[Federal Register Volume 69, Number 194 (Thursday, October 7, 2004)]
[Rules and Regulations]
[Pages 60091-60094]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-22592]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 271

[FRL-7825-5]


Delaware: Final Authorization of State Hazardous Waste Management 
Program Revisions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Immediate final rule.

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SUMMARY: Delaware has applied to EPA for final authorization of 
revisions to its hazardous waste program under the Resource 
Conservation and Recovery Act (RCRA). EPA has determined that these 
revisions satisfy all requirements needed to qualify for final 
authorization and is authorizing Delaware's revisions through this 
immediate final action. EPA is publishing this rule to authorize the 
revisions without a prior proposal because we believe this action is 
not controversial and do not expect comments that oppose it. Unless we 
receive written comments that oppose this authorization during the 
comment period, the decision to authorize Delaware's revisions to its 
hazardous waste program will take effect. If we receive comments that 
oppose this action, or portions thereof, we will publish a document in 
the Federal Register withdrawing the relevant portions of this rule, 
before they take effect, and a separate document in the proposed rules 
section of this Federal Register will serve as a proposal to authorize 
revisions to Delaware's program that were the subject of adverse 
comments.

DATES: This final authorization will become effective on December 6, 
2004, unless EPA receives adverse written comments by November 8, 2004. 
If EPA receives any such comment, it will publish a timely withdrawal 
of this immediate final rule in the Federal Register and inform the 
public that this authorization, or portions thereof, will not take 
effect as scheduled.

ADDRESSES: Submit your comments, identified by FRL-7825-5 by one of the 
following methods:
    1. Federal eRulemaking Portal: http://www.regulations.gov. Follow 
the on-line instructions for submitting comments.
    2. E-mail: <a href="/cdn-cgi/l/email-protection#7f1a13131a0d1d1a5113161313161a3f1a0f1e121e1613511a0f1e51181009"><span class="__cf_email__" data-cfemail="1b7e77777e69797e3577727777727e5b7e6b7a767a7277357e6b7a357c746d">[email protected]</span></a>
    3. Mail: Lillie Ellerbe, Mailcode 3WC21, RCRA State Programs 
Branch, U.S. EPA Region III, 1650 Arch Street, Philadelphia, PA 19103-
2029.
    4. Hand Delivery: At the previously-listed EPA Region III address. 
Such deliveries are only accepted during normal hours of operation, and 
special arrangements should be made for deliveries of boxed 
information.
    You may inspect and copy Delaware's application from 8 a.m. to 4:30 
p.m., Monday through Friday at the following addresses: Delaware 
Department of Natural Resources & Environmental Control, Division of 
Air & Waste Management, Solid and Hazardous Waste Management Branch, 89 
Kings Highway, Dover, DE 19901, Phone number (302) 739-3689, Attn: 
Karen J'Anthony, and EPA Region III, Library, 2nd Floor, 1650 Arch 
Street, Philadelphia, PA 19103-2029, Phone number: (215) 814-5254.
    Instructions: Direct your comments to FRL-7825-5. EPA's policy is 
that all comments received will be included in the public file without 
change, 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 http://www.regulations.gov or e-mail. The Federal 
http://www.regulations.gov Web site is an ``anonymous access'' system 
which means that EPA will not know your identity or contact information 
unless you provide it in the body of your comment. If you send an e-
mail comment directly to EPA without going through http://www.regulations.gov, your e-mail address will be automatically captured 
and included as part of the comment that is placed in the public file 
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 and with any disk or CD-ROM 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 and any form of encryption, and be free of any defects or 
viruses.

FOR FURTHER INFORMATION CONTACT: Lillie Ellerbe, Mailcode 3WC21, RCRA 
State Programs Branch, U.S. EPA Region III, 1650 Arch Street, 
Philadelphia, PA 19103-2029, Phone number: (215) 814-5454.

SUPPLEMENTARY INFORMATION:

A. Why Are Revisions to State Programs Necessary?

    States that have received final authorization from EPA under RCRA

[[Page 60092]]

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 revisions to become 
more stringent or broader in scope, States must revise their programs 
and apply to EPA to authorize the revisions. Authorization of revisions 
to State programs may be necessary when Federal or State statutory or 
regulatory authority is modified or when certain other revisions occur. 
Most commonly, States must revise their programs because of revisions 
to EPA's regulations in 40 Code of Federal Regulations (CFR) parts 124, 
260 through 266, 268, 270, 273 and 279.

B. What Decisions Have We Made in This Rule?

    EPA concludes that Delaware's application to revise its authorized 
program meets all of the statutory and regulatory requirements 
established by RCRA. Therefore, we grant Delaware final authorization 
to operate its hazardous waste program with the revisions described in 
its application for program revisions, subject to the procedures 
described in section E, below. Delaware has responsibility for 
permitting treatment, storage, and disposal facilities (TSDFs) within 
its borders and for carrying out the aspects of the RCRA program 
described in its 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, EPA will 
implement those HSWA requirements and prohibitions for which Delaware 
has not been authorized, including issuing HSWA permits, until the 
State is granted authorization to do so.

C. What Is the Effect of Today's Authorization Decision?

    This decision serves to authorize revisions to Delaware's 
authorized hazardous waste program. This action does not impose 
additional requirements on the regulated community because the 
regulations for which Delaware is being authorized by today's action 
are already effective and are not changed by today's action. Delaware 
has enforcement responsibilities under its state hazardous waste 
program for violations of its program, but EPA retains its authority 
under RCRA sections 3007, 3008, 3013, and 7003, which include, among 
others, authority to:
    <bullet> Perform inspections, and require monitoring, tests, 
analyses or reports;
    <bullet> Enforce RCRA requirements and suspend or revoke permits; 
and
    <bullet> Take enforcement actions regardless of whether Delaware 
has taken its own actions.

D. Why Wasn't There a Proposed Rule Before Today's Rule?

    EPA did not publish a proposal before today's rule because we view 
this as a routine program change and do not expect comments that oppose 
this approval. We are providing an opportunity for public comment now. 
In addition to this rule, in the proposed rules section of today's 
Federal Register we are publishing a separate document that proposes to 
authorize Delaware's program revisions. If EPA receives comments that 
oppose this authorization, or portions thereof, that document will 
serve as a proposal to authorize the revisions to Delaware's program 
that were the subject of adverse comment.

E. What Happens if EPA Receives Comments That Oppose This Action?

    If EPA receives comments that oppose this authorization, or 
portions thereof, we will withdraw this rule, or portions thereof, by 
publishing a document in the Federal Register before the rule would 
become effective. EPA will base any further decision on the 
authorization of Delaware's program revisions on the proposal mentioned 
in the previous section. We will then address all public comments in a 
later final rule. You may not have another opportunity to comment. If 
you want to comment on this authorization, you must do so at this time.
    If we receive comments that oppose the authorization of a 
particular revision to the State's hazardous waste program, we will 
withdraw that part of this rule, but the authorization of the program 
revisions that the comments do not oppose will become effective on the 
date specified above. The Federal Register withdrawal document will 
specify which part of the authorization will become effective, and 
which part is being withdrawn.

F. What Has Delaware Previously Been Authorized for?

    Initially, Delaware received final authorization to implement its 
hazardous waste management program effective June 22, 1984 (53 FR 
23837). EPA granted authorization for revisions to Delaware's 
regulatory program effective October 7, 1996 (61 FR 41345); October 19, 
1998 (63 FR 44152); September 11, 2000 (65 FR 42871); August 8, 2002 
(67 FR 51478), and May 3, 2004 (69 FR 10171).

G. What Revisions Are We Authorizing With Today's Action?

    On August 23, 2004, Delaware submitted a program revision 
application, seeking authorization of additional revisions to its 
program in accordance with 40 CFR 271.21. Delaware's revision 
application includes various regulations that are equivalent to, and no 
less stringent than, revisions to the Federal hazardous waste program, 
as published in the Federal Register through April 26, 2004. We now 
make an immediate final decision, subject to receipt of written 
comments that oppose this action, that Delaware's hazardous waste 
program revision satisfies all of the requirements necessary to qualify 
for final authorization. Therefore, EPA grants Delaware's final 
authorization for the following program revisions:

1. Program Revision Changes for Federal Rules

    Delaware seeks authority to administer the Federal requirements 
that are listed in Table 1. This Table lists the State analogs that are 
being recognized as no less stringent than the analogous Federal 
requirements. Unless otherwise stated, the State's statutory references 
are to the Delaware Regulations Governing Hazardous Waste (DRGHW), 
amended and effective July 1, 2002, July 11, 2002, March 21, 2004 and 
August 21, 2004. The statutory references are to 7 Delaware Code 
Annotated (1991).

                                 Table 1
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   Description of federal requirement
        (revision checklists 1)            Analogous Delaware authority
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RCRA Cluster XI \2\, Non-HSWA:
    Mixed Waste Rule, 66 FR 27218-       7 Delaware Code (7 Del. Code)
     27266, 5/16/01, Checklist 191.       Chapter 63, Sec.  Sec.   6304,
                                          6305, 6306, 6307; Delaware
                                          Regulations Governing
                                          Hazardous Waste (DRGHW) New
                                          Subpart N to Part 266 (Sec.
                                          Sec.   266.210 through
                                          266.360)

[[Page 60093]]

 
RCRA Cluster XI, HSWA /Non-HSWA:
    Mixture and Derived-From Rules       7 Del. Code, Sec.  Sec.   6304,
     Revisions, 66 FR 27266-27297, 5/16/  6305; DRGHW 261.3(a)(2)(iii),
     01, Checklist 192A.                  261.3(a)(2)(iv),
                                          261.3(c)(2)(i), 261.3(g)(1)-
                                          (3), 261.3(h)
RCRA Cluster XI, HSWA:
    Land Disposal Restrictions           7 Del. Code, Sec.  Sec.   6304,
     Correction, 66 FR 27266-27297, 5/    6305; DRGHW Appendix VII to
     16/01, Checklist 192B.               Part 268, Table 1
RCRA Cluster XII, HSWA/Non-HSWA:
    Mixture and Derived-From Rules       7 Del. Code, Sec.  Sec.   6304,
     Revision II, 66 FR 50332-50334, 10/  6305; DRGHW 261.3(a)(2)(iv)
     03/01, Checklist 194.
RCRA Cluster XII, HSWA:
    CAMU Amendments, 67 FR 2962-3029,    7 Del. Code, Sec.  Sec.   6304,
     01/22/02, Checklist 196.             6305, 6306, 6307; DRGHW
                                          260.10, 264.550, 264.551,
                                          264.552, 264.554(a)(1)-(2),
                                          264.555
RCRA Cluster XII, Non-HSWA:
    Vacatur of Mineral Processing Spent  7 Del. Code, Sec.  Sec.   6304,
     Materials Being Reclaimed as Solid   6305, 6306; DRGHW 261.2(c)(3),
     Wastes and TCLP Use with MGP         261.4(a)(17)
     Waste, 67 FR 11251-11254, 03/13/
     02, Checklist 199.
RCRA Cluster XIII, HWSA/Non-HSWA:
    Zinc Fertilizer Rule, 67 FR 48393-   7 Del. Code, Sec.  Sec.   6304,
     48415, 07/24/02, Checklist 200.      6305, 6306, 6307; DRGHW
                                          266.20, 268.40 More stringent
                                          provisions: 261.4(a)(20)-(21),
                                          266.20(d)
RCRA Cluster XIII, HWSA:
    Treatment Variance for               7 Del. Code, Sec.  Sec.   6304,
     Radioactively Contaminated           6305, 6306, 6307; DRGHW 268.40/
     Batteries, 67 FR 62618-62625, 10/    Table
     07/02, Checklist 201.
------------------------------------------------------------------------
1 A Revision Checklist is a document that addresses the specific
  revisions made to the Federal regulations by one or more related final
  rules published in the Federal Register. EPA develops these checklists
  as tools to assist States in developing their authorization
  applications and in documenting specific State analogs to the Federal
  Regulations. For more information see EPA's RCRA State Authorization
  web page at http://www.epa.gov/epaoswer/hazwaste/state.
2 A RCRA ``Cluster'' is a set of Revision Checklists for Federal rules,
  typically promulgated over a 12-month period starting on July 1 and
  ending on June 30 of the following year.

2. State-Initiated Revisions

    In addition, Delaware will be authorized to carry out, in lieu of 
the Federal program, State-initiated revisions to provisions of the 
State's Program. These State-initiated revisions to some of Delaware's 
existing regulations are for the purpose of correcting errors and 
adding consistency or clarification to the existing regulations. The 
following State-initiated revisions are equivalent and analogous to the 
numerically-identical RCRA provisions found at Title 40 of the Code of 
Federal Regulations: DRGHW 260.10; 261.1(c)(8); 261.32; Part 261, 
Appendix VIII; 264.145(a)(1); 264.1050(h); and 265.1050(g). One other 
State-initiated revision being authorized by this notice is DRGHW 
122.20 title and paragraph (a)(1), which is equivalent and analogous to 
40 CFR 270.20 title and paragraph (a)(1).

H. Where Are the Revised Delaware Rules Different From the Federal 
Rules?

1. Delaware Requirements That Are Broader in Scope Than the Federal 
Program

    The Delaware hazardous waste program contains certain provisions 
that are beyond the scope of the Federal program. These broader in 
scope provisions are not part of the program being authorized by 
today's action. EPA cannot enforce requirements that are broader in 
scope, although compliance with such provisions is required by Delaware 
law. Examples of broader in scope provisions of Delaware's program 
include, but are not limited to, the following:
    (a) Delaware's regulation at DRGHW 263.102(c) amends requirements 
for permit termination, etc.
    (b) Delaware's regulation at DRGHW 263.103(d) increases the time an 
application to replace an expiring permit must be submitted from 60 
days to 90 days.
    (c) Delaware's regulation at DRGHW 265.55 adds language clarifying 
that the emergency coordinator must receive annual training in 
assessing possible hazards to human health and the environment that may 
result from a release, fire or explosion.

2. Delaware Requirements That Are More Stringent Than the Federal 
Program

    The Delaware hazardous waste program contains some provisions that 
are more stringent than is required by the RCRA program. The more 
stringent provisions are being recognized as a part of the Federally-
authorized program and include the following:
    (a) Delaware's regulations at DRGHW 265.195(c) and 265.201(c) are 
more stringent because the State adds a requirement for written 
inspection records for tanks.
    (b) Delaware's regulation at DRGHW 273.19 is more stringent because 
the State adds a requirement for written records for shipments of 
universal waste.

I. Who Handles Permits After This Authorization Takes Effect?

    After authorization, Delaware will issue permits for all the 
provisions for which it is authorized and will administer the permits 
it issues. EPA will continue to administer any RCRA hazardous waste 
permits or portions of permits that we issued prior to the effective 
date of this authorization until the timing and process for effective 
transfer to the State are mutually agreed upon. Until such time as 
formal transfer of EPA permit responsibility to the State occurs and 
EPA terminates its permit, EPA and the State agree to coordinate the 
administration of permits in order to maintain consistency. We will not 
issue any more new permits or new portions of permits for the 
provisions listed in section G above after the effective date of this 
authorization. EPA will continue to implement and issue permits for 
HSWA requirements for which Delaware is not yet authorized.

J. How Does Today's Action Affect Indian Country (18 U.S.C. 115) in 
Delaware?

    Delaware is not seeking authorization to operate the program on 
Indian lands, since there are no Federally-recognized Indian lands in 
Delaware.

[[Page 60094]]

K. What Is Codification and Is EPA Codifying Delaware'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. We do this by referencing 
the authorized State rules in 40 CFR part 272. We reserve the amendment 
of 40 CFR part 272, subpart I, for this authorization of Delaware's 
program revisions until a later date.

L. Statutory and Executive Order Reviews

    This rule only authorizes hazardous waste requirements pursuant to 
RCRA section 3006 and imposes no requirements other than those imposed 
by State law (see Supplementary Information: section A. Why are 
Revisions to State Programs Necessary?). Therefore, this rule complies 
with applicable executive orders and statutory provisions as follows. 
1. Executive Order 12866: Regulatory Planning Review--The Office of 
Management and Budget has exempted this rule from its review under 
Executive Order 12866. 2. Paperwork Reduction Act--This rule does not 
impose an information collection burden under the Paperwork Reduction 
Act. 3. Regulatory Flexibility Act--After considering the economic 
impacts of today's rule on small entities under the Regulatory 
Flexibility Act, I certify that this rule will not have a significant 
economic impact on a substantial number of small entities. 4. Unfunded 
Mandates Reform Act--Because this rule approves 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. 5. 
Executive Order 13132: Federalism--Executive Order 13132 does not apply 
to this rule because it will not have federalism implications (i.e., 
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). 6. 
Executive Order 13175: Consultation and Coordination With Indian Tribal 
Governments--Executive Order 13175 does not apply to this rule because 
it will not have tribal implications (i.e., substantial direct effects 
on one or more Indian tribes, on the relationship between the Federal 
government and Indian tribes, or on the distribution of power and 
responsibilities between the Federal Government and Indian tribes). 7. 
Executive Order 13045: Protection of Children From Environmental Health 
& Safety Risks--This rule is not subject to Executive Order 13045 
because it is not economically significant and it is not based on 
health or safety risks. 8. Executive Order 13211: Actions That 
Significantly Affect Energy Supply, Distribution, or Use--This rule is 
not subject to Executive Order 13211 because it is not a significant 
regulatory action as defined in Executive Order 12866. 9. National 
Technology Transfer and Advancement Act--EPA approves State programs as 
long as they meet criteria required by RCRA, so it would be 
inconsistent with applicable law for EPA, in its review of a State 
program, to require the use of any particular voluntary consensus 
standard in place of another standard that meets the requirements of 
RCRA. Thus, section 12(d) of the National Technology Transfer and 
Advancement Act does not apply to this rule. 10. Congressional Review 
Act--EPA will submit a report containing this rule and other 
information required by the Congressional Review Act (5 U.S.C. 801 et 
seq.) to the U.S. Senate, the U.S. House of Representatives, and the 
Comptroller General of the United States prior to publication in the 
Federal Register. A major rule cannot take effect until 60 days after 
it is published in the Federal Register. This action is not a ``major 
rule'' as defined by 5 U.S.C. 804(2). This action will be effective on 
December 6, 2004.

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: September 17, 2004.
Thomas C. Voltaggio,
Acting Regional Administrator, EPA Region III.
[FR Doc. 04-22592 Filed 10-6-04; 8:45 am]
BILLING CODE 6560-50-P


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