[Federal Register Volume 75, Number 185 (Friday, September 24, 2010)]
[Rules and Regulations]
[Pages 58328-58329]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-23990]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 271

[EPA-R07-RCRA-2008-0830; FRL-9205-3]


Nebraska: Final Authorization of State Hazardous Waste Management 
Program Revisions

AGENCY: Environmental Protection Agency (EPA).

ACTION: 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. Nebraska has applied to EPA for final authorization of the 
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 September 24, 
2010.

FOR FURTHER INFORMATION CONTACT: Lisa Haugen, EPA Region 7, AWMD/RESP, 
901 North 5th Street, Kansas City, Kansas 66101, (913) 551-7877, or by 
e-mail at [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, a State must 
change its program accordingly 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, the State must change its program because 
of changes to EPA's regulations in 40 Code of Federal Regulations (CFR) 
parts 124, 260 through 266, 268, 270, 273 and 279.
    Nebraska initially received final authorization on January 24, 
1985, effective February 7, 1985 (50 FR 3345), to implement the RCRA 
hazardous waste management program. EPA granted authorization for 
changes to Nebraska's program on October 4, 1985, effective December 3, 
1988 (53 FR 38950); June 25, 1996, effective August 26, 1996 (61 FR 
32699); April 10, 2003, effective June 9, 2003 (68 FR 17553); and 
October 4, 2004, effective December 3, 2004.
    On April 29, 2008, Nebraska submitted a final complete program 
revision application, seeking authorization of its changes in 
accordance with 40 CFR 271.21. On December 30, 2008, EPA published both 
an Immediate Final Rule (73 FR 79661) granting Nebraska final 
authorization for these revisions to its Federally-authorized hazardous 
waste program, along with a companion Proposed Rule announcing EPA's 
proposal to grant such a final authorization (73 FR 79761). EPA 
announced in both documents that the Immediate Final Rule and the 
Proposed Rule were subject to a thirty-day comment period. The public 
comment period ended on January 29, 2009. EPA received written comments 
from one commenter during the public comment period. Today's action 
responds to the comments EPA received and publishes EPA's final 
determination granting Nebraska final authorization of its program 
revisions. Further background on EPA's Immediate Final Rule and its 
tentative determination to grant authorization to Nebraska for its 
program revisions appears in the aforementioned Federal Register 
notices. The issues raised by the commenter are summarized and 
responded to as follows.

B. What were the comments and responses to EPA's proposal?

    The comments did not address specific concerns with EPA's approval 
of the additional RCRA regulatory provisions in Nebraska's authorized 
hazardous waste program; rather the comments address a previous rule 
promulgated by EPA. The commenter's arguments relate specifically to 
EPA's promulgation of the Zinc Fertilizer Rule on July 24, 2002 (67 FR 
48393). Specifically, the commenter argued that the Phase IV Land 
Disposal Restriction (LDR)--which is more stringent than the Zinc 
Fertilizer Rule--resulted from an ``affirmative finding of safety'' 
when zinc-containing hazardous wastes were disposed in Subtitle C 
landfills, so it is counterintuitive to claim that the same zinc-
containing hazardous wastes can now ``safely'' be used as fertilizer. 
For the reasons set forth below, we do not agree with the commenter.
    EPA promulgated all of the rules included in Nebraska's revision 
pursuant to the authority granted to EPA by Congress under RCRA. Those 
rules, including the Zinc Fertilizer Rule, were finalized after full 
consideration of any and all comments submitted in a timely manner. By 
adopting the rule promulgated by EPA, Nebraska revised its hazardous 
waste program to be equivalent to and consistent with the Federal 
program. Pursuant to 42 U.S.C. 6926(b), EPA has the authority to 
authorize State programs that are equivalent to and consistent with the 
Federal program. The comments submitted speak directly to the Federal 
rule and not to EPA's authorization of Nebraska's program revisions. 
Therefore, we have determined that there is no basis to deny 
authorizing approval based on these comments.
    In addition, the commenter argues that exempting zinc-containing 
hazardous wastes from regulation as solid waste is not supported by 
Nebraska Revised Statute 75-362. This comment is not relevant to this 
action. The criteria for authorization of a State hazardous waste 
program are set forth at section 3006 of RCRA, 42 U.S.C. 6926(b). In 
reviewing an application under this section, EPA considers whether the 
State program (1) is equivalent to the Federal program under subchapter 
III, which governs hazardous waste; (2) is consistent with Federal or 
``State programs applicable to other States''; and (3) provides 
adequate enforcement of compliance with the requirements of subchapter 
III of RCRA. As part of this review, EPA considers whether the State is 
imposing requirements less stringent than those authorized under 
subchapter III respecting the same matter as governed by such 
regulation. The commenter's argument with regard to Nebraska Revised 
Statute 75-362 falls outside the scope of our review of Nebraska's 
application for the hazardous waste rules authorized herein. Therefore, 
the comment regarding Nebraska Revised Statute 75-362 is not relevant 
to this action.

C. What decisions have we made in this rule?

    Based on EPA's response to public comments, the Agency has 
determined that approval of Nebraska's RCRA program revisions should 
proceed. EPA has made a final determination that Nebraska's application 
to revise its authorized program meets all of the statutory and 
regulatory requirements established by RCRA. Therefore, we grant 
Nebraska final authorization to operate its hazardous waste program

[[Page 58329]]

with the changes described in its application for program revisions. 
Nebraska is responsible for carrying out the aspects of the RCRA 
program described in its approved program applications, subject to the 
limitations of the Hazardous and Solid Waste Amendments (HSWA) of 1984. 
New Federal requirements and prohibitions imposed by Federal 
regulations that EPA promulgates under the authority of HSWA take 
effect in authorized States before they are authorized for the 
requirements. Thus, EPA will implement any such HSWA requirements and 
prohibitions in Nebraska, including issuing HSWA permits, until the 
State is granted authorization to do so. For further background on the 
scope and effect of today's action to approve Nebraska's RCRA program 
revisions, please refer to the preambles of EPA's December 30, 2008, 
Proposed and Immediate Final Rules at 73 FR 79761 and 73 FR 79661 
respectively.

D. 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 state requirements for the purpose of RCRA 3006 and 
imposes no additional requirements beyond those imposed by state law. 
Accordingly, I certify that this action will not have a significant 
economic impact on a substantial number of small entities under the 
Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this action 
authorizes pre-existing requirements under State law and does not 
impose any additional enforceable duty beyond that required by State 
law, it does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4). For the same reason, this 
action also does not significantly or uniquely affect the communities 
of Tribal governments, as specified by Executive Order 13175, 
``Consultation and Coordination With Indian Tribal Governments'' (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, ``Federalism'' (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, ``Protection 
of Children From Environmental Health Risks and Safety Risks'' (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 that may affect children. This rule is not subject to Executive 
Order 13211, ``Actions Concerning Regulations That Significantly Affect 
Energy Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001), 
because it is not a significant regulatory action under Executive Order 
12866.
    Under RCRA 3006(b), EPA grants a State's application for 
authorization as long as the State meets the criteria required by RCRA. 
It would thus be inconsistent with applicable law for EPA, when it 
reviews a State authorization application, to require the use of any 
particular voluntary consensus standard in place of another standard 
that otherwise satisfies the requirements of RCRA. Thus, the 
requirements of section 12(d) of the National Technology Transfer and 
Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required 
by section 3 of Executive Order 12988, ``Civil Justice Reform'' (61 FR 
47729, 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, ``Government 
Actions and Interference with Constitutionally Protected Property 
Rights (53 FR 8859, March 15, 1988) by examining the takings 
implications the rule in accordance with the ``Attorney General's 
Supplemental Guidelines for the Evaluation of Risk and Avoidance of 
Unanticipated Takings'' issued under the executive order. This rule 
does not impose an information collection burden under the provisions 
of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this document and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication in the Federal Register. A major rule cannot take effect 
until 60 days after it is published in the Federal Register. This 
action is not a ``major rule'' as defined by 5 U.S.C. 804(2). This 
action will be effective September 24, 2010.

List of Subjects in 40 CFR Part 271

    Environmental protection, Administrative practice and procedure, 
Confidential business information, Hazardous waste, Hazardous waste 
transportation, Indian lands, Intergovernmental relations, Penalties, 
Reporting and recordkeeping requirements.

    Authority:  This action is issued under the authority of 
sections 2002(a), 3006 and 7004(b) of the Solid Waste Disposal Act 
as amended 42 U.S.C. 6912(a), 6926, 6974(b).

    Dated: September 13, 2010.
Karl Brooks,
Regional Administrator, Region 7.
[FR Doc. 2010-23990 Filed 9-23-10; 8:45 am]
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