North Dakota: Incorporation by Reference of State Hazardous Waste Management Program, 67875-67879 [2019-26553]

Download as PDF 67875 Federal Register / Vol. 84, No. 239 / Thursday, December 12, 2019 / Rules and Regulations 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 ■ 1. The authority citation for part 52 continues to read as follows: ■ § 52.420 * Identification of plan. * * (c) * * * * * EPA-APPROVED REGULATIONS AND STATUTES IN THE DELAWARE SIP State regulation (7 DNREC 1100) State effective date Title/subject 1101 * Section 2.0 ..................... * * * * * Definitions ..................... * * * * 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 khammond on DSKJM1Z7X2PROD with RULES SUMMARY: VerDate Sep<11>2014 16:56 Dec 11, 2019 Jkt 250001 Additional explanation Definitions and Administrative Principles 12/11/2016 * [FR Doc. 2019–26687 Filed 12–11–19; 8:45 am] EPA approval date * * * * 12/12/2019 [Insert FedUpdated definition of volatile organic compound. eral Register citation]. Previous approval 5/31/2019. * * 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 PO 00000 Frm 00049 Fmt 4700 Sfmt 4700 * * 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 E:\FR\FM\12DER1.SGM 12DER1 67876 Federal Register / Vol. 84, No. 239 / Thursday, December 12, 2019 / Rules and Regulations form the basis for the codification addressed in this final rule. khammond on DSKJM1Z7X2PROD with RULES 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 VerDate Sep<11>2014 16:05 Dec 11, 2019 Jkt 250001 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 PO 00000 Frm 00050 Fmt 4700 Sfmt 4700 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 E:\FR\FM\12DER1.SGM 12DER1 Federal Register / Vol. 84, No. 239 / Thursday, December 12, 2019 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES 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 VerDate Sep<11>2014 16:05 Dec 11, 2019 Jkt 250001 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 PO 00000 Frm 00051 Fmt 4700 Sfmt 4700 67877 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: ■ 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: ■ § 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 E:\FR\FM\12DER1.SGM 12DER1 khammond on DSKJM1Z7X2PROD with RULES 67878 Federal Register / Vol. 84, No. 239 / Thursday, December 12, 2019 / Rules and Regulations 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 VerDate Sep<11>2014 16:05 Dec 11, 2019 Jkt 250001 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: PO 00000 Frm 00052 Fmt 4700 Sfmt 4700 (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, E:\FR\FM\12DER1.SGM 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 * * * * * 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; VerDate Sep<11>2014 16:05 Dec 11, 2019 Jkt 250001 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 Frm 00053 Fmt 4700 Sfmt 9990 67879 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 E:\FR\FM\12DER1.SGM 12DER1

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.

0
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