by EPA prior to EPA authorizing Idaho for these revisions will 
continue in force until the effective date of the State's issuance or 
denial of a State RCRA permit, or until the permit otherwise expires or 
is revoked. However, EPA will administer any RCRA hazardous waste 
permits or portions of permits which EPA issued prior to the effective 
date of this authorization and until such time as Idaho's is effective 
and EPA's has expired. EPA will not issue any more

[[Page 45194]]

new permits or new portions of permits for provisions for which Idaho 
is authorized after the effective date of this authorization. EPA will 
continue to implement and issue permits for HSWA requirements for which 
Idaho is not yet authorized.

H. What Is Codification and Is EPA Codifying Idaho'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. Through three 
codification actions dated December 6, 1990 (55 FR 50327), June 11, 
1992 (57 FR 24757), and June 25, 1999 (64 FR 34180) the EPA codified at 
40 CFR part 272, subpart N all authorization actions for the State of 
Idaho RCRA program, except the most recent authorization revision 
published on July 1, 2001.
    We reserve the amendment of 40 CFR part 272, subpart N for this 
authorization of Idaho's program changes until a later date.

I. How Would Authorizing Idaho for These Revisions Affect Indian 
Country (18 U.S.C. 1151) in Idaho?

    Idaho is not authorized to carry out its hazardous waste program in 
Indian country, as defined in 18 U.S.C. 1151. Indian country includes:
    1. All lands within the exterior boundaries of Indian reservations 
within or abutting the State of Idaho;
    2. Any land held in trust by the U.S. for an Indian tribe; and
    3. Any other land, whether on or off an Indian reservation that 
qualifies as Indian country. Therefore, this action has no effect on 
Indian country. EPA retains the authority to implement and administer 
the RCRA program in Indian country.

J. Statutory and Executive Order Reviews

1. Executive Order 12866

    Under Executive Order 12866 (58 FR 51735, October 4,1993), the 
Agency must determine whether the regulatory action is ``significant,'' 
and therefore subject to OMB review and the requirements of the 
Executive Order. The Order defines ``significant regulatory action'' as 
one that is likely to result in a rule that may: (1) Have an annual 
effect on the economy of $100 million or more, or adversely affect in a 
material way, the economy, a sector of the economy, productivity, 
competition, jobs, the environment, public health or safety, or State, 
local or tribal governments or communities; (2) create a serious 
inconsistency or otherwise interfere with an action taken or planned by 
another agency; (3) materially alter the budgetary impact of 
entitlements, grants, user fees, or loan programs, or the rights and 
obligations of recipients thereof; or (4) raise novel legal or policy 
issues arising out of legal mandates, the President's priorities, or 
the principles set forth in the Executive Order. It has been determined 
that this proposed Rule is not a ``significant regulatory action'' 
under the terms of Executive Order 12866 and is therefore not subject 
to OMB review.

2. Paperwork Reduction Act

    The Paperwork Reduction Act, 44 U.S.C. 3501, et seq., is intended 
to minimize the reporting and recordkeeping burden on the regulated 
community, as well as to minimize the cost of Federal information 
collection and dissemination. In general, the Act requires that 
information requests and record-keeping requirements affecting ten or 
more non-Federal respondents be approved by OPM. Since the proposed 
Rule does not establish or modify any information or recordkeeping 
requirements for the regulated community, it is not subject to the 
provisions of the Paperwork Reduction Act.

3. Regulatory Flexibility

    The Regulatory Flexibility Act (RFA), as amended by the Small 
Business Regulatory Enforcement Fairness Act (SBREFA), 5 U.S.C. 601 et. 
seq., generally requires federal agencies 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 rule on small entities, small entity is defined as: (1) A small 
business, as codified in the Small Business Size Regulations at 13 CFR 
part 121; (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. EPA has determined that this action 
will not have a significant impact on small entities because the 
proposed Rule will only have the effect of authorizing pre-existing 
requirements under State law. After considering the economic impacts of 
today's proposed rule, I certify that this action will not have a 
significant economic impact on a substantial number of small entities. 
We continue to be interested in the potential impacts of the proposed 
rule on small entities and welcome comments on issues related to such 
impacts.

4. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act (UMRA) of 1995 (Pub. 
L. 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 
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 the 
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.
    This proposed rule contains no Federal mandates (under the 
regulatory provisions of Title II of the UMRA) for State, local or 
tribal governments or the private sector. The proposed rule authorizes 
pre-existing requirements

[[Page 45195]]

under State law and imposes no new enforceable duty on any State, local 
or tribal governments or the private sector. Similarly, EPA has also 
determined that this proposed rule contains no regulatory requirements 
that might significantly or uniquely affect small government entities. 
Thus, the requirements of section 203 of the UMRA do not apply to this 
rule.

5. 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 various levels of government.''
    This proposed rule does not have federalism implications. It 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 various levels of government, as 
specified in Executive Order 13132. This proposed rule only authorizes 
existing State rules as part of the State RCRA hazardous waste program.

6. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' This proposed rule does not 
have tribal implications, as specified in Executive Order 13175. The 
rule proposes to authorize existing state rules and does not establish 
any regulatory policy with tribal implications. Thus, Executive Order 
13175 does not apply to this proposed rule. EPA specifically solicits 
additional comment on this proposed rule from tribal officials.

7. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    Executive Order 13045 applies to any rule that: (1) Is determined 
to be ``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.
    This proposed rule is not subject to Executive Order 13045 because 
it is not economically significant as defined in Executive Order 12866 
and because the Agency does not have reason to believe the 
environmental health or safety risks addressed by this proposed action 
present a disproportionate risk to children.

8. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    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'' as defined under Executive Order 
12866.

9. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTAA''), Public Law 104-113, section 12(d) (15 U.S.C. 
272) 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 bodies. The NTAA directs EPA to provide Congress, 
through the OMB, explanations when the Agency decides not to use 
available and applicable voluntary consensus standards. This proposed 
rulemaking does not involve ``technical standards'' as defined by the 
NTAA. Therefore, EPA is not considering 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 materials transportation, 
Hazardous waste, Indians-lands, Intergovernmental relations, Penalties, 
Reporting and recordkeeping requirements.

    Authority: This proposed 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: July 9, 2003.
Ronald Kreizenbeck,
Acting Regional Administrator, Region 10.
[FR Doc. 03-18738 Filed 7-31-03; 8:45 am]
BILLING CODE 6560-50-P