[Federal Register Volume 69, Number 236 (Thursday, December 9, 2004)]
[Proposed Rules]
[Pages 71391-71395]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-27028]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 272

[FRL-7846-6]


Idaho: Incorporation by Reference of Approved State Hazardous 
Waste Management Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Resource Conservation and Recovery Act, as amended (RCRA), 
allows EPA to authorize State hazardous waste management programs if 
EPA finds that such programs are equivalent and consistent with the 
Federal program and provide adequate enforcement of compliance. Title 
40 of the Code of Federal Regulations (CFR) Part 272 is used by EPA to 
codify its decision to authorize individual State programs and 
incorporates by reference those provisions of the State statutes and 
regulations that are subject to EPA's inspection and enforcement 
authorities as authorized provisions of the State's program. This rule 
proposes to revise the codification of the Idaho authorized program.

DATES: Comments on this proposed action must be received by the close 
of business January 10, 2005. If EPA receives significant comments on 
this proposed action, EPA will respond to such comments in the Federal 
Register at the time EPA publishes a final rule.

ADDRESSES: Send written comments by mail to Jeff Hunt, U.S. EPA, Region 
10, 1200 Sixth Avenue, Mail stop AWT-122, Seattle, WA 98101, or via e-
mail to <a href="/cdn-cgi/l/email-protection#e8809d869cc6828d8e8ea88d9889c68f879e"><span class="__cf_email__" data-cfemail="ddb5a8b3a9f3b7b8bbbb9db8adbcf3bab2ab">[email protected]</span></a>. You can inspect the records related to this 
codification effort from 8:30 a.m. to 4 p.m. Monday through Friday in 
the EPA Region 10 Library, 1200 Sixth Avenue, Mail stop WCM-122, 
Seattle, WA 98101.

FOR FURTHER INFORMATION CONTACT: Jeff Hunt, U.S. EPA, Region 10, 1200 
Sixth Avenue, Mail stop WCM-122, Seattle, WA 98101, e-mail: 
<a href="/cdn-cgi/l/email-protection#036b766d772d69666565436673622d646c75"><span class="__cf_email__" data-cfemail="563e233822783c3330301633263778313920">[email protected]</span></a>, phone number (206) 553-0256.

SUPPLEMENTARY INFORMATION: 

I. Incorporation by Reference

A. What Is Codification?

    Codification is the process of including the statutes and 
regulations that comprise the State's authorized hazardous waste 
management program in the CFR. Section 3006(b) of RCRA, as amended, 
allows the Environmental Protection Agency (EPA) to authorize State 
hazardous waste management programs. The State regulations

[[Page 71392]]

authorized by EPA supplant the federal regulations concerning the same 
matter with the result that after authorization EPA enforces the 
authorized regulations. Infrequently, State statutory language which 
acts to regulate a matter is also authorized by EPA with the 
consequence that EPA enforces the authorized statutory provision. EPA 
does not authorize State enforcement authorities and does not authorize 
State procedural requirements. EPA codifies the authorized State 
program in 40 CFR part 272 and incorporates by reference State statutes 
and regulations that make up the approved program which is Federally 
enforceable in accordance with Sections 3007, 3008, 3013 and 7003 of 
RCRA, 42 U.S.C. 6927, 6928, 6934 and 6973, and any other applicable 
statutory and regulatory provisions.
    Today's action proposes to codify EPA's authorization of revisions 
to Idaho's hazardous waste management program. This proposed 
codification reflects the State program in effect at the time EPA 
authorized revisions to the Idaho hazardous waste management program in 
a final rule dated March 10, 2004 (69 FR 11322). Notice and an 
opportunity for comment regarding the revisions to the authorized State 
program were provided to the public at the time those revisions were 
proposed. EPA is not reopening its decisions to authorize changes to 
the State's program nor is EPA requesting comment on those revisions.

B. What Is the History of the Authorization and Codification of Idaho's 
Hazardous Waste Management Program?

    Idaho initially received final authorization for its hazardous 
waste management program, effective April 9, 1990 (55 FR 11015). 
Subsequently, EPA authorized revisions to the State's program effective 
June 5, 1992 (57 FR 11580), August 10, 1992 (57 FR 24757), June 11, 
1995 (60 FR 18549), January 19, 1999 (63 FR 56086), July 1, 2002 (67 FR 
44069), and March 10, 2004 (69 FR 11322). EPA first codified Idaho's 
authorized hazardous waste program effective February 4, 1991 (55 FR 
50327), and updated the codification of Idaho's program on June 5, 1992 
(57 FR 11580), August 10, 1992 (57 FR 24757), and August 24, 1999 (64 
FR 34133). In this action, EPA is proposing to revise Subpart N of 40 
CFR part 272, to include the recent authorization revision actions 
effective July 1, 2002 (67 FR 44069) and March 10, 2004 (69 FR 11322).

C. What Decisions Have We Proposed in This Action?

    Today's action proposes to codify EPA's authorization of revisions 
to Idaho's hazardous waste management program. The proposed 
codification will incorporate by reference the most recent version of 
the State's authorized hazardous waste management regulations. This 
proposed action does not reopen any decision EPA previously made 
concerning the authorization of the State's hazardous waste management 
program. EPA is not requesting comments on its decisions published in 
the Federal Register notices referenced in section B of this document 
concerning revisions to the authorized program in Idaho.
    EPA is proposing to incorporate by reference the authorized 
revisions to the Idaho hazardous waste program by revising subpart N of 
40 CFR part 272. 40 CFR part 272, subpart N, Sec.  272.651 currently 
incorporates by reference Idaho's authorized hazardous waste program, 
as amended, through 1999. Section 272.651 also references the 
demonstration of adequate enforcement authority, including procedural 
and enforcement provisions, which provide the legal basis for the 
State's implementation of the hazardous waste management program. In 
addition, Sec.  272.651 references the Memorandum of Agreement, the 
Attorney General's Statement and the Program Description which were 
evaluated as part of the approval process of the hazardous waste 
management program in accordance with Subtitle C of RCRA.

D. What Is the Effect of Idaho's Codification on Enforcement?

    EPA retains the authority under statutory provisions, including but 
not limited to, RCRA sections 3007, 3008, 3013 and 7003, and any other 
applicable statutory and regulatory provisions, to undertake 
inspections and enforcement actions and to issue orders in all 
authorized States. With respect to enforcement actions, EPA will rely 
on Federal sanctions, Federal inspection authorities, and Federal 
procedures rather than the State analogues to these provisions. 
Therefore, the EPA is not proposing to incorporate by reference Idaho's 
inspection and enforcement authorities nor are those authorities part 
of Idaho's approved State program which operates in lieu of the Federal 
program. 40 CFR 272.651(b)(2) lists these authorities for informational 
purposes, and also because EPA considered them in determining the 
adequacy of Idaho's enforcement authorities. This action proposes to 
revise this listing for informational purposes where these authorities 
have changed under Idaho's revisions to State law and were considered 
by EPA in determining the adequacy of Idaho's enforcement authorities. 
Idaho's authority to inspect and enforce the State's hazardous waste 
management program requirements continues to operate independently 
under State law.

E. What State Provisions Are Not Proposed as Part of the Codification?

    The public is reminded that some provisions of Idaho's hazardous 
waste management program are not part of the federally authorized State 
program. These non-authorized provisions include:
    (1) Provisions that are not part of the RCRA subtitle C program 
because they are ``broader in scope'' than RCRA subtitle C (see 40 CFR 
271.1(i));
    (2) Federal rules for which Idaho is not authorized, but which have 
been incorporated into the State regulations because of the way the 
State adopted federal regulations by reference;
    (3) State procedural and enforcement authorities which are 
necessary to establish the ability of the program enforce compliance 
but which do not supplant the Federal statutory enforcement and 
procedural authorities.
    State provisions that are ``broader in scope'' than the federal 
program are not incorporated by reference in 40 CFR part 272. For 
reference and clarity, 40 CFR 272.651(b)(3) currently lists the Idaho 
regulatory provisions which are ``broader in scope'' than the federal 
program and which are not part of the authorized program being 
incorporated by reference. This action proposes to update that list for 
``broader in scope'' provisions EPA identified in recent authorization 
actions for revisions to the State program. While ``broader in scope'' 
provisions are not part of the authorized program and cannot be 
enforced by EPA, the State may enforce such provisions under State law.
    Idaho has adopted but is not authorized for certain sections of the 
Post Closure rule (Standards Applicable to Owners and Operators of 
Closed and Closing Hazardous Waste Management Facilities: Post-Closure 
Permit Requirement and Closure Process; Final Rule) promulgated by EPA 
on October 22, 1998 (63 FR 56710). These unauthorized sections of the 
Post Closure rule include the State analogs to Federal citations 40 CFR 
270.1(c)(7), 40 CFR 265.121, 40 CFR 265.110(c), and 40 CFR 
265.118(c)(4). Additionally, Idaho is authorized for State analogs to 
Federal 40 CFR 264.90(e), 264.90(f), 264.110(c), 264.112(b)(8),

[[Page 71393]]

264.112(c)(2)(iv), 264.118(b)(4), 264.118(d)(2)(iv), 264.140(d), 
265.90(f), 265.110(d), 265.112(b)(8), 265.118(c)(5), 265.140(d), 
270.1(c) introductory text, and 270.28 except where those sections 
reference the use of enforceable documents in the context of the Post 
Closure rule. Idaho did not seek, nor receive, authorization for 
language in those sections which state as follows: ``* * * or in an 
enforceable document (as defined in 270.1(c)(7).'' Therefore, these 
Federal amendments included in Idaho's adoption by reference at IDAPA 
58.01.05.000, et seq., but which are not part of the State's authorized 
program will not be included in this proposed codification.

F. What Will Be the Effect of the Proposed Codification on Federal HSWA 
Requirements?

    With respect to any requirement(s) pursuant to the Hazardous and 
Solid Waste Amendments of 1984 (HSWA) for which the State has not yet 
been authorized and which EPA has identified as taking effect 
immediately in States with authorized hazardous waste management 
programs, EPA will enforce those Federal HSWA standards until the State 
is authorized for those provisions.
    The proposed Codification does not effect Federal HSWA requirements 
for which the State is not authorized. EPA has authority to implement 
HSWA requirements in all States, including States with authorized 
hazardous waste management programs, until the States become authorized 
for such requirements or prohibitions unless EPA has identified the 
HSWA requirement(s) as an optional or as a less stringent requirement 
of the Federal program. A HSWA requirement or prohibition, unless 
identified by EPA as optional or as less stringent, supersedes any less 
stringent or inconsistent State provision which may have been 
previously authorized by EPA (50 FR 28702, July 15, 1985).
    Some existing State requirements may be similar to the HSWA 
requirements implemented by EPA. However, until EPA authorizes those 
State requirements, EPA enforces the HSWA requirements and not the 
State analogs.

II. Statutory and Executive Order Reviews

    This action proposes to codify EPA-authorized hazardous waste 
management requirements pursuant to RCRA Section 3006 and imposes no 
requirements other than those imposed by State law (see Supplementary 
Information). Therefore, this proposed action complies with applicable 
executive orders and statutory provisions as follows:
    1. Executive Order 12866: Regulatory Planning Review--The Office of 
Management and Budget (OMB) has exempted this action from the 
requirements of Executive Order 12866 (58 FR 51735, October 4, 1993).
    2. Paperwork Reduction Act--This proposed action does not impose an 
information collection burden under the Paperwork Reduction Act.
    3. Regulatory Flexibility Act--This action proposes to codify 
Idaho's authorized hazardous waste management regulations in the CFR 
and does not impose new burdens on small entities. After considering 
the economic impacts of today's proposed rule on small entities under 
the Regulatory Flexibility Act, I certify that this action will not 
have a significant economic impact on a substantial number of small 
entities.
    4. Unfunded Mandates Reform Act--Because this action proposes to 
codify pre-existing requirements under State law which EPA already 
approved under 40 CFR part 271 and does not impose any additional 
enforceable duty beyond that required by State law or existing Federal 
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).
    5. Executive Order 13132: Federalism--Executive Order 13132 does 
not apply to this proposed action 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). This action proposes to codify existing authorized State 
hazardous waste management program requirements without altering the 
relationship or the distribution of power and responsibilities 
established by RCRA.
    6. Executive Order 13175: Consultation and Coordination with Indian 
Tribal Governments--Executive Order 13175 does not apply to this 
proposed action because this action does not have tribal implications 
(i.e., substantial direct effects on one or more Indian tribes, on the 
relationship between the Federal government and the 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 and Safety Risks--This proposed action is not subject to 
Executive Order 13045 because it is not economically significant and it 
does not make decisions based on environmental health or safety risks.
    8. Executive Order 13211: Actions that Significantly Affect Energy 
Supply, Distribution, or Use--This proposed action is not subject to 
Executive Order 13211 because it is not a significant regulatory action 
under Executive Order 12866.
    9. National Technology Transfer and Advancement Act (NTTAA)--EPA 
previously addressed the non-applicability of the NTTAA in its final 
approvals to revisions of the State's authorized hazardous waste 
management program. See section B of this proposed rule for the 
citations to the Federal Register for EPA's approval of revisions to 
the State's authorized hazardous waste management program. Section 
12(d) of the NTTAA does not apply to this action.
    10. Executive Order 12988--EPA has taken the necessary steps in 
this proposed action to eliminate drafting errors and ambiguity, 
minimize potential litigation, and provide a clear legal standard for 
affected conduct.

List of Subjects in 40 CFR Part 272

    Environmental protection, Administrative practice and procedure, 
Confidential business information, Hazardous waste, Hazardous waste 
transportation, Incorporation by reference, Indian lands, 
Intergovernmental relations, Penalties, Reporting and recordkeeping 
requirements, Water pollution control, Water supply.

    Authority: This proposed 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: November 22, 2004.
Ronald A. Kreizenbeck,
Acting Regional Administrator, Region 10.
    For the reasons set forth in the preamble, EPA proposes to amend 40 
CFR part 272 as follows:

PART 272--APPROVED STATE HAZARDOUS WASTE MANAGEMENT PROGRAMS

    1. The authority citation for part 272 continues to read as 
follows:

    Authority: Secs. 2002(a), 3006, and 7004(b) of the Solid Waste 
Disposal Act, as amended by the Resource Conservation and Recovery 
Act, as amended, 42 U.S.C. 6912(a), 6926, and 6974(b).

    2. Subpart N is amended by revising Sec.  272.651 to read as 
follows:

[[Page 71394]]

Sec.  272.651  Idaho State-administered program: Final authorization.

    (a) Pursuant to section 3006(b) of RCRA, 42 U.S.C. 6926(b), Idaho 
has final authorization for the following elements as submitted to EPA 
in Idaho's base program application for final authorization which was 
approved by EPA effective on April 9, 1990. Subsequent program revision 
applications were approved effective on June 5, 1992, August 10, 1992, 
June 11, 1995, January 19, 1999, July 1, 2002, and March 10, 2004.
    (b) The State of Idaho has primary responsibility for enforcing its 
hazardous waste management program. However, EPA retains the authority 
to exercise its inspection and enforcement authorities in accordance 
with sections 3007, 3008, 3013, 7003 of RCRA, 42 U.S.C. 6927, 6928, 
6934, 6973, and any other applicable statutory and regulatory 
provisions, regardless of whether the State has taken its own actions, 
as well as in accordance with other statutory and regulatory 
provisions.
    (c) State statutes and regulations. (1) The Idaho statutes and 
regulations cited in this paragraph are incorporated by reference as 
part of the hazardous waste management program under subtitle C of 
RCRA, 42 U.S.C. 6921 et seq.
    (i) The EPA Approved Idaho Statutory Requirements Applicable to the 
Hazardous Waste Management Program, March 2004.
    (ii) The EPA Approved Idaho Regulatory Requirements Applicable to 
the Hazardous Waste Management Program, March 2004.
    (2) EPA considered the following statutes and regulations in 
evaluating the State program but is not incorporating them herein for 
enforcement purposes:
    (i) Idaho Code (I.C.) containing the General Laws of Idaho 
Annotated, Title 39, Chapter 44, ``Hazardous Waste Management'', 
published in 2002 by the Michie Company, Law Publishers: sections 39-
4404; 39-4405 (except 39-4405(8)); 39-4406; 39-4407; 39-4408(4); 39-
4409(2) (except first sentence); 39-4409(3); 39-4409(4) (first 
sentence); 39-4410; 39-4411(1); 39-4411(3); 39-4411(6); 39-4412 through 
39-4416; 39-4418; 39-4419; 39-4421; 39-4422; and 39-4423(3)(a) and (b).
    (ii) Idaho Code (I.C.) containing the General Laws of Idaho 
Annotated, Title 39, Chapter 58, ``Hazardous Waste Facility Siting 
Act'', published in 2002 by the Michie Company, Law Publishers: 
sections 39-5804; 39-5809; 39-5810; 39-5813(2); 39-5814; 39-5816; 39-
5817; and 39-5818(1).
    (iii) Idaho Code (I.C.) containing the General Laws of Idaho 
Annotated, Volume 2, Title 9, Chapter 3, ``Public Writings'', published 
in 1990 by the Michie Company, Law Publishers, Charlottesville, 
Virginia: sections 9-337(10); 9-337(11); 9-338; 9-339; and 9-344(2).
    (iv) 2002 Cumulative Pocket Supplement to the Idaho Code (I.C.), 
Volume 2, Title 9, Chapter 3, ``Public Writing'', published in 2002 by 
the Michie Company, Law Publishers, Charlottesville, Virginia: sections 
9-340A, 9-340B, and 9-343.
    (v) Idaho Department of Environmental Quality Rules and 
Regulations, Idaho Administrative Code, IDAPA 58, Title 1, Chapter 5, 
``Rules and Standards for Hazardous Waste'', as published July 2002: 
sections 58.01.05.000; 58.01.05.356.02 through 58.01.05.356.05; 
58.01.05.800; 58.01.05.850; 58.01.05.996; 58.01.05.997; and 
58.01.05.999.
    (3) The following statutory and regulatory provisions are broader 
in scope than the Federal program, are not part of the authorized 
program, are not incorporated by reference, and are not federally 
enforceable:
    (i) Idaho Code containing the General Laws of Idaho Annotated, 
Title 39, Chapter 44, ``Hazardous Waste Management'', published in 2002 
by the Michie Company, Law Publishers: sections 39-4403(6) and (14); 
39-4427; 39-4428 and 39-4429.
    (ii) Idaho Code containing the General Laws of Idaho Annotated, 
Title 39, Chapter 58, ``Hazardous Waste Siting Act'', published in 2002 
by the Michie Company, Law Publishers: section 39-5813(3).
    (iii) Idaho Department of Environmental Quality Rules and 
Regulations, Idaho Administrative Code, IDAPA 58, Title 1, Chapter 5, 
``Rules and Standards for Hazardous Waste'', as published July 2002: 
sections 58.01.05.355; and 58.01.05.500.
    (4) Memorandum of Agreement. The Memorandum of Agreement between 
EPA Region 10 and the State of Idaho (IDEQ), signed by the EPA Regional 
Administrator on August 1, 2001, although not incorporated by 
reference, is referenced as part of the authorized hazardous waste 
management program under subtitle C of RCRA, 42 U.S.C. 6921 et seq.
    (5) Statement of Legal Authority. The ``Attorney General's 
Statement for Final Authorization,'' signed by the Attorney General of 
Idaho on July 5, 1988 and revisions, supplements and addenda to that 
Statement, dated July 3, 1989, February 13, 1992, December 29, 1994, 
September 16, 1996, October 3, 1997, April 6, 2001, and September 11, 
2002, although not incorporated by reference, are referenced as part of 
the authorized hazardous waste management program under subtitle C of 
RCRA, 42 U.S.C. 6921 et seq.
    (6) Program Description. The Program Description, and any other 
materials submitted as part of the original application or as 
supplements thereto, although not incorporated by reference, are 
referenced as part of the authorized hazardous waste management program 
under subtitle C of RCRA, 42 U.S.C. 6921 et seq.
    3. Appendix A to part 272, State Requirements, is amended by 
revising the listing for ``Idaho'' to read as follows:

Appendix A to Part 272--State Requirements

* * * * *

Idaho

    (a) The statutory provisions include:
    Idaho Code containing the General Laws of Idaho Annotated, Title 
39, Chapter 44, ``Hazardous Waste Management'', 2002: sections 39-
4402; 39-4403 (except 39-4403(6) and (14)); 39-4408(1)-(3); 39-
4409(1) (except fourth and fifth sentences); 39-4409(2) (first 
sentence); 39-4409(4) (except first sentence); 39-4409(5); 39-
4409(6); 39-4409(7); 39-4409(8); 39-4411(2); 39-4411(4); 39-4411(5); 
39-4423 (except 39-4423(3)(a) and (b)); and 39-4424.
    Idaho Code containing the General Laws of Idaho Annotated, Title 
39, Chapter 58, ``Hazardous Waste Facility Siting Act'', published 
in 2002 by the Michie Company, Law Publishers: sections 39-5802; 39-
5803; 39-5808; 39-5811; 39-5813(1); and 39-5818(2).
    Copies of the Idaho statutes that are incorporated by reference 
are available from Michie Company, Law Publishers, 1 Town Hall 
Square, Charlottesville, VA 22906-7587.
    (b) The regulatory provisions include:
    Idaho Department of Environmental Quality Rules and Regulations, 
Idaho Administrative Code, IDAPA 58, Title 1, Chapter 5, ``Rules and 
Standards for Hazardous Waste'', as published on July 2002: sections 
58.01.05.001; 58.01.05.002; 58.01.05.003; 58.01.05.004; 
58.01.05.005; 58.01.05.006; 58.01.05.007; 58.01.05.008; 
58.01.05.009; 58.01.05.010; 58.01.05.011; 58.01.05.012; 
58.01.05.013; 58.01.05.014; 58.01.05.015; 58.01.05.016; 
58.01.05.356.01; and 58.01.05.998, except where any of those 
sections reference the use of enforceable documents in the context 
of the Post Closure rule. Idaho did not seek, nor receive, 
authorization for language in those sections which states as 
follows: ``* * * or in an enforceable document (as defined in 
270.1(c)(7).'' Therefore, these Federal amendments included in 
Idaho's adoption by reference at IDAPA 58.01.05.000, et seq., are 
not part of the State's authorized program. Nor does Idaho's 
authorized program include the Federal regulations at 40 CFR 
270.1(c)(7), 40 CFR 265.121, 40 CFR 265.110(c) or 40 CFR

[[Page 71395]]

265.119(c)(4) because Idaho did not seek authorization for those 
sections.
* * * * *
[FR Doc. 04-27028 Filed 12-8-04; 8:45 am]
BILLING CODE 6560-50-P


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