[Federal Register Volume 81, Number 107 (Friday, June 3, 2016)]
[Rules and Regulations]
[Pages 35641-35643]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-13161]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 271

[EPA-R09-RCRA-2015-0822; FRL-9947-28-Region 9]


Nevada: Final Authorization of State Hazardous Waste Management 
Program Revisions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA received several comments during the open comment period 
on the March 23, 2016, proposed rule to authorize Nevada's changes to 
the State Hazardous Waste Management program. EPA is responding to one 
comment opposing the action and reaffirming the effective date of the 
direct final rule as June 6, 2016.

DATES: The final authorization is effective June 6, 2016.

FOR FURTHER INFORMATION CONTACT: Laurie Amaro, U.S. Environmental 
Protection Agency Region 9, 75 Hawthorne Street LND-1-1, San Francisco, 
CA 94105, [email protected], 415-972-3364.

SUPPLEMENTARY INFORMATION: 

A. What decisions has EPA made in this rule?

    On November 25, 2015, and December 28, 2015, Nevada submitted final 
complete program revision applications seeking authorization of changes 
to its hazardous waste program that correspond to certain federal rules 
promulgated between July 1, 2005, and June 30, 2008, (also known as 
RCRA Clusters XVI through XVIII). EPA concludes that Nevada's 
application to revise its authorized program meets all of the statutory 
and regulatory requirements established by RCRA, as set forth in RCRA 
section 3006(b), 42 U.S.C. 6926(b), and 40 CFR part 271. Therefore, EPA 
grants Nevada final authorization to operate as part of its hazardous 
waste program the changes listed in Section G of the direct final rule 
(81 FR 15440), as further described in the authorization application.
    Nevada has responsibility for permitting treatment, storage, and 
disposal facilities within its borders (except in Indian country) and 
for carrying out the aspects of the RCRA program described in its 
revised program application. New federal requirements and prohibitions 
imposed by federal regulations that EPA promulgates pursuant to the 
Hazardous and Solid Waste Amendments of 1984 take effect in authorized 
states at the same time that they take effect in unauthorized states. 
Thus, EPA will implement those requirements and prohibitions in Nevada, 
including the issuance of new permits implementing those requirements, 
until the State is granted authorization to do so.

B. What is the effect of today's authorization decision?

    The effect of this decision is that the changes described in 
Nevada's authorization application will become part of the authorized 
state hazardous waste program and therefore will be federally 
enforceable. Nevada will continue to have primary enforcement authority 
and responsibility for its state hazardous waste program. EPA retains 
its authorities under RCRA sections 3007, 3008, 3013, and 7003, 
including its authority to:
     Conduct inspections, and require monitoring, tests, 
analyses or reports;
     Enforce RCRA requirements, including authorized state 
program requirements, and suspend or revoke permits; and
     Take enforcement actions regardless of whether the state 
has taken its own actions.
    This action does not impose additional requirements on the 
regulated community because the regulations for which Nevada is being 
authorized by today's action are already effective and are not changed 
by today's action.

C. What were the comments on EPA's proposal and what is EPA's response?

    On March 23, 2016, EPA published a proposed rule (81 FR 15497) and 
a direct final rule (81 FR 15440) to authorize Nevada's November 25 and 
December 28, 2015, applications to make revisions to Nevada's State 
Hazardous Waste Management program that correspond to certain federal 
rules promulgated between July 1, 2005, and June 30, 2008 (also known 
as RCRA Clusters XVI through XVIII). EPA stated that if adverse 
comments were received by May 9, 2016, the rule would be withdrawn and 
not take effect. On May 9, 2016, EPA received a comment opposing 
approval; however, due to the reasons explained below, EPA is not 
withdrawing the direct final rule but rather is responding to the 
comment and reaffirming the effective date of June 6, 2016, of the 
rule, pursuant to 40 CFR 271.21(b)(3)(iii)(B).
    EPA received four comments on the proposed rule, Nevada: Final 
Authorization of State Hazardous Waste Management Program Revisions. 
Three comments stated, ``Good'' and do not require a response. The 
fourth comment stated, ``Instead of not authorizing Nevada's antifreeze 
recycling program (and in the process violate 271.1(h), the partial 
authorization prohibition) EPA should instead require the program to be 
amended so it is no less stringent than EPAs [sic] requirements. This 
has been wrong since 2009!''
    The State of Nevada adopted regulations for the ``Recycling of Used 
Antifreeze'' effective October 3, 1996, at NAC 444.8801-9071. These 
regulations are applicable to those categories of antifreeze that are 
recycled and have been determined to be hazardous waste because they 
either exhibit a characteristic of hazardous waste (i.e., the toxicity 
characteristic) or they are a listed hazardous waste in the state of 
their origin, for those categories of antifreeze entering Nevada from 
another State (NAC 444.8871). Under the Federal code, spent antifreeze 
destined to be recycled, as defined by Nevada, would be subject to the 
requirements of 40 CFR 261.6(b)-(d) ``Requirements for Recyclable 
Materials.'' In the Nevada regulations at NAC 444.8801-9071, spent 
antifreeze that is recycled is not regulated as universal waste, but is 
subject to requirements that are less stringent than the Federal 
regulations at 40 CFR 261.6(b)-(d). Accordingly, EPA cannot authorize 
Nevada's regulations specific to the recycling of used antifreeze.
    However, Nevada has incorporated the federal regulations contained 
in 40

[[Page 35642]]

CFR 261.6(b)-(d) at NAC 444.8632. The purpose of EPA's notice in the 
Federal Register is to direct generators and recyclers of used 
antifreeze to comply with 40 CFR 261.1(b)-(d) as incorporated by 
reference in NAC 444.8632, rather than the antifreeze-specific 
provisions at NAC 444.8801-9071. Because Nevada's authorized program 
regulates used antifreeze recycling at NAC 444.8632 in a program that 
is no less stringent than the federal requirements, there is no gap in 
coverage of used antifreeze recycling that could be considered a 
partial authorization, and EPA is not running afoul of the requirement 
contained in 40 CFR 271.1(h). Additionally, as noted in the guidance 
document, Clarification of EPA Policy on Authorizing Incomplete or Late 
``Clusters'' Under 40 CFR 271.21 and Availability of Public Information 
under RCRA Section 3006(f), Nov. 6, 1992,

    There is regulatory history [relevant to 40 CFR 271.1(h)] which 
supports our interpretation that the prohibition on partial programs 
means States are prohibited from implementing RCRA programs that 
address only part of the universe of waste handlers, e.g., 
``generators'', ``transporters'', ``treatment, storage and disposal 
facilities''. This prohibition, therefore, would not be relevant to 
the great majority of program revisions, since any State program 
that has obtained initial authorization already addresses the full 
universe of waste handlers.

The prohibition contained in 40 CFR 271.1(h) therefore does not apply 
to this authorization decision. Nevada obtained initial authorization 
of its hazardous waste management program on August 19, 1985, effective 
November 1, 1985 (50 FR 42181), and Nevada's federally authorized 
program covers the full universe of waste handlers. Accordingly, EPA 
affirms that the immediate final decision takes effect on June 6, 2016, 
as described in the direct final rule, Nevada: Final Authorization of 
State Hazardous Waste Management Program Revisions.

D. Administrative Requirements

    The Office of Management and Budget (OMB) has exempted this action 
from the requirements of Executive Orders 12866 (58 FR 51735, October 
4, 1993) and 13563 (76 FR 3821, January 21, 2011). Therefore this 
action is not subject to review by OMB. This action authorizes state 
requirements for the purpose of RCRA section 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 (2 U.S.C. 1531-1538). 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 section 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 (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.). ``Burden'' is defined at 5 CFR 1320.3(b). Executive Order 12898 
(59 FR 7629, February 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 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. Because this rule authorizes pre-existing state rules 
which are at least equivalent to, and no less stringent than existing 
federal requirements, and imposes no additional requirements beyond 
those imposed by state law, and there are no anticipated significant 
adverse human health or environmental effects, the rule is not subject 
to Executive Order 12898.
    The Congressional Review Act, 5 U.S.C. 801-808, 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). However, 
this action is effective 75 days after the date of initial publication 
in the Federal Register.

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, and 6974(b).


[[Page 35643]]


    Dated: May 26, 2016.
Alexis Strauss,
Acting Regional Administrator, Region 9.
[FR Doc. 2016-13161 Filed 6-2-16; 8:45 am]
 BILLING CODE 6560-50-P