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[Federal Register Volume 83, Number 243 (Wednesday, December 19, 2018)]
[Rules and Regulations]
[Pages 65101-65104]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-27422]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 271

[EPA-R08-RCRA-2018-0554; FRL-9986-24-Region 8]

North Dakota: Final Authorization of State Hazardous Waste 
Management Program Revisions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: North Dakota has applied for final authorization of a revision 
to its hazardous waste program under the Resource Conservation and 
Recovery Act (RCRA). The revision has two parts, both of which relate 
directly to the creation of the North Dakota Department of 
Environmental Quality (NDDEQ) by the North Dakota Legislature, and the 
impending transfer of authority, power, and duties relating to 
environmental quality from the North Dakota Department of Health (NDDH) 
to the NDDEQ. The first part of the program revision is the complete 
transfer of all hazardous waste program rules from Title 33 Article 24 
of the North Dakota Administrative Code (NDAC) to NDAC Title 33.1 
Article 24. The second part is replacing all references to NDDH with 
NDDEQ. No other changes are being made to the hazardous waste program 
rules in this revision. The EPA has reviewed the application and 
determined that North Dakota's hazardous waste program revision 
satisfies all of the requirements necessary to qualify for final 
authorization. The EPA is authorizing the state program revision 
through this direct final rule. The EPA is publishing this rule without 
prior proposal because the Agency views this as a noncontroversial 
action and does not anticipate adverse comments. However, in the 
proposed rules section of this Federal Register, the EPA is publishing 
a separate document that will serve as a proposal to authorize the 
revision should the Agency receive adverse comment. Unless the EPA 
receives adverse written comments during the review and comment period, 
the decision to authorize North Dakota's hazardous waste program 
revision will take effect as provided below.

DATES: This final rule is effective on March 15, 2019, unless the EPA 
receives adverse written comment by January 18, 2019. Should the EPA 
receive such comments, it will publish a timely document either: 
Withdrawing the direct final publication or affirming the publication 
and responding to comments.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-R08-RCRA-2018-0554. All documents in the docket are 
listed on the http://www.regulations.gov website. Although listed in 
the index, some information is not publicly available, e.g., CBI or 
other information, the disclosure of which is restricted by statute. 
Certain other material, such as copyrighted material, is not placed on 
the internet and will be publicly available only in hard copy form. 
Publicly available docket materials are available either electronically 
through

[[Page 65102]]

http://www.regulations.gov or in hard copy at: EPA Region 8, from 8:00 
a.m. to 4:00 p.m., 1595 Wynkoop Street, Denver, Colorado 80202-1129; 
contact: Moye Lin, phone number (303) 312-6667, or the North Dakota 
Department of Health (NDDH) from 9:00 a.m. to 4:00 p.m., 918 East 
Divide Avenue, 3rd Floor, Bismarck, North Dakota 58501-1947, phone 
number (701) 328-5166. The public is advised to call in advance to 
verify business hours.

FOR FURTHER INFORMATION CONTACT: Moye Lin, Resource Conservation and 
Recovery Program, EPA Region 8, 1595 Wynkoop Street, Denver, Colorado 
80202-1129; phone number (303) 312-6667; Email address: 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Authorization of Revisions to North Dakota's Hazardous Waste Program

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. When 
states make other changes to their regulations, it is often appropriate 
for the states to seek authorization for the changes.

B. What decisions have we made in this rule?

    We conclude that North Dakota's application to revise its 
authorized program meets all of the statutory and regulatory 
requirements established by RCRA. Therefore, we grant North Dakota 
final authorization to operate its hazardous waste program with the 
changes described in the authorization application.
    The State of North Dakota adopted state Senate Bill No. 2327 (S.L. 
2017, ch. 199, Sec.  75), which separated the Environmental Health 
Section from the North Dakota Department of Health (NDDH) to create a 
standalone North Dakota Department of Environmental Quality (NDDEQ). 
Per S.L. 2017, ch. 199, Section 75, the transfer of authority, power, 
and duties related to environmental quality from NDDH to NDDEQ will 
become effective upon the North Dakota Legislative Council's receipt of 
the certification by the Chief of the Environmental Health Section of 
the State Department of Health attesting that all necessary federal 
approvals have been obtained and all necessary federal and other 
agreements have been amended to ensure the state will continue to meet 
the authorization requirements it currently satisfies after the 
transfer of authority, powers and duties from the NDDH to the NDDEQ. 
This direct final rule constitutes EPA approval of the transfer of all 
duties and responsibilities of the state relating to the existing 
federal hazardous waste program in North Dakota from the NDDH to the 
NDDEQ.
    North Dakota will continue to have responsibility for permitting 
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 the EPA promulgates under the authority of HSWA after 
this action, if any, will be effective in North Dakota on the effective 
date of the federal rule. Thus, the EPA will implement those 
requirements and prohibitions in North Dakota, including issuing 
permits, until North Dakota applies for authorization of equivalent 
state rules and those rules are authorized.

C. What is the effect of this authorization decision?

    While there will be no substantive changes to the federal hazardous 
waste program requirements if North Dakota is authorized for these 
changes, NDDEQ will become the state department responsible for 
implementation of the federal hazardous waste program instead of NDDH. 
This change should have little to no practical effect on the regulated 
community in North Dakota. Additionally, pursuant to section 3006 of 
RCRA, the regulated community must comply with HSWA regulations issued 
by the EPA for which the state has not received authorization. North 
Dakota will continue to have enforcement responsibilities under its 
state hazardous waste program for violations of such program, and the 
EPA continues to retain 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; suspend or revoke permits; 
and,
     Take enforcement actions regardless of whether North 
Dakota has taken its own actions.

This action to approve these provisions would not impose additional 
requirements on the regulated community because the regulations for 
which North Dakota is requesting authorization are already effective 
under both state and federal law and are not changed by our 
authorization of these revisions.

D. For what has North Dakota previously been authorized?

    North Dakota initially received final authorization on October 5, 
1984, effective October 19, 1984 (49 FR 39328), to implement the RCRA 
hazardous waste management program. We granted authorization for 
changes to their program on: June 25, 1990, effective August 24, 1990 
(55 FR 25836); May 4, 1992, effective July 6, 1992 (57 FR 19087); April 
7, 1994, effective June 6, 1994 (59 FR 16566); January 19, 2000, 
effective March 20, 2000 (65 FR 02897); September 26, 2005, effective 
November 25, 2000 (70 FR 56132); February 14, 2008, effective April 14, 
2008 (73 FR 8610); and October 30, 2018, effective October 30, 2018 (83 
FR 54521).
    The EPA understands that the state intends to take the necessary 
additional steps, as specified in S.L. 2017, ch. 199, Section 75, to 
ensure that NDDEQ comes into existence and that the NDDEQ rules are 
effective as a matter of state law so that the rules also and the NDDEQ 
will become federally enforceable prior to the effective date of EPA's 
approval of these revisions. Further background on the new department 
is documented in the state Program Description dated September 2018. 
Therefore, once this rule is effective and for the purposes of 
administration of the state's authorized hazardous waste program, 
references to the NDDH Division of Waste Management of the 
Environmental Health Section will be to the NDDEQ. For further 
legislative history on the new department, see North Dakota Session 
Laws of 2017 [S.L. 2017, ch. 199, Sec.  75].
    The NDDEQ has primary responsibility for administration of laws and 
regulations concerning hazardous waste under the North Dakota Hazardous 
Waste Management Act (codified in Chapter 23.1-04 of the North Dakota 
Century Code [N.D.C.C.]). The NDDEQ is also authorized to administer 
the federal hazardous waste

[[Page 65103]]

program, including jurisdiction over the generation, discharge, 
storage, treatment, handling, transportation, reclamation, or disposal 
of hazardous waste.
    The NDDEQ has the rules necessary to implement the federal 
Hazardous Waste Program from the Base program through RCRA Cluster XXIV 
revisions promulgated through June 30, 2015, as found in NDAC Title 
33.1 Article 24 Hazardous Waste Management. The NDDEQ authority to 
incorporate federal rules by reference can be found at N.D.C.C. Sec.  
23.1-01-04(1) and adoption of the hazardous waste rules in general are 
pursuant to the statutory provisions enacted in 2018 at N.D.C.C. Title 
23.1.

E. What changes are we authorizing with this action?

    The State of North Dakota submitted a final complete program 
revision application on July 31, 2018 and is seeking re-authorization 
of their complete program in accordance with 40 CFR 271.21 due to the 
transfer of the approved hazardous waste program from the NDDH to the 
NDDEQ as described in section I.D. above. North Dakota's program 
consists of regulations which specifically govern the federal hazardous 
waste program from base program authorization in 1984 through June 30, 
2015 (RCRA Cluster XXIV).
    All revisions to the applicable hazardous waste program are 
federally approved as of the effective date of this action. The EPA's 
understanding is that, per S.L. 2017, ch. 199, Section 75 (S.B. 2327), 
the state plans to rely on the date the EPA signs this notice for 
purposes of notifying the state legislature that the EPA has approved 
these revisions, which will provide for the transfer authority from 
NDDH to NDDEQ to be effective under state law. The EPA also understands 
that there are some programs that will not be required to be a part of 
this State Legislature approval. Unless and until the NDDEQ rules and 
agency become fully effective under state and federal law, for purposes 
of federal law, the EPA recognizes the state's program as currently 
approved under the North Dakota Department of Health.
    We now make a final decision, subject to receipt of written 
comments that raise concerns with this action, that North Dakota's 
hazardous waste program satisfies all of the requirements necessary to 
qualify for final authorization. Therefore, we grant North Dakota DEQ 
final authorization for the state's hazardous waste program.

F. Who handles permits after the final authorization takes effect?

    North Dakota will continue to 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 were issued by the EPA prior to the effective 
date of this authorization.

G. How does this action affect Indian country (18 U.S.C. 1151) in North 
Dakota?

    The EPA's approval of the North Dakota Hazardous Waste Program 
(state program) does not extend to Indian country, as defined in 18 
U.S.C. 1151. Indian country in North Dakota generally includes:
    1. Lands within the exterior boundaries of the following Indian 
reservations located within North Dakota:
    a. Fort Berthold Indian Reservation
    b. Spirit Lake Reservation
    c. Standing Rock Sioux Reservation
    d. Turtle Mountain Indian Reservation
    2. Any land held in trust by the United States for an Indian tribe, 
and
    3. Any other areas that are ``Indian country'' within the meaning 
of 18 U.S.C. 1151.
    Therefore, this program revision does not extend to Indian country; 
the EPA will retain responsibilities under the Resource Conservation 
Recovery Act of 1976 (RCRA) in Indian country.

II. Administrative Requirements

    The Office of Management and Budget (OMB) has exempted this action 
from the requirements of Executive Orders 12866 (58 FR 51735, October 
4, 1993) and 13563 (76 FR 3821, January 21, 2011). This action 
authorizes state requirements for the purpose of RCRA section 3006 and 
imposes no additional requirements beyond those imposed by state law. 
Therefore, this action is not subject to review by OMB. This action is 
not an Executive Order 13771 (82 FR 9339, February 3, 2017) regulatory 
action because actions such as today's authorization of North Dakota's 
revised hazardous waste program under RCRA are exempted under Executive 
Order 12866. Accordingly, I certify that this action will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this action authorizes pre-existing requirements under state law and 
does not impose any additional enforceable duty beyond that required by 
state law, it does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (2 U.S.C. 1531-1538). For the same reason, 
this action also does not significantly or uniquely affect the 
communities of tribal governments, as specified by Executive Order 
13175 (65 FR 67249, November 9, 2000). This action will not have 
substantial direct effects on the states, on the relationship between 
the national government and the states, or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in Executive Order 13132 (64 FR 43255, August 10, 1999), 
because it merely authorizes state requirements as part of the state 
RCRA hazardous waste program without altering the relationship or the 
distribution of power and responsibilities established by RCRA.
    This action also is not subject to Executive Order 13045 (62 FR 
19885, April 23, 1997), because it is not economically significant, and 
it does not make decisions based on environmental health or safety 
risks. This action is not subject to Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355, May 22, 2001), because it is not a 
significant regulatory action under Executive Order 12866.
    Under RCRA 3006(b), the EPA grants a state's application for 
authorization as long as the state meets the criteria required by RCRA. 
It would thus be inconsistent with applicable law for the EPA, when it 
reviews a state authorization application, to require the use of any 
particular voluntary consensus standard in place of another standard 
that otherwise satisfies the requirements of RCRA. Thus, the 
requirements of section 12(d) of the National Technology Transfer and 
Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required 
by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), 
in issuing this action, the EPA has taken the necessary steps to 
eliminate drafting errors and ambiguity, minimize potential litigation, 
and provide a clear legal standard for affected conduct. The EPA has 
complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by 
examining the takings implications of the action in accordance with the 
``Attorney General's Supplemental Guidelines for the Evaluation of Risk 
and Avoidance of Unanticipated Takings'' issued under the executive 
order. This action does not impose an information collection burden 
under the

[[Page 65104]]

provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et 
seq.). ``Burden'' is defined at 5 CFR 1320.3(b).
    Executive Order 12898 (59 FR 7629, February 16, 1994) establishes 
federal executive policy on environmental justice. Its main provision 
directs federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States. Because this rule authorizes pre-
existing state rules which are at least equivalent to, and no less 
stringent than existing federal requirements, and imposes no additional 
requirements beyond those imposed by state law, and there are no 
anticipated significant adverse human health or environmental effects, 
the rule is not subject to Executive Order 12898.
    The Congressional Review Act, 5 U.S.C. 801-808, generally provides 
that before a rule may take effect, the agency promulgating the rule 
must submit a rule report, which includes a copy of the rule, to each 
House of the Congress and to the Comptroller General of the United 
States. The EPA will submit a report containing this document and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication in the Federal Register. A major rule cannot take effect 
until 60 days after it is published in the Federal Register. This 
action is not a ``major rule'' as defined by 5 U.S.C. 804(2). This 
action will be effective on March 15, 2019.

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.

    Dated: December 13, 2018.
Douglas Benevento,
Regional Administrator, Region 8.
[FR Doc. 2018-27422 Filed 12-18-18; 8:45 am]
 BILLING CODE 6560-50-P
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