[Federal Register Volume 87, Number 234 (Wednesday, December 7, 2022)]
[Rules and Regulations]
[Pages 74971-74977]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-22799]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 271 and 272
[EPA-R03-RCRA-2022-0280; FRL-9951-02-R3]
Delaware: Final Authorization of State Hazardous Waste Management
Program Revisions
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: Delaware has applied to the United States Environmental
Protection Agency (EPA) for final authorization of revisions to its
hazardous waste program under the Resource Conservation and Recovery
Act (RCRA). EPA has determined that these revisions satisfy all
requirements needed to qualify for final authorization and is hereby
authorizing Delaware's revisions through this direct final rule. EPA is
additionally removing and reserving codification of Delaware's
hazardous waste program.
DATES: This final authorization will become effective on February 6,
2023, unless EPA receives adverse written comments by January 6, 2023.
If EPA receives any such comments, EPA will publish a timely withdrawal
of this direct final rule in the Federal Register.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R03-
RCRA-2022-0351, at www.regulations.gov. Follow the online instructions
for submitting comments. Once submitted, comments cannot be edited or
removed from www.regulations.gov. The EPA may publish any comment
received to its public docket. Do not submit electronically any
information you consider to be Confidential Business Information (CBI)
or other information the disclosure of which is restricted by statute.
Multimedia submissions (audio, video, etc.) must be accompanied by a
written comment. The written comment is considered the official comment
and should include discussion of all points you wish to make. The EPA
will generally not consider comments or comment contents located
outside of the primary submission (i.e. on the web, cloud, or other
file sharing system). For additional submission methods, the full EPA
public comment policy, information about CBI or multimedia submissions,
and general guidance on making effective comments, please visit
www.epa.gov/dockets/commenting-epa-dockets.
The EPA encourages electronic submittals, but if you are unable to
submit electronically or need other assistance, please contact Claudia
Scott, the contact listed in the FOR FURTHER INFORMATION CONTACT
provision below. Please also contact Claudia Scott if you need
assistance in a language other than English or if you are a person with
disabilities who needs a reasonable accommodation at no cost to you.
FOR FURTHER INFORMATION CONTACT: Claudia Scott, RCRA Programs Branch,
Land, Chemicals and Redevelopment Division, U.S. Environmental
Protection Agency Region 3, Four Penn Center, 1600 John F. Kennedy
Blvd. (Mail Code 3LD30), Philadelphia, PA 19103-2852; phone: (215) 814-
3240, email: [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 is revised to become
more stringent or broader in scope, States must revise their programs
and apply to EPA to authorize the revisions. Authorization of revisions
to State programs may be necessary when Federal or State statutory or
regulatory authority is modified or when certain other revisions occur.
Most commonly, States must revise their programs because of revisions
to EPA's regulations in 40 Code of Federal Regulations (CFR) parts 124,
260 through 266, 268, 270, 273 and 279.
B. What decisions has EPA made in this rule?
On December 16, 2021, Delaware submitted a final program revision
application seeking authorization of revisions to its hazardous waste
program that correspond to certain Federal rules promulgated through
May 30, 2018. EPA concludes that Delaware's application to revise its
[[Page 74972]]
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 Delaware
final authorization to operate its hazardous waste program with the
revisions described in its authorization application, and as outlined
below in Section G of this preamble.
Delaware has responsibility for permitting treatment, storage, and
disposal facilities (TSDFs) within its borders and for carrying out the
aspects of the RCRA program described in its 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 EPA promulgates under the authority of HSWA take
effect in authorized States before they are authorized for the
requirements. Thus, EPA will implement those HSWA requirements and
prohibitions for which Delaware has not been authorized, including
issuing HSWA permits, until the State is granted authorization to do
so.
C. What is the effect of this authorization decision?
This action serves to authorize revisions to Delaware's authorized
hazardous waste program. This action does not impose additional
requirements on the regulated community because the regulations for
which Delaware is being authorized by this action are already effective
and are not changed by this action. Delaware has enforcement
responsibilities under its state hazardous waste program for violations
of its program, but EPA retains its authority under RCRA sections 3007,
3008, 3013, and 7003, which include, among others, authority to:
Perform inspections, and require monitoring, tests,
analyses or reports;
Enforce RCRA requirements and suspend or revoke permits;
and
Take enforcement actions regardless of whether Delaware
has taken its own actions.
D. Why wasn't there a proposed rule before this rule?
Along with this direct final rule, EPA is publishing a separate
document in the ``Proposed Rules'' section of this issue of the Federal
Register that serves as the proposal to authorize these State program
revisions. EPA did not publish a proposal before this issue of the
Federal Register because EPA views this action as a routine program
change and does not expect comments that oppose its approval. EPA is
providing an opportunity for public comment now, as described in
Section E of this preamble.
E. What happens if EPA receives comments that oppose this action?
If EPA receives adverse comments pertaining to this State revision,
EPA will withdraw this direct final rule by publishing a document in
the Federal Register before the rule becomes effective. EPA will base
any further decision on the authorization of Delaware's program
revisions on the proposal mentioned in the previous section, after
considering all comments received during the comment period. EPA will
then address all relevant comments in a later final rule. You may not
have another opportunity to comment. If you want to comment on this
authorization, you must do so at this time.
F. What has Delaware previously been authorized for?
Delaware initially received final authorization of its hazardous
waste program effective June 22, 1984 (June 8, 1984; 49 FR 23837). EPA
granted authorization for revisions to Delaware's regulatory program on
August 8, 1996, effective October 7, 1996 (61 FR 41345); August 18,
1998, effective October 19, 1998 (63 FR 44152); July 12, 2000,
effective September 11, 2000 (65 FR 42871); August 8, 2002, effective
August 8, 2002 (67 FR 51478); March 4, 2004, effective May 3, 2004 (69
FR 10171); October 7, 2004, effective December 6, 2004 (69 FR 60091);
and August 10, 2017, effective October 10, 2017 (82 FR 37319).
G. What revisions is EPA authorizing with this action?
On December 16, 2021, Delaware submitted a final program revision
application seeking authorization of additional revisions to its
program in accordance with 40 CFR 271.21. Delaware's revision
application includes various regulations that are equivalent to, and no
less stringent than, selected Federal final hazardous waste rules, as
published in the Federal Register through May 30, 2018.
EPA now makes a direct final rule, subject to receipt of written
comments that oppose this action, that Delaware's hazardous waste
program revision application satisfies all of the requirements
necessary to qualify for final authorization. Therefore, EPA grants
Delaware final authorization for the following program revisions:
1. Program Revision Changes for Federal Rules
Delaware seeks authority to administer the Federal requirements
that are listed in Table 1 below. This table lists the Delaware analogs
that have been revised; these revisions are being recognized as no less
stringent than the analogous Federal requirements.
Delaware's regulatory references are to Delaware's Regulations
Governing Hazardous Waste (DRGHW), amended and effective August 21,
2006, December 21, 2007, December 21, 2008, May 21, 2009, April 21,
2016, and January 21, 2021. The statutory references are to 7 Delaware
Code annotated (1991).
Table 1--Delaware's Analogs to the Federal Requirements
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Description of Federal
requirement (revision Federal Register Delaware authority
checklists \1\) or requirement \2\
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RCRA Cluster VII
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Criteria for Classification of 61 FR 34252, 7/1/ DRGHW 262.14(a)(6),
Solid Waste Disposal 1996. 262.14(a)(6)(i)-(iii
Facilities and Practices; ), 262.14(a)(6)(iv)
Identification and Listing of *, 262.14(a)(6)(v)
Hazardous Waste; Requirements *, 262.14(a)(6)(vi),
for Authorization of State 262.14(a)(6)(vii).
Hazardous Waste Programs,
Revision Checklist 153.
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[[Page 74973]]
RCRA Cluster X
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NESHAPS: Final Standards for 64 FR 52827, 9/30/ DRGHW 122.19
Hazardous Air Pollutants for 1999. introductory
Hazardous Waste Combustors paragraph,
(MACT Rule), Revision 122.19(e), 122.22
Checklist 182. introductory
paragraph, 122.42
Appendix I, 122.62
introductory
paragraph, 122.66
introductory
paragraph.
DRGHW 260.10,
264.340(b),
264.340(b)(1)-(2),
264.340(c)-(e),
264.601 introductory
paragraph,
265.340(b),
265.340(b)(1)-(2),
265.340(c),
266.100(b),
266.100(b)(1),
266.100(b)(2),
266.100(b)(2)(i)-(iv
), 266.100(c),
266.100(d),
266.100(d)(1),
266.100(d)(1)(i)-(ii
i), 266.100(d)(2),
266.100(d),
266.100(d)(3),
266.100(d)(3)(i)-(ii
), 266.100(e)-(h),
266.101(c),
266.101(c)(1),
266.105(c),
266.105(c)(1)-(3),
266.105(d),
266.112(b)(1),
266.112(b)(2)(i),
Appendix VIII.
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RCRA Cluster XII
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Hazardous Air Pollutant 67 FR 6968-6996, DRGHW 266.100(a),
Standards for Combustors: 2/14/2002. 266.100(b)(1),
Corrections, Revision 266.110(d)(1)(i)(B),
Checklist 198. 266.100(d)(2)(i)-(ii
), 266.100(d)(3),
266.100(d)(3)(i),
266.100(d)(3)(i)(D).
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RCRA Cluster XV
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Methods Innovation Rule and SW- 70 FR 34538- DRGHW
846 Final Update IIIB, 34592, 6/14/2005 122.19(c)(1)(iii)-(i
Revision Checklist 208. As amended 8/1/ v),
2005, 70 FR 122.22(a)(2)(ii)(B),
44150-44151. 122.62(b)(2)(i)(D),
122.66(c)(2)(i)-(ii)
, 279.10(b)(1)(ii),
279.44(c),
279.53(c),
279.63(c).
DRGHW 260.11,
260.119(a)-(g),
260.22(d)(1)(i),
261.3(a)(2)(v)
introductory
paragraph,
261.21(a)(1),
261.22(a)(1)-(2),
261.35(b)(2)(iii)(A)
-(B), Appendix I,
Appendix II,
Appendix III,
264.190(a),
264.314(b),
264.1034(c)(1)(ii),2
64.1034(c)(1)(iv)(B)
,
264,1034(d)(1)(iii),
264.1034(f),
264.1063(d)(2),
Appendix IX,
265.1034(c)(1)(ii),
265.1034(c)(1)(iv),
265.1034(c)(1)(iv)(A
)-(B),
265.1063(d)(2),
265.1081 ``Waste
stabilization
process'',
265.1084(a)(3)(ii)(C
),
265.1084(a)(3)(iii)
introductory
paragraph,
265.1084(a)(3)(iii)(
A)-(B),
265.1084(b)(3)(iii),
265.1084(b)(3)(iii)(
A)-(B),
265.1084(c)(3)(i),
266.100(d)(1)(ii),
266.100(g)(2),
266.102(b)(1),
266.106(a),
266.112(b)(1),
266.112(b)(2)(i),
Appendix IX,
268.40(b), 268.40.
Table/Footnote 7,
268.40 UTS table
Footnote 4.
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RCRA Cluster XVI
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Burden Reduction Initiative, 71 FR 16862- DRGHW 122.14(a),
Revision Checklist 213. 16915, 4/4/2006. 122.16(a),
122.26(c)(15).
DRGHW 260.31(b)(2)-
(7),
261.4(a)(9)(iii)(E),
261.4(f)(9),
264.16(a)(4),
264.52(b),
264.56(i), 264.56(j)
*, 264.73(b),
introductory
language *,
264.73(b)(1),(2),(6)
*,(8),(10),&(18),
264.98(d) *,
264.98(g)(2)-(3),
264.99(f) *,
264.99(g),
264.100(g) *,
264.115, 264.120,
264.143(i),
264.145(i),
264.147(e), 264.174,
264.191(a),
264.191(b)(5)(ii),
264.192(a),
264.192(b),
264.193(a)(1),
264.193(a)(2),
264.193(i)(2),
264.195(b),
264.195(c),
264.195(d),
264.196(f),
264.251(c),
264.280(b),
264.314(a),
264.314(b)-(e),
264.314(e)(1)-(2),
264.343(a)(2) *,
264.347(d) *,
264.554(c)(2),
264.571(a)-(c),
264.573(a)(4)(ii),
264.573(g),
264.574(a),
264.1061(b)(2) *,
264.1061(b)(3) *,
264.1062(a),
264.1062(a)(2) *,
264.1100
introductory
paragraph,
264.1101(c)(2),
264.1101(c)(4),
265.15(b)(4),
265.52(b), 265.56(i)
*, 265.56(j),
265.73(b),
introductory
language *,
265.73(b)(1),(2),(6)
*,(7),&(8),
265.90(e)(1) *,
265.90(e)(3) *,
265.93(d)(2) *,
265.93(d)(5) *,
265.115, 265.120,
265.143(h),
265.145(h),
265.147(h), 265.174,
265.191(a),
265.191(b)(5)(ii),
265.192(a),
265.192(b),
265.193(a)(1),
265.193(a)(2),
265.193(i)(2),
265.193(f)(1),
265.195(a),
265.195(a)(1),(2),&(
4), 265.196(f) *,
265.195(c) *,
265.201, 265.221(a),
265.224, 265.224(a)
*, 265.259(a) *,
265.280(e),
265.301(a),
265.303(a) *,
265.314(a),
265.314(b)-(f),
265.314(f)(1),
265.314(f)(2),
265.441(a),
265.441(b),
265.441(c),
265.443(a)(4)(ii),
265.443(g),
265.444(a),
265.1061(b),
265.1061(b)(1) *
265.1061(d) *,
265.1062(a),
265.1062(a)(2) *
265.1100
introductory
paragraph,
265.1101(c)(2),
265.1101(c)(4),
266.102(e)(10) *,
266.103(d) *,
266.103(k) *,
268.7(a)(1),
268.1(a)(2),
268.7(b)(6),
268.9(a), 268.9(d).
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RCRA Cluster XXI
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Removal of Saccharin and Its 75 FR 78918- DRGHW 261.33(f)
Salts from the Lists of 78926, 12/17/ Table, 261 Appendix
Hazardous Constituents, 2010, Effective VIII, 268.40 Table
Revision Checklist 225. 1/18/2011. of Treatment
Standards, 268
Appendix VII.
[[Page 74974]]
Revision of the Land Disposal 76 FR 34147- DRGHW 268.40 Table of
Treatment Standards for 34157, 6/13/2011. Treatment Standards,
Carbamate Wastes, Revision 268.48 Table of UTS-
Checklist 227. Universal Treatment
Standards.
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RCRA Cluster XXII
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Hazardous Waste Technical 77 FR 22229- DRGHW 261.32(a)
Corrections and 22232, 4/13/2012. Table, 266.20(b).
Clarifications Rule, Revision
Checklist 228.
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RCRA Cluster XXIII
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Hazardous Waste Electronic 79 FR 7518-7563, DRGHW 260.2(a)-(b),
Manifest Rule, Revision 2/7/2014. 260.10,
Checklist 231. 262.20(a)(3),
262.20(a)(3)(i)-(ii)
262.24, 262.25,
263.20(a)(1)-(8),
263.25,
264.71(a)(2)(i)-(v),
264.71(a)(2)(vi),
264.71(f)-(k),
265.71(a)(2),
265.71(a)(2)(i)-(vi)
, 265.71(f)-(k).
Revisions to the Export 79 FR 36220- DRGHW 260.10, 261.39
Provisions of the Cathode Ray 36231, 6/26/2014. *,
Tube (CRT) Rule, Revision 261.39(a)(5)(i)(F)
Checklist 232. *, 261.39(a)(5)(x)-
(xi) *, 261.41 *.
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RCRA Cluster XXIV
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Changes affecting all non- 80 FR 1694-1814, DRGHW 260.31(c),
waste determinations and 1/13/2015. 260.31(c)(1)-(5),
variances More stringent for 260.33 section
all state programs Revisions heading *, 260.33(c)-
to the Definition of Solid (e) *, 260.42
Waste, Revision Checklist section heading,
233A. 260.42(a) *,
260.42(a)(1)-(9),
260.42(b).
Legitimacy-related provisions, 80 FR 1694-1814, DRGHW 260.10
including prohibition of sham 1/13/2015. ``contained'',
recycling, definition of 260.10 ``Hazardous
legitimacy, definition of secondary
contained More stringent for material'',
all state programs. Revisions 260.43(a) section
to the Definition of Solid heading, 260.43(a),
Waste, Revision Checklist 260.43(a)(1),
233B. 260.43(a)(1)(i)-(v),
260.43(a)(2),
260.43(a)(2)(i)-(ii)
, 260.43(a)(3),
260.43(a)(4),
260.43(a)(4)(i),
260.43(a)(4)(i)(A)-(
B),
260.43(a)(4)(ii),
260.43(a)(4)(ii)(A)-
(B),
260.43(a)(4)(iii),
260.43(b)-(c),
261.2(b)(4),
261.2(g).
Speculative Accumulation, 80 FR 1694-1814, DRGHW 261.1(c)(8).
Revisions to the Definition 1/13/2015.
of Solid Waste, Revision
Checklist 233C.
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Consolidated Checklist C9
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Land Disposal Restrictions, as 40 CFR part 268.. DRGHW part 268.
of June 30, 2018.
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\1\ A Revision Checklist is a document that addresses the specific
revisions made to the Federal regulations by one or more related final
rules published in the Federal Register. EPA develops these checklists
as tools to assist States in developing their authorization
applications and in documenting specific State analogs to the Federal
regulations. For more information see EPA's RCRA State Authorization
web page at https://www.epa.gov/rcra/state-authorization-under-resource-conservation-and-recovery-act-rcra.
\2\ Unless otherwise indicated, all Delaware citations are from the
state's 2021 regulations.
H. Where are the revised Delaware rules different from the Federal
rules?
1. Delaware Requirements That Are More Stringent Than the Federal
Program
Delaware's hazardous waste program contains several provisions that
are more stringent than the RCRA program. The more stringent provisions
are part of the Federally authorized program and are, therefore,
federally enforceable. The specific more stringent provisions are also
noted with an asterisk in Table 1 of this preamble and in Delaware's
authorization application. They include, but are not limited to, the
following:
(a) The Federal regulations, at 40 CFR 260.21(d), state that any
person may petition for a regulatory amendment to add a testing or
analytical method. Delaware's regulations do not allow such petitions
and, as a result, are more stringent than the federal requirement.
(b) The Federal regulations, at 40 CFR 260.33, detail the
procedures the Administrator will use in evaluating applications for
variances from classification as a solid waste, for variances to be
classified as a boiler, or for non-waste determinations. The Delaware
regulations, at DRGHW 260.33, detail the procedures the Secretary of
DNREC will use in evaluating applications for variances from
classification as solid waste or variances to be classified as a
boiler. The Delaware regulations do not allow applications for non-
waste determinations and, as such, are more stringent than the Federal
requirements.
(c) The Federal regulations, at 40 CFR 260.42(a), state that
facilities managing hazardous secondary materials under an approved
variance must send a notification to EPA every two years. The Delaware
regulations, at DRGHW 260.42(a), require notifications to DNREC every
year. Because Delaware requires annual notifications while EPA requires
notifications every two years, this Delaware requirements is more
stringent than the Federal requirement.
(d) The Federal regulations, at 40 CFR 261.39, include a list of
conditions that used, broken CRTs must meet in order to be excluded
from consideration as solid wastes. The Delaware regulations, at DRGHW
261.39 and 261.41(a), specify that CRTs are considered solid waste but
used, intact or broken CRTs are not hazardous waste if they meet the
listed
[[Page 74975]]
conditions. Because the Delaware regulations do not exclude CRTs from
consideration as solid wastes, the state requirements are more
stringent than the Federal requirements. Additionally, the Federal
regulations, at 40 CFR 261.39(a)(5)(i)(F), (a)(5)(x), and (a)(5)(xi),
require exporters of used, broken CRTs to notify EPA of an intended
export before the CRTs are scheduled to leave the United States, to
file with EPA an annual report summarizing the quantities, frequency of
shipment, and ultimate destination(s) of all used CRTs exported during
the previous calendar year. The Delaware regulations, at DRGHW
261.39(a)(5)(i)(F), (a)(5)(x), and (a)(5)(xi), require that exporters
of used, intact or broken CRTs notify both EPA and the DNREC Secretary
of an intended export before the CRTs are scheduled to leave the United
States, and that the annual report be filed with EPA, with a copy sent
to the DNREC Secretary. Because Delaware's requirements apply to
exporters of intact CRTs in addition to exporters of used, broken CRTs,
and because the Delaware regulations require exporters to notify DNREC
in addition to EPA, the Delaware regulations are more stringent than
the Federal requirements.
(e) In several places, the Federal regulations require that notices
and reports be submitted to the Agency. Delaware's regulations also
require the submittal of those notices and reports, but additionally
require that the notices and reports be submitted to the Secretary of
DNREC. These additional requirements are found at DRGHW 261.41(b) and
(c), 264.56(j), and 264.343(a)(2). Additionally, Delaware regulations
require that notifications and documents be provided to the Secretary
in a number of instances where the Federal regulations do not require
such notifications or submittals. These additional requirements are
found at DRGHW 264.1061(b)(1), 264.1062(a)(2), 265.56(i), 265.90(e)(1)
and (e)(3), 265.93(d)(2) and (d)(5), 265.196(f), 265.224(a),
265.259(a), 265.303(a), 265.1061(b)(1), 265.1061(d), and
265.1062(a)(2). As a result, the above Delaware regulations are more
stringent than the Federal requirements.
(f) The Federal regulations, at 40 CFR 262.14(a)(5)(iv) and (v),
allows very small quantity generators (VSQGs) to either treat or
dispose of their hazardous waste in an on-site facility or ensure
delivery to an off-site treatment, storage, or disposal facility as
long as the facility is in the United States and is permitted,
licensed, or registered by a state to manage municipal solid waste or
non-municipal non-hazardous waste. Delaware has reserved the analogous
subsections at DRGHW 262.14(a)(6)(iv) and (v), and does not allow VSQG
waste to be sent to non-hazardous waste landfills. As a result, the
Delaware regulations are more stringent than the Federal requirements.
(g) The Federal regulations, at 40 CFR 264.73(b), introductory
language, 264.73(b)(6) and (b)(18), 264.347(d), 265.73(b), introductory
language, 265.73(b)(6), and 266.102(e)(10) require that facilities
record and maintain certain records for three or five years, as
specified. The Delaware regulations, at DRGHW 264.73(b), introductory
language, 264.73(b)(6), 264.347(d), 265.73(b), introductory language,
265.73(b)(6), and 266.102(e)(10) require facilities to maintain those
records until closure of the facility. Additionally, at 40 CFR
266.103(d) and (k), the Federal regulations require owners or operators
to recertify compliance within five years from submitting the previous
certification and to maintain required records for five years, while
the Delaware regulations, at DRGHW 266.103(d) and (k), require
recertification within three years and maintenance of the records until
closure of the unit. As a result, the above Delaware regulations are
more stringent than the Federal requirements.
(h) The Federal regulations, at 40 CFR 264.98(d) and 264.99(f),
state that the Regional Administrator will specify the frequencies for
collecting samples and conducting statistical tests to determine
whether there is statistically significant evidence of contamination.
The Delaware regulations, at DRGHW 264.98(d) and 264.99(f), specify
that a sequence of at least four samples from each well must be
collected at least semi-annually. Because of this additional
requirement, the above Delaware regulations are more stringent than the
Federal requirements.
(i) The Federal regulations, at 40 CFR 264.100(g), require owners
or operators to submit written reports on the effectiveness of the
corrective action program on an annual basis. The Delaware regulations,
at DRGHW 264.100(g), require that these reports be submitted semi-
annually. As a result, the Delaware regulations are more stringent than
the Federal requirements.
(j) The Federal regulations, at 40 CFR 264.113(d) and (e),
authorize the Regional Administrator to allow closed facilities to
accept non-hazardous waste if they meet certain requirements. Delaware
did not adopt these two subparagraphs. Therefore, in this respect, the
Delaware requirements are more stringent than the Federal program.
(k) The Federal regulations, at 40 CFR 265.113(e), allow owners or
operators of a hazardous waste surface impoundment that is not in
compliance with the liner and leachate collection system to operate as
long as they meet certain listed requirements. Delaware's regulations
do not allow these activities at all. As a result, the Delaware
regulations are more stringent than the Federal requirements.
(l) Delaware's regulations, at DRGHW 265.195(a), state that owners
or operators of facilities that use tank systems for storing or
treating hazardous waste must inspect specified areas at least once
each operating day. The Federal regulations, at 40 CFR 265.195(b),
include the same requirement. Additionally, at 40 CFR 265.195(c), the
Federal regulations allow certain facilities to inspect those areas
weekly. The Delaware regulations do not allow for this alternate
inspection schedule and, as a result, are more stringent than the
Federal requirements in this respect.
(m) The Federal regulations, at 40 CFR 265.195(f) and (g), require
an owner or operator of a facility with tank systems to inspect
cathodic protection systems and keep records of the inspections. The
Delaware regulations, at DRGHW 265.195(b) and (c), include the same
requirements. Additionally, DRGHW 265.195(c) provides that generators
must submit a written record of inspections and maintain the record
onsite for a minimum of three years. This additional requirement for
generators is more stringent than the Federal requirements.
I. Who handles permits after the authorization takes effect?
After this authorization revision, Delaware will continue to issue
permits covering all the provisions for which it is authorized and will
administer all such permits. EPA will continue to administer any RCRA
hazardous waste permits or portions of permits that it issued prior to
the effective date of this authorization until the timing and process
for effective transfer to the State are mutually agreed upon. Until
such time as EPA formally transfers responsibility for a permit to
Delaware and EPA terminates its permit, EPA and Delaware agree to
coordinate the administration of such permit in order to maintain
consistency. EPA will not issue any more new permits or new portions of
permits for the provisions listed in Section G of this preamble after
the effective date of this authorization. EPA will continue to
implement and issue permits for HSWA requirements
[[Page 74976]]
for which Delaware is not yet authorized.
J. How does this action affect Indian Country (18 U.S.C. 115) in
Delaware?
Delaware is not seeking authority to operate the program on Indian
lands, since there are no Federally-recognized Indian Lands in
Delaware.
K. What is codification and is EPA codifying Delaware's hazardous waste
program as authorized in this rule?
Codification is the process of placing a state's statutes and
regulations that comprise the state's authorized hazardous waste
program into the Code of Federal Regulations. We do this action by
referencing the authorized state rules in 40 CFR part 272. On January
31, 1986, EPA codified the initial EPA-approved Delaware State program
in 40 CFR part 272 subpart I (51 FR 3954). The current codification is
out of date because the authorized Delaware State program has been
amended since 1986. EPA is now removing and reserving the language in
40 CFR part 272 subpart I, Sec. Sec. 272.400 and 272.401. EPA's
initial January 1986 authorized program approval and all subsequent
updates have been accomplished through notice-and-comment rulemaking,
and EPA believes the scope and content of the authorized Delaware State
Program is sufficiently clear without codification in 40 CFR part 272.
L. Administrative Requirements
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 13563 (76 FR 3821, January 21, 2011). Therefore, this action
is not subject to review by OMB. This action authorizes State
requirements pursuant to 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
(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).
In any case, Executive Order 13175 does not apply to this rule since
there are no Federally recognized tribes in Delaware.
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 concern environmental health or safety
risks that may disproportionately 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 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 satisfies the requirements of RCRA. Thus, the requirements of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note, section 12(d)(3)) 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 18,
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 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). However,
this action will not be effective until February 6, 2023 because it is
a direct final rule.
List of Subjects
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.
40 CFR Part 272
Environmental protection, Hazardous materials transportation,
Hazardous waste, Incorporation by reference, Intergovernmental
relations, Water pollution control, Water supply.
Authority: This action is issued under the authority of sections
2002(a), 3006 and 7004(b) of the Solid Waste Disposal Act, as
[[Page 74977]]
amended, 42 U.S.C. 6912(a), 6926, and 6974(b).
Adam Ortiz,
Regional Administrator, U.S. EPA Region III.
For the reasons set forth in the preamble, 40 CFR part 272 is
amended as follows:
PART 272--APPROVED STATE HAZARDOUS WASTE MANAGEMENT PROGRAMS
0
1. The authority citation for part 272 continues to read as follows:
Authority: Secs. 2002(a), 3006, and 7004(b) of the Solid Waste
Disposal Act, as amended by the Resource Conservation and Recovery
Act, as amended, 42 U.S.C. 6912(a), 6926, and 6974(b).
Sec. Sec. 272.400 and 272.401 [Removed and Reserved]
0
2. Remove and reserve Sec. Sec. 272.400 and 272.401.
[FR Doc. 2022-22799 Filed 12-6-22; 8:45 am]
BILLING CODE 6560-50-P