[Federal Register Volume 77, Number 225 (Wednesday, November 21, 2012)]
[Rules and Regulations]
[Pages 69765-69768]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-28338]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 271

[EPA-R08-RCRA-2012-0396; FRL-9753-6]


Colorado: 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. Colorado has applied to the EPA for final authorization of 
changes to its hazardous waste program under RCRA. The EPA has 
determined that these changes satisfy all requirements needed to 
qualify for final authorization, and is authorizing the state's changes 
through this final action.

DATES: This final authorization will become effective on January 22, 
2013 unless the EPA receives adverse written comments by December 21, 
2012. If adverse written comments are received, the EPA will publish a 
timely withdrawal of this 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-
2012-0396, by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the on-line instructions for submitting comments.
     Email: [email protected].
     Fax: (303) 312-6341.
     Mail: Moye Lin, Region 8, Resource Conservation and 
Recovery Program, U.S. EPA, Region 8, 1595 Wynkoop Street, Denver, 
Colorado 80202-1129, phone number: (303) 312-6667.
     Hand Delivery or Courier: Deliver your comments to Moye 
Lin, Region 8, Resource Conservation and Recovery Program, Mailcode 8P-
R, U.S. EPA, Region 8, 1595 Wynkoop Street, Denver, Colorado 80202-
1129. Deliveries are accepted only during the Regional Office's normal 
hours of operation, 9:00 a.m. to 3:00 p.m. Special arrangements should 
be made for deliveries of boxed information. The public is welcome to 
view Docket ID No. EPA-R08-RCRA-2012-0396 at the Region 8 EPA Library, 
1595 Wynkoop Street, Denver, Colorado 80202-1129 during the Library's 
normal hours of operation, Monday through Thursday, 8:00 a.m. to 4:00 
p.m., excluding federal holidays.
    Instructions: Direct your comments to Docket ID No. EPA-R08-RCRA-
2012-0396. The 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 email. The federal Web site, 
http://www.regulations.gov, is an ``anonymous access'' system, which 
means the EPA will not know your identity or contact information unless 
you provide it in the body of your comment. If you send an email 
comment directly to the EPA without going through http://www.regulations.gov, your email 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, the 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 the EPA cannot read your comment due to technical 
difficulties and cannot contact you for clarification, the 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

[[Page 69766]]

viruses. For additional information about the 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 
9:00 a.m. to 3:00 p.m., Monday through Thursday at the EPA Region 8 
Library at the address and contact above, or the Colorado Department of 
Public Health and Environment, 4300 Cherry Creek Drive South, Denver, 
Colorado 80246-1530, contact: Randy Perila, phone number (303) 692-
3364. The public is advised to call in advance to verify business 
hours.

FOR FURTHER INFORMATION CONTACT: Moye Lin, (303) 312-6667, 
[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 the 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 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 the 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?

    The 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; August 12, 2009, effective October, 13, 
2009 (74 FR 40518).

G. What changes are we approving with today's action?

    Colorado submitted a final complete program application on December 
21, 2011, seeking authorization of their changes in accordance with 40 
CFR 271.21. Colorado's revisions consist of regulations that govern 
Federal Hazardous Waste revisions promulgated from January 8, 2010 
through June 4, 2010 (RCRA Clusters XX). In addition, approval today is 
granted for revisions submitted in a prior application. We now make a 
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. 
Therefore, we grant Colorado final authorization for the following 
program changes (the federal citation followed by the analog from the 
Code of Colorado Regulations (6 CCR 7007-3), revised through December 
30, 2011):

[[Page 69767]]



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   Description of Federal  requirement     Federal Register date and
    (include checklist , if           page (and/or RCRA               Analogous state authority
                relevant)                    statutory authority )
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Land Disposal Restrictions Phase III      61 FR 15566-15660 April 8,   Colorado Hazardous Regulations, 6 CCR
 (Checklist 151).                          1996; 61 FR 15660-15668      1007-3 effective December 30, 2011;
                                           April 8, 1996; 61 FR 19117   268.1(c)(3)-(c)(3)(ii), 268.1(c)(4),
                                           April 30, 1996; 61 FR        268.1(c)(4)(i)-(iv), 268.1(e)(3),
                                           33680-33690 June 28, 1996;   268.1(e)(4), 268.2(f), 268.2(i),
                                           61 FR 36419-36421 July 10,   268.2(j), 268.3(a)-(c), 268.3(c)(1)-(6),
                                           1996; 61 FR 43924-43931      268.7(a), 268.7(a)(3)(ii),
                                           August 26, 1996; 62 FR       268.7(b)(3)(ii), 268.7(b)(4)(iv)-(v),
                                           7502-7600 February 19,       268.8, 268.9(a) & (d), 268.9(d)(1)(i)-
                                           1997.                        (ii), 268.39(a)-(g), 268.40(a),
                                                                        268.40(e), 268.40(g), 268.40 Table,
                                                                        268.42 Table 1, 268.48(a) Table UTS,
                                                                        Appendix XI.
2. Chlorinated Aliphatics Listing and     65 FR 67068-67133, November  Colorado Hazardous Regulations, 6 CCR
 LDRs for Newly Identified Wastes          8, 2000.                     1007-3 effective December 30, 2011;
 (Checklist 189).                                                       261.32, 261 Appendix VII & VIII,
                                                                        268.33(a), 268.33(b) intro, 268.(b)(1)-
                                                                        (5), 268.33(c), 268.33(d) intro,
                                                                        268.33(d)(1) & (2), 268.40/Table,
                                                                        268.40(a)/Table.
3. OECD Requirements; Export Shipments    75 FR 1236-1262, January 8,  Colorado Hazardous Regulations, 6 CCR
 of Spent Lead-Acid Batteries (Checklist   2010.                        1007-3 effective December 30, 2011;
 222).                                                                  262.10(d), 262.55, 262.58(a),
                                                                        262.58(a)(1) & (2), 262.58(b),
                                                                        262.80(a), 262.80(a)(1) & (2),
                                                                        262.80(b), 262.81, 262.82(a),
                                                                        262.82(a)(1), 262.82(a)(1)(i) & (ii),
                                                                        262.82(a)(2) including Note to Paragraph
                                                                        (a)(2), 262.82(a)(2)(i) & (ii),
                                                                        262.82(a)(2)(ii)(A) & (B),
                                                                        262.82(a)(2)(iii), 262.82(a)(3),
                                                                        262.82(a)(3)(i) including Note to
                                                                        Paragraph (a)(3)(i), 262.82(a)(3)(ii)
                                                                        including Note to Paragraph (a)(3)(ii),
                                                                        262.82(a)(4), 262.82(a)(4)(i) & (ii),
                                                                        262.82(b), 262.82(b)(1) & (2), including
                                                                        Note to Paragraph (b)(2), 262.82(b)(3),
                                                                        262.82(c), 262.82(c)(1), 262.82(c)(1)(i)
                                                                        & (ii), 262.82(c)(2), 262.82(d),
                                                                        262.82(d)(1) & (2), 262.82(e),
                                                                        262.82(e)(1) & (2), 262.82(f),
                                                                        262.82(f)(1)-(4), 262.82(f)(5),
                                                                        262.82(f)(5)(i) & (ii), 262.82(g),
                                                                        262.83(a), 262.83(b), 262.83(b)(1),
                                                                        262.83(b)(1)(i)-(iii), 262.83(b)(2),
                                                                        262.83(b)(2)(i) & (ii), 262.83(c) & (d),
                                                                        262.83(d)(1)-(14) including Note to
                                                                        Paragraph (d)(14), 262.83(e), 262.84(a),
                                                                        262.84(a)(1) & (2), 262.84(b),
                                                                        262.84(b)(1)-(7), 262.84(c)-(e),
                                                                        262.85(a) & (b), 262.85(b)(1)-(4),
                                                                        262.85(c), 262.85(c)(1) & (2), 262.85(d)
                                                                        & (e) including Note to Paragraph (e),
                                                                        262.85(f) & (g) including Note to
                                                                        Paragraph (g), 262.86(a) & (b),
                                                                        262.87(a), 262.87(a)(1)-(5),
                                                                        262.87(a)(5)(i) & (ii), 262.87(a)(6),
                                                                        262.87(b), 262.87(b)(1)-(3), 262.87(c),
                                                                        262.87(c)(1), 262.87(c)(1)(i)-(iv),
                                                                        262.87(c)(2), 262.88, 262.89(a),
                                                                        262.89(a)(1), 262.89(a)(2), 262.89(b)-
                                                                        (d), 263.10(d), 264.12(a)(2),
                                                                        264.71(a)(3), 264.71(d), 265.12(a)(2),
                                                                        265.71(a)(3), 265.71(d), 267.80(a)table.
4. Hazardous Waste Technical Corrections  75 FR 12989-13009, March18,  Colorado Hazardous Regulations, 6 CCR
 and Clarifications (Checklist 223).       2010, 75 FR 31716-31717,     1007-3 effective December 30, 2011;
                                           June 4, 2010.                262.23(f), 262.23(f)(1), 262.23(f)(1)(i)-
                                                                        (ii), 262.23(f)(2)-(4).
----------------------------------------------------------------------------------------------------------------

H. Where are the revised State rules different from the Federal rules?

    Colorado has requirements that are more stringent than the federal 
rules at 262.55, Colorado requires an exception report be filed with 
the Colorado Department of Public Health and Environment in addition to 
the required submission to the EPA Office of Enforcement and Compliance 
Assurance. Colorado is more stringent in Checklist 151. Colorado has 
not adopted a state analog to 40 CFR 268.1(c)(3). Colorado does not 
allow for the disposal of hazardous waste in underground injection 
wells. Pursuant to state law, Section 25-15-205(3), C.R.S., the 
disposal of liquid hazardous waste in Colorado is strictly prohibited. 
This prohibition includes the disposal of hazardous waste in injection 
wells.
    Colorado is broader-in-scope than the federal rules at: 261.32 
(K140) and 261 Appendix VII (K901 & K902), 261 Appendix VIII (P909, 
P910 and P911) and 268.40/table (K140, U408, K901, K902, P910 &P911).

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. The 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. The 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 the EPA will continue to implement and administer the RCRA 
program.

K. What is codification and is the 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 the 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. The EPA is not codifying the rules 
documented in

[[Page 69768]]

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 
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 the 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 January 22, 2013.

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 21, 2012.
James B. Martin,
Regional Administrator, Region 8.
[FR Doc. 2012-28338 Filed 11-20-12; 8:45 am]
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