[Federal Register Volume 74, Number 154 (Wednesday, August 12, 2009)]
[Rules and Regulations]
[Pages 40518-40521]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-19315]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 271

[EPA-R08-RCRA-2009-0341; FRL-8941-1]


Colorado: Final Authorization of State Hazardous Waste Management 
Program Revisions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Immediate final rule.

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SUMMARY: The Solid Waste Disposal Act, as amended, commonly referred to 
as 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. Colorado has applied to the EPA for final authorization of 
changes to its hazardous waste program under RCRA. EPA has determined 
that these changes satisfy all requirements needed to qualify for final 
authorization, and is authorizing the state's changes through this 
immediate final action.

DATES: This final authorization will become effective on October 13, 
2009 unless the EPA receives adverse written comments by September 11, 
2009. If adverse written comments are received, EPA will publish a 
timely withdrawal of this immediate final rule in the Federal Register 
and inform the public that this authorization will not take effect.

ADDRESSES: Submit your comments, identified by Docket No. EPA-R08-RCRA-
2009-0341, by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the on-line instructions for submitting comments.
     E-mail: [email protected].
     Fax: (303) 312-6341.
     Mail: Christina Cosentini, Region 8, Solid and Hazardous 
Waste Program, U.S. EPA, Region 8, 1595 Wynkoop Street, Denver, 
Colorado 80202-1129, phone number: (303) 312-6231.
     Hand Delivery or Courier: Deliver your comments to 
Christina Cosentini, Region 8, Solid and Hazardous Waste Program, 
Mailcode 8P-HW, U.S. EPA, Region 8, 1595 Wynkoop Street, Denver, 
Colorado 80202-1129, phone number: (303) 312-6231.
    Instructions: Direct your comments to Docket ID No. EPA-R08-RCRA-
2009-0341. EPA's policy is that all comments received will be included 
in the public docket without change, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information, 
disclosure of which is restricted by statute. Do not submit information 
that you consider to be CBI or otherwise protected from disclosure 
through http://www.regulations.gov, or e-mail. The federal Web site, 
http://www.regulations.gov, 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, 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 may not be 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 through http://www.regulations.gov or in hard copy from 
9 a.m. to 4 p.m. at: EPA Region 8, 1595 Wynkoop Street, Denver, 
Colorado, contact: Christina Cosentini, phone number (303) 312-6231, or 
the Colorado Department of Public Health and Environment, 4300 Cherry 
Creek Drive South, Denver, Colorado 80222-1530, contact: Randy Perila, 
phone number (303) 692-3364. The public is advised to call in advance 
to verify business hours.

FOR FURTHER INFORMATION CONTACT: Christina Cosentini, (303) 312-6231, 
[email protected] or Randy Perila, (303) 692-3364, 
[email protected].

SUPPLEMENTARY INFORMATION: 

A. Why Are Revisions to State Programs Necessary?

    States that 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 the 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 
the EPA's regulations in 40 Code of Federal Regulations (CFR) parts 
124, 260 through 266, 268, 270, 273, and 279.

B. What Decisions Have We Made in This Rule?

    We conclude that Colorado's application to revise its authorized 
program meets all of the statutory and

[[Page 40519]]

regulatory requirements established by RCRA. Therefore, we grant 
Colorado Final Authorization to operate its hazardous waste program 
with the changes described in the authorization application. Colorado 
has 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 the 
EPA promulgates under the authority of HSWA take effect in authorized 
states before they are authorized for the requirements. Thus, the EPA 
will implement those requirements and prohibitions in Colorado 
including issuing permits, until Colorado is authorized to do so.

C. What Is the Effect of Today's Authorization Decision?

    This decision means that a facility in Colorado subject to RCRA 
will now have to comply with the authorized state requirements instead 
of the equivalent Federal requirements in order to comply with RCRA. 
Colorado has enforcement responsibilities under its state hazardous 
waste program for violations of such program, but EPA retains its 
authority under RCRA sections 3007, 3008, 3013, and 7003, which 
include, among others, authority to: (1) Conduct inspections, and 
require monitoring, tests, analyses, or reports; (2) enforce RCRA 
requirements, suspend or revoke permits, and, (3) take enforcement 
action regardless of whether Colorado has taken its own actions.
    This action does not impose additional requirements on the 
regulated community because the regulations for which Colorado is being 
authorized by this action are already effective under state law, and 
are not changed by this action.

D. Why Wasn't There a Proposed Rule Before Today's Rule?

    EPA did not publish a proposal before this rule because we view 
this as a routine program change. We are providing an opportunity for 
the public to comment now. In addition to this rule, we are publishing 
a separate document that proposes to authorize the state program 
changes in the proposed rules section of today's Federal Register.

E. What Happens if the EPA Receives Comments That Oppose This Action?

    If the EPA receives comments that oppose this authorization, we 
will withdraw this rule by publishing a document in the Federal 
Register before the rule becomes effective. We will then address all 
public comments in a later Federal Register notice. You may not have 
another opportunity to comment. If you want to comment on this 
authorization, you must do so at this time.
    If we receive comments that oppose only the authorization of a 
particular change to the Colorado hazardous waste program, we will 
withdraw only that part of this rule, but the authorization of the 
program changes that the comments do not oppose will become effective 
on the date specified in this document. The Federal Register withdrawal 
document will specify which part of the authorization will become 
effective, and which part is being withdrawn.

F. For What Has Colorado Previously Been Authorized?

    Colorado initially received final authorization on October 19, 
1984, effective November 2, 1984 (49 FR 41036), to implement the RCRA 
hazardous waste management program. We granted authorization for 
changes to the state's program on: October 24, 1986, effective November 
7; 1986 (51 FR 37729), May 15, 1989, effective July 14, 1989 (54 FR 
20847); May 10, 1991, effective July 9, 1991 (56 FR 21601); April 7, 
1994, effective June 6, 1994 (59 FR 16568); November 14, 2003, 
effective January 13, 2004 (68 FR 64550) and March 12, 2008 (73 FR 
13141) effective May 12, 2008.

G. What Changes Are We Approving With Today's Action?

    Colorado submitted a final complete program application on December 
20, 2006, seeking authorization of their changes in accordance with 40 
CFR 271.21. We now make an immediate final decision, subject to receipt 
of written comments that oppose this action, that Colorado's hazardous 
waste program revisions satisfy all of the requirements necessary to 
qualify for final authorization. The state of Colorado is not seeking 
to be authorized for Methods Innovation Rule and SW-846 Update 
(Checklist 208). Rather, Colorado's revisions consist of regulations 
that specifically govern Federal Hazardous Waste revisions promulgated 
from July 1, 2004 through June 30, 2005 (RCRA Clusters XV). Colorado's 
requirements are included in a chart with this document.

------------------------------------------------------------------------
                                 Federal Register
    Description of federal        date and page
requirement (include checklist     (and/or RCRA       Analogous state
    , if relevant)         statutory            authority
                                    authority)
------------------------------------------------------------------------
Nonwastewaters from Dyes and    70 FR 9138-9180    Colorado Hazardous
 Pigments. (Checklist 206).      February 24,       Regulations, 6 CCR
                                 2005.              1007-3 effective
                                                    July 2, 2006; 261.4,
                                                    261.4(b)(15),
                                                    261.4(b)(15(i)-(v),
                                                    261.32, 261.32(a)-
                                                    (d), 261.32(d)(1)-
                                                    (d)(2),
                                                    261.32(d)(2)(i)-(iv)
                                                    , 261.32(iv)(A)-(C),
                                                    261.32(d)(3),
                                                    261.32(d)(3)(i)-(iii
                                                    ), 261.32(d)(iii)(A)-
                                                    (D),
                                                    261.32(d)(3)(iv),
                                                    261.32(d)(3)(iv)(A)-
                                                    (B), 261.32(d)(3)(v)-
                                                    (x), 261.32(x)(A)-
                                                    (D),
                                                    261.32(d)(3)(xi),
                                                    261.32(d)(xi)(A)-(C)
                                                    , 261.32(d)(4)-(5),
                                                    261 Appendices VII-
                                                    VIII, 268.20,
                                                    268.20(a)-(b),
                                                    268.20(b)(1)-(5),
                                                    268.20(c) 268.40/
                                                    Treatment Standard
                                                    Table and 268.48/
                                                    Universal Waste
                                                    Treatment Standard
                                                    Table.

[[Page 40520]]

 
Uniform Hazardous Waste         70 FR 10776 March  Colorado Hazardous
 Manifest Rule (Checklist 207).  4, 2005.           Regulations, 6 CCR
                                                    1007-3 effective
                                                    July 2, 2006;
                                                    260.10,
                                                    261.7(b)(1)(iii)(A)-
                                                    (B), 262.20,
                                                    262.20(a)(1),
                                                    262.20(a)(2), 262.21/
                                                    Section heading,
                                                    262.21(a)(1)-(2),
                                                    262.21(b),
                                                    262.21(b)(1)-(5),
                                                    262.21(b)(5)(i)-(iii
                                                    ), 262.21(b)(6)-(8),
                                                    262.21(c),
                                                    262.21(d)(1)-(2),
                                                    262.21(d)(2)(i)-(iv)
                                                    , 262.21(d)(3),
                                                    262.21(e)-(f),
                                                    262.21(f)(1)-(6),
                                                    262.21(f)(6)(i)-(vi)
                                                    , 262.21(f)(7),
                                                    262.21(f)(7(i),
                                                    262.21(f)(7(i)(A)-(C
                                                    ), 262.21(f)(7)(ii),
                                                    262.21(f)(7)(ii)(7)(
                                                    A)-(C),
                                                    262.21(g)(1),
                                                    262.21(g)(i)-(iv),
                                                    262.21(g)(2),
                                                    262.21(h)(1)-(3),
                                                    262.21(i)- (l),
                                                    262.21(m)(1),
                                                    262.21(m)(1)(i)-(ii)
                                                    , 262.21(m)(2),
                                                    262.27, 262.27/
                                                    Section heading,
                                                    262.27, 262.27(a)-
                                                    (b), 262.32,
                                                    262.32(b), 262.33,
                                                    262.34, 262.34(n),
                                                    262.34(n)(1)-(2),
                                                    262.54(c),
                                                    262.54(e), 262.60,
                                                    262.60(c)-(e), 262/
                                                    Appendix, 262/
                                                    Appendix 8700-22,
                                                    262/Appendix/8700-22/
                                                    I, International
                                                    Shipment Block, 262/
                                                    Appendix 8700-22/II,
                                                    262/Appendix 8700-22/
                                                    III, 262/Appendix
                                                    8700-22/IV, 262/
                                                    Appendix 8700-22A/
                                                    Instructions-Continu
                                                    ation Sheet, 263.20,
                                                    263.20(a)(1)-(3),
                                                    263.20(g),
                                                    263.20(g)(1)-(4),
                                                    263.21.
Checklist 207 Continues.......  70 FR 10776 March  263.21(b)(1)-(2),
                                 4, 2005.           263.21(b)(2)(i)-(ii)
                                                    , 264.70(a),
                                                    264.70(b), 264.71,
                                                    264.71(a)(1)-(2),
                                                    264.71(a)(2)(i)-(v),
                                                    264.71(a)(3)-(4),
                                                    264.71(e), 264.72,
                                                    264.72(a),
                                                    264.72(a)(1)-(3),
                                                    264.72(b)- (c),
                                                    264.72(d)(1)-(2),
                                                    264.72(e),
                                                    264.72(e)(1)-(7),
                                                    264.72(f), 264.72(1)-
                                                    (7), 264.72(g),
                                                    264.76, 264.76(a),
                                                    264.76(a)(1)-(7),
                                                    264.76(b),
                                                    265.70(a),
                                                    265.70(b), 265.71,
                                                    265.71(a)(1)-(2),
                                                    265.71(a)(2)(i)-(v),
                                                    265.71(a)(3),
                                                    265.71(b)(4),
                                                    265.71(e), 265.72,
                                                    265.72(a),
                                                    265.72(a)(1)-(3),
                                                    265.72(b)-(c),
                                                    265.72(d)(1)-(2),
                                                    265.72(e),
                                                    265.72(e)(1)-(7),
                                                    265.72(f),
                                                    265.72(f)(1)-(7),
                                                    265.72(g),
                                                    265.76(a),
                                                    265.76(a)(1)-(7) and
                                                    265.76(b).
------------------------------------------------------------------------

H. Where Are the Revised State Rules Different From the Federal Rules?

    Colorado has requirements that are more stringent than the federal 
rules at (references are to the Code of Colorado Regulations, except 
where there is no state analog, then the reference is to the federal 
citation): state analog Section 261.32 includes two additional state-
added listings (K901 and K902) related to military munitions; in 261 
Appendix VII; and state analog 261 Appendix VIII includes additional 
state-added listings (K901, K902, P909, P910, and P911) related to 
military munitions. The State of Colorado's hazardous waste rules are 
more stringent at 40 CFR 266.203 because the state has not adopted 
state analogs to the federal standards applicable to the transportation 
of solid waste military munitions. Specifically, the state regulations 
do not provide the exemptions that exist in 40 CFR 266.203; under the 
state's regulations, waste military munitions that are being 
transported and that exhibit a hazardous waste characteristic or are 
listed as hazardous waste under Part 261, are not exempted from 
manifest requirements as in 40 CFR 264.70(a) and 265.70(a).

I. Who Issues and Administers Permits After the Authorization Takes 
Effect?

    Colorado will issue permits for all the provisions for which it is 
authorized and will administer the permits it issues. EPA will continue 
to administer any RCRA hazardous waste permits or portions of permits 
that were issued prior to the effective date of this authorization 
until Colorado has equivalent instruments in place. We will not issue 
any new permits or new portions of permits for the provisions listed in 
the Table in this document after the effective date of this 
authorization. EPA will continue to implement and issue permits for 
HSWA requirements for which Colorado is not yet authorized.

J. How Does Today's Action Affect Indian Country (18 U.S.C. 1151) in 
Colorado?

    Colorado is not authorized to carry out its hazardous waste program 
in Indian country, as defined in 18 U.S.C. 1151. This includes: (1) 
Lands within the exterior boundaries of the following Indian 
reservations located within or abutting the State of Colorado, (a) 
Southern Ute Indian Reservation and (b) Ute Mountain Ute Indian 
Reservation; (2) any land held in trust by the United States for an 
Indian tribe, and (3) any other areas that are ``Indian country'' 
within the meaning of 18 U.S.C. 1151.
    Therefore, this program revision does not extend to Indian country 
where EPA will continue to implement and administer the RCRA program.

K. What Is Codification and Is EPA Codifying Colorado'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 CFR, which occurs when EPA references the authorized 
state rules in 40 CFR part 272. We reserve the amendment of 40 CFR part 
272, subpart G, for this authorization of Colorado's program changes 
until a later date. EPA is not codifying the rules documented in this 
Federal Register notice in this authorization application.

L. Statutory and Executive Order Reviews

    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 
action authorizes Colorado state requirements for the purpose of RCRA 
3006, and imposes no additional requirements beyond those imposed by 
Colorado 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

[[Page 40521]]

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), the 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, the EPA has taken the necessary steps to 
eliminate drafting errors and ambiguity, minimize potential litigation, 
and provide a clear legal standard for affected conduct. The 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. The 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 13, 2009.

List of Subjects in 40 CFR Part 271

    Environmental protection, Administrative practice and procedure, 
Confidential business information, Hazardous waste, Hazardous waste 
transportation, Indians-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: July 14, 2009.
Carol Rushin,
Acting Regional Administrator, Region 8.
[FR Doc. E9-19315 Filed 8-11-09; 8:45 am]
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