[Federal Register Volume 65, Number 12 (Wednesday, January 19, 2000)]
[Rules and Regulations]
[Pages 2897-2903]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-1067]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 271

[FRL-6525-5]


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

AGENCY:  Environmental Protection Agency (EPA).

[[Page 2898]]


ACTION:  Immediate final rule.

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SUMMARY:  North Dakota has applied to EPA for Final authorization of 
changes to its hazardous waste program under the Resource Conservation 
and Recovery Act (RCRA). EPA has determined that these changes satisfy 
all requirements for Final authorization, and is authorizing the 
State's changes through this immediate Final action. EPA is publishing 
this rule to authorize the changes without a prior proposed rule 
because we believe this action is not controversial. Unless we get 
written comments opposing this authorization during the comment period, 
the decision to authorize North Dakota's changes to their hazardous 
waste program will take effect as provided below. If we receive 
comments that oppose this action, we will publish a document in the 
Federal Register withdrawing this rule before it takes effect. A 
separate document in the proposed rules section of this Federal 
Register will serve as the proposal to authorize the State's changes.

DATES:  This immediate final rule will become effective March 20, 2000 
unless EPA receives significant adverse or critical comments by 
February 18, 2000. If written significant adverse or critical comments 
are received, EPA will publish a timely withdrawal of the rule in the 
Federal Register, informing the public that the rule will not take 
effect.

ADDRESSES:  Send written comments to Kris Shurr, 8P-HW, U.S. EPA, 
Region VIII, 999 18th St, Ste 500, Denver, Colorado 80202-2466, phone 
number: (303) 312-6139. You can view and copy North Dakota's 
application at the following addresses: NDDH from 9:00 AM to 4:00 PM, 
1200 Missouri Ave, Bismarck, ND, 58504-5264, contact: Curt Erickson, 
phone number (701) 328-5166 and EPA Region VIII, from 8:00 AM to 3:00 
PM, 999 18th Street, Suite 500, Denver, Colorado 80202-2466, contact: 
Kris Shurr, phone number: (303) 312-6139.

FOR FURTHER INFORMATION CONTACT:  Kris Shurr, EPA Region VIII, 999 18th 
Street, Suite 500, Denver, Colorado 80202-2466, phone number: (303) 
312-6139.

SUPPLEMENTARY INFORMATION:

A. Why Are Revisions To State Programs Necessary?

    States that have received final authorization from EPA under RCRA 
section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous waste 
program equivalent to, consistent with, and no less stringent than the 
Federal program. As the Federal program changes, States must change 
their programs and ask EPA to authorize their 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 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?

    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. North Dakota has 
responsibility for permitting Treatment, Storage, and Disposal 
Facilities (TSDFs) within its borders, except in Indian Country, and 
for carrying out those portions 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 EPA under the authority of 
HSWA take effect immediately and will be implement by EPA until the 
State is granted authorization.

C. What is The Effect of Today's Authorization Decision?

    The effect of this decision is that a facility in North Dakota 
subject to RCRA will now have to comply with the authorized State 
requirements instead of the equivalent Federal requirements. North 
Dakota has primary enforcement responsibilities under its state 
hazardous waste program for violations of the program, but EPA retains 
its authority under RCRA sections 3007, 3008, 3013, and 7003, which 
include, among others, authority to:
    <bullet> conduct inspections, and require monitoring, tests, 
analyses, or reports; and
    <bullet> enforce RCRA requirements and suspend or revoke permits.
    This action does not impose additional requirements on the 
regulated community because the regulations for which North Dakota is 
being authorized are already effective, and are not changed by today's 
action.

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 opposing 
this approval. We are providing an opportunity for public comment at 
this time. In addition, in the proposed rules section of today's 
Federal Register, there is a separate document that proposes to 
authorize the State program changes. If we receive comments opposing 
this authorization, that document will serve as a proposal to authorize 
the changes.

E. What Happens if EPA Receives Comments Opposing This Action?

    If EPA receives comments opposing this authorization, we will 
withdraw this rule by publishing a document in the Federal Register 
before the rule becomes effective. We then will address all public 
comments in a later Federal Register. You may not have another 
opportunity to comment. If you want to comment on this action, you must 
do so at this time.
    If we receive comments opposing authorization of only a particular 
change to the State hazardous waste program, we will withdraw that part 
of the rule. However, the authorization of program changes that are not 
opposed by any comments 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 North Dakota Previously Been Authorized For?

    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), and 
April 7, 1994, effective June 6, 1994 (59 FR 16566).

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

    In October 1994, North Dakota submitted a final revision 
application, seeking authorization of program changes in accordance 
with 40 CFR 271.21. At EPA's request, North Dakota amended its 
application in July 1995, July 1997, August 1998, and September 1999.
    We have determined that the manner in which the North Dakota 
incorporates Federal regulations by reference may cause confusion 
within the regulated community. During State rulemaking, North Dakota 
publishes a Public Notice setting forth which Federal rules are adopted 
by reference, including the date of those Federal rules. However,

[[Page 2899]]

publications of State rules after the Public Notice do not include the 
date of applicable Federal rules. As a result, the regulated community 
may need to read the North Dakota Public Notice to know which Federal 
rule applies. With North Dakota's agreement, EPA is approving the 
current application with the understanding that the State will include 
Federal regulation dates in the next and all future incorporation-by-
reference rulemaking.
    We now make an immediate final decision, subject to receipt of 
written comments opposing this action, that North Dakota's hazardous 
waste program revision satisfies all of the requirements necessary for 
Final authorization. Therefore, we grant North Dakota Final 
authorization for the following program changes:

----------------------------------------------------------------------------------------------------------------
           Description of Federal requirement                  Analogous State authority and effective date
----------------------------------------------------------------------------------------------------------------
Exceptions to the Burning & Blending of Hazardous Waste  NDCC 23-20.3-04/1987, NDAC 33-24-02-04; NDAC 33-24-02-
 [HSWA 3004(q)(2)(A) & 3004 (r)(2) & (3)] (Non-           06.
 checklist BB).
Hazardous & Used Oil Fuel Criminal Penalties [HSWA       NDCC 23-20.3-09/1987 NDAC 33-24-05-600 thru 689.
 3006(h), 3008(d), & 3014] (Non-checklist CP).
Sharing of Information With the Agency for Toxic         NDCC 44-04-18/1987.
 Substances & Disease Registry [HSWA 3019, 07/15/85]
 (Non-checklist SI).
Surface Impoundment Requirements [HSWA 3005 (j)(1) &     NDCC 23-20.3-04; 23-20.3-05/1987, NDAC 33-24-06-16.
 (6)] (Non-checklist SR1).
Surface Impoundment Requirements [HSWA 3005 (j)(2)-(9)   NDCC 23-20.3-04/1987, NDAC 33-24-06-16.
 &(13)] (Non-checklist SR2).
Permit Modifications for Hazardous Waste Management      33-24-07-03; 33-24-05-29; 33-24-05-61; 33-24-05-67; 33-
 Facilities [53 FR 37912-37942, 09/28/88 & 53 FR 41649,   24-06-16; 33-24-01-04; 33-24-06-10; 33-24-06-04; 33-24-
 10/24/88] (Checklist 54 & 54.1).                         06-11; 33-24-06-12; 33-24-06-14; 33-24-06-19.
Identification & Listing of Hazardous Waste; Removal of  33-24-02-18; 33-24-02, Appendix V.
 Iron Dextran from the list of Hazardous Wastes [53 FR
 43878-43881, 10/31/88] (Checklist 56).
Identification & Listing of Hazardous Waste; Removal of  33-24-02-18; 33-24-02, Appendix V.
 Strontium Sulfide from the list of Hazardous Wastes
 [53 FR 43881-43884, 10/31/88] (Checklist 57).
Changes to Interim Status Facilities for Hazardous       33-24-07-01; 33-24-07-11; 33-24-07-14; 33-24-06-01; 33-
 Waste Management Permits; Procedures for Post-Closure    24-06-13; 33-24-06-14; 33-24-06-16.
 Permitting [54 FR 9596-9609, 03/07/89] (Checklist 61).
Land Disposal Restrictions; Amendments to First Third    33-24-05-283.
 Scheduled Wastes [54 FR 18836-18838, 05/02/89]
 (Checklist 62).
Land Disposal Restrictions; Corrections to the First     33-24-05-250; 33-24-05-254; 33-24-05-254; 33-24-05-255;
 Third Scheduled Wastes [54 FR 36967, 09/06/89 & 55 FR    33-24-05-256; 33-24-05-257; 33-24-05-272; 33-24-05-
 23935, 06/13/90] (Checklist 66 & 66.1).                  273; 33-24-05-284; 33-24-05-290.
Modification of F019 Listing [55 FR 5340-5342, 02/14/    33-24-02-16.
 90] (Checklist 72).
Listing of 1,1-Dimethylhydrazine Production Wastes [55   33-24-02-17; 33-24-02.
 FR 18496-18506, 05/02/90] (Checklist 75).
Land Disposal Restrictions for Third Third Scheduled     33-24-02, App IV; 33-24-02-10 thru 14; 33-24-02-16; 33-
 Wastes [55 FR 22520-22720, 06/01/90] (Checklist 78H &    24-02-18; 33-24-03-02; 33-24-03-12; 33-24-05,
 N).                                                      Appendices VIII thru XI; 33-24-05, Appendix XIII 33-24-
                                                          05-04; 33-24-05-120; 33-24-05-133; 33-24-05-168; 33-24-
                                                          05-181; 33-24-05-185; 33-24-05-250 thru 252; 33-24-05-
                                                          256; 33-24-05-258; 33-24-05-275; 33-24-05-280 thru
                                                          283; 33-24-06-14; 33-24-06-16.
Toxicity Characteristic; Hydrocarbon Recovery            33-24-02-04.
 Operations [55 FR 40834-40837, 10/05/90; 56 FR 3978,
 02/01/91; 56 FR 13406-13411, 04/02/91] (Checklist 80,
 80.1, & 80.2).
Petroleum Refinery Primary & Secondary Oil/Water/Solids  33-24-02, Appendix IV; 33-24-02-16.
 Separation Sludge Listings (F037 & F038) [55 FR 46354-
 46397, 11/02/90; 55 FR 51707, 12/17/90] (Checklist 81
 & 81.1).
Wood Preserving Listings [55 FR 50450-50490, 12/6/90]    33-24-02, Table 1, Appendix III; 33-24-02, Appendices
 (Checklist 82).                                          IV & V; 33-24-01-04; 33-24-02-04; 33-24-02-16; 33-24-
                                                          02-19; 33-24-03-12; 33-24-05-103; 33-24-05-501 thru
                                                          506; 33-24-06-16; 33-24-06-17.
Land Disposal Restrictions for Third Third Scheduled     33-24-02-03; 33-24-02-10; 33-24-02-16; 33-24-03-02; 33-
 Wastes; Technical Amendments [56 FR 3864-3928, 01/31/    24-03-12; 33-24-05-251; 33-24-05-256; 33-24-05-258; 33-
 91] (Checklist 83).                                      24-05-273; 33-24-05-275; 33-24-05-280 thru 283; 33-24-
                                                          05, Appendices I, V, VIII, IX, XI, & XIII.
Toxicity Characteristic; Chlorofluorocarbon              33-24-02-04.
 Refrigerants [56 FR 5910-5915, 02/13/91] (Checklist
 84).
Removal of Strontium Sulfide from the List of Hazardous  33-24-02, Appendix V; 33-24-02-18.
 Wastes; Technical Amendment [56 FR 7567-7568, 02/25/
 91] (Checklist 86).
Organic Air Emission Standards for Process Vents &       33-24-05-400; 33-24-05-403; 33-24-05-405; 33-24-05-422;
 Equipment Leaks; Technical Amendment [56 FR 19290, 04/   33-24-06-16; 33-24-06-17.
 26/91] (Checklist 87).
Administrative Stay for K069 Listing [56 FR 19951, 05/   33-24-02-17.
 01/91] (Checklist 88).
Revision to the Petroleum Refining Primary & Secondary   33-24-02-16.
 Oil/Water/Solids Separation Sludge Listings (F037 &
 F038) [56 FR 21955-21960, 05/13/91] (Checklist 89).
Mining Waste Exclusion III [56 FR 27300-27330, 06/13/    33-24-02-04.
 91] (Checklist 90).

[[Page 2900]]

 
Wood Preserving Listings [56 FR 27332-27336, 06/13/91]   33-24-02-16; 33-24-05-504; 33-24-06-16.
 (Checklist 91).
Wood Preserving Listings; Technical Corrections [56 FR   33-24-02-04; 33-24-02-19; 33-24-03-12; 33-24-05-501; 33-
 30192-30198, 7/1/91] (Checklist 92).                     24-05-502 thru 506; 33-24-06-16; 33-24-06-17.
Land Disposal Restrictions for Electric Arc Furnace      33-24-02-03; 33-24-02-04; 33-24-05-281; 33-24-05-282.
 Dust (K061) [56 FR 41164-41178, 8/19/91] (Checklist
 95).
Exports of Hazardous Waste; Technical Correction [56 FR  33-24-03-20; 33-24-03-23.
 43704-43705] (Checklist 97).
Amendments to Interim Status Standards for Down-         33-24-01-04; 33-24-06-16.
 gradient Ground-Water Monitoring Well Locations [56 FR
 66365-66369, 12/23/91] (Checklist 99).
Liners & Leak Detection Systems for Hazardous Waste      33-24-01-04; 33-24-05-06; 33-24-05-10; 33-24-05-40; 33-
 Land Disposal Units [57 FR 3462-3497, 1/29/92]           24-05-119; 33-24-05-120; 33-24-05-122; 33-24-05-126;
 (Checklist 100).                                         33-24-05-127; 33-24-05-131; 33-24-05-132; 33-24-05-
                                                          137; 33-24-05-138; 33-24-05-177; 33-24-05-178; 33-24-
                                                          05-180; 33-24-05-187; 33-24-05-188; 33-24-06-10; 33-24-
                                                          06-14; 33-24-06-16; 33-24-06-17.
Administrative Stay for the Requirement that Existing    33-24-06-16.
 Drip Pads Be Impregnable [57 FR 5859-5861, 2/18/92]
 (Checklist 101).
Second Correction to the Third Third Land Disposal       33-24-05-04; 33-24-05-252; 33-24-05-281; 33-24-05-282;
 Restrictions [57 FR 8086-8089, 3/6/92] (Checklist 102). 33-24-06-16
Hazardous Debris Case-by-Case Capacity Variance [57 FR
 20766-20770, 5/15/92] (Checklist 103).
33-24-05-275...........................................
Used Oil Filter Exclusion [57 FR 21524-21534, 5/29/92]   33-24-02-04
 (Checklist 104).
Lead-bearing Hazardous Materials Case-by-Case Capacity   33-24-05-275.
 Variance [57 FR 28628-28632, 6/26/92] (Checklist 106).
Used Oil Filter Exclusion: Technical Corrections [57 FR  33-24-02-04.
 29220, 7/1/92] (Checklist 107).
Toxicity Characteristics Revisions: Technical            33-24-02-04; 33-24-06-16.
 Corrections [57 FR 30657-30658, 07/10/92] (Checklist
 108).
Land Disposal Restrictions for Newly Listed Wastes &     33-24-01-04; 33-24-02-03; 33-24-03-12; 33-24-05,
 Hazardous Debris [57 FR 37194-37282] (Checklist 109).    Appendix VI; 33-24-05-59 thru 61; 33-24-05-74; 33-24-
                                                          05-76; 33-24-05-251; 33-24-05-254; 33-24-05-256; 33-24-
                                                          05-258; 33-24-05-265; 33-24-05-276; 33-24-05-280 thru
                                                          283; 33-24-05-285; 33-24-05-286; 33-24-05-290; 33-24-
                                                          05-475 thru 500; 33-24-06-14; 33-24-06-16; 33-24-06-
                                                          17.
Consolidated Liability Requirements [53 FR 33938-33960,  33-24-05-75; 33-24-05-77; 33-24-05-79; 33-24-05-81; 33-
 9/1/88; 56 FR 30200, 7/1/91; 57 FR 42832-42844, 9/16/    24-06-16.
 92] (Checklist 113).
Chlorinated Toluenes Production Waste Listing [57 FR     33-24-02, Appendix IV; 33-24-02-17.
 47376-47386, 10/15/92] (Checklist 115).
Hazardous Soil Case-By-Case Capacity Variance [57 FR     33-24-05-275.
 47772-47776, 10/20/92] (Checklist 116).
Toxicity Characteristic Amendment [57 FR 23062-23063,    33-24-02-03.
 06/01/92] (Checklist 117B).
Liquids in Landfills II [57 FR 54452-54461, 11/18/92]    33-24-05-04; 33-24-05-183; 33-24-05-185; 33-24-06-16.
 (Checklist 118).
Toxicity Characteristic Revision; TCLP Correction [57    33-24-02, Appendix II.
 FR 55114-55117, 11/24/92] (Checklist 119).
Wood Preserving: Revisions to Listings & Technical       33-24-02-16; 33-24-05-501 thru 504; 33-24-06-16.
 Requirements [57 FR 61492-61505, 12/24/92] (Checklist
 120).
Corrective Action Management Units & Temporary Units     33-24-01-04; 33-24-05-01; 33-24-05-58; 33-24-05-251; 33-
 [58 FR 8658-8685, 2/16/93] (Checklist 121).              24-05-552; 33-24-05-553; 33-24-06-14; 33-24-06-16.
Land Disposal Restrictions; Renewal of the Hazardous     33-24-05-275.
 Waste Debris Case-By-Case Capacity Variance [58 FR
 28506-28511, 5/14/93] (Checklist 123).
Land Disposal Restrictions for Ignitable & Corrosive     33-24-05-01; 33-24-05-250; 33-24-05-251; 33-24-05-256;
 Characteristic Wastes Whose Treatment Standards Were     33-24-05-258; 33-24-05-277; 33-24-05-280 thru 283; 33-
 Vacated [58 FR 29860-29887, 5/24/93] (Checklist 124).    24-06-14; 33-24-6-16.
----------------------------------------------------------------------------------------------------------------
\1\ North Dakota Administrative Code (NDAC), Article 33-24, as amended through January 1, 1994, unless otherwise
  indicated.

H. Where Are the Revised State Rules Different Fromt he Federal 
Rules?

    We consider the following State requirements to be more stringent 
than the Federal requirements: 33-24-01-04.27, because the State does 
not allow a closed or closing unit to be designated as a corrective 
action management unit; 33-24-02-04.2.i, because the State excludes 
only discarded wood or wood products that fail for the Toxic 
Characteristic Leaching Procedure for arsenic while Federal rules 
exclude discarded wood or wood products that fail for Hazardous Waste 
Codes D004 through D017; 33-24-03-12.1.a(1), because North Dakota 
subjects containers to full status rather than interim status 
standards; 33-24-03-12.1.a(2), because North Dakota subjects tanks to 
full status rather than interim status standards; 33-24-03-12.1.a(1), 
because North Dakota subjects containment buildings to full status 
rather than interim status standards; 33-24-05-01.2, because the State 
does not allow for interim status facilities; 33-

[[Page 2901]]

24-05-04.1.a, because the State does not allow owners/operators of 
closed landfills to accept non-hazardous waste under certain 
conditions; 33-24-05-256.2.e.(3), because the State does not allow a 
treatment facility with interim status units to treat hazardous waste; 
33-24-05-281.2, because the State does not differentiate between high 
and low zinc non-wastewater (K061 wastes); 33-24-05-282.1.b and 33-24-
05-282.1, Table 1, because the State does not allow a treatment 
facility with interim status units to treat hazardous waste; 33-24-05-
282.3.a, because the State does not allow a treatment facility with 
interim status units to treat hazardous waste; 33-24-05-282.3.c, 
because the State does not allow lab packs eligible for land disposal 
to be disposed at interim status landfills; 33-24-05-283.3.a, because 
the State does not allow a treatment facility with interim status units 
to treat hazardous waste; 33-24-05-552.2.a.1 & 2.b, because the State 
does not have an analog to 40 CFR 265.113 for interim facilities; North 
Dakota does not have an equivalent to 40 CFR 265.145(f)(9) making the 
State more stringent. Nevertheless, these requirements are part of 
North Dakota's authorized program and are Federally enforceable.
    We also consider the following State requirements to go beyond the 
scope of the Federal program: 33-24-06-14(7)(a)(3), because the State 
has requirements for newly regulated wastes and units that are not 
required by Federal rules. Broader-in-scope requirements are not part 
of the authorized program and EPA cannot enforce them. Although a 
facility must comply with these requirements in accordance with State 
law, they are not RCRA requirements.
    EPA cannot delegate the Federal requirements at 40 CFR 268.5, 
268.6, 268.42(b), and 268.44. EPA will continue to implement these 
requirements.

I. Who Handles Permits After This Authorization Takes Effect?

    North Dakota will issue and administer permits for all the 
provisions for which it is authorized. 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. EPA will transfer 
any pending permit applications, completed permits, or pertinent file 
information to North Dakota within 30 days of this approval. We will 
not issue any more new permits or new portions of permits for the 
provisions listed in the Table above after the effective date of this 
authorization. EPA and North Dakota have agreed to joint permitting and 
enforcement for those HSWA requirements for which North Dakota is not 
yet authorized.

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

    North Dakota is not authorized to carry out its hazardous waste 
program in Indian country, as defined in 18 U.S.C. 1151. This includes:
    1. Lands within the exterior boundaries of the following Indian 
Reservations located within or abutting the State of North Dakota:
    a. Fort Totten Indian Reservation
    b. Fort Berthold Indian Reservation
    c. Standing Rock Indian Reservation
    d. Turtle Mountain Indian Reservation
    2. Any land held in trust by the U.S. for an Indian tribe, and
    3. Any other land, whether on or off a reservation that qualifies 
as Indian country.
    Therefore, this action has no effect in Indian country where EPA 
will continue to implement and administer the RCRA program in these 
lands.
    In excluding Indian country from the scope of this program 
revision, we are not making a determination that the State either has 
adequate jurisdiction or lacks jurisdiction over sources in Indian 
country. Should the State of North Dakota choose to seek program 
authorization within Indian country, it may do so without prejudice. 
Before EPA would approve the State's program for any portion of Indian 
Country, we must be satisfied that the State has authority, either 
pursuant to explicit Congressional authorization or applicable 
principles of Federal Indian law, to enforce its laws against existing 
and potential pollution sources within any geographical area for which 
it seeks program approval and that such approval would constitute sound 
administrative practice.

K. What is Codification and is EPA Codifying North Dakota's 
Hazardous Waste Program as Authorized in this Rule?

    Codification is the process of placing the State's authorized 
hazardous waste program statutes and regulations 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 JJ for this authorization of North Dakota's program until a 
later date.

L. Regulatory Analysis and Notices

Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of the UMRA generally requires EPA to identify 
and consider a reasonable number of regulatory alternatives and adopt 
the least costly, most cost-effective or least burdensome alternative 
that achieves the objectives of the rule. The provisions of section 205 
do not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including tribal governments, it must have developed under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments, enabling 
officials of affected small governments to have meaningful and timely 
input in the development of EPA regulatory proposals with significant 
Federal intergovernmental mandates, and informing, educating, and 
advising small governments on compliance with the regulatory 
requirements.
    EPA has determined that section 202 and 205 requirements do not 
apply to today's action because this rule does not contain a Federal 
mandate that may result in annual expenditures of $100 million or more 
for State, local, and/or tribal governments in the aggregate, or the 
private sector. Costs to State, local and/or tribal governments already 
exist under the State program, and today's action does not impose any 
additional obligations on regulated entities. In fact, EPA's approval 
of State programs generally may reduce, not increase, compliance costs 
for the private sector. Further, as it applies to the State, this 
action does not impose a Federal intergovernmental mandate because

[[Page 2902]]

UMRA does not include duties arising from participation in a voluntary 
federal program.
    The requirements of section 203 of UMRA also do not apply to 
today's action because this rule contains no regulatory requirements 
that might significantly or uniquely affect small governments. Although 
small governments may be hazardous waste generators, transporters, or 
own and/or operate TSDFs, they are already subject to the regulatory 
requirements under the existing State laws that are being authorized by 
EPA, and, thus, are not subject to any additional significant or unique 
requirements by virtue of this program approval.

Certification Under the Regulatory Flexibility Act (RFA), as amended by 
the Small Business Regulatory Enforcement Fairness Act of 1996 
(SBREFA), 5 U.S.C. 601 et seq.

    The RFA generally requires an agency to prepare a regulatory 
flexibility analysis of any rule subject to notice and comment 
rulemaking requirements under the Administrative Procedure Act or any 
other statute unless the agency certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
Small entities include small businesses, small organizations, and small 
governmental jurisdictions.
    For purposes of assessing the impacts of today's action on small 
entities, small entity is defined as: (1) A small business as specified 
in the Small Business Administration regulations; (2) a small 
governmental jurisdiction that is a government of a city, county, town, 
school district or special district with a population of less than 
50,000; and (3) a small organization that is any not-for-profit 
enterprise which is independently owned and operated and is not 
dominant in its field.
    After considering the economic impacts of this authorization on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. This action 
does not impose any new requirements on small entities because small 
entities that are hazardous waste generators, transporters, or that own 
and/or operate TSDFs are already subject to the regulatory requirements 
under the State laws which EPA is now authorizing. This action merely 
authorizes for the purpose of RCRA section 3006 those existing State 
requirements.

Compliance With Executive Order 12866

    The Office of Management and Budget has exempted this rule from the 
requirements of Executive Order 12866.

Compliance With Executive Order 13132 (Federalism)

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that 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.''
    Under section 6 of Executive Order 13132, EPA may not issue a 
regulation that has federalism implications, that imposes substantial 
direct compliance costs, and that is not required by statute, unless 
the Federal government provides the funds necessary to pay the direct 
compliance costs incurred by State and local governments, or EPA 
consults with State and local officials early in the process of 
developing the proposed regulation. EPA also may not issue a regulation 
that has federalism implications and that preempts State law unless the 
Agency consults with State and local officials early in the process of 
developing the proposed regulation.
    This authorization does not have federalism implications. It will 
not have a substantial direct effect on 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, because this rule affects only 
one State. This action simply approves the State's proposal to be 
authorized for updated requirements of the hazardous waste program that 
the State has voluntarily chosen to operate. Further, as a result of 
this action, newly authorized provisions of the State's program now 
apply in lieu of the equivalent Federal program provisions implemented 
by EPA under HSWA. Affected parties are subject only to those 
authorized State program provisions, as opposed to being subject to 
both Federal and State regulatory requirements. Thus, the requirements 
of section 6 of the Executive Order do not apply.

Compliance With Executive Order 13045

    Executive Order 13045, ``Protection of Children from Environmental 
Health Risks and Safety Risks,'' applies to any rule that: (1) the 
Office of Management and Budget determines is ``economically 
significant'' as defined under Executive Order 12866, and (2) concerns 
an environmental health or safety risk that EPA has reason to believe 
may have a disproportionate effect on children. If the regulatory 
action meets both criteria, the Agency must evaluate the environmental 
health or safety effects of the planned rule on children and explain 
why the planned regulation is preferable to other potentially effective 
and reasonably feasible alternatives considered by the Agency.
    This rule is not subject to Executive Order 13045 because it is not 
an economically significant rule as defined by Executive Order 12866, 
and because it does not involve decisions based on environmental health 
or safety risks.

Compliance With Executive Order 13084

    Under Executive Order 13084, EPA may not issue a regulation that is 
not required by statute, that significantly or uniquely affects the 
communities of Indian tribal governments, and that imposes substantial 
direct compliance costs on those communities, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by the tribal governments, or EPA consults with those 
governments. If EPA complies with consulting, Executive Order 13084 
requires EPA to provide to the Office of Management and Budget, in a 
separately identified section of the preamble to the rule, a 
description of the extent of EPA's prior consultation with 
representatives of affected tribal governments, a summary of the nature 
of their concerns, and a statement supporting the need to issue the 
regulation. In addition, Executive Order 13084 requires EPA to develop 
an effective process permitting elected officials and other 
representatives of Indian tribal governments ``to provide meaningful 
and timely input in the development of regulatory policies on matters 
that significantly or uniquely affect their communities.''
    This rule is not subject to Executive Order 13084 because it does 
not significantly or uniquely affect the communities of Indian tribal 
governments. North Dakota is not authorized to implement the RCRA 
hazardous waste program in Indian country. This action has no effect on 
the

[[Page 2903]]

hazardous waste program that EPA implements in the Indian country 
within the State.

Paperwork Reduction Act

    Under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., Federal 
agencies must consider the paperwork burden imposed by any information 
request contained in a proposed rule or a final rule. This rule will 
not impose any information requirements upon the regulated community.

National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C. 
272 note) directs EPA to use voluntary consensus standards in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standards bodies. The NTTAA directs EPA 
to provide Congress, through OMB, explanations when the Agency decides 
not to use available and applicable voluntary consensus standards.
    This action does not involve technical standards. Therefore, EPA 
did not consider the use of any voluntary consensus standards.

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, Water pollution control, 
Water supply.

    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: January 5, 2000.
Jack W. McGraw,
Acting Regional Administrator, Region 8.
[FR Doc. 00-1067 Filed 1-18-00; 8:45 am]
BILLING CODE 6560-50-P