Alabama: Authorization of State Hazardous Waste Management Program Revisions

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Proposed rule.

SUMMARY:

Alabama has applied to the Environmental Protection Agency (EPA) for final authorization of changes to its hazardous waste program under the Resource Conservation and Recovery Act (RCRA), as amended. EPA has reviewed Alabama's application and is proposing to determine that these changes satisfy all requirements needed to qualify for final authorization. Therefore, we are proposing to authorize the State's changes. EPA seeks public comment prior to taking final action.

DATES:

Comments must be received on or before January 9, 2019.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-R04-RCRA-2018-0529, at https://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from www.regulations.gov. EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. EPA will generally not consider comments or comment contents located outside of the primary submission (i.e., on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

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: baker.audrey@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 268, 270, 273, and 279.

New federal requirements and prohibitions imposed by federal regulations that EPA promulgates pursuant to the Hazardous and Solid Waste Amendments of 1984 (HSWA) take effect in authorized states at the same time that they take effect in unauthorized states. Thus, EPA implements those requirements and prohibitions in the states, including the issuance of new permits implementing those requirements, until the states are granted authorization to do so.

B. What decision is EPA proposing to make in this rule?

Alabama submitted final complete program revision applications, dated November 2, 2016 and May 11, 2018, seeking authorization of changes to its hazardous waste program that correspond to certain federal rules promulgated between July 1, 2004 and June 30, 2015 (including RCRA Clusters XV, XVI, XIX through XXI, XXIII, and XXIV). EPA concludes that Alabama's applications to revise its authorized program meet all of the statutory and regulatory requirements established by RCRA, as set forth in RCRA section 3006(b), 42 U.S.C. 6926(b), and 40 CFR part 271. Therefore, EPA proposes to grant Alabama final authorization to operate its hazardous waste program with the changes described in the authorization applications, and as outlined below in Section F of this document.

Alabama 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 applications, subject to the limitations of HSWA, as discussed above.

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

If Alabama is authorized for the changes described in Alabama's authorization applications, these changes will become part of the authorized State hazardous waste program, and therefore will be federally enforceable. Alabama will continue to have primary enforcement authority and responsibility for its State hazardous waste program. EPA would retain its authorities under RCRA sections 3007, 3008, 3013, and 7003, including its authority to:

• Conduct inspections, and require monitoring, tests, analyses or reports;
• Enforce RCRA requirements, including authorized State program requirements, and suspend or revoke permits; and
• Take enforcement actions regardless of whether the State has taken its own actions.

This action will not impose additional requirements on the regulated community because the regulations for which EPA is proposing to authorize Alabama are already effective, and are not changed by today's proposed action.

D. What happens if EPA receives comments that oppose this action?

EPA will evaluate any comments received on this proposed action and will make a final decision on approval or disapproval of Alabama's proposed authorization. Our decision will be published in the Federal Register. You may not have another opportunity to comment. If you want to comment on this authorization, you must do so at this time.

E. What has Alabama previously been authorized for?

Alabama initially received final authorization on December 8, 1987, effective December 22, 1987 (52 FR 46466), to implement the RCRA hazardous waste management program. EPA granted authorization for changes to Alabama's program on the following dates: November 29, 1991, effective January 28, 1992 (56 FR 60926); May 13, 1992, effective July 12, 1992 (57 FR 20422); October 21, 1992, effective December 21, 1992 (57 FR 47996); March 17, 1993, effective May 17, 1993 (58 FR 20422); September 24, 1993, effective November 23, 1993 (58 FR 49932); February 1, 1994, effective April 4, 1994 (59 FR 4594); November 14, 1994, effective January 13, 1995 (59 FR 56407); August 14, 1995, effective October 13, 1995 (60 FR 41818); February 14, 1996, effective April 15, 1996 (61 FR 5718); April 25, 1996, effective June 24, 1996 (61 FR 5718); November 21, 1997, effective February 10, 1998 (62 FR 62262); December 20, 2000, effective February 20, 2001 (65 FR 79769); March 15, 2005, effective May 16, 2005 (70 FR 12593); June 2, 2005, effective August 1, 2005 (70 FR 32247); September 13, 2006, effective November 13, 2006 (71 FR 53989); April 2, 2008, effective June 2, 2008 (73 FR 17924); and March 20, 2017, effective May 19, 2017 (82 FR 14327).

F. What changes are we proposing with today's action?

Alabama submitted two separate final complete program revision applications seeking authorization of changes to its hazardous waste management program in accordance with 40 CFR 271.21. Its application dated November 2, 2016, included changes associated with 71 FR 16862; 208 and 220, and its application dated May 11, 2018, included changes associated with Checklists 206.1, 207, 209, 211, 213, 222, 223, 225-227, 232, and 234. EPA proposes to determine, subject to receipt of written comments that oppose this action, that Alabama's hazardous waste program revisions are equivalent to, consistent with, and no less stringent than the federal program, and therefore satisfy all of the requirements necessary to qualify for final authorization. Therefore, EPA is proposing to authorize Alabama for the following program changes:

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

When revised state rules differ from the federal rules in the RCRA state authorization process, EPA determines whether the state rules are equivalent to, more stringent than, or broader in scope than the federal program. Pursuant to section 3009 of RCRA, 42 U.S.C. 6929, state programs may contain requirements that are more stringent than the federal regulations. Such more stringent requirements can be federally authorized and, once authorized, become federally enforceable. Although the statute does not prevent states from adopting regulations that are broader in scope than the federal program, such regulations cannot be authorized and are not federally enforceable.

In its review of the Alabama regulations submitted as part of the program revision applications that are the subject of this proposed rule, EPA did not find any State regulations to be broader in scope than the federal program. However, EPA has determined that certain regulations included in Alabama's program revision applications are more stringent than the federal program. All of these more stringent requirements will become part of the federally enforceable RCRA program in Alabama when authorized. These more stringent requirements are set forth in Table 2 below:

EPA cannot delegate certain federal requirements associated with the federal manifest registry system in the Uniform Hazardous Waste Manifest Rule (Checklists 207). Additionally, EPA cannot delegate the federal requirements associated with international shipments (i.e., import and export provisions) associated with the OECD Requirements for Export Shipments of Spent Lead-Acid Batteries (Checklist 222) or the Revisions to the Export Provisions of the Cathode Ray Tube Rule (Checklist 232). Alabama has adopted these requirements and appropriately preserved EPA's authority to implement them.

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

Alabama will issue permits for all the provisions for which it is authorized and will administer the permits it issues. EPA will continue to administer any RCRA hazardous waste permits or portions of permits which EPA issued prior to the effective date of this authorization until they expire or are terminated. EPA will not issue any new permits or new portions of permits for the provisions listed in Table 1 above after the effective date of the final authorization. EPA will continue to implement and issue permits for HSWA requirements for which Alabama is not yet authorized.

I. How does today's proposed action affect Indian country (18 U.S.C. 1151) in Alabama?

Alabama is not authorized to carry out its hazardous waste program in Indian country within the State, which includes the Poarch Band of Creek Indians. Therefore, this proposed action has no effect on Indian country. EPA will continue to implement and administer the RCRA program on these lands.

J. What is codification and will EPA codify Alabama's hazardous waste program as proposed 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 Code of Federal Regulations. EPA does this by referencing the authorized state rules in 40 CFR part 272. EPA is not proposing to codify the authorization of Alabama's changes at this time. However, EPA reserves the amendment of 40 CFR part 272, subpart B, for the authorization of Alabama's program changes at a later date.

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 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 Alabama'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 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 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 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 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 section 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 (61 FR 4729, February 7, 1996), in proposing 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 (53 FR 8859, March 15, 1988) by examining the takings implications of this 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 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 action proposes authorization of 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, this proposed rule is not subject to Executive Order 12898.

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,

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).