[Federal Register Volume 83, Number 192 (Wednesday, October 3, 2018)]
[Proposed Rules]
[Pages 49900-49903]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-21449]



[[Page 49900]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 271

[EPA-R06-RCRA-2017-0324; FRL-9984-40--Region 6]


Oklahoma: Proposed Authorization of State Hazardous Waste 
Management Program Revision

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The State of Oklahoma Department of Environmental Quality 
(ODEQ) has applied to the Environmental Protection Agency (EPA) for 
final authorization of the changes to its hazardous waste program under 
the Resource Conservation and Recovery Act (RCRA). The EPA has reviewed 
Oklahoma's application, and has determined that these changes satisfy 
all requirements needed to qualify for final authorization, and is 
proposing to authorize the State's changes. The EPA is seeking public 
comment prior to taking final action.

DATES: Comments on this proposed rule must be received by November 2, 
2018.

ADDRESSES: Submit your comments by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the on-line instructions for submitting comments.
     Email: [email protected].
     Fax: (214) 665-2182 (prior to faxing, please notify Alima 
Patterson at (214) 665-8533).
     Mail: Alima Patterson, Regional Authorization/Codification 
Coordinator, RCRA Permit Section (6MM-RP), Multimedia Division, EPA 
Region 6, 1445 Ross Avenue, Suite 1200, Dallas, Texas 75202-2733.
     Hand Delivery or Courier: Deliver your comments to Alima 
Patterson, Regional Authorization/Codification Coordinator, RCRA Permit 
Section (6MM-RP), Multimedia Division, EPA Region 6, 1445 Ross Avenue, 
Suite 1200, Dallas, Texas 75202-2733.
    Instructions: EPA must receive your comments by November 2, 2018. 
Direct your comments to Docket ID Number EPA-R06-RCRA-2017-0324. The 
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 
email. The Federal http://www.regulations.gov website 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 
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 viruses. (For additional information about the EPA's public 
docket, visit the EPA Docket Center homepage at http://www.regulations.gov).
    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.
    You can view and copy Oklahoma's application and associated 
publicly available materials from 8:30 a.m. to 4 p.m., Monday through 
Friday, at the following locations: Oklahoma Department of 
Environmental Quality, 707 North Robinson, Oklahoma City, Oklahoma 
73101-1677, (405) 702-7180 and EPA, Region 6, 1445 Ross Avenue, Suite 
1200, Dallas, Texas 75202-2733, phone number (214) 665-8533. Interested 
persons wanting to examine these documents should make an appointment 
with the office at least two weeks in advance.

FOR FURTHER INFORMATION CONTACT: Alima Patterson, Region 6, Regional 
Authorization/Codification Coordinator, Permit Section (6MM-RP), 
Multimedia Division, (214) 665-8533, EPA Region 6, 1445 Ross Avenue, 
Suite 1200, Dallas, Texas 75202-2733, and Email address 
[email protected].

SUPPLEMENTARY INFORMATION: 

A. Why are revisions to State programs necessary?

    States which 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 has the EPA made in this rule?

    On March 31, 2017, the ODEQ submitted a final program revision 
application, excluding the Definition of Solid Waste (DSW), rule 
seeking authorization of changes to its hazardous waste program that 
correspond to Federal rules promulgated between July 2014 and June 2015 
(RCRA Cluster XXIV). The EPA has reviewed Oklahoma's application to 
revise its authorized program and has made a tentative decision that it 
meets all of the statutory and regulatory requirements established by 
RCRA. Therefore, we propose to grant ODEQ final authorization to 
operate its hazardous waste program with the changes described in the 
authorization application. ODEQ will continue to have responsibility 
for permitting treatment, storage, and disposal facilities within its 
borders, 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 Oklahoma, 
including issuing permits, until the State is granted authorization to 
do so.

C. What is the effect of this proposed authorization decision?

    If Oklahoma is authorized for these changes, a facility in Oklahoma 
subject

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to RCRA will now have to comply with the authorized State requirements 
instead of the equivalent Federal requirements in order to comply with 
RCRA. Additionally, such facilities will have to comply with any 
applicable Federal requirements such as, for example, HSWA regulations 
issued by the EPA for which the State has not received authorization. 
ODEQ continues to have 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:
     Conduct inspections, and require monitoring, tests, 
analyses, or reports;
     enforce RCRA requirements and suspend or revoke permits, 
and
     take enforcement actions after notice to and consultation 
with the State.
    The action to approve these provisions would not impose additional 
requirements on the regulated community because the regulations for 
which ODEQ is requesting authorization are already effective under 
State law, and are not changed by the act of authorization.

D. What happens if the EPA receives comments on this action?

    If the EPA receives comments on this proposed action, we will 
address those comments in our final action. You may not have another 
opportunity to comment. If you want to comment on this proposed 
authorization, you must do so at this time.

E. For what has Oklahoma previously been authorized?

    ODEQ initially received final authorization on January 10, 1985 (49 
FR 50362-50363), published December 27, 1984, to implement its base 
hazardous waste management program. We authorized the following 
revisions: ODEQ received authorization for revisions to its program 
with publication dates: April 17, 1990 (55 FR 14280-14282), effective 
June 18, 1990; September 26, 1990 (55 FR 39274), effective November 27, 
1990; April 2, 1991 (56 FR 13411-13413), effective June 3, 1991; 
September 20, 1991 (56 FR 47675-47677), effective November 19, 1991; 
September 29, 1993 (58 FR 50854-50856), effective November 29, 1993; 
October 12, 1993 (58 FR 52679-52682), effective December 13, 1993; 
October 7, 1994 (59 FR 51116-51122), effective December 21, 1994; 
January 11, 1995 (60 FR 2699-2702), effective April 27, 1995; October 
9, 1996 (61 FR 52884-52886), effective December 23, 1996; Technical 
Correction March 14, 1997 (62 FR 12100-12101), effective March 14, 
1997; September 22, 1998 (63 FR 50528-50531), effective November 23, 
1998; March 29, 2000 (65 FR 16528-16532), effective May 30, 2000; May 
10, 2000 (65 FR 29981-29985), effective June 10, 2000; January 2, 2001 
(66 FR 28-33), effective March 5, 2001; April 9, 2003 (68 FR 17308-
17311), effective June 9, 2003; February 4, 2009 (74 FR 5994-6001), 
effective April 6, 2009; April 6, 2011 (76 FR 18927-18930), effective 
June 6, 2011; March 15, 2012 (77 FR 15273-15276), effective May 14, 
2012; May 29, 2013 (78 FR 32161-32165), effective July 29, 2013; and 
August 29, 2014 (79 FR 51497-51500), effective October 28, 2014. The 
authorized Oklahoma RCRA program was incorporated by reference into the 
CFR published on October 12, 1993 (58 FR 52679-52682), effective 
December 13, 1993; April 30, 1998 (63 FR 23673-23678), effective July 
14, 1998; August 26, 1999 (64 FR 46567-46571), effective October 25, 
1999; August 27, 2003 (68 FR 51488-51492), effective October 27, 2003; 
June 28, 2010 (75 FR 36546-36550), effective August 27, 2010; May 17, 
2012 (77 FR 29231-29235), effective July 16, 2012; August 7, 2012, (77 
FR 46964-46968), effective October 9, 2012; and July 1, 2014 (79 FR 
37226-37230), effective September 2, 2014 and July 13, (82 FR 32249-
32252) effective September 11, 2017. On March 31, 2017, ODEQ submitted 
a final program revision application seeking authorization of its 
program revision in accordance with 40 CFR 271.21.
    The Oklahoma Hazardous Waste Management Act (OHWMA) provides the 
ODEQ with the authority to administer the State Program, including the 
statutory and regulatory provisions necessary to administer portions of 
the provisions of RCRA Cluster XXIV, and designates the ODEQ as the 
State agency to cooperate and share information with EPA for purpose of 
hazardous waste regulation. The Oklahoma Environmental Quality Code 
(``Code''), at 27A O.S. Section 2-7-101 et seq. establishes the 
statutory authority to administer the hazardous waste management 
program under RCRA Subtitle C. The State regulations to manage the 
hazardous waste management program is at Oklahoma Administrative Code 
(OAC) Title 252:205-3-2.
    The Oklahoma Legislature in April 2015 amended the OHWMA by passing 
27A O.S. Sec.  2-7-116(H), which clarified that the temporary staging 
of hazardous waste in a permitted hazardous waste unit while the waste 
was undergoing analysis to determine that the waste is acceptable for 
disposal does not constitute disposal of the waste. This provision, 
effecting what constitutes disposal in Oklahoma, has not been submitted 
for EPA review and we are taking no action on it in this rulemaking.
    The ODEQ adopted applicable federal hazardous waste regulations as 
amended July 1, 2014 through June 30, 2015. The regulatory amendment 
implementing this adoption by reference has an effective date of 
September 15, 2016. The provisions for which the State of Oklahoma is 
seeking authorization, as documented in the Regulatory Documentation 
For Federal Provisions For Which The State Of Oklahoma Is Seeking 
Authorization, Federal Final Rules Published Between July 1, 2014 
Through June 30, 2015 RCRA CLUSTER XXIV, excluding the DSW rule; 
prepared on Feburary 21, 2017.
    The ODEQ incorporates the Federal Regulations by reference, and 
there have been no changes in State or Federal laws or regulations that 
have diminished the ODEQ's ability to adopt the Federal regulations by 
reference. The Federal hazardous waste regulations are adopted by 
reference by the ODEQ at OAC 252:205-3-2, Subchapter 3. The ODEQ does 
not adopt Federal regulations prospectively.
    The State hazardous waste management program (``State Program'') 
has in place, the statutory authority and regulations for all required 
components of federal regulations adopted in Checklists 234 and 235 in 
RCRA Cluster XXIV. These statutory and regulatory provisions were 
developed to ensure the State program is equivalent to, consistent 
with, and no less stringent than the Federal hazardous waste management 
program.
    The Environmental Quality Act, at 27A O.S. Section 1-3-101(E), 
grants the Oklahoma Corporation Commission (OCC) authority to regulate 
certain aspects of the oil and gas production and transportation 
industry in Oklahoma, including certain wastes generated by pipelines, 
bulk fuel sales terminals and certain tank farms, as well as, 
underground storage tanks. To clarify areas of environmental 
jurisdiction, the ODEQ and OCC developed an ODEQ/OCC Jurisdictional 
Guidance Document to identify respective areas of jurisdiction. The 
current ODEQ/OCC Jurisdictional Guidance Document was amended and 
signed on January 27, 1999. The revisions to the State Program 
necessary to administer portions of RCRA Cluster XXIV will not affect 
the jurisdictional authorities of the ODEQ or OCC.

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    The ODEQ has adopted portions of RCRA Cluster XXIV applicable 
federal hazardous waste regulations as amended July 1, 2014 through 
June 30, 2015, and became effective on September 15, 2016. The rules 
were also codified at OAC 252 Chapter 205.
    Pursuant to OAC 252:205-3-2, the State's incorporation of Federal 
regulations does not incorporate, prospectively, future changes to the 
incorporated sections of the 40 CFR, and no other Oklahoma law or 
regulation reduces the scope of coverage or otherwise affects the 
authority provided by these incorporated-by-reference provisions. 
Further, Oklahoma interprets these incorporated provisions to provide 
identical authority to the Federal provisions. Thus, OAC Title 252, 
Chapter 205 provides equivalent and no less stringent authority than 
the Federal Subtitle C program in effect July 1, 2015. The State of 
Oklahoma incorporates by reference the provisions of 40 CFR part 124 
that are required by 40 CFR 271.14 (with the addition of 40 CFR 
124.19(a) through (c), 124.19(e), 124.31, 124.32, 124.33 and Subpart 
G); 40 CFR parts 260 through 268 [with the exception of 260.21, 262 
Subparts E and H, 264.1(f), 264.1(g)(12), 264.149, 264.150, 264.301(1), 
264.1030(d), 264.1050(g), 264.1080(e), 264.1080(f), 264.1080(g), 
265.1(c)(4), 265.1(g)(12), 265.149, 265.150, 265.1030(c), 265.1050(f) 
265.1080(e), 265.1080(f), 265.1080(g), 268.5, 268.6, 268.13, 268.42(b), 
and 268.44(a) through (g)]; 40 CFR part 270 [with the exception of 
270.1(c)(2)(ix) and 270.14(b)(18)]; 40 CFR part 273; and 40 CFR part 
279.
    The ODEQ is the lead Department to cooperate and share information 
with the EPA for purpose of hazardous waste regulation.
    Pursuant to 27A O.S. Section 2-7-104, the Executive Director has 
created the Land Protection Division (LPD) to be responsible for 
implementing the State Program. The LPD is staffed with personnel that 
have the technical background and expertise to effectively implement 
the provisions of the State Program Subtitle C hazardous waste 
management program.

F. What changes are we proposing to authorize with this action?

    On March 31, 2017, the ODEQ submitted a final complete program 
application seeking authorization of their changes in accordance with 
40 CFR 271.21. We have determined that the ODEQ's hazardous waste 
program revision satisfies all of the requirements necessary to qualify 
for final authorization. We are now proposing to authorize, subject to 
receipt of written comments that oppose this action, Oklahoma's 
hazardous waste program revision. The ODEQ revisions consist of 
regulations which specifically govern Federal hazardous waste revisions 
promulgated between July 1, 2014 through June 30, 2015 (RCRA Cluster 
XXIV), excluding the Defintion of Solid Waste rule. We propose to grant 
Oklahoma final authorization for the ODEQ requirements included in the 
Table within this document. Requirement 2 in the Table below concerns 
changes based on Coal Combustion Residuals Rulemaking (CCR) . In that 
rulemaking, the Agency amended 40 CFR 261.4(b)(4) under RCRA Subtitle C 
to clarify that ``wastes produced in conjunction with the combustion of 
fossil fuels, which are necessarily associated with the production of 
energy, and which traditionally have been, and which actually are, 
mixed with and co-disposed or co-treated with fly ash, bottom ash, 
boiler slag, or flue gas emission control wastes from coal combustion 
are not hazardous wastes.'' The Requirement 2 in the Table below only 
addresses this change to Subtitle C. CCR also amended 40 CFR part 257 
to regulate the disposal of (CCR) as solid waste under Subtitle D. This 
is not part of this Proposal. In a separate action, EPA has proposed 
approval of a CCR permitting program for Oklahoma. See, 83 FR 2100, 
January 16, 2018.

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                                 Federal Register
    Description of federal      date and page and/    Analogous state
requirement (include checklist  or RCRA statutory        authority
     number, if relevant)           authority
------------------------------------------------------------------------
1. Vacatur of the Comparable    80 FR 18777-18780  Oklahoma Statutes
 Fuels Rule and the              April 8, 2015,     Title 27A Section 2-
 Gasification Rule. (Checklist   effective April    7-101 et seq.,
 234).                           8, 2015.           Oklahoma Hazardous
                                                    Waste Management
                                                    Act, as amended
                                                    September 15, 2015,
                                                    Oklahoma
                                                    Administrative Code,
                                                    Title 252, Chapter
                                                    205, Section 252:205-
                                                    3-2, effective
                                                    September 15, 2016.
2. Disposal of Coal Combustion  80 FR 21302-21501  Oklahoma Statutes
 Residuals from Electric         April 17, 2015;    Title 27A Section 2-
 Utilities. (Checklist 235).     effective          7-101 et seq.,
                                 October 19, 2015   Oklahoma Hazardous
                                 [40 CFR            Waste Management
                                 261.4(b)(4)(i)-(   Act, as amended
                                 ii)(H) only].      September 15, 2015,
                                                    Oklahoma
                                                    Administrative Code,
                                                    Title 252, Chapter
                                                    205, Section 252:205-
                                                    3-2, effective
                                                    September 15, 2016.
------------------------------------------------------------------------

G. Why are the revised State rules different from the Federal rules?

    There are no State requirements that are more stringent or broader 
in scope than the Federal requirements.

H. Who handles permits after the final authorization takes effect?

    ODEQ will continue to 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 which we issued prior to the effective date of this 
authorization. We will not issue any more 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 Oklahoma 
is not yet authorized.

I. How does this action affect Indian Country (18 U.S.C. 1151) in 
Oklahoma?

    Section 18 U.S.C. 1151 does not affect the State of Oklahoma 
because under section 10211(a) of the SAFETEA, Public Law 109-59, 119 
Statute 1144 (August 10, 2005) provides the State of Oklahoma 
opportunity to request approval from EPA to administer RCRA Subtitle C 
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 HSWA.

K. What is codification and is the EPA codifying Oklahoma'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 CFR. We do this by referencing the authorized State 
rules in 40 CFR part 272. We reserve the amendment of 40 CFR part 272, 
subpart LL for this proposed authorization of ODEQ's program changes 
until a later date. In this action, the EPA is not proposing to

[[Page 49903]]

codify the rules documented in this Federal Register document.

I. 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). This action proposes 
to authorize State requirements for the purpose of RCRA 3006 and 
imposes no additional requirements beyond those imposed by State law. 
Therefore, this action is not subject to review by OMB. This action is 
not an Executive Order 13771 (82FR 9339, February 3, 2017) regulatory 
action because actions such as today's proposed authorization of the 
State of Oklahoma's revised hazardous waste program under RCRA are 
exempted under Executive Order 12866. 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 proposes to authorize preexisting 
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 proposed 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 proposes to authorize 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 proposed 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 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 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 proposed 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 proposed rule does not impose 
information collection burden under the provisions of the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
    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, the 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 proposes to 
authorize 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.

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 26, 2018.
Anne L. Idsal,
Regional Administrator, Region 6.
[FR Doc. 2018-21449 Filed 10-2-18; 8:45 am]
 BILLING CODE 6560-50-P