Arkansas: Authorization of State Hazardous Waste Management Program Revision, 31233-31239 [2021-12238]
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Federal Register / Vol. 86, No. 111 / Friday, June 11, 2021 / Proposed Rules
V. Statutory and Executive Order
Reviews
Under Executive Order 12866, titled
Regulatory Planning and Review (58 FR
51735, October 4, 1993), this is a
‘‘significant regulatory action.’’
Accordingly, the EPA submitted this
action to the Office of Management and
Budget (OMB) for review under
Executive Order 12866 and any changes
made in response to OMB
recommendations have been
documented in the docket for this
action. Because this action does not
propose or impose any requirements
and instead seeks comments and
suggestions for the Agency to consider
in possibly developing a subsequent
proposed rule, the various statutes and
Executive Orders that normally apply to
rulemaking do not apply in this case.
When the EPA develops the rulemaking,
the EPA will address the applicable
statutes and Executive Orders.
Michael S. Regan,
Administrator.
[FR Doc. 2021–12287 Filed 6–10–21; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 271
[EPA–R06–RCRA–2021–0073; FRL–10021–
64–Region 6]
Arkansas: Authorization of State
Hazardous Waste Management
Program Revision
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
The State of Arkansas
Division of Environmental Quality
(DEQ) has applied to the Environmental
Protection Agency (EPA) for final
authorization of the changes to its
hazardous waste program under the
Resource Conservation and Recovery
Act (RCRA). The EPA has reviewed
Arkansas’ application and has
determined that these changes appear to
satisfy all requirements needed to
qualify for final authorization and is
proposing to authorize the State’s
changes. The EPA is seeking public
comment prior to taking final action.
DATES: Comments on this proposed rule
must be received by July 12, 2021.
ADDRESSES: Submit your comments by
one of the following methods:
• Federal eRulemaking Portal:
https://www.regulations.gov. Follow the
on-line instructions for submitting
comments.
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SUMMARY:
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• Email: patterson.alima@epa.gov.
Instructions: EPA must receive your
comments by July 12, 2021. Direct your
comments to Docket ID Number EPA–
R06–RCRA–2021–0073. The EPA’s
policy is that all comments received
will be included in the public docket
without change and may be made
available online at https://
www.regulations.gov, including any
personal information provided, unless
the comment includes information
claimed to be Confidential Business
Information (CBI), or other information
whose disclosure is restricted by statute.
Do not submit information that you
consider to be CBI or otherwise
protected through https://
www.regulations.gov, or email. The
Federal regulations.gov website is an
‘‘anonymous access’’ system, which
means EPA will not know your identity
or contact information unless you
provide it in the body of your comment.
If you send an email comment directly
to EPA without going through
regulations.gov, your email address will
be automatically captured and included
as part of the comment that is placed in
the public docket and made available on
the internet. If you submit an electronic
comment, EPA recommends that you
include your name and other contact
information in the body of your
comment with any CD you submit. If
EPA cannot read your comment due to
technical difficulties and cannot contact
you for clarification, EPA may not be
able to consider your comment.
Electronic files should avoid the use of
special characters, any form of
encryption and be free of any defects or
viruses.
Docket: The index to the docket for
this action is available electronically at
www.regulations.gov. Although listed in
the index, some information is not
publicly available, e.g., CBI or other
information whose disclosure is
restricted by statute. Certain other
material, such as copyrighted material,
will be publicly available only in hard
copy.
You can view and copy Arkansas’s
application and associated publicly
available docket materials either
through www.regulations.gov at the
following locations: Division of
Environmental Quality, 5301
Northshore Drive, North Little Rock,
Arkansas, 72118 telephone: (501) 682–
0744 and EPA, Region 6, 1201 Elm
Street, Suite 500, Dallas, Texas 75270.
The EPA facility is open from 8:30 a.m.
to 4:30 p.m., Monday through Friday,
excluding Federal holidays and facility
closures due to COVID–19. We
recommend that you telephone Alima
Patterson, Regional Authorization/
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31233
Codification Coordinator at (214) 665–
8533, before visiting the Region 6 office.
Interested persons wanting to examine
these documents should make an
appointment with the office.
FOR FURTHER INFORMATION CONTACT:
Alima Patterson, (214) 665–8533,
patterson.alima@epa.gov. Out of an
abundance of caution for members of
the public and our staff, the EPA Region
6 office will be closed to the public to
reduce the risk of transmitting COVID–
19. We encourage the public to submit
comments via https://
www.regulations.gov, as there will be a
delay in processing mail and no courier
or hand deliveries will be accepted.
Please call or email the contact listed
above if you need alternative access to
material indexed but not provided in
the docket.
SUPPLEMENTARY INFORMATION:
A. Why are revisions to State programs
necessary?
States which have received final
authorization from the EPA under RCRA
section 3006(b), 42 U.S.C. 6926(b), must
maintain a hazardous waste program
that is equivalent to, consistent with,
and no less stringent than the Federal
program. As the Federal program
changes, States must change their
programs and ask the EPA to authorize
the changes. Changes to State programs
may be necessary when Federal or State
statutory or regulatory authority is
modified or when certain other changes
occur. Most commonly, States must
change their programs because of
changes to the EPA’s regulations in 40
Code of Federal Regulations (CFR) parts
124, 260 through 268, 270, 273, and 279.
B. What decisions have EPA made in
this rule?
On March 2, 2021, the State of
Arkansas submitted a final complete
program revision application seeking
authorization of changes to its
hazardous waste program that
correspond to certain Federal rules
promulgated between July 1, 2014 and
June 30, 2018, which includes RCRA
Clusters XXIV through and RCRA
Cluster XXVI (Checklists 233A, 233B,
233C, 233D2, 233E, 234, 235, 236, 237,
238 and 239). The EPA has reviewed
Arkansas’ application to revise its
authorized program and is proposing to
find that it meets all of the statutory and
regulatory requirements established by
RCRA. Therefore, we propose to grant
the State of Arkansas final authorization
to operate its hazardous waste program
with the changes described in the
authorization application.
The State Arkansas will continue to
have responsibility for permitting
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treatment, storage and disposal facilities
(TSDFs) within its borders (except in
Indian Country), and for carrying out
the aspects of the RCRA program
described in its revised program
application, subject to the limitations of
the Hazardous and Solid Waste
Amendments of 1984 (HSWA). New
Federal requirements and prohibitions
imposed by Federal regulations that
EPA promulgates under the authority of
HSWA take effect in authorized States
before they are authorized for the
requirements. Thus, the EPA will
implement those requirements and
prohibitions in the State of Arkansas,
including issuing permits, until the
State is granted authorization to do so.
C. What is the effect of this proposed
authorization decision?
If the State of Arkansas is authorized
for these changes, a facility in Arkansas
subject to RCRA will now have to
comply with the authorized State
requirements instead of the equivalent
Federal requirements in order to comply
with RCRA. Additionally, such facilities
will have to comply with any applicable
Federal requirements such as, for
example, HSWA regulations issued by
the EPA for which the State has not
received authorization. The State of
Arkansas will continue to have
enforcement responsibilities under its
State hazardous waste program for
violations of such program, but the EPA
retains its authority under RCRA
sections 3007, 3008, 3013 and 7003,
which include, among others, authority
to:
• Conduct inspections and require
monitoring, tests, analyses, or reports;
• enforce RCRA requirements and
suspend or revoke permits, and
• take enforcement actions after
notice to and consultation with the
State.
The action to approve these
provisions would not impose additional
requirements on the regulated
community because the regulations for
which the State of Arkansas is
requesting authorization are already
effective under State law and are not
changed by the act of authorization.
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D. What happens if the EPA receives
comments on this action?
If the EPA receives comments on this
proposed action, we will address those
comments in our final action. You may
not have another opportunity to
comment. If you wish to comment on
this proposed authorization, you must
do so at this time.
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E. What has Arkansas previously been
authorized?
Arkansas initially received final
authorization on January 11, 1985,
effective January 25, 1985 (50 FR 1513),
to implement its Base Hazardous Waste
Management program. We granted
authorization for changes to their
program on August 23, 1985, via EPA
letter, effective August 23, 1985; March
27, 1990 (55 FR 11192), effective May
29, 1990; September 18, 1991 (56 FR
47153), effective November 18, 1991;
October 5, 1992 (57 FR 45721), effective
December 4, 1992; October 12, 1993 (58
FR 52674), effective December 13, 1993;
October 7, 1994 (59 FR 51115), effective
December 21, 1994; June 20, 1995 (60
FR 32112), effective August 21, 1995;
April 24, 2002 (67 FR 20038), effective
June 24, 2002, as amended June 28,
2010 (75 FR 36538); August 15, 2007 (72
FR 45663), effective October 15, 2007, as
amended June 28, 2010 (75 FR 36538);
June 28, 2010 (75 FR 36538), effective
August 27, 2010; August 10, 2012 (77
FR 47779), effective October 9, 2012;
October 2, 2014 (79 FR 59438), effective
December 1, 2014; October 31, 2014 (79
FR 64678), effective December 30, 2014;
January 29, 2016 (81 FR 4961), effective
March 29, 2016; August 11, 2016 (81 FR
53025), effective October 11, 2016; and
September 14, 2017 (82 FR 43185),
effective November 13, 2017.
The authorized Arkansas RCRA
program was incorporated by reference
into the Code of Federal Regulations
October 12, 1993 (58 FR 52674) effective
December 13, 1993; June 20, 1995 (60
FR 32112) effective August 21, 1995;
June 28, 2010 (75 FR 36538) effective
August 27, 2010; October 2, 2014 (79 FR
59438) effective December 1, 2014;
January 29, 2016 (81 FR 4961) effective
March 29, 2016; August 11, 2016 (81 FR
53025) effective October 11, 2016; and
September 14, 2017 (82 FR 43185),
effective November 13, 2017.
On March 2, 2021, Arkansas
submitted a final complete program
revision application seeking
authorization of its program revision in
accordance with 40 CFR 271.21. The
State of Arkansas has undergone a state
agency reorganization that has placed
the Arkansas Department of
Environmental Quality in the Arkansas
Department of Energy and Environment
and is now the Arkansas Division of
Environmental Quality (DEQ). The
Arkansas Division of Environmental
Quality is now the agency responsible
for administering all solid and
hazardous waste regulations for the
State of Arkansas. The Arkansas
Pollution Control and Ecology
Commission (APC&EC) is vested with
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general authority to make and amend
rules in Ark. Code Ann. § 8–01–
203(b)(l)(A), and is vested with specific
authority to make and amend rules with
regard to hazardous waste management
in Ark. Code Ann. § 8–7–209(b)(l).
On May 28, 2020, the APC&EC passed
Minute Order No. 20–14 to initiate
Rulemaking for amendments to
Regulation 23, Hazardous Waste
Management in order to adopt Federal
regulations promulgated between
through May 30, 2018. On June 6 and
7, 2020, the notice of the proposed
regulation changes, public hearing, and
public comment period was published
in the Arkansas Democrat-Gazette. On
July 20, 2020, at 2:00 p.m., the APC&EC
held a public hearing regarding the
proposed changes at 5301 Northshore
Drive, North Little Rock, AR 72118. No
public comments were received during
the public hearing. The public comment
period expired on August 3, 2020, and
no public comments were received
during the public comment period. The
amendments to Regulation 23 further
incorporated changes mandated by Act
of March 5, 2019, No. 315 to change all
references of ‘‘Regulation’’ to ‘‘Rule,’’
and changes in terminology to conform
to the Transformation and Efficiencies
Act of 2019, No. 910, as well as a variety
of non-substantive and minor stylistic
changes in the interest of clarity and
consistency. The Arkansas Hazardous
Waste Management Act of 1979, Ark.
Code Ann. § 8–7–201 et seq., and the
Arkansas Resource Reclamation Act of
1979, Ark. Code Ann. § 8–7–301 et seq.
establish the statutory authority to
administer the Hazardous waste
management program under RCRA
Subtitle C. The official State regulations
may be found in Arkansas Pollution
Control and Ecology Commission Rule
No. 23 (Hazardous Waste Management),
approved on August 27, 2020. The DEQ
has the rules necessary to implement
EPA’s portion of RCRA Clusters XXIV
through RCRA Cluster XXVI. The
provisions for which the State is seeking
authorization are documented on
Revision Checklists 233A, 233B, 233C,
233D2, 233E, 234, 235, 236, 237 238 and
239, which are portions of RCRA
Clusters XXIV through RCRA Cluster
XXVI. Any differences between the
State’s provisions and the Federal
provisions are noted on the individual
Revision Checklists and the Program
Description submitted by the State to
EPA as part of its program revision
application package.
F. What changes is EPA proposing to
authorize with this action?
On March 2, 2021, the State of
Arkansas submitted a final complete
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program revision application, seeking
authorization of their changes in
accordance with 40 CFR 271.21. We
have determined that the DEQ’s
hazardous waste program revision
satisfies all of the requirements
necessary to qualify for final
authorization. We are now proposing to
authorize, subject to receipt of written
comments that oppose this action that
the State of Arkansas hazardous waste
program revisions are equivalent to,
consistent with, and no less stringent
Description of Federal
requirement
(include Checklist No., if
relevant)
than the Federal program, and therefore
satisfy all of the requirements necessary
to qualify for final authorization. The
DEQ revisions consist of regulations
which specifically govern Federal
hazardous waste revisions promulgated
between July 1, 2014 and June 30, 2018
(RCRA Clusters XXIV through RCRA
Cluster XXVI). The Arkansas provisions
are from the Arkansas Pollution Control
and Ecology Commission (APC&EC)
Rule No. 23, Hazardous Waste
Management, as approved on August 27,
Federal Register
date and page
(and/or RCRA statutory
authority)
31235
2020. In the State’s adoption of the
Federal provisions addressed by
Checklist 233B, Arkansas incorrectly
removed and reserved Rule 23 section
261.2(a)(2)(ii) (analogous to 40 CFR
261.2(a)(2)(i)(B)). EPA has notified
Arkansas and the State will correct the
error in their next rulemaking. We
propose to grant Arkansas final
authorization for the program changes
in the Table within this document.
Analogous state authority
RCRA Cluster XXIV
1. Revisions to the Definition of
Solid Waste Changes affecting non-waste determinations
and variances (Checklist
233A).
2. Revisions to the Definition of
Solid Waste—Legitimacy-related provisions. (Checklist
233B).
3. Revisions to the Definition of
Solid Waste—Speculative Accumulation (Checklist 233C).
4. Revisions to the Definition of
Solid Waste—Exclusions and
non-waste determinations.
(Checklist 233D2).
80 FR 1694, January 13, 2015,
as amended on May 30,
2018, 83 FR 24664.
APC&EC Rule No. 23, Sections 260.31(c) introductory paragraph, 260.31(c)(1)–(5), 260.33(c)–
(e), 260.42 introductory paragraph, 260.42(a)(1)–(10), 260.42(b).
80 FR 1694, January 13, 2015,
as amended on May 30,
2018, 83 FR 24664.
APC&EC Rule No. 23, Sections 260.10 ‘‘contained’’, 260.10 ‘‘Hazardous secondary material’’,
260.43(a) introductory paragraph, 260.43(a)(1)–(4), 260.43(b) introductory paragraph,
260.43(b)(1)–(2), 260.43(c), 261.2(b)(3)–(4), 261.2(g).
80 FR 1694–1814, January 13,
2015.
APC&EC Rule No. 23, Sections 261.1(c)(8).
80 FR 1694, January 13, 2015,
as amended on May 30,
2018, 83 FR 24664.
5. Revisions to the Definition of
Solid Waste—Remanufacturing exclusion (Checklist
233E).
6. Response to Vacaturs of the
Comparable Fuels Rule and
the Gasification Rule (Checklist 234).
7. Disposal of Coal Combustion
Residuals from Electric Utilities (Checklist 235).
80 FR 1694, January 13, 2015
APC&EC Rule No. 23, Sections 260.10 ‘‘Facility’’, 260.10 ‘‘Hazardous secondary material generator’’, 260.10 ‘‘Intermediate facility’’, 260.10 ‘‘Land-based unit’’, 260.10 ‘‘Transfer facility’’,
260.30 introductory paragraph, 260.30(b)–(e), 260.30(f) removed, 260.34(a)–(c), 261.1(c)(4),
261.2(c)(3), 261.2(c)(4) Table 1, 261.4(a)(23) introductory paragraph, 261.4(a)(23)(a)(i)(A)–
(C), 261.4(a)(23)(ii)(A)–(F), 261.4(a)(24) introductory paragraph, 261.4(a)(24)(i)–(v)(C)(2),
261.4(a)(24)(v)(C)(3),
261.4(a)(24)(v)(D)–(vii),
261.4(a)(25)
introductory
paragraph,
261.4(a)(25)(i)–(xii), 261 Subsection H, 261 Subsections K–L [Reserved], 261 Subsection M,
270.42 Appendix I, Items A(9) and A(10).
Note: Section 261.4(a)(24)(v)(C)(3) is more stringent.
APC&EC Rule No. 23, Sections 260.10 ‘‘Remanufacturing’’, 261.2(c)(3), 261.2(c)(4) Table 1,
261.4(a)(27) introductory paragraph, 261.4(a)(27)(i)–(vi)(F), 261 Subsections I, J, AA, BB, CC.
80 FR 18777, April 8, 2015 ......
APC&EC Rule No. 23, Sections 260.10 ‘‘Gasification’’ [Removed], 261.4(a)(12)(i), 261.4(a)(16)
[Reserved], 261.38 [Reserved].
80 FR 21302, April 17, 2015 ....
APC&EC Rule No. 23, Sections 261.4(b)(4)(i)–(ii)(H).
RCRA Cluster XXV
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8. Import and Exports of Hazardous Waste (Checklist 236).
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81 FR 85696, November 28,
2016.
82 FR 41015, August 29, 2017
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APC&EC Rule No. 23, Sections 260.10 ‘‘AES filing compliance date’’, 260.10 ‘‘Electronic importexport reporting compliance date’’, 260.10 ‘‘Recognized trader’’, 260.11(g) introductory paragraph, 260.11(g)(1), 260.11(g)(2) [Reserved], 261.4(d)(1), 261.4(d)(4), 261.4(e)(1),
261.4(e)(4), 261.6(a)(3)(i) and 261.6(a)(5), 261.39(a)(5)(ii), 261.39(a)(5)(v) introductory paragraph, 261.39(a)(5)(v)(A)–(B)(2)(vii), 261.39(a)(5)(vi), 261.39(a)(5)(ix), 261.39(a)(5)(xi) 1,
262.10(d), 262.12(d), 262.41(j), 262 Subsections E and F [Reserved], 262 Subsection H 1, Appendix to Section 262 (removed by the final rule addressed by Checklist 237), 263.10(d),
263.20(a)(2), 263.20(c), 263.20(e)(2), 263.20(f)(2) and Note; 263.20(g) introductory paragraph,
263.20(g)(1)–(4)(ii), 264.12(a) introductory paragraph, 264.12(a)(1)–(a)(4)(ii), 264.71(a)(3) introductory paragraph, 264.71(a)(3)(i)–(ii), 264.71(d), 265.12(a) introductory paragraph,
265.12(a)(1)–(a)(4)(ii), 265.71(a)(3) introductory paragraph, 265.71(a)(3)(i)–(ii), 265.71(d),
266.70(b) introductory paragraph, 266.70(b)(1)–(3), 266.80(a) Table, 267.71(a)(4)–(a)(6)(ii),
267.71(d), 273.20, 273.39(a)–(b), 273.40, 273.56, 273.62(a), 273.70 introductory paragraph,
273.70(a)–(c).
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Description of Federal
requirement
(include Checklist No., if relevant)
Federal Register
date and page
(and/or RCRA statutory
authority)
9. Hazardous Waste Generator
Improvements Rule (Checklist
237).
81 FR 86732, November 28,
2016.
Analogous state authority
APC&EC Rule No. 23, Sections 260.10 ‘‘Acute hazardous waste’’, 260.10 ‘‘Central accumulation
area’’, 260.10 ‘‘Large quantity generator’’, 260.10 ‘‘Non-acute hazardous waste’’, 260.10 ‘‘Performance Track member facility’’ [Removed], 260.10 ‘‘Small quantity generator’’, 260.10 ‘‘Very
small quantity generator’’, 260.11(d)(1), 261.1(a)(1), 261.1(c)(6), 261.4(a)(7), 261.5 [Reserved], 261.6(c)(2)(iv), 261.33(e) introductory paragraph, 261.33(f) introductory paragraph,
261.420(g), 262.1 introductory paragraph, 262.1 ‘‘Condition for exemption’’, 262.1 ‘‘Independent requirement’’, 262.10(a) introductory paragraph, 262.10(a)(1)–(3), 262.10(b),
262.10(d), 262.10(g)(1)–(2), 262.10(j) [Reserved], 262.10(l) introductory paragraph,
262.10(l)(1)–(2), 262.11 introductory paragraph, 262.11(a)–(g), 262.12 [Reserved], 262.13
through 262.18(b), 262.18(c), 262.18(d)–(e), 262.19(b)–(d), 262.32(b) introductory paragraph,
262.32(b)(1)–(5), 262.32(c)–(d), 262.34 [Reserved], 262.35, 262.40(c), 262.41 introductory
paragraph, 262.41(j), 262.43, 262.44 [Reserved], Subsections I and J [Reserved], 262.200
‘‘Central accumulation area’’ [Removed], 262.200 ‘‘Trained professional’’, 262.201(a)–(b),
262.202(a)–(b),
262.203(a)–(b)(2),
262.204(a),
262.206(b)(3)(iii),
262.207(d)(2),
262.208(a)(1)–(2), 262.208(d)(2) introductory paragraph, 262.208(d)(2)(i)–(ii), 262.209(b),
262.210(a), 262.210(b)(3), 262.210(d)(2), 262.211(c), 262.211(d), 262.211(e)(3), 262.212(d),
262.213(a)(1)–(3), 262.213(b)(2), 262.214(b)(5), 262.216(a)–(b), 262 Subsection L, 262 Subsection M, 263.12(a)–(b)(2), 264.1(g)(1), 264.1(g)(3), 264.15(b)(4), 264.15(b)(4) Comment
[Removed], 264.71(c), 264.71(c) Comment [Removed], 264.75, 264.170, 264.170 Comment,
264.174, 264.191(a), 264.195(e) [Reserved], 264.1030(b)(2), 264.1050(b)(3), 264.1101(c)(4),
265.1(c)(5), 265.1(c)(7), 265.15(b)(4), 265.15(b)(5) [Removed], 265.71(c), 265.71(c) Comment
[Removed], 265.75, 265.174, 265.174 Comment [Removed], 265.195(d) [Reserved], 265.201
[Reserved], 265.1030(b)(2), 265.1030(b)(3), 265.1050, 265.1101(c)(4), 266.80(a), 266.255(a),
267.71(c), 268.1(e)(1), 268.7(a)(5), 268.50(a)(1), 268.50(a)(i) introductory paragraph,
268.50(a)(2)(i)(A)–(D), 270.1(a)(3), 270.1(c)(2) introductory paragraph, 270.1(c)(2)(i)–(ii),
270.42(l) [Reserved], Item O.1 of 270.42 Appendix I [Reserved], 273.8(a)(2), 273.81(b),
279.10(b)(3).
Note: The following provisions are more stringent: 261.6(c)(2)(iv), 262.18(c), 262.19(b)–(d),
262.41 introductory paragraph, 264.75, 264.191(a) and 265.75.
RCRA Cluster XXVI
10. Confidentiality Determinations for Hazardous Waste
Export and Import Document.
(Checklist 238).
11. Hazardous Waste Electronic
Manifest User Fee Rule.
(Checklist 239).
83 FR 60894, December 26,
2017.
APC&EC Rule No. 23, Sections 260.2(b), 260.2(d)(1)–(2), 261.39(a)(5)(iv), 262.83(b)(5),
262.83(f)(9), 262.84(b)(4), 262.84(f)(8).
83 FR 420, January 3, 2018 .....
APC&EC Rule No. 23, Sections 260.4, 260.5, 262.20(a)(1)–(2), 262.21(f)(5)–(8), 262.24(c) introductory paragraph, 262.24(c)(1)–(2), 262.24(e), 262.24(g) [Reserved], 262.24(h), 262 Appendix [Removed], 263.20(a)(9), 263.21(a) introductory paragraph, 263.21(a)(1)–(4),
263.21(b)(1)–(4), 263.21(c) introductory paragraph, 263.21(c)(1)–(2), 264.71(a)(2) introductory
paragraph, 264.71(a)(2)(i)–(vi), 264.71(k) introductory paragraph, 264.71(k)(1)–(2), 264.71(m)
introductory paragraph, 264.71(m)(1), 264.71(m)(2) introductory paragraph, 264.71(m)(2)(i)–
(iii), 264.71(m)(3), 264.71(m)(3)(i)–(ii), 264.71(m)(4)–(5), 264.1086(c)(4)(i), 264.1086(d)(4)(i),
265.71(a)(2) introductory paragraph, 265.71(a)(2)(i)–(vi), 265.71(k) introductory paragraph,
265.71(k)(1)–(2), 265.71(m) introductory paragraph, 265.71(m)(1), 265.71(m)(2) introductory
paragraph,
265.71(m)(2)(i)–(iii),
265.71(m)(3),
265.71(m)(3)(i)–(ii),
265.71(m)(4)–(5),
265.1087(c)(4)(i), 265.1087(d)(4)(i).
G. Where are the revised State rules
different from the Federal rules?
1. Evaluation and Analysis on When
State Regulations Are More Stringent or
Broader in Scope Than the Federal
Regulations
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Under 40 CFR 271.1(i), EPA allows
states to (1) adopt and enforce
1 Arkansas has not adopted the revisions to 40
CFR 261.39(a)(5)(xi) and 262.82(e)(1) and
262.82(e)(2) which were published on August 6,
2018 (83 FR 38262). EPA made conforming changes
to the EPA office and address to which paper
documents concerning imports and exports of
hazardous waste and conditionally excluded
cathode ray tubes must be sent. The change in
address was needed to reflect the reorganization of
hazardous waste import-export functions on April
29, 2018, from the Office of Federal Activities’
International Compliance Assurance Division, in
EPA’s Office of Enforcement and Compliance
Assurance, to the International Branch within the
Office of Resource Conservation and Recovery’s
Materials Recovery and Waste Management
Division, in EPA’s Office of Land and Emergency
Management. Because of the Federal government’s
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requirements which are more stringent
or more extensive than those required
by the federal RCRA program, and (2)
operate a program with a greater scope
of coverage than that required by the
federal program. To determine whether
particular state provisions are more
stringent or broader in scope, EPA uses
the December 23, 2014, guidance
document: ‘‘Determining Whether State
Hazardous Waste Requirements are
More Stringent (MS) or Broader in
Scope (BIS) than the Federal RCRA
Program.’’ 2 In the guidance document,
EPA uses a two-part test to determine if
state regulations are MS or BIS. The
special role in matters of foreign policy, EPA cannot
authorize States for import/export functions.
However, EPA encourages States to incorporate
these requirements into their regulations for the
convenience of the regulated community and for
completeness.
2 A copy of this guidance is included in the
docket of this proposed rule.
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two-part test requires that the following
questions be answered sequentially:
a. Does imposition of the particular
state requirement increase the size of
the regulated community or universe of
wastes beyond what is covered by the
federal program through either directly
enforceable requirements or certain
conditions for exclusion?
b. Does the particular requirement
under review have a counterpart in the
federal regulatory program?
If the answer to the first part of the
test is yes, then the state requirement is
generally considered broader in scope. If
the answer is no, then EPA uses the
second part of the test to determine
whether the state requirement is more
stringent or broader in scope. If the state
requirement has a counterpart in the
federal program, the state requirement is
classified as more stringent. However, if
the state requirement does not have a
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counterpart, it is classified as broader in
scope.
State provisions that are broader in
scope are not part of the federally
authorized program and thus, are not
federally enforceable.
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2. Arkansas Requirements That Are
Broader in Scope Than the Federal
Program
DEQ has adopted the Revisions to the
Definition of Solid Waste (DSW) Rule
published on January 13, 2015 (80 FR
1694), as amended by the DSW final
rule published on May 30, 2018 (83 FR
24664) (2018 DSW rule). However,
Arkansas has retained certain provisions
from the federal 2015 DSW provisions
that were vacated by the Court of
Appeals for the District of Columbia
Circuit, Am. Petroleum Inst. v. EPA, 862
F.3d 50 (D.C. Cir. 2017) and Am.
Petroleum Inst. v. EPA, 883F.3d 918
(D.C. Cir. 2018), and which have been
removed from the federal regulations by
the 2018 DSW Rule. The Court vacated
certain aspects of the 2015 federal DSW
rule and replaced them with provisions
from the 2008 DSW rule, see 73 FR
64668 (October 30, 2008). Specifically,
the Court (1) vacated the federal 2015
verified recycler exclusion for
hazardous waste that is recycled off-site
(except for certain provisions) (40 CFR
261.4(a)(24)) and the associated
provisions at 40 CFR 260.30(f) and
260.31(d); (2) reinstated the transferbased exclusion at 261.4(a)(24) and (25)
from the 2008 rule to replace the now
vacated 2015 verified recycler
exclusion; (3) vacated Factor 4 of the
2015 definition of legitimate recycling
in its entirety (40 CFR 260.43(a)(4)); and
(4) at 40 CFR 260.43(b), reinstated the
2008 version of Factor 4 at 40 CFR
260.43(c)(2) to replace the now-vacated
2015 version of Factor 4.
In the State’s adoption of the 2018
DSW rule, Arkansas has (1) retained the
2015 verified recycler exclusion by
adopting an analog to 40 CFR 260.31(d),
which addresses a variance from
classifying as a solid waste those
secondary materials that are transferred
for reclamation under 40 CFR
261.4(a)(24); (2) replaced the federal
reference to ‘‘any person’’ in the
introductory paragraph of 40 CFR
261.4(a)(24) with ‘‘verified reclamation
facility’’; and (3) adopted the vacated
Factor 4 of the 2015 definition of
legitimate recycling (260.43(a)(4)), as
well as the 2015 DSW provision at
261.4(a)(23)(ii)(E)) which requires that
documentation of the legitimacy
determination must be a written
description of how the recycling meets
all four factors in § 260.43(a).
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In order to determine whether the
State of Arkansas regulations are more
stringent or broader in scope than the
federal RCRA program, EPA used the
two-part test described in Section G.1.
With respect to the first test, Arkansas
regulates the same size of the regulated
community and the same universe of
hazardous secondary materials as the
federal RCRA program. With respect to
the second test, EPA has determined
that the following State of Arkansas
provisions from the 2015 federal DSW
rule are broader in scope: (1) APC&CE
Rule No. 23 sections 260.31(d) and the
introductory paragraph of 261.4(a)(24)
with respect to the verified recycler
exclusion and (2) APC&CE Rule No. 23
section 260.43(a)(4) and the reference to
the four factors at section
261.4(a)(23)(ii)(E) with respect to Factor
4 definition of legitimate recycling.
Due to the vacatur of certain 2015
federal DSW provisions and the
reinstatement of 2008 federal DSW
provisions, EPA’s regulations do not
include the provisions that were vacated
by the Court 3 Arkansas has adopted
selected vacated provisions, including
the vacated 2015 DSW Factor 4 in the
definition of legitimate recycling of
hazardous secondary material and the
verified recycler exclusion.4 As a result
of the federal vacatur, the Arkansas
provisions at Rule No. 23 sections
260.31(d), 260.43(a)(4), the reference to
‘‘four factors’’ in 261.4(a)(23)(ii)(E) and
the reference to ‘‘verified reclamation
facility’’ in the introductory paragraph
of 261.4(a)(24) have no direct analogs in
the federal regulations. EPA’s December
23, 2014, guidance supports this
conclusion. On page 6 of our December
guidance, EPA provides that, ‘‘. . . if a
state adopts a federal solid or hazardous
waste exclusion, but adds additional
conditions that must be met for the state
exclusion to apply, those additional
conditions would be considered outside
the scope of the federal program and
would not be part of the federally
authorized program, although the entity
would still be subject to federal
enforcement regarding the part of the
state regulations which track the federal
conditions.’’ Arkansas’ program
effectively contains additional
conditions that must be met for the
exclusion to apply. This makes the
State’s additional provisions broader in
scope and not part of the federally
3 EPA issued a final rule referred to as the
Transfer Base Exclusion reflecting the Court’s
ruling, see 83 FR 24664 (May 30, 2018).
4 The Federal Register citation for the ‘‘2015 DSW
rule’’ is 80 FR 1694, January 13, 2015, and for the
‘‘2008 DSW rule’’ is 73 FR 64668, October 30, 2008.
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31237
authorized program, see 40 CFR part
271.1(i)(2).
The DEQ provisions that are broader
in scope than the federal regulations are
not part of the program being proposed
to be authorized by this proposed
action. EPA cannot enforce
requirements that are broader in scope,
although compliance with such
provisions is required by DEQ law. For
the purposes of RCRA section 3009, the
Agency has determined that the broader
in scope provisions are more protective/
stricter, thus being within the State’s
authority to maintain them as part of the
State’s RCRA program. We make this
determination due to the fact that the
broader in scope provisions in DEQ’s
verified recycler exclusion require
additional conditions to be met in order
to qualify for the exclusion when
compared to the reinstated transferbased exclusion found in 83 FR 24664
(May 30, 2018).
3. Arkansas Requirements That Are
More Stringent Than the Federal
Program
The Arkansas hazardous waste
program that is proposed for
authorization contains several
provisions which are more stringent
than the Federal RCRA program. The
more stringent provisions will be
recognized as a part of the Federallyauthorized program and will be
Federally enforceable. The specific more
stringent provisions are noted in the
chart above and in the State’s
authorization application, and include
the following:
1. Arkansas’ Rule No. 23 section
261.4(a)(24)(v)(C)(3) requires the
generator’s certification statement to
include the type and quantity of
hazardous secondary material in a
shipment. The Federal rules do not
require this information to be included
in the generator’s certification
statement.
2. Arkansas is more stringent because
the State requires annual reporting
rather than Federal biennial reporting at
the following citations:
a. Rule No. 23 section 261.6(c)(2)(iv)
requires owners and operators of
facilities that recycle materials without
storing them before they are recycled to
meet the annual reporting requirements
at Rule No. 23 section 265.75, rather
than the federal biennial reporting
requirement at 40 CFR 265.75.
b. The introductory paragraph of Rule
No. 23 section 262.41 requires that
generators submit annual rather than
biennial reports.
c. Rule No. 23 sections 264.75 and
265.75 require that an owner or operator
of treatment, storage or disposal facility
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must submit annual rather than biennial
reports.
3. Rule No. 23 section 264.191(a)
restricts those engineers who can
inspect or certify a tank system’s
integrity to those registered in Arkansas,
and independent from the facility
owner/operator. The Federal
requirements allow registration in any
State.
4. Rule No. 23 section 262.19(b)–(d)
subject very small quantity generators to
additional requirements not found in
the Federal regulations. The additional
requirements include the following:
a. Very small quantity generators must
manifest hazardous waste in accordance
with Rule 23, Section 262 Subsection B
(Manifest Requirements Applicable to
Small and Large Quantity Generators).
(b) Very small quantity generators
must keep hazardous waste containers
closed except when adding or removing
waste.
(c) Very small quantity generators
must keep hazardous waste containers
in good condition. If a hazardous waste
container is not in good condition, or if
it begins to leak, the very small quantity
generator must immediately transfer the
hazardous waste from this container to
a container that is in good condition, or
immediately manage the waste in some
other way that complies with this
requirement.
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4. Arkansas Requirements That Are
Broader in Scope Than the Federal
Program
In Rule 23, section 262.19(a) of the
hazardous waste program that is
proposed for authorization, Arkansas
requires all generators to use a
transporter that is permitted by the
Arkansas Department of Transportation
for the transportation of hazardous
waste. The Arkansas provision is
broader in scope because the Federal
program does include transporter
permits. EPA cannot enforce State
requirements that are broader in scope,
although compliance with such
provisions is required by DEQ law.
H. Who handles permits after the
authorization takes effect?
The State of Arkansas will issue
permits for all the provisions for which
it is authorized and will administer the
permits it issues. The EPA will continue
to administer any RCRA hazardous
waste permits or portions of permits
which we issued prior to the effective
date of this authorization. EPA will not
issue any more new permits or new
portions of permits for the provisions
listed in Table 1 in this document after
the effective date of this authorization.
The EPA will continue to implement
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and issue permits for HSWA
requirements for which Arkansas is not
yet authorized.
I. How does this action affect Indian
Country (18 U.S.C. 1151) in Arkansas?
Arkansas is not authorized to carry
out its Hazardous Waste Program in
Indian Country within the State. This
authority remains with EPA. Therefore,
this action has no effect in Indian
Country.
J. What is codification and is the EPA
codifying Arkansas’ hazardous waste
program as authorized in this rule?
Codification is the process of placing
the State’s statutes and regulations that
comprise the State’s authorized
hazardous waste program into the CFR.
We do this by referencing the
authorized State rules in 40 CFR part
272. We reserve the amendment of 40
CFR part 272, subpart E for this
authorization of Arkansas’ program
changes until a later date. In this
authorization application the EPA is not
codifying the rules documented in this
Federal Register notice.
K. Administrative Requirements
The Office of Management and Budget
(OMB) has exempted this action (RCRA
State Authorization) from the
requirements of Executive Orders 12866
(58 FR 51735, October 4, 1993) and
13563 (76 FR 3821, January 21, 2011).
Therefore, this action is not subject to
review by OMB. This action proposes to
authorize State requirements for the
purpose of RCRA 3006, and imposes no
additional requirements beyond those
imposed by State law. Accordingly, this
action will not have a significant
economic impact on a substantial
number of small entities under the
Regulatory Flexibility Act (5 U.S.C. 601
et seq.). Because this action proposed to
authorize preexisting requirements
under State law and does not impose
any additional enforceable duty beyond
that required by State law, it does not
contain any unfunded mandate or
significantly or uniquely affect small
governments, as described in the
Unfunded Mandates Reform Act of 1995
(Pub. L. 104–4). For the same reason,
this proposed action also does not
significantly or uniquely affect the
communities of Tribal governments, as
specified by Executive Order 13175 (65
FR 67249, November 9, 2000). This
action will not have substantial direct
effects on the States, on the relationship
between the national government and
the States, or on the distribution of
power and responsibilities among the
various levels of government, as
specified in Executive Order 13132 (64
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FR 43255, August 10, 1999), because it
merely proposes to authorize State
requirements as part of the State RCRA
hazardous waste program without
altering the relationship or the
distribution of power and
responsibilities established by RCRA.
This proposed action also is not
subject to Executive Order 13045 (62 FR
19885, April 23, 1997), because it is not
economically significant and it does not
make decisions based on environmental
health or safety risks. This proposed
rule is not subject to Executive Order
13211, ‘‘Actions Concerning Regulations
That Significantly Affect Energy Supply,
Distribution, or Use’’ (66 FR 28355 (May
22, 2001)) because it is not a significant
regulatory action under Executive Order
12866.
Under RCRA 3006(b), the EPA grants
a State’s application for authorization as
long as the State meets the criteria
required by RCRA. It would thus be
inconsistent with applicable law for the
EPA, when it reviews a State
authorization application; to require the
use of any particular voluntary
consensus standard in place of another
standard that otherwise satisfies the
requirements of RCRA. Thus, the
requirements of section 12(d) of the
National Technology Transfer and
Advancement Act of 1995 (15 U.S.C.
272 note) do not apply. As required by
section 3 of Executive Order 12988 (61
FR 4729, February 7, 1996), in issuing
this proposed rule, the EPA has taken
the necessary steps to eliminate drafting
errors and ambiguity, minimize
potential litigation, and provide a clear
legal standard for affected conduct. The
EPA has complied with Executive Order
12630 (53 FR 8859, March 15, 1988) by
examining the takings implications of
the rule in accordance with the
‘‘Attorney General’s Supplemental
Guidelines for the Evaluation of Risk
and Avoidance of Unanticipated
Takings’’ issued under the Executive
Order. This proposed rule does not
impose an information collection
burden under the provisions of the
Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.).
Executive Order 12898 (59 FR 7629,
February 16, 1994) establishes federal
executive policy on environmental
justice. Its main provision directs
federal agencies, to the greatest extent
practicable and permitted by law, to
make environmental justice part of their
mission by identifying and addressing,
as appropriate, disproportionately high
and adverse human health or
environmental effects of their programs,
policies, and activities on minority
populations and low-income
populations in the United States.
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Because this rule proposed to authorize
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 proposed rule is not subject
to Executive Order 12898.
List of Subjects in 40 CFR Parts 271
Environmental protection,
Administrative practice and procedure,
Confidential business information,
Hazardous waste, Hazardous waste
transportation, Indian lands,
Intergovernmental relations, Penalties,
Reporting and recordkeeping
requirements.
Authority: This action is issued under the
authority of sections 2002(a), 3006, and
7004(b) of the Solid Waste Disposal Act as
amended 42 U.S.C. 6912(a), 6926, 6974(b).
Dated: June 4, 2021.
David Gray,
Acting Regional Administrator, Region 6.
[FR Doc. 2021–12238 Filed 6–10–21; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 721 and 725
[EPA–HQ–OPPT–2020–0588; FRL–10022–
56]
RIN 2070–AB27
Significant New Use Rules on Certain
Chemical Substances (21–1.5e)
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
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SUPPLEMENTARY INFORMATION:
EPA is proposing significant
new use rules (SNURs) under the Toxic
Substances Control Act (TSCA) for
chemical substances that were the
subject of premanufacture notices
(PMNs) and a Microbial Commercial
Activity Notice (MCAN), and are also
subject to Orders issued by EPA
pursuant to TSCA. The SNURs require
persons who intend to manufacture
(defined by statute to include import) or
process any of these chemical
substances for an activity that is
proposed as a significant new use by
this rule to notify EPA at least 90 days
before commencing that activity. The
required notification initiates EPA’s
evaluation of the use, under the
conditions of use for that chemical
substance, within the applicable review
period. Persons may not commence
manufacture or processing for the
SUMMARY:
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significant new use until EPA has
conducted a review of the notice, made
an appropriate determination on the
notice, and has taken such actions as are
required by that determination.
DATES: Comments must be received on
or before July 12, 2021.
ADDRESSES: Submit your comments,
identified by docket identification (ID)
number EPA–HQ–OPPT–2020–0588,
through the Federal eRulemaking Portal
at https://www.regulations.gov. Follow
the online instructions for submitting
comments. Do not submit electronically
any information you consider to be
Confidential Business Information (CBI)
or other information whose disclosure is
restricted by statute.
Due to the public health concerns
related to COVID–19, the EPA Docket
Center (EPA/DC) and Reading Room is
closed to visitors with limited
exceptions. The staff continues to
provide remote customer service via
email, phone, and webform. For the
latest status information on EPA/DC
services and docket access, visit https://
www.epa.gov/dockets.
FOR FURTHER INFORMATION CONTACT: For
technical information contact: William
Wysong, New Chemicals Division
(7405M), Office of Pollution Prevention
and Toxics, Environmental Protection
Agency, 1200 Pennsylvania Ave. NW,
Washington, DC 20460–0001; telephone
number: (202) 564–4163; email address:
wysong.william@epa.gov.
For general information contact: The
TSCA-Hotline, ABVI-Goodwill, 422
South Clinton Ave., Rochester, NY
14620; telephone number: (202) 554–
1404; email address: TSCA-Hotline@
epa.gov.
I. General Information
A. Does this action apply to me?
You may be potentially affected by
this action if you manufacture, process,
or use the chemical substances
contained in this proposed rule. The
following list of North American
Industrial Classification System
(NAICS) codes is not intended to be
exhaustive, but rather provides a guide
to help readers determine whether this
document applies to them. Potentially
affected entities may include:
• Manufacturers or processors of one
or more subject chemical substances
(NAICS codes 325 and 324110), e.g.,
chemical manufacturing and petroleum
refineries.
This action may also affect certain
entities through pre-existing import
certification and export notification
rules under TSCA. Chemical importers
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31239
are subject to the TSCA section 13 (15
U.S.C. 2612) import provisions
promulgated at 19 CFR 12.118 through
12.127 and 19 CFR 127.28. Chemical
importers must certify that the shipment
of the chemical substance complies with
all applicable rules and Orders under
TSCA, which would include the SNUR
requirements should these proposed
rules be finalized. The EPA policy in
support of import certification appears
at 40 CFR part 707, subpart B. In
addition, pursuant to 40 CFR 721.20 or
40 CFR 725.920 (for the microorganism),
any persons who export or intend to
export a chemical substance that is the
subject of this proposed rule on or after
July 12, 2021 are subject to the export
notification provisions of TSCA section
12(b) (15 U.S.C. 2611(b)) (see 40 CFR
721.20), and must comply with the
export notification requirements in 40
CFR part 707, subpart D.
B. What should I consider as I prepare
my comments for EPA?
1. Submitting CBI. Do not submit this
information to EPA through
regulations.gov or email. Clearly mark
the part or all of the information that
you claim to be CBI. For CBI
information in a disk or CD–ROM that
you mail to EPA, mark the outside of the
disk or CD–ROM as CBI and then
identify electronically within the disk or
CD–ROM the specific information that
is claimed as CBI. In addition to one
complete version of the comment that
includes information claimed as CBI, a
copy of the comment that does not
contain the information claimed as CBI
must be submitted for inclusion in the
public docket. Information so marked
will not be disclosed except in
accordance with procedures set forth in
40 CFR part 2.
2. Tips for preparing your comments.
When preparing and submitting your
comments, see the commenting tips at
https://www.epa.gov/dockets/
commenting-epa-dockets.
II. Background
A. What action is the Agency taking?
EPA is proposing these SNURs under
TSCA section 5(a)(2) (15 U.S.C.
2604(a)(2)) for chemical substances that
were the subject of PMNs and an
MCAN. These proposed SNURs would
require persons to notify EPA at least 90
days before commencing the
manufacture or processing of any of
these chemical substances for an
activity proposed as a significant new
use. Receipt of such notices would
allow EPA to assess risks and, if
appropriate, to regulate the significant
new use before it may occur.
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]]>Agencies
[Federal Register Volume 86, Number 111 (Friday, June 11, 2021)]
[Proposed Rules]
[Pages 31233-31239]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-12238]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 271
[EPA-R06-RCRA-2021-0073; FRL-10021-64-Region 6]
Arkansas: Authorization of State Hazardous Waste Management
Program Revision
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The State of Arkansas Division of Environmental Quality (DEQ)
has applied to the Environmental Protection Agency (EPA) for final
authorization of the changes to its hazardous waste program under the
Resource Conservation and Recovery Act (RCRA). The EPA has reviewed
Arkansas' application and has determined that these changes appear to
satisfy all requirements needed to qualify for final authorization and
is proposing to authorize the State's changes. The EPA is seeking
public comment prior to taking final action.
DATES: Comments on this proposed rule must be received by July 12,
2021.
ADDRESSES: Submit your comments by one of the following methods:
Federal eRulemaking Portal: https://www.regulations.gov.
Follow the on-line instructions for submitting comments.
Email: [email protected].
Instructions: EPA must receive your comments by July 12, 2021.
Direct your comments to Docket ID Number EPA-R06-RCRA-2021-0073. The
EPA's policy is that all comments received will be included in the
public docket without change and may be made available online at
https://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI), or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through https://www.regulations.gov, or email. The Federal regulations.gov website is
an ``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an email comment directly to EPA without
going through regulations.gov, your email address will be automatically
captured and included as part of the comment that is placed in the
public docket and made available on the internet. If you submit an
electronic comment, EPA recommends that you include your name and other
contact information in the body of your comment with any CD you submit.
If EPA cannot read your comment due to technical difficulties and
cannot contact you for clarification, EPA may not be able to consider
your comment. Electronic files should avoid the use of special
characters, any form of encryption and be free of any defects or
viruses.
Docket: The index to the docket for this action is available
electronically at www.regulations.gov. Although listed in the index,
some information is not publicly available, e.g., CBI or other
information whose disclosure is restricted by statute. Certain other
material, such as copyrighted material, will be publicly available only
in hard copy.
You can view and copy Arkansas's application and associated
publicly available docket materials either through www.regulations.gov
at the following locations: Division of Environmental Quality, 5301
Northshore Drive, North Little Rock, Arkansas, 72118 telephone: (501)
682-0744 and EPA, Region 6, 1201 Elm Street, Suite 500, Dallas, Texas
75270. The EPA facility is open from 8:30 a.m. to 4:30 p.m., Monday
through Friday, excluding Federal holidays and facility closures due to
COVID-19. We recommend that you telephone Alima Patterson, Regional
Authorization/Codification Coordinator at (214) 665-8533, before
visiting the Region 6 office. Interested persons wanting to examine
these documents should make an appointment with the office.
FOR FURTHER INFORMATION CONTACT: Alima Patterson, (214) 665-8533,
[email protected]. Out of an abundance of caution for members of
the public and our staff, the EPA Region 6 office will be closed to the
public to reduce the risk of transmitting COVID-19. We encourage the
public to submit comments via https://www.regulations.gov, as there
will be a delay in processing mail and no courier or hand deliveries
will be accepted. Please call or email the contact listed above if you
need alternative access to material indexed but not provided in the
docket.
SUPPLEMENTARY INFORMATION:
A. Why are revisions to State programs necessary?
States which have received final authorization from the EPA under
RCRA section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous
waste program that is equivalent to, consistent with, and no less
stringent than the Federal program. As the Federal program changes,
States must change their programs and ask the EPA to authorize the
changes. Changes to State programs may be necessary when Federal or
State statutory or regulatory authority is modified or when certain
other changes occur. Most commonly, States must change their programs
because of changes to the EPA's regulations in 40 Code of Federal
Regulations (CFR) parts 124, 260 through 268, 270, 273, and 279.
B. What decisions have EPA made in this rule?
On March 2, 2021, the State of Arkansas submitted a final complete
program revision application seeking authorization of changes to its
hazardous waste program that correspond to certain Federal rules
promulgated between July 1, 2014 and June 30, 2018, which includes RCRA
Clusters XXIV through and RCRA Cluster XXVI (Checklists 233A, 233B,
233C, 233D2, 233E, 234, 235, 236, 237, 238 and 239). The EPA has
reviewed Arkansas' application to revise its authorized program and is
proposing to find that it meets all of the statutory and regulatory
requirements established by RCRA. Therefore, we propose to grant the
State of Arkansas final authorization to operate its hazardous waste
program with the changes described in the authorization application.
The State Arkansas will continue to have responsibility for
permitting
[[Page 31234]]
treatment, storage and disposal facilities (TSDFs) within its borders
(except in Indian Country), and for carrying out the aspects of the
RCRA program described in its revised program application, subject to
the limitations of the Hazardous and Solid Waste Amendments of 1984
(HSWA). New Federal requirements and prohibitions imposed by Federal
regulations that EPA promulgates under the authority of HSWA take
effect in authorized States before they are authorized for the
requirements. Thus, the EPA will implement those requirements and
prohibitions in the State of Arkansas, including issuing permits, until
the State is granted authorization to do so.
C. What is the effect of this proposed authorization decision?
If the State of Arkansas is authorized for these changes, a
facility in Arkansas subject to RCRA will now have to comply with the
authorized State requirements instead of the equivalent Federal
requirements in order to comply with RCRA. Additionally, such
facilities will have to comply with any applicable Federal requirements
such as, for example, HSWA regulations issued by the EPA for which the
State has not received authorization. The State of Arkansas will
continue to have enforcement responsibilities under its State hazardous
waste program for violations of such program, but the EPA retains its
authority under RCRA sections 3007, 3008, 3013 and 7003, which include,
among others, authority to:
Conduct inspections and require monitoring, tests,
analyses, or reports;
enforce RCRA requirements and suspend or revoke permits,
and
take enforcement actions after notice to and consultation
with the State.
The action to approve these provisions would not impose additional
requirements on the regulated community because the regulations for
which the State of Arkansas is requesting authorization are already
effective under State law and are not changed by the act of
authorization.
D. What happens if the EPA receives comments on this action?
If the EPA receives comments on this proposed action, we will
address those comments in our final action. You may not have another
opportunity to comment. If you wish to comment on this proposed
authorization, you must do so at this time.
E. What has Arkansas previously been authorized?
Arkansas initially received final authorization on January 11,
1985, effective January 25, 1985 (50 FR 1513), to implement its Base
Hazardous Waste Management program. We granted authorization for
changes to their program on August 23, 1985, via EPA letter, effective
August 23, 1985; March 27, 1990 (55 FR 11192), effective May 29, 1990;
September 18, 1991 (56 FR 47153), effective November 18, 1991; October
5, 1992 (57 FR 45721), effective December 4, 1992; October 12, 1993 (58
FR 52674), effective December 13, 1993; October 7, 1994 (59 FR 51115),
effective December 21, 1994; June 20, 1995 (60 FR 32112), effective
August 21, 1995; April 24, 2002 (67 FR 20038), effective June 24, 2002,
as amended June 28, 2010 (75 FR 36538); August 15, 2007 (72 FR 45663),
effective October 15, 2007, as amended June 28, 2010 (75 FR 36538);
June 28, 2010 (75 FR 36538), effective August 27, 2010; August 10, 2012
(77 FR 47779), effective October 9, 2012; October 2, 2014 (79 FR
59438), effective December 1, 2014; October 31, 2014 (79 FR 64678),
effective December 30, 2014; January 29, 2016 (81 FR 4961), effective
March 29, 2016; August 11, 2016 (81 FR 53025), effective October 11,
2016; and September 14, 2017 (82 FR 43185), effective November 13,
2017.
The authorized Arkansas RCRA program was incorporated by reference
into the Code of Federal Regulations October 12, 1993 (58 FR 52674)
effective December 13, 1993; June 20, 1995 (60 FR 32112) effective
August 21, 1995; June 28, 2010 (75 FR 36538) effective August 27, 2010;
October 2, 2014 (79 FR 59438) effective December 1, 2014; January 29,
2016 (81 FR 4961) effective March 29, 2016; August 11, 2016 (81 FR
53025) effective October 11, 2016; and September 14, 2017 (82 FR
43185), effective November 13, 2017.
On March 2, 2021, Arkansas submitted a final complete program
revision application seeking authorization of its program revision in
accordance with 40 CFR 271.21. The State of Arkansas has undergone a
state agency reorganization that has placed the Arkansas Department of
Environmental Quality in the Arkansas Department of Energy and
Environment and is now the Arkansas Division of Environmental Quality
(DEQ). The Arkansas Division of Environmental Quality is now the agency
responsible for administering all solid and hazardous waste regulations
for the State of Arkansas. The Arkansas Pollution Control and Ecology
Commission (APC&EC) is vested with general authority to make and amend
rules in Ark. Code Ann. Sec. 8-01-203(b)(l)(A), and is vested with
specific authority to make and amend rules with regard to hazardous
waste management in Ark. Code Ann. Sec. 8-7-209(b)(l).
On May 28, 2020, the APC&EC passed Minute Order No. 20-14 to
initiate Rulemaking for amendments to Regulation 23, Hazardous Waste
Management in order to adopt Federal regulations promulgated between
through May 30, 2018. On June 6 and 7, 2020, the notice of the proposed
regulation changes, public hearing, and public comment period was
published in the Arkansas Democrat-Gazette. On July 20, 2020, at 2:00
p.m., the APC&EC held a public hearing regarding the proposed changes
at 5301 Northshore Drive, North Little Rock, AR 72118. No public
comments were received during the public hearing. The public comment
period expired on August 3, 2020, and no public comments were received
during the public comment period. The amendments to Regulation 23
further incorporated changes mandated by Act of March 5, 2019, No. 315
to change all references of ``Regulation'' to ``Rule,'' and changes in
terminology to conform to the Transformation and Efficiencies Act of
2019, No. 910, as well as a variety of non-substantive and minor
stylistic changes in the interest of clarity and consistency. The
Arkansas Hazardous Waste Management Act of 1979, Ark. Code Ann. Sec.
8-7-201 et seq., and the Arkansas Resource Reclamation Act of 1979,
Ark. Code Ann. Sec. 8-7-301 et seq. establish the statutory authority
to administer the Hazardous waste management program under RCRA
Subtitle C. The official State regulations may be found in Arkansas
Pollution Control and Ecology Commission Rule No. 23 (Hazardous Waste
Management), approved on August 27, 2020. The DEQ has the rules
necessary to implement EPA's portion of RCRA Clusters XXIV through RCRA
Cluster XXVI. The provisions for which the State is seeking
authorization are documented on Revision Checklists 233A, 233B, 233C,
233D2, 233E, 234, 235, 236, 237 238 and 239, which are portions of RCRA
Clusters XXIV through RCRA Cluster XXVI. Any differences between the
State's provisions and the Federal provisions are noted on the
individual Revision Checklists and the Program Description submitted by
the State to EPA as part of its program revision application package.
F. What changes is EPA proposing to authorize with this action?
On March 2, 2021, the State of Arkansas submitted a final complete
[[Page 31235]]
program revision application, seeking authorization of their changes in
accordance with 40 CFR 271.21. We have determined that the DEQ's
hazardous waste program revision satisfies all of the requirements
necessary to qualify for final authorization. We are now proposing to
authorize, subject to receipt of written comments that oppose this
action that the State of Arkansas hazardous waste program revisions are
equivalent to, consistent with, and no less stringent than the Federal
program, and therefore satisfy all of the requirements necessary to
qualify for final authorization. The DEQ revisions consist of
regulations which specifically govern Federal hazardous waste revisions
promulgated between July 1, 2014 and June 30, 2018 (RCRA Clusters XXIV
through RCRA Cluster XXVI). The Arkansas provisions are from the
Arkansas Pollution Control and Ecology Commission (APC&EC) Rule No. 23,
Hazardous Waste Management, as approved on August 27, 2020. In the
State's adoption of the Federal provisions addressed by Checklist 233B,
Arkansas incorrectly removed and reserved Rule 23 section
261.2(a)(2)(ii) (analogous to 40 CFR 261.2(a)(2)(i)(B)). EPA has
notified Arkansas and the State will correct the error in their next
rulemaking. We propose to grant Arkansas final authorization for the
program changes in the Table within this document.
----------------------------------------------------------------------------------------------------------------
Federal Register date and
Description of Federal requirement page (and/or RCRA statutory Analogous state authority
(include Checklist No., if relevant) authority)
----------------------------------------------------------------------------------------------------------------
RCRA Cluster XXIV
----------------------------------------------------------------------------------------------------------------
1. Revisions to the Definition of Solid 80 FR 1694, January 13, APC&EC Rule No. 23, Sections 260.31(c)
Waste Changes affecting non-waste 2015, as amended on May introductory paragraph, 260.31(c)(1)-
determinations and variances (Checklist 30, 2018, 83 FR 24664. (5), 260.33(c)-(e), 260.42 introductory
233A). paragraph, 260.42(a)(1)-(10), 260.42(b).
2. Revisions to the Definition of Solid 80 FR 1694, January 13, APC&EC Rule No. 23, Sections 260.10
Waste--Legitimacy-related provisions. 2015, as amended on May ``contained'', 260.10 ``Hazardous
(Checklist 233B). 30, 2018, 83 FR 24664. secondary material'', 260.43(a)
introductory paragraph, 260.43(a)(1)-
(4), 260.43(b) introductory paragraph,
260.43(b)(1)-(2), 260.43(c), 261.2(b)(3)-
(4), 261.2(g).
3. Revisions to the Definition of Solid 80 FR 1694-1814, January APC&EC Rule No. 23, Sections 261.1(c)(8).
Waste--Speculative Accumulation 13, 2015.
(Checklist 233C).
4. Revisions to the Definition of Solid 80 FR 1694, January 13, APC&EC Rule No. 23, Sections 260.10
Waste--Exclusions and non-waste 2015, as amended on May ``Facility'', 260.10 ``Hazardous
determinations. (Checklist 233D2). 30, 2018, 83 FR 24664. secondary material generator'', 260.10
``Intermediate facility'', 260.10 ``Land-
based unit'', 260.10 ``Transfer
facility'', 260.30 introductory
paragraph, 260.30(b)-(e), 260.30(f)
removed, 260.34(a)-(c), 261.1(c)(4),
261.2(c)(3), 261.2(c)(4) Table 1,
261.4(a)(23) introductory paragraph,
261.4(a)(23)(a)(i)(A)-(C),
261.4(a)(23)(ii)(A)-(F), 261.4(a)(24)
introductory paragraph, 261.4(a)(24)(i)-
(v)(C)(2), 261.4(a)(24)(v)(C)(3),
261.4(a)(24)(v)(D)-(vii), 261.4(a)(25)
introductory paragraph, 261.4(a)(25)(i)-
(xii), 261 Subsection H, 261 Subsections
K-L [Reserved], 261 Subsection M, 270.42
Appendix I, Items A(9) and A(10).
Note: Section 261.4(a)(24)(v)(C)(3) is
more stringent.
5. Revisions to the Definition of Solid 80 FR 1694, January 13, APC&EC Rule No. 23, Sections 260.10
Waste--Remanufacturing exclusion 2015. ``Remanufacturing'', 261.2(c)(3),
(Checklist 233E). 261.2(c)(4) Table 1, 261.4(a)(27)
introductory paragraph, 261.4(a)(27)(i)-
(vi)(F), 261 Subsections I, J, AA, BB,
CC.
6. Response to Vacaturs of the 80 FR 18777, April 8, 2015. APC&EC Rule No. 23, Sections 260.10
Comparable Fuels Rule and the ``Gasification'' [Removed],
Gasification Rule (Checklist 234). 261.4(a)(12)(i), 261.4(a)(16)
[Reserved], 261.38 [Reserved].
7. Disposal of Coal Combustion Residuals 80 FR 21302, April 17, 2015 APC&EC Rule No. 23, Sections
from Electric Utilities (Checklist 235). 261.4(b)(4)(i)-(ii)(H).
----------------------------------------------------------------------------------------------------------------
RCRA Cluster XXV
----------------------------------------------------------------------------------------------------------------
8. Import and Exports of Hazardous Waste 81 FR 85696, November 28, APC&EC Rule No. 23, Sections 260.10 ``AES
(Checklist 236). 2016. filing compliance date'', 260.10
82 FR 41015, August 29, ``Electronic import-export reporting
2017. compliance date'', 260.10 ``Recognized
trader'', 260.11(g) introductory
paragraph, 260.11(g)(1), 260.11(g)(2)
[Reserved], 261.4(d)(1), 261.4(d)(4),
261.4(e)(1), 261.4(e)(4), 261.6(a)(3)(i)
and 261.6(a)(5), 261.39(a)(5)(ii),
261.39(a)(5)(v) introductory paragraph,
261.39(a)(5)(v)(A)-(B)(2)(vii),
261.39(a)(5)(vi), 261.39(a)(5)(ix),
261.39(a)(5)(xi) \1\, 262.10(d),
262.12(d), 262.41(j), 262 Subsections E
and F [Reserved], 262 Subsection H \1\,
Appendix to Section 262 (removed by the
final rule addressed by Checklist 237),
263.10(d), 263.20(a)(2), 263.20(c),
263.20(e)(2), 263.20(f)(2) and Note;
263.20(g) introductory paragraph,
263.20(g)(1)-(4)(ii), 264.12(a)
introductory paragraph, 264.12(a)(1)-
(a)(4)(ii), 264.71(a)(3) introductory
paragraph, 264.71(a)(3)(i)-(ii),
264.71(d), 265.12(a) introductory
paragraph, 265.12(a)(1)-(a)(4)(ii),
265.71(a)(3) introductory paragraph,
265.71(a)(3)(i)-(ii), 265.71(d),
266.70(b) introductory paragraph,
266.70(b)(1)-(3), 266.80(a) Table,
267.71(a)(4)-(a)(6)(ii), 267.71(d),
273.20, 273.39(a)-(b), 273.40, 273.56,
273.62(a), 273.70 introductory
paragraph, 273.70(a)-(c).
[[Page 31236]]
9. Hazardous Waste Generator 81 FR 86732, November 28, APC&EC Rule No. 23, Sections 260.10
Improvements Rule (Checklist 237). 2016. ``Acute hazardous waste'', 260.10
``Central accumulation area'', 260.10
``Large quantity generator'', 260.10
``Non-acute hazardous waste'', 260.10
``Performance Track member facility''
[Removed], 260.10 ``Small quantity
generator'', 260.10 ``Very small
quantity generator'', 260.11(d)(1),
261.1(a)(1), 261.1(c)(6), 261.4(a)(7),
261.5 [Reserved], 261.6(c)(2)(iv),
261.33(e) introductory paragraph,
261.33(f) introductory paragraph,
261.420(g), 262.1 introductory
paragraph, 262.1 ``Condition for
exemption'', 262.1 ``Independent
requirement'', 262.10(a) introductory
paragraph, 262.10(a)(1)-(3), 262.10(b),
262.10(d), 262.10(g)(1)-(2), 262.10(j)
[Reserved], 262.10(l) introductory
paragraph, 262.10(l)(1)-(2), 262.11
introductory paragraph, 262.11(a)-(g),
262.12 [Reserved], 262.13 through
262.18(b), 262.18(c), 262.18(d)-(e),
262.19(b)-(d), 262.32(b) introductory
paragraph, 262.32(b)(1)-(5), 262.32(c)-
(d), 262.34 [Reserved], 262.35,
262.40(c), 262.41 introductory
paragraph, 262.41(j), 262.43, 262.44
[Reserved], Subsections I and J
[Reserved], 262.200 ``Central
accumulation area'' [Removed], 262.200
``Trained professional'', 262.201(a)-
(b), 262.202(a)-(b), 262.203(a)-(b)(2),
262.204(a), 262.206(b)(3)(iii),
262.207(d)(2), 262.208(a)(1)-(2),
262.208(d)(2) introductory paragraph,
262.208(d)(2)(i)-(ii), 262.209(b),
262.210(a), 262.210(b)(3),
262.210(d)(2), 262.211(c), 262.211(d),
262.211(e)(3), 262.212(d), 262.213(a)(1)-
(3), 262.213(b)(2), 262.214(b)(5),
262.216(a)-(b), 262 Subsection L, 262
Subsection M, 263.12(a)-(b)(2),
264.1(g)(1), 264.1(g)(3), 264.15(b)(4),
264.15(b)(4) Comment [Removed],
264.71(c), 264.71(c) Comment [Removed],
264.75, 264.170, 264.170 Comment,
264.174, 264.191(a), 264.195(e)
[Reserved], 264.1030(b)(2),
264.1050(b)(3), 264.1101(c)(4),
265.1(c)(5), 265.1(c)(7), 265.15(b)(4),
265.15(b)(5) [Removed], 265.71(c),
265.71(c) Comment [Removed], 265.75,
265.174, 265.174 Comment [Removed],
265.195(d) [Reserved], 265.201
[Reserved], 265.1030(b)(2),
265.1030(b)(3), 265.1050,
265.1101(c)(4), 266.80(a), 266.255(a),
267.71(c), 268.1(e)(1), 268.7(a)(5),
268.50(a)(1), 268.50(a)(i) introductory
paragraph, 268.50(a)(2)(i)(A)-(D),
270.1(a)(3), 270.1(c)(2) introductory
paragraph, 270.1(c)(2)(i)-(ii),
270.42(l) [Reserved], Item O.1 of 270.42
Appendix I [Reserved], 273.8(a)(2),
273.81(b), 279.10(b)(3).
Note: The following provisions are more
stringent: 261.6(c)(2)(iv), 262.18(c),
262.19(b)-(d), 262.41 introductory
paragraph, 264.75, 264.191(a) and
265.75.
----------------------------------------------------------------------------------------------------------------
RCRA Cluster XXVI
----------------------------------------------------------------------------------------------------------------
10. Confidentiality Determinations for 83 FR 60894, December 26, APC&EC Rule No. 23, Sections 260.2(b),
Hazardous Waste Export and Import 2017. 260.2(d)(1)-(2), 261.39(a)(5)(iv),
Document. (Checklist 238). 262.83(b)(5), 262.83(f)(9),
262.84(b)(4), 262.84(f)(8).
11. Hazardous Waste Electronic Manifest 83 FR 420, January 3, 2018. APC&EC Rule No. 23, Sections 260.4,
User Fee Rule. (Checklist 239). 260.5, 262.20(a)(1)-(2), 262.21(f)(5)-
(8), 262.24(c) introductory paragraph,
262.24(c)(1)-(2), 262.24(e), 262.24(g)
[Reserved], 262.24(h), 262 Appendix
[Removed], 263.20(a)(9), 263.21(a)
introductory paragraph, 263.21(a)(1)-
(4), 263.21(b)(1)-(4), 263.21(c)
introductory paragraph, 263.21(c)(1)-
(2), 264.71(a)(2) introductory
paragraph, 264.71(a)(2)(i)-(vi),
264.71(k) introductory paragraph,
264.71(k)(1)-(2), 264.71(m) introductory
paragraph, 264.71(m)(1), 264.71(m)(2)
introductory paragraph, 264.71(m)(2)(i)-
(iii), 264.71(m)(3), 264.71(m)(3)(i)-
(ii), 264.71(m)(4)-(5),
264.1086(c)(4)(i), 264.1086(d)(4)(i),
265.71(a)(2) introductory paragraph,
265.71(a)(2)(i)-(vi), 265.71(k)
introductory paragraph, 265.71(k)(1)-
(2), 265.71(m) introductory paragraph,
265.71(m)(1), 265.71(m)(2) introductory
paragraph, 265.71(m)(2)(i)-(iii),
265.71(m)(3), 265.71(m)(3)(i)-(ii),
265.71(m)(4)-(5), 265.1087(c)(4)(i),
265.1087(d)(4)(i).
----------------------------------------------------------------------------------------------------------------
G. Where are the revised State rules different from the Federal rules?
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\1\ Arkansas has not adopted the revisions to 40 CFR
261.39(a)(5)(xi) and 262.82(e)(1) and 262.82(e)(2) which were
published on August 6, 2018 (83 FR 38262). EPA made conforming
changes to the EPA office and address to which paper documents
concerning imports and exports of hazardous waste and conditionally
excluded cathode ray tubes must be sent. The change in address was
needed to reflect the reorganization of hazardous waste import-
export functions on April 29, 2018, from the Office of Federal
Activities' International Compliance Assurance Division, in EPA's
Office of Enforcement and Compliance Assurance, to the International
Branch within the Office of Resource Conservation and Recovery's
Materials Recovery and Waste Management Division, in EPA's Office of
Land and Emergency Management. Because of the Federal government's
special role in matters of foreign policy, EPA cannot authorize
States for import/export functions. However, EPA encourages States
to incorporate these requirements into their regulations for the
convenience of the regulated community and for completeness.
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1. Evaluation and Analysis on When State Regulations Are More Stringent
or Broader in Scope Than the Federal Regulations
Under 40 CFR 271.1(i), EPA allows states to (1) adopt and enforce
requirements which are more stringent or more extensive than those
required by the federal RCRA program, and (2) operate a program with a
greater scope of coverage than that required by the federal program. To
determine whether particular state provisions are more stringent or
broader in scope, EPA uses the December 23, 2014, guidance document:
``Determining Whether State Hazardous Waste Requirements are More
Stringent (MS) or Broader in Scope (BIS) than the Federal RCRA
Program.'' \2\ In the guidance document, EPA uses a two-part test to
determine if state regulations are MS or BIS. The two-part test
requires that the following questions be answered sequentially:
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\2\ A copy of this guidance is included in the docket of this
proposed rule.
---------------------------------------------------------------------------
a. Does imposition of the particular state requirement increase the
size of the regulated community or universe of wastes beyond what is
covered by the federal program through either directly enforceable
requirements or certain conditions for exclusion?
b. Does the particular requirement under review have a counterpart
in the federal regulatory program?
If the answer to the first part of the test is yes, then the state
requirement is generally considered broader in scope. If the answer is
no, then EPA uses the second part of the test to determine whether the
state requirement is more stringent or broader in scope. If the state
requirement has a counterpart in the federal program, the state
requirement is classified as more stringent. However, if the state
requirement does not have a
[[Page 31237]]
counterpart, it is classified as broader in scope.
State provisions that are broader in scope are not part of the
federally authorized program and thus, are not federally enforceable.
2. Arkansas Requirements That Are Broader in Scope Than the Federal
Program
DEQ has adopted the Revisions to the Definition of Solid Waste
(DSW) Rule published on January 13, 2015 (80 FR 1694), as amended by
the DSW final rule published on May 30, 2018 (83 FR 24664) (2018 DSW
rule). However, Arkansas has retained certain provisions from the
federal 2015 DSW provisions that were vacated by the Court of Appeals
for the District of Columbia Circuit, Am. Petroleum Inst. v. EPA, 862
F.3d 50 (D.C. Cir. 2017) and Am. Petroleum Inst. v. EPA, 883F.3d 918
(D.C. Cir. 2018), and which have been removed from the federal
regulations by the 2018 DSW Rule. The Court vacated certain aspects of
the 2015 federal DSW rule and replaced them with provisions from the
2008 DSW rule, see 73 FR 64668 (October 30, 2008). Specifically, the
Court (1) vacated the federal 2015 verified recycler exclusion for
hazardous waste that is recycled off-site (except for certain
provisions) (40 CFR 261.4(a)(24)) and the associated provisions at 40
CFR 260.30(f) and 260.31(d); (2) reinstated the transfer-based
exclusion at 261.4(a)(24) and (25) from the 2008 rule to replace the
now vacated 2015 verified recycler exclusion; (3) vacated Factor 4 of
the 2015 definition of legitimate recycling in its entirety (40 CFR
260.43(a)(4)); and (4) at 40 CFR 260.43(b), reinstated the 2008 version
of Factor 4 at 40 CFR 260.43(c)(2) to replace the now-vacated 2015
version of Factor 4.
In the State's adoption of the 2018 DSW rule, Arkansas has (1)
retained the 2015 verified recycler exclusion by adopting an analog to
40 CFR 260.31(d), which addresses a variance from classifying as a
solid waste those secondary materials that are transferred for
reclamation under 40 CFR 261.4(a)(24); (2) replaced the federal
reference to ``any person'' in the introductory paragraph of 40 CFR
261.4(a)(24) with ``verified reclamation facility''; and (3) adopted
the vacated Factor 4 of the 2015 definition of legitimate recycling
(260.43(a)(4)), as well as the 2015 DSW provision at
261.4(a)(23)(ii)(E)) which requires that documentation of the
legitimacy determination must be a written description of how the
recycling meets all four factors in Sec. 260.43(a).
In order to determine whether the State of Arkansas regulations are
more stringent or broader in scope than the federal RCRA program, EPA
used the two-part test described in Section G.1. With respect to the
first test, Arkansas regulates the same size of the regulated community
and the same universe of hazardous secondary materials as the federal
RCRA program. With respect to the second test, EPA has determined that
the following State of Arkansas provisions from the 2015 federal DSW
rule are broader in scope: (1) APC&CE Rule No. 23 sections 260.31(d)
and the introductory paragraph of 261.4(a)(24) with respect to the
verified recycler exclusion and (2) APC&CE Rule No. 23 section
260.43(a)(4) and the reference to the four factors at section
261.4(a)(23)(ii)(E) with respect to Factor 4 definition of legitimate
recycling.
Due to the vacatur of certain 2015 federal DSW provisions and the
reinstatement of 2008 federal DSW provisions, EPA's regulations do not
include the provisions that were vacated by the Court \3\ Arkansas has
adopted selected vacated provisions, including the vacated 2015 DSW
Factor 4 in the definition of legitimate recycling of hazardous
secondary material and the verified recycler exclusion.\4\ As a result
of the federal vacatur, the Arkansas provisions at Rule No. 23 sections
260.31(d), 260.43(a)(4), the reference to ``four factors'' in
261.4(a)(23)(ii)(E) and the reference to ``verified reclamation
facility'' in the introductory paragraph of 261.4(a)(24) have no direct
analogs in the federal regulations. EPA's December 23, 2014, guidance
supports this conclusion. On page 6 of our December guidance, EPA
provides that, ``. . . if a state adopts a federal solid or hazardous
waste exclusion, but adds additional conditions that must be met for
the state exclusion to apply, those additional conditions would be
considered outside the scope of the federal program and would not be
part of the federally authorized program, although the entity would
still be subject to federal enforcement regarding the part of the state
regulations which track the federal conditions.'' Arkansas' program
effectively contains additional conditions that must be met for the
exclusion to apply. This makes the State's additional provisions
broader in scope and not part of the federally authorized program, see
40 CFR part 271.1(i)(2).
---------------------------------------------------------------------------
\3\ EPA issued a final rule referred to as the Transfer Base
Exclusion reflecting the Court's ruling, see 83 FR 24664 (May 30,
2018).
\4\ The Federal Register citation for the ``2015 DSW rule'' is
80 FR 1694, January 13, 2015, and for the ``2008 DSW rule'' is 73 FR
64668, October 30, 2008.
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The DEQ provisions that are broader in scope than the federal
regulations are not part of the program being proposed to be authorized
by this proposed action. EPA cannot enforce requirements that are
broader in scope, although compliance with such provisions is required
by DEQ law. For the purposes of RCRA section 3009, the Agency has
determined that the broader in scope provisions are more protective/
stricter, thus being within the State's authority to maintain them as
part of the State's RCRA program. We make this determination due to the
fact that the broader in scope provisions in DEQ's verified recycler
exclusion require additional conditions to be met in order to qualify
for the exclusion when compared to the reinstated transfer-based
exclusion found in 83 FR 24664 (May 30, 2018).
3. Arkansas Requirements That Are More Stringent Than the Federal
Program
The Arkansas hazardous waste program that is proposed for
authorization contains several provisions which are more stringent than
the Federal RCRA program. The more stringent provisions will be
recognized as a part of the Federally-authorized program and will be
Federally enforceable. The specific more stringent provisions are noted
in the chart above and in the State's authorization application, and
include the following:
1. Arkansas' Rule No. 23 section 261.4(a)(24)(v)(C)(3) requires the
generator's certification statement to include the type and quantity of
hazardous secondary material in a shipment. The Federal rules do not
require this information to be included in the generator's
certification statement.
2. Arkansas is more stringent because the State requires annual
reporting rather than Federal biennial reporting at the following
citations:
a. Rule No. 23 section 261.6(c)(2)(iv) requires owners and
operators of facilities that recycle materials without storing them
before they are recycled to meet the annual reporting requirements at
Rule No. 23 section 265.75, rather than the federal biennial reporting
requirement at 40 CFR 265.75.
b. The introductory paragraph of Rule No. 23 section 262.41
requires that generators submit annual rather than biennial reports.
c. Rule No. 23 sections 264.75 and 265.75 require that an owner or
operator of treatment, storage or disposal facility
[[Page 31238]]
must submit annual rather than biennial reports.
3. Rule No. 23 section 264.191(a) restricts those engineers who can
inspect or certify a tank system's integrity to those registered in
Arkansas, and independent from the facility owner/operator. The Federal
requirements allow registration in any State.
4. Rule No. 23 section 262.19(b)-(d) subject very small quantity
generators to additional requirements not found in the Federal
regulations. The additional requirements include the following:
a. Very small quantity generators must manifest hazardous waste in
accordance with Rule 23, Section 262 Subsection B (Manifest
Requirements Applicable to Small and Large Quantity Generators).
(b) Very small quantity generators must keep hazardous waste
containers closed except when adding or removing waste.
(c) Very small quantity generators must keep hazardous waste
containers in good condition. If a hazardous waste container is not in
good condition, or if it begins to leak, the very small quantity
generator must immediately transfer the hazardous waste from this
container to a container that is in good condition, or immediately
manage the waste in some other way that complies with this requirement.
4. Arkansas Requirements That Are Broader in Scope Than the Federal
Program
In Rule 23, section 262.19(a) of the hazardous waste program that
is proposed for authorization, Arkansas requires all generators to use
a transporter that is permitted by the Arkansas Department of
Transportation for the transportation of hazardous waste. The Arkansas
provision is broader in scope because the Federal program does include
transporter permits. EPA cannot enforce State requirements that are
broader in scope, although compliance with such provisions is required
by DEQ law.
H. Who handles permits after the authorization takes effect?
The State of Arkansas will issue permits for all the provisions for
which it is authorized and will administer the permits it issues. The
EPA will continue to administer any RCRA hazardous waste permits or
portions of permits which we issued prior to the effective date of this
authorization. EPA will not issue any more new permits or new portions
of permits for the provisions listed in Table 1 in this document after
the effective date of this authorization. The EPA will continue to
implement and issue permits for HSWA requirements for which Arkansas is
not yet authorized.
I. How does this action affect Indian Country (18 U.S.C. 1151) in
Arkansas?
Arkansas is not authorized to carry out its Hazardous Waste Program
in Indian Country within the State. This authority remains with EPA.
Therefore, this action has no effect in Indian Country.
J. What is codification and is the EPA codifying Arkansas' hazardous
waste program as authorized in this rule?
Codification is the process of placing the State's statutes and
regulations that comprise the State's authorized hazardous waste
program into the CFR. We do this by referencing the authorized State
rules in 40 CFR part 272. We reserve the amendment of 40 CFR part 272,
subpart E for this authorization of Arkansas' program changes until a
later date. In this authorization application the EPA is not codifying
the rules documented in this Federal Register notice.
K. Administrative Requirements
The Office of Management and Budget (OMB) has exempted this action
(RCRA State Authorization) from the requirements of Executive Orders
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21,
2011). Therefore, this action is not subject to review by OMB. This
action proposes to authorize State requirements for the purpose of RCRA
3006, and imposes no additional requirements beyond those imposed by
State law. Accordingly, this action will not have a significant
economic impact on a substantial number of small entities under the
Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this action
proposed to authorize preexisting requirements under State law and does
not impose any additional enforceable duty beyond that required by
State law, it does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4). For the same reason, this
proposed action also does not significantly or uniquely affect the
communities of Tribal governments, as specified by Executive Order
13175 (65 FR 67249, November 9, 2000). This action will not have
substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government, as
specified in Executive Order 13132 (64 FR 43255, August 10, 1999),
because it merely proposes to authorize State requirements as part of
the State RCRA hazardous waste program without altering the
relationship or the distribution of power and responsibilities
established by RCRA.
This proposed action also is not subject to Executive Order 13045
(62 FR 19885, April 23, 1997), because it is not economically
significant and it does not make decisions based on environmental
health or safety risks. This proposed rule is not subject to Executive
Order 13211, ``Actions Concerning Regulations That Significantly Affect
Energy Supply, Distribution, or Use'' (66 FR 28355 (May 22, 2001))
because it is not a significant regulatory action under Executive Order
12866.
Under RCRA 3006(b), the EPA grants a State's application for
authorization as long as the State meets the criteria required by RCRA.
It would thus be inconsistent with applicable law for the EPA, when it
reviews a State authorization application; to require the use of any
particular voluntary consensus standard in place of another standard
that otherwise satisfies the requirements of RCRA. Thus, the
requirements of section 12(d) of the National Technology Transfer and
Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required
by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996),
in issuing this proposed rule, the EPA has taken the necessary steps to
eliminate drafting errors and ambiguity, minimize potential litigation,
and provide a clear legal standard for affected conduct. The EPA has
complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by
examining the takings implications of the rule in accordance with the
``Attorney General's Supplemental Guidelines for the Evaluation of Risk
and Avoidance of Unanticipated Takings'' issued under the Executive
Order. This proposed rule does not impose an information collection
burden under the provisions of the Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.).
Executive Order 12898 (59 FR 7629, February 16, 1994) establishes
federal executive policy on environmental justice. Its main provision
directs federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
[[Page 31239]]
Because this rule proposed to authorize 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 proposed rule is not subject
to Executive Order 12898.
List of Subjects in 40 CFR Parts 271
Environmental protection, Administrative practice and procedure,
Confidential business information, Hazardous waste, Hazardous waste
transportation, Indian lands, Intergovernmental relations, Penalties,
Reporting and recordkeeping requirements.
Authority: This action is issued under the authority of
sections 2002(a), 3006, and 7004(b) of the Solid Waste Disposal Act
as amended 42 U.S.C. 6912(a), 6926, 6974(b).
Dated: June 4, 2021.
David Gray,
Acting Regional Administrator, Region 6.
[FR Doc. 2021-12238 Filed 6-10-21; 8:45 am]
BILLING CODE 6560-50-P
