ENVIRONMENTAL PROTECTION AGENCY 

40 CFR Part 271 

[EPA-R07-RCRA-2008-0830] ; [FRL ] 

Nebraska : Final Authorization of State Hazardous Waste 

Management Program Revisions 

AGENCY : Environmental Protection Agency (EPA) . 

ACTION : Final Rule . 

SUMMARY : The Solid Waste Disposal Act, as amended, commonly 

referred to as the Resource Conservation and Recovery Act 

(RCRA), allows the Environmental Protection Agency (EPA) to 

authorize States to operate their hazardous waste management 

programs in lieu of the Federal program . Nebraska has applied 

to EPA for final authorization of the changes to its hazardous 

waste program under RCRA . EPA has determined that these changes 

satisfy all requirements needed to qualify for final 

authorization and is authorizing the State's changes through 

this immediate final action . 

DATES : This Final authorization will become effective on 

[insert the date of publication] . 

FOR FURTHER INFORMATION CONTACT : Lisa Haugen, EPA Region 7, 

AWMD/RESP, 901 North 5th Street, Kansas City, Kansas 66101, 

(913) 551-7877, or by e-mail at haugen .lisa@epa .gov . 

SUPPLEMENTARY INFORMATION : 
A. Why are Revisions to State Programs Necessary? 

States which have received final authorization from EPA 

under RCRA section 3006(b), 42 U .S .C . 6926(b), must maintain a 

hazardous waste program that is equivalent to, consistent with, 

and no less stringent than the Federal program . As the Federal 

program changes, a State must change its program accordingly and 

ask EPA to authorize the changes . Changes to State programs may 

be necessary when Federal or State statutory or regulatory 

authority is modified or when certain other changes occur . Most 

commonly, the State must change its program because of changes 

to EPA's regulations in 40 Code of Federal Regulations (CFR) 

parts 124, 260 through 266, 268, 270, 273 and 279 . 

Nebraska initially received final authorization on January 

24, 1985, effective February 7, 1985 (50 FR 3345), to implement 

the RCRA hazardous waste management program . EPA granted 

authorization for changes to Nebraska's program on October 4, 

1985, effective December 3, 1988 (53 FR 38950) ; June 25, 1996, 

effective August 26, 1996 (61 FR 32699) ; April 10, 2003, 

effective June 9, 2003 (68 FR 17553) ; and October 4, 2004, 

effective December 3, 2004 . 

On April 29, 2008, Nebraska submitted a final complete 

program revision application, seeking authorization of its 

changes in accordance with 40 CFR 271 .21 . On December 30, 2008, 
EPA published both an Immediate Final Rule (73 FR 79661) 

granting Nebraska final authorization for these revisions to its 

Federally-authorized hazardous waste program, along with a 

companion Proposed Rule announcing EPA's proposal to grant such 

a final authorization (73 FR 79761) . EPA announced in both 

documents that the Immediate Final Rule and the Proposed Rule 

were subject to a thirty-day comment period . The public comment 

period ended on January 29, 2009 . EPA received written comments 

from one commenter during the public comment period . Today's 

action responds to the comments EPA received and publishes EPA's 

final determination granting Nebraska final authorization of its 

program revisions . Further background on EPA's Immediate Final 

Rule and its tentative determination to grant authorization to 

Nebraska for its program revisions-appears in the aforementioned 

Federal Register notices . The issues raised by the commenter 

are summarized and responded to as follows . 

B . What Were the Comments and Responses to EPA's Proposal? 

The comments did not address specific concerns with EPA's 

approval of the additional RCRA regulatory provisions in 

Nebraska's authorized hazardous waste program; rather the 

comments address a previous rule promulgated by EPA. The 

commenter's arguments relate specifically to EPA's promulgation 

of the Zinc Fertilizer Rule on July 24, 2002 (67 FR 48393) . 
Specifically, the commenter argued that the Phase IV Land 

Disposal Restriction (LDR) - which is more stringent than the 

Zinc Fertilizer Rule - resulted from an "affirmative finding of 

safety" when zinc-containing hazardous wastes were disposed in 

Subtitle C landfills, so it is counterintuitive to claim that 

the same zinc-containing hazardous wastes can now "safely" be 

used as fertilizer . For the reasons set forth below, we do not 

agree with the commenter . 

EPA promulgated all of the rules included in Nebraska's 

revision pursuant to the authority granted to EPA by Congress 

under RCRA . Those rules, including the Zinc Fertilizer Rule, 

were finalized after full consideration of any and all comments 

submitted in a timely manner . By adopting the rule promulgated 

by EPA, Nebraska revised its hazardous waste program to be 

equivalent to and consistent with the Federal program . Pursuant 

to 42 U .S .C . 6926(b), EPA has the authority to authorize State 

programs that are equivalent to and consistent with the Federal 

program . The comments submitted speak directly to the Federal 

rule and not to EPA's authorization of Nebraska's program 

revisions . Therefore, we have determined that there is no basis 

to deny authorizing approval based on these comments . 

In addition, the commenter argues that exempting zinccontaining hazardous wastes from regulation as solid waste is 
not supported by Nebraska Revised Statute 75-362 . This comment 

is not relevant to this action . The criteria for authorization 

of a State hazardous waste program are set forth at section 3006 

of RCRA, 42 U .S .C . 6926(b) . In reviewing an application under 

this section, EPA considers whether the State program (1) is 

equivalent to the Federal program under subchapter III, which 

governs hazardous waste ; (2) is consistent with Federal or 

"State programs applicable to other States" ; and (3) provides 

adequate enforcement of compliance with the requirements of 

subchapter III of RCRA . As part of this review, EPA considers 

whether the State is imposing requirements less stringent than 

those authorized under subchapter III respecting the same matter 

as governed by such regulation . The commenter's argument with 

regard to Nebraska Revised Statute 75-362 falls outside the 

scope of our review of Nebraska's application for the hazardous 

waste rules authorized herein . Therefore, the comment regarding 

Nebraska Revised Statue 75-362 is not relevant to this action . 

C . What Decisions Have We Made in This Rule? 

Based on EPA's response to public comments, the Agency has 

determined that approval of Nebraska's RCRA program revisions 

should proceed . EPA has made a final determination that 

Nebraska's application to revise its authorized program meets 

all of the statutory and regulatory requirements established by 
RCRA . Therefore, we grant Nebraska final authorization to 

operate its hazardous waste program with the changes described 

in its application for program revisions . Nebraska is 

responsible for carrying out the aspects of the RCRA program 

described in its approved program applications, subject to the 

limitations of the Hazardous and Solid Waste Amendments (HSWA) 

of 1984 . 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 any such HSWA 

requirements and prohibitions in Nebraska, including issuing 

HSWA permits, until the State is granted authorization to do so . 

For further background on the scope and effect of today's action 

to approve Nebraska's RCRA program revisions, please refer to 

the preambles of EPA's December 30, 2008, Proposed and Immediate 

Final Rules at 73 FR 79761 and 73 FR 79661 respectively . 

D . Statutory and Executive Order Reviews 

The Office of Management and Budget (OMB) has exempted this 

action from the requirements of Executive Order 12866 (58 FR 

51735, October 4, 1993), and therefore this action is not 

subject to review by OMB . This action authorizes state 

requirements for the purpose of RCRA 3006 and imposes no 

additional requirements beyond those imposed by state law . 
Accordingly, I certify that this action will not have a 

significant economic impact on a substantial number of small 

entities under the Regulatory Flexibility Act (5 U .S .C .601 et 

seq .) . Because this action authorizes pre-existing requirements 

under State law and does not impose any additional enforceable 

duty beyond that required by State law, it does not contain any 

unfunded mandate or significantly or uniquely affect small 

governments, as described in the Unfunded Mandates Reform Act of 

1995 (Pub . L . 104-4) . For the same reason, this action also 

does not significantly or uniquely affect the communities of 

Tribal governments, as specified by Executive Order 13175, 

"Consultation and Coordination With Indian Tribal Governments" 

(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, 

"Federalism" (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, 

"Protection of Children From Environmental Health Risks and 
Safety Risks" (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 that may affect children . 

This rule 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), EPA grants a State's application for 

authorization as long as the State meets the criteria required 

by RCRA . It would thus be inconsistent with applicable law for 

EPA, when it reviews a State authorization application, to 

require the use of any particular voluntary consensus standard 

in place of another standard that otherwise satisfies the 

requirements of RCRA . Thus, the requirements of section 12(d) 

of the National Technology Transfer .and Advancement Act of 1995 

(15 U .S .C . 272 note) do not apply . As required by section 3 of 

Executive Order 12988, "Civil Justice Reform" (61 FR 47729, 

February 7, 1996), in issuing this rule, EPA has taken the 

necessary steps to eliminate drafting errors and ambiguity, 

minimize potential litigation, and provide a clear legal 

standard for affected conduct . EPA has complied with Executive 

Order 12630, "Government Actions and Interference with 

Constitutionally Protected Property Rights (53 FR 8859, March 
15, 1988) by examining the takings implications the rule in 

accordance with the "'Attorney General's Supplemental Guidelines 

for the Evaluation of Risk and Avoidance of Unanticipated 

Takings" issued under the executive order . This rule does not 

impose an information collection burden under the provisions of 

the Paperwork Reduction Act of 1995 (44 U .S .C . 3501 et seq .) . 

The Congressional Review Act, 5 U .S .C . 801 et seq ., as 

added by the Small Business Regulatory Enforcement Fairness Act 

of 1996, 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 . 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 

[insert the date of publication] . 

List of Subjects in 40 CFR Part 271 

Environmental protection, Administrative practice and 

procedure, Confidential business information, Hazardous waste, 
10 

Hazardous waste transportation, Incorporation-by FR-reference, 

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 13, 2010 Karl Brooks 

Regional Administrator . 

Region 7 .