North Dakota: Incorporation by Reference of State Hazardous Waste Management Program, 67875-67879 [2019-26553]
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Authority: 42 U.S.C. 7401 et seq.
PART 52—APPROVAL AND
PROMULGATION OF
IMPLEMENTATION PLANS
adding a third entry for ‘‘Section 2.0’’,
after the second entry for ‘‘Section 2.0’’
to read as follows:
Subpart I—Delaware
2. In § 52.420, the table in paragraph
(c) is amended under ‘‘1101 Definitions
and Administrative Principles’’ by
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1. The authority citation for part 52
continues to read as follows:
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§ 52.420
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Identification of plan.
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EPA-APPROVED REGULATIONS AND STATUTES IN THE DELAWARE SIP
State regulation
(7 DNREC 1100)
State
effective
date
Title/subject
1101
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Section 2.0 .....................
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Definitions .....................
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BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 272
[EPA–R08–RCRA–2018–0554; FRL–10001–
40–Region 8]
North Dakota: Incorporation by
Reference of State Hazardous Waste
Management Program
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
This rule codifies in the
regulations the prior approval of North
Dakota’s hazardous waste management
program and incorporates by reference
authorized provisions of the State’s
statutes and regulations. The
Environmental Protection Agency (EPA)
uses the regulations entitled, ‘‘Approved
State Hazardous Waste Management
Programs,’’ to provide notice of the
authorization status of State programs,
and to incorporate by reference those
provisions of the State statutes and
regulations that are authorized and that
EPA will enforce under the Solid Waste
Disposal Act, commonly referred to as
the Resource Conservation and
Recovery Act (RCRA). The EPA
previously provided notices and
opportunity for comments on the
Agency’s decisions to authorize the
State of North Dakota program and the
EPA is not now reopening the decisions,
nor requesting comments, on the North
Dakota authorization as previously
published in the Federal Register
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SUMMARY:
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Additional explanation
Definitions and Administrative Principles
12/11/2016
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[FR Doc. 2019–26687 Filed 12–11–19; 8:45 am]
EPA approval date
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12/12/2019 [Insert FedUpdated definition of volatile organic compound.
eral Register citation].
Previous approval 5/31/2019.
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documents specified in Section I.C. of
this final rule document.
DATES: This action is effective January
13, 2020. The Director of the Federal
Register approves this incorporation by
reference as of January 13, 2020.
ADDRESSES: The documents that form
the basis for this codification and
associated publicly available materials
are available electronically through
https://www.regulations.gov (Docket ID
No. EPA–EPA–RCRA–2019–0554).
Although listed in the index, some of
the information is not publicly
available, e.g., Confidential Business
Information or other information whose
disclosure is restricted by statute. You
can also view and copy the documents
from 8:30 a.m. to 4 p.m. Monday
through Friday at the following location:
EPA Region 8, 1595 Wynkoop Street,
Denver, Colorado 80202–1129, phone
number (303) 312–6667. Interested
persons wanting to examine these
documents should make an
appointment with the office at least two
days in advance.
FOR FURTHER INFORMATION CONTACT:
Moye Lin, RCRA State Liaison,
Environmental Protection Specialist,
Land, Chemicals, and Redevelopment
Division, 8LCR–RC, EPA Region 8, 1595
Wynkoop Street, Denver, Colorado
80202–1129; phone number (303) 312–
6667; Email address: lin.moye@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Incorporation by Reference
A. What is codification?
Codification is the process of
including the statutes and regulations
that comprise the State’s authorized
hazardous waste management program
into the Code of Federal Regulations
(CFR). Section 3006(b) of RCRA, as
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amended, allows the EPA to authorize
State hazardous waste management
programs to operate in lieu of the
Federal hazardous waste management
regulatory program. The EPA codifies its
authorization of State programs in 40
CFR part 272 and incorporates by
reference State statutes and regulations
that the EPA will enforce under sections
3007 and 3008 of RCRA, and any other
applicable statutory provisions.
The incorporation by reference of
State authorized programs in the CFR
should substantially enhance the
public’s ability to discern the current
status of the authorized State program
and State requirements that can be
federally enforced. This effort provides
clear notice to the public of the scope
of the authorized program in each State.
B. Why wasn’t there a proposed rule
before today’s rule?
The EPA is publishing this rule to
codify North Dakota’s authorized
hazardous waste management program
without a prior proposal because we
believe this action is not controversial.
This rulemaking is in accordance with
section 3006(b) of RCRA, the EPA has
already evaluated the State’s statutory
and regulatory requirements and has
determined that the State’s program
meets the statutory and regulatory
requirements established by RCRA. The
EPA previously provided notices and
opportunity for comments on the
Agency’s decisions to authorize the
North Dakota program. The EPA is not
reopening the decisions, nor requesting
new comments on the North Dakota
authorizations, as previously published
in the Federal Register documents
specific in Section I.C of this final rule
document. The previous authorizations
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form the basis for the codification
addressed in this final rule.
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C. What is the history of the
authorization and codification of North
Dakota’s hazardous waste management
program?
North Dakota initially received final
authorization on October 5, 1984,
effective October 19, 1984 (49 FR
39328), to implement its Base
Hazardous Waste Management Program.
We granted authorizations for changes
to their programs on June 25, 1990 (55
FR 25836), effective August 24, 1990;
May 5, 1992 (57 FR 19087), effective
July 6, 1992; April 7, 1994 (59 FR
16566), effective June 6, 1994; January
19, 2000 (65 FR 2897), effective March
20, 2000; June 4, 2002 (67 FR 38418),
effective April 22, 2002; September 26,
2005 (70 FR 56132), effective November
25, 2005; February 14, 2008 (73 FR
8610), effective April 14, 2008; October
30, 2018 (73 FR 54521), effective
October 30, 2018; and December 19,
2018 (83 FR 65101), effective April 30,
2019.
The EPA incorporated by reference
North Dakota’s then authorized
hazardous waste program effective April
14, 2008 (73 FR 8610), and October 30,
2018 (83 FR 54521). In this document,
the EPA is revising Subpart JJ of 40 CFR
part 272 to include the authorization
revision action effective April 30, 2019
(83 FR 65101) described in this
preamble.
D. What codification decisions have we
made in this rule?
In this rule, the EPA is finalizing the
Federal regulatory text that includes
incorporation by reference of the
authorized hazardous waste
management program of the State of
North Dakota. In accordance with the
requirements of 1 CFR 51.5, the EPA is
finalizing the incorporation by reference
of the North Dakota statutory and
regulatory provisions described in the
amendments to 40 CFR 272.1751 set
forth below. The EPA has made, and
will continue to make, these documents
generally available electronically
through https://www.regulations.gov
and at the EPA Region 8 office (see the
ADDRESSES section of this preamble for
more information).
This rule codifies the EPA’s
authorization of North Dakota’s base
hazardous waste management program
and its revisions to that program. The
codification reflects the State program
that was in effect at the time the EPA
authorized the North Dakota hazardous
waste management program addressed
in the final rule published on December
19, 2018 (83 FR 65101). Due to
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unforeseen delays resulting from the
lapse in appropriations, the EPA’s final
authorization concerning North Dakota’s
hazardous waste management program
originally proposed December 19, 2018,
with an effective date of March 15, 2019
(83 FR 65104, December 19, 2018), was
delayed. Thus, the EPA granted
authorization for the North Dakota
program effective April 30, 2019 (84 FR
8260, March 7, 2019). The EPA is not
requesting comments on its decisions
published in the Federal Register
actions concerning revisions to the
authorized program in North Dakota. By
codifying the authorized North Dakota
program and by amending the CFR, the
public will more easily be able to
discern the status of the federally
-approved requirements of the North
Dakota program.
The EPA is incorporating by reference
the EPA’s approval of North Dakota’s
hazardous waste management program
by amending Subpart JJ to 40 CFR part
272. The rule amends section 272.1751
and incorporates by reference North
Dakota’s authorized hazardous waste
statutes and regulations. Section
272.1751 also references the
demonstration of adequate enforcement
authority, including procedural and
enforcement provisions, which provide
the legal basis for the State’s
implementation of the hazardous waste
management program. In addition,
section 272.1751 references the
Memorandum of Agreement, the
Attorney General’s Statement, and the
Program Description, which are
evaluated as part of the approval
process of the hazardous waste
management program in accordance
with Subtitle C of RCRA.
E. What is the effect of North Dakota’s
codification on enforcement?
The EPA retains the authority under
statutory provisions, including but not
limited to, RCRA sections 3007, 3008,
3013, and 7003, and other applicable
statutory and regulatory provisions to
undertake inspections and enforcement
actions and to issue orders in all
authorized states. With respect to
enforcement actions, the EPA will rely
on Federal sanctions, Federal inspection
authorities, and Federal procedures
rather than the State analogs to these
provisions. Therefore, the EPA is not
incorporating by reference North
Dakota’s inspection and enforcement
authorities, nor are those authorities
part of North Dakota’s approved State
program which operates in lieu of the
Federal program. 40 CFR 272.1751(c)(2)
lists the statutory and regulatory
provisions which provide the legal basis
for the State’s implementation of the
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hazardous waste management program,
as well as those procedural and
enforcement authorities that are part of
the State’s approved program, but these
are not incorporated by reference.
F. What State provisions are not part of
the codification?
The public is reminded that some
provisions of North Dakota’s hazardous
waste management program are not part
of the federally authorized State
program. These non-authorized
provisions include:
(1) Provisions that are not part of the
RCRA subtitle C program because they
are ‘‘broader in scope’’ than RCRA
subtitle C (see 40 CFR 271.1(i));
(2) Federal rules for which North
Dakota is not authorized, but which
have been incorporated into the State
regulations because of the way the State
adopted Federal regulations by
reference;
(3) State procedural and enforcement
authorities that are necessary to
establish the ability of the State’s
program to enforce compliance, but
which do not supplant the Federal
statutory enforcement and procedural
authorities.
State provisions that are ‘‘broader in
scope’’ than the Federal program are not
incorporated by reference in 40 CFR
part 272. For reference and clarity, the
EPA lists in 40 CFR 272.1751(c)(3) the
North Dakota statutory provisions that
are ‘‘broader in scope’’ than the Federal
program, and which are not part of the
authorized program being incorporated
by reference. While ‘‘broader in scope’’
provisions are not part of the authorized
program and cannot be enforced by the
EPA, the State may enforce such
provisions under State law.
North Dakota has adopted, but is not
authorized for, the Federal rules
published in the Federal Register on
April 12, 1996 (61 FR 16290); October
22, 1998 (63 FR 56710), and January 8,
2010 (75 FR 1235). Therefore, these
Federal amendments included in North
Dakota’s adoption by reference at
section 33.1–24–06–16.5 of the North
Dakota Administrative Code are not part
of the State’s authorized program and
are not part of the incorporation by
reference addressed by this Federal
Register document.
G. What will be the effect of codification
on Federal HSWA requirements?
With respect to any requirement(s)
pursuant to HSWA for which the State
has not yet been authorized, and which
the EPA has identified as taking effect
immediately in states with authorized
hazardous waste management programs,
the EPA will enforce those Federal
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HSWA standards until the State is
authorized for those provisions.
The codification does not affect
Federal HSWA requirements for which
the State is not authorized. The EPA has
authority to implement HSWA
requirements in all states, including
states with authorized hazardous waste
management programs, until the states
become authorized for such
requirements or prohibitions, unless the
EPA has identified the HSWA
requirement(s) as an optional or as a less
stringent requirement of the Federal
program. A HSWA requirement or
prohibition, unless identified by the
EPA as optional or as less stringent,
supersedes any less stringent or
inconsistent State provision which may
have been previously authorized by the
EPA (50 FR 28702, July 15, 1985).
Some existing State requirements may
be similar to the HSWA requirements
implemented by the EPA. However,
until the EPA authorizes those State
requirements, the EPA enforces the
HSWA requirements and not the State
analogs.
II. 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). This action authorizes State
requirements for the purpose of RCRA
section 3006 and imposes no additional
requirements beyond those imposed by
State law. Therefore, this action is not
subject to review by OMB. This action
is not an Executive Order 13771 (82 FR
9339, February 3, 2017) regulatory
action because actions such as today’s
final authorization of North Dakota’s
revised hazardous waste program under
RCRA are exempted under Executive
Order 12866. Accordingly, I certify that
this action will not have a significant
economic impact on a substantial
number of small entities under the
Regulatory Flexibility Act (5 U.S.C. 601
et seq.). Because this action 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
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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 action is not
subject to Executive Order 13211,
‘‘Actions Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use’’ (66 FR 28355, May
22, 2001), because it is not a significant
regulatory action under Executive Order
12866.
Under RCRA 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 action, 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 action in accordance with the
‘‘Attorney General’s Supplemental
Guidelines for the Evaluation of Risk
and Avoidance of Unanticipated
Takings’’ issued under the executive
order. This action does not impose an
information collection burden under the
provisions of the Paperwork Reduction
Act of 1995 (44 U.S.C. 3501 et seq.).
‘‘Burden’’ is defined at 5 CFR 1320.3(b).
Executive Order 12898 (59 FR 7629,
February 16, 1994) establishes Federal
executive policy on environmental
justice. Its main provision directs
Federal agencies, to the greatest extent
practicable and permitted by law, to
make environmental justice part of their
mission by identifying and addressing,
as appropriate, disproportionately high
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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. The 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).
List of Subjects in 40 CFR Part 272
Environmental protection, Hazardous
materials transportation, Hazardous
waste, Incorporation by reference,
Intergovernmental relations, Water
pollution control, Water supply.
Dated: December 4, 2019.
Gregory Sopkin,
Regional Administrator, EPA Region 8.
For the reasons set forth in the
preamble, under the authority at 42
U.S.C. 6912(a), 6926, and 6974(b), the
EPA is amending 40 CFR part 272 as
follows:
PART 272—APPROVED STATE
HAZARDOUS WASTE MANAGEMENT
PROGRAMS
1. The authority citation for part 272
continues to read as follows:
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Authority: Secs. 2002(a), 3006, and
7004(b) of the Solid Waste Disposal Act, as
amended by the Resource Conservation and
Recovery Act of 1976, as amended, 42 U.S.C.
6912(a), 6926, and 6974(b).
2. Revise § 272.1751 to read as
follows:
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§ 272.1751 North Dakota StateAdministered Program: Final Authorization.
(a) Pursuant to section 3006(b) of
RCRA, 42 U.S.C. 6926(b), North Dakota
has final authorization for the following
elements as submitted to the EPA in
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North Dakota’s base program
application for final authorization
which was approved by the EPA
effective on October 19, 1984.
Subsequent program revision
applications were approved effective on
August 24, 1990, July 6, 1992, June 6,
1994, March 20, 2000, November 25,
2005, April 14, 2008, and April 30,
2019.
(b) The State of North Dakota has
primary responsibility for enforcing its
hazardous waste management program.
However, the EPA retains the authority
to exercise its inspection and
enforcement authorities in accordance
with sections 3007, 3008, 3013, 7003 of
RCRA, 42 U.S.C. 6927, 6928, 6934,
6973, and any other applicable statutory
and regulatory provisions, regardless of
whether the State has taken its own
actions, as well as in accordance with
other statutory and regulatory
provisions.
(c) State Statutes and Regulations:
(1) The North Dakota statutes and
regulations cited in paragraph (c)(1)(i) of
this section are incorporated by
reference as part of the hazardous waste
management program under Subtitle C
of RCRA, 42 U.S.C. 6921 et seq. This
incorporation by reference is approved
by the Director of the Federal Register
in accordance with 5 U.S.C. 552(a) and
1 CFR part 51. You may obtain copies
of the North Dakota provisions that are
incorporated by reference in this
paragraph from North Dakota Legislative
Council, Second Floor, State Capitol,
600 E Boulevard Ave., Bismarck, North
Dakota 58505, phone (701) 328–2916.
You may inspect a copy at EPA Region
8, 1595 Wynkoop Street, Denver,
Colorado, phone number (303) 312–
6231, or at the National Archives and
Records Administration (NARA). For
information on the availability of this
material at NARA, email fedreg.legal@
nara.gov, or go to: www.archives.gov/
federal-register/cfr/ibr-locations.
(i) ‘‘EPA-Approved North Dakota
Statutory and Regulatory Requirements
Applicable to the Hazardous Waste
Management Program,’’ dated April
2019.
(ii) [Reserved]
(2) The EPA considered the following
statutes and regulations in evaluating
the State program but is not
incorporating them herein for
enforcement purposes:
(i) North Dakota Century Code
(NDCC), Volume 13A, 2012
Replacement. North Dakota
Constitution, Article XI: Sections 5 and
6.
(ii) NDCC, Volume 4A, 2017
Cumulative Supplement. Chapter 23.1–
01 ‘‘Department of Environmental
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Quality,’’ Sections 23.1–01–04 and
23.1–01–11; Chapter 23.1–04
‘‘Hazardous Waste Management,’’
Sections 23.1–04–01(1) through (4),
23.1–04–02 introductory paragraph, (2),
(3) through (8), (12) through (15), and
(17); 23.1–04–03; 23.1–04–05; 23.1–04–
08(3), (4), and (6); 23.1–04–12 through
23.1–04–16; and Chapter 23.1–08 ‘‘Solid
Waste Management and Land
Protection,’’ Section 23.1–08–03.
(iii) NDCC, Volume 5, 2012
Replacement. Chapter 28–32
‘‘Administrative Agencies Practice Act,’’
Sections 28–32–16 and 28–32–21.1.
(v) NDCC, Volume 6, 2012
Replacement. Chapter 32–40
‘‘Environmental Law Enforcement,’’
Sections 32–40–03 through 32–40–11.
(vi) NDCC, Volume 9A, 2012
Replacement, as amended by the 2017
Pocket Supplement. Chapter 44–04
‘‘Duties, records and meetings,’’
Sections 44–04–18 through 19.1.
(vii) North Dakota Administrative
Code (NDAC), Article 33.1–24,
Hazardous Waste Management, as
amended effective January 1, 2019.
Sections 33.1–24–01–15; 33.1–24–01–
16; 33.1–24–06–05, except .2.c; 33.1–
24–06–06.2; 33.1–24–06–09; 33.1–24–
06–15.1.6 through .3.b; 33.1–24–07–
03.4; 33.1–24–07–04 through 33.1–24–
07–14; 33.1–24–07–25 through 33.1–24–
07–27; and 33.1–24–07–40 through
33.1–24–07–54.
(3) The following statutory and
regulatory provisions are broader in
scope than the Federal program, are not
part of the authorized program, are not
incorporated by reference, and are not
federally enforceable:
(i) NDCC, 2017 Cumulative
Supplement, Volume 4A, Chapter 23.1–
01 ‘‘Department of Environmental
Quality,’’ Section 23.1–01–05.
(ii) North Dakota Century Code,
Volume 4A, 2017 Cumulative
Supplement. Chapter 23.1–04
‘‘Hazardous Waste Management,’’
Sections 23.1–04–02(1); and 23.1–04–09
through 23.1–04–11.
(iii) North Dakota Administrative
Code, Article 33.1–24, ‘‘Hazardous
Waste Management,’’ as amended
effective January 1, 2019, Sections 33.1–
24–03–03.4; 33.1–24–04–02.3; 33.1–24–
05–02 second sentence; 33.1–24–06–
14.3.a(4); and 33.1–24–06–21.
(iv) North Dakota’s hazardous waste
regulations set forth additional
transporter requirements including
permit requirements at 33.1–24–04–02.
The transporter permit requirements are
broader in scope than the Federal
program.
(4) Unauthorized State amendments
and provisions:
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(i) North Dakota has partially or fully
adopted, but is not authorized to
implement, the Federal rule published
in the Federal Register on October 22,
1998, Standards Applicable to Owners
and Operators of Closed and Closing
Hazardous Waste Management
Facilities: Post-Closure Permit
Requirement and Closure Process; Final
Rule (HSWA/non-HSWA). The EPA will
continue to implement the Federal
HSWA requirements for which North
Dakota is not authorized until the State
receives specific authorization for those
requirements.
(ii) The Federal rules listed in the
following table are not delegable to
states. North Dakota has adopted these
provisions and left the authority to the
EPA for implementation and
enforcement.
(iii) North Dakota has adopted the
following Federal provisions from the
Revisions to the Definition of Solid
Waste Rule, published January 13, 2015,
which have since been vacated by the
U.S. Court of Appeals for the District of
Columbia Circuit in 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) (vacating
both the Factor 4 Legitimacy Test and
the Verified Recycler Exclusion aspects
of the 2015 DSW Rule): One criterion in
the determination of whether recycling
is legitimate at 40 CFR 260.43(a)(4); the
verified recycler exclusion, which
allowed generators to send their
hazardous secondary materials to
certain reclaimers at 40 CFR
261.4(1)(24); and the associated
provisions at 40 CFR 260.30(d) and
260.31(d), which address the criteria in
the variance determination for
exceptions to the classification of
hazardous secondary materials as a
solid waste.
(5) Memorandum of Agreement: The
Memorandum of Agreement between
the EPA Region 8 and the State of North
Dakota, signed by the EPA Region 8
Regional Administrator on December 5,
2018 and the Director of the North
Dakota Department of Environmental
Quality on December 4, 2018, although
not incorporated by reference, is
referenced as part of the authorized
hazardous waste management program
under subtitle C of RCRA, 42 U.S.C.
6921 et seq.
(6) Statement of Legal Authority:
‘‘Attorney General’s Statement:
Hazardous Waste Management
Program’’ signed by the Attorney
General of North Dakota on June 8,
1984, and revisions, supplements, and
addenda to that Statement dated
February 22, 1989, February 11, 1984,
October 13, 1999, April 23, 2004,
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12DER1
Federal Register / Vol. 84, No. 239 / Thursday, December 12, 2019 / Rules and Regulations
August 19, 2004, December 5, 2016, and
September 29, 2018, although not
incorporated by reference, are
referenced as part of the authorized
hazardous waste management program
under subtitle C of RCRA, 42 U.S.C.
6921 et seq.
(7) Program Description: The Program
Description and any other materials
submitted as supplements thereto,
although not incorporated by reference,
are referenced as part of the authorized
hazardous waste management program
under subtitle C of RCRA, 42 U.S.C.
6921 et seq.
■ 3. Appendix A to part 272 is amended
by revising the listing for ‘‘North
Dakota’’ to read as follows:
Appendix A to Part 272—State
Requirements
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khammond on DSKJM1Z7X2PROD with RULES
North Dakota
(a) The statutory provisions include: North
Dakota Century Code (NDCC), Volume 4A,
2017 Cumulative Supplement. Chapter 23.1–
04 ‘‘Hazardous Waste Management,’’
Sections 23.1–04–08(1), (2), (5), and (7).
Copies of the North Dakota statutes that are
incorporated by reference are available from
Matthew Bender & Company Inc., 701 E
Water Street, Charlottesville, VA 22902–
5389, phone number: (800) 833–9844.
(b) The regulatory provisions include:
North Dakota Administrative Code (NDAC),
Article 33.1–24, as revised January 1, 2019,
except reserved provisions.
Chapter 33.1–24–01—General provisions:
Sections 33.1–24–01–01 through 33.1–24–
01–04, 33.1–24–01–05, except .2.k and .7.a;
33.1–24–01–06 through 33.1–24–01–09,
33.1–24–01–10, except .4.f; 33.1–24–01–11
through 33.1–24–01–14; 33.1–24–01–17 and
33.1–24–01–18; and 33.1–24–01–19, except
.1.d.
Chapter 33.1–24–02—Identification and
Listing of Hazardous Waste: Sections 33.1–
24–02–01 through 33.1–24–02–03; 33.1–24–
02–04, except .1.y; 33.1–24–02–05; 33.1–24–
02–06, except .1.e; 33.1–24–02–07 through
33.1–24–02–10; 33.1–24–02–11, except the
phrase ‘‘or a miniflash continuously closed
cup tester, using the test method specified in
American Society for Testing and Material
D6450–99 (incorporated by reference in
section 33.1–24–01–05)’’ in paragraph .1.a;
33.1–24–02–12 through 33.1–24–02–19;
33.1–24–02–25 through 33.1–24–02–27;
33.1–24–02–33 through 33.1–24–02–42;
33.1–24–02–50 through 33.1–24–02–70;
33.1–24–02–120 through 33.1–24–02–129;
33.1–24–02–170 through 33.1–24–02–175;
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16:05 Dec 11, 2019
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33.1–24–02–180 through 33.1–24–02–194;
33.1–24–02–200 through 33.1–24–02–209;
and Appendices I, IV, and V.
Chapter 33.1–24–03—Standards for
Generators: Sections 33.1–24–03–01, except
.4; 33.1–24–03–02; 33.1–24–03–03.1 and .2;
33.1–24–03–03.3 except the phrase ‘‘and a
transporter permit’’; 33.1–24–03–04 through
33.1–24–03–24; 33.1–24–03–30; 33.1–24–03–
40; 33.1–24–03–60 through 33.1–24–03–77;
and Appendix I.
Chapter 33.1–24–04—Standards for
Transporters: Sections 33.1–24–04–01,
except .4 and Note following paragraph .3.b;
33.1–24–04–02.1, except the phrase ‘‘, a
transporter permit, and a registration
certificate’’; 33.1–24–04–02.2, except the
phrases ‘‘and a registration certificate, or a
transporter permit,’’ in the first sentence, and
‘‘and issue a registration certificate’’ in the
second sentence; and 33.1–24–04–03 through
33.1–24–04–08.
Chapter 33.1–24–05—Standards for
Treatment, Storage, and Disposal Facilities
and for the Management of Specific
Hazardous Waste and Specific Types of
Hazardous Waste Management Facilities:
Sections 33.1–24–05–01; 33.1–24–05–02,
except the second sentence; 33.1–24–05–03,
except 33.1–24–05–03.1; 33.1–24–05–04
through 33.1–24–05–10; 33.1–24–05–15
through 33.1–24–05–20; 33.1–24–05–26
through 33.1–24–05–31; 33.1–24–05–37;
33.1–24–05–38, except .1.c and .4; 33.1–24–
05–39 through 33.1–24–05–44; 33.1–24–05–
47 through 33.1–24–05–69; 33.1–24–05–74
through 33.1–24–05–81; 33.1–24–05–89
through 33.1–24–05–98; 33.1–24–05–103
through 33.1–24–05–115; 33.1–24–05–118
through 33.1–24–05–128; 33.1–24–05–130
through 33.1–24–05–138; 33.1–24–05–144
through 33.1–24–05–151; 33.1–24–05–160
through 33.1–24–05–170; 33.1–24–05–176
through 33.1–24–05–188; 33.1–24–05–201
through 33.1–24–05–204; 33.1–24–05–230,
except .2.c; 33.1–24–05–235, except .1/Table
entries (6) and (7); 33.1–24–05–250 through
33.1–24–05–253; 33.1–24–05–256; 33.1–24–
05–258; 33.1–24–05–265; 33.1–24–05–266;
33.1–24–05–270 through 33.1–24–05–281;
33.1–24–05–282, except .2; 33.1–24–05–283;
33.1–24–05–284.8 through .13; 33.1–24–05–
285; 33.1–24–05–286; 33.1–24–05–288
through 33.1–24–05–290; 33.1–24–05–300
through 33.1–24–05–303; 33.1–24–05–400
through 33.1–24–05–406; 33.1–24–05–420
through 33.1–24–05–435; 33.1–24–05–450
through 33.1–24–05–460; 33.1–24–05–475
through 33.1–24–05–477; 33.1–24–05–501
through 33.1–24–05–506; 33.1–24–05–525
through 33.1–24–05–537; 33.1–24–05–550
through 33.1–24–05–555; 33.1–24–05–600;
33.1–24–05–610 through 33.1–24–05–612;
33.1–24–05–620 through 33.1–24–05–624;
33.1–24–05–630 through 33.1–24–05–632;
33.1–24–05–640 through 33.1–24–05–647;
PO 00000
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33.1–24–05–650 through 33.1–24–05–667;
33.1–24–05–670 through 33.1–24–05–675;
33.1–24–05–680; 33.1–24–05–681; 33.1–24–
05–701 through 33.1–24–05–705; 33.1–24–
05–708 through 33.1–24–05–720; 33.1–24–
05–730 through 33.1–24–05–740; 33.1–24–
05–750 through 33.1–24–05–756; 33.1–24–
05–760 through 33.1–24–05–762; 33.1–24–
05–770, except .4; 33.1–24–05–780; 33.1–24–
05–781; 33.1–24–05–800 through 33.1–24–
05–802; 33.1–24–05–820 through 33.1–24–
05–826; 33.1–24–05–850; 33.1–24–05–855
through 33.1–24–05–857; 33.1–24–05–860;
33.1–24–05–865; 33.1–24–05–866; 33.1–24–
05–870; 33.1–24–05–875; 33.1–24–05–880;
33.1–24–05–885; 33.1–24–05–890; 33.1–24–
05–895 through 33.1–24–05–900; 33.1–24–
05–905; 33.1–24–05–910; 33.1–24–05–915;
33.1–24–05–916; 33.1–24–05–950; 33.1–24–
05–951; 33.1–24–05–960; 33.1–24–05–961;
33.1–24–05–963 through 33.1–24–05–968;
33.1–24–05–980 through 33.1–24–05–986;
33.1–24–05–990 through 33.1–24–05–998;
33.1–24–05–1010 through 33.1–24–05–1016;
33.1–24–05–1020; 33.1–24–05–1031; 33.1–
24–05–1040 through 33.1–24–05–1043; 33.1–
24–05–1045 through 33.1–24–05–1047; 33.1–
24–05–1060 through 33.1–24–05–1063; 33.1–
24–05–1067; 33.1–24–05–1068; 33.1–24–05–
1071; 33.1–24–05–1080 through 33.1–24–05–
1087; 33.1–24–05–1100 through 33.1–24–05–
1114; 33.1–24–05–1130 through 33.1–24–05–
1138; and Appendices I through VIII, X
through XIII, XV through XXIV, and XXVI
through XXIX.
Chapter 33.1–24–06—Permits: Sections
33.1–24–06–01; 33.1–24–06–02, 33.1–24–06–
03, except Note following paragraph .1.a.(2);
33.1–24–06–04; 33.1–24–06–05.2.c; 33.1–24–
06–06.1; 33–24–06–07; 33.1–24–06–08; 33.1–
24–06–10 through 33.1–24–06–13; 33.1–24–
06–14, except .3.a.(4); 33.1–24–06–15
introductory paragraph through .1.a; 33.1–
24–06–16.5 through .7; 33.1–24–06–17
through 33.1–24–06–20; 33.1–24–06–30
through 33.1–24–06–35; 33.1–24–06–45;
33.1–24–06–48; 33.1–24–06–52; 33.1–24–06–
56; 33.1–24–06–57; 33.1–24–06–62; 33.1–24–
06–65; 33.1–24–06–70; 33.1–24–06–73; 33.1–
24–06–76; 33.1–24–06–80; 33.1–24–06–85;
33.1–24–06–100; and Appendix I to Section
33.1–24–06–14.
Chapter 33.1–24–07—Permitting
Procedures: Sections 33.1–24–07–01; 33.1–
24–07–02; and 33.1–24–07–03, except .4.
Copies of the North Dakota regulations that
are incorporated by reference are available
from North Dakota Legislative Counsel,
Second Floor, State Capitol, 600 E Boulevard,
Bismarck, North Dakota 58505, phone
number: (701) 328–2916.
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[FR Doc. 2019–26553 Filed 12–11–19; 8:45 am]
BILLING CODE 6560–50–P
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Agencies
[Federal Register Volume 84, Number 239 (Thursday, December 12, 2019)]
[Rules and Regulations]
[Pages 67875-67879]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-26553]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 272
[EPA-R08-RCRA-2018-0554; FRL-10001-40-Region 8]
North Dakota: Incorporation by Reference of State Hazardous Waste
Management Program
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This rule codifies in the regulations the prior approval of
North Dakota's hazardous waste management program and incorporates by
reference authorized provisions of the State's statutes and
regulations. The Environmental Protection Agency (EPA) uses the
regulations entitled, ``Approved State Hazardous Waste Management
Programs,'' to provide notice of the authorization status of State
programs, and to incorporate by reference those provisions of the State
statutes and regulations that are authorized and that EPA will enforce
under the Solid Waste Disposal Act, commonly referred to as the
Resource Conservation and Recovery Act (RCRA). The EPA previously
provided notices and opportunity for comments on the Agency's decisions
to authorize the State of North Dakota program and the EPA is not now
reopening the decisions, nor requesting comments, on the North Dakota
authorization as previously published in the Federal Register documents
specified in Section I.C. of this final rule document.
DATES: This action is effective January 13, 2020. The Director of the
Federal Register approves this incorporation by reference as of January
13, 2020.
ADDRESSES: The documents that form the basis for this codification and
associated publicly available materials are available electronically
through https://www.regulations.gov (Docket ID No. EPA-EPA-RCRA-2019-
0554). Although listed in the index, some of the information is not
publicly available, e.g., Confidential Business Information or other
information whose disclosure is restricted by statute. You can also
view and copy the documents from 8:30 a.m. to 4 p.m. Monday through
Friday at the following location: EPA Region 8, 1595 Wynkoop Street,
Denver, Colorado 80202-1129, phone number (303) 312-6667. Interested
persons wanting to examine these documents should make an appointment
with the office at least two days in advance.
FOR FURTHER INFORMATION CONTACT: Moye Lin, RCRA State Liaison,
Environmental Protection Specialist, Land, Chemicals, and Redevelopment
Division, 8LCR-RC, EPA Region 8, 1595 Wynkoop Street, Denver, Colorado
80202-1129; phone number (303) 312-6667; Email address:
[email protected].
SUPPLEMENTARY INFORMATION:
I. Incorporation by Reference
A. What is codification?
Codification is the process of including the statutes and
regulations that comprise the State's authorized hazardous waste
management program into the Code of Federal Regulations (CFR). Section
3006(b) of RCRA, as amended, allows the EPA to authorize State
hazardous waste management programs to operate in lieu of the Federal
hazardous waste management regulatory program. The EPA codifies its
authorization of State programs in 40 CFR part 272 and incorporates by
reference State statutes and regulations that the EPA will enforce
under sections 3007 and 3008 of RCRA, and any other applicable
statutory provisions.
The incorporation by reference of State authorized programs in the
CFR should substantially enhance the public's ability to discern the
current status of the authorized State program and State requirements
that can be federally enforced. This effort provides clear notice to
the public of the scope of the authorized program in each State.
B. Why wasn't there a proposed rule before today's rule?
The EPA is publishing this rule to codify North Dakota's authorized
hazardous waste management program without a prior proposal because we
believe this action is not controversial. This rulemaking is in
accordance with section 3006(b) of RCRA, the EPA has already evaluated
the State's statutory and regulatory requirements and has determined
that the State's program meets the statutory and regulatory
requirements established by RCRA. The EPA previously provided notices
and opportunity for comments on the Agency's decisions to authorize the
North Dakota program. The EPA is not reopening the decisions, nor
requesting new comments on the North Dakota authorizations, as
previously published in the Federal Register documents specific in
Section I.C of this final rule document. The previous authorizations
[[Page 67876]]
form the basis for the codification addressed in this final rule.
C. What is the history of the authorization and codification of North
Dakota's hazardous waste management program?
North Dakota initially received final authorization on October 5,
1984, effective October 19, 1984 (49 FR 39328), to implement its Base
Hazardous Waste Management Program. We granted authorizations for
changes to their programs on June 25, 1990 (55 FR 25836), effective
August 24, 1990; May 5, 1992 (57 FR 19087), effective July 6, 1992;
April 7, 1994 (59 FR 16566), effective June 6, 1994; January 19, 2000
(65 FR 2897), effective March 20, 2000; June 4, 2002 (67 FR 38418),
effective April 22, 2002; September 26, 2005 (70 FR 56132), effective
November 25, 2005; February 14, 2008 (73 FR 8610), effective April 14,
2008; October 30, 2018 (73 FR 54521), effective October 30, 2018; and
December 19, 2018 (83 FR 65101), effective April 30, 2019.
The EPA incorporated by reference North Dakota's then authorized
hazardous waste program effective April 14, 2008 (73 FR 8610), and
October 30, 2018 (83 FR 54521). In this document, the EPA is revising
Subpart JJ of 40 CFR part 272 to include the authorization revision
action effective April 30, 2019 (83 FR 65101) described in this
preamble.
D. What codification decisions have we made in this rule?
In this rule, the EPA is finalizing the Federal regulatory text
that includes incorporation by reference of the authorized hazardous
waste management program of the State of North Dakota. In accordance
with the requirements of 1 CFR 51.5, the EPA is finalizing the
incorporation by reference of the North Dakota statutory and regulatory
provisions described in the amendments to 40 CFR 272.1751 set forth
below. The EPA has made, and will continue to make, these documents
generally available electronically through https://www.regulations.gov
and at the EPA Region 8 office (see the ADDRESSES section of this
preamble for more information).
This rule codifies the EPA's authorization of North Dakota's base
hazardous waste management program and its revisions to that program.
The codification reflects the State program that was in effect at the
time the EPA authorized the North Dakota hazardous waste management
program addressed in the final rule published on December 19, 2018 (83
FR 65101). Due to unforeseen delays resulting from the lapse in
appropriations, the EPA's final authorization concerning North Dakota's
hazardous waste management program originally proposed December 19,
2018, with an effective date of March 15, 2019 (83 FR 65104, December
19, 2018), was delayed. Thus, the EPA granted authorization for the
North Dakota program effective April 30, 2019 (84 FR 8260, March 7,
2019). The EPA is not requesting comments on its decisions published in
the Federal Register actions concerning revisions to the authorized
program in North Dakota. By codifying the authorized North Dakota
program and by amending the CFR, the public will more easily be able to
discern the status of the federally -approved requirements of the North
Dakota program.
The EPA is incorporating by reference the EPA's approval of North
Dakota's hazardous waste management program by amending Subpart JJ to
40 CFR part 272. The rule amends section 272.1751 and incorporates by
reference North Dakota's authorized hazardous waste statutes and
regulations. Section 272.1751 also references the demonstration of
adequate enforcement authority, including procedural and enforcement
provisions, which provide the legal basis for the State's
implementation of the hazardous waste management program. In addition,
section 272.1751 references the Memorandum of Agreement, the Attorney
General's Statement, and the Program Description, which are evaluated
as part of the approval process of the hazardous waste management
program in accordance with Subtitle C of RCRA.
E. What is the effect of North Dakota's codification on enforcement?
The EPA retains the authority under statutory provisions, including
but not limited to, RCRA sections 3007, 3008, 3013, and 7003, and other
applicable statutory and regulatory provisions to undertake inspections
and enforcement actions and to issue orders in all authorized states.
With respect to enforcement actions, the EPA will rely on Federal
sanctions, Federal inspection authorities, and Federal procedures
rather than the State analogs to these provisions. Therefore, the EPA
is not incorporating by reference North Dakota's inspection and
enforcement authorities, nor are those authorities part of North
Dakota's approved State program which operates in lieu of the Federal
program. 40 CFR 272.1751(c)(2) lists the statutory and regulatory
provisions which provide the legal basis for the State's implementation
of the hazardous waste management program, as well as those procedural
and enforcement authorities that are part of the State's approved
program, but these are not incorporated by reference.
F. What State provisions are not part of the codification?
The public is reminded that some provisions of North Dakota's
hazardous waste management program are not part of the federally
authorized State program. These non-authorized provisions include:
(1) Provisions that are not part of the RCRA subtitle C program
because they are ``broader in scope'' than RCRA subtitle C (see 40 CFR
271.1(i));
(2) Federal rules for which North Dakota is not authorized, but
which have been incorporated into the State regulations because of the
way the State adopted Federal regulations by reference;
(3) State procedural and enforcement authorities that are necessary
to establish the ability of the State's program to enforce compliance,
but which do not supplant the Federal statutory enforcement and
procedural authorities.
State provisions that are ``broader in scope'' than the Federal
program are not incorporated by reference in 40 CFR part 272. For
reference and clarity, the EPA lists in 40 CFR 272.1751(c)(3) the North
Dakota statutory provisions that are ``broader in scope'' than the
Federal program, and which are not part of the authorized program being
incorporated by reference. While ``broader in scope'' provisions are
not part of the authorized program and cannot be enforced by the EPA,
the State may enforce such provisions under State law.
North Dakota has adopted, but is not authorized for, the Federal
rules published in the Federal Register on April 12, 1996 (61 FR
16290); October 22, 1998 (63 FR 56710), and January 8, 2010 (75 FR
1235). Therefore, these Federal amendments included in North Dakota's
adoption by reference at section 33.1-24-06-16.5 of the North Dakota
Administrative Code are not part of the State's authorized program and
are not part of the incorporation by reference addressed by this
Federal Register document.
G. What will be the effect of codification on Federal HSWA
requirements?
With respect to any requirement(s) pursuant to HSWA for which the
State has not yet been authorized, and which the EPA has identified as
taking effect immediately in states with authorized hazardous waste
management programs, the EPA will enforce those Federal
[[Page 67877]]
HSWA standards until the State is authorized for those provisions.
The codification does not affect Federal HSWA requirements for
which the State is not authorized. The EPA has authority to implement
HSWA requirements in all states, including states with authorized
hazardous waste management programs, until the states become authorized
for such requirements or prohibitions, unless the EPA has identified
the HSWA requirement(s) as an optional or as a less stringent
requirement of the Federal program. A HSWA requirement or prohibition,
unless identified by the EPA as optional or as less stringent,
supersedes any less stringent or inconsistent State provision which may
have been previously authorized by the EPA (50 FR 28702, July 15,
1985).
Some existing State requirements may be similar to the HSWA
requirements implemented by the EPA. However, until the EPA authorizes
those State requirements, the EPA enforces the HSWA requirements and
not the State analogs.
II. 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). This action
authorizes State requirements for the purpose of RCRA section 3006 and
imposes no additional requirements beyond those imposed by State law.
Therefore, this action is not subject to review by OMB. This action is
not an Executive Order 13771 (82 FR 9339, February 3, 2017) regulatory
action because actions such as today's final authorization of North
Dakota's revised hazardous waste program under RCRA are exempted under
Executive Order 12866. Accordingly, I certify that this action will not
have a significant economic impact on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
Because this action 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 action is not subject to Executive Order 13211, ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355, May 22, 2001), because it is not a
significant regulatory action under Executive Order 12866.
Under RCRA 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 action, 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 action in accordance with the
``Attorney General's Supplemental Guidelines for the Evaluation of Risk
and Avoidance of Unanticipated Takings'' issued under the executive
order. This action does not impose an information collection burden
under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C.
3501 et seq.). ``Burden'' is defined at 5 CFR 1320.3(b).
Executive Order 12898 (59 FR 7629, February 16, 1994) establishes
Federal executive policy on environmental justice. Its main provision
directs Federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States. Because this 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. The 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).
List of Subjects in 40 CFR Part 272
Environmental protection, Hazardous materials transportation,
Hazardous waste, Incorporation by reference, Intergovernmental
relations, Water pollution control, Water supply.
Dated: December 4, 2019.
Gregory Sopkin,
Regional Administrator, EPA Region 8.
For the reasons set forth in the preamble, under the authority at
42 U.S.C. 6912(a), 6926, and 6974(b), the EPA is amending 40 CFR part
272 as follows:
PART 272--APPROVED STATE HAZARDOUS WASTE MANAGEMENT PROGRAMS
0
1. The authority citation for part 272 continues to read as follows:
Authority: Secs. 2002(a), 3006, and 7004(b) of the Solid Waste
Disposal Act, as amended by the Resource Conservation and Recovery
Act of 1976, as amended, 42 U.S.C. 6912(a), 6926, and 6974(b).
0
2. Revise Sec. 272.1751 to read as follows:
Sec. 272.1751 North Dakota State-Administered Program: Final
Authorization.
(a) Pursuant to section 3006(b) of RCRA, 42 U.S.C. 6926(b), North
Dakota has final authorization for the following elements as submitted
to the EPA in
[[Page 67878]]
North Dakota's base program application for final authorization which
was approved by the EPA effective on October 19, 1984. Subsequent
program revision applications were approved effective on August 24,
1990, July 6, 1992, June 6, 1994, March 20, 2000, November 25, 2005,
April 14, 2008, and April 30, 2019.
(b) The State of North Dakota has primary responsibility for
enforcing its hazardous waste management program. However, the EPA
retains the authority to exercise its inspection and enforcement
authorities in accordance with sections 3007, 3008, 3013, 7003 of RCRA,
42 U.S.C. 6927, 6928, 6934, 6973, and any other applicable statutory
and regulatory provisions, regardless of whether the State has taken
its own actions, as well as in accordance with other statutory and
regulatory provisions.
(c) State Statutes and Regulations:
(1) The North Dakota statutes and regulations cited in paragraph
(c)(1)(i) of this section are incorporated by reference as part of the
hazardous waste management program under Subtitle C of RCRA, 42 U.S.C.
6921 et seq. This incorporation by reference is approved by the
Director of the Federal Register in accordance with 5 U.S.C. 552(a) and
1 CFR part 51. You may obtain copies of the North Dakota provisions
that are incorporated by reference in this paragraph from North Dakota
Legislative Council, Second Floor, State Capitol, 600 E Boulevard Ave.,
Bismarck, North Dakota 58505, phone (701) 328-2916. You may inspect a
copy at EPA Region 8, 1595 Wynkoop Street, Denver, Colorado, phone
number (303) 312-6231, or at the National Archives and Records
Administration (NARA). For information on the availability of this
material at NARA, email [email protected], or go to:
www.archives.gov/federal-register/cfr/ibr-locations.
(i) ``EPA-Approved North Dakota Statutory and Regulatory
Requirements Applicable to the Hazardous Waste Management Program,''
dated April 2019.
(ii) [Reserved]
(2) The EPA considered the following statutes and regulations in
evaluating the State program but is not incorporating them herein for
enforcement purposes:
(i) North Dakota Century Code (NDCC), Volume 13A, 2012 Replacement.
North Dakota Constitution, Article XI: Sections 5 and 6.
(ii) NDCC, Volume 4A, 2017 Cumulative Supplement. Chapter 23.1-01
``Department of Environmental Quality,'' Sections 23.1-01-04 and 23.1-
01-11; Chapter 23.1-04 ``Hazardous Waste Management,'' Sections 23.1-
04-01(1) through (4), 23.1-04-02 introductory paragraph, (2), (3)
through (8), (12) through (15), and (17); 23.1-04-03; 23.1-04-05; 23.1-
04-08(3), (4), and (6); 23.1-04-12 through 23.1-04-16; and Chapter
23.1-08 ``Solid Waste Management and Land Protection,'' Section 23.1-
08-03.
(iii) NDCC, Volume 5, 2012 Replacement. Chapter 28-32
``Administrative Agencies Practice Act,'' Sections 28-32-16 and 28-32-
21.1.
(v) NDCC, Volume 6, 2012 Replacement. Chapter 32-40 ``Environmental
Law Enforcement,'' Sections 32-40-03 through 32-40-11.
(vi) NDCC, Volume 9A, 2012 Replacement, as amended by the 2017
Pocket Supplement. Chapter 44-04 ``Duties, records and meetings,''
Sections 44-04-18 through 19.1.
(vii) North Dakota Administrative Code (NDAC), Article 33.1-24,
Hazardous Waste Management, as amended effective January 1, 2019.
Sections 33.1-24-01-15; 33.1-24-01-16; 33.1-24-06-05, except .2.c;
33.1-24-06-06.2; 33.1-24-06-09; 33.1-24-06-15.1.6 through .3.b; 33.1-
24-07-03.4; 33.1-24-07-04 through 33.1-24-07-14; 33.1-24-07-25 through
33.1-24-07-27; and 33.1-24-07-40 through 33.1-24-07-54.
(3) The following statutory and regulatory provisions are broader
in scope than the Federal program, are not part of the authorized
program, are not incorporated by reference, and are not federally
enforceable:
(i) NDCC, 2017 Cumulative Supplement, Volume 4A, Chapter 23.1-01
``Department of Environmental Quality,'' Section 23.1-01-05.
(ii) North Dakota Century Code, Volume 4A, 2017 Cumulative
Supplement. Chapter 23.1-04 ``Hazardous Waste Management,'' Sections
23.1-04-02(1); and 23.1-04-09 through 23.1-04-11.
(iii) North Dakota Administrative Code, Article 33.1-24,
``Hazardous Waste Management,'' as amended effective January 1, 2019,
Sections 33.1-24-03-03.4; 33.1-24-04-02.3; 33.1-24-05-02 second
sentence; 33.1-24-06-14.3.a(4); and 33.1-24-06-21.
(iv) North Dakota's hazardous waste regulations set forth
additional transporter requirements including permit requirements at
33.1-24-04-02. The transporter permit requirements are broader in scope
than the Federal program.
(4) Unauthorized State amendments and provisions:
(i) North Dakota has partially or fully adopted, but is not
authorized to implement, the Federal rule published in the Federal
Register on October 22, 1998, Standards Applicable to Owners and
Operators of Closed and Closing Hazardous Waste Management Facilities:
Post-Closure Permit Requirement and Closure Process; Final Rule (HSWA/
non-HSWA). The EPA will continue to implement the Federal HSWA
requirements for which North Dakota is not authorized until the State
receives specific authorization for those requirements.
(ii) The Federal rules listed in the following table are not
delegable to states. North Dakota has adopted these provisions and left
the authority to the EPA for implementation and enforcement.
(iii) North Dakota has adopted the following Federal provisions
from the Revisions to the Definition of Solid Waste Rule, published
January 13, 2015, which have since been vacated by the U.S. Court of
Appeals for the District of Columbia Circuit in 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) (vacating both the Factor 4 Legitimacy
Test and the Verified Recycler Exclusion aspects of the 2015 DSW Rule):
One criterion in the determination of whether recycling is legitimate
at 40 CFR 260.43(a)(4); the verified recycler exclusion, which allowed
generators to send their hazardous secondary materials to certain
reclaimers at 40 CFR 261.4(1)(24); and the associated provisions at 40
CFR 260.30(d) and 260.31(d), which address the criteria in the variance
determination for exceptions to the classification of hazardous
secondary materials as a solid waste.
(5) Memorandum of Agreement: The Memorandum of Agreement between
the EPA Region 8 and the State of North Dakota, signed by the EPA
Region 8 Regional Administrator on December 5, 2018 and the Director of
the North Dakota Department of Environmental Quality on December 4,
2018, although not incorporated by reference, is referenced as part of
the authorized hazardous waste management program under subtitle C of
RCRA, 42 U.S.C. 6921 et seq.
(6) Statement of Legal Authority: ``Attorney General's Statement:
Hazardous Waste Management Program'' signed by the Attorney General of
North Dakota on June 8, 1984, and revisions, supplements, and addenda
to that Statement dated February 22, 1989, February 11, 1984, October
13, 1999, April 23, 2004,
[[Page 67879]]
August 19, 2004, December 5, 2016, and September 29, 2018, although not
incorporated by reference, are referenced as part of the authorized
hazardous waste management program under subtitle C of RCRA, 42 U.S.C.
6921 et seq.
(7) Program Description: The Program Description and any other
materials submitted as supplements thereto, although not incorporated
by reference, are referenced as part of the authorized hazardous waste
management program under subtitle C of RCRA, 42 U.S.C. 6921 et seq.
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3. Appendix A to part 272 is amended by revising the listing for
``North Dakota'' to read as follows:
Appendix A to Part 272--State Requirements
* * * * *
North Dakota
(a) The statutory provisions include: North Dakota Century Code
(NDCC), Volume 4A, 2017 Cumulative Supplement. Chapter 23.1-04
``Hazardous Waste Management,'' Sections 23.1-04-08(1), (2), (5),
and (7). Copies of the North Dakota statutes that are incorporated
by reference are available from Matthew Bender & Company Inc., 701 E
Water Street, Charlottesville, VA 22902-5389, phone number: (800)
833-9844.
(b) The regulatory provisions include: North Dakota
Administrative Code (NDAC), Article 33.1-24, as revised January 1,
2019, except reserved provisions.
Chapter 33.1-24-01--General provisions: Sections 33.1-24-01-01
through 33.1-24-01-04, 33.1-24-01-05, except .2.k and .7.a; 33.1-24-
01-06 through 33.1-24-01-09, 33.1-24-01-10, except .4.f; 33.1-24-01-
11 through 33.1-24-01-14; 33.1-24-01-17 and 33.1-24-01-18; and 33.1-
24-01-19, except .1.d.
Chapter 33.1-24-02--Identification and Listing of Hazardous
Waste: Sections 33.1-24-02-01 through 33.1-24-02-03; 33.1-24-02-04,
except .1.y; 33.1-24-02-05; 33.1-24-02-06, except .1.e; 33.1-24-02-
07 through 33.1-24-02-10; 33.1-24-02-11, except the phrase ``or a
miniflash continuously closed cup tester, using the test method
specified in American Society for Testing and Material D6450-99
(incorporated by reference in section 33.1-24-01-05)'' in paragraph
.1.a; 33.1-24-02-12 through 33.1-24-02-19; 33.1-24-02-25 through
33.1-24-02-27; 33.1-24-02-33 through 33.1-24-02-42; 33.1-24-02-50
through 33.1-24-02-70; 33.1-24-02-120 through 33.1-24-02-129; 33.1-
24-02-170 through 33.1-24-02-175; 33.1-24-02-180 through 33.1-24-02-
194; 33.1-24-02-200 through 33.1-24-02-209; and Appendices I, IV,
and V.
Chapter 33.1-24-03--Standards for Generators: Sections 33.1-24-
03-01, except .4; 33.1-24-03-02; 33.1-24-03-03.1 and .2; 33.1-24-03-
03.3 except the phrase ``and a transporter permit''; 33.1-24-03-04
through 33.1-24-03-24; 33.1-24-03-30; 33.1-24-03-40; 33.1-24-03-60
through 33.1-24-03-77; and Appendix I.
Chapter 33.1-24-04--Standards for Transporters: Sections 33.1-
24-04-01, except .4 and Note following paragraph .3.b; 33.1-24-04-
02.1, except the phrase ``, a transporter permit, and a registration
certificate''; 33.1-24-04-02.2, except the phrases ``and a
registration certificate, or a transporter permit,'' in the first
sentence, and ``and issue a registration certificate'' in the second
sentence; and 33.1-24-04-03 through 33.1-24-04-08.
Chapter 33.1-24-05--Standards for Treatment, Storage, and
Disposal Facilities and for the Management of Specific Hazardous
Waste and Specific Types of Hazardous Waste Management Facilities:
Sections 33.1-24-05-01; 33.1-24-05-02, except the second sentence;
33.1-24-05-03, except 33.1-24-05-03.1; 33.1-24-05-04 through 33.1-
24-05-10; 33.1-24-05-15 through 33.1-24-05-20; 33.1-24-05-26 through
33.1-24-05-31; 33.1-24-05-37; 33.1-24-05-38, except .1.c and .4;
33.1-24-05-39 through 33.1-24-05-44; 33.1-24-05-47 through 33.1-24-
05-69; 33.1-24-05-74 through 33.1-24-05-81; 33.1-24-05-89 through
33.1-24-05-98; 33.1-24-05-103 through 33.1-24-05-115; 33.1-24-05-118
through 33.1-24-05-128; 33.1-24-05-130 through 33.1-24-05-138; 33.1-
24-05-144 through 33.1-24-05-151; 33.1-24-05-160 through 33.1-24-05-
170; 33.1-24-05-176 through 33.1-24-05-188; 33.1-24-05-201 through
33.1-24-05-204; 33.1-24-05-230, except .2.c; 33.1-24-05-235, except
.1/Table entries (6) and (7); 33.1-24-05-250 through 33.1-24-05-253;
33.1-24-05-256; 33.1-24-05-258; 33.1-24-05-265; 33.1-24-05-266;
33.1-24-05-270 through 33.1-24-05-281; 33.1-24-05-282, except .2;
33.1-24-05-283; 33.1-24-05-284.8 through .13; 33.1-24-05-285; 33.1-
24-05-286; 33.1-24-05-288 through 33.1-24-05-290; 33.1-24-05-300
through 33.1-24-05-303; 33.1-24-05-400 through 33.1-24-05-406; 33.1-
24-05-420 through 33.1-24-05-435; 33.1-24-05-450 through 33.1-24-05-
460; 33.1-24-05-475 through 33.1-24-05-477; 33.1-24-05-501 through
33.1-24-05-506; 33.1-24-05-525 through 33.1-24-05-537; 33.1-24-05-
550 through 33.1-24-05-555; 33.1-24-05-600; 33.1-24-05-610 through
33.1-24-05-612; 33.1-24-05-620 through 33.1-24-05-624; 33.1-24-05-
630 through 33.1-24-05-632; 33.1-24-05-640 through 33.1-24-05-647;
33.1-24-05-650 through 33.1-24-05-667; 33.1-24-05-670 through 33.1-
24-05-675; 33.1-24-05-680; 33.1-24-05-681; 33.1-24-05-701 through
33.1-24-05-705; 33.1-24-05-708 through 33.1-24-05-720; 33.1-24-05-
730 through 33.1-24-05-740; 33.1-24-05-750 through 33.1-24-05-756;
33.1-24-05-760 through 33.1-24-05-762; 33.1-24-05-770, except .4;
33.1-24-05-780; 33.1-24-05-781; 33.1-24-05-800 through 33.1-24-05-
802; 33.1-24-05-820 through 33.1-24-05-826; 33.1-24-05-850; 33.1-24-
05-855 through 33.1-24-05-857; 33.1-24-05-860; 33.1-24-05-865; 33.1-
24-05-866; 33.1-24-05-870; 33.1-24-05-875; 33.1-24-05-880; 33.1-24-
05-885; 33.1-24-05-890; 33.1-24-05-895 through 33.1-24-05-900; 33.1-
24-05-905; 33.1-24-05-910; 33.1-24-05-915; 33.1-24-05-916; 33.1-24-
05-950; 33.1-24-05-951; 33.1–24-05-960; 33.1-24-05-961; 33.1-
24-05-963 through 33.1-24-05-968; 33.1-24-05-980 through 33.1-24-05-
986; 33.1-24-05-990 through 33.1-24-05-998; 33.1-24-05-1010 through
33.1-24-05-1016; 33.1-24-05-1020; 33.1-24-05-1031; 33.1-24-05-1040
through 33.1-24-05-1043; 33.1-24-05-1045 through 33.1-24-05-1047;
33.1-24-05-1060 through 33.1-24-05-1063; 33.1-24-05-1067; 33.1-24-
05-1068; 33.1-24-05-1071; 33.1-24-05-1080 through 33.1-24-05-1087;
33.1-24-05-1100 through 33.1-24-05-1114; 33.1-24-05-1130 through
33.1-24-05-1138; and Appendices I through VIII, X through XIII, XV
through XXIV, and XXVI through XXIX.
Chapter 33.1-24-06--Permits: Sections 33.1-24-06-01; 33.1-24-06-
02, 33.1-24-06-03, except Note following paragraph .1.a.(2); 33.1-
24-06-04; 33.1-24-06-05.2.c; 33.1-24-06-06.1; 33-24-06-07; 33.1-24-
06-08; 33.1-24-06-10 through 33.1-24-06-13; 33.1-24-06-14, except
.3.a.(4); 33.1-24-06-15 introductory paragraph through .1.a; 33.1-
24-06-16.5 through .7; 33.1-24-06-17 through 33.1-24-06-20; 33.1-24-
06-30 through 33.1-24-06-35; 33.1-24-06-45; 33.1-24-06-48; 33.1-24-
06-52; 33.1-24-06-56; 33.1-24-06-57; 33.1-24-06-62; 33.1-24-06-65;
33.1-24-06-70; 33.1-24-06-73; 33.1-24-06-76; 33.1-24-06-80; 33.1-24-
06-85; 33.1-24-06-100; and Appendix I to Section 33.1-24-06-14.
Chapter 33.1-24-07--Permitting Procedures: Sections 33.1-24-07-
01; 33.1-24-07-02; and 33.1-24-07-03, except .4.
Copies of the North Dakota regulations that are incorporated by
reference are available from North Dakota Legislative Counsel,
Second Floor, State Capitol, 600 E Boulevard, Bismarck, North Dakota
58505, phone number: (701) 328-2916.
* * * * *
[FR Doc. 2019-26553 Filed 12-11-19; 8:45 am]
BILLING CODE 6560-50-P