[Federal Register Volume 84, Number 64 (Wednesday, April 3, 2019)]
[Rules and Regulations]
[Pages 12937-12938]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-06485]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 271

[EPA-R04-RCRA-2018-0527; FRL-9991-61-Region 4]


Kentucky: Final Authorization of State Hazardous Waste Management 
Program Revisions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final authorization.

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SUMMARY: The Environmental Protection Agency (EPA) is granting Kentucky 
final authorization for changes to its hazardous waste program under 
the Resource Conservation and Recovery Act (RCRA). The Agency published 
a Proposed Rule on September 21, 2018, and provided for public comment. 
Two substantive comments were received on Kentucky's proposed 
revisions. These comments are addressed in this Final Authorization.

DATES: This Final Authorization is effective April 3, 2019.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-R04-2018-0527. All documents in the docket are listed 
on the http://www.regulations.gov website. Although listed in the 
index, some information is not publicly available, e.g., Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Certain other material, such as copyrighted 
material, is not placed on the internet and will be publicly available 
only in hard copy form. Publicly available docket materials are 
available electronically through http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Audrey Baker, Materials and Waste 
Management Branch, RCR Division, U.S. Environmental Protection Agency, 
Atlanta Federal Center, 61 Forsyth Street SW, Atlanta, Georgia 30303-
8960; telephone number: (404) 562-8483; fax number: (404) 562-9964; 
email address: [email protected].

SUPPLEMENTARY INFORMATION: 

A. What changes to Kentucky's hazardous waste program is EPA 
authorizing with this action?

    On April 13, 2018, Kentucky submitted a final complete program 
revision application seeking authorization of changes to its hazardous 
waste program in accordance with 40 CFR 271.21. EPA now makes a final 
decision that Kentucky's hazardous waste program revisions that are 
being authorized are equivalent to, consistent with, and no less 
stringent than the Federal program, and therefore satisfy all of the 
requirements necessary to qualify for final authorization. For a list 
of State rules being authorized with this Final Authorization, please 
see the Proposed Rule published in the September 21, 2018 Federal 
Register at 83 FR 47858.

B. What comments were received on Kentucky's proposed authorization and 
how is EPA responding to these comments?

    EPA received two substantive comments on its September 21, 2018 
proposed authorization of Kentucky's hazardous waste program revisions. 
Specifically, EPA received adverse comments from the Sierra Club 
(``Commenter''). These comments are provided in the docket for today's 
final action. See Docket ID No. EPA-R04-RCRA-2018-0527 at 
www.regulations.gov. A summary of the adverse comments and EPA's 
responses are provided below.
    Comment 1: The Commenter contends that EPA may not approve 
Kentucky's maximum concentration limit for selenium in groundwater at 
401 KAR 39:090, Section 1(1), because it is higher than the Federal 
level in Table 1 of 40 CFR 264.94(a). Specifically, Kentucky's maximum 
concentration limit for selenium in groundwater is 0.05 milligrams per 
liter (mg/l), which is five times higher than the maximum Federal 
standard listed in 40 CFR 264.94(a), Table 1, which is 0.01 mg/l. The 
Commenter states that because this standard is ``weaker'' than the 
Federal analog, and because EPA has not established an ``alternate 
limit'' under the procedures of 40 CFR 264.94, the Kentucky 
concentration limit should not be approved.
    Response 1: As the Commenter correctly notes, Kentucky replaces the 
federal Table 1 in 40 CFR 264.94(a) with its own Table 1 at 401 KAR 
39:090, Section 1(1). In Kentucky's April 13, 2018 program revision 
application, Kentucky noted its replacement of the Federal Table 1 with 
its own Table, and also specified that its replacement Table is based 
on the current Federal Maximum Contaminant Levels (MCLs) for all listed 
constituents. EPA analyzed these substitute constituent concentrations 
and confirmed that they are equivalent to the federal MCLs.
    In its Proposed Rule, EPA concluded that Kentucky's replacement 
Table 1 is ``functionally equivalent'' to the Federal table at 40 CFR 
264.94(a). For the reasons set forth below, EPA affirms this 
determination and will proceed with authorization of Kentucky's State-
specific groundwater concentration limit for selenium.
    By way of background, the Federal groundwater concentration limits 
in 40 CFR 264.94(a), Table 1, were promulgated in 1982 and have 
remained unchanged since that time. See 47 FR 32274, 32350 (July 26, 
1982). These groundwater concentration limits serve as a trigger for 
corrective action for regulated units under post-closure care and were 
originally based on the health-based concentration limits found in the 
National Interim Primary Drinking Water Regulations under the Safe 
Drinking Water Act. See 47 FR at 32285. These National Interim Primary 
Drinking Water Regulations were later finalized to include the current 
MCLs, which were subject to notice and comment rulemaking and codified 
in 40 CFR part 141. EPA finalized the MCL for

[[Page 12938]]

selenium in 1992 and set it at 0.05 mg/l. See 40 CFR 141.62(b). All 
MCLs are promulgated under the authority of the Safe Drinking Water Act 
and are required to be reviewed every six years. See 42 U.S.C. 300g-
1(b)(9). The selenium MCL has undergone such review and EPA has 
determined that the 0.05 mg/l standard continues to be appropriate. See 
82 FR 3518 (Jan. 11, 2017).
    Although the regulations at 40 CFR 141.62 apply to ``community 
water systems and non-transient, non-community water systems'' as the 
Commenter correctly notes, EPA often relies on MCLs, in conjunction 
with health-based screening levels and background levels, for purposes 
of groundwater investigation and cleanup, with the goal of cleaning up 
groundwater to its maximum beneficial use, which is often as a source 
of drinking water. For example, Superfund cleanups conducted under the 
Comprehensive Environmental Response, Compensation and Liability Act 
utilize the Regional Screening Levels (RSLs) found at https://www.epa.gov/risk/regional-screening-levels-rsls-generic-tables, as well 
as the primary (health-based) MCLs, for purposes of establishing 
groundwater screening and cleanup levels. In addition, the Federal Coal 
Combustion Residuals (CCR) Rule uses the federal MCLs for purposes of 
setting groundwater protection standards. See 40 CFR 257.95(h). As a 
result, the Commenter's statement that the selenium MCL is not relevant 
for purposes of groundwater protection is inaccurate.
    Comment 2: The Commenter argues that EPA's proposed authorization 
of the portions of Kentucky's program that relate to EPA's Checklist 
235, which is the Federal regulation creating an exclusion from the 
definition of hazardous waste for certain coal combustion residuals, is 
inappropriate given that certain portions of the Federal Subtitle D CCR 
Rule have been vacated by the Court in Utility Solid Waste Activities 
Group, et al. v. EPA (D.C. Cir. Aug. 21, 2018).
    Response 2: The language of 40 CFR 261.4(b)(4) revised in the 2015 
CCR Rule was not challenged nor impacted by the decision in that case. 
As a result, this comment presents no basis to alter or re-evaluate 
EPA's decision to proceed with authorization for the portions of 
Kentucky's program that relate to Checklist 235.

C. What is codification and is EPA codifying Kentucky's hazardous waste 
program as authorized in this rule?

    Codification is the process of placing citations and references to 
the State's statutes and regulations that comprise the State's 
authorized hazardous waste program into the Code of Federal 
Regulations. EPA does this by adding those citations and references to 
the authorized State rules in 40 CFR part 272. EPA is not codifying the 
authorization of Kentucky's revisions at this time. However, EPA 
reserves the ability to amend 40 CFR part 272, subpart S, for the 
authorization of Kentucky's program changes at a later date.

D. Statutory and Executive Order Reviews

    This final authorization revises Kentucky's authorized hazardous 
waste management program pursuant to Section 3006 of RCRA and imposes 
no requirements other than those currently imposed by State law. For 
further information on how this authorization complies with applicable 
executive orders and statutory provisions, please see the Proposed Rule 
published in the September 21, 2018 Federal Register at 83 FR 47858. 
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 
final action will be effective April 3, 2019.

List of Subjects in 40 CFR Part 271

    Environmental protection, Administrative practice and procedure, 
Confidential business information, Hazardous waste, Hazardous waste 
transportation, 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, and 6974(b).

    Dated: March 20, 2019.
Mary S. Walker,
Acting Regional Administrator, Region 4.
[FR Doc. 2019-06485 Filed 4-2-19; 8:45 am]
 BILLING CODE 6560-50-P


