
[Federal Register: March 25, 2009 (Volume 74, Number 56)]
[Rules and Regulations]               
[Page 12625-12628]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr25mr09-23]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 271

[EPA-R06-RCRA-2008-0756-; FRL-8784-9]

 
 New Mexico: Final Authorization of State Hazardous Waste 
Management Program Revision

AGENCY: Environmental Protection Agency (EPA).

ACTION: Immediate final rule.

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SUMMARY: The State of New Mexico has applied to the EPA for final 
authorization to administer the provisions of the Used Oil program 
under the Resource Conservation and Recovery Act (RCRA). The EPA has 
determined that the statutes and regulations of the State of New Mexico 
Used Oil program satisfy all requirements needed to qualify for final 
authorization, and is authorizing the State's changes through this 
immediate final action. The EPA is publishing this rule to authorize 
the changes without a prior proposal because we believe this action is 
not controversial and do not expect comments that oppose it. Unless we 
receive written comments which oppose this authorization during the 
comment period, the decision to authorize New Mexico's changes to its 
hazardous waste program will take effect. If we receive comments that 
oppose this action, we will publish a document in the Federal Register 
withdrawing this rule before it takes effect, and a separate document 
in the proposed rules section of this Federal Register will serve as a 
proposal to authorize the changes.

DATES: This final authorization will become effective on May 26, 2009 
unless the EPA receives adverse written comment by April 24, 2009. If 
the EPA receives such comment, it will publish a timely withdrawal of 
this immediate final rule in the Federal Register and inform the public 
that this authorization will not take effect.

ADDRESSES: Submit your comments by one of the following methods:
    1. Federal eRulemaking Portal: http://www.regulations.gov. Follow 
the on-line instructions for submitting comments.
    2. E-mail: patterson.alima@epa.gov.
    3. Mail: Alima Patterson, Region 6, Regional Authorization 
Coordinator, State/Tribal Oversight Section (6PD-O), Multimedia 
Planning and Permitting Division, EPA Region 6, 1445 Ross Avenue, 
Dallas, Texas 75202-2733.
    4. Hand Delivery or Courier. Deliver your comments to Alima 
Patterson,

[[Page 12626]]

Region 6, Regional Authorization Coordinator, State/Tribal Oversight 
Section (6PD-O), Multimedia Planning and Permitting Division, EPA 
Region 6, 1445 Ross Avenue, Dallas, Texas 75202-2733.
    Instructions: Do not submit information that you consider to be CBI 
or otherwise protected through regulations.gov, or e-mail. The Federal 
regulations.gov Web site 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 e-mail comment 
directly to the EPA without going through regulations.gov, your e-mail 
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. You can view and 
copy New Mexico's application and associated publicly available 
materials from 8:30 a.m. to 4 p.m. Monday through Friday at the 
following locations: New Mexico Environment Department, 2905 Rodeo Park 
Drive East, Building 1, Santa Fe, New Mexico 87505-6303, phone number 
(505) 476-6035 and EPA, Region 6, 1445 Ross Avenue, 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 Coordinator, State/Tribal Oversight Section (6PD-O), 
Multimedia Planning and Permitting Division, (214) 665-8533), EPA 
Region 1445 Ross Avenue, Dallas, Texas 75202-2733, and E-mail address 
patterson.alima@epa.gov.

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 Have We Made in This Rule?

    We conclude that New Mexico's application to revise its authorized 
program meets all of the statutory and regulatory requirements 
established by RCRA. Therefore, we grant New Mexico final authorization 
to operate its hazardous waste program with the changes described in 
the authorization application. New Mexico has responsibility for 
permitting treatment, storage, and disposal facilities within its 
borders (except in Indian Country) and for carrying out the aspects of 
the RCRA program described in its revised program application, 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 New Mexico including issuing permits, until the State 
is granted authorization to do so.

C. What Is the Effect of Today's Authorization Decision?

    The effect of this decision is that a facility in New Mexico 
subject to RCRA will now have to comply with the authorized State 
requirements instead of the equivalent Federal requirements in order to 
comply with RCRA. New Mexico has 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:

--Do 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.

    This action does not impose additional requirements on the 
regulated community because the regulations for which New Mexico is 
being authorized by today's action are already effective under State 
law, and are not changed by today's action.

D. Why Wasn't There a Proposed Rule Before Today's Rule?

    The EPA did not publish a proposal before today's rule because we 
view this as a routine program change and do not expect comments that 
oppose this approval. We are providing an opportunity for public 
comment now. In addition to this rule, in the proposed rules section of 
today's Federal Register we are publishing a separate document that 
proposes to authorize the State program changes.

E. What Happens if the EPA Receives Comments That Oppose This Action?

    If the EPA receives comments that oppose this authorization, we 
will withdraw this rule by publishing a document in the Federal 
Register before the rule becomes effective. The EPA will base any 
further decision on the authorization of the State program changes on 
the proposal mentioned in the previous paragraph. We will then address 
all public 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. If we receive comments that oppose only 
the authorization of a particular change to the State hazardous waste 
program, we will withdraw only that part of this rule, but the 
authorization of the program changes that the comments do not oppose 
will become effective on the date specified above. The Federal Register 
withdrawal document will specify which part of the authorization will 
become effective, and which part is being withdrawn.

F. For What Has New Mexico Previously Been Authorized?

    The State of New Mexico initially received final authorization on 
January 25, 1985, (50 FR 1515) to implement its base hazardous waste 
management program. New Mexico received authorization for revisions to 
its program on February 9, 1990 (55 FR 4604) effective April 10, 1990; 
March 19, 1990 (55 FR 10076); July 11, 1990 (55 FR 28397) effective 
July 25, 1990; October 5, 1992 (57 FR 45717) effective December 4, 
1992; June 9, 1994 ( 59 FR 29734) effective August 23, 1994; October 7, 
1994 (59 FR 51122) effective December 21, 1994; April 25, 1995 (60 FR 
20238) effective July 10, 1995; (61 FR 2450) January 2, 1996; December 
23, 1996 (61 FR 67474) effective March 10,

[[Page 12627]]

1997 and August 10, 2001 (66 FR 42140) effective October 9, 2001. The 
authorized New Mexico RCRA program was incorporated by reference to the 
CFR, effective December 13, 1993 (58 FR 52677); November 18, 1996 (61 
FR 49265); July 13, 1998 (63 FR 23221); effective October 27, 2003 and 
(72 FR 46165) effective October 16, 2007. On August 22, 2008, New 
Mexico applied for approval of its program revisions for the Used Oil 
provisions which includes Rule Checklists 104, 107, 112, 122, 122.1, 
130, 166, and 166.1 listed in this document in accordance with 40 CFR 
271.21.
    The NMED petitioned the New Mexico Environmental Improvement Board 
(EIB) on March 10, 2003 for a hearing to amend the HWMR, 20.4.1 for the 
EPA Federal rules promulgated through July 1, 2002, including the Used 
Oil program. The EIB adopted the amendments to Hazardous Waste 
Management Regulations (HWMR) on August 5, 2003 as permanent rules 
which included the Used Oil program.
    Thus, 20.4.1 NMAC provides equivalent and no less stringent 
authority than the adoption of Federal RCRA Subtitle C program in 
effect through July 1, 2002. This is the version that is referred to in 
the Attorney General's Statement and Certification for submitted with 
this program revision. The 20 NMAC 4.1 became effective on October 1, 
2003. New Mexico Statutes Annotated (NMAC) 1978 Sections 74-4-4A(1) and 
74-4-4F (2002) provides New Mexico with authority to adopt Federal 
regulations by reference with exceptions to federal rules that are not 
delegated to the State of New Mexico. Since the latest authorization 
the scope, structure, coverage, and processes have not materially 
changed. The Used Oil program has been adopted within the Hazardous 
Waste Management Program, New Mexico does now have the statutory 
authority for criminal penalties as required by EPA for program 
authorization. Therefore, we are authorizing the State of New Mexico 
for the Used Oil regulations in this Federal Register document.
    New Mexico, through the HWMR, has incorporated by reference the 
following federal RCRA regulations as amended through July 1, 2002: 40 
CFR parts 260-270, 40 CFR Part 270; 40 CFR Part 273; and 40 CFR Part 
279 with the exception of 40 CFR 260.1(b)(6), 260.20, 260.22, 260.30, 
260.31, 260.32, 260.33, 263.20(e), 264.1(f), 264.149, 264.150, 
264.301(l), 264.1030(d), 264.1050(g), 264.1080(e), 264.1080(f), 
264.1080(g), 265.1(c)(4), 265.149, 265.150, 265.1030(c), 265.1050(f), 
265.1080(e), 265.1080(f), 265.1080(g); 268.5, 268.6, 268.42(b), 
268.44(a) through (g). New Mexico has incorporated by reference 40 CFR 
Part 124, Sec. Sec.  124.31, 124.32, and 124.33 with exception to 40 
CFR parts 124.1 and 124.2. Also, it has adopted regulations at 
20.4.1.901 NMAC, Permitting Procedures, that are equivalent to and no 
less stringent than the procedures of 40 CFR part 124 and required by 
40 CFR Part 271.14.

G. What Changes Are We Authorizing With Today's Action?

    On August 22, 2008, New Mexico submitted a final complete program 
revision application, seeking authorization of their changes in 
accordance with 40 CFR 271.21. We now make an immediate final decision, 
subject to receipt of written comments that oppose this action, that 
New Mexico's hazardous waste program revision satisfies all of the 
requirements necessary to qualify for Final authorization. Therefore, 
we grant the State of New Mexico Final authorization for the following 
changes: The State of New Mexico's program revisions consist of 
regulations which specifically govern Checklists 112, 122, 122.1, 130, 
166, and 166.1 are documented in this Federal Register document.

------------------------------------------------------------------------
                                   Federal Register
     Description of federal          date and page
 requirement  (include checklist     (and/or RCRA       Analogous state
     , if relevant)           statutory           authority
                                      authority)
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1. Recycled Used Oil Management   57 FR 41566-41626   New Mexico Statute
 Standards. (Checklist 112).       September 10,       Annotated (NMSA)
                                   1992.               1978, Sections 74-
                                                       4-4A(1) and 74-4-
                                                       4F (2002).
                                                       Hazardous Waste
                                                       Regulations
                                                       (HWMR), New
                                                       Mexico
                                                       Environmental
                                                       Improvement
                                                       Board, 20 NMAC,
                                                       20.4.1. 100,
                                                       20.4.1.200,
                                                       20.4.1.700 and
                                                       20.4.1.1002, as
                                                       adopted August 5,
                                                       2003, effective
                                                       October 1, 2003.
2. Recycled Used Oil Management   58 FR 26420-26426   New Mexico Statute
 Standards; Technical Amendments   May 3, 1993.        Annotated (NMSA)
 and Corrections 1. (Checklist                         1978, Sections 74-
 122).                                                 4-4A(1) and 74-4-
                                                       4F (2002).
                                                       Hazardous Waste
                                                       Regulations
                                                       (HWMR), New
                                                       Mexico
                                                       Environmental
                                                       Improvement
                                                       Board, 20 NMAC,
                                                       20.4.1. 200,
                                                       20.4.1.500,
                                                       20.4.1.600, and
                                                       20.4.1.1002 as
                                                       adopted August 5,
                                                       2003, effective
                                                       October 1, 2003.
3. Recycled Used Oil Management   59 FR 10550-10560   New Mexico Statute
 Standards; Technical Amendments   March 4, 1994.      Annotated (NMSA)
 and Corrections II. (Checklist                        1978, Sections 74-
 130).                                                 4-4A(1) and 74-4-
                                                       4F (2002).
                                                       Hazardous Waste
                                                       Regulations
                                                       (HWMR), New
                                                       Mexico
                                                       Environmental
                                                       Improvement
                                                       Board, 20 NMAC,
                                                       20.4.1. 1002, as
                                                       adopted August 5,
                                                       2003, effective
                                                       October 1, 2003.
4. Recycled Used Oil Management   63 FR 24963-24969   New Mexico Statute
 Standards; Technical Correction   May 6, 1998; as     Annotated (NMSA)
 and Clarification. (Checklist     amended July 14,    1978, Sections 74-
 166 & 166.1).                     1998, at 63 FR      4-4A(1) and 74-4-
                                   37780-37782.        4F (2002).
                                                       Hazardous Waste
                                                       Regulations
                                                       (HWMR), New
                                                       Mexico
                                                       Environmental
                                                       Improvement
                                                       Board, 20 NMAC,
                                                       20.4.1.200 and
                                                       20.4.1.1002,
                                                       adopted August 5,
                                                       2003, effective
                                                       October 1, 2003.
------------------------------------------------------------------------


[[Page 12628]]

H. Where Are the Revised State Rules Different From the Federal Rules?

    In this authorization of the State of New Mexico's program 
revisions for the Used Oil provisions, there are no provisions that are 
more stringent or broader in scope.

I. Who Handles Permits After the Authorization Takes Effect?

    New Mexico will 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 New 
Mexico is not yet authorized.

J. What Is Codification and Is the EPA Codifying New Mexico's Hazardous 
Waste Program as Authorized in This 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 T for this authorization of New Mexico's program changes until 
a later date. In this authorization application the EPA is not 
codifying the rules documented in this Federal Register notice.

K. Statutory and Executive Order Reviews

    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 therefore this action is not subject to review by OMB. This 
action authorizes State requirements for the purpose of RCRA 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 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 action also does 
not significantly or uniquely affect the communities of Tribal 
governments, as specified by Executive Order 13175 (65 FR 67249, 
November 9, 2000). This action will not have substantial direct effects 
on the States, on the relationship between the national government and 
the States, or on the distribution of power and responsibilities among 
the various levels of government, as specified in Executive Order 13132 
(64 FR 43255, August 10, 1999), because it merely authorizes State 
requirements as part of the State RCRA hazardous waste program without 
altering the relationship or the distribution of power and 
responsibilities established by RCRA. This action also is not subject 
to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is 
not economically significant and it does not make decisions based on 
environmental health or safety risks. This rule is not subject to 
Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355 
(May 22, 2001)) because it is not a significant regulatory action under 
Executive Order 12866.
    Under RCRA 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 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 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.). 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 a rule must submit report, which includes a copy 
of the rule, to each House of the Congress and to the Comptroller 
General of the United States. The 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). This action will be effective May 26, 2009.

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: March 5, 2009.
Lawrence E. Starfield,
Acting Regional Administrator, Region 6.
 [FR Doc. E9-6677 Filed 3-24-09; 8:45 am]

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