
[Federal Register: May 23, 2008 (Volume 73, Number 101)]
[Rules and Regulations]               
[Page 29987-29989]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23my08-5]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 271

[EPA-R08-RCRA-2006-0127; FRL-8569-9]

 
Utah: Final Authorization of State Hazardous Waste Management 
Program Revisions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Solid Waste Disposal Act, as amended, commonly referred to 
as the Resource Conservation and Recovery Act (RCRA), allows the 
Environmental Protection Agency (EPA) to authorize states to operate 
their hazardous waste management programs in lieu of the federal 
program. Utah has applied to EPA for final authorization of the changes 
to its hazardous waste program under RCRA. EPA has determined that 
these changes satisfy all requirements needed to qualify for final 
authorization and is authorizing Utah's changes through this final 
action.

DATES: This final authorization will become effective on May 23, 2008.

FOR FURTHER INFORMATION CONTACT: Carl Daly, Solid and Hazardous Waste 
Program, EPA Region 8, 1595 Wynkoop Street, Denver, Colorado 80202, 
(303) 312-6416, daly.carl@epa.gov.

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 changes, states must 
change their programs and ask 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 
EPA's regulations in 40 Code of Federal Regulations (CFR) Parts 124, 
260 through 266, 268, 270, 273 and 279.

[[Page 29988]]

    Utah initially received Final Authorization on October 10, 1984, 
effective October 24, 1984 (49 FR 39683) to implement its base 
hazardous waste management program. Utah received authorization for 
revisions to its program on February 21, 1989 (54 FR 7417), effective 
March 7, 1989; May 23, 1991 (56 FR 23648) and August 6, 1991 (56 FR 
37291), both effective July 22, 1991; May 15, 1992 (57 FR 20770), 
effective July 14, 1992; February 12, 1993 (58 FR 8232) and May 5, 1993 
(58 FR 26689), both effective April 13, 1993; October 14, 1994 (59 FR 
52084), effective December 13, 1994; May 20, 1997 (62 FR 27501), 
effective July 21, 1997; January 13, 1999 (64 FR 02144), effective 
March 15, 1999; October 16, 2000 (65 FR 61109), effective January 16, 
2001; May 7, 2002 (67 FR 30599), effective July 7, 2002; and June 11, 
2003 (68 FR 34829), effective June 11, 2003.
    On September 30, 2003, Utah submitted a complete program revision 
application, seeking authorization of additional changes to its program 
in accordance with 40 CFR 271.21. On March 7, 2008, EPA published both 
an immediate final rule (73 FR 12277) granting Utah final authorization 
for these revisions to its federally authorized hazardous waste 
program, along with a companion proposed rule announcing EPA's proposal 
to grant such a final authorization (73 FR 12340). EPA announced in 
both notices that the immediate final rule and the proposed rule were 
subject to a thirty-day public comment period. The public comment 
period ended on April 7, 2008. Further, EPA stated in both notices that 
if it received adverse comments on its intent to authorize Utah's 
program revisions that it would (1) withdraw the immediate final rule; 
(2) proceed with the proposed rule as the basis for the receipt and 
evaluation of such comments, and (3) subsequently publish a final 
determination responding to such comments and announce its final 
decision as to whether or not to authorize Utah's program revisions. 
EPA did receive two adverse comments during the public comment period, 
and on April 23, 2008, EPA published a notice withdrawing the immediate 
final rule (73 FR 21843).
    Today's action responds to the comments EPA received and publishes 
EPA's final determination granting Utah final authorization of its 
program revisions. Further background on EPA's immediate final rule and 
its tentative determination to grant authorization to Utah for its 
program revisions appears in the aforementioned Federal Register 
notices. The issues raised by the commenters are summarized and 
responded to in section B below.

B. What Were the Comments and Responses to EPA's Proposal?

    During the public comment period relevant and adverse comments were 
received from two sources. The comments did not address specific 
concerns with EPA's approval of the 14 additional RCRA regulatory 
provisions in Utah's authorized hazardous waste program; rather the 
comments were general in nature: Opposition to Utah accepting 
additional hazardous wastes and an allegation that Utah's DSHW provides 
misleading information to the public. In response to the first 
commenter who stated that he does ``not want Utah to take more 
hazardous waste than it already has,'' EPA notes that authorization of 
the additional RCRA regulatory provisions specified in the immediate 
final rule should not impact the amount or type of hazardous waste 
imported into Utah. The state has already adopted these regulatory 
provisions into the Utah Hazardous Waste Management Rules at R-315. In 
addition, the types and quantity of hazardous waste accepted at 
Treatment, Storage, and Disposal Facilities (TSDFs) in Utah are 
controlled by their respective RCRA permits issued by the State of 
Utah, and this authorization will not directly impact the conditions 
and restrictions in these RCRA permits.
    The commenter also states that bringing ``low-level radioactive 
waste into the United States for disposal or storage'' sets a bad 
precedent and that ``radioactive waste from Italy * * * should not be 
accepted in any form or degree.'' EPA notes that, in general, this 
authorization of additional RCRA regulatory provisions does not address 
radioactive waste. The one regulatory provision approved in this 
authorization that is related to radioactive waste is the Treatment 
Variance for Radioactively Contaminated Batteries. This provision, 
promulgated as a federal regulation on October 7, 2002, requires 
radioactively contaminated batteries determined to also be hazardous 
waste because of the heavy metal content of cadmium, mercury, or 
silver, to be treated with macro-encapsulation and then disposed of in 
a permitted disposal facility. Prior to this provision, radioactively 
contaminated batteries were required to be thermally treated or 
manually segregated to recover the heavy metals. EPA determined that 
these treatment standards were technically inappropriate for 
radioactively contaminated cadmium, mercury, and silver batteries. Our 
review has determined that Utah has adopted an equivalent rule to the 
federal hazardous waste regulation, specified in 40 CFR 268.40. 
Therefore, we have determined that there is no basis to deny 
authorization approval based on these comments.
    In response to the second commenter, who expressed concerns 
regarding the integrity of Utah's DSHW and raised allegations that the 
DSHW provides misleading information to the public, EPA has no 
documentation that indicates the Utah DSHW has provided misleading 
information to the public related to the hazardous waste authorization 
process. The DSHW has followed the process specified in 40 CFR 271.20 
to provide public notice prior to submitting an application for 
authorization to EPA. In addition, EPA conducts annual reviews of the 
DSHW's hazardous waste program. The last review was completed at the 
end of 2007. These reviews evaluate the DSHW's hazardous waste program 
using 19 program criteria organized under four key program areas: 
Program management, pollution prevention and hazardous waste 
minimization, safe waste management, and corrective action. EPA's 
program management review of the DSHW includes the following criteria: 
Adoption and authorization of federal rules, resources and skill mix, 
training program, data timeliness, accuracy and completeness, and 
records management. EPA notes that, for 2007, Utah met or exceeded the 
standards for all 19 program criteria. Therefore, we have determined 
that there is no basis to deny authorization approval based on these 
comments.

C. What Decisions Have We Made in This Rule?

    Based on EPA's response to public comments, the Agency has 
determined that approval of Utah's RCRA program revisions should 
proceed. EPA has made a final determination that Utah's application to 
revise its authorized program meets all of the statutory and regulatory 
requirements established by RCRA. Therefore, we grant Utah final 
authorization to operate its hazardous waste program with the changes 
described in the authorization application. Utah has responsibility for 
permitting TSDFs within its borders, except in Indian country as that 
term is defined at 18 U.S.C. 1151, 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 EPA promulgates under

[[Page 29989]]

the authority of HSWA take effect in authorized states before they are 
authorized for the requirements. Thus, EPA will implement those 
requirements and prohibitions in Utah, including issuing permits, until 
Utah is authorized to do so. For further background on the scope and 
effect of today's action to approve Utah's RCRA program revisions, 
please refer to the preambles of EPA's March 7, 2008 proposed and 
immediate final rules at 73 FR 12340 and 73 FR 12277, respectively.

D. Statutory and Executive Order Reviews

    The Office of Management and Budget has exempted this action from 
the requirements of Executive Order 12866, ``Regulatory Planning and 
Review'' (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 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, ``Consultation and Coordination With Indian 
Tribal Governments'' (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, ``Federalism'' (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, ``Protection of Children From Environmental Health Risks and 
Safety Risks'' (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), 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 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, ``Civil Justice Reform'' (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, ``Governmental 
Actions and Interference with Constitutionally Protected Property 
Rights'' (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 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). This 
action will be effective May 23, 2008.

List of Subjects in 40 CFR Part 271

    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.

    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: May 12, 2008.
Carol Rushin,
Acting Regional Administrator, Region 8.
[FR Doc. E8-11648 Filed 5-22-08; 8:45 am]

BILLING CODE 6560-50-P
