North Carolina: Final Authorization of State Hazardous Waste Management Program Revisions

Federal RegisterNov 4, 2024

89 Fed. Reg. 87512 (Nov. 4, 2024)

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Environmental Protection Agency 40 CFR Part 271

[EPA-R04-RCRA-2024-0116; FRL-11972-04-R4]

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final action.

SUMMARY:

On June 26, 2023, North Carolina submitted to the Environmental Protection Agency (EPA) a complete program revision application seeking authorization of changes to its hazardous waste program under the Resource Conservation and Recovery Act (RCRA), as amended. On July 15, 2024, the EPA published both a direct final action granting North Carolina final authorization for revisions to its federally authorized hazardous waste program, along with a companion proposed rule announcing the EPA's proposal to grant such final authorization. The EPA received two comments during the public comment period. On September 11, 2024, the EPA published a withdrawal of the direct final action so it could respond to the comments before the action went into effect. Today's action responds to comments and publishes the EPA's final determination granting North Carolina authorization of its hazardous waste program revisions.

DATES:

This final authorization will become effective on November 4, 2024.

FOR FURTHER INFORMATION CONTACT:

Leah Davis; RCRA Programs and Cleanup Branch; Land, Chemicals and Redevelopment Division; U.S. Environmental Protection Agency; Atlanta Federal Center, 61 Forsyth Street SW, Atlanta, Georgia 30303-8960; telephone number: (404) 562-8562; fax number: (404) 562-9964; email address: davis.leah@epa.gov.

SUPPLEMENTARY INFORMATION:

I. Why are revisions to State programs necessary?

States that have received final authorization from the EPA under RCRA section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous waste program that is equivalent to, consistent with, and no less stringent than the Federal program. As the Federal program changes, States must change their programs and ask the EPA to authorize the changes. Changes to State programs may be necessary when Federal or State statutory or regulatory authority is modified or when certain other changes occur. Most commonly, States must change their programs because of changes to the EPA's regulations in title 40 of the Code of Federal Regulations (CFR), parts 124, 260 through 268, 270, 273, and 279.

New Federal requirements and prohibitions imposed by Federal regulations that the EPA promulgates pursuant to the Hazardous and Solid Waste Amendments of 1984 (HSWA) take effect in authorized States at the same time they take effect in unauthorized States. Thus, the EPA will implement those requirements and prohibitions in North Carolina, including the issuance of new permits implementing those requirements, until the State is granted authorization to do so.

II. What is the background for this final action?

On June 26, 2023, North Carolina submitted to the EPA a complete program revision application seeking authorization of changes to North Carolina's hazardous waste program under the Resource Conservation and Recovery Act (RCRA), as amended. On July 15, 2024, the EPA published both a direct final action (89 FR 57364) granting North Carolina final authorization for revisions to its federally authorized hazardous waste program, along with a companion proposed rule (89 FR 57381) announcing the EPA's proposal to grant such final authorization. The EPA announced in both notices that the direct final action and the proposed rule were subject to a thirty-day public comment period. The EPA stated in both documents that if it received adverse public comment, it would withdraw the direct final action, base any further decision on the authorization of the State's program changes on the proposed rule, and address all public comments in a later final action. The public comment period ended on August 14, 2024. The EPA received two comments during the public comment period. On September 11, 2024, the EPA published a withdrawal of the direct final action (89 FR 73592) so it could respond to the comments before the action went into effect.

Today's action responds to the comments the EPA received and publishes the EPA's final determination granting North Carolina authorization of revisions to its hazardous waste program. The issues raised by the commenters are summarized and responded to in section III below. No further opportunity for comment will be provided.

III. What comments were received on North Carolina's proposed authorization and how is the EPA responding to these comments?

During the public comment period for the direct final action and proposed rule, the EPA received two comments. The comments are provided in the docket for this action. See Docket ID No. EPA-R04-RCRA-2024-0116 at www.regulations.gov. A summary of the comments and the EPA's responses are provided below.

Comment: The first comment is general in nature. The commenter does not oppose or support the EPA's authorization of revisions to the North Carolina hazardous waste program; rather, the commenter states that revisions to the State hazardous waste program must be no less stringent than the Federal program.

Response: As discussed in the EPA's direct final action, the EPA has reviewed all of the North Carolina hazardous waste program revisions submitted in its June 26, 2023 application, and has determined that they are equivalent to, consistent with, and no less stringent than the Federal program, which is the statutory standard set forth in RCRA section 3006(b), 42 U.S.C. 6926(b). The EPA has also concluded that some provisions of North Carolina's revised program are more stringent than the Federal program. These more stringent requirements will also become part of the federally enforceable RCRA program in North Carolina. Therefore, the EPA has determined that there is no basis to withdraw or deny authorization of the State program revisions based on this comment.

Comment: The second comment relates to a discrete provision of North Carolina law. Specifically, the commenter objects to 15A NCAC 13A .0108(c), which requires a transporter to submit to the North Carolina Department of Environmental Quality (DEQ) a letter describing a significant manifest discrepancy and to make attempts to reconcile it with a copy of the manifest or shipping paper at issue. The commenter states that the generator should have to provide the letter to DEQ addressing the discrepancy instead of shifting the burden to the transporter.

Response: As discussed in the EPA's direct final action, the revisions for which the State is seeking authorization are already effective and enforceable as a matter of State law, including this particular provision. The effect of the EPA's authorization decision is to make these changes part of the federally authorized State hazardous waste program and therefore federally enforceable. This action does not impose additional requirements on the regulated community because the regulations, including 15A NCAC 13A .0108(c), for which the EPA is authorizing North Carolina are already effective under State law and are not changed by the EPA's authorization decision. Therefore, the EPA has determined that there is no basis to withdraw or deny authorization of this provision based on this comment.

IV. What decisions has the EPA made in this action?

North Carolina submitted a complete program revision application, dated June 26, 2023, seeking authorization of changes to its hazardous waste program corresponding to certain Federal rules promulgated between October 27, 1987, and October 1, 2021 (including HSWA Cluster II (Checklists 39.1, 50.1, and 66.1), RCRA Cluster IV (Checklist 126.1), RCRA Cluster VI (Checklist 152), RCRA Cluster VIII (Checklist 167C.1), RCRA Cluster XIX (Checklists 219 and 221 ), RCRA Cluster XX (Checklist 243), RCRA Cluster XXVII (Checklists 240 and 241), RCRA Cluster XXVIII (Checklist 242), RCRA Cluster XXIX (Checklist 243), and Cluster XXX (Checklist 244)). The EPA concludes that North Carolina's application to revise its authorized program meets all of the statutory and regulatory requirements established under RCRA, as set forth in RCRA section 3006(b), 42 U.S.C. 6926(b), and 40 CFR part 271. Therefore, the EPA grants North Carolina final authorization to operate its hazardous waste program with the changes described in the program revision application, and as outlined below in Section VI of this document.

A “cluster” is a grouping of hazardous waste rules that the EPA promulgates from July 1st of one year to June 30th of the following year.

A “checklist” is developed by the EPA for each Federal rule amending the RCRA regulations. The checklists document the changes made by each Federal rule and are presented and numbered in chronological order by date of promulgation.

Although the State requested authorization for Checklists 221 and 224 in its program revision application, the EPA is not authorizing North Carolina for these two checklists because they correspond to Federal rules that have been vacated. This vacatur was documented in Checklist 234. The EPA previously authorized North Carolina for Checklist 234 on October 10, 2019 (84 FR 54516).

North Carolina has responsibility for permitting treatment, storage, and disposal facilities within its borders (except in Indian country, as defined at 18 U.S.C. 1151) and for carrying out the aspects of the RCRA program described in its program revision application, subject to the limitations of HSWA, as discussed above.

V. What is the effect of this authorization decision?

The effect of this decision is that the changes described in North Carolina's program revision application will become part of the authorized State hazardous waste program and will therefore be federally enforceable. North Carolina will continue to have primary enforcement authority and responsibility for its State hazardous waste program. The EPA will maintain its authorities under RCRA sections 3007, 3008, 3013, and 7003, including its authority to:

Conduct inspections, and require monitoring, tests, analyses, and 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 the EPA is authorizing North Carolina are already effective under State law and are not changed by this action.

VI. What changes is the EPA authorizing with this action?

The EPA has determined that the North Carolina hazardous waste program revisions included in its June 26, 2023 application are equivalent to, consistent with, and no less stringent than the Federal program, and therefore satisfy all of the requirements necessary to qualify for final authorization. Therefore, the EPA grants final authorization to North Carolina for the following program changes:

Description of Federal requirement	Federal Register date and page	Analogous state authority
Checklist 39.1, California List Waste Restrictions	52 FR 41295, 10/27/1987	15 NCAC 13A .0101(e).
Checklist 50.1, Land Disposal Restrictions for First Third Scheduled Wastes	54 FR 8264, 2/27/1989	15A NCAC 13A .0112(b).
Checklist 66.1, Land Disposal Restrictions; Corrections to the First Third Scheduled Wastes	55 FR 23935, 6/13/1990	15A NCAC 13A .0112(a).
Checklist 126.1, Testing and Monitoring Activities	59 FR 47980, 9/19/1994	15A NCAC 13A .0112(a).
Checklist 152, Imports and Exports of Hazardous Waste: Implementation of OECD Council Decision	61 FR 16290, 4/12/1996	15A NCAC 13A .0102(b); 15A NCAC 13A .0106(a); 15A NCAC 13A .0107(a) and (f); 15A NCAC 13A .0108(a)-(d), 15A NCAC 13A .0109(c) and (f); 15A NCAC 13A .0110(b) and (e); 15A NCAC 13A .0111(b); 15A NCAC 13A .0119(b), (c), (d) and (f).
Checklist 167C.1, Land Disposal Restrictions Phase IV—Corrections	63 FR 31266, 6/8/1998	15A NCAC 13A .0112(f).
Checklist 219, Revisions to the Definition of Solid Waste, as amended by Checklist 233 (2015 and 2018)	73 FR 64668, 10/30/2008	15A NCAC 13A .0102(b); 15A NCAC 13A .0103(c); 15A NCAC 13A .0106(a) and (f); 15A NCAC 13A .0113(g).
Checklist 240, Safe Management of Recalled Airbags	83 FR 61552, 11/30/2018	15A NCAC 13A .0102(b); 15A NCAC 13A .0106(a); 15A NCAC 13A .0107(a).
Checklist 241, Management Standards for Hazardous Waste Pharmaceuticals and Amendment to the P075 Listing for Nicotine	84 FR 5816, 2/22/2019	15A NCAC 13A .0106(a) and (d); 15A NCAC 13A .0107(a); 15A NCAC 13A .0109(b); 15A NCAC 13A .0110(a); 15A NCAC 13A .0111(g); 15A NCAC 13A .0112(a) and (e); 15A NCAC 13A .0113(a); 15A NCAC 13A .0119(g) and (g)(1).
Checklist 242, Universal Waste Regulations: Addition of Aerosol Cans	84 FR 67202, 12/9/2019	15A NCAC 13A .0102(b); 15A NCAC 13A .0106(a); 15A NCAC 13A .0109(b); 15A NCAC 13A .0110(a); 15A NCAC 13A .0112(a); 15A NCAC 13A .0113(a); 15A NCAC 13A .0119(a)-(c).
Checklist 243, Modernizing Ignitable Liquids Determinations	85 FR 40594, 7/7/2020	15A NCAC 13A .0101(e); 15A NCAC 13A .0106(c) and (m).

Checklist 244, Canada Import Export Recovery and Disposal Code Changes	86 FR 54381, 10/1/2021	15A NCAC 13A .0107(f); 15A NCAC 13A .0109(c); 15A NCAC 13A .0110(b).
Notes
The North Carolina regulatory citations are from the North Carolina Administrative Code (NCAC), effective August 6, 2020.
Checklists 39.1, 50.1, 66.1, 126.1, and 167C.1 amended the underlying Federal rules. North Carolina properly adopted the required changes made by the underlying Federal rules and was previously authorized for those changes
Most of the provisions contained in Checklist 152 were amended or removed by subsequent checklists, for which the EPA has previously authorized North Carolina.
The EPA authorized North Carolina for Checklist 233, Revisions to the Definition of Solid Waste, Response to Vacatur of Certain Provisions of the Definition of Solid Waste Rule, on October 10, 2019 (84 FR 54516). Checklist 233 included certain provisions from Checklist 219, the 2008 Federal Revisions to the Definition of Solid Waste Rule, as amended on January 13, 2015, and May 30, 2018. For clarity and completeness, the EPA is authorizing Checklist 219, as amended by Checklist 233.