Louisiana: Final Authorization of State Hazardous Waste Management Program Revision, 45061-45068 [2018-19195]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 83, Number 172 (Wednesday, September 5, 2018)]
[Proposed Rules]
[Pages 45061-45068]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-19195]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 271

[EPA-R06-RCRA-2018-0395; FRL-9982-64--Region 6]


Louisiana: Final Authorization of State Hazardous Waste 
Management Program Revision

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The State of Louisiana Department of Environmental Quality 
(LDEQ) has applied to the Environmental Protection Agency (EPA) for 
final authorization of the changes to its hazardous waste program under 
the Resource Conservation and Recovery Act (RCRA). The EPA has reviewed 
Louisiana'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 is seeking public 
comment prior to taking final action.

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

ADDRESSES: Submit your comments by one of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the on-line instructions for submitting comments.
     Email: [email protected].
     Fax: (214) 665-6762 (prior to faxing, please notify Alima 
Patterson at (214) 665-8533).
     Mail: Alima Patterson, Regional Authorization/Codification 
Coordinator, RCRA Permit Section (6MM-RP), Multimedia Division, EPA 
Region 6, 1445 Ross Avenue, Suite 1200, Dallas, Texas 75202-2733.
     Hand Delivery or Courier: Deliver your comments to Alima 
Patterson, Regional Authorization/Codification Coordinator, RCRA Permit 
Section (6MM-RP), Multimedia Division, EPA Region 6, 1445 Ross Avenue, 
Suite 1200, Dallas, Texas 75202-2733.
    Instructions: EPA must receive your comments by October 5, 2018. 
Direct your comments to Docket ID Number EPA-R06-RCRA-2018-0395. The 
EPA's policy is that all comments received will be included in the 
public docket without change and may be made available online at https://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 https://www.regulations.gov, or 
email. The Federal 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 
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 the body of your comment and with CD 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. (For 
additional information about the EPA's public docket, visit the EPA 
Docket Center homepage at https://www.regulations.gov).
    Docket: All documents in the docket are listed in the https://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. 
Publicly available docket materials are available either electronically 
in https://www.regulations.gov, or in hard copy.
    You can view and copy Louisiana's application and associated 
publicly available materials from 8:30 a.m. to 4:00 p.m. Monday through 
Friday at the following locations: Louisiana Department of 
Environmental Quality, 602 N Fifth Street, Baton Rouge, Louisiana 
70884-2178, phone number (225) 219-3559 and EPA, Region 6, 1445 Ross 
Avenue, Suite 1200, Dallas, Texas 75202-2733, phone number (214) 665-
8533. The public is advised to call in advance to verify business 
hours. Interested persons wanting to examine these documents should 
make an appointment with the office at least two weeks in advance.

FOR FURTHER INFORMATION CONTACT: Alima Patterson, Region 6, Regional 
Authorization/Codification Coordinator, Permit Section (6MM-RP), 
Multimedia Division, (214) 665-8533, EPA Region 6, 1445 Ross Avenue, 
Suite 1200, Dallas, Texas 75202-2733, and Email address 
[email protected].

SUPPLEMENTARY INFORMATION:

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

[[Page 45062]]

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.

B. What decisions have the EPA made in this rule?

    On March 13, 2018, the State of Louisiana submitted a final 
complete program revision application seeking authorization of changes 
to its hazardous waste program that correspond to certain Federal rules 
promulgated on January 13, 2015, April 8, 2015 and April 17, 2015, RCRA 
Cluster XXIV (Checklists 233A, 233B, 233C, 233D2, 233E, 234 and 235), 
as well as state-initiated changes. The EPA has reviewed Louisiana's 
application to revise its authorized program and has made a tentative 
decision that it meets all of the statutory and regulatory requirements 
established by RCRA. Therefore, we propose to grant LDEQ final 
authorization to operate its hazardous waste program with the changes 
described in the authorization application, except for federal 
provisions that were vacated from the January 13, 2015 final rule 
(Revisions to the Definition of Solid Waste (DSW)) by the United States 
Court of Appeals for the District of Columbia Circuit (Am. Petroleum 
Inst. v. EPA, 862 F.3d 50 (D.C. Cir. 2017) and Am. Petroleum Inst. v. 
EPA, No. 09-1038 (D.C. Cir. Mar. 6, 2018).
    LDEQ will continue to have responsibility for permitting treatment, 
storage, and disposal facilities within its borders, 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 Louisiana, including issuing 
permits, until the State is granted authorization to do so.

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

    If Louisiana is authorized for these changes, a facility in 
Louisiana subject to RCRA will now 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, for example, 
HSWA regulations issued by the EPA for which the State has not received 
authorization. LDEQ continues to have enforcement responsibilities 
under its State hazardous waste program for violations of such program, 
but the 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 and suspend or revoke permits, 
and
     take enforcement actions after notice to and consultation 
with the State.
    The action to approve these provisions would not impose additional 
requirements on the regulated community because the regulations for 
which LDEQ 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. If you want to comment on this proposed 
authorization, you must do so at this time.

E. What has Louisiana previously been authorized?

    The State of Louisiana initially received final authorization on 
February 7, 1985 (50 FR 3348), to implement its base Hazardous Waste 
Management Program. We granted authorization for changes to their 
program on November 28, 1989 (54 FR 48889), effective January 29, 1990; 
August 26, 1991 (56 FR 41958), as corrected October 15, 1991 (56 FR 
51762), effective October 25, 1991; November 7, 1994 (59 FR 55368), 
effective January 23, 1995 (Note: On January 23, 1995 (60 FR 4380), the 
EPA responded to public adverse comments and affirmed the effective 
date for the November 7, 1994 final rule). Then on April 11, 1995 (60 
FR 18360), the EPA also made administrative corrections for the January 
23, 1995 Federal Register document; December 23, 1994 (59 FR 66200), 
effective March 8, 1995; October 17, 1995 (60 FR 53704), effective 
January 2, 1996; March 28, 1996 (61 FR 13777), effective June 11, 1996; 
December 29, 1997 (62 FR 67572), effective March 16, 1998; October 23, 
1998 (63 FR 56830), effective December 22, 1998; August 25, 1999 (64 FR 
46302), effective October 25, 1999; September 2, 1999 (64 FR 48099), 
effective November 1, 1999; February 28, 2000 (65 FR 10411), effective 
April 28, 2000; January 2, 2001 (66 FR 23), effective March 5, 2001; 
December 9, 2003 (68 FR 68526), effective February 9, 2004; June 10, 
2005 (70 FR 33852), effective August 9, 2005; November 13, 2006 (71 FR 
66116), effective January 12, 2007; August 16, 2007 (72 FR 45905), 
effective October 15, 2007; May 20, 2009 (74 FR 23645), effective July 
20, 2009; June 24, 2011(76 FR 122), effective August 23, 2011; June 28, 
2012 (77 FR 38530), effective August 27, 2012, September 14, 2015 (80 
FR 55032), effective November 14, 2015 and July 13, 2017 (82 FR 32253) 
effective September 11, 2017. On March 13, 2018, LDEQ submitted a final 
program revision application seeking authorization of its program 
revision in accordance with 40 CFR 271.21.
    Since 1979, through the Environmental Affairs Act, Act 449 enabled 
the Office of Environmental Affairs within the Louisiana Department of 
Natural Resources, as well as, the Environmental Control Commission to 
conduct an effective program designed to regulate those who generate, 
transport, treat, store, dispose or recycle hazardous waste. During the 
1983 Regular Session of the Louisiana Legislature, Act 97 was adopted, 
which amended and reenacted La. R. S. 30:1051 et seq. as the 
Environmental Quality Act, renaming the Environmental Affairs Act (Act 
1938 of 1979). This Act created Louisiana Department of Environmental 
Quality (LDEQ), including provisions for new offices within this new 
Department of Environmental Quality. Act 97 also transferred the duties 
and responsibilities previously delegated to the Department of Natural 
Resources, Office of Environmental Affairs to the new Department. The 
LDEQ has lead agency jurisdictional authority for administering the 
RCRA Subtitle C program in Louisiana. Also, the LDEQ is designated to 
facilitate communication between the EPA and the State. During the 1999 
Regular Session of Louisiana Legislature, Act 303 revised the La. R. S. 
30:2011 et seq., allowing LDEQ to reengineer the Department to perform 
more efficiently and to meet its strategic goals.
    It is the intention of the State, through this application, to 
demonstrate its equivalence and consistency with the federal statutory 
tests, which are outlined in the United States EPA regulatory 
requirements under 40 CFR 271 for final authorization. The submittal of 
this application is in

[[Page 45063]]

keeping with the spirit and intent of RCRA, which provides equivalent 
States the opportunity to apply for final delegation to operate all 
aspects of their hazardous waste management programs in lieu of the 
federal government. The Louisiana Environmental Quality Act authorizes 
the State's program, Subtitle II of Title 30 of the Louisiana Revised 
Statutes.

F. What changes is EPA proposing to authorize with today's action?

    On March 13, 2018, the State of Louisiana submitted a final 
complete program revision application seeking authorization of their 
changes in accordance with 40 CFR 271.21. Louisiana's program revision 
application includes revisions to the federal hazardous waste program, 
as well as state-initiated changes to the state's previously authorized 
program.
    The EPA proposes to authorize, subject to receipt of written 
comments that oppose this action that the State of Louisiana'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.

1. Program Revision Changes for Federal Rules

    The LDEQ program revisions consist of regulations which 
specifically govern federal hazardous waste revisions promulgated on 
January 13, 2015, April 8, 2015 and April 17, 2015 (RCRA Cluster XXIV; 
Checklists 233A, 233B, 233C, 233D2, 233E, 234 and 235). LDEQ's adoption 
of the January 13, 2015 final rule (80 FR 1694; Revisions to the 
Definition of Solid Waste (DSW)), includes provisions that have been 
vacated by the United States Court of Appeals for the District of 
Columbia Circuit (Am. Petroleum Inst. v. EPA, 862 F.3d 50 (D.C. Cir. 
2017) and Am. Petroleum Inst. v. EPA, No. 09-1038 (D.C. Cir. Mar. 6, 
2018). The impact of the vacaturs on the Louisiana hazardous waste 
program is discussed in Section G of this document. We propose to grant 
Louisiana final authorization for the requirements which are listed in 
Table 1.

                               Table 1--Program Revision Changes for Federal Rules
----------------------------------------------------------------------------------------------------------------
                                           Federal Register date and
   Description of Federal requirement     page (and/or RCRA statutory          Analogous state authority
  (include checklist No., if relevant)             authority)
----------------------------------------------------------------------------------------------------------------
1. Revisions to the Definition of Solid   80 FR 1694-1814 January 13,  Environmental Regulatory Code, Louisiana
 Waste. (Checklist 233A).                  2015.                        Department of Environmental Quality, ERC
                                                                        Title 33, Part V. Hazardous Waste and
                                                                        Hazardous Materials Subpart 1. LAC
                                                                        Sections 33:V.105.O.2.c,
                                                                        33:V.105.O.2.c.i-v, 33:V.105.K,
                                                                        33:V.105.K.2.c-e, 33:V.105.Q,
                                                                        33:V.105.Q.1, 33:V.105.Q.1.a-i and
                                                                        33:V.105.Q.2, as amended June 20, 2017.
2. Revisions to the Definition of Solid   80 FR 1694-1814 January 13,  Environmental Regulatory Code, Louisiana
 Waste. (Checklist 233B).                  2015.                        Department of Environmental Quality, ERC
                                                                        Title 33, Part V. Hazardous Waste and
                                                                        Hazardous Materials Subpart 1. LAC
                                                                        Sections 33:V.109 contained, 33:V109.
                                                                        Hazardous secondary material, 33:V.R.1-
                                                                        2, 33:V.105.R.2.a-e, 33:V.105.R.3,
                                                                        33:V.105.R.3.a-b, 33:V.105.R.4,
                                                                        33:V.109.solid waste 2.c, 33:V.109.solid
                                                                        waste.2.d and .33:V.109.sham recycling,
                                                                        as amended June 20, 2017.
3. Revisions to the Definition of Solid   80 FR 1694-1814 January 13,  Environmental Regulatory Code, Louisiana
 Waste. (Checklist 233C).                  2015.                        Department of Environmental Quality, ERC
                                                                        Title 33, Part V. Hazardous Waste and
                                                                        Hazardous Materials Subpart 1. LAC
                                                                        Section 33:V.109.V.accumulated
                                                                        speculatively, as amended June 20, 2017.
4. Revisions to the Definition of Solid   80 FR 1694-1814 January 13,  Environmental Regulatory Code, Louisiana
 Waste. (Checklist 233D2).                 2015.                        Department of Environmental Quality, ERC
                                                                        Title 33, Part V. Hazardous Waste and
                                                                        Hazardous Materials Subpart 1. LAC
                                                                        Sections 33:V.109.facility, 33:V.109
                                                                        Hazardous secondary material generator,
                                                                        33:V.109 Intermediate facility, 33:V.109
                                                                        Land-based unit, 33:V.109 Transfer
                                                                        facility, 33:V.105.O.1, 33: V.105.O.1.b,
                                                                        33: V.105.O.1.d, 33: V.105.O.1.e,
                                                                        33:V.105.O.1.b, 33:V.105.O.1.d, LAC
                                                                        33:V.105.O.1.e, 33:V.105.K.2, 33:
                                                                        V.105.K.2.a, 33:V.105.K.3,
                                                                        33:V.105.K.3.a , 33:V.105.K.3.b,
                                                                        33:105.K.3.b.i-iv, 33:V.105.K.3.c,
                                                                        33:V.105.K.3.c.i-v, 33:V.109.solid
                                                                        waste, 33:V.109.solid waste Table 1,
                                                                        33:V.105.D.1.x, 33:V.105.D.1.x.i-ix,
                                                                        33:V.105.D.1.y.vi.(f)--incorporate by
                                                                        reference 40 CFR part 261, subpart H
                                                                        (Financial Requirements for Management
                                                                        of Excluded Hazardous Secondary
                                                                        Materials), 33:V.105.D.1.y.vi.(e)--
                                                                        incorporate by reference 40 CFR part
                                                                        261, subpart M (Emergency Preparedness
                                                                        and Response for Management of Excluded
                                                                        Hazardous Secondary Materials) and 33:
                                                                        V.322.A, as amended June 20, 2017.
5. Revisions to the Definition of Solid   80 FR 1694-1814 80 FR        Environmental Regulatory Code, Louisiana
 Waste. (Checklist 233E).                  January 13, 2015.            Department of Environmental Quality, ERC
                                                                        Title 33, Part V. Hazardous Waste and
                                                                        Hazardous Materials Subpart 1. LAC
                                                                        Sections 33:V.109. remanufacturing,
                                                                        33:V.109.solid waste, and 33:V.105.D.1.z
                                                                        incorporate by reference 40 CFR
                                                                        261.4(a)(27) and part 261, subparts I,
                                                                        J, AA, BB and CC, as amended June 20,
                                                                        2017.
6. Response to Vacaturs of the            80 FR 18777-18780 April 8,   Environmental Regulatory Code, Louisiana
 Comparable Fuels Rule and Gasification    2015.                        Department of Environmental Quality, ERC
 Rule. (Checklist 234).                                                 Title 33, Part V. Hazardous Waste and
                                                                        Hazardous Materials Subpart 1. Sections
                                                                        LAC 33:V.109.Gasification (Repealed),
                                                                        33:V.105.D.1.l.i, 33: V.105.D.1.q
                                                                        (Reserved), as amended June 20, 2017.
7. Disposal of Coal Combustion Residuals  80 FR 21302-21501 April 17,  Environmental Regulatory Code, Louisiana
 from Electric Utilities. (Checklist       2015.                        Department of Environmental Quality, ERC
 235).                                                                  Title 33, Part V. Hazardous Waste and
                                                                        Hazardous Materials Subpart 1. LAC
                                                                        Sections 33:V.105.D.2.d.(i)-(ii), and
                                                                        33:V.105.D.2.d.(ii)(a)-(h), as amended
                                                                        June 20, 2017.
----------------------------------------------------------------------------------------------------------------


[[Page 45064]]

2. State-Initiated Changes

    In addition to adopting the federal program revisions discussed in 
Section F.1, LDEQ has made amendments to its regulations that are not 
directly related to any of the federal rules addressed in Item F.1. 
These changes are categorized as follows: (a) Changes to clarify 
previously authorized provisions; (b) re-designations and changes made 
to conform to the renumbering of state provisions, including 
corrections to internal references and other typographical errors; (c) 
new provisions added for equivalency to federal provisions; and (d) 
removal of provisions in order to clarify the state's regulations, or 
correct errors or duplications.
    LDEQ submitted these state-initiated amendments under the 
requirements of 40 CFR 271.21(a) and included provisions from the 
Louisiana Administrative Code, Title 33, Part V, Hazardous Waste and 
Hazardous Material, Louisiana Hazardous Waste Regulations (LHWR), as 
amended effective through January 20, 2018. 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. The 
EPA has reviewed the state-initiated changes and have determined they 
satisfy the requirements of 40 CFR 271.21(a).
    We are proposing to grant LDEQ final authorization to carry out the 
state's hazardous waste program, as amended by the state-initiated 
changes, in lieu of the federal program. In the Tables below, LDEQ 
provisions annotated with an asterisk are different from the Federal 
program; details are discussed in Section G. Unless otherwise 
indicated, the State provisions listed in the Tables in this section 
are analogous to the indicated RCRA regulations found at 40 CFR as of 
July 1, 2015. (Note: Some of the state provisions have no direct 
federal analog but are related to particular paragraphs, sections, or 
parts of the federal hazardous waste regulations.)
(a) Changes To Clarify Previously Authorized Provisions
    The following state provisions contain state-initiated changes that 
clarify previously authorized provisions to ensure equivalency to the 
federal regulations or make the state's regulations more internally 
consistent.

 Table 2a--Changes To Clarify Previously Authorized Provisions To Ensure
                       Consistency and Equivalency
------------------------------------------------------------------------
           State requirement              Analogous Federal requirement
------------------------------------------------------------------------
309.L.8................................  270.30(L)(7).
705.B introductory paragraph *.........  124.15(b) introductory
                                          paragraph.
1103 introductory paragraph............  262.11 introductory paragraph.
1107.B.1.b.............................  262, Appendix, Items 6 and 7.
1515.A.4...............................  264.16(a) related.
1516.B.5...............................  264.71(a)(3).
1516.B.2.d.............................  264.71(b)(4).
3301.G.................................  264.90(f).
3511.C.2.c and .d......................  264.112(c)(2)(iii) and (iv).
4037.A introductory paragraph..........  279.46(a) introductory
                                          paragraph.
4053.A introductory paragraph..........  279.56(a) introductory
                                          paragraph.
4053.B introductory paragraph..........  279.56(b) introductory
                                          paragraph.
4071.A introductory paragraph..........  279.65(a) introductory
                                          paragraph.
4085.A introductory paragraph..........  279.74(a) introductory
                                          paragraph.
4105.A.1 a.............................  261.6(a)(3)(i).
4407.A.12..............................  265.145(a)(12).
4501.D introductory paragraph..........  265.310(d) introductory
                                          paragraph.
------------------------------------------------------------------------

(b) Redesignations, Revisions to Internal References and Correction of 
Typographical Errors
    The following state provisions contain state-initiated changes made 
to conform to the renumbering of state provisions, including 
corrections to internal references and the redesignation of existing 
provisions to correct provisions' numbering in keeping with the 
numbering scheme of Louisiana's regulations. Except for the changes at 
108.F.4, 108.F.6, 108.G4 and 108.G.6, the changes were made without 
affecting the stringency of the state's currently authorized program.

   Table 2b--Redesignations and Corrections to Internal References and
                              Other Errors
------------------------------------------------------------------------
           State requirement              Analogous Federal requirement
------------------------------------------------------------------------
108.F.4 * and F.6 *....................  261.5(f) related.
108.G.4 * and G.6 *....................  261.5(g) related.
517.T.4.c.i............................  270.14(c)(4)(i).
1103.D [was 1103.C]....................  262.11(d).
1903.C and .D [were 1903.B.5.c and .d].  264.191(c) and (d).
1109.E.1.a.i...........................  262.34(a)(1)(i).
1109.E.7.a.............................  262.34(d)(2).
1109.E.12..............................  262.34(i).
1529.E introductory paragraph..........  264.77 introductory paragraph.
1751.C.4.b.............................  264.1082(c)(4)(ii).
1901.E.................................  262.34(a)(1)(ii) related.
2203.A ``Inorganic metal bearing         268.2(j).
 waste''.
2207.C introductory paragraph..........  268.3(c).
2209.C.................................  268.30(c).
2211.C.................................  268.31(a)(1), 268.31(c).
2216.D.................................  268.34.

[[Page 45065]]

 
2221.E.3...............................  268.38.
2221.F.5...............................  268.39(e)-(g).
2299, Table 2, Footnote 11.............  268 related, No direct federal
                                          analog.
2299, Table 11.........................  268, Appendix VII, Table 1.
3001.B.2.e.............................  266.100(b)(2)(v).
3203 introductory paragraph............  264.601 introductory paragraph.
4301.C [was 4301.B]....................  265.1(b).
4301.D-D.13.d [was 4301.C-C.13.d]......  265.1(c)-265.1(c)(14)(iv).
4301.D.13.e and (f) [was 4301.C.13.f     265.1(c)(14) related; No direct
 and (f)].                                Federal analog.
4301.E-.G [were 4301.D-.F].............  270.70(a) and (c).
4301.H [was 4301.G]....................  265.1(d).
4301.I [was 4301.H]....................  270.70(b).
4301.J [was 4301.I]....................  265.1(f).
4399.A.9 [was 4399.A.8]................  265.141(h).
4513.B.2...............................  265.340(b)(3).
------------------------------------------------------------------------

(c) New State Provisions Added for Equivalency to Federal Provisions
    LDEQ has adopted the following provisions in order to be equivalent 
to federal regulations. These state provisions had either not been 
previously adopted by the state, incorrectly adopted, or had been 
inadvertently removed from the state's regulations.

            Table 2c--State Provisions Added for Equivalency
------------------------------------------------------------------------
           State requirement              Analogous Federal requirement
------------------------------------------------------------------------
1103.C.................................  262.11(b).
1109.E.1.a.iv.(b)......................  262.34(a)(1)(iv)(B).
1516.B.6...............................  264.71(e).
1907.G.2.d.............................  264.193(g)(2)(iv).
2245.L.................................  268.7(a)(10).
4301.B.................................  270.70(a).
4399.A.8...............................  265.141(f) ``current plugging
                                          and abandonment cost
                                          estimate''.
4501.D.3...............................  265.340(b)(2).
------------------------------------------------------------------------

(d) Removal of Provisions To Clarify State Regulations or Correct 
Errors
    LDEQ has removed the following provisions in order to clarify the 
state's regulations because they were not part of the authorized 
program, or correct errors or duplications, making the state 
regulations more internally consistent and more consistent with 
federal. The removed provisions can be found in Louisiana 
Administrative Code, Title 33, Part V, Hazardous Waste and Hazardous 
Materials, Louisiana Hazardous Waste Regulations (LHWR), as amended 
effective through April 2016.

            Table 2d--State Provisions That Have Been Removed
------------------------------------------------------------------------
           State requirement              Analogous Federal requirement
------------------------------------------------------------------------
537.B.2.f..............................  270.66 related; No federal
                                          analog [not part of authorized
                                          program].
537.B.2.l..............................  270.66 related; No federal
                                          analog [not part of authorized
                                          program].
1516.B.5.a and b.......................  264.71(e) [unnecessary or
                                          incomplete duplicate].
2201.G.3...............................  268.1 related [not part of
                                          authorized program].
2203.A ``Treatment''...................  268.2 related, no analog in
                                          Part 268 [not part of
                                          authorized program].
2221.A & .B............................  268.13 related [not part of
                                          authorized program].
2227.B.................................  268.42(b) [non-delegable; not
                                          part of authorized program].
2231.A and .B..........................  268.44(a) and (b) [non-
                                          delegable; not part of
                                          authorized program].
2231.C and .D..........................  268.44(d) and (e) [non-
                                          delegable; not part of
                                          authorized program].
2231.E and .F..........................  268.44(f)-(g) [non-delegable;
                                          not part of authorized
                                          program].
2239...................................  268.5 [non-delegable; not part
                                          of authorized program].
2241...................................  268.6 [non-delegable; not part
                                          of authorized program].
2299, Table 4..........................  268 related, No direct federal
                                          analog [not part of authorized
                                          program].
2299, Table 12.........................  268, Appendix XI [unnecessary
                                          or incomplete duplicate].
3511.C.5...............................  264.112(c)(2)(iv) [unnecessary
                                          or incomplete duplicate].
4301.C.................................  265.1(b) & (c) related;
                                          270.70(a) related [unnecessary
                                          or incomplete duplicate].
4301.C.14..............................  265.1(f) [unnecessary or
                                          incomplete duplicate].
4399.A.6.i ``current plugging and        265.141(f) ``current plugging
 abandonment cost estimate''.             and abandonment cost
                                          estimate'' [unnecessary or
                                          incomplete duplicate].
4399.A.7 ``current plugging and          265.141(f) ``current plugging
 abandonment costs''.                     and abandonment cost
                                          estimate'' [unnecessary or
                                          incomplete duplicate].

[[Page 45066]]

 
4999, Appendix F.......................  265.73 related, No direct
                                          federal analog [not part of
                                          authorized program].
------------------------------------------------------------------------

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

1. Evaluation and Analysis on When State Regulations Are More Stringent 
or Broader in Scope Than the Federal Regulations

    Under 40 CFR 271.1(i), EPA allows states to (1) adopt and enforce 
requirements which are more stringent or more extensive than those 
required by the federal RCRA program, and (2) operate a program with a 
greater scope of coverage than that required by the federal program. To 
determine whether particular state provisions are more stringent or 
broader in scope, EPA uses the December 23, 2014 guidance document: 
``Determining Whether State Hazardous Waste Requirements are More 
Stringent or Broader in Scope than the Federal RCRA Program.'' In the 
guidance document, EPA uses a two-part test to determine if state 
regulations are MS or BIS. The two-part test requires that the 
following questions be answered sequentially:
    a. Does imposition of the particular state requirement increase the 
size of the regulated community or universe of wastes beyond what is 
covered by the federal program through either directly enforceable 
requirements or certain conditions for exclusion?
    b. Does the particular requirement under review have a counterpart 
in the federal regulatory program?
    If the answer to the first part of the test is yes, then the state 
requirement is generally considered broader in scope. If the answer is 
no, then EPA uses the second part of the test to determine whether the 
state requirement is more stringent or broader in scope. If the state 
requirement has a counterpart in the federal program, the state 
requirement is classified as more stringent. However, if the state 
requirement does not have a counterpart, it is classified as broader in 
scope.
    State provisions that are broader in scope are not part of the 
federally authorized program and thus, are not federally enforceable.

2. Louisiana Requirements That Are Broader in Scope Than the Federal 
Program

    LDEQ has adopted the Revisions to the Definition of Solid Waste 
(DSW) Rule published on January 13, 2015 (80 FR 1694). However, the 
Court of Appeals for the District of Columbia Circuit, Am. Petroleum 
Inst. v. EPA, 862 F.3d 50 (D.C. Cir. 2017) and Am. Petroleum Inst. v. 
EPA, 883F.3d 918 (D.C. Cir. 2018) vacated certain aspects of the 2015 
federal DSW rule and replaced them with provisions from the 2008 DSW 
rule, see 73 FR 64668 (October 30, 2008). The Court (1) vacated the 
federal 2015 verified recycler exclusion for hazardous waste that is 
recycled off-site (except for certain provisions) (40 CFR 261.4(a)(24)) 
and the associated provisions at 40 CFR 260.30(f) and 260.31(d); (2) 
reinstated the transfer-based exclusion at 261.4(a)(24) and (25) from 
the 2008 rule to replace the now vacated 2015 verified recycler 
exclusion; (3) vacated Factor 4 of the 2015 definition of legitimate 
recycling in its entirety (40 CFR 260.43(a)(4)); and (4) reinstated the 
2008 version of Factor 4 at 40 CFR 260.43(c)(2) to replace the now-
vacated 2015 version of Factor 4.
    In order to determine whether the State of Louisiana regulations 
are more stringent or broader in scope than the federal RCRA program, 
the EPA used the two-part test described in Section G.1. With respect 
to the first test, Louisiana regulates the same size of the regulated 
community and the same universe of hazardous secondary materials as the 
federal RCRA program. With respect to the second test, EPA has 
determined that the following State of Louisiana provisions from the 
2015 federal DSW rule are broader in scope: Louisiana Administrative 
Code (LAC), Title 33, Part V, sections 105.O.1.f [260.30(f)], 105.O.2.d 
[260.31(d)], 105.D.1.y [261.4(a)(24)] with respect to the verified 
recycler exclusion and 105.R.5 [260.43(a)(4)] with respect to Factor 4 
definition of legitimate recycling.
    Due to the vacatur of certain 2015 federal DSW provisions and the 
reinstatement of 2008 federal DSW provisions, EPA's regulations do not 
include the provisions that were vacated by the Court.\a\ Louisiana has 
adopted these vacated provisions, including the vacated 2015 DSW Factor 
4 in the definition of legitimate recycling of hazardous secondary 
material and the verified recycler exclusion.\b\ As a result of the 
federal vacatur, the Louisiana provisions at LAC:33.V.105.O.1.f, 
105.O.2.d, 105.D.1.y and 105.R.5 have no direct analogs in the federal 
regulations. December 23, 2014 guidance supports this conclusion. On 
page 6, EPA gives this example ``. . . Further, if a state adopts a 
federal solid or hazardous waste exclusion, but adds additional 
conditions that must be met for the state exclusion to apply, those 
additional conditions would be considered outside the scope of the 
federal program and would not be part of the federally authorized 
program, although the entity would still be subject to federal 
enforcement regarding the part of the state regulations which track the 
federal conditions.'' Following the vacatur of portions of the federal 
rules, Louisiana's program effectively contains additional conditions 
that must be met for the exclusion to apply. This makes the State's 
additional provisions broader in scope and not part of the federally 
authorized program, see 40 CFR part 271.1(i)(2).
---------------------------------------------------------------------------

    \a\ EPA issued a final rule referred to as the Transfer Base 
Exclusion reflecting the Court's ruling, see 83 FR 24664 (May 30, 
2018).
    \b\ The Federal Register citation for the ``2015 DSW rule'' is 
80 FR 1694, January 13, 2015, and for the ``2008 DSW rule'' is 73 FR 
64668, October 30, 2008.
---------------------------------------------------------------------------

    The LDEQ provisions that are broader in scope than the federal 
regulations are not part of the program being proposed to be authorized 
by today's action. EPA cannot enforce requirements that are broader in 
scope, although compliance with such provisions is required by 
Louisiana law. For the purposes of RCRA section 3009, the Agency has 
determined that the broader in scope provisions are more protective/
stricter, thus being within the State's authority to maintain them as 
part of the State's RCRA program. We make this determination due to the 
fact that the broader in scope provisions in Louisiana's verified 
recycler exclusion require additional conditions to be met in order to 
qualify for the exclusion when compared to the reinstated transfer 
based exclusion found in 83 FR 24664 (May 30, 2018).

3. Louisiana Requirements That Are More Stringent Than the Federal 
Program

    Louisiana's regulations contain certain provisions that are more

[[Page 45067]]

stringent than is required by the RCRA program. At LAC 33:V.108.F.4 and 
108.F.6, LDEQ requires that in order to be excluded from full 
regulation, conditionally-exempt small quantity generators who generate 
acute hazardous waste in quantities less than or equal to the specified 
quantity limitations must comply with the listed notification, EPA ID 
number, and container labeling requirements. LDEQ also has the same 
requirements at LAC 33:V.108.G.4 and 108.G.6 for conditionally-exempt 
small quantity generators who do not exceed the quantity limitation of 
100 kg of hazardous waste. The federal regulations do not include such 
notification, EPA ID, and labeling requirements at 40 CFR 261.5(f) and 
(g). These provisions clearly meet the test for regulations that are 
more stringent than the federal requirements. This finding is 
consistent with United States v. Southern Union, 630 F.3d 17 (1st Cir. 
2010) and the December 23, 2014 guidance on page 5 where it states '' 
For example, a state that does not recognize the CESQG or small 
quantity generators (SQG) categories, or that imposes additional 
requirements on CESQGs or SQGs, is not increasing the size of the 
regulated community, since these generators are managing wastes that 
are regulated as hazardous at the federal level. CESQGs and SQGs are 
subject to regulation under the federal program in 40 CFR 261.5 and 40 
CFR part 262, respectively. While the requirements imposed on these 
entities are not as extensive as those for large quantity generators 
(LQGs), CESQGs and SQGs are regulated entities under the federal 
program.'' Also see page 7 of the 2014 guidance, where EPA further 
states that these additional requirements are considered more stringent 
because they cover the same universe of waste handlers as the EPA 
rules.

4. Revisions to State Procedural Provisions

    LDEQ has revised the introductory paragraph of LAC 33:V.705.B to 
allow a final permit decision, or a decision to deny a permit for the 
active life of a hazardous waste management facility, to become 
effective upon issuance rather than 30 days after the service of notice 
of the decision (as found in 40 CFR 124.15(b) introductory paragraph). 
Under 40 CFR 271.14, states are not required to adopt 40 CFR 124.15; 
therefore, changes to this state procedural provision do not impact 
LDEQ's authorized program.

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

    The State of Louisiana will 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 we issued prior to the effective date of this 
authorization. EPA will not issue new permits or new portions of 
permits for the provisions listed in Table 1 in this document after the 
effective date of this authorization.
    The EPA will continue to implement and issue permits for HSWA 
requirements for which LDEQ is not yet authorized.

I. How does today's action affect Indian Country (18 U.S.C. 1151) in 
Louisiana?

    LDEQ is not authorized to carry out its Hazardous Waste Program in 
Indian Country within the State. This authority remains with EPA. 
Therefore, this action has no effect in Indian Country.

J. What is codification and is the EPA codifying Louisiana'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 CFR. We do this by referencing the authorized State 
rules in 40 CFR part 272. We reserve the amendment of 40 CFR part 272 
subpart T for this authorization of Louisiana's program changes until a 
later date. In this authorization application, the EPA is not codifying 
the rules documented in this Federal Register notice.

K. Administrative Requirements

    The Office of Management and Budget (OMB) has exempted this action 
(RCRA State Authorization) from the requirements of Executive Order 
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 proposes to authorize State requirements pursuant to RCRA 3006, 
and imposes no additional requirements beyond those imposed by State 
law. Because this proposed rule is not subject to Executive Order 
12866, this proposed rule is not subject to Executive Order 13771 (82 
FR 9339, February 3, 2017), entitled Reducing Regulations and 
Controlling Regulatory Costs. Accordingly, 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 (Pub. L. 104-4). 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 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 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 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 rule, 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 proposed rule in accordance 
with the ``Attorney General's Supplemental Guidelines for the 
Evaluation of Risk and Avoidance of Unanticipated

[[Page 45068]]

Takings'' issued under the Executive Order. This proposed 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.).
    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 impose no additional 
requirements beyond those imposed by State law, and there are no 
anticipated significant adverse human health or environmental effects, 
the 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, 
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: August 28, 2018.
David Gray,
Acting Regional Administrator, Region 6.
[FR Doc. 2018-19195 Filed 9-4-18; 8:45 am]
BILLING CODE 6560-50-P