[Federal Register Volume 68, Number 166 (Wednesday, August 27, 2003)]
[Rules and Regulations]
[Pages 51484-51488]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-21594]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 272

[FRL-7479-5]


New Mexico: Incorporation by Reference of Approved State 
Hazardous Waste Management Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Immediate final rule.

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SUMMARY: The Resource Conservation and Recovery Act (RCRA), allows the 
Environmental Protection Agency (EPA) to authorize States to operate 
their hazardous waste management programs in lieu of the Federal 
program. EPA uses the regulations entitled ``Approved State Hazardous 
Waste Management Programs'' to provide notice of the authorization 
status of State programs and to incorporate by reference those 
provisions of the State statutes and regulations that will be subject 
to EPA's inspection and enforcement. The rule codifies in the 
regulations the prior approval of New Mexico's hazardous waste 
management program and incorporates by reference authorized

[[Page 51485]]

provisions of the State's statutes and regulations.

DATES: This regulation is effective October 27, 2003, unless EPA 
receives adverse written comment on this regulation by the close of 
business September 26, 2003. If EPA receives such comments, it will 
publish a timely withdrawal of this immediate final rule in the Federal 
Register informing the public that this rule will not take effect. The 
incorporation by reference of authorized provisions in the New Mexico 
statutes and regulations contained in this rule is approved by the 
Director of the Federal Register as of October 27, 2003 in accordance 
with 5 U.S.C. 552(a) and 1 CFR part 51.

ADDRESSES: Send written comments referring to Docket Number NM-01-02 to 
Alima Patterson, Region 6 Authorization Coordinator, Grants and 
Authorization Section (6PD-G), Multimedia Planning and Permitting 
Division, EPA Region 6, 1445 Ross Avenue, Dallas, Texas 75202-2733, 
Phone number: (214) 665-8533. You can inspect the records related to 
this codification effort from 8:30 a.m. to 4 p.m. Monday through Friday 
in the EPA Region 6 1445 Ross Avenue, Dallas, Texas 75202-2733, Phone 
number: (214) 665-6444.

FOR FURTHER INFORMATION CONTACT: Alima Patterson, Region 6 
Authorization Coordinator, Grants and Authorization Section (6PD-G), 
Multimedia Planning and Permitting Division, EPA Region 6, 1445 Ross 
Avenue, Dallas, Texas 75202-2733, Phone number: (214) 665-8533.

SUPPLEMENTARY INFORMATION: 

A. What Is Codification?

    Codification is the process of placing a State's statutes and 
regulations that comprise the State's authorized hazardous waste 
management program into the Code of Federal Regulations (CFR). Section 
3006(b) of RCRA, as amended, allows the Environmental Protection Agency 
(EPA) to authorize State hazardous waste management programs to operate 
in lieu of the Federal hazardous waste management regulatory program. 
EPA codifies its authorization of State programs in 40 CFR part 272 and 
incorporates by reference State statutes and regulations that EPA will 
enforce under sections 3007 and 3008 of RCRA and any other applicable 
statutory provisions.
    The incorporation by reference of State authorized programs in the 
CFR should substantially enhance the public's ability to discern the 
current status of the authorized State program and State requirements 
that can be Federally enforced. This effort provides clear notice to 
the public of the scope of the authorized program in each State.

B. What Is the History of the Authorization and Codification of New 
Mexico's Hazardous Waste Management Program?

    New Mexico initially received Final authorization effective January 
25, 1985, (50 FR 1515) to implement its Base Hazardous Waste Management 
program. Subsequently, the EPA approved additional program revision 
applications effective April 10, 1990 (55 FR 4604); July 25, 1990 (55 
FR 28397); December 4, 1992 (57 FR 45717); August 23, 1994 (59 FR 
29734); December 21, 1994 (59 FR 51122); July 10, 1995 (60 FR 20238); 
January 2, 1996 (60 FR 53708) as affirmed by EPA in the Federal 
Register notice published on January 26, 1996 (61 FR 2450)); and March 
10, 1997 (61 FR 67474). The EPA incorporated by reference New Mexico's 
then authorized hazardous waste program effective December 13, 1993 (58 
FR 52677); August 21, 1995 (60 FR 32113); November 18, 1996 (61 FR 
49265); and July 13, 1998 (63 FR 23224). Effective October 9, 2001 (66 
FR 42140), EPA granted authorization to New Mexico for additional 
program revisions. In this document, EPA is approving a conforming 
change to the New Mexico regulations at Title 20, Chapter 4, Part 1, 
New Mexico Administrative code, section 20.4.1.1103, and incorporating 
by reference the authorized State hazardous waste program in New 
Mexico. The State's provision at section 20.4.1103 clarifies that 
references to any provisions of 40 CFR Part 280 within the text of any 
other provision of 40 CFR as adopted in Part 1 would mean the New 
Mexico Underground Storage Tank Regulations, 20 NMAC 5.1 through 5.16.

C. What Decisions Have We Made in This Rule?

    The purpose of today's Federal Register document is to codify New 
Mexico's base hazardous waste management program and its revisions to 
that program. EPA provided notices and opportunity for comments on the 
Agency's decisions to authorize the New Mexico program, and EPA is not 
now reopening the decisions, nor requesting comments, on the New Mexico 
authorizations as published in the Federal Register notices specified 
in Section B of this document.
    This document incorporates by reference New Mexico's hazardous 
waste statutes and regulations and clarifies which of these provisions 
are included in the authorized and Federally enforceable program. By 
codifying New Mexico's authorized program and by amending the Code of 
Federal Regulations, the public will be more easily able to discern the 
status of Federally approved requirements of the New Mexico hazardous 
waste management program.
    The EPA is incorporating by reference the New Mexico authorized 
hazardous waste program in subpart GG of 40 CFR part 272. Section 
272.1601 incorporates by reference New Mexico's authorized hazardous 
waste statutes and regulations. Section 272.1601 also references the 
statutory provisions (including procedural and enforcement provisions) 
which provide the legal basis for the State's implementation of the 
hazardous waste management program, the Memorandum of Agreement, the 
Attorney General's Statements and the Program Description, which are 
approved as part of the hazardous waste management program under 
Subtitle C of RCRA.

D. What Is the Effect of New Mexico's Codification on Enforcement?

    The EPA retains its authority under statutory provisions, including 
but not limited to, RCRA sections 3007, 3008, 3013 and 7003, and other 
applicable statutory and regulatory provisions to undertake inspections 
and enforcement actions and to issue orders in authorized States. With 
respect to these actions, the EPA will rely on Federal sanctions, 
Federal inspection authorities, and Federal procedures rather than any 
authorized State analogues to these provisions. Therefore, the EPA is 
not incorporating by reference such particular, approved New Mexico 
procedural and enforcement authorities. Section 272.1601(b)(2) of 40 
CFR lists the statutory provisions which provide the legal basis for 
the State's implementation of the hazardous waste management program, 
as well as those procedural and enforcement authorities that are part 
of the State's approved program, but these are not incorporated by 
reference.

E. What State Provisions Are Not Part of the Codification?

    The public needs to be aware that some provisions of New Mexico's 
hazardous waste management program are not part of the Federally 
authorized State program. These non-authorized provisions include:
    (1) provisions that are not part of the RCRA subtitle C program 
because they are ``broader in scope'' than RCRA subtitle C (see 40 CFR 
271.1(i));
    (2) Federal rules for which New Mexico is not authorized, but which 
have been incorporated into the State

[[Page 51486]]

regulations because of the way the State adopted Federal regulations by 
reference.
    State provisions that are ``broader in scope'' than the Federal 
program are not part of the RCRA authorized program and EPA will not 
enforce them. Therefore, they are not incorporated by reference in 40 
CFR part 272. For reference and clarity, 40 CFR 272.1601(b)(3) lists 
the New Mexico regulatory provisions which are ``broader in scope'' 
than the Federal program and which are not part of the authorized 
program being incorporated by reference. ``Broader in scope'' 
provisions cannot be enforced by EPA; the State, however, may enforce 
such provisions under State law.
    With respect to any requirement pursuant to the Hazardous and Solid 
Waste Amendments of 1984 (HSWA) for which the State has not yet been 
authorized, EPA will continue to enforce the Federal HSWA standards 
until the State is authorized for these provisions.

F. What Will Be the Effect of Federal HSWA Requirements on the 
Codification?

    The EPA is not amending 40 CFR part 272 to include HSWA 
requirements and prohibitions that are implemented by EPA. Section 
3006(g) of RCRA provides that any HSWA requirement or prohibition 
(including implementing regulations) takes effect in authorized and not 
authorized States at the same time. A HSWA requirement or prohibition 
supersedes any less stringent or inconsistent State provision which may 
have been previously authorized by EPA (50 FR 28702, July 15, 1985). 
EPA has the authority to implement HSWA requirements in all States, 
including authorized States, until the States become authorized for 
such requirement or prohibition. Authorized States are required to 
revise their programs to adopt the HSWA requirements and prohibitions, 
and then to seek authorization for those revisions pursuant to 40 CFR 
part 271.
    Instead of amending the 40 CFR part 272 every time a new HSWA 
provision takes effect under the authority of RCRA section 3006(g), EPA 
will wait until the State receives authorization for its analog to the 
new HSWA provision before amending the State's 40 CFR part 272 
incorporation by reference. Until then, persons wanting to know whether 
a HSWA requirement or prohibition is in effect should refer to 40 CFR 
271.1(j), as amended, which lists each such provision.
    Some existing State requirements may be similar to the HSWA 
requirement implemented by EPA. However, until EPA authorizes those 
State requirements, EPA can only enforce the HSWA requirements and not 
the State analogs. EPA will not codify those State requirements until 
the State receives authorization for those requirements.

G. 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 
rule incorporates by reference New Mexico's authorized hazardous waste 
management regulations and does not impose new burdens on small 
entities. 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 rule merely incorporates by reference certain existing State 
hazardous waste management program requirements which EPA already 
approved under 40 CFR part 271, and with which regulated entities must 
already comply, 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 have tribal implications within the 
meaning of Executive Order 13175 (65 FR 67249, November 6, 2000). It 
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 Federal 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 incorporates by reference existing 
authorized State hazardous waste management program requirements 
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.
    The requirements being codified are the result of New Mexico's 
voluntary participation in EPA's State program authorization process 
under RCRA Subtitle C. 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 amended 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 October 27, 2003.

List of Subjects in 40 CFR Part 272

    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, Water pollution control, Water supply.

    Authority: This action is issued under the authority of sections 
2002(a), 3006 and

[[Page 51487]]

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


    Dated: March 27, 2003.
Lawrence E. Starfield,
Acting Regional Administrator, EPA Region 6.

0
For the reasons set forth in the preamble, 40 CFR part 272 is amended 
as follows:

PART 272--APPROVED STATE HAZARDOUS WASTE MANAGEMENT PROGRAMS

0
1. The authority citation for part 272 continues to read as follows:

    Authority: Secs. 2002(a), 3006, and 7004(b) of the Solid Waste 
Disposal Act, as amended by the Resource Conservation and Recovery 
Act, as amended, 42 U.S.C. 6912(a), 6926, and 6974(b).


0
2. Subpart GG is amended by revising Sec.  272.1601 to read as follows:


Sec.  272.1601  New Mexico State-administered Program: Final 
authorization.

    (a) Pursuant to section 3006(b) of RCRA, 42 U.S.C. 6926(b), New 
Mexico has final authorization for the following elements as submitted 
to EPA in New Mexico's base program application for final authorization 
which was approved by EPA effective on January 25, 1985. Subsequent 
program revision applications were approved effective on April 10, 
1990, July 25, 1990, December 4, 1992, August 23, 1994, December 21, 
1994, July 10, 1995, January 2, 1996, March 10, 1997, and October 9, 
2001.
    (b) State Statutes and Regulations.
    (1) The New Mexico regulations cited in paragraph (b)(1)(i) of this 
section are incorporated by reference as part of the hazardous waste 
management program under subtitle C of RCRA, 42 U.S.C. 6921 et seq. 
(See Sec.  272.2).
    (i) The Binder entitled ``EPA Approved New Mexico Statutory and 
Regulatory Requirements Applicable to the Hazardous Waste Management 
Program'', dated October 2001.
    (ii) [Reserved]
    (2) The following provisions provide the legal basis for the 
State's implementation of the hazardous waste management program, but 
they are not being incorporated by reference and do not replace Federal 
authorities:
    (i) New Mexico Statutes 1978 Annotated, Inspection of Public 
Records Act, Chapter 14, Article 2, (1994 Cumulative Supplement), 
sections 14-2-1 et seq.
    (ii) New Mexico Statutes 1978 Annotated, Hazardous Waste Act, 
Chapter 74, Article 4, (1993 Replacement Pamphlet), sections 74-4-4 
(except 74-4-4C), 74-4-4.1, 74-4-4.2C through 74-4-4.2F, 74-4-4.2G(1), 
74-4-4.2H, 74-4-4.2I, 74-4-4.3 (except 74-4-4.3A(2) and 74-4-4.3F), 74-
4-4.7B, 74-4-4.7C, 74-4-5, 74-4-7, 74-4-10, 74-4-10.1 (except 74-4-
10.1C), 74-4-11 through 74-4-14.
    (iii) Title 20, Chapter 4, part 1, New Mexico Administrative Code, 
effective June 14, 2000, sections 20.4.1.901 (except 20.4.1.901.B.1 
through 20.4.1.901.B.6 and 20.4.1.901.E), 20.4.1.1100, 20.4.1.1104, 
20.4.1.1105, and 20.4.1.1107.
    (3)(i) The following statutory and regulatory provisions are 
broader in scope than the Federal program, are not part of the 
authorized program, and are not incorporated by reference:
    (ii) New Mexico Statutes 1978 Annotated, Hazardous Waste Act, 
Chapter 74, Article 4, (1993 Replacement Pamphlet), sections 74-4-3.3 
and 74-4-4.2J.
    (4) Unauthorized State Amendments.--(i) The State's adoption of the 
Federal rules listed in the following table is not approved by EPA and 
are, therefore, not enforceable:

------------------------------------------------------------------------
                                      Federal Register      Publication
        Federal requirement               reference            date
------------------------------------------------------------------------
Biennial Report...................  48 FR 3977..........        01/28/83
Permit Rules; Settlement Agreement  48 FR 39611.........        09/01/83
Interim Status Standards;           48 FR 52718.........        11/22/83
 Applicability.
Chlorinated Aliphatic Hydrocarbon   49 FR 5308..........        02/10/84
 Listing (F024).
National Uniform Manifest.........  49 FR 10490.........        03/20/84
Recycled Used Oil Management        57 FR 41566:                09/10/92
 Standards.                          Amendments to 40
                                     CFR parts 260, 261
                                     and 266.
                                    58 FR 26420:                05/03/93
                                     Amendments to 40
                                     CFR parts 261, 264
                                     and 265.
                                    58 FR 33341:                06/17/93
                                     Amendments to 40
                                     CFR parts 261, 264
                                     and 265.
                                    63 FR 24963:                05/06/98
                                     Amendments to 40
                                     CFR part 261.
Revision of Conditional Exemption   59 FR 8362..........        02/18/94
 for Small Scale Treatability
 Studies.
Letter of Credit Revision.........  59 FR 29958.........        06/10/94
Universal Waste Rule, Petition      60 FR 25492.........        05/11/95
 Provisions to Add a New Universal
 Waste.
Recovered Used Oil Exclusion;       61 FR 13103.........        03/26/96
 Correction.
Mineral Processing Secondary        63 FR 28556;                06/26/98
 Materials.                          Amendments to 40
                                     CFR part 261.
Hazardous Remediation Waste         63 FR 65874.........        11/30/98
 Requirements (HWIR-Media), except
 as they apply to the standards
 for staging piles and to 40 CFR
 264.1(j) and 264.101(d).
------------------------------------------------------------------------

    (ii) Additionally, New Mexico has adopted but is not authorized to 
implement the HSWA rules that are listed in the following table in lieu 
of EPA. EPA will continue to enforce the Federal HSWA standards for 
which New Mexico is not authorized until the State receives specific 
authorization from EPA:

------------------------------------------------------------------------
                                      Federal Register      Publication
        Federal requirement               reference            date
------------------------------------------------------------------------
Toxicity Characteristic;            55 FR 40834.........        10/05/90
 Hydrocarbon Recovery Operations.   56 FR 3978..........        02/01/91
                                    56 FR 13406.........        04/02/91
Toxicity Characteristic;            56 FR 5910..........        02/13/91
 Chlorofluorocarbon Refrigerants.

[[Page 51488]]

 
Revisions to the Petroleum          56 FR 21955.........        05/13/91
 Refining Primary and Secondary
 Oil/Water/Solids Separation
 Sludge Listings (F037 and F038).
Boilers and Industrial Furnaces;    58 FR 59598.........        11/09/93
 Administrative Stay and Interim
 Standards for Bevill Residues.
Hazardous Remediation Waste         63 FR 65874.........        11/30/98
 Requirements (HWIR-Media), to the
 extent that they apply to the
 standards for staging piles and
 to 40 CFR 264.1(j) and 264.101(d).
------------------------------------------------------------------------

    (5) Memorandum of Agreement. The Memorandum of Agreement between 
EPA Region 6 and the State of New Mexico, signed by the EPA Regional 
Administrator on July 30, 2001, is referenced as part of the authorized 
hazardous waste management program under subtitle C of RCRA, 42 U.S.C. 
6921 et seq.
    (6) Statement of Legal Authority. ``Attorney General's Statement 
for Final Authorization'', signed by the Attorney General of New Mexico 
January, 1985, and revisions, supplements and addenda to that Statement 
dated April 13, 1988; September 14, 1988; July 19, 1989; July 23, 1992; 
February 14, 1994; July 18, 1994; July 20, 1994; August 11, 1994; 
November 28, 1994; August 24, 1995; and January 12, 1996; and June 14, 
2000 are referenced as part of the authorized hazardous waste 
management program under subtitle C of RCRA, 42 U.S.C. 6921 et seq.
    (7) Program Description. The Program Description and any other 
materials submitted as supplements thereto are referenced as part of 
the authorized hazardous waste management program under subtitle C of 
RCRA, 42 U.S.C. 6921 et seq.

0
3. Appendix A to Part 272 is amended by revising the listing for `` New 
Mexico'' to read as follows:

Appendix A to Part 272--State Requirements

* * * * *

New Mexico

    The statutory provisions include:
    New Mexico Statutes 1978 Annotated, Hazardous Waste Act, Chapter 
74, Article 4 (1993 Replacement Pamphlet), sections 74-4-2, 74-4-3 
(except 74-4-3L, 74-4-3O and 74-4-3R), 74-4-3.1, 74-4-4.2A, 74-4-4.2B, 
74-4-4.2G introductory paragraph, 74-4-4.2G(2), 74-4-4.3F, 74-4-4.7 
(except 74-4-4.7B and 74-4-4.7C), 74-4-9 and 74-4-10.1C, as published 
by the Michie Company, Law Publishers, 1 Town Hall Square, 
Charlottesville, Virginia 22906-7587.
    The regulatory provisions include:
    Title 20, Chapter 4, part 1, New Mexico Annotated Code, effective 
June 14, 2000, sections 20.4.100, 20.4.1.101, 20.4.1.200, 20.4.1.300, 
20.4.1.400, 20.4.1.401, 20.4.1.500, 20.4.1.501, 20.4.1.600, 20.4.1.601, 
20.4.1.700, 20.4.1.800, 20.4.801, 20.4.1.900, 20.4.1.901.B.1 through 
20.4.1.901.B.6, 20.4.1.901.E, 20.4.1.1000, 20.4.1.1001, 20.4.1.1102 and 
20.4.1103. Copies of the New Mexico regulations can be obtained from 
the New Mexico Commission of Public Records, State Records Center and 
Archives, Administrative Law Division, 1205 Camino Carlos Rey, Santa 
Fe, NM 87507.
* * * * *

[FR Doc. 03-21594 Filed 8-26-03; 8:45 am]
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