Idaho: Final Authorization of State Hazardous Waste Management Program Revision, 42273-42276 [05-14545]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 70, Number 140 (Friday, July 22, 2005)]
[Rules and Regulations]
[Pages 42273-42276]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-14545]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 271

[FRL-7942-9]


Idaho: Final Authorization of State Hazardous Waste Management 
Program Revision

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: Idaho applied to the United States Environmental Protection 
Agency (EPA) for final authorization of changes to its hazardous waste 
program under the Resource Conservation and Recovery Act (RCRA). On May 
16, 2005, EPA published a proposed rule to authorize the changes and 
opened a public comment period. The comment period closed on June 15, 
2005. EPA has decided that these revisions to the Idaho hazardous waste 
management program satisfy all of the requirements necessary to qualify 
for final authorization and is authorizing these revisions to Idaho's 
authorized hazardous waste management program in today's final rule.

DATES: Final authorization for the revisions to the hazardous waste 
program in Idaho shall be effective at 1 p.m. E.S.T. on July 22, 2005.

FOR FURTHER INFORMATION CONTACT: Jeff Hunt, Mail Stop AWT-122, U.S. EPA 
Region 10, Office of Air, Waste, and Toxics, 1200 Sixth Avenue, 
Seattle, Washington 98101, phone (206) 553-0256. E-mail: 
hunt.jeff@epa.gov.

SUPPLEMENTARY INFORMATION: 

A. Why Are Revisions to State Programs Necessary?

    States which 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 and consistent with the Federal program. 
States are required to have enforcement authority which is adequate to 
enforce compliance with the requirements of the hazardous waste 
program. Under RCRA Section 3009, States are not allowed to impose any 
requirements which are less stringent than the Federal program. 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 title 40 of the Code of Federal Regulations (CFR) 
parts 124, 260 through 266, 268, 270, 273 and 279.
    Idaho's hazardous waste management program received final 
authorization effective on April 9, 1990 (55 FR 11015, March 29, 1990). 
EPA also granted authorization for revisions to Idaho's program 
effective on June 5, 1992 (57 FR 11580, April 6, 1992), on August 10, 
1992 (57 FR 24757, June 11, 1992), on June 11, 1995 (60 FR 18549, April 
12, 1995), on January 19, 1999 (63 FR 56086, October 21, 1998), on July 
1, 2002 (67 FR 44069, July 1, 2002), and on March 10, 2004 (69 FR 
11322).
    Today's final rule addresses a program revision application that 
Idaho submitted to EPA in September 2004, in accordance with 40 CFR 
271.21, seeking authorization of changes to the State program. On May 
16, 2005, EPA published a proposed rule announcing its intent to grant 
Idaho final authorization for revisions to Idaho's hazardous waste 
program and provided a period of time for the receipt of public 
comments. The proposed rule can be found at 70 FR 25798.

B. What Were the Comments to EPA's Proposed Rule?

    EPA received two letters during the public comment period. One 
letter was dated June 3, 2005, from Mr. Chuck Broscious on behalf of 
the Environmental Defense Institute and a second letter was dated June 
14, 2005, from Mr. Chuck Broscious on behalf of the Environmental 
Defense Institute, Keep Yellowstone Nuclear Free, and David B. McCoy, 
collectively the commenters.
    The comment letters focused on issues originally raised in 
petitions submitted to EPA on August 8, 2000, and September 13, 2001, 
and on numerous follow up letters and correspondence related to those 
petitions. The petitions themselves centered on issues related to 
specific units located at the Idaho National Laboratory (INL) in Idaho 
Falls, Idaho. The comment letters also raised a concern about nuclear 
defense activities at the same INL facility. In response to this aspect 
of the commenters' letter EPA observes that defense activities related 
to nuclear production and propulsion programs will generally not meet 
the definition of solid waste under the RCRA regulations and may be 
regulated by other federal authorities. With respect to mixed waste, 
Idaho's hazardous waste program is authorized for mixed waste.
    In the September 13, 2001, petition which commenters refer to in 
their current comments, the commenters as petitioners sought EPA's 
withdrawal of Idaho's authorization to implement the hazardous waste 
program under RCRA

[[Page 42274]]

because of petitioners' concerns with hazardous waste issues at the INL 
facility. EPA in response to that withdrawal petition request conducted 
an informal investigation and determined that sufficient evidence did 
not exist to initiate formal withdrawal proceedings. The investigation 
findings were issued on March 20, 2002, with a follow up response on 
June 20, 2002. The supporting documentation was provided to the 
commenters and the documentation is currently available to the public 
under the Freedom of Information Act.
    On February 6, 2003, the EPA Office of Inspector General (OIG) 
requested that Region 10 conduct a second investigation to answer a 
series of follow up questions related to the September 13, 2001, 
petition. EPA Region 10 conducted a second investigation and issued its 
findings on April 10, 2003. The investigation results were provided to 
Mr. David McCoy, one of the current commenters, as part of an October 
13, 2004, Freedom of Information Act response. On February 5, 2004, 
after conducting independent field work, the OIG issued a final 
evaluation report which concluded, ``Region 10 generally relied on 
appropriate regulatory requirements and standards in reaching its 
conclusion that evidence did not exist to commence proceedings to 
withdraw the State of Idaho's authority to run its RCRA Hazardous Waste 
program.''
    While the evaluation report concluded that evidence did not exist 
to commence withdrawal proceedings, the OIG did identify areas of 
concern for further Regional and State follow up. As detailed in the 
Evaluation Report, the OIG and EPA Region 10 agreed to specific follow 
up actions. To document resolution of these action items, EPA Region 10 
submitted quarterly progress reports to the Region 10 OIG Audit Liaison 
on January 13, 2004, April 16, 2004, July 15, 2004, October 12, 2004, 
February 9, 2005, and April 8, 2005. These reports document the steps 
taken by EPA and the Idaho Department of Environmental Quality to meet 
the specific actions recommended by the OIG. The first three of these 
quarterly reports were sent to the commenters and the OIG as part of a 
July 26, 2004, letter from then Regional Administrator, L. John Iani. 
Hardcopies of all the quarterly reports were made directly available to 
the public as part of the authorization docket for the proposed 
authorization with repositories in Seattle, Washington and the 
University of Idaho in Moscow. These quarterly reports are also 
currently available to the public under the Freedom of Information Act.
    While the Region will continue its ongoing obligation to conduct 
state oversight, EPA considers the follow up to the September 13, 2001, 
withdrawal petition and the February 5, 2004, OIG Evaluation Report 
complete. The information documenting EPA's follow up to the February 
5, 2004, OIG Evaluation Report was contained in the authorization 
docket available to the public through the Region 10 Library in 
Seattle, Washington, as well as through the Freedom of Information Act 
process. In response to a request by Mr. Chuck Broscious, EPA made a 
hardcopy version of the docket available to the public at the 
University of Idaho Library in Moscow, Idaho. Furthermore, in response 
to a request from the Shoshone Bannock Tribe, and Mr. Chuck Broscious, 
EPA electronically scanned the State of Idaho's authorization 
application and made this document available on the Region 10 Web site 
at: https://yosemite.epa.gov/R10/ OWCM. NSF/ ed6c 817875 102 d2d 
8825650 f00714a59/ 2b 89088 c6ed 735 17882 570 140081 e7f9? Open 
Document.
    Based on the follow up actions that were taken in response to the 
OIG Evaluation Report, EPA disagrees with comments submitted on June 3 
and 14, 2005, alleging that EPA and the Idaho Department of 
Environmental Quality have not sufficiently responded to the issues 
raised by the February 5, 2004, OIG Evaluation report. Therefore, EPA 
has determined that these comments do not constitute basis for 
continued delay or denial of Idaho's application for program revision.

C. What Decisions Have We Made in This Rule?

    EPA has made a final determination that Idaho's revisions to the 
Idaho authorized hazardous waste program meet all of the statutory and 
regulatory requirements established by RCRA for authorization. 
Therefore, EPA is authorizing the revisions to the Idaho hazardous 
waste program and authorizing the State of Idaho to operate its 
hazardous waste program as described in the revision authorization 
application. Idaho's authorized program will be responsible for 
carrying out the aspects of the RCRA program described in its revised 
program application, subject to the limitations of RCRA, including the 
Hazardous and Solid Waste Amendments of 1984 (HSWA).
    New Federal requirements and prohibitions imposed by Federal 
regulations that EPA promulgates under the authority of HSWA are 
implemented by EPA and take effect in States with authorized programs 
before such programs are authorized for the requirements. Thus, EPA 
will implement those HSWA requirements and prohibitions in Idaho, 
including issuing permits or portions of permits, until the State is 
authorized to do so.

D. What Will Be the Effect of Today's Action?

    The effect of today's action is that a facility in Idaho subject to 
RCRA must comply with the authorized State program requirements and 
with any applicable federally-issued requirement, such as, for example, 
the federal HSWA provisions for which the State is not authorized, and 
RCRA requirements that are not supplanted by authorized State-issued 
requirements, in order to comply with RCRA. Idaho has enforcement 
responsibilities under its State hazardous waste program for violations 
of its currently authorized program and will have enforcement 
responsibilities for the revisions which are the subject of this final 
rule. EPA continues to have independent enforcement authority under 
RCRA sections 3007, 3008, 3013, and 7003, which include, among others, 
authority to:

--Conduct inspections; require monitoring, tests, analyses or reports;
--Enforce RCRA requirements, including State program requirements that 
are authorized by EPA and any applicable Federally-issued statutes and 
regulations; suspend, modify or revoke permits; and
--Take enforcement actions regardless of whether the State has taken 
its own actions.

    This final action approving these revisions will not impose 
additional requirements on the regulated community because the 
regulations for which Idaho's program is being authorized are already 
effective under State law.

E. What Rules Are We Authorizing With Today's Action?

    In September 2004, Idaho submitted a complete program revision 
application, seeking authorization for all delegable federal hazardous 
waste regulations codified as of July 1, 2003, as incorporated by 
reference in IDAPA 58.01.05.(002)-(016) and 58.01.05.997, including 
previously unauthorized portions of the Post Closure Rule promulgated 
on October 22, 1998 (63 FR 56710).

F. Who Handles Permits After This Authorization Takes Effect?

    Idaho will issue permits for all the provisions for which it is 
authorized and will administer the permits it

[[Page 42275]]

issues. All permits or portions of permits issued by EPA prior to final 
authorization of this revision will continue to be administered by EPA 
until the effective date of the issuance, re-issuance after 
modification, or denial of a State RCRA permit or until the permit 
otherwise expires or is revoked, and until EPA takes action on its 
permit or portion of permit. HSWA provisions for which the State is not 
authorized will continue in effect under the EPA-issued permit or 
portion of permit. EPA will continue to issue permits or portions of 
permits for HSWA requirements for which Idaho is not yet authorized.

G. What Is Codification and Is EPA Codifying Idaho's Hazardous Waste 
Program as Authorized 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's authorized rules in 40 CFR part 272. 
EPA is reserving the amendment of 40 CFR part 272, subpart F for 
codification of Idaho's program at a later date.

H. How Does Today's Action Affect Indian Country (18 U.S.C. 1151) in 
Idaho?

    EPA's decision to authorize the Idaho hazardous waste program does 
not include any land that is, or becomes after the date of this 
authorization, ``Indian Country,'' as defined in 18 U.S.C. 1151. This 
includes: (1) All lands within the exterior boundaries of Indian 
reservations within or abutting the State of Idaho; (2) Any land held 
in trust by the U.S. for an Indian tribe; and (3) Any other land, 
whether on or off an Indian reservation that qualifies as Indian 
country. Therefore, this action has no effect on Indian country. EPA 
retains jurisdiction over ``Indian Country'' as defined in 18 U.S.C. 
1151.

I. Statutory and Executive Order Reviews

1. Executive Order 12866

    Under Executive Order 12866 (58 FR 51735, October 4,1993), the 
Agency must determine whether the regulatory action is ``significant'', 
and therefore subject to OMB review and the requirements of the 
Executive Order. The Order defines ``significant regulatory action'' as 
one that is likely to result in a rule that may: (1) Have an annual 
effect on the economy of $100 million or more, or adversely affect in a 
material way, the economy, a sector of the economy, productivity, 
competition, jobs, the environment, public health or safety, or State, 
local or tribal governments or communities; (2) create a serious 
inconsistency or otherwise interfere with an action taken or planned by 
another agency; (3) materially alter the budgetary impact of 
entitlements, grants, user fees, or loan programs, or the rights and 
obligations of recipients thereof; or (4) raise novel legal or policy 
issues arising out of legal mandates, the President's priorities, or 
the principles set forth in the Executive Order. It has been determined 
that this final rule is not a ``significant regulatory action'' under 
the terms of Executive Order 12866 and is therefore not subject to OMB 
review.

2. Paperwork Reduction Act

    The Paperwork Reduction Act, 44 U.S.C. 3501, et seq., is intended 
to minimize the reporting and recordkeeping burden on the regulated 
community, as well as to minimize the cost of Federal information 
collection and dissemination. In general, the Act requires that 
information requests and recordkeeping requirements affecting ten or 
more non-Federal respondents be approved by OPM. Since this final rule 
does not establish or modify any information or recordkeeping 
requirements for the regulated community, it is not subject to the 
provisions of the Paperwork Reduction Act.

3. Regulatory Flexibility

    The Regulatory Flexibility Act (RFA), as amended by the Small 
Business Regulatory Enforcement Fairness Act (SBREFA), 5 U.S.C. 601 et 
seq., generally requires federal agencies to prepare a regulatory 
flexibility analysis of any rule subject to notice and comment 
rulemaking requirements under the Administrative Procedure Act or any 
other statute unless the agency certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
Small entities include small businesses, small organizations, and small 
governmental jurisdictions. For purposes of assessing the impacts of 
today's rule on small entities, small entity is defined as: (1) A small 
business, as codified in the Small Business Size Regulations at 13 CFR 
part 121; (2) a small governmental jurisdiction that is a government of 
a city, county, town, school district or special district with a 
population of less than 50,000; and (3) a small organization that is 
any not-for-profit enterprise which is independently owned and operated 
and is not dominant in its field. EPA has determined that this action 
will not have a significant impact on small entities because the final 
rule will only have the effect of authorizing pre-existing requirements 
under State law. After considering the economic impacts of today's 
rule, I certify that this action will not have a significant economic 
impact on a substantial number of small entities.

4. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act (UMRA) of 1995 (Pub. 
L. 104-4) establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local and tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
year. Before promulgating an EPA rule for which a written statement is 
needed, section 205 of the UMRA generally requires EPA to identify and 
consider a reasonable number of regulatory alternatives and adopt the 
least costly, most cost-effective or least burdensome alternative that 
achieves the objectives of the rule. The provisions of section 205 do 
not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why the 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including tribal governments, it must have developed under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments, enabling 
officials of affected small governments to have meaningful and timely 
input in the development of EPA regulatory proposals with significant 
Federal intergovernmental mandates, and informing, educating, and 
advising small governments on compliance with the regulatory 
requirements.
    This rule contains no Federal mandates (under the regulatory 
provisions of Title II of the UMRA) for State, local or tribal 
governments or the private sector. It imposes no new enforceable duty 
on any State, local or tribal governments or the private sector. 
Similarly, EPA has also determined that this rule contains no 
regulatory

[[Page 42276]]

requirements that might significantly or uniquely affect small 
government entities. Thus, the requirements of section 203 of the UMRA 
do not apply to this rule.

5. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that 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 various levels of government.''
    This rule does not have federalism implications. It 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 various levels of government, as specified 
in Executive Order 13132. This rule addresses the authorization of pre-
existing State rules. Thus, Executive Order 13132 does not apply to 
this rule.

6. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' This rule does not have 
tribal implications, as specified in Executive Order 13175. Thus, 
Executive Order 13175 does not apply to this rule.

7. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    Executive Order 13045 applies to any rule that: (1) Is determined 
to be ``economically significant'' as defined under Executive Order 
12866, and (2) concerns an environmental health or safety risk that EPA 
has reason to believe may have a disproportionate effect on children. 
If the regulatory action meets both criteria, the Agency must evaluate 
the environmental health or safety effects of the planned rule on 
children, and explain why the planned regulation is preferable to other 
potentially effective and reasonably feasible alternatives considered 
by the Agency.
    This rule is not subject to Executive Order 13045 because it is not 
economically significant as defined in Executive Order 12866 and 
because the Agency does not have reason to believe the environmental 
health or safety risks addressed by this action present a 
disproportionate risk to children.

8. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    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'' as defined under Executive Order 
12866.

9. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272) 
directs EPA to use voluntary consensus standards in its regulatory 
activities unless to do so would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., materials specifications, test methods, sampling 
procedures, and business practices) that are developed or adopted by 
voluntary consensus bodies. The NTTAA directs EPA to provide Congress, 
through the OMB, explanations when the Agency decides not to use 
available and applicable voluntary consensus standards. This rule does 
not involve ``technical standards'' as defined by the NTTAA. Therefore, 
EPA is not considering the use of any voluntary consensus standards.

10. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low Income Populations

    To the greatest extent practicable and permitted by law, and 
consistent with the principles set forth in the report on the National 
Performance Review, each Federal agency must make achieving 
environmental justice part of its mission by identifying and 
addressing, as appropriate, disproportionately high and adverse human 
health and environmental effects of its programs, policies, and 
activities on minority populations and low-income populations in the 
United States and its territories and possessions, the District of 
Columbia, the Commonwealth of Puerto Rico, and the Commonwealth of the 
Mariana Islands. Because this rule addresses authorizing pre-existing 
State rules and there are no anticipated significant adverse human 
health or environmental effects, the rule is not subject to Executive 
Order 12898.

11. Congressional Review Act

    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 rule 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 of the rule 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 rule will be effective on the date the rule is published 
in the Federal Register.

List of Subjects in 40 CFR Part 271

    Environmental protection, Administrative practice and procedure, 
Confidential business information, Hazardous materials transportation, 
Hazardous waste, Indians-lands, Intergovernmental relations, Penalties, 
Reporting and recordkeeping requirements.

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

    Dated: July 14, 2005.
Michelle Pirzadeh,
Acting Regional Administrator, Region 10.
[FR Doc. 05-14545 Filed 7-21-05; 8:45 am]
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