[Federal Register: July 1, 2002 (Volume 67, Number 126)]
[Rules and Regulations]               
[Page 44069-44073]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01jy02-16]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 271

[FRL-7239-7]

 
Idaho: Final Authorization of State Hazardous Waste Management 
Program Revision

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: Idaho applied to the Environmental Protection Agency (EPA) for 
final authorization of changes to its hazardous waste program under the 
Resource Conservation and Recovery Act (RCRA). The EPA has reached a 
final determination that these changes to the Idaho hazardous waste 
management program satisfy all of the requirements necessary to qualify 
for final authorization. Thus, with respect to these revisions, EPA is 
granting final authorization to the State to operate its program 
subject to the limitations on its authority retained by EPA in 
accordance with RCRA, including the Hazardous and Solid Waste 
Amendments of 1984 (HSWA).

EFFECTIVE DATE: Final authorization for the revisions to the hazardous 
waste program in Idaho shall be effective at 1 p.m. on July 1, 2002.

FOR FURTHER INFORMATION CONTACT: Jeff Hunt, WCM-122, U.S. EPA Region 
10, Office of Waste and Chemicals Management, 1200 Sixth Avenue, Mail 
Stop WCM-122, Seattle, Washington, 98101, phone (206) 553-0256.

SUPPLEMENTARY INFORMATION:

A. Why Are Revisions to State Programs Necessary?

    States which have received final authorization from EPA under RCRA 
Section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous waste 
program that is equivalent to and consistent with the Federal program. 
States are required to have enforcement authority which is adequate to 
enforce compliance with the requirements of the hazardous waste 
program. Under RCRA Section 3009, States are not allowed to impose any 
requirements which are less stringent

[[Page 44070]]

than the Federal program. As the Federal program changes, States must 
change their programs and ask 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 
EPA's regulations in Title 40 of the Code of Federal Regulations (CFR) 
parts 124, 260 through 266, 268, 270, 273 and 279.
    Idaho initially received final authorization on March 26, 1990, 
effective April 9, 1990 (55 FR 11015), to implement the State's 
hazardous waste management program. EPA also granted authorization for 
changes to Idaho's program on April 6, 1992, effective June 5, 1992 (57 
FR 11580), June 11, 1992, effective August 10, 1992 (57 FR 24757), 
April 12, 1995, effective June 11, 1995 (60 FR 18549), and October 21, 
1998, effective January 19, 1999 (63 FR 56086).
    On May 1, 2001, Idaho submitted a final program revision 
application to EPA in accordance with 40 CFR 271.21 seeking 
authorization of changes to the State program. On August 22, 2001, EPA 
published proposed and immediate final rules announcing its intent to 
grant Idaho final authorization for revisions to Idaho's hazardous 
waste program. The proposed rule can be found at 66 FR 44107, August 
22, 2001. The immediate final rule appears at 66 FR 44071, August 22, 
2001.

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

    Along with its intent to immediately authorize revisions to the 
Idaho hazardous waste management program, EPA announced the 
availability of the authorization revision application and rulemaking 
for public comment. EPA received one adverse comment during the comment 
period in the form of a ``Petition to the United States Environmental 
Protection Agency to Commence Proceedings for Withdrawal of the Idaho 
Department of Environmental Quality (IDEQ) as the RCRA Authority for 
the State of Idaho'' (Petition) challenging the administration and 
enforcement of the hazardous waste program by the State of Idaho and 
seeking withdrawal of authorization. EPA withdrew its Immediate Final 
Rule on October 5, 2001, 66 FR 50833, in order to respond to the 
adverse comment. EPA's proposed rule, 66 FR 44107, was not withdrawn 
and was retained for later consideration. EPA has taken into 
consideration comments in the Petition relating to the Idaho hazardous 
waste management program in taking today's action. The significant 
issues raised by the Commentors for purposes of this revision 
authorization and EPA's responses follow below.
    Today's action is not a determination on the merits of the Petition 
to withdraw federal authorization for environmental programs in Idaho. 
In response to the Petition, EPA initiated an informal investigation of 
the authorized hazardous waste program in Idaho. Based on the results 
of that investigation, on March 7, 2002, the Regional Administrator for 
Region 10 found no basis to commence withdrawal proceedings and denied 
the Petition. That response is included in the administrative record 
for this rulemaking. The Petition raised many issues not relevant to 
the revision authorization. EPA considered those issues fully in its 
response to the Petition.
    This rulemaking considers and responds to the comments relevant to 
the revision authorization. Commentors raised issues in the following 
areas: (1) IDEQ's compliance with the permitting requirements for 
authorized hazardous waste programs; (2) IDEQ's enforcement of the 
authorized hazardous waste program; (3) IDEQ's compliance with the 
Memorandum of Agreement (MOA) for the authorized hazardous waste 
program; and (4) IDEQ's funding and staffing of the authorized program.
    Comment area #1: EPA received comment relating to IDEQ's 
implementation of RCRA permitting. The comments generally asserted that 
the IDEQ was not issuing permits as required but was allowing 
facilities to operate under interim status without permits, and was for 
those permits issued, not issuing permits which conformed to the 
requirements of 40 CFR part 271. Commentors specifically focused on 
permitting issues involving the Idaho National Environmental and 
Engineering Laboratory (``INEEL'') facility, a mixed (radioactive and 
hazardous) waste facility in Idaho. Commentors claimed that IDEQ had 
not issued permits to units at INEEL and had allowed units to illegally 
operate without permits. Commentors also claimed that permits issued by 
IDEQ to the INEEL facility were incomplete and failed to provide for 
full public participation.
    Response: To meet EPA approval standards for authorization, State 
programs must include requirements for permitting. See 40 CFR 271.1(c). 
States with authorized hazardous waste programs under 40 CFR part 271 
must have legal authority to implement permitting provisions as set 
forth in 40 CFR 271.13 ``Requirements with respect to permits and 
permit applications.'' 40 CFR 270.13(a) provides: ``State law must 
require permits for owners and operators of all hazardous waste 
management facilities required to obtain a permit under 40 CFR part 270 
and prohibit the operation of any hazardous waste management facility 
without such a permit, except that States may, if adequate legal 
authority exists, authorize owners and operators of any facility which 
would qualify for interim status under the Federal program to remain in 
operation until a final decision is made on the permit application, * * 
* .'' Idaho's legal authorities are reviewed with each revision to the 
authorized program and were reviewed prior to EPA's issuance of the 
August 22, 2001 immediate final rule. EPA's review of Idaho legal 
authorities did not disclose any lack of authority in Idaho law to 
require hazardous waste management facilities to obtain a permit or to 
operate as an interim status facility.
    40 CFR 271.14, ``Requirements for permitting,'' mandates that: 
``All State programs under this subpart must have legal authority to 
implement each of the following provisions and must be administered in 
conformance with each; except that States are not precluded from 
omitting or modifying any provisions to impose more stringent 
requirements * * * .'' The regulation then specifies that 40 CFR 
270.1(c)(1), 270.4, 270.5, 270.10 through 33; 270.40, 270.41, 270.43, 
270.50, 270.60, 270.61, 270.64 are mandatory. Idaho incorporates the 
federal regulations by reference and as a consequence of that 
incorporation, each of these requisite provisions is included in 
Idaho's hazardous waste regulations. Idaho's authority to compel 
permitting is established. EPA next turns to Idaho's implementation of 
that authority.
    Idaho's authorized hazardous waste program contains a small 
universe of facilities subject to the requirement to obtain a final 
RCRA permit and of this universe the INEEL facility represents the 
largest and most complex facility subject to RCRA permitting 
requirements in the State. EPA's database shows that all facilities 
subject to the hazardous waste permitting requirements of the 
authorized program in Idaho have been issued final RCRA permits with 
the exception of the INEEL facility, which has been partially 
permitted. The federal program allows a facility to receive a partial 
permit. 40 CFR 270.1(c)(4) provides: ``EPA may issue or deny a permit 
for one or more units at a facility without simultaneously issuing or 
denying a permit to all of the units at the facility.

[[Page 44071]]

The interim status of any unit for which a permit has not been issued 
or denied is not affected by the issuance or denial of a permit to any 
other unit at the facility.'' Idaho's hazardous waste program, which 
incorporated the federal regulation at 40 CFR 270.1(c)(4) by reference, 
has been authorized to allow partial permitting, replacing ``EPA may 
issue'' with ``IDEQ may issue.'' See IDAPA 16.01.05.012.
    The Commentors maintain permitting less than all units at a 
facility results in an incomplete permit and is consequently non-
compliant with the requirement to obtain a RCRA permit for the 
facility. The regulations clearly allow for the use of partial 
permitting and such use is in compliance with the RCRA permitting 
requirements. At a complex federal facility, such as INEEL with 137 
hazardous waste management units, partial permitting is an appropriate 
and compliant approach to permitting the facility. Those units which 
have not yet been permitted are required to comply with the interim 
status standards until permitted, thus there is no regulatory gap in 
managing hazardous wastes at a facility where partial permits have been 
issued.
    The Commentors also generally asserted that the IDEQ did not allow 
full public participation in permit decision making. Those requirements 
are found at 40 CFR part 124. Idaho incorporated 40 CFR part 124 
subparts A and B by reference and is authorized for those regulations. 
Public participation requirements are applicable at the time of 
permitting and are applicable to partial permits. Commentors will have 
an opportunity to comment on units not addressed in a partial permit 
when those units are themselves permitted.
    EPA does not agree that IDEQ failed to comply with the Expanded 
Public Participation Rule for certain permitting activities at the 
INEEL facility. The permitting activities occurred before the State of 
Idaho enacted the rule as part of its hazardous waste program. Idaho 
enacted the Expanded Public Participation Rule on July 2, 1997; the 
Idaho hazardous waste program was authorized for the rule on October 
21, 1998. Prior to the 1997 enactment, the rule was not a requirement 
of the hazardous waste program in Idaho and the State could not require 
compliance with the federal rule. The rule is applicable to permit 
applications in Idaho currently and must be complied with. Information 
provided by Commentors on related matters shows that Commentors have 
availed themselves of the opportunity to comment on permits issued by 
the IDEQ as allowed under the Expanded Public Participation Rule.
    Comment area #2: EPA received comment relating to the IDEQ's 
enforcement of the authorized hazardous waste program. The Commentors 
generally asserted that the IDEQ failed to act on violations of permits 
or program requirements, failed to seek adequate penalties, failed to 
inspect and monitor hazardous waste activities and failed to initiate 
closure for non-complaint facilities. The Commentors enforcement 
concerns focused on enforcement at the INEEL facility.
    Response: IDEQ provided EPA with a statistical summary of 
enforcement actions taken by IDEQ since 1990 at INEEL. IDEQ issued 
INEEL Notices of Violation at least eight times and assessed cash 
penalties of $906,031.89 and Supplemental Environmental Projects valued 
at $342,606.00. EPA, in two separate program reviews, did not find 
IDEQ's enforcement of its hazardous waste program at INEEL to be 
problematic and has not found the State's enforcement of the authorized 
hazardous waste program at INEEL to be inadequate. The Commentors 
contention that IDEQ failed to close non-compliant facilities is 
inaccurate and is based on the Commentors' belief that a full permit 
for all units is required for a facility to be compliant with RCRA. As 
has been discussed, partial permitting of certain units, while allowing 
others to remain subject to the interim status standards, does not 
result in non-compliance for those units not addressed by the partial 
permit.
    Comment area #3: The Commentors asserted that IDEQ was not in 
compliance with the MOA, a required element of the authorized hazardous 
waste program.
    Response: States are required, for purposes of administering an 
authorized hazardous waste program, to execute an MOA with EPA. See 40 
CFR 271.8. The MOA includes, among others, mandatory provisions to 
coordinate enforcement and inspection efforts between the state and 
EPA, including the sharing of information on facilities and permits. 
The Commentors did not point to any specific area of the MOA where IDEQ 
was out of compliance with the agreement but discussed concerns with 
IDEQ's permitting activities at the INEEL facility.
    EPA has not found any failure on the part of IDEQ to comply with 
the currently authorized MOA. Nor, as discussed above, does EPA have 
cause to find that IDEQ failed to implement the authorized program at 
the INEEL facility. Although Commentors may disagree with the issuance 
of partial permits at INEEL, partial permitting is allowed under the 
federal regulations and is an authorized part of the Idaho hazardous 
waste program and is not inconsistent with the MOA.
    EPA notes that IDEQ submitted a revised MOA as a part of the 
application package for this rulemaking. The revised MOA will become 
part of the authorized program as a result of this final rule.
    Comment area #4: The Commentors expressed concern over IDEQ's 
funding and staffing levels and generally asserted that the IDEQ was 
underfunded and understaffed to carry out an authorized hazardous waste 
program.
    Response: In response to this concern, EPA looked at OSWER 
Directive 9540.00-10 ``Capability Assessment Guidance,'' January 30, 
1992 for ``Resources and Skills Mix'' used in assessing overall state 
capability. The guidance specifies that EPA look at the demonstrated 
ability of the State to bring sufficient and appropriate resources to 
the program, regardless of short-term staffing shortages, unpredictable 
legislative activities regarding appropriations for the state program, 
and regardless of competing demands for resources available for program 
priorities. OSWER Directive 9540.00-10. Unacceptable capability would 
be identified where, for example, a State was significantly 
understaffed, had a high turnover rate of staff resulting in poor work 
product and had not made an effort to correct the situation. EPA's 
review of IDEQ's program description and attachments, which were 
submitted as part of the authorization package for this revision to the 
authorized hazardous waste program, did not find the program to be 
understaffed or to be experiencing a high turnover rate of staff. 
Rather, the full time equivalent (FTE) personnel devoted to the IDEQ 
hazardous waste management program adequately meet the staffing 
component of skills and personnel necessary for an authorized hazardous 
waste program.
    With respect to funding resources available, EPA reviewed funding 
guidance issued by the Office of Solid Waste (OSW) in 1996. This 
guidance was issued in the context of providing federal grant money to 
the states pursuant to Section 3011 of RCRA. The guidance established a 
minimum funding requirement of $466,666 for maintaining hazardous waste 
programs in small states , such as Idaho, and with small universes of 
hazardous waste activities. Idaho's authorization application package 
for this rulemaking included information indicating that Idaho's 
contribution to the minimum

[[Page 44072]]

funding requirement was $943,900, well above the minimum level set by 
EPA's own guidance.

C. What Decisions Have We Made in this Rule?

    EPA has made a final determination that Idaho's application for 
authorization of the revisions to the Idaho authorized program meets 
all of the statutory and regulatory requirements established by RCRA. 
Therefore, with respect to the revisions, we are granting Idaho final 
authorization to operate its hazardous waste program as described in 
the revision authorization application. Idaho's authorized program will 
be responsible for carrying out the aspects of the RCRA program 
described in its revised program application, subject to the 
limitations of RCRA, including the Hazardous and Solid Waste Amendments 
of 1984 (HSWA). Idaho's authorized program does not extend to Indian 
country. EPA retains jurisdiction and authority to implement and 
enforce RCRA in Indian country within the State boundaries.
    New Federal requirements and prohibitions imposed by Federal 
regulations that EPA promulgates under the authority of HSWA are 
implemented by EPA and take effect in States with authorized programs 
before such programs are authorized for the requirements. Thus, EPA 
will implement those HSWA requirement and prohibitions in Idaho, 
including issuing permits or portions of permits, until the State is 
granted authorization to do so.

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

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

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

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

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

    EPA is granting final authorization for the revisions to Idaho's 
federally authorized program described in Idaho's final complete 
program revision application, submitted to EPA on May 1, 2001. We have 
made a final determination that Idaho's hazardous waste program 
revisions, as described in this rule, satisfy the requirements 
necessary for final authorization. Therefore, we grant Idaho final 
authorization for all delegable hazardous waste regulations promulgated 
as of July 1, 1998, as incorporated by reference in IDAPA 
16.01.05.(002)-(016) and 16.01.05.997. \1\ Any subsequent changes to 
the Federal program or to State law that occurred after July 1, 1998 
are not part of Idaho's authorized RCRA program. EPA is not authorizing 
IDAPA 16.01.05.000; 16.01.05.001; 16.01.05.006(02); 
16.01.05.016(02)(a),(b); 16.01.05.017-996; 16.01.05.998; and 
16.01.05.999.
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    \1\ Sections of the Federal hazardous waste program are not 
delegable to the states. These sections are 40 CFR part 262 subparts 
E, F, & H; 40 CFR 268.5; 40 CFR 268.42(b); 40 CFR 268.44(a)-(g); and 
40 CFR 268.6. Authority for implementing the provisions contained in 
these sections remains with EPA.
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F. Who Handles Permits After This Authorization Takes Effect?

    Idaho will issue permits for all the provisions for which it is 
authorized and will administer the permits it issues. All permits or 
portions of permits issued by EPA Region 10 prior to final 
authorization of this revision will continue to be administered by EPA 
Region 10 until the issuance or re-issuance after modification of a 
State RCRA permit and until EPA takes action on its permit or portion 
of permit. HSWA provisions for which the State is not authorized will 
continue in effect under the EPA-issued permit or portion of permit. 
EPA will continue to issue permits or portions of permits for HSWA 
requirements for which Idaho is not yet authorized.

G. What Is Codification and Is EPA Codifying Idaho's Hazardous Waste 
Program as Authorized in This Rule?

    Codification is the process of placing the State's statutes and 
regulations that comprise the State's authorized hazardous waste 
program into the Code of Federal Regulations. EPA does this by 
referencing the authorized State's authorized rules in 40 CFR part 272. 
EPA is reserving the amendment of 40 CFR part 272, subpart F for 
codification of Idaho's program at a later date.

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

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

I. Administrative Requirements

    The Office of Management and Budget has exempted this action from 
the requirements of Executive Order 12866 (58 FR 51735, October 4, 
1993), and therefore this action is not subject to review by OMB. This 
action authorizes State requirements for the purpose of RCRA 3006 and 
imposes no additional requirements beyond those imposed by State law. 
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 (Public Law 104-4). For the same reason, 
this action also does not have Tribal implications within the meaning 
of Executive Order 13175 (65 FR 67249, November 6, 2000). It does not 
have substantial direct effects on tribal governments, on the 
relationships between the Federal government and the Indian Tribes, or 
on

[[Page 44073]]

the distribution of power and responsibilities between the Federal 
government and Indian tribes, as specified in Executive Order 13175. 
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 rule is not subject to Executive Order 
13211, ``Actions Concerning Regulations That Significantly Affect 
Energy Supply Distribution or Use'' (66 FR 28344, May 22, 2001) because 
it is not a significant regulatory action under Executive Order 12866. 
This action does not include environmental justice issues that require 
consideration under Executive Order 12898 (59 FR 7629, February 16, 
1994).
    Under RCRA 3006(b), 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 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) do not apply. As required by 
section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in 
issuing this rule, EPA has taken the necessary steps to eliminate 
drafting errors and ambiguity, minimize potential litigation, and 
provide a clear legal standard for affected conduct. 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 final 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.).

List of Subjects in 40 CFR Part 271

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

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


    Dated: June 20, 2002.
L. John Iani,
Regional Administrator, Region 10.
[FR Doc. 02-16465 Filed 6-28-02; 8:45 am]
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