Idaho: Incorporation by Reference of Approved State Hazardous Waste Management Program

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Proposed rule.

SUMMARY:

The Resource Conservation and Recovery Act, as amended (RCRA), allows EPA to authorize State hazardous waste management programs if EPA finds that such programs are equivalent and consistent with the Federal program and provide adequate enforcement of compliance. Title 40 of the Code of Federal Regulations (CFR) Part 272 is used by EPA to codify its decision to authorize individual State programs and incorporates by reference those provisions of the State statutes and regulations that are subject to EPA's inspection and enforcement authorities as authorized provisions of the State's program. This rule proposes to revise the codification of the Idaho authorized program.

DATES:

Comments on this proposed action must be received by the close of business January 10, 2005. If EPA receives significant comments on this proposed action, EPA will respond to such comments in the Federal Register at the time EPA publishes a final rule.

ADDRESSES:

Send written comments by mail to Jeff Hunt, U.S. EPA, Region 10, 1200 Sixth Avenue, Mail stop AWT-122, Seattle, WA 98101, or via e-mail to hunt.jeff@epa.gov. You can inspect the records related to this codification effort from 8:30 a.m. to 4 p.m. Monday through Friday in the EPA Region 10 Library, 1200 Sixth Avenue, Mail stop WCM-122, Seattle, WA 98101.

FOR FURTHER INFORMATION CONTACT:

Jeff Hunt, U.S. EPA, Region 10, 1200 Sixth Avenue, Mail stop WCM-122, Seattle, WA 98101, e-mail: hunt.jeff@epa.gov, phone number (206) 553-0256.

SUPPLEMENTARY INFORMATION:

I. Incorporation by Reference

A. What Is Codification?

Codification is the process of including the statutes and regulations that comprise the State's authorized hazardous waste management program in the CFR. Section 3006(b) of RCRA, as amended, allows the Environmental Protection Agency (EPA) to authorize State hazardous waste management programs. The State regulations authorized by EPA supplant the federal regulations concerning the same matter with the result that after authorization EPA enforces the authorized regulations. Infrequently, State statutory language which acts to regulate a matter is also authorized by EPA with the consequence that EPA enforces the authorized statutory provision. EPA does not authorize State enforcement authorities and does not authorize State procedural requirements. EPA codifies the authorized State program in 40 CFR part 272 and incorporates by reference State statutes and regulations that make up the approved program which is Federally enforceable in accordance with Sections 3007, 3008, 3013 and 7003 of RCRA, 42 U.S.C. 6927, 6928, 6934 and 6973, and any other applicable statutory and regulatory provisions.

Today's action proposes to codify EPA's authorization of revisions to Idaho's hazardous waste management program. This proposed codification reflects the State program in effect at the time EPA authorized revisions to the Idaho hazardous waste management program in a final rule dated March 10, 2004 (69 FR 11322). Notice and an opportunity for comment regarding the revisions to the authorized State program were provided to the public at the time those revisions were proposed. EPA is not reopening its decisions to authorize changes to the State's program nor is EPA requesting comment on those revisions.

B. What Is the History of the Authorization and Codification of Idaho's Hazardous Waste Management Program?

Idaho initially received final authorization for its hazardous waste management program, effective April 9, 1990 (55 FR 11015). Subsequently, EPA authorized revisions to the State's program effective June 5, 1992 (57 FR 11580), August 10, 1992 (57 FR 24757), June 11, 1995 (60 FR 18549), January 19, 1999 (63 FR 56086), July 1, 2002 (67 FR 44069), and March 10, 2004 (69 FR 11322). EPA first codified Idaho's authorized hazardous waste program effective February 4, 1991 (55 FR 50327), and updated the codification of Idaho's program on June 5, 1992 (57 FR 11580), August 10, 1992 (57 FR 24757), and August 24, 1999 (64 FR 34133). In this action, EPA is proposing to revise Subpart N of 40 CFR part 272, to include the recent authorization revision actions effective July 1, 2002 (67 FR 44069) and March 10, 2004 (69 FR 11322).

C. What Decisions Have We Proposed in This Action?

Today's action proposes to codify EPA's authorization of revisions to Idaho's hazardous waste management program. The proposed codification will incorporate by reference the most recent version of the State's authorized hazardous waste management regulations. This proposed action does not reopen any decision EPA previously made concerning the authorization of the State's hazardous waste management program. EPA is not requesting comments on its decisions published in the Federal Register notices referenced in section B of this document concerning revisions to the authorized program in Idaho.

EPA is proposing to incorporate by reference the authorized revisions to the Idaho hazardous waste program by revising subpart N of 40 CFR part 272. 40 CFR part 272, subpart N, § 272.651 currently incorporates by reference Idaho's authorized hazardous waste program, as amended, through 1999. Section 272.651 also references the demonstration of adequate enforcement authority, including procedural and enforcement provisions, which provide the legal basis for the State's implementation of the hazardous waste management program. In addition, § 272.651 references the Memorandum of Agreement, the Attorney General's Statement and the Program Description which were evaluated as part of the approval process of the hazardous waste management program in accordance with Subtitle C of RCRA.

D. What Is the Effect of Idaho's Codification on Enforcement?

EPA retains the authority under statutory provisions, including but not limited to, RCRA sections 3007, 3008, 3013 and 7003, and any other applicable statutory and regulatory provisions, to undertake inspections and enforcement actions and to issue orders in all authorized States. With respect to enforcement actions, EPA will rely on Federal sanctions, Federal inspection authorities, and Federal procedures rather than the State analogues to these provisions. Therefore, the EPA is not proposing to incorporate by reference Idaho's inspection and enforcement authorities nor are those authorities part of Idaho's approved State program which operates in lieu of the Federal program. 40 CFR 272.651(b)(2) lists these authorities for informational purposes, and also because EPA considered them in determining the adequacy of Idaho's enforcement authorities. This action proposes to revise this listing for informational purposes where these authorities have changed under Idaho's revisions to State law and were considered by EPA in determining the adequacy of Idaho's enforcement authorities. Idaho's authority to inspect and enforce the State's hazardous waste management program requirements continues to operate independently under State law.

E. What State Provisions Are Not Proposed as Part of the Codification?

The public is reminded that some provisions of Idaho's hazardous waste management program are not part of the federally authorized State program. These non-authorized provisions include:

(1) Provisions that are not part of the RCRA subtitle C program because they are “broader in scope” than RCRA subtitle C (see 40 CFR 271.1(i));

(2) Federal rules for which Idaho is not authorized, but which have been incorporated into the State regulations because of the way the State adopted federal regulations by reference;

(3) State procedural and enforcement authorities which are necessary to establish the ability of the program enforce compliance but which do not supplant the Federal statutory enforcement and procedural authorities.

State provisions that are “broader in scope” than the federal program are not incorporated by reference in 40 CFR part 272. For reference and clarity, 40 CFR 272.651(b)(3) currently lists the Idaho regulatory provisions which are “broader in scope” than the federal program and which are not part of the authorized program being incorporated by reference. This action proposes to update that list for “broader in scope” provisions EPA identified in recent authorization actions for revisions to the State program. While “broader in scope” provisions are not part of the authorized program and cannot be enforced by EPA, the State may enforce such provisions under State law.

Idaho has adopted but is not authorized for certain sections of the Post Closure rule (Standards Applicable to Owners and Operators of Closed and Closing Hazardous Waste Management Facilities: Post-Closure Permit Requirement and Closure Process; Final Rule) promulgated by EPA on October 22, 1998 (63 FR 56710). These unauthorized sections of the Post Closure rule include the State analogs to Federal citations 40 CFR 270.1(c)(7), 40 CFR 265.121, 40 CFR 265.110(c), and 40 CFR 265.118(c)(4). Additionally, Idaho is authorized for State analogs to Federal 40 CFR 264.90(e), 264.90(f), 264.110(c), 264.112(b)(8), 264.112(c)(2)(iv), 264.118(b)(4), 264.118(d)(2)(iv), 264.140(d), 265.90(f), 265.110(d), 265.112(b)(8), 265.118(c)(5), 265.140(d), 270.1(c) introductory text, and 270.28 except where those sections reference the use of enforceable documents in the context of the Post Closure rule. Idaho did not seek, nor receive, authorization for language in those sections which state as follows: “* * * or in an enforceable document (as defined in 270.1(c)(7).” Therefore, these Federal amendments included in Idaho's adoption by reference at IDAPA 58.01.05.000, et seq., but which are not part of the State's authorized program will not be included in this proposed codification.

F. What Will Be the Effect of the Proposed Codification on Federal HSWA Requirements?

With respect to any requirement(s) pursuant to the Hazardous and Solid Waste Amendments of 1984 (HSWA) for which the State has not yet been authorized and which EPA has identified as taking effect immediately in States with authorized hazardous waste management programs, EPA will enforce those Federal HSWA standards until the State is authorized for those provisions.

The proposed Codification does not effect Federal HSWA requirements for which the State is not authorized. EPA has authority to implement HSWA requirements in all States, including States with authorized hazardous waste management programs, until the States become authorized for such requirements or prohibitions unless EPA has identified the HSWA requirement(s) as an optional or as a less stringent requirement of the Federal program. A HSWA requirement or prohibition, unless identified by EPA as optional or as less stringent, supersedes any less stringent or inconsistent State provision which may have been previously authorized by EPA (50 FR 28702, July 15, 1985).

Some existing State requirements may be similar to the HSWA requirements implemented by EPA. However, until EPA authorizes those State requirements, EPA enforces the HSWA requirements and not the State analogs.

II. Statutory and Executive Order Reviews

This action proposes to codify EPA-authorized hazardous waste management requirements pursuant to RCRA Section 3006 and imposes no requirements other than those imposed by State law (see Supplementary Information). Therefore, this proposed action complies with applicable executive orders and statutory provisions as follows:

1. Executive Order 12866: Regulatory Planning Review— The Office of Management and Budget (OMB) has exempted this action from the requirements of Executive Order 12866 (58 FR 51735, October 4, 1993).

2. Paperwork Reduction Act— This proposed action does not impose an information collection burden under the Paperwork Reduction Act.

3. Regulatory Flexibility Act— This action proposes to codify Idaho's authorized hazardous waste management regulations in the CFR and does not impose new burdens on small entities. After considering the economic impacts of today's proposed rule on small entities under the Regulatory Flexibility Act, I certify that this action will not have a significant economic impact on a substantial number of small entities.

4. Unfunded Mandates Reform Act— Because this action proposes to codify pre-existing requirements under State law which EPA already approved under 40 CFR part 271 and does not impose any additional enforceable duty beyond that required by State law or existing Federal 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).

5. Executive Order 13132: Federalism— Executive Order 13132 does not apply to this proposed action because it will not have federalism implications (i.e. 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). This action proposes to codify existing authorized State hazardous waste management program requirements without altering the relationship or the distribution of power and responsibilities established by RCRA.

6. Executive Order 13175: Consultation and Coordination with Indian Tribal Governments— Executive Order 13175 does not apply to this proposed action because this action does not have tribal implications (i.e., substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes).

7. Executive Order 13045: Protection of Children from Environmental Health and Safety Risks— This proposed action is not subject to Executive Order 13045 because it is not economically significant and it does not make decisions based on environmental health or safety risks.

8. Executive Order 13211: Actions that Significantly Affect Energy Supply, Distribution, or Use— This proposed action is not subject to Executive Order 13211 because it is not a significant regulatory action under Executive Order 12866.

9. National Technology Transfer and Advancement Act (NTTAA)— EPA previously addressed the non-applicability of the NTTAA in its final approvals to revisions of the State's authorized hazardous waste management program. See section B of this proposed rule for the citations to the Federal Register for EPA's approval of revisions to the State's authorized hazardous waste management program. Section 12(d) of the NTTAA does not apply to this action.

10. Executive Order 12988— EPA has taken the necessary steps in this proposed action to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct.

List of Subjects in 40 CFR Part 272

• Environmental protection
• Administrative practice and procedure
• Confidential business information
• Hazardous waste
• Hazardous waste transportation
• Incorporation by reference
• Indian lands
• Intergovernmental relations
• Penalties
• Reporting and recordkeeping requirements
• Water pollution control
• Water supply

Authority: This proposed 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).

For the reasons set forth in the preamble, EPA proposes to amend 40 CFR part 272 as follows:

PART 272—APPROVED STATE HAZARDOUS WASTE MANAGEMENT PROGRAMS

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).

2. Subpart N is amended by revising § 272.651 to read as follows: