[Federal Register Volume 73, Number 190 (Tuesday, September 30, 2008)]
[Proposed Rules]
[Pages 56775-56779]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-22800]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 271

[EPA-R10-RCRA-2008-0588; FRL-8722-5]


Idaho: Proposed Authorization of State Hazardous Waste Management 
Program Revision

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: Idaho has applied to EPA for final authorization of certain 
changes to its hazardous waste program under the Resource Conservation 
and Recovery

[[Page 56776]]

Act, as amended (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 by October 30, 
2008.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R10-
RCRA-2008-0588, by one of the following methods:
     http://www.regulations.gov: Follow the on-line 
instructions for submitting comments.
     E-mail: [email protected].
     Mail: Nina Kocourek, U.S. Environmental Protection Agency, 
Region 10, Office of Air, Waste & Toxics (AWT-122), 1200 Sixth Avenue, 
Suite 900, Seattle, Washington 98101.
    Instructions: Direct your comments to Docket ID No. EPA-R10-RCRA-
2008-0588. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through http://www.regulations.gov, or e-mail. The http://www.regulations.gov Web site 
is an ``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through http://www.regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters or any form of encryption, and be free of 
any defects or viruses. For additional information about EPA's public 
docket, visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in http://www.regulations.gov or in hard copy during normal business 
hours at the U.S. Environmental Protection Agency, Region 10, Office of 
Air, Waste & Toxics, Mailstop AWT-122, 1200 Sixth Avenue, Suite 900, 
Seattle, Washington 98101, contact: Nina Kocourek, phone number: (206) 
553-6502; or the Idaho Department of Environmental Quality, 1410 N. 
Hilton, Boise, Idaho, contact: John Brueck, phone number: (208) 373-
0458.

FOR FURTHER INFORMATION CONTACT: Nina Kocourek, U.S. Environmental 
Protection Agency, Region 10, Office of Air, Waste & Toxics (AWT-122), 
1200 Sixth Avenue, Suite 900, Seattle, Washington 98101, phone number: 
(206) 553-6502, 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 codified in Title 40 of the Code of Federal 
Regulations (CFR) Parts 124, 260 through 268, 270, 273, and 279.

B. What Decisions Have We Made in This Proposed 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, and which are not less 
stringent than existing requirements, 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 Federal 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 this program, but EPA retains its authority 
under RCRA sections 3007, 3008, 3013, and 7003, which includes, among 
others, the authority to:
     Conduct inspections; require monitoring, tests, analyses, 
or reports;
     Enforce RCRA requirements; suspend, terminate, modify or 
revoke permits; and
     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 on This Action?

    If EPA receives comments on this action, 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.

[[Page 56777]]

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 
Idaho's authorized 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); July 1, 2001, effective 
July 1, 2001 (67 FR 44069); March 10, 2004, effective March 10, 2004 
(69 FR 11322); July 22, 2005, effective July 22, 2005 (70 FR 42273); 
and February 26, 2007, effective February 26, 2007 (72 FR 8283).

F. What Changes Are We Proposing?

    On June 24, 2008, Idaho submitted a program revision application 
seeking authorization for all delegable Federal hazardous waste 
regulations codified as of July 1, 2007, incorporated by reference in 
IDAPA 58.01.05.(002)-(016) and (018).

G. Who Handles Permits After the Authorization Takes Effect?

    Idaho will continue to issue permits for all the provisions for 
which it is authorized and administer the permits it issues. If EPA 
issued permits prior to authorizing Idaho for these revisions, these 
permits would continue in force until the effective date of the State's 
issuance or denial of a State hazardous waste permit, at which time EPA 
would modify the existing EPA permit to expire at an earlier date, 
terminate the existing EPA permit for cause, or allow the existing EPA 
permit to otherwise expire by its terms, except for those facilities 
located in Indian Country. EPA will not issue 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 Proposed 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. This is done by 
referencing the authorized State rules in 40 CFR Part 272. Through 
codification actions dated December 6, 1990 (55 FR 50327); June 11, 
1992 (57 FR 24757); June 25, 1999 (64 FR 34180); March 8, 2005 (70 FR 
11132); and April 20, 2006 (71 FR 20341), EPA codified at 40 CFR Part 
272, Subpart N previous authorization actions for the State of Idaho 
program. EPA is reserving the amendment of 40 CFR Part 272, Subpart N 
for codification to 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 will 
continue to implement and administer the RCRA program on these lands.

J. Statutory and Executive Order Reviews

    This proposed rule seeks to revise the State of Idaho's authorized 
hazardous waste program pursuant to section 3006 of RCRA and imposes no 
requirements other than those currently imposed by State law. This 
proposed rule complies with applicable executive orders and statutory 
provisions as follows:

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 Executive 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. EPA has 
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

    This proposed action does not impose an information collection 
burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 
3501 et seq., because this proposed rule does not establish or modify 
any information or recordkeeping requirements for the regulated 
community and only seeks to authorize the pre-existing requirements 
under State law and imposes no additional requirements beyond those 
imposed by State law.
    Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, or disclose or 
provide information to or for a Federal agency. This includes the time 
needed to review instructions; develop, acquire, install, and utilize 
technology and systems for the purposes of collecting, validating, and 
verifying information, processing, and maintaining information, and 
disclosing and providing information; adjust the existing ways to 
comply with any previously applicable instructions and requirements; 
train personnel to be able to respond to a collection of information; 
search data sources; complete and review the collection of information; 
and transmit or otherwise disclose the information.
    An agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations in Title 40 of the CFR are listed in 40 CFR Part 9.

3. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA), 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 proposed rule on small 
entities, small entity is defined as: (1) A small business defined by 
the Small Business Administration's size regulations at 13 CFR Part 
121.201; (2) a small governmental jurisdiction that is a government of 
a city, county, town,

[[Page 56778]]

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 economic impact on small entities because the 
proposed rule will only have the effect of authorizing pre-existing 
requirements under State law and imposes no additional requirements 
beyond those imposed by 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. EPA continues to be interested in the potential impacts of 
the proposed rule on small entities and welcomes 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 
one 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 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. Today's 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. It 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, today's proposed rule is not subject 
to the requirements of sections 202 and 203 of the UMRA.

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 rule proposes to authorize pre-existing 
State rules. Thus, Executive Order 13132 does not apply to this 
proposed rule. In the spirit of Executive Order 13132, and consistent 
with EPA policy to promote communications between EPA and State and 
local governments, EPA specifically solicits comment on this proposed 
rule from State and local officials.

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

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (59 FR 22951, 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 because 
EPA retains its authority over Indian Country. 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

    EPA interprets EO 13045 (62 F.R. 19885, April 23, 1997) as applying 
only to those regulatory actions that concern health or safety risks, 
such that the analysis required under section 5-501 of the EO has the 
potential to influence the regulation. This action is not subject to EO 
13045 because it approves a state program.

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

    This proposed 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 (``NTTAA''), Public Law 104-113, 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 NTTAA directs EPA to provide Congress, 
through OMB, explanations when the Agency decides not to use available 
and applicable voluntary consensus standards. This proposed rulemaking 
does not involve technical standards. Therefore, EPA is not considering 
the use of any voluntary consensus standards.

10. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low Income Populations

    Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes 
federal executive policy on environmental justice. Its main provision 
directs federal agencies, to the greatest extent practicable and 
permitted by law, to

[[Page 56779]]

make environmental justice part of their mission by identifying and 
addressing, as appropriate, disproportionately high and adverse human 
health or environmental effects of their programs, policies, and 
activities on minority populations and low-income populations in the 
United States. EPA has determined that this proposed rule will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations. This proposed rule does 
not affect the level of protection provided to human health or the 
environment because this rule proposes to authorize pre-existing State 
rules which are equivalent to, and no less stringent than existing 
federal requirements.

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: September 18, 2008.
Elin D. Miller,
Regional Administrator, Region 10.
[FR Doc. E8-22800 Filed 9-29-08; 8:45 am]
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