Nevada: Final Authorization of State Hazardous Waste Management Program Revisions

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

EPA received several comments during the open comment period on the March 23, 2016, proposed rule to authorize Nevada's changes to the State Hazardous Waste Management program. EPA is responding to one comment opposing the action and reaffirming the effective date of the direct final rule as June 6, 2016.

DATES:

The final authorization is effective June 6, 2016.

FOR FURTHER INFORMATION CONTACT:

Laurie Amaro, U.S. Environmental Protection Agency Region 9, 75 Hawthorne Street LND-1-1, San Francisco, CA 94105, amaro.laurie@epa.gov, 415-972-3364.

SUPPLEMENTARY INFORMATION:

A. What decisions has EPA made in this rule?

On November 25, 2015, and December 28, 2015, Nevada submitted final complete program revision applications seeking authorization of changes to its hazardous waste program that correspond to certain federal rules promulgated between July 1, 2005, and June 30, 2008, (also known as RCRA Clusters XVI through XVIII). EPA concludes that Nevada's application to revise its authorized program meets 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 grants Nevada final authorization to operate as part of its hazardous waste program the changes listed in Section G of the direct final rule (81 FR 15440), as further described in the authorization application.

Nevada has responsibility for permitting treatment, storage, and disposal facilities within its borders (except in Indian country) and for carrying out the aspects of the RCRA program described in its revised program application. New federal requirements and prohibitions imposed by federal regulations that EPA promulgates pursuant to the Hazardous and Solid Waste Amendments of 1984 take effect in authorized states at the same time that they take effect in unauthorized states. Thus, EPA will implement those requirements and prohibitions in Nevada, including the issuance of new permits implementing those requirements, until the State is granted authorization to do so.

B. What is the effect of today's authorization decision?

The effect of this decision is that the changes described in Nevada's authorization application will become part of the authorized state hazardous waste program and therefore will be federally enforceable. Nevada will continue to have primary enforcement authority and responsibility for its state hazardous waste program. EPA retains 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 does not impose additional requirements on the regulated community because the regulations for which Nevada is being authorized by today's action are already effective and are not changed by today's action.

C. What were the comments on EPA's proposal and what is EPA's response?

On March 23, 2016, EPA published a proposed rule (81 FR 15497) and a direct final rule (81 FR 15440) to authorize Nevada's November 25 and December 28, 2015, applications to make revisions to Nevada's State Hazardous Waste Management program that correspond to certain federal rules promulgated between July 1, 2005, and June 30, 2008 (also known as RCRA Clusters XVI through XVIII). EPA stated that if adverse comments were received by May 9, 2016, the rule would be withdrawn and not take effect. On May 9, 2016, EPA received a comment opposing approval; however, due to the reasons explained below, EPA is not withdrawing the direct final rule but rather is responding to the comment and reaffirming the effective date of June 6, 2016, of the rule, pursuant to 40 CFR 271.21(b)(3)(iii)(B).

EPA received four comments on the proposed rule, Nevada: Final Authorization of State Hazardous Waste Management Program Revisions. Three comments stated, “Good” and do not require a response. The fourth comment stated, “Instead of not authorizing Nevada's antifreeze recycling program (and in the process violate 271.1(h), the partial authorization prohibition) EPA should instead require the program to be amended so it is no less stringent than EPAs [sic] requirements. This has been wrong since 2009!”

The State of Nevada adopted regulations for the “Recycling of Used Antifreeze” effective October 3, 1996, at NAC 444.8801-9071. These regulations are applicable to those categories of antifreeze that are recycled and have been determined to be hazardous waste because they either exhibit a characteristic of hazardous waste (i.e., the toxicity characteristic) or they are a listed hazardous waste in the state of their origin, for those categories of antifreeze entering Nevada from another State (NAC 444.8871). Under the Federal code, spent antifreeze destined to be recycled, as defined by Nevada, would be subject to the requirements of 40 CFR 261.6(b)-(d) “Requirements for Recyclable Materials.” In the Nevada regulations at NAC 444.8801-9071, spent antifreeze that is recycled is not regulated as universal waste, but is subject to requirements that are less stringent than the Federal regulations at 40 CFR 261.6(b)-(d). Accordingly, EPA cannot authorize Nevada's regulations specific to the recycling of used antifreeze.

However, Nevada has incorporated the federal regulations contained in 40 CFR 261.6(b)-(d) at NAC 444.8632. The purpose of EPA's notice in the Federal Register is to direct generators and recyclers of used antifreeze to comply with 40 CFR 261.1(b)-(d) as incorporated by reference in NAC 444.8632, rather than the antifreeze-specific provisions at NAC 444.8801-9071. Because Nevada's authorized program regulates used antifreeze recycling at NAC 444.8632 in a program that is no less stringent than the federal requirements, there is no gap in coverage of used antifreeze recycling that could be considered a partial authorization, and EPA is not running afoul of the requirement contained in 40 CFR 271.1(h). Additionally, as noted in the guidance document, Clarification of EPA Policy on Authorizing Incomplete or Late “Clusters” Under 40 CFR 271.21 and Availability of Public Information under RCRA Section 3006(f), Nov. 6, 1992,

There is regulatory history [relevant to 40 CFR 271.1(h)] which supports our interpretation that the prohibition on partial programs means States are prohibited from implementing RCRA programs that address only part of the universe of waste handlers, e.g., “generators”, “transporters”, “treatment, storage and disposal facilities”. This prohibition, therefore, would not be relevant to the great majority of program revisions, since any State program that has obtained initial authorization already addresses the full universe of waste handlers.

The prohibition contained in 40 CFR 271.1(h) therefore does not apply to this authorization decision. Nevada obtained initial authorization of its hazardous waste management program on August 19, 1985, effective November 1, 1985 (50 FR 42181), and Nevada's federally authorized program covers the full universe of waste handlers. Accordingly, EPA affirms that the immediate final decision takes effect on June 6, 2016, as described in the direct final rule, Nevada: Final Authorization of State Hazardous Waste Management Program Revisions.

D. 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). Therefore this action is not subject to review by OMB. This action authorizes state requirements for the purpose of RCRA section 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 (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 authorizes state requirements as part of the state RCRA hazardous waste program without altering the relationship or the distribution of power and responsibilities established by RCRA. This action also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant and it does not make decisions based on environmental health or safety risks. This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866.

Under RCRA 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 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 (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.). “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 authorizes 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.

The Congressional Review Act, 5 U.S.C. 801-808, 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). However, this action is effective 75 days after the date of initial publication in the Federal Register.

List of Subjects in 40 CFR Part 271

• Environmental protection
• Administrative practice and procedure
• Confidential business information
• Hazardous waste
• Hazardous waste transportation
• Indian lands
• Intergovernmental relations
• Penalties
• Reporting and recordkeeping requirements

Authority: This action is issued under the authority of sections 2002(a), 3006, and 7004(b) of the Solid Waste Disposal Act as amended, 42 U.S.C. 6912(a), 6926, and 6974(b).