[Federal Register Volume 83, Number 108 (Tuesday, June 5, 2018)]
[Proposed Rules]
[Pages 25986-25994]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-11842]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 271 and 272

[EPA-R08-RCRA-2018-0084; FRL-9974-26-Region 8]


North Dakota: Proposed Authorization of State Hazardous Waste 
Management Program Revisions and Incorporation by Reference

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The state of North Dakota has applied to the EPA for final 
authorization of the changes to its hazardous waste program under the 
Resource Conservation and Recovery Act (RCRA). The EPA has reviewed 
North Dakota's application and has determined that these changes 
satisfy all requirements needed to qualify for final authorization and 
is proposing to authorize the state's changes. The EPA uses the 
regulations entitled, ``Approved State Hazardous Waste Management 
Programs'' to provide notice of the authorization status of state 
programs and to incorporate by reference those provisions of state 
statutes and regulations that will be subject to the EPA's inspection 
and enforcement. This action also proposes to codify in the regulations 
the authorized provisions of North Dakota's hazardous waste management 
program and to incorporate by reference authorized provisions of the 
state's regulations. Finally, today's rule corrects errors made in the 
state authorization citations published in the February 14, 2008 
Federal Register authorization document for North Dakota.

DATES: Comments on this proposed rule must be received by July 5, 2018.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
RCRA-2018-0084 by one of the following methods:
    1. Federal eRulemaking Portal: http://www.regulations.gov. Follow 
the on-line instructions for submitting comments.
    2. Email: [email protected].
    3. Fax: (303) 312-6341 (prior to faxing, please notify the EPA 
contact listed below).
    4. Mail, Hand Delivery or Courier: Moye Lin, Resource Conservation 
and Recovery Program, EPA Region 8, Mailcode 8P-R, 1595 Wynkoop Street, 
Denver, Colorado 80202-1129. Courier or hand deliveries are only 
accepted during the Regional Office's normal hours of operation. The 
public is advised to call in advance to verify business hours. Special 
arrangements should be made for deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-R08-RCRA-
2018-0084. The EPA's policy is that all comments received will be 
included in the public docket without change and may be available 
online at http://www.regulations.gov, including any personal 
information provided, unless the comment includes information claimed 
to be Confidential Business Information (CBI) or other information 
whose disclosure is restricted by statute. Do not submit information 
that you consider to be CBI or otherwise protected through http://www.regulations.gov, or email. The federal http://www.regulations.gov 
website 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 email comment directly to the EPA 
without going through http://www.regulations.gov, your email 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

[[Page 25987]]

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.
    Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy 
form. Publicly available docket materials are available either 
electronically through http://www.regulations.gov or in hard copy at: 
EPA Region 8, from 8:00 a.m. to 4:00 p.m., 1595 Wynkoop Street, Denver, 
Colorado 80202-1129, contact: Moye Lin, phone number (303) 312-6667, or 
the North Dakota Department of Health (NDDH) from 9:00 a.m. to 4:00 
p.m., 918 East Divide Avenue, 3rd Floor, Bismarck, North Dakota 58501-
1947, phone number (701) 328-5166. The public is advised to call in 
advance to verify business hours.

FOR FURTHER INFORMATION CONTACT: Moye Lin, Resource Conservation and 
Recovery Program, EPA Region 8, 1595 Wynkoop Street, Denver, Colorado 
80202-1129; phone number (303) 312-6667; Email address: 
[email protected].

SUPPLEMENTARY INFORMATION: 

I. Authorization of Revisions to North Dakota's Hazardous Waste Program

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 268, 270, 273 and 279. When 
states make other changes to their regulations, it is often appropriate 
for the states to seek authorization for the changes.

B. What decisions have we made in this rule?

    We conclude that North Dakota's application to revise its 
authorized program meets all of the statutory and regulatory 
requirements established by RCRA. Therefore, we propose to grant North 
Dakota final authorization to operate its hazardous waste program with 
the changes described in the authorization application. North Dakota 
will continue to have responsibility for permitting Treatment, Storage, 
and Disposal Facilities (TSDFs) 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 North Dakota, including issuing permits, until North 
Dakota is authorized to do so.

C. What is the effect of this proposed authorization decision?

    If North Dakota is authorized for these changes, a facility in 
North Dakota subject to RCRA will have to comply with the authorized 
state requirements instead of the equivalent federal requirements in 
order to comply with RCRA. Additionally, such facilities will have to 
comply with any applicable federal requirements such as, HSWA 
regulations issued by the EPA for which the state has not received 
authorization. North Dakota continues to have enforcement 
responsibilities under its state hazardous waste program for violations 
of such program, but EPA retains its authority under RCRA sections 
3007, 3008, 3013, and 7003, which include, among others, authority to:
     Conduct inspections and require monitoring, tests, 
analyses, or reports;
     Enforce RCRA requirements; suspend or revoke permits; and,
     Take enforcement actions regardless of whether North 
Dakota has taken its own actions.
    This action to approve these provisions would not impose additional 
requirements on the regulated community because the regulations for 
which North Dakota is requesting authorization are already effective 
under state law and are not changed by the act of authorization.

D. What happens if the EPA receives comments on this action?

    If the EPA receives comments on this proposed action, we will 
address those comments in our final action. You may not have another 
opportunity to comment, therefore, if you want to comment on this 
proposed authorization, you must do so at this time.

E. For what has North Dakota previously been authorized?

    North Dakota initially received final authorization on October 5, 
1984, effective October 19, 1984 (49 FR 39328) to implement the RCRA 
hazardous waste management program. We granted authorization for 
changes to their program on: June 25, 1990, effective August 24, 1990 
(55 FR 25836); May 4, 1992, effective July 6, 1992 (57 FR 19087); April 
7, 1994, effective June 6, 1994 (59 FR 16566); January 19, 2000, 
effective March 20, 2000 (65 FR 02897); September 26, 2005, effective 
November 25, 2000 (70 FR 56132), and February 14, 2008, effective April 
14, 2008 (73 FR 8610).

F. What changes are we proposing to authorize with this action?

    North Dakota submitted a final complete program revision 
application on September 20, 2016, and March 24, 2017, seeking 
authorization of their changes in accordance with 40 CFR 271.21. In its 
program revision application, the state of North Dakota also requested 
authorization for the Revisions to the Definition of Solid Waste (DSW) 
Rule, 80 FR 1694 (Jan. 13, 2015). However, due to the Court of Appeals 
for the District of Columbia Circuit's decisions, Am. Petroleum Inst. 
v. EPA, 862 F.3d 50 (DC Cir. 2017) and Am. Petroleum Inst. v. EPA, No. 
09-1038 (DC Cir. Mar. 6, 2018) (vacating both the Factor 4 Legitimacy 
Test and the Verified Recycler Exclusion aspects of the 2015 DSW Rule), 
the EPA is not granting authorization to the state for: (1) One 
criterion in the determination of whether recycling is legitimate (on 
Revision Checklist 233B at 40 CFR 260.43(a)(4)); (2) one criterion in 
the variance determination for exceptions to the classification of 
hazardous secondary materials as a solid waste (on Revision Checklist 
233D2 at 40 CFR 260.31(d)(6)); and (3) the verified recycler exclusion, 
which allowed generators to send their hazardous secondary materials to 
certain reclaimers (on Revision Checklist 233D2 at 40 CFR 
261.4(a)(24)). We have determined that North Dakota's hazardous waste 
program revision

[[Page 25988]]

satisfies all of the requirements necessary to qualify for Final 
authorization. Therefore, we propose to grant North Dakota final 
authorization for the following program changes:
1. Program Revision Changes for Federal Rules
    North Dakota seeks authority to administer the federal requirements 
that are listed below (the federal citation is followed by the analogs 
from the North Dakota Administrative Code (NDAC), Article 33-24, as 
revised January 1, 2016): NESHAP: Surface Coating of Automobiles and 
Light-Duty Trucks (69 FR 22601, 04/26/2004) (Checklist 205)/33-24-05-
420.7, 33-24-06-16.5; Nonwastewaters from Dyes and Pigments (70 FR 
9138, 02/24/2005 and 70 FR 35032, 06/16/2005) (Checklists 206 and 
206.1)/33-24-02-04.2.o., 33-24-02-17, 33-24-02/Appendices IV and V, 33-
24-05-266, 33-24-05-280/Table; Uniform Hazardous Waste Manifest Rule 
(70 FR 10776, 03/04/2005 and 70 FR 35034, 06/16/2005) (Checklists 207 
and 207.1)/33-24-01-04.30, 33-24-01-04.90, 33-24-01-04.91, 33-24-02-
07.3.b.(2) and (3), 33-24-03-04.1 introductory paragraph and .1.a, 33-
24-03-05, 33-24-03-07.6, 33-24-03-10.2, 33-24-03-11, 33-24-03-12.10, 
33-24-03-21.3 and .5, 33-24-03-30.3 through .5, 33-24-03/Appendix I, 
33-24-04-04.1.a through .c, 33-24-04-04.7.a through .d, 33-24-04-05.2 
and .3, 33-24-05-37, 33-24-05-38.1.a through .c, 33-24-05-38.2.d, 33-
24-05-38.5, 33-24-05-39.1 through .5, 33-24-05-39.6 except .6(h), 33-
24-05-39.7, 33-24-05-43, 33-24-06-16.5; Methods Innovation Rule and SW-
846 Final Update IIIB (70 FR 34538, 06/14/2005 and 70 FR 44150, 08/01/
2005)/33-24-01-05.1 through .2.j, .3 through .6.a, .7 introductory 
paragraph and .a, 33-24-01-07.4, 33-24-01-08.4.a(1), 33-24-02-
03.1.b.(5), 33-24-02-11.1.a, 33-24-02-12.1, 33-24-02-19.2.b.(3)(a) and 
(b), 33-24-02/Appendices I--III, 33-24-05-103.1, 33-24-05-183.2, 33-24-
05-280.2 and Table, 33-24-05-288/Table UTS, 33-24-05-404.3.a.(2), 
.3.a.(4), .4.a(3), and .6, 33-24-05-433.4.b, 33-24-05-525.4.a.(2) 
and.7.b, 33-24-05-527.2.a, 33-24-05-531.1, 33-24-05-537.2.a and 
.2.b.(1), 33-24-05-610.2.a.(2), 33-24-05-644.3, 33-24-05-653.3, 33-24-
05-663.3, 33-24-05/Appendices V, XII, and XXIV, 33-24-06-16.5, 33-24-
06-17.2.w.(3)(a)[3] and [4], 33-24-06-17.2.ff.(1)(b)(2)[b], 33-24-06-
19.2.b.(2)(a)[3] and [4], 33-24-06-19.4.c.(2)(a) and (b); Universal 
Waste Rule: Specific Provisions for Mercury Containing Equipment (70 FR 
45508, 08/05/2005) (Checklist 209)/33-24-01-04.92, 33-24-01-04.153 
introductory paragraph and .c, 33-24-02-06.5.c, 33-24-05-01.6.j.(3), 
33-24-05-250.6.c, 33-24-05-701.1.c, 33-24-05-704, 33-24-05-709.1, .3, 
and .4, 33-24-05-713.3, 33-24-05-714.4, 33-24-05-732.2.d and .e, 33-24-
05-733.3, 33-24-05-734.4, 33-24-06-01.2.b.(8)(c), 33-24-06-16.5; 
Standardized Permit for RCRA Hazardous Waste Management Facilities (70 
FR 53420, 09/08/2005) (Checklist 210)/33-24-01-04.48, .107 and .131, 
33-24-01-05.3.a, .3.c.(27), and .4.a, 33-24-02-07.1, 33-24-05-950.3, 
33-24-05-951, 33-24-05-960, 33-24-05-961, 33-24-05-963 through 968, 33-
24-05-980 through 986, 33-24-05-990 through 998, 33-24-05-1010 through 
1016, 33-24-05-1020, 33-24-05-1031, 33-24-05-1040 through 1047, 33-24-
05-1060 through 1063, 33-24-05-1067, 33-24-05-1068, 33-24-05-1071, 33-
24-05-1080 through 1087, 33-24-05-1100 through 1114, 33-24-05-1130 
through 1138, 33-24-06-01.1 and .9, 33-24-06-02.4, 33-24-06-11.2, 33-
24-06-12 introductory paragraph and .2.c, 33-24-06-16.5, 33-24-06-19.6, 
33-24-06-45, 33-24-06-48, 33-24-06-52, 33-24-06-56, 33-24-06-57, 33-24-
06-62, 33-24-06-65, 33-24-06-70, 33-24-06-73, 33-24-06-76, 33-24-06-80, 
33-24-06-85, 33-24-07-01, 33-24-07-03 introductory paragraph and .3.a, 
33-24-07-25.1 through .3, 33-24-07-26.1, 33-24-07-40 through 54; 
Revision of Wastewater Treatment Exemptions for Hazardous Waste 
Mixtures (``Headworks exemptions'') (70 FR 57769, 10/04/2005) 
(Checklist 211)/33-24-02-03.1.b.(4)(a) and (b), 33-24-02-03.1.b.(4)(d), 
(f), and (g); NESHAP: Final Standards for Hazardous Waste Combustors 
(Phase I Final Replacement Standards and Phase II) (70 FR 59402, 10/12/
2005) (Checklist 212)/33-24-01-05.1, .3 introductory paragraph, and 
.3.a, 33-24-05-144.2.a, 33-24-05-525.2.a, .c and .d, 33-24-06-01.12, 
33-24-06-05.2.c, 33-24-06-14.10.a through .c, 33-24-06-14.11, 33-24-06-
14/Appendix I, 33-24-06-16.5, 33-24-06-17.2.w.(5), .ff, .cc.(4)(c), and 
.dd.(5)(c), 33-24-06-19.2 and .4, 33-24-06-100; Burden Reduction 
Initiative (71 FR 16862, 04/04/2006) (Checklist 213)/33-24-01-10.2.b 
through .g, 33-24-02-04.1.i.(3)(e) and .6.i, 33-24-05-06.2.d, 33-24-05-
07.1.d, 33-24-05-27.2, 33-24-05-31.9, 33-24-05-40.2 introductory 
paragraph, .a, .b, .f, .h, .j, .r, and .s, 33-24-05-55.4, .7.b, and 
.7.c, 33-24-05-56.6 and .7, 33-24-05-57.7, 33-24-05-64, 33-24-05-69, 
33-24-05-77.9, 33-24-05-79.5, 33-24-05-93, 33-24-05-104.1 and .2.e.(2), 
33-24-05-105.1 introductory paragraph and .2 introductory paragraph, 
33-24-05-106.1.a, .1.b, and .9.b, 33-24-05-108.2 through .7, 33-24-05-
109.6, 33-24-05-131.3, 33-24-05-167.2, 33-24-05-183.1 through .5, 33-
24-05-147.1.b, 33-24-05-150.4, 33-24-05-256.1.a, .1.b, and .2.f, 33-24-
05-258.1 and .4, 33-24-05-431.2.a and .b, 33-24-05-432.1, 33-24-05-475, 
33-24-05-476.3.b and .d, 33-24-05-502.1 through .3, 33-24-05-
504.1.d.(2) and .7, 33-24-05-505.1, 33-24-05-527.5.j, 33-24-05-528.4 
and .11, 33-24-06-14/Appendix I, 33-24-06-16.5, 33-24-06-17.2 
introductory paragraph, .t.(1), and .ee.(3)(o); Corrections to Errors 
in the Code of Federal Regulations (71 FR 40254, 07/14/2006) (Checklist 
214)/33-24-01-04.69, .102, .109, .114, .153, and .158, 33-24-01-08.1.a 
and .4.a.(2), 33-24-01-13, 33-24-01-14, 33-24-02-02.3.a.(1), 33-24-02-
03.1.b.(1), 33-24-02-04.1.t.(5), .2.f.(1)(b), .2.f.(2) introductory 
paragraph, .2.f.(2)(a), .2.i, .5.b.(6), and .5.c.(1), 33-24-02-06.1.b 
and .3.b, 33-24-02-11.1.c and .d, 33-24-02-11.Notes 1 through 4, 33-24-
02-14.2, 33-24-02-16.1/Table, 33-24-02-17/Table entries ``K107'' and 
``K069'', 33-24-02-18.5, .5/Comment, and .5/Table, 33-24-02-18.6, .6/
Comment, and .6/Table, 33-24-02/Appendices IV and V, 33-24-03-
12.1.a.(4), 33-24-03-20.2, 33-24-03-23.2, 33-24-03-25.1.a, 33-24-03-40, 
33-24-03-51.12, 33-24-03-53.2.a.(1) and .b.(1), 33-24-03-54.5, 33-24-
03-57.1 introductory paragraph and .e, 33-24-05-01.6.b, 33-24-05-
04.2.g.(3)(b), 33-24-05-08.2, 33-24-05-09.1, 33-24-05-54.1.a and .9.e, 
33-24-05-55.1.b and .7.d.(1), 33-24-05-56.8.b, 33-24-05-58.4, 33-24-05-
60.3, 33-24-05-64, 33-24-05-65, 33-24-05-67.3, 33-24-05-68.2.a.(2), 33-
24-05-76.2.b.(2), 33-24-05-77.1.c.(1), .2.g, .2.h, .4.f, .5.e, and 
.6.j, 33-24-05-79.8.a, 33-24-05-81.2, .6, .7, .8.a and .b, .9, .10/
Item(2)(d), and .11 through .14, 33-24-05-94.2.a, 33-24-05-106.3 
through .5, and .7, 33-24-05-119.3.a.(1)(b), .3.b.(2), .5.a, 
.5.b.(1)(b), and.5.b.(1)(c), 33-24-05-120.1.b, 33-24-05-127.2.a, 33-24-
05-131.1.b.(1)(a), 33-24-05-136.2, 33-24-05-137.1 and .2, 33-24-05-
148.2, 33-24-05-167.3.g and .4, 33-24-05-170.1, 33-24-05-177.3.b and 
.5.b.(1)(b), 33-24-05-183.5.b, 33-24-05-186.1, 33-24-05-187.1 and .2, 
33-24-05-188.2.a, 33-24-05-230.1, 33-24-05-235.1/Table, 33-24-05-251.1, 
33-24-05-253.1.c, 33-24-05-255.3.e, 33-24-05-256.1.a, .1.c.(2), .1.d/
Table (entry 8), .2.c.(2)/Table (entry 5), .2.d.(2), .3.b, .4 
introductory paragraph through .c, 33-24-05-265.2 and .3, 33-24-05-
280.7 and Table, 33-24-05-282/Table 1, 33-24-05-284.3, 33-24-05-285/
Table 1, 33-24-05-288/Table UTS, 33-24-05-289.4, 33-24-05-290.3 and .7, 
33-24-05-300, 33-24-05-301.1, .2.k, and .3.d, 33-24-05-400.3, 33-24-05-

[[Page 25989]]

403.6.b.(7)(b), 33-24-05-404.2.b, 33-24-05-405.3.d.(1) and (2), 33-24-
05-420.6, 33-24-05-428.3.a, 33-24-05-434.3.c, 33-24-05-450.1 and .3, 
33-24-05-460.3, 33-24-05-476.2.c.(3), .3.c introductory paragraph, 
.3.c.(1), and .4, 33-24-05-477.1, 33-24-05-504.1.a, .1.d(1), .1.e, .2, 
.13.b, and .13.c, 33-24-05-525.2.b.(4), .4.c.(1)(a), and .7, 33-24-05-
527.1.b.(6), .5.c.(1)(e), .5.e.(1)(c), .5.f.(2)(b)[2], and .5.h.(3), 
33-24-05-528.1.d.(7), .2.b.(5)(b)[2], .2.e.(2)(a), .2.f.(8)(a), 
.3.a.(1), .3.a.(2)(a)[2], .3.a.(9) introductory paragraph and (a), 
.3.d.(4)(c)[1], and .7.a.(1), 33-24-05-531.4.a, 33-24-05-534.1.b.(2) 
and .2, 33-24-05-552.5.d.(3), .5.d.(4)(f), and .5.f.(3)(e), 33-24-05-
553.5, 33-24-05-554.1, 33-24-05-555.5.f, 33-24-05-600.8, 33-24-05-
610.2.b, 33-24-05-611 and 611/Table 1, 33-24-05-643.3.c.(1) and .3.e, 
33-24-05-644.1 and .3.b, 33-24-05-645.1, 33-24-05-652.1, .2 
introductory paragraph, .2.a.(2), .2.f.(2), and .2.f.(3), 33-24-05-
655.1 and .2.b.(1)(b), 33-24-05-656.1.b, 33-24-05-657.1.b.(2), 33-24-
05-659, 33-24-05-663.2.c, 33-24-05-664.5, 33-24-05-670.2.a, 33-24-05-
713.2, 33-24-05-714.1, 33-24-05-734.1, 33-24-05-1067.6.b.(1)(a), 33-24-
05/Appendix I Table 1 and Table 2 Section 6, Appendices XIII, XVIII 
through XXI, XXIII, XXIV, and XXVIII, 33-24-06-01.1, .2.b.(9)(a), and 
.10.a, 33-24-06-02, 33-24-06-03.4.a and .b, 33-24-06-07.2, 33-24-06-
12.3, 33-24-06-14.4.b.(1), 33-24-06-14/Appendix I, 33-24-06-16.5, 33-
24-06-17.1.e.(8), .2 introductory paragraph, .2.q.(3), .2.u.(6), 
.2.v.(2) and (7), .2.x.(9)(b), .2.aa, and .2.ee.(3)(o); Cathode Ray 
Tubes Rule (71 FR 42928, 07/28/2006) (Checklist 215)/33-24-01-04.13, 
.14, .16, and .17, 33-24-02-04.1.v, 33-24-02-23, 33-24-02-25 through 
33-24-05-27; NESHAP: Final Standards for Hazardous Waste Combustors 
(Phase I Final Replacement Standards and Phase II) Amendments (73 FR 
18970, 04/08/2008) (Checklist 217)/33-24-05-144.2.a and .c, 33-24-05-
525.2.c.(2); F019 Exemption for Wastewater Treatment Sludges from Auto 
Manufacturing Zinc Phosphating Processes (73 FR 31756, 06/04/2008) 
(Checklist 218)/33-24-02-16.1/Table and .2.d; Revisions to the 
Definition of Solid Waste (73 FR 64668, 10/30/2008) (Checklist 219)/33-
24-01-04.48, .59, .60, .77, .81, and .141, 33-24-01-09 introductory 
paragraph, .2, .4, and .5, 33-24-01-12 introductory paragraph, .1, and 
.3, 33-24-01-17 through 33-24-01-19, 33-24-02-01.3.d, 33-24-02-02.1 and 
.3.c, 33-24-02-04.1.x and .y, 33-24-02-33 through 33-24-02-42, 33-24-
06-14/Appendix I; Academic Laboratories Generator Standards (73 FR 
72912, 12/01/2008) (Checklist 220)/33-24-02-05.3.f and .g, 33-24-03-
01.9, 33-24-03-60 through 33-24-03-77; Hazardous Waste Technical 
Corrections and Clarifications (75 FR 12989, 03/18/2010) (Checklist 
223)/33-24-01-04.98, 33-24-01/Appendix I, 33-24-02-01.3.k, 33-24-02-
02.3/Table 1, 33-24-02-04.1.q.(6), 33-24-02-05.2, .5, .6 introductory 
paragraph, .6.b, .7 introductory paragraph, and .7.b, 33-24-02-06.1.b 
introductory paragraph., .1.b.(2), .1.c, .3.a, and .4, 33-24-02-07.1 
through .3, and .5, 33-24-02-13.1.h, 33-24-02-15.3 and .4, 33-24-02-
16.1, 33-24-02-17.1/Table, 33-24-02-18.6, 33-24-02/Appendix IV (removal 
of entries K064, K065, K066, K090, K091), 33-24-03-01.5, 33-24-03-02.4, 
33-24-03-07.7, 33-24-03-12.1.d, .2, .3, .4.d, .6, and .9, 33-24-03-
14.2, 33-24-03-15.1, .2 introductory paragraph, and .4, 33-24-03-30.2, 
33-24-04-03, 33-24-05-27.2, 33-24-05-31.4.b, 33-24-05-39.5.f, .6.a, 
.6.g, and .6.h, 33-24-05-183.4, 33-24-05-185.2, 33-24-05-201.2, 33-24-
05-203, 33-24-05-230.4, 33-24-05-235.2, 33-24-05-526.3.a and .b, 33-24-
05-280/Table (entries F025, K031, K156, K157, K158), 33-24-05-288/Table 
UTS, 33-24-05-552.1.c.(2) through (4), and .5.d.(4)(f), 33-24-06-10.1.a 
and .b, 33-24-06-16.5; Academic Laboratories Generator Standards 
Technical Corrections (75 FR 79304, 12/20/2010) (Checklist 226)/33-24-
03-61.1, 33-24-03-67.2.c.(1), 33-24-03-73.5.a, 33-24-03-75.1.a and 
.2.a; Revision of the Land Disposal Treatment Standards for Carbamate 
Wastes (76 FR 34147, 06/13/2011) (Checklist 227)/33-24-05-280/Table, 
33-24-05-288/Table UTS; Hazardous Waste Technical Corrections and 
Clarifications Rule (77 FR 22229, 04/13/2012) (Checklist 228)/33-24-02-
17.1 (entry K107), 33-24-05-201.2; Conditional Exclusions for Solvent 
Contaminated Wipes (78 FR 46448, 07/31/2013) (Checklist 229)/33-24-01-
04.100, .128, and .164, 33-24-02-04.1.w and .2.p; Conditional Exclusion 
for Carbon Dioxide (CO2) Streams in Geologic Sequestration Activities 
(79 FR 350, 01/03/2014) (Checklist 230)/33-24-01-04.11, 33-24-02-04.9; 
Hazardous Waste Electronic Manifest Rule (79 FR 7518, 02/07/2014) 
(Checklist 231)/33-24-01-04.38, .39, .90, and .151; 33-24-03-04.1.b, 
33-24-03-07.8 and .9, 33-24-04-04.1 and .9, 33-24-05-38.1 introductory 
paragraph, .1.b, and .6 through .11, 33-24-06-16.5; Revisions to the 
Export Provisions of the Cathode Ray Tube (CRT) Rule (79 FR 36220, 06/
26/2014) (Checklist 232)/33-24-01–04.15, 33-24-02-25.1.e.(1)(f), 
.1.e.(10), and .1.e.(11), 33-24-02-27; Revisions to the Definition of 
Solid Waste (80 FR 1694, 01/13/2015) (Checklist 233A)/33-24-01-10.3, 
33-24-01-12.3 through .5, 33-24-01-18; Revisions to the Definition of 
Solid Waste (80 FR 1694, 01/13/2015) (Checklist 233B)/33-24-01-04.24 
and .59, 33-24-01-19.1.a through .c, 33-24-02-02.2.c and .d, 33-24-02-
02.7; Revisions to the Definition of Solid Waste (80 FR 1694, 01/13/
2015) (Checklist 233C)/33-24-02-01.3.h; Revisions to the Definition of 
Solid Waste (80 FR 1694, 01/13/2015) (Checklist 233D2)/33-24-01-09.6, 
33-24-01-10.4, except .4.f, 33-24-01-17.2 introductory paragraph and 
.2.d, 33-24-01-17.3.e, 33-24-02-01.3.d, 33-24-02-02.3.c, and .3.d/Table 
1, 33-24-02-04.1.x, 33-24-02-33 through 33-24-02-42, 33-24-02-120 
through 33-24-02-129, 33-24-06-14/Appendix I; Revisions to the 
Definition of Solid Waste (80 FR 1694, 01/13/2015) (Checklist 233E)/33-
24-01-04.116, 33-24-02-02.3.c and .d/Table 1, 33-24-02-04.1.z, 33-24-
02-50 through 33-24-02-70, 33-24-02-170 through 33-24-02-173.1.a, 33-
24-02-174, 33-24-02-175, 33-24-02-200 through 33-24-02-203.2, 33-24-02-
204, 33-24-02-206, 33-24-02-207 through 33-24-02-209.2; Response to 
Vacatur of the Comparable Fuels Rule and the Gasification Rule (80 FR 
18777, 04/08/2015) (Checklist 234)/33-24-02-04.1.l.(1) and .1.p, 33-24-
02-22; Disposal of Coal Combustion Residuals from Electric Utilities 
(80 FR 21302, 04/17/2015) (Checklist 235)/33-24-02-04.2.d.
2. State-Initiated Changes
    North Dakota has made amendments to its regulations that are not 
directly related to any of the federal rules addressed in Item F.1 
above. These state-initiated changes are either for the purpose of 
clarifying existing authorized provisions, or of adopting provisions to 
render the state's regulations both clearer and internally consistent. 
The state's regulations, as amended by these provisions, provide 
authority which remains equivalent to and no less stringent than the 
federal laws and regulations. These state-initiated changes are 
submitted under the requirements of 40 CFR 271.21(a) and include the 
following provisions from the North Dakota Administrative Code (NDAC), 
Article 33-24, as revised January 1, 2016: 33-24-01-04.21, .29, .84, 
and .126; 33-24-02-04.1.i.(3)(d); 33-24-02-06.5 introductory paragraph; 
33-24-02-07.3.a through .b.1, .4, and .5.a through .c; 33-24-02-18.3; 
33-24-03-13.2; 33-24-03-14.3; 33-24-03-17; 33-24-05-07.4.b; 33-24-05-
38.2.b, .2.c, and .3; 33-24-05-47.1 through .4; 33-24-05-61.4.c; 33-24-
05-75.5; 33-24-

[[Page 25990]]

05-76.2.a introductory paragraph and .2.b introductory paragraph; 33-
24-05-79.6.c.(1); 33-24-05-81.1 and .8.a; 33-24-05-103 introductory 
paragraph; 33-24-05-106.8; 33-24-05-132.1, .2.b, and .2.c; 33-24-05-
180.2 introductory paragraph; 33-24-05-250.3.a; 33-24-05-252.1; 33-24-
05-253.1.b.(1) and (2); 33-24-05-256.1.d; 33-24-05-271.2 and .3; 33-24-
05-278; 33-24-05-289.1 through .3 introductory paragraph; 33-24-05-
290.1 introductory paragraph and .1.a; 33-24-05-403.14; 33-24-05-421; 
33-24-05-456.3.c and .3.d introductory paragraph; 33-24-05-459.6.a; 33-
24-05-501; 33-24-05-504.1.c and .9; 33-24-05-536; 33-24-05-645.8; 33-
24-05-654.7; 33-24-05-664.7; 33-24-05-718.2; 33-24-05-821.3; 33-24-05-
822.4; 33-24-05/Appendix II; 33-24-06-01.2 introductory paragraph and 
.2.c; 33-24-06-05.1 introductory paragraph through 2.b, and .3 through 
.5; 33-24-06-17.2.hh and .3.d.2; 33-24-06-30.1.c; 33-24-07-14.
    The state-initiated changes also include conforming changes to 
internal references to the incorporation by reference of 40 CFR part 
265 which was renumbered from 33-24-06-16(1) to 33-24-06-16(5) at the 
following citations: 33-24-02-04.1.i(3)(d); 33-24-05-254.8.b.(5); 33-
24-05-290.1.a; 33-24-05-403.14.a(2); 33-24-05-528.1.f (3) and .12; 33-
24-05-536.2.b, .4.b, and .5; 33-24-05-552.1.2; 33-24-05-622.1 
introductory paragraph; 33-24-05-664.1; and 33-24-06-17.2.hh(7).
    Since receiving authorization of the base program, North Dakota has 
removed certain provisions from the authorized program regulations, 
which resulted in the clarification of the state's program. These 
provisions have been reviewed and we have determined that it is 
appropriate for the state to remove them, and that their removal has no 
impact on the equivalency or consistency with the federal program. The 
provisions removed were NDAC sections: 33-24-06-06.3; 33-24-06-16.1 
through .4 as found in the January 1, 2016 version of the regulations; 
33-24-05-56.11 as found in the December 1, 2003 version of the 
regulations; 33-24-05-132.2.b as found in the December 1, 1988 version 
of the regulations; and 33-24-05-132.4 as found in the January 1, 1984 
version of the regulations.

G. Where are the revised state rules different from the Federal rules?

    We consider the following state requirements to be more stringent 
than the federal requirements: 33-24-02-22, 33-24-02-25, 33-24-02-27, 
33-24-02-30.5 33-24-03-20.2, and 33-24-03-23.2, because North Dakota 
requires documentation, such as manifests, to be submitted to the state 
in addition to the federal U.S. EPA; 33-24-02-36.4.a because North 
Dakota has additional state-specific insurance requirements; and 33-24-
05-968 because North Dakota has more stringent location standards that 
restrict the location of permitted facilities within certain 
geographical areas.
    There are no requirements that are broader-in-scope than the 
federal program in these revisions.
    North Dakota's rules, promulgated pursuant to this application, 
contain an error which may create confusion within the regulated 
community. The EPA has determined that the error does not pose 
implementation or enforcement problems; therefore, the EPA will approve 
this application with the understanding that the state will correct 
this item during its next rulemaking. The error is at 33-24-05/Appendix 
II within the North Dakota Administrative Code (NDAC), revised January 
1, 2016.

H. Who handles permits after the final authorization takes effect?

    North Dakota will continue to 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 were issued prior to the effective date of 
this authorization.

I. How does this action affect Indian country (18 U.S.C. 1151) in North 
Dakota?

    North Dakota is not authorized to carry out its hazardous waste 
program in Indian country, as defined in 18 U.S.C. 1151. This includes, 
but is not limited to:
    1. Lands within the exterior boundaries of the following Indian 
Reservations located within or abutting the State of North Dakota:

a. Fort Totten Indian Reservation
b. Fort Berthold Indian Reservation
c. Standing Rock Indian Reservation
d. Turtle Mountain Indian Reservation

    2. Any land held in trust by the U.S. for an Indian tribe, and
    3. Any other land, whether on or off a reservation that qualifies 
as Indian country within the meaning of 18 U.S.C. 1151.
    Therefore, this program revision does not extend to Indian country 
where the EPA will continue to implement and administer the RCRA 
program.

II. Corrections

    Corrections to February 14, 2008 (73 FR 8610) Authorization 
document: The following two citations: 33-24-05-256.1.c.1 and 33-24-05-
256.1.c.2 were not included in the authorization of Checklist 137 that 
was published February 14, 2008. We have reviewed these citations and 
determined that it is appropriate to include them as technical 
corrections as part of this codification.

III. 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 into the CFR. Section 3006(b) of RCRA, as amended, 
allows the EPA to authorize state hazardous waste management programs. 
The state regulations authorized by the EPA supplant the federal 
regulations concerning the same matter with the result that after 
authorization, the EPA enforces the authorized regulations. 
Infrequently, state statutory language which acts to regulate a matter 
is also authorized by the EPA with the consequence that the EPA 
enforces the authorized statutory provision. The EPA does not authorize 
state enforcement authorities and does not authorize state procedural 
requirements. The 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.

B. What is the history of the codification of North Dakota's hazardous 
waste management program?

    The EPA incorporated by reference North Dakota's then authorized 
hazardous waste program effective April 14, 2008 (73 FR 8610). In this 
action, the EPA is proposing to revise Subpart JJ of 40 CFR part 272 to 
include the authorization revision actions described in this preamble.

C. What decisions have we proposed in this rule?

    In this action, the EPA is proposing to finalize regulatory text 
that includes those incorporated by reference. In accordance with the 
requirements of 1 CFR 51.5, the EPA is proposing to finalize the 
incorporation by reference of the North Dakota rules described in the 
amendments to 40 CFR part 272 set forth below. The EPA has made, and 
will continue to make, these documents available electronically through 
http://

[[Page 25991]]

www.regulations.gov and in hard copy at the appropriate EPA office (see 
the ADDRESSES section of this preamble for more information).
    This action proposes to codify the EPA's authorization of North 
Dakota's base hazardous waste management program and its revisions to 
that program. The proposed codification reflects the state program that 
will be in effect at the time the EPA's authorized revisions to the 
North Dakota hazardous waste management program addressed in this 
proposed rule become final. This proposed action does not reopen any 
decision the EPA previously made concerning the authorization of the 
state's hazardous waste management program. The EPA is not requesting 
comments on its prior decisions published in the Federal Register 
actions referenced in Section I.E of this preamble.
    The EPA is proposing to incorporate by reference the EPA's approval 
of North Dakota's hazardous waste management program by amending 
Subpart JJ to 40 CFR part 272. The proposed action amends section 
272.1751 and incorporates by reference North Dakota's authorized 
hazardous waste regulations, as amended effective January 1, 2016. 
Section 272.1751 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, section 272.1751 
references the Memorandum of Agreement, the Attorney General's 
Statements, and the Program Description, which are 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 North Dakota's codification on enforcement?

    The EPA retains the authority under federal statutory provisions, 
including but not limited to, RCRA sections 3007, 3008, 3013 and 7003, 
and 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, the EPA will 
rely on federal sanctions, federal inspection authorities, and federal 
procedures rather than the state analogs to these provisions. 
Therefore, the EPA is not proposing to incorporate by reference North 
Dakota's inspection and enforcement authorities, nor are those 
authorities part of North Dakota's approved state program which 
operates in lieu of the federal program. 40 CFR 272.1751(c)(2) lists 
these authorities for informational purposes, and because the EPA also 
considered them in determining the adequacy of North Dakota's 
procedural and enforcement authorities. North Dakota'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 North Dakota'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 North Dakota 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 state's program to enforce compliance, 
but which do not supplant the federal statutory enforcement and 
procedural authorities.
    4. Federal rules which North Dakota adopted, but which were vacated 
by the U.S. Court of Appeals for the District of Columbia Circuit (DC 
Cir. No. 09-1038, rulings dated July 7, 2017, and March 6, 2018).
    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, the EPA proposes to list in 40 CFR 
272.1751(c)(3) the North Dakota statutory provisions that are ``broader 
in scope'' than the federal program, and which are not part of the 
authorized program being incorporated by reference. While ``broader in 
scope'' provisions are not part of the authorized program and cannot be 
enforced by the EPA, the state may enforce such provisions under state 
law.
    North Dakota has adopted, but is not authorized for, the federal 
rules published in the Federal Register on April 12, 1996 (61 FR 
16290); October 22, 1998 (63 FR 56710), and January 8, 2010 (75 FR 
1235). Therefore, these federal amendments included in North Dakota's 
adoption by reference at section 33-24-06-16.5 of the North Dakota 
Administrative Code, are not part of the state's authorized program and 
are not part of the proposed incorporation by reference addressed by 
this Federal Register document.

F. What will be the effect of the proposed codification on Federal HSWA 
requirements?

    With respect to any requirement(s) pursuant to HSWA for which the 
state has not yet been authorized, and which the EPA has identified as 
taking effect immediately in states with authorized hazardous waste 
management programs, the EPA will enforce those federal HSWA standards 
until the state is authorized for those provisions.
    The proposed codification does not affect federal HSWA requirements 
for which the state is not authorized. The 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 the 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 the EPA as optional or as less 
stringent, supersedes any less stringent or inconsistent state 
provision which may have been previously authorized by the EPA (50 FR 
28702, July 15, 1985).
    Some existing state requirements may be similar to the HSWA 
requirements implemented by the EPA. However, until the EPA authorizes 
those state requirements, the EPA enforces the HSWA requirements and 
not the state analogs.

IV. Administrative Requirements

    The Office of Management and Budget (OMB) has exempted this action 
from the requirements of Executive Orders 12866 (58 FR 51735, October 
4, 1993) and 13563 (76 FR 3821, January 21, 2011). This action proposes 
to authorize state requirements for the purpose of RCRA section 3006 
and imposes no additional requirements beyond those imposed by state 
law. Therefore, this action is not subject to review by OMB. This 
action is not an Executive Order 13771 (82 FR 9339, February 3, 2017) 
regulatory action because actions such as today's proposed 
authorization of North Dakota's revised hazardous waste program under 
RCRA are exempted under Executive Order 12866. 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 proposes to authorize 
pre-existing requirements under state law and does not impose any 
additional

[[Page 25992]]

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 
(2 U.S.C. 1531-1538). For the same reason, this proposed 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 proposes to authorize 
and codify 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 proposed 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 proposed action 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 proposed action, 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 action 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 proposed action 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 proposes to 
authorize 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.

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 rule 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 25, 2018.
Douglas Benevento,
Regional Administrator, Region 8.

    For the reasons set forth in the preamble, 40 CFR parts 271 and 272 
are amended as follows:

PART 271--REQUIREMENTS FOR AUTHORIZATION OF STATE HAZARDOUS WASTE 
PROGRAMS

    EPA is proposing to grant final authorization under part 271 to the 
State of North Dakota for revisions to its hazardous waste program 
under the Resource Conservation and Recovery Act.

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 of 1976, as amended, 42 U.S.C. 6912(a), 6926, and 6974(b).

0
2. Revise Sec.  272.1751 to read as follows:


Sec.  272.1751   North Dakota State-Administered Program: Final 
Authorization.

    (a) History of the State of North Dakota authorization. Pursuant to 
section 3006(b) of RCRA, 42 U.S.C. 6926(b), North Dakota has final 
authorization for the following elements as submitted to the EPA in 
North Dakota's base program application for final authorization which 
was approved by the EPA effective on October 19, 1984. Subsequent 
program revision applications were approved effective on August 24, 
1990, July 6, 1992, June 6, 1994, March 20, 2000, November 25, 2005, 
April 14, 2008, and [EFFECTIVE DATE OF FINAL RULE].
    (b) Enforcement authority. The state of North Dakota has primary 
responsibility for enforcing its hazardous waste management program. 
However, the EPA retains the authority to exercise its inspection and 
enforcement authorities in accordance with sections 3007, 3008, 3013, 
7003 of RCRA, 42 U.S.C. 6927, 6928, 6934, 6973, and any other 
applicable statutory and regulatory provisions, regardless of whether 
the state has taken its own actions, as well as in accordance with 
other statutory and regulatory provisions.
    (c) State Statutes and Regulations.
    (1) Incorporation by reference. The North Dakota statutes and 
regulations cited in paragraph (c)(1)(i) of this section are 
incorporated by reference as part of the hazardous waste management 
program under Subtitle C of RCRA, 42 U.S.C. 6921 et seq. This 
incorporation by reference is approved by the Director of the Federal 
Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. You may 
obtain copies of the North Dakota regulations that are incorporated by 
reference in this paragraph from North Dakota Legislative Council, 
Second Floor, State Capitol, 600 E. Boulevard Avenue, Bismarck, North 
Dakota 58505, phone (701) 328-2916. You may inspect a copy at EPA 
Region 8, 1595 Wynkoop Street, Denver,

[[Page 25993]]

Colorado, phone number (303) 312-6231, or at the National Archives and 
Records Administration (NARA). For information on the availability of 
this material at NARA, call (202) 741-6030, or go to: http://www.archives.gov/federal-register/cfr/ibr-locations.html.
    (i) The Binder entitled ``EPA-Approved North Dakota Statutory and 
Regulatory Requirements Applicable to the Hazardous Waste Management 
Program,'' dated April 2018.
    (ii) [Reserved]
    (2) Legal basis. The EPA considered the following statutes and 
regulations in evaluating the state program but is not incorporating 
them herein for enforcement purposes:
    (i) North Dakota Century Code (NDCC), Volume 13A, 2012 Replacement, 
North Dakota Constitution, Article XI: Sections 5 and 6.
    (ii) North Dakota Century Code, Volume 4A, 2012 Replacement. 
Chapter 23-01 ``State Department of Health'', Section 23-01-04.1; 
Chapter 23-20.3 ``Hazardous Waste Management'', Sections 23-20.3-01, 
23-20.3-02 introductory paragraph, (2), (3) through (8), (10), (13) 
through (16), and (18); 23-20.3-03; 23-20.3-04; 23-20.3-05(3), (5), 
(6), and (8); 23-20.3-06 through 23-20.3-10; and Chapter 23-29 ``Solid 
Waste Management and Land Protection'', Section 23-29-04.
    (iii) North Dakota Century Code, Volume 4A, 2015 Pocket Supplement. 
Chapter 23-01 ``State Department of Health'', Section 23-01-36
    (iv) North Dakota Century Code, Volume 5, 2012 Replacement. Chapter 
28-32 ``Administrative Agencies Practice Act'', Section 28-32-21.1 
``Actions against administrative agencies--Attorney's fees and costs''.
    (v) North Dakota Century Code, Volume 6, 2012 Replacement. Chapter 
32-40 ``Environmental Law Enforcement'', Sections 32-40-03 through 32-
40-11.
    (vi) North Dakota Century Code, Volume 9A, 2012 Replacement, as 
amended by the 2015 Pocket Supplement. Chapter 44-04 ``Duties, records 
and meetings'', Sections 44-04-18 through 19.1.
    (vii) North Dakota Administrative Code (NDAC), Article 33--24, 
Hazardous Waste Management, as amended through January 1, 2016. 
Sections 33-24-01-15; 33-24-01-16; 33-24-06-05, except .2.c; 33-24-06-
06.2; 33-24-06-09; 33-24-06-15.1.6 through .3.b; 33-24-07-03.4; 33-24-
07-04 through 33-24-07-14; 33-24-07-25 through 33-24-07-27; and 33-24-
07-40 through 33-24-07-54.
    (3) Related legal provisions. The following statutory and 
regulatory provisions are broader in scope than the federal program, 
are not part of the authorized program, are not incorporated by 
reference, and are not federally enforceable:
    (i) North Dakota Century Code, 2012 Replacement, Volume 4A, Chapter 
23-01 ``State Department of Health'', Section 23-01-04.1(6).
    (ii) North Dakota Century Code, Volume 4A, 2012 Replacement. 
Chapter 23-20.3 ``Hazardous Waste Management'', Sections 23-20.3-02(1); 
23-20.3-05.1; 23-20.3-05.2; and 23-20.3-05.3.
    (iii) North Dakota Administrative Code, Article 33-24, ``Hazardous 
Waste Management'', as amended through January 1, 2016, Sections 33-24-
03-03.4; 33-24-04-02.3; 33-24-05-02 second sentence; 33-24-06-
14.3.a(4); and 33-24-06-21.
    (iv) North Dakota's hazardous waste regulations set forth 
additional transporter requirements including permit requirements at 
33-24-04-02. The transporter permit requirements are broader in scope 
than the federal program.
    (4) Unauthorized state amendments and provisions.
    (i) North Dakota has partially or fully adopted, but is not 
authorized to implement, the federal rule published in the Federal 
Register on October 22, 1998 (63 FR 56710) Post-Closure Requirements 
and Closure Process (HSWA/non-HSWA) (Checklist 174). The EPA will 
continue to implement the federal HSWA requirements for which North 
Dakota is not authorized until the state receives specific 
authorization for those requirements.
    (ii) The federal rules listed in the following table are not 
delegable to states. North Dakota has adopted these provisions and left 
the authority to the EPA for implementation and enforcement.

----------------------------------------------------------------------------------------------------------------
                                                     Federal
              Federal requirement                   Register                     Publication date
                                                    reference
----------------------------------------------------------------------------------------------------------------
Imports and Exports of Hazardous Waste:             61 FR 16290  April 12, 1996.
 Implementation of OECD Council Decision (HSWA)
 (Checklist 152).
OECD Requirements; Export Shipments of Spent         75 FR 1236  January 8, 2010.
 Lead-Acid Batteries (Non-HSWA) (Checklist 222).
----------------------------------------------------------------------------------------------------------------

    (iii) North Dakota has adopted the following federal provisions 
from the Revisions to the Definition of Solid Waste Rule, 80 FR 1694 
(Jan. 13, 2015) which have since been vacated by the U.S. Court of 
Appeals for the District of Columbia Circuit in Am. Petroleum Inst. v. 
EPA, 862 F.3d 50 (DC Cir. 2017) and Am. Petroleum Inst. v. EPA, No. 09-
1038 (DC Cir. Mar. 6, 2018) (vacating both the Factor 4 Legitimacy Test 
and the Verified Recycler Exclusion aspects of the 2015 DSW Rule): (1) 
One criterion in the determination of whether recycling is legitimate 
at 40 CFR 260.43(a)(4); (2) one criterion in the variance determination 
for exceptions to the classification of hazardous secondary materials 
as a solid waste (at 40 CFR 260.31(d)(6)); and (3) the verified 
recycler exclusion, which allowed generators to send their hazardous 
secondary materials to certain reclaimers at 40 CFR 261.4(a)(24).
    (5) Memorandum of Agreement. The Memorandum of Agreement between 
the EPA Region 8 and the state of North Dakota, signed by the 
Environmental Health Section of the North Dakota Department of Health 
on July 18, 2016, although not incorporated by reference, is referenced 
as part of the authorized hazardous waste management program under 
subtitle C of RCRA, 42 U.S.C. 6921 et seq.
    (6) Statement of Legal Authority. ``Attorney General's Statement: 
Hazardous Waste Management Program'' signed by the Attorney General of 
North Dakota on June 8, 1984, and revisions, supplements, and addenda 
to that Statement dated February 22, 1989, February 11, 1984, October 
13, 1999, April 23, 2004, August 19, 2004 and December 5, 2016, 
although not incorporated by reference, are referenced as part of the 
authorized hazardous waste management program under subtitle C of RCRA, 
42 U.S.C. 6921 et seq.
    (7) Program Description. The Program Description and any other 
materials submitted as supplements thereto, although not incorporated 
by reference, are referenced as part of the authorized hazardous waste 
management program

[[Page 25994]]

under subtitle C of RCRA, 42 U.S.C. 6921 et seq.
0
3. Appendix A to part 272 is amended by revising the listing for 
``North Dakota'' to read as follows:

Appendix A to Part 272--State Requirements

* * * * *

North Dakota

    (a) The statutory provisions include: North Dakota Century Code 
(NDCC), Volume 4A, 2012 Replacement. Chapter 23-20.3 ``Hazardous 
Waste Management'', Sections 23-20.3-05(1), (2), (4), (7), and (9). 
Copies of the North Dakota statutes that are incorporated by 
reference are available from Matthew Bender & Company Inc., 701 E. 
Water Street Charlottesville, VA 22902-5389, phone number: (800) 
833-9844.
    (b) The regulatory provisions include: North Dakota 
Administrative Code (NDAC), Article 33-24, as revised January 1, 
2016, except reserved provisions.
    Chapter 33-24-01--General provisions: Sections 33-24-01-01 
through 33-24-01-04, 33-24-01-05, except .2.k and .7.a; 33-24-01-06 
through 33-24-01-09; 33-24-01-10, except .4.f; 33-24-01-11 through 
33-24-01-14; 33-24-01-17; 33-24-01-18; and 33-24-01-19, except .1.d.
    Chapter 33-24-02--Identification and Listing of Hazardous Waste: 
Sections 33-24-02-01 through 33-24-02-03; 33-24-02-04, except .1.y; 
33-24-02-05; 33-24-02-06, except .1.e; 33-24-02-07 through 33-24-02-
10; 33-24-02-11, except the phrase ``or a miniflash continuously 
closed cup tester, using the test method specified in American 
Society for Testing and Material D6450-99 (incorporated by reference 
in section 33-24-01-05)'' in paragraph .1.a; 33-24-02-12 through 33-
24-02-19; 33-24-02-25 through 33-24-02-27; 33-24-02-33 through 33-
24-02-42; 33-24-02-50 through 33-24-02-70; 33-24-02-120 through 33-
24-02-129; 33-24-02-170 through 33-24-02-175; 33-24-02-180 through 
33-24-02-194; 33-24-02-200 through 33-24-02-209; and Appendices I, 
IV, and V.
    Chapter 33-24-03--Standards for Generators: Sections 33-24-03-
01, except .4; 33-24-03-02; 33-24-03-03.1 and .2; 33-24-03-03.3 
except the phrase ``and a transporter permit''; 33-24-03-04 through 
33-24-03-24; 33-24-03-30; 33-24-03-40; 33-24-03-60 through 33-24-03-
77; and Appendix I.
    Chapter 33-24-04--Standards for Transporters: Sections 33-24-04-
01, except .4 and Note following paragraph .3.b; 33-24-04-02.1, 
except the phrase ``, a transporter permit, and a registration 
certificate''; 33-24-04-02.2, except the phrases ``and a 
registration certificate, or a transporter permit,'' in the first 
sentence, and ``and issue a registration certificate'' in the second 
sentence; and 33-24-04-03 through 33-24-04-08.
    Chapter 33-24-05--Standards for Treatment, Storage, and Disposal 
Facilities and for the Management of Specific Hazardous Waste and 
Specific Types of Hazardous Waste Management Facilities: Sections 
33-24-05-01; 33-24-05-02, except the second sentence; 33-24-05-03, 
except 33-24-05-03.1; 33-24-05-04 through 33-24-05-10; 33-24-05-15 
through 33-24-05-20; 33-24-05-26 through 33-24-05-31; 33-24-05-37; 
33-24-05-38, except .1.c and .4; 33-24-05-39 through 33-24-05-44; 
33-24-05-47 through 33-24-05-69; 33-24-05-74 through 33-24-05-81; 
33-24-05-89 through 33-24-05-98; 33-24-05-103 through 33-24-05-115; 
33-24-05-118 through 33-24-05-128; 33-24-05-130 through 33-24-05-
138; 33-24-05-144 through 33-24-05-151; 33-24-05-160 through 33-24-
05-170; 33-24-05-176 through 33-24-05-188; 33-24-05-201 through 33-
24-05-204; 33-24-05-230, except .2.c; 33-24-05-235, except .1/Table 
entries (6) and (7); 33-24-05-250 through 33-24-05-253; 33-24-05-
256; 33-24-05-258; 33-24-05-265; 33-24-05-266; 33-24-05-270 through 
33-24-05-281; 33-24-05-282, except .2; 33-24-05-283; 33-24-05-284.8 
through .13; 33-24-05-285; 33-24-05-286; 33-24-05-288 through 33-24-
05-290; 33-24-05-300 through 33-24-05-303; 33-24-05-400 through 33-
24-05-406; 33-24-05-420 through 33-24-05-435; 33-24-05-450 through 
33-24-05-460; 33-24-05-475 through 33-24-05-477; 33-24-05-501 
through 33-24-05-506; 33-24-05-525 through 33-24-05-537; 33-24-05-
550 through 33-24-05-555; 33-24-05-600; 33-24-05-610 through 33-24-
05-612; 33-24-05-620 through 33-24-05-624; 33-24-05-630 through 33-
24-05-632; 33-24-05-640 through 33-24-05-647; 33-24-05-650 through 
33-24-05-667; 33-24-05-670 through 33-24-05-675; 33-24-05-680; 33-
24-05-681; 33-24-05-701 through 33-24-05-705; 33-24-05-708 through 
33-24-05-720; 33-24-05-730 through 33-24-05-740; 33-24-05-750 
through 33-24-05-756; 33-24-05-760 through 33-24-05-762; 33-24-05-
770, except .4; 33-24-05-780; 33-24-05-781; 33-24-05-800 through 33-
24-05-802; 33-24-05-820 through 33-24-05-826; 33-24-05-850; 33-24-
05-855 through 33-24-05-857; 33-24-05-860; 33-24-05-865; 33-24-05-
866; 33-24-05-870; 33-24-05-875; 33-24-05-880; 33-24-05-885; 33-24-
05-890; 33-24-05-895 through 33-24-05-900; 33-24-05-905; 33-24-05-
910; 33-24-05-915; 33-24-05-916; 33-24-05-950; 33-24-05-951; 33-24-
05-960; 33-24-05-961; 33-24-05-963 through 33-24-05-968; 33-24-05-
980 through 33-24-05-986; 33-24-05-990 through 33-24-05-998; 33-24-
05-1010 through 33-24-05-1016; 33-24-05-1020; 33-24-05-1031; 33-24-
05-1040 through 33-24-05-1043; 33-24-05-1045 through 33-24-05-1047; 
33-24-05-1060 through 33-24-05-1063; 33-24-05-1067; 33-24-05-1068; 
33-24-05-1071; 33-24-05-1080 through 33-24-05-1087; 33-24-05-1100 
through 33-24-05-1114; 33-24-05-1130 through 33-24-05-1138; and 
Appendices I through VIII, X through XIII, XV through XXIV, and XXVI 
through XXIX.
    Chapter 33-24-06--Permits: Sections 33-24-06-01; 33-24-06-02, 
33-24-06-03, except Note following paragraph .1.a.(2); 33-24-06-04; 
33-24-06-05.2.c; 33-24-06-06.1; 33-24-06-07; 33-24-06-08; 33-24-06-
10 through 33-24-06-13; 33-24-06-14, except .3.a.(4); 33-24-06-15 
introductory paragraph through .1.a; 33-24-06-16.5 through .7; 33-
24-06-17 through 33-24-06-20; 33-24-06-30 through 33-24-06-35; 33-
24-06-45; 33-24-06-48; 33-24-06-52; 33-24-06-56; 33-24-06-57; 33-24-
06-62; 33-24-06-65; 33-24-06-70; 33-24-06-73; 33-24-06-76; 33-24-06-
80; 33-24-06-85; 33-24-06-100; and Appendix I to Section 33-24-06-
14.
    Chapter 33-24-07--Permitting Procedures: Sections 33-24-07-01; 
33-24-07-02; and 33-24-07-03, except .4.
    Copies of the North Dakota regulations that are incorporated by 
reference are available from North Dakota Legislative Counsel, 
Second Floor, State Capitol, 600 East Boulevard, Bismarck, North 
Dakota 58505, phone number: (701) 328-2916.
* * * * *
[FR Doc. 2018-11842 Filed 6-4-18; 8:45 am]
 BILLING CODE 6560-50-P


